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Divorce Notice: How to file Divorce in India

 

  • Divorce procedure
  • Types of divorce in India
  • Laws under which divorce is filed
  • Party do not want to proceed for divorce

Divorce procedure is governed by various laws/Acts prevalent in India. Divorce in India can be initiated by any of the party as per the grounds provided under the relevant laws prevalent in India. Generally among Hindus, Buddhists, Sikhs and Jains, Divorce is governed by the Hindu Marriage Act, 1955, for Muslims by the Dissolution of Muslim Marriages Act, 1939, for Parsis by the Parsi Marriage and Divorce Act, 1936 and for Christians it is governed by the Indian Divorce Act, 1869.

Various Types of Divorce Petition in India

Section 13 of the Hindu Marriage Act, 1955 covers the provision of mutual consent divorce as well as other provisions. Divorce can be filed with mutual consent, or it can be filed by either husband or wife without the consent of the other.

  • Divorce by Mutual Consent
  • Divorce not out of Mutual Consent such as due to Cruelty, Adultery, Desertion, Conversion, Mental Disorder, Communicable Disease, Renunciation of World, Presumption of Death etc.

Preconditions to start Divorce Proceeding

Under various Divorce laws prevalent in India, either partner can send a legal notice for Divorce to the other. So sending a legal notice is the first step to be taken before starting any legal proceedings to make aware about the conflict between the parties (if any)/ or it is last sort of medium to resolve/end the conflict between the parties.

Legal notice is a formal communication sent by one party to the other, warning them before taking any legal action further and communicating his/her intention to undertake legal proceedings against the other party and make the other party aware of the grievance.

Who Can Send A Legal Notice?

Generally legal notice is send by Legal Attorney in the name of his/her client either via registered post or via Dasti (personally tendered notice to other party). Law has not defined any specified format of legal notice to be send to the party but Attorneys general follow a standard format for the same. While drafting legal notice Attorney has to be very careful since divorce means the end of marriage so it needs to mention proper details of the conflict between the parties or any chance to resolve it further. Numerous times it has been witnessed that, a well-written and well-served legal notice brings the other party on heels, and the problem gets resolved out of court via mutual discussion and understanding between both the parties.

What If Issue Doesn’t Get Resolve By Legal Notice?

But in some cases, other party sometime also reply to the legal notice/counter reply expressing their grievances or if chances of any resolution. After expiry of the timeline/notice period mentioned in notice, the party can proceed to file the Divorcee Petition.

It is pertinent to mention here that such legal notice must be drafted by a competent legal practitioner and should cover all the relevant aspects/contents.

What if you received a Notice of Divorcee but you do not want to proceed for Divorce?

If your husband or wife sends you legal notice of divorcee on wrong basis and you don’t want to proceed for divorcee, you need not be scared from Notice for divorce. If the notice is based on wrong grounds you can reply to the legal notice through Attorney mentioning correct details and you need to be prepared to defend divorce case filed by your spouse, by adducing evidences in your favor which shows that you have not done anything wrong/cruelty of any sort to your spouse which lead him to file divorce petition. In case of any act of violence or any wrong doing you can also file complaint to police officials or women cell under domestic violence act, against your husband, as well as under Section 498A of Indian Penal Code. You may also seek maintenance for you and your children from your husband, by filing maintenance petition under Section 125 Code for Civil Procedure.

What are the services Lawyerinc offers for Divorce?

Our services:

Our comprehensive range of end-to-end solutions includes following:

  • End to end services for divorce,
  • We have expertise in preparing to file divorce notice and petition including drafting of the same
  • We will get in touch with you renounced lawyers in this field.
  • Free consultation for any enquiry that you may have about divorce.
  • Legal notice and Petition will be drafted by us and be duly submitted in the court.
  • We shall inform you of the date and time when your physical appearance will be required in court, if any.
  • We will inform you about day to day proceedings in the matter.
  • You will get your divorce done without any hassles.

*Any fee, stamp duty and miscellaneous charges shall be payable extra.

Do contact us in case of any query related divorce and much more. To avail any of the above-stated services, kindly establish contact by posting a query at our site.

Legal Provisions under which Mutual Divorce can be filed

Various laws prescribed in India under which you can file divorcee by mutual consent are.

  • Section 13B of the Hindu Marriage Act, 1955 (applicable to all Hindus, Jains, Sikhs) mandates a period of separation of 1 year ,
  • Section 28 of the Special Marriage Act, 1954 ( applicable to all marriages between parties belonging to different religions, castes, NRI’s etc) mandates a period of separation of more than one year,
  • Section 10 A of the Indian Divorce Act for Christian Couples mandates a period of separation of two years.

Procedure for Filing Mutual Divorce in India

  • Both husband and wife have to reach a consensus in terms of mutual divorce.
  • As per the discussion between the parties, a Divorcee Petition is carefully drafted by a Legal Attorney for Mutual Consent under Section 13B of the Hindu Marriage Act or Section 10A of the Indian Divorce Act or Section 28 of the Special Marriage Act, as per its applicability
  • After completion of Drafting and other necessary formalities, Divorce Petition to be filed in the appropriate Court having jurisdiction.
  • Both the parties need to be present in the court for appearance as well as for recording statements as required after which the First Motion will be passed.
  • Where any party is unable to appear in person for recording statement due to any relevant reason, they can proceed through a Power of Attorney (POA) by authorizing someone from close family to appear on his behalf (in case of NRI or other reason)
  • The law provides the provision to provide a cooling period to the parties of a minimum 6 months which may extend up to 18 months with an aim to give them time to rethink and reconsider their decision. However, now vide the order of Hon’ble Supreme Court the said cooling period has been waived off/made it optional.
  • Afterward this The Second Motion is set up.
  • During the cooling period, before moving the second motion, the parties do have liberty to withdraw their consent for divorce.
  • If on the Second motion statements are recorded again and if court thinks/appears that the parties have been unable to resolve their differences, the Court will grant the Decree for Divorce
  • If the court consider that/or on request of parties that there is a scope of any harmony/compromise between the parties, the court may set up another motion to record the statement of the parties
  • If Divorce Decree has been passed with consent of both the parties then they can file an appeal in the higher court.

