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10 Things to know about Divorce in India

10 Things to know about Divorce in India

1.      Divorce proceedings in India are very complicated and it is very tough to go through the proceedings for both men and women as it is a long time process especially in the contested divorce cases.

2.      First of all, lawyer plays a key role for the success in the divorce proceedings and hence you need to select an experienced lawyer particularly in this subject dealt with more specific issues in the divorce laws.  Initially, he may try to settle the matter amicably between the parties and to continue their marital life together for welfare of children and family.

3.       Divorce can be of two forms, contested divorce and mutual consent divorce.

4.   Divorce by mutual consent can be obtained only if both parties agree to end their matrimonial relationship.  You may get divorce within one year from date of filing of the case.

5.       In contrast, divorce in contested case, i.e. if your spouse opposes for giving divorce, and gets ready to contest the case filed by you, you need to establish the grounds sought in your petition seeking divorce.  Court should get satisfy the grounds you sought and upon scrutinizing the evidence and the statements submitted by both parties, may grant divorce considering various factors like child custody, maintenance and property issues along with the main relief of divorce.  Court if not satisfied with the grounds and facts you mentioned in the Petition, can reject the Petition for divorce. Joint properties would be divided accordingly to both parties.  In these cases, it may take at least 3-4 years to get the decree of divorce.

6.     Grounds available for seeking divorce are Adultery, Cruelty, Desertion, Conversion of religion, Insanity, leprosy, communicable disease, Renunciation of world for religious purpose, and not heard alive for seven years.

7.       The court may grant ex-parte decree of divorce if other spouse not appeared before court even upon the effective service of summons intimating the case filed by the Petitioner seeking divorce. However, such decree can be set aside by the other spouse if he/she wants to contest the case and such Petition should be filed within 90 days from the date of decree or from the date of receipt of the decree.

8.     Court may also grant interim maintenance to the Respondent wife during the divorce proceedings or at the end of the proceedings may grant a lump sum amount in the name of Alimony usually to wife and children to be paid by the Husband Petitioner.

9.       Maintenance can also be obtained by wife under Section 125 Criminal Procedure Code parallel to the divorce proceedings.  Award of maintenance would be based on following factors such as financial status of both parties, dependents, movable properties of husband

10.  Child custody the most crucial aspect, courts look into the financial positions of both parties, however, minor children especially below the age of 5, are always given custody to mother and older children aged above 9 years are given custody to the parents based on the financial conditions and their parenting skills. Courts always give much importance to the welfare of child while taking decisions of child custody.  Visitation rights are available for the parent who is denied of the child custody.

What is the process involved in getting a divorce from start to finish?
  1. The first condition for obtaining divorce is that the couple had lived separately for at least one year, abstained from performing matrimonial obligations and wanted to dissolve their marriage legally.
  2. If the application for divorce is by mutual consent, consent of both parties to marriage is required. It is always advisable that the couple should come to the conclusion on the custody of child if they had, return of properties prior to the divorce proceedings in mutual consent cases.
  3. Party should give Vakalatnama to his/her Advocate whom he/she appointing as his/her lawyer to proceed the divorce proceedings in the family court.
  4. If it is a contested case, the grounds for divorce under Hindu Marriage Act could be cruelty, adultery, desertion, mental disorder, renunciation, communicable disease, conversion of religion, and inability to cohabit, not heard for seven years (for Muslims it is 4 years).  Additional grounds for filing petition include, husband living with wife of his previous marriage held prior to enactment of Hindu Marriage Act, if husband found guilty of rape, or anal intercourse or sexual acts with animals, if the wife awarded with maintenance under Hindu Adoption and Maintenance Act, 1956 or under section 125 of the Code of Criminal Procedure, 1975, and despite this if conjugal relationship between parties failed to resume within one year from the date of order of maintenance, or if wife got married before 15 years of her age and rejected marriage not below 18 years. Applicant should prove the grounds quoted in the Petition for grant of decree of divorce.
  5. Application to be filed before Court along with proof of marriage, income papers, and property documents if required.
  6. After filing of the application, court may fix the hearing after six months from the date of application as court thinks that issues between parties could get solved amicably during that 6 months period. Application becomes void on that instance if the parties to Application not appeared before court after the six months period.  Also, parties are allowed to withdraw the application within six months period.
  7. Notice will be ordered to the other party (spouse) in the contested divorce cases upon filing the Petition.
  8. Counseling may be ordered by Court initially in an effort to bring the parties together for the welfare of the family.
  9. In contested cases, interim Maintenance, i.e., provision of financial assistance may be ordered by the court if required, during the proceedings or even before the divorce proceedings if the application is filed by the wife depending upon the income status of husband and wife. Court may reject the Petition for divorce if grounds for divorce not proved by the Petitioner with substantial evidence.
  10. In mutual consent cases, alimony a fixed amount will be decided by the parties, whereas in the contested cases, it is fixed by the court on the circumstances of each party. After hearing the parties if the court satisfied the terms of mutual consent agreed between parties in the aspects of child custody, return of properties, alimony etc., court grants mutual divorce decree to the parties.
  11. Procedure for obtaining divorce is almost the same under the all religious marriage Acts (personal laws) with slight variations.

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