Divorce procedure in India is a very critical process, both in legal and emotional terms, that has to be understood with a certain degree of patience, maturity and awareness. If you are planning to dissolve your marriage in India, you need to know the complete procedure for divorce, various legal formalities, and the steps involved in it.
This guide will tell you everything you need to know about the procedure for divorce in India, including mutual consent divorce and contested divorce, along with documentation, timelines, and other legal implications you need to know.
This guide will bring clarity on the process of divorce, either a mutual consent divorce or a contested one. Based on it, factors pertaining to alimony, child custody, financial settlement, etc., along with many frequently asked questions regarding divorce in India, will be dealt with.
Laws Governing Divorce in India for Different Religions
India works under a personal law system whereby different laws govern divorce based on the individual’s religion. For Hinduism, Buddhism, Jainism, and Sikhism, there is the Hindu Marriage Act, of 1955, applicable for Hindus, Buddhists, Jains, and Sikhs unless married under the Special Marriage Act.
Concerning Muslims, there are two main laws in place, the Muslim Personal Law (Shariat) Application Act, of 1937, and the Dissolution of Muslim Marriages Act, of 1939. For the men, that simply means they can pronounce Talaq, the instant one, Talaq-e-Ahsan, or Talaq-e-Hasan. For women, it may be khula, (mutual consent) or Faskh, that is going to the court claiming grounds like cruelty, desertion, or non-maintenance. The recent act, The Muslim Women Protection of Rights on Marriage Act of 2019, criminalized triple Talaq Talaq-e-Biddat, thus putting it as illegal.
The Indian Divorce Act. 1869 which governs divorce for the Christians in India. Grounds on which individuals can get divorced under this law include adultery, desertion for two years, cruelty, mental illness, and conversion to another religion.
The Parsi Marriage and Divorce Act; of 1936 is as has been specified to this particular community alone. Some of the grounds on which divorce can be granted under this law are adultery, cruelty, desertion for two years, bigamy, or non-consummation of the marriage. The case goes under a special Parsi matrimonial court with the help of the delegates of the Parsi community (elders).
Finally, the Special Marriage Act, of 1954, governs persons of different faiths and those that choose to marry under civil law. It grants divorce through derivation under Section 28 of mutual consent or Section 27 of contested divorce on grounds of cruelty, adultery, desertion, or mental disorder.
Types of Divorce in India
There are two major types of divorces in India i.e. A mutually consented divorce and contested divorce. A Mutual Consent Divorce is a process by which both husband and wife wish to end their marriage peacefully. It’s the easiest and quickest legal route towards separation between couples. In this type of divorce, the couples would have resolved their disputes on the provision of alimony, sharing of property, and custody of children ahead of time, unlike other long-lasting legal battles that some couples undergo.
Whereas, in Contested divorce is a divorce initiated by either husband or wife against the unwillingness of the other spouse. This one takes a long time due to the competence of legal proceedings that shall lead to a final hearing at the court. Provided one of the spouses opposes the other in the undertaken divorce, the court will assess the grounds for divorce, such as cruelty or desertion, adultery, or it being clear that a marriage has irretrievably broken down.
Documents Required for Divorce in India
While the requirements may vary from case to case depending on the type of divorce, here is a list of the documents one is generally required to provide:
- The marriage certificate (proof of marriage).
- Proof of address (Aadhar card, passport, or voter ID).
- Photographic evidence of the marriage.
- Proof of income (salary slips, ITR, etc.).
- Details of assets and liabilities.
- Statement of agreement (in case of mutual divorce).
- Any evidence supporting grounds for divorce (in contested cases).
- Agreement regarding child custody and maintenance, if applicable.
Procedure for Mutual Divorce in India
A mutual divorce is governed by Section 13B of the Hindu Marriage Act, 1955 for Hindus and under the Special Marriage Act, 1954 for couples who did register marriage. Here are the steps involved:
Filing of the Petition
Both spouses must jointly file a petition for divorce in the family court. The Petition must state the reasons for seeking a divorce and mutual consent for alimony, child custody, and division of assets. The petition also needs to be signed and duly verified on oath by the assistant registrar or a notary office. Both spouses must understand the contents of the petition.
