Divorce: Process, documents needed and steps involved

Divorce, also called dissolution of marriage, is the end of a marital union, which means canceling the legal duties and obligations of marriage and breaking the matrimony bonds between a married couple. Divorce Process in India is long and difficult since divorce is subject to a variety of personal laws based on the religion of the couple. In this article, we’ll examine the divorce procedure in India, the grounds for divorce, and the various steps required to get a divorce.

What are the different types of divorce under Hindu law?

According to Hindu law, divorce can be classified into two types:

  1. Mutual divorce: According to the Hindu Marriage Act, mutual divorce is subject to Section 13-B. As the name implies, in mutual divorce, both the parties, i.e., husband and wife, accept and signify their agreement to peaceful separation. The husband and wife must pre-decide the issue relating to child custody and alimony, if any. There are two conditions for filing a mutual divorce, one is mutual consent, and the other is that they have to live in separate households for atleast one year.
  2. Contested Divorce: If one spouse initiates the divorce, it is referred to as a Contested divorce. Section 13 of the Hindu Marriage Act 1955 gives the reasons for filing a contested divorce; some of them are cruelty, conversion of religion, unsound mind, communicable disease, or either spouse being unheard of for more than seven years.

What are the legal grounds for obtaining a contested divorce?

Section 13 of the Hindu Marriage Act, 1955 provides the grounds for contested divorces.

  1. Adultery: It is a crime where either of the spouses is involved in a sexual relationship with someone out of the marriage.
  2. Cruelty: It is defined as a deliberate act that can pose a danger to limbs, body, or to mental health. It can involve inflicting pain, abusing, and torturing mentally or physically.
  3. Desertion: If a spouse willingly and knowingly abandons the other without the intention of returning, it is referred to as desertion. Desertation for more than two years can be a valid legal reason for divorce.
  4. Conversion of Religion: In the event of a Hindu marriage, if one spouse stops to be a Hindu, it can be considered a ground for divorce.
  5. Mental Disorder: Mental disorder is characterized by mental instability, mental illness, or any mental disorder that makes an individual abnormally aggressive.
  6. Communicable diseases and Leprosy: It is a transmissible and chronic illness that causes skin lesions and nerve injury.
  7. Spouses not heard of: If either of a spouse is not heard of for more than seven years, this could be considered a valid ground for divorce.
  8. Renunciation of the world: According to the Hindu Law, the “Renunciation of the world” is a ground for divorce if one or both spouses has renounced the world and joined a holy order.

What is the procedure to get a mutual consent divorce in India?

It is recommended to get divorce consultation before making any final decisions about ending your marriage.

Following is the process to file for mutual divorce in India:

Step 1: Write an application stating the reasons for seeking a divorce, and both parties have agreed on it.

Step 2. Filing the petition jointly through respective divorce lawyers before the family court.

Step 3: After examining the petition and documents, the judge will issue the decision to record the statement on oath.

Step 4: After this, a cooling period of 6 months is provided to both parties with the intention of their reconciliation.

Step 5: After six months, if there’s no reconciliation between the parties, then both parties must appear for the final hearing. (Parties must appear for the second motion within 18 months from the date of filing the divorce application.)

Step 6: During the last hearing, the court approves the divorce decree, which dissolves the marriage.

What are the documents required for a mutual consent divorce in India?

The documents required for a mutual consent divorce include the following:

  • Residence Proof of Husband and Wife
  • Marriage Certificate
  • Photos of Husband and wife
  • Evidence to prove that mediation failed and the parties were unable to reconcile.
  • Evidence that shows that wife and husband have been living apart for more than a year
  • Details about husband and wife’s occupation and current earnings
  • Income tax statements of three financial years
  • Information about the family background of the couple
  • Details of the assets and property owned by the couple.

What is the procedure for a Contested Divorce in India?

The contested divorce can be filed by either of the spouses, based on the reasons mentioned above. Here are the steps to apply for a Contested divorce in India.

Step 1: Draft a petition clearly outlining the facts and reasons for seeking a divorce. This petition must be filed before a family court along with affidavits, vakalatnama, and other documents pertinent to the matter.

Step 2. When the judge is satisfied after examining the petition and decides to proceed with the case, it issues a notice or summons to the opposing party to appear on the fixed date with their lawyer.

Step 3. At this point, the court will recommend parties for mediation, and if the mediation does not solve the dispute, then the court will proceed with the divorce process.

Step 4. On a specific date, both parties are required to appear before the court, record their testimony, submit evidence, and will present their witnesses, if any. Then the counsels from both sides will give their final arguments.

Step 5: At the end, the court, at a set date, will announce the verdict and issue a divorce order. The aggrieved party can appeal to the order within three months of the passing of such an order.

What are the documents required for a Contested Divorce in India?

Documents needed for a contested divorce in India are:

  • Residence proof of husband and wife
  • Documents related to the financial condition of husband and wife, such as income certificates, tax returns, etc.
  • Marriage certificate
  • Documents proving the ground on which divorce is being filed.

What are the grounds and procedures for a divorce under Muslim Law in India?

There are two ways to seek divorce in accordance with Muslim Law in India.

Section 2 of the Dissolution of Muslim Marriages Act 1939 outlines the following grounds upon which Muslim women can seek a divorce in India:

  • The husband’s whereabouts have not been known for at least four years.
  • The husband was not able to provide maintenance for atleast two years
  • The husband has been sentenced to imprisonment for a minimum of seven years.
  • The husband did not comply with his marital obligations for atleast three years without any justifiable reason.
  • The husband was incompetent at the time of marriage, suffering from venereal disease, or had been of unsound mind for at least two years.

What are the grounds and procedures for a Christian Divorce in India?

Under Section 10A of the Indian Divorce Act 1869, there are two ways to file a Christian Divorce in India.

  1. Mutual Divorce: If both parties agree that they cannot live peacefully together and have lived apart for at least two years, then they can file a petition to dissolve their marriage before the District Court.
  2. Contested Divorce: A petition can be filed in the District Court either by the husband or wife on the following grounds:
  • Adultery
  • Unsound mind for a continuous duration of at least two years
  • suffering from a severe and incurable form of leprosy for at least two years
  • Willfully refusing to consummate the marriage
  • deserted for at least two years
  • cruelty, or the husband is guilty of rape, sodomy, or bestiality

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