What is Divorce?

Divorce is essentially the dissolution of marriage. It is a term used for the termination of the 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 a ‘contested divorce’. The procedure and steps involved in both of these have been discussed in this law guide.

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What are the types of divorce under Hindu law?

Divorce under Hindu law is regulated by the Hindu Marriage Act, of 1955. This Act has classified divorce into two main categories:

Mutual divorce

When both partners agree to end their marriage amicably then they can choose for a mutual consent divorce which is governed by Section 13-B of the Hindu Marriage Act. Opting for this approach where there are concerns related to alimony and child custody, the pre-determine of such issues becomes crucial for the spouses. The spouses must fulfill the requirement of living separately for at least one year before filing for a mutual divorce.

Contested divorce

Contested divorces happen when one spouse wants a divorce, but they can't agree with their partner beforehand. These divorces require careful handling because there might not be much evidence to support either side's claims on things like alimony and child custody in court. While contested divorces often don't lead to amicable solutions between couples, they can be appealing to those trapped in a difficult marriage with no other way out.

What is the procedure to file for Divorce by Mutual Consent in India?

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 parties.

2. Appearing before the 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 the 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 the 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 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 the child, maintenance, property, etc. Thus, there needs to be a complete agreement between the husband and wife for the dissolution of the 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.

Address proof of husband and wife
Professional and Financial (present earnings) details of both husband and wife
Marriage Certificate
Information regarding family background
Wedding photographs of the husband and wife
Evidence that may prove that the husband and wife have not been living together for more than a year
Evidence that can show failed attempts to reconcile
Income Tax statements of both parties
Property and asset details of husband and wife

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Provision's in the Law for Mutual consent Divorce

In India, divorce laws allow couples to mutually agree on separation. Different marriage acts apply to various communities. For Hindus, Section 13B of the Hindu Marriage Act 1955 requires a minimum one-year separation. The Special Marriage Act 1954, under Section 28, enables mutual consent divorce. The Divorce Act 1869, Section 10A, requires a two-year minimum separation. Parsi couples follow the Parsi Marriage Act 1936, while Christians and Muslims have their own provisions based on their religious laws.

Regardless of their religion, people in both separated and married situations aim to preserve the sanctity and importance of marriage. In such cases, individuals can attempt a reconciliation process through third-party intervention, like mediation or counseling, before pursuing divorce. If these efforts prove unsuccessful, the petitioner may proceed with a divorce application, granted both parties agree.

How much time does it take to get a Mutual consent Divorce?

In mutual consent divorce, it can be completed in six months, but not before the first year of marriage. There's also a mandatory six-month gap between the initial and final divorce motions, though the court can waive this waiting period under certain circumstances. Typically, mutual consent divorces take around 18-24 months to finalize.

What is the procedure to file for Divorce by Contested Divorce in India?

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 finalized, 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 evidence and cross-examinations is completed, advocates for both 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 filing for appeal is 3 months from the date of the order.

What are the documents/information required for Divorce by Contest/ Contested Divorce in India?

Several documents are required for a 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:

Address proof of husband
Address proof of wife
Photographs of marriage between the husband and wife
Certificate of marriage
Evidence supporting the ground on which divorce is sought (cruelty, adultery, desertion, lunacy, leprosy, the presumption of death, conversion to another religion, etc.)
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 to divorce your 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 suffering incurably of unsound mind or has continuously or intermittently been suffering from 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 a wife to file for divorce

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

What is the concept of ‘irretrievable breakdown of marriage'?

Irretrievable breakdown of marriage is when a couple can't live together happily or legally anymore. This usually happens when there's no love left, they live separately, fight a lot, or one person is cheating. There aren't specific laws for this type of divorce – it's up to the court to decide based on the evidence from both sides. The Supreme Court says if the party asking for divorce is also at fault, it might not be granted.

The idea behind introducing the concept of "irretrievable marriage breakdown" was to make divorce easier when both parties want to separate but don't agree to it mutually. It was meant to avoid lengthy and complex court procedures where each person's faults had to be proven. However, using this reason for divorce doesn't guarantee an easy break-up. Complications can still arise based on the circumstances and evidence presented in court by both sides.

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 a 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.

Things to Remember Before Approaching Court for Divorce

Divorce is a tough choice, and it should never be rushed. Before you consider going to court to file for divorce, there are some important things to consider. Firstly, it's a good idea for couples not to hastily decide to end their marriage through divorce proceedings. Reconciliation is still possible if both partners are willing to try. Even if reconciliation is not possible, attempting to persuade or convince your spouse to reconsider may yield positive outcomes. If none of these approaches work, you can explore the option of a mutual consent divorce. This process allows couples to part ways with minimal complications.

