What Is The Divorce Procedure In India? (Mutual Consent & Contested)

Last updated 5 Sep 2019 . 1 min read

divorce procedure in india divorce procedure in india

Marriage is considered as the coming together of people however it also formulates into a binding legal contract. Under the contract of marriage, it becomes a process by which two individuals obligate themselves to be partners for life.

(Also Read: What Questions To Ask A Boy Before Arranged Marriage?)

However like every other thing in life, marriage doesn’t always come with a finality and even when one person walks out of it, the legal obligations still stay put, hence there stay certain contractual obligations to the other.

(You might also like to Read: Why Even a Perfect Life-Partner Doesn’t Guarantee Happiness In Life)

What is divorce?

The process by which legal obligations are met with during the annulment of the union is called a divorce. This is done keeping In view that men or women aren’t able to simply walk away from the partnership without having to care about the responsibility of their partner’s well being.

What is the process of getting a divorce in India?

Divorce can be granted in two processes :

#1. Divorce by Mutual Consent.

#2. Contested Divorce.

Divorce By Mutual Consent in India

Divorce by mutual consent is when both the parties agree for a peaceful separation. It is a simple way of coming out of the marriage and dissolves it legally. The main component of such a divorce is the mutual consent of the husband & wife. There are certain aspects to which the Husband & Wife have to reach a consensus. The first is the alimony or maintenance issues. As per Law, there is no minimum or maximum limit of maintenance. It could be any figure. Another consideration is child custody. Both the parties have to come to a consensus over these two topics.

Divorce by mutual consent can be filed when the husband and wife have been living separately for at least 1 year and have mutually decided to end their marriage. A joint divorce petition is filed by the divorcing couple in the court. In this form of the divorce petition, the terms and conditions of such a divorce are reached through an amicable consensus.

(Also read: 15+ women rights in India that protect you.)

Divorce by mutual consent is filed under Section 13B of the Hindu Marriage Act, 1955. After the petition is filed the court gives a six-month cooling off period. The Supreme Court decided that if the marriage seems to be completely irreparable, the court may waive-off this cooling period. Once the cooling period is passed, a second motion is filed and the court grants a divorce.

How long does it take to get a divorce in India?

The divorce is granted by the court in approximately 18- 24 months. However, the spouses can withdraw their divorce petition during this 18 months period and no divorce will be granted by the court. Any spouse can withdraw the mutual consent divorce petition and file a contested divorce through a separate divorce lawyer.

The divorce petition is in form of an affidavit, which is to be submitted to the family court. Once the petition is filed and the formalities of the court are completed, there is generally an adjourning the matter for a period of 6 months. After the lapse of a period of six months, the parties are expected to present themselves again in the court for forwarding of the second motion so as confirming the mutual consent filed earlier. It is only after these processes are completed that the decree of the divorce is granted by the court.

Contested Divorce Procedure in India

As the name suggests, you will have to contest it. Divorce is filed when one of the spouses decide to divorce the other without his/her consent. This petition is filed in a court with help of a divorce lawyer, and the court sends a divorce notice to the other spouse.

The first step in a divorce proceeding is to hire a divorce lawyer to represent your interest in the court. File a divorce petition against your spouse. To file a divorce petition in India, the divorce lawyer also submits the following documents along with the divorce petition:

  • Income Tax statement
  • Identity proof of the spouses
  • Details of their professions
  • Properties or assets owned

Once the divorce petition is heard by the court, it sends a divorce notice to the spouse and asks them to appear in court and answer the divorce petition. Other affidavits and Vakalatnama is also submitted to the court along with the divorce petition. The court also keeps in mind other areas relating to divorce in India like:

  1. Maintenance: The wife can file a maintenance petition for herself and her child when she is unable to financially support herself. A maintenance petition can be filed under Section 125 of CrPC and under the specific personal laws applicable to the divorcing couple. The court grants maintenance to the wife after considering factors like the husband’s salary, his living expenses, his dependents, etc.
  2. Child Custody: A petition for child custody can be filed by either of the spouses through lawyers. The court grants the custody of the child considering child’s age and what is in the child’s best interest.
  3. Division of jointly-owned property: When the husband and wife own some property jointly, it is important to divide these assets with help of a divorce lawyer.
  4. Other things: If the divorce petition is filed on the grounds of domestic violence or dowry harassment, the wife can also file a criminal case against the husband. An FIR can be filed against the husband and a separate criminal trial will start against the husband if the complaint is genuine.

Rights of women in a divorce

As per section 18 of the Hindu Adoptions and Maintenance Act,1956 a Hindu wife is entitled to claim maintenance from her husband if he is guilty of cruelty, conversion, desertion, adultery, polygamy or has a venereal disease, thereby enforcing her rights in divorce

The Muslim Women (Protection of Rights on Divorce) Act, 1986

This law protects a Muslim woman’s rights in divorce; Section 3 of this act provides that Mahr and other properties of a Muslim woman are to be given to her at the time of divorce. It entitles a Muslim woman to

  • Reasonable and fair amount of maintenance during Iddat period
  • Where she herself maintains the children born to her before or after the divorce, a reasonable and fair provision and maintenance is to be paid by the former husband for a period of 2 years from the dates of birth of such children;
  • An amount equal to the sum of mahr or dower which was agreed upon at the time of marriage;
  • All gifts and other properties were given to her at the time, during or after the marriage.

Also, section 4 of this act provides that if a divorced woman is unable to maintain herself after the iddat period, then her relatives who are entitled to inherit her property on her death as per Muslim Law, may be ordered by a magistrate to maintain her, keeping in regard her standard of living prior to divorce and capacity of such relatives. The amount of such reasonable and fair maintenance would be payable by such relatives in the proportions in which they would inherit her property.

Section 125 of the Criminal Procedure Code

It is a secular provision with the noble objective of securing a woman’s rights in divorce. Under this provision, a wife can claim maintenance no matter what religious faith she follows. It provides speedy relief to a distressed wife who may have been stranded by her husband. To claim maintenance under this act, a woman litigant has to prove marriage and demonstrate that she is unable to maintain herself.

(Also read: 5 Laws every working women should know about.)

Divorce Procedure according to Religion in India

In India, laws of divorce for different religion are different. Each of the following laws governs their corresponding religion:

  • Hindu Marriage Act, 1955, which includes Sikh, Jain, Budh.
  • For Christians it is, Divorce Act-1869 & The Indian Christian Marriage Act,1872.
  • For Muslims, the divorce procedure is governed by Personnel laws of Divorce & The Dissolution of Marriage Act,1939 & The Muslim Women (Protection of Rights on Divorce) Act,1986.
  • For Parsis, it is The Parsi Marriage & Divorce Act-1936.
  • For all the other religion and common issues Special Marriage Act,1954 is followed.

There was a requirement of strong laws which focuses on rights of women in case of divorce in India, the recent amendment has brought the following changes.

In case of divorce, Woman will have 50% share in the residential property of a man

  • The wife will have to take the initiative of seeking her share in such cases.
  • Women and children will also have rights in the other assets of man, which will be decided by the court.
  • It does not matter if the property was acquired by before or after the marriage.

How much does it cost to file divorce in India?

It may cost you between 10,000 INR to 80,000 INR depending on your city and the type of lawyer you hire.

Hope I have covered all the points for starting a divorce procedure in India. Let me know if I missed anything.

Fakiraah Irfan

Share the Article :