When a couple cannot agree on the issues involved in dissolution of their marriage , one of the spouses initiates the divorce proceeding and the other responds to the same, the trial ensues and the judge decides issues involved in the divorce. This is called a ‘Contested Divorce’.
This is a “Fault Divorce”, where one of the spouses files a petition seeking dissolution of marriage stating the grounds for her/his prayer before the court. The grounds for seeking divorce are specified in the Act applicable based on the religion and Act under which parties’ marriage was solemnized. Irrespective of the different laws that come into play, the grounds are more or less similar across them.
One of the spouses initiates the divorce proceeding, by filing a petition and the other spouse’s consent is not required at that time. On the other hand as the proceedings progress, there may be a consensus reached to agree upon certain terms and conditions in order to settle the issues between them.
Pre-conditions
a) Existence of a legal marriage under the applicable law.
b) Both the parties lived together as husband and wife. Couldn’t live together, hence started living separately. Expression living separately connotes not living like husband and wife, without referring to the physical place of living.
c) Lapse of 1 year from the date of marriage is mandated by Section 14 of Hindu Marriage Act, 1955 & Section 29 of the Special Marriage Act, 1954
Illustration:
Mr. A & Mrs. B got married on 01.01.2020, started living separately from 10.01.2021. The date on which divorce can be filed is 02.01.2021 or later.
Grounds for Contested Divorce
Grounds are nothing but the reasons why one seeks separation from her/his spouse. The spouse initiating the process files a complaint giving reasons seeking divorce in accordance with the applicable law while the other party on receiving the summons may contest such case opposing stated grounds or opposing the divorce or also may seek divorce stating some other grounds.
a) Adultery
A consensual sexual intercourse between two persons who are not married to each other but of whom one at least is married to another person is adultery. It is one of the principal grounds for matrimonial relief. One act of adultery is enough to constitute a matrimonial offence, hence ground to seek divorce. Even though an act of adultery is decriminalized in the Criminal Law, it still remains as a ground to pray for dissolution of marriage by the spouse of the adulterer.
Analogous provisions of law:
Hindu Marriage Act, 1955 – Section 13 (1) (i)
Special Marriage Act, 1954 – Section 27 (1) (a)
Divorce Act, 1869 – Section 10 (1) (i)
b) Cruelty
Supreme Court judgment on Savitri Pandey Vs Premchandra Pandey (2002) AIR 2002 SUPREME COURT 591,2002(2), SCC 73,2002 defines ‘Cruelty’ postulates a treatment of one spouse towards the other as to cause reasonable apprehension in the mind of the latter that it would be harmful or injurious for him or her to live with the former. Such ‘cruelty’ may be physical or mental. However it should not be decided on the basis of the sensitivity of the petitioner. It has to be judged on the basis of course of conduct which would, in general, be dangerous for a spouse to live with the other.
Thus cruelty can be physical or mental; its effects varies from individual to individual, also depends upon physical and mental condition, social and economic status and position in life of the parties. The conduct complained of must be of serious nature and higher than the ordinary wear and tear of married life. Our experience in the field of handling matrimonial matters makes us a compassionate counselor to pay attention to the details and work towards getting a most suitable relief when you are facing cruelty by your spouse.
Analogous provisions of law:
Hindu Marriage Act, 1955 – Section 13 (1) (ia)
Special Marriage Act, 1954 – Section 27 (1) (d)
Divorce Act, 1869 – Section 10 (1) (x)
c) Desertion
Desertion is the intentional and permanent abandonment of one spouse by the other without that spouses express or implied consent and without reasonable cause. It is not just withdrawal from a place but from a state of things and is a total repudiation of the obligations of marriage. The deserted spouse is the one who initiates the divorce proceedings. To apply this criteria i) the fact of separation for at least 2 years and ii) the intention to bring cohabitation permanently to an end by the deserter is considered. From the point of view of the deserted spouse i) the absence of consent for withdrawal from the company and ii) absence of conduct giving reasonable cause to the spouse leaving matrimonial home, are to be substantiated while seeking the divorce.
