Date : 16 Jul, 2019

Post By Pranjal Jain

This article will enlighten you as to what is a divorce, what are its types. The article also talks about the whole procedure on how to file for divorce in India.

 What is Divorce?

It is a process by which legal obligation are met with during the annulment of the union. It is done as men or women cannot simply walk out of the marriage or the relationship without caring about the responsibility of their partner’s well-being.

The Process of Divorce

A divorce can be granted in two ways – (1) Divorce by Mutual Consent, and (2) Contested Divorce.

(1)  Divorce by Mutual ConsentIn this type of divorce, mutual consent of both the parties is present. Both the parties agree for a peaceful separation. It is a very simple way of coming out of a marriage and dissolving it legally. Alimony, maintenance, child custody is decided by the parties mutually.

Procedure of Mutual Consent Divorce:

1.  Joint Petition: The process starts by filing of a joint petition, signed by both the parties, in the Family Court. The petition contains statements by both the parties, and states that due to their irreconcilable differences, it is impossible for them to stay together and thus it is best for them to get a divorce. Lastly, the statement also contains agreement about the division of assets, custody of children etc.

2.  Appearance of Parties: Both the parties appear before the Family Court after filing of the petition. The court then fixes a date when the parties will present themselves with the counsels.

3.  Scrutiny of Petition by Court: The court then examines the petition and documents filed by the parties. If the court is satisfied, it orders for the recording of statement of parties on oath. Sometimes, the court tries to bring reconciliation. If it fails, the divorce matter is continued.

4.  Recording of statement and passing of the order on First Motion: After recording of statement, an order of first motion is passed by the court.

5.  Second Motion: After this, parties are given 6 months period, and after the expiry of these 6 months, the parties have to file the second motion within 18 months from the date of first motion. The 6 month period is not mandatory and can be waived of by the parties.  If the second motion is not made within 18 months, then the court will not pass a decree.

6.  Decision of the Court: Court will pass a decree when it is completely satisfied with the agreement and intention of the parties. After the passing of decree by the court, the divorce becomes final.

(2)  Contested DivorceAs the name tells, in this type of divorce, you will have to contest it. It is filed when one party wants to divorce the other party without his/her consent. This petition is filed in a family court with the help of a divorce lawyer, and the court send a notice to the other spouse.

Process of Contested Divorce:

1.   Hire a Lawyer – First you have to hire a divorce lawyer, who will represent you in the court. He/she will file a petition and will submit the documents.

2.   Divorce Notice – After the court receives the petition, it sends a divorce notice to the other spouse and will ask them to appear in the court and give answers.

3.   Maintenance – The wife can file a maintenance petition for herself and the children, if she is not able to support herself financially. The court can grant maintenance after considering some factors.

4.   Child Custody – A petition for child custody can be filed by any party through their lawyers. The court grants custody of the child keeping the best interest of the child in mind, his/her age etc.

5.   Division of Joint-owned Property – The court also divided the property that is jointly owned by both the parties.

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