Divorce is often the most challenging phase couples face during their married life. Though the divorce rate is around 1%, dissolving a marriage requires emotional hurdles and legal complexities. The divorce laws in India address several aspects such as divorce, breakdown of marriage, and adultery. On top of that, when you share a home with anyone, dividing the marital assets and debts is another crucial element. Especially when women receive less than half of marital assets, it is vital to understand legal flights. Also, with children’s involvement, navigating child custody arrangements and financial support becomes another critical consideration. To help you give clarity about how you should proceed with the whole situation, here’s a guide!
Different Types of Divorce Petitions in India
The way you file for divorce depends on your situation and your relationship with your spouse. Here are the two types of petitions followed in divorce laws in India:
1. Mutual Divorce
If both the husband and wife mutually end their marriage, the couple can seek a divorce from the court. However, this does not mean the marriage dissolves right away. When the petition is accepted, it is essential to show that the couple has been living separately for more than a year or two. Sometimes, a divorce petition can be applied not because of the tussle between the husband and wife, but because of financial problems. According to the latest divorce laws, there are three aspects when seeking a divorce:
1. The minimum and maximum amount of time that both the husband and wife need from each other.
2. The matter of child custody – it is recommended to get custody lawyers. When the divorce is finalised, then the divorce can decide who will take custody of the child.
3. How much share of the property will the husband and wife get?
2. Contested Divorce
This type of divorce is filled for couples who are unable to reach an agreement in terms of their separation. It involves disagreements on various grounds such as property division, divorce, spousal support, and child custody. In this context, finding a family lawyer in India is crucial. You have to find documents and evidence for your claims, like medical records for cruelty or financial statements for division. The judge considers evidence and arguments before a final decree regarding the divorce settlement.
How to File Divorce in India
Dissolving a marriage in India involves legal processes governed by the Divorce Act (1869) and various other regulations. Here’s a breakdown of how to file for divorce in India:
1. Eligibility and Grounds
At first, you have to understand the grounds for divorce as per Indian law. These include adultery, cruelty, desertion for 4+ years, mental illness, and irretrievable breakdown of marriage (lasting separation).
2. Jurisdiction
Now, you have to determine the appropriate court to file your petition. This typically depends on where you and your spouse last resided together for a year.
3. Gather Documents
Collect essential documents like a marriage certificate, address proof for both parties, income tax statements, and evidence supporting your grounds for divorce (e.g., medical records for cruelty).
4. Petition Drafting
Now, you need to consult a lawyer to draft a petition outlining the reasons for divorce, details of the marriage, and any existing agreements regarding child custody or property division.
5. Filing the Petition
Once finalised, you have to submit the petition along with supporting documents to the designated court. In this situation, the court fees will apply. Service of Notice: The court will serve a notice on your spouse regarding the petition. They have a timeframe to respond.
6. Mediation (Optional)
Courts often encourage mediation, where a neutral third party facilitates communication and explores possibilities for an amicable settlement. If mediation fails or is not pursued, court hearings will be scheduled to present evidence and arguments.
7. Decree
The court will issue a decree (final order) granting divorce, outlining child custody arrangements (if applicable), and property division. This decree can be contested by either spouse within a specific timeframe.
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Documents Required to File a Petition for Contested Divorce
When you are going for a dissolution of marriage, you must know about the documents you need to file for a divorce. Following are the documents you need to file a divorce:
1. Address proof of husband and wife
2. Marriage certificate
3. Four passport-size photographs of husband and wife
4. Income tax statements of the last 2-3 years
5. Details of the property owned by the petitioner
6. Details of present remuneration and profession of the petitioner
7. Evidence of both parties living separately
Grounds for Marriage Annulment in India
As per Section 10 of the Indian Divorce Act of 1869, the District Court can dissolve the marriage after the solemnisation. Below are the grounds that you need to keep in mind when looking for the best divorce attorney near you:
1. Adultery
2. Refusal of consummating the marriage
3. Converted to another religion
4. Unsound mind for two years before filing the petition
5. Suffering from venereal communicable disease for not less than 2 years
6. To comply with a decree for restitution of conjugal rights for a period 2 years or more
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What is the Decree for Dissolution of Marriage?
It depends on the court whether to pass a decree – when the court finds adequate evidence, the decree for dissolving the marriage can be passed. When the court does not find enough pieces of evidence, the court will not pass a decree. On the following rounds, the court will not pass a decree:
1. If the petitioner is guilty of adultery
2. If the petitioner has shown cruelty towards the other party
3. If the petitioner has separated or deserted without any cause
4. If the petitioner shows an unreasonable delay in prosecuting the defendant
Now that you have clarity on how to proceed, you can finally take the next step. Remember, navigating these legal complexities can be complex when it comes to contested cases. For this reason, consulting with family lawyers in India is crucial. They can guide you through the process effectively, represent your interests in court if necessary, and ensure a fair outcome that upholds your rights throughout this challenging time. Understanding your legal options and having an experienced lawyer can significantly make a difference in achieving the result you are looking for.
Frequently Asked Questions
1. What are the new rules for divorce in India?
In May 2023, the Supreme Court recognised that couples can seek divorce if their marriage has irretrievably broken down. There is no requirement for proving cruelty, adultery, or any other wrongdoings.
2. What are the rights of a wife in a divorce in India?
In India, wives have rights to fair division of marital property, alimony (financial support) under certain circumstances, and child custody arrangements during a divorce. These rights are protected under various laws like the Hindu Marriage Act and the Code of Criminal Procedure.
3. How much a wife can claim in divorce in India?
According to the divorce laws in India, A wife cannot claim ownership of her husband’s property solely due to marriage annulment. However, she can claim maintenance (spousal support) based on her needs and her husband’s income. If the property was jointly owned, she could seek a fair division based on her contribution to its acquisition.
4. What is the 7-year rule for divorce in India?
One of the grounds for the divorce laws is that the dissolution of marriage can happen when the other spouse is missing or unheard of for more than 7 years. This allows the other spouse to file for divorce if they want to remarry.
6. Is 1-year separation mandatory for divorce?
In India, the mandatory separation period depends on the type of divorce. For a contested divorce, there’s no mandatory separation. However, for a mutual consent divorce, both spouses need to be living separately for at least one year before filing.