Analogous provisions of law:
Hindu Marriage Act, 1955 – Section 13 (1) (ib)
Special Marriage Act, 1954 – Section 27 (1) (b)
Divorce Act, 1869 – Section 10 (1) (ix)
d) Conversion to other religion
Conversion means that the person has voluntarily relinquished his or her religion and adopted another religion after going through some formal ceremony. In case of the inability to prove the conduct of formal ceremony to convert, all that is necessary to establish that the person has adopted the rules of the said faith to embrace that religion. The Hindu Marriage Act 1955 covers Hindu, Budhist, Jain and Sikh religions. Hence conversion among these religious faiths cannot be regarded as a conversion to other religion. Conversion to Christianity/ Islam by a Hindu spouse, by acknowledging or formally recognizing it as an object of his faith or belief is considered as conversion in the context of matrimonial law.
Other than the marriage under Special Marriage Act 1954, which allows inter-religious marriages, the ground of conversion can be used to get matrimonial relief.
Analogous provisions of law:
Hindu Marriage Act, 1955 – Section 13 (1) (ii)
Divorce Act, 1869 – Section 10 (1) (ii)
e) Unsoundness of Mind
Under matrimonial statutes ‘unsoundness of mind’ refers to a degree of mental disturbance so menacing and so disabling that the person may be considered from legal point of view to be immune from certain responsibilities and may disallow him/her certain privileges that may require a degree of competence. A strict standard of proof is required from the spouse claiming matrimonial relief on the ground of unsoundness of mind of the other spouse. A medical examination report which has diagnosed the party with the said disorder acts as a proof of the claim.
Analogous provisions of law:
Hindu Marriage Act, 1955 – Section 13 (1) (iii)
Special Marriage Act, 1954 – Section 27 (1) (e)
Divorce Act, 1869 – Section 10 (1) (iii)
f) Venereal Diseases
In case one of the spouses is suffering from Venereal Diseases (VD) means the disease that can be transmitted through sexual intercourse which are also referred as Sexually Transmitted Infections (STI) or Sexually Transmitted Diseases (STD), in its communicable form, the other spouse can seek divorce on that ground.
Analogous provisions of law:
Hindu Marriage Act, 1955 – Section 13 (1) (v)
Special Marriage Act, 1954 – Section 27 (1) (f)
Divorce Act, 1869 – Section 10 (1) (v)
g) Renunciation of the world
In cases where one of the spouses choose to renounce the world following any religious order, allows the other spouse to seek matrimonial relief.
Provision of law:
Hindu Marriage Act, 1955 – Section 13 (1) (vi)
h) Disappearance
Not heard to be alive or disappearance is a different ground than the desertion where deserted spouse may know that the other spouse is living while in the case of disappearance the aggrieved spouse does not know the whereabouts or whether the other spouse is alive or dead as he or she has not been heard of for a long time. To consider ‘Disappearance’ as a ground for divorce, ‘Long time’ is specified as 7 years in the secular and other laws except under Muslim personal law where it is 4 years.
Analogous provisions of law:
Hindu Marriage Act, 1955 – Section 13 (1) (vii)
Special Marriage Act, 1954 – Section 27 (1) (h)
Divorce Act, 1869 – Section 10 (1) (vi)
i) No cohabitation post RCR order
Restitution of Conjugal Rights or RCR is such remedy, which can be sought by either of the spouses, who is abandoned by the other. It is a remedy available against the spouse who has left the company of the aggrieved party without any reasonable ground and refusing to cohabit. After obtaining this order, if the cohabitation could not be established by the spouses for a period 1 year or more, this can be used as a ground against the party unwilling to cohabit.
Analogous provisions of law:
Hindu Marriage Act, 1955 – Section 13 (1A)
Special Marriage Act, 1954 – Section 27 (2)
Divorce Act, 1869 – Section 10 (1) (viii)
j) Irretrievable breakdown of marriage
Irretrievable breakdown of marriage even though is not a ground mentioned under applicable laws for divorce; through judicial decisions this ground has become a valid reason for the spouses to seek remedy. This ground has been considered either as no fault ground or as an extension of mental cruelty.
Procedure for divorce in India
The dissolution of lawful wedlock requires legal steps to be adhered to. These requirements call for a divorce lawyer’s professional service to make sure that one goes through the procedure as per law and ease the burden at the difficult time.
Jurisdiction of the Court (Where can one file a Divorce case?)
