Divorce Lawyers in Delhi
A case of divorce also surrounds around various other laws such as child custody law, the law of dowry prohibition, the law of domestic violence, and many more laws. Since there are many things involved with the divorce case, so there is a need to consult a highly qualified and experienced divorce lawyers in Delhi who know well how to perform all the procedures related to the divorce.
Are you unhappy with your husband or wife? If your marriage life is not on the track and you wish to take divorce from your partner, then you must look for the divorce advocates who can help you to get rid of daily fights with your partner by getting a divorce. Then, divorce advocates in Delhi may help you to get a divorce from your partner.
Marriage is a knot that is tied by the choice of both the parties, but some misunderstandings may demand divorce that breaks up the knot of marriage either by the mutual approval of both parties or by winning it by their assigned divorce advocates in Delhi according to the court law.
Whether you are looking for the mutual consent divorce or contested divorce in Delhi, divorce lawyers in Delhi are here to help you with both types of divorces.
CONCLUSIVE GUIDE ON DIVORCE LAWS & PROCEDURE IN INDIA
Divorce means the legal cessation of matrimonial bond. Since India is a home todiverse religious communities having distinct matrimonial laws, the divorce procedure also varies.
- i. All Hindus as well as Buddhists, Sikhs and Jains are governed by the Hindu Marriage Act 1955.
- ii. Muslims are governed by Muslim Personal Law and Dissolution of Muslim Marriages Act, 1939.
- iii. Christiansare governed by Indian Divorce Act, 1869 andThe Indian Christian Marriage Act, 1872.
- iv. Parsisare governed by The Parsi Marriage and Divorce Act, 1936.
An Indian couple can voluntarily seek to be governed by the Special Marriage Act, 1954 if they belong to different religious communities and also if the couple does not desire toperform obligations under specific personal law. Besides, there is also Foreign Marriage Act 1969, which governs divorce laws in marriages where either partner belongs to another nationality.
There are two ways of obtaining Divorce in India: -
- i. Divorce by Mutual Consent
- ii. Divorce without Mutual Consent or Contested Divorce.
1. DIVORCE BY MUTUAL CONSENT:
Seeking divorce in India is an overlong legal affair where the entire process takes a statutory minimum of six months.
Nevertheless, the time and money required to obtain a divorce can be substantially curtailed if the couple agrees to seek divorce by mutual consent.
Where the couple finds it correct and expedient to obtain divorce without having to face harassment and endure long fetched legal process, they can approach Family Court by filing divorce by mutual consent.
Generally the duration of a divorce by mutual consent varies from 6 to 18 months, depending on the discretion of the court. It has usually been the preference of the courts to end mutual consent divorces sooner, rather than later.
As per Section 13 B of Hindu Marriage Act, 1955, Section 32 B of Parsi Marriage and Divorce Act, 1936 and Section 28 of the Special Marriage Act, 1954, the couple desirous of obtaining divorce should be living separately for at least one year immediately before the presentation of petition for Divorce.
Section 10A of Divorce Act, 1869, however, requires the couple to be separated for at least two years. The expression “Living Separately”here means not living as husband and wife.
It has no reference to the place of living. It may be possible that the couple might be living under the same roof due to force of circumstances but may not be performing marital obligations towards each other. What is to be determined is that they certainly do not have any desire to perform marital obligations.
For obtaining Divorce by mutual consent under Hindu Marriage Act, 1955, Section 13 B of the Act specifies that the petition for divorce by mutual consent must be presented to the court jointly by both the parties. The other requirements which the couple needs to comply with are given here under: -
- i. They have been living separately for a period of one year.
- ii. They have not been able to cohabit together.
- iii. They have jointly agreed that the marriage should be dissolved.
- iv. They wait for at least six months from the date they present the petition.
- v. Before the expiry of 18 months from the date they present a petition, they together should make a motion to the court for passing a decree.
