Overview of Divorce Notice

The culture of India is diversified in nature and has a lot of different religions and practices. Laws have been made considering the religious practices prevailing in India. One such type of law based on religion is divorce law. A petition for divorce can be filed by any of the parties to the marriage as per the defined procedure in the particular statute. The process for any legal action begins with the serving of legal notice to the party.

Either party to the marriage can send legal notice to the other party stating his/her intention of initiating legal proceedings for divorce. It is the first step as a legal notice acts as a warning through formal communication. A legal notice also gives a chance for the parties to try reconciling their marriage, if possible.

What is a legal notice for divorce?

A legal notice for divorce is a notice sent by a person to the opposite party in a case through a formal communication channel. It aims at informing the other party about the intention of taking divorce through the legal mechanisms and initiating the divorce proceedings against the other.

What is the procedure to send a legal notice?

A person aggrieved from other sends a legal notice intimating the other party before initiation of legal proceedings to make the other party aware that the aggrieved party has grievances. 

It has been observed that serving notice also creates chances that the conflict can be solved out of court through mutual understanding or conciliation between both parties. If the party to whom the notice gets served wishes to continue with the divorce, the other party can send a reply to the legal notice served to him/her.

Thus, there is a proper and well-defined process for sending a legal notice for divorce. The process is defined below in the given steps:

1. The very basic step is to the appointment of a lawyer who has good drafting skills and knowledge about the prevailing divorce laws. The lawyer will then draft a legal notice for divorce stating all the facts and issues which caused the problem in the marriage.

It is the responsibility of the lawyer to make sure that the notice is sent to the intended person against whom the aggrieved party wants to file a case of divorce. The notice can be in English language or any other language suitable to the parties to divorce.

2. There are some basic details which are required to be submitted to the lawyer. Such details help in the drafting of a legal notice. These are as follows:

• Names of the parties,
• Address of the plaintiff,
• Address of the defendant,
• Details of the activities which caused problems in the marriage,
• Challenges being faced by the party in the marriage
• Previous attempts of conciliation of marriage, if any.

3. After all the reasons along with the required details have been shared with the lawyer, the lawyer is obliged to assess and study all the details provided carefully and make certain notes of the same as per the conversation with the client. The lawyer can also ask for additional details while drafting a legal notice if required.
4. The lawyer is obliged to draft the divorce notice in the language prescribed in well-defined guidelines in the statute. Such divorce notice must contain the following:

• The valid reasons for serving notice to the defendant,
• All the previously held communications with regards to the cause of notice.
• The defendant must be given a reasonable time period to take action upon the conditions mentioned in the notice or settle the dispute by the means of negotiation. Usually, a time period of 15 to 30 days is given to the defendant to do the required. The lawyer of the plaintiff focuses on certain actions to be taken as soon as possible by the defendant or sends a reply to the legal notice to the plaintiff.

5. It is necessary for law that each document should be duly signed. Thus, a divorce notice is a legal document is also required to be duly signed by the lawyer drafting it. The document is sent to the opposite party through a speed post, courier or registered post. The acknowledgement is retained by the advocate as proof of service of notice. A copy of the legal notice is also kept with the advocate who has drafted the notice.
6. The other party is under an obligation to send a reply to the notice served in the time prescribed in the notice. If the respondent shows unwillingness in giving a reply to the plaintiff, then appropriate action is taken against the respondent as stated in the legal notice as consequence of non-reply to the notice.

If the respondent sends a reply to the legal notice to the plaintiff, then the plaintiff has the option to resolve the dispute or to continue with the legal proceedings and file a divorce petition if the parties agree to proceed with the dissolution of their marriage.

Corpbiz has a team of well-qualified professionals to help you in sending a divorce notice.

How to draft a legal notice for divorce?

There are several points which are essential to be mentioned in the divorce notice. These are as follows:

• The notice should be drafted on an advocate’s/ law firm’s letterhead.
• The notice should contain all the required and essential information relevant to the case.
• The name, contact details, address of the sender and on whose behalf and instructions the legal notice has been sent must also be mentioned.
• It is important to mention the name, and contact details such as the number and address of the advocate.
• The notice should be duly signed by the advocate along with the date of signing mentioned with the signature.
• The content of the notice should specify directions for the performance of certain actions to the defendant and the time limit to do the same.
• The notice should also state the problems caused to the aggrieved party due to the act or omission of the defendant. Along with this, the possible solution for the problem should also be mentioned.

