There are various laws relating
to Marriage and Divorce in India -
1. For Hindus, the Hindu
Marriage Act, 1955.
2. For Christians, the Indian
Divorce Act, 1869 and the Indian Christian Marriage Act, 1872
3. For Muslims, the Dissolution
of Marriage Act, 1939 and the Muslim Women(Protection of Rights on Divorce)
Act, 1986
4. For Parsis, the Parsi
Marriage & Divorce Act, 1936.
5. The Special Marriage Act,
1954
Contested Divorce - A contested
divorce is filed when one of the spouses decide to divorce the other without
his/her consent.
In India a contested divorce
can be filled on the basis of the following grounds namely -
1. Cruelty
2. Adultery
3. Desertion
4. Leprosy
5. Venereal disease
6. Mental disorder
7. Acceptance of religious
order on renouncing the world
8. Respondent not heard of
being alive for seven years.
9. Conversion to some other
religion
10. Sentence of imprisonment
for seven years
11. No resumption of
cohabitation. etc.,
Application of Civil Procedure
Code in Matrimonial proceedings - Subject to the provisions of the respective
statutes and to such rules as may be framed by the High Courts all proceedings
under the Hindu Marriage Act (vide section 21), Indian Divorce Act (vide
section 45) and under the Special Marriage Act (vide section 40), shall be
regulated as far as may be by the Code of Civil Procedure.
18 Stages of Divorce
Proceedings In India - Step by Step Process and Procedure of Contested Divorce
In India :-
There are several processes and
procedure from filing the case to obtain a decree as follows -
1. Filing
of the petition by the applicant (Petitioner) in proper Court.
2. When a petition for divorce is based on
the ground of respondent’s adultery, then the alleged adulterer or adulteress
should be made a party to the petition and he or she may intervene in the
proceedings
3. Service of summons to the
respondent (the other spouse).
4. Appearance of parties on the
date fixed.
5. Ex parte decree of divorce,
if despite opportunity respondent fails to appear before the Court.
6. Written statement of the
respondent in reply to the summons is to file in the Court duly, verified and
sworn with affidavit.
7. Reconciliation efforts are
done by the court.
8. Production of documents by
Parties (Petitioner and respondent)
9. Examination of Parties
10. Admission
11. Ancillary proceedings
(alimony pendente lite and expenses of proceedings, custody of children, if
any)
12. Stay of proceedings if the
petitioner against whom an order for interim maintenance has been made does not
comply with that order.
13. Issues for consideration
determined by the court.
14. Summoning and attendance of
witnesses.
15. Recording of the evidence
of the petitioner, respondent and witnesses.
16. Argument
17. Orders of Judgment by the
court
18. Drawing of a decree.
The detailed discussion of all
the stages are given below.
1. Filing of a petition for
divorce :- A divorce
starts with a divorce petition. The petition is written by one spouse (the
petitioner). The petition is then filed in a
district court.
2. Co- respondent and
intervener :- It has been laid down in high court rules that when a petition for
divorce is based on the ground of respondent’s adultery, then the alleged
adulterer or adulteress should be made a party to the petition, unless the
alleged adulterer or adulteress is dead or his or her name is not known to the
petitioner or for any reason the court considers that he or she need not be
made a co-respondent, and he or she may intervene in the proceedings.
If in the written statement the
respondent makes allegations of adultery on the part of petitioner with a named
person, then a certified copy of such allegations must be served on that person
and he or she may intervene in the proceedings.
3. Service of summons to the
respondent :- After completion of office note, the notice is issued to the
respondent to appear in the Court. The notice
in Registered Post is sent to the
respondent and if the respondent
does not respond, then it is advertised in the newspaper
under order 5 Rule XX of C.P.C. If the husband is the respondent the
notice is stuck outside his door, in case it could not be handed over to
him personally.
After the suit has been instituted
it is necessary that the summons must be issued to the respondent and
the respondent is required to file written statement within a period of thirty days
from the date when summons were served. If the respondent has appeared and
admitted Petitioners claim then summons are not required to be served. Further,
if the respondent is unable to file the written
statement within this period,
then the person can file it on such other day as is fixed by the court but it shall not
be later than ninety days from the date of service of summons and it is also
necessary that the court must record it in writing.
