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Throughout this post, you will learn everything about the Contested and Mutual Divorce Process in Bangalore, India, including types and grounds explained by expert divorce lawyers at DivorceByLaw.
The concept of marriage, as seen in historical jurisprudence, is a complex phenomenon that cannot be confined to one single principle, idea, or notion. It is considered a combination of several principles, ideas, and concepts from which a perfectly logical set of rules cannot be derived. The essence of marriage is that it is a union of two individuals and a social institution.
The ‘wedlock,’ which has been part of human civilization from time unknown, has evolved to have set rules in the form of various laws that govern marriages worldwide. Along the way, the concept of Divorce has also unfolded, becoming a social fact of our generation. If you navigate the complexities of marriage dissolution in Bangalore, seeking guidance from a knowledgeable divorce advocate In Bangalore can provide invaluable support.
When there is lawful dissolution of legal ties established at marriage, in the form of divorce, the marriage is said to be dissolved. Divorce, which may also be called as ‘dissolution of marriage’, is a legal way of separation of spouses in a way other than through the death of one of the spouses so that the parties are parties and are free to remarry immediately or after a certain period.
Traditionally, human society did not favour divorce, and hence, there were stable legal bonds established by marriage. However, the evolution of societal norms has enhanced the expectations of spouses from each other, which, when not fulfilled, give rise to conflicts. The conflicts become incorrigible; disharmony ensues, impacting mental health, behavioural patterns, financial instability, work life, and quality of life.
Identifying the point at which marital cords are losing harmony, affecting one’s holistic well-being, becomes an important step. With the exemplary experience of interacting with innumerable couples facing disharmony in their marital lives, we understand the emotional burden and societal pressure one goes through when on the cusp of separation.
The dissolution of lawful wedlock requires legal steps to be adhered to. These requirements call for a divorce lawyer’s professional service to make sure that one goes through the procedure as per law and ease the burden at the difficult time.
Jurisdiction of the Court (Where can one file a Divorce case?)
The divorce petition is to be presented to the district court, which includes Family Court within the local limits of whose ordinary original civil jurisdiction,
i) The marriage was solemnized, or
ii) The respondent at the time of the presentation of the petition, resides, or
iii) The parties to the marriage last resided together; or
iv) In case petitioner is wife, where she resides at the time of presentation of the suit; or
v) The petitioner is residing at the time of the presentation of the petition, in a case where the respondent is at that time, residing outside the territories to which this Act extends, or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he were alive.
This intricate step of understanding the jurisdiction where your case must be filed rests on your divorce lawyer.
Analogous provisions of law:
STEP 1: Choosing the lawyer
Being a country of many religions and citizens falling under different laws when it comes to marriage, divorce, child custody, succession and such other matters, it may find it grueling to understand the provisions of law. Your divorce lawyer has knowledge and understanding of the law to guide you on this.
It is essential that you choose an experienced and skillful advocate who is acclimatized to the courts in the local area of jurisdiction and are well versed with the local language and practices.
STEP 2: Consultation with the lawyer
Fixing an appointment with the best divorce lawyers is just a click away. Note down your doubts and questions that you may have regarding intended divorce, as a preparation. Note down the anecdote of the events that have occurred between your spouse and you that have made you to take a step towards parting ways. You are free to express all your concerns without any inhibition. Advocates also are your counselors who will guide you in case divorce is not necessary after listening to your narrative, if she/he finds so.
STEP 3: Documents
If you have made up your mind that divorce is the option, documents such as Address Proof (any Government issued document), Marriage Certificate, Marriage Invitation Card, Marriage Photograph, Child’s Birth Certificate if any, opposite party’s address and any other document that may be necessary for the facts that will be mentioned in the petition required to be given to us.
STEP 4: Petition
A petition prepared detailing the facts as provided by you. After careful read through of the petition by you and making corrections if any, with your signatures and the supporting documents the same shall be filed in the court. The party filing the petition is the Petitioner and the opposite party is the Respondent, Once the file is accepted, case number generated and that initiates the legal proceedings. You will be informed of the next date and stage and also whether your presence is required for the same.