When one spouse wants a divorce, but the other refuses to end the marriage, a contested divorce becomes necessary. To proceed with a contested divorce, you must meet one or more legal divorce grounds defined by the law. This typically happens when couples have irreconcilable differences and are at odds about obtaining a court-issued divorce decree. In such challenging situations, seeking guidance from experienced family court lawyers can be incredibly beneficial.

Rights for Both Men and Women during divorce proceedings

Right to Legal Representation: Both spouses can hire a divorce lawyer for help during the process.
Right to a Fair Trial: Both parties have the right to a fair trial where evidence and arguments are considered before a decision is reached.
Right to Alimony or Maintenance: Either spouse, the husband or the wife, can receive alimony or maintenance depending on their financial circumstances and requirements.
Child Custody and Visitation Rights: Both parents can seek custody of their children and visit them, with decisions based on what's best for the child.

Specific Rights for Men

Protection from False Dowry and Cruelty Allegations: Both parents can seek custody of their children and visit them, with decisions based on what's best for the child.
Property Rights: In marriage, men have the right to a fair share of property and debts as per the relevant property division laws.

Specific Rights for Women

Right to Maintenance: In divorce, women can request financial support from their spouse, especially if they rely on them financially or have custody of children. This right extends both during and after the divorce.
Protection from Domestic Violence: Every woman has the right to be safeguarded against domestic violence. When needed, they can request restraining orders or protection orders for their safety.
Right to Stridhan: In marriage, women have the right to possess their "Stridhan," which encompasses gifts, jewelry, and assets given to them.
Child Custody: In child custody cases, women usually have a strong case if they can prove it's best for the child.

How a mother can financially protect her child in case of a divorce

Preparing for divorce is crucial because it can be emotionally challenging for everyone in the family, especially the children. A mother should take steps to protect her child's financial future. To do this, she should get involved in understanding the family's finances. Identify any investments or assets and work with both lawyers to safeguard them from court decisions.

Examining your life insurance policies and making any needed changes can safeguard your child's financial well-being during a divorce. Additionally, consider establishing trust funds or savings accounts to cover future expenses like education, housing, or medical costs. Lastly, creating a well-planned budget for life after divorce will help you make smarter decisions regarding income, expenses, and investments. This not only secures your financial stability but also lays a strong financial foundation for your children's future care.

Common challenges people often face during the divorce procedure

Emotional Challenges: Divorce is also about facing the emotions like sadness, anger, anxiety, and grief. It is important to recognize this distress and seeking emotional support.
Legal Intricacies: Dealing with divorce can be confusing due to varying laws and procedures by region. To ensure you navigate the legal process correctly, consult an experienced attorney for guidance.
Financial Concerns: Divorce can bring financial instability, with concerns about property, alimony, child support, and legal costs. Planning and budgeting become essential.
Child Custody and Support: Child custody and support decisions are often emotionally challenging and legally intricate. The primary focus should always be on what is best for the children.
Property Division: Division of assets and debts acquired during a marriage can lead to disagreements. These laws differ by location.
Communication and Conflict: Communication problems and conflicts with your spouse can slow down the divorce process. Consider mediation or counseling to resolve disagreements more peacefully.
Legal Requirements: Meeting legal requirements for divorce can be tricky, especially when it comes to things like residency and waiting periods, particularly in mutual consent divorce cases.
Delay and Lengthy Process: Legal proceedings can be lengthy and stressful due to court schedules and backlog, causing uncertainty for those involved.
Privacy and Disclosure: Divorce proceedings are usually public, which can make people uncomfortable if they cherish their privacy.
Social Stigma: In certain societies, divorce is seen negatively, which can make it tough for people to find help or talk openly about their situation.
Religious and Cultural Challenges: Obtaining a divorce can become more complex when religious or cultural beliefs clash with legal obligations.
Co-Parenting and Adjustment: Adapting to life after divorce, managing co-parenting, and creating a fresh routine can be tough.

What can be the repercussions if Divorce is not granted in India?

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.

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Here are some tips before you fix your consultation

Make a list of goals and desired outcomes and discuss it.
Keep all the documentation of your assets and debts bought jointly.
Prepare your questions list that is specific to your situation and ask the lawyer.

