divorce case india

In this article, Akanksha Mathur of National Law University, Delhi discusses how one can get a divorce even with limited financial resources. 

Divorce can be a very expensive affair. It requires money to be paid at every step and takes years to get resolved. Moreover, in Indian society, it is often the women in a marriage who are often left without economic support when all economic resources are withdrawn during divorce proceedings.

Since the very procedure of divorce is extremely expensive, it is crucial to understand it in order to have a knowledge of where the money is going and how to save on it.

What is Divorce?

A divorce is the legal termination of a marriage by a court or any other competent body. It is a dissolution of marriage through a legal action before the death of either of the spouses.

Laws Governing Divorce in India

The laws for divorce in India are invariably linked to religion.

  • For Hindus, Buddhists, Sikhs and Jains, divorce is governed by the Hindu Marriage Act, 1955
  • For Muslims, the Dissolution of Muslim Marriages Act, 1939 contains provision for divorce
  • Parsis are divorced by invoking the Parsi Marriage and Divorce Act, 1936
  • For Christians, the Indian Divorce Act, 1869 is followed
  • All civil and inter-community marriages are governed by the Special Marriage Act, 1956.

Legal Grounds for Divorce

Divorces proceeding are of two kinds-

  • Divorce through Mutual Consent

For a divorce through mutual consent, both the husband and wife must agree to a divorce. It is a much better alternative as it is relatively inexpensive and not as traumatic as a contested divorce. For a petition for divorce by mutual consent to be accepted, the couple have to-

    • Be separated for a period of a year or more before the divorce proceedings can begin under Section 13 B of Hindu Marriage Act, 1955 and Section 28 of the Special Marriage Act, 1954 and be separated for at least two years under Section 10A of Divorce Act, 1869
    • Prove that they are not able to live together
    • Reach a consensus on the matter of alimony or maintenance. There is no maximum or minimum figure prescribed by law.
    • Mutually agree on the custody of the child necessarily. Child custody can be shared, joint or exclusive.
    • Reach a decision on the division of property between them, including the movable and immovable property.
    • Decide how litigation expenses are to be divided, particularly if one spouse is financially dependent on the other.

A divorce by mutual consent takes around 6 to 18 months.

  • Contested Divorce

    A contested divorce takes place when one of the spouses wants to get a divorce and the other doesn’t. It is an extremely expensive process involving hefty litigation and should be avoided if at all possible.

    There are specific grounds only under which a petition for divorce without mutual consent can be made. The general grounds for contested divorce are-

    • Cruelty, which may be physical or mental. According to the Hindu Marriage Act, 1955, one spouse’s mind must have a reasonable apprehension that the other spouse’s conduct is likely to be injurious or harmful.
    • Adultery, i.e. consensual sexual intercourse outside of marriage. A man who commits adultery can also be charged with a criminal offence, but not a woman. Divorce as a civil remedy is available to both spouses.
    • Desertion, which must be intended and have lasted for a continuous period of two years under the Hindu Marriage Act, 1955. Desertion as a ground is not available under the Indian Divorce Act, 1869 to Christians.
    • Conversion, under which divorce can be sought by a spouse if the other spouse converts to another religion.
    • Mental Disorder, to such an extent that the normal duties of married life cannot be performed.
    • Communicable Disease, which allows the granting of a divorce if a spouse suffers from a communicable disease such as HIV/AIDS, syphilis, gonorrhoea or a virulent and incurable form of leprosy.
    • Renunciation of the world, where a spouse renounces his/her married life and opts for sanyasa, allowing the aggrieved spouse to obtain a divorce.
    • Presumption of death, when a spouse has not been heard of as being alive for a period of at least seven years, by such individuals who would have heard about such spouse, if he or she were alive.

Contested divorce proceedings can go on for a period of 18 to 24 months.

Divorce Procedures in India

  • Divorce through Mutual Consent

    A divorce through mutual consent may be filed under Section 13-B of the Hindu Marriage Act, 1955.

    • Filing of the Divorce Petition

      Firstly, a divorce petition is required to be filed by the two spouses at-

          • The last place of residence
          • The place of marriage
          • The place where the wife currently lives
    • Granting of the First Motion

      After filing the petition, the parties must record their statement in front of a judge in the district court. These must state their free consent to the divorce, their reasons for it and the terms agreed to between them, along with information on the period of separation. Once the statements have been heard, the judge grants the First Motion.

