Here’s a look at everything you need to know about the legal separation process in India.
| The Bombay HC has recently held that a second marriage performed by a Hindu during the pendency of an appeal against divorce, cannot be termed legally binding. The HC also held that such an act can be termed as contempt of court. |
While the concept of divorce was once frowned upon in India, times are changing. Women are no longer obligated to suffer in unhappy marriages for the sake of society. As a consequence, we are seeing an increasing number of couples moving to divorce on amicable terms, called mutual terms which many may have heard of before. In India, How Does Legal Separation Work?
However, many women in India are still confused about how divorce works. So here’s a rundown of everything you need to know about legal separation in India. The topics covered in this blog include:
- What Are the Different Laws Regarding Divorce in India?
- What is legal separation?
- Conditions to file for a legal separation
- Things to Consider for a legal separation
- What is the legal separation Procedure in India?
What Are the Different Laws Regarding Divorce in India?
- For Hindus, Jains, Buddhists, and Sikhs – Hindu Marriage Act,1955
- Christians – The Indian Christian Marriage Act,1872/ Indian Divorce Act-1869
- Muslims – Personal laws of Divorce/ Dissolution of Marriage Act,1939/ The Muslim Women (Protection of Rights on Divorce) Act,1986
- Parsis – The Parsi Marriage/ Divorce Act-1936
- Inter-religion or Inter-caste marriages – Special Marriage Act, 1954.
What is Legal Separation?
A Legal Separation occurs when both the husband and wife agree to end their marriage. Because it is a joint decision, the process is much smoother than other forms of divorce. According to the Hindu Marriage Act of 1955, both spouses have the right to file for divorce. Furthermore, the Act also allows both parties to jointly file for a legal separation.
Conditions to file for a Legal Separation
As per Section 13B of the Hindu Marriage Act, 1955, the following conditions must be met to file for a legal separation:
(i) Both spouses must have lived separately for at least one year
(ii) Both spouses must feel that they cannot live together anymore
(iii) Both the husband and wife jointly agree that their marriage has collapsed
(iv) Both parties must agree to comply and file jointly for a legal separation without any bribes being offered, undue influence, coercion or fraud
Things to Consider Before a Legal Separation
- Requirement for alimony and amount of maintenance to be paid
- Child custody issues
- Maintenance of shared properties
- Splitting of properties and assets the couple jointly own
What is the Legal Separation Procedure in India?
Step 1: Filing a Divorce Petition
A legal separation procedure starts with the filing of a divorce petition, which can be done in any of the following places:
- The court in whose jurisdiction where the couple last resided
- The court in whose juridisction where the couple’s marriage was legally recognised
- The court in the wife’s current neighbourhood
The divorce petition must be filed jointly by the parties involved, and both parties must serve the notice to the family court.
The grounds for divorce are that the spouses believe they can no longer live together and have jointly agreed to end their marriage. Another common reason for a legal separation is that the couple has been living separately for more than a year due to unavoidable differences. Both parties involved must sign the joint petition.
Step 2: Court Hearing and Inspection
Following that, both parties must appear in family court with their respective lawyers.
The petition and all supporting documents presented as proof before the court will be reviewed by the court. The court can also attempt reconciliation; if this is found to be not possible, the legal separation procedure will continue.
Step 3: Recording of Statement
After scrutinizing the petition, the the court passes an order to record the party’s statements on oath.
Step 4: First Motion
The court grants the first motion after recording statements. Following that, the couple must wait 6 months before filing the second motion. However, the second motion must be filed within 18 months of the first motion being granted.
Step 5: Second Motion and Final Hearing
You can then proceed with the final hearing before the court once the second motion is passed. Both parties must present their cases at the final hearing, and the court records their statements under oath in the family court.
However, the Supreme Court has recently determined that the 6-month interim period can be avoided if the court so desires. Courts can do so if it believes that both parties are certain about the divorce and there are no issues concerning alimony, child custody, or property.
Step 6: Divorce Decree
The legal separation procedure is completed when the couple states that they have no disagreements regarding alimony, child custody, or property division.
As a result, in order for the court to make a final decision, remember that both parties must reach an agreement. With the court’s approval, a divorce decree is passed declaring that the marriage is dissolved, making the divorce final.
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