New Rules for Divorce in India 2023

In 2023, India introduced substantial alterations to divorce procedures under the amended Hindu Marriage Act. These changes hold particular significance within the Hindu community. Notable adjustments include expanded grounds for divorce, such as adultery, mental or physical cruelty, desertion, conversion, and the irretrievable breakdown of a marriage. Unlike the previous law, which primarily focused on physical violence and harassment as forms of mental cruelty, the updated regulations encompass a broader range of actions, including financial neglect and obstructing child access.
Furthermore, the duration required for desertion before seeking divorce has been shortened from 2 years to only 1 year. Another significant change in this law allows both partners to initiate divorce proceedings based on adultery, instead of limiting this option to the betrayed spouse alone.
These rules specifically pertain to Hindus, and different religious communities have their own divorce regulations. The impact of these amendments on Hindu marriages is yet to be observed, but they are expected to lessen conflicts during divorces and expand choices for those seeking legal separation.

Waiving the Mandatory 6 Months Period for Rehabilitation

A recent legal amendment has altered the divorce process by removing the obligatory 6-month rehabilitation period for couples seeking divorce. Originally, this rule aimed to offer couples a chance to reconsider their decision and attempt to mend their marriage in case of misunderstandings. However, in certain situations where reconciliation is impossible, this six-month waiting period now appears needless and unproductive.
Under the new rules, the required six-month period has been eliminated. Instead, the court can now decide whether to impose this period on a case-by-case basis. The court will examine the unique circumstances of each situation before determining whether it is better to proceed with an immediate divorce or allow for a six-month period for potential reconciliation efforts. This change offers more flexibility in the divorce process, empowering individuals dealing with severe relationship issues to make informed choices about their future without strict regulations holding them back.

Irretrievable Breakdown of Marriage, a Valid Ground for Divorce

When the marriage is believed to be beyond saving Divorce can be based on the irretrievable breakdown of a marriage, which occurs. This often happens when they choose to live apart due to unresolved issues. Generally, both spouses must agree to the separation for it to be a valid ground for divorce.
The court must determine if there are valid reasons for divorce. To proceed, it needs evidence of irreparable differences or the unwillingness of one or both spouses to stay together. If all legal conditions are met, and no other options are available, the court grants a legal separation. In a significant case, Sangamitra Ghose Vs Bhaskar Rao Chodaparthy, the Supreme Court recognized irretrievable breakdown as a valid ground for divorce. This decision reflects the belief that continuing unhappy marriages can infringe on individuals' rights to dignity and peace.

Law of Maintenance Extended for Live-in Relationships

The law now recognizes live-in relationships like marriages when it comes to providing support to women. This change extends the same rights to women in live-in relationships as those who are married or separated. This decision, based on a 1955 court ruling, ensures that women in live-in relationships can also receive maintenance under Section 125 of the Criminal Procedure Code (CRPC). This is a positive step towards gender equality.

Under the Hindu Marriage Act, several important rights that were originally designed for married couples now also extend to couples in live-in relationships. These rights cover matters like inheritance, guardianship, and custody. It's essential to note that living together without marriage doesn't establish a legal bond, so both partners have equal protection against domestic violence. Furthermore, under this Act, women in live-in relationships have the right to demand alimony from their partners. This can happen if they provide notice and can prove abandonment or desertion due to a disagreement on marriage within the first two years of the relationship. To do this, they need to file an application before the Magistrate under Section 125 CRPC.

Adultery Is Not Punishable

In India, adultery is no longer considered a crime after a Supreme Court ruling. The court reasoned that punishing a spouse and their partner cannot salvage a marriage, so they removed the punishment. While adultery can still be cited as a reason for divorce when one spouse has an affair, it's no longer a criminal offense for either party involved.
The decision aimed to safeguard people's freedom to choose their partners when ending marriages. This mirrors a larger trend in society where people are more accepting of individuals' relationship choices. It also shows progress in our legal system, which prioritizes protecting individual rights over traditional family values.

Triple Talaq Cannot Be a Grounds for Divorce

In India, triple talaq has been widely criticized. This practice, rooted in Muslim law, allows a man to divorce his wife by saying "talaq" three times, without any requirement for a reason or consideration of his wife's objections. This system heavily favors men and leaves women powerless to contest or stop the divorce if their husband decides to go through with it.
In 2023, new divorce rules were introduced to promote fairness and gender equality in marriage. One significant change was declaring the practice unconstitutional and removing its significance. This decision empowers Muslim women, allowing them the freedom to choose or challenge their marriages without constraints. It also ensures equal rights for both men and women in marital matters, enabling them to make choices with respect and without limitations.