First Motion Hearing
The court will take a statement of both spouses. If the court sees that there is no discrepancy, it will grant the first motion. The court will also see if there is any chance of mediation between the spouses and if there is a chance of reconciliation, the court may forward the case for mediation.
Cooling-Off Period
Law says that the couple should have a 6-month reconciliation time. However, the Supreme Court has ruled that the cooling-off period may be waived if reconciliation is impracticable. In a landmark case of Amardeep Singh v. Harveen Kaur (2017) The Supreme Court ruled that the 6-months cooling-off period is not to be treated strictly and may be waived at the discretion of the court, subject to the conditions. The conditions noted that if both parties have settled all issues about alimony, child custody, and property and if there is no chance for reconciliation, then the cooling-off period could be waived to save unnecessary delay.
Second Motion Hearing
After the 6-month period expires (or earlier, if it was waived), both parties appear before the court. If they both affirm their resolution, a divorce decree is passed by the court.
Final Decree
The final divorce decree will be presented by the court; from that moment on, the marriage is legally terminated. Both the parties to a mutual divorce are thereafter free to marry any other person.
Mutual Divorce Timeframe
Generally, mutual divorce in India takes about 6 months to 8 months. But if the cooling-off period is waived by the court. The timeframe is reduced to 1 to 2 months.
Procedure for Contested Divorce in India
Most likely, a contested divorce runs on a higher side in terms of complexity, requiring lengthy legal battles, including the presentation of legal evidence. The contested divorce is governed by section 13 of the Hindu Marriage Act and for other religions, has a different procedure. But for the sake of simplicity, we will discuss the procedure used while dealing with the Hindu Marriage Act divorce petition. Below is a description of how to proceed with that:
Filing a Divorce Petition
One spouse, who can be either husband or wife, namely the petitioner, files a divorce petition against the other on several legally recognized grounds of divorce, such as cruelty, adultery, desertion, mental disorder, or irretrievable breakdown. The petition also needs to be signed and duly verified on oath by the assistant registrar or a notary office. The spouse must make such a petition and understand its contents.
Court to Issue Notice to Other Party
After the divorce petition is filed, the court duly serves a legal notice to the other spouse (respondent) on the nature of the proceedings. Modes of service of notice in a divorce petition include Personal Service, i.e., when the court directs a process server or a court employee to serve the notice personally to the respondent, service Through Registered Post with Acknowledgment Due (RPAD), publication in a Newspaper (Substituted Service), or Service Through an Employer or Local Authorities.
Response by the Opposing Party
The respondent has a legal right to reply to the divorce petition within a stipulated time of usually 30 days effective from the date of notice. This period can be extended from time to time but not above 90 days in total. The respondent can take one of the following actions i.e. Agreeing to the petition (uncontested divorce) or Contesting the petition (contested divorce) the spouse has the option to file a counter petition against the original petitioner.
Evidence
The parties present evidence to prove each one of their claims. This becomes very relevant in contested divorce causes since the court normally looks for ample proof before making a decision. Some of the different types of evidence that might be led are Witness testimony, Financial records, Medical reports, Electronic evidence, Police complaints and FIRs. The advocates of each party in court present the evidence by abiding by the admissibility principles of the law. They also get to cross-examination of the other side’s witnesses and evidence adduced by them.
Argument
After the evidence, the case goes for oral arguments by each party of the divorce petition. The key aspects through which the judge weighs the evidence are all the documents, testimonies, and facts that are presented, the Assessment of witness credibility and the validity of evidence.
Final Judgment
If the judge is convinced that the divorce petition has sufficient grounds to be allowed, the judge orders the decree. If not, the case may be dismissed or even partly allowed.
Timeframe Required
Contested Divorce takes approximately 2-5 years, usually depending on the complexity.
Conclusion
Even though getting a divorce from your spouse is emotionally heart-wrenching, what is even more heart-wrenching is proceeding with a divorce without proper knowledge about the divorce procedure. Becoming acquainted with the divorce procedure in India before taking further steps is an essential aspect of the procedure. Mutual divorce will be an easy and fast process, while contested divorce is lengthy and expensive. Therefore, it is always better to consult a qualified divorce lawyer to get proper legal advice. If you think of splitting from your partner, make sure that you understand your rights, legal possibilities, and financial implications before finalizing the decision.
