How much time taken in divorce if both person living separate 2.5 year

76 votes

If both parties have been living separately for a continuous period of 2.5 years and the wife wants a divorce, the applicable provisions for divorce would be - Section 13(1)(ib) - contested divorce on the ground of desertion; Section 13B - mutual consent divorce.
In India, there is no provision for automatic divorce after a period of separation of 2 years between the spouses. A contested divorce under Section 13(1)(ib) can be filed by a party to a marriage if he/she has been deserted by their spouse without reasonable cause and without the consent or against the wish of such party, for a continuous period of not less than 2 years immediately preceding the presentation of a petition for divorce. The petitioning party has to prove the fact of desertion and intention to desert on the part of the other party, in order to secure the divorce decree against them.

Section 13B of the Hindu Marriage Act, 1955 allows for divorce by mutual consent. The procedure and time taken for mutual divorce under Section 13B of the HMA typically involve the following steps:

1. Filing of the joint petition: Both parties must jointly file a petition before the family court stating their mutual consent to divorce. The petition should include the grounds for divorce and the terms of the settlement regarding issues like alimony, child custody, and property division.

2. Cooling-off period: After the filing of the joint petition, the court typically grants a mandatory waiting period of six months known as the "cooling-off period." During this period, the court encourages the parties to reconsider their decision and attempt reconciliation. The purpose of this waiting period is to provide an opportunity for the couple to reconsider their decision and explore the possibility of reconciliation.
   In the case of Amardeep Singh v. Harveen Kaur in 2017, a two-judge bench of the Supreme Court of India held that the six-month waiting period mentioned in Section 13B(2) of the Hindu Marriage Act is not mandatory. The court clarified that the waiting period was included in the law to provide an opportunity for parties to reflect on their decision and explore the possibility of reconciliation. However, if the court is satisfied that there is no chance of reconciliation and that the parties have genuinely settled their differences, it has the discretion to waive the cooling-off period. While the court recognized the discretion of the Family Court to waive the waiting period, it does not mean that the waiting period will be automatically waived in every case. The court emphasized that this discretion should be exercised judiciously and on a case-by-case basis, considering the specific circumstances and merits of each case. Therefore, if you and your spouse have been living separately for 2.5 years and the wife wants a divorce, it may be possible to request the Family Court to waive the six-month waiting period based on the exceptional circumstances of your case.

3. Second motion: After the completion of the cooling-off period, both parties must appear before the court for the second motion. During this stage, the court reviews the joint statement made by the parties and verifies their mutual consent for divorce. If the court is satisfied that the consent is genuine, it may pass a decree of divorce.

The time taken for a mutual consent divorce under Section 13B of the HMA can vary depending on factors such as the court's workload, the availability of dates for hearings, and the efficiency of the legal process in a particular jurisdiction. Generally, it takes around 6 to 18 months to obtain a mutual consent divorce, including the mandatory cooling-off period. Whereas, when such a cooling-off period is waived by the Court, the divorce decree can be obtained in less than 2-3 months.

LawRato LawRato

944 votes

Minimum 6months process of mutual divorce separation is 1year is sufficient for both persons it is 2 motions in proceeding in mutual consent divorce 1motion is filed after 1year separation and 2 motion file after 6 month of 1 motion

Advocate Anjali Dhawan LawRato

557 votes

Dear Clint

Separation occurs when a couple, married or common-law, no longer lives together as a couple. You do not have to see a lawyer, go to court, or have a ‘legal separation’ to be legally separated. You do not need the consent of your spouse or partner to start living separately. You are considered legally separated as soon as you and your spouse/partner start living ‘separate and apart’ from each other with the intention of separating.

Separation usually means living in separate places, but sometimes a couple stays in the same house even though their relationship has ended.

This may be for financial reasons or for the stability of any children involved. Each case is different so, depending on the circumstances of the case, a couple living under the same roof may be considered living “separate and apart”.

Some signs that a couple living under the same roof may be putting an end to joint activities include:

Staying in separate bedrooms
Cooking meals individually / doing laundry individually
Not sharing social activities
Whether you are in a common-law relationship or married, you will likely need legal settlement of your affairs during a separation, such as custody and access, child/spousal support, and division of property.

If there is a separation agreement, these issues may be resolved without having a judge decide them for you. However, it is likely that the issue will still go to court to have the judge make an order.

If there is no separation agreement, and the couple cannot agree on all the issues involving child support or custody and access, they can request the assistance of Family Justice Services, or apply to the court to have a judge decide the issues.

Divorce

Divorce is the legal end of a marriage. It does not end all of the obligations between spouses. It simply ends the legal relationship that was created when two people were married.

The Divorce Act is a federal law that applies to legally married couples. It does not apply to common law couples or other unmarried couples.

The Divorce Act sets out the requirements for divorce. The only ground for divorce is ‘breakdown of the marriage’, which can legally be established in three (3) ways. They are:

Separation (1 year)
You and your spouse must be living separate and apart for at least one (1) year before a divorce can be granted if separation is cited as grounds for the breakdown of the marriage.
Adultery
Adultery happens when one of the spouses has voluntary sexual relations with a person other than his or her spouse.
Cruelty
Cruelty may be physical or mental. You must prove that your spouse made it unbearable or intolerable for you to continue living together.
Documents and Procedures

To file for divorce, there are several documents required. It is strongly suggested that you consult a lawyer when considering a divorce. You can file for divorce without a lawyer, but often it is considered confusing and time-consuming; obtaining legal advice is advisable.

In addition to providing the Court with various documentation, such as the marriage certificate, the applicant must complete the following Court forms to apply for a divorce:

Originating Application: This form contains several sections which must be completed, and will require details of the marriage, the grounds for seeking a divorce, whether child/spousal support is being sought, and more.
Notice to Respondent: This form notifies the other spouse that a divorce application has been filed, and that if he/she wishes to contest the divorce petition, they have a window of time in which to do so.
Both of these forms must be submitted to the Court, and there is a filing fee. Once the documents are signed by the Court Clerk, the applicant will have 6 months to serve the other spouse with both documents. The papers must be personally delivered, by somebody other than the applicant. The person who serves the papers to the spouse must complete an Affidavit of Service to prove that the spouse has been officially served. This document also must be filed with the Court.
If the spouse does not respond to the application or challenge any of the claims, the applicant spouse can proceed with an uncontested divorce, which is a fairly straightforward procedure.

If the responding spouse disputes the grounds for divorce or challenges any of the claims (for custody, support, etc.), this is called a contested divorce. A contested divorce means that the applicant will have to prove the contents of their divorce application; they may have to prove the grounds for divorce, or give evidence as to why a particular matter such as custody or support is at issue. The responding party will have the opportunity to put forward his/her case as well. The focus of this hearing in Court is usually custody or support; the grounds for divorce are not usually challenged.

Your divorce will become final 31 days after the judge signs the order for divorce. You will have to request a Certificate of Divorce from the Court. This may be done in person or by writing to the Court which heard your divorce. If you are unable to attend in person, you may ask a representative to attend on your behalf. There is a fee charged by the Court to obtain this document.

Advocate Sandeep Kadian LawRato

873 votes

if both the husband and wife wish to get divorce they can get it by way of mutual consent and minimum period to get divorce is 6 months in which is the fastest way to get divorce in India. other way is to get the divorce by desertion.

Advocate Nitish Banka LawRato