This article explains all you need to know about getting a divorce in India.
Marriage as opposed to relations of blood, is one which we enter into by our own choice and not by virtue of our birth. Conceptually Marriage is both a Sacrament & a Contract. It is a contract because it is based on offer and acceptance and is akin to an agreement to live together. Sacrament because of it’s religious ties.
As it is connected with the freedom of choice, sometimes we do make choices that do not turn out the way we would want them to be.
Divorce allows a person to break free from an onerous marital relationship. But since marriage is not merely a contract but a very important societal institution. The law has an interest in protecting marriage, and not allowing it to be severed only by choice and on ordinary wear and tear. Since society in countries like ours takes special interest in protecting it - In our country to get a divorce one needs to prove certain grounds for eg : cruelty/adultery/desertion etc. Known as matrimonial offences. (Crimes relating to marriage)
A happy marriage is a harbour in the tempest of life an unhappy marriage a tempest in the harbour of life, more and more people are realising the reality of their relationships, and accepting divorce as the rational choice to a better life necessary premised on better relationships. It is no more a taboo and especially so in urban cities.
Divorce by Mutual Consent is the easiest way to get a divorce, in this both parties work out their terms on which they agree to part ways- file petition in the court, which is finalised in 6 months. However there may be cases where the decision to part may not be a mutual one, and it is only one party who considers the union to be troublesome and worth getting rid off. Such situations lead to Divorce being contested.
In this regard we follow the fault based system of divorce. Divorce is granted only on proof of fault or guilty conduct of one party and innocence of the other. The most common ground for divorce is cruelty (Simply such conduct as to make it impossible for parties to live together – this includes mental or/and physical torture). Another common ground is adultery (sexual intercourse outside wedlock) one instance of lapse of virtue can lead to divorce.
Divorces are also common on grounds of desertion (simply wilful abandonment of one spouse by the other without reasonable cause/excuse). Apart from this Conversion of religion/Unsoundness of mind/Renunciation of world are also grounds for divorce.
As per the law as it stands our legal system does not allow divorce to be granted on the ground of irretrievable breakdown of marriage or irreconcilable differences.(Known as no fault grounds). Call it impractical & absurd. To get a divorce one has to prove wrongdoing on the part of other spouse, and impeccable conduct of one’s own in order to win. Which is impossible sometimes. Legislature has taken note of this pragmatic reality and a bill on the same topic is pending in the Parliament, which would allow a person to seek divorce on ground of inherent incompatibility leading to breakdown of relationship.
PROCEDURE OF GETTING A CONTESTED DIVORCE
· Ascertain the ground on which you want to seek divorce.
· Collect evidences.
· Consult a seasoned divorce lawyer and file a petition in the Family Court of your district.
HOW DOES YOUR CASE PROCEED ? AND HOW MUCH TIME DOES IT TAKE ONCE IT IS FILED IN THE COURT
Petition is filed in the court with all the relevant evidences/documents. Person filing the petition is called ‘the petitioner’ and erring spouse responding is ‘the respondent’. (Remember to annex all documents on you rely with the petition itself – Videos/Audio Recordings/Photos are documents within the meaning of evidence act, and admissible in evidence, your’s spouse emails/chats/facebook/twitter updates are also admissible to prove depravity/infidelity or whatever !
After you file the petition in the court – erring spouse is summoned, if he/she turns up and enters appearance the matter is bi-parte, if the erring spouse prefers not to contest or come to the court, the matter is proceeded ex parte (in absence) and divorce granted if the matter is worthy of the same.
· In case of bi-parte - the court normally would before seeking a reply from your spouse of the allegations levelled by you – would refer the parties to a mediation or conciliation, so that issues can be resolved amicably this way or the other. Whether leading to a reconciliation (living together) or an amicable divorce.
· If the above fails, the erring spouse/respondent would file a Written Statement to your petition with the necessary documents (Normal time for filing a WS is 30 days (Max : 90 Days). Following which one can file a replication to further elaborate and explain.
· Once that is done the court would frame issues – issues are questions that are to be decided by court at the time of final hearing. For eg : in a Divorce on the ground of adultery – the issues would be “Whether the respondent had sexual intercourse with X during the subsistence of marriage with the petitioner” ? The answer to this question would decide the fate of divorce case. There may be more than one issue in case of multiple grounds. The entire divorce proceedings are premised at answering this question/issue.
· After issues are framed – the court would ask petitioner to lead evidence, his own or/and his witnesses. This also is decided into three stages. First petitioner would lead his witness and examine him. Thereby putting the foundation of his case. (Called examination in chief) Thereafter the opposite party would cross examine the petitioner’s witness. (Called cross examination) Cross examination includes exposing the falsity of a witness’s deposition by putting leading questions, and contradicting the witness. Witness may either withstand the onslaught of questions – thereby retaining the confidence and reliance of the court, or he may stand discredited.
· The Party calling the witness is further given an opportunity to fill the holes the opposite party’s advocate has busted into it and make the court believe in it’s witness.
The same process is repeated for each witness on either side. Once petitioner’s evidence is over, respondent leads his or her evidence. Please note petitioner/respondent/family members are all competent witnesses.
Once evidences are over. The Court would finally listen to arguments of either side on the case, and then proceed to decide the case.
On how the evidences are appreciated, to illustrate in a case based on cruelty the court would normally see whether on the totality of evidences led, is the conduct of respondent such as to make living together a practical impossibility ? Does it pose a great risk to physical or mental well being of the petitioner.
The Court’s formal order in the end is known as the ‘decree’. After this either party may appeal in the High Court and then finally the Supreme Court.
Normally the process in the Family Court would take anywhere between 2-3 years if contested vigorously. My experience has shown that parties normally lose patience somewhere in between and agree to part ways amicably. Because litigation does not really pay for anybody but the lawyers ! and that is the reason I advise my clients to go in for this only when the mutual option is unquestionably foreclosed.
*The Author is a Supreme Court advocate specialising in Divorce & Family Law and can be reached at email@example.com
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Tags :Family Law