Divorce Law Faqs
Couples these days have a host of questions and concerns with regard to divorce and legal procedures associated to it. We have observed that people in general have the following doubts and questions in mind, while going or are planning to go through this task. Here are a set of questions that may clarify most of your doubts.
Applying For Divorce
When can I file for divorce?
You can file for divorce only after completion of 1 year of marriage based on the grounds given under the Hindu Marriage Act. In some exceptional cases, the court provides you with an option of annulment(cancellation) of marriage. Other than that you need to complete 1 year of marriage before filing a divorce.
- I am married for 5 months now. Can I file for divorce?
No, you cannot file for a divorce unless you complete 1 year of marriage. However, you can consult a good divorce lawyer or approach the district family court and apply for an annulment (cancellation) of marriage based on special reasons i.e.
- Adultery
- Cruelty
- Desertion
- Renunciation
- Not heard of for 7 years
- Conversion
- Mental Disorder
- Veneral Diseases
- Leprosy
- Where can I file for divorce?
You can file for divorce at a district family court where:
- your marrriage ceremony took place, or
- you last resided with your spouse, or
- your spouse is residing at the time of filing for divorce.
You can file a divorce petition at any of these places, as per your convenience.
- Can I file for divorce online?
No, there is no provision for online application for divorce. You have to file the divorce petition in the district family court where:
- your marrriage ceremony took place, or
- you last resided with your spouse, or
- your spouse is residing at the time of filing for divorce.
There is no provision for online divorce in India.
- Can I get divorce on stamp paper?
No, you cannot get divorce on stamp paper. In order to get divorce you need to make a proper divorce application in the district family court where:
- your marrriage ceremony took place, or
- you last resided with your spouse, or
- your spouse is residing at the time of filing for divorce.
- Can I file for divorce on behalf of any other person?
No, you cannot file for divorce on behalf of any other person. Since, the husband and the wife are the only parties hence, they should be the ones filing the case and no one else.If someone else applies on their behalf the petition for divorce will get rejected by the court.
- On what grounds can I file for divorce?
Following are the grounds for on basis of which you can file for a divorce:
- Adultery
- Cruelty
- Desertion
- Renunciation
- Not heard alive for 7 years
- Conversion
- Mental Disorder
- Venreal diseases
- Leprosy
- Is registration of marriage a necessary ground for filing of divorce?
No, registration of marriage is not necessary. But it is advisable that you get your marriage registered as your marriage certificate will be helpful and will add value to your divorce case as far as validity of your marriage is concerned.
- How long does it take to get divorce?
Divorce matters usually take alot of time. In case of a contested divorce that is where only one of the spouse wants divorce are usually very time taking and may take around 3-5 years.But in cases, where both you and your spouse mutually decide to take a divorce, such a proceed may take only 6-8 months.
- What can i do when my husband/wife is not willing to give me divorce?
In such a case you must file for a Contested Divorce in the district family court. This happens when only one of the spouse seeks divorce and the other does not. The complete divorce proceedings may take 3-5 years. If the divorce petition is accepted by the court, the same shall be sent to your spouse who shall then have to appear in court for further proceedings.
- What is mutual consent divorce?
If you and your spouse agree on all the terms and conditions of divorce which include:
- Maintenance of wife and children,
- Custody of any children,
- Division of debt,
- Separation of joint property
The Court does not decide the terms and conditions of the divorce; you and your spouse do it. It is always advisable to go in for a mutual consent divorce as it is less time taking and a cheap procedure.
- Can I claim maintenance after seeking mutual consent divorce?
In case of mutual consent divorce, all the issues regarding maintenance shall depend on the agreement between you and your spouse.
- What terms should be decided for mutual consent divorce?
In a mutual consent divorce, all the terms and conditions are decided by you and your spouse mutually.the terms to be decided includes:
- Maintenance
- Custody of child
- Division of debt (if incurred any) and
- Separation of joint property
- My husband is not ready to appear for second motion of Mutual divorce. What can I do?
In such a case, your divorce petition filed under mutual consent may be dismissed by the court for non-appearance of your spouse. However, you can request the court to postpone the date for the second appearance. Even after this, if your husband is still not willing to continue, you will have to apply for a contested divorce.
- Do I have to be present for divorce proceedings?
