Divorce Procedure in Delhi


November 02, 2019
By Advocate Chikirsha Mohanty



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 the court.

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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 ‘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 ‘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 is custody of the children and maintenance. The procedure for filing for mutual divorce has been explained below:
 
Filing of 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 on scrutinizing the petition, the court may record the statements of the parties.

Consult: Top Divorce Lawyers in India

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 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 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.
 

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 the both the spouses

  9. Details of assets held by husband and wife.

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

In situations where one of the parties to the marriage wants 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 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 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 an Hindu;

  6. If either spouse is incurably 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 the 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 with 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 is also required to be attached with the petition.
 
Scrutinizing the petition and sending 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.

Consult: Top Divorce Lawyers in India

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 the parties. The evidence and witness will then be cross-examined by both the 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 the 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.

    Connect with an expert lawyer for your legal issue

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. 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.



 

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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