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Divorce

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Divorce

Divorce 2

Divorce 3 (cruelty)

Divorce 4

Divorce 5

Divorce 6 (Adultery)

Divorce 7

Divorce 8

Divorce 9 (By Husband)

Divorce 10

Divorce 11

Divorce 12

List Of Documents Required

 
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Frequent questions, quickly answered.

Under Section 13-B of the Hindu Marriage Act, 1955:

The parties can seek divorce by mutual consent by filing a petition before the court. Mutual consent means that both the parties agree for peaceful separation. Mutual Consent Divorce is a simple way of coming out of the marriage and dissolve it legally. Important requirement is the mutual consent of the husband & wife. There are two aspects on which Husband & Wife have to reach to consensus. One is the alimony or maintenance issues. As per Law there is no minimum or maximum limit of maintenance. It could be any figure or no figure. Next important consideration is the Child Custody. This can also be worked out effectively between the parties. Child Custody in Mutual Consent Divorce can be shared or joint or exclusive depending upon the understanding of the spouses.

The parties intending to dissolve marriage are required to wait for at least one year from the date of marriage.

They have to show that they have been living separately for a period of one year or more before the presentation of the petition for divorce and that during this period of separation they have not been able to live together as husband and wife.

In the family court of the city / district where both the partners lived together for the last time, which was their matrimonial home.

The divorce petition is in the form of affidavit, which is to be submitted to the family court. After the filing of the petition and recording the statement of both the parties, the court generally adjourns the matter for a period of 6 months.

After six months the parties have to present themselves again in the court for making a second motion confirming the mutual consent filed earlier. It is only after this second motion that a decree of the divorce is granted by the court.

During this period of 6 months when the petition is pending in the court, any of the partner is fully entitled to withdraw the mutual consent by filing an application before the court stating that he/she does not wish to seek divorce by mutual consent.

In such circumstances, the court grants no divorce decree.

There is no option available to the other party to such circumstances except to file a normal petition for divorce under the provisions of the Section 13 of the Hindu Marriage Act, 1950.

In such a situation divorce can be granted only on certain specified grounds like cruelty; desertion; voluntary sexual inter-course with another person; the other spouse being of unsound mind; conversion of religion by the other spouse; Leprosy; venereal disease; a spouse having renounced the world or being missing for a period of more than 7 years.

Remarriage without getting divorce is a punishable offence with seven years’ imprisonment.

If there is proof of the absence of spouse without any information to the other spouse about his whereabouts for a continuous seven years period, a petition should be filed in this regard in the court.

Depending on the nature of decree, after the expiry of three months from the date of decree if no notice of appeal is received by the person remarrying from the other person.

If you hire an advocate, it will be somewhere from Rs25, 000 to Rs75, 000.

But if you get the documentation done by us and file on your own without a lawyer, the cost will be very very low. You will not have any problem in filing your petition with our guidance, and you will save a lot of money.

It takes from six months to one year from the date of filing of the petition. It varies from case to case & place to place.

In case of a contested divorce, there are specific grounds on which the petition can be made. It isn’t as if a husband or wife can simply ask for a divorce without stating a reason.

The reasons for divorce are as follows, though some are not applicable to all religions.
  • Cruelty

Cruelty may be physical or mental cruelty. According to the Hindu Divorce Laws in India, if one spouse has a reasonable apprehension in the mind that the other spouse’s conduct is likely to be injurious or harmful, then there is sufficient ground for obtaining divorce due to cruelty by the spouse.

  • Adultery

In India, a man that commits adultery (i.e. has consensual sexual intercourse outside of marriage) can be charged with a criminal offence. The wife may, of course, file for divorce as a civil remedy. If, on the other hand, a wife commits adultery, she cannot be charged with a criminal offence, though the husband can seek prosecution of the adulterer male for adultery.

  • Desertion

One spouse deserting the other without reasonable cause (cruelty, for example) is reason for divorce. However, the spouse who abandons the other should intend to desert and there should be proof of it. As per Hindu laws, the desertion should have lasted at least two continuous years. Christians, however, will not be able to file a divorce petition solely for this reason.

