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Divorce : Practice and Procedure

“Divorce is the golden key to the legal cage of marriage”. The term “divorce” comes from the Latin word divortium which means to turn aside; to separate. It is the legal cessation of a matrimonial bond. Divorce was introduced into Hindu Law for the protection of helpless women when they were ill-treated. It was never Parliament's intention to give husbands matrimonial variety at their option so long as they could retain a pleader.

Where to file the divorce petition?

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

Are there different laws of divorce for different religion in India?

There are different laws of divorce for different religion. Hindus(which includes Sikh, Jain, Budh) are governed by Hindu Marriage Act,1955.Christians are governed by Indian Divorce Act-1869 & The Indian Christian Marriage Act,1872. Muslims are governed by Personnel laws of Divorce and also the Dissolution of Marriage Act,1939 & The Muslim Women (Protection of Rights on Divorce) Act,1986. Similarly, Parsis are governed by The Parsi Marriage & Divorce Act-1936. And there is also a secular law called Special Marriage Act,1954.

Mutual vs Contested Divorce

Mutual Consent divorce VS Contested divorce
Section 13B of Hindu Marriage Act 1955 Sections under which it is filed Section 13 of Hindu Marriage Act 1955
Filed jointly by husband and wife. Petition filed Filed only by one spouse since the other does not consent.
Husband, wife decide on maintenance, child custody, property and investments. Decision-making Lawyers mediate on all these issues.
Relationship is irreparably broken Grounds Grounds include cruelty, adultery, desertion, conversion, mental disorder, leprosy, venereal disease, renunciation, no resumption of cohabitation, and not heard to be alive.
Short duration (18-24 months) Time taken Time-consuming (3-5 years)
Single, common lawyer Lawyer Separate divorce lawyers

How much time does it take?

Divorce by mutual consent can be obtained within six months, but no petition in such a case can be filed within first year of marriage. There also has to be gap of six months between the first and second motions. The court can waive this cooling off period in some cases. So in case of divorce by mutual consent, it usually takes 18-24 months.

In case of a contested divorce, the period is longer, ranging from three to five years because of complications and possibility that either party can challenge the decision in the High Court and Supreme Court.

What is the cost involved?

The court fee is nominal at Rs 15-150 (varying from states) , but the bulk is taken up by lawyer’s fees. While women can avail of free legal services by getting an advocate from the legal aid cell, private lawyers’ fee can vary from Rs 20,000 to Rs 1 lakh, depending on the type of divorce and duration involved.

Advocates can charge on the basis of each hearing or as a lump sum on an annual basis. Women can also ask for litigation expenses from husband via court, but the amount granted by the court is usually less ( about 5000 in an average).

Pendente lite

Pendente lite is a Latin term meaning “awaiting the litigation” or “pending the litigation” which applies to court orders which are in effect while a matter is pending.

In divorce a pendente lite order is often used to provide for the support of the lower income spouse while the legal process moves ahead.

Documents required for obtaining Divorce

Depending on the type of divorce, the court may ask for:

  1. Address proof of husband and wife.
  2. Details of professions and current earnings of husband and wife.
  3. Certificate of marriage.
  4. Information regarding family background.
  5. Photographs of marriage.
  6. Marriage invitation letter.
  7. Evidence to prove that the husband and wife have been living separately for more than a year.
  8. Evidence proving failed attempts at reconciliation.
  9. Income tax statements.
  10. Details of property and assets of the parties.
  11. Other documents too may be needed, depending on facts and circumstances of the case.

Steps Involved

  1. First Motion involves joint filing of divorce petition.
  2. Husband & wife appear before court to record statements after filing of petition.
  3. Court examines petition, documents, tries reconciliation, records statements.
  4. Court passes order on First Motion.
  5. Cooling off period of six months given to couple by court to rethink decision.
  6. Filing of Second Motion is done within 18 months of First Motion.
  7. Decree of divorce passed by the court.