Since you and your spouse are the essential parties to the divorce, it is necessary for both of you to be present in court for the divorce proceedings.In case of contested divorce, if you are not present for the proceedings the court may grant an ex-parte divorce that shall be solely based on the facts, statements and evidences already available before the court. In such a situation, there are high chances that you may not be satisfied with the court's decision. Whereas in a mutual consent divorce the court may dismiss your divorce petition completely.
Challenging the Divorce Proceedings
- What should I do if my wife is not living with me?
Incase, you are willing to work on your marriage but your wife does not cooperate and starts living away from you, without any reasonable cause, you must file for Restituion of Conjugal Rights in the district family court. If the court is satified, it may pass a decree in your favour and your wife will have to live with you again.
- What should I do if I want a stay order on my divorce decree ?
If you wish to postpone your divorce proceedings, you must make an application to the High Court of your state. The application must contain the reason based on which you seek for a stay order.
There are two kinds of stay orders that you can apply for:
- Temporary- This can be obtained during the divorce proceedings
- Permanent- This can be obtained only at the end of the divorce case
- How can I stop my divorce?
If your spouse has already filed a divorce petition then you can either convince him/her to withdraw the same or you can appoint an advocate that will help you win the case. You must consult a experienced divorce lawyer for the same. He will prove the grounds on which your spouse has based his/her divorce petition as false. And if the court is satisfied, your divorce will be stopped.
- Can I stop a stay order taken by my wife on a divorce decree?
Many times after the divorce orders are made by the court, either the husband or the wife apply for stay on the divorce decree in the High Court.
If your wife is trying to get a stay order on the divorce decree passed in your favour, you must file a warning petition (known as Caveat) in the High Court to stop such stay.
- What rights do I have if my wife does not follow the decree of the court?
If your spouse does not follow the decree made by the court, which is either for divorce (which may include division of property or custody of child) or restituion of conjugal rights, the court can attach and sell his/her property under Order 21 Rule 32 CPC.
- I am Hindu. On what grounds can my divorce petition be rejected?
You can file a divorce petition under any of the grounds mentioned in section 13 of the Hindu Marriage Act. If your petition is not under any of the grounds mentioned under section 13, then your petition can be rejected. It can also be rejected on technical grounds like filing the petition before the completion of one year of marriage, wrongful jurisdiction etc.
Divorce and Maintenance during Divorce Proceedings
Divorce Under Special Cases
- My wife is Muslim and I am Hindu. How can I file for divorce?
Since, you and your spouse follow different religions your marriage shall come under the Special Marriage Act. To get a divorce under this Act, you must file a petition for divorce in the district family court. The reasons for divorce given under the Special Marriage Act are very similar to the ones given under the Hindu Marriage Act namely adultery, cruelty, desertion, mental incapacity and spouse imprisoned term for seven years.
- We are a Christian couple. How can I get divorce?
The provision for divorce for a Christian couple is given under Section 37 of the Indian Divorce Act. You can file for a divorce in any district family court. If both of you agree on most of the terms of the divorce, you can file for a mutual consent divorce. However, if only you are willling to get a divorce, you can file for a contested divorce. It is advisable for you to consult a well experienced lawyer for your divorce.
- I am married to an NRI. How and where can I file for divorce?
You can file for mutual consent divorce in the appropriate foreign court.Whereas in India, it can be filed in any district family court at the following places:
• The place you last resided in India
• Place of marriage
• Place where your spouse is residing at the time of filing the divorce
- How to get divorce if my husband is missing?
If you or your family members have not heard from your spouse and your spouse has been missing for a period of 7 years, he/she shall be presumed to be dead.This makes it a valid ground for filing a divorce, provided that the court is satisfied, that you have made sincere efforts to find your spouse.
- Can I marry again without being divorced?
One of the essential grounds for a valid marriage is that you must not have a living spouse at the time of marriage. You should be single. So, if you have been married before, you must seek divorce from your previous spouse first and only then can you remarry another person.
- Can I get divorce in live-in relationship?
As of now, there are no set provisions in law with regard to divorce for live-in couples. However, relief has been provided to such couples in the form of rights that resemble the rights granted to a married couple which includes maintenance and legitimacy of the children born out of such bonds.
- Can I ask for maintenance in live-in relationship?
There is no set provisions in law for the couples in a live-in relationship and hence there is no specific clause for maintenance too. But since the court has often treated the live-couples like a married one with respect to the rights of the spouses, there are high chances that your lawyer convinces the court, to get you some amount of maintenance from your partner.
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