A complete guide to filing a divorce petition in India. (According to the Hindu law of marriage)

Sarthak Chaturvedi
Advocate - Supreme Court of India

In ancient times the institution of marriage was considered sacred and the only way to end a marriage was the death of the spouse. Now the time has changed. For the interest and the larger good of the society, the concept of divorce was introduced by the Hindu Marriage Act, 1955, which clearly defines divorce as a dissolution of the marriage. As per the Indian legal system, the procedure of divorce starts with the filing of the divorce petition. If the relationship of You and your spouse is not good and you both want to part your ways legally then under the Hindu marriage act of 1955 you can file for a ''mutual divorce''. Moreover if only one of the partners is willing to get a divorce then he/she can file for ''contested divorce''. After reading this complete guide to getting a divorce in India you will have answers for the following questions!

1) Where to file a divorce petition in India?
2) How long does it take to take a divorce in India?
3) What are the types of divorce in India?
4) What are the steps of mutual consent divorce in India?
5) What are the steps of the contested divorce in India?

Where to file a divorce petition in India?
According to Section 19 of the Hindu Marriage Act, 1955, the petition of divorce can be presented to the District Court of the concerned place:  

Section 19 of the Hindu Marriage Act of 1955 offers 5 options to file the divorce petitions. The concerned party can opt for any one of them as per their convenience.
Clause( I)-  It states that the divorce petition can be filed where the marriage was solemnized. For Instance, If someone had married in Uttarakhand then they can file for a mutual divorce before the concerned court in Uttarakhand.

Clause (ii)- According to the clause (ii) the Divorce can be filed where the Respondent put up. ( In case of the mutual divorce, any one of them can be considered as respondent/ Second party. While in case of the contested divorce the one who files the petition is called petitioner and the one who receives the petition is called the respondent)

Clause (iii)-  
It states that the divorce can be filed where both the husband and wife last shared the residence. ( The residence need to be the permanent one).
Although if the petitioner is the wife then she can simply file the petition where she is currently residing.

Clause (iv)- The divorce can be filed against the other in a case when the other spouse is residing outside the territories to which this Act extends, or has not been heard of for a period of seven years.


How long does it take to take a divorce in India?
As far as mutual divorce is concerned it takes a minimum of 6 months to get a divorce. While In case of the contested divorce it solely depends on the nature of the case. In some cases it can take more than 2 years to get a divorce.

What are the types of divorce in India?
According to the Hindu law of marriage, there are mainly 2 types of divorce in India:

1) Section 13-B of the Hindu Marriage Act of 1955 describes the Mutual Divorce.
2) Section 13 of The Hindu Marriage Act of 1955 describes the contested Divorce.

What are the steps of mutual consent divorce in India?
Let us first understand what mutual consent divorce is?
If the relationship of both husband and wife is not good and they both want to part their ways mutually and legally then under the Hindu marriage act of 1955 they can file for a ''mutual divorce''. 

Following are the grounds on which the couple can get a mutual divorce:
1) Parties have been living separately for a period not less than one year
2) If no reconciliation or adjustment is possible between them.
3) The parties have mutually agreed on the dissolution of the marriage.
 Steps:
Filing a joint petition:
The petition should be signed by both partners and should have a joint statement by both partners that due to failure for any reason whatsoever to live together they should be granted a divorce. 

Appearance in the court:
The next step is the appearance of both the parties before the family court. The court is one who decides on the date and time of the appearance.

The hearing in the court:
The court closely examines the petition and the documents filed by the concerned parties. If the petition satisfies the court it orders for the recording of statements of the parties on oath. Sometimes the court also tries to reconcile the concerned parties, In the case of a failed attempt of reconciliation the divorce proceeds.

Order on First motion:
Now the order on the first motion is passed by the court. The next step is to file for the second motion, for which court grants a period of 6 months to the concerned parties. This has to be filed before the18 months from the date of the filing of the petition for the first motion.

Order on Second Motion:
By the end of the reconciliation period ( Period of 6 months), the parties can appear for the second and final hearing. This also involves recording the statement of both parties. 
Note: one of the parties may withdraw their consent at any time before the passing of the decree.

Final decision:
If it is complete, free and mutual consent of both the parties for the dissolution of marriage and the court is completely satisfied with the documents and statement presented before it, The court grants the mutual divorce.

What are the steps of the contested divorce in India?

Let us first understand what contested divorce is?
When spouses fail to come in agreement for a divorce proceeding, it's called a contested divorce.

Following are the grounds on which the petitioner can get a contested divorce:
1) Respondent is accused of adultery.
2) Respondent is accused of cruelty.
3) Respondent is accused of desertion.
4) Respondent is accused of religious conversion.
5) Respondent is a patient of a mental disorder.
6) Respondent is suffering from communicable diseases or leprosy.
7) Respondent is not heard of as being alive for more than 7 years.
8) Renunciation of the world by the respondent.

Steps Involved:

First of all, you hire a divorce lawyer to represent your case in court. 
Next, Lawyer Files a divorce petition against your spouse. 

1st hearing

On the first date of hearing, the Judge would carefully examine the Petition and hear opening arguments from the Divorce Lawyer regarding the allegations made in the Petition and the grounds on which the Contested Divorce is filed.

Once the Court is satisfied, it would issue a formal notice for the respondent. Next, a copy of the notice along with the Petition would be sent to the respondent.

2nd hearing
For the 2nd hearing, the respondent is expected to appear before the court and his/her lawyer is expected to submit the reply of the Petition. 

Recording of the evidence. 

Cross-Examination and examination-in-chief of the Petitioner and its supporting witnesses would be recorded first, Next court records 
Cross-Examination and Examination-in-Chief and of the Respondent and its supporting witnesses.

Submitting closing arguments:

After the recording of the evidence, the petitioner's lawyer and respondent's lawyer both are expected to address their final closing arguments. 
Next, the court would fix a date to pronounce its final decision.

Sarthak Chaturvedi

The author is a Lawyer at Supreme Court of India and a Partner at a leading law firm. The views expressed here are personal.

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