Family Law

1. What is meant by “grounds for divorce”?
A “ground” for divorce is a “reason” for divorce. A set of judicially recognized reasons for divorce . Person seeking requires one or more of these reasons to justify your divorce.

2. What are the terms used to identify the parties in a divorce proceeding?
The party filing the action is called the “petitioner”, while the other party to the divorce is referred to as the “respondent”.

3. What are the recognized grounds for divorce in hindu laws?

As per hindu marriage act some of the grounds recognized for divorce are:

  • Adultery
  • Cruelty
  • Desertion
  • Conversion to another religion
  • Unsoundness of mind or mental disorder
  • Virulent and incurable form of leprosy
  • Venereal disease

Renouncing the world: Not heard for a period of seven years or more

Beside the above, there are also other grounds available which would depend upon the facts and circumstances of each case.

4. What does the term ‘alimony’ /maintenance means?
The money paid by one ex-spouse to the other for support under the terms of a court order or settlement agreement following a divorce. Maintenance can also be paid during separation.

5. Spousal support or interim maintenace available while the divorce is pending in court, or only after the divorce has become final?

Yes, as per hindu marriage act, interim maintenance can be provided to either of the spouse in case one of the party does not have sufficient means and the other party has sufficient means. There is no definite formula as to the quantum of maintenance and it varies from case to case, status of the parties and the past conditions when spouse were living together.
After the final decision, permanent alimony or maintenance is fixed.

6. There any waiting period before a case of divorce is filed in the court?
Yes, generally a case of divorce is filed only after the expiry of one year of the marriage. However, under exceptional circumstance, this time period may be waived off.

7. What is the total duration/time of divorce case?
In case of divorce by mutual consent, decree of divorce can be obtained any time after six months and before eighteen months. This period can be further reduced depending upon the exigencies of the situation.
In contested divorce cases, divorce is generally obtained after 18 to 30 months and even longer. However, time factor is dependant upon variety of factor which includes how aggressively case is being pursued, question of maintenance, etc.

8. Who is entitled to have the custody of children in case of contested divorce?
There is no fixed formula as to who would be entitled to have the custody of children. In deciding issue of custody of children, the most important factor is the welfare of the children. Welfare of children is the paramount consideration in deciding this issue.

9. How would I know where my divorce case will be filed?
Your case can be filed at any of the following place:
Where marriage has taken place

Where husband and wife started living soon after the marriage and prior to separation

Where the respondent is residing

Wife can also file a case from the place where she is residing after leaving matrimonial home.

Or any other place where the part of cause of action has accrued.

10. How long will one have wait to remarry after obtaining divorce?

As per law, appeal against divorce is to be filed within thirty days. In case appeal is not filed then after thirty days. In case appeal is filed, when appeal is dismissed.

A. What is the procedure/steps/process involved in getting divorce by mutual consent?
Procedure/steps/process involved by mutual consent:

step 1: divorce petition will be drafted which will include terms of settlement. Basically, husband and wife have to reach to understanding regarding maintenance issue. As per law, there is no minimum or maximum limit. It is basically about the understanding and consensus between the parties.

Step 2: this mutual consent divorce petition under section 13(b) in case of hindu marriage and under section 28 divorce act 1869 in case of christian marriage will be filed in the court supported with affidavits.

Step 3: matter will come up for hearing in the court and generally parties have to be present before the court and their statement is recorded in the court.

Step 4: after recording of statements, first motion will be passed.
Step 5: thereafter, parties will be given time from six months to eighteen months to file the petition for second motion
Step 6: step 2 and 3 will be repeated
Step 7: court will grant second motion
Step 8: and immediately thereafter divorce decree will be asked to prepared

Step 9: within a week, this divorce decree will be given to the parties or their advocate/s
in order to cut the waiting period of minimum six months before filing petition for second motion, an application is moved for the waiver of six months period which is generally allowed by the court in delhi.
11. What are the documents required for the purpose of mutual consent divorce?
Documents required:

  • Address proof of husband
  • Address proof of wife
  • Marriage certificate
  • Four passport photographs of marriage of both husband and wife
  • Any other documents as may be required by the court

12. What is the procedure of divorce in contested cases?
In contested divorce case, the spouse who wants to initiate action, has to take one of the ground of divorce mentioned under law. A petition will be drafted which will be filed in the court. Other spouse, will be asked to make an appearance before the matrimonial/divorce court and to answer reply to the divorce petition filed by the other spouse. Then the matter goes in for trial. Parties have to lead evidence. One who files divorce petition will have to prove its case. After determination of all issues court can pass a divorce decree.

13. When an fir is filed under section 498a, 406 of indian penal code( ipc)?
Fir under section 498a & section 406 is filed on the complaint of wife. Fir basically covers two important things,

a) cruelty in relation to the demand of dowry.
b) entrustment of stridhan (jeweler articles received by wife at the time of wedding) and the misappropriation of the same

14. What is the protection against 498a and 406 of ipc?
Husband /his relative have to file for anticipatory bail in the court.

15. What does anticipatory bail means?
As per law, under section 438 of criminal procedure code(cr.p.c.), one can apply for anticipatory bail in court of session and/or high court.

16. What is the procedure of divorce for nri, pio, etc in India?
The procedure for filing divorce cases for nri, pio is same as that of others. Procedure for divorce by mutual consent for nri is also same.

17. What does judicial separation means?
It is a relief, which is available to either of the spouse. The party which seeks judicial separation has to take one of the grounds mentioned under section 13 of hindu marriage act. Once, a relief is granted, parties are allowed to live separately for one year. If matrimonial ties are not restored then aggrieved party has a right to go to the court. Thus, judicial separation becomes a separate ground and another ground for divorce.

18. What is Bigamy?
A person commits bigamy when he/she:
• When husband or wife living,
• marries ,but such marriage is void,
• by reason of its taking place during the life of husband or wife.

19. When is Bigamy offence ?
Bigamy is an offence provided first husband or wife is alive. Section 5 of the Hindu Marriage Act, 1955, clearly states that a marriage could be valid only if neither of the party has a living spouse at the time of marriage. Section 11 of the Act declares second marriage to be null and void.

a. Is religious conversion for purposes for marrying second time is also bigamy?
In Sarla Mudgal v. Union of India (1995 AIR 1531 SC), the Supreme Court held that a man who has adopted Islam and renounced Hindu religion, marries again without taking divorce from the first wife, then such marriage is not legal. The person shall be punished for committing bigamy under section 494 of Indian Penal Code (IPC).

20. Where to file complaint under Bigamy law-section 494?

The person aggrieved can file a case of bigamy either in court or at the police station. The father of an aggrieved wife can also make a complaint under section 494/495 of the Indian Penal Code. A petition for declaring the second marriage as void can be filed by the parties of second marriage and not the first spouse.