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11 FAQs About The Divorce Procedure In India

03Jun2019
11 FAQs About The Divorce Procedure In India

Did you know that India has the lowest divorce rate in the world? Only 13 out of 1,000 marriages in India, a mere 1 per cent, end in divorce.

This is not a good thing, especially for abused women, who often have no way out of a marriage and anticipate a difficult life after divorce in India because of social stigma and financial dependence on the man.

That’s why women need to know their rights, understand the grounds for divorce in India, what they’re entitled to, and how to apply for divorce in India.

Knowing all this will help give them the confidence to file for divorce, especially in case of domestic abuse and cruelty.

The divorce procedure is a very critical situation for both husband and wife. It affects the couple emotionally and financially.

It is very important for both the husband and wife to be aware of their rights regarding marriage and divorce in India to enable a peaceful settlement.

There are a number of frequently asked questions that lawyers get from couples heading for a divorce, such as how to get a divorce in India and queries about divorce formalities in India.

Any questions and doubts about divorce rules in India should always be cleared up with the help of divorce lawyers in India as the answers depend on the couple’s unique circumstances.

11 FAQs About The Divorce Procedure In India

In this article on divorce procedure in India, we address some frequently asked questions on the divorce rules and divorce laws in India.

1. What are the woman’s rights after divorce in India?

The rights to which an Indian divorced woman is entitled after the divorce process include:

  • Right to Streedhan

Streedhan refers to all the gifts the wife received in the form of money, ornaments, property, at the time of the marriage.

A wife has ownership rights to her streedhan i.e. the gifts and money received by her from her in-laws and family, even though they are in the custody of her husband.

It differs from dowry, which is illegal and usually acquired by force, while streedhan is voluntary in nature.

It does not matter who has the custody to the Streedhan since, as per Indian law, the wife is the owner of the Streedhan.

  • Right to maintenance/alimony

Another right of a woman in divorce in India is the maintenance amount the husband has to pay to the wife after the divorce process. It is either paid in a lump sum or on an annual or monthly basis.

Maintenance awarded varies from case to case, depending upon the income of the husband, income of the wife, their living standards during the marriage and other factors.

  • Right against bigamy

Until the divorce proceedings are completed, the wife has the right to be the only wedded wife, which means the husband cannot legally remarry. The wife has the right to a monogamous relationship.

  • Interim maintenance

A wife can demand interim maintenance at any time during the pendency of the suit. This maintenance is granted to her to fulfil her basic needs.

She can also ask for the litigation fees i.e. the lawyer’s fees if the husband is better-off financially than her.

  • Right to residence

A wife has the right to reside in her matrimonial home to which she was brought after marriage.

Whether the house belongs to the in-laws or is joint family property or ancestral property or rented property, the wife has a right to reside in it.

  • Right to live with respect and dignity

Every woman either divorced or in a marriage has the right to live with respect and dignity. Article 21 ensures this right to every individual.

The women can file for a divorce on the grounds of cruelty if she is not respected in the marriage. She can also file an application for domestic violence if she is forced to pay a dowry or is ill-treated.

She can also file a complaint under Section 498-A IPC if she is ill-treated physically as well as mentally.

  • Right to ask for child maintenance

Child custody is decided on the basis of the welfare of the child. Even the mother gets the child custody, she has the right to ask for maintenance for the child from her husband.

  • Right to file a case against domestic violence and dowry demands

If the wife is facing domestic violence and dowry demands, she can file an application under the Domestic Violence Act and the Divorce Act. She can file for divorce on the grounds of cruelty, which is one of the most common reasons for divorce in India.

Grounds for divorce can be established if she is mentally and physically tortured by her husband and her in-laws, following which she can file a complaint under Section 498- A IPC.

A woman must be aware of all her legal rights while opting for a divorce. A divorce lawyer can enlighten the woman about her rights after divorce.

