Introduction
Marriage is an institution that not only unites two persons but two different families. Traditionally, the concept of marriage was sacred and pure. However, with changing time and evolution led to introduction of Hindu Marriage Act, 1955 to overcome modern marriage problems. The concept of divorce and related provisions has been mentioned under section 13 of Hindu Marriage Act, 1955. This document helps one to understand about the types of divorce, procedure of divorce, time frame and other details which one should be aware of.
Types of Divorces in India
The Hindu Marriage Act provides two primary pathways for dissolution of marriage: contested divorce and mutual consent divorce.
Contested Divorce
- It is also known as fault-based divorce. In this type one spouse (the petitioner) files a petition against another spouse (the respondent) alleging that the partner has committed matrimonial offences or has created such a circumstance in which continuation of marriage is untenable.
- In this case burden of proof lies in the hands of petitioner. Relevant facts, evidences and witness testimonies and other relevant facts should be presented.
- Contested divorce proceedings are adversarial in nature. The respondent has the right to contest the allegations, present evidence, cross-examine witnesses, and argue against the grant of divorce. This often results in protracted litigation, with both parties engaging in a legal battle over the validity of the grounds alleged.
Mutual Consent Divorce
It has been introduced through Marriage Laws (Amendment) Act, 1976. It is a non-fault divorce process. It is governed by Section 13B of the HMA and allows spouses to dissolve their marriage by mutual agreement without attributing fault to either party.
Conditions for Mutual Consent Divorce
- The spouses should be living separately from each other for 1 year.
- Both the spouses should file for divorce together.
- The spouses should not be able to live together and dissolution of marriage should be mutually agreed.
Cooling-Off Period
After filing the joint petition (first motion), the law mandates a cooling-off period of six months. This period is intended to provide the parties with an opportunity to reconsider their decision and explore the possibility of reconciliation. The second motion for the decree of divorce can be filed not earlier than six months and not later than eighteen months from the date of the first petition.
Waiver of Periods
However, in recent judicial pronouncements have recognized that both the one-year separation requirement and the six-month cooling-off period can be waived by courts in appropriate cases. This development reflects a pragmatic approach aimed at reducing unnecessary delays when reconciliation is clearly not possible and both parties genuinely desire to end the marriage.
Reasons for Contested Divorce
Under Section 13(1), either spouse (husband or wife) may seek divorce by proving one of the statutory grounds such as:
| Ground | Section | Description |
|---|---|---|
| Adultery | Section 13(1)(i) | Voluntary sexual intercourse outside marriage. |
| Cruelty | Section 13(1)(i a) | Physical or mental cruelty. |
| Desertion | Section 13(1)(i b) | Abandonment for at least two consecutive years. |
| Conversion | Section 13(1)(ii) | Ceasing to be a Hindu. |
| Unsoundness of Mind | Section 13(1)(iii) | Incurable mental disorder. |
| Venereal Disease | Section 13(1)(v) | Communicable disease. |
| Renunciation | Section 13(1)(vi) | Renouncing the world. |
| Presumption of Death | Section 13(1)(vii) | Not heard of for seven years or more. |
Section 13 (1A): Divorce After Judicial Separation / Decree
Either party can seek divorce if there is no cohabitation for one year or more after a decree of judicial separation.
Procedure of Contested Divorce
- Step 1: The parties jointly prepare a divorce petition clearly setting out the reasons for seeking dissolution of marriage and recording their mutual consent to the same.
- Step 2: The joint petition is filed before the competent Family Court through their respective legal counsel.
- Step 3: Upon scrutiny of the petition and accompanying documents, the Court directs the parties to record their statements on oath.
- Step 4: After recording the statements, the Court grants a statutory cooling-off period of six months, allowing the parties an opportunity for reconciliation.
- Step 5: Upon expiry of the six-month period, and in the absence of reconciliation, both parties must appear before the Court for the second motion and final hearing. The second motion must be filed within eighteen months from the date of filing the first petition.
- Step 6: After hearing the parties and being satisfied that the consent is free and genuine, the Court passes a decree of divorce, thereby dissolving the marriage.
