Divorce Notice: How To File Divorce In India
- Divorce procedure
- Types of divorce in India
- Laws under which divorce is filed
- Party do not want to proceed for divorce
Divorce procedure is governed by various laws/Acts prevalent in India. Divorce in India can be initiated by any of the party as per the grounds provided under the relevant laws prevalent in India. Generally among Hindus, Buddhists, Sikhs and Jains, Divorce is governed by the Hindu Marriage Act, 1955, for Muslims by the Dissolution of Muslim Marriages Act, 1939, for Parsis by the Parsi Marriage and Divorce Act, 1936 and for Christians it is governed by the Indian Divorce Act, 1869.
Various Types Of Divorce Petition In India
Section 13 of the Hindu Marriage Act, 1955 covers the provision of mutual consent divorce as well as other provisions. Divorce can be filed with mutual consent, or it can be filed by either husband or wife without the consent of the other.
- Divorce by Mutual Consent
- Divorce not out of Mutual Consent such as due to Cruelty, Adultery, Desertion, Conversion, Mental Disorder, Communicable Disease, Renunciation of World, Presumption of Death etc.
Preconditions To Start Divorce Proceeding
Under various Divorce laws prevalent in India, either partner can send a legal notice for Divorce to the other. So sending a legal notice is the first step to be taken before starting any legal proceedings to make aware about the conflict between the parties (if any)/ or it is last sort of medium to resolve/end the conflict between the parties.
Legal notice is a formal communication sent by one party to the other, warning them before taking any legal action further and communicating his/her intention to undertake legal proceedings against the other party and make the other party aware of the grievance.
Who Can Send A Legal Notice?
Generally legal notice is send by Legal Attorney in the name of his/her client either via registered post or via Dasti (personally tendered notice to other party). Law has not defined any specified format of legal notice to be send to the party but Attorneys general follow a standard format for the same. While drafting legal notice Attorney has to be very careful since divorce means the end of marriage so it needs to mention proper details of the conflict between the parties or any chance to resolve it further. Numerous times it has been witnessed that, a well-written and well-served legal notice brings the other party on heels, and the problem gets resolved out of court via mutual discussion and understanding between both the parties.
What If Issue Doesn’t Get Resolve By Legal Notice?
But in some cases, other party sometime also reply to the legal notice/counter reply expressing their grievances or if chances of any resolution. After expiry of the timeline/notice period mentioned in notice, the party can proceed to file the Divorcee Petition.
It is pertinent to mention here that such legal notice must be drafted by a competent legal practitioner and should cover all the relevant aspects/contents.
What If You Received A Notice Of Divorcee But You Do Not Want To Proceed For Divorce?
If your husband or wife sends you legal notice of divorcee on wrong basis and you don’t want to proceed for divorcee, you need not be scared from Notice for divorce. If the notice is based on wrong grounds you can reply to the legal notice through Attorney mentioning correct details and you need to be prepared to defend divorce case filed by your spouse, by adducing evidences in your favor which shows that you have not done anything wrong/cruelty of any sort to your spouse which lead him to file divorce petition. In case of any act of violence or any wrong doing you can also file complaint to police officials or women cell under domestic violence act, against your husband, as well as under Section 498A of Indian Penal Code. You may also seek maintenance for you and your children from your husband, by filing maintenance petition under Section 125 Code for Civil Procedure.
What Are The Services Lawyerinc Offers For Divorce?
Our comprehensive range of end-to-end solutions includes following:
- End to end services for divorce,
- We have expertise in preparing to file divorce notice and petition including drafting of the same
- We will get in touch with you renounced lawyers in this field.
- Free consultation for any enquiry that you may have about divorce.
- Legal notice and Petition will be drafted by us and be duly submitted in the court.
- We shall inform you of the date and time when your physical appearance will be required in court, if any.
- We will inform you about day to day proceedings in the matter.
- You will get your divorce done without any hassles.
*Any fee, stamp duty and miscellaneous charges shall be payable extra.
Do contact us in case of any query related divorce and much more. To avail any of the above-stated services, kindly establish contact by posting a query at our site.
Legal Provisions Under Which Mutual Divorce Can Be Filed
Various laws prescribed in India under which you can file divorcee by mutual consent are.
- Section 13B of the Hindu Marriage Act, 1955 (applicable to all Hindus, Jains, Sikhs) mandates a period of separation of 1 year ,
- Section 28 of the Special Marriage Act, 1954 ( applicable to all marriages between parties belonging to different religions, castes, NRI’s etc) mandates a period of separation of more than one year,
- Section 10 A of the Indian Divorce Act for Christian Couples mandates a period of separation of two years.
Procedure For Filing Mutual Divorce In India
- Both husband and wife have to reach a consensus in terms of mutual divorce.
- As per the discussion between the parties, a Divorcee Petition is carefully drafted by a Legal Attorney for Mutual Consent under Section 13B of the Hindu Marriage Act or Section 10A of the Indian Divorce Act or Section 28 of the Special Marriage Act, as per its applicability
- After completion of Drafting and other necessary formalities, Divorce Petition to be filed in the appropriate Court having jurisdiction.
- Both the parties need to be present in the court for appearance as well as for recording statements as required after which the First Motion will be passed.
- Where any party is unable to appear in person for recording statement due to any relevant reason, they can proceed through a Power of Attorney (POA) by authorizing someone from close family to appear on his behalf (in case of NRI or other reason)
- The law provides the provision to provide a cooling period to the parties of a minimum 6 months which may extend up to 18 months with an aim to give them time to rethink and reconsider their decision. However, now vide the order of Hon’ble Supreme Court the said cooling period has been waived off/made it optional.
- Afterward this The Second Motion is set up.
- During the cooling period, before moving the second motion, the parties do have liberty to withdraw their consent for divorce.
- If on the Second motion statements are recorded again and if court thinks/appears that the parties have been unable to resolve their differences, the Court will grant the Decree for Divorce
- If the court consider that/or on request of parties that there is a scope of any harmony/compromise between the parties, the court may set up another motion to record the statement of the parties
- If Divorce Decree has been passed with consent of both the parties then they can file an appeal in the higher court.
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