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The Different Types of Divorce Petitions in India

Matrimonial Disputes » The Different Types of Divorce Petitions in India

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The subject of divorce has always had a negative connotation attached to it in Indian society. That is not surprising as, since olden times, marriage has been seen through the lens of a holy union between man and wife. As such, no concept of marriage existed in India until the British came and enacted the Divorce Act of 1869, which also limited the divorce opportunity to only Christians.

There are basically two kinds of divorce petitions in India – contested and uncontested divorce. This blog talks about both types of divorce, their grounds, and everything else you need to know about the kinds of divorces.

Contested Divorce

According to Section 13 of the Hindu Marriage Act, contested divorces occur when one spouse wants to file for a divorce and the other objects. These types of divorce in Hindu law are the messier kind of divorce and can be filed either by the husband or wife.

Uncontested Divorce

When the couple unanimously files for a divorce together, it is called a divorce under mutual consent or uncontested divorce. As per Section 13B of the Hindu Marriage Act of 1955, either the husband or wife can file an uncontested divorce as long as they belong to either the Hindu, Sikh, Jain, or Buddhist community. However, divorce is not granted instantly, as the court orders a cooling-off period of 6 months before the final hearing so that no decision is taken hastily.


Also Read:- The High Rate Of Divorce In India And Its Effect On Society

Grounds for Obtaining Divorce

There are a few grounds under which either the husband or wife can file for a divorce in any court of law. These are discussed below.

  • Adultery –  When either of the partners has had sexual relations with a person other than his or her spouse, it is seen as a valid ground for divorce.
  • Cruelty – Has treated their spouse with cruelty. This includes both mental and physical abuse.
  • Desertion – Has deserted or has been neglecting their partner for a period of two years or more before the petition has been presented in court
  • Conversion – Has converted to a religion other than Hinduism
  • Mental Disorder – Has been suffering from mental illness, arrested development, schizophrenia, or any other psychological disorder that makes them unusually aggressive or unable to function reasonably and requires medical care. 
  • Venereal Disease  – Has been suffering from any kind of sexual and communicable disease (including Leprosy too).
  • Non-resumption of cohabitation – Cohabitation has not resumed for a period of 1 year or more after filing for a judicial separation.
  • Non-restitution of conjugal rights – Cohabitation has not been restored even after a decree has been passed previously or either partner has wilfully refused to consummate the marriage.
  • Presumed Dead – The whereabouts of either spouse have been unknown for over 7 years and hence he/she has been presumed dead

Renouncement – Has renounced worldly life and affairs after entering a religious sect, cult, or order.

Special Provisions for Wif

There are a few provisions or grounds, especially for the wife in the procedure for divorce in India. These are mentioned below.

  • In case the husband was already married or married again after the commencement of the marriage with the aggrieved party.
  • In case the husband has engaged in bestiality, rape, or sodomy after their marriage.
  • In case the husband has not complied with a previous court order regarding maintenance since separation and they have not cohabited for 1 year or more.
  • In case the marriage took place before the wife was still underage.

Procedure For Mutual Consent Divorce

There are a few conditions before the mutual divorce process in India can start. These are:

  • The couple has been married for at least 1 year
  • The couple has been living separately for 1 year or more
  • They are unable to live together as husband and wife
  • They mutually agree that their marriage cannot be saved and separation is the best option

After these conditions are met, the following steps are to be followed.

  • The divorce petition must be filed in the family court of the location they last lived as a couple
  • This is followed by the first hearing, where the court listens to the petitions of both parties and records their statements
  • The court adjourns for 6 months after which the second hearing happens
  • If both parties confirm that they still want to divorce after the six-month period, the court examines all evidence and grants a divorce.