What are the services Lawyerinc offers for Divorce by mutual consent?

Our services:

Our comprehensive range of end-to-end solutions includes following:

  • End to end services for divorce.
  • We have expertise in preparing to file divorce petition including drafting of the same.
  • We will get in touch with you renounced lawyers in this field.
  • Free consultation for any enquiry that you may have about divorce
  • Petition will be drafted by us and be duly submitted in the court.
  • We shall inform you of the date and time when your physical appearance will be required in court, if any.
  • We will inform you about day to day proceedings in the matter.
  • You will get your divorce done without any hassles.
  • *Any fee, stamp duty and miscellaneous charges shall be payable extra.

    Do contact us in case of any query related divorce and much more. To avail any of the above-stated services, kindly establish contact by posting a query at our site.

Conditions for Filing Divorce by Mutual Consent

There are certain conditions/requirements that have to fulfil to seek divorce under Hindu Marriage Act which is as mentioned below:

  • Both the parties have been living separately for a period of at least one year (living separately has no connection with respect to living under safe roof)
  • Both the parties have not been able to live together, and
  • Both the parties have mutually agreed to the conclusion that marriage should be dissolve

Procedure for Divorce by Mutual Consent

  • Both husband and wife have to reach a consensus in terms of mutual divorce.
  • As per the discussion between the parties, a Divorcee Petition is carefully drafted by a Legal Attorney for Mutual Consent under Section 13B of the Hindu Marriage Act or Section 10A of the Indian Divorce Act or Section 28 of the Special Marriage Act, as per its applicability.
  • After completion of Drafting and other necessary formalities, Divorce Petition to be filed in the appropriate Court having jurisdiction.
  • Both the parties need to be present in the court for appearance as well as for recording statements as required after which the First Motion will be passed.
  • Where any party is unable to appear in person for recording statement due to any relevant reason, they can proceed through a Power of Attorney(POA) by authorizing someone from close family to appear on his behalf (in case of NRI or other reason)
  • The law provides the provision to provide a cooling period to the parties of a minimum 6 months which may extend up to 18 months with an aim to give them time to rethink and reconsider their decision. However, now vide the order of Hon’ble Supreme Court the said cooling period has been waivedoff/made it optional.
  • Afterward this The Second Motion is set up.
  • During the cooling period, before moving the second motion, the parties do have liberty to withdraw their consent for divorce.
  • If on the Second motion statements are recorded again and if court thinks/appears that the parties have been unable to resolve their differences, the Court will grant the Decree for Divorce.
  • If the court consider that/or on request of parties that there is a scope of any harmony/compromise between the parties, the court may set up another motion to record the statement of the parties.
  • If Divorce Decree has been passed with consent of both the parties then they can file an appeal in the higher court.

Jurisdiction For Filing The Divorce Petition in India

  • where the marriage was solemnized between the parties, or
  • where both wife and husband last resided together,or
  • where the wife is residing presently at the time of filing of the Divorce Petition, or
  • Where the husband is residing presently at the time of filing of the Divorce Petition.

Procedure to Be Followed By NRI Couple for Filing Divorcee Petition

An NRI couple as per their own wish can file a Divorce either in the foreign country where the couple currently inhabit or in India as well. Divorce Petition in foreign court to be passed as per laws/procedure followed in respective country.

Frequently Asked Questions

  • My wife doesn't want the divorce. What if she won't sign the divorce papers?

    You can get a divorce even if your wife does not want it. You can mention in the petition about the issues between the parties and that your marriage has been going through an irretrievable breakdown and it is not possible to fix o resolve the issue.

  • My husband filed for divorce petition, but I do not want a divorce. What can I do?

    You really cannot stop the divorce proceedings but you can ask court to direct for counseling for you and your spouse.

  • I got married 7 months before and want to file divorce. Is it possible?

    No, one can file divorce only after completion of 1 year of marriage on the basis of grounds mentioned in Section 13 of Hindu Marriage act.

  • What can I do if I am married for 3 months and my husband physically assaults me?

    You can file divorce only after completion of 1 year but you can approach local family court for annulment of marriage on basis of cruelty

  • I lives in Canada and cannot come to india for filing divorce. So can I apply for divorce online?

    No, there is no provision to file divorce through online medium. Although you can execute POA in favour of your family member or attorney who is present in India

  • My husband deserted me 3 years ago and has never come back. Can I file divorce??

    Yes, you can file divorce on basis of desertion and if you have not heard about person from last 7 years.

  • How much time it takes to get divorce in case of mutual consent?

    In case of contested divorce, it taken long time generally 3-5 years but in case of uncontested one, it takes around 7-8 months.

  • Why to get divorce through lawyerinc?

    Lawyerinc is a complete blend of professionals from across the globe. In –house team of lawyers and attorneys, CA, CS. All professional work together in Lawyerinc, providing you end to end solution. It guarantees delivery in the shortest and most reasonable rate in India. It enjoys a global presence

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