4. Appearance of parties :- On
the day fixed in the summons the respondent is required to appear and answer
and the parties shall attend the court unless the hearing is adjourned to a future day fixed by the court,
if the respondent is absent court may proceed exparte. Where on the day so
fixed it is found that summons has not been served upon respondent is consequence
of failure of Petitioner to pay the court fee or postal charges the court may dismiss
the suit. Where neither the plaintiff nor the respondent appears the court
may dismiss the suit. Such dismissal does not bar fresh suit in respect of same
cause of action.
5. Ex parte decree of divorce :-
In view of Order 8, rule 5(2) , C.P.C. it is lawful for the court to at once
pronounce ex parte judgment except against one under disability, if
despite opportunity respondent files no written statement.
But in matrimonial proceedings
this rule is hardly applicable, for the Matrimonial law ordains that even where
it is proved that any one of the grounds for granting any relief exists the
judge has to satisfy himself that the petitioner is not in any way taking
advantage of his or her own wrong or disability for the purpose of such relief
and has not been in any manner accessory to or connived at or condoned the act
of adultery or acts complained of that there is no collusion between the
parties or that there has not been any unnecessary or improper delay
instituting the proceeding and lastly, that there is no other legal ground why
relief should not be granted. A judge cannot properly do so without personally
examining the petitioner, more particularly in an undefended case.
6. Written statement :- a
written statement is the pleading
Of the respondent wherein he
deals with every material fact alleged by the Petitioner in his plaint and also states
any new facts in his favour or take legal objections against the claim of the
Petitioner.
It is essential that the denial
must be specific. It shall not be sufficient for the defendant in his written statement to deny
generally the grounds alleged by the Petitioner, but the
respondent must deny
specifically with each allegation off act of which he does not admit the truth.
Further allegation of fact in
the plaint, if not denied specifically or by necessary implication, or
stated to be not admitted in the pleadings of the respondent, shall be taken to
be admitted except against a person under disability.
7. Reconciliation :- Before
proceeding to grant any relief under this Act, it. shall be the duty of the court in the first
instance, in every case where it is possible, so to do consistently with the nature
and circumstances of the case, to make every endeavor to bring about a
reconciliation between the parties. (vide section 34(2), Special Marriage Act,
section 23(2), Hindu Marriage Act)
Attempt of reconciliation however
is not to be made when a petition for divorce under is grounded on either of
the following grounds namely,
a. respondent's apostacy
b. respondent's unsoundness of
mind
c. leprosy of the respondent
d. venereal disease of the
respondent
e. that the respondent has
renounced the world by entering any religious order.
f. that the respondent 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 it, had the party been alive.
g. the respondent is undergoing
a sentence of imprisonment for seven years or more for an offence as defined in
the Indian Penal Code
8.Production of documents by
Parties :- After filing of written statement by the respondent the next stage is
production of documents. The parties or their pleaders shall produce all
documentary evidence of every description in their possession or power, on which they intend to rely,
and which has not been filed in the court or ordered to be produced.
9. Examination of parties :-
Examination of parties is an important stage after appearance. At first hearing of the suit the court
shall ascertain from each party or his pleader whether he admits or denies such
allegations of fact as are made in the plaint or written statement. Such admissions and
denials shall be recorded. The examination may be an oral examination. When a
party, if the pleader of the party who appears, refuses or is unable to answer
any material question court may direct the concerned party should remain
present in the court. If the party does not remain present court may pass such
orders as deemed fit.
10. Admission :- Order XII of
CPC deals with admissions. It provides that If any of the parties to the suit,
admits partially or whole of the case of the other side, then the party is
required to give notice in writing that he/she admits the case partially or fully as the
case may be.
on the basis of the admission
of the parties, the court may pronounce judgment either on its own or on the
basis of the application made by either party without waiting
for determination of any other question between the parties.
11. Ancillary proceedings :- In
matrimonial cases two subsidiary proceedings, one relating to children and the
other relating to maintenance of parties, often arise, either during the
pendency of proceedings, or at the time of the passing of the decree. Till 1958
in English law these proceedings were known as ancillary proceedings.
A. Alimony pendente lite and
expenses of proceedings :- The power of the court of ordering alimony pendente
lite in a pending proceeding for matrimonial relief has been provided for, by
Section 24, Hindu Marriage Act; section 36, Indian Divorce Act; section
36 Special Marriage Act and section 39, Parsi Marriage and Divorce Act. But
section 24, Hindu Marriage Act has a peculiar feature. There the relief has
been extended to spouse of either sex, that is to say in appropriate case a
husband too can claim alimony pendente lite. If the applicant has no
independent means, he or she is entitled to interim maintenance and expenses
unless good cause is shown for depriving him or her of it.
