Divorce Law in India

India being a secular country derives a huge area in law from various religious practices. One such area is the divorce laws of India. In India divorce among Hindus, Buddhists, Sikhs, and Jains is governed under the Hindu Marriage Act, 1955; Muslims are governed under the Dissolution of Muslim Marriages Act, 1939; Parsis under the Parsi Marriage and Divorce Act, 1936; Christians under the Indian Divorce Act, 1869; All civil and inter-community marriages are governed under the Special Marriage Act, 1956; In case the marriage has taken place between an Indian and a foreign national, the marriage is governed under the Foreign Marriage Act, 1969.

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Types of Divorce

Divorce in India can be obtained in two ways:

1.     Divorce by mutual consent- Divorce by mutual consent refers to a divorce where both husband and wife are willing to end the marriage.
2.     Divorce without mutual consent, i.e., contested divorce- A contested divorce is a formal way of seeking a divorce from your spouse who is not willing to give divorce.

Procedure to File for Divorce

The procedure to file a divorce case in India is regulated by the Civil Procedure Code, 1908. The steps include-

  1. Legal Notice- Sending a legal notice for divorce.

  2. Petition for Divorce- Drafting and filing of divorce petition before the court that has the jurisdiction to adjudge the case.

  3. Service of Summons- Once the case is successfully filed, summons is served on the other party to appear in the court.

  4. Reply by the opposite party- The party to whom the summons is served has to appear in the court and file their response to the petition.

  5. Recording Evidence- After the response is filed a trial is conducted where the parties are heard along with their evidence and witnesses.

  6. Cross-Examination- Once the parties are heard examination in chief and cross-examinations are done.

  7. Interim Orders- The court can also pass an interim order in the middle of the proceedings in case a party has filed a petition to get a temporary order in respect to maintenance or child custody.

  8. Final Orders- After the cross-examination is done, the court asks the parties to put forth their final arguments based on which the court pronounces the final order.

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Duration of Divorce

It is highly impractical to say as to how much time a divorce case is going to take. There is no such duration defined under any Indian divorce law that states the time period under which a divorce case has to be decided. The duration of a divorce case would depend upon various factors, such as:

  1. Type of divorce (Mutual Consent or Contested)

  2. Facts of the case

  3. Law under which the petition has been filed

What is the cost of litigation in a Divorce Case?

The cost of litigation in divorce cases depends upon various factors such as place of divorce, the court in which the case has been filed, the experience of the lawyer handling your case, type of divorce sought (mutual or contested), etc. Thus, it is highly impossible to say as to how much would a lawyer charge for a divorce case.

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Important things to consider in case of a Mutual Divorce

In order to get divorced with mutual consent, a couple has to reach consensus over three important issues.

  1. The first issue is that of alimony or maintenance which has to be settled between the parties as there is no maximum or minimum limit defined under the law for the same.

  2. The second issue is the custody of the child which has to be necessarily worked out between the parties, as it is an issue of utmost importance while applying for divorce by mutual consent.

  3. The third issue is the property which includes both movable and immovable property. The distribution of assets between the parties does not have to be equal, so long as it has been agreed between both the parties.

Why is it important to hire a lawyer?

Regardless of the type of divorce you seek (mutual or contested), it's primarily important to have a lawyer who can represent/guide you with the trail of the divorce procedure. There have been instances where even seemingly straightforward divorce cases have become complicated and an experienced divorce lawyer could only find the way out owing to his years of experience. A lawyer usually does the following tasks for his/her client:

  1. Drafting and sending the legal notice.

  2. Drafting and filing the divorce petition.

  3. Representing the client in the court.

  4. Preparing the client for cross-examinations.

  5. Preparing arguments.

  6. Taking care of the paperwork.

  7. Making a plan of action for the case.

  8. Guiding the client with complicated court procedures.

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Thus, it is imperative to consult a divorce lawyer to avoid delay in your case and get the divorce procedure completed as quickly as possible.

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