How to File for Divorce

The termination of a marital relationship is known as divorce. When a divorce is granted, the people concerned are no longer deemed as married, and their marriage is dissolved. Divorce requires a legal process to be followed and can be granted only when the conditions are met with.

Due to the existence of various religious beliefs, the Indian Judiciary has implemented laws and Acts specific to those beliefs. The Hindu Marriage Act is an Act of the Parliament that was implemented in 1955 for governing the laws of marriage and divorce under the Hindu law.

1. Divorce under various laws in India - The Parsi Marriage and Divorce Act, 1936; The Dissolution of Muslim Marriage Act, 1939; The Parsi Marriage and Divorce Act, 1936; The Special Marriage Act, 1954; The Foreign Marriage Act, 1969; Judicial separation.

2. Until 1955 only fault theory of divorce was recognized by law, but after the amendment 1976, Hindu law recognized four theories of divorce. The four theories of divorce are

guilt theory, offence theory, consent theory, and breakdown theory.

3. Grounds for divorce are recognized as grounds for both husband and wife, grounds for wife and mutual consent divorce.

4. The grounds of divorce available to both husband and wife are as follows –

1. Adultery
2. Cruelty
3. Leprosy
4. Desertion
5. Renunciation of world
6. Conversion
7. Presumption of death
8. Unsoundness of mind

5. The grounds for divorce available only to the wife are mentioned under Section 13(2) of the Hindu Marriage Act, 1955. The grounds are – rape, sodomy and bestiality.

6. Under Section 13(b) of the Hindu Marriage Act, 1955, there is the provision of divorce by mutual consent wherein both parties decide to file for divorce with mutual consent.

7. Divorce can be obtained within six months by mutual consent, but in such a case, a petition cannot be filed within the first year of marriage. There should also be a six-month gap between the first and second speeds. The court may waive this cooling-off period in some cases. So in case of mutual consent divorce, it usually takes 18-24 months.

8. In a disputed divorce case, the period is long, due to complications and the possibility that a period of three to five years can be challenged by either party in the High Court and the Supreme Court.

9. The court fee is a nominal Rs 15 but is charged in bulk from the lawyer's fees. While women can avail free legal services by obtaining a lawyer from a legal aid cell, the fees for private lawyers can range from Rs 10,000 to Rs 1 lakh, depending on the type and duration of the divorce.

10. The court may ask for the following documents –

1. Address proof of husband and wife.
2. Statement of the profession and current income of husband and wife.
3. Marriage certificate.
4. Information related to family background.
5. Wedding photos
6. To prove that husband and wife have been living separately for more than a year.
7. Evidence proving failed attempts at reconciliation.
8. Income tax statement.
9. Particulars of property and property of the parties.
10. Other documents may also be required depending on the facts and circumstances of the case.

Conclusion

In India, personal laws govern marriages and divorces and to attain a divorce, the due process of law must be followed. The parties must follow the procedures and file for divorce only after consideration of all other options. The courts can grant or refuse to grant a divorce based on the merits of the case. In certain cases, the court can suggest alternative dispute resolution.