Filing for divorce in India can be a complex and time-consuming process. However, with the help of a lawyer, you can navigate the legal system and achieve a fair and reasonable outcome. I am Supriya gill, a lawyer and the following is a general overview of how to file for divorce in India.
It is important to keep in mind that the process and the laws may vary depending on the state in India. It is highly recommended to consult with a lawyer to understand the process fully and to ensure that your rights are protected throughout the process.
The Process of Filing for Divorce in India
The process of divorce in India can be quite complex and time-consuming. Here is a general overview of the process:
- Drafting of the petition: The very first step is to draft the petition which you are going to file in Court. The Advocate with whom you have consulted constructed the petition.
- Filing for divorce: One of the spouses must file a petition for divorce in a district court. The petition must state the grounds for divorce, such as cruelty, adultery, desertion, or mental illness.
- Service of Summons: After the petition is filed, the court will issue a summons to the other spouse on the behalf of the petitioner, who must respond within a certain period.
- Counselling: The court may order counselling for the couple in an attempt to reconcile them. The Counsellor is an officer of the Court who is an expert in dealing with all these matters. If the counselling is unsuccessful, the case proceeds to the next stage, which is the trial. The trial majorly consists of Examination, Cross-examination and Framing of issues.
- Evidence: Both parties must present evidence to support their case. This can include witness testimony, documents, and other forms of evidence.
- Judgment: The court will consider the evidence and decide on the divorce. If the court grants the divorce, it will also make orders regarding custody of children, maintenance, and division of property.
- Appeal: If either party is unhappy with the court’s decision, they can file an appeal in a higher court.
It is worth mentioning that the Indian legal system is quite complex and the process of divorce can take a long time, sometimes several years. It is advisable to seek the help of a lawyer to guide you through the process.
Explanation of what divorce is?
Divorce is a legal process of terminating a marriage or marital union. After divorce, all the mutual rights and obligations of both parties that come with the marriage come to an end.
This includes the division of assets and property, alimony and child support, and child custody arrangements. It is usually granted by a Court or another competent authority.
Reasons why couples may choose to file for divorce in India?
There can be many reasons why couples may choose to file for divorce in India. The reasons for divorce may vary and be unique to each couple. But the most common of all are:
- Extramarital affairs
- Financial issues
- Lack of communication or breakdown in communication
- Physical, emotional, sexual or any other form of abuse
- Lack of commitments
- Physical abnormalities
- Mental health issues
- Lack of commitment
Grounds for divorce
Grounds for divorce are certain circumstances under which a person will be granted a divorce.
The common grounds for divorce are adultery, cruelty, desertion, conversion, unsound mind, leprosy, venereal diseases, renunciation, the presumption of death, imprisonment, rape, sodomy and bestiality.
1. Adultery
Adultery is sex outside the legal marriage. When either spouse has a sexual relationship outside the marriage it amounts to adultery.
These are the statutory provisions of adultery which treat adultery as a ground for divorce.
Every personal law except Muslim law considers adultery as a ground for divorce but the Hanafi school of Muslim Law recognise adultery as a ground for dissolving a Muslim marriage.
- The Hindu Marriage Act,1955, Section 13(1)(i)
- The Special Marriage Act,1954, Section 27(1)(a)
- Indian Divorce Act, Sections 10(i) and 22
- Hanafi school recognise adultery as a grounds for dissolving a Muslim marriage
- The Parsi Marriage and Divorce Act, 1936, sections 32(d) and 34.
2. Desertion (continuous for not less than two years):
Desertion means the intentional and permanent abandonment of one spouse by the other without the other spouse’s consent and reasonable cause. Desertion isn’t the withdrawal from a place but from a state of things. Desertion, therefore, means withdrawing from the matrimonial obligations.
Elements of desertion:
- Factum of separation
- Animus deserdendi or intention to desert
- Desertion should be without the consent of the petitioner
- Without any reasonable cause
- Two or more years
The onus of proving the desertion and all its elements rests on the petitioner.
Types of desertion
There are different types of desertion:
- Actual desertion
It means the abandonment of the matrimonial home. The spouse deserts with his/her consent. There is no compulsion from others.
2. Constructive desertion
Intentional or unintentional acts of the spouse compelled the other spouse to go away from the matrimonial home.
3. Wilful desertion
Intentionally neglecting to discharge marital obligation amounts to wilful desertion.
