Divorce Procedure in Delhi

The procedure for divorce principally starts with the filing of a divorce petition as per the Indian legal procedure. Essentially, the divorce procedure in India begins when one of the parties to a divorce file a petition for divorce, and the other party is served a notice for the same to appear in court.

In case things are not working out between a couple and it is becoming difficult for both of them to cope-up with each other in a marriage, one can part ways legally by filing a & lsquo mutual divorce' petition under the Hindu Marriage Act, 1955 . A mutual divorce petition can only be filed when both parties are willing to get divorced. However, one can file for divorce even when the other party is not willing to get a divorce by filing a petition for a & lsquo contested divorce'. The procedures for filing for Mutual or Contested divorce have been discussed below:

What is the procedure to file for Mutual Divorce in Delhi?

The provision for divorce by mutual consent has been given under Section 13B of the Hindu Marriage Act, 1955 . In situations where both the spouses are willing to terminate the wedlock, they can go ahead with mutual consent divorce. It is the easiest way of terminating a marriage legally. The essential ingredient for a mutual consent divorce is the consent of both husband and wife. However, under the mutual consent divorce, the only two things that have to be worked out between the spouses are custody of the children and maintenance. The procedure for filing for mutual divorce has been explained below:

Filing of the petition: The husband and wife seeking divorce by mutual consent have to file a joint petition before the court for dissolution of marriage on the ground that they have been staying away from each other for more than a year or stating that they have not been able to stay together and have decided to dissolve the marriage with mutual consent.

Court appearance and scrutinizing the petition: After the petition is filed, a date is fixed for scrutinizing the petition and for the appearance of the parties. On the date of appearance, both the parties have to appear before the court with their respective lawyers. The court then scrutinizes the petition along with the documents filed. It also asks if there is a possibility of reconciliation between the parties, and if there stands no possibility for the same it proceeds with the mutual divorce. Upon satisfaction with scrutinizing the petition, the court may record the statements of the parties.

Passing of first motion: The court, after recording the statements, passes an order for the first motion. After passing the first motion, the parties are given a six months period, which is also known as the cooling-off period, only after which the second motion can be filed by the parties. Within the six months period during the pendency of the petition, either party can withdraw the mutual divorce petition by filing an application for withdrawal of divorce by mutual consent. However, recently the Supreme Court has held in a landmark judgment that the cooling-off period can be waived at the discretion of the court. Unless the petition is withdrawn or the cooling-off period has been waived, the second motion has to be filed within a period of 18 months from the filing of the petition.

Passing of second motion: If the parties still want to go ahead with the proceedings after the six months period is over they can proceed with the final hearing and can file for the passing of the second motion. If the second motion is not filed within 18 months of the filing of the divorce petition the court will not pass the decree for divorce. The parties can still withdraw their consent before the decree for divorce is passed.

Decree of Divorce: Before the decree for divorce is given by the court, all the issues related to alimony, custody, maintenance, property distribution, etc. must be resolved between the parties. Thus, once there is a complete agreement between the parties and the court is satisfied that there is no possibility of reconciliation between the parties, it would pass the decree for divorce declaring the marriage to be dissolved.

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Documents and Information required for Mutual Divorce in Delhi

Documents required to file a Mutual Divorce petition have been listed below:

1. Address proof of husband and wife

2. Present earning details of both husband and wife

3. Marriage certificate of the couple

4. Information proving the family background

5. Wedding photographs of the couple

6. Evidence proving separation of husband and wife for more than a year

7. Evidence to prove failed attempts of reconciliation

8. Statements of income tax of both the spouses

9. Details of assets held by husband and wife.
    

What is the procedure to file for Contested Divorce in Delhi?

In situations where one of the parties to the marriage wants a divorce, however, the other party is not willing to give his or her consent for the same, the party wanting divorce can file a petition for a contested divorce . A petition for contested divorce can be filed based on certain grounds only which are as follows:

1. If either spouse has not been heard of as being alive for a period of seven years or more by persons who would have otherwise heard of him/her as being alive

2. If either spouse has had sexual intercourse outside the marriage

3. If either spouse is subjecting the other to cruelty

4. If either spouse has deserted the other for a continuous period of not less than two years immediately preceding the filing of the petition in the court.

5. If either spouse has seized to be a Hindu

6. If either spouse is incurable of unsound mind or continuously or intermittently has been suffering from a mental disorder

7. If either spouse is suffering from a virulent and incurable form of leprosy

8. If either spouse is suffering from a contagious venereal disease

9. If either spouse renounces worldly pleasure by entering any religious order.

The procedure for filing for contested divorce has been stated below:

Petition for contested divorce: In a contested divorce, the husband or wife seeking divorce has to file a contested divorce petition before the court. The petition has to be accompanied by documents proving the marriage and the allegations made in the petition based on which divorce is sought. An affidavit and a vakalatnama bearing the signature of the party contested are also required to be attached to the petition.

Scrutinizing the petition and sending a notice to the defendant: Once the petition is filed, a date is fixed for scrutinizing the petition and for hearing the opening arguments of the petitioner. If the court is satisfied that the petition is filed with all the requisite documents and the grounds mentioned therein are valid, it would admit the petition and will issue a notice to the defendant for appearance along with a copy of the divorce petition. The defendant will then file a reply to the divorce petition and any other applications as required in the matter.

Direction for mediation: The court may then direct the parties to resolve their issue through mediation and in case the mediation is not successful the court will continue with the divorce proceedings.

