Frequently Asked Questions

Below are the high level steps involved in a divorce litigation:

• Discuss the ground(s) on which you seek divorce, with your lawyer. Apprise your lawyer with all the relevant facts.
• Based on your discussion with your lawyer, your case will be drafted.
• The case is then filed in appropriate Family Court.
• Upon filing case, the matter is listed in the Court for consideration. If Court is satisfied with the case file, Court issues notice/summons to other party.
• Upon receiving notice/summons, opposite party will have to file reply. If the opposite party despite service of notice/summons does not appear before the Court, then Court may proceed in the matter in the absence of other party.
• Issues are framed by the Family Court. Issues basically mean point of adjudication by the Court and on which parties have to give their respective evidence.

Following is the list of various divorce laws for different religion in India:

• Hindu (including Sikhs, Jains and Buddists) :Hindu Marriage Act, 1955
• Muslims :Dissolution of Muslim Marriages Act, 1939
• Christians :Indian Divorce Act, 1869
• Parsis :The Parsi Marriage and Divorce Act, 1936
• For all religions :Special Marriage Act, 1954

There is no definite time period in which Maintenance can be granted. However, one can expect interim Maintenance to be granted/rejected in few months. Interim Maintenance is the Maintenance amount granted till the time legal proceedings are over.

Yes, if your spouse earns more than you then you may get the Maintenance

Yes, Maintenance case can be filed while you’re married.

Yes, maintenance can be claimed in unregistered as well as registered marriage under the provisions of Indian Law.

Domestic violence law specifically provides the right to residence. Right to residence includes in living in the shared house hold irrespective of fact whether wife has right, title or interest over the property/residence. This specific provision is inserted in Domestic Violence law to arrest the menace of abandoning the woman and children, if any, without roof and shelter in case of matrimonial disputes. DV Act also provides for alternate accommodation.

Hence, law cast a mandate on the husband to provide residence to the wife. Such residence can be shared house hold where husband and wife lived together and made such house as their matrimonial house. Alternatively, law mandates husband to provide alternate residence comparable to the one previously enjoyed by the wife while living together.

Case under domestic violence law is initiated by filing a complaint detailing all events of domestic violence before the Court of magistrate. Such complaint is generally accompanied by interim application. Magistrate trying the complaint is empowered to execute summons of the case through protection officer or by the concerned police station.

In dire case requiring urgent relief, court has power to grant ex-parte order (order in the absence of the other party). For example, wife is abandoned by the husband and she is in immediate danger of loss of roof over her head. She can approach to the Court for directions that she may not be evicted from the house rather she should be allowed to stay in the shared house hold or matrimonial home. Court under such grave circumstances is competent to pass ex-parte order restraining the husband or any other family member from dispossessing her from the shared house hold or matrimonial home.

Another important feature of Domestic violence law is that relief can be claimed not only against husband but also against in laws.

Earlier there were views the domestic violence complaint cannot be filed against women. Rationale behind such views was that Domestic violence is for the protection of women. However, this controversy is set to rest by a decision of Hon’ble High Court of Delhi. Hence, complaint for domestic violence is maintainable against female or women.

Scope of law is further widened wherein it is clarified that not only wife but any other female living in domestic relationship can seek remedy. Thus, sister or mother can claim relief against son or father and/or brother for the relief.

Domestic violence law for the first time recognizes existence of legal rights to female who are not married to claim monetary relief, residence, compensation etc from her partner. In other words, women living as “live in relationship” has given benefits, protection, right and claim under domestic violence law.

There is no definite time period in which relief can be assured to be granted. However, one can expect interim or ex-parte relief to be granted/rejected in few months. Interim relief is the relief granted till the time legal proceedings are over. Ex-parte relief is the relief given in the absence of the opposite party.

In that case, the decision regarding child custody is decided by the court.

If the husband and wife are living separately and the child resides with one party, then the other party can file a case for child custody.

The custody of the child is in question only till they attain the age of majority (18). The opinion of a child in deciding the custody is generally relevant when the child is at least nine years old. However, even if the child is less than nine years old the concerned family judge does listen to the child’s preferences.

It’s not the complete truth. For children below 5 years, the general perception is that it’s in the best interest of the child to stay with the mother but if the father is able to prove that he is a better parent, then even he can get custody.

The Hon’ble Supreme Court has held that ‘the first and paramount consideration is the welfare and interest of the child and not the rights of the parents’

If you are facing issues in your marriage, then it is always advisable to first try to resolve the issues on your own or with the help of your family member. But if the issues still persist, then going to a professional marriage counsellor is always advisable. Couples these days make very hasty decisions in ending the marriage only to regret later so before making the decision to end the marriage legally, it makes sense to try a marriage counselling.

All the marriages are not made in heaven so it’s time to accept the bitter truth and move on with life. Divorce doesn’t mean the end of life. In fact, it can really open up new ventures if you are ready to embrace the change.