How long does it take to get a divorce in India

How long does it take to get a divorce in India?

Every couple seeking separation has to confront this question sooner or later.

The laws relating to marriage and divorce are complex and manifold and they vary based on religion and customary practices of such couple.

However, there are 2 widely acceptable ways of ending a marriage. Both have different timelines.

In divorce by mutual consent both parties agree to separate without blaming each other for anything. The court procedure is relatively simple and less time consuming. The parties can mutually agree division of assets, maintenance and child custody etc.

Sometimes one partner wishes to end the marriage due to the behavior of the other partner. In this case such partner who wishes to separate can initiate one sided divorce proceedings without the consent of other partner. The party seeking one-sided divorce will have to state certain grounds which caused cruelty and thus resulted in marital breakdown. The reasons should qualify as cruelty.

As per the marital laws in India, cruelty is generally understood to be: -

i. any form of mental, physical or financial harassment,

ii. not performing marital responsibilities,

iii. willful withdrawal from the company of another partner etc.

The definition of cruelty is very broad, and it does not discriminate between man and woman so either partner can file for a unilateral divorce on the grounds of cruelty. There are numerous judgments of various High Courts and the Supreme Court of India as to what constitutes cruelty in marriage.

Timeline: 6 months from the date of presenting the petition up to a maximum period of 18 months.

Such mutual petition is subject to the below conditions: -

i. The marriage should be atleast one year old in order to be eligible for applying for divorce by mutual consent.

ii. Thie parties must be living separately from each other for a period of atleast one year before filing of the petition.

Once these two conditions are fulfilled, a mutual consent divorce can be filed and the court generally grants divorce after completion of the 6 months waiting period from the date of filing such petition.

There are certain exceptional circumstances when the Family Court can waive the 6 months period and divorce can be granted even before the 6 months cooling period, but it is subject to the discretion of the court. The 6-month cooling period is mandatory and cannot be waived as a matter of right.

Timeline: Same time as any ordinary civil suit or court proceeding i.e. 3-5 years.

This is an expensive and time-consuming approach as it involves a comprehensive legal process where the parties have to submit evidence, call for witnesses and the court has to do fault finding. Many times, allegations related to cruelty are trivial and the court has to get into fault finding for no good reason. Such petitions are unilateral, each party is at liberty to make accusations against the other. Such petitions are often accompanied by miscellaneous / interim applications for maintenance, child custody, visitation rights etc. which can considerably delay the process. 

The Appeal from such proceedings lies with the Division Bench of the High Court where such Family Court is situated. The time taken to resolve matrimonial disputes before High Court and Supreme Court may be over and above the average time taken to complete any matrimonial dispute before the trial courts. 

In extreme cases contested divorce proceedings may also be accompanied by criminal prosecution in the nature of domestic violence dowry, or other criminal proceedings related to economic exploitation, physical abuse etc. Such proceedings may run separately over and above the divorce proceedings and parties may have to face multiple court proceedings for a marriage that has gone sour!

While contested divorce may sound scary, expensive and time consuming, it is necessary in instances where the affected party is a victim of matrimonial offenses such as economic abuse, unimaginable mental agony along with humiliation, exploitation, physical violence etc. which cannot be cured in the ordinary course of discussions between the parties. Such occasions may be rare and not all matrimonial wrongs demand extensive fault finding by the courts. The parties should exercise discretion and engage in meaningful discussions with their Advocate, Counsellor, Mediators, Friends and Well Wishers in order to anticipate the need for initiating such drastic measures.

Yes. But parties must be open to suggestions. Communication is the key. Innovative solutions and empathy can go a long way in resolving long and bitter disputes.  

Mediation & Effective Counselling - Ray of Hope

Unilateral or One-Way divorce proceedings often rely on mediation and counselling. The parties may often be persuaded to either reconcile their differences or part peacefully without the court having to get into fault finding. Offering innovative solutions through mediation can be a win-win situation for both the parties. In such cases the court can at any stage of the contested divorce, convert such petition into a mutual divorce petition and grant divorce. This can cut down the litigation expenses and reduce the length of the proceedings.

The shortest route is through mutual consent.

The Parties should consider the pros can cons of unilateral divorce before taking any decision regarding ending their marriage via contested route. Mediation and Marital Counselling are the best alternatives to reduce the time taken to finalize divorce and to cut down on the litigation costs. This also saves the couple, their children and other family members from the trauma of allegation mongering and fighting long and bitter legal battles.