Introduction
Divorce proceedings in India could take anywhere between a few months to a few years depending on the circumstances of the divorce. Divorce laws are faith based - the procedure for a Hindu, Parsi, Muslim and Christian differ. Judicial Separation is an alternative to divorce.
The marriage performed in India as per any caste customs, is recognised as a valid marriage. If the couple agreeing for mutual consent divorce, it may take a minimum period of six months. Any of the spouse is absent during summons, an alternate service of summons will be done so that the case can be decided exparte, within three to four months. Alimony is not granted by court in mutual divorce and mutual consent is not challenged. But duration in case of a Contested Divorce, ranges between 2 to 4 years. The divorce process in India is tremendously challenging both emotionally and financially.
The judicial system has a vested interest in protecting the institution of marriage. For this exact reason, Indian family courts demand reasons like cruelty (Physical & Mental), Desertion (Period varies from 2 to 3 years), Unsoundness of mind, Impotency, Adultery etc. for Grounds of Divorce which can be uniquely called 'Matrimonial Offences'. The divorce process formally starts when a spouse files a petition for divorce via a lawyer and a divorce notice is sent out to the other party. In Contested Divorce Petition, the courts typically would send the couple to counselling or a mediation service and impose a waiting period. This might lead to re-unification or an amicable split/divorce. Divorce case can be filed where marriage has taken place, where they started living soon after the marriage and prior to separation where the respondent was residing etc. Wife can also file a case from the place where she is living after leaving the matrimonial home. The main issue in a contested divorce is custody of children. There is no fixed formula as to who would be entitled to have the custody of children. In deciding issue of custody of children, the most important factor is the welfare of the children which is the paramount consideration in deciding this issue.
Types of Divorce
Mutual Consent - Both the spouses are in agreement that divorce cannot be avoided and they both opt for a "no fault" divorce.Contested Divorce - The spouse seeking divorce can file under the appropirate faith based law under which they got married or in case of civil marriage under the appropirate law under which they married or their marriage was registered.
Governing Laws
Hindus - The Hindu Marriage Act, 1955Christians - The Divorce Act,1869, The Indian Christian Marriage Act,1872Parsis - The Parsi Marriage and Divorce Act,1936Muslims - Shariat Law, The Dissolution of Muslim Marriage Act,1939Inter-cast/Secular - Special Marriage Act, 1954, The Foreign Marriage Act,1969
Major Grounds for Divorce
AdulteryDeserting the spouse for two or more yearsPhysical or mental crueltyConversion to another religion in case of religious marriageIncurable disease such as leprosy, venereal disease in a communicable formInsanity, unsound mind or mental disorderRenounced the world by entering any religious order in case of religious marriageUnheard of as being living for a period of seven years or more.
Court Procedure
Hire a lawyer and provide him with all the relevant detailsLawyer files a petition in courtThe court will send a copy of the petition to your spouseThe spouse could contest or agree to the divorce. If he/she contests it then the length of the process would depend on the facts of the case.In case of mutual consent the spouses need to prove that they have been staying apart for more than a yearOnce the proceedings are over the court gives a period of six months to reconsider the decision to divorceIn case the petitioners don't withdraw the petition the court grants the decree to divorce.
Notes
Place of filing divorce petition can be the place of marriage, where the respondent resides or works or where the parties to the marriage last resided together.Appeal against said order can be filed before the high court concerned. If no appeal is preferred by the aggrieved party within one month from the date of final order granting divorce, he/she can remarry.