Divorce in India is not uniform but is undergone by adhering to various laws. Depending on the Act under which a couple’s marriage was conducted, the procedure that applies to them depends on the Hindu Marriage Act, Special Marriage Act, Christian personal law, Muslim personal law or other relevant laws.
In general, all divorces in India can be classified as either mutual consent divorce or a contested divorce, where one party wants to divorce the other party refuses or objects to the terms. Knowing which category and which law applies will be your starting point to understanding what the process in front of you will look like.
If you are in such a situation, and wish to get expert advice that suits your case, you can consult a divorce lawyers in Bangalore, who will give you a clear idea of what your choices are.
What Are the Main Types of Divorce in India ?
1. Mutual Consent Divorce
The mutual consent divorce is usually the easier option. Here:
The husband or wife desires to divorce the other spouse and they both consent to the dissolution of their marriage. They jointly approach the family court with a petition. Typically terms like division of assets, maintenance payments and child related matters are agreed between the parties prior to the trial.
Since both sides are on the same side, this process tends to be faster than a contested case, but must be conducted with the court’s assurance of the consent being a true agreement and not forced.
For a detailed explanation of the step by step process, please read our detailed guide on how to do a mutual consent divorce in Bangalore.
2. Contested Divorce
When there is no such connection between spouses, a contested divorce occurs:
One Spouse Petitions for Divorce. The other spouse refuses to sign up to the divorce or challenges the grounds and claims. The court then reviews the issue, hears both sides and determines it, based on the law and evidence presented. Divorces that are contested are likely to be more time consuming and legally complex because they involve proving grounds for divorce and, sometimes, having a full trial.
For a detailed explanation of the step by step process, please read our detailed guide on how to do a contested divorce procedure in Bangalore.
Mutual Consent Divorce Vs. Contested Divorce
| Basis | Mutual Consent Divorce | Contested Divorce |
| Agreement | Both the spouses mutually agree | Disagreement exists |
| Filing | Joint Petition | Usually filed by one spouse |
| Court Process | Generally simpler | More extensive |
| Evidence | Usually limited | required |
| Duration | Usually shorter | May take longer |
Types of Divorce Based on Applicable Marriage Laws In India:
1. Divorce Under the Hindu Marriage Act
Hindu Marriage Act, 1955 is applicable to Hindus, Buddhists, Jains and Sikhs. It provides for mutually consented divorce proceedings as well as contested divorce proceedings on recognized grounds like cruelty, adultery or desertion and also lays down the procedure that needs to be followed in the family court. These are the laws that were in place before 1958.These are the laws that existed prior to 1958.
2. Divorce Under the Special Marriage Act
The Special Marriage Act, 1954 applies to marriages solemnised under this Act, including inter-faith and civil marriages that aren’t governed by a specific religious personal law. It also adheres to its own provision in case of consensual and contested divorce proceedings, and its timelines and grounds are broadly similar but have a different statutory basis in comparison to the Hindu Marriage Act.
3. Divorce under Christian Personal Law
The Indian Divorce Act, 1869 is the most important law governing divorce in India for Christians. This is the law that sets out the grounds and procedure for a Christian couple to receive a divorce from the court.
4. Divorce Under Muslim Personal Law
In India, a Muslim woman and man’s divorce is regulated both by religious personal law and other laws, including the Dissolution of Muslim Marriages Act, 1939. Depending on the legal system and situation, the right process will be one of several available divorce methods, and whether the man or woman takes the initiative in seeking a divorce.
5. Divorce under other applicable personal laws.
Other personal laws or statutes may be applicable depending on the religion and circumstances of the marriage. Before beginning a divorce action, it is best to determine which legal system is the right one for your marriage.
What are the Common Grounds for Divorce in India ?
Although mutual consent divorce does not involve fault, a contested divorce typically does need proof of legal grounds. The following grounds are all commonly recognised from the various personal laws:
- Cruelty (physical or mental) which makes it difficult for the couple to live together
- Adultery – sexual relations by one of the spouses outside of the marriage
- Desertion – abandonment of one spouse by the other for a substantial amount of time (not always reasonable)
- Any other recognized lawful reason – including change of religion, mental illness or other reason provided by the relevant legislation.
In order to get a better understanding of the legal interpretation of each of these grounds, read the upcoming dedicated blog on grounds for divorce in India.
How Do You Know Which Type of Divorce Applies to Your Situation ?
- If both spouses agree then the provisions of a Mutual Consent Divorce will be applied.
- If either spouse is not agreeable ➡ Contested Divorce applies
- Children issues may also arise in the divorce proceedings if there are disagreements about the children ➡ Child custody disputes.
- If there are money issues ➡ Maintenance / alimony issues may need to be addressed as part of the case
There are specifics to each scenario, and it is usually beneficial to speak to the best divorce lawyers in Bangalore to figure out in which you sit using your case.
How to Start the Divorce Process in Bangalore.
Step 1: An Understanding of the Applicable Divorce Procedure.
It is crucial to understand what law is applicable to your marriage and what procedure you will be subject of, before filing, namely mutual consent, or contested. Contact Us for more information on divorce procedure in Bangalore.
Step 2: Gather the Required Documentation.
Having the appropriate forms ready beforehand can help to prevent delays later on in the process. See our full checklist of documents required for divorce in India.
Step 3: Consult a Divorce Lawyer.
A seasoned divorce advocate in Bangalore will be able to assist you in analyzing your choices, building your case and representing you during the courts.
Get Legal Guidance For Your Divorce Case
It is a crucial first step to understand the applicable divorce procedure. When you are thinking about divorce or in a legal battle relating to divorce, you can take the help of an expert divorce lawyers in Bangalore and get all the legal options and further procedures.
Conclusion
Divorce in India is no one-size-fits-all affair as it is dependent on both parties’ consent and the personal law that was used to register their marriage. Whatever the situation, whether you’re dealing with a mutual consent divorce or a contested divorce, it’s important to know the framework early in the process to prepare both for the legal and the practical aspects. If any doubts remain, the legal experts can help make the process a lot clearer.
Frequently Asked Questions
1. Which Divorce is quicker in India?
Mutual consent divorce is also usually quicker because both parties have agreed to the terms and a long trial is not required. If the divorce is contested it usually takes longer, as evidence has to be presented and arguments decided by the court.
2. Is it possible for a contested divorce to be changed into a mutual consent divorce?
Yes, in many cases, once a contested divorce has been filed, spouses can later agree to terms of the settlement and make the divorce a “mutual consent divorce,” if both agree to the settlement terms.
3. What are the grounds of contested divorce in India?
Reasons for such marriages include unfaithfulness, violence, desertion, or any reason recognized by the personal law applicable to the marriage.
4. What is Divorce Law in India?
Divorce laws vary in India, depending on the religion of the parties and the type of marriage, such as the Hindu Marriage Act, the Special Marriage Act, the Indian Divorce Act (Christian marriages) and Muslim personal law and the Dissolution of Muslim Marriages Act.
5. Is it essential to hire a divorce lawyer in order to file a divorce case?
A divorce not filed with one is technically possible, but has legal and procedural complexities. A divorce lawyers in Bangalore makes it easier for you to do the right things and protect your interests.
6. What is the first step to be taken to file divorce in Bangalore?
The divorce process usually begins with determining what kind of divorce you want, what law you’ll have to use, gathering the paperwork you’ll need and then hiring a divorce attorney who will help you file a petition and present your case before the judge.
