Complete Details Of Divorce Case in india.

What are the procedures followed in case of divorce?

Divorce procedure in India begins with filing of divorce petition and ends with notification of final decree of divorce.After the divorce cases are filed in the court both the parties are given equal rights in the court, the objective of the court is that both the parties get a fair settlement,Now let us know the procedures of divorce.

Divorce proceedings are conducted in several steps.

• Filing a petition,
• Service of summons (Notice),
• Mediation,
• Counter,
• Filing proof affidavit,
• Investigation and Cross-examination,
• Interim order (If any maintenance amount),
• Arguments (Both sides)
• Final order (Judgement).

What is Divorce?

Divorce is the dissolution of a marriage through a legal process by filing a petition in court. When a court passes a divorce decree, it puts an end to the marital alliance of the spouses.

These include spousal separation and the issue of property, assets and child custody. Divorce practices and laws in India vary from religion to religion.

Types of Divorce in India.

If you want to get a divorce in India, you have to file a divorce case in court. Divorce cannot be granted by a lawyer or anyone other than a court.

This divorce case is classified into two types in Indian courts one is Mutual Divorce and Contested Divorce, it is in these two types that divorce cases take place in courts, it is applicable to all religions in India but the rules are changed in model cases to suit each religion.

A mutual divorce means that both the husband and the wife get the divorce with their consent and no trial is required, so the judgment is given immediately and the mutual divorce ends quickly.

A contested divorce means that either the husband or the wife files for divorce. As the respondent continues to contest the case saying that one of them cannot grant a divorce, the case is heard and the divorce is granted only at the end of the case.

What types of divorces are there under Hindu law?

Divorce under Hindu law is of two types

• Mutual Divorce
• Contested Divorce

Mutual Divorce:

Under the Hindu Marriage Act in india, mutual divorce is governed by Section 13-B. As the name suggests, in mutual divorce, both the parties, that is The husband and wife mutually agree and express their consent to an amicable separation. Any issues related to alimony and child support should be decided in advance by the husband and wife.

There are only two requirements for filing a mutual divorce, one is mutual consent and the other is that they have lived separately for at least one year.

Contested Divorce:

If the divorce is initiated by one spouse, it is called a contested divorce.
Section 13 of the Hindu Marriage Act, 1955 provides grounds for filing a divorce case, some of which are cruelty, conversion, unsound mind, contagious disease or husband or wife not having heard from each other for more than seven years.

What is marital breakdown?

An irretrievable marital breakdown means that the spouses cannot live happily and comfortably together.

When the relationship reaches such a point that the marriage cannot be repaired, it is called an irretrievable breakdown of the marriage. There are some situations that lead to marriage breakdown such as lack of affection between husband and wife, separation of the couple, frequent arguments or one of the spouses engaging in extra-marital affairs.

At present, there is no law providing for irretrievable breakdown of marriage as grounds for divorce. It is different from mutual consent divorce as it does not depend on the will of the parties but the court examines whether the marriage can be saved or not based on the facts and evidence. Provides if there is no longer a chance to live together.

What are the grounds for divorce?

Section 13 of the Hindu Marriage Act, 1955 explains the grounds on which a divorce can be granted.

Adultery

It is a criminal offense for one of the spouses to have sexual relations with the other outside of marriage.

Cruelty

It is defined as an intentional act that endangers physical, limb, life or mental health. This includes inflicting pain, abuse, mental or physical torture.

Desertion

If a spouse deliberately abandons another with no intention of returning, it is called desertion. Leaving for more than two years can be valid grounds for divorce.

Religion Conversion

In a Hindu marriage, if one of the spouses is forced to convert, it can be considered grounds for divorce.

Mental Disorder

Mental impairment, mental disorder or mental disorder that makes the person unusually aggressive and not talking to the husband and family in the right frame of mind can also get a divorce for reasons like mental illness.

Communicable Diseases and Leprosy.

Leprosy is an infectious and chronic disease that causes skin lesions and nerve damage. Due to this, there is a rift in the relationship between the husband and wife and this can lead to divorce.

Spouse not heard of

A husband and wife can get a divorce if they haven’t heard from each other for more than seven years. That is, if one of them is missing and his whereabouts are unknown for seven years, it can be considered as a reason for divorce.

Renunciation of the world.

Under Hindu law, “renouncing the world” is a ground for divorce if one of the spouses has renounced the world and entered a holy order. Another person can freely get a divorce.