    • Cooling-Off Period

      What follows is a period of 6 to 18 months during which the parties are expected to attempt reconciliation before the filing of the second motion. The parties must wait for a minimum period of 6 months.

      If either spouse is shown to be uncooperative in reconciling, the judge may disallow mutually consented divorce.

      The 6-month cooling-off period may also be waived off if the court believes that there is no scope for the parties to live together.

    • Second MotionAt the end of the cooling-off period, if the parties remain unreconciled, they can file the Second Motion, and the judge will dissolve the marriage.
  • Contested Divorce

    A contested divorce is provided for under Section 13 of the Hindu Marriage Act. A case for contested divorce must fall under one of the above-mentioned grounds to be accepted by the court.

    • Divorce Petition

      A divorce lawyer prepares a Divorce Petition on the basis of the facts and circumstances. This petition has to be accompanied by relevant documents such as documents for proof of marriage, proof of allegations and supporting documents such as affidavit signed in the presence of an authorized Oath Commissioner or Notary.

      The Divorce Petition is then filed in the appropriate court and is normally heard within 7-10 days of filing, subject to the workload of the court.

    • Hearing

      • Admission of the Petition in Court

        Before the divorce proceedings can begin, a hearing is conducted to decide whether the petition can be admitted by the court. The Judge studies the petition and hears the opening statements from the counsels regarding the allegations and the grounds on which divorce is sought.

        If the court is satisfied on a preliminary level that the case carries weight, a notice is served to the opposite side.

      • Reply

        On the next day of the hearing, the opposing side is to appear in person and file its reply, along with a reply to any application for custody or maintenance filed along with the Divorce Petition.

      •  Mediation

        The Court initially attempt to resolve the dispute by directing the case for mediation. The mediation process attempts to shorten litigation and resolve the underlying issues sooner. A detailed article on the mediation process can be found here. In case the mediation process fails, the divorce proceedings are continued.

      • Recording of Evidence

        This is the most crucial part of the proceedings and can make or break a case. It involves the framing of issues, recording of evidence, examination and cross-examination of the petitioner and supporting witnesses, followed by that of the respondent. It takes a lot of time and hearings.

      • Decision

        The recording of evidence is followed by the final closing arguments by both the parties. The Court then sets a date to pronounce its decision.

    •  Appeal

      The parties can also file an appeal against the Court’s Order within a period of three months if the find the Court’s decision unacceptable.

How Much Does It Cost to Get a Divorce?

  • Divorce by Mutual Consent

The cost of filing a petition for divorce by mutual consent is Rs. 250/-, with the main cost being advocate fees. The advocate fees vary greatly, and a mutual consent divorce can end up costing from Rs. 5000 to Rs. 50,000 based on the complications of the case and the lawyer’s experience.

A comprehensive list of the various factors affecting a lawyer’s fees can be found here.

  • Contested Divorce

While the fee for filing a divorce petition is Rs. 250/-, the main cost for a contested divorce is the fee of the advocate. Since contested divorce often involves quite complicated issues, it takes a long time, usually a number of years to get resolved. An experienced lawyer can charge anywhere between Rs. 3000-Rs. 7000 for a single appearance.  

What to Do If You Do Not Have Money to Contest a Divorce Case?

In the Indian context, women are often left with little to no economic support on the withdrawal of household finances when divorce proceedings are initiated. In such cases, the first crucial step that must be taken is to start setting aside money whenever the decision to obtain a divorce is arrived at.

The following options can allow a person to obtain a divorce with little to no money.

Legal Aid

The Indian Constitution has provides for a right to legal aid, under which citizens are entitled to free legal aid by the government. Free legal aid can be sought from the National Legal Services Authority (NALSA), various State Legal Services Authorities or District Legal Services Authorities, which were set up under the Legal Services Authorities Act, 1987.