Legal Notice to Wife to Come Back

A husband can approach the court for restitution of conjugal rights if the wife leaves the husband or matrimonial house without any valid and reasonable excuse.

Before approaching the court for restitution of conjugal rights, the husband can opt for sending a legal notice to his wife for coming back home. The husband can serve a well-drafted legal notice in which he can ask her wife to return back to the matrimonial house.

Procedure after a legal notice for divorce has been sent

As per the prevailing and applicable laws on the parties, certain defined actions can be taken by the party after the notice has been served by the plaintiff to the defendant. The parties can either resolve the matter mutually or can file a petition for divorce and proceed with the same.

As already mentioned, India is a secular state enacts different laws from several religions which also includes divorce laws. With the passage of time, the laws have been progressive in nature keeping in mind social awareness, gender affairs and other related matters in the present times. The several legislations in India are:

• The people belonging to Hindu, Jain, Sikh and Buddhist communities are governed through the provisions of the Hindu Marriage Act, 1955 for the purposes of divorce;
• The Muslims who wish to take divorce can find the relevant provisions under the Dissolution of Muslim Marriages Act, 1939 and the Muslim Women (Protection of rights on marriage) Act, 2019;
• Parsi Marriage and Divorce Act, 1936 contains provisions for the divorce of Parsi people;
• The Christians are governed by the provisions of the Indian Divorce Act, 1869;
• All other divorces are governed through the provisions of the Special Marriage Act, 1956;
• If the divorce is filed by one party who is an Indian and the other party (defendant) is a foreign national, then they are governed by the Foreign Marriage Act, 1969.

Matters related to Child Custody

Child custody is one of the important aspects to be considered when a husband and wife get divorced. It involves maintaining the physical health, educational and other needs of a child. In India, child custody is governed by the provisions of the Guardian & Wards Act, 1890 and other personal laws of several religions as there are personal laws for divorce.

Hindu Personal Laws

For a Hindu child, custody is governed by The Guardian & Wards Act, 1890 and the Hindu Minority & Guardianship Act, 1956.

Muslim Personal Laws

For a Muslim child, child custody is governed by the provisions of The Guardian & Wards Act, of 1890 in India.

Christian Personal Laws

The children belonging to the Christian community are governed by the Indian Divorce Act, 1869, and the Guardians and Wards Act, of 1890. The court considers a better guardian and can even deny the claims of parents to seek child custody if the court considers them unfit.

Parsi Personal Laws

The matter related to child custody issues under the Parsi Law is dealt with by the Guardians and Wards Act, 1890. The decision is taken after considering the welfare of the child.

Matters related to Alimony

Alimony is the amount of money given by one party to the marriage to the other party after divorce. It is usually granted when one party is dependent on the income of the other and the other independent party is not being maintained by anyone. In most cases, alimony is provided to the wife by the husband due to the social conditions prevailing in India.

The Code of Criminal Procedure also contains provisions relating to maintenance under Section 125. Any party to divorce can file a case under the given section to seek maintenance from the other party. The court after considering all the relevant factors such as property, the income of the husband, assets, etc decides the amount of the maintenance. The maintenance amount can be paid in lump sum amount or monthly or other periodic basis depending upon the case facts.

Another law stating provisions related to maintenance is defined under the Domestic Violence Act, 2005. It allows a woman to continue living in the matrimonial house. The woman is entitled to seek compensation for mental or physical cruelty and has the authority to take things back with her which was provided to her during the marriage. The personal laws for alimony depending on various religions are as follows:

Hindu Personal Laws

The Hindu Marriage Act, 1955 deals with alimony between a Hindu wife and husband. They may claim alimony from each other as per the dependency of one on the other. A Hindu female has other ways to seek maintenance available under the Hindu Adoptions and Maintenance Act, 1956.

Muslim Personal Laws

Under Muslim law, the provisions for maintenance have been defined under The Muslim Women (Protection of Rights on Divorce) Act, 1986, and the Dissolution of Muslim Marriages Act, 1939.  As per personal Muslim laws, a Muslim female is entitled to seek maintenance for the iddat period only. If a Muslim female wishes to get maintenance even after the iddat period gets over, she can file an application under Section 125 of CrPC. The court may order the husband to pay maintenance to the wife till she re-marries.

Christian Personal Laws

The Christian personal law has similar provisions as the Hindu laws. Section 36 of Christian personal law allows a party to file a petition to seek maintenance.