- The first condition for obtaining divorce is that the couple had lived separately for at least one year, abstained from performing matrimonial obligations and wanted to dissolve their marriage legally.
- If the application for divorce is by mutual consent, consent of both parties to marriage is required. It is always advisable that the couple should come to the conclusion on the custody of child if they had, return of properties prior to the divorce proceedings in mutual consent cases.
- Party should give Vakalatnama to his/her Advocate whom he/she appointing as his/her lawyer to proceed the divorce proceedings in the family court.
- If it is a contested case, the grounds for divorce under Hindu Marriage Act could be cruelty, adultery, desertion, mental disorder, renunciation, communicable disease, conversion of religion, and inability to cohabit, not heard for seven years (for Muslims it is 4 years). Additional grounds for filing petition include, husband living with wife of his previous marriage held prior to enactment of Hindu Marriage Act, if husband found guilty of rape, or anal intercourse or sexual acts with animals, if the wife awarded with maintenance under Hindu Adoption and Maintenance Act, 1956 or under section 125 of the Code of Criminal Procedure, 1975, and despite this if conjugal relationship between parties failed to resume within one year from the date of order of maintenance, or if wife got married before 15 years of her age and rejected marriage not below 18 years. Applicant should prove the grounds quoted in the Petition for grant of decree of divorce.
- Application to be filed before Court along with proof of marriage, income papers, and property documents if required.
- After filing of the application, court may fix the hearing after six months from the date of application as court thinks that issues between parties could get solved amicably during that 6 months period. Application becomes void on that instance if the parties to Application not appeared before court after the six months period. Also, parties are allowed to withdraw the application within six months period.
- Notice will be ordered to the other party (spouse) in the contested divorce cases upon filing the Petition.
- Counseling may be ordered by Court initially in an effort to bring the parties together for the welfare of the family.
- In contested cases, interim Maintenance, i.e., provision of financial assistance may be ordered by the court if required, during the proceedings or even before the divorce proceedings if the application is filed by the wife depending upon the income status of husband and wife. Court may reject the Petition for divorce if grounds for divorce not proved by the Petitioner with substantial evidence.
- In mutual consent cases, alimony a fixed amount will be decided by the parties, whereas in the contested cases, it is fixed by the court on the circumstances of each party. After hearing the parties if the court satisfied the terms of mutual consent agreed between parties in the aspects of child custody, return of properties, alimony etc., court grants mutual divorce decree to the parties.
- Procedure for obtaining divorce is almost the same under the all religious marriage Acts (personal laws) with slight variations.
by Anitha Gutti