Law

Contested Divorce in India

Contested Divorce is a kind of divorce wherein only one party is seeking divorce and the other is not agreeable for it. However, in a contested divorce, the reasons for separation are not any party’s personal reasons or choices, the reason is to be attributable to the spouse of the party seeking divorce, i.e. his/her conduct/action/failure to discharge expected reasonable behaviour etc. Contested Divorce can only be granted on the “grounds of divorce” that are stated in the Hindu Marriage Act, 1955 (applicable to Hindus).

Grounds for Divorce

Around 9 grounds of divorce (under Section 13) have been stated in the Hindu Marriage Act, 1955. These are as follows:

1. Cruelty: This can either be mental or physical. Physical cruelty is the visible cruelty in the form of an injury/wound etc. Mental cruelty on the other hand is the invisible pain, agony, frustration, mental suffering caused to the other party that makes it impossible for the ailing party to live with his/her partner.

2. Adultery: Although adultery is no longer a criminal offence in India, it still remains a ground for divorce. If the spouse has indulged in sexual intercourse outside of marriage, the other partner can seek divorce on this ground.

3. Desertion: If the spouse has deserted/abandoned his/her partner for a minimum of two continuous years, it is a valid ground for divorce.

4. Mental Disorder: If the partner is not capable of performing normal duties expected in marriage due to any mental illness, it is a ground for divorce.

5. Disease: It is a ground for divorce if the spouse suffers from a communicable disease including HIV, gonorrhea or an incurable form of leprosy, etc.

6. Conversion: If the partner converts to a different religion, the other can seek divorce on this ground.

7. Presumption of death: If the spouse has not been heard of by the other as being alive for a minimum period of 7 years, the other can file for divore on this ground.

8. Renunciation of the World: If a partner renounces the world, or becomes a saint/sanyasi, the other can seek divorce on this ground.

Procedure for Contested Divorce in India 

The journey of getting a contested divorce starts with consulting a good divorce lawyer, after one has made up his/her mind for a one-sided divorce petition. The steps involved are given below:

1. Preparing and filing of the Divorce Petition: In a contested divorce, either the husband or wife seeking the divorce needs to approach a skilled divorce lawyer. After explaining the facts and the reasons for wanting divorce, the lawyer would prepare the petition for divorce. Relevant documents which support the allegations would have to be submitted along with the petition. After the petition has been signed by the contesting party, it would be filed before the appropriate family court.

2. Examination: The Court would examine the petition on the first date and listen to the opening arguments from the lawyer. Once the Court is satisfied that the matter should be adjudicated and finds some ground in the petition, it would issue a notice to be served to the opposite party.

3. Appearance of opposite party: After a copy of the petition and notice is served upon to the other party, he/she would be required to appear in court with their counsel/advocate. He/she would also have to file a reply to the divorce petition in court.

4. Mediation: The Court may initially try to resolve the matter by directing the parties to attend Mediation. However, even after mediation if no amicable solution has been reached, the court would continue with the divorce proceedings.

5. Issues and Evidence in Court: The court will frame necessary issues to be decided and will also record evidence(s) from both parties. The parties will be cross-examined and would also produce witnesses to support their side.

6. Final Arguments: After the evidence recording and cross-examining stages are completed, advocates for both parties would have to present their final arguments. After this, a date to pronounce the decision if fixed.

7. Final Decision: On the fixed date, the judge would give its final decision and if it is satisfied that divorce is the only solution (based on the facts and circumstances of the case), it would grant a decree of divorce. An option of appeal is also available to the parties if either of them is not satisfied with the order. The time limit to file the appeal is 3 months from the date of the order.

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