Filing Divorce Case : Summary Procedure for that
Filing Divorce Case : Summary Procedure for that
Latest news April 14, 2019 46
HOW TO FILE DIVORCE CASE
In filing a divorce petition the spouses go through anxiety, anguish and struggle because it is an uncertain process. Let us understand, how a married couple, whose marriage is solemnised under Hindu Marriage Act 1955, can file for divorce.
There are two ways of filing divorce petition, one is Mutual Consent Divorce which can be filed by both husband and wife joinlty and another is contested Divorce petition which can be filed by either husband or wife against another spouse one or more than one ground available to him or her for filing divorce.
Mutual Consent Divorce:
If things between you and your spouse are not good and you are facing difficulties, and you or both of you have decided to part your ways legally then you can file for a mutual divorce under Hindu Marriage Act, 1955 or if any other is applicable to you, then under that law. If you both agree mutually: Section 13B of the Hindu Marriage Act, 1955 or corresponding provision of other laws covers the provision of mutual consent divorce.
Requirements for filing mutual divorce petition: Firstly, a petition for dissolution of marriage for a decree of divorce may be presented to the family court by both the spouses, on the ground that they have been living separately for a period of one year or more, or else stating that they have not been able to live together and they have mutually agreed to dissolve the marriage.
How long does it take to get a mutual divorce when both the parties agree: After you and your spouse have filed the petition for divorce, you and your spouse have to wait for six months and not more than 18 months from the date of presentation of divorce petition in the family court, provided that the petition is not withdrawn in the meantime. If the court is satisfied, after hearing the parties, that the consent on the parties are valid, it will pass a decree of divorce declaring the marriage to be dissolved.
What is cooling off period : The six months period wait after filing the mutual divorce petition is termed as ‘cooling off period’. After the supreme court verdict in the year 2017, the six months “cooling off” period can be waived off if all efforts for mediation and conciliation to reunite the parties had failed. The waiving off can be considered if the parties had already lived separately for at least one and a half year. It said parties can file waiver application just one week after divorce petition is filed and the court will take a call on waiving off the period. The court clarified that the period mentioned in Section 13B(2) is not mandatory but directory, and that it will be open to the court to exercise its discretion in the facts and circumstances of each case where there was no possibility of parties resuming cohabitation and there were chances of alternative rehabilitation. Therefore, the cooling off period in cases where the parties have genuinely settled their differences including alimony, custody of the child or any other pending issues between the parties and the waiting period will only prolong their sufferings, and hence it can be waived off if the court deems fit so.
If you agree but the other party is not ready: If your marriage is solemnized under the Hindu Marriage Act, 1955, you have nine grounds for divorce provided in Section 13 of the Act under which you can file your petition to divorce your partner. You can file for divorce: a) If he / she has not been heard of as being alive for a period of seven years or more by persons who would have naturally heard of it, had that party been alive; b) If he / she has after the marriage had voluntary sexual intercourse with any other person; c) If he / she is treating you with cruelly; d) If he / she has deserted you for a continuous period of not less than two years immediately preceding the presentation of the petition; e) If he / she has ceased to be a Hindu by conversion to another religion; f) If he / she is suffering from incurably of unsound mind or has been continuously or intermittently from a mental disorder that you cannot reasonably be expected to live with such a person; g) If your husband / wife is suffering from a virulent and incurable form of leprosy; h) If he / she is suffering from venereal disease in a communicable form; i) If your husband / wife has renounced the world by entering any religious order.
Other grounds available for wife to file for divorce: The aforementioned grounds are available for both spouses; however, there are some additional grounds that are available only for wife; for example, if your husband has been found guilty of rape, sodomy or bestiality, you can ask for divorce. But if your marriage whether consummated or not was solemnized before you attained the age of 15 years, and you want a divorce, you can do so but only before attaining the age of 18.
Where can you file the divorce petition: The divorce petition may be filed at the family court which has jurisdiction over your matrimonial home, i.e. the home where husband lastly lived with wife, or at place where marriage was solemnized or at the place where wife is residing.
How long it takes to get a divorce where you agree but the other party is not ready? It depends upon the complexities of the situation, there is no fixed time under which you can get the decree for divorce from the court.
Do you need a lawyer to file your divorce petition: Regardless of the type of divorce you seek (mutual or contested), it's primarily most important to have a lawyer who can represent / guide you with the trail of the divorce procedure. Have a consultation with an experienced and well-versed divorce lawyer. There have been instances where even seemingly straightforward divorces have been complicated, and only a divorce lawyer can answer specific questions about your circumstances.
If you need any further consultation, fix an appoitnment with us or call us at +91-8800543454.