Generally speaking, divorce is a legal procedure that brings a marriage between two adults to a close. It can be formalised under a variety of legal frameworks. For example, Hindus, which include Sikhs, Jains, and Buddhists, are governed by the Hindu Marriage Act, 1955, whereas Christians are governed by the Indian Divorce Act, 1869 and the Indian Christian Marriage Act,1872.
The Muslim community is regulated by the Personal Laws of Divorce as well as the Dissolution of Marriage Act,1939, and the Muslim Women (Protection of Rights on Divorce) Act,1986, among other statutes and regulations. In a similar vein, the Parsi Marriage and Divorce Act-1936 governs marriage and divorce among Parsis. Aside from the regulations mentioned above, the Special Marriage Act, 1954 governs all other types of marriages.
Added to the Hindu Marriage Act in 1976 to allow for the introduction of divorce by mutual agreement, Section 13B stipulates that a couple must wait a total of 18 months before a divorce judgement may be issued.
A divorce petition may be filed by a couple after one year of judicial separation, according to Section 13B(1) of the Family Code. Section 13B(2) of the Code of Civil Procedure allows for an additional six-month waiting time before a decree may be obtained.
In Amardeep Singh v. Harveen Kaur (2017) 8 SCC 746, the Supreme Court held that the clause of Section 13B(2) is not obligatory, but rather is just descriptive. The Supreme Court has ruled that the courts can grant divorce after waiving the six-month waiting period if they are satisfied that the “waiting period will only prolong their agony” and that all attempts at conciliation have been in vain and that the “waiting period will only prolong their agony” is unavoidable. The courts, in deciding whether to waive the cooling-off period, will also examine whether the separated couple has resolved all of their disputes about alimony, child custody, and other issues.
It is provided in Section 14 that no petition for divorce shall be presented within one year of the date of the marriage; however, the Court may, upon application made to it in accordance with such rules as may be made by the High Court in that behalf, allow a petition to be presented [before one year has passed since the date of the marriage on the ground that the case is one of exceptional hardship to the petitioner] since the date of the marriage on the ground that
The term “Divorce with Mutual Consent” refers to a legal procedure of separation in which both the husband and wife choose to separate with their own free choice after their marriage. Mutual consent is required for both the husband and the wife to file for divorce.
A contested divorce, also known as a divorce without mutual agreement, is one in which the divorce is filed without the previous permission of either spouse (husband or wife). Among the most common grounds for filing such a divorce petition include cruelty to the spouse, adultery to the spouse, desertion to the spouse, conversion to another religion, mental illness, infectious disease, presumption of death, or renouncing the world.
The following is the procedure to be followed when filing for mutual divorce:
Important issues that need to be resolved before moving further include:
Child Custody: Which spouse will be granted custody of the children after a divorce?
In the event that one of the partners is unable to fulfil his or her daily costs, the other spouse is required to give him or her a specified quantity of money as alimony or maintenance (one time settlement or monthly payment). It is contingent on the partners’ ability to communicate well with one another (husband and wife).
Settlement of Real Estate and Other Assets: Disputes about ownership rights to property and assets such as a residence, bank accounts, and moveable goods are resolved between the parties (Husband and wife)
Documents required for the filing of a Mutual Divorce Petition include:
- Proof of Address on Marriage Certificate – for both the husband and wife.
- ‘Marriage’ is shown in four photographs.
- Income tax returns over the previous three years.
- Specifics about your occupation and earnings (Salary slips, appointment letter)
- Information about the property and assets that are owned
- Detailed information about one’s family (husband and wife)
- Evidence of living apart for a period of one year
- Various pieces of evidence pertaining to unsuccessful efforts at reconciliation
- The Mutual Divorce Petition may be filed in any court of law.
- Previously, the pair’s final place of residence as a married couple; now, the husband or wife’s place of residence.
The following are the steps that must be taken in order to dissolve the marriage by mutual consent:
Procedure Step 1: Submitting a Petition to the Family Court
It is submitted to the Family Court by both spouses on the grounds that they have not been able to reconcile their differences and live together as a result of the breakdown of the marriage. The couple has therefore reached an agreement to end their marriage, or they have been living apart for a period of one year or longer. Both parties must sign this petition in order for it to be valid.
2nd step: Appearance before a family court judge for the filing of the first motion for divorce
With the assistance of their legal counsel, both parties are required to enter their presence in court. The substance of the petition, as well as all of the papers submitted in Court, will be reviewed by the Family Court Judge. However, if it is not feasible to reach an agreement between the spouses, the court will continue to a more formal divorce proceeding.
Step 3: Making a Declaration Under Oath
Following a thorough examination of the application’s contents, the Court may require that the parties’ statements be recorded under oath.
Step 4: The First Motion Order is approved, and a six-month time frame is set aside for the Second Motion Order.
The court issues an order addressing the first motion brought before it. Following that, both parties to a divorce are granted a six-month time during which they may submit a second motion for divorce. The maximum time limit for filing a second motion in family court is 18 months from the day on which the divorce petition was presented in the court of first instance.
Step 5: Hearing on the Second Motion and issuing the Final Decree
They will continue with the final hearings after the parties have agreed to proceed with the proceedings and have appeared in person for the second motion hearing. This covers parties who appear in front of the Family Court and the recording of their remarks.
If the court is satisfied after hearing the parties that the contents of the petition are true and that there is no possibility of reconciliation or cohabitation, and if all issues pertaining to alimony, child custody, property division, and other issues have been resolved, the court can issue a decree of divorce declaring the marriage to be dissolved, and the marriage will be dissolved.
When the court issues a decree of divorce, the divorce becomes legally binding on both parties.
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