How do I get divorced from my husband?

Divorce can be a deeply emotional and stressful experience. Understanding the legal process can help alleviate some of the anxiety and make the journey smoother. 

In this article, we will guide you through the process of getting a divorce from your husband in India. We will explore the detailed step-by-step procedure, the rules governing husband-wife divorces, the expected timeframe, and ways to prevent getting divorced. 

How to  Divorce your Husband in India: Step-by-Step Process

Understanding Grounds for Divorce

In circumstances where there is no mutual agreement between the spouses to get a divorce, the spouse seeking divorce can file a petition in the court through a lawyer based on the following grounds. In India, the grounds for divorce vary based on religion. For Hindus, the Hindu Marriage Act of 1955 outlines several grounds for divorce, including cruelty, desertion, adultery, mental disorder, conversion to another religion, and not being heard for seven years. Similar grounds are found under the Special Marriage Act of 1954, which applies to all marriages that do not fall under a particular religion. 

For Christians, the Indian Divorce Act of 1869 includes adultery, conversion, and cruelty as valid grounds, while the Dissolution of Muslim Marriages Act of 1939 covers cruelty, desertion, failure to maintain, and imprisonment, among others. The Parsi Marriage and Divorce Act of 1936 also lists adultery, cruelty, and desertion as grounds for divorce.

In this landmark case of Naveen Kohli vs. Neelu Kohli (2006), the Supreme Court of India granted a divorce on the grounds of mental cruelty, setting a significant precedent for future cases. This case also emphasized making the irretrievable breakdown of marriage as one of the grounds for divorce. Subsequently, in another case, Srinivas Rao Vs. D A Deepa, in the year 2013, the Supreme Court held that the concept of irretrievable breakdown of a marriage could be applied to cases where parties have been living separately for a considerable period, and the marriage has broken down irretrievably. 

Consulting a Lawyer

The first step in the divorce process is to consult a lawyer who specializes in family law. A lawyer can provide valuable guidance, help draft the petition, gather necessary documents, and represent you in court. They can also advise you on the best legal strategy based on your unique circumstances.

Filing the Petition

Once you have consulted with a lawyer, the next step is to file a divorce petition in the family court. The petition should include details of the marriage, the grounds for divorce, and any previous legal proceedings. This formal document initiates the legal process.

Service of Summons

After the petition is filed, the court will issue a summons to your husband. He is required to respond within a stipulated time. The court follows the procedure laid down in civil law and uses different ways to reach the notice to your husband. If he fails to respond, the court may proceed with the divorce ex parte (without his participation).

Response from Husband

If your husband contests the divorce, the case may go to trial, where both parties present their evidence and arguments. There is the possibility of settling the differences between the spouses at every step of the court proceedings through mediation. 

Mediation 

The court refers the couple to mediation to explore the possibility of reconciliation. This step is designed to resolve differences and potentially save the marriage. Not only reconciliation but also agreeing upon the terms and conditions of the divorce can happen through mediation. The divorce case can get settled faster if the spouses agree upon and reach a consensus with regard to the payment of alimony/ maintenance, child support, custody and visitation rights of the children, sharing of assets & responsibilities of payment of liabilities.

Trial

If mediation fails, the case proceeds to trial. Both parties present their evidence and witnesses, go through cross-examination by the opposite counsel, and the judge evaluates the evidence and arguments before making a decision.

Decree of Divorce

After hearing both sides, the court will issue a divorce decree if it finds the grounds valid. This decree finalizes the divorce, and both parties must comply with its terms. Before the divorce decree is passed, the one-time lump sum payment of alimony is done, and the transfer of immovable property & exchange of movable property, if any, as required by the mediation report/ court order, is also completed. 

Post-Divorce Matters

Post-divorce, issues such as maintenance, child custody, and property distribution need to be settled according to the court’s decree.

What Are the Husband-Wife Divorce Rules?

