Send Legal Notice for Divorce


March 18, 2020
By Advocate Chikirsha Mohanty



India being a secular country derives a large part of its laws from various religious practices. One such area of law is Divorce law of India. A divorce case in India can be initiated by either party based on the procedure relevant as per the law applicable to the parties. However, the procedure for divorce always starts with sending a legal notice.
 
Either party can send a legal notice to the other spouse intimating his/her intent to initiate legal proceedings for divorce. Sending a legal notice acts as a formal way of communication by one party to the other acting as a warning and at the same time creating chances for a last attempt for conciliation, if possible.

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What is a legal notice for divorce?

A legal notice refers to a formal communication to a person or the opposite party in a case, informing him/her about one’s intention to undertake legal proceedings against him/her. Therefore, a legal notice for divorce is a formal intimation by one party to another of his/her intention to initiate divorce proceedings against the other.
 

What is the procedure to send a legal notice?

A legal divorce notice sent to the other party by the aggrieved party, conveys the sender’s intention prior to the legal proceedings and thus, makes the party aware of the grievance.
 
It has been noted that in many cases, a well-served notice brings the grievance of the aggrieved party to the knowledge of the other party and it also creates possibilities of resolving the matter out of the Court through conciliation and mutual understanding on both sides. However, in such cases, the other party can also choose to reply to the legal notice for divorce if he/she wishes to part ways.
 
There is a well-defined process for sending a legal notice for divorce. The process is as mentioned below:
 
1. First and foremost, a lawyer, who has good drafting skills and technical knowledge in the field of Divorce Law, must be contacted.

  • Thereafter, with the help of the lawyer, a legal notice that states the facts and issues that are causing disturbance in the marriage of the couple seeking divorce must be drafted.

  • It should be made sure that the legal notice is addressed to the person against whom the party wants to file a divorce case.

  • The legal notice must be drafted either in English or any other language which is spoken and understood by both the parties to the divorce.

    Consult: Top Divorce Lawyers in India
     

2. While consulting with the lawyer, one should state all the relevant information in detail including:

  • Names of the parties seeking divorce

  • Addresses of both the parties

  • Dates when any commitments were made and not honored causing disturbance in the married life

  • Challenges and issues faced in the marriage

  • Any previous attempts of conciliation
     

3. Once all the relevant details are shared with the lawyer, by the parties to the divorce, the lawyer is supposed to carefully study the information shared with him/her and make relevant notes regarding the case based on the conversation with the client. He/she may seek any additional information from you, in case any of that is required to finish drafting of the said notice.
 
4. The lawyer then drafts the notice in the legal language as per the standard guidelines prescribed by law to draft a legal notice and any such notice must contain:

  • Reasons behind sending the notice.

  • All the previously held communications and conversations regarding the cause of notice.

  • A reasonable time period for the addressee or the opposite party (usually 15-30 days to settle the matter through negotiation and by performing the desired action of the client). Depending on the grievance, usually the lawyers, on behalf of the client sending the notice, stress on the need for an action to be taken in the specified period of time to either fulfil the demand or seeking a reply to the legal notice.
     

5. The legal notice must be duly signed by the lawyer drafting it. It is then sent to the party concerned via registered post or speed post or courier, and the acknowledgment of the same is retained. Also, a copy of the said notice is retained by the lawyer concerned.
 
6. The party receiving the legal notice must reply back to the notice within the time period mentioned in the notice. However, if the party does not reply, appropriate action as stated in the legal notice can be taken by the party that has sent the legal notice.
 
On the other hand, if a reply has been received for the legal notice from the other party, the aggrieved party has a choice to either resolve the case or to file a divorce petition if they arrive on the conclusion that they want to terminate their marriage based on the contentions raised by the other party in the reply to the legal notice.
 

How to draft a legal notice for divorce?

The legal notice must be drafted in the letterhead of an advocate, and must contain relevant information regarding the case. It should contain all the communication details of the sender of the legal notice, such as name, contact number, address, etc. on whose behalf and under whose instructions the legal notice has been written. The notice must contain the address and contact details of the advocate. It must be signed by the advocate and the date of signing must be mentioned.
 
The notice must also contain specific directions for the opposite party along with the time limit the same. It should contain details regarding how the aggrieved party’s right has been infringed due to the act or omission of the opposite party and the recourse against the same.

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What must a divorce notice contain?

A legal notice must contain following:

  • Name, description, and address of the sender of the notice

  • Details about the cause of action

  • The relief claimed by the sender of the notice

  • The description of the legal basis of the relief claimed
     

Legal Notice to Wife to Come Back

In a case where the wife, without any reasonable excuse, leaves the husband or the matrimonial home, the husband can approach the Court for restitution of conjugal rights.
 
He can also send a legal notice to the wife to come back. But before filing any suit for restitution of conjugal rights in any Civil Court against his wife, he can send a well-drafted legal notice to her and ask her to return back to the marital home.
 

