PRO­CE­DURE TO FILE FOR DIVORCE IN IN­DIA

Libertatem Magazine - - Igniting Minds -

“Brangelina Split!” The news of the most adored celebrity cou­ple get­ting di­vorced sad­dened their fans around the world. Af­ter 12 years to­gether and 2 years of mar­riage, An­gelina Jolie filed divorce against Brad Pitt over ‘ir­rec­on­cil­able dif­fer­ences’, as re­ported.

No one but the cou­ples know when the most ‘suc­cess­ful mar­riages’ turn bit­ter and the ‘per­fect cou­ples’ part their ways seek­ing dis­so­lu­tion of mar­riage. In In­dia, gone were the days when be­ing a di­vorcee was a sort of so­cial stigma. Today, if ei­ther or both the par­ties to a mar­riage are hav­ing ir­rec­on­cil­able is­sues in the mar­riage, they can file a pe­ti­tion for dis­so­lu­tion of the mar­riage and lead their own in­di­vid­ual lives af­ter get­ting a de­cree of divorce in the court of law.

Divorce puts an end to mar­riage; par­ties re­vert back to their un­mar­ried sta­tus. The par­ties cease to be hus­band and wife and are once again free to marry. A pe­ti­tion for divorce can be filed by a hus­band or wife against an­other or jointly by both the spouses in a court of law. The Courts can­not al­low a pe­ti­tion for divorce un­less a pe­riod of one year has elapsed since the sol­em­niza­tion of mar­riage. This pro­vi­sion comes with two ex­cep­tions where a pre­sen­ta­tion of a pe­ti­tion of divorce may be al­lowed ear­lier, which are:-

If it is a case ex­cep­tional hard­ship to the pe­ti­tioner, or

- If it is a case of ex­cep­tional de­prav­ity on the part of the re­spon­dent.

For in­stance, in­cur­able in­san­ity may amount to ex­cep­tional hard­ship. Com­mis­sion of mat­ri­mo­nial of­fences like rape, sodomy or bes­tial­ity, by them­selves, amount to a con­duct of ex­cep­tional de­prav­ity on the part of the re­spon­dent. The terms ‘ex­cep­tional hard­ship’ and ‘ex­cep­tional de­prav­ity’ have been bor­rowed from the Mat­ri­mo­nial Causes act but they have not de­fined it.

The laws gov­ern­ing dis­so­lu­tion of a mar­riage are dif­fer­ent for dif­fer­ent reli­gions, how­ever many pro­vi­sions un­der th­ese Acts are com­mon, like ju­ris­dic­tion of courts for fil­ing a divorce, pro­ce­dure for fil­ing a pe­ti­tion, etc.

 Hin­dus - The Hindu Mar­riage Act, 1955

 Mus­lims - Shariat Law, The Dis­so­lu­tion of Mus­lim Mar­riage Act,1939

 Chris­tians - The Divorce Act,1869, The In­dian Chris­tian Mar­riage Act,1872

 Par­sis - The Parsi Mar­riage and Divorce Act,1936

 In­ter-cast/sec­u­lar - Spe­cial Mar­riage Act, 1954, The For­eign Mar­riage Act,1969

JU­RIS­DIC­TION

A pe­ti­tion for divorce is pre­sented to the Dis­trict Court within the lo­cal lim­its of whose or­di­nary civil ju­ris­dic­tion –

i) The mar­riage was sol­em­nized, or

ii) The re­spon­dent at the time of the pre­sen­ta­tion of pe­ti­tion re­sides, or

iii) The par­ties to the mar­riage last resided to­gether, or

iv) the pe­ti­tioner is re­sid­ing at the time of the pre­sen­ta­tion of the pe­ti­tion, in a case where the re­spon­dent is at that time re­sid­ing out­side that ter­ri­to­ries to which this Act ex­tends, or has not been heard of as be­ing alive for a pe­riod of seven years by those who would nat­u­rally have heard of him if he were alive.

A Dis­trict Court is, there­fore, a City Civil Court in an area where it ex­ists, or the prin­ci­pal civil court of orig­i­nal ju­ris­dic­tion in any other area or such sub­or­di­nate court which has been in­vested with ju­ris­dic­tion by a State Gov­ern­ment un­der a no­ti­fi­ca­tion is­sued in the of­fi­cial Gazette (Fam­ily Courts).

