Divorce also called dissolution of marriage, as the name implies is the process to end a marriage or a marital partnership. Thus it is severing the marital bonds under the law of the land. The whole process of divorce involves the emotional upheaval to the long legal procedure which would take months and in some cases may take years till the divorce decree is given. The long procedure could be endured if you have finally decided to end your relationship completely.
The Various Acts Governing Divorce:
As there are various religions having their own personal laws, there are different laws for these religions mentioned below-
The Hindu Marriage Act, 1955 for Hindus, Sikhs, Buddhists, and Jains
The Parsi Marriage and Divorce Act, 1936 for the Parsis
The Dissolution of Muslim Marriage Act, 1939 for the Muslims
The Indian Divorce Act, 1869for Christians
The Special Marriage Act,1956 for two different religions
In respect to the changing times, the government has passed various Acts to ensure that the divorce procedure, as well as the related provisions, are in accordance with the change in society. For inter-caste and inter-religion marriages, divorce is provided under The Special Marriage Act, 1956.
The two kinds of divorce provided are- contested divorce and mutual divorce. A contested divorce is filed on the grounds provided under the various provisions for different religions; for mutual divorce, the couple could come under an agreement regarding various issues including maintenance, child custody and so on.
How To File A Divorce In India-
Mutual Divorce is provided under Section 28 of the Special Marriage Act, 1954, and Section 10A of the Divorce Act,1869. It has to be noted that in the worst-case scenario if the parties do not agree to divorce by mutual divorce, a contested divorce is the last resort as one of the parties is not agreeing to divorce.
Mutual Divorce- is provided under Section 13B of the Hindu Marriage Act, some of the conditions for mutual divorce are as follows-
Partners have been living separately for at least one year
They are unable to reconcile
They have mutually come to the decision that divorce has come to an end and wish to dissolve their marriage.
The Divorce procedure begins filing of a divorce petition-
The divorce proceeding for consented divorce starts with the joint petition for ending the marriage. It's presented before the family court by the parties, stating that they are unable to continue the relationship and have decided to part ways
After filing the petition the parties appear before the Court, where the Court try to reconcile the two
After scrutinizing the petitions of the parties, the court records the statements of both parties under oath.
After the statements are recorded, an order is passed and a period of six months is provided to reconcile before the second order.
The parties appear before the court for a second motion, and if even now they do not wish to reconcile, the final hearings of the case are proceeded with.
In case of a mutual divorce, both parties have consented to divorce, thus there won’t be any issue regarding the maintenance, child custody, etc.
If the court is of the view that the parties have no wish to reconcile, the court shall pass the decree for divorce.
Contested Divorce- the procedure for contested divorce is given below-
The petition is filed by one of the parties. The parties wishing to divorce have to contact a lawyer and based on the facts provided by him/ her shall draft a petition.
After the petition is filed and all the formalities have been fulfilled, the case shall be filed before the appropriate court according to the jurisdiction
On the first day of the hearing, the court would examine the petition and would hear the petitioner’s remarks regarding the facts and claims.
If the court is satisfied that the case should go for adjudication, a notice is served upon the other party. The other party is required to be present before the court with his/ her legal counsel.
The court may attempt to mediate the dispute between the parties and would order them to attend mediation, if the reconciliation is not agreed to, the court will proceed with the divorce procedure.
Next, the court would decide issues and record evidence. The parties are required to be present, will be cross-examined, and also provide witnesses. After which the court shall pass its decree.
The three aspects parties are required to consider-
The alimony and maintenance issue
The custody of their children
Property issues shall be taken into consideration
Documents required-
1. Address proof of the spouse
2. Certificate of marriage
3. Passport-size photos of both parties
4. Evidence to prove that parties have been living separately
5. Income tax statements
6. Professional details
7. Family background details
8. Details of property owned by both
Marriages are considered sacred bonds. However, if it is not possible to continue the relationship and one has decided to end the relationship, it's advisable to decide the issue with an experienced lawyer. Lead India provides lawyers who have expertise in the issues related to divorce, maintenance, child custody, divorce, etc.
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