Procedure after a legal notice for divorce has been sent

Based on the laws applicable to the parties appropriate actions can be taken by either party once the divorce notice has been sent. The case can either be mutually resolved among the parties or the parties can file a divorce petition going ahead with the divorce as per the circumstances of the particular case.

As stated above, India being a secular country derives a huge area in law from various religious practices including divorce laws of India. With the advancement of time and social awareness, several acts have been passed by the legislature to make the present day divorce procedure in India more progressive with respect to gender affairs and related issues. 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, Muslim Women (Protection of rights on marriage) Act, 2019;

  • 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.
 
Therefore, based on the procedure established under the law one can file a divorce case and get separated from his/her spouse.

Consult: Top Divorce Lawyers in India
 

Matters related to Child Custody

Child custody laws in India are determined by the Guardian & Wards Act, 1890 as well as the personal laws of the various religions, similar to the divorce laws.
 
Hindu Personal Laws
The Guardian & Wards Act, 1890 and the Hindu Minority & Guardianship Act, 1956 determine the child custody laws for Hindus in India:
 
Muslim Personal Laws
The Guardian & Wards Act, 1890 determines the child custody laws for Muslims in India.
 
Christian Personal Laws
Custody issues under the Christian law are determined by the Indian Divorce Act, 1869 and the Guardians and Wards Act, 1890. Custody is granted to the person who is considered to be a better guardian for the child and even the parents’ claims may be denied.
 
Parsi Personal Laws
Custody issues under the Parsi Law, the Guardians and Wards Act, 1890 determine the issues of child custody which is dependent upon the welfare of the child. You must best the top Child Custody Advocates in India if you are facing child custody issues.
 

Matters related to Alimony

Alimony in India is provided by one spouse to another after separation or divorce. Alimony may also be granted when one of the parties is dependent on the person and the dependent party is not being maintained by the other. Generally, however, alimony is given by the husband to the wife as the wife in most social situations is the dependent one.
 
Under Section 125 of the Code of Civil Procedure, one of the parties may file a case for maintenance from the other party and the Court after taking into consideration such factors as property, assets and income of the husband, provides such amount as maintenance to the wife as deemed appropriate. The maintenance amount is granted on a monthly or such periodic basis as deemed appropriate. Maintenance is granted as per the circumstances of the case.
 
Under the Domestic Violence Act, 2005 also a relief may be granted to the woman to continue to live in the house of the in-laws. The spouse has further rights to take back all such items that had been given to her during the marriage and may also be granted compensation for any physical or mental cruelty suffered at the hands of the in-laws. The Court may also appoint an officer to keep a check on the woman when she is at the house of the in-laws.
 
Laws relating to alimony under various religions have been stated below:
 
Hindu Personal Laws
Under Section 24 of the Hindu Marriage Act, 1955, the husband and the wife may each claim maintenance from the other and the women get additional options under the Hindu Adoptions and Maintenance Act, 1956 to file for maintenance.
 
Muslim Personal Laws
The Muslim Women (Protection of Rights on Divorce) Act, 1986 and the Dissolution of Muslim Marriages Act, 1939 provide for maintenance to be provided to Muslim women. According to Muslim laws, Muslim women have the right to get maintenance only for the iddat period. However, by the application of Section 125 of the CrPC, this has been extended and Muslim women may get maintenance up to such time as they remarry.
 
Christian Personal Laws
Section 36 of the Act provides for similar laws as the Hindu Marriage Act. A petition shall be served on the husband; and the court, on being satisfied with the truth of the statements therein contained, may make such order on the husband for payment to the wife of alimony pending the suit as it may deem just, however, the alimony pending the suit shall in no case exceed one-fifth of the husband's average net income for the three years next preceding the date of the order, and shall continue, in case of a decree for dissolution of marriage or of nullity of marriage, until the decree is made absolute or is confirmed, as the case may be.

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How can a lawyer help in sending a divorce notice?

Divorce is a stressful time for everyone involved. Hiring an attorney to complete a divorce is one way to reduce the stress of the divorce. While the attorney will need to gather information from you regarding the case, he or she will also take care of all the paperwork, allowing you more time to take care of yourself and your family. An experienced divorce attorney can give you expert advice on how to handle your divorce owing to his years of experience in handling such cases. A divorce lawyer is an expert on the laws and can help you avoid significant mistakes that may cause financial harm or will require future legal proceedings to correct. Thus, by hiring an attorney a person can make sure that he can avoid delay and get the divorce completed as quickly as possible.



 

These guides are not legal advice, nor a substitute for a lawyer
These articles are provided freely as general guides. While we do our best to make sure these guides are helpful, we do not give any guarantee that they are accurate or appropriate to your situation, or take any responsibility for any loss their use might cause you. Do not rely on information provided here without seeking experienced legal advice first. If in doubt, please always consult a lawyer.


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