There are three grounds for divorce for the wife alone:

A wife can get a divorce if the husband has been guilty of rape, rape or brutality.
If the wife was married before the age of fifteen, the wife can get a divorce.
A decree or order is issued by the court to provide maintenance to the spouse and the spouse can get a divorce if they do not live together for more than one year.

Where to file divorce petition?

A divorce petition in India can be filed in a District Court or Family Court having original civil jurisdiction:

1. A petition for divorce can be filed where the marriage was solemnized, or where the marriage ceremony was solemnized.

2. The petition for divorce shall be filed in the court of the jurisdiction where the respondent resides at the time of presentation of the petition. Or if both parties file for divorce through a joint petition, either of them can be the defendant, so they can file for divorce at any place where both of them reside.

3. Suppose husband and wife have lived together at a place other than their primary home after marriage, and they do not wish to live together if they want to file a divorce case. A divorce petition can be filed in the court having jurisdiction over the place where they lived.

4. If the petitioner filing a divorce case resides outside the areas to which this Act extends i.e. resides in foreign countries not bound by Indian laws, when filing the divorce petition in the absence of the counter-petitioner or on the assumption that he has disappeared. or if he has not been heard alive for seven years, the suit must be instituted at the residence of persons who have known him for several years.

What is the procedure for husband and wife divorce by mutual consent in India?

The procedure for filing mutual divorce in India is as follows:

STEP 1: Prepare a draft petition stating the grounds for divorce, signed by both parties.

STEP 2: Petitioners jointly file a mutual divorce petition through lawyers in the family court.

STEP 3: After considering the petition along with the documents, the court will pass an order to record the affidavit.

STEP 4: After this, the parties are given a period of six months in the hope of conciliation.

STEP 5: After 6 months, if no compromise is reached, both parties must appear for a final hearing. (The parties must appear for the second hearing within 18 months from the date of filing the divorce petition.)

STEP 6: At the final hearing, the court passes a divorce decree dissolving the marriage.

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

Documents Required for Mutual Consent Divorce:

• Residence proof of husband and wife.
• Marriage certificate.
• Photos of husband and wife.
• Evidence to show that the mediation failed and the parties could not be reconciled.
• Proof that husband and wife have been living apart for more than one year.
• Details of husband and wife occupation and current income.

What is the Procedure for husband and wife contested Divorce in India?

Divorce is filed by husband or wife on the grounds mentioned below.

Following are the steps to file for contested divorce in India.

Step 1: Prepare a draft petition clearly stating the facts and grounds for seeking divorce. The petition is filed in a family court having jurisdiction along with affidavits, pleadings and documents related to the case.

Step 2: If the court after considering the petition is satisfied and decides to proceed with the case, it issues a notice or summons to the other party to appear with his counsel on a decided date.

Step 3: At this stage, the court will refer the parties to mediation and if the mediation fails to resolve the issue, the court will proceed with the divorce proceedings.

Step 4: On a specified date, both parties will appear in court, record their statements, adduce evidence, cross-examine and present their witnesses, if any. Then the lawyers of both sides will present their closing arguments.

Step 5: Finally, the court will make a judgment on a certain date and issue a divorce decree. The aggrieved party may appeal against the order passed within 3 months of passing such order.

What documents are required for a contested divorce in India?

Documents Required for Contested Divorce in India:

• Residence proof of husband and wife.
• Marriage certificate.
• Photos of husband and wife.
• Wedding photos.
• Documents proving the grounds on which the divorce is filed.

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

There are two processes for seeking divorce under Muslim law in India.

Judicial Process: (Judicial Process) Dissolution of Muslim Marriages Act, 1939.
Section 2 of the said Act mentions the following grounds for divorce by Muslim women in India:

If the husband’s whereabouts are unknown even after four years, he can file for divorce.

A divorce can be sought if the husband fails to provide maintenance for at least two years.

A divorce can be sought if the husband has been sentenced to imprisonment for at least seven years.

A divorce can be sought if the husband has failed to fulfill his marital obligations for at least three years without any reasonable cause.

Divorce can be sought if the husband was impotent or suffering from venereal diseases or mentally unsound for at least two years during the marriage.

A divorce can be sought if the husband treats his wife cruelly or marries her before the age of fifteen.

Extra-Judicial Process:

Let’s see about divorce by husband in Islam Talaq.

