Procedure for filling a divorce

According to the Hindu Marriage Act, 1955; a petition for a ‘mutual divorce’ can be filed if you and your spouse are facing difficulties and have decided to part your ways legally. you can even file for divorce if the other party is not willing to get a divorce- this is called, ‘Contested Divorce’.

The conditions required under section 13B of the Hindu Marriage Act are as follows:

(i) Husband and wife have been living separately for a period of one year or more.

(ii) That they are unable to live together.

(iii) And that both husband and wife have mutually agreed that the marriage has totally collapsed. Hence marriage should be dissolved. Under these circumstances, a Divorce by Mutual consent can be filed.

As per the Indian Legal system, a divorce procedure fundamentally begins with the filing of a divorce petition.

 

Where to file a divorce petition:

1. The court can be one where a couple seeking divorce last lived.

2. The court can be one where the marriage was solemnized.

3. The court can be one where the wife is residing as of the present.

According to the Hindu Marriage Act, 1955; a petition for a ‘mutual divorce’ can be filed if you and your spouse are facing difficulties and have decided to part your ways legally.

You can even file for divorce if the other party is not willing to get a divorce- this is called, ‘Contested Divorce’.

Step 1: Petition to file for divorce

Firstly, a joint petition for dissolution of marriage for a decree of divorce is to be presented to the family court by both the spouses on the ground stating that they have not been able to live together and have mutually agreed to dissolve the marriage or they have been living separately for a period of one year or more.

This petition will, then, be signed by both the parties.

 

Step 2: Appearing before Court and inspection of the petition

Both the parties will have to appear before the family court after the filing of the petition.

The parties would present their respective counsels/lawyers.

The court would critically observe the petition along with all the documents presented in the court.

The court may even attempt to bring reconciliation between the spouses, however, if this is not possible, the matter proceeds for further follow-ups.

 

Step 3: Passing orders for a recording of statements on oath

After the petition is scrutinized by the court and it satisfies, it may order the party’s statements to be recorded on oath.

Step 4: First Motion is passed and a period of 6 months is given before the Second Motion

Once the statements are recorded, an order on the first motion is passed by the court.

After this, a six months period is given to both the parties to a divorce, before they can file the second motion.

The maximum period to file for a second motion is 18 months from the date of presentation of the divorce petition in the family court.

 

Step 5: Second Motion and the Final Hearing of petition

Once the parties have decided to go further with the proceedings and appear for the second motion, they can proceed with the final hearings.

This includes parties appearing and recording of statements before the Family Court.

Recently, the Supreme Court has held that the 6 months period given to the parties can be waived off at the decision of the court.

Therefore, the parties who have genuinely settled their differences including alimony, custody of the child or any other pending issues between the parties, this six months it can be waived off.

Even if the court is of the opinion that the waiting period will only extend their sufferings, the six months can be waived off in this case also.

 

Step 6: Decree of Divorce:

In a mutual divorce, both parties must have given consent and there shall not be any differences left in the matters related to contentions regarding alimony, custody of a child, maintenance, property, etc.

Thus, there needs to be complete agreement between the spouses for the final decision on the dissolution of marriage.

If the court is satisfied after hearing the parties that the allegations in the petition are true and that there cannot be any possibility of reconciliation and cohabitation, it can pass a decree of divorce declaring the marriage to be dissolved.

The divorce becomes final once the decree of divorce has been passed by the court.

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