Most Important Points to Remember While Divorce

Alimony or Maintenance Issues

Alimony, also known as maintenance allowances, is a crucial aspect of divorce. It involves financial support to sustain the recipient spouse's lifestyle post-divorce. This support can take various forms, including regular payments, property transfers, and even health insurance coverage for a specified duration following the divorce.
In most cases, courts will not order permanent support unless it's necessary due to one spouse's disability or as part of a mutual agreement. To decide on alimony, courts consider factors like the duration of the marriage, the spouses' ages, their incomes and earning potential, any retirement benefits, and any misconduct during the marriage. They also look at the financial resources available to both parties. Additionally, the court may consider other relevant evidence to determine if alimony should be granted and at what amount. Alimony matters can get quite complex based on a couple's unique situation, so it's essential to address these issues during mediation if possible, aiming for an amicable resolution outside of court.

How are property matters settled?

Property matters in family law are commonly resolved alongside issues like divorce, paternity disputes, and child custody. In India, child custody is regulated by the Guardians and Wardens Act, 1890, which is the primary law on this matter. Custody can generally be of three types: sole/exclusive (one parent has custody), shared/joint (both parents share custody), or third-party custody (neither parent has full custody rights). In cases involving children under 5 years old, it is generally the mother who gets custody. According to the Muslim Women (Protection of Rights on Divorce) Act 1986, boys under 2 years old are granted to their mothers, and daughters stay with their mothers no matter what. This information is crucial to consider in property-related issues like divorce settlements and debt payments because it can greatly impact court decisions. Childcare arrangements play a significant role in such legal matters.

What about child custody?

Child custody is a complex and emotionally charged issue that arises during divorce. When couples divorce, they must determine child custody arrangements, deciding who will raise their children. The cost of getting a divorce varies by state and individual circumstances. Generally, filing for divorce itself is relatively inexpensive compared to the legal fees associated with potential court proceedings. Court fees are often minimal, sometimes as low as INR 25 for an appeal. However, the main cost for couples seeking to establish child custody terms is typically the fees charged by their lawyers. Therefore, it's crucial for those involved to have a clear understanding of the fee arrangement with their lawyer before initiating legal proceedings.

Commonly Stated Incidents that Eventually Lead to a Divorce

When a marriage loses its original meaning of love, loyalty, and companionship because both partners fail to uphold it, it becomes uncertain. Marriage is a shared responsibility where both individuals promise to bring happiness into each other's lives. Unfortunately, many marriages are falling apart due to insecurity and other differences, resulting in painful experiences that lead people to consider divorce as a way to find temporary relief in family courts.

In court, common reasons for divorce often involve situations where one party discovers their spouse is having an affair or when couples become emotionally distant. Abuse, whether physical or mental, can also lead to divorce when it causes severe harm. Additionally, a complete lack of sexual intimacy can be a reason for filing divorce proceedings. Unfortunately, these situations are increasingly common, and sometimes, ending the marriage is the only solution to prevent physical and psychological suffering.

General statistics related to divorce cases in India

Rise in Divorce Rates: Over the years, India has saw a gradual surge in the Divorce cases which has historically been relatively low in the nation. This changing phenomenon is being treated as indicator of the shifting societal norms and individual aspirations.
Regional Variations: Different states and regions have different divorce rates. This has always been a generic aspect when it comes to divorce rate in India. For example, Maharashtra and Karnataka has comparatively higher divorce rates than other states.
Urban vs. Rural Divide: Urbanization has resulted in wide spread of awareness and now we see educated women in our house who can raise their voice against a generational wrong that they have been toleration. This is among the reasons for a varying Divorce rate in urban areas and rural areas.
Age Group: Due to changing priorities and aspirations among couples who are young, in their 20s and 30s, the divorce rates are higher.
Causes of Divorce: Communication gap, financial issues, emotional breakdowns, trust issues, differing values, unhappiness, insecurity, desire for independence, erratic work schedules, and substance abuse are some common reasons for divorce in India.
Legislative Changes: to meet the ends of justice and address evolving social dynamics in India, changes have been introduced in divorce laws. Such changes have provided more options for individuals seeking divorce. Inclusion of mutual consent divorce provisions is example of one such amendment.

Important Judgements on Divorce

1. Smt. Sureshta Devi vs. Om Prakash 1992 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 the matter, the court must satisfy itself that the consent given 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 primarily important to have a lawyer who can represent/guide you with the trail of the divorce procedure.

