Best Divorce Advocate in Bangalore

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.

What is Divorce?

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.

Types of Divorce in Bangalore, India

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.

Mutual

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.”

Contested

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 for Contested Divorce in India

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. Our experience in handling matrimonial matters makes us compassionate counsellors who pay attention to the details and work towards getting the most suitable relief when facing your spouse’s cruelty.

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 Advocate in Bangalore

Procedure For Divorce in Bangalore, India

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. Consult our best divorce advocate in Bangalore.

Analogous provisions of law:

Hindu Marriage Act, 1955 – Section 19
Special Marriage Act, 1954 – Section 31

Contested And Mutual Consent Divorce Procedure in Bangalore, India

Step 1: Choosing the Lawyer

Being a country of many religions and citizens falling under different laws regarding marriage, divorce, child custody, succession, and other matters, it may be gruelling to understand the provisions of the law. Your divorce lawyer knows and understands the law to guide you on this.

Step 2: Consultation with the Lawyer

Fixing an appointment with the best divorce advocate is just a click away. Note down any doubts and questions that you may have regarding the intended divorce as a preparation.

You and your spouse can choose one or two advocates to represent you in court. Regarding mutual consent divorce, all the terms and conditions of separation must be spoken, discussed and agreed upon by both spouses. Guidance on arriving at a consensus can be sought from your divorce advocate.

Step 3: Documents

Documents include address proof for both 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 (Mutual Consent) / Petition Filing (Contested)

The advocate prepares A joint petition, mentioning the details you provided. 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 (Mutual Consent) / Summons (Contested)

Following the provisions of law, once the case is filed for mutual consent divorce, the court gives a date after six months for the following motion. This period is called the waiting or cooling-off period. It is given to the parties to see if any reconciliation is possible between them. However, the court can waive off this period if there are reasons to believe the marriage is broken down irretrievably.

A compelling argument by your counsel (advocate/lawyer) may help get this period waived. In a contested divorce, a summons is issued to the opposite party at the address provided in the petition.

Step 6: Hearing & Mediation (Mutual Consent) / Court Proceedings (Contested)

On the scheduled date, either after six months or in case the waiting period is waived, the earlier date, which will be communicated to you by your lawyer, both spouses must be present in court.

Before this, all the issues related to the 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 have to be decided and settled amicably by the parties.

A mediator talks to both 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 a few questions based on the facts mentioned in the petition and the mediation report, which parties have to answer. Your lawyer will guide and be present with you throughout the process.

Step 7: Divorce Decree

The Judge issues the divorce decree after the final hearing on the same day or the day after. This order ends your marriage lawfully. The parties’ presence is also required for this stage. Later, your lawyer and the team will complete the necessary paperwork and inform you when a 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 that was not addressed earlier or any conflict arises further regarding maintenance or alimony can there be a fresh suit. To avoid this, you are advised to use the professional services of the best divorce lawyers in Bangalore. In a contested divorce, the aggrieved party can appeal to the higher court within three months.

Key Differences:

Mutual Consent Divorce: Both parties agree to divorce terms and jointly file a petition. The waiting period may be waived if agreed upon by the court.
Contested Divorce: One party files for divorce without the other’s consent, leading to a lengthier legal process involving court hearings and potential mediation.

Compassionate Guidance Through the Divorce Process

Amid the challenging journey that a divorce entails, we extend our empathetic support and unwavering commitment to guiding you through this emotionally charged process. Our dedicated divorce serves as a hope, offering the expertise of our seasoned divorce advocate in Bangalore, who specializes in navigating the intricate realm of family law.

We recognize that deciding to dissolve a marriage can be emotionally overwhelming, and our team of compassionate divorce lawyers is here to provide the steadfast legal support and guidance you need during this trying time. Also, our family law mediation service ensures a balanced and respectful dialogue, promotes understanding, and helps the parties consider various options and alternatives.

With a profound understanding of the intricacies involved in divorce proceedings, we fervently advocate for your rights and protect your interests, ensuring that your voice is heard and your emotional well-being is prioritized.