Currently the most hot topic in India is the issue of triple talaq in Islam, in which the Hon’ble Supreme Court of India is giving its precious and valuable time to prevent the so called social evil of triple talaq to protect the rights. Indian Muslim women from this social evil. It is important to point out here that the main source of Islamic law is the Holy Book of Quran. A man is but a revelation from God (Allah) for the benefit of the entire humanity. Muslims believe that the Quran was revealed orally by God to Muhammad (S.A.W) through the angel Gabriel. Therefore, it is necessary to find out what the holy book Quran says about Talaq.

Talaq (Divorce)

Talaq/divorce is considered an unforgivable sin, and it is clear from the Qur’an that Allah discourages divorce and encourages the continuation of marriage. However, if it is not possible to resolve disputes between husband and wife, the Holy Qur’an provides a procedure for an amicable dissolution of the marriage, with the possibility of revocation.

Talaq has two main forms:-

Talaq-ul-Sunnat:

This form of talaq is based on the tradition (Sunnah) of the Prophet and is considered the most recognized form of talaq. Talaq is actually considered an evil and if it is not possible to avoid this evil, then the best method is Talaq-ul-Sunnah, in which there is a possibility to change the consequences of this evil. Talaq is also called revocable Talaq because it is not final and there is always a possibility of reconciliation between the husband and wife. This type of talaq was the only practice during the Prophet’s lifetime. This method of talaq is recognized by both Sunni and Shia.

Talaq-ul-Sunnat may be pronounced in Ahsaan or Hasan form:

Talaq-e-Ahsaan

Talaq must be pronounced only once under this husband during the Duhr period (period between two periods). This talaq can be annulled anytime during this period.

Talaq-e-Hasan :

Under this, the husband has to pronounce Talaq three times in three consecutive Dhuhr periods. However, there should be no intercourse during this period.

Leaf

Here, the husband takes an oath, that is takes a vow not to have sex for four months. After four months, the marriage is dissolved.

Zihar

In this form, the husband compares his wife to his sister, mother or any other woman within a restricted degree.

Let’s see about divorce through wife in Islam.

Talaq-e-Taweez:

Here the husband gives the power of divorce to his wife either permanently or temporarily, so it is also called representative divorce.

Leon Talaq

If the wife is falsely accused of adultery, she is entitled to a judicial divorce.
Let’s take a look at divorce by mutual consent in Islam.

Gula:

If the wife agrees to consider the husband to release her from the marriage, it is considered a mutual divorce. It is the wife’s choice.

Mubarat:

In this situation, both husband and wife do not want to continue the marriage. So one of them can propose a divorce and if the other party accepts it, it is irrevocable and the marriage is dissolved.

Is triple talaq a valid form of divorce?

Talaq-e-biddat or triple talaq is no longer a valid form of divorce. Under Section 3 of the Muslim Women (Protection of Rights on Marriage) Act, 2019, triple talaq is void and illegal.

Indian law Section 2(c) of the same Act defines talaq under this Act as talaq-e-biddat or similar form of talaq immediately constituted. Therefore, triple talaq whether verbally or in writing or in electronic form is illegal and a cognizable and non-bailable offense under this Act.

What documents are required for divorce under Muslim law in India?

Following are the documents required for divorce under Muslim law in India:

• Nikahnama.
• Residence proof of husband and wife.
• Income tax returns for at least two financial years.
• Documents related to owned properties.
• Evidence relating to cruel or honorable diseases such as medical reports.

What are the grounds and procedures for Christian divorce in India?

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

Mutual Divorce:

If both parties agree that they are unable to live amicably and have been living separately for at least two years, they can file a petition for dissolution of marriage in the District Court.

Contested Divorce:

A husband or wife can file a petition in the District Court for the following reasons,

• Adultery- Adultery,
• Ceased to be Christian,
• unsound mind for a continuous period of not less than two years,
• Suffering from a virulent and incurable form of leprosy for at least two years,
• not been heard of as being alive for a period of seven years or more
• Willfully refusing to consummate the marriage,
• Failed to comply with a decree for restitution of conjugal rights for a period of two years or more,
• A separation of at least two years,
• Cruelty or husband is guilty of rape, impotence or brutality.

What documents are required for Christian divorce in India?

Following are the documents required for Christian Divorce in India:

Marriage certificate.
Wedding photos.
Passport size photograph of husband and wife.
Residence proof of husband and wife.

What are the grounds and procedures for divorce under Parsi law in India?

