Author: Mr. Harshal Sreen, Institute of Law, Nirma University.
The divorce procedure in India is quite complex and it takes a very long period, the duration of the divorce depends upon the nature of the conflict between the couple and the intensity of the disagreements between the parties. It can be said that India is not a divorce friendly country as the number of divorces in India is 13in 1000 marriages as against 500 in 1000 cases in the UK. With the latest Supreme Court order, it is time to rejoice for couples seeking a divorce through mutual consent. Considering the gloomy condition of the divorce cases in India and for speedy dissolution of the cases, the Supreme Court has ordered that the cooling period can be waived off by the trial court if there is no scope of cohabitation between the hostile couple.
But these days even in the country like India the divorce cases are rising, the country where marriage is considered a sacred institution. Every year 7,500 cases of divorce are filed in Mumbai, 9,000 in Delhi and 3,000 in Bangalore.
Reasons why a divorce can take a longer period
There are several reasons why divorce cases take a longer period to dissolve –
Once the statements are recorded, an order on the first motion is passed by the court. After this, a six months period is given to both the parties to a divorce, before they can file the second motion.
In some cases, the delay is due to courts taking a long time to process the applications. This can arise if there is a shortage of staff at a particular court – There are more applications listed in one court and this can cause the delay in processing
The ways to fasten the divorce cases in India
There are the following ways through which divorce cases in India can be disposed of fastly.
Uncontested Divorces – One of the ways to fasten a divorce is an uncontested divorce. An uncontested divorce is a divorce where both the parties agree on all the issues related to custody, visitation, child support, spousal support, division of property, division of debt, other issues, such as education and religion, life and health insurance, etc. under this relatively fast divorce happens because all of the major issues have been agreed upon by you and your spouse. Following are the advantages of the uncontested divorce that an uncontested divorce also will always save you money in legal fees, will reduce stress, and will get you through the court system much faster than a contested divorce.
No-Fault Divorces – India needs new development in the law concerning the divorce, currently, law or rule prevails in India supporting no-fault divorces. No-fault divorce is a divorce in which the dissolution of a marriage does not require a showing of wrongdoing by either party. Originally, a married couple had to provide an acceptable reason for why they should be allowed to end their marriage and get a divorce. the spouse who files simply needs to state that there has been an irretrievable breakdown of the marriage, irreconcilable differences or incompatibility. However in the fault divorce requires you to give reasons for divorce in your divorce petition, and then if your spouse does not agree, to prove them to the court.
Fast Track Courts – If you have been contesting for your case for more than 2 years, you can transfer your case to Fast Track Court. Fast Track courts were set up in 2000 in India to expedite and dispose of the long-pending cases in the courts. Though the fast track courts have been established it needs to be scrutinized whether they are executing the purpose for which they are established or not.
Increase The Strength Of The Judiciary – The lack of manpower in the subordinate courts is problematic as the major chunk of pending cases is lying in the subordinate courts. even when the Law Commission of India, had recommended a fivefold increase in the number of judges in Indian courts as far back as 1987. This gaping hole in the vacancies not only creates inordinate delays in getting justice but has brought the entire system to the brink of collapse and repeatedly contributed to what can be rightfully called ‘miscarriage of justice’.
Modernization Of Court- One of the ways in which the faster procedure of disposal of the courts can be done is modernizing the court. When everything is being modernized, why should courts be left behind? Our courts should be fully digitized and technical experts should be brought in to streamline the whole process right from when a person files a case, to updating it, to the final verdict. Using editors to simplify technically dense final judgments could also be another step.
Revision of old laws and regulations- More than a thousand of India’s laws date back to the British Raj, some of which are mere loopholes in the workings of the court and thus must be done away with in order to ensure that justice can be served quickly and effectively.
Refrain From Hiding Assets- Sometimes, people make the mistake of hiding marital assets because they do not want them to be awarded to their soon to be ex. In addition to being dishonest and illegal, this practice can significantly delay your divorce
timely reporting – Both the parties shall report to the court time and whenever called. If any of the parties fail to report to the court on the date called it would again take a long procedure and would lead to delay in the disposal of the case.
Promoting mediation – The disposal of the case becomes easy if the case is solved or handled through the mediation process. As in mediation, the parties don’t have to face the lengthy process of the judiciary. One can cut short the lengthy process of getting a divorce by opting for the mediation.
Well research – An advocate can speed up the disposal of the case by doing well research in advance. Well-Performed advanced research will automatically reduce the duration of the cases.
Proper documentation – The Indian judiciary already follows a long and lengthy procedure to settle a case. And if any advocates don’t file a document fulfilling the required criteria it would take double time to settle the case. So it’s the duty of the advocate to do proper documentation and present the document as and when required.
Divorce by mutual consent
It has emerged as one of the most important and useful recourses of obtaining the divorce. Section 13B of the Hindu Marriage Act, 1955 enumerates the law pertaining to divorce by mutual consent. The essential of this provision is that both parties must agree to obtain the consent. After the petition is filed the court gives a six-month cooling-off period. The Supreme Court in the case of Amardeep Singh v. Harveen Kaur has decided that if the marriage seems to be completely irreparable, the court may waive-off this cooling period. One can directly file the second motion and the court grants a divorce.
Cases and Orders-
In the recent verdict of Amardeep Singh v. Harveen Kaur, the Supreme Court waived the six-month ‘waiting period’ once compulsory for mutual consent divorce. This definitely gave a solace for mutual divorce couple, because, sometimes, the matrimonial case consumes a minimum of two to twelve years.” So it can be termed as a step by the Indian Judiciary to fasten the disposal of the divorce cases.
The bench comprising of Justice A.K. Goel and U.U. Lalit said, “The period mentioned in section 13B(2) is not mandatory but discretionary.” When the court is assured that there are no chances of staying together and it is assured that the parties will split, the court can waive off the six-month requirement. With this new landmark ruling, one can now apply to get a waiver on this cooling period. This implies that if the couple has mutually decided to dissolve their marriage, they can request the court to expedite the process and not wait for another six months.
A two-judge bench of Chief Justice Swatanter Kumar and Justice Ajay Khanwilkar on Thursday upheld an order of the family court passed last June to club two different petitions — one by the husband and other by the wife — and to decide them together on merits to save ‘‘precious time and avoid more delay’’.