Divorce is the legal termination of marital relationship or dissolution of marriage is entirely handled by the family law attorney. The entire process of divorce commences from contending with emotional ups and downs to witnessing long-awaited divorce decree is certainly a challenging affair to get through. Seeking divorce in India is a lengthy legal affair where the period of prosecution varies from 6 months to years depending upon the complexity of the case.
India is a land of different religious communities with their own marriage laws and respective divorce procedure depending upon the community of the couple seeking the divorce. All Hindus as well as Sikhs, Buddhist, and Jains can seek divorce under the Hindu Marriage Act, 1955. Spouses belonging to Muslim community can seek divorce under the dissolution of Muslim Marriage Act, 1939. Similarly, Parsimarriage and divorce are governed by the Parsi Marriage and Divorce Act, 1936. Indian Judiciary has also implemented Special Marriage Act, 1956 where spouses belonging to different communities and caste can seek the divorce. In case either of the spouses belongs to another nationality, then Foreign Marriage Act 1969 is governed in marriages and divorce.
Indian divorce laws which is intricate enough make this tedious and a costly affair especially if the divorce is contested. Paperwork in divorce is quite complicated. An individual will be buried under the pile of documents in case of inadequate knowledge of documents required.
After an efficient divorce lawyer is hired, then comes to identify grounds on which the petitioner and his/her lawyer agreed to file for divorce. A divorce petition is formally drafted and filed in the relevant court.
The following documents are required in divorce cases concerning to mutual consent divorce:
- Address proof of husband
- Address proof of wife
- Details of the petitioner’s profession with present remuneration
- Income tax statements for the last 2-3 years
- Detailed information of the family background of the petitioner
- Details of the assets owned by the petitioner
- Marriage Certificate
- Evidence to show that the spouses are living separately more than a year
- Evidence to demonstrate failed attempts of reconciliation
But what documents are necessary to seek divorce depends upon the spousal needs as well as on the grounds the divorce is contested.
Alimony
Right to receive and claim alimony is one of the important rights under divorce and maintenance laws. This law of alimony and maintenance varies between the personal laws. For instance, both the husband and wife are legally entitled to claim permanent alimony and maintenance under Hindu Marriage Act. While under the Special Marriage Act, 1954 only the wife is entitled to claim.
Even the couple seeking divorce by mutual consent, then the decision of alimony and maintenance to be paid by either party relies on the agreement between them. And in case of contested divorce, the issue of alimony and maintenance is extended to the court and decision is taken on the merits of each case. So, the following documents are essential;
- Age of recipient
- Duration of marriage
- Health of spouse
- Governing matrimonial law
- Child custody
- Financial position of both the spouses
But certain documents are required to advocate the grounds by the petitioner in order to make the divorce petition valid. These documents are essential to produce as these would prove the case is genuine.
Cruelty
Previously cruelty was only a ground for judicial separation but not for a divorce. After the Marriage Law (Amendment) Act 1976, cruelty has been added into the ground for judicial separation as well as divorce. A spouse can seek a divorce if he/she is subjected to a kind of mental and physical injury that can cause danger to health and life. But these intangible acts of cruelty are not judged upon a single act but a series of incidents.
Documents essential pertaining to cruelty:
- Address proof of husband
- Address proof of wife
- Four passport size photographs of marriage and wife
- Marriage Certificate
- Evidence to prove the cruel behaviour
- Relevant medical reports to prove the physical abuse
- Statement of witnesses
Adultery
Considered it to be a criminal offence, where one of the spouses is indulging in any kind of sexual relationship outside the marriage. According to the amendment to the law 1976 where the single act of adultery is sufficient for the petitioner to seek a divorce. But substantial proofs are required in order to establish it. But pre-marital sexual intercourse or pre-marriage pregnancy does not constitute adultery.
The following documents are required in divorce cases concerning to adultery:
- Address proof of husband
- Address proof of wife
- Marriage certificate
- Evidence to proof single act of adultery
- Evidence to proof long-term adulterous relationship
- Statement of persons witnessed adulterous act
- DNA evidence pertaining adulterous act of husband and wife
- Four passport size photographs of marriage of husband and wife
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Desertion
Previously, desertion was only a ground for judicial separation. It has been added as a ground to s.13 by the Marriage Laws (Amendment) Act 1976. If one of the spouses abandons his/her partner voluntarily for at least a period of two years. So, on the ground of desertion, the abandoned spouse can file a divorce case.
According to the new phenomenon of NRI Related Desertion, many non-residents Indians (NRI) come to India marry girls aspiring to migrate from India. But all their hopes are never materialized and they never receive papers in India in the form of the foreign Divorce decree.
Documents required pertaining to desertion:
- Address proof of husband
- Address proof of wife
- Marriage certificate
- Four passport size photographs of marriage of husband and wife
- Evidence to show that the desertion was not consented.
- Evidence to prove that there is complete withdrawal by one spouse to carry out marital obligations.
- Evidence to prove desertion to be either constructive or actual
Unsoundness of Mind
Prior to the Marriage laws (Amendment) Act 1976, the respondent had been incurably of unsound mind and the respondent had been on the same condition for a continuous period of not less than three years. But after the Marriage (Amendment) Act 1976, the duration of unsoundness of mind has been classified elaborately. Perhaps, this ground is taken as an aspect of dissolution of marriage but the ground must satisfy the court by compelling and clear evidence something beyond reasonable doubt.
Documents required pertaining to unsoundness of mind:
- Address proof of husband
- Address proof of wife
- Four Passport size photographs of marriage of husband and wife
- Marriage certificate
- Medical certificate to show medical disorder
- Evidence to show that the period of two years already been passed since marriage.