The divorce petition is to be presented to the district court, which includes Family Court within the local limits of whose ordinary original civil jurisdiction,
i) The marriage was solemnized, or
ii) The respondent at the time of the presentation of the petition, resides, or
iii) The parties to the marriage last resided together; or
iv) In case petitioner is wife, where she resides at the time of presentation of the suit; or
v) The petitioner is residing at the time of the presentation of the petition, in a case where the respondent is at that time, residing outside the territories to which this Act extends, or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he were alive.
Analogous provisions of law:
Hindu Marriage Act, 1955 – Section 19
Special Marriage Act, 1954 – Section 31
CONTESTED DIVORCE PROCEDURE
STEP 1: Choosing the lawyer
Being a country of many religions and citizens falling under different laws when it comes to marriage, divorce, child custody, succession and such other matters, it may find it grueling to understand the provisions of law. Your divorce lawyer has knowledge and understanding of the law to guide you on this.
It is essential that you choose an experienced and skillful advocate who is acclimatized to the courts in the local area of jurisdiction and are well versed with the local language and practices.
STEP 2: Consultation with the lawyer
Fixing an appointment with the divorce lawyers is just a click away. Note down your doubts and questions that you may have regarding intended divorce, as a preparation. Note down the anecdote of the events that have occurred between your spouse and you that have made you to take a step towards parting ways. You are free to express all your concerns without any inhibition. We advocates also are your counselors who will guide you in case divorce is not necessary after listening to your narrative, if we find so.
STEP 3: Documents
If you have made up your mind that divorce is the option, documents such as Address Proof (any Government issued document), Marriage Certificate, Marriage Invitation Card, Marriage Photograph, Child’s Birth Certificate if any, opposite party’s address and any other document that may be necessary for the facts that will be mentioned in the petition required to be given to us.
STEP 4: Petition
A petition prepared detailing the facts as provided by you. After careful read through of the petition by you and making corrections if any, with your signatures and the supporting documents the same shall be filed in the court. The party filing the petition is the Petitioner and the opposite party is the Respondent, Once the file is accepted, case number generated and that initiates the legal proceedings. You will be informed of the next date and stage and also whether your presence is required for the same.
STEP 5: Summons
Summons also called as Notice is issued to the opposite party at the address provided in the petition. Once notice is received by the opposite party, acknowledgment of the same is filed in the court by the court staff. In case the opposite party refuses to receive the notice, the court follows appropriate measures to serve the notice as per the legal procedure. The date to appear before the court also be part of the notice.
STEP 6: Court Proceedings
When both the parties present in the court in person along with their counsel (lawyer), matter is referred to mediation. If the mediation fails, the case file is referred back to the court by the mediator. The court proceedings including evidence, examination in chief, cross examination, arguments for the main petition and any other interlocutory applications of both the parties occur one after the other. Throughout these steps your lawyer contacts you to inform about the dates and if any further documents are required.
STEP 7: Mediation
Mediation is a process where a third person who is neutral mediates the talks between the spouses who are intending to divorce each other. Mediator sees if there is any chance of reconciliation while talking to the parties individually as well as together. You can ask for the presence of your lawyer if you are not able to convey your demands and express your concerns freely. If there is no chance of reconciliation, the next discussion will be on sharing of assets & liabilities, child custody & support, alimony & maintenance and any other issues that are of importance. A common ground is sought through series of discussions, which may take more than one sitting, end of which settlement agreement will be drawn and forwarded to the court only upon reaching consensus. Thereafter the proceedings follow as per the mutual consent divorce.
If these discussions do not yield any compromise between the parties the mediation is said to be failed and the parties are referred back to the court where court proceedings will continue as mentioned in step 6.
What happens if one changes the mind after filing for divorce?
Both or any one of the parties can request the court for mediation if there is any chance of reconciliation or settlement of the divorce proceedings with consensus any time before the final judgment is passed. Similarly the divorce case can be withdrawn by the parties anytime before the final judgment is given.
STEP 8: Decree & Judgment
After the final arguments on both the sides, the court gives its decision based on the facts presented, answering the prayer and counter claims made by both the parties. A date will be set on which the final decision will be announced. If the divorce is granted divorce decree will be given.
STEP 9: Appeal
The aggrieved party to the court decision of the contested divorce can appeal to the higher court within 3 months. However if the Divorce Decree was granted through settlement agreement through mediation process there is no option for appeal. Only in case of any issue related to child custody or property division which was not addressed earlier or any conflict arises further regarding maintenance or alimony, there can be a fresh suit.