The Parsi Marriage and Divorce Act, 1936 enumerates the grounds for annulment, dissolution or divorce of marriage.

Section 30- If such circumstances render the marriage impossible due to natural causes, either party may obtain annulment of the marriage.

Section 31- If the husband/wife has not been heard from for more than seven years, the marriage may be dissolved from those who know him/her naturally.

Section 32- This section provides the following nine grounds on which a person can sue for divorce.

Divorce can be filed if the other party willfully refuses to live within one year

If at the time of the marriage the person did not know that the other party was of unsound mind, a divorce can be granted within three years from the date of marriage.

If the wife becomes pregnant by someone else during the marriage without the knowledge of the husband, divorce can be granted if the wife does not engage in conjugal relations within two years of marriage.

If either spouse is treated cruelly,

If forced into prostitution,

If intentionally injured,

If the other spouse commits bigamy, rape, unnatural acts, adultery or suffers from venereal disease, divorce can be filed within two years.

A divorce can be filed if the other party has served a sentence of more than seven years and has already served one year.

In India, Parsi Marriage and Divorce Act Section 32B – This section provides for divorce by mutual consent,

In India, Parsis can divorce only before special courts constituted under Sections 19 and 20 of the Parsi Marriage and Divorce Act, 1936. And the divorce must be registered at the Registrar’s Office.

What documents are required for divorce under Parsi law in India?

Documents required for divorce under Parsi law in India are as follows:

Photographs.
Address proof of both parties.
Income tax returns.
Marriage certificate issued by registrar.
Financial statements.
Details regarding movable and immovable properties owned by the parties.

Can a filed divorce petition be withdrawn?

Yes, divorce petition can be withdrawn anytime.

You can either file a Petition for Withdrawal or appear before the judge where your divorce was filed and state your desire to withdraw the case with reasons.

Can I remarry the same person after divorce?

Next we will look at the procedures for remarrying the same person after obtaining a divorce decree.

Can a husband and wife remarry the same person after divorce in court Yes, they can remarry the same person after divorce. Find out how to get married in detail.

Legally right or wrong.

If you want to remarry with the same person even after the spouse obtains a divorce decree from the Family Court then you can of course remarry.

No law prohibits divorcees from remarrying, but living together after divorce means living together without marriage.

If the divorced people want to remarry, they must get married according to your formalities or in temples and register the marriage.

You will have to register the marriage under the Special Marriage Act.

You must apply to the Registrar of Marriages in the appropriate form, with both witnesses and affidavits from both parties.

Can I be forced to live together after divorce?

It should be noted that this should not be done when there is no will i.e. the same persons can get married again only if both of them agree again after getting divorced because they are already incompatible.

It should be noted that even after getting a divorce, it cannot be said that we will forcibly remarry and live together, it is a mistake according to the law and a case of contempt of court will flow against him.

Muslim remarriage after divorce.

If you are a Muslim and want to remarry under Muslim law then you have to marry a third person after obtaining a divorce decree and then divorce the remarried wife. Then you can remarry the same first person.

How can a second marriage be made to the same person?

1. You are free to remarry the same person after divorce.

2. Second marriage can be done in temples or registry office like normal marriage.

3. But there should be no illegal conspiracy behind this remarriage of marrying the same person after divorce.

What are some important aspects of divorce?

Divorce settlement often leads to one or all of the following.

1. Child Custody:

After a marriage breakup, child custody is one of the most important cases to be handled because children are the most vulnerable in this case. Courts take into consideration certain aspects like child’s welfare, financial status, safe environment, education etc. before awarding custody to either party. Security can be of the following types.

2. Physical Custody

The child must live with one parent and the other parent can visit the child. This type of custody ensures that the child has a safe and healthy environment to grow up.

3. Joint Custody

Instead of living with one parent, the child may live with both parents in rotation. The duration may be determined by the parties or by the court. It helps the child stay in touch with both the parents.

4. Legal Custody

A parent with legal custody has the right to make decisions for his/her children. Generally, both parents are awarded legal custody, unless the court feels that there is a conflict between the parents and they disagree with each other.

5. Third-Party Custody

If the father or mother is not fit to care for the child, the court may appoint a third party as the guardian.

6. Statutory Provision

The legal framework includes the Personal Law and a secular law called the Guardians and Wards Act, 1890.