- Evidence to show that the petitioner was unaware about the disorder at the time of marriage
- Evidence to show that the petitioner has been suffering from intermittent mental disorder
- Some reasonable evidence to prove that it has been impossible to live with the respondent.
Virulent and Incurable Leprosy
A petitioner can seek divorce on the ground that the respondent has been suffering from a virulent and incurable leprosy. Virulent in other words venomous has been used in order to interpret Hindu Laws to describe Leprosy to be serious and aggravated type. A spouse cannot be forced to live with the other spouse suffering from the aggravated form of leprosy and can be transmitted to the petitioner and children almost any moment of their lives.
Document required pertaining to virulent and incurable leprosy:
- Address proof of husband
- Address proof of wife
- Four passport size photo of marriage of husband and wife
- Marriage certificate
- Medical certificate to prove leprosy
- Evidence to show that the petitioner was unaware of the disease at the time of marriage.
- Statements of doctors in order to confirm the validity of the medical certificate.
- Medical proof to show that the disease is incurable and in a serious condition
Conversion
If the respondent has ceased to be a Hindu by conversion into another religion, then a Hindu marriage can be dissolved by a decree of divorce. But the right to get a divorce under the law is given to the party who is still continuing to be Hindu. A mere professing or any theoretical allegiance to a religion other than Hindu religion does not propose conversion. In order to attract the provision and purpose for the divorce, there must be a voluntary relinquishment of Hindu religion or formal ceremonial conversion to another religion by the respondent.
So, the documents pertaining to conversion:
- Address proof of husband
- Address proof of wife
- Four passport size photo of marriage of husband and wife
- Marriage certificate
- Evidence witnessing that there has been a formal ceremonial conversion to another religion.
- Conversion certificate
- Evidence to show that the person was not under any pressure or influence in order to get converted into another religion.
Venereal Diseases in Communicable Form
A divorce can be filed, if one of the spouses is suffering from a serious disease that is considered to be easily communicable. Sexually transmitted diseases like AIDS are accounted under the category of venereal diseases. The petitioner is needed to prove that the respondent has been suffering from the disease from last three years.
Documents essential pertaining to venereal diseases:
- Address proof of husband
- Address proof of wife
- Marriage certificate to prove that they have been married for three years
- Four passport size photo of marriage of husband and wife
- Medical certificate to show that the respondent had a venereal disease which is communicable to other spouse or child any moment of their daily lives.
- Medical certificate to show that the petitioner he/she hadn’t been suffering the disease at the time of marriage and isn’t trying to blame the other spouse in order to hide their own mistakes.
Entering New Religious Order
If the other renounces all worldly affair while embracing a religious order then a spouse is entitled to file a divorce. The respondent has thereafter entered into a religious order as recognized by Hindu religion. But just wearing saffron coloured clothes but enjoying marital life cannot be considered as renouncing the world and similarly holding of a certain religious opinion or professions cannot be considered as renouncing the world.
Documents required in pertaining entering new religious order:
- Address proof of husband
- Address proof of wife
- Marriage certificate
- Four passport size photograph of husband and wife
- Evidence to prove the spouse has renounced the worldly affairs
- Evidence of certain ceremonial performance or observing certain formalities in order to show that the person has entered a particular religious order.
- Evidence to prove that he or she is not enjoying any marital life.
Presumption of Death
The person is presumed to be dead if a person is not seen or heard alive by those who are expected to be “naturally heard” of the person with a continuous period of seven years. The other spouse can file a divorce if he/she is interested in remarriage.
Documents pertaining to presumption of death:
- Address proof of husband
- Address proof of wife
- Marriage certificate
- Four passport size photographs of husband and wife
- Evidence to show that the petitioner or any of his/her relative heard of the missing person for last 7 years
- Detailed particulars about the last date of cohabitation with details of place and date where the respondent was last seen
- Evidence to show that an effective search of the missing person has been made.
- Evidence to prove the special circumstances in order to prove “presumed death” before the lapse of 7 years.
Non-Compliance With The Decree of Judicial Separation
Judicial separation is an instrument in order to afford some time with the ultimate motive of introspection to both the parties in case of a troubled marriage. According to sub-sec. (IA) of sec. 13 when either of the spouses may present a partition for divorce that there has not been any resumption of cohabitation of the parties to the marriage for a period but not less than one year after passing of a decree of judicial separation.
Documents for pertaining to Non-compliance with the decree of judicial separation
- Address proof of husband
- Address proof of wife
- Marriage certificate
- Four passport size photograph of marriage of husband and wife
- Evidence to prove that there is no resumption of cohabitation between the couple.
- Documents showing the date on which the decree of judicial separation was passed by High Court in appeal.
Non-Compliance With The Decree of Restitution of Conjugal Rights
Under cl (ii) of sub-sec. (1A) of s. 13 any of the spouse may present a petition for a divorce on the ground that there has been no resumption of conjugal rights for a period not less than one year.
Documents for pertaining in non-compliance with the decree of restitution of conjugal rights.
- Address proof of husband
- Address proof of wife
- Four passport size photograph of marriage of husband and wife.
- Marriage certificate
- Evidence to prove that either of the couple has failed to comply with the decree of restitution of conjugal rights
- Evidence to show the ill treatment by other spouse that has compelled for not abiding by the decree of judicial separation.
After the first petition of divorce has been filed, then a “vakalatnama” is signed by the petitioner. This vakalatnama is the document which represent the authority given to the lawyer to represent the petitioner in the court. The court receives the petition where it will send a notice and a copy of the petition to theestranged spouse of the petitioner, asking him or her to appear before the court on a prescribed date. Then the legal procedure commences which is entirely dependent upon the documents submitted by the petitioner. Hence these documents must be genuine and further elucidate the chances of getting the best possible outcome.
