Ask Our Expert!

What is the Divorce Process in India?

Divorce Process in India

The divorce process did not exist in independent India as it does today. Because the concept of marriage was considered very sacred and the concept of divorce was alien to the mandate of their religion.

British India had only the Divorce Act, 1869 which provided for divorce proceedings in India for people professing Christianity.

But apart from that, there seems to be no law for divorce proceedings in India. It was only 8 years after independence that the parliament of independent India had to legislate on marriage and related laws and then the Hindu Marriage Act, of 1955 was enacted.

Law is something that is not generally stigmatized in society, so you need to know your legal rights regarding divorce in India. In this article, we will see the what is the procedure for divorce in India.

How to Start the Divorce Process?

Regardless of the circumstances, divorce is difficult and painful. After all, you have to navigate a complex legal process in addition to emotional and financial challenges.

Yet, while no two talaq proceedings are alike, most follow the same general format. Here are how the divorce process works.

Steps by Petitioner Follow While Filing for Divorce

While filing for divorce in India. Does the question arise what is the procedure to file it?

Step 1: File a Divorce Petition

Divorce proceedings begin with a divorce petition. Whether or not both parties agree to the divorce, one spouse—the petitioner—must file a legal petition with the court to dissolve the marriage. The petition should include:

  • The court cannot accept the case unless the spouses meet the state's residency requirements. Legal grounds for divorce. These vary by state and whether you file an at-fault or no-fault divorce. Faulty causes include adultery, abandonment, impotence, infertility, criminal convictions, emotional or physical abuse, substance abuse, and mental illness. No-fault grounds include irreconcilable differences, inconsistencies, and irreparable breakdowns.
  • Any other statutory information required by the State for the divorce process.

Step 2: Request Temporary Court Orders

Courts understand that waiting for a judge to finalize a divorce isn't practical in every situation — say, if you're staying at home raising the kids and financially dependent on your spouse. So, when you file for divorce, you can ask the court for temporary orders regarding child custody, child support, and spousal support.

When a temporary order is sought, the court will hold a hearing, listen to testimony from both parties, and issue a ruling. Typically, judges act quickly to grant a temporary order, which remains in effect until the court issues an order or the divorce is finalized.

Step 3: File Proof of Service

When you file for the divorce process and request a temporary order, you must provide your spouse with a copy of the documents and file a document called Proof of Service with the court.

This document tells the court that you have met the statutory requirements for serving (aka "serving") a copy of the divorce petition on your spouse. If you do not properly serve your spouse and file proof of service, the judge cannot proceed with the divorce case.

If your spouse is competent to file for divorce and agrees to sign an acknowledgment of service, this step can be a straightforward process. Of course, the service process can be challenging if your spouse doesn't want a divorce or otherwise wants to make the process more difficult for you.

In these cases, it is best to hire a licensed professional experienced in serving documents to difficult parties.

When your spouse—the defendant—receives the papers, they must file a response to the divorce petition within the specified time. Failure to respond promptly may result in a "default" decision, which can be difficult and costly to reverse.

The defendant has the option of contesting the grounds for a wrongful divorce, any allegations made in the petition, or decisions regarding child custody, property division, financial support, and the like.

Step 4: Negotiate A Settlement

Unless you and your soon-to-be ex-spouse can agree on matters such as custody, support, and property division, you will have to settle. The court may schedule a settlement conference in which you, your spouse, and your attorney can meet to discuss the case.

Sometimes, the court arranges mediation with a neutral third party that can help resolve any remaining issues. Mediation is mandatory in some states, but while not required, it can be a helpful way to save time, money, and stress during the divorce process.

Step 5: If Necessary, Go to The Court

If negotiations fail, the court must step in, i.e. divorce proceedings. Usually, a trial is held before a judge, but in some cases, it may be held before a jury. In either case, both sides present evidence and call witnesses to support their claims regarding child custody, financial support, property division, and other matters related to the divorce.

After hearing all sides of the case, the court will issue a ruling that cannot be appealed. Keep in mind that divorce trials are expensive, time-consuming, and require a great deal of preparation.

