FAQ ON DIVORCE
Q. What is the procedure to obtain a decree of divorce by mutual consent in India?
A. For a mutual divorce procedure in India, you can come to an agreement with your spouse where you may resolve all kinds of disputes regarding maintenance, custody of children, etc. However, this is different for marriages registered under Muslim personal law.
In case of a divorce without mutual consent, a petition has to be made on specific grounds such as the parties not having lived together for a period of one year, irretrievable breakdown of marriage; and a divorce notice may be sent to your spouse.
Q. What are the relevant documents for initiating divorce?
A. The following documents are required for a divorce petition –
1. Address proof of husband
2. Address proof of wife
3. Marriage certificate
4. Four passport size photographs of marriage of husband and wife
5. Evidence proving spouses are living separately since more than a year
6. Evidence relating to the failed attempts of reconciliation
7. Income tax statements for the last 2-3 years
8. Details of profession and present remuneration
9. Information relating to family background
10. Details of properties and other assets owned by the petitioner
Q. How can I divorce a partner residing in another country?
A. Though this again depends on the law under which your marriage was performed, a partner residing outside India can be divorced in certain circumstances in a similar manner to a general divorce of partners residing in India. Generally, acts like the Hindu Marriage Act apply to people residing abroad as well.
Q. Do divorce procedures in India differ among states?
A. No, the divorce procedures do not differ among states and are governed by acts which are applicable to the whole of India.
Q.How much does it cost to get a divorce?
A. Court fees for filing a divorce are low; the cost is mainly in the fees you pay your lawyer. Lawyers tend to charge fees for appearing in court and doing any other work. Therefore, it may cost anywhere from the low ten thousands to lakhs of rupees.
Q. How can I obtain proof of my divorce being successful?
A. A decree of divorce will be granted by the courts in case of a successful divorce. The same may be used in the future as a proof for your divorce. However, this decree can be appealed in a higher court by the aggrieved party.
Q. What are the requirements for a successful divorce?
A. In the case of a divorce with mutual consent, both the parties will have to prove that they are not able to live together as husband and wife for the past 1 year, in their first statement. 6 months later, the parties will be interrogated again. If they confirm their first statements, the divorce would be successful.
However, in the case of a divorce petition filed against the other party, the specific grounds for divorce given in the act governing the parties like cruelty, unsoundness of mind, etc. must be proven for a successful divorce.
Q. Is there a limit on years of marriage before which divorce may be asked for?
A. Yes. In case of a divorce with mutual consent, the parties are legally expected to be married for at least 1 year before divorce proceedings can be initiated, in order to satisfy the provisions for the same. However, if a person needs to be divorced for their own protection, the court may order an annulment of the marriage and/or separation of the husband and wife in order to protect the aggrieved party.
Q. Can divorce procedures be initiated online?
A. Yes, though this works in the case of mutual consent of the parties. There are numerous online divorce firms which can handle divorce procedures online in a hassle-free manner. On the other hand, divorce procedures may also be initiated online yourself. You and your partner will be required to fill a basic form and the same will be sent to the divorce courts by your firm.
Q. Does one require witnesses for the divorce procedure?
A. Witnesses may be required when a divorce petition is filed by one party, in order to prove the faults in the other party to satisfy the relevant provisions of law for the decree of divorce. The same are as follows, though they may not be applicable to all the personal laws –
Cruelty may be physical or mental cruelty. According to the Hindu Divorce Laws in India, if one spouse has a reasonable apprehension in the mind that the other spouse’s conduct is likely to be injurious or harmful, then there is sufficient ground for obtaining divorce due to cruelty by the spouse.
In India, a man that commits adultery (i.e. has consensual sexual intercourse outside of marriage) can be charged with a criminal offence. The wife may, of course, file for divorce as a civil remedy. If, on the other hand, a wife commits adultery, she cannot be charged with a criminal offence, though the husband can seek prosecution of the adulterer male for adultery.
One spouse deserting the other without reasonable cause (cruelty, for example) is a reason for divorce. However, the spouse who abandons the other should intend to desert and there should be proof of it. As per Hindu laws, the desertion should have lasted at least two continuous years. Christians, however, will not be able to file a divorce petition solely for this reason.
