Legal

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This Blog is written by Navneet Bhardwaj from Starex University, Gurugram. Edited by Saradarasagnya Oleti.

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INTRODUCTION

Marriage and family are ancient institutions and around them have grown up deep and powerful sentiments and traditions. Family is an institution which forms the basis of every other institution on the face of the earth. This important institution is formed on another institution namely marriage. In most societies, marriage is considered as a permanent union. We come across many passages to support the view that marriage is union made by God himself and hence none should break it. Despite all these there has been a significant change on the views and attitudes towards sanctity of marriage in the recent past especially in cities. Marriage is no longer held to be or a sacred union Once the rock on which society was founded, marriage has been increasingly unstable in many countries for the past few decades and divorce rate is mounting. Marriage is considered as two people coming together; however, it also formulates into a binding legal contract. Under the contract of marriage, it becomes a process by which two individuals obligate themselves to be partners for life. However, like every other thing in life marriage does not always come with a finality and even when one person walks out of it the legal obligations still stay, hence there remains certain contractual obligations to the other.

WHAT IS THE PROCESS OF GETTING A DIVORCE IN INDIA?

Divorce can be granted in two processes: –

1) Divorce by Mutual Consent. [1]

2) Contested Divorce. [2]

 

DIVORCE BY MUTUAL CONSENT

Divorce by mutual consent is when both the parties agree for a peaceful separation. It is a simple way of coming out of the marriage and dissolves it legally. The main component of such a divorce is the mutual consent of the husband and wife. There are certain aspects to which the Husband and Wife have to reach a consensus. The first is the alimony or maintenance issues. As per Law there is no minimum or maximum limit of maintenance Another consideration is child custody. Both the parties have to come to a consensus over these two topics.

Divorce by mutual consent can be filed when the husband and wife have been living separately for at least one year and have mutually decided to end their marriage. A joint divorce petition is filed in the divorcing couple in the court. After the petition is filed the court gives a 6-month cooling off period. The Supreme Court decided that if the marriage seems to be completely irreparable the court may this cooling period. Once the cooling period is passed the second motion is filed and the court grants a divorce.

CONTESTED DIVORCE

As the name suggests, you will have to contest it. Divorce is filed when one of the spouses decide to divorce the other without his consent. This petition is filed in a court with help of a divorce lawyer, and the court sends a divorce notice to the other spouse. The first step in a divorce proceeding is to hire a divorce lawyer to represent your interest in the court. File a divorce petition against your spouse.

HOW LONG DOES IT TAKE TO GET A DIVORCE IN INDIA

The divorce is granted by the court is approximately one and half year and two years However the spouses can withdraw their divorce petition during this one and half year period and no divorce will be granted by the court. Any spouse can withdraw the mutual consent divorce petition and file a contested divorce through a separate divorce lawyer. The divorce petition is in form of an affidavit which is to be submitted to the family court. Once the petition is filed and the formalities of the court are completed there is generally an adjourning the matter for a period of half year. After the lapse of a period of six months the parties are expected to present themselves again in the court for forwarding of the second motion so as confirming the mutual consent filed earlier. The process by which legal obligations are met with during the annulment of the union is called a divorce. This is done keeping in view that men or women are not able to simply walk away from the partnership without having to care about the responsibility of their partner. It is only after these processes are completed that the decree of the divorce is granted by the court.

COMPLETE GUIDE FOR CONTESTED DIVORCE

Contested divorce in India is a formal way of seeking divorce from your spouse who is not agreeable to the idea of divorce. Contested divorce in India reflects a situation wherein one spouse has finally made up his and her mind to proceed with divorce. Importantly reasons for contested divorce are not your personal choice to come out of the relationship. Reason should be one which is attributable to your spouse whose conduct, actions, omissions and failure to discharge expected reasonable behaviour that has annoyed you to the extent that you come to a conclusion that living together is not possibility.

Law provide various grounds to seek divorce from your spouse. Grounds for contested divorce which are commonly used are: –

a. Divorce on the ground of cruelty. [3]

b. Divorce on the ground of adultery [4]

c. Divorce on the ground of desertion. [5]

 

DIVORCE ON THE GROUND OF CRUELTY

Cruelty in context of divorce case can either be mental or physical. Physical cruelty is easily understandable as same is apparent and visible. Mental cruelty is most common ground seeking for seeking contested divorce. Mental cruelty is a variable phenomenon that varies from one spouse or individual to another spouse or another individual. Broader definition and conduct that constitute cruelty were laid down by Hon’ble Supreme Court of India in the case.