B. Custody of children :- The
question of custody of children has been dealt with in section 26 of the Hindu
Marriage Act, section 38 of the Special Marriage Act, sections 41 to 44 of the
Indian Divorce Act. Disruption of marital relations between the spouses is
fraught with grave consequences to the welfare of the minor children and
accordingly provisions have been made for safeguarding their interest and
welfare. The relevant sections contemplate minor children only. The district
court has been the power under this section to pass interim orders from time to
time during the pendency of proceedings before it with respect to the custody,
maintenance and education of minor children, consistently with their wishes.
12. Stay of proceedings :- In
some situations in the matrimonial petition, stay of proceedings may be sought
by either spouse. The Hindu Marriage Act or the High Court Rules do not contain
any provision in this regard, but stay of proceedings may be obtained under
Section 10 read with Order 41, Rules 5 and 6 C.P.C. as well as under the
inherent jurisdiction of the court under section 151, C.P.C. We have already
seen that if the petitioner against whom an order for interim maintenance has
been made does not comply with it, the court has power to stay the proceedings.
Also read - Consequences Of The Disobedience Of The Order Of Alimony Pendente lite And Expenses Of Proceedings.
13. Framing of Issues :- Order XIV of C.P.C deals with settlement of issues. Issues arise when a material proposition of fact or
law is affirmed by one party, and denied by the other. Material-proposition are
those propositions of law or fact which a Petitioner must allege in order to show a
right to sue or a respondent must allege in order to constitute his defense. Each
material proposition affirmed by one party and denied by the other shall form
the subject matter of a distinct issue. It is for the court to frame issues properly.
Court is required to pronounce judgment on all the issues.
14. Summoning and attendance of
witnesses :- After issues are framed, a stage has reached, when the parties to
the suit are in a position to know what
facts and what documents should be proved by them. Any party to the proceedings
may apply to the court that summons should be served to all those persons
whom he wants to be his witness. A list of witnesses should be provided in the
court by the party to the proceedings
whom they propose to call as witnesses either to give evidence or to produce
documents. It shall not be later than fifteen days after the date on which the issues are
settled.
15. Hearing of Suits and
Examination of Witnesses :- The Petitioner is entitled to have first right to
begin unless the defendant
admits the facts alleged by the
Petitioner and contends that either in point of law or on some additional facts
alleged by the defendant the Petitioner is not entitled to any part of relief. In such case
respondent has the right to begin.
The Petitioner has to state his
case in front of the judge. The plaintiff has to submit the evidence that was
earlier marked. Then the Petitioner will be Cross examined by the respondent's
lawyer. The witness from the Petitioner side also have to appear in the Court,
who are also cross examined by the respondent's lawyer.
Then the respondent present his
side of the story supported by his witnesses and evidence. The Petitioner's
lawyer will then cross examine the respondent and his witnesses.
16. Argument :- As soon as
evidence of both side is over then the suit is kept for argument. Once the
evidence has been submitted and cross examination was conducted by the
Petitioner and respondent, both sides are allowed to present a summary of their
case and evidence to the judge in the final argument session.
17. Judgment :- “A judgment may
be said to be ‘the final decision of the court intimated to the parties and the world at large
by formal ‘pronouncement’ or ‘delivery’ in open court.”
After the hearing is complete,
it is necessary that the judgment should be pronounced. The judgment should usually
contain (1) the concise statement of the case (2) the points for determination
(3) the decision thereon. (4) the reasons for such decision. The last paragraph of the
judgment should contain the relief granted.
The judgment shall be dated and
signed by the judge in the open court. Once it is signed, it shall not
be altered afterwards except (i) to correct clerical or arithmetical mistakes, or
errors due to accidental slips or omissions (section 152); or (ii) or review (section
114).
Within fifteen days from the
date of judgment decree should be drawn.
18. Decree :- The decree shall
agree with the judgment; it shall contain the number of the suit, the names and
descriptions of the parties, their registered addresses, and particulars of the claim and
shall specify clearly the relief granted or other determination of the suit. In
divorce proceedings the district court at the time of passing decree entitled
to make provision for permanent alimony and maintenance, custody of children,
disposal of property presented, at or about the time of marriage, which may belong
jointly to both the husband and the wife.
So, this is the step by step
process and procedure for getting a divorce in India.
