How to file a Divorce petition in Kerala
Hindu Divorce, Muslim Divorce, Christian Divorce, Time line for Divorce
To file a divorce petition in Kerala, you can follow these general steps:
Consult a lawyer: Before filing for divorce, it's always recommended to consult a lawyer to understand the legal implications and get legal advice.
Draft the petition: The lawyer will help you draft the divorce petition, which should include details like the reasons for seeking divorce, information about the parties involved, details of children (if any), and other relevant information.
Submit the petition: After drafting the petition, you need to file it in the family court having jurisdiction over your area of residence. You will need to submit the original petition along with a certain number of photocopies. You will also have to pay the court fees.
Serve notice to the spouse: Once you file the petition, the court will issue a notice to the other party, informing them about the divorce petition. The notice will give the other party a chance to respond to the petition.
Attend court hearings: After filing the petition, you will have to attend court hearings as scheduled. The court will hear both parties and decide on the case based on the facts presented.
It's important to note that divorce laws vary depending on the situation and circumstances of the parties involved. Therefore, it's recommended to consult a lawyer and seek legal advice before filing for divorce in Kerala.
Grounds for Divorce: Hindu Marriage
Under Hindu Marriage Act, 1955, there are several grounds on which a Hindu marriage can be dissolved. These grounds are as follows for filing a Divorce petition in Kerala:
Adultery: If a spouse has engaged in sexual intercourse with someone else outside of the marriage, it can be considered as adultery and can be grounds for divorce.
Cruelty: If a spouse has subjected the other spouse to mental or physical cruelty, it can be grounds for divorce. Cruelty can include physical abuse, verbal abuse, and even neglect.
Desertion: If one spouse has deserted the other spouse without any reasonable cause for a continuous period of at least two years, it can be grounds for divorce.
Conversion: If one spouse has converted to another religion, it can be grounds for divorce if the other spouse does not wish to continue the marriage.
Mental disorder: If a spouse is suffering from a mental disorder that makes it impossible for them to continue the marriage, it can be grounds for divorce.
Venereal disease: If a spouse has contracted a venereal disease in a communicable form, it can be grounds for divorce.
Irretrievable breakdown of marriage: If the marriage has broken down irretrievably and there is no chance of reconciliation, it can be grounds for divorce.
Grounds for Marriage : Muslim Marriage
In Muslim law, divorce is known as 'Talaq' and there are different types of Talaq, each with its own set of conditions and requirements. The grounds for divorce under Muslim law are as follows:
Talaq-e-Sunnat: This is the most common form of divorce under Muslim law, and it is based on the traditional practices of the Prophet Mohammed. The husband can pronounce Talaq orally, in writing, or through electronic means, and it becomes effective after the completion of the iddat period (a period of waiting after the divorce is pronounced).
Talaq-e-Hasan: This type of divorce involves three pronouncements of Talaq, with a waiting period of one month between each pronouncement. If the husband does not withdraw the divorce during the waiting period, the divorce becomes final after the third pronouncement.
Talaq-e-Ahsan: This type of divorce involves a single pronouncement of Talaq during a period of purity (tuhr) when the wife is not menstruating, and no sexual relations have taken place between the spouses during that period. The divorce becomes effective after the completion of the iddat period.
Khula: Khula is a form of divorce initiated by the wife, where she seeks a dissolution of the marriage. The wife must offer something in exchange for the divorce, such as returning the mahr (dowry) or giving up some of her rights in the matrimonial property.
Faskh: Faskh is a form of divorce initiated by a court or a Qadi (Islamic judge) on various grounds, such as cruelty, adultery, impotency, apostasy, and non-payment of maintenance.
Grounds for Marriage : Christian Marriage
In India, the Christian personal law allows for divorce on the following grounds:
Adultery: If one spouse has committed adultery, the other spouse can file for divorce. Adultery refers to voluntary sexual intercourse between a married person and someone other than their spouse.