- vi. Such consent has not been obtained by force, fraud or undue influence
Under Muslim Personal Law, both “Khula” and “Mubarat” are types of divorce by mutual consent. Khula is suitable mode of divorce in cases where the wife does not wish to continue with the marital bond. It is a case where the wife proposes to her husband for dissolution of marriage in which she gives or agrees to give a consideration to her husband for the purpose of dissolution of marital bond. On the other hand, Mubarat provides a way out where both the parties are equally willing to dissolve the marriage. In Mubarat, the offer for dissolving the marital bond may come from either wife or husband. But unlike Khula, there is no question of consideration in Mubarat.
While Divorce by Mutual Consent can save a lot of time and prevent the couple from prolonged litigation and resultant embarrassment, there are some issues regarding which the parties have to reach a consensus before cessation of the marital bond. The issues pertain to: -
- 1. Alimony
- 2. Custody of the Child
- 3. Adjustment and Appropriation of Properties
Alimony means the financial support which an estranged spouse is entitled to during and after a divorce from other. Alimony is usually granted to women because conventionally being a homemaker, they find it difficult to sustain themselves and their children after obtaining divorce. Some of the factors which determine how much and for how long alimony is to be paid:
- i. In cases where the seeking party is already receiving a financial support and is able to sustain his/her life, alimony is generally not granted by the court.
- ii. Duration of marriage is also taken into account for determining the quantum and duration of alimony. Spouses who have been married for very long might be granted more alimony.
- iii. Age of the recipient is also of great weightage in determining alimony. Younger spouses may be given smaller amount by the court if it thinks that the recipient can become financially independent and sound keeping in mind future prospects and career enrichment.
- iv. The court, in cases where seeker is suffering from ill health, usually orders the other spouse to pay a higher alimony to take care of the former's healthcare expenses.
Another aspect of divorce which leads to major legal hurdle and emotional distress is child custody. Divorce causes breakdown of the entire family which causes enormous inconvenience to the child as he is separated not only from the divorced couple but from the entire family and in some cases, even from his other siblings. In case of infants and younger children, custody is given to the mother but in cases of older children, the custody of a girl child is generally given to the mother, and that of the boy child to the father.
The husband and wife must decide in advance as to who gets what part of the property. The property may include both movable and immovable property. Consensus should be aimed to be achieved in appropriating the properties like return of dowry items, return of stridhan, exchange of valuables which might be against money consideration too. It is considered just and expedient to decide and divide everything deep down to the bank account.
2. DIVORCE WITHOUT MUTUAL CONSENT OR CONTESTED DIVORCE:
Unlike Divorce by Mutual Consent, in Contested Divorce only one party contests the claim as there is no question of mutual consent. In this case, divorce can only be obtained when petition is made on some specific grounds. The aggrieved party has to take one of the specified grounds of divorce and will have to file the case in the Court of competent jurisdiction. It may be noted that the party which files the case has to prove the case in light of supporting evidence and documents. It is only after successfully proving the case, divorce will be granted.
The grounds specified for obtaining divorce are given under different sections of different Acts and are almost comparable. Hereunder is given the reference to particular sections of several acts where the grounds for obtaining divorce are given: -
- i. Section 13 of the Hindu Marriage Act, 1955
- ii. Section 2 of the Dissolution of Muslim Marriages Act, 1939
- iii. Section 10 of the India Divorce Act, 1869
- iv. Section 32 of the Parsi Marriage and Divorce Act, 1936
- v. Section 27 of theThe Special Marriage Act, 1954
In these sections certain grounds for filing petition to obtain divorce are properly mentioned.
The following are the grounds on which divorces are commonly filed: -
Cruelty comprises not only physical but also and mental cruelty. However, Supreme Court has held that every matrimonial conduct which may cause irritation to the other does not amount to cruelty. Mere wear and tear of daily matrimonial life, quarrels between spouses, which happen in every matrimonial bond, may also not amount to cruelty. To constitute cruelty, the conduct complained of should be so grave as to come to the conclusion that the petitioner spouse cannot be reasonably expected to continue living with the other spouse. Cruelty in matrimonial life may be of any variety, which can be subtle or brutal and more than just “ordinary wear and tear of matrimonial life”. It may be by words, gestures or by mere silence, violent or non-violent.
