What are the procedure and fees for a divorce?

Introduction

Divorce is a legal process of separation of the spouses after marriage, when both of them want to get separated of their own will after marriage, it is called divorce by mutual consent[i].

A contested divorce is the one when it is filed without the consent of either of the spouse. The grounds for filing divorce may be adultery, conversion, mental disorder, communicable disease, etc.

Types of divorce

Mutual Consent Divorce

In a mutual divorce, both the spouses agree to file for divorce together and a joint petition is submitted for the same. It is a smoother and less time-consuming process, as the spouses give their consent for divorce mutually. It involves less number of court hearings which makes it a faster and more efficient process.

In P. Sunder Raj v. P. Sarika Raj[ii]– The Court held that a decree for divorce by mutual consent can be passed and is liable to be passed where the parties seek divorce by mutual consent as provisioned under Section 13-B of the Act and it cannot be done in any other manner.

Key ingredients for seeking divorce by mutual consent:

• Parties seek divorce mutually;
• Parties living separately for at least one year;
• The parties mutually agree to jointly file for a mutual divorce without any undue influence;
• Consent of the parties to get separated should be free and should not be obtained through fraud or force[iii].

Contested Divorce

It is when one of the spouses does not agree to give consent to divorce. The spouse seeking divorce files a divorce petition and fights the case alleging that the marriage is non-workable. There are several grounds for a contested divorce in India and it indeed leads to a long battle between the parties. This is a timely affair and takes many hearings as compared to mutual consent divorce.

What are the grounds for divorce [iv] ?

As per the provisions of the Hindu Marriage Act, 1955, either the husband or the wife can file for divorce to dissolve their marriage that has been solemnized before or after the commencement of the Act. 

A divorce is granted on the following grounds:

1. After the solemnization of the marriage, the other spouse has treated the petitioner with cruelty;
2. Deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition;
3. Conversion to another religion from Hindu;
4. Insanity or unsoundness of mind;
5. Suffering from leprosy or other communicable diseases;
6. Suffering from venereal disease in a contagious way;
7. Renunciation of the world on a religious order;
8. Not heard of being alive for seven years or more by those persons who would naturally have heard of it.

Mental cruelty as a ground for divorce

The Hindu Marriage Act did not have ‘cruelty’ as a ground for divorce and the same was amended in 1976 so that this basis became available for seeking both divorce and judicial separation. The Parliament at the time of enactment did  not provide any specific definition of the term and hence it has been understood according to its interpretation by the judiciary[v].

Fees for divorce

The fees of a lawyer vary from case to case and based on severity. If the spouses have made their minds clear on getting separated, alimony, child custody, etc. then it is a more straightforward and less costly affair. The thumb rule is the longer the battle will go the more spouses will suffer mentally and monetarily. The fees escalate when the matter reaches the High Court or Supreme Court. It is a costly affair when the spouses opt. for a contested affair.

The lawyer fees also vary based on their experience and success rate, the advocates with more experience and good winning cases rate would charge more. In metro cities such as Delhi, Bangalore, Mumbai, etc. lawyer’s fee is more. Mutual consent divorce charges range between 15,000 and 30,000 if you want a divorce lawyer with a minimum of 3 years’ worth of experience. However, a contested divorce matter would be much more expensive and cumbersome.

The legal experts also charge consultation fees, which you have to pay to settle differences and decide on essential matters. A good divorce lawyer with an expert will help you split your assets, manage child custody, and also decide on appropriate alimony. But this needs multiple sittings, increasing the overall cost.

What is the cost of mutual divorce in India?

As mentioned above, the factors determining the divorce lawyer’s charge include the following:

• Locality
• Court of Jurisdiction
• Experience
• Success Rate
• Efficiency
• Your financial situation

What are the steps involved [vi]?

In Mutual consent divorce

Section 28 of the Special Marriage Act, 1954 and Section 10A of the Divorce Act, 1869, also provide for divorce of Mutual Consent. The process for seeking mutual divorce is fast and less cumbersome and it is possible to obtain a decree from the court comparatively faster. However, the proceeding may prolong for six months to one year depending on each case. If the matter is serious then the time may extend up to two years or more.

STEP 1: First Motion: It involves the joint filing of a divorce petition;

STEP 2: Recording of statements before the court after filing of the petition;

STEP 3: Examination of the petition, documents, efforts are made for reconciliation, records statements;

STEP 4: Order on First Motion by the Court;

STEP 5: Cooling-off period of 6 months given to the couple by the court to rethink the decision;

STEP 6: Second Motion filing within 18 months of First Motion;

STEP 7: Divorce decree by the court.

The 6 months cooling-off period is offered with the hope to avoid divorce if there is any prospect for reconciliation. However, the Apex Court has held that in circumstances where the spouses have amicably agreed to divorce, then the cooling period might be waived.

Rajiv Chhikara v. Sandhya Mathu (2016)[vii]– The Delhi High Court in the instant matter stated that reneging on a settlement constituted a kind of mental cruelty. If the spouse has been living separately since 2009 and their relationship were beyond repair and if one spouse insists on maintaining the marriage then it is equivalent to a mental cruelty condition. 

In Contested divorce

STEP 1: Filing of the divorce petition by the husband or wife, whoever is willing to seek a divorce;

STEP 2: Issuance of summons by the court and reply is sought from the other spouse;

STEP 3: Reconciliation may be suggested by the court;

STEP 4: The stage of examination and cross-examination and evidence;

STEP 5: Final arguments are presented before the court by the counsel of both the parties;

STEP 6: Divorce decree by the court.

Issues to consider while seeking divorce [viii]

1. Alimony and maintenance issues: There is no minimum or maximum amount for the same. The amount is decided by the court or in mutual divorce, the parties mutually agree on the same. 
2. Custody of children: This issue must be decided calmly and the child’s welfare is paramount as held by the various courts time and again. 
3. Property matters: Husbands and wives must integrate their assets and they should be distributed accordingly.

Divorce is a serious matter and it should be used only as a last resort. Divorce by mutual consent has many advantages as discussed above and it is indeed the best way of divorce if the parties have decided mutually to get separated. It saves time and money as the parties can mutually settle their issues and put an end to their marriage.

---

[i] https://legaldocs.co.in/mutual-consent-divorce

[ii] AIR 2015, Punjab 83

[iii] Section 23(1)(bb) of the Hindu Marriage Act,1955

[iv] https://vakilsearch.com/advice/what-are-the-documents-needed-for-divorce-in-india/

[v] https://indianexpress.com/article/explained/explained-how-indian-courts-over-the-years-have-seen-mental-cruelty-as-grounds-for-divorce-6407154/

[vi] https://economictimes.indiatimes.com/wealth/save/divorce-costs-documents-needed-and-steps-involved/articleshow/73608055.cms

[vii] https://indiankanoon.org/doc/169701404/

[viii] https://esahayak.io/blog/how-to-file-a-divorce-in-india/

 

You may contact me for consultation or advice by visiting Contact Us and Call us