PROCEDURE TO FILE FOR DIVORCE IN INDIA
“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
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).
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.
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.