Divorce procedure in Mumbai & Pune-Maharashtra

Divorce Procedure in Mumbai & Pune, Maharashtra

Divorce procedures in Mumbai and Pune follow the legal framework established by the Indian divorce laws, primarily governed by the Hindu Marriage Act, 1955, the Special Marriage Act, 1954, and other personal laws based on the religion of the spouses. The process involves various stages, including filing a petition, serving notice to the other party, court proceedings, and obtaining a divorce decree. Let’s go through the steps in detail.

1. Types of Divorce in India

- Mutual Consent Divorce: Both parties agree to end the marriage amicably and settle matters related to alimony, child custody, and property division.

- Contested Divorce: One spouse seeks divorce without the consent of the other, based on specific grounds such as cruelty, adultery, desertion, conversion, mental disorder, or other grounds mentioned under the respective personal laws.

Procedure for Mutual Consent Divorce

1. Preparation of Petition:

- The spouses prepare a joint petition for divorce, which includes the terms of settlement regarding child custody, maintenance, and division of assets. This petition is typically filed under Section 13B of the Hindu Marriage Act or Section 28 of the Special Marriage Act.

2. Filing of Petition:

- The petition is filed before the Family Court in Mumbai or Pune, depending on the jurisdiction where the couple resides. The couple must have lived separately for at least one year before filing.

3. First Motion Hearing:

- The court schedules the first hearing, where both spouses appear in court and confirm their mutual consent to divorce.

- The court may attempt to reconcile the couple, but if reconciliation fails, it records the statements of both parties.

4. Cooling-off Period:

- The court usually provides a six-month "cooling-off" period to give the couple time to reconsider. However, in recent cases, the Supreme Court has ruled that this period can be waived in exceptional circumstances where the marriage is irretrievably broken.

5. Second Motion Hearing:

- After the cooling-off period, the couple appears before the court for the second motion. If the court is satisfied that there is no possibility of reconciliation, it grants the divorce decree.

6. Final Decree:

- Once the court passes the final decree, the marriage is legally dissolved.

Procedure for Contested Divorce

1. Grounds for Divorce:

- The petition must be filed on one of the grounds specified under the relevant personal law. Common grounds include cruelty, adultery, desertion, mental disorder, conversion, or incurable diseases.

2. Filing of Divorce Petition:

- The spouse seeking the divorce (petitioner) files a petition before the Family Court in Mumbai or Pune, depending on the place of residence.

3. Service of Notice:

- A notice is served to the other spouse (respondent), informing them about the divorce petition and the grounds on which the divorce is sought.

4. Response from the Respondent:

- The respondent may file a reply to the petition, contesting the claims or agreeing to the divorce.

5. Court Hearings:

- Both parties present their evidence and arguments during multiple hearings. The court examines the evidence, including witness statements, documents, and expert opinions.

6. Attempts at Reconciliation:

- The court may attempt to reconcile the parties or refer them to mediation. If these efforts fail, the court proceeds with the case.

7. Judgment and Decree:

- Based on the evidence presented, the court may either grant or reject the divorce. If granted, a divorce decree is issued, which legally ends the marriage.

Additional Considerations in Divorce Cases

- Child Custody: Courts prioritize the best interests of the child, with custody being awarded to either parent or shared as per the agreement or court order.

- Maintenance/Alimony: The court may direct one spouse to pay maintenance or alimony to the other, considering factors such as income, lifestyle, and financial dependence.

- Property Division: While there is no fixed law on property division, settlements are made based on mutual agreements or through court orders.

Jurisdiction of Family Courts in Mumbai and Pune

Family Courts in Maharashtra have exclusive jurisdiction over matters related to marriage and divorce. Cases should be filed in the court that has jurisdiction over the area where the couple last resided together or where the respondent currently resides.

FAQs

1. What are the legal grounds for obtaining a contested divorce in Mumbai or Pune?

Legal grounds for a contested divorce include cruelty, adultery, desertion for at least two years, conversion to another religion, mental disorder, incurable disease (like leprosy), and presumption of death if one spouse has not been heard from for seven years or more.

2. Can the six-month cooling-off period in a mutual consent divorce be waived?

Yes, the Family Court has the discretion to waive the six-month cooling-off period in exceptional cases where the marriage is irretrievably broken, and there is no possibility of reconciliation. A request must be made to the court for the waiver.

3. How long does the divorce process take in Mumbai and Pune?

- Mutual Consent Divorce: It typically takes 6 to 18 months, depending on whether the cooling-off period is waived.

- Contested Divorce: The duration can vary widely, often taking several years due to the complexity of the case, evidence, and court proceedings.

4. What is the cost of filing a divorce petition in Maharashtra?

The cost varies depending on lawyer fees and court charges. The filing fee for a divorce petition is nominal, but legal fees can range from INR 20,000 to INR 2,00,000 or more, based on the complexity and length of the proceedings.

5. Can a foreign national file for divorce in Mumbai or Pune?

Yes, if one spouse is a foreign national, the divorce can still be filed in Mumbai or Pune, provided the marriage was solemnized in India or the couple has lived in the jurisdiction for a significant period.

6. How is child custody decided during divorce proceedings?

Child custody is determined based on the child's best interests, considering factors such as the child's age, parents' financial stability, lifestyle, and emotional bonding. Courts may grant joint custody, physical custody to one parent, or visitation rights to the non-custodial parent.

7. What happens if one spouse refuses to appear in court for the divorce hearings?

In a mutual consent divorce, if one spouse refuses to appear, the process may be stalled, and the petition could be dismissed. In a contested divorce, the court may proceed ex parte (in the absence of the other spouse) if they fail to appear despite being duly notified.

8. Is it possible to change the jurisdiction of a divorce case from Pune to Mumbai or vice versa?

Yes, a transfer application can be made to the Supreme Court or High Court to change the jurisdiction of the divorce case for valid reasons, such as convenience or safety concerns.

9. Can mediation help in resolving a divorce dispute?

Mediation is encouraged by the courts as a means to resolve divorce disputes amicably. If successful, it can help avoid lengthy litigation and lead to a mutually agreeable settlement.

10. What documents are required for filing a divorce petition in Maharashtra?

Key documents include:

- Marriage certificate

- Address proof of both spouses

- Photographs of the marriage

- Evidence supporting the grounds for divorce (in contested cases)

- Income statements for maintenance and alimony claims

- Identity proofs of both parties

Conclusion

Divorce procedures in Mumbai and Pune are structured around legal statutes that ensure fair dissolution of marriage. Whether opting for a mutual consent divorce or a contested one, understanding the steps involved, necessary documents, and possible legal challenges can help in navigating the process smoothly. Consulting an experienced family lawyer is highly recommended to ensure compliance with legal requirements and to protect one's rights.

Disclaimer: This information is intended for general guidance only and does not constitute legal advice. Please consult with a qualified lawyer for personalized advice specific to your situation.

Adcocate J.S. Rohilla (Civil & Criminal Lawyer in Indore)

Contact: 88271 22304

www.jsrohilla.com