Divorce/Dowry

The institution of marriage is considered a dominant sphere of life of an individual, especially in India where traditions and customs guide the way. Although this union is considered sacred and is entered into with the motive of continuing it till eternity, there is a way out called Divorce which is provided for in every religion. While seeking a mutual divorce where both parties agree to part their ways is not a tedious task, applying for divorce by one party needs the real work. The first condition is to have an authentic ground that justifies seeking divorce by the party. It could be Adultery, Desertion, Impotence, Cruelty, etc. This Article throws light on the procedure followed under Indian law to get a Divorce and how one can apply divorce online in this fast pacing digitized world.  

You may also read: How To File Mutual Divorce? Mutual Divorce Process. 

Procedure for Divorce in India

Marriage and dissolution are considered personal affairs in India, and the laws governing marriage and divorce have been crafted based on religious norms and rights. As a result, there are various rules governing the divorce process in India for persons of different religions. The Indian divorce method ascends depending on the country after you are aware of the process to register a divorce in India in the particular state court where either of the parties resides. The Divorce Procedure is different in the two Divorce cases by mutual consent and the one that is a contested Divorce sought by only one party. In India, the divorce process begins with filing a divorce petition and ends with the finalization of the divorce order. There are majorly six broad stages: Petition Filing, Summons, Response, Trial, Interim Order, and Final Order. The filing of a divorce petition is the first step in the divorce process.

The entire divorce procedure begins when a petition is written by one of the parties participating in the divorce process and served on the other. Thus, the first step in the divorce procedure is filing a divorce petition before the respective family court with proper court fees. Divorce petitions can be filed in one of three territorial jurisdictions of the court: 1. the husband and wife's last residing place, 2. the husband's current residence, and 3. the wife's current residence. The grounds for divorce must be specified in the petition and supported with evidence. After filing a divorce petition, the next step is to serve the opposing party a summons, informing them that their spouse has already started the divorce procedure. The summons is delivered by speed post with a covering letter typed on the Advocate's letter pad. Following receipt of the summons, the divorced spouse must appear in court on the summons date. If the other spouse fails to show on the scheduled date, the judge may grant the petitioner an ex parte hearing, after which the court may issue an ex parte decree of divorce, thereby ending the divorce proceedings. In India, the next stage in the divorce process is to hold a trial. Following the filing of the petitions, the court hears both parties and their witnesses and evidence.

Also read Property Rights Of A Wife After Her Husband’s Death. 

After that, the respective lawyers will conduct the main and cross-examinations of the spouses and the evidence. Another part of the divorce procedure in India is interim orders. Any party can file a petition in front of the court to get a temporary order regarding child custody and support during the divorce case. If the court is satisfied, the court will issue interim orders. The final step in the divorce process is the pronouncement of the decree. After all preceding stages have been completed, the court issues a final decree that completely dissolves the marriage. If either side is dissatisfied with the final order, they can appeal to the higher courts.

How to file for mutual divorce online

There are a few different ways to apply mutual divorce online and start the process. Mutual Divorce, sometimes known as "no-fault" divorce, can only be filed by a spouse living separately for more than a year and can prove their grounds for dissolving their marriage by mutual consent divorce. Depending on the case's legality, the time it takes to file a mutual consent divorce might range from six to eighteen months. Depending on the court's judgment, a divorce by mutual consent might last anywhere from six to 18 months.

In most cases, courts prefer to finish mutual consent divorce proceedings sooner than later. In addition, under Section 13B(1) of the Hindu Marriage Act, the term "living separately" to obtain a mutual consent divorce indicates that you are not in a marital relationship even though you live in the same house. When one of the partners seeks a divorce decree under Section 15 of the Hindu Marriage Act, it signifies that the court's involvement was sought to end the marriage by following the rules outlined in Sections 11, 12, or 13 of the Act. There are only a few grounds on which the husband and wife must agree to begin the procedure and obtain a mutual consent divorce. A couple seeking mutual consent divorce must achieve an agreement. Still, they must also negotiate the terms of mutual consent divorce with their spouse on Alimony or maintenance issues, Custody of the child, Property issues.

Once the divorce process has begun and the petition for mutual consent divorce has been successfully filed, both parties must appear in person before the court and have their statements recorded on oath. According to the procedure, the court then grants a 6-month cooling-off period to couples who choose mutual consent divorce to reconcile or reconsider their decision. After 6 months or 18 months has passed, the couple must reappear in front of the same court (Second Motion) and express their desire for mutual separation or mutual agreement divorce. The mutual divorce decree is granted after the court is convinced. This puts an end to both the parties' marriage and the divorce process.

