The Complete Process Of Contested Divorce In India

Published on 26 Jul 2018 by Shivi

Divorce is a process to end a marriage legally when either or both the spouses are unable to live together as a couple. Divorce in India can be of two types- contested divorce and divorce by mutual consent.

Mutual consent divorce is when both the parties agree together to end their marriage and it takes comparatively lesser time for the divorce to conclude as both the parties want to end the marriage. Contested divorce or one-sided divorce in India is when one spouse does not want to get a divorce and hence, wants to contest it.

Meaning Of Contested Divorce

Contested divorce in India is where one party does not want to dissolve the marriage for whatever reasons. One-sided divorce takes place when one spouse has the grounds for separation and wishes to end the marriage. As the name suggests, the husband and wife contest each other to get the most out of a divorce proceeding and hire a divorce lawyer in India to represent their interest.

Grounds For Divorce In India

Section 13 of the Hindu Marriage Act, 1955 elucidates in detail the reasons for divorce. These grounds exist customarily under different personal and common laws in India:

  1. Adultery- Adultery means when the husband gets involved with someone else and maintains a sexual relationship outside of the wedlock. This is a criminal act and committing adultery in a marriage is a valid ground for divorce as it is completely contradictory to the meaning of a marriage.

  2. Cruelty- Cruelty is any kind of disturbance, annoyance, torture done by one spouse to another which may cause hindrance to the normal and peaceful life of one spouse. Cruelty can be physical or mental. Any act of cruelty that can create a danger to life and health of the spouse is a valid ground for divorce. Mental cruelty may include the use of foul language, personal comments about the spouse and her/his family and even bad characterization of the spouse. Suffering such pain, insults and agony are not really part of a marriage and can make valid grounds for a divorce.

  3. Desertion- Desertion means known and wilful abandonment of one spouse by another for no justifiable reason and with no intention of coming back. For desertion to be deemed as a valid ground for divorce, no intention of coming back, lack of consent from other spouse and the fact that the desertion has been there for a continuing period of more than 2 years must be proved. Desertion must not be initiated by the other spouse and the spouse who had left should have done this on his/her own.

  4. Conversion- Conversion to another religion is another reason to contest for a divorce. After changing one's religion, their thoughts, ideologies can also be changed according to the teachings of that religion and another spouse is not required to follow them, as well and hence, can contest for a divorce on this ground.

  5. Mental Disorder- If a spouse is suffering from any kind of mental disability that makes it difficult to live with him/her in a marriage, a divorce petition can be filed with the help of a divorce advocate in India. Mental instability or any mental disorder will make it difficult to continue a marriage.

  6. Communicable Diseases- If a spouse is suffering from any kind of communicable disease that can be passed on by physical contact, it will be difficult to continue a relationship. Communicable diseases make for a valid ground for ending a marriage through a contested divorce petition.

  7. Presumption of Death- If the spouse has not been heard from for a period of 7 consecutive years and is thought of being dead, the other spouse can file a divorce petition. A person is not required to wait for the spouse to come back and wait for an indefinite time if he/she doesn't want to. A divorce can on this ground be granted quickly as there is no other party present to contest.

  8. Renunciation of the world- If a spouse has decided to renounce the world, leave all worldly possessions, leave all ideologies, thoughts and does not embrace any particular religion, this act by will makes the other spouse eligible to file for a divorce in court.

  9. Leprosy- Leprosy is a contagious skin disease which leads to decay of the body and is also a valid ground for contesting a divorce.

READ: 5 Tips On Hiring A Divorce Lawyer In India

Which Court To Approach For Divorce?

The petition for a divorce in India must be filed in the family court having appropriate jurisdiction. The jurisdiction can be filed at-

  • The place of marriage

  • Place where both the parties lived together as a couple

  • Place where the opposite party is living

  • Place where the wife is living in case she files for a divorce.

How To File A Contested Divorce?

To contest a divorce in Indian courts, the following procedure is laid down:

  1. Filing a divorce petition- After recognising the court of appropriate jurisdiction, the contested divorce petition must be drafted by an experienced divorce attorney India and must contain the issues and problems that have arisen out of the marriage and mention the grounds on which the petitioner wants to file a divorce. Once the divorce petition is filed, the court will issue summons to the other spouse notifying him/her that a divorce case has been filed by their spouse.

  2. Reply by the opposite party- Once the summons has been sent, the opposite party is required to write his/her reply to such petition explaining their side. However, if the opposite party choose not to show up at the hearing date, the court may proceed to give a decision after hearing the side of one party only.

  3. Interim decision- At the initial stage, the court might suggest that the divorcing spouses take up the process of mediation to settle their disputes before getting a divorce. Mediation will involve a third neutral party who will help in mediating communication between the spouses.

  4. Filing of evidence- If the mediation does not give a positive result, normal proceedings resume and the evidence is submitted by divorce lawyers of both the spouses. Examination and cross-examination take place- evidence from the petitioner is taken into record first and then from the opposite party.

  5. Final arguments- Once the evidence is filed, final arguments between the parties take place. Final arguments are the primary deciding factors on which the court finalises dissolution of marriage.

  6. Divorce decree- At the conclusion of arguments, the court gives out its final judgment and passes a divorce decree.

After the decree for divorce is passed, the divorced husband and wife sign the divorce papers. With this, the divorce proceedings come to an end and the marriage is considered to be dissolved legally. However, if any of the parties are not satisfied with the order, an appeal can be filed against the order in a Higher court within 3 months from the date of such order. 

Additionally, other petitions like maintenance/ alimony petition, child custody petition and division of property need to be dealt with in case of a contested divorce. Legistify connects you with the best divorce advocates in India who can guide you about the other formalities that need to be taken care of in a one-sided divorce.

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