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Contemplating Divorce

What you need to know about filing a divorce in India

What you need to know about filing a divorce in India

This was a common perception of the Indian Judiciary system in our Hindi films during the 80s and 90s. Are court proceedings in the context of divorce as lengthy and draining in the present day? Let’s find out.

A 2017 report by the OECD (Organisation for Economic Co-operation and Development) mentions that India has one of the lowest divorce rates in the world. But does that imply that Indians are better at making marriages work or do we simply stick it out? Considering the number of couples we may all know who are stuck in unhappy marriages, the answer is likely to be the latter.

India’s low divorce rate is an indicator of the stigma that surrounds it and not a positive sign at all. The “Pati parmeshwar hota hai” and “Janam janam ka saath; till death do us apart” is so deeply ingrained in our subconscious that divorce is still a subject of humiliation to the concerned parties and their families rather than a logical way out of a failed/unhappy marriage. Add to this the cost of a long-drawn legal proceeding hampered by a range of unsolicited and often impractical advice that pours in from “concerned well-wishers”, and you get the adequate reasons to just ride it out. But if you’ve decided to part ways, then here is a comprehensive guide on what needs to be done.

 

First Steps

Keep calm and seek professional help!

“As per the Hindu Marriage Act, 1955 – A divorce in India is divided into two categories. The first is Non-Mutual/One-Sided/Contested Divorce wherein one partner decides to file for divorce. The second is Consensual/Mutual Divorce wherein both partners actively seek divorce and file the application jointly. Apart from these two, there is no other way of obtaining a divorce otherwise.” says Kiran Mhatre, a prominent Mumbai lawyer who has handled multiple divorce cases in his 30-year long career.

 

What is Non-Mutual/ Contested Divorce?

Section 13 – Non-Mutual / Contested Divorce is sought when one partner has been subjected to the following by the spouse, and the spouse is averse to an amicable parting.

  • Physical and/or mental cruelty
  • Desertion by the spouse
  • The unsound mental status of the spouse
  • Adultery by one or both spouses
  • Impotency of the spouse
  • Conversion to another religion by the spouse
  • Leprosy affected spouse
  • If the spouse has a venereal disease such as AIDS, HIV, Gonorrhea, etc.
  • Renunciation of worldly affairs by the spouse
  • If the spouse is missing for at least 7 years and there is no evidence of their being alive
  • Refusal to reconcile: Post the divorce filing, if the couple fails to live together for the mandatory period of 6 months then it constitutes as a ground for divorce.

 

How to file for Non-Mutual Divorce?

  • Firstly, you need to decide the grounds on which you want to file the case. If you are unsure of what issues constitute for a divorce, seek professional help from a lawyer.
  • Document all evidence that will help you prove your point in court along with your lawyer.
  • The lawyer will then file a petition in the court along with all relevant documents and evidence.
  • Once the petition is filed, the court will summon your spouse for a hearing. If he/she doesn’t show up in court, the divorce will be granted after a thorough evaluation of the submitted evidence and documents.
  • If the spouse appears in court, then both parties will be referred for reconciliation for a period of 6 months so that the issue can be resolved amicably. You may decide to stay together or plan to go for an amicable divorce once the 6 months are up.
  • If the issues remain unsolved, then the erring spouse will file a written statement in response to the petition filed against him/her. The written statement must be filed between 30 to 90 days. The petitioning partner will then file a further elaboration or explanation on the charges mentioned in the first hearing.
  • The court will frame the issues that must be decided during the time of final hearing.
  • During the final hearing, the court will examine the arguments of both sides, cross-examine the witnesses, evidence, and documents before deciding the outcome of the case.

 

What is Divorce by Mutual Consent?

Section 13 B – Divorce by Mutual Consent is sought when both partners have no grievances towards each other and are willing to see this separation through in a mature and businesslike manner.

 

Do you still file a case if the divorce is mutual?

  • Yes, both parties, i.e. the husband and wife must file a petition in court during which their statement is recorded, and they are required to submit their signatures on paper before the court.
  • There is no limit on the alimony figure since both parties can settle on an amount based on their understanding. Similarly, for child custody – partners can effectively work out if they want it to be shared, joint, or exclusive.
  • The court gives them a period of 6 months to stay together and reconsider their relationship. In case the couple decides to give their relationship another chance, either spouse can withdraw his/her petition within the 6-month period.
  • However, at the end of 6 months if there is no hope for reconciliation, then both husband & wife are called for a final hearing during which the court announces its decision.

 

How long do the divorce proceedings last?

If it’s a mutual divorce, then the proceedings leading up to the final decision can take up to one year for the court to pass the decree, provided both parties do not miss any hearing dates. If one hearing is missed, then the court grants another date after 1 to 6 months which can cause a delay in the divorce.

If the divorce is non-consensual, then the proceedings can go on for years, depending upon the problems based on which the divorce application was filed. The more complex the issues, the more time it takes for both parties to come to a decision which is agreeable to both parties. Such cases have no time limit.

Avani Saxena, a media professional who’s been divorced, has a practical point of view on this topic “Indian Judiciary is known for its lengthy proceedings which can drain your finances and your energies. In most urban cases while the divorce may have started out as non-consensual, both parties quickly realize that it’s convenient to settle on an agreement out of court or resolve it by agreeing to terms which are marginally disadvantageous to both sides. It saves a lot of distress in the long run.”

The cost of obtaining a divorce depends on various factors from lawyer fees to court hearings to out of court settlements. The longer the process, the costlier it is. As an estimate, it can range anywhere between INR 20,000 to 5 lakhs and above.

Be it mutual or contested divorce, the realization that help is available and can be accessed is important. The thought of filing for one doesn’t make you the “bad one” in the relationship. It makes you the rational one who wants to close one unproductive circle before it becomes an infinite loop.

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