What is Divorce?
Divorce is a dissolution of marriage through a legal process by filing a petition in a court of law. When a court passes a divorce decree, it brings an end to the matrimonial alliance of spouses and therefore terminates all the marriage. Along with the separation of husband and wife, it also involves the division of property, assets, and the issue of custody of the child. Divorce procedures and laws in India vary with each religion. This article will guide & describe you the whole process of how to file Divorce in India.
Difference between Divorce and Judicial Separation
Many times, people get confused between the concept of divorce and judicial separation, but they are two different concepts. In the case of judicial separation, the marriage continues to exist and neither of them can remarry. The rights and obligations which arise from marriage are merely suspended in the case of judicial separation.
Process of getting a divorce in India:
Although different religions have a different process of getting a divorce in India, the two main process which is common are :
Grounds for Divorce under Hindu Marriage Act
Section 13 of the Hindu Marriage Act, 1955 expounds on grounds on which contested divorce can be obtained.
- Adultery- It is a criminal offense where either of the spouses is involved in sexual relations with someone out of the marriage.
- Cruelty- It is defined as a willful act that can cause danger to body, limb, life or to mental health. It can include causing pain, abusing, torturing mentally or physically.
- Desertion- When a spouse willfully abandons another without any intention of coming back, it is known as Desertion. Desertion for more than two years could be a valid ground for divorce.
- Religion Conversion- In a Hindu marriage, if either of the spouses ceases to be a Hindu then it can be considered as a ground for divorce.
- Mental Disorder- Mental disorder includes unsoundness of mind, mental illness, or such mental disorder which makes the person abnormally aggressive.
- Communicable Diseases and Leprosy- Leprosy is a contagious and chronic disease that causes lesions on skins and nerve damage.
- Spouse not heard of- If either of a spouse is not heard of for more than seven years, then it can be considered as a ground for divorce.
- Renunciation of the world- Under the Hindu Law, the “Renunciation of the world” is a ground for divorce, if either of the spouses has renounced the world and has entered a holy order.
Grounds for Divorce under Special Marriage Act
Special Marriage Act is different from the customary Hindu Marriage Act. This act especially governs Civil marriages which is inter-caste or inter-religion marriages and so is the divorce proceedings of the parties. The grounds of divorce under this ac are as follows:
a) Indulging in voluntary sexual intercourse with any person other than the spouse,
b) Desertion for a period of 2 years or more,
c) Spouse being imprisoned for a period of seven years or more under the Indian Penal Code,
e) Any form of communicable or Venereal diseases,
f) If the spouse is found missing or not heard of being alive for a total period of 7 years or more,
g) Judicial Separation.
Grounds for Divorce under Muslim Marriage Act
A Muslim man can give divorce to his wife without dragging the matter to the court. But in case if a Muslim woman wants to dissolve a marriage and wants to give divorce, then she either has to take permission from her husband or can file a divorce petition under the Dissolution of Muslim Marriage Act based on the following grounds:-
a) The husband is found missing for a period of last four years,
b) Where husband doesnâ€™t provides maintenance for a period of about two years,
c) The husband is imprisoned for a period of seven years or more,
d) Where a husband fails to fulfill marital obligations for a period of at least three years.
e) Where the husband has been suffering from insanity or leprosy for a period of two years.
f) Where the husband is impotent.
Ground for Divorce under Indian Divorce Act
In the Indian divorce act the grounds of divorce for a Christian Couple have been mentioned which are as follows:-
a) Conversion of different religion by the husband and marrying another girl,
c) Bigamy along with adultery,
d) Commitment of sodomy, rape or bestiality by the husband
e) Cruelty along with adultery
f) Adultery along with Desertion for the least time period of 2 years.
What are the documents required to file a contested Divorce in India?
- Identity proof of the spouses
- Details of the profession of the spouses
- Income tax statement
- Properties or assets owned by the spouses
- Address proof of both the parties.
- Marriage certificate or Invitation card of marriage or Picture of marriage.
- Proof of separate living of the spouses for more than a year
- Photographs of Husband and Wife
Procedure for a Contested Divorce in India?
- Drafting and filing of divorce petition : The party who needs to take a divorce needs to file the petition before the appropriate court with the help of a lawyer.
- Service of summons: The summons is provided through the court stating that the divorce proceedings have already been initiated by their spouses.
- Response: After Summon has been delivered to the other party, the party who has received the summon has to be present in the court on the date that has been mentioned in the summoning. If a party fails to appear in the Court the judge can give the decision on an ex parte basis.
- Trial: One of the important processes is of trial. In this process both the parties along with their witness and evidence appear in the Court where the court heard both the parties pleadings.
- Interim orders: In this, the petition is filed by any of either party to get a temporary order in respect of child custody or maintenance in front of the court and if the court gets satisfied with the hearing court passes the interim orders.
- Argument: In this, both the parties’ lawyers argue in court to prove their client’s point
- Final order: After completion of all the proceedings the court based on the evidence, witness and argument of lawyer give its final decision. If either of the party is not satisfied with the decision they are free to move to the higher courts.
What is the teritorial jurisdiction of court to file a Divorce?
Place where both the parties lived for the last time.
The place where the husband is presently living
The place where the wife is presently living
Can Divorce Petition be withdrawn?
Yes, the divorce petition can be withdrawn at any time. You can either file an application for withdrawal or you can appear before the judge where your divorce has been filed and express your intention to withdraw the case with reason.