Family Law

STEPS INVOLVED IN A CONTESTED DIVORCE IN INDIA

STEP-1: The divorce petition containing the facts of the case, the grounds of divorce, all personal details of the parties is filed before the Family Courts under the law.

Before filing a petition for divorce before a Family Court it should be checked for the case facts i.e the reason or ground on which the divorce is asked for, correct details of both the parties such as name, address, age, date of birth etc.

STEP-2: Family Court scrutinizes the divorce petition and issues notice on the divorce petition to the other party against whom the divorce petition has been filed.

The petition is then filed at the Family Court filing counter which verifies the contents of the petition and subsequently it is sent to the court having jurisdiction which issues notice to the party against whom the divorce petition is filed.

STEP-3: The parties to the divorce proceedings are directed to appear before the court for reconciliation in all of the cases at Delhi and efforts by the court is made to reconcile them at first.

Both parties are then directed by the court to appear for reconciliation in the cases they have amongst them at Delhi. The court then makes effort to reconcile them.

STEP-4: The reconciliation proceedings being conducted by the Family Court is either end successful then the matter stands settled. If the reconciliation proceedings end in failure then the Family Court proceeds with the matter.

If the reconciliation effort put in by the court is successful the matter stands settled. But if for any reason the reconciliation fails the court then proceeds further with the matter and directs the opposite party to file a written statement with all defenses to the case.

STEP-5: The Family Court directs the opposite party to file written statement to the divorce petition and take all his defenses.

Converged in above point.

STEP-6: The petitioner is directed to file his rebuttal/rejoinder to the written statement filed by the opposite party. The application for interim maintenance etc is decided by the court at this stage of the case.

After the written statement is filed in court, the court then asks for a rejoinder from the petitioner. The court then proceeds further to decide for interim maintenance and other applications.

STEP-7: The court frames the issues for adjudications and the matter is posted for evidence of the parties.

After completion of step VI, the issues are framed for adjudication and evidences of parties are called for.

STEP-8: The petitioner is directed to lead its evidence by way of filing the relevant documents, papers and by summoning all its witnesses.

Relevant documents, papers etc. are filed and summoning of all witnesses is done upon the court directing the petitioner to lead its evidence.

STEP-9: The respondent is asked to lead its evidence by way of fling of the relevant documents, papers and by summoning all its witnesses.

It is then the turn of the respondent to lead its evidence just as the petitioner does.

STEP-10: The final arguments in the matter are held and the matter is decided by the court.

After the evidences are lead by both the sides the court holds final arguments and decides the matter.

STEP-11: The court passes the decree of divorce or rejects the matter based on the entire facts, evidence and law. Either the divorce is granted in favour of the applicant or it is rejected by the court after discussing the entire facts, legal grounds and all other related material. 

Decree of Divorce is granted or rejection of the matter is done then based on all the facts, evidences and law.

Step by step procedure to file for a Mutual Divorce

According to the Hindu Marriage Act, 1955; a petition for a ‘mutual divorce’ can be filed if you and your spouse are facing difficulties and have decided to part your ways legally. you can even file for divorce if the other party is not willing to get a divorce- this is called, ‘Contested Divorce’.

What is Divorce by Mutual Consent?

Under the Hindu Marriage Act, 1955 both the husband and the wife have been given a right to get their marriage dissolved by a decree of divorce on more than one ground specifically enumerated in Section 13.

Section 28 of the Special Marriage Act, 1954 and Section 10A of the Divorce Act, 1869, also provides for divorce by mutual consent.

The conditions required under section 13B of the Hindu Marriage Act are as follows:

(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. Under these circumstances, a Divorce by Mutual consent can be filed.

As per the Indian Legal system, a divorce procedure fundamentally begins with the filing of a divorce petition.

Where to file a divorce petition:

1. The court can be one where couple seeking divorce last lived.

2. The court can be one where the marriage was solemnized.

3. The court can be one where the wife is residing as of present.

The entire procedure of divorce in India starts begins with the divorce petition which is filled by the parties associated with the divorce process and notice of the same is served to the other one.

According to the Hindu Marriage Act, 1955; a petition for a ‘mutual divorce’ can be filed if you and your spouse are facing difficulties and have decided to part your ways legally.

You can even file for divorce if the other party is not willing to get a divorce- this is called, ‘Contested Divorce‘.

Step 1: Petition to file for divorce

Firstly, a joint petition for dissolution of marriage for a decree of divorce is to be presented to the family court by both the spouses on the ground stating that they have not been able to live together and have mutually agreed to dissolve the marriage or they have been living separately for a period of one year or more.

This petition will, then, be signed by both the parties.

Step 2: Appearing before Court and inspection of the petition

Both the parties will have to appear before the family court after the filing of the petition.

The parties would present their respective counsels/lawyers.

The court would critically observe the petition along with all the documents presented in the court.

The court may even attempt to bring reconciliation between the spouses, however, if this is not possible, the matter proceeds for further follow-ups.

Step 3: Passing orders for a recording of statements on oath

After the petition is scrutinized by the court and it satisfies, it may order the party’s statements to be recorded on oath.

Step 4: First Motion is passed and a period of 6 months is given before the Second Motion

Once the statements are recorded, an order on the first motion is passed by the court.

After this, a six months period is given to both the parties to a divorce, before they can file the second motion.

The maximum period to file for a second motion is 18 months from the date of presentation of the divorce petition in the family court.

Step 5: Second Motion and the Final Hearing of petition

Once the parties have decided to go further with the proceedings and appear for the second motion, they can proceed with the final hearings.

This includes parties appearing and recording of statements before the Family Court.

Recently, the Supreme Court has held that the 6 months period given to the parties can be waived off at the decision of the court.

Therefore, the parties who have genuinely settled their differences including alimony, custody of the child or any other pending issues between the parties, this six months it can be waived off.

Even if the court is of the opinion that the waiting period will only extend their sufferings, the six months can be waived off in this case also.

Step 6: Decree of Divorce:

In a mutual divorce, both parties must have given consent and there shall not be any differences left in the matters related to contentions regarding alimony, custody of a child, maintenance, property, etc.

Thus, there needs to be complete agreement between the spouses for the final decision on the dissolution of marriage.

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