Cruelty: If one spouse has treated the other with cruelty, causing physical or mental harm, the other spouse can file for divorce.
Desertion: If one spouse has deserted the other for a continuous period of at least two years without reasonable cause, the other spouse can file for divorce.
Conversion: If one spouse has converted to another religion and the other spouse does not wish to continue the marriage, the latter can file for divorce.
Mental disorder: If one spouse is suffering from a mental disorder that makes it impossible to continue the marriage, the other spouse can file for divorce.
Irretrievable breakdown of marriage: If the marriage has broken down irretrievably and there is no chance of reconciliation, either spouse can file for divorce.
How long it will take to get Divorce from courts.
The time it takes to obtain a divorce from Indian courts can vary depending on several factors, including the complexity of the case, the willingness of both parties to cooperate, and the backlog of cases in the court.
In general, an uncontested divorce in India can take around 6 to 8 months from the date of filing the petition. This is assuming that both parties agree to the terms of the divorce and there are no major disputes or complications.
Contested divorces, on the other hand, can take much longer, often lasting several years. In these cases, the court will need to hear evidence and arguments from both parties, which can involve multiple hearings and the examination of witnesses.
Timeline for Mutual Divorce
The timeline for obtaining a mutual divorce in India can vary depending on several factors, including the court where the case is being heard and the efficiency of the legal process. However, here is a general timeline for a mutual divorce in India:
Filing of the petition: Both parties must file a joint petition for divorce in the appropriate family court. The court will usually give a date for the first motion for the divorce, which is usually scheduled within a week or two.
First Motion: Both parties must appear in court and make a joint statement regarding their willingness to seek a divorce. If the court is satisfied that the petition is genuine and the parties have irreconcilable differences, it may grant a six-month cooling-off period to the parties to reconsider their decision.
Second Motion: After the cooling-off period of six months, both parties must appear in court again for the second motion. If the parties continue to seek a divorce and the court is satisfied that there are no further obstacles to the divorce, it may grant a final decree of divorce.
Waiver of 6 months cooling period.
In India, when couples file for mutual divorce, there is a mandatory six-month cooling-off period between the first and second motions of divorce. This period is meant to give the couple time to reconsider their decision and work on resolving their issues.
However, in some cases, the parties may wish to waive the six-month cooling-off period and proceed with the divorce immediately. In such cases, the parties can file a joint petition in the family court requesting a waiver of the cooling-off period.
The court may grant a waiver of the cooling-off period in the following situations:
If the parties have been living separately for a considerable period, and there is no chance of reconciliation.
If the marriage has broken down irretrievably, and further delay would only prolong the agony of the parties.
If the parties are in agreement about the waiver of the cooling-off period.
Conclusion on filing a Divorce petition in Kerala
Obtaining a smooth divorce decree involves careful planning and strategic decision-making. Here are some tips that can help you obtain a smooth divorce decree:
Hire an experienced lawyer: An experienced lawyer who specializes in family law can help you navigate the legal system and make informed decisions that can lead to a smoother divorce process. They can also help you understand your rights and obligations under the law.
Communicate effectively with your spouse: Effective communication with your spouse is crucial to a smooth divorce process. Try to remain calm and respectful when discussing important matters such as child custody, division of property, and financial matters.
Be willing to compromise: In order to obtain a smooth divorce decree, both parties may need to compromise on certain issues. Be willing to negotiate and find common ground in order to reach a mutually beneficial agreement.
Focus on the future: Instead of dwelling on the past, focus on the future and what you want to achieve after the divorce. This can help you make better decisions and move forward in a positive direction.
Be honest and transparent: Honesty and transparency are essential for a smooth divorce process. Be upfront about your financial situation and disclose all relevant information to your spouse and your lawyer.
By following these tips, you can increase the chances of obtaining a smooth divorce decree and minimize the stress and uncertainty that often comes with divorce.