Stepwise
Process to Get Divorce in India [CD1]
A particular framework
is designed to be followed for every legal process. And specifically, when it
comes to the dissolution of marriage, a lot of obligations are to be met with.
The contested divorce procedure in India differs from the uncontested one to a
greater extent. The proceeding will be less hectic and financially draining in
case of divorce with mutual consent in comparison to the contested divorce.
Without beating around the bush anymore, let us start with the stepwise divorce
procedure.
Filing the
Divorce Petition:-
The foremost step is to
initiate the process with a divorce petition. Things to consider while filing
the divorce petition are:
Mutual Consent Divorce:
i.
The application for mutual consented divorce will be filed Section 13B of the
Hindu Marriage Act, 1955, or Section 32B of the Parsis Marriage or Divorce Act,
1936, Section 10A of the Indian Divorce Act, 1869, or Section 28 of the Special
Marriage Act, 1954, depending upon the status of the parties. ii. While filing
a petition for mutual consent divorce, the couple must be separated for at
least 1 year and in case of the Indian Divorce Act, the period of separation is
2 years. iii. A settlement agreement outlining maintenance, property
distribution, stridhan, child custody, etc. should be attached to the petition.
iv. After the first statement is recorded, the court gives a time of six months
known as the “cooling-off” period. This period can be waived subject to certain
conditions.
v. The second statement
should be recorded within 18 months of the date of the filing of the petition.
Contested Divorce:
i. When only one party
is willing to separate, he/she can initiate the process in the family court by
drafting a divorce petition. ii. A contested divorce can be filed under Section
13 of the Hindu Marriage Act, 1955 or Section 2 of the Dissolution of Muslim
Marriage Act, 1939 or Section 10 of the Indian Divorce Act, 1869 or Section 32
of the Parsis Marriage and Divorce Act, 1936. iii. The petition must be
properly drafted with legal grounds mentioned and documents attached. iv. There
should be no condonation of the matrimonial offence.
Documents
Required to File a Divorce Petition in India
There are certain
necessary documents which one should be prepared with.
1. In case of mutual consent
divorce
i.
Age, identity proof and address of the petitioners (both husband and wife in
case of divorce with mutual consent). ii. 2 passport size photographs. iii.
Proof of marriage like a Marriage certificate or marriage photographs.
iv. Settlement
agreement
v.
Proof that the couple has been separated for the
time stipulated in the concerned Acts.
vi. Vakalatnama
and other affidavits are also submitted along with the petition.
2. In case of contested
divorce
i.
Identity documents of the petitioner; ii. Proof of marriage like a Marriage
certificate or marriage photographs. iii. Documents, if any, to substantiate
the ground of divorce taken by the petitioner. iv. Income tax statements (both
husband and wife in case of divorce with mutual consent).
v.
Profession and remuneration details of the
petitioner (both husband and wife in case of divorce with mutual consent).
vi.
Property and assets owned by the petitioner (both
husband and wife in case of divorce with mutual consent). vii. Vakalatnama and
other affidavits are also submitted along with the petition.
Service
of Summon
During a contested
divorce, a summon is sent to the other spouse to inform him/her regarding the
divorce petition. The respondent on the receipt of the summon can appear either
in person or through counsel on the date set out in the summon. The summon
delivered to the other party is available with the date on which he/she has to
appear in court in response to the divorce petition. In case, the other spouse
doesn’t appear in court on the date of hearing, the petitioner is going to
enjoy the opportunity of ex-parte. As per this ex-parte hearing opportunity,
the divorce decree will be granted to the petitioner by putting the process to
end.
Response
The respondent after
appearance gets time to file a reply to the petition of divorce. The respondent
in reply has to counter the claims leveled by the petitioner and tell his/her
side of the story to the court.
Replication
After the respondent
files the reply, the petitioner can file a replication which in layman terms is
a reply to the reply filed by the respondent. In the replication, the
petitioner counters all the claims leveled by the respondent.
Trial
All the accusations and
evidence will be addressed in the court during married couples. During the
trial, both the parties will present their points and evidence with witnesses
with the help of their respective divorce lawyers. Thorough evidencing and crossexamination
are done to explore every facet of the case.
Interim
Order(s)
An interim order is an
additional step in the divorce process which is mostly asked for. The
dissolution of marriage in India is not an easy process that one can expect to
end immediately. This may end in a 6 month period or can take 3-4 years or even
more. So in between that period, issues like physical custody of the child or
financial crisis may occur for which interim orders are generated by the court
for the applicant or the respondent.
Majorly,
an application for interim orders is filed for:
i.
Maintenance or financial support till the time of final orders. ii. Custody of
the child until the final order.
Argument
The most crucial step
for a divorce lawyer is the argument stage. The lawyers of both parties are
going to argue in the court after evidence to prove their client’s point.
Various disputes (child custody, alimony, visitation rights, distribution of
assets, property) will also be addressed at this stage.
