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Divorce Law in India

In India, divorce can be obtained through the court process, which can be time-consuming and costly. The process typically begins with the filing of a petition for divorce with a court, followed by a period of time during which the parties are required to attempt reconciliation. If reconciliation is not successful, the court will proceed with a trial.
In recent years, there has been a growing demand for more streamlined and efficient divorce processes in India, and the Indian government has introduced various reforms to make the process faster and less costly. Alternative dispute resolution methods, such as mediation and arbitration, are also becoming more popular as a way to resolve divorce disputes.
It’s important to note that divorce laws in India also have some religious customs and practices involved, and they can vary between different communities.

Types of Divorce

• Mutual Consent Divorce
  This type of divorce is based on mutual agreement between the parties. Both husband and wife have to file a joint petition for divorce with the court and have to prove that they have been living separately for at least one year. The court will grant the divorce if it is satisfied that the parties have mutually agreed to the divorce and that their marriage has irretrievably broken down.

• Contested Divorce
  This type of divorce is based on one party’s allegations of grounds for divorce such as cruelty, desertion, conversion to another religion, and mental or physical incapacity under the Hindu Marriage Act, 1955, or Adultery, cruelty, and desertion under the Special Marriage Act, 1954. The court will hear both sides of the story and make a decision based on the evidence presented.

• Divorce by Mutual Consent Under Section 13B
  This type of divorce is an amendment to the Hindu Marriage Act, 1955, and it’s a faster way of obtaining mutual consent for divorce. The parties have to file a joint petition for divorce and have to be living separately for at least six months before the filing of the petition.

• Divorce by the court on the grounds of Irretrievable Breakdown of the Marriage
  This type of divorce is available under the Hindu Marriage Act, 1955, and Special Marriage Act, 1954, which was added by an amendment in 2019. This allows the court to grant a divorce if it is satisfied that the marriage has irretrievably broken down and the parties have been living separately for at least three years.

It’s important to note that the divorce process and the time frame for obtaining a divorce can vary depending on the type of divorce and the specific circumstances of the case. In some cases, the divorce process can be completed relatively quickly, while in other cases, it can take several years.

Procedure to File for Divorce

1. File a Petition for Divorce
   The first step in the divorce process is to file a petition for divorce with the appropriate court. The petition must include specific grounds for divorce, such as cruelty, desertion, or conversion to another religion, depending on the type of divorce being sought.

2. Serve the Petition
   Once the petition has been filed, it must be served on the other party. This can be done by personally delivering the petition or by sending it through registered post.

3. Wait for the Response
   After the petition has been served, the other party will have an opportunity to respond. They may file a counter-petition or contest the grounds for divorce.

4. Attend Counseling
   In some cases, the court may require the parties to attend counseling or mediation in an attempt to reconcile the marriage.

5. Attend the Court Hearing
   If the parties are unable to reach a settlement or reconcile, the case will proceed to a court hearing. Both parties will have an opportunity to present evidence and call witnesses to support their case.

6. Obtain the Decree of Divorce
   After the hearing, the court will make a decision and grant the decree of divorce, which is a legal document that officially ends the marriage.

It’s important to note that the divorce process can be lengthy and time-consuming, and it can vary depending on the jurisdiction and the specific circumstances of the case. It’s recommended to hire a lawyer who is specialized in family law and has experience in handling divorce cases to guide and represent you through the legal process.

Duration of Divorce

For example, a mutual consent divorce, which is based on mutual agreement between the parties, can typically be completed within 6 to 18 months, as long as both parties are willing to cooperate and the court is satisfied that the marriage has irretrievably broken down.

A contested divorce, on the other hand, can take longer. A contested divorce is based on one party’s allegations of grounds for divorce, such as cruelty, desertion, conversion to another religion, and mental or physical incapacity. The court will hear both sides of the story and make a decision based on the evidence presented. This type of divorce can take several years to be completed, as it often requires a long legal process, including court hearings, evidence collection, and the examination of witnesses.

Divorce by mutual consent under Section 13B of the Hindu Marriage Act, 1955, which is a faster way of obtaining mutual consent divorce, takes a minimum of six months from the date of filing the petition.

Divorce by the court on the grounds of irretrievable breakdown of marriage, which is available under the Hindu Marriage Act, 1955, and Special Marriage Act, 1954, takes a minimum of three years from the date of filing the petition.

What is the Cost of Litigation in a Divorce Case?

Typically, the cost of filing a divorce petition can range from a few thousand rupees to tens of thousands of rupees, depending on the jurisdiction and the type of divorce. Additional costs may include court fees, process server fees, and other miscellaneous expenses.

Lawyers’ fees can vary widely depending on the lawyer’s experience, location, and the specific circumstances of the case. Some lawyers may charge by the hour, while others may charge a flat fee or a percentage of the settlement. In general, lawyers’ fees for a divorce case can range from a few thousand rupees to several lakhs of rupees.

In contested divorce cases, the cost of litigation can be high due to the need for legal representation, court appearances, and evidence collection. The cost of hiring expert witnesses, such as forensic accountants, appraisers, and mental health professionals, can also add to the cost of litigation.

In mutual consent divorce cases, the cost of litigation is generally lower as both parties are in agreement, and the process is faster.

It’s important to keep in mind that the cost of litigation can also be affected by factors such as the length of the divorce process, the number of court appearances required, and the need for expert witnesses. It’s advisable to consult a lawyer to have a clear understanding of the cost involved in the divorce process.

Important things to consider in case of a Mutual Divorce

• Grounds for Divorce
  Mutual divorce is based on mutual agreement between the parties, and the grounds for divorce must be that the marriage has irretrievably broken down. Both parties must file a joint petition for divorce with the court.
• Living Separately
  Both parties must have been living separately for at least one year before filing the divorce petition.
• Child Custody
  If there are children from the marriage, it’s important to consider and agree on the custody arrangements for the children.
• Property Division
  It’s important to consider and agree on the division of property acquired during the marriage.
• Maintenance
  Both parties should consider and agree on the maintenance for the spouse and the children.