Divorce is the legal dissolution of marriage. Since India is a land of varied religious communities having their own marriage laws, the divorce procedure too varies, according to the community of the couple seeking divorce.
Divorce by Mutual Consent
Seeking a divorce in India is a long-drawn out legal affair, where the period of prosecution takes a minimum of six months. However, the time and money required to obtain a divorce can be considerably shortened if the couple seeks divorce by mutual consent. In this case, estranged spouses can mutually agree to a settlement and file for a “no-fault divorce” under Section 13B of the Hindu Marriage Act 1955. All marriages which have been solemnized before or after the Marriage Laws (Amendment) Act 1976 are entitled to make use of the provision of divorce by mutual consent. However, for filing for a divorce on this ground, it is necessary for the husband and wife to have lived separately for at least a year.
Procedure for Filing for Divorce
The procedure for seeking a divorce by mutual consent, is initiated by filing a petition, supported by affidavits from both partners, in the district court. Known as the First Motion Petition for Mutual Consent Divorce, this should contain a joint statement by both partners, that due to their irreconcilable differences, they can no longer stay together and should be granted a divorce by the court. The actual process of filing for divorce, however, begins with the hiring of a lawyer. After the petitioner and his/her lawyer have decided on which grounds to file for divorce, a divorce petition is formally drafted and filed in the relevant court. The petitioner is required to provide his/her legal representative with photocopies of the following documents:
- Income tax statements for the last 2-3 years
- Details of the petitioner’s profession and present remuneration
- Information related to family background of the petitioner
- Details of properties and other assets owned by the petitioner
Here it may be mentioned that it is in the interest of the petitioner, to provide all details of his/her marriage to the lawyer. This will not only include facts related to when and where the petitioner and spouse got married, but also details on how problems cropped up in their marriage and the events that finally led to the petitioner seeking divorce. The more honest the petitioner is with the lawyer, the easier it will be for the latter to present a strong case for his/her client.
After the first petition for divorce has been filed, the petitioner can sign a “vakalatnama” is which a document giving the lawyer the authority to represent the petitioner in court. After the petition has been received by the court, it will send a notice and a copy of the petition to the estranged spouse of the petitioner, asking him/her to appear before the court on a specified date. From here on, the legal process of seeking a contested divorce will take its own course.
The Indian legal system does not have very exhaustive divorce laws for marriages with or among non-resident Indians. However if a couple has got married in India under the Hindu Marriage Act 1955, the partners can file for divorce by mutual consent, like other Indians residing in the country. If both the spouses are residing in a foreign country, Indian law will recognize their divorce according to the laws of that country, only if it is by mutual consent. Even when the divorce is taking place abroad, it is always better to hire a lawyer who is aware of Indian divorce laws relating to non-resident Indians.
The whole procedure of going through a divorce in India is fraught with emotional, social and legal complexities. Besides being an exceedingly traumatic personal experience, partners, especially women, going through divorce face discrimination from their communities and even their families. Moreover, the long drawn-out litigation creates pressure on already stretched resources. However, there are several state agencies as well non-government organizations, which offer legal and emotional counselling and sometimes even financial aid, for spouses going through divorce. The important thing is to keep one’s courage through it all and continue to fight for one’s own well being.