Have a consultation with an experienced and well-versed divorce lawyer . You can also use LawRato's Free Legal Advice service 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's Mutual Divorce Service . This service includes everything from consultation with leading Divorce Lawyers to obtain Divorce Decree from the Court.

What is Divorce?

Divorce is essentially the dissolution of marriage. It is a term used for the termination of the 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 a ‘contested divorce’. The procedure and steps involved in both of these have been discussed in this law guide.

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What are the types of divorce under Hindu law?

Divorce under Hindu law is regulated by the Hindu Marriage Act, of 1955. This Act has classified divorce into two main categories:

Mutual divorce

When both partners agree to end their marriage amicably then they can choose for a mutual consent divorce which is governed by Section 13-B of the Hindu Marriage Act. Opting for this approach where there are concerns related to alimony and child custody, the pre-determine of such issues becomes crucial for the spouses. The spouses must fulfill the requirement of living separately for at least one year before filing for a mutual divorce.

Contested divorce

Contested divorces happen when one spouse wants a divorce, but they can't agree with their partner beforehand. These divorces require careful handling because there might not be much evidence to support either side's claims on things like alimony and child custodyin court. While contested divorces often don't lead to amicable solutions between couples, they can be appealing to those trapped in a difficult marriage with no other way out.

What is the procedure to file for Divorce by Mutual Consent in India?

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 parties.

2. Appearing before the 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 therecording 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 the 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 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 the child, maintenance, property, etc. Thus, there needs to be a complete agreement between the husband and wife for the dissolution of the 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.

Address proof of husband and wife
Professional and Financial (present earnings) details of both husband and wife
Marriage Certificate
Information regarding family background
Wedding photographs of the husband and wife
Evidence that may prove that the husband and wife have not been living together for more than a year
Evidence that can show failed attempts to reconcile
Income Tax statements of both parties
Property and asset details of husband and wife

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Provision's in the Law for Mutual consent Divorce

In India, divorce laws allow couples to mutually agree on separation. Different marriage acts apply to various communities. For Hindus, Section 13B of the Hindu Marriage Act 1955 requires a minimum one-year separation. The Special Marriage Act 1954, under Section 28, enables mutual consent divorce. The Divorce Act 1869, Section 10A, requires a two-year minimum separation. Parsi couples follow the Parsi Marriage Act 1936, while Christians and Muslims have their own provisions based on their religious laws.

Regardless of their religion, people in both separated and married situations aim to preserve the sanctity and importance of marriage. In such cases, individuals can attempt a reconciliation process through third-party intervention, like mediation or counseling, before pursuing divorce. If these efforts prove unsuccessful, the petitioner may proceed with a divorce application, granted both parties agree.

How much time does it take to get a Mutual consent Divorce?

In mutual consent divorce, it can be completed in six months, but not before the first year of marriage. There's also a mandatory six-month gap between the initial and final divorce motions, though the court can waive this waiting period under certain circumstances. Typically, mutual consent divorces take around 18-24 months to finalize.

What is the procedure to file for Divorce by Contested Divorce in India?

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 finalized, 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 evidence and cross-examinations is completed, advocates for both 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 filing for appeal is 3 months from the date of the order.

What are the documents/information required for Divorce by Contest/Contested Divorce in India?

Several documents are required for a 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:

Address proof of husband
Address proof of wife
Photographs of marriage between the husband and wife
Certificate of marriage
Evidence supporting the ground on which divorce is sought (cruelty, adultery, desertion, lunacy, leprosy, the presumption of death, conversion to another religion, etc.)
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 a wife to file for divorce

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

What is the concept of ‘irretrievable breakdown of marriage'?

Irretrievable breakdown of marriage is when a couple can't live together happily or legally anymore. This usually happens when there's no love left, they live separately, fight a lot, or one person is cheating. There aren't specific laws for this type of divorce – it's up to the court to decide based on the evidence from both sides. The Supreme Court says if the party asking for divorce is also at fault, it might not be granted.

The idea behind introducing the concept of "irretrievable marriage breakdown" was to make divorce easier when both parties want to separate but don't agree to it mutually. It was meant to avoid lengthy and complex court procedures where each person's faults had to be proven. However, using this reason for divorce doesn't guarantee an easy break-up. Complications can still arise based on the circumstances and evidence presented in court by both sides.

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 a 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.

