According to a Divorce Lawyer, How to File For Divorce
What is divorce?
Divorce is the dissolution of a marriage union with the help of the court. The termination of the bonds of matrimony varies according to the laws applicable to the parties i.e different laws according to different religions and communities. Hindus(which includes Sikh, Jain, Budh) are governed by the Hindu Marriage Act,1955. Christians are governed by Indian Divorce Act-1869 & The Indian Christian Marriage Act,1872. Personnel laws of Divorce and the Dissolution of Marriage Act,1939 & The Muslim Women (Protection of Rights on Divorce) Act,1986, all of these are applicable for Muslims. The Parsi Marriage & Divorce Act-1936 is for Parsi community. And a secular law called Special Marriage Act,1954.
How to file for divorce?
The process of termination of marriage starts with the filing of divorce petition in the competent court with the help of a divorce lawyer who represents the interests of the party. Hiring a well-experienced divorce lawyer who listens carefully and understands the gravity of the situation is very important as it can make or break your case.
Types of divorce:
There are two types of divorce
- Contested Divorce
- Mutual divorce
What is Contested divorce?
As the name infers the party has to contest it. Unlike mutual divorce in a contested divorce, one party wishes to seek divorce and the other party doesn’t approve of it or the parties are unable to come to a consensus on matters relating to maintenance, child custody, division of assets, etc.
The first step is to hire a good divorce lawyer. In a contested divorce, a single party approaches the lawyer. All the facts on the marital relationship should be narrated to the lawyer in detail who then drafts a divorce petition. A party whose marriage was solemnized under the HMA 1955, can file for divorce through a divorce lawyer on the nine grounds mentioned in section 13 of the Hindu Marriage Act, 1955.
A valid marriage can be dissolved if:
- a) either the husband or the wife has not been heard of as being alive for a period of seven years or more;
- b) either of the spouses had voluntary sexual intercourse with any other person after the marriage(commonly known as adultery);
- c) either of them has been subjected to cruelty;
- d) the other spouse has deserted for a continuous period of not less than two years immediately preceding the presentation of the petition;
- e) the husband or the wife has ceased to be a Hindu by conversion to another religion;
- f) either of the spouses is of unsound mind or has continuously or intermittently been suffering from a mental disorder, and it is unreasonable to live with him/her;
- g) suffering from a virulent and incurable form of leprosy;
- h) suffering from venereal disease in a communicable form;
- i) she/ he has renounced the world by entering any religious order;
The wife can also seek divorce on additional grounds such as rape, sodomy, bestiality or if the marriage was solemnized before the attainment of the age of 15 years then the wife can seek a divorce before the completion of 18 years whether consummated or not.
Drafting of the Petition-
After the narration of the facts of a case by the party, the divorce lawyer prepares the petition accompanied by other documents such as the income tax statement, assets, identity of the parties, and details of their professions. In the presence of the notary or the commissioner the petitioner signs the petition and the vakalatnama.
Filing of the Petition-
The petition along with relevant documents may be filed in the family court having jurisdiction where:
- The party seeking a divorce is currently residing
- Where the parties last lived together after marriage
- Where the marriage was solemnized
The court keeps in mind other matters relating to the divorce such as:
- Maintenance – A maintenance petition can be filed by the wife under section 125 of CrPC and under personal laws
- Custody of child – Through the lawyers, the parties can file a petition for the custody of the child.
Notice to the other party-
The court after hearing the arguments of the divorce lawyer representing the petitioner and upon satisfaction issues notice to the other party with the copy of the petition to appear on the next hearing along with their lawyer.
Recording of Evidence-
The court after hearing the arguments of both the parties and upon their cross-examination shall record the evidence given. The divorce lawyers representing the parties are required to give their final arguments after which the court pronounces the final decree of divorce.
An appeal can also be filed against the decision of the court within 3 months of the passing of the decree by the court.
2) Mutual divorce
In this type of divorce both the parties agree to terminate the marriage. Reaching consensus upon the decision of divorce and also other aspects such as maintenance, custody, etc. is a crucial element of mutual divorce
Section 13B of the Hindu Marriage Act 1955 states the provisions relating to the mutual divorce.
Filing the Joint Petition-
The joint petition is filed through the help of a divorce lawyer in the family court where the spouses last lived together, where the marriage was solemnized or where the wife is currently residing.
The couple must prove three things:
- That they have been living separately for a period of one year or more immediately preceding the date of the petition.
- That they are unable to live together as a married couple.
- That they mutually agree for the termination of their marriage.
The petition must be signed by both the spouses.
Recording of statements-
After the filing of the mutual divorce petition, the parties must appear before the court with their divorce lawyers/ counsels. The court after examining the petition and other relevant documents provided by the parties records the statement of the parties.
The procedure followed in the court-
After recording the statement the court passes the first motion and adjourns the matter for a statutory period of six months. This period can be extended up to 18 months after which the parties have to file a second motion stating that they still mutually agree for getting a divorce. However, the said period is not mandatory. The court may waive off the 6 months period depending upon the facts and circumstances of each case. The party or parties may even withdraw their consent between the 6-18 months period.
Decree of divorce by the court-
The court after being satisfied that there are no chances of reconciliation and that the allegations made are true and the parties are at a consensus regarding the matters of divorce, maintenance, custody, assets, etc. shall pass a decree of divorce that the marriage stands dissolved.