In Contested divorce

  1. Filing of petition by the husband or wife.
  2. Court issues summons and seeks reply from the other spouse.
  3. Court may suggest reconciliation.
  4. Examination and cross-examination of witnesses and evidence.
  5. Counsels for both parties present final arguments.
  6. Decree of divorce passed by the court.

What are the grounds for divorce under Hindu law?

The Hindu Marriage Act, 1955, lays down the law for divorce that applies to Hindus, Buddhists, Jains, and Sikhs.

Under Section 13 of the Act, the grounds for divorce include:

  1. Voluntary sexual intercourse with any person other than spouse;
  2. Cruelty (both mental and physical);
  3. Desertion for a continuous period of not less than 2 years immediately preceding the presentation of the petition;
  4. Ceasing to be a Hindu by conversion to another religion; and
  5. Being incurably of unsound mind.

In addition, Section 13B provides for divorce by mutual consent

Section 27 of The Special Marriage Act, 1954 provides the grounds for grant of divorce in the case of marriages solemnised under that Act.

What does they mean?

Adultery – The act of indulging in sexual intercourse outside marriage is termed as adultery. Adultery is counted as a criminal offence and substantial proofs are required to establish it. An amendment to the law in 1976 states that one single act of adultery is enough for the petitioner to get a divorce.

Cruelty – A spouse can file a divorce case when he/she is subjected to any kind of mental and physical injury that causes danger to life, limb and health. The intangible acts of cruelty through mental torture are not judged upon one single act but series of incidents.Contrary to the popular belief a husband can also claim cruelty by wife.

Desertion – If one of the spouses voluntarily abandons his/her partner for at least a period of two years, the abandoned spouse can file a divorce case on the ground of desertion.

Conversion – In case either of the two converts himself/herself into another religion, the other spouse may file a divorce case based on this ground.

Mental Disorder – Mental disorder can become a ground for filing a divorce if the spouse of the petitioner suffers from incurable mental disorder and therefore cannot be expected from the couple to stay together.

Leprosy – In case of a ‘virulent and incurable’ form of leprosy, a petition can be filed by the other spouse based on this ground.

Venereal Disease – If one of the spouses is suffering from a serious disease that is easily communicable, a divorce can be filed by the other spouse. The sexually transmitted diseases like AIDS are accounted to be venereal diseases.The Punjab and Haryana high court has ruled that a person suffering from hepatitis B, which could be passed on to others by sexual activity, could not be a ground for divorce.

Renunciation – A spouse is entitled to file for a divorce if the other renounces all worldly affairs by embracing a religious order.

Not Heard Alive – If a person is not seen or heard alive by those who are expected to be ‘naturally heard’ of the person for a continuous period of seven years, the person is presumed to be dead. The other spouse need to file a divorce if he/she is interested in remarriage.

No Resumption of Co-habitation – It becomes a ground for divorce if the couple fails to resume their co-habitation after the court has passed a decree of separation.

Apart from this there are certain grounds embedded in the Hindu Marriage Act 1955 in which the petition for divorce can be filed by wife only.

  1. If the husband has indulged in rape, bestiality and sodomy.
  2. If the marriage is solemnized before the Hindu Marriage Act and the husband has again married another woman in spite of the first wife being alive, the first wife can seek for a divorce.
  3. A girl is entitled to file for a divorce if she was married before the age of fifteen and renounces the marriage before she attains eighteen years of age.
  4. If there is no co-habitation for one year and the husband neglects the judgment of maintenance awarded to the wife by the court, the wife can contest for a divorce.

Ground of divorce which is not a ground for judicial separation

Following is the only ground of divorce, which is not a ground for judicial separation:

There has been no resumption of cohabitation or restitution of conjugal rights between parties to the marriage for one year or upwards after the passing of a decree for judicial-separation or restitution of conjugal right. [Sections 13 (1-A) and 10, Hindu Marriage Act, 1955]

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