Things to Remember Before Approaching Court for Divorce

Divorce is a tough choice, and it should never be rushed. Before you consider going to court to file for divorce, there are some important things to consider. Firstly, it's a good idea for couples not to hastily decide to end their marriage through divorce proceedings. Reconciliation is still possible if both partners are willing to try. Even if reconciliation is not possible, attempting to persuade or convince your spouse to reconsider may yield positive outcomes. If none of these approaches work, you can explore the option of a mutual consent divorce. This process allows couples to part ways with minimal complications.

When one spouse wants a divorce, but the other refuses to end the marriage, a contested divorce becomes necessary. To proceed with a contested divorce, you must meet one or more legal divorce grounds defined by the law. This typically happens when couples have irreconcilable differences and are at odds about obtaining a court-issued divorce decree. In such challenging situations, seeking guidance from experienced family court lawyers can be incredibly beneficial.

Rights for Both Men and Women during divorce proceedings

Right to Legal Representation: Both spouses can hire a divorce lawyer for help during the process.
Right to a Fair Trial: Both parties have the right to a fair trial where evidence and arguments are considered before a decision is reached.
Right to Alimony or Maintenance: Either spouse, the husband or the wife, can receive alimony or maintenance depending on their financial circumstances and requirements.
Child Custody and Visitation Rights: Both parents can seek custody of their children and visit them, with decisions based on what's best for the child.

Specific Rights for Men

Protection from False Dowry and Cruelty Allegations: Both parents can seek custody of their children and visit them, with decisions based on what's best for the child.
Property Rights: In marriage, men have the right to a fair share of property and debts as per the relevant property division laws.

Specific Rights for Women

Right to Maintenance: In divorce, women can request financial support from their spouse, especially if they rely on them financially or have custody of children. This right extends both during and after the divorce.
Protection from Domestic Violence: Every woman has the right to be safeguarded against domestic violence. When needed, they can request restraining orders or protection orders for their safety.
Right to Stridhan: In marriage, women have the right to possess their "Stridhan," which encompasses gifts, jewelry, and assets given to them.
Child Custody: In child custody cases, women usually have a strong case if they can prove it's best for the child.

How a mother can financially protect her child in case of a divorce

Preparing for divorce is crucial because it can be emotionally challenging for everyone in the family, especially the children. A mother should take steps to protect her child's financial future. To do this, she should get involved in understanding the family's finances. Identify any investments or assets and work with both lawyers to safeguard them from court decisions.

Examining your life insurance policies and making any needed changes can safeguard your child's financial well-being during a divorce. Additionally, consider establishing trust funds or savings accounts to cover future expenses like education, housing, or medical costs. Lastly, creating a well-planned budget for life after divorce will help you make smarter decisions regarding income, expenses, and investments. This not only secures your financial stability but also lays a strong financial foundation for your children's future care.

Common challenges people often face during the divorce procedure

Emotional Challenges: Divorce is also about facing the emotions like sadness, anger, anxiety, and grief. It is important to recognize this distress and seeking emotional support.
Legal Intricacies: Dealing with divorce can be confusing due to varying laws and procedures by region. To ensure you navigate the legal process correctly, consult an experienced attorney for guidance.
Financial Concerns: Divorce can bring financial instability, with concerns about property, alimony, child support, and legal costs. Planning and budgeting become essential.
Child Custody and Support: Child custody and support decisions are often emotionally challenging and legally intricate. The primary focus should always be on what is best for the children.
Property Division: Division of assets and debts acquired during a marriage can lead to disagreements. These laws differ by location.
Communication and Conflict: Communication problems and conflicts with your spouse can slow down the divorce process. Consider mediation or counseling to resolve disagreements more peacefully.
Legal Requirements: Meeting legal requirements for divorce can be tricky, especially when it comes to things like residency and waiting periods, particularly in mutual consent divorce cases.
Delay and Lengthy Process: Legal proceedings can be lengthy and stressful due to court schedules and backlog, causing uncertainty for those involved.
Privacy and Disclosure: Divorce proceedings are usually public, which can make people uncomfortable if they cherish their privacy.
Social Stigma: In certain societies, divorce is seen negatively, which can make it tough for people to find help or talk openly about their situation.
Religious and Cultural Challenges: Obtaining a divorce can become more complex when religious or cultural beliefs clash with legal obligations.
Co-Parenting and Adjustment: Adapting to life after divorce, managing co-parenting, and creating a fresh routine can be tough.

What can be the repercussions if Divorce is not granted in India?

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.

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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.