STEP 5: Summons
Summons also called as Notice is issued to the opposite party at the address provided in the petition. Once notice is received by the opposite party, acknowledgment of the same is filed in the court by the court staff. In case the opposite party refuses to receive the notice, the court follows appropriate measures to serve the notice as per the legal procedure. The date to appear before the court also be part of the notice.
STEP 6: Court Proceedings
When both the parties present in the court in person along with their counsel (lawyer), matter is referred to mediation. If the mediation fails, the case file is referred back to the court by the mediator. The court proceedings including evidence, examination in chief, cross examination, arguments for the main petition and any other interlocutory applications of both the parties occur one after the other. Throughout these steps your lawyer contacts you to inform about the dates and if any further documents are required.
STEP 7: Mediation
Mediation is a process where a third person who is neutral mediates the talks between the spouses who are intending to divorce each other. Mediator sees if there is any chance of reconciliation while talking to the parties individually as well as together. You can ask for the presence of your lawyer if you are not able to convey your demands and express your concerns freely. If there is no chance of reconciliation, the next discussion will be on sharing of assets & liabilities, child custody & support, alimony & maintenance and any other issues that are of importance. A common ground is sought through series of discussions, which may take more than one sitting, end of which settlement agreement will be drawn and forwarded to the court only upon reaching consensus. Thereafter the proceedings follow as per the mutual consent divorce.
If these discussions do not yield any compromise between the parties the mediation is said to be failed and the parties are referred back to the court where court proceedings will continue as mentioned in step 6.
What happens if one changes the mind after filing for divorce?
Both or any one of the parties can request the court for mediation if there is any chance of reconciliation or settlement of the divorce proceedings with consensus any time before the final judgment is passed. Similarly the divorce case can be withdrawn by the parties anytime before the final judgment is given.
STEP 8: Decree & Judgment
After the final arguments on both the sides, the court gives its decision based on the facts presented, answering the prayer and counter claims made by both the parties. A date will be set on which the final decision will be announced. If the divorce is granted divorce decree will be given.
STEP 9: Appeal
The aggrieved party to the court decision of the contested divorce can appeal to the higher court within 3 months. However if the Divorce Decree was granted through settlement agreement through mediation process there is no option for appeal. Only in case of any issue related to child custody or property division which was not addressed earlier or any conflict arises further regarding maintenance or alimony, there can be a fresh suit. To avoid this, it is advised to take professional services of best divorce lawyers in Bangalore.
STEP 1: Choosing the lawyer
Being a country of many religions and citizens falling under different laws when it comes to marriage, divorce, child custody, succession and such other matters, it may be grueling to understand the provisions of law. Your divorce lawyer has knowledge and understanding of the law to guide you on this.
It is essential that you choose an experienced and skillful advocate who is acclimatized to the courts in the local area of jurisdiction and are well versed with the local language and practices.
STEP 2: Consultation with the lawyer
Consultation with a lawyer is essential, fix an appointment with chosen lawyer. Note down your doubts and questions that you may have regarding intended divorce, as a preparation. You and your spouse can choose one advocate or 2 separate advocates to represent you both in the court. When it comes to mutual consent divorce all the terms and conditions of separation must be spoken, discussed and agreed upon by both the spouses. Guidance on arriving at consensus can be sought from your divorce lawyer.
STEP 3: Documents
Documents such as Address Proof of both the parties, Marriage Certificate, Marriage Invitation Card, Marriage Photograph, Child’s Birth Certificate if any and any other document that may be necessary for the facts mentioned in the petition.
STEP 4: Joint Petition
A joint petition is prepared by the advocate mentioning the details provided by you. You and your spouse will be asked to inscribe your signatures after reading through the petition and accompanying affidavit/s. The duly signed petition is then filed in the court of jurisdiction by the advocates along with the necessary documents.
STEP 5: Waiting period
Once the case is filed for mutual consent divorce, the court following the provisions of law gives a date after six months for the next motion. This period is called as waiting period or cooling off period and it is given to the parties to see if any reconciliation possible between them. However court has the power to waive off this period if there are reasons to believe that the marriage is broken down irretrievably. An effective argument/ genuine reason may help in getting this period waived off.