If a woman living in Kolkata is unaware of her rights after a divorce, she should take the help of a divorce lawyer in Kolkata to help with her divorce proceedings in India.

2. Do I need a lawyer in divorce mediation?

Another common question that couples ask is whether they need to hire a lawyer for divorce mediation.

Mediation is a common process of getting a divorce these days. It is an out-of-court settlement where both the parties commonly reach a settlement with the help of a mediator.

It can either be court directed or a self-driven process. A divorce lawyer can help the divorce procedure in the following manner during the divorce mediation:

  • A divorce lawyer helps in understanding the rules and procedure of mediation. She will further help you with the question of whether mediation will be beneficial in your case.
  • She helps in selecting a mediator if the mediator is not chosen by the court.
  • She helps in preparing your arguments for divorce mediation and points out the areas of settlements.
  • She helps in reaching a fruitful settlement where both the parties are in a win-win situation.
  • She helps in evaluating the missing details which might lead to a conflict in the future.
  • She helps in the formal documentation after the settlement. Proper documentation helps in avoiding future disputes.

It is important that you cross-check all the legal documents after settlement with your lawyer before signing them.

It is important to appoint a lawyer who has a comprehensive knowledge of divorce laws in India and prior divorce mediation experience.

3. Can both parties hire the same lawyer in a joint petition for divorce?

A joint petition for divorce is filed by the parties in the case of a mutual consent divorce, where both the parties agree to the terms of the agreement.

The parties opting for a mutual divorce process in India can hire a common advocate who can help them jointly file an affidavit to get a divorce.

But if the partners do not agree on certain terms, they can hire separate lawyers who can contend on their behalf.

If both the parties mutually agree on the terms of the divorce, then a common advocate can help them in filing an affidavit in the court to obtain a mutual consent divorce.

A good divorce lawyer can guide you with the mutual divorce procedure in India, and ensure terms that are in your favour.

Divorce Process In India

4. What are the required documents for divorce in India?

According to the procedure to get a divorce in India, there are a number of documents that must be submitted in order to file the divorce petition.

Here are the documents for divorce in India that both parties need to submit:

  • Proof of residence
  • Marriage certificate or photograph of the marriage ceremony, wedding card.
  • ID Proof (Passport, Voter’s Card, Ration card, Aadhar Card)
  • Passport size photographs
  • Signed joint statement on the first date of the hearing/first motion
  • Copy of child custody agreement, if any
  • Copy of agreement of alimony/maintenance, if any
  • Copy of agreement of Streedhan/wife’s property, if any

5. Can I get a divorce without my spouse’s signature?

If one of the spouses is yet to sign the divorce papers, then the party wishing to get a divorce can contest the same.

The divorce can be filed if the husband/wife has treated his/her spouse with cruelty, or has deserted them for more than 2 years, or has renounced the world, or is having an affair with someone else or his whereabouts are not known for 7 years.

In case of a contested divorce, if the other party refuses to appear before the court or cannot be found, then the party can file an application for an ex parte divorce.

The term ex parte means without the presence of the other party. In an ex parte divorce proceeding, only one party is present. The other party either refuses to participate or cannot be located.

Nobody can be forced to be in a marriage, and hence the court passes the ex parte order when the other party refuses to cooperate and attend the court proceeding even after receiving the summons or notice.

6. Can 498a be filed after divorce?

The SC in a recent case, Mohammad Miyan vs. State of Uttar Pradesh, has held that if a woman files an FIR under Section 498A after a long undue delay, then her complaint will not be sustainable.

In this case, the woman had filed the complaint under Section 498A IPC after 4 years of her divorce.

This judgment makes it clear that there must not be an undue delay in filing an FIR under Section 498A IPC. If a woman is being subjected to cruelty during the course of her marriage, she must consult a lawyer and learn about her rights.