Under Section 12 of the Legal Services Authorities Act, 1987, the following people are eligible for legal aid-

  • member of Scheduled Caste or Scheduled Tribe;
  • a victim of trafficking in human beings or beggar as referred to in Article 23 of the Constitution;
  • a woman or a child;
  • a person with disability as defined in Section 2(i) of the Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995;
  • a person under circumstances of underserved want such as being a victim of a mass disaster, ethnic, violence, caste atrocity, flood, drought, earthquake or industrial disaster;
  • an industrial workman;
  • a person in custody, including custody in a protective home (Section 2(g) of the Immoral Traffic (Prevention) Act, 1956), or in a juvenile home (Section 2 (j) of the Juvenile Justice Act, 1986), or in a psychiatric hospital or psychiatric nursing home (Section 2(g) of the Mental Health Act, 1987);
  • a person who receives an annual income less than rupees nine thousand or such other higher amount as may be prescribed by the State Government, if the case is before a court other than the Supreme Court, and less than rupees twelve thousand or such other higher amount as may be prescribed by the Central Government, if the case is before the Supreme Court.
  • How To Apply for Legal Aid

    • An application can be made by any person in need of free legal services to the concerned authority or committee by sending in a written form or filling the forms prepared by the authorities, briefly stating the reason for seeking legal aid. The application is available free of charge.
    • It can even be applied for orally to an officer or a paralegal volunteer of the concerned legal authority.
    • A person can even apply for legal aid to any institution by filling up the online Legal Aid Application form provided by NALSA and uploading the necessary documents. The application is forwarded by NALSA to the concerned authority.
    • The online application form can be accessed from here. In case a form has already been filed, you can check its status here.
    • The action taken on an application varies from providing counselling or legal advice to the parties, to providing a lawyer for representation in a court of law.

Indigent Suit

If a person does not have sufficient means other than property exempted from attachment in the execution of a degree to enable him to pay the prescribed fees, he can fill an application along with the suit for permission to file the suit as an indigent person. It is also known as a pauper application, and exempts payment of even the court fee. The state government can also provide free legal services to an indigent person.

Mediation in Divorce Proceedings

Another wise option to save on expenses during divorce proceedings is to opt for mediation. Mediation is an alternative method of resolving disputes which allows for the resolution of the underlying issues behind divorce in a manner that takes less time, less money and gives the parties more control over their divorce proceedings with the assistance of a neutral third party.

Application for Maintenance Pendente Lite/Alimony Pendente Lite

If an application for maintenance is filed in Court during the divorce proceedings, the Court would first decide on the application in order to ensure the financial security of the spouse while the proceedings continue.

Both the Hindu Marriage Act and the Indian Divorce Act provide for maintenance/alimony pendente lite. Under Section 24 of the HMA and Section 36 of the IDA, a spouse can apply for maintenance during the pendency of the divorce proceedings. On the application of the husband/wife, the court can order the respondent to pay the petitioner for the proceedings, along with a monthly sum that the court deems reasonable. This application is disposed of within 60 days of serving notice and ensures income to the parties during the divorce proceedings.

Is a lawyer needed for a divorce?

Divorce proceedings in India are carried out in accordance with the Family Courts Act, 1984, the Code of Civil Procedure or the Rules framed by the relevant High Court. None of these requires or mandates a lawyer to be engaged in the divorce proceedings. Since the cost of filing petitions for divorce in the courts is generally less, a good option for someone with limited means is to seek a divorce through mutual consent without engaging a lawyer.

However, a lawyer may also prove to be beneficial if certain complications arise during the divorce proceedings.

Moreover, since a divorce without mutual consent is a long drawn-out legal battle requiring allegations to be proved through evidence and documents, it is highly advisable to engage a competent lawyer.

It is advisable for a person to fight their own divorce case?

It is an undisputed fact that a divorce is both, mentally and emotionally taxing. In such a situation, the only thing one wants to do is have someone else handle the brunt of it.

However, there is not any aspect of a divorce that a person cannot handle on their own. When going for a divorce by mutual consent, parties can completely avoid the legal system by going for a Marital Settlement Agreement (MSA), which even goes on to be attached to the judgement of the court. Parties can negotiate an MSA on their own. It also gives them control over the terms and conditions of their divorce.

It, however, is advisable to refer to a lawyer for advice, without retaining one.

A guide for going through the divorce proceedings without retaining a lawyer can be found here.

References

  1. https://vakilsearch.com/advice/divorce-in-india/
  2. https://www.lawfarm.in/question/is-it-necessary-to-appoint-a-lawyer-in-a-divorce-proceeding
  3. https://vakilsearch.com/advice/divorce-by-mutual-consent/
  4. http://prashantghai.com/procedure-contested-divorce-hindu-marriage-india/

 

Did you find this blog post helpful? Subscribe so that you never miss another post! Just complete this form…

LEAVE A REPLY