Procedure for Contested Divorce

The contested divorce procedure in India starts with either spouse filing a divorce based on any of the valid aforementioned grounds. Then, the process goes as follows:

  1. If the court is satisfied with the petition, it orders the opposing party to appear before it at a later date along with their lawyer.
  2. The court then suggests mediation. If that fails too, the case will continue.
  3. At a later fixed date, both parties are made to appear in front of the court. It records their final statements and cross-examines all presented evidence and witnesses.
  4. At a final hearing, the court will pass a divorce decree if all goes well. The order can also be appealed against by the aggrieved party within 3 months of the original decree.

Also Read:- How Effective Are India’s Criminal Laws?

Conclusion

H2 Conclusion

Whether it is a mutual consent divorce or a contested one, there is no way it is not stressful for the persons going through a separation. On top of that is the hassle of courts and lawyers, who often delay processes. All this adds up to become a financial and emotional drain on the couple. That is why it is a good idea to invite law firms like Lex Solutions to take care of your divorce proceedings, as they are professional enough to not try to rip you off while handling everything competently.

 

As a final note, it is important to remember that sometimes, one or the other types of divorce are inevitable and that it is better to move on than to try living with someone with whom it is not working out. Sure, marriage is sacred when it is perfect, but no one deserves to live in the uncertainty that comes with a marriage that is being kept together by force.

FAQs

1. Is the 6 months cooling-off period absolutely necessary for a mutual divorce?

No. While the provision for the 6-month break is there to prevent hasty decisions, several recent decisions have revoked it when the court and the couple are in agreement that they cannot live together.

2. Are there maintenance provisions under the Hindu Marriage Act?

Yes, there are maintenance provisions for both alimony and child support under the Hindu Marriage Act.

3. Is there a difference between what documents need to be submitted for different types of divorce in India?

Yes. There is a difference between the documents that need to be submitted for different types of divorce in India.

4.Which section of the Hindu Marriage Act mentions mutual divorce?

Section 13-B of the Hindu Marriage Act mentions mutual divorce.

5. Where is Lex Solutions based?

Lex Solutions is based in Chandigarh.

According to estimates, 65% of people living in urban areas around the world are tenants. This is also true in India due to the sky-high prices of real estate in the major cities and the large population of migrant workers who live there. Nevertheless, living as a renter can be a peaceful arrangement, but occasionally there are situations where one can run into rental problems and other connected issues, such as receiving an unauthorized eviction notice or the erratic behaviour of the landlord.

Are you, however, a renter who is experiencing such problems or simply curious about what to do if you ever find yourself in a similar situation? In that case, allow us to help you through this blog, which will briefly discuss about the several protections against landowner harassment.

What does illegal eviction of tenants mean?

An illegal eviction, also known as an unlawful termination of tenancy, typically happens when a landowner forbids a tenant from entering a rental property or removes the tenant’s belongings from the property through the use of force, intimidation, or other methods (such as cutting off utilities or changing the locks). However, if the landowners evict you without taking the proper legal action, they are breaking the law.

How Do You Respond When Your Landlord Forcibly Evicts You?

Almost every state has rental control legislation pertaining to tenant protection, and each state has established specific circumstances for which the landlord may lawfully evict the renter. Additionally, a tenant has a legal right under the law to appear in court and defend himself against unlawful eviction, and some of those accessible remedies for tenants are discussed below:

Grounds for eviction

Non-payment of rent, breach of the lease, property damage, and illegal activity are the most typical grounds for evicting a renter. The tenant must therefore review the provisions of the State Rent Control Act to ascertain the grounds for eviction specified in the Act. In addition, if the tenant is being evicted for any reason other than those specified in the Act—which is considered wrongful eviction—they must seek the help of an eviction lawyer and the enforcement agencies to halt this.

Suit for injunction

A renter might be unable to leave a property when asked to do so for a number of reasons, such as having a medical emergency or having his elderly parents live with him. When this happens, the tenant has the option to file a case in the appropriate court to obtain an injunction that will prevent them from being evicted for any other grounds (other than those listed in the State’s Rent Act). Along with the assistance of housing rental lawyers, the renter should take this action, if they are violently evicted without providing them with adequate notice.

