If you are stuck in such a situation, here is what to do.
Mr. Alok Verma, a 70-year-old retired professor residing in the city of Gyanpur, finds himself at a crossroads. He has been living separately from his wife, Mrs. Sunita Verma, aged 69, for the past fourteen years. They were married decades ago but drifted apart due to fundamental differences in their life goals and personalities. The separation was amicable, and they have had no contact since. They do not have any children from the marriage. Mr. Verma now wishes to obtain a legal divorce to formally end the marriage and settle his personal affairs. He is apprehensive about the legal complexities, especially at his age, and wonders if the long period of separation is a sufficient ground for a court to grant a divorce in India.
Advice in such cases
Gather All Documents: Collect all relevant documents, such as marriage proof (certificate or invitation card), identity proofs, and any evidence supporting the fact of separation, like separate residential proofs (rent agreements, utility bills, etc.).
Assess Financials: Understand your and your spouse’s financial standing, including assets, liabilities, and income. This is crucial for matters related to alimony or maintenance, should they arise.
Consider Mutual Consent: If possible, try to reach out to your spouse to explore the possibility of a divorce by mutual consent. This is the fastest and least adversarial way to end a marriage.
Stay Composed: Legal proceedings can be emotionally taxing. It is important to remain calm and approach the situation with a clear mind, focusing on a fair and final resolution.
Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think
Applicable Sections of Law
Divorce proceedings in India are primarily governed by personal laws, not criminal codes like the Bharatiya Nyaya Sanhita (BNS). For Hindus, Jains, Sikhs, and Buddhists, the Hindu Marriage Act, 1955, is applicable.
Section 13(1)(ib) of the Hindu Marriage Act, 1955 (Desertion): This section allows for divorce if one spouse has deserted the other for a continuous period of not less than two years immediately preceding the presentation of the petition. A 14-year separation is a very strong case for desertion, as it clearly demonstrates an intention to permanently end cohabitation.
Section 13B of the Hindu Marriage Act, 1955 (Divorce by Mutual Consent): If both parties agree to the divorce, they can file a joint petition under this section. They must state that they have been living separately for a period of one year or more and have mutually agreed that the marriage should be dissolved.
Article 142 of the Constitution of India: In cases of long separation where the marriage has irretrievably broken down, the Supreme Court of India has, in some instances, exercised its extraordinary powers under Article 142 to grant a divorce to do “complete justice”, even if statutory grounds are not perfectly met.
If you are the complainant
If you are the one filing for divorce (the petitioner), your path involves initiating the legal process.
File a Petition: Your lawyer will draft and file a divorce petition in the appropriate Family Court, clearly stating the grounds for divorce (e.g., desertion).
Serve the Notice: The court will issue a notice (summons) to your spouse, who is the respondent in the case, to appear in court.
Present Your Case: You will need to present evidence to support your claims of separation and desertion. This can include documents and witness testimonies.
Be Prepared for Mediation: The court often refers divorce cases to mediation to see if a settlement can be reached, especially on issues like alimony or property.
Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think
If you are the victim
If you are the respondent (the spouse against whom the petition is filed), you might feel wronged or blindsided by the legal action.
Do Not Ignore the Summons: It is crucial to appear in court on the specified date, either in person or through your lawyer. Ignoring the summons can lead to the court passing an ex-parte order in your absence.
File a Response: You must file a written statement (reply) to the divorce petition, either admitting to or denying the allegations made by your spouse.
State Your Claims: If you have any claims for maintenance, alimony, or property rights, these must be raised during the proceedings.
Engage in the Process: Actively participate in court hearings and mediation sessions to ensure your interests are protected.
Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think
How the police behave in such cases
The police have no direct role in a civil divorce case. Divorce is a matter for the Family Courts. Police involvement only occurs if a criminal complaint is filed by either party, such as allegations of domestic violence (under relevant sections of the BNS), dowry harassment, or criminal intimidation. In a straightforward divorce case based on long separation, there is no reason for police intervention.
FAQs people normally have
People often have several questions when facing such a situation.
Is 14 years of separation an automatic ground for divorce?
While not “automatic,” it is an extremely strong ground for divorce under the concept of desertion. It clearly shows that the marital bond has ceased to exist. The court will almost certainly grant a divorce on this basis, provided the separation is proven.Will I have to pay alimony if we have been separated for so long?
The court decides on alimony based on the financial needs and capabilities of both spouses. If both parties are financially independent and self-sufficient, especially at an advanced age with no dependents, the court may not award any alimony. However, if one spouse is financially dependent and unable to support themselves, the court may order the other to pay maintenance.Can the other party refuse the divorce?
Yes, the other party can contest the divorce. However, in a case of 14 years of separation, it is very difficult for them to successfully argue that the marriage is still viable. The court is likely to see the marriage as having irretrievably broken down and will grant the divorce even if it is contested.
What evidence is required?
To prove a long separation and desertion, the following evidence is crucial:
Proof of Separate Residence: Documents like rent agreements, property papers, utility bills, or official government records showing that the spouses have been living at different addresses.
Witness Testimony: Statements from family members, friends, or neighbors who can attest to the fact that the couple has been living separately for the stated period.
Proof of No Communication: While harder to prove, demonstrating a lack of marital relationship, such as no joint bank accounts, no joint travel, and no social appearances together, strengthens the case.
Affidavits: Sworn statements from both parties (in case of mutual consent) or from the petitioner detailing the facts of the separation.
How long will the investigation take?
There is no “investigation” in a civil divorce case in the way there is in a criminal case. The process is one of adjudication by the court.
Divorce by Mutual Consent: This is the fastest route. After filing the first motion, there is a mandatory six-month cooling-off period. After this period, a second motion is filed, and the court can grant the divorce decree. The entire process can take about 7-8 months.
Contested Divorce: A contested divorce can be a lengthy process. It involves filing the petition, serving notice, replies, framing of issues, evidence, cross-examination, and final arguments. Depending on the court’s caseload and the complexity of the issues, it can take anywhere from two to several years to get a final decree from the Family Court.
Advocate Sudhir Rao, Supreme Court of India