Under Muslim law, it is not necessary that husband must wilfully neglect his wife, if he has neglected his wife for 3 years that will be good ground for divorce. In Muslim law, whether desertion is wilful or not is immaterial.
These are the statutory provisions of cruelty which treat adultery as a ground for divorce.
- Hindu Marriage Act, 1955
- Divorce Act, 1869
- Parsi Marriage and Divorce Act, 1936
- Special MAerriage act 1954
3. Cruelty
The idea, meaning and concept of cruelty change from time to time. It is not the same for persons situated in different economic conditions and statuses. Perhaps this is the reason why the Legislature has not defined what Cruelty is.
They left it to the Judiciary to decide what amounts to cruelty to a particular person in a particular set of circumstances.
Cruelty is known as wilful and unjustifiable conduct which causes danger to life, limb or health.
Cruelty can be physical, mental or emotional. If it is physical, the court can easily determine it because such injury is seen directly.
The only thing the Court has to know is how it happened and what is the degree of injury but if it is mental there is difficult to determine cruelty, so, the Court determine what is cruelty through various judgements.
These are the statutory provisions of cruelty which treat adultery as a ground for divorce.
- Hindu Marriage Act, 1955, Section 13 (1)(i-a)
- Divorce Act, 1869, Sec. 10(x)
- Parsi Marriage and Divorce Act, 1936, Sec. 32
- Special Marriage Act, 1954, Sec. 27(1)(b)
4. Insanity
The word mental disorder is mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia.
Insanity as a ground of divorce has two requirements:
- The respondent has been incurable of unsound mind
- The respondent has been suffering continuously or intermittently from a mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.
These are the statutory provisions of insanity which treat adultery as a ground for divorce.
- Hindu Marriage Act, 1955, Section 13 (1) clause(iii)
- Special Marriage Act, 1954, Sec. 27(e)
- Divorce Act, 1869, Sec. 10(iii)
- Parsi Marriage and Divorce Act, 1936, Sec. 32(b)
- Dissolution of Muslim Marriage Act, 1939 Sec.2 (iv)
5. Leprosy
Leprosy is an infectious, chronic contagious disease which results in the disfigurement of body parts.
Leprosy is ground for divorce and judicial separation under most of the matrimonial laws of the Indian community
Nowadays these statutory provisions are controversial because of the discriminating nature against persons affected by leprosy.
These are the statutory provisions of Leprosy which treat adultery as a ground for divorce.
- Hindu Marriage Act, 1955, Section 13 (1) clause(vi) Divorce is available if another party is suffering from a virulent and incurable form of leprosy
- Special Marriage Act, 1954, Sec. 27(f)
- Divorce Act, 1869, Sec. 10(1)(iv)
- Dissolution of Muslim Marriage Act, 1939 Sec.2 (vi)
6. Venereal diseases
Venereal diseases comprise a number of contagious diseases that are most commonly acquired in sexual intercourse which include syphilis, AIDS and so on.
Venereal disease is a hidden danger to the health of the other spouse. So, this is the motivating force for the recognition of venereal diseases as a ground for divorce.
These are the statutory provisions of Leprosy which treat adultery as a ground for divorce.
- Hindu Marriage Act, 1955, Section 13 (v)
- Special Marriage Act, 1954, Sec. 27(g)
- Dissolution of Muslim Marriage Act, 1939 Sec.2 (vi)
- Parsi Marriage and Divorce Act, 1936, Sec. 32(e)
- Divorce Act, 1869, Sec. 10(v)
7. Conversion
Conversion means when a person adopts another religion by formally converting to it in accordance with the formalities prescribed by the religion to which conversion is so and he ceases to be the follower of his former faith and becomes the follower of his new faith.
These are the statutory provisions of Conversion which treat adultery as grounds for divorce.
- Hindu Marriage Act, 1955, Section 13(1) (ii)
- Divorce Act, 1869, Sec. 10(1)(ii)
- Parsi Marriage and Divorce Act, 1936, Sec. 32(j)
8. Renunciation
If either of the spouses enters into any religious order or adopts sannyasa life by renouncing the world, then it becomes a sufficient ground for divorce in certain countries.
There are certain religious orders which prohibit their members to cohabit or to inspire them to disbelieve in cohabitation between husband and wife.
This ground is peculiar to Hindu law as no other Personal law provides his as a ground for matrimonial relief.
9. Presumption of death
The absence of the respondent for seven years without his whereabouts being known by his near relatives and friends who would have naturally heard him is a ground for divorce. Thus the petitioner may marry again and have children.