Divorce can be sought by a spouse if the other spouse converts to another religion. This reason does not require any time to have passed before divorce can be filed.
e. Mental Disorder
If the spouse is incapable of performing the normal duties required in a marriage on account of mental illness, divorce can be sought. If the mental illness is to such an extent that the normal duties of married life cannot be performed.
f. Communicable Disease
If the spouse suffers from a communicable disease, such as HIV/AIDS, syphilis, gonorrhoea or a virulent and incurable form of leprosy, the Hindu Divorce Law in India say that the other party can obtain a divorce.
g. Renunciation of the World
If the spouse renounces his/her married life and opts for sannyasa, the aggrieved spouse may obtain a divorce.
h. Presumption of Death
If the spouse has not been heard of as being alive for a period of at least seven years, by such individuals who would have heard about such spouse, if he or she were alive, then the spouse who is alive can obtain a judicial decree of divorce.
Q. In which court is a divorce petition of mutual consent regularly filed?
A. Such a divorce petition is usually filed in the family court of the district where both the husband and wife lived together, which is their matrimonial home or where the wife is currently residing, or where the marriage was solemnized.
Q. Can I File divorce petition without coming to India
A. Yes, you can file divorce petition without coming to India. You can file Divorce petition from the place of residence of the respondent(in case if husband is petitioner or in case wife is petitioner), or the place of marriage or the place where the couple last lived together. wife can file wherever she resides after separation.
Q. How many times I have to attend the court for mutual consent divorce ?
A. In case of mutual consent divorce you have to attend/appear in court twice for the purpose of recording the statement in court. In so many courts now camera/video conferencing has been started and you can record your statement through the video conferencing but its totally depends upon the court to court as there are so many complication.
Q. Should both the spouses attend the court hearing for divorce in India?
A. If it is for divorce by mutual consent, both of them should attend the hearing for the purpose of recording the statement but some time court may consider one if other is out of country and he or she has given the power of attorney to represent her or him in court, but remember its totally depends upon court.
Q. How I can annulled or Nullity of my marriage ?or what is the procedure to annulment of marriage in India?
A. Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:-
(a) that the marriage has not been consummated owing to the impotency of the respondent; or
(b) that the marriage is in contravention of the condition specified in clause (ii) of Section 5; or
(c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner was required under Section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978, the consent of such guardian was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent; or
(d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner.
Q. Can I claim or seek maintenance in divorce case proceeding?
A. As per section 24 of Hindu marriage act, Maintenance Pendente lite and expenses proceedings. Where in any proceeding under this Act it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner' s own income and the income of the respondent, it may seem to the court to be reasonable
Q. Can I seek child custody or child visitation in divorce ?
A.As per section 26 of HMAct,
Custody of children. In any proceeding under this Act, the court may, from time to time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible, and may, after the decree, upon application by petition for the purpose, make from time to time, all such, orders and provisions with respect to the custody, maintenance and education of such children as, might have been made by such decree or interim orders in case the proceeding for obtaining such decree were still pending, and the court may also from time to time revoke, suspend or vary any such orders and provisions previously made
Q. Judicial separation in India meaning and procedure.
A.Petition for Judicial separation may be presented on any of the grounds specified in divorce like--adultery, desertion, cruelty, chronic illness etcor on grounds of failure to comply with RCR--then it shall be no longer obligatory for the petitioner to cohabit with the respondent.
Q. How I can transfer divorce petition from court where its filed by my husband at my place?
A. The Supreme Court has the power to transfer the cases from one High Court to another and even from one District Court of a particular state to another District Court of the other state. In such transfer cases the Hon’ble Supreme Court transfer only those cases if they really lack appropriate territorial jurisdiction and those cases which were otherwise supposed to be filed under the transferred jurisdiction. Hon’ble Supreme Court often looks at the real ground / reason for such transfer.
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Q. I am in USA and got divorce, is it valid in India ?
A. A foreign judgement shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except-
where it has not been pronounced by a Court of competent jurisdiction.
where it has not been given on the merits of the case.
where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognize the law of India in cases in which such law is applicable.
where the proceedings in which the judgment was obtained are opposed to natural justice.
where it has been obtained by fraud.
where it sustains a claim founded on a breach of any law in force in India.