Final
Orders
After going through all
these steps and convinced with the arguments and evidence, the court will grant
the divorce decree. In case, any of the parties is not satisfied with the
court’s decision, it can be challenged in the higher court.
AFFIDAVIT:
UNDER SECTION 2 OF THE DISSOLUTION OF
MUSLIM
MARRIAGE ACT, 1939
BEFORE THE
HON'BLE DISTRICT COURT,
Affidavit in Divorce O.P. No of
20 Petitioner:
Vs.
Respondent:
AFFIDAVIT I, ,W/o , D/o , aged years, now residing in , do hereby
solemnly affirm and state as follows:—
1.
I say that, I am the deponent abovenamed and I am well acquainted
with the facts and circumstances of the case. I am competent to swear to this
affidavit.
2.
I say that, I and my husband, namely the respondent herein are
both Muslims and were married under the Muslim Law at ,
on ,20
3.
I say that, the respondent was prosecuted and convicted and
sentenced
to imprisonment for a period of seven years
under section 376 of the Indian Penal Code, 1860 in Sessions Case No by the
District and Sessions Court. Further, the appeal preferred by the respondent,
Criminal Appeal No , against the
aforesaid conviction before the
Hon'ble High Court was dismissed. Since the respondent did not
approach the Hon'ble Supreme Court against the said order of the Hon'ble High
Court, the sentence mentioned above has become final.
I say that, in view of the aforesaid fact, I am entitled to a
decree for dissolution of my marriage with the respondent.
It is therefore, in the interest of justice, equity and
conscience that this Hon'ble Court may be pleased to issue appropriate orders
for the dissolution of marriage. Sd./ Deponent.
Verification
Verified at on this the day of ,20 , that the contents of the
above affidavit are true and correct to the best of my knowledge, belief and
information and nothing material has been concealed therefrom. Sd./ Deponent.
Solemnly affirmed and signed before me by the deponent, who is
personally known to me, on this the day of ,20
Sd./
Counsel for the deponent.
Note: Affidavit to be attested by the appropriate authority
prescribed under law. Prayer may be avoided in affidavits and only facts may be
given as far as possible and practical.
Affidavit under Section 2 of Dissolution of Muslim marriage Act.
Format
of Affidavit to be filed with application for Dissolution of Muslim Marriage
Application for Dissolution of Muslim
Marriage under Section 2 of Muslim Marriage Act should to be supported with
affidavit from the Petitioner. The Grounds of Divorce should be clearly
mentioned in the Application. Grounds for seeking divorce under Muslim Marriage
Act is given below after the affidavit format.
Sample Format of Affidavit for Dissolution
of Marriage under Muslim Marriage Act is given below:
BEFORE THE HON'BLE
___________ COURT AT _______
O.P. No __
of 20__
Mrs.
_______________________________ PETITIO NER
VERSUS
MR.
________________________________ RESPO
NDENT
AFFIDAVIT
I,
____________________________, Wife of _____________, Daughter of ______
__________________________ , aged______ years, resident of _______________ , do
hereby solemnly affirm and state as follows:
1.
I say that, I am the deponent above named and I am well
acquainted with the facts and circumstances of the case. I am competent to
swear to this affidavit.
2.
I say that, I and my husband, namely the respondent herein are
both Muslims and were married under the Muslim Law at _________, on______20__.
3.
I say that, the respondent gone abroad for a job in the
year________. There was communication from him for first 6 months. Thereafter I
have not received any communication. We have tried to trace him from __________
country, but not information is received yet.
4.
That the that whereabouts of the Respondent is not been known for
a period of five years.
5.
I say that, in view of the aforesaid fact, I am entitled to a
decree for dissolution of my marriage with the respondent.
6.
It is therefore, in the interest of justice, equity and
conscience that this Hon'ble Court may be pleased to issue appropriate orders
for the dissolution of marriage.
DEPONENT
VERIFICATION
Verified at on this the _____ day of ,20__
that the contents of the above affidavit are true and correct to the best of my
knowledge, belief and information and nothing material has been concealed
therefrom.
DEPONENT
Solemnly affirmed and signed before
me by the deponent, who is personally known to me, on this the day of
____,20__>
COUNSEL FOR
THE DEPONENT
Section
2 in the Dissolution of Muslim Marriages Act, 1939
2. Grounds
for decree for dissolution of marriage
A woman married under Muslim law shall be
entitled to obtain a decree for the dissolution of her marriage on any one or
more of the following grounds, namely:
(i)
that the whereabouts of the husband have not been known for a
period of four years;
(ii)
that the husband has neglected or has failed to provide for her
maintenance for a period of two years;
(iii)
that the husband has been sentenced to imprisonment for a period
of seven years or upwards;
(iv)
that the husband has failed to perform, without reasonable cause,
his marital obligations for a period of three years;
(v)
that the husband was impotent at the time of the marriage and
continues to be so;
(vi)
that the husband has been insane for a period of two years or is
suffering from leprosy or virulent venereal disease;
(vii)
that she, having been given in marriage by her father or other
guardian before she attained the age of fifteen years, repudiated the marriage
before attaining the age of eighteen years.
