Contested Divorce
In case of a contested divorce, certain specific grounds are required to be fulfilled before the filing of a petition. The reasons for divorce are as follows although not all are applicable to all religions.
Cruelty
Cruelty can be physical or mental. According to the Hindu Divorce Laws in India, if one spouse has a reasonable fear in the mind that the partner’s conduct in all likelihood is injurious or harmful, then there is sufficient ground for obtaining divorce due to cruelty by the spouse.
Adultery
Under Indian laws, if a man who commits adultery (consensual sexual intercourse outside of marriage) can be punished with a criminal offence. The wife may, also, file for divorce as another remedy. However, if a wife commits adultery, she cannot be charged with a criminal offence, though the husband can seek prosecution of the adulterer male for adultery.
Mental Disorder
If either spouse is incapable of performing the normal duties expected in a marriage because of any mental illness then it becomes a valid ground for divorce.
Desertion
A spouse leaving/ abandoning the other without reasonable cause is a valid ground for divorce. However, the spouse who abandons the other should do so to the desert and there should be evidence of it. For instance, as per Hindu laws, the desertion must last for at least 2 continuous years.
Communicable Disease
Under the Hindu Divorce Laws, if a spouse suffers from a communicable disease, such as HIV/AIDS, syphilis, gonorrhea or a virulent and incurable form of leprosy then it is a valid ground for divorce.
Presumption of Death
If either of the spouses has not been heard of by the other spouse as being alive for a period of at least seven years, then the spouse who is alive can obtain a divorce.
Conversion
If a spouse converts to another religion then the partner can seek a divorce. This reason does not require any time limit to have passed before a divorce can be filed.
Renunciation of the World
If either of the spouses surrenders his/her married life and chooses to be a sanyasi, the aggrieved spouse may obtain a divorce on this ground.
We provided a complete road map of consented divorce, it covers the Court and mediation role, how to initiate the processes, compensation and maintenance, custody of child, property and movable article. We create a good environment in which the spouses should talk to each other and reach a conclusion that marriage is not workable, to ease out the tension surrounding them. Our presence helps you to forget the fear of society because apart from husband and wife nobody knows the situation better.
To understand contested divorce better, some common questions have been answered below:
With a contested divorce, a couple has to go through various steps before getting a divorce which includes:
- To prepare, file and deliver the divorce petition (legal paperwork and grounds for the divorce).
- Reply to the petition.
- Hiring an advocate.
- Information and investigation for the divorce process.
- Settlements and negotiations between the advocates of the couple (during the settlement phase, spouses are often unable to resolve issues.
Although the divorce judge may encourage spouses to work things out, when that doesn’t happen the next step is divorce court. If settlement talks are unsuccessful, prepare for court trial. Complete court proceedings where both spouses present witnesses who are then cross-examined by their lawyers and present arguments. After the trial is over, the court will issue a final order stating all of the judge’s decisions which will ultimately finalize the divorce. The decision can be challenged as an appeal, if there is any dispute on the trial judge’s decision(s) or if either spouse feels the need for it.
- Marriage certificate
- Address proof of wife
- Address proof of husband
- Address of matrimonial home
- 4 passport size photographs of marriage
- Evidence proving couple has been living separately for more than 1 year
- Evidence relating to the failed attempts of reconciliation
- Income tax statements for the last 2-3 years
- Details of profession and present salaries
- Information about family of both the spouses
The right of maintenance extends to any person economically dependent on the other spouse in the marriage. When deciding the alimony, the court will take into account the earning potential of the spouse who is entitled to pay alimony and the liabilities.
Various constraints determining the alimony are:
- The status and position of the husband, his income, his assets and his lifestyle.
- The reasonable wants of the wife.
- The wife’s own income or earnings.
Courts generally agree to the decision of the parents in a mutual consent divorce, however, the courts are supposed to see to the best interest of the child.
In a contested divorce, the courts examine the ability of the parents of the child. For instance, money is not the most important factor that is considered, non-working mothers are often given custody of the child with the father expected to provide financial assistance.
The following grounds shall render a marriage void/ illegal:
Bigamy
The offence of marrying someone while already married to another person is bigamy. The subsequent marriage is an illegal marriage. It is void-ab-initio and non-existent.
Lineal ascendants are to be seen from both sides, i.e. from the father’s side as well as from the mother’s side. So, both the father and mother are lineal ascendants fall in degrees of disallowed relationships.
Sapinda relations
Presuming A to be a boy. Since he is regarded as one generation, relatives falling in four more generations upwards from him from the side of his father shall be his Sapinda relations. Therefore, A’s father, A’s grandfather, A’s great grandfather and the father of A’s great grand-father shall all be A’s Sapinda relations. But on the mother’s side, this chain is to extend to only three generations that include A.
Therefore, A’s mother and A’s maternal grand-mother only shall be A’s Sapinda relations from the mother’ side, ‘A’ himself being one generation. Marriages of such relationships are void.
A few common questions about void marriages have been answered below:
A very important question is whether the wife whose marriage is void has a right to claim maintenance from her husband. It is generally held that even in such cases, the wife is entitled to maintenance.