New Rules for Divorce in India 2023

In 2023, India introduced substantial alterations to divorce procedures under the amended Hindu Marriage Act. These changes hold particular significance within the Hindu community. Notable adjustments include expanded grounds for divorce, such as adultery, mental or physical cruelty, desertion, conversion, and the irretrievable breakdown of a marriage. Unlike the previous law, which primarily focused on physical violence and harassment as forms of mental cruelty, the updated regulations encompass a broader range of actions, including financial neglect and obstructing child access.
Furthermore, the duration required for desertion before seeking divorce has been shortened from 2 years to only 1 year. Another significant change in this law allows both partners to initiate divorce proceedings based on adultery, instead of limiting this option to the betrayed spouse alone.
These rules specifically pertain to Hindus, and different religious communities have their own divorce regulations. The impact of these amendments on Hindu marriages is yet to be observed, but they are expected to lessen conflicts during divorces and expand choices for those seeking legal separation.

Waiving the Mandatory 6 Months Period for Rehabilitation

A recent legal amendment has altered the divorce process by removing the obligatory 6-month rehabilitation period for couples seeking divorce. Originally, this rule aimed to offer couples a chance to reconsider their decision and attempt to mend their marriage in case of misunderstandings. However, in certain situations where reconciliation is impossible, this six-month waiting period now appears needless and unproductive.
Under the new rules, the required six-month period has been eliminated. Instead, the court can now decide whether to impose this period on a case-by-case basis. The court will examine the unique circumstances of each situation before determining whether it is better to proceed with an immediate divorce or allow for a six-month period for potential reconciliation efforts. This change offers more flexibility in the divorce process, empowering individuals dealing with severe relationship issues to make informed choices about their future without strict regulations holding them back.

Irretrievable Breakdown of Marriage, a Valid Ground for Divorce

When the marriage is believed to be beyond saving Divorce can be based on the irretrievable breakdown of a marriage, which occurs. This often happens when they choose to live apart due to unresolved issues. Generally, both spouses must agree to the separation for it to be a valid ground for divorce.
The court must determine if there are valid reasons for divorce. To proceed, it needs evidence of irreparable differences or the unwillingness of one or both spouses to stay together. If all legal conditions are met, and no other options are available, the court grants a legal separation. In a significant case, Sangamitra Ghose Vs Bhaskar Rao Chodaparthy, the Supreme Court recognized irretrievable breakdown as a valid ground for divorce. This decision reflects the belief that continuing unhappy marriages can infringe on individuals' rights to dignity and peace.

Law of Maintenance Extended for Live-in Relationships

The law now recognizes live-in relationships like marriages when it comes to providing support to women. This change extends the same rights to women in live-in relationships as those who are married or separated. This decision, based on a 1955 court ruling, ensures that women in live-in relationships can also receive maintenance under Section 125 of the Criminal Procedure Code (CRPC). This is a positive step towards gender equality.

Under the Hindu Marriage Act, several important rights that were originally designed for married couples now also extend to couples in live-in relationships. These rights cover matters like inheritance, guardianship, and custody. It's essential to note that living together without marriage doesn't establish a legal bond, so both partners have equal protection against domestic violence. Furthermore, under this Act, women in live-in relationships have the right to demand alimony from their partners. This can happen if they provide notice and can prove abandonment or desertion due to a disagreement on marriage within the first two years of the relationship. To do this, they need to file an application before the Magistrate under Section 125 CRPC.

Adultery Is Not Punishable

In India, adultery is no longer considered a crime after a Supreme Court ruling. The court reasoned that punishing a spouse and their partner cannot salvage a marriage, so they removed the punishment. While adultery can still be cited as a reason for divorce when one spouse has an affair, it's no longer a criminal offense for either party involved.
The decision aimed to safeguard people's freedom to choose their partners when ending marriages. This mirrors a larger trend in society where people are more accepting of individuals' relationship choices. It also shows progress in our legal system, which prioritizes protecting individual rights over traditional family values.

Triple Talaq Cannot Be a Grounds for Divorce

In India, triple talaq has been widely criticized. This practice, rooted in Muslim law, allows a man to divorce his wife by saying "talaq" three times, without any requirement for a reason or consideration of his wife's objections. This system heavily favors men and leaves women powerless to contest or stop the divorce if their husband decides to go through with it.
In 2023, new divorce rules were introduced to promote fairness and gender equality in marriage. One significant change was declaring the practice unconstitutional and removing its significance. This decision empowers Muslim women, allowing them the freedom to choose or challenge their marriages without constraints. It also ensures equal rights for both men and women in marital matters, enabling them to make choices with respect and without limitations.

