Divorce/Dowry

Divorce Simplified: Types of divorce and divorce procedures in India

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In India, marriage is considered as a sacred institution. Marriage not only unites two individuals for their life time but their relatives and immediate families as well. While each adult individual gets married with a hope of living a happy and peaceful married life, in reality it may not turn out to be one. Most of times there a strong difference of opinion on family related matters that creates unbearable stress leading to a crumbling married life. The stress at one point becomes so painful that marriage becomes broken and irreparable or irretrievable.

 

Note: In this post, we are sharing the details of divorce and related legal procedures based on the Hindu Marriage Act 1955.

 

What is a Divorce?

 

At any stage of married life when marriage becomes irretrievable, the only remedy that is left for the legally married couples is to part ways or separate from one another and dissolve the marriage by way of a legal process called as the divorce. Generally, the aggrieved individual(s) files a petition in the court of law, also called as the family court, for ending or dissolving the marriage. Once the court grants the divorce, the existing marriage stands null and void. The court in the process also issues directions on the alimony to be paid, custody of children, if any, division of property and other assets, etc.

 

What are the types of divorce?

 

There are two types of divorce that aggrieved individual(s) can consider to file:

  • Mutual Consent Divorce – In this type of a divorce, husband and wife mutually agree to file a divorce in the family court. The intention behind this type of a divorce is to have peaceful separation. Also, the separating husband and wife determine, with mutual consent, amount of alimony, custody of children (if any), division of property and assets, etc. However, as per the Hindu Marriage Act, 1955 there are following conditions to be fulfilled for this type of divorce:
    • Mutual consent should be there between the husband and wife. Written form of mutual consent is a better option.
    • Husband and wife are living separately for more than one year.
    • Proof that efforts of reconciliation have failed.
  • Contested Divorce – In this type of a divorce, the petition is filed by either the husband or wife in the family court. In the petition, the petitioner clearly states the reasons of filing a divorce. Some of the reasons that are mentioned in such type of divorce cases include:
    • Extra marital affair
    • Cruelty – physical, mental or sexual abuse
    • Religion conversion
    • Mental illness
    • Wilful abandonment of spouse
    • Communicable disease such as leprosy

 

What is the process of filing a divorce in India?

 

Experienced individuals have often mentioned that a broken marriage is not a pleasant experience. Once the divorce petition is filed, the proceedings are most of the times extremely and equally stressful as an irreparable marriage, if not more.

 

In many situations, especially the contested divorce cases, the process that appears simple on paper can also be extremely lengthy, complicated and costly. Hence, it is important for married individuals to know the process properly.

 

In theory, following steps are involved in the divorce proceedings:

  • Mutual Consent Divorce
    • Appoint a qualified divorce lawyer who will draft the petition that mentions the reasons of filing divorce on mutual consent.
    • Petition is filed by the divorce lawyer in the family court.
    • Family court examines the petition along with required documents.
    • On satisfactory examination, family court passes order for recording the statement of oath.
    • After this, family court gives a mandatory cooling off period of 6 months, hoping for the possibilities of reconciliation, if any.
    • On completion of the mandatory colling off period and no reconciliation, the separating husband and wife are required to appear in family court for a final hearing.
    • Family court passes the divorce decree on the final hearing and dissolves the marriage.
  • Contested Divorce
    • Appoint a qualified divorce lawyer who will draft the petition that mentions the grounds of filing divorce.
    • Petition is filed by the divorce lawyer in the family court of jurisdiction. The petition includes affidavits and all other required documents as required in the case.
    • Family court examines the petition along with required documents.
    • On satisfactory examination, family court issues summons to the party for appearing in the court on a given date along with their respective divorce lawyers.
    • On the hearing date, court suggests for mediation and reserves the judgement till the outcome of mediation.
    • On failure of mediation, family court continues with divorce proceedings.
    • On the hearing date as given by the family court, both husband and wife appear before the court to record statements, submit evidence of claims made, cross examination, presentation of witnesses, if any.
    • The divorce lawyers of both sides also present their final arguments before the family court on the hearing date.
    • On the final hearing date, as fixed by the family court, a final verdict is passed and divorce decree is granted by the court to dissolve the marriage.

 

India is a diverse country and has several different religions – Hindu, Muslim, Sikh and Christian. Court procedures may slightly be different and unique for different religions and hence it is only advisable to consult a qualified divorce lawyer for proper legal remedies. Afterall, a troubled marriage is an unpleasant experience. However, to end it we must take professional help at all times.

 

If you are facing a difficult married life, LegalKart is here to connect you with a qualified and competent divorce lawyer right away.

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