Rent Controller

In the event that the tenant receives a notice of eviction on pretences, they should go see the rent controller of the relevant jurisdiction and explain why they believe the notice of eviction is invalid. Additionally, following the tenant eviction laws, the court will summon the tenant, who will then be forced to submit his or her case and the arguments supporting the necessary evidence.

Notice of rent payment

If the landowner claims that he has not received the required rent and lists this as the reason for serving the notice of eviction, the tenant may legitimately ask him or her to send the information to his bank account so that he can conduct the transaction and deposit the outstanding rent. Moreover, after agreeing to it, the landowner must give the tenant the information within 10 days of the date they received the notice.

Also Read: Lex Solutions – Your One-Stop Destination For All Things Legal

Steps that you must follow to legally evict a tenant in India

Because eviction laws differ from state to state, the following are typical recommendations for evicting a renter. Nevertheless, you can contact the tenants lawyer of Lex Solutions if you need any assistance.

Serve the Tenant With a Termination Notice

The tenancy must be terminated before a landlord can evict a tenant for cause, and the landowner shall provide the tenant with the required notice before taking legal action to do so. Three different kinds of termination notices are generally available:

  • Pay Rent or Quit: The tenant is required to pay the rent within a predetermined period (often three to five days) or leave the rented property.
  • Cure or Quit: A breach of the rental agreement or lease must be remedied by the tenant within a set amount of time.
  • Unconditional Quit: Without a chance to correct the offense or pay the rent, the tenant must leave the property.

But to evict a tenant without good reason, the landlord must give the renter a 30- or 60-day notice to leave the premises.

File an Eviction Lawsuit

If the renter does not correct the issue or quit the property within the allotted time, the landowner must initiate an unlawful detainer case in small claims court. Following this, landlords have the right to evict tenants by serving a legal notice to tenants to vacate their premises.

Wait for the Tenant’s Answer

Within the time frame given on the summons, the tenant may “answer” the complaint. The renter may, however, use the response to refute the charges or present a defence. And, for instance, a tenant might claim that the eviction was carried out in retaliation or that the unpaid rent was used to pay for repairs the landlord refused to undertake.

Receive a Judgment for Possession

A default judgment is granted to the landowner if the tenant ignores the eviction notice India. Moreover, the landowner is entitled to take ownership of the property if the renter replies with an answer but the court rules in his or her favor.

Remove the Tenant

Despite having the right to reclaim the property, the landlord is unable to evict a renter without the help of a law enforcement official. Nevertheless, the tenant will be informed of the legal eviction and the number of days they have to leave once such an official receives the judgment and the cost. Moreover, the law enforcement authority may physically evict the tenant if they don’t leave the property in the allotted period.

Also Read: Introduction To The Indian Judicial System And Court Hierarchy

Summing Up

Now that you are aware of the characteristics of evictions and how to deal with them in a nation like India, you must use them as needed. Additionally, as a landowner, you must evict a problematic renter per the law. And, to ensure that you are acting legally, consult a local landlord-tenant law attorney in your area. For such assistance, a legal firm in Chandigarh, lexsolution can offer you a one-stop solution.

FAQs

  • Can a tenant seek an injunction against the landlord?

According to the state rental rules present in India, a tenant does not have the right to issue an injunction against the landlord. Moreover, injunction procedures are always discretionary, and a court of law cannot grant a perpetual injunction in favour of the plaintiff against the right owner if the plaintiff is only a trespasser.

  • Can police evict a tenant in India?

Even if the renters behave disrespectfully, the police cannot assist in reclaiming the property. However, the only court with the authority to order the eviction of a tenant is the court of the rent controller under whose jurisdiction the property is located. 

  • When a tenant can get the benefit of protection against eviction?

If the tenant can show that the landlord gave his written approval to the subtenant, he is entitled to protection from eviction. Additionally, it disallows any other consent, including implied or oral permission.