Anonymous
Asked October 11, 2016

Filing for a divorce and procedure

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How to file for a divorce and what is the procedure ?

Answer 1

The grounds for divorce in Hindu Law are:

a. Adultery (voluntary sexual intercourse with any person other than his or her spouse)

b. Cruelty

c. deserted the spouse for a continuous period of 2 years

d. ceased to be Hindu by conversion

e. incurably unsound mind

f. Virulent form of leprosy

g. Renounced the world

h. Not been heard of for seven years or more.

Non-compliance with a decree of judicial separation: Either spouse may present a petition for divorce on the ground that there has not been any resumption of cohabitation of the parties to the marriage for a period not less than one year after the passing of a decree for judicial separation.[1] Resumption of cohabitation means living together in conjugal relationship. But this meaning is narrow and as such it should not be applied to all cases irrespective of their special and surrounding circumstances. The meaning of this expression therefore depends upon the intention of the parties, and there may be resumption of cohabitation even where the parties do not live under the same roof of matrimonial home. 

 

If you have registered yourself under the Special Marriage Act, then these are the grounds under section 27:

a. Voluntary sexual intercourse with any person other than his or her spouse

b. deserted for a period of not less than two years immediately preceding the presentation of the petition

c. undergoing a sentence of imprisonment for seven years or more for an offence as defined in the Indian Penal Code (45 of 1860); or

d. has since the solemnization of the marriage treated the petitioner with cruelty; or

e. Has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind, and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

 

 

Section 13B of the Hindu Marriage Act 1955 provides for divorce by mutual consent. The period of separation is 1 year. Conditions are:

(i) Husband and wife have been living separately for a period of one year or more,

(ii) That they are unable to live together,

(iii) And that both husband and wife have mutually agreed that the marriage has totally collapsed, hence marriage should be dissolved.

Section 28 of the Special marriage Act, 1954 provides for divorce by mutual consent. 

 

 

Divorce proceedings in India are carried out in accordance with the Family Courts Act, 1984. The Family Court Rules governing the proceedings in these courts is framed by the High Court exercising control over the Family Court. In areas where Family Courts have not been constituted, the proceedings are carried out in accordance with the Rules framed by the relevant High Court and the Code of Civil Procedure. It is not mandatory for the person appearing in divorce proceedings to engage a lawyer. However, the presence of a lawyer is beneficial in some situations, such as drafting the divorce agreement in case of mutual divorce as well as in contested divorce proceeding which are potentially long-winded processes, and the pleadings may become complicated. In such cases, there must be clarity as to what evidence may be presented in court, the cross-examination process and the necessity of re-examination. Ordinarily, these processes are dealt with by lawyers and the unfamiliarity with these procedures could potentially disadvantage a party who has not engaged a lawyer, especially when the opposing party is being represented by a lawyer. Therefore, the presence of a lawyer is not required by law but practically it is always better to have a lawyer at your side to take care of all possible aspects associated with a divorce proceeding.[2]

 

[1] Section 13 (IA)

[2] Answer by Ragini Gupta: https://lawfarm.in/question/is-it-necessary-to-appoint-a-lawyer-in-a-divorce-proceeding

Agree Comment 0 Agrees almost 4 years ago

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