7. Maintenance/Alimony

Maintenance or alimony is financial support provided by a husband/wife to his/her spouse. It may be a lump sum payment or paid at intervals and may be permanent or temporary. Apart from personal law, a person belonging to any religion can claim maintenance under Section 125 of Cr.P.C. 1973. Under this section, a husband can pass an order directing him to provide financial support to his parents, wife or his legitimate or illegitimate children.

“Just because the wife is earning does not waive the right of the husband to provide maintenance. If the husband’s income is insufficient, he is bound to pay maintenance.”

8. Property Division

Generally, under current law, the wife has no right to the husband’s property after divorce. Under Section 27 of the Hindu Marriage Act, the court has the power to make an order in respect of property jointly owned by a husband and wife. But the law is silent on alienation of private property. However, through the Marriage Laws (Amendment) Bill 2013, the government has tried to change the situation by giving the wife a fifty percent share in the husband’s property, but the bill is still pending.

Now, if the property is jointly owned or used by both spouses, the wife can claim a portion of her share. It is to be noted that in order to protect the interest of the wife, the courts have issued orders claiming the wife in the property of the husband, either before or after the marriage.

If the property is stridhan (sridhanam, dowry) (stridhan) or mehr, the husband is bound to return it when the wife asks, being the exclusive owner of the property.

It is up to the party to prove whether the property is joint property or whether one has inherited it or bought it only with his/her own money. In determining the division, the contribution of both the parties to the property shall be considered.

For example

According to the Convention on Elimination of All Forms of Discrimination Against Women CEDAW decision, the Supreme Court held that even if the wife does not contribute financially, she gives her time and energy as a housewife and is therefore entitled to share in the property.

“If the husband and wife have added property together, the husband has paid the price and registered it in the name of the wife. The court considers the wife as the owner of the property and therefore she can claim her share in the property as well”

What are the differences between divorce, judicial separation and annulment of marriage?

Divorce ends a marriage. Upon divorce, the parties may remarry, whereas, during a judicial separation, they do not live together but maintain the status of husband and wife. Under the court order, they are not allowed to remarry. Annulment, on the other hand, renders the marriage null and void, treating it as if the marriage had never existed.

Below is the answer to the question people ask me most about divorce.

How long does it take to get a divorce in India?

A minimum of six months in case of mutual divorce. But in contested divorce cases, it depends on many factors and may take more than two years.

How much does divorce cost in India?

The total cost of divorce can range from thousands of rupees to lakhs depending on the lawyer you hire. However, in most cities the minimum fee may be between Rs.25000 to Rs.30,000.

How much is court fee for divorce?

50 for filing a new case for divorce under the Hindu Marriage Act and Rs.100 under the Special Marriage Act. Filing a complaint or appeal under the Parsi Marriage Act requires Rs. 500. And filing a civil suit or petition under Section 125 of Crpc, you have to pay a court fee of Rs.50.

What is the fastest way to get a divorce in India?

The quickest way to get a divorce is to file for a divorce by mutual consent, where both parties agree and support the divorce.

Can wife consent to remarriage without divorce from existing spouse?

No, it is called bigamy and is an offense under Section 17 of the Hindu Marriage Act and Section 494 of the Indian Penal Code.

Should one of the spouses file for divorce if they have not lived together for a long time without knowing where they are?

A spouse can file for divorce if he/she or someone known in common has not lived together for more than seven years without knowing his/her whereabouts.

When can divorced people remarry?

In case of divorce by mutual consent, there is no time limit for remarriage. However, in a contested divorce case, the parties are given 90 days to file an appeal. If there is no appeal, the person can remarry.

What happens when a married couple lives separately for years?

When a married couple lives separately for many years, it creates a valid reason for divorce. Also, to remedy this, either party can file a case for restoration of conjugal rights, and the court will order the applicant to live with the applicant if there are valid reasons to live together.

What happens if consent to divorce is obtained through coercion, fraud or undue influence?

The law is very clear that when parties file for divorce by mutual consent, it must be free from any force, fraud or undue influence; Otherwise, the court cannot issue an order or pass a decree. An appeal can be made if both parties consider that the order has been passed when legal approval has not been obtained.

Is the statutory cooling off period of 6 months mandatory for divorce?

A six-month cooling-off period is provided so that divorce can be avoided if there is hope for reconciliation. However, the Supreme Court has found that this cooling off period can be waived in cases where both parties have mutually consented to the divorce. To quote, the court noted that “the waiting period would prolong their agony and an application for waiving the waiting period could be filed in the court within one week of their first demand for separation.