Divorce in India is by all means a long legal procedure, wherein the period of processing takes at least six months before obtaining a certificate of Divorce. Before opting for a divorce, one should be aware that a divorce procedure in India usually extends for almost a year and in some special cases of dispute, may continue for more than a year.
Due to intricacy of Indian divorce laws, a divorce can cause financial as well as emotional drain. This distressingly long process of divorce will be easier to handle by the concerned individuals if they both have a firm determination to get the divorce.
Due to the diversity of religious faiths in India, the Indian Judiciary has implemented divorce laws separately for couples belonging to different religious beliefs, basing them on the following acts:
• The Hindu Marriage Act, 1955
• The Parsi Marriage and Divorce Act, 1936
• The dissolution of Muslim Marriage act, 1939
• The Parsi Marriage and Divorce Act, 1936
• The Special Marriage Act, 1956
• The Foreign Marriage Act, 1969
All Hindus and their religious offshoots (Sikhs, Buddhists and Jains) can seek divorce under the Hindu Marriage Act.
Whereas communities other than Hindus- such as Parsis, Christians and Muslims- have their own laws related to divorce.
Christian divorce laws, for example, are regulated by the Indian Divorce Act, 1869. And those of Parsis by the Parsi Marriage and Divorce Act, 1936.
Divorce laws for Inter-community marriages are governed by the Special Marriage Act, 1956.
The divorce procedure varies from the marriage acts of one personal law to another.
With the advancement of time and social awareness, several acts have been passed by the government to make the present day divorce procedure in India more progressive with respect to gender affairs and related sensitive issues. The Muslim Women Act 1986 was passed to protect the rights of Muslim women on divorce.
Brief information on steps involved in filing for a certificate of divorce in India:
Hiring a Lawyer
The very first step in getting a divorce is to hire a good lawyer, who would be acting as your legal advisor throughout the tedious and time-taking process. While appointing a lawyer, you must make sure that he/she is experienced enough to handle your divorce case tactfully and efficiently. The lawyer in question should take interest in your case and also devote substantial time to advise you on and execute all the legal proceedings of your divorce.
It is also always advisable that you enter into an agreement regarding the fee structure on the very first day of your meeting with the lawyer.
Under the Indian divorce laws, there are mainly two ways to obtain you divorce:
-A contested divorce, filed on the grounds that are mentioned in the acts passed out separately for different Indian religions.
Divorces are commonly filed on the following grounds as listed in the Indian Divorce laws:
• Involvement of the spouse of the petitioner in adultery or indulging in sexual relationships outside his/her marriage.
• Willfully deserting or abandoning the petitioner for a continuous period of two years prior to the filing for divorce in India.
• Inflicting physical and mental abuses that may cause danger to life and health.
• Sexually impotent or inability to involve in sexual intercourse.
• Suffering from incurable diseases and/or insanity
Your lawyer will draft a divorce petition based on the grounds for filing a divorce in India as mentioned in the Indian divorce laws. You will then be expected to provide your lawyer every necessary detail and document that would enable him/her to file the case in the relevant court.
To file for divorce, you are required to hand over photocopies of the following documents to your lawyer:
• Income Tax statements for the past 2 or 3 years
• Details of your profession and present remuneration
• Your birth and family-related information
• Details of properties and assets you possess
Along with the above mentioned documents, you need to provide your lawyer with a detailed account of your marriage that includes how and when you got married and what went wrong that led to the breakup of the marital bonding with your spouse.
Note that the more honest you are in your account, the easier it will be for the lawyer to file a strong petition for a contested divorce.
For further proceedings you will have to sign a ‘vakalatnama’, by which you give authority to your lawyer to represent you in the courtroom. The court then sends a notice and a copy of your petition by registered post to your former spouse, asking him/her to appear in the court on a specified date.
-Mutual consent: Getting a divorce through mutual consent is far simpler compared to that of the contested divorce, and can always be preferred over the latter as the procedure.
Under a mutual consent divorce decree in India, you can come to an agreement with your spouse, where you may resolve all kinds of disputes regarding property, maintenance, custody of children and such.
Under Section 13B of the Hindu Marriage Act, a husband and wife can file for a mutual divorce only when they have lived apart for at least a year. The couple must jointly mention about their inability to continue the marital relationship due to some unavoidable circumstances. Both the sides must voluntarily agree to dissolve the marriage.
When both, the husband and the wife, file for a mutual divorce, it is termed as ‘the first motion’. The couple can file for a ‘second motion’ after a gap of six months.
The six months time-span is provided to the couple so that they get some time to reconsider their decision, should either/both of them wish to.
However, a divorce decree can be passed before the completion of the six months term if all the mandatory requirements for the divorce are met. If the divorce file is not withdrawn within eighteen months, the court passes a divorce decree.
In case one of the sides withdraws his/her petition, the court proceeds to make an enquiry into the matter. Following which, if the concerned side disagrees to give the consent, the court would hold no right to pass the divorce judgment.
Indian citizens who marry NRIs (Non-Resident Indians) should be aware of the basic laws related to NRI divorce:
• If both the spouses are Indians and have been married under Hindu marriage Act of 1955, they can seek divorce with mutual consent under section 13B that provides for divorce by mutual consent.
• If both the spouses are residing in USA, or any other foreign country, they can seek divorce by mutual consent under the country’s divorce laws related to foreign marriages. The Indian legal system will recognize the divorce only if it is with the consent of both the parties.
Even if the divorce is taking place abroad, it is advisable to appoint an advocate who is proficient in dealing with Indian divorce laws related to NRIs.