A divorce is a legal action between married people to end their marriage before the death of either spouse. There are two types of divorces in India, Divorce by Mutual Consent when both spouses agree to dissolve the marriage and contested divorce. A contested divorce is one where the husband or the wife wants a divorce, but the other doesn’t. Or both want a divorce, but cannot agree on issues such as alimony, custody of children. In a contested divorce one has to prove the court reasons, called grounds, for wanting to separate. Divorce through mutual consent takes a minimum six months to settle, whereas if it takes the court route it may take anything between 2-5 years depending on the case. Let’s look into these two types of divorce in India, process, fees.
Table of Contents
Types of Divorce
Divorce is the dissolution of marriage legally. In India, marriage and divorce come under personal matters and the laws are on the basis of customs and rights of different religions discussed below. There are three important factors which need to be sorted out at the time of divorce :
- Settlement of property, assets, liabilities
- Custody of child
The Indian Divorce procedure can be broadly classified into two different categories.
- Divorce by Mutual Consent: When both spouses agree to dissolve a disturbed marriage they can pursue the Indian divorce procedure with Mutual Consent. One needs to file a joint divorce petition. Court will give a period of six to eighteen months to the parties, called the cooling-off phase, to reconcile. If they cannot reconcile then they have to discuss the terms of the settlement. And also have to file second motion and Court passes a Decree of Divorce.
- Contested Divorce: A contested divorce is one where the husband or the wife wants a divorce, but the other doesn’t. Or both want a divorce, but cannot agree on issues such as alimony, custody of children. In a contested divorce one has to prove the court reasons, called grounds, for wanting to separate. Reasons can be like adultery, desertion, cruelty, impotency and chronic diseases like leprosy, venereal disease etc. Such grounds can be challenged by the other party. This makes contested divorce proceedings long, stressful and relatively expensive. It often happens that a couple starts the divorce proceedings by way of a contested divorce, but over the course of the trial, agree to divorce by mutual consent. In India, the grounds of divorce are decided based on the religion of the couple.
Divorce through mutual consent takes a minimum six months to settle, whereas if one goes for contested divorce it may take anything between 2-5 years depending on the case.
The legal process in India is quite painful, long and expensive. A couple can save on legal expenses if they mutually arrive at a financial settlement. They can also take the help of their neutral friends and family members.
If the divorce is happening by mutual consent, the problems of splitting in the assets in a manner fair to both parties can be resolved. However, if it isn’t by mutual consent, the husband, who is usually the breadwinner in India society, can resort to concealing assets and income, so that the wife doesn’t get her rightful share. Men usually do this by stashing cash in lockers, showing low income and high expenses and unloading a property to family and friends with the understanding they will get it back after the divorce settlement is final.
The court can dismiss any petition of divorce if it feels that divorce cannot be granted.
Our article Divorce: The process, Settlement, Custody of Children and Alimony discusses the Settlement, Custody of Children and Alimony in detail.
Divorce and Religion
In India marriage and dissolution of marriage come under personal matters and the laws are on the basis of customs and rights of different religions as shown below
- The Hindus, Buddhists, Sikhs, and Jains are governed by the Hindu Marriage Act, 1955.
- Muslims by the Dissolution of Muslim Marriages Act, 1939.
- The Parsis are governed by the Parsi Marriage and Divorce Act, 1936.
- The Christians are governed by the Indian Divorce Act, 1869.
- The Special Marriage Act, 1956 is known to govern all inter-community and civil marriages.
Fees associated with Divorce
Generally, the charges for filing a divorce case is not too much. A major part of divorce costs is the fees charged by the lawyer. The various fees a lawyer may charge are given below.
For mutual consent divorce for the complete process, INR 15,000 – 30,000 by Lawyers with experience of 1-3 years.
Divorce through contest: This is expensive as there are arguments and cross arguments. HE COST OF LITIGATION IS DIRECTLY PROPORTIONAL TO THE TIME DURATION OF THE LITIGATION.
Lawyer charges in Mumbai from a minimum of INR 3000-7000 per hearing (Experience of 3-5 years). Going for a veteran lawyer can eves cost you around INR 35,000 per hearing.
|Type of Fee||Reason|
|Consultation fees||Depends on the reputation and experience of the lawyer|
(place where the case will be filed)
|Different lawyers in different cities have different fee according to their High Court or Civil Court practice.
If the hearing is to take place in the Supreme Court, the fees will automatically rise.
|Appearance fee||The lawyer might take fees on the basis of per hearing also.|
|Drafting fee||At different steps, the court procedure requires certain documents. A Lawyer may also charge for drafting notices, affidavit, settlement, agreement etc.|
One can find lawyers wandering around the premises of any family court in any city who guarantee a win-win situation for a lump-sum amount of INR 10,000 to 15,000. Beware of such lawyers. Such advocates often play with clients. They initially say the case will get settled within lump-sum amount but later ask for money to facilitate court proceedings and other miscellaneous charges. They intentionally delay the procedure and there have been situations in the past where the couple seeking divorce left the very idea of it due to the heavy amount of money flowing through their pocket.
Divorce by Mutual Consent
Divorce by mutual consent under Section 13-B makes provision on the ground that
- Both have been living separately for a period of one year or more.
- They have not been able to live together.
- They have now mutually agreed for the dissolution of the marriage.
