Divorce has often been a social taboo in Indian culture, especially in the middle class. However, we all agree that sometimes it is just better to separate than to go on living together with a partner with whom it is not working out. In fact, the Hindu Marriage Act has been in effect since 1955, to provide a sound legal framework for the dissolution of marriages. Now, divorces can be a hassle, not to mention expensive. That is why we suggest going for a reputed law firm like Lex Solution so that you can understand the law and not have to worry about unprofessional lawyers trying to rip you off.
There are two types of divorce petitions in India according to section 13 of the Hindu Marriage Act, 1955. These are divorce with mutual consent and contested divorce.
Divorce With Mutual Consent
When both partners are in agreement that their marriage can no longer last, they can file for a mutual consent divorce. Under Section 13B of the Hindu Marriage Act, either partner, as long as they belong to the Hindu, Sikh, Jain, or Buddhist community, can obtain a divorce based on mutual consent.
Conditions for Filing a Mutual Consent Divorce
There are a few conditions that need to be met before filing a divorce based on mutual consent in India:
- The partners have to live separately for at least 1 year or more
- They have been unable to live together
- They should mutually agree that their marriage is unsaveable and should be dissolved
To file for an uncontested divorce in India, The couple must file a petition in the family court of the location they last lived together as a couple. The court after hearing the petitions of both parties, records, and their statements and adjourns for a period of 6 months.
These 6 months are given to the parties as the last chance to settle their differences so as to not make any hasty decisions. After 6 months, if both the husband and wife still stick to their decision to separate, the court confirms their statements. In the second hearing, after the court examines all evidence and statements provided to it, it will grant a divorce to the parties.
The matter of child custody, alimony, maintenance, and distribution of the property or assets should be mutually agreed upon in an uncontested divorce. Child custody can be shared or joint depending upon the mutual agreement and understanding of the couple. There is no minimum or maximum limit too when it comes to supporting (alimony or maintenance). Some mutual consent divorce proceedings can take up to 18 months, depending on the court’s decision.
Contested divorces are more common and the messier of divorce types in India. This type of divorce can also be filed by either the husband or the wife. The contested divorce rules in India as mentioned in Section 13 of the Hindu Marriage Act, 1955 are:
- Adultery – Either of the partners has had voluntary sexual intercourse with a person other than his or her spouse.
- Cruelty – Has treated their spouse with cruelty i.e., has been abusive.
- Desertion – Has deserted or has been willfully neglecting their partner, without their consent or against their wishes, for a period of at least two years before the petition has been presented in court.
- Conversion – Has converted to any other religion.
- Mental Disorder – Has been suffering from mental illness, arrested development, schizophrenia, or any other psychological disorder that makes them unusually aggressive or unable to function reasonably and requires medical care.
- Venereal Disease – Has been suffering from any kind of venereal disease that is communicable (includes Leprosy too).
- Non-resumption of cohabitation – There has been no resumption of cohabitation for a period of 1 year or more after filing for a judicial separation.
- Non-restitution of conjugal rights – Cohabitation has not been restored even after a judicial decree has been passed in a previous proceeding or has wilfully refused to consummate the marriage.
- Presumed Dead – Whereabouts of either spouse have been unknown for over 7 years.
- Renouncement – Has renounced the worldly life and affairs after entering a religious sect, cult, or order.
Special Provisions for a Wife
There are some special provisions under which a wife may be eligible to file for a contested divorce under 13 of the Hindu Marriage Act, 1955. These are:
- In case the husband has or had another wife before marriage with the aggrieved party. Or in case he married after the commencement of their marriage.
- In case the husband has been guilty of rape, sodomy, or bestiality since their marriage.
- In case the husband has failed to comply with a maintenance order since they have been living separately and cohabitation has not resumed within a period of 1 year or more.
- In case the marriage was solemnized before the wife was of legal age.
A divorce can be filed on any of the above grounds. However, it is important to note that either of the two divorce types in India needs corresponding evidence to be submitted to the court proving the validity of the reason for filing the divorce petition. It may take time to be clear to an average person how to confirm any or some of the more sensible reasons for filing a claim. Here is where they should take the assistance of reputed law firms like Lexsolution, so that they can be guided through the process of filing for a divorce claim, without much hassle. These firms can help with post-divorce proceedings too, like the matter of alimony, child custody, and division of assets – movable or otherwise.
To deal with different types of divorce in India, LEX Solutions has the best team of lawyers that are aware of each and every aspect of divorce. Their team is highly skilled and experienced in the divorce domain of law. So if you need to get a fast divorce or settlement, you should immediately contact them and book an appointment right now.