Procedure of Mutual Divorce
Step 1
The spouses are required to jointly draft a divorce petition under Section 13B of the Hindu Marriage Act, 1955, seeking dissolution of marriage by mutual consent. The petition must comprehensively set out the facts relating to separation and clearly record the mutually agreed terms concerning child custody, permanent alimony, maintenance, and other ancillary issues. The parties must also execute a Memorandum of Understanding (MoU) embodying the settlement terms. The joint petition is signed by both spouses under appropriate legal advice.
Step 2
Upon filing the joint petition before the Family Court having competent jurisdiction, the matter is listed for the first motion hearing. Both parties are required to appear before the Court, where their statements may be recorded on oath to verify the contents of the petition. At this stage, the Court may, if it deems appropriate, refer the parties to mediation or counselling with a view to exploring the possibility of reconciliation.
Step 3
Following the first motion, the Court ordinarily grants a cooling-off period of six months, which shall not extend beyond eighteen months from the date of filing the petition. This period is intended to afford the parties an opportunity to reconsider their decision and attempt reconciliation or withdraw the petition. However, where the Court is satisfied that the marriage has irretrievably broken down and there is no possibility of reconciliation, the cooling-off period may be waived in appropriate cases.
Step 4
After the expiry or waiver of the cooling-off period, the parties must again appear before the Court for the second motion hearing. At this stage, both spouses reaffirm their free and voluntary consent to dissolve the marriage and confirm compliance with the settlement terms. Upon being satisfied that the consent is genuine and the statutory requirements are fulfilled, the Court proceeds to hear the matter finally.
Step 5
Upon conclusion of the final hearing, the Family Court passes a decree of divorce, thereby dissolving the marriage. The parties may thereafter apply for and obtain certified copies of the judgment and decree for the purpose of completing any consequential or administrative formalities.
Required Documents
To file a divorce petition, whether contested or by mutual consent, the following documents are typically required:
- Marriage Certificate: Proof of the legal solemnization of the marriage. If the marriage was not registered, alternative proof such as wedding photographs, invitation cards, or affidavits from witnesses may be submitted.
- Proof of Identity and Address: Government-issued identity documents (such as Aadhaar card, passport, or voter ID) and proof of current residence for both parties.
- Proof of Separation: In cases of mutual consent divorce, evidence that the parties have been living separately for the requisite period. This may include lease agreements, utility bills, or affidavits.
- Photographs: Passport-sized photographs of both parties.
- Affidavits: Sworn statements from both parties (in mutual consent divorce) or from the petitioner (in contested divorce) affirming the facts stated in the petition.
- Income and Asset Details: Documents showing the income, assets, and liabilities of both parties, relevant for determining alimony and property division. This may include salary slips, bank statements, property documents, and income tax returns.
- Evidence Supporting Grounds: In contested divorce, documents supporting the grounds alleged, such as medical reports (for cruelty, mental disorder, or venereal disease), police complaints, photographs, emails, text messages, or witness affidavits.
- Draft Settlement Agreement: In mutual consent divorce, a written agreement outlining the terms of alimony, child custody, visitation rights, and division of property.
- Children’s Details: If there are children from the marriage, documents such as birth certificates and school records may be required for custody and maintenance matters.
Timeline
Contested Divorce
Contested divorce proceedings are generally time-consuming due to their adversarial nature and the requirement of detailed pleadings, evidence, and witness examination. On average, such cases may take one to three years or longer.
Delays often arise from:
- Repeated adjournments
- Difficulties in service of summons
- Prolonged stages of evidence and cross-examination
- Pendency of interim applications relating to maintenance or custody
- Challenges to interim orders by way of appeals or revisions
Mutual Consent Divorce
Divorce by mutual consent is comparatively expeditious. Where the statutory cooling-off period is followed, the proceedings typically conclude within six to twelve months, subject to court scheduling.
In cases where the court waives the cooling-off period and the parties are prepared to proceed without delay, the divorce may be finalized within two to four months.
Limitation
Section 14 of the Hindu Marriage Act, 1955 generally prohibits filing a divorce petition within one year of marriage. It serves as a mandatory “cooling-off” period to promote reconciliation.