It is often beneficial to try to explore other options for dispute resolution, such as mediation, collaborative divorce, or private arbitration.

Step 6: Finalize The Decision

The final step in the divorce process—whether it's an amicable divorce or one that requires a trial—is when the judge signs the divorce decree.

Also called a decree of dissolution, it ends the marriage and specifies details regarding parental responsibility and parenting time, child and spousal support, and division of assets and debts.
If you and your soon-to-be ex have settled, the filing spouse's attorney will usually draft the judgment. However, a judge issues a final decree if a divorce case is pending.

Divorce Process with The Child

Following is details about custody of the child and while divorce of the parent.

Who Has Rights Over a Minor Child After Divorce?

Both parents have equal rights of custody of a child. However, who gets custody of the child is still a question that the court has the power to decide.

Moreover, when it comes to personal laws, the statutes contrast with the secular law in the form of The Guardian and Ward Act, 1890 wherein the welfare of the child is of paramount importance and thereby a court of competent jurisdiction seeks to strike a chord.

A balance between the two. Just because custody of the children is awarded to one parent does not mean that the other parent cannot have contact with or see the child.

Courts in India ensure that the child gets attention and love from both parents. The court grants visitation rights to the other parent whose terms are determined by the court.

Child Protection System in India

A court of competent jurisdiction for the divorce process in India mainly orders custody of children in the following three ways:

1. Physical Custody

When a parent is awarded physical custody, it is implied that the minor will be under that parent's guardianship and will interact and meet with the other parent from time to time.

The goal behind such a custody award is to give the child a better life in a safe and fulfilling environment and to ensure that the child is not deprived of the love of the other parent during his or her early years.

2. Joint Custody

Joint custody of a minor child does not mean that the child requires both parents to live together despite the view of Indian courts that it is in the best interest of the welfare of the minor.

Joint custody means that both parents will take care of the child and keep the child in their custody.

A child's movement between parents can vary from day to week or even month to month. It is beneficial for the child because on one hand the child gets attention from the parents and on the other hand the parents become a part of their child's life.

3. Legal Possession

Legal custody of a child does not require the child to be with the parent or vice versa. This means that the parents are given legal custody and can make every decision for the child like education, medical treatment, etc.

In most cases, both parents are awarded joint legal custody but in some cases where the divorce is messy and the parents do not agree with each other, the court awards legal custody to one parent.

Divorce with Mutual Consent

A divorce petition can file by the husband and also filed divorce petition by the wife.

Divorce Process in Karnataka

This process comes under the Indian divorce law. Cosmopolitan Bangalore is one of the most progressive and developed cities in India, known as the Silicon Valley of India for its benevolent climate and gorgeous surroundings.

The last decade has seen a frenzy of development, traffic congestion and rising levels of pollution, and an alarming rise in the divorce process Bangalore.

Here are the steps described to refer to the procedural details…

 India is a multi-religion country Divorce my mutual consent carries different processes for different religions in India.

Following are the rules for divorce by mutual consent of couples:

  • Both husband and wife have mutually agreed to dissolve the marriage without any influence/threat.
  • The petition for mutual consent for the divorce process should be filed in the jurisdiction where the spouses reside (the required documentation to prove jurisdiction is proof of address).
  • Both husband and wife have been living separately for one year (ie living at different places and not under the same roof in different rooms, proof of address is a document required)
  • After filing the petition, both husband and wife have to wait for 6 months (cooling period) to complete the process of declaration of divorce.
  • After the divorce decree is granted, they must go to the marriage sub-registrar's office and submit a form along with the divorce decree to cancel the marriage certificate.

Couples considering divorce meet with a lawyer and share their concerns, after which the lawyer prepares a petition, collects signatures on certain affidavits and applications, and decides to file the petition in the family court on a date that suits everyone. There are documents required to complete the filing

A very important point to remember is that during this waiting period of 6 months, the (husband) son or (wife) daughter should not accept any option of second marriage or enter into an affair, this will complicate things and is a punishable offense as the process is not completed and makes the process difficult. This is a mutual divorce process. is the best place where you all find best  advocate within few clicks, for availing all the benefits Contact us now.