How to file for Divorce: Step by Step Divorce Procedure

हिंदी में पढ़ें
June 07, 2021
By Advocate Chikirsha Mohanty





What is Divorce?

Divorce is essentially dissolution of marriage. It is a term used for termination of marriage. In India, just like marriage laws, divorce laws can be personal laws, depending upon the religion of the parties.

A divorce procedure or process, as per the Indian Legal system, fundamentally begins with the filing of a divorce petition. The manner in which this entire procedure of divorce in India works starts at the point at which the divorce petition is filed by one of the parties associated with the divorce process and notice of the same is served to the other one.

If things between you and your spouse are not good and you are facing difficulties and both of you have decided to part your ways legally, then you can file for a ‘mutual divorce’ under the Hindu Marriage Act, 1955. It is possible to file for divorce even if the other party is not willing to get a divorce - this is called as ‘contested divorce’. The procedure and steps involved in both of these have been discussed in this law-guide.

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How to file for a Mutual Divorce?

Section 13B of the Hindu Marriage Act, 1955 covers the provision of mutual consent divorce. There is a set procedure to file for it, as given under this section. The steps/procedure/requirements for filing a mutual divorce petition have been explained below:

1. Filing of a petition:
Firstly, a joint petition for dissolution of marriage for a decree of divorce may be presented to the family court by both the spouses on the ground that they have been living separately for a period of one year or more, or else stating that they have not been able to live together and they have mutually agreed to dissolve the marriage. This petition will be signed by both the parties.

2. Appearing before Court and scrutiny of the petition:
Both the parties will have to appear before the family court after the filing of the petition. The parties would appear with their counsels/lawyers. The court would scrutinize the petition along with all the documents that are filed. The court may even attempt to bring reconciliation between parties, however, if this is not possible, the divorce matter is proceeded with.

3. Passing of orders for recording of statements on oath:
Once the petition is scrutinized by the Court and it is satisfied, it may order the parties’ statements to be recorded on oath.

4. Order on First Motion and passing of 6 months period before Second Motion:
Once the statements are recorded, an order on the first motion is passed by the court. Post this step, a 6 months period is given to both the parties to divorce before they can file the second motion. The maximum period for filing second motion is 18 months from the date of presentation of the divorce petition in the family court, unless the petition is withdrawn in the meantime.

Consult:Top Divorce Lawyers in India

5. Second Motion and Final Hearing of the Matter:
Once the parties have decided to go ahead with the proceedings and appear for the second motion, they can do so and proceed with the final hearings. This step involves parties appearing and recording of statements before the Family Court. Recently, however, the Supreme Court has held that the 6 months period given to the parties can be waived off at the discretion of the court. Therefore, the cooling off period in cases where the parties have genuinely settled their differences including alimony, custody of the child or any other pending issues between the parties and if the court is of the opinion that the waiting period will only prolong their sufferings, this 6 months it can be waived off.If the 2nd motion is not made within the period of 18 months, the court will not pass any decree for divorce. It is also a settled law that either party can withdraw their consent at any time before the passing of the decree.

6. Decree of Divorce:
In a mutual divorce, both parties must have given consent and there shall not be any differences in contentions regarding alimony, custody of child, maintenance, property, etc. Thus, there needs to be complete agreement between the husband and wife for the dissolution of marriage. If the court is satisfied after hearing the parties that the allegations in the petition are true and that there cannot be any reconciliation and possibility of cohabitation, it can pass a decree of divorce declaring the marriage to be dissolved, based upon the facts and circumstances of the case. The divorce becomes final once the decree of divorce has been passed by the court.

Related Post:Divorce by Mutual Consent in India



What are the documents/information required for Divorce by Mutual Consent?

There are several documents that the parties would be required to submit for a divorce by mutual consent.

