Divorce in India is of two types Mutual and Contested. Mutual Divorce is where both the husband and wife agree dissolve marriage mutually on voluntary terms agreed by them. 

Contested is on the other hand is more complicated and complex in nature. Where one party wants Dissolution of Marriage and the other is contesting, i.e. fighting the case. We have discussed both in detail below. 

Divorce is covered under Personal Laws thus the procedure is different under different religions. Like in Muslim Law it takes place either by the acts of parties or by a decree of law, i.e. under Dissolution of Muslim Marriages Act 1939.

Similarly, under Parsi Law and Christian Law is regulated by Parsi Marriage and Divorce Act 1936 and Christian Marriage and Divorce Act 1957, respectively.

Divorce among Hindus is regulated by Hindu Marriage Act 1955. There are two ways to dissolve a Hindu Marriage. One is “by Mutual Consent” and the other is “Contested Divorce” as called in normal legal parlance.

CONTESTED DIVORCE

Section 13 of the Hindu Marriage Act 1955 provides the grounds for grant of Dissolution of Marriage by a Decree of Court. If your case is falling among any of the following grounds, then you can file a petition for dissolution of marriage before the Family Courts in your District. The grounds are:

1. If your husband or wife had voluntary intercourse with any other person, or
2. If your husband or wife has treated you with cruelty; or
3. If your husband or wife has deserted you or left you for the past 2 years; or
4. If your husband or wife has ceased / stopped being a Hindu due to conversion; or
5. If your husband or wife is of unsound mind or has mental illness.

These are some of the few major grounds as enumerated under the Act.

MUTUAL DIVORCE

Section 13B of Hindu Marriage Act 1955 provides that if both you and your husband or wife agree for dissolution of marriage, then you may file a petition for divorce by mutual consent jointly before the Family Court in your District.

 However, it must be filed only if you and your spouse have been living separately for at least one year and not before that. 

It is granted in two stages. There are two petitions filed (called 1^st Motion and 2^nd Motion in legal parlance) and decree is granted by the court after filing of the second petition, i.e after moving 2^nd motion.

There is a mandatory gap of 6 months between both the motions as prescribed under Section 13B(2). However, recent judgments passed by the Hon’ble Supreme Court of India have diluted this period. 

It has given a discretion to the Learned Family Court to allow the 2^nd Motion even before the period of 6 months is over. The Learned Family Court may grant the decree of divorce, if the circumstances so demand.

THERE ARE MANY MORE COMPLICATIONS IN DIVORCE CASES LIKE ALIMONY, MAINTENANCE, CUSTODY, TRANSFER CASES AND CRUELTY CASES, CRIMINAL CASES FOR DOMESTIC VIOLCENCE.

TO KNOW MORE ABOUT MATRIMONIAL DISPUTES. DO CHECK OUT OUR DETAILED REPORT ON MATRIMONIAL DISPUTES COVERING THE ABOVE TOPICS.

VISITATION RIGHTS OF FATHER – REMDEY UNDER PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT 2005

READ OUR ARTICLE ON EFFECTIVE REMEDIES UNDER PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT 2005