Supreme Court's landmark ruling recently waived off the six-month waiting period for divorce. Earlier, couples filing a divorce through mutual consent had to undergo a waiting period of six months. The decision came after hearing a petition of a man last week after which the Supreme Court noticed that matrimonial cases bring different challenges since they involve human emotions.
Following the petition, A bench of Justice Sudhanshu Dhulia and JB Pardiwala announced, "A marriage which has broken down irretrievably, in our opinion spells cruelty to both the parties, as in such a relationship each party is treating the other with cruelty. It is, therefore, a ground for dissolution of marriage under Section 13 (1) (IA) of the Act (Hindu Marriage Act)".
The Supreme Court noted that the couple petitioning for divorce were living separately for 25 years and were childless. "In our considered opinion, a marital relationship that has only become more bitter and acrimonious over the years does nothing but inflicts cruelty on both sides. To keep the façade of this broken marriage alive would be doing injustice to both the parties," said the bench.
Deciding to part ways with your partner isn't the easiest decision to make. Filing for a divorce can be emotionally taxing. Things can be even more challenging if you aren't prepared mentally. Preparing for a divorce isn't a day's task. It involves a lot; discussing divorce, hiring a lawyer, collecting all legal documents, and making plans for your children to name a few. In India, to get a final judgement from the court, it can take a minimum of 12 months and even years in many cases like the aforementioned.
If you and your partner are considering filing for divorce then there are a few things you should be aware of.
Types Of Divorce
Mutual Divorce: In a mutual divorce, both parties, husband and wife mutually agree to separate.
Contested Divorce: When one of the partners initiates the divorce, while the other part contests, it is known as a contested divorce. There are so many grounds for this and some common grounds are:
- Cruelty (rights against domestic violence)
- Mental disorder
- Mutual consent
- Adultery
- Conversion
- Communicable disease
- Abandonment
Divorce Process
A petition stating the reason for divorce should be drafted. If both parties have agreed on it, they can jointly file it through their respective attorneys. If one of the spouses is filing for divorce, they can file a petition directly.
After examining the petition and all the documents attached, an order to record the statement on oath will be passed.
A cooling period of six months was previously given to parties in the hope of their reconciliation which has now been waived of. Now, if both parties are dissatisfied with being in the relationship, they don't have to mandatory wait for six months.
In the final hearing, if the court passes the divorce petition, the marriage is dissolved.
In case of a contested divorce, both parties have to appear before the court and record their statements. Evidence is submitted and both the parties are cross-examined. If required, both parties present their witnesses.
During the last hearing, the court delivers the verdict. The party filing the divorce can also appeal the order passed within three months of the order.
Divorce Rights
Child Custody
Most couples are unaware of their rights over the custody of their child, post-divorce. The court finalises child custody after considering many factors like a safe environment for the child, the financial condition of the parent, and education among others. There are different types of custody under the law, physical custody where the child lives with one of the parents, joint custody where the child can live with both parents in rotation, legal custody is when a parent gets the custody to make decisions for the child and third party custody where neither the father nor the mother are deemed fit for the child and the court appoints a third party to act as a guardian.
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Maintenance Or Alimony
Alimony is the financial assistance provided by one spouse to the other. This could be a one-time payment or an amount paid at intervals. If the court orders the spouse to provide financial aid to their partner and child, they can't refuse.
Property Division
Women can claim their rights at the property registered under their name. Even if the property was given under streedhan, she is the exclusive owner of the property. If both parties have brought the property together, the wife can claim her share.
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The divorce process in the country isn't the simplest. It includes multiple stages, right from filing a petition to getting the final order from the court. The proceedings can drain you emotionally and financially. For a smoother process, it is always a good idea to connect with an attorney first who can help you understand the procedure and complete it timely.