  • Conversion

Divorce can be sought by a spouse if the other spouse converts to another religion. This reason does not require any time to have passed before divorce can be filed.

  • Mental Disorder

If the spouse is incapable of performing the normal duties required in a marriage on account of mental illness, divorce can be sought. If the mental illness is to such an extent that the normal duties of married life cannot be performed.

  • Communicable Disease

If the spouse suffers from a communicable disease, such as HIV/AIDS, syphilis, gonorrhea or a virulent and incurable form of leprosy, the Hindu Divorce Laws in India say that the other party can obtain a divorce.

  • Renunciation of the World

if the spouse renounces his/her married life and opts for sanyasa, the aggrieved spouse may obtain a divorce.

  • Presumption of Death

If the spouse has not been heard of as being alive for a period of at least seven years, by such individuals who would have heard about such spouse, if he or she were alive, then the spouse who is alive can obtain a judicial decree of divorce.

With a contested divorce, spouses will have to go through numerous steps before the divorce is finalized, including:
  • prepare, file and serve (deliver) the divorce petition (legal paperwork asking for the divorce and stating the grounds for the breakdown of the marriage)
  • respond to the petition
  • interview and hire an attorney
  • engage in “divorce discovery” – the information gathering process, which involves various legal procedures to get information from your spouse and third-party witnesses (e.g., written questions, subpoenas, and depositions)
  • pre-trial legal motions and hearings
  • settlement proposals and negotiations between attorneys
  • if settlement fails, prepare for trial
  • complete a court trial
  • Appeal, if you dispute the trial judge’s decision(s).

During the settlement phase, spouses are often unable to resolve issues. Although the divorce judge may encourage spouses to work things out, when that doesn’t happen the next step is divorce court.

During trial, both spouses present witnesses, and their lawyers cross-examine the witnesses and present closing arguments. After trial is over, the court will issue a final order memorializing all of the judge’s decisions, and finalize the divorce.

  • Address proof of husband
  • Address proof of wife
  • Marriage certificate
  • Four passport size photographs of marriage of husband and wife
  • Evidence proving spouses are living separately since more than a year
  • Evidence relating to the failed attempts of reconciliation
  • Income tax statements for the last 2-3 years
  • Details of profession and present remuneration
  • Information relating to family background
  • Details of properties and other assets owned by the petitioner

Lawyers tend to charge fees for appearing in court and doing any other work. Depending on how intensely it is fought, therefore, a divorce may cost anywhere from the low ten thousands to lakhs of rupees.

The right of maintenance extends to any person economically dependent on the marriage. This will include, therefore, either spouse, dependent children or even indigent parents.

The claim of either spouse (though, in the vast majority of cases, it is the wife), however, depends on the husband having sufficient means. When deciding how much alimony is to be paid, the courts will take into account the earning potential of the husband, his ability to regenerate his fortune (in case, say, the property is given to the wife) and his liabilities. In case either spouse is unable to pay for the divorce, these expenses would also be paid by the spouse that does have an income.

  • The age of the person entitled to receive the alimony.
  • The earnings and current financial status of the spouse entitled to pay the alimony.
  • The failing health or a medical condition of one of the spouses who is going to receive the alimony may act in favor of him or her. They can claim a larger alimony on the basis of their failing health.
  • The spouse that retains custody of the child would be entitled to either pay lesser alimony or be entitled to a greater amount while the child is a minor.

Courts usually agree to the decision of the parents in a mutual consent divorce, the courts are expected to see to the best interest of the child. In a contested divorce, the courts will examine the ability of the mother or father to be a parent to the child, for example. Money is not usually a matter that is considered. Non-working mothers are regularly given custody of their children, but fathers are expected to provide financial support.

A marriage is automatically void and is automatically annulled when law prohibits it. Section 11 of the Hindu Marriage Act, 1955 deals with:

Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto, against the other party be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v), Section 5 of the Act.

  • Bigamy: If either spouse was still legally married to another person at the time of the marriage then the marriage is void, and no formal annulment is necessary.
  • Interfamily marriage: A marriage between an ancestor and a descendant, or between a brother and a sister, whether the relationship is by the half or the whole blood or by adoption.
  • Marriage between close relatives: A marriage between an uncle and a niece, between an aunt and a nephew, or between first cousins, whether the relationship is by the half or the whole blood, except as to marriages permitted by the established customs.

