Judicial separation allows couples to continue living separate lives while still being legally married. The process begins with the filing of a petition by one spouse. The petition must state the reasons for the separation, including any violent or abusive behaviour on the part of the other spouse. A judicial separation petition can be filed within the first year of marriage, unlike a divorce petition. Under Section 10 of the Hindu Marriage Act, 1955, any partner who is harmed by another partner can lodge a petition for Judicial Separation before District Judge and the requirements must be fulfilled, Under the Hindu Marriage Act, marriage between a husband and a wife should be appropriately observed.
If both parties agree to dissolve their marriage cordially, it is more peaceful than fighting in Court and slandering one another. They may file a petition at a District Court under amendment Section 13B of the Hindu Marriage Act, 1955 so that the court can grant them the divorce decree. The divorce will not be affected by proceedings before the Panchayat. It requires processing through Matrimonial Courts. The Hindu Marriage Act, 1955 Section 13-B allows couples to seek divorce by mutual consent. Consensual divorce stipulates that both spouses agree to peaceful separation. It is easy to legally dissolve a marriage by mutual consent. Section 13-B (2), Hindu Marriage Act, 1955, states a six-month cooling period between the first and last motions for divorce to explore the possibility of settlement and cohabitation. This cooling period is also known as the statutory period.
Although there is no need for any advocate or lawyer for the process of mediation. But, if your spouse has hired the advocate for the proceedings, you should also hire a divorce lawyer for yourself. He will assist you in the case and can also give you legal advice related to your case. A divorce lawyer knows every law related to your case. He can better assist you.
Conjugal Rights Restitution is a legal entitlement that is based on Section 9 of the Hindu Marriage Act. The aggrieved party may apply to the district court for restitution of conjugal rights if the husband or wife is withdrawn from the other partner’s company without valid. In simple terms, the restitution of conjugal rights is regaining the companionship of a spouse who has abandoned the relationship for no apparent reason. When either the husband or wife has withdrawn from the other’s society without sufficient justification, the aggrieved party may petition the district court for restitution of conjugal rights, the court has to examine if the petition is true and there is no legal reason why the application should not be granted the restitution of conjugal rights.
Yes, you can file divorce case in India, court will issue notice to you and if you don’t appear and defend, decree of divorce would be passed in your absence. If you are considering filing for divorce without coming to India, there are a few things you should keep in mind. First, it is important to understand that divorce law in India is different than divorce law in other countries. Therefore, it is important to consult with an experienced divorce lawyer in India who can advise you on the specific requirements and procedures for filing for divorce in India. Additionally, you will need to have all the necessary divorce documents translated into Hindi or another Indian language before you can file for divorce in India. Finally, it is important to note that filing for divorce without coming to India may make it more difficult to resolve any child custody or financial issues that may arise during the divorce process. Therefore, it is important to consider all these factors before deciding whether to file for divorce without coming to India.
If a Non-Resident Indian (NRI) married in India wants a mutual consent divorce, then he/she can do so by filing a petition in India or in the country where both are residing. The Indian law provides for this exception of filing a divorce in another country. They can seek divorce by mutual consent under the country’s divorce laws related to foreign marriages. The Indian legal system will recognize the divorce only if it is with the consent of both the parties.
Courts in most parts of India grant separation or divorce under a statutory system, which requires an application and a hearing before an officer of the court. Judicial separation under the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954 are granted by magistrates. Before any application is moved to court headed by a magistrate no party can demand payment of maintenance. To obtain a decree of judicial separation, one of the five facts need to be proved, and these facts are the same as in a divorce petition: adultery, unreasonable behaviour, desertion, two years’ separation with consent, or five years’ separation. Judicial separation is a legal break up by court which later may convert into a patch up. In simple words, judicial separation refers to release from matrimonial duties or obligation for certain period. The objective of court to give judicial separation to the aggrieved party is to think about their relationship and give it another chance before divorce. Judicial separation can be divorce but divorce can never be judicial separation and judicial separation is a ground for divorce. And it is not necessary for the aggrieved parties to live separately. They can live under same roof. Judicial separation is release from duties not from the house.
If you are filing for divorce on the grounds of mutual consent, then both spouses must be present in court. However, if you are filing for divorce on the grounds of cruelty, desertion, or adultery, then only the spouse who is filing for divorce needs to be present. Regardless of the grounds for divorce, both spouses will need to attend the final hearing in order to finalize the divorce. Even though it is may necessary for you to keep yourself present before court on each date, your lawyer should be present there as any adverse order should not be get passed against you.
So, in case of divorce by mutual consent, it usually takes 18-24 months. You have to visit the court on two occasions i.e. First Motion and Second Motion.
You can simply mention in joint petition that efforts of reconciliation were made by family and friends, however same failed and hence due to temperamental issues you intend to dissolve your marriage. In case of a contested divorce, the period is longer, ranging from three to five years because of complications and possibility that either party can challenge the decision in the High Court and Supreme Court.
The Allahabad High Court has held that Divorce decree by consent is also appealable if the consent is disputed and is alleged to be not free & bona fide in the absence of inquiry by court. The said judgment was delivered in the matter of Smt. Pooja Vs. Sh. Vijay Chaitanya. As per Section 23(1) (bb) of the Hindu Marriage Act, 1955 also casts an obligation upon the courts in the matter of divorce by mutual consent to satisfy itself that the consent has not been obtained by force, fraud or undue influence. Thus, the Court is obliged to make requisite inquiry in the matter before proceeding to pass a decree of divorce by mutual consent”. The Bench also observed and cleared out on the aspect that Section 28 of the Hindu Marriage Act, 1955 which permitted filing of appeal against the decrees and orders passed under the Act placed no rider on filing appeal even against a consent decree.
