Matrimonial Proceedings

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MATRIMONIAL PROCEEDINGS

1. PETITION FOR DIVORCE:

Marriage is viewed as an obligation of constant nature but what would


happen when this lifetime obligation turns bitter as well insufferable,
the wedded people have no other option yet to get their marriage to
dissolve. Divorce is the last dissolution of a marriage. Most definitely,
the obligation of marriage was viewed as an unbreakable, perpetual
bond, and the dissolution of the same was for the most part not
viewed as appropriate. Getting a divorce in India is not easy and thus
before proceeding further there are several grounds that need to be
looked into and proved. In such a scenario there can be chances where
one individual might need to get the marriage dissolved but other one
wants to get the things resolved, such contradictions need to be taken
under the watchful eye of the Court and for having Judge to choose
whether the request for Divorce being made by the parties is fair.
Thus, where both the parties can't show up at a conclusion to at least
one key issue to convincingly end their marriage and hence contest or
dispute over the same is known as “contested divorce”. On the other
hand, when the couple concedes to all issues required to definitively
and viably end their marriage, leaving nothing of outcome that is
contested or uncertain and give consent to break down their marriage
agreeably is known as “Divorce by mutual consent”.
I. Divorce by Mutual Consent: There are different acts for
marriage registration, and similarly for divorce as well, the law
has different provisions as per the marriage acts Section 13B of
the Hindu Marriage Act 1955, Section 28 of the Special Marriage
Act, 1954, Section 10A of the Divorce Act, 1869, Section 32B for
Parsi Marriage Act 1936 and under the sections of Christian and
Muslim Marriage Act provides for divorce by mutual consent.
Mutual consent as the word clearly states that both the parties
agree for peaceful separation.
a. When can a petition for mutual divorce be filed?
Under the given conditions, a Divorce by Mutual consent
can be filed in the following circumstances: -
 Minimum one year from the date of marriage.
 Husband and wife have been living independently for a time
of one year or more.
 They are unable to live together.
 The couple has commonly agreed that the marriage has
completely abrogated. Henceforth marriage ought to be
broken.
According to the Indian Legal framework, divorce procedure
begins by filing the divorce petition. Following are the list of
documents required for filing a divorce petition
 Marriage Certificate
 Address Proof of Husband and Wife.
 Photographs of Marriage.
 Income tax Statement.
 Details of profession and Income for example Salary slips,
appointment letter, etc.
 Details of Property and Asset owned by the parties
 Information about the family background of both husband and
wife
 Evidence of a couple staying separate for a year or more
 Evidence proving failed attempts of reconciliation
 Other documents too may be needed, depending on the
requirements, facts, and circumstances of the case.

b. Where can you file a divorce petition? A divorce


petition can be filed in the court where: -
 Couple seeking divorce last lived.
 The marriage was solemnized.
 The wife is residing as of present.

c. Steps involved In Mutual Consent divorce •


 First Motion: It involves the joint filing of the divorce petition.
- A joint request for dissolution of marriage for a
pronouncement of separation is to be introduced to the family
court by the couple on the ground expressing that they
cannot live together any further and have commonly
consented to break down the marriage or they have been
living independently for a time of one year or more.

- Both the parties have to sign the said petition. Husband &
wife to appear before the court to record statements after
filing of the petition.

- Both parties should show up in the family court after the filing
of the petition. The parties would introduce their legal
counsellors who have taken up their matter on their behalf.

- The Court examines petition, documents, tries reconciliation,
and records statements. The court may try to bring
reconciliation between the couples, if this is impossible to
achieve then the Court continues for additional subsequent
follow-up.

- After the petition is scrutinized by the court and is satisfied,
the court orders the other party's statements to be recorded
on oath. The Court passes the order on First Motion for
Divorce Once the statements are recorded in the Court, the
court passes an order on the First motion for divorce.

- Cooling-off period of six months given to the couple by the
court to rethink their decision of getting divorced. Since in our
country marriage is considered a sacred bond so the last
opportunity known as a cooling period is given to the parties
to rethink their decision and explore possibilities of settlement
and cohabitation.
The Hon’ble Supreme Court in the Case of Amardeep Singh
vs Harveen Kaur (2017 (8) SCC 746) held that the
minimum 6 months cooling down period can be waived off in
the case of mutual divorce. To waive off the statutory waiting
period of 6 months under Section 13B (2), the court will take
the following condition into considerations before waiving off
the cooling period and hence the same needs to be satisfied
that “The statutory period of six months specified in Section
13B (2), in addition to the statutory period of one year under
Section 13B (1) of separation of parties is already over before
the first motion itself; Efforts for mediation/conciliation
including efforts in terms to reunite the parties have failed
and there is no likelihood of success in that direction by any
further efforts. The parties have genuinely settled their
differences including alimony, custody of the child or any
other pending issues between the parties. In such
circumstances, a waiver application to waive off the period of
6 months can be filed as early as one week after the first
motion giving reasons for the waiver. The Court may exercise
its discretion over the waiver of such a period.