Also read Property Title Verification In India – The Process, Methods & Other Aspects. 

How to file for divorce online

With the rising rate of mutual divorce in India, courts have attempted to simplify the process by allowing mutual consent divorce to be filed online. This was done to accommodate the growing number of mutual consent divorce cases by shortening the process and removing the possibility of emotional harm. There are two ways to file a petition for mutual divorce online, i.e. through an online divorce firm that will assist you in selecting for divorce or it can also be done personally, which means you will have to challenge your case on your own follow the steps. It is recommended that one get assistance and counsel from these online firms because they are familiar with the technicalities involved in filing for mutual consent divorce online. In addition, a few requirements must be met when competing online. Both couples must have reached an agreement on mutually parting ways, and issues including child custody, property, alimony, and assets must be resolved out before of time.

People Also Read: What is Divorce Mediation

Like any other law firm, these online law firms need you to fill out a form and provide all pertinent information about you and your spouse. This guarantees that the information provided by both parties is accurate, and it assists these firms in better understanding the reasons for mutual consent divorce. Next step is to send the spouse a legal notification by registered mail or in person. This procedure must be carried out with both parties present. This assures that the divorce is consensual and consented to, and that neither party has any objections to it being completed. After the form has been filled out, the firm's experts will approve it, allowing it to be filed. Before it is filed in a court of law, this process guarantees that both parties are mutually separated and assesses the grounds on why it was filed.

A copy of the same must be obtained, and it must then be filed at a local court for a divorce. Now it's up to the court to wrap up the remaining proceedings. The court will award the final divorce decree after going over the details and why the divorce was filed. With online divorce application process, It gets simpler to acquire a divorce without the usual annoyances. In India, this is the standard procedure for seeking an online divorce. Despite the flaws, one can always choose for an online divorce application process, which is far faster and easier than the traditional divorce techniques used in India.

You May Also Read: Fastest Divorce Process : How To Get A Quick Divorce

Also read Property Rights Of A Wife After Her Husband’s Death. 

What Are The Conditions To file For A Mutual Divorce

As per Section 13B of the Hindu Marriage Act, 1955, the following conditions must be met to file for a mutual divorce.

(i) Both spouses must live separately for at least one year.

(ii) Both spouses feel that they cannot live together.

(iii) Both the husband and wife mutually agree that their marriage has collapsed

(iv) Both parties agree to comply and file jointly for a mutual divorce without any undue influence

The Documents Required for initiation of Mutual Divorce Process:

1. Marriage Certificate
2. Address Proof – Husband and Wife.
3. Four Photographs of Marriage.
4. Income tax Statement of last 3 years.
5. Details of profession and Income (Salary slips, appointment letter)
6. Details of Property and Asset owned
7. Information about family (husband and wi)
8. Evidence of Staying separately for an yearfe

Step 1: Filing a Divorce Petition

A mutual divorce process is commenced with the filing of a divorce petition, which may be filed at any of the following places;

1.    Court where the couple last lived

2.    Court where the couple’s marriage was solemnized

3.    The court in the area where the wife currently resides

The divorce petition must be filed jointly by the concerned parties, and the notice is served to the family court by both parties. The grounds for divorce is that the spouses feel they cannot live with each other anymore, and hence, have agreed mutually to dissolve their marriage. Another common ground used to get a mutual divorce is that due to unavoidable differences, the couple has been living separately for over a year. The joint petition must be signed by both parties involved.

You may also read What Is Adverse Possession Of Property Or Land in India?

Step 2: Court hearing and inspection

After this, both the parties appear in the family court along with their lawyers. The court after going over the petition and all the supporting documents presented as proof before the court. It can also try to bring reconciliation, and if this is not possible, the mutual divorce process continues.

Step 3: Record Statement on Oath

the court passes an order, after duly scrutinizing their petition, to record the party’s statements on oath.

Step 4: First Motion

After recording their statements, the first motion is passed by the honourable court. Following this, the couple has to wait for 6 months before filing the second motion. However, the second motion must be submitted at least before 18 months after passing the first motion.
 

Step 5: Second Motion and Final Hearing

Once they decide to file the second motion, they can go ahead with the final hearing before the court. The final hearing includes both parties stating their case, and the court recording their statements on oath in the family court. Also, recently, the SC stated in their finding that the 6-months interim period can be avoided if the court wishes it to be. Courts do so if they feel both parties are sure about the divorce, and also if there are no issues related to alimony, child custody, or property.
 

