PROCEDURE OF A DIVORCE

Introduction
Marriage is the social union between two individuals which forms the foundation of the
family for many societies. A man and women when they come together they complete each
other as a man cannot have a material existence until he has been married and had a wife. In
several western societies Marriage is understood as a social contract between two individuals,
where they come and bind themselves together as a partners for life and are culturally
recognized as spouses.
Marriage is considered to be important for a sexual relationship in a bond that is socially
sanctioned. As it is designed to produce children and to socialize them successfully. If seen
globally, polygamy is no longer a form of marriage in many existing societies also in some
places it has been debated that marriage is an unnecessary legal fiction. Marriage can also be
cancelled and annulled which means that it will be considered invalid from the very
beginning
Since the later decades of the 20th century, there has been many traditional assumptions
about the nature and also the purpose of marriage and family has been challenged. Most
particularly it was the gay rights advocacy groups who do not agree with the notion that the
marriage could be heterosexual.

Meaning, concept and grounds for Divorce

As one person walks out of the marriage, it leads to the termination of marriage which is
known as Divorce. In common layman words divorce is the end of the matrimonial ties
between two individuals through a legal procedure before the court. Divorce is an old and
venerable institution and the most traumatic occurrences for any couple. According to the
Indian Marital laws, divorce is the legal dissolution of the marital union between two
individuals. The laws for divorce keep differing from country to country, from state to state
and also sometimes in terms of religion too. In many of the countries divorce requires
permission of the court, legal sanction or any legal authority. The process of divorce is not a
separate issue other than the husband wife sanction it also includes division of assets,
property, child custody, parenting time and alimony.
There are certain grounds to attain divorce and those are as follows:
 Adultery
 Desertion
  Insanity
 Conversion
 Cruelty
 Renunciation
 Venereal Disease
 Presumption of Death

In the case of ‘Bhagwat Pitambar Borse vs. Anusayabai Bhagwat Borse’ 1 (February 8, 2018)
the Bombay High Court had granted divorce in favour of husband. The divorce was granted
on the ground of adultery and it was in the view of provisions of Section 125(4) 2 and (5)3 of
CrPC hence the wife was not entitled for maintenance.

Divorce and Judicial Separation

Judicial Separation is not the same as divorce. These two words are complete different
common terms and concepts which are most often misunderstood by many people. In Judicial
separation despite being legally married the married couples are formally separated from each
other.
This separation is done by a legal process through decree of the court or by agreement
between the parties. Judicial separation is also called as ‘divorce from bed and board’.

Laws governing Divorce in India

Marriage and Divorce are personal laws so therefore in India there are no uniform laws for
divorce. India is a goldmine of customs and cultures. Customs, cultures and ethics keeps
varying like we keep moving from north to south or from east to west. The laws governing
divorce in India are as follows:

1
Criminal W.P. No. 724 of 2016
2
(4)-No Wife shall be entitled to receive an allowance from her husband under this section if she is living in
adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately
by mutual consent."
3
(5)-On proof that any wife in whose favour an order has been made under this section is living in adultery, or
that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual
consent, the Magistrate shall cancel the order.
1) Special Marriage Act 1954: This act was passed in 1954 and it deals with inter caste and
inter religion marriages and is applicable to all the Indian Nationals who live abroad. Section
27 of the Special Marriage Act 19544 states the grounds for divorce which are as follows:
Cruelty
 Insanity
 Adulteration
 Desertion
 Presumed Death
 Imprisonment
 Leprosy
 Venereal Disease

2) The Hindu Marriage Act 1955: This Act is applicable to all the Hindus including Sikhs,
Buddhists or Jains by religion. But doesn’t include Christians, Parsis, Muslims or Jews by
religion. Section 13 of Hindu Marriage Act 19555 states the grounds for divorce and those are
follows:
 Cruelty
 Adultery
 Desertion
 Religion Conversion
 Unsoundness of mind

3) The Divorce Act 1869: This Act is applicable to the Christians only and they can confer
the court’s jurisdiction in matrimonial matters. Section 106of this act provides the grounds for
divorce which are as follows:
 Adultery
 Unsoundness of mind
 Religion conversion

4) Muslim Law: Muslim laws are personal laws and are governed by their holy book ‘Quran’.
In Muslim law a marriage is a civil contract and is called a Nikaah. The dissolution of
marriage can be done at the occurrence of husband by saying “Talaaq” thrice, by women
“Khula” or through mutual consent “Mubarat”.

