04-Jul-2021 | Article by Legal White Official
Divorce is a process by which a marriage is dissolved. It brings a complete end to any and all marital duties and rights. In order to start the divorce procedure, one has to file a petition known as the divorce petition. The entire divorce process can be classified into six stages namely, filing of the petition being the first, then summons, response, trial, provisional order and lastly the final order.
As for the first stage, which is the petition filing, this can be done by either of the parties in a state court where any one of the party lives. Divorce can be of different types, so it is important to understand the whole divorce process and it is recommended to consult divorce experts or lawyers before moving ahead with the petition. There are several different laws which come under The Divorce Act, based on the couple’s religion such as Muslim Marriage Act 1939, Hindu Marriage Act 1955 etc.
Divorce process in India can be categorized into two main types, firstly, Divorce by mutual consent and secondly, contested divorce. Let’s look at both of them one by one.
Divorce by mutual consent - In the case when both the spouses come to the decision to not live together in the bond of matrimony, they can choose this type, where in they can file a joint petition of divorce and submitted in the appropriate court. Once the petition is accepted by the court, the first hearing is conducted in which, as per the law, the court gives a duration of six months to eighteen months to the parties, this duration is called as “cooling off” period. The time period is given so that the spouses can rethink the possibility of continuing their lives with each other or not. In case the parties could not harmonize, they can move ahead with the divorce petition.
After the second motion, the court will evaluate all the points in the joint petition and if the court is satisfied that either of the party is not forced into it, the court will pass the judgment and the divorce will be attained. The divorce petition may also have some settlement clauses which the court ensures are executed. As per, Special Marriage Act 1954 and Hindu Marriage Act 1955, it is a must for the couple to have separated for over a year or more for filing the joint petition.
Contested Divorce - Marriage is about trust and rights which is for both the spouses. In case either of the party violates the rights, the other can file a divorce petition. This type of divorce is time consuming and a bit more complex as the party has to prove that the breach has taken place. There are several rights which are common for all religion however there are many which are specific for a particular religion. Some of the examples under Hindu Marriage Act are, adultery, desertion, converting to other religion etc. Under Muslim Marriage Act the rights are, Husband stops providing for maintenance for two or more years, husband becomes impotent etc.
The above information is just the tip of the iceberg; there are several other crucial information which one might look for before going ahead with the divorce process. As mentioned above, it is important to consult a lawyer or an expert before filing the petition.