Step 6: Divorce Decree

Once the couple state that they do not have any differences in matters concerning alimony, child custody, or sharing of property, the mutual divorce process reaches the final stage. Therefore, the couple must reach an agreement for the court to take a final decision. With the court’s satisfaction, it passes a decree of divorce, which declares that the marriage is dissolved, and this makes the divorce final.

Duration In Mutual Divorce:

Under Section 13B, when a couple files for divorce with mutual consent, they first have to establish a 12-month separation period, which is then followed by a "cooling off" period of six months. However, the Supreme Court had in 2020 ruled that on case to case basis, this period can be waived. 

How is alimony calculated?

1. There is no fixed formula or hard and fast rule for the calculation of alimony that the husband needs to provide to his wife. The alimony can be provided as a periodical or monthly payment, or as a one-time payment in the form of a lump-sum amount.

If the alimony is being paid on a monthly basis, the Supreme Court of India has set 25% of the husband’s net monthly salary as the benchmark amount that should be granted to the wife. There is no such benchmark for one-time settlement, but usually, the amount ranges between 1/5th to 1/3rd of the husband’s net worth.

Also read Property Title Verification In India – The Process, Methods & Other Aspects. 

Who is eligible to get alimony?

Under Section 25 of the Hindu Marriage Act, permanent alimony is provided by the court to the wife or even to the husband for her or his support and maintenance. In case the wife is a working woman, but there is a considerable difference between her and her husband’s net earnings, she will still be awarded alimony to help her maintain the same standard of living as her husband.

If the wife is not earning, the court will consider her age, educational qualification and ability to earn to decide the amount of alimony. If the husband is disabled and is unable to earn and the wife is earning, then the court grants alimony to the husband.

People Also Read This: Memorandum of Understanding for For Mutual Divorce

Mental Cruelty by Wife on Husband

Before the 1976 amendment to the Personal laws Act, the cruelty was not considered as a valid ground for divorce it was only considered as a reason for judicial separation only when the parties desired so. In such a case, the injured spouse was expected to prove beyond doubt that the cruelty subjected on them has made it impossible to live with the alleged person any longer. After the 1976 amendment, the cruelty has been defined in the Section 498A as “to cause reasonable apprehension of harm or injury in the mind of the petitioner such that it becomes impossible to live with the other spouse” and now is available for both judicial separation and divorce. When we look into the ambit of cruelty, we can see that the healthy state of mind is equally important as that of the body. Thus, mental cruelty can even come in a marital relationship alone without any physical harm or cruelty in the background. Since, these miniscule instances may sum up later and lead to disastrous consequences such as self harm or worst suicide.

People Also Read This: Now spouse (husband or wife) can claim maintenance from the date on which the application for maintenance was filed: Supreme Court

The Supreme Court has advanced its opinion on mental cruelty more broadly in a number of the case laws. In Lakshi Meenakshi v. Chetty mahadevappa, the wife had humiliated and defamed the husband before all the villagers and was also in an adulterous relationship with another man but she placed the allegations of harassment by the hands of both husband and in-laws. She stated that she was thrown out of house and since has been living with her parents the last four years. The husband on the other hand alleged innocence and premised his innocence on the basis of infidelity by the wife. Thus, noting all the pointers the Supreme Court held that if one of the spouses is in infidelity, then that amounts to mental cruelty to the other one.

People Also Read This: Who gets the child’s custody anyway?

Mental cruelty can be perpetuated by the alleged person in a number of ways and it need not always be committed by the husband on the wife, it can even be done by the wife. In Mayadevi v. Jagdish Prasad, 2017 the Supreme Court faced a case wherein the husband and the kids were subjected to mental cruelty by denying them food and also committing other forms of torture in the hands of the wife. Thus, the court granted the husband divorce on the grounds of mental cruelty. In Naveen kohli V. Neelu Kohli, another form of mental cruelty came before the court, here the wife filed false FIR against the husband on those crimes which he never committed. Also, she fraudulently took hefty amount of money from his account. The court noted that in this case the wife was adamant in making the husband’s life miserable, and thus he was granted the divorce promptly. In Joydeep Majumdar V. Bharti j. Majumdar, the wife was accused of making malicious complaints against the husband to his superiors which consequently lead to the loss of his career and his reputation. The high court at first treated this as the case of ordinary conflicts in a marital relationship, thus not granting the husband divorce. But, the Supreme Court set aside the HC’s judgement and stated that the explanation given by the wife that it is her right as a wife to file complaints to his superiors with the intent to save their matrimonial ties is inherently unreasoned since it inadvertently lead to the loss of the career and reputation of the husband which could not be justified in the eyes of law.