STEP 6: Hearing & Mediation
On the scheduled date either after 6 months or in case waiting period is waived off the earlier date which will be informed to you by your lawyer, both the spouses must be present in the court. Prior to this all the issues related to division or transfer of property and other assets, responsibility assigned for liabilities, child custody & support, amount of maintenance and alimony and any other issue that the parties are concerned about has to be decided and settled amicably by the parties. A mediator talks to both the parties to confirm that there is no chance of reconciliation. With the mediator’s report your file moves back to the court. The Judge may ask few questions based on the facts mentioned in the petition and in the mediation report, to which parties have to answer. Your lawyer will guide through the entire process and be present with you.
STEP 7: Divorce Decree
After the final hearing on the same day or the day after, Judge issues the divorce decree, an order that ends your marriage lawfully. Parties’ presence is required for this stage also. Later your lawyer and the team complete the necessary paper works and informs you when the copy of the final judgment is available, which can be collected from our office.
STEP 8: After the judgment
There is no option for appeal in case of mutual consent divorce. Only in case of any issue related to child custody or property division which was not addressed earlier or any conflict arises further regarding maintenance or alimony, there can be a fresh suit.
Divorce becomes necessary when the marriage has completely broken down, and formal continuance of the marital bond itself is a source of misery. Depending on whether one of the spouses or both in consensus initiating the divorce proceedings leads to two types of divorce, Mutual and Contested.
In other words, “No fault divorce” is where there is no mudslinging on each other. Both spouses have agreed to part ways, settle their financial liabilities, and divide their assets; child custody and support have been agreed upon, and payment of maintenance/ alimony is planned out.
There are no grounds required to file for divorce by mutual consent. However, some pre-conditions need to be satisfied.
a) Existence of a legal marriage as per the applicable law.
b) Both the parties lived together as husband and wife. They couldn’t continue to live together; hence, they separated.
c) A lapse of 1 year from the date of marriage is mandatory under Section 14 of the Hindu Marriage Act, 1955, and Section 29 of the Special Marriage Act, 1954
d) Separation of the spouses for a minimum period of 1 year is necessary to apply. Section 13B of the Hindu Marriage Act, 1955, and Section 28 of the Special Marriage Act, 1954, mandate this condition.
Under section 10A of Divorce Act, 1869, the lapse of two years was mandated for Christians; however, the High Court of Karnataka has reduced it to 1 year as decided in Shiv Kumar v Union of India on 3 Feb 2014, AIR 2014 Karnataka 73, 2014 to make this provision in parity with other laws.
Separation of spouses implies that they reside separately or under one roof but do not share a typical household. They are financially independent, and responsibilities are not interdependent.
These conditions can be illustrated with an example;
Mr X & Mrs Y married on 01.01.2020, lived together as husband and wife for a few days, and on 10.01.2020, they started to live separately. The date on divorce can be filed is 11.01.2021 or later.
e) If both parties have consented to the fact that reconciliation and cohabitation is not possible.
f) The law provides a six-month waiting period after filing the joint petition, also called a cooling-off period, to enable parties to get back to each other in cases of a hasty decision being taken in the heat of the moment. However, the Court has discretionary powers to waive the cooling period in genuine cases.
The Supreme Court, in the case of Amardeep Singh v Harveen Kaur AIR 2017 SUPREME COURT 4417, 2017 (8), referring to the option of divorce by mutual consent, stated that “The object of the provision is to enable the parties to dissolve a marriage by consent if the marriage has irretrievably broken down and to allow them to rehabilitate them as per available options.
The amendment was inspired by the thought that forcibly perpetuating the status of matrimony between unwilling partners did not serve any purpose. The object of the cooling off the period was to safeguard against a hurried decision if there was otherwise possibility of differences being reconciled.
The object was not to perpetuate a purposeless marriage or prolong the parties’ agony when there was no chance of reconciliation. Though every effort has to be made to save a marriage, if there are no chances of reunion and there are chances of fresh rehabilitation, the Court should not be powerless in enabling the parties to have a better option.”
This is a “Fault Divorce” where one of the spouses files a petition seeking dissolution of marriage stating the grounds for her/his prayer before the Court. The grounds for seeking divorce are specified in the applicable Act based on religion and the Act under which the parties’ marriage was solemnized. Irrespective of the laws that come into play, the grounds are similar.
One of the spouses initiates the divorce proceeding by filing a petition, and the other spouse’s consent is not required. On the other hand, as the proceedings progress, a consensus may be reached to agree upon specific terms and conditions to settle the issues between them.