To avoid all confusion all statutes provide for approaching the Court to dissolve the marriage on the ground that the husband or the wife was not heard of as alive for the statutory period.
However, if the second marriage is performed based on the presumption of death without getting a decree of divorce, no person other than the missing spouse can question the validity of the second marriage. (Nirmoo vs Nikkaram, AIR 1960 Del. 260)
These are the statutory provisions of Conversion which treat adultery as grounds for divorce.
- Hindu Marriage Act, 1955, Section 13(1) (vii)
- Special Marriage Act, 1954, Sec. 27(1)(h)
- Divorce Act, 1869, Sec. 10(1)(vi)
- Parsi Marriage and Divorce Act, 1936, Sec. 31
- Dissolution of Muslim Marriage Act, 1939 Sec.2 (i) Whereabouts of the husband has not been known for Four years- ground only for the wife.
10. 7 years Imprisonment
In India, a spouse being sentenced to a long prison term, such as seven years, can be grounds for divorce under the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954.
Section 13(1)(i) of the Hindu Marriage Act states that a divorce can be granted on the grounds of “desertion” for a continuous period of not less than two years immediately preceding the presentation of the petition.
Similarly, Section 27 of the Special Marriage Act provides for divorce on the grounds of “desertion” for a continuous period of not less than two years immediately preceding the presentation of the petition.
These are the statutory provisions of 7 years imprisonment which treat 7 years imprisonment as grounds for divorce.
- Dissolution of Muslim Marriage Act, 1939 Sec.2 (iii)
- Hindu Marriage Act, 1955
- Special Marriage Act, 1954, Sec. 27(1)(c)
- Parsi Marriage and Divorce Act, 1936, Sec. 32(b)
11. Rape, Sodomy and Bestiality
There are some grounds for divorce which are available to only the wife in some of the Indian matrimonial statutes. Such grounds are Rape, Sodomy and Bestiality.
If a person rapes a woman then he is guilty of rape and his wife can sue for divorce. Rape attempts will not be sufficient and will not be covered under the matrimonial statutes. The burden of proof in such a case however is on the wife.
Sodomy and Bestiality are unnatural offences. Sodomy means anal sex. Whether a husband commits sodomy on another female or male or whether he commits it on his wife the ground will be available to the wife. Bestiality is cardinal intercourse with an animal. Once it is established the wife is entitled to a divorce.
These are the statutory provisions of Rape, Sodomy and Bestiality which treat adultery as grounds for divorce.
- Hindu Marriage Act, 1955, Section 13 (2)(ii)
- Special Marriage Act, 1954, Sec. 27(1-A)
- Dissolution of Muslim Marriage Act, 1939 Sec.2 (viii)(b)
- Parsi Marriage and Divorce Act, 1936, Sec. 32(d)
- Divorce Act, 1869, Sec. 10(2)
What documents are required to file for a divorce in India?
The documents required to file for a divorce in India can vary depending on the specific circumstances of the case and the grounds for divorce. However, here is a general list of the documents that are typically required when filing for a divorce in India:
Identity proof and address proof: Aadhar Card and PAN card of both parties or Passport or Driving license.
Document to prove the marriage: A copy of the marriage certificate issued by the Registrar of Marriages is required to prove the marriage or an Original copy of the Wedding Invitation Card or Wedding photographs.
Residence proof: Proof of residence, such as a utility bill or ration card, is required to establish the jurisdiction of the court.
Passport-size photographs: Passport-size photographs of both parties are required.
Income proof: Proof of income, such as salary slips or income tax returns, is required to establish the financial status of both parties.
Birth certificates of children: Birth certificates of any children born in the marriage are required.
Proof of grounds for divorce: Depending on the grounds for divorce, additional documents may be required. For example, if the grounds for divorce are cruelty or adultery, you will need to provide evidence such as witness statements, medical records, or other forms of documentation to support your claim.
Conclusion
In conclusion, the process of divorce in India can be complex and time-consuming. The process of divorce generally includes filing a petition for divorce in a district court, service of summons to the other spouse, appearance before the court, presenting evidence, judgment by the court and obtaining a decree of divorce.
The grounds for divorce, the specific laws of the state, and the evidence presented by both parties can influence the outcome of the process. It is advisable to seek the help of a lawyer, who can guide you through the process and help ensure that your rights are protected throughout the process.
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