Divorce without Mutual Consent in Kolkata

Last Updated at: Oct 07, 2020
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Divorce without Mutual Consent in Kolkata
A spouse can apply for a divorce under the grounds of renunciation when their spouse decides to not indulge in worldly affairs after accepting a religious order.

 

Under divorce without mutual consent or a non-mutual divorce, divorce is granted only on proof of fault or guilty conduct of one party and innocence of the other. The judicial system has a vested interest in protecting the institution of marriage so it is only to be expected that certain legal barriers are erected to prevent marriages from being annulled on a whim. The most common grounds for this form of divorce are cruelty and adultery.

Divorce Procedure in Kolkata

The procedure for getting a contested divorce is: a) ascertaining the ground on which you want to seek a divorce; b) collecting evidence; and c) consulting a divorce lawyer and filing a petition in the family court of Kolkata. The petition is filed in the court with all the relevant evidence/documents. The person filing the petition is called the petitioner and the erring spouse responding is the respondent.

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Grounds for Filing a Non-Mutual Divorce Petition

A non-mutual divorce petition is filed due to various reasons. From being a victim of cruel activities to being abandoned by their spouses, the list goes on. Some of the common grounds under which most non-mutual divorces are being filed in Kolkata are as follows:

  1. Adultery – A spouse when participates in an extra-marital affair involving intercourse, then their spouse can file a divorce petition on the grounds of adultery.
  2. Desertion or Abandonment – A spouse if abandoned by their spouse for more than two years, shall apply for the divorce. It is filed under the grounds of desertion.
  3. Cruelty – A spouse when injured or caused harm by the other spouse shall file for a divorce under the terms of cruelty. Here, multiple incidents are taken into consideration to confirm the extent of cruelty. 
  4. Conversion – A spouse can apply for a divorce under the ground of conversion if their spouse decides to convert into another religion. Here, the spouse applying for divorce must not be willing to convert themselves into another religion.
  5. Renunciation – A spouse can apply for a divorce under the grounds of renunciation when their spouse decides to not indulge in worldly affairs after accepting a religious order.  
  6. Not known to be alive: A spouse can apply for a divorce when they have not heard of their spouse for more than 7 years. 
  7. Communicable Disease: A spouse applies for a divorce under this ground when their spouse is known to have any serious communicable disease.
  8. Mental Disorder – A spouse shall apply for the divorce under this ground when their spouse has an incurable mental disorder. 

There are other grounds like non-resumption of cohabitation post the separation period as the court suggested.  The applicant can file for non-mutual divorce for any other reasons also. 

Filing a Divorce Petition

Summoning Respondent: Once you appoint a divorce lawyer, he/she will understand your case and, based on your suggestions, file the petition in court. Once the spouse files the petition, the court summons the respondent. If he/she turns up and enters an appearance, the matter is bi-parte; if the erring spouse prefers not to contest or come to the court, the matter proceeds ex parte (in absence).

Mediation: In case of bi-parte, the court normally refers to the parties to mediation or reconciliation so that issues can be resolved amicably. If the above fails, the respondent has to file a written statement to the petition with the necessary documents (within 90 days).

Framing of Issues: Once that is done, the court frames the issues; issues are questions that are to be decided by the court at the time of the final hearing. For instance, in a divorce on the ground of adultery, the issues would be ‘whether the respondent had sexual intercourse with X during the subsistence of marriage with the petitioner?’ There is usually more than one issue involved in the case of multiple grounds. The entire divorce proceedings will focus on gathering answers for the question/issue.

Lead Evidence: After the issues are framed, the court asks the petitioner to lead evidence on their own and/or through witnesses. Thereafter, the opposite party can cross-examine the petitioner’s witnesses. The court repeats the same for each witness from both sides. Once the petitioner’s evidence is over, respondent leads his or her evidence.

Timeline for Non-Mutual Divorce

It would take at least a year until the matter goes to court, assuming mediation does take place. Once the couple presents their evidence, the court will listen to the arguments of either side on the case. The court will only then proceed to decide the case. The court’s formal order is a decree. After this, either party may appeal in the High Court and then finally the Supreme Court. Usually, the process at the family court takes two to three years if contested vigorously. When the court grants divorce in the event of the wife not being able to sustain herself financially or have no source of income, she is entitled to an allowance as maintenance.

Document Required

  1. Address proof of husband and wife 2. Marriage certificate 3. 4 Passport-sized photographs 4. Income tax returns 5. Details of assets owned by husband and wife, both jointly and individually

Cost of Non-Mutual Divorce

The cost of a divorce depends heavily on how vigorously it would be contested or what the issues are. As lawyers usually charge per appearance, you can expect to shell out anywhere from Rs. 10,000 per hearing for a young lawyer to Rs. 1 lakh for an experienced one.