Pre-conditions
a) Existence of a legal marriage under the applicable law.
b) Both the parties lived together as husband and wife. They couldn’t live together, hence they started living separately. Expression of living separately connotes not living like husband and wife without referring to the physical place of living.
c) A lapse of 1 year from the date of marriage is mandated by Section 14 of the Hindu Marriage Act, 1955 & Section 29 of the Special Marriage Act, 1954
Illustration:
Mr A & Mrs B married on 01.01.2020 and started living separately from 10.01.2021. The date on which divorce can be filed is 02.01.2021 or later.
Also Read: – Christian Divorce Advocate in Bangalore
Grounds are nothing but the reasons one seeks separation from one’s spouse. The spouse initiating the process files a complaint, giving reasons for seeking divorce according to the applicable law. At the same time, upon receiving the summons, the other party may contest such a case by opposing stated grounds, opposing the divorce, or seeking divorce by saying some other grounds.
a) Adultery
A consensual sexual intercourse between two persons who are not married to each other but of whom one at least is married to another person is adultery. It is one of the principal grounds for matrimonial relief. One act of adultery is enough to constitute a matrimonial offence; hence, it is grounds to seek divorce. Even though an act of adultery is decriminalized in the Criminal Law, it remains a ground to pray for the dissolution of marriage by the spouse of the adulterer.
Analogous provisions of law:
Hindu Marriage Act, 1955 – Section 13 (1) (i)
Particular Marriage Act, 1954 – Section 27 (1) (a)
Divorce Act, 1869 – Section 10 (1) (i)
b) Cruelty
Supreme Court judgment on Savitri Pandey v Premchandra Pandey (2002) AIR 2002 SUPREME COURT 591,2002(2), SCC 73,2002 defines ‘Cruelty’ postulates a treatment of one spouse towards the other as to cause reasonable apprehension in the mind of the latter that it would be harmful or dangerous for them to live with the former. Such ‘cruelty’ may be physical or mental. However, it should not be decided based on the petitioner’s sensitivity. It has to be judged based on the course of conduct, which would generally be dangerous for a spouse to live with the other.
Thus, cruelty can be physical or mental; its effects vary from individual to individual and also depend upon physical and psychological condition, social and economic status and position in the life of the parties. The conduct complained of must be severe and higher than the ordinary wear and tear of married life.
Analogous provisions of law:
Hindu Marriage Act, 1955 – Section 13 (1) (a)
Special Marriage Act, 1954 – Section 27 (1) (d)
Divorce Act, 1869 – Section 10 (1) (x)
c) Desertion
Desertion is the intentional and permanent abandonment of one spouse by the other without that spouse’s express or implied consent and reasonable cause. It is not just withdrawal from a place but from a state of things. It is a total repudiation of the obligations of marriage. The deserted spouse initiates the divorce proceedings. To apply these criteria, i) the fact of separation for at least two years and ii) the intention to bring cohabitation permanently to an end by the deserter is considered. From the view of the deserted spouse, i) the absence of consent for withdrawal from the company and ii) the absence of conduct giving reasonable cause to the spouse leaving the marital home are to be substantiated while seeking the divorce.
Analogous provisions of law:
Hindu Marriage Act, 1955 – Section 13 (1) (ib)
Special Marriage Act, 1954 – Section 27 (1) (b)
Divorce Act, 1869 – Section 10 (1) (ix)
d) Conversion to other religion
Conversion means that the person has voluntarily relinquished their religion and adopted another religion after going through some formal ceremony; in case of the inability to prove the conduct of a formal ceremony to convert, all that is necessary to establish that the person has adopted the rules of the said faith to embrace that religion—the Hindu Marriage Act of 1955 covers Hindu, Buddhist, Jain and Sikh religions. Hence, conversion among these religious faiths cannot be regarded as a conversion to other religions. Conversion to Christianity/ Islam by a Hindu spouse, by acknowledging or formally recognizing it as an object of his faith or belief, is considered as conversion in the context of matrimonial law.
Other than the marriage under the Special Marriage Act 1954, which allows inter-religious marriages, the ground of conversion can be used to get matrimonial relief.