On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to the live with other party. Mere coldness or lack of affection cannot amount to cruelty frequently rudeness of language, petulance of manner, indifference and neglect of they may reach such a degree that it makes the married life for the other spouse absolutely intolerable. Mental to the cruelty is the state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to the mental cruelty. A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse. Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. To the treatment complained of and the resultant danger or apprehension must be very grave substantial and weighty. The married life should be reviewed as a whole and a few isolate instances over a period of years will not an amount to cruelty. They must be persistent for a lengthy period where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse the wronged party finds it extremely difficult to live with the other party any longer may amount to mental cruelty. If a husband submits himself for an operation of sterilization without medical reasons and without the consent or knowledge of his wife and similarly if the wife undergoes vasectomy or abortion or without the consent or knowledge of her husband such an act of the spouse to the mental cruelty. Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty. Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty.

DIVORCE ON THE GROUND OF ADULTERY

Adultery implies that other spouse has indulged in relationship outside marriage indulging in sexual intercourse. At time proving sexual intercourse is not easy. As such it is always recommended that petition for divorce on the ground of adultery should always have cruelty as another ground. Sometime technical reason may lead to failure to strictly prove adultery. But court would not shy away from granting divorce if your version and supporting documents brings make out the case of involvement in marital relationship outside marriage then that will tantamount to cruelty if not any adultery.

 

STEP BY STEP PROCESS AND PROCEDURE FOR FILING CONTESTED DIVORCE IN INDIA

1) Find your lawyer. He should be subject matter expert, having integrity and strong court presence. Have meeting. Discuss facts. Take your call to the proceed further with your chosen divorce lawyer or divorce law firm

2) Contested Divorce Petition drafting

3) Filing in appropriate Court or Family Court. Contested Divorce case can be filed at either of the following place

4) Upon filing case matter is listed in the Court for first hearing/admission hearing. Court issues notice to other party

5) Opposite party will have to file reply. If opposite party despite service does not come, then court may proceed the matter in the absence of other party which is usually called proceeding exporter

6) Issues are framed in Family Court. Issues basically means point of adjudication by the Court and on which parties have to give their respective evidence.

7) Evidence of spouse filing Petition for contested Divorce the done first. Cross examination of witness by opposite party lawyer.

8) Evidence of Respondent is done by the after above.

9) Post evidence of both parties, matter is out for final arguments

10) After arguments Matter is Listed for passing judgement.

11) On successfully proving case Decree of divorce is granted.

 

DOCUMENTS REQUIRED FOR DIVORCE WITH MUTUAL CONSENT

Common Documents are required for Filing a divorce petition, also our expert’s lawyers help you prepare the documents if anything is missing:

1.Marriage Certificate

2.Address Proof – Husband and Wife.

3.Details of Property and Asset owned

4.Income tax Statement of last 3 years.

5.Details of profession and Income (Salary slips, appointment letter)

6.Four photos of marriage

7.Information about family (husband and wife)

8.Evidence of Staying separately for a year

9.Evidence relating to the failed attempts of reconciliation

CONCLUSION

Ending any relationship is really painful. And if considering marriage then it is emotionally and mentally disturbing. However, if a couple is not comfortable to carry the relationship further then ending it have would be better. To the mutual consent divorce is better than a contested divorce. Mutual consent divorce avoids unnecessary quarrels and saves lots of time, money resources. Among all the applications filed for divorce mutual consent divorce is one of the best-given choices. However, like every other thing in life, marriage doesn’t always come with a finality and even when one person walks out of it, the legal obligations still stay put hence there stay certain contractual obligations to the other.

REFERENCES

[1] SEC 13B of Hindu Marriage Act, 1955

[2] SEC 13 of Hindu Marriage Act, 1955

[3] SEC 13(ia) of Hindu Marriage Act, 1955

[4] SEC 13(i) of Hindu Marriage Act, 1955

[5] SEC 13(ib) of Hindu Marriage Act, 1955