INTRODUCTION
A divorce notice can be produced to clarify the emotions and a platform to commence the thoughts on discontinuing the relationship. A husband can send a legal notice for divorce to the wife so as to speak his intention to require legal progress covering the wedding relationship. It is a proper communication for the initiation to interrupt the ‘husband and wife’ connection. It may come as an entire surprise to the wife receiving paperwork. After receiving divorce papers, she must take immediate action to guard her legal rights and future.
In January 2020, the Supreme Court has waived off the statutory cooling period of 6 months, provisioned earlier within the Hindu Marriage Act of 1955, before granting a divorce. From now on, a trial court can dispense with this duration if there’s no possibility of cohabitation between the alienated couple.
Legal Notice for divorce has no legal sanctity though it’s a vigorous indication that he shall file a divorce case against her wife, on the basis of grounds mentioned in legal notice. If she does not want a divorce, she should be prepared to defend divorce case filed by her husband, by citing evidence, that she has done nothing wrong/cruelty of any sort to her husband, and specify evidences in her favor, in order that within the event the husband files a divorce case, an equivalent could also be dismissed by courts.
In addition to strengthen the case-
- She can also file complaint under Protection of Women from Domestic Violence Act, 2005, against her husband.
- Under Section 498A of Indian Penal Code, 1860 by making compliant to police/woman cell.
- She can also seek maintenance for herself & her children from the husband, by filing Maintenance Petition under Section 125 CrPC.
- If there’s a divorce proceeding has already started then, she can file an application under Section 24 of Hindu Marriage Act seeking monthly maintenance for herself. The Court will grant the monthly maintenance.
In such cases where both the spouses wants to live separately, decide yourself, what does one wish to try to do, if you would like for a divorce, contact him and ask to file it mutually. The expression ‘live separately’ means that parties are not living as husband and wife, irrespective of the fact that they are living in the same house or in different houses.
DIVORCE WITH MUTUAL CONSENT
When husband and wife both comply with a divorce, the courts will consider a divorce with mutual consent. However, it is required that the couple should be separated for more than a year or two years and be ready to prove that they need not been ready to live together for the petition to be accepted. Often, even when either husband or wife is reluctant, they choose divorce by mutual consent as it is relatively inexpensive and not as traumatic as a contested divorce. Matters like children’s custody, maintenance and property rights might be agreed to mutually. In a petition for divorce by mutual consent, no other ground for divorce can be taken.
There are three aspects regarding which a husband and wife need to reach a consensus.
1. Alimony or maintenance issues: The modern Hindu law states that a Hindu wife is entitled to be maintained by her husband during her lifetime. As per law, there’s no minimum or maximum limit of maintenance amount. It might be any figure or no figure. The alimony is to be fixed by the parties through agreement. A specific sum of maintenance is to tend either by the husband to wife or the other way around as the case may be.
2. Custody of the kid: This must necessarily be figured out between the parties. Child custody during a mutual consent divorce also can be shared or joint or exclusive depending upon the understanding of the spouses.
3. Property: The husband and wife must decide who gets what a part of the property. This includes both movable and immovable property. Everything including bank accounts must be divided. It’s not necessary for it to be fair, so long as it is agreed to by both parties.
THINGS TO DO AFTER RECEIVING DIVORCE PAPERS
1. Read the Papers
It is important that an individual carefully read over the divorce papers. These papers may contain useful data of which the spouse must have knowledge. The divorce papers should list the details of jurisdictional court where the action was filed. The divorce papers should also state a time limit to comply with for providing a response. The divorce papers will indicate whether the husband is filing the paperwork on his own if he has retained an attorney. Moreover, the divorce papers may contend the grounds for divorce. It may also contain information about division of property, child custody etc.
2. Hire an Advocate
It’s important to retain legal counsel if possible by any means because divorce can have a tragic effect on a person’s life. Even though the wife who receives the paperwork believes she is in agreement with the divorce and allegations, a divorce counsel can review the documents and inform the spouse of her legal rights. If the case later becomes contested, she will have someone who can advocate for her rights. To stop the spouses from being on uneven footing, it is important for an individual to retain an advocate if the opposite spouse already has one.
3. Gather Documents
At the initial consultation, an advocate is going to likely ask you to present certain documents. A spouse may have to collect preliminary documents that include identification documents such as birth certificate, marriage certificate and social security card. It will also likely to be asked to gather financial documents, the last three years of tax returns, bank statements. These documents help identify the income, assets and debts of the household, which can be needed for later purposes within the divorce process.
4. Provide a Response
The divorce papers should indicate the amount of days that an individual has got to answer the complaint or petition for divorce. This is usually 30 days from the date when the husband was actually sent the divorce papers. If you let the deadline pass without responding, he can potentially receive everything requested within the divorce paperwork. Normally, an individual will provide a response through his/her attorney. However, if an individual cannot come up with the funds necessary to retain an advocate, they need to provide a response on his/her own. Otherwise, the spouse can forfeit his/her rights and legal arguments. Typically, an individual must answer each numbered statement within the complaint and not just issue a general denial of all statements.
5. Secure Assets
Some jurisdictions immediately involve all assets to be frozen once a divorce petition is filed in the court. If individual income is directly deposited to a joint account, you should consider fixing a separate checking account and averting the funds to the present account. She should pull a credit report back to check his/her financial wellbeing and to seek out if any recent debt has been annexed of which you aren’t aware.
6. Secured Communications
She should take care that her mail is rerouted to avoid detection by the husband during divorce. Lawyers may send letters with strategic plans, and this information shouldn’t be revealed to him.
CONCLUSION
In India, Divorce among Hindus, Buddhists, Sikhs and Jains are governed by the Hindu Marriage Act, 1955, Muslims by the Dissolution of Muslim Marriages Act, 1939, Parsis by the Parsi Marriage and Divorce Act, 1936 and Christians by the Indian Divorce Act, 1869. All inter-community and inter-caste marriages are governed by the Special Marriage Act, 1956. The divorce law works with some conditions and not altogether situations.
If there is a situation where either demands of dowry been made or articles and jewelries taken away by the husband or his relatives then his wife can opt for police complaint under section 498A, IPC. In cases where husband already abandon his wife and then send a divorce notice, the wife has an option to file a petition under section 9 of Hindu Marriage Act for restitution of conjugal rights. You also have the right to occupy the property irrespective of the fact that a divorce petition has been filed. If you’re also taking care of children, the case is far stronger.
This article has been written by Deeksha Shrivastava, 2nd year B.A. LLB student at FIMT College, Guru Gobind Singh Indraprastha University, New Delhi
Also Read – Can Hindu Re-Marry After 90 Days of Divorce?