7. How can I register a foreign divorce in India?

The Supreme Court, in the case of Y Narasimha Rao and Ors. Vs. Y. Venkata Lakshmi and Anr, has laid down various conditions which are required to be fulfilled to validate a foreign divorce decree in India. These include:

  • The divorce must be granted on grounds recognised by Indian Courts like cruelty, desertion, adultery, etc.
  • It must be in conformity to the Indian Laws. It must not breach them.
  • The court must have the jurisdiction to deal with the case.
  • The divorce must be given on merits – that means after evaluating the facts and circumstances of the case.
  • The decree must not be obtained by force and principles of natural justice i.e. right to be heard and the fair process must have been followed.

The decrees passed by the foreign court can be executed in the Indian courts by filing an execution under Section 44A CPC.

If the divorce decree is not passed by reciprocating territory then a suit on the decree needs to be filed and the decree acts as evidence in the case.

8. Is a sexless marriage grounds for divorce in India?

The Delhi High Court in a case has ruled that denying sexual intercourse to the spouse for a long duration without sufficient reason amounts to mental cruelty and is grounds for divorce in India. Impotency is also valid grounds for divorce.

The court has dissolved marriages on the ground of it being a sexless marriage. However, in one case, the court has also held that while “sexual intimacy” is a key component in a lawful marriage and a sexless marriage is an anathema (meaning offensive), marriage is not a contract for legal sexual gratification.

”It does not mean that a man has unfettered right to demand and commit sexual intercourse with his wife without her consent or approval, nor it implies that the husband is in a dominant position to impose himself upon the wife. The husband cannot indulge in sexual intimacy in such a manner that is discomforting to the wife to her body, mind and soul,” said the court.

9. How to file for online divorce application in India?

Because of the increasing divorce rate and how long it takes to apply for divorce in India, the process of online divorce application is now allowed in the case of mutual consent divorce in India.

You can apply for an online divorce yourself or through a divorce lawyer. However, is always advisable to apply for divorce in India through a lawyer even in case of an uncontested divorce.

If the legal procedure for divorce in India is not handled properly, problems can arise later. For a contested divorce in India, you must file a divorce petition in court with the help of a lawyer.

10. How can I obtain a copy of the divorce decree?

In order to get your divorce papers or decree, you need to visit the court premises and make an application to the court registrar for obtaining a copy of the divorce decree.

You have to pay the nominal fees and to state whether you require the decree urgently or not. In due course of time, you will receive the certified copy of the decree.

11. What is the difference between a family lawyer and a divorce lawyer?

Family law is a broad area of which divorce is a facet. Family law includes succession, partition, marriage, surrogacy, etc.

In India, family law is a field which has a combination of personal laws that deal with different religions. Different personal laws include – Hindu Marriage act, the Indian Succession Act, Hindu Succession Act, Parsi Marriage Act, and others.

Though the terms family lawyer and divorce lawyer are used interchangeably they are not the same. Family law is a broader term.

A family lawyer may have the ability to handle divorce cases, but this is not the same for a divorce lawyer who may or may not be able to handle other family-related matters.

So, it important to hire a good divorce lawyer with past experience in varied divorce case laws in India, as filing for divorce in some cases can be a complex matter.

While some divorce cases in India have a criminal element to it, others require mediation. It is important that the lawyer must have prior knowledge in the field of child custody, maintenance and alimony issues, and other factors.

I hope this article has answered some of your questions on the new rules for divorce in India, divorce steps in India, and how to file for divorce in India.

Life after divorce for women in India is not easy. Neither is remarriage after divorce in India. But that’s no reason to stay in a bad marriage.

If you’re in an unhappy marriage and have decided to file for divorce, consult a divorce lawyer and find out how to apply for divorce in India.

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Author Bio:

Priti Sharma is an avid reader with a penchant for writing. She has over 4 years of experience as a freelance content writer.

Disclosure: This blog contains affiliate or sponsored links. For more information, read our disclosure.

11 FAQs About The Divorce Procedure In India

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