Yato Dharmastato Jayah
- motto supreme court of India
- motto supreme court of India
Yato Dharmastato Jayah - motto supreme court of India
Vidya Devarajan
B.Sc., L.L.M, Master's in Cyber Law
Advocate at High Court of Madras
Trusted Legal Advisor for NRI's
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FAQ:
We have already been separated for more than a year. Is it still mandatory to have a separation period before filing for a mutual divorce?
The court may waive off the mandatory separation period for a mutual divorce. If the court grants this waiver, it is possible to obtain a mutual divorce within 3-6 months.
How long is the mandatory separation period?
The mandatory separation period is generally 6 months. This means that you and your spouse must have lived separately for at least 6 months before filing for a mutual divorce.
My spouse disappeared without informing me. How can I file for divorce?
If your spouse has been missing for at least seven years, you can file for divorce on the grounds that they have not been heard from or located. A legal declaration of presumption of death may also apply in such cases.
Is it mandatory for the husband and wife to attend every hearing in a divorce case?
Yes, it is generally mandatory for both spouses to attend. However, in cases of extreme hardships such as serious illness, living abroad, or other significant constraints. The court may grant permission for a lawyer to represent the spouse in their absence. Remote attendance may also be allowed if the court deems it appropriate.
Will my children need to be present during the divorce proceedings?
In most cases, children do not need to be present during divorce proceedings. The court generally protects minors from direct involvement in the legal process to minimize stress and emotional impact
Being a woman is it better if I choose a lady advocate to represent me?
You need a competent advocate, gender doesn’t matter. But in some cases, women prefer a lady advocate just to be comfortable discussing certain details of the case.
FAQ: Mutual Divorce
When can I apply for a mutual divorce?
You can apply for a mutual divorce in India when both you and your spouse mutually agree to end your marriage. This means you both consent to divorce without any coercion or undue influence.
We have mutually agreed to apply for divorce, but we married less than a year ago. Can we apply for divorce?
No. In India, you cannot apply for a mutual consent divorce unless at least one year has passed since the date of your marriage. This is a legal requirement under the Hindu Marriage Act, 1955, and the Special Marriage Act, 1954.
What are the grounds for a mutual divorce?
The primary ground for a mutual divorce is that the couple has been living separately for at least one year and has mutually agreed that they cannot live together anymore. They should also have settled all their disputes related to alimony, child custody, and division of assets
What is the mutual divorce procedure in India?
To file for a mutual divorce, you and your spouse need to jointly submit a petition to the designated family court. After the court assigns a case number and records your statements and evidence, a waiting period is usually mandated. If you both still agree to the divorce after this period, the court will grant a divorce decree, legally dissolving your marriage.
How long does it take to get a mutual divorce?
The minimum time required is six months from the date of filing the petition, but it can vary depending on the court’s schedule and any unforeseen complications.
Can one party withdraw consent during the mutual divorce process?
Yes, either party can withdraw their consent at any time before the final decree is granted
FAQ: Contested Divorce
What if my spouse refuses to attend the court hearings?
If your spouse does not attend court hearings, the judge may proceed with an ex-parte divorce, meaning the court can decide in their absence. However, the absent spouse can appeal if they have valid reasons for their absence.
Can a contested divorce be converted into a mutual consent divorce?
Yes, if both spouses eventually agree to the divorce terms, a contested divorce can be converted into a mutual consent divorce. This will speed up the process, as mutual consent divorces are typically resolved more quickly than contested divorces.
Can I file for divorce if my spouse is avoiding me and not fulfilling marital duties?
Yes, neglecting marital duties and avoiding a spouse can be considered cruelty, which is a valid ground for divorce. The court may examine whether this behavior has caused emotional or mental distress.
What are my options if my spouse doesn’t agree to a divorce, but I’m being subjected to physical and emotional abuse?
In cases of abuse, you can file for a contested divorce on the grounds of cruelty, which includes both physical and emotional abuse. Even if your spouse does not agree to the divorce, the court can independently assess the situation and grant a divorce if it finds evidence of cruelty
My spouse has not contacted me or our children for more than two years. Can I seek divorce and custody of our children?