 Second Motion: it is to be filed within 18 months of First


Motion. When a final decision has been made by the parties to
continue with the further proceedings and appear for the second
motion, they can advance towards the final hearing. In this
procedure both the parties appear before the Family Court and
get their statement recorded. This process is done within 18
months of filing the first motion petition.
 Final Decree of divorce by mutual consent passed by the court
When both the parties have given consent for dissolution of
marriage and no differences are left between them concerning
the alimony, custody of the child, maintenance, property, etc
and the court is contended subsequent to the hearing from both
the parties that, the claims inside the petition are valid and there
are no chances of compromise and living together, an decree of
Divorce proclaiming dissolution of wedding is passed by the
Court. The divorce becomes ultimate once the decree of divorce
has been passed by the court.
II. Contested Divorce: A contested divorce in India is a method of
separating from a companion who isn't ready to separate.
Contested Divorce in India means when either husband/wife has
made up his/her mind to continue with Divorce. The below-
mentioned grounds are available to the person who is filing the
divorce:
 Adultery
 Cruelty
 Desertion.
 Conversion
 Mental disorder
 Leprosy o Venereal disease
 Not heard alive.
 No resumption of cohabitation
 No restitution of conjugal rights

a. Steps and Procedure for Filing Contested Divorce In


India: If a spouse needs a divorce independent of the
assent of his/her partner, he/she should initially find out
the grounds on which he/she can file a divorce. To contest
a divorce in Indian the below-mentioned procedure needs
to be followed: -
 Once you have consulted a trustworthy lawyer, you need to describe
all the facts and circumstances for seeking a divorce according to
which your lawyer would prepare a divorce petition along with relevant
documents that support the allegations mentioned in the petition.

 After preparing a final draft of the divorce petition the Petitioner is
required to sign the Petition, supporting Affidavits, Vakalatnama, and
other relevant documents in the presence of an authorized Oath
Commissioner/Notary.

 In the wake of perceiving the court of suitable jurisdiction, the petition
for the divorce is filed, which gets usually listed for hearing according
to the workload of the court.

 Once the petition is listed it needs to be admitted by the court. This
means that the Judge will hear opening contentions from the Divorce
Lawyer in regards to the claims made in the Petition and the grounds
on which the Contested Divorce is being looked.

 Once the judge is satisfied by the allegations made in the Petition, a
formal legal notice/summons will be given along with a copy of the
petition to be served upon the husband/wife as the case may be telling
him/her that a divorce case has been filed by their spouse.

 Once the Legal Notice/summons has been sent, the contrary side
should show up face to face along with its lawyer and file a reply to the
Divorce Petition. The contrary party is required to compose his/her
reply to such a petition clarifying their side. If the contrary party
decides not to appear on the given date, the court may continue to
give its decision after hearing the Petitioner's side.

 When the opposite party appears and files the reply then the court
continues with it further proceeding where at the initial stage, the
court might suggest to the parties to divorce take up the process of
mediation in order to settle their disputes before getting a divorce.
Mediation is a process that involves a third neutral party that helps in
mediating communication between the spouses to arrive at a better
solution.

 If the mediation fails, the court would continue further with divorce
proceedings, meanwhile if any application for maintenance is filed the
court will decide it at first instance, to ensure the financial stability of
the person who has filed such application.

 The court will then be proceeded with the framing of issues and
getting the evidence recorded of both the spouse, the evidence of
petitioner is recorded first.

 Examination and cross-examination of the Petitioner along with its
supporting witness takes place first and the same process is followed
for the Respondent.

 Once the abovementioned procedure is followed for both the parties,
the lawyers of both the parties proceeded towards their final
arguments. Final or closing arguments are the primary deciding factors
on which the court will decide the dissolution of marriage. After
hearing the final argument, the court will fix a date to pronounce its
order.

 On the date fixed by the Court, it gives out its final judgment and
passes a divorce decree. If by any means the judgment passed by the
court is not acceptable to either one of the parties, they may file an
appeal against the order in the Higher Court within 3 months from the
date of passing of such order.
Filing a divorce and getting a decree, is just a start of various other legal
complexities like maintenance, child custody, division of property that
needs to be dealt with before procuring a decree in case of a contested
divorce.
2. PETITION FOR JUDICIAL SEPARATION:

Judicial Separation is a medium under the law to give some time for self-
analysis to both the parties of a disturbed married life. Law gives a
chance to both the husband and wife to rethink about the extension of
their relationship while at the same time guiding them to live separately.
By doing this, the law allows them the free space and independence to
think about their future path and it is the last option available to both the
spouses for the legal breakup of the marriage.

I. Filing petition for Judicial Separation: Any spouse who is hurt


by another spouse, can file a petition for Judicial Separation in a
District Court and the following should be satisfied:

 The marriage between the husband and wife should be celebrated


properly under the personal laws.
 The respondent should be settled in the jurisdiction of the court
where the petitioner filed the petition.
 The husband and wife lived together for a particular period of time
before the filing of petition.

Every petition should according to Order VII Rule 1 of the Civil


Procedure Code, 1973 must contain:

 The date and place of marriage.


 The person should be a Hindu, by his/her affidavit.
 Name, status, address of both the parties
 Name, DOB and gender of children (if any).
 Details of litigation filed before filing the decree for judicial
separation or divorce.
 For the judicial separation, the evidence should prove the grounds.
3. APPLICATION FOR RESTITUTION OF CONJUGAL RIGHTS

4. Application for maintenance of self/children


5. Application for custody of children
6. Petition for dissolution of marriage
7. Rules of matrimonial petitions

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