How To Take Divorce In India
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How To Take Divorce In India

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Divorce is known as dissolution of marriage. Divorce declares the marriage null, with legal separation. Divorce usually cancels the legal duties and responsibilities of marriage.

Divorce laws vary around the world, but divorce requires the permission of a court or other legal authority, which may involve solving issues of distribution of property, child custody, alimony (spousal support), division of debt, etc. Divorce allows to marry with another person.

Types of Divorce in India

1. Divorce by Mutual Consent:

This is a simple way to dissolve marriage legally. The most requirement is the mutual consent of the husband & wife. There are two points on which husband and wife have to reach a general agreement. One is the alimony or maintenance issues (It could be any figure or no figure). Next is the Child Custody. It can be shared or joint or exclusive depending upon the understanding of the husband and wife. Duration of Divorce in Mutual Consent varies from one month to six months or more.

2. Contested Divorce:

Contested divorce is also known as a one-sided divorce. The divorce petition is filed by one spouse to end the marriage. Indian laws, in general, recognizes cruelty (Physical & Mental), unsoundness of mind, impotency, renouncing the world, suffering from an incurable disease, etc. On behalf of these, a husband or wife can file the case in the Court of appropriate jurisdiction. Duration of Divorce in Contested varies from 2-3 years to 6-7 years.

Various act for Divorce in India:

Due to existence of religious faiths in India, the Indian Law has implemented laws separately for different religions.

  • The Hindu Marriage Act, 1955
  • The Parsi Marriage and Divorce Act, 1936
  • The dissolution of Muslim Marriage act, 1939
  • The Parsi Marriage and Divorce Act, 1936
  • The Special Marriage Act, 1956
  • The Foreign Marriage Act, 1969
  • The Muslim Women Act, 1986

How to take Divorce in India:

There are two legal procedures to take divorce in India and the two procedures are Mutual Consent Divorce and Contested Divorce. The details of both the procedure are:

Procedure for Mutual Consent Divorce:

The procedure for divorce by mutual consent is done by filing a petition by affidavits from both sides; husband and wife in the district court. It is known as the First Motion Petition for Mutual Consent Divorce. This should contain a joint statement by both partners that due to their differences, they cannot stay together and should be granted a divorce by the court. After six months, the Second Motion Petition for Mutual Consent Divorce should be filed by the couple and they are required to reappear in the court. A gap of six months is given between the two motions, so that couple can reconsider their decision of dissolving their marriage. After hearings from both sides, if the judge is satisfied that all the necessary grounds and requirements for the divorce then, the couple is granted a mutual divorce. In Mutual Consent Divorce, some of the important issues on which the couple should have agreed, in their petition for divorce by mutual consent is custody of child, alimony, and return of dowry items (streedhan).

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Procedure for Contested Divorce:

In Contested Divorce, one party files for divorce in the court but the other contests it. The actual process of filing for divorce begins with the hiring of a lawyer. The lawyer will help to get through the complexities of the legal system in India. He/she is not only highly experienced with laws related to marriage and divorce, but also has experience in guiding his/her client to the best possible divorce deal from the court. The lawyer has decided on which grounds to file for divorce, a petition filed in the relevant court. The petitioner is required to provide his/her legal representative with photocopies of the following documents:

  • Income tax statements for the last 2-3 years
  • Details of the petitioner’s profession and present salary
  • Information related to a family background of the petitioner
  • Details of properties and other assets owned by the petitioner

After the first petition, the petitioner can sign a “Vakalatnama” which is a document giving the lawyer the authority to represent the petitioner in court. When the petition has been received by the court, it will send a notice and a copy of the petition to the spouse of the petitioner, asking him/her to appear before the court on a specified date. From here, the legal process of contested divorce will take place.

The legal process also includes the Divorce Alimony, Child Custody, and Maintenance. Here are in details of Divorce Alimony, Child Custody, and maintenance.

Divorce Alimony:

Alimony is the financial support that a spouse is required to provide his partner during and after a divorce. It is usually granted to women, since they are traditionally homemakers, and thus find it difficult to support themselves and their children after a divorce. Some factors which determine whether alimony is to be paid, how much and for how long are current financial support, duration of marriage, age of the recipient, financial position of spouse, health of spouse etc.

Child Custody:

Child custody is most important part of the divorce. It is an emotional trauma and legal complication. The Hindu Marriage Act 1955, has exhaustive laws related to child custody and child support. If the child is below five years, the custody is awarded to the mother. In case of older children, the custody of a girl child is generally given to the mother, and that of the boy child to the father. Visitation right is an important aspect of child custody, which specifies how frequently of the parent can meet his/her children

Maintenance:

In some cases, family court pass some order for maintenance to a spouse. The maintenance amount is calculated by taking into account the total monthly take home income (ie. without tax) of both the spouses. The educational background of the spouses, the number of years of marriage, number of children and child custody are also major factors, which govern the maintenance amount.  The spouse with lesser income or no income can get a maintenance amount, which will make his/her complete earnings (plus maintenance) to be equal to 20% to 30% of the total monthly income. Sometimes, the wife is also ordered to pay maintenance to the husband when the husband has a very small or no income compared to his wife’s income.

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