  1. Address proof of husband and wife

  2. Professional and Financial (present earnings) details of both husband and wife

  3. Marriage Certificate

  4. Information regarding family background

  5. Wedding photographs of the husband and wife

  6. Evidence that may prove that the husband and wife have not been living together for more than a year

  7. Evidence that can show failed attempts to reconcile

  8. Income Tax statements of both parties

  9. Property and asset details of husband and wife

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How to file for Contested Divorce?

Under the Hindu Marriage Act, 1955 a contested divorce (when one party wishes to go for divorce but the other party does not consent) can be filed based upon different grounds mentioned in the Act. The journey of getting a contested divorce begins by consulting an expert divorce lawyer. You will have to explain your entire marital situation in detail to your lawyer so that he can give the most suitable and best advice and guide the client as per his/her best interest. There is a set procedure for contested divorce as well. The procedure has been explained below:

1. Preparing the Petition for Divorce:
In a contested divorce, a single party is required to approach the lawyer as has been stated earlier. The husband/wife seeking divorce would have to explain the facts and the lawyer would be required to prepare the petition based upon these facts and circumstances explained and narrated. The Petition would have to be accompanied by relevant documents supporting the allegations as made in the petition. After it has been finalised, the petition along with affidavits and vakalatnama would be signed by the party contesting, in the presence of a Notary/commissioner.

2. Filing of the Petition:
Once the petition has been prepared and all formalities have been fulfilled, it would be filed before the appropriate family court, depending upon the jurisdiction.

3. Scrutiny of the Petition by Court:
The court would scrutinize the petition on the first date of hearing and also listen to the opening arguments (regarding the allegations and grounds) from the lawyer filing the petition.

4. Appearance of the opposite side party in Court:
Once the court is satisfied that the matter should move ahead and be adjudicated, it would issue a notice to be served upon the other party. After this, a copy of the petition and the notice would be sent to the other party and on the next date of hearing, he/she would have to appear in court along with their lawyer. The opposite party would also have to file a reply to the divorce petition and any other application as the case may be.

5. Direction for Mediation:
Initially, the Court will try to resolve the matter between the parties and may also direct them to appear for Mediation so as to reach an amicable solution. After appearing for mediation with a mediator and in case the mediation is not successful or fruitful, the court would continue with the divorce proceedings.

6. Framing of issues and recording of evidence by Court:
The court would then proceed with the matter and frame issues and record evidence. Both the parties would be required to submit evidence, get cross-examined and produce supporting witnesses. This is the most crucial aspect of the entire proceedings - it decides the fate of the case.

Consult:Top Divorce Lawyers in India

7. Final arguments by counsels of the parties:
Once the lengthy procedure of recording/producing of evidence and cross-examinations is completed, advocates for both the parties would be required to give their final arguments before the Judge. After this, a date would be fixed for the pronouncing of the decision.

8. Final decision by the Court:
The Judge would give its final decision and if it deems fit, would give a decree of divorce. The verdict is based upon the facts and circumstances of each case. If in case the verdict is not accepted by either party, they can file an appeal against the said order, with the help of a lawyer. The limitation to file for appeal is 3 months from the date of the order.



Documents required for contested divorce

Several documents are required for contested divorce. A few are required to prove the ground upon which the divorce has been filed. Some of the essential documents have been listed below:

  1. Address proof of husband

  2. Address proof of wife

  3. Photographs of marriage between the husband and wife

  4. Certificate of marriage

  5. Evidence supporting the ground on which divorce is sought (cruelty, adultery, desertion, lunacy, leprosy, presumption of death, conversion to another religion, etc.)

  6. Professional and Financial proofs

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Grounds for Contested Divorce

If your marriage is solemnized under the Hindu Marriage Act, 1955, you have nine grounds for divorce provided in Section 13 of the Act under which you can file your petition todivorceyour partner.

