Contested Divorce in India: Process, Grounds, Documents and Legal Information
When a marriage breaks down but both the spouses are unwilling to separate mutually and one spouse moves the court to get divorced, it is a contested divorce. As compared to a mutual divorce, a contested divorce case is complex.
During proceedings, the petitioner must prove a legally sound basis for divorce.
Depending on applicable marriage laws and the specific facts and circumstances of each case, the process and the grounds for divorce can differ.
What Is Contested Divorce?
A contested divorce takes place when the spouse who applies for divorce wants to terminate the marriage while the other spouse disagrees with the application for divorce or denies that any of the allegations made by the petitioner are true.
For instance, if one spouse has applied for a divorce on the ground of cruelty and the other denies that any of the cruel acts took place, such a case is classified as a contested divorce.
As per the Hindu Marriage Act, under the law, cruelty and desertion are just two of the grounds specified under its Section 13.
What Are Common Grounds for Contested Divorce?
The grounds for divorce under the Hindu Marriage Act vary depending on the specific facts and circumstances of each case.
As explained below, few important grounds of contested divorce under Hindu Marriage Act are as follows:
1. Cruelty
As cruel behavior could make it impossible for a person to continue living with the other person, cruelty is a potential ground for divorce.
To claim that cruelty is the ground for divorce, one has to submit facts and circumstances as described under Section 13(1) of Hindu Marriage Act.
2. Desertion
Desertion is also considered to be a valid ground for divorce.
As per Hindu Marriage Act 1955, under the Statutory Law, the person applying for divorce must state that he/she has been deserted by his/her spouse continuously for at least two years before initiating any formal procedure for a contested divorce.
To prove the desertion claim, an applicant for divorce has to submit facts and circumstances related to it.
3. Adultery
Adultery implies voluntary sexual intercourse with a person other than one’s own spouse after one’s marriage. Voluntary sexual intercourse with a person other than one’s own spouse after one’s marriage is a ground for divorce as per Hindu Marriage Act 1955.
4. Other Statutory Grounds
Other than those mentioned above, additional grounds could also apply.
Therefore, in a given situation, it is pertinent that an applicant for divorce identifies the most appropriate statutory ground.
Contested Divorce Process in India
Despite some differences pertaining to each case, the contested divorce procedure mostly comprises the following stages:
Step 1: You Should Consult With Family Law Lawyer About Your Marriage
The person whose goal is to get divorced ought to consult with a family law lawyer to obtain the appropriate information regarding the legal grounds for divorce or reasons.
Step 2: Preparing the Divorce Petition Based on Applicable Ground
The divorce petition should include applicable grounds, facts and supporting documents.
Step 3: You Ought To File the Petition With The Appropriate Court
Once again, after preparing the petition, file it with the relevant court having territorial and personal jurisdiction over the matter.
Step 4: Sending Notice to Another Spouse That One Seeks Divorce
The other spouse has to be served a notice signifying the fact that one seeks to end the marriage via divorce.
Step 5: Written Statement, Denial and Claim
The respondent (another spouse) needs to file a written response, which could include denial of allegations and counterclaim.
Step 6: Evidence
Documents pertaining to evidence become pivotal after this step, which implies that one must be prepared to submit the documents related to any of the evidence that could be relevant to any of the allegations and defenses that have been made.
Step 7: Arguments
After submitting the evidence, time comes for each party to orally present the arguments on record (such arguments could also be submitted in writing also).
Step 8: Judgment and Decree
In response to each party’s arguments, the court renders a judgment and passes a decree in accordance with the Hindu Marriage Act 1955. The rendered judgment and decree shall be a formal determination of issues and a direction regarding rights.
What Are Contested Divorce Papers One Should Prepare?
Among the papers that one should prepare for include:
Marriages certificate or any other documents indicating that a marriage did take place
Identity and address documents
Photographs
Proof related to allegations or issues
Records that could be relevant to correspondence
Financial documents (if money has to be paid or received)
Facts pertaining to any issues regarding children
Any previously issued order or document
Anything else that could be relevant to any of the allegations or issues
Whenever possible, one must retain the original and make an extra copy of any relevant documents.
Contested Divorce and Children Custody, Attendance Rights And Maintenance
When parents get divorced, they also need to address such issues such as rights of custody of children, visitation rights and financial aspects related to any of these issues. Courts take all the relevant law into account while dealing with any of the matters.
Therefore, it is important for the parents to keep welfare of the children at the foremost position during the proceedings pertaining to contested divorce.
Other than child related issues, financial issues also become a significant facet of a divorce case.
Depending on the applicable Statute, any one of the spouses could file a claim for maintenance or any spouse might have to pay a lump sum money. The personal income and circumstances, responsibilities and living standards of each spouse are relevant aspects when it comes to resolving issues related to child custody or money.
Timeframe for Contested Divorce in India
Contested divorces take place when people are not willing to reach a settlement.
Depending on the applicable law and the number of days and hearings that the court will be ready to assign to the ongoing case, each kind of court related matters can have a different duration.
Other factors that can also influence the timeframe for contested divorce include pending applications and challenges against any orders, number of pleadings and evidences. Therefore, it is safer to avoid generalizing.
Mutual Divorce V/S Contested Divorce
The difference between a mutual divorce and a contested one is that when a mutual agreement exists between the parties, they tend to make appropriate claims and allegations against each other.
The main aspect that differentiates a mutual divorce from a contested one is that, under Section 13 B of the Hindu Marriage Act, in a mutual divorce case, both the parties (petitioner and respondent) agree to pursue the case jointly, while in a contested case, one spouse applies for divorce (petitioner), while the opposite party denies any of the allegations and the court decides what should be done.
Tips for Filing Contested Divorce
When one is contemplating the procedure of filing a contested case, he/she should ensure that:
It is essential to keep the evidence and documents safe and secure;
In addition to keeping the documents safe, it is significant to keep the records;
Do not destroy or tamper with any kind of potential information;
Respectfully adhere to all the court orders;
Avoid going publicly or posting about one’s issues on social media;
Keep one’s lawyer informed at all times
Contested cases are complex and thus it is important to understand the issues and potential agreement before one approves anything;
Seek legal advice before signing legal documents;
Conclusion
A contested marriage termination via divorce is complicated as there is no understanding or consensus between the parties.
Depending on the marriage law, which applies to each individual and on the merits of the specific case, grounds and procedure of contested divorce can differ.
Those individuals who wish to pursue contested divorce should know the statutory grounds for applying for divorce, gather the evidence and documents, consult With Family Law Lawyer before initiating or responding to any case.
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