Grounds for Contested Divorce
A contested divorce is provided in Section 13 of the Hindu Marriage Act, 1955. There are some grounds given in Section 13 on which any spouses can come to the court for getting a divorce decree. Any spouse cannot come to court for divorce decree by citing any reason which they think are good enough to legally separate them from their partner.
If a person wishes to divorce his/her spouse, his/her case needs to fall under one of the below-mentioned grounds, else there is all likelihood that the case would be dismissed by the Court.
Incompatibility between the couple and/or irretrievable breakdown of marriage is not yet a valid ground for filing a Contested Divorce as per the Hindu Marriage Act in India, although for the same there has to be mutual consent for the divorce to be granted by the Courts.
The 9 major grounds under which a Contested Divorce is usually filed are:
- If a spouse, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or
- If a spouse, after the solemnization of the marriage, treated his/her spouse with cruelty;
- If a spouse, deserted his/her spouse for a continuous period of not less than 2 years;
- If a spouse has ceased to be a Hindu by conversion to another religion;
- If a spouse, has been incurable of unsound mind or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the other spouse cannot reasonably be expected to live with that spouse;
- If a spouse, has been suffering from a virulent and incurable form of leprosy;
- If a spouse, has been suffering from venereal disease in a communicable form;
- If a spouse, has renounced the world by entering any religious order;
- If a spouse, has not been heard of as being alive for a period of 7 years or more by those persons who would naturally have heard of him/her, had he/she been alive.
In addition to the above grounds, there are three other grounds which are available only to the wife (not to the husband):
- The husband is found guilty of bestiality, sodomy or rape after the marriage
- A court has ordered payment of maintenance to the wife, and the couple is staying apart for one year after such order
- The wife was married before she attained the age of fifteen and she had cancelled the marriage before she turned eighteen years old
Procedure of contested divorce under Hindu Marriage Act
Contested divorce involves court proceedings, which can be understood by consulting the best divorce lawyers in India . There are various steps which one need for contested divorce. These are:
Meeting with an Attorney : First step is to find a suitable attorney for you who will help you in taking the matter to the court. He/she will gather all documents and gather their information for preparing divorce petition. This step put a great duty on individual’s (who is seeking a divorce) part to provide all required information.
- Divorce Petition Served Upon Your Spouse : After finalizing the petition (with signature, affidavits, vakalatnama etc.) it needs to be filed before the court and after that attorney will serve it to the spouse. If it is not possible to serve him/her in person then it can be served by publishing in any local newspaper and after that, you have to wait for some reasonable time to proceed further.
- Your Spouse Responds to the Petition : It is necessary for other parties to respond within a reasonable time (every state has its own reasonable time). If your spouse does not respond within the specified time limit, he/she is in default and you can obtain a default judgment of divorce. If your spouse does respond within the time limit, your case will proceed to the next step.
- Discovery Process: This process involves discovery where spouses are able to obtain detailed information from each other about marital assets, income, custody and any other issues relevant to their case. This discovery process can be conducted through written interrogations, documents requests, and depositions. During discovery, the spouses can request for child support or alimony from the courts.
- Divorce Settlement Negotiations: Judges generally encourages the spouses to come to an agreement before the final court date. The judge may order the spouses to go to mediation where a third party attempts to help them negotiate any unresolved issues.
Documents Required For Contested Divorce
- Adultery- Proof as to the single act of adultery, Evidence relating to long-term adulterous relationship or cohabitation if any, Photographs pertaining to the act between the partner and other person, Statements of persons who witnessed the adulterous act.
- Cruelty - Medical reports proving physical abuse, Evidence laying down cruel behaviour, any eyewitnesses.
- Desertion - Evidence relating to a period of two years in which there is a complete withdrawal by one spouse from carrying out his or her marital obligations, Evidence proving that the desertion did not consent.
- Conversion to another religion - Evidence showing that there has been formal ceremonial conversion to another religion, Statements by witnesses or photographs if any, justifying the conversion of the other spouse, Conversion certificate, Proofs that the person wasn’t under any undue influence to get converted to another religion i.e. it was a willful conversion
- Renouncing the world by entering any religious order; or
- Spouse not been heard of as being alive for a period of 7 years
Medical Grounds -
- Unsound mind, or mental disorder
- A virulent and incurable form of leprosy
- Venereal disease in a communicable form; or
These grounds require similar evidence as mentioned below-
- Medical Certificate to prove mental disorder,
- Proofs showing a period of two years have been passed since marriage,
- Evidence proving that the petitioner was unaware of the disorder at the time of marriage,
- Evidence to show the person has been suffering from continuous or intermittent mental disorder of such kind,
- Evidence to prove that it has become impossible for the petitioner to live with the respondent.
If the spouses are unable to reach any solution by negotiation, the court will again continue from discovery phase and the case will be scheduled for a divorce decree.
- Divorce Court/Trial: During divorce trial, each side will be able to put on their witnesses, cross-examine of the other witnesses and make closing arguments. The court would proceed toward framing of issues, recoding of evidence. Examination-in-Chief and Cross-Examination of the Petitioner and its supporting witnesses would be recorded first, followed by Examination-in-Chief and Cross-Examination of the Respondent and its supporting witnesses. After examination of a witness and other proceeding, each attorney would be required to address their final closing arguments before the court. After hearing both the sides judge will pronounce its decision. There is no time limit prescribed for the trial, it depends upon the complexity of the case.
- Post–Trial Motions: After the trial is over and the judge has signed his/her order, either party is entitled to file a post-trial motion for relief from the final judgment. The party typically has 30 days after the order is signed to file a post-trial motion. The other party has 30 days to respond to the motion. A post-trial motion if approved by the judge would allow you and your attorney to argue why you believe that ruling by the judge is unfair.
- Appeals: In case if decision passed by the court is not acceptable to either of the parties, that party can file an appeal against that order within a period of 3 month from the date of the order.
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