Q. What are the woman’s rights after divorce in India?
A. The rights to which an Indian divorced woman is entitled after the divorce process include:
• Right to Streedhan
Streedhan refers to all the gifts the wife received in the form of money, ornaments, property, at the time of the marriage.
A wife has ownership rights to her streedhan i.e. the gifts and money received by her from her in-laws and family, even though they are in the custody of her husband.
It differs from dowry, which is illegal and usually acquired by force, while streedhan is voluntary in nature.
It does not matter who has the custody to the Streedhan since, as per Indian law, the wife is the owner of the Streedhan.
• Right to maintenance/alimony
Another right of a woman in divorce in India is the maintenance amount the husband has to pay to the wife after the divorce process. It is either paid in a lump sum or on an annual or monthly basis.
Maintenance awarded varies from case to case, depending upon the income of the husband, income of the wife, their living standards during the marriage and other factors.
• Right against bigamy
Until the divorce proceedings are completed, the wife has the right to be the only wedded wife, which means the husband cannot legally remarry. The wife has the right to a monogamous relationship.
• Interim maintenance
A wife can demand interim maintenance at any time during the pendency of the suit. This maintenance is granted to her to fulfil her basic needs. She can also ask for the litigation fees i.e. the lawyer’s fees if the husband is better-off financially than her.
• Right to residence
A wife has the right to reside in her matrimonial home to which she was brought after marriage.
Whether the house belongs to the in-laws or is joint family property or ancestral property or rented property, the wife has a right to reside in it.
• Right to live with respect and dignity
Every woman either divorced or in a marriage has the right to live with respect and dignity. Article 21 ensures this right to every individual.
The women can file for a divorce on the grounds of cruelty if she is not respected in the marriage. She can also file an application for domestic violence if she is forced to pay a dowry or is ill-treated.
She can also file a complaint under Section 498-A IPC if she is ill-treated physically as well as mentally.
• Right to ask for child maintenance
Child custody is decided on the basis of the welfare of the child. Even the mother gets the child custody, she has the right to ask for maintenance for the child from her husband.
• Right to file a case against domestic violence and dowry demands
If the wife is facing domestic violence and dowry demands, she can file an application under the Domestic Violence Act and the Divorce Act. She can file for divorce on the grounds of cruelty, which is one of the most common reasons for divorce in India.
Grounds for divorce can be established if she is mentally and physically tortured by her husband and her in-laws, following which she can file a complaint under Section 498- A IPC.
A woman must be aware of all her legal rights while opting for a divorce. A divorce lawyer can enlighten the woman about her rights after divorce.
If a woman living in Kolkata is unaware of her rights after a divorce, she should take the help of a divorce lawyer in Kolkata to help with her divorce proceedings in India.
Q. Do I need a lawyer in divorce mediation?
A. Another common question that couples ask is whether they need to hire a lawyer for divorce mediation.
Mediation is a common process of getting a divorce these days. It is an out-of-court settlement where both the parties commonly reach a settlement with the help of a mediator.
It can either be court directed or a self-driven process. A divorce lawyer can help the divorce procedure in the following manner during the divorce mediation:
- A divorce lawyer helps in understanding the rules and procedure of mediation. She will further help you with the question of whether mediation will be beneficial in your case.
- She helps in selecting a mediator if the mediator is not chosen by the court.
- She helps in preparing your arguments for divorce mediation and points out the areas of settlements.
- She helps in reaching a fruitful settlement where both the parties are in a win-win situation.
- She helps in evaluating the missing details which might lead to a conflict in the future.
- She helps in the formal documentation after the settlement. Proper documentation helps in avoiding future disputes.
It is important that you cross-check all the legal documents after settlement with your lawyer before signing them.
It is important to appoint a lawyer who has a comprehensive knowledge of divorce laws in India and prior divorce mediation experience.
Q. Can both parties hire the same lawyer in a joint petition for divorce?
A. A joint petition for divorce is filed by the parties in the case of a mutual consent divorce, where both the parties agree to the terms of the agreement.
The parties opting for a mutual divorce process in India can hire a common advocate who can help them jointly file an affidavit to get a divorce.
But if the partners do not agree on certain terms, they can hire separate lawyers who can contend on their behalf.
