Marriage is often perceived as an unbreakable bond, a lifelong commitment. However, when a once-loving union turns sour and becomes unbearable, divorce may be the only recourse. In India, where the institution of marriage is held in high regard, obtaining a divorce is not a straightforward process. This blog post provides an in-depth overview of divorce in India, outlining the different types of divorces, the grounds for divorce, and the steps involved in filing for both contested and mutual consent divorces.
Hindu Marriage and Its Permanence
Hindu marriage is traditionally considered a lifelong commitment, almost sacred in its permanence. Despite this, Hindu Dharma Sastras recognize that certain exceptional circumstances may warrant the dissolution of marriage. While India places a strong emphasis on preserving marriages, it’s essential to understand the legal processes for divorce.
Contested Divorce vs. Mutual Consent Divorce
- Contested Divorce: This type of divorce is sought when one party desires a divorce, while the other wishes to reconcile. When the couple cannot agree on essential issues that would allow for an amicable separation, it is referred to as a contested divorce.
- Mutual Consent Divorce: In cases where both spouses agree to end their marriage without disputes, it is referred to as mutual consent divorce. This process typically involves less conflict and is more straightforward compared to a contested divorce.
Mutual Consent Divorce in Detail
Under Indian law, mutual consent divorce can be filed under various marriage acts, including the Hindu Marriage Act 1955, Special Marriage Act 1954, Divorce Act 1869, Parsi Marriage Act 1936, and the Christian and Muslim Marriage Acts. To initiate this process, specific conditions must be met:
- The marriage must have lasted at least one year.
- The spouses must have lived separately for one year or more.
- They must be unable to live together.
- Both parties must mutually agree that the marriage has irretrievably broken down.
Steps Involved in Mutual Consent Divorce
- First Motion: The couple jointly files a divorce petition, declaring their inability to live together. This petition is presented to the family court, signed by both parties.
- Appearance Before the Court: Both spouses, along with their respective lawyers, appear in court to record their statements.
- Court Examination and Reconciliation Attempts: The court may attempt reconciliation between the spouses. If unsuccessful, the court proceeds with recording the statements of both parties.
- First Motion Order: After reviewing the case, the court passes an order on the first motion for divorce.
- Cooling-Off Period: A mandatory six-month cooling-off period is imposed to allow the couple to reconsider their decision.
- Second Motion: If both parties remain resolute about the divorce after the cooling-off period, they can proceed with the second motion within 18 months of filing the first motion.
- Final Decree: Once the court is satisfied with the claims made in the petition and the absence of any chance for reconciliation, a decree of divorce is issued, finalizing the divorce.
Contested Divorce: A Complex Journey
A contested divorce is pursued when one spouse wishes to divorce, and the other is resistant to the idea. Grounds for contested divorce in India include adultery, cruelty, desertion, mental disorder, and more. Here is an overview of the steps involved in a contested divorce:
- Consultation with a Lawyer: Seek legal counsel to assess your grounds for divorce and gather supporting documents.
- Drafting the Divorce Petition: Your lawyer will prepare a divorce petition outlining the grounds and allegations.
- Signing the Petition: Both spouses must sign the petition and other relevant documents before an authorized authority.
- Filing the Petition: File the divorce petition in a court with jurisdiction over your case.
- Admitting the Petition: The court will admit the petition and issue a legal notice to the opposing party.
- Mediation Attempt: The court may suggest mediation to resolve disputes before proceeding with the divorce.
- Recording Statements: The court will record statements, evidence, and cross-examinations from both parties and their witnesses.
- Final Arguments: Lawyers present final arguments before the court, which will then issue a judgment and pass a divorce decree.
Conclusion
Divorce in India, whether mutual consent or contested, is a multifaceted legal process. While mutual consent divorces tend to be less contentious, contested divorces involve complex legal procedures and emotional challenges. Before pursuing divorce, couples are encouraged to explore reconciliation, as it can be a lengthy and draining process. Seeking legal counsel is essential for navigating the intricate maze of divorce in India.