Analogous provisions of law:
Hindu Marriage Act, 1955 – Section 13 (1) (ii)
Divorce Act, 1869 – Section 10 (1) (ii)
e) Unsoundness of Mind
Under matrimonial statutes, ‘ unsoundness of mind’ refers to a degree of mental disturbance so menacing and so disabling that the person may be considered from a legal point of view to be immune from specific responsibilities and may disallow them certain privileges that may require a degree of competence. A strict standard of proof is required from the spouse claiming matrimonial relief on the grounds of unsoundness of mind of the other spouse. A medical examination report that has diagnosed the party with the said disorder acts as proof of the claim.
Analogous provisions of law:
Hindu Marriage Act, 1955 – Section 13 (1) (iii)
Special Marriage Act, 1954 – Section 27 (1) (e)
Divorce Act, 1869 – Section 10 (1) (iii)
f) Venereal Diseases
In case one of the spouses is suffering from Venereal Disease (VD) a d, a disease that can be transmitted through sexual intercourse, is also referred to as Sexually Transmitted Infection (STI) or Sexually Transmitted Disease (STD) in its infectious form, the other spouse can seek divorce on that ground.
Analogous provisions of law:
Hindu Marriage Act, 1955 – Section 13 (1) (v)
Special Marriage Act, 1954 – Section 27 (1) (f)
Divorce Act, 1869 – Section 10 (1) (v)
g) Renunciation of the world
In cases where one spouse chooses to renounce the world following any religious order, the other spouse can seek matrimonial relief.
Provision of law:
Hindu Marriage Act, 1955 – Section 13 (1) (vi)
h) Disappearance
Not heard to be alive or disappearance is a different ground than desertion, where a deserted spouse may know that the other spouse is living, while in the case of disappearance, the aggrieved spouse does not know the whereabouts or whether the other spouse is alive or dead as they have not been heard of for a long time. To consider ‘Disappearance’ as a ground for divorce, ‘Long time’ is specified as seven years in the secular and other laws except under Muslim personal law, which is four years.
Analogous provisions of law:
Hindu Marriage Act, 1955 – Section 13 (1) (vii)
Special Marriage Act, 1954 – Section 27 (1) (h)
Divorce Act, 1869 – Section 10 (1) (vi)
i) No cohabitation post RCR order
Restitution of Conjugal Rights or RCR is a remedy that can be sought by either of the spouses who are abandoned by the other. It is a remedy available against the spouse who has left the company of the aggrieved party without any reasonable ground and refusing to cohabit. After obtaining this order, if the spouses cannot establish cohabitation for one year or more, this can be used as grounds against the party unwilling to cohabit.
Analogous provisions of law:
Hindu Marriage Act, 1955 – Section 13 (1A)
Special Marriage Act, 1954 – Section 27 (2)
Divorce Act, 1869 – Section 10 (1) (viii)
j) Irretrievable breakdown of marriage
Irretrievable breakdown of marriage, even though it is not a ground mentioned under applicable laws for divorce; through judicial decisions, this ground has become a valid reason for the spouses to seek remedy. This ground has been considered either as a fault ground or as an extension of mental cruelty.
Also Read: – Hindu Divorce
Amid the challenging journey that a divorce entails, an empathetic support and unwavering commitment to guiding you through this emotionally charged process is our focus. Our effort here is to enlighten you with the legal knowledge that we have acquired through our education and practice.
We recognize that deciding to dissolve a marriage can be emotionally overwhelming, and we are here to provide the steadfast legal support and guidance you need during this trying time.
With a profound understanding of the intricacies involved in divorce proceedings, we strongly believe that your rights and interests to be protected, ensuring that your voice is heard and your emotional well-being is prioritized.
Divorce is an emotionally draining subject. Still existing social taboo in some of our communities makes it difficult to accept when you are faced with a situation where divorce is the only option. Going through divorce has manifold positives and negatives for spouses. The Indian Legislature has provided options under different laws to seek matrimonial remedies when spouses are faced with a situation where continuing in the marriage is detrimental to one’s mental, physical or social well being. When you are at the cross roads and have a decision to make for your well being, take time to understand whether you can still work on your marriage or not. If your suffering surpasses the blissfulness of the marital relationship, you can make an informed decision after consulting a professional on the subject.
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