Divorce in India is governed by personal laws, i.e. if you’re a Hindu then the Hindu Marriage Act, 1955, will be applicable, Muslims are governed by the Dissolution of Muslim Marriages Act, 1939, etc. There are a variety of ways by which you can obtain a divorce in India and in this article we are going to go through a step by step procedure of the same. However, before we delve into the question of how to get a divorce in India, you need to ascertain what kind of divorce do you want?
What kind of divorce do you want?
There are three kinds of divorce available in India and you need to be certain of which category suits your situation.
1. Contest divorce: As the name suggests, contest divorce means that one party is contesting to get divorce as the other party is alleged to have committed a matrimonial offence such as cruelty, adultery, desertion, conversion of religion, renunciation of the world or is suffering from a venereal disease or unsoundness of mind or has not been heard of for 7 years or more. A spouse can take either of the grounds mentioned above and contest on it in the Court and obtain a divorce decree. If your spouse is either suffering from the above-mentioned diseases or has committed any of the above-mentioned matrimonial offences, then you can contest the divorce against your spouse in court.
2. Mutual consent divorce: In mutual consent divorce, both spouses are willing to obtain a divorce decree and voluntarily come forward to terminate the marriage. If you and your spouse are ready to part ways amicably without a tedious intervention of the court then mutual consent divorce serves your purpose.
3. Irretrievable breakdown of marriage: The ground of irretrievable breakdown of marriage is applicable to the marriages which there is no scope of reconciliation as the marriage has broken down irretrievably and here only one party is willing to obtain divorce; however, this ground is not available in any personal or secular law relating to marriages in India and the absolute power to grant divorce on this ground is available to Hon’ble Supreme Court of India under Article 142 of the Constitution of India, 1950.
Now that you know what category your desired divorce falls into, we look into the steps involved in different kinds of divorce:
Steps involved in a Contest divorce:
1. Find yourself the best divorce lawyer:
This is an inescapable step as you cannot file for divorce if you do not have the assistance of the best divorce lawyer in Chandigarh. The law(s) require that you retain a lawyer to represent you in the court.
2. One year of marriage:
As per the Hindu Marriage Act, a petition for divorce cannot be filed before a marriage completes one year. So, if you have not been married for a year or more, then you cannot filed for divorce unless there exists some extraordinary circumstances.
3. Identify the ground(s) of divorce:
As discussed above, contest divorce can only be obtained if there exists a matrimonial offence or the spouse is suffering from unsoundness of mind, venereal disease, etc. therefore, it is important for you to identify the ground(s) upon which you wish to file for divorce. In order to ascertain the ground(s), your lawyer will come in handy to clear your doubts on the same.
4. Ascertain the place of filing the case (jurisdiction):
Under the Hindu Marriage Act, 1955, a petition for divorce can only be filed in the following places:
i. Where the marriage was solemnized: A divorce can be filed at the place where you were married. The place of marriage differs from the place of registration of marriage. For e.g.: If your marriage was solemnized in Mohali and the marriage was registered in Chandigarh, then your place of filing the divorce will be Mohali.
ii. Where the spouses last resided together: The other option available to you for filing the divorce is the place you and your spouse last resided together. For e.g.: If you and your wife were living together in Panchkula and then separated to live in different places, then you can file for divorce in Panchkula.
iii. Where the wife is currently residing: A contested divorce can also be filed at the place where the wife is residing at the time of filing the divorce petition.
iv. In the case of presumption of death, where you are residing: the presumption of death means that your spouse has not been heard of or his whereabouts are unknown for a period of seven years or more. In the case of presumption of death, the divorce can be filed in the place that you’re residing at.
5. Give all the documents to your divorce lawyer:
It is important that you provide your divorce lawyer with all the documents, videos, pictures, etc. available with you and which are necessary to prove the ground(s) taken by you in the divorce petition. It is an important step to avoid the case haywire.
6. File the case and be actively involved:
Once a divorce petition is filed in the Court, you may be required to appear in the court on the call of the court. Therefore, you need to be aware of the contents of your divorce petition in order to avoid any confusion.
Steps involved in a mutual consent divorce:
You can learn all about mutual consent divorce here. (click here)
Steps involved in divorce under Irretrievable breakdown of the marriage:
In certain cases, the Hon’ble Supreme Court of India can exercise its powers under Article 142 of the Constitution of India, 1950, and order for the dissolution of marriage on the ground of irretrievable breakdown of a marriage.
However, it is important to note that this ground is not available to any High Court in India or lower court in India but it is the exclusive domain of the Supreme Court of India as Article 142 of the Constitution of India, 1950, gives the Supreme Court the power to pass an order that it deems essential to dispense justice.
We all are aware that the Court related processes in India are time-taking and tedious and divorce cases are no different. That is why you need the assistance of efficient and best divorce lawyers in Chandigarh for your divorce-related queries.
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