Divorce is the process of dissolution of the marital relationship between a husband and wife. The divorce among Christian couples is governed under the Indian Divorce Act. The court grants the separation after the husband, wife or both files a petition in the Court of Law. Usually, divorce is followed by alimony, child custody, distribution of debts and property. The Indian Divorce Act was drafted in the year 1869 and inculcated in the Indian legal system. In India, rules and procedure relating to divorce varies according to the community of the husband and wife.
Types of Divorce
As per the Indian Divorce Act, a Christian couple can get a divorce in two ways, i.e., with mutual consent, or either of the spouses may file for a divorce without the consent of the other, depending on a few prerequisites.
Divorce With Mutual Consent
When the couples agree to take a divorce mutually, they file the petition under section 10 A of the Indian Divorce Act before the court. For mutual consent divorce, it requires that the couple should be able to prove that they are not living together for at least two years and they need to submit before the court, that they are not living as husband and wife during that period. Matters relating to maintenance, child custody and property need to be agreed mutually.
There are three aspects as to which the couples have to reach a consensus, and they are:
- Custody of the Child
- Property Rights
The duration for mutual consent divorce depends upon the decision of the court. Here, the court decided a term during which the couple will give another chance to their marriage. This term varies from six to eighteen months.
Divorce without Mutual Consent
The conditions when either the husband or the wife can file a petitionare explained below:
Petition by the Husband: The husband can file a petition before the district court or high court praying that his marriage needs to be dissolved because his wife is guilty of adultery.
Petition by Wife: The wife can file a petition to the District Court or the High Court for dissolution of marriage. The wife can file such petition under the following circumstance:
- If her husband has exchanged his profession of Christianity for the declaration of some other religion
- If the husband went through a form of marriage with another woman
- If her husband has been guilty of incestuous adultery since the solemnization of marriage
- In case of bigamy with adultery
- In case of marriage with another woman with adultery
- In case of rape
- In case of adultery coupled with such cruelty as without adultery would have entitled her to a divorce
- In the case of adultery coupled with desertion, without reasonable excuse, for two years or more
The ground of divorce available to the Christian husband under the law is simply expressed as "adu1tery", no other fact need be proved by the husband. However, the ground of divorce available to the wife is expressed in very narrow terms of the section. To mention the position brieï¬‚y, the court will require proof to be submitted by the wife on one or other of the following acts by the husband as discussed above.
Documents Required to File Divorce: Every such petition should contain, the facts on which the claim to have such marriage dissolved is founded.
The following documents are required to be furnished for filing a divorce in India according to the Indian Divorce Act, 1869:
- Address proof of husband
- Address proof of wife
- Marriage certificate
- Four passport size photographs of the marriage
- Evidence for proving spouses are living separately since more than a year
- Evidence of the failed attempts of reconciliation
- Income tax statement for the last two to years
- Details of the profession and present remuneration
- Information relating to family background
- Details of property and other assets owned by the petitioner
Procedure for filing a divorce in Court:
The process for filing a divorce in India is governed by the provision of the Code of Civil Procedure, 1908. The process for seeking a divorce begins by filing a petition, which is followed by affidavits from both the partners in the district court. The petition must state the following details:
- Name of the parties
- Status and domicile of the parties
- Date and place of marriage
- The permanent address of the place where the parties cohabit
- Place where the parties last resided together
- Names of the children from the marriage( if any) with the date of birth
- The ground of seeking divorce or separation
- The facts and details by which the petitioner requests the relief
- The averments made are verified after six months couple has to re-appear in the front of the court after filing a second motion petition for divorce of mutual consent.
- After hearing from both the husband and wife, if the judge is satisfied that all essential grounds are filing the recruitments and meeting the needs of divorce, the couple grants a mutual divorce decree.
- Custody of child, alimony to wife and litigation expenses will be considered on issuing a decree for divorce.