The divorce law in India is governed by the Hindu Marriage Act, 1955, the Dissolution of Muslim Marriages Act, 1939, the Indian Divorce Act, 1869, the Parsi Marriage and Divorce Act, 1936, and the Special Marriage Act, 1954. The steps involved in filing for a divorce petition requires the help of lawyers with expertise in the said laws. The two types of divorce in India and the steps involved in each species of divorce are described below.
Contested Divorce:
In a contested divorce, one spouse is willing to terminate the marriage while the other is not. Therefore, as the name suggests, the parties have to contest the divorce in order to substantiate their claim(s). In case a spouse is desirous of dissolving the marriage then they will have to follow the steps mentioned below:
- The spouse will have to hire a lawyer so that the lawyer can provide the spouse with the relevant details.
- A petition will be filed in the court by the lawyer.
- A copy of the petition will be then sent to the other spouse along with the summons to appear in the court whether in person or by way of counsel on the next hearing of the case.
- The spouse could either simply contest against the divorce or also file a counter-claim.
- The time period for the completion of the procedure will depend on the circumstances of the case.
What are the various documents required to file a petition for a contested divorce?
The documents required for the filing of divorce petition for a contested divorce are:
- Address proof of the petitioner.
- Proof to justify the jurisdiction of the Court in which the case has been filed.
- Proof of marriage like Marriage certificate and/or marriage photographs.
- Any documentary or digital evidence to substantiate the claim made or ground of divorce taken in the divorce petition.
- If the petition is accompanied by an application of Section 24 then Affidavit of income and assets as per the guidelines of the Hon’ble Punjab and Haryana High Court.
Mutual Consent:
Divorce by mutual consent is the most hassle-free species of divorce in India. The provisions of divorce by mutual consent is provided under Section 13B of the Hindu Marriage Act, 1955, Section 32B of the Parsis Marriage and Divorce Act, 1936, Section 10A of the Indian Divorce Act, 1869, and Section 28 of the Special Marriage Act, 1954.
In case both the spouses are desirous of dissolving their marriage then they will have to follow the steps mentioned below:
- The spouse(s) will have to hire a lawyer so that the lawyer can provide the spouse with the relevant details.
- A petition for mutual divorce will be filed in the court by the lawyer.
- The spouses will record their statements on the first hearing, whereby both the parties will specify that they wish to dissolve their marriage.
- The parties will have to confirm they have been living separately for a year under 13B- HMA, 1955, and two years under Section 10A of the Indian Divorce Act, 1869.
- The Court will give a period of six months called the “cooling-off” period before the second statement is recorded. (The “cooling-off” period can be waived in certain circumstances.)
- The parties in these six months can revisit their decision of dissolving their marriage; however, if they do not, then on the second motion, the parties will record their statement.
- The second statement has to be made before the expiry of 18 months from the date of filing of the divorce petition.
- After the second statement, the Court passes the decree of divorce.
What are the various documents required to file a petition for mutual consent divorce?
The documents that are required for the filing of divorce petition for a mutual consent divorce are:
- Address proof of both the parties.
- Marriage Proof
- Passport size photographs of both the parties
- Settlement agreement outlining the issues of maintenance, stridhan, child custody, and property distribution.
In conclusion, it can be said that avoiding litigation in either kind of divorce is not an option and the parties involved have to take help from a lawyer in order to help them sail through the whole proceedings. Therefore, the requirement of a knowledgeable lawyer becomes unavoidable.