Recording evidence and framing issues: The court will then continue with the matter and would frame issues and record evidence submitted by both parties. The evidence and witness will then be cross-examined by both parties. This part of the procedure is the most crucial part in deciding the fate of the case.

Final arguments and verdict: After the evidence is recorded and cross-examined, both the parties will submit their final arguments before the court and would fix a date to pronounce the final decision. Then it will give its final verdict on the date fixed by it based on the arguments advanced by both parties. In case either party is not happy with the judgment, it can file an appeal against the same within 3 months from the date of pronouncement of the judgment.

Documents required for Contested Divorce in Delhi:

Documents required to file a contested divorce petition have been listed below:

1. Address proof of husband and wife

2. Wedding photographs

3. Certificate of marriage

4. Evidence supporting the ground on which divorce is sought

5. Professional and financial proofs

6. Details of assets held by husband and wife.

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Family Courts in Delhi for Divorce Cases

1. Tis Hazari Courts Complex

Address: Tis Hazari, Delhi - 110054
Jurisdiction: Central Delhi

2. Karkardooma Courts Complex

Address: Karkardooma, Delhi - 110032
Jurisdiction: East Delhi

3. Saket Courts Complex

Address: Saket District Court Complex, Press Enclave Road, Saket, New Delhi - 110017
Jurisdiction: South Delhi

4. Patiala House Courts Complex

Address: Patiala House, India Gate, New Delhi - 110001
Jurisdiction: New Delhi District

5. Rohini Courts Complex

Address: Rohini Sector 14, Rohini, Delhi - 110085
Jurisdiction: North West Delhi

6. Dwarka Courts Complex

Address: Sector 10, Dwarka, New Delhi - 110075
Jurisdiction: South West Delhi

7. Rouse Avenue Courts Complex

Address: Rouse Avenue, Institutional Area, Near Bal Bhawan, New Delhi - 110002
Jurisdiction: Cases as assigned

If you are going through a divorce or are planning to file for one, talk to a  divorce attorney in Delhi  to figure out your options. You can also use LawRato's Free Legal Advice service to get free advice on your case from expert divorce/matrimonial lawyers. It is always helpful to work out all the options beforehand when one is planning to get a divorce and an experienced divorce lawyer can help you figure out various complex questions involved with a divorce process, such as  alimony  and  child custody .

FAQs on Divorce in Delhi

1. What are the grounds for divorce in Delhi?

• In Delhi, grounds for divorce include adultery, cruelty, desertion, conversion to another religion, mental disorder, communicable disease, renunciation of the world, and not heard for seven years or more.
   

2. What is the procedure for filing for divorce in Delhi?

• The procedure involves filing a divorce petition in the appropriate family court, serving a copy to the spouse, court hearings, and then a decree of divorce if the court is satisfied with the grounds presented.
   

3. How long does the divorce process take in Delhi?

• The duration of the divorce process can vary. A mutual consent divorce may take 6-18 months, while a contested divorce can take several years depending on the complexity of the case and the court's schedule.
   

4. What is mutual consent divorce, and how does it work in Delhi?

• Mutual consent divorce is when both spouses agree to the divorce and its terms. In Delhi, the couple must file a joint petition, attend court hearings, and after a mandatory six-month waiting period, the court may grant the divorce.
   

5. What is a contested divorce?

• A contested divorce is when one spouse does not agree to the divorce or its terms. This type of divorce involves more court hearings, evidence presentation, and can be more time-consuming and complex.
   

6. What are the legal fees associated with filing for divorce in Delhi?

• Legal fees can vary widely based on the lawyer's experience, the complexity of the case, and other factors. It's advisable to discuss fees upfront with your lawyer.
   

7. Can I get a divorce if my spouse is not willing to consent?

• Yes, you can file for a contested divorce if your spouse is not willing to consent. You will need to provide evidence for the grounds on which you are seeking the divorce.
   

8. What happens to child custody during a divorce in Delhi?

• The court considers the best interests of the child when deciding custody matters. Both parents can file for custody, and the court may grant sole or joint custody based on various factors.
   

9. How is alimony decided in a divorce case in Delhi?

• Alimony is decided based on factors such as the length of the marriage, the financial status of both parties, age, health, and the standard of living during the marriage.
   

10. Can I remarry immediately after getting a divorce in Delhi?

• You can remarry after the divorce decree is finalized and any appeal period (typically 90 days) has passed without any objections.
   

11. What documents are required to file for divorce in Delhi?

• Required documents include a marriage certificate, address proof, photographs, proof of marriage breakdown (if contested), income statements, and other relevant evidence.
   

12. Do I need to hire a lawyer for a divorce in Delhi?

• While it is possible to file for divorce without a lawyer, it is highly advisable to hire one to navigate the legal complexities and ensure your interests are protected.
   

13. What are the alternatives to divorce in Delhi?

• Alternatives include legal separation, annulment, or reconciliation through counseling. These options can be explored depending on the circumstances of the marriage.
   

14. Can a foreigner file for divorce in Delhi?

• Yes, a foreigner can file for divorce in Delhi if the marriage was registered in India or if both parties are residing in India.
   

15. How can domestic violence affect a divorce case in Delhi?

• Domestic violence can be a strong ground for divorce and can also affect custody and alimony decisions. It is important to present any evidence of domestic violence to the court.

Advocate Chikirsha Mohanty

Greater Kailash - 1, Delhi
5 years

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