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“How to get a divorce in India” Divorce is one of most traumatic events for any couple. This trauma is further aggravated by the long drawn legal process that one has to undergo to obtain a divorce even if it is by mutual consent of both husband and wife.
India being a multi-religious society, there exist different laws for different religions.Therefore the process of Divorce varies according to one’s religion. For instance Hindus, Sikhs, Jains and Buddhist are governed by the Hindu Marriage Act,1955 while Christians are governed by the Indian Divorce Act,1869 and the Indian Christian Marriage Act,1872. Divorce among Muslims is governed by the Dissolution of Marriage Act,1939 and Muslim women (Protection of Rights on Divorce),1986. On the other hand all inter-community marriages are governed by the Special Marriage Act, 1956.
A Divorce settlement does not merely involve dissolution of personal relation between husband and wife but also includes matters such as custody of children, alimony, division of property etc.
A couple may file a divorce petition by mutual consent or either of them may file for a divorce without the consent of the other.
It is the simplest and the least traumatic way of obtaining a divorce wherein both husband and wife agree to get divorced. Matters such as custody of children, maintenance, and property right could also be agreed to mutually. However for the petition to be accepted it is necessary for the husband and wife to have lived separately for at least a year.
As the name suggests, divorce will have to be contested by either the husband or the wife. Across all the personal laws there are specific grounds on which the divorce may be obtained and it is necessary for the person seeking the divorce to mention this ground in his/her petition. The most common grounds on which divorce may be sought through contestation are: Adultery, Cruelty, Desertion,Conversion to another faith, Communicable disease, presumption of death etc.
The procedure for filing a divorce varies according the type of divorce one seeks namely mutual or contested. For a divorce by mutual consent, a petition supported by affidavit from both the partners must be submitted before a district court.
This is known as the First Motion Petition which should contain a joint statement that due to their irreconcilable difference they cannot stay together and they must be granted divorce by mutual consent.
After 6 months, a Second Motion Petition has to be filed by the couple and they are required to appear before the court. This gap of 6 months is given mainly as a second opportunity to the couple to reconsider their decision of dissolution of their marriage. Upon the submission of thee Second Petition, if the judge is satisfied that all the necessary requirements and grounds have been met for Divorce by Mutual Consent then the couple is granted a decree for mutual divorce.
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