You can file for divorce:

a) If he / she has not been heard of as being alive for a period of seven years or more by persons who would have naturally heard of it, had that party been alive;

b) If he / she has after the marriage had voluntary sexual intercourse with any other person;

c) If he / she is treating you cruelly;

d) If he / she has deserted you for a continuous period of not less than two years immediately preceding the presentation of the petition;

e) If he / she has ceased to be a Hindu by conversion to another religion;

f) If he / she is sufferingincurably of unsound mind or has continuously or intermittently been sufferingfrom a mental disorder, that you cannot reasonably be expected to live with such a person;

g) If your husband / wife is suffering from a virulent and incurable form of leprosy;

h) If he / she is suffering from venereal disease in a communicable form;

i) If your husband / wife has renounced the world by entering any religious order;



Other grounds available for wife to file for divorce

The aforementioned grounds are available for both spouses; however, there are some additional grounds that are available only for wife; for example, if your husband has been found guilty of rape, sodomy or bestiality, you can ask for divorce.

However, if your marriage whether consummated or not was solemnized before you attained the age of 15 years, and you want a divorce, you can do so but only before attaining the age of 18.

Consult:Top Divorce Lawyers in India



Where can you file the divorce petition?

The divorce petition may be filed at the family court which has jurisdiction over your matrimonial home, i.e. the home where you stay / last lived as married spouse after your wedding or at the family court at the place where the marriage had taken place. Women can file the petition either in the family court that has jurisdiction over the place or where the matrimonial home is located or the family court of the locality where she is residing at the time of filing of the petition.



What can be the repercussions ifdivorce is not granted?

A divorce is among the most stressful occurrences for any couple. To add to this, it can likewise be a complex and expensive issue in India if the divorce is not with mutual consent. Even couples that commonly consent to the divorce, notwithstanding, must assure the court that they have been living separately for more than a year in order to have their petition considered. The suffering does not end until the procedure is over which makes the divorce process even harder for the couple and in such a scenario if divorce is not granted it can make the issue even more traumatic for the couple and their family as well. Thus, by hiring an attorney a person can make sure that he can avoid delay and get the divorce completed as quickly as possible while saving himself and his family from the stressful procedure of divorce.

Connect with an expert lawyer for your legal issue



Here are some tips before you fix your consultation

  • Make a list of goals and desired outcomes and discuss it.

  • Keep all thedocumentation of your assets and debts bought jointly.

  • Prepare your questions list that is specific to your situation and ask the lawyer.



Important Judgements on Divorce

1. Smt. Sureshta Devi vs. Om Prakash1992 AIR 1904

The Supreme Court explained what 'living separately' means. It was held by the court that this expression means not living like husband and wife. It was stated that this does not have any relation to the place of living. If the couple is living in the same house yet does not carry out their matrimonial duties, even then, it is considered as them 'living separately'.


2. Smruti Pahadia vs. Sanjay Pahadia

In this case, it was held by the Court that while deciding matter, the court must satisfy itself that the consent guven by the parties must be voluntary in nature. If the party to the matter is absent in the proceeding, after a period of 6 months in divorce by mutual consent, then, presuming consent on behalf of the party is not the right method just because both parties i.e. husband and wife were signatories to the first motion under Section 13B of the Hindu Marriage Act.



Why do you need a lawyer to file your divorce petition?

Regardless of the type of divorce you seek (mutual or contested), it's primarilyimportant to have a lawyer who can represent / guide you with the trail of the divorce procedure.

Have a consultation with an experienced and well-verseddivorce lawyer. You can also use LawRato'sFree Legal Adviceservice to get free advice on your case from expert divorce/matrimonial lawyers. There have been instances where even seemingly straightforward divorces have been complicated, and only a divorce lawyer can answer specific questions about your circumstances. Even if you end up representing yourself, one-hour consultation with a lawyer will help you prepare better.

Get hassle-free divorce by mutual consent with LawRato'sMutual Divorce Service. This service includes everything from consultation with leading Divorce Lawyers to obtaining Divorce Decree from the Court.



 

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