Provided that the marriage has not been
consummated
(viii)
that the husband treats her with cruelty, that is to say
(a) habitually
assaults her or makes her life miserable by cruelty of conduct even if such
conduct does not amount to physical ill-treatment, or
(b) associates
with women of evil repute or leads an infamous life, or
(c)
attempts to force her to lead an immoral life, or
(d) disposes of
her property or prevents her exercising her legal rights over it, or
(e) obstructs
her in the observance of her religious profession or practice, or
(f)
if he has more wives than one, does not treat her equitably in
accordance with the injunctions of the
Quran;
(ix) on any other ground which is recognised
as valid for the dissolution of marriages under Muslim law:
Provided that-
(a)
no decree shall be passed on ground (iii) until the sentence has
become final
(b)
a decree passed on ground (i) shall not take effect for a period
of six months from the date of such decree, and if the husband appears either
in person or through an authorised agent within that period and satisfies the
Court that he is prepared to perform his conjugal duties, the Court shall set
aside the said decree; and
(c)
before passing a decree on ground (v) the Court shall, on
application by the husband, make an order requiring the husband to satisfy the
Court within a period of one year from the date of such order that he has
ceased to be impotent, and if the husband so satisfies the Court within such
period, no decree shall be passed on the said ground.
THE MUSLIM
WOMEN (PROTECTION OF RIGHTS ON MARRIAGE) ACT, 2019
NO. 20 OF
2019 [31st July, 2019.]
An Act to protect the rights of married
Muslim women and to prohibit divorce by pronouncing talaq by their husbands and
to provide for matters connected therewith or incidental thereto.
BE it enacted by Parliament in the
Seventieth Year of the Republic of India as follows:-
CHAPTER I
PRELIMINARY
Section
1 Short title, extent and commencement
1. (1) This Act may be called the Muslim
Women (Protection of Rights on Marriage) Act, 2019. (2) It shall extend to the
whole of India except the State of Jammu and Kashmir. (3) It shall be deemed to
have come into force on the 19th day of September, 2018
Section
2 Definitions
2. In this Act, unless the context otherwise
requires,-
(a)
"electronic form" shall have the same meaning as
assigned to it in clause (r) of sub-section (1) of section 2 of the Information
Technology Act, 2000;
(b)
"Magistrate" means a Judicial Magistrate of the first
class exercising jurisdiction under the Code of Criminal Procedure, 1973, in
the area where the married Muslim woman resides; and
(c)
"talaq" means talaq-e-biddat or any other similar form
of talaq having the effect of instantaneous and irrevocable divorce pronounced
by a Muslim husband.
CHAPTER II
DECLARATION OF TALAQ TO BE VOID AND ILLEGAL
Section
3. Talaq to be void and illegal
Any pronouncement of talaq by a Muslim
husband upon his wife, by words, either spoken or written or in electronic form
or in any other manner whatsoever, shall be void and illegal.
Section
4. Punishment for pronouncing talaq
Any Muslim husband who pronounces talaq
referred to in section 3 upon his wife shall be punished with imprisonment for
a term which may extend to three years, and shall also be liable to fine.
CHAPTER III
PROTECTION OF RIGHTS OF MARRIED MUSLIM WOMEN
Section
5. Subsistence allowance
Without prejudice to the generality of the
provisions contained in any other law for the time being in force, a married
Muslim woman upon whom talaq is pronounced shall be entitled to receive from
her husband such amount of subsistence allowance, for her and dependent
children, as may be determined by the Magistrate.
Section
6. Custody of minor children
Notwithstanding anything contained in any
other law for the time being in force, a married Muslim woman shall be entitled
to custody of her minor children in the event of pronouncement of talaq by her
husband, in such manner as may be determined by the Magistrate.
Section
7. Offence to be cognizable, compoundable, etc
7. Notwithstanding anything contained in the
Code of Criminal Procedure, 1973,- (a) an offence punishable under this Act
shall be cognizable, if information relating to the commission of the offence
is given to an officer in charge of a police station by the married Muslim
woman upon whom talaq is pronounced or any person related to her by blood or
marriage; (b) an offence punishable under this Act shall be compoundable, at
the instance of the married Muslim woman upon whom talaq is pronounced with the
permission of the Magistrate, on such terms and conditions as he may determine;
(c) no person accused of an offence punishable under this Act shall be released
on bail unless the Magistrate, on an application filed by the accused and after
hearing the married Muslim woman upon whom talaq is pronounced, is satisfied
that there are reasonable grounds for granting bail to such person.
Section
8. Repeal and savings
(1) The Muslim Women (Protection of Rights
on Marriage) Second Ordinance, 2019 is hereby repealed. (2) Notwithstanding
such repeal, anything done or any action taken under the Muslim Women
(Protection of Rights on Marriage) Second Ordinance, 2019, shall be deemed to
have been done or taken under the provisions of this Act.
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