A voidable marriage is one where an annulment is not automatic and must be sought by one of the parties. Generally, an annulment may be sought by one of the parties to a marriage if the intent to enter into the civil contract of marriage was not present at the time of the marriage, either due to mental illness, intoxication, duress or fraud.

The duration for obtaining divorce varies from case to case and place to place. Generally speaking, contested proceedings take 18 to 24 months. Mutual consent varies from 6 months to 18 months.

Any husband can present a petition to the District Court or the High Court, praying that his marriage needs to be dissolved on the ground that his wife has been guilty of adultery since the solemnization of marriage. According to this act, such marriage might be solemnised according to the Christian Marriage Act.

Any wife can present a petition to the District Court or the High Court for dissolution of marriage. The wife can file such petition under any of the following circumstance:

  • If her husband has exchanged his profession of Christianity for the profession of some other religion
  • husband went through a form of marriage with another woman
  • her husband has been guilty of incestuous adultery since the solemnization of marriage
  • In case of bigamy with adultery
  • case of marriage with another woman with adultery
  • In case of rape, sodomy or bestiality
  • case of adultery coupled with such cruelty as without adultery would have entitled her to a divorce a mensa et toro
  • case of adultery coupled with desertion, without reasonable excuse, for two years or more
The court will dismiss the petition for any of the following cases:
  • In case of evidence for any petition is not satisfied by the court or the petitioner’s case has not been proved
  • If the court is not satisfied that the alleged adultery has been committed, find that the petitioner has, during the marriage, been accessory to,  or conniving at, the going through of the said form of marriage, or the adultery of the other party to the marriage, or has condoned the adultery complained of,
  • If the petition is prosecuted in collusion with either of the respondents and any of the said cases, the court will dismiss the petition.

When the District Court dismisses a petition under this act, the petitioner can present a similar petition to the High Court.

In case the court is satisfied, and the evidence of a case of the petitioner has been proved, the court will pronounce a decree declaring such marriage to be dissolved. According to this act, the Court will not be bound to pronounce such decree for the following cases:

  • If it finds that the petitioner has been guilty of adultery
  • If the petitioner has been guilty of unreasonable delay in presenting or prosecuting such petition,
  • In case of cruelty towards the other party to the marriage
  • case of having deserted or willfully separated himself or herself from the other party before the adultery complained and without reasonable excuse,
  • case of such willful neglect or misconduct towards the other party as has conducted to the adultery

The High court will verify the cases for confirmation of a decree for dissolution of the marriage. If a court composed of three Judges, the opinion of the majority will prevail or In case of a court composed of two Judges, the opinion of the Senior Judge will be taken. If the High Court needs for further enquiry or additional evidence, can direct such enquiry to be made or evidence to be taken.

The result of the enquiry and the additional evidence will be certified to the High Court by the District Judge, and the High Court will make an order confirming the decree for dissolution of marriage.

Any husband or wife can present a petition to the District Court or the High Court, praying that his or her marriage may be declared as null and void. Decree of Nullity will be made on any of the following

  • The respondent was essential at the time of the marriage and at the time of the institution of the suit
  • The couples are within the prohibited degrees of consanguinity or affinity
  • In case of either party was a lunatic or idiot at the time of the marriage
  • In case the former husband or wife of either party was living at the time of the solemnization, and the marriage with such former husband or wife was then in force.

Nothing in this section will affect the jurisdiction of the High Court to make decrees of nullity of marriage on the ground that the consent of either party was obtained by force or fraud.

Every decree of nullity of a marriage made by the District Judge will be subject to confirmation by the High Court.

Juridical Separation:

is the legal separation between the husband and the wife, granted by the court on a petition from either the husband or the wife or both. In judicial separation, the marital tie between the wife and husband continues to exist, and neither of them enjoys the freedom to be re-married.

The husband or wife can obtain a decree of judicial separation; on the ground of adultery or cruelty or desertion without reasonable excuse for two years, or more and such decree will have the effect of divorce under the Indian Divorce Act.