As per the Indian Legal system, a divorce procedure begins with the filing of a Joint Divorce Petition in the family court which can at
- Place where the couple last lived.
- Place where the marriage was solemnized.
- Place where the wife is residing at present.
Process of Divorce by Mutual Consent under Hindu Religion
- a Joint Divorce Petition will be drafted, signed, and verified by both the husband and wife; which then needs to be filed before the appropriate court. If any party is not available, any such family member of such party may file the statement on his behalf. Once this is done, ‘First motion’ is established. Sample Joint Divorce petition for Hindu Marriage Act(HMA) is given here India-Mutual-Divorce-Petition-Form
- After filing of the joint petition, the court will give a period of six months (which can be extended to eighteen months) to the parties, called the cooling-off phase, to reconcile.
- The waiting period of six months can be waived in some cases such as when the applicants are already living separately for more than 6 months. Then the court does not insist that the parties should go through the futile waiting for the completion of six months.
- In this intervening time, either party can withdraw their consent. If neither party withdraws consent, then comes the second motion stage
- If during cool-off the spouses do not reconcile then both need to file the second motion.
- In the stage of the second motion, both parties have to be present to confirm their consent by recording their statements in the court. Here, the physical presence of the parties is compulsory, unlike in the first motion stage where a power of attorney could be granted.
- The alimony or maintenance is to be fixed through mutual agreement. Also, the couple has to come to an agreement as of who will hold the custody of the child.
- If the court is satisfied that both are going for the divorce, free from any coercion or undue influence then the court will pass a Decree of Divorce. The divorce becomes final once the decree of divorce has been passed by the court. On the basis of the terms of settlement which both the parties have agreed and written in their divorce petition. Decree of Divorce of TV actors Karan Singh Grover with his wife Jennifer Winget is shown below. The couple, who tied the knot in April 2012, decided to go their separate ways after two years of marriage. They had filed their petition on 9 Jun 2015 and their divorce was granted on 11 Jan 2016.
- For details read Karan Singh Grover and Jennifer Winget are divorced
Documents required to file Divorce by Mutual Consent
The divorce attorney files the divorce petition along with other necessary documents:
- Address proof of husband;
- Address proof of wife;
- Marriage certificate;
- Photographs of the marriage of husband and wife;
- Evidence proving spouses are living separately for more than a year, and
- Evidence relating to the failed attempts of reconciliation.
Further when the case proceedings are going on in the Courts; there are certain other documents which have to be presented to get a Divorce Decree:
- Income Tax Returns (3 years);
- Details of present income;
- Birth and family details, and
- The details of the assets.
The provisions of section 23(1)(bb) of the Hindu Marriage Act requires the Court to satisfy itself that consent for divorce under section 13-B has not been obtained by force, fraud or undue influence
The court does its inquiry on the following aspects. if the Court is satisfied that conditions are fulfilled, the decree of divorce deserves is passed
- Whether the marriage has been solemnized between the parties.
- Whether the parties have been living separately for more than a year before presenting the petition.
- Whether they were not able to live together at the time of presenting the petition and continue to live apart.
- Whether they had mutually agreed to dissolve the marriage before or at the time the petition was presented.
- Whether the averments made in the petition are true and conditions under section 23 are fulfilled.
Process of Contested Divorce
- Lawyer files for a divorce petition on behalf of the petitioner in family court or civil court
- Issue of notice/summons to the other party.
- Issues are framed by the court. The two parties are requested to submit the evidence.
- Pleading begins. Allegation and counter-allegations are made by the parties contesting the divorce. The case will extend over multiple hearings. It is this step which takes time and increases the cost of litigation.
- The conclusion of the evidence and finally closing with final arguments.
- The matter is then listed for passing the judgment.
- Judgement and Decree of Divorce
Documents required to file a petition for contested divorce
The documents required for the filing of divorce petition for a contested divorce are:
- Address proof of husband.
- Address proof of wife.
- Marriage certificate.
- Four passport size photographs of both husband and wife.
- Evidence which proves that both the husband and wife have been living separately.
- Evidence proving that the attempts were made to reconcile but were not successful.
- Income tax statements for the last two-three years.
- Details of the profession and present remuneration of the petitioner.
- Information regarding the family background of both parties.
- Details of the property owned by the petitioner.
Resolution of the 3 major aspects of Divorce
Resolution of the maintenance issues
The obligation towards the other partner does not end up with divorce. As per the law, under the code of criminal procedure, 1973, the right of maintenance extends to the person who is economically dependent on the marriage. The court usually takes into account whether the two parties have sufficient ability to pay the expenses. Factors like the economic condition, health condition, age of the spouse, and the custody of the child are considered during the resolution of the maintenance issue.
Resolution of the Property matters
The court of conduct also takes into account the property matter settlement while the divorce is granted to the two parties. As per the law, both parties possess equal rights to remain in the occupied property until the property is granted to one of the two spouses.
Resolution of child custody matters
Overview of Divorce in Picture
This image from ET Wealth 20 Jan 2020 gives an overview of Divorce contested and with Mutual consent.
While the court decides on this matter, it usually looks over the factors that would be of the best interest to the child. The court during this matter looks into the ability of the two partners to be the parent of the child. Based on the overall findings, the custody of the child is granted to one of the two parents.
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