The generally accepted law in such cases is that the wife is entitled to maintenance under Section- 18 of the Hindu Adoptions and Maintenance Act and also under Section- 24 of the Hindu Marriage Act.
According to law, the children are legitimate.
Section-16 of Hindu Marriage Act states that if a child is born out of a void marriage then that child will not be considered illegitimate but shall be considered legitimate despite the marriage being void from its inception. The section provides a relief to the children of void marriages.
How to file for Contested Divorce?
Under the Hindu Marriage Act, 1955 a contested divorce (when one party wishes to go for divorce but the other party does not consent) can be filed based upon different grounds mentioned in the Act. The journey of getting a contested divorce begins by consulting an expert divorce lawyer. You will have to explain your entire marital situation in detail to your lawyer so that he can give the most suitable and best advice and guide the client as per his/her best interest. There is a set procedure for contested divorce as well.
- The procedure has been explained below:
1. Preparing the Petition for Divorce:
In a contested divorce, a single party is required to approach the lawyer as has been stated earlier. The husband/wife seeking divorce would have to explain the facts and the lawyer would be required to prepare the petition based upon these facts and circumstances explained and narrated. The Petition would have to be accompanied by relevant documents supporting the allegations as made in the petition. After it has been finalised, the petition along with affidavits and vakalatnama would be signed by the party contesting, in the presence of a Notary/commissioner.
2. Filing of the Petition:
Once the petition has been prepared and all formalities have been fulfilled, it would be filed before the appropriate family court, depending upon the jurisdiction.
3. Scrutiny of the Petition by Court:
The court would scrutinize the petition on the first date of hearing and also listen to the opening arguments (regarding the allegations and grounds) from the lawyer filing the petition.
4. Appearance of the opposite side party in Court:
Once the court is satisfied that the matter should move ahead and be adjudicated, it would issue a notice to be served upon the other party. After this, a copy of the petition and the notice would be sent to the other party and on the next date of hearing, he/she would have to appear in court along with their lawyer. The opposite party would also have to file a reply to the divorce petition and any other application as the case may be.
5. Direction for Mediation:
Initially, the Court will try to resolve the matter between the parties and may also direct them to appear for Mediation so as to reach an amicable solution. After appearing for mediation with a mediator and in case the mediation is not successful or fruitful, the court would continue with the divorce proceedings.
6. Framing of issues and recording of evidence by Court:
The court would then proceed with the matter and frame issues and record evidence. Both the parties would be required to submit evidence, get cross-examined and produce supporting witnesses. This is the most crucial aspect of the entire proceedings – it decides the fate of the case.
7. Final arguments by counsels of the parties:
Once the lengthy procedure of recording/producing of evidence and cross-examinations is completed, advocates for both the parties would be required to give their final arguments before the Judge. After this, a date would be fixed for the pronouncing of the decision.
8. Final decision by the Court:
The Judge would give its final decision and if it deems fit, would give a decree of divorce. The verdict is based upon the facts and circumstances of each case. If in case the verdict is not accepted by either party, they can file an appeal against the said order, with the help of a lawyer. The limitation to file for appeal is 3 months from the date of the order.
Documents required for contested divorce
Several documents are required for contested divorce. A few are required to prove the ground upon which the divorce has been filed. Some of the essential documents have been listed below:
- Address proof of husband
- Address proof of wife
- Photographs of marriage between the husband and wife
- Certificate of marriage
- Evidence supporting the ground on which divorce is sought (cruelty, adultery, desertion, lunacy, leprosy, presumption of death, conversion to another religion, etc.)
- Professional and Financial proofs
Documents required for contested Divorce
Several documents are required for contested divorce. A few are required to prove the ground upon which the divorce has been filed. Some of the essential documents have been listed below:
- Address proof of husband
- Address proof of wife
- Photographs of marriage between the husband and wife
- Certificate of marriage
- Evidence supporting the ground on which divorce is sought (cruelty, adultery, desertion, lunacy, leprosy, presumption of death, conversion to another religion, etc.)
- Professional and Financial proofs
Grounds for Contested Divorce
You can file for divorce:
a) If he / she has not been heard of as being alive for a period of seven years or more by persons who would have naturally heard of it, had that party been alive;
b) If he / she has after the marriage had voluntary sexual intercourse with any other person;
c) If he / she is treating you cruelly;
d) If he / she has deserted you for a continuous period of not less than two years immediately preceding the presentation of the petition;
e) If he / she has ceased to be a Hindu by conversion to another religion;
f) If he / she is suffering incurably of unsound mind or has continuously or intermittently been suffering from a mental disorder, that you cannot reasonably be expected to live with such a person;
g) If your husband / wife is suffering from a virulent and incurable form of leprosy;
h) If he / she is suffering from venereal disease in a communicable form;
i) If your husband / wife has renounced the world by entering any religious order;
Other grounds available for wife to file for divorce
The aforementioned grounds are available for both spouses; however, there are some additional grounds that are available only for wife; for example, if your husband has been found guilty of rape, sodomy or bestiality, you can ask for divorce.
However, if your marriage whether consummated or not was solemnized before you attained the age of 15 years, and you want a divorce, you can do so but only before attaining the age of 18.
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