How to File for Divorce in India | A Simple Guide to the Divorce Process
Divorce is the legal end of a marriage. It means the marriage is officially over. In India, divorce laws can vary based on the religion of the people involved, similar to how marriage laws work.
The process of getting a divorce in India usually starts with one party filing a divorce petition. This is a formal request to end the marriage. After the petition is filed, the other party is notified about it.
If you and your spouse both agree that your marriage is not working and want to end it, you can file for a ‘mutual divorce‘ under the Hindu Marriage Act, 1955. Even if your spouse doesn’t want a divorce, you can still file for a ‘contested divorce.’ This means that you want a divorce, but your spouse does not. The steps for both types of divorces are explained in this legal guide.
How can you file for Mutual Consent Divorce in India?
In India, Mutual Consent Divorce is governed by Section 13B of the Hindu Marriage Act, 1955. Here’s a step-by-step guide on how to file for it:
- Initiate the Petition: Both spouses must jointly file a divorce petition in the family court. This petition can be based on either of two grounds: they have been living separately for a year or more, or they cannot live together and mutually agree to divorce. Both parties must sign this petition.
- Court Appearance and Petition Review: After filing the petition, both parties, along with their lawyers, need to appear before the family court. The court will review the petition and all accompanying documents. In some cases, the court may also attempt to reconcile the couple. If reconciliation isn’t possible, the divorce proceedings continue.
- Recording Statements on Oath: When the court reviews the petition and is satisfied with it, it can order both parties to make statements under oath.
- First Motion and 6-Month Waiting Period: After recording the statements, the court issues a decision called the “first motion.” Following this, both parties are given a 6-month waiting period before they can proceed with the “second motion.” The maximum time allowed for the second motion is 18 months from when the divorce petition was filed in the family court, unless the petition is withdrawn earlier.
- Second Motion and Final Hearing: If both parties decide to move forward, they can proceed with the second motion and final hearings. During this step, both parties appear before the Family Court and provide further statements. It’s worth noting that the court can, at its discretion, waive the 6-month waiting period if the parties have genuinely resolved their differences, including matters like alimony, child custody, or any other pending issues. If the second motion isn’t filed within 18 months, the court won’t grant a divorce decree. Also, either party can withdraw their consent before the decree is issued.
- Decree of Divorce: In a mutual divorce, both parties must agree without any disagreements regarding alimony, child custody, property, etc. Thus, there must be a complete agreement between the husband and wife to end the marriage. If the court, after hearing both parties, finds the allegations in the petition to be true and believes there’s no chance of reconciliation or cohabitation, it can issue a divorce decree, officially ending the marriage based on the case’s facts and circumstances. The divorce becomes final once the court issues the decree.
Read More: Best Divorce Lawyer in Rohini Court
Documents need for a mutual consent divorce?
To get a mutual consent divorce, you’ll need to provide several documents:
- Proof of address for both the husband and wife.
- Marriage Card
- Your marriage certificate. (If available)
- Information about your family backgrounds.
- Photographs of your wedding.
How to file for a Contested Divorce in India
A contested divorce, which occurs when one spouse wants a divorce but the other does not agree, can be initiated under various grounds specified in the Act. To begin this process, the first step is to consult an experienced divorce lawyer. You’ll need to provide your lawyer with a detailed account of your marital situation so that they can offer the most suitable advice and guide you in your best interests.
There is a specific procedure to follow for a contested divorce, which is explained below:
- Preparing the Divorce Petition: In a contested divorce, one spouse needs to consult a lawyer, as mentioned earlier. The spouse who wants the divorce should explain all the relevant facts to the lawyer, who will then create the divorce petition based on this information. The petition must also include supporting documents to back up the claims made in it. Once it’s ready, the party seeking the divorce must sign the petition, along with affidavits and a vakalatnama, in front of a Notary or commissioner.
- Filing the Petition: After the divorce petition is prepared and all necessary paperwork is in order, it should be submitted to the appropriate family court, based on jurisdiction.
- Court Review of the Petition: On the first court date, the judge will examine the petition and listen to the initial arguments from the lawyer who filed it. These arguments will relate to the allegations and grounds for the divorce.
- The Other Party’s Appearance in Court: If the court decides to proceed with the case after reviewing the petition, it will issue a notice to be served to the other party. The petition and notice will also be sent to the other party, who must then appear in court with their lawyer on the next hearing date. The opposing party is also required to file a response to the divorce petition and any other relevant applications, as needed.
- Attempt at Mediation: Initially, the court will try to help the parties reach an agreement through mediation. If mediation does not succeed, the court will continue with the divorce proceedings.
- Court Frames Issues and Collects Evidence: The court will then move forward by defining the key issues and collecting evidence. Both parties must submit evidence, undergo cross-examination, and present supporting witnesses. This phase is critical as it determines the case’s outcome.
- Final Arguments by Both Parties’ Lawyers: Once the lengthy process of gathering evidence and cross-examinations is complete, the lawyers for both parties will present their final arguments to the judge. Following this, a date will be set for the judge to deliver the verdict.
- Court’s Final Decision: The judge will issue the final decision, which may include granting a divorce decree if appropriate. The verdict is based on the specific circumstances and facts of each case. If either party disagrees with the decision, they can appeal it with the assistance of a lawyer. The deadline for filing an appeal is within three months from the date of the original order.
Where to File Your Divorce Case
You may wonder where to file your divorce petition. It’s actually not too complicated. You have a few options based on your situation:
- If you’re still living in the home where you and your spouse lived together after getting married, or where you last resided as a married couple, you can file your petition at the family court that covers that area.
- If your marriage ceremony took place in a specific location, you can also file your petition at the family court serving that location.
- Here’s some good news for women: If you’re currently residing in a different place from your matrimonial home, you have the flexibility to file your petition in either the family court with jurisdiction over your matrimonial home or the family court in your current locality.
Now, if you’re ready to take the next step and need assistance in filing your divorce petition, don’t hesitate to reach out to us. We will guide you through the process and provide you with the necessary support.
For more information and expert help, please contact us at +91 8920599818 or visit our Contact Us page. Our dedicated advocates are here to assist you with your divorce petition, making the process as smooth as possible for you.
We are here to help you with your legal matters in Delhi and the NCR region. Our team will represent your case in various courts, including Saket court, Dwarka court, Rohini court, Tis Hazari court, Karkardooma court and Patiala House court. We also cover the District Court in Sonepat. If you need assistance, don’t hesitate to reach out to us.