In India, a man who commits adultery which means that he has consensual sexual intercourse outside of marriage can be charged with a criminal offence. The wife may on this ground file for divorce.
A spouse who deserts the other without any reasonable cause and without the intention to resume cohabitation in near future is also a ground for divorce. According to Hindu laws, the desertion should have lasted at least two continuous years.
Divorce can be sought by the petitioner spouse if the other spouse converts to another religion.
If the mental illness of theother spouse is such that it is reasonable unexpected to continue living with him/her and is incapable of performing the normal duties required in a marriage on account of mental illness, divorce may be sought. However, this section is not to be so widely interpreted to include every single kind of mental disorder. Such mental illness which doesn’t last long and the spouse can even then reasonable be expected to continue living with him/her may not serve as a cogent ground for divorce.
Under Hindu Law in India, divorce may be granted if the other spouse is suffering from virulent and incurable leprosy or if suffering from venerable disease in communicable form.
If the spouse renounces the world and absolves him/herself from all matrimonial and worldly obligations, the aggrieved spouse may obtain a divorce.
According to Hindu Laws, the divorce decree may be granted to the petitioner spouse if the other spouse has not been heard of as being alive for a period of at least seven years by such persons who would have heard about such spouse if he or she were alive. In this case the spouse who is alive can obtain a judicial decree of divorce but only after the period of 7 years has elapsed and there is evidence to this effect.
The foremost step in obtaining a divorce is to approach either a credible Divorce Lawyer Firm or engage a well-informed and Experienced Divorce Lawyer who would take care of all the legal complexities which might subsequently arise. A divorce petition can be filed by an Experienced Divorce Advocate on the any of the grounds mentioned under the relevant act mentioned above. Your Divorce Lawyer will commence drafting a divorce petition on the grounds mentioned under relevant act and will file it in the relevant court.
Section 19 of The Hindu Marriage Act, 1955 which governs Hindus, Sikhs, Jains and Buddhists states that the Divorce Petition has to be presented to the District Court within the local limits of whose ordinary original civil jurisdiction :
- i. The marriage was solemnized, or
- ii. The respondent, at the time of the presentation of the petition, resides, or
- iii. The parties to the marriage last resided together, or
- iv. The petitioner is residing at the time of the presentation of the petition, in a case where the respondent is, at that time, residing outside the territories to which this Act extends, or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he were alive.
So, if in case any of the above given situation, the place for obtaining Divorce happens to be Delhi, in such case it would be appropriate to engage a Divorce Advocate In Delhi. For ensuring a hassle free and swift process, Divorce Lawyers in India generally recommend to possess and be present with the following required documents:
Depending upon under which ground the Divorce Petition is being filed, any or all of the following documents may be required:
- 1. Age and Address Proof of the Husband.
- 2. Age and Address Proof of the Wife.
- 4. Passport Size Photographs.
- 5. Income tax statements of recent years.
- 6. Details regarding Profession/Occupation & Present Remuneration.
- 7. Information regarding Family Background.
- 8. Details suggesting assets & properties owned by petitioner.
- 9. Evidence suggesting spouses are living separately for more than a year.
- 10. Evidence illustrating unsuccessful attempts of reconciliation.
Along with the above mentioned documents, it is advised that you provide your Divorce Advocate with a detailed description of your marriage.For instance; it should include how and when you got married and what led to the splitting up of the marital bond you once shared with your spouse. It is advised to be more honest with your Divorce Lawyer as it will ensure filing of a strong petition for a contested divorce.
However, it is always suggested to opt for a divorce through mutual consent than through contested divorce.The procedure of getting a mutual divorce is smoother and doesn’t involve many complexities in comparison to that of the other. Obtaining a divorce can be an extended affair which might entail many emotionally traumas, hardships, nerve wrecking moments and embarrassments. It is thus always advised to be truthful to your counsel and to remain calm yet firm throughout the process.