4
24- Divorce
https://indiankanoon.org/doc/695509/
5
13- Divorce
https://indiankanoon.org/doc/1284729/
6
10-Grounds for dissolution of marriage
https://indiankanoon.org/doc/1387951/
The Muslim Women (Protection of Rights on Divorce) Act, 1986 was passed to protect the
rights of women who have been divorced or have obtained divorce from their former
husband. In the case of ‘Danial Latifi vs Union of India’ 7the constitutional validity of the
Muslim Women (Protection of Rights on Divorce) Act 1986 was challenged. The Supreme
Court read this Act with Article 14 and 15 which prevents discrimination on the basis of sex
and also held that the framers intention could not have been to deprive Muslim women of
their rights. Also Section 3(1)(a) of the said act provides ‘a reasonable and fair provision and
maintenance to be made and paid to her within the iddah period by her former husband’.

Types of Divorce in India

Divorce can be done in many ways. There are two types of Divorce in India i.e.
1. Divorce by Mutual Consent
2. Contested Divorce
3.
Divorce by Mutual Consent: When both the spouses agree to a peaceful dissolution or they
aren’t able to live with each other anymore and mutually decide to end their marriage then it
is called as Divorce by mutual consent. It is most easiest way to come out of the marriage as
compared to Contested Divorce. The husband and the wife have to reach a certain consensus
in order to obtain the divorce by mutual consent, those aspects are:
1) Alimony/Maintenance
2) Child Custody
Divorce by mutual consent is talked about under Section 13(B) of the Hindu Marriage Act,
19558 and Section 28 of the Special Marriage Act 1954 9. The husband and wife should be
separated for a year or two in order to file a joint petition of divorce with mutual consent.
Contested Divorce: When one of the spouse decides to divorce the other without his consent
then it is said to be contested divorce. Therefore every couple has certain rights when they get
married and when these rights are contravened by one then the other has to right to file a
petition for divorce.

General Procedure for Divorce

7
WP (Civil) 868 of 1986
8
13B-Divorce by mutual consent
https://indiankanoon.org/doc/439618/
9
28-Divorce by mutual consent
https://indiankanoon.org/doc/1301592/#:~:text=(1)%20Subject%20to%20the%20provisions,together%20and
%20that%20they%20have
To obtain a divorce every citizen of India has to follow a certain procedure:-
Step 1: Drafting and filing of divorce petition
The party whosoever wants a divorce needs to file a petition before the court with appropriate
court fees and also with the help of a lawyer. The divorce petition can be filed in three
territorial jurisdiction of courts:-
 The last living place of the Husband and wife
 The place where the husband is living presently
 The place where the wife is living presently

Step 2: Service of Summons

After filing the divorce petition the next step is serving the summons through a notice which
means that the divorce proceedings have already been begun by their spouses. They are
served through speed post with a covering letter.

Step 3: Response
After the summons has been received by the party, the spouse against whom the divorce has
been filed needs to appear before the court on the date that has been mentioned on the
summons. And if the spouse fails to appear before the court on the said date then the court
can give an ex- parte opportunity to the petitioner and after that pass an order on ex parte
basis and can close the divorce process.

Step 4: Trial
Next process is the Trial which is a very important procedure. After the petitions have been
submitted, both parties along with their witness and evidence appear in the court. The lawyers
will then conduct the cross examination and examination in-chief of the spouses as well as of
the evidences.

Step 5: Interim Orders

Another aspect of the process of divorce is Interim Orders. In this, the petition is filed by any
of the parties to receive a temporary order in respect of child custody and maintenance before
the court during the divorce proceedings and then after the hearing, if the court is satisfied it
shall pass the interim orders.

Step 6: Arguments
This is the most crucial stage as it determines who wins the divorce proceedings. I this stage
the respective lawyers of both the parties argues before the court to state the contentions of
their clients.

Step 7: Final Order

The last step of the divorce process is the pronouncement of final order. After the completion
of the preceding stage the court passes the final order and if any party is not satisfied with the
order passed then they can move on to higher courts.

Aspects of Divorce
During divorce there are certain factors which are very important to be sorted and those are:
 Alimony/Maintenance
 Custody of child
 Joint Custody
 Physical Custody
 Legal Custody
 Third Party Custody
 Settlement of property

Conclusion
The concept of divorce was always considered as a sin all the pas years and also was
extremist for the Indian society.
Presently laws relating to divorce has developed quite a lot. The countries with higher
number of divorce rates is also the country for higher rate for women empowerment.
Everyone has the right to come out of their unhappy marriage and live their life
independently. But it is also the duty of the court and law makers to be very cautious while
deciding the divorce proceedings.

References:
 https://www.shoneekapoor.com/divorce-granted-in-favor-of-husband-maintenance-to-
wife-dismissed/
 https://indiankanoon.org/doc/410660/
 https://www.indiatoday.in/information/story/stey-by-step-procedure-to-file-for-a-
mutual-divorce-1534492-2019-05-27
 https://economictimes.indiatimes.com/wealth/save/divorce-costs-documents-needed-
and-steps-involved/articleshow/73608055.cms?from=mdr