The Author, Divyansh Rathi is Managing Partner, Lexidem & Rathi - A Global Law Firm. He is practicing in Supreme Court and Delhi High Court .
Introduction
Divorce is a process by which the marriage between two adults comes to an end which may be solemnized under different laws like Hindus which includes Sikhs, Jains, Buddhists are governed by the Hindu Marriage Act,1955 while Christians are governed by Indian Divorce Act, 1869 and the Indian Christian Marriage Act,1872.
The Muslims are governed by Personnel laws of Divorce and also the Dissolution of Marriage Act,1939 and the Muslim Women (Protection of Rights on Divorce) Act,1986. Similarly, Parsis are governed by Parsi Marriage & Divorce Act-1936. Apart from the above laws, other marriages are governed by the Special Marriage Act,1954.
Section 13B, inserted in the Hindu Marriage Act in 1976 to introduce divorce through mutual consent, provides for a total 18 months before a decree for divorce can be passed.
Under Section 13B(1), a divorce petition can be moved by a couple following a judicial separation of one year. This may be followed by another six months of waiting period under Section 13B(2) for getting a decree.
Supreme Court in Amardeep Singh v. Harveen Kaur (2017) 8 SCC 746 has stated that provision of Section 13B(2) is not mandatory but directory. Apex Court has stated that, the courts can grant divorce after waiving of six months' waiting period on being satisfied that the "waiting period will only prolong their agony" and that all efforts of conciliation have been futile. The courts, waiving of the cooling off period will also consider whether the estranged couple has settled all differences relating to alimony, custody of children etc.
Section 14 provides that No petition for divorce to be presented within one year of marriage provided that the Court may, upon application made to it in accordance with such rules as may be made by the High Court in that behalf, allow a petition to be presented [before one year has elapsed]since the date of the marriage on the ground that the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent, but, if it appears to the Court at the hearing of the petition that the petitioner obtained leave to present the petition by any misrepresentation or concealment of the nature of the case, the Court may, if it pronounces a decree, do so subject to the condition that the decree shall not have effect until after the [expiry of one year] from the date of the marriage or may dismiss the petition without prejudice to any petition which may be brought after the[expiration of the said one year] upon the same or substantially the same facts as those alleged in support of the petition so dismissed.
The Divorce Proceedings can take place by adopting two procedures which are as follows:
- Mutual Divorce is a legal process of separation, when both the husband and wife want to separate with their own will after marriage, is called at Divorce with Mutual Consent. Both husband and wife can apply for the divorce by mutual consent.
- Contested Divorce or divorce without mutual consent is filed without the prior approval of either of the spouse (husband or wife). Common ground for filing such divorce petition is cruelty, adultery, desertion, conversion, mental disorder, communicable disease, presumption of death or in case of renouncing the world.
The Procedure for Filing for Mutual Divorce:
- Important Issues to be Settled before Proceeding:
- Child Custody: Which partner will get the child custody after divorce
- Alimony/Maintenance: If one of the partner is unable to meet his daily expenses then other needs to pay him a certain sum of amount as alimony (one time settlement or monthly payment). It is subject to mutual understanding between the partners (husband and wife).
- Settlement of Property and Assets: Settling the ownership rights of property and asset like dwelling house, bank accounts, movable assets between the parties (Husband and wife)
- Requirement of Documents for filing Mutual Divorce Petition:
- Marriage Certificate
- Address Proof - Husband and Wife.
- Four Photographs of Marriage.
- Income tax Statement of last 3 years.
- Details of profession and Income (Salary slips, appointment letter)
- Details of Property and Asset owned
- Information about family (husband and wife)
- Evidence of Staying separately for an year
- Evidence relating to the failed attempts of reconciliation
- Where can the Mutual Divorce Petition be filed?
- Where the couple was last residing as husband and wife,
- Where the husband or wife is presently residing.
Steps to be undertake to Dissolve the Marriage by Mutual Consent:
Step 1: Filing of the Petition in the Family Court
Joint petition for dissolution of marriage for a decree of divorce is presented to the Family Court by both the spouses on the ground stating that they have not been able to reconcile the differences and live together. Thus, have mutually agreed to dissolve the marriage or they have been living separately for a period of one year or more. This petition has to be signed by both the parties.
Step 2: Appearance before the Family Court Judge for First Motion for Divorce
Both the parties will enter their appearance in the Court along with their legal counsels. Family Court Judge will go through the contents of the petition along with all the documents presented in the Court. Court may attempt to reconcile the differences between the spouses, however, if this is not possible, the matter proceed further.
Step 3: Statement on Oath
After going through the contents of the application, Court may order the party's statements to be recorded on oath.
Step 4: First Motion order is passed, 6 Months Time period is given for the Second Motion
An order on the first motion is passed by the court. After this, a six months period is given to both the parties to a divorce, before they can file the second motion. The maximum period to file for a second motion is 18 months from the date of presentation of the divorce petition in the family court.
Step 5: Second Motion hearing and Final Decree
Once the parties have decided to go further with the proceedings and appear for the second motion, they proceed with the final hearings. This includes parties appearing and recording of statements before the Family Court.
If the court is satisfied after hearing the parties that the contents in the petition are true and that there cannot be any possibility of reconciliation and cohabitation and the issues pertaining to alimony, custody of children, properties etc are settled, Court can pass a decree of divorce declaring the marriage to be dissolved.
Divorce becomes final once the decree of divorce has been passed by the court.
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