What Is The Process For Filing For Divorce In India?

In India, the process for filing for divorce varies based on the personal laws of the parties involved (e.g., Hindu Marriage Act, Special Marriage Act, Muslim Personal Law, etc.), but the general steps involved in filing for divorce follow a broad pattern. Divorce can be either by mutual consent or contested depending on the circumstances and the willingness of both parties to agree to the dissolution of the marriage.

General Steps for Filing for Divorce in India

1. Determine the Grounds for Divorce:
   • Divorce can be filed on various grounds, depending on the personal law applicable to the marriage. Common grounds for divorce include:
     • Adultery: One spouse engages in sexual relations with someone outside the marriage.
     • Cruelty: Mental or physical harm inflicted by one spouse on the other.
     • Desertion: One spouse abandons the other for a continuous period (usually 2 years).
     • Irretrievable Breakdown of Marriage: Marriage has broken down beyond repair (often recognized under Special Marriage Act).
     • Mental Illness: One spouse suffers from a severe mental disorder.
     • Inability to Consummate Marriage: If one spouse is unable to engage in sexual relations due to physical or mental incapacity.
2. Filing for Divorce by Mutual Consent:
   • If both spouses agree to the divorce, the process is known as divorce by mutual consent. This is a quicker and more straightforward process.
     • Step 1: Both spouses must file a petition together in court, under Section 13B of the Hindu Marriage Act (for Hindus) or the Special Marriage Act, 1954 (for interfaith marriages).
     • Step 2: The couple must live separately for at least one year before filing for divorce by mutual consent.
     • Step 3: The petition should include a joint statement of both parties agreeing to the divorce, including settlement on issues like alimony, child custody, and property division (if applicable).
     • Step 4: The court will usually grant a 6-month cooling-off period (for reflection and reconsideration), after which the divorce can be finalized.
     • Step 5: Once the cooling-off period ends, the couple can file a second motion in court to finalize the divorce, which is typically granted.
3. Filing for Contested Divorce:
   • If the spouses do not agree to the divorce or cannot reach a settlement, the divorce is contested.
     • Step 1: The petitioner (person filing for divorce) must file a divorce petition in the family court, citing valid grounds (such as cruelty, adultery, desertion, etc.).
     • Step 2: The petition must be filed in the court that has jurisdiction (usually the court in the area where either spouse resides or where the marriage was solemnized).
     • Step 3: The respondent (other spouse) is served with a notice and given a chance to respond.
     • Step 4: Both spouses will have to attend multiple hearings, and evidence (documents, testimonies, etc.) will be presented to the court.
     • Step 5: If both spouses cannot reconcile, the court will issue a decree of divorce after considering the facts of the case and hearing both parties.
4. Interim Relief During Divorce Proceedings:
   • During the divorce proceedings, either party can seek interim relief, such as:
     • Maintenance/Alimony: A spouse may request interim financial support.
     • Child Custody: The court can issue temporary custody orders for children if applicable.
     • Protection from Domestic Violence: If one spouse is facing abuse or harassment, they can seek protection orders under the Protection of Women from Domestic Violence Act, 2005.
5. Final Decree of Divorce:
   • After the petition is filed and all required hearings and procedures are completed, the court will pass a decree of divorce.
     • In the case of mutual consent, the decree is usually granted after the second motion.
     • In a contested divorce, the court will issue the decree after fully examining the case, which may take longer depending on the complexity of the issues involved.

Divorce Under Different Personal Laws in India

1. Hindu Marriage Act, 1955:
   • Applies to Hindus, Buddhists, Sikhs, and Jains.
   • Divorce can be granted under Section 13 (contested divorce) on grounds like cruelty, adultery, desertion, etc., or by mutual consent under Section 13B.
2. Special Marriage Act, 1954:
   • Applies to interfaith marriages and those not governed by religious laws.
   • Allows divorce by mutual consent after 1 year of marriage, or on specific grounds like cruelty, desertion, and irretrievable breakdown of marriage.
3. Muslim Personal Law:
   • Allows divorce (known as Talaq) through the husband's declaration, but it requires a formal process for the wife to seek divorce through Khula or Faskh if the husband is unwilling.
   • In cases of contested divorce, Muslim women can seek remedies through the Family Courts under the Muslim Women (Protection of Rights on Divorce) Act, 1986.
4. Christian Divorce:
   • Under the Indian Divorce Act, 1869, Christian couples can seek divorce on grounds like adultery, cruelty, desertion, etc.
   • Divorce can be filed in the District Court based on the grounds specified in the Act.

Example

If a Hindu couple decides to file for divorce under the Hindu Marriage Act, they must first live separately for at least one year before filing for mutual consent divorce. After the petition is filed and the court grants the cooling-off period, the couple must attend the second hearing, after which the court grants a decree of divorce.