The petition for juridical separation can be applied on the ground of adultery or cruelty or desertion without reasonable excuse for two years or more.

Either husband or wife can make application for judicial separation on any one of the grounds as stated above by petition to the District Court or the High Court; and the court, on being satisfied with the truth of the statements made in such petition will grant judicial decree separation accordingly.

In case of a judicial separation under this Indian Divorce Act, the wife will whilst so separated, be considered as an unmarried woman for contract, and wrongs and injuries, and suing and being sued in any civil proceedings; and her husband will not be liable in respect of any contract, act or costs entered or incurred by her during the separation.

  • In every case of a Juridical separation under this Indian Divorce Act, the wife will be considered as unmarried from the date of the decree, and while the separation continues
  • The separated wife will be considered as unmarried concerning the property of every description which she acquires
  • The property held by the separated wife can be disposed of by her in all respects as an unmarried woman

When two people are married, they must support each other. According to the Code of Criminal Procedure, 1973, the right of maintenance extends to any person economically dependent on the marriage. This will include, spouse, dependent children and even indigent parents.

The alimony claim of either spouse (though, in the vast majority of cases, it is the wife) depends on whether the husband has sufficient means. While deciding that the alimony is to be paid, the courts will take into account the earning potential of the husband, his ability to regenerate his fortune (the property is given to the wife) and his liabilities.

Note:

In some cases, the court can make an order to the husband for payment to the wife of monthly or weekly sums for her maintenance and support

The alimony amount depends upon the length of marriage in a contested divorce, Divorce after a decade of marriage entitles the spouse to life-long alimony.

The other important factors that need to be considered are given here:
  • Age of the person who is entitled to receive the alimony
  • The economic condition or the earnings potential of the person who is entitled to pay alimony
  • The health of spouse, the failing health or a medical condition of one of the spouses who is going to receive the alimony may act in favour of him or her. They can claim larger alimony by their failing health
  • The spouse who retains custody of a child would be entitled to either pay lesser alimony or be entitled to a greater amount while the child is a minor

According to the Indian Divorce Act, if a person is married – irrespective of the fact that a divorce petition has been filed, that person has the right to occupy the property. In case that person is looking after children, the case is much stronger, while the property may be granted to one or the other spouse in the divorce settlement.  Both wife and husband have the right to remain on the property until the decree from the court.

The courts will usually agree to the decision of the parents in a mutual consent divorce; the courts will be expected to check the best interest of the child. In case of a contested divorce, the courts will examine the ability of the father or mother be a parent to the child, as stated above, non-working mothers are regularly given custody of their children, but fathers are expected to provide financial support.

The following documents have to be furnished for filing a divorce in India according to the Indian Divorce Act, 1869 :
  • Address proof of husband
  • Address proof of wife
  • Marriage certificate
  • Four passport size photographs of the marriage
  • Evidence for proving spouses are living separately since more than a year
  • Evidence of the failed attempts of reconciliation
  • Income tax statement for the last two to years
  • Details of the profession and present remuneration
  • Information relating to family background
  • Details of property and other assets owned by the petitioner

The procedure is regulated for filing a divorce in India is generally regulated by the provision of Code of Civil Procedure, 1908. The procedure for seeking a divorce is initiated by filing a petition which is followed by affidavits from both the partners in the district court.

The petition must state the following details
  • Name of the parties
  • Status and domicile of the parties
  • Date and place of marriage
  • A principal permanent place where the parties cohabit
  • Place where the parties last resided together
  • Names of the children of the marriage( if any) with the date of birth
  • The ground of seeking divorce or separation
  • The facts and details by which the petitioner seeks the relief
  • That the parties are not deceiving the court by collaborating
  • The averments made are verified after six months couple has to re-appear in the front of court after filing a second motion petition for mutual consent divorce.
  • After hearing from both the husband and wife, if the judge is satisfied that all essential grounds are filing the recruitments and meeting the needs of divorce, the couple grants a mutual divorce decree.
  • Custody of child, alimony to wife and litigation expenses will be considered on issuing a decree for divorce.
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