Hindu Marriage Act, 1955

This act governs Hindu marriages and includes specific grounds for divorce, such as adultery, cruelty, desertion for two years, conversion to another religion, mental disorders, and infectious diseases. Completion of one year from the date of marriage is a pre-condition… -Section 13B of the act provides for mutual consent divorce, requiring a joint petition and a six-month cooling-off period; the court has discretionary powers to waive the cooling period. Mutual consent divorce requires one year of living separately by the spouses. 

Further, in the case Sureshta Devi vs. Om Prakash (1991), the Supreme Court emphasized the importance of the six-month cooling-off period in mutual consent divorces to allow for reconciliation efforts.

Special Marriage Act, 1954

This act applies to all citizens irrespective of religion, and marriages take place under this Act. Grounds for divorce include adultery, desertion, cruelty, unsound mind, venereal disease, and mutual consent.  One year from the date of marriage, no petition for divorce is entertained by the court. 

Section 28 of the act outlines the procedure for mutual consent divorce. One year of separation and six months of the cooling period is required under this Act. Divorce Act, 1869

This act applies to Christians and includes grounds such as adultery, conversion to another religion, cruelty, desertion, and incurable mental illness. Section 10A provides for mutual consent divorce with a two-year waiting period. However, courts have made it one year to be on par with other matrimonial laws. 

Dissolution of Muslim Marriages Act, 1939

This act governs Muslim marriages and includes grounds such as cruelty, desertion, failure to maintain, imprisonment for seven years or more, impotence, and leprosy.

Parsi Marriage and Divorce Act, 1936

This act applies to Parsis and includes grounds such as adultery, cruelty, desertion for two years, unsound mind, and mutual consent.

How Much Time Will It Take to Get Divorce from My Husband?

The duration of the divorce process depends on whether it is contested or uncontested. A mutual consent divorce takes a maximum of 6 to 7 months if spouses are on the same page on all the issues involved (child custody, child support, maintenance/ alimony payment, responsibilities towards liabilities, sharing assets, etc). This period can be reduced if there is prima facie evidence of the total breakdown of marriage and the impossibility of reconciliation but at the discretion of the court. Mutual consent divorce involves:

• Filing a joint petition
• Attending a first motion hearing
• A six-month cooling-off period
• A second motion hearing

On the other hand, a contested divorce can take a few months to a few years due to the trial process and potential appeals. Some of the steps may take longer than expected; for example, issuing notice may take longer if the address of the respondent is incorrect/ changed/refused to receive the notice, etc. However, if both spouses agree and come to a consensus on the terms and conditions of the divorce, the divorce decree can be obtained in a few months. 

The Supreme Court, in the case of Ravi Kumar vs. Julmidevi (2010), emphasized the importance of genuine reconciliation efforts before granting a divorce, impacting the duration of the process.

How do I prevent getting divorced from my husband?

If you wish to prevent your husband from starting the divorce proceeding against you, consider the following steps:

Counseling and Mediation

Engage in marriage counseling or mediation to resolve differences. Professional counselors can help address underlying issues and improve communication.

Legal Defense

When your husband has filed a divorce case against you, contest the divorce by presenting your case in court. Highlight efforts for reconciliation and dispute the grounds for divorce. Providing evidence of efforts to save the marriage can be crucial.

Temporary Reconciliation

Sometimes, a temporary separation can help resolve issues. It allows both parties to reflect on their relationship and work on problems without the immediate pressure of divorce proceedings.

In K. Srinivas Rao vs. D.A. Deepa (2013), the Supreme Court ruled that genuine efforts for reconciliation must be made before granting a divorce, highlighting the importance of exploring all avenues for saving the marriage.

Conclusion

Divorce is a significant life decision, and understanding the legal process can help you navigate it more effectively. By following the steps outlined, knowing the relevant rules, understanding the timeframes, and exploring ways to prevent divorce, you can approach this challenging period with greater clarity and confidence. Always consult with a legal expert to ensure your rights and interests are adequately protected throughout the process.

Also read:- mutual divorce lawyer in Bengaluru.