If both the parties mutually agree on the terms of the divorce, then a common advocate can help them in filing an affidavit in the court to obtain a mutual consent divorce.
A good divorce lawyer can guide you with the mutual divorce procedure in India, and ensure terms that are in your favour.
Q. What are the required documents for divorce in India?
A. According to the procedure to get a divorce in India, there are a number of documents that must be submitted in order to file the divorce petition.
Here are the documents for divorce in India that both parties need to submit:
- Proof of residence
- Marriage certificate or photograph of the marriage ceremony, wedding card.
- ID Proof (Passport, Voter’s Card, Ration card, Aadhar Card)
- Passport size photographs
- Signed joint statement on the first date of the hearing/first motion
- Copy of child custody agreement, if any
- Copy of agreement of alimony/maintenance, if any
- Copy of agreement of Streedhan/wife’s property, if any
Q. Can I get a divorce without my spouse’s signature?
A. If one of the spouses is yet to sign the divorce papers, then the party wishing to get a divorce can contest the same.
The divorce can be filed if the husband/wife has treated his/her spouse with cruelty, or has deserted them for more than 2 years, or has renounced the world, or is having an affair with someone else or his whereabouts are not known for 7 years.
In case of a contested divorce, if the other party refuses to appear before the court or cannot be found, then the party can file an application for an ex parte divorce.
The term ex parte means without the presence of the other party. In an ex parte divorce proceeding, only one party is present. The other party either refuses to participate or cannot be located.
Nobody can be forced to be in a marriage, and hence the court passes the ex parte order when the other party refuses to cooperate and attend the court proceeding even after receiving the summons or notice.
Q. Can 498a be filed after divorce?
A. The SC in a recent case, Mohammad Miyan vs. State of Uttar Pradesh, has held that if a woman files an FIR under Section 498A after a long undue delay, then her complaint will not be sustainable.
In this case, the woman had filed the complaint under Section 498A IPC after 4 years of her divorce.
This judgment makes it clear that there must not be an undue delay in filing an FIR under Section 498A IPC. If a woman is being subjected to cruelty during the course of her marriage, she must consult a lawyer and learn about her rights.
Q. Is a sexless marriage grounds for divorce in India?
A. The Delhi High Court in a case has ruled that denying sexual intercourse to the spouse for a long duration without sufficient reason amounts to mental cruelty and is grounds for divorce in India. Impotency is also valid grounds for divorce.
The court has dissolved marriages on the ground of it being a sexless marriage. However, in one case, the court has also held that while “sexual intimacy” is a key component in a lawful marriage and a sexless marriage is an anathema (meaning offensive), marriage is not a contract for legal sexual gratification.
”It does not mean that a man has unfettered right to demand and commit sexual intercourse with his wife without her consent or approval, nor it implies that the husband is in a dominant position to impose himself upon the wife. The husband cannot indulge in sexual intimacy in such a manner that is discomforting to the wife to her body, mind and soul,” said the court.
Q. How to file for online divorce application in India?
A. Because of the increasing divorce rate and how long it takes to apply for divorce in India, the process of online divorce application is now allowed in the case of mutual consent divorce in India.
You can apply for an online divorce yourself or through a divorce lawyer. However, is always advisable to apply for divorce in India through a lawyer even in case of an uncontested divorce.
If the legal procedure for divorce in India is not handled properly, problems can arise later. For a contested divorce in India, you must file a divorce petition in court with the help of a lawyer.
Q. Can I get divorce on stamp paper?
A. No, you cannot get divorce on stamp paper. In order to get divorce you need to make a proper divorce application in the district family court where:
- your marrriage ceremony took place, or
- you last resided with your spouse, or
- your spouse is residing at the time of filing for divorce.
Q. Can I file for divorce on behalf of any other person?
A. No, registration of marriage is not necessary. But it is advisable that you get your marriage registered as your marriage certificate will be helpful and will add value to your divorce case as far as validity of your marriage is concerned.
Q. Can I marry again without being divorced?
A. One of the essential grounds for a valid marriage is that you must not have a living spouse at the time of marriage. You should be single. So, if you have been married before, you must seek divorce from your previous spouse first and only then can you remarry another person.