Yes, you can file for divorce on grounds of desertion and seek sole custody of the children. Courts often grant custody to the present parent, especially if the other parent has been uninvolved.
My spouse doesn’t provide any financial support, and we have been separated for over two years. Can I file for divorce?
Yes, financial neglect and prolonged separation are valid grounds for divorce. Courts may consider non-support as part of mental cruelty, especially if it causes you significant hardship.
Can I change my grounds for divorce after filing a contested divorce?
Yes, under certain circumstances, you may amend your divorce petition to include additional grounds if you can provide sufficient reasons and the court approves the amendment.
Is mediation required in contested divorce cases?
Yes, courts in India often recommend or require mediation for contested divorces to encourage reconciliation or an amicable settlement. If mediation is unsuccessful, the case will proceed in court.
How long does a contested divorce take in India?
A contested divorce in India can take anywhere from one to five years, depending on the complexity of the case, the evidence required, the number of hearings, and the court’s schedule. Delays may occur if either party disputes the grounds or if mediation efforts are attempted.
I live in Chennai, and my spouse has applied for divorce proceedings in Coimbatore. I’m finding it hard to travel for every hearing. What can I do?
You would need to submit a transfer petition to the High Court explaining the hardships of traveling, and request the case be transferred to a family court closer to your residence in Chennai.
FAQ: NRI Divorce
Can NRIs file for mutual divorce in India?
Yes, Non-Resident Indians (NRIs) can file for mutual divorce in India.
Is it mandatory for both parties (NRI) to be present in India for all hearings?
While both parties are generally required to be present for the initial and final hearings, the court may grant exemptions or allow virtual appearances in certain situations
What are the implications of getting a divorce decree from a foreign court?
A foreign divorce decree needs to be legally recognized in India to be considered valid. This involves filing an execution petition in an Indian court to validate the foreign decree and ensure its enforceability within India.
My spouse has initiated divorce proceedings against me, and I’m an NRI living abroad. What can I do?
If your spouse has initiated divorce proceedings in India while you are an NRI living abroad, you can participate in the proceedings remotely. Many courts now allow NRIs to attend hearings virtually, depending on the court’s provisions. You can submit documents, affidavits, and any other evidence digitally or through your legal representative. It’s also possible to give a “power of attorney” to a trusted person in India to handle certain aspects of the case on your behalf.
My spouse is abroad and has stopped all communication for over a year. Can I file for divorce?
Yes, you can file for divorce if your spouse has abandoned you and there’s no communication or intent to continue the relationship. Courts may consider this behavior as desertion.
If I live in Chennai and my husband lives abroad, can I file a divorce case in Chennai?
Yes, you can file for divorce in Chennai if you reside there, even if your husband lives abroad. Indian family law allows the spouse residing in India to file a divorce petition in the jurisdiction of their residence. The court will notify your husband of the proceedings, and he can participate remotely if required. The legal process may include international service of notice and allow for online hearings if the court permits.
We are NRIs living abroad and want to file for divorce. What is the procedure?
As Indian citizens living abroad, you can file for divorce either in India or in the country where you reside. If you choose to file in India, you can do so in one of the following jurisdictions:
- Wife’s Aadhaar Address
- Husband’s Aadhaar Address
- Place of Marriage: The district where the marriage was solemnized.
After determining the appropriate jurisdiction, you can proceed with either a mutual consent divorce or a contested divorce, as applicable.
What if my spouse and I are both NRIs residing in different countries? Can we still file for mutual divorce in India?
Yes, even if both you and your spouse are NRIs residing in different countries, you can still file for a mutual divorce in India. The jurisdiction rules remain the same – you can file in the court where the marriage was solemnized, where you last resided together, or where the respondent currently resides
** the answers provide above are generic questions we've received from our clients. We advise you to contact an advocate and get a legal advice for your situation before proceeding with any further actions.
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