Most Important Points to Remember While Divorce

Alimony or Maintenance Issues

Alimony, also known as maintenance allowances, is a crucial aspect of divorce. It involves financial support to sustain the recipient spouse's lifestyle post-divorce. This support can take various forms, including regular payments, property transfers, and even health insurance coverage for a specified duration following the divorce.
In most cases, courts will not order permanent support unless it's necessary due to one spouse's disability or as part of a mutual agreement. To decide on alimony, courts consider factors like the duration of the marriage, the spouses' ages, their incomes and earning potential, any retirement benefits, and any misconduct during the marriage. They also look at the financial resources available to both parties. Additionally, the court may consider other relevant evidence to determine if alimony should be granted and at what amount. Alimony matters can get quite complex based on a couple's unique situation, so it's essential to address these issues during mediation if possible, aiming for an amicable resolution outside of court.

How are property matters settled?

Property matters in family law are commonly resolved alongside issues like divorce, paternity disputes, and child custody. In India, child custody is regulated by the Guardians and Wardens Act, 1890, which is the primary law on this matter. Custody can generally be of three types: sole/exclusive (one parent has custody), shared/joint (both parents share custody), or third-party custody (neither parent has full custody rights). In cases involving children under 5 years old, it is generally the mother who gets custody. According to the Muslim Women (Protection of Rights on Divorce) Act 1986, boys under 2 years old are granted to their mothers, and daughters stay with their mothers no matter what. This information is crucial to consider in property-related issues like divorce settlements and debt payments because it can greatly impact court decisions. Childcare arrangements play a significant role in such legal matters.

What about child custody?

Child custody is a complex and emotionally charged issue that arises during divorce. When couples divorce, they must determine child custody arrangements, deciding who will raise their children. The cost of getting a divorce varies by state and individual circumstances. Generally, filing for divorce itself is relatively inexpensive compared to the legal fees associated with potential court proceedings. Court fees are often minimal, sometimes as low as INR 25 for an appeal. However, the main cost for couples seeking to establish child custody terms is typically the fees charged by their lawyers. Therefore, it's crucial for those involved to have a clear understanding of the fee arrangement with their lawyer before initiating legal proceedings.

Commonly Stated Incidents that Eventually Lead to a Divorce

When a marriage loses its original meaning of love, loyalty, and companionship because both partners fail to uphold it, it becomes uncertain. Marriage is a shared responsibility where both individuals promise to bring happiness into each other's lives. Unfortunately, many marriages are falling apart due to insecurity and other differences, resulting in painful experiences that lead people to consider divorce as a way to find temporary relief in family courts.

In court, common reasons for divorce often involve situations where one party discovers their spouse is having an affair or when couples become emotionally distant. Abuse, whether physical or mental, can also lead to divorce when it causes severe harm. Additionally, a complete lack of sexual intimacy can be a reason for filing divorce proceedings. Unfortunately, these situations are increasingly common, and sometimes, ending the marriage is the only solution to prevent physical and psychological suffering.

General statistics related to divorce cases in India

Rise in Divorce Rates: Over the years, India has saw a gradual surge in the Divorce cases which has historically been relatively low in the nation. This changing phenomenon is being treated as indicator of the shifting societal norms and individual aspirations.
Regional Variations: Different states and regions have different divorce rates. This has always been a generic aspect when it comes to divorce rate in India. For example, Maharashtra and Karnataka has comparatively higher divorce rates than other states.
Urban vs. Rural Divide: Urbanization has resulted in wide spread of awareness and now we see educated women in our house who can raise their voice against a generational wrong that they have been toleration. This is among the reasons for a varying Divorce rate in urban areas and rural areas.
Age Group: Due to changing priorities and aspirations among couples who are young, in their 20s and 30s, the divorce rates are higher.
Causes of Divorce: Communication gap, financial issues, emotional breakdowns, trust issues, differing values, unhappiness, insecurity, desire for independence, erratic work schedules, and substance abuse are some common reasons for divorce in India.
Legislative Changes: to meet the ends of justice and address evolving social dynamics in India, changes have been introduced in divorce laws. Such changes have provided more options for individuals seeking divorce. Inclusion of mutual consent divorce provisions is example of one such amendment.

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 the matter, the court must satisfy itself that the consent given 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 obtain Divorce Decree from the Court.

Advocate Chikirsha Mohanty

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Greater Kailash - 1, Delhi

5 years

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