Making a decision regarding divorce is one of the toughest decisions of one’s life. But sometimes to make the life of both the pillars of the institution called marriage it is essential to make such decisions. It is a stereotype attached to divorce that marriage should not be broken up. That was the reason in the ancient time there were less divorces. But in the last few decades cases of divorce have been increasing because now people are very much aware of their rights. The procedure of filing a divorce petition under the Hindu Marriage Act of 1955 is a little complicated, hence one must take the assistance of a lawyer while filing the petition. In the entire process of divorce, a divorce petition plays a very important role. Hence, while filing such a petition before the court, one must be aware of everything regarding it in detail. The current blog will discuss the divorce process and filing a petition for the same before the Indian courts.
Types of Divorce in India
Given below are the two forms of divorce in detail:
Mutual Divorce
When both parties are ready to get separated through a divorce with each other with mutual consent, this is known as mutual divorce. In a mutual divorce, both parties file a divorce petition together before the court as per the jurisdiction. This type of divorce has been given under section 13B of HMA of 1955. There are two grounds for taking mutual divorce which are given below:
- Both parties have to live separately for one or more than a year
- It is impossible for both parties to live together under any circumstances
Contested Divorce
When one party, either husband or wife, files a divorce petition before the court for divorce is known as a contested divorce. Contested divorce has been given under Section 13 of the Hindu Marriage Act 1955. Such kinds of divorce are a little bit difficult to take in comparison to mutual divorce. These types of divorce cases are more than mutual divorce cases. Anyone either husband or wife, can file a divorce petition under such type of divorce. There is no restriction on the same, but before filing a petition for divorce, one must check the jurisdiction.
Filing a Divorce Petition in India
There is a proper step-by-step procedure to obtain a divorce as per the Indian laws. To take any kind of divorce parties have to follow the given procedure:
Draft a Divorce Petition
The very first step to take divorce is to present the petition for divorce before the court. For presenting any such petition, it is necessary to draft a petition. It is suggested to take the help of a family lawyer while drafting the petition for divorce. Each and everything regarding the divorce should be mentioned in it. It is the first document regarding the divorce that is presented before the court, and the entire case has depended on the same. Hence, this document must be drafted with all the care and caution.
File the Petition
After drafting the petition for divorce, the parties need to present the same before the court having jurisdiction in the same case. Maybe the parties are not familiar with the court process, hence in such circumstances, it is necessary to hire a family lawyer who can assist you while getting a divorce. Also, it is necessary that the petition must be filed in that Court where the jurisdiction falls in the respective case. Parties or parties have to be present when the divorce petition has been filed before the court. Once the petition gets admitted to the court, it will refer the matter to the reconciliation process. Even after this process if parties do not change their decision, the case will again go to the court. And then the court will record the statements of both parties.
Final Hearing
After the recording of the statements and before the final hearing, parties have to pass various motions which will be time-consuming. This time has been given so that parties have time to make decisions calmly. Proper time has been given to the parties so that they can think properly before taking the divorce. Finally, after giving them sufficient time and hearing everything regarding the case, the court will come to the stage of final hearing.
Decree of Divorce
Now when the case reaches the final stage, the court will pass the degree of divorce. The court will pass the degree of divorce when it is satisfied that there is no chance between the parties to live together. Also when the parties clearly state that their issues will not be resolved and they want to separate. Even if there is little chance between the parties to live together again, the court may not pass the decree of divorce. Without the decree of divorce, one cannot divorce. Decree of divorce is the final stage of taking divorce.
Drafting of Petition for Divorce
As per Section 20 of the Hindu Marriage Act of 1955, a divorce petition must contain some particular type of content and verifications. Some of the main content and verifications of the petition for divorce are given below:
- Clear grounds for the divorce must be mentioned
- The facts of the case should be clearly mentioned in the petition
- The name and proper address of the parties must be mentioned
- There must not be any collusion between the parties of the marriage
- The signatures of both parties are necessary
- The content of the petition must be verified by the petitioner
- All the information in the petition must be cross-checked
- A petition must be error-free
Where to file a petition for Divorce in India?
As per section 19 of the Hindu Marriage Act of 1955, the petition for divorce must be presented before the district court within the local limits of whose ordinary and original jurisdiction of the civil nature the case will fall:
- The place where the marriage of both the parties of the petitioner has been solemnised
- In case the wife is the petitioner, then the current residing place of the wife has the jurisdiction
- Where the respondent, resides during the time of the presentation of the petition for divorce in India
- Parties to the marriage last resided together
Conclusion
Divorce in India involves a meticulous legal process, whether mutual or contested. Seeking legal counsel is advisable to navigate the complexities and ensure that all necessary steps are followed. The court’s primary goal is to explore reconciliation before granting a divorce, emphasising the importance of careful consideration and proper legal procedures in this life-altering decision. The divorce petition must comply with Section 20 of the Hindu Marriage Act. It should contain specific content and verifications, with no collusion between the parties. As the divorce process involves a lot of formalities, it is suggested that the parties take the help of the family lawyer for better guidance.