PRO­CE­DURE

The pro­ce­dure for fil­ing a divorce is gen­er­ally reg­u­lated by the pro­vi­sions of Code of Civil Pro­ce­dure, 1908 which dis­cusses the process to file civil suits, though the gov­ern­ing Acts also con­tain pro­vi­sions re­gard­ing pro­ce­dures for fil­ing a divorce.

A pe­ti­tion of divorce must state the facts re­lat­ing to the mar­riage like name of the par­ties, sta­tus and domi­cile of the par­ties, date and place of mar­riage, prin­ci­pal per­ma­nent place where the par­ties co­hab­ited, place where the par­ties last resided to­gether, names of the chil­dren of the mar­riage, if any, with their date of birth and full par­tic­u­lars of any prior pro­ceed­ings be­tween the par­ties and their out­come. It should state the grounds for seek­ing divorce and the re­lief sought. If the pe­ti­tion is based on the ground of adul­tery, the adul­terer should be made a co­re­spon­dent un­less the per­son is dead or his/her name is not known to the pe­ti­tioner or such other rea­sons for which the Court con­sid­ers that he/she need not be made a co-re­spon­dent.

A pe­ti­tion of divorce must be ver­i­fied in the same man­ner as a plaint is re­quired to be ver­i­fied un­der the Civil Pro­ce­dure Code.

Un­stamped and un­reg­is­tered doc­u­ments have been made admissible for the pur­pose of ev­i­dence for pe­ti­tions for divorce un­der Hindu Mar­riage Act, 1955. Par­ties do not need to file af­fi­davit for sub­mit­ting ev­i­dence and oral ev­i­dence is admissible.

DIVORCE BY MU­TUAL CON­SENT

If the hus­band and wife have been liv­ing sep­a­rately for one year or more, and have not been able to live to­gether and they have mu­tu­ally agreed that the mar­riage should be dis­solved, they can file a pe­ti­tion for dis­so­lu­tion of mar­riage to­gether be­fore the Dis­trict Court. If the par­ties to­gether do not with­draw such a pe­ti­tion af­ter six months from the date of pre­sen­ta­tion of pe­ti­tion till the end of 18 months af­ter the said date, the Court may pass a de­cree of divorce declar­ing the mar­riage to be dis­solved with ef­fect from the date of the de­cree. Such de­cree must be passed on be­ing sat­is­fied af­ter hear­ing the par­ties and af­ter mak­ing such in­quiry as it thinks fit.

GROUNDS

Divorce can be granted on pre­sen­ta­tion of pe­ti­tion by a hus­band or wife on the fol­low­ing grounds against the other party:  Cru­elty  Adul­tery  In­cur­able In­san­ity  Lep­rosy  Vene­real dis­ease in a com­mu­ni­ca­ble form  Con­ver­sion to an­other re­li­gion  Re­nun­ci­a­tion of world

 Pre­sump­tion of Death for a pe­riod of 7 years or more

 No re­sump­tion of co­hab­i­ta­tion be­tween the par­ties to mar­riage for 1 year or up­wards af­ter pass­ing a de­cree for ju­di­cial sep­a­ra­tion in a pro­ceed­ing to which they were par­ties

 No resti­tu­tion of con­ju­gal rights be­tween the par­ties to mar­riage for a pe­riod of 1 year or up­wards af­ter pass­ing a de­cree for resti­tu­tion of con­ju­gal rights in a pro­ceed­ing to which they were par­ties

Grounds of Divorce on which woman can seek a de­cree of Divorce-

 Hus­band has mar­ried again or any other wife of the hus­band is alive at the time of pre­sen­ta­tion of pe­ti­tion

 Hus­band has been guilty of sodomy, rape or bes­tial­ity since the sol­em­niza­tion of mar­riage

 No re­sump­tion of co­hab­i­ta­tion even af­ter pass­ing a de­cree against hus­band award­ing main­te­nance to the wife

 The mar­riage was sol­em­nized be­fore the pe­ti­tioner wife at­tained the age of 15 years and re­pu­di­a­tion of the mar­riage af­ter at­tain­ing that age but be­fore at­tain­ing the age of 18 years. Very re­cently, Susanne Khan de­manded Rs. 400 crores al­imony from Hrithik Roshan in their divorce case.

An­gelina Jolie got the cus­tody of all six chil­dren.

Yes! In a divorce pe­ti­tion, re­liefs for main­te­nance of par­ties and chil­dren and cus­tody of chil­dren are also sought and dealt with be­sides an­cil­lary re­liefs like dam­age for costs of the pro­ceed­ings against the par­ties.

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