Divorce Petition shall be filed under Section 13 (Contested Divorce) or Section 13 (B) (Mutual Divorce) of The Hindu Marriage Act, 1955. However, under Section 14 of the Act, no petition for divorce to be presented within one year of marriage.
CONTESTED DIVORCE – Section 13 of the Hindu Marriage Act, 1955 provides the grounds for filing a contested divorce, some of which are, cruelty, conversion of religion, unsound mind, communicable disease or either spouse is unheard of more than seven-year.
Grounds on which petition for Divorce (Contested Divorce) can be filed:
- Adultery- When either of the spouses had voluntary sexual intercourse with any person other than his or her spouse.
- Cruelty- When either of the spouses treated the other with cruelty. Cruelty is defined as a willful act that can cause danger to body, limb, life or to mental health. It can include causing pain, abusing, torturing physically or even mentally.
- Desertion- When either of the spouses has deserted the other for a continuous period of not less than two years. Desertion means when a spouse willfully abandons another without any intention of coming back.
- Religious Conversion- If either of the spouses ceases to be a Hindu by conversion to another religion.
- Mental Disorder- When either of the spouses had been incurably of unsound mind or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the other party cannot reasonably be expected to live with him.
- Suffering from Communicable Diseases and Leprosy- When either of the spouses has been suffering from a virulent and incurable form of leprosy or any venerable disease in a communicable form.
- Renounced of the world- When either of the spouses has renounced the world by entering any religious order.
- Not heard for 7 Years – When either of the spouses has not been heard of as being alive for a period of seven years or more.
Steps/Procedure for a Contested Divorce
Step 1: Drafting of a petition stating all the relevant facts and grounds for seeking a decree of divorce.
Step 2: The petition for divorce is to be filed in a Family Court having jurisdiction where (a) the marriage was solemnized (b) the other party resides (c) in case the wife filed a petition, where she is residing (d) the petitioner is residing at the time of the presentation of the petition, in a case where the other party is, at that time, residing outside India, or has not been heard of as being alive for a period of seven years or more.
Step 3: Upon satisfaction, the Family Court issues a summons and seeks reply from the other party.
Step 4: Court may suggest parties for exploring the settlement through mediation and only if the mediation fails to resolve the issues, the court continue with the divorce proceedings.
Step 5: On date fixed by the court for hearing, both the parties will appear before the court, record their statements, submit evidence in support of their case, examine themselves, get cross-examined/ cross examination of witnesses, if any.
Step 6: Counsels for both the parties present their final arguments.
Step 7: On date fixed by the court, court deliver the verdict and pass a divorce decree.
MUTUAL DIVORCE – Section 13 (B) of the Hindu Marriage Act, 1956 provides the grounds for filing a divorce petition through mutual consent.
Grounds on which petition for Divorce (Mutual Divorce) can be filed:
- When both the spouses have been living separately for a period of one year or more.
- When both the spouses have not been able to live together.
- And both the spouses have mutually agreed that the marriage should be dissolved.
Steps/Procedure for a Mutual Divorce
Step 1: Drafting of a joint petition by the spouses stating all the relevant facts and grounds for seeking a decree of divorce.
Step 2: The petition for mutual divorce is to be filed in a Family Court having jurisdiction where (a) both the spouses last lived (b) the marriage was solemnized (c) the wife is residing.
Step 3: Family court examine the petition along with the documents and may suggest parties for exploring the settlement through mediation and only if the mediation fails to resolve the issues, the court continue with the divorce proceedings.
Step 4: Statements of the spouses are recorded by the court on oath.
Step5: Once the statements are recorded, an order on the first motion is passed by the court. Further to this, six months time period is given to the spouses before they can file the second motion.
Step 6: Once the parties have decided to go further with the proceedings and appear for the second motion, they can proceed with the final hearings. This includes appearing and recording of statements before the Family Court. (Recently Supreme Court held that the transitional period of six months can be waived off in some cases at the discretion of the Court).
Step7: In a mutual divorce, both the spouses must have given their consent and there shall not be any differences left in the matters related to contentions regarding alimony, custody of child, maintenance, ownership of property, etc.Thus, there needs to be complete agreement between the spouses for the final decision on the dissolution of marriage.
Important Aspects w.r.t Divorce:
# Fastest Way – Divorce through Mutual Consent is the fastest way to get a divorce where both the spouses agrees and are in favor of divorce.
# Maintenance – Maintenance or alimony is the financial assistance provided by the husband/ wife to his/her spouse. It could be a lump sum one-time payment or paid at regular intervals and can be either permanent or temporary.
# Husband’s Liability – Husband cannot walk away from his liability to maintain his unmarried wife on the ground that wife is also earning. Husband is still under obligation to pay maintenance to his unmarried wife if her income is not sufficient enough to sustain her.
# Children Custody – Courts take certain factors like the welfare of children, financial condition, safe environment, education into consideration before granting the custody to either of the party. Custody can be of following types: Physical Custody – The child shall be living with one of the parents, and the other parent can visit and meet the child; Joint Custody – Instead of living with one parent, the child can live with both parents in rotation. The time duration can be decided by the parties or the Court; Legal Custody – The parent who has legal custody means that he/she has the right to take a decision for his/her children; & Third-Party Custody – If neither the father nor the mother is fit to take care of the child, the court can appoint the third party to act as guardian.
# Re-Marriage – In case of mutual consent divorce, there is no time bar on remarrying. However, in case contested divorce, 90 days time frame is provided to parties to file an appeal. If there is no appeal, then the person can remarry.
