How To File A Divorce Case in India

How To File A Divorce Case in India

How To File A Divorce Case in India

Marriage is a very sacred union between two persons and their families. It is considered to be a union for a lifetime but sometimes this it is not in the hands of the person to continue the marriage due to various reasons like cruelty, Adultery, incompatibility, etc then it is better to end such a union. Divorce case puts the marriage to an end and the parties revert back to their unmarried status and are once again free to marry. It leads to the canceling of legal responsibilities and duties of marriage, thereby dissolving the bonds of matrimony between a married couple under the particular rule of law of the country or state.

Section 13 of the Hindu Marriage Act lays down the various grounds for divorce case namely::

1.    Cruelty- It can be mental or physical cruelty to either wife or husband. It can be in any form of some violence, attitude or mere silence.

2.    Adultery- it is a consensual physical relationship between a married man and any other woman apart from his wife. Though Adultery is no longer a criminal offense yet it is a ground for the divorce case.

3.    Dissertation- When one of the spouses leaves the other without any specific reason then it becomes one of the grounds for the divorce case.

4.    Insanity- if either husband or wife is suffering from any kind of mental disorder so it becomes next to impossible to live with such a person.

5.    Leprosy- it is also one of the grounds for divorce case but if the leprosy is curable then it is not a ground for the divorce case.

6.    Venereal Disease- It is a long term disease in a communicable form.

7.    Conversion- If either of the husband or wife has converted into any other religion.

8.    Renunciation of World- It means that husband or wife has given up all the worldly pleasures i.e. they have become sadhu's or entered some religious order.

9.    Presumption of Death- A person is presumed to be dead if he or she has not heard alive for at least seven years.

The special grounds on which a wife can file for divorce case are:

1.    Bigamy/Polygamy- the wife can file for a divorce case if her husband has one or more wives other than her.

2.    Rape, Sodomy, and Bestiality- Rape is sexual intercourse without the consent of women. Though the marital rape is not a crime under the Indian Penal Code it is a ground for filing the divorce case. Sodomy is anal intercourse between husband and wife and Bestiality is sex with an animal and is an unnatural offense.

3.    Repudiation of Marriage-The girls who were married before attaining the age of 15 years can file for the divorce case.

Sometimes the relationship between the husband and wife becomes so strained that it becomes impossible for them to co-habitat together no matter how much they have tried to save their marriage. The marriage has broken down so badly that there is no reason for them to stay together. This is known as the irretrievable breakdown of the marriage. The husband and wife have a complete absence of emotional attachment between them and have developed intense hatred between them. In such a situation for taking the divorce case, the husband and wife should stay separately for at least for a time period of one year or more than that.

When husband and wife both mutually agrees that they cannot live together and mutually decides for filing the divorce case then such a kind of divorce case is known as divorce by mutual consent.

The procedure for filing a divorce case in India:

1.    Both the parties (husband and wife) must file a divorce case petition either together (in case of mutual consent) and one of the party can file it in the competent court. The competent court means the court having the jurisdiction. The court which has jurisdiction is where the husband and wife lived last as a married couple, where the marriage was solemnized or where the wife resides. The petition must be signed by both the parties.

2.    Along with the petition documents like Affidavit, a photograph of the parties to the divorce case, address proof of the parties (Aadhar Card, Voter ID), and marriage certificate must be attached.

3.    After the filing, the petition, both the parties along with their respective lawyers appear before the court. The court observes the petition and makes attempts to bring reconciliation between the husband and wife. If the reconciliation fails to happen then the matter proceeds.

4.    The court order for recording the statements of both the parties on oath.

5.    After recording the statements, the court grants the first motion and gives six months time to both the parties for filing the second motion. In the cases where the husband and wife have settled their disputes regarding alimony, child custody, etc then the court may waive off the 6 months time period. The maximum time period for filing the second motion is 18 months.

6.    If there is an issue of maintenance, child custody, property, etc then the case is transferred to Mediation for settlement. If both the parties fail to settle they are disputed then they can argue in the court for the same.

7.    After the filing, the second motion the husband and wife again have to make appear before the court.

8.    If the court is satisfied after hearing both the parties that the allegations in the petition are true and that there cannot be any possibility of reconciliation and cohabitation, it can pass a decree of the divorce case.


eStartIndia Team

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