Divorce Litigation in India-Thelegalbank

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Meaning of Divorce
Divorce, or "dismissal of marriage," is the legal terminus of the marital relationship. The divorce method is handled by family law attorneys (each estranged spouse retains his or her counsel) and includes several issues, changing from division of property to child custody. While it's important to hire a lawyer who is experienced at your economic and other interests in a divorce, it is crucial to find an attorney with whom you feel satisfied on a personal level. Divorce is a very emotional process, demanding fine people skills in addition to legal know-now. A divorce is among the most traumatic experiences for any couple. To add to this, it can also be a long-winded and costly affair in India if divorce is disputed. Even couples who together agree to the divorce, however, must prove that they have been departed for a year before the courts recognize their plea.
In India, as with most personal matters, rules for divorce are link to custom. Divorce among Hindus, Buddhists, Sikhs, and Jains is governed by the Hindu Marriage Act, 1955, Muslims by the Dismissal of Muslim Marriages Act, 1939, Parsis by the Parsi Marriage and Divorce Act. Every civil and inter-community marriage is governed by the Special Marriage Act, 1956.


According to Section:-

The duration of a divorce by mutual consent differs from 6 to 18 months, depending on the judgment of the court. Normally, the courts prefer to end mutual consent breaches sooner, rather than next.

 As per Section 13 B of the Hindu Marriage Act, 1955 and Section 28 of the Special Marriage Act, 1954, the couple should be existing separately for at least 1 year before divorce procedures can start. Section 10A of Divorce Act, 1869, however, wants the couple to be separated for at least 2 years. Do note that continuing separately does not certainly mean living in different places; the couple only wants to provide that they have not been living as husband and wife during this season.


Issues Involved in a Divorce

At its most basic, a divorce is a legal method by which 2 parties terminate their legal and financial relationship. But each divorce is different and most involve arguments over things like child custody or division of property. Here are the main points a divorce attorney deals with:-

  • Division of Property: All property obtained by either spouse after the marriage date is deemed "marital property" and is subject to equal division. See Thelegalbank Guide to Divorce and Property Division to learn more.
  • Alimony: Alimony, or spousal support, is a monthly payment given by one spouse to another following either a covenant agreement or court order. Alimony is intended to correct any illegal economic effects of a divorce. See Thelegalbank to Spousal Support to learn more.
  • Child Support: Child support is a monthly payment made by the noncustodial parent to the custodial parent to be spent on the child's requirements. See Thelegalbank to Getting Child Support to learn more.
  • Child Custody: When a family splits up, the parents and the court must determine what is best for the minor children, including where they will live and how choices are made. This is often the most difficult part of the divorce proceedings. See Thelegalbank to Child Custody for more information.


Types of divorce

Divorce with Mutual Consent:

When husband and wife both consent to a divorce, the courts will consider a divorce with joint consent. For the request to be taken, however, the couple should be departed for over a year or 2 years (as per the relevant act) and be ready to prove that they have not been capable to live together. Often, even when either husband or wife is uncertain, they still agree to such a divorce because it is comparatively inexpensive and not as traumatic as a defended divorce. Matters such as children’s custody, support and property rights could be allowed to mutually.


Divorce without Mutual Consent:

In case of a contested divorce, there are special grounds on which the request can be made. It isn’t as if a husband or wife can simply ask for a divorce without stating a cause. The reasons are as follows, though some do not refer to all religions.

1. Cruelty

Cruelty may be physical or mental cruelty. 

2. Adultery

In India, a man that acts adultery (i.e. has consensual sexual intercourse outside of marriage) can be treat with a criminal offense. 

3. Desertion

One spouse deserting the other without just cause (cruelty, for example) is a reason for divorce. 

4. Conversion

Divorce can be sought by a spouse if the other spouse turns to another religion. This reason does not need any time to have passed before a divorce can be arranged.

5. Mental Disorder

If the spouse is incompetent in performing the normal functions required in marriage on account of mental illness, divorce can be sought. If the mental illness is to such an area that the normal functions of married life cannot be performed.

6. Communicable Disease

If the spouse suffers from a contagious disease, such as HIV/AIDS, syphilis, gonorrhoea or a virulent and incurable form of leprosy, the Hindu Divorce Law in India says that the other party can get a divorce.

7. Renunciation of the World

If the spouse renounces his/her married life and opts for sannyasa, the aggrieved spouse may get a divorce.

8. Presumption of Death

If the spouse has not been heard of as being alive for at least 7 years, by such people who would have heard about such spouse, if he or she were alive, then the spouse who is alive can get a judicial decree of divorce.

Documents required:

1. Address proof of husband
2. Address proof of wife
3. Marriage certificate
4. Four passport size photos of marriage of husband and wife
5. Evidence showing spouses are living separately since more than a year

 6. Evidence linking to the failed attempts of settlement

 7. Income tax statements for the last 2-3 years

 8. Features of the profession and present remuneration

 9. Information relating to family background

 10. Specifications of goods and other assets owned by the petitioner


The Divorce Litigation Process

The specific path your divorce litigation will take depends upon the facts and conditions of your case, as well as the state you live in. Your judge and your divorce attorney can also affect the way that your divorce legal process unfolds. That having been said, though, most divorce suits follow a similar trajectory.

Divorce litigation typically begins when either you or your spouse records a petition for divorce in court. (This document may have a different name in your way. But its rules are the equivalent. It is a document that says to the Court, “I need a divorce!”)

After filing your divorce petition you either have to formally serve your spouse with a copy of that Petition or your spouse has to deliberately file an appearance in court. Once your spouse has been taken or files an Appearance in court, your case can move ahead.

While your claim is pending, several issues can arise. Maybe you want the judge to grant you short support, custody, or attorney’s fees. Or maybe your spouse isn’t taking what s/he is supposed to do so you want to file a motion to force him/her to do that thing. The specific motions that your attorney will file in your case depend upon you, your spouse, the law in your state, and the facts and events in your case.




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