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Jun 23, 20234 min read

What Are The Basic Rule Of Divorce In India ?

When divorce proceedings are initiated by either parties of the marriage against their spouse, such a divorce could be termed as a contested divorce. Grounds for a contested divorce as provided in the following Acts passed by the legislature in India are mostly common and a petition can be filed for divorce on the basis of-

  • The Hindu Marriage Act, 1955

  • The Indian Divorce Act, 1869

  • The Dissolution of Muslim Marriage Act, 1939

  • The Special Marriage Act, 1954

  • Parsi Marriage and Divorce Act, 1936

The grounds provided by the law in order to initiate the proceedings for divorce in India are mainly- Adultery, Cruelty, Desertion, Conversion, Grave mental Disorder, Communicable venereal diseases to either spouse, some other grounds such as the impotence of the partner, imprisonment of the partner, failure to provide maintenance to the complainant, etc.

Different types of Divorce-

  • If Parties to the marriage do not wish to continue their relationship and are planning to separate or finish their marriage altogether, they can opt for a divorce. The divorce in these conditions be either consensual or divorce can be non-agreeable to either of the parties.

  • When both partners agree to end their marriage, they can file a joint petition for divorce, in this situation, the divorce filed by the parties is called mutual consent divorce.

  • When either parties to the marriage want to separate from the his/her partner without agreement from the other party, then a petition for divorce could be filed on the basis of reasons which have been provided under the law, for instance, for the act of cruelty or adultery committed by the partner etc., the aggrieved party has a right to file a petition for divorce based on the grounds which have been provided by the law, thus making the other party defendant in the divorce case. In this scenario, divorce so applied for is called contested divorce.

Different stages of contested divorce-

While applying for contested divorce, steps which have been explained below shall be followed-

  • Appointing the attorney-

One of the necessary steps when applying for a divorce is appointing an appropriate divorce lawyer in Delhi

or your city. Appointing an advocate will set the course of action of your divorce case. On the basis of the facts of your case, your lawyer will advise you about grounds on which your divorce petition could be filed.

  • Either parties to the marriage could apply for divorce-

After appointing the advocate, you would have to provide all required information and the documents related to your case to the Divorce lawyers in ghaziabad or the lawyer appointed in your city. Based on these documents as well as the facts of your case, the advocate would draft a divorce petition which shall be filed in the appropriate court. The primary jurisdiction in the matters involving divorce lies with the family courts. After filing the petition, a notice would then be served to your spouse through the court.

  • Appearing before the Court and reconciliation-

The parties will appear before the court on a certain date provided by it, after the notices for the divorce have been served. The court, if it believes that there is a chance for reconciliation amongst the parties, then the matter shall be forwarded to the Legal Services Authority, here the conciliators would try to help solving the issues between the couple if possible. In case, where parties agree to settle the issue amongst themselves, then the petition for divorce will be withdrawn from the court, if there seems to be no chance for a reconciliation, following steps shall be followed to continue the divorce case.

  • Reply from the respondent-

At this stage, the respondent would file his/her reply to the petition which has been filed by his/her partner seeking divorce.

If the defendant does not agree to divorce, then the defendant will have to deny every allegation which has been made against him/her. In case the allegations against the spouse are not denied specifically, it would be deemed by the court that the defendant agrees to such a particular allegation made by the plaintiff.

  • Settlement-

After assessing every document submitted and the facts of the case which have been brought before it, the court would settle for points of consideration which are to be decided under Order XIV of the CPC. The points of contention could be understood as the unresolved conflicts of the parties, which have resulted in the petition for the divorce. At this stage, the Court may also refer to a third party negotiation.

  • Trial-

The date for hearing as well as the examination of the witnesses shall be determined by the court. Before this, summons would be served to the witnesses so as to attend the proceedings in the court on a particular date. Cross- examination of the witnesses and final hearing shall be concluded at this stage.

  • Order/ decree-

After the whole process is concluded, then on the basis of the arguments from both parties and presented before the court, it will pronounce its order or issue the decree granting or denying the divorce.

  • Appeal-

The decision given by the court would then be challenged on appeal to the High Court which has jurisdiction over the Family Court where the divorce hearing was concluded initially. An appeal could further be made to the Hon’ble Supreme Court of India after the unsatisfactory decision of the High Court. The right to appeal in the Higher courts for the decree of divorce has been provided under Section 28 of the Hindu Marriage Act, 1955 or Section 39 of the Special Marriage Act, 1954.

Conclusion

It can be inferred from the above discussion, that the proceedings for a contested divorce could take a longer period of time, therefore it is advised to the parties, who wish to plan to apply for a divorce, to file for divorce through a joint petition, i.e. Divorce by mutual consent. In case of a contested divorce, the most important factor is the appointment of the Divorce lawyer in lucknow or in your own city, who if experienced, will ensure that your interests are taken care of during the proceedings of the court.

Lead India offers you a team of experienced lawyers, who have years long experience in successfully dealing with matters involving family laws as well as issues such as divorce petitions, dowry demands, domestic violence cases for child custody, maintenance, etc. Thus, if you wish to seek free legal advice or need to ask a question to a lawyer, you may contact us.

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