Marriage is a social union of man and woman, which casts rights, duties and obligations on the husband and wife. Marriage & Divorce in India are largely governed by personal laws based on individual’s religion. For Hindus, Jains, Sikhs, Buddhists, the marriages and divorces are governed by the Hindu Marriage Act, 1955 for Muslim it is Mohammedan Law, for Christians it is the Indian Divorce Act, 1869.
However, if the parties to marriage either same or from different religion can have their marriage performed under common or general law i.e The Special Marriage Act, 1954, then their divorce also is dealt under the same law.
Divorce dissolves the marriage and severs all legal relationship between the married couple. Unlike in Developed countries, in India, divorce is based on fault theory. Whereas in countries like US, CANADA, UK, Australia it is bases on no fault theory.
Which means, in India, to get divorce, the party approaching the court has to establish the matrimonial offence committed by the opposite party to get divorce on the basis of legitimate evidence, whereas this is not required in no-fault divorce concept.
Ordinarily in India, divorce cases are largely of two types, i. Mutual consent divorce & ii. Contested divorce. In mutual consent usually, both the parties voluntarily agree and consent for getting their marriage dissolved either conditionally or unconditionally. Usually, in mutual consent divorce both parties arrive at settlement in terms of alimony, child custody & visitation and they record the terms in a MOU and obtain divorce.
Usually, it takes 6 months for obtaining mutual divorce as there is mandatory 6 months cooling off period. However, if application to waive off the cooling period is filed, the court may grant waive off by using its discretionary & inherent powers u/sec. 151 of CPC. Mutual divorce is highly recommended procedure, so before taking a plunge in filing divorce reasonable efforts should be made to convince the opposite party, as it helps everyone.
The second type, i.e contested divorce, which is based on fault theory, i.e party seeking divorce have to establish matrimonial fault/offence of the opposite party. Matrimonial fault/offence or grounds widely used are mainly:
- Adultery
- Desertion
- Cruelty
- Incurable Medical Condition
However, other grounds such a opposite party suffering from veneral discease, change of religion etc are also available.
The party asserting the matrimonial fault has to establish the same by way of tendering evidence to that affect as per the Indian Evidence Act. The opposite party contest the matter by denying the assertions. This is a long drawn and tedious process which takes usually 2years or more.
Documents required for filing Divorce case:
- Aadhar Card of husband/wife
- Aadhar Card of minor children if any
- Passport Photos of Aggrieved woman & minor children (3)
- Marriage Photo (2)
- Wedding Invitation
- Marriage certificate
- Birth certificates of minor children if any
- Education fees receipts of the minor children
- Medical reports if any
- 3 years bank statement of the petitioner
- Opposite party’s bank statement/Pay Slip/IT returns if available
- All evidences if available (Photos of injury if any sustained in course of marriage, photos of extramarital affair, Videos, chat messages, Emails etc, call logs)
- Property documents if available
- Previous court cases history if any
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