What is contested divorce?
A contested divorce is one where the husband or the wife wants a divorce, but the other spouse does not. Even when both the parties want a divorce, but cannot agree on any issue such as alimony, custody of children, etc., it is a case of contested divorce. A party wanting to file a contested divorce has to show the court valid reasons (called ‘grounds’) for wanting to separate. Such grounds can be challenged by the other party. This makes contested divorce proceedings long, stressful and relatively expensive. It often happens that a couple starts the divorce proceedings by way of a contested divorce, but over the course of the trial, agree to divorce by mutual consent.
What are the grounds for divorce?
The law permits a court to pass a divorce order only if there are proper causes. Grounds for divorce are the reasons which the court checks before granting the divorce. In India, the grounds of divorce are decided based on the religion of the ouple. Before that, here are eleven terms that you should understand. In these terms, “petitioner” means the person who has filed for the divorce.
- Adultery: Means any kind of sexual relationship of the petitioner’s spouse outside their marriage
- Cruelty: Means any kind of mental or physical injury caused by the spouse, that results in danger to life, limb or health of the petitioner
- Desertion: Means a voluntary leaving behind, forsaking or disowning the petitioner by the spouse, without any reasonable cause
- Conversion: Means a conversion by the spouse into another religion
- Mental disorder: Means an incurable unsound mind, including insanity, of a nature where the petitioner cannot be reasonably expected to live with the spouse.
- Leprosy: Means a virulent and incurable form of leprosy of the spouse
- Venereal disease: Means the spouse suffers from a disease that can be contracted and transmitted by sexual contact.
- Renunciation: Means the spouse gives up the family and worldly life by embracing any particular religious order
- Not heard alive: Means the spouse is not known to be alive by those who are expected to naturally hear from him or her (such as close family)
- No resumption of cohabitation: Means the couple does not resume living together after a court’s order of their judicial separation
- No restitution of conjugal rights: Means the couple has not started living as a married couple after the court’s order of restitution of conjugal rights
Grounds of divorce for Hindu, Buddhist, Jain or Sikh couples
Where both the husband and wife are Hindu, Buddhist, Jain or Sikh, the Hindu Marriage Act, 1955 applies.
As per this Act, the following grounds are available to the petitioner:
- Adultery of spouse
- Cruelty by spouse
- Conversion of spouse
- Mental disorder of spouse
- Leprosy of spouse
- Venereal disease of spouse
- Renunciation by spouse
- Spouse not heard alive for 7 years or more
- No resumption of cohabitation by spouse
- No restitution of conjugal rights by spouse
In addition to the above grounds, there are three other grounds which are available only to the wife (not to the husband).
These grounds are:
- 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
Grounds of divorce for Muslim couple
Under the Muslim personal law, the husband can divorce the wife through the Dissolution of Muslim Marriages Act, 1939.
Grounds of divorce for Inter-caste marriage
Where the husband and wife are following different religions and both of them do not want to convert their religion, the Special Marriage Act, 1954 applies.
As per this Act, the following grounds are available to the petitioner:
- Adultery of spouse
- Desertion for 2 years or more by spouse
- Imprisonment for 7 years or more
- Cruelty by spouse
- Mental Disorder of spouse
- Venereal Disease of spouse
- Leprosy of spouse
- Spouse not heard alive for a period of 7 years or more
- No resumption of cohabitation
- No restitution of conjugal rights
In addition to the above grounds, there are two other grounds which are available only to the wife (not to the husband). These grounds are:
- 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.
Grounds of divorce for Christian couple
Where both the husband and wife are Christians, the Indian Divorce Act, 1869 applies.
As per this Act, the following grounds are available to the petitioner:
- Adultery of spouse
- Cruelty by spouse
- Desertion for 2 years or more by spouse
- Conversion of spouse
- Leprosy of spouse for 2 years or more
- Venereal disease of spouse for 2 years or more
- Spouse not heard alive for 7 years or more
- No restitution of conjugal rights by spouse
- Non-consummation of marriage owing to wilful refusal of spouse
- In addition to these grounds, a Christian wife may file for a divorce also on the ground that after the marriage, the husband has been guilty of rape, sodomy or bestiality.
The court will examine the facts before passing an order for divorce. It will not pass an order of divorce if it finds that the petitioner’s case has not been proved (that is, the grounds are not proved), or that the petitioner has himself or herself been involved in causing the adultery complained of, or that the petitioner has resumed marital relations and forgiven the adultery complained of.
Grounds of divorce for Parsi couple
Where both the husband and wife are Parsis, the Parsi Marriage and Divorce Act, 1936 applies.
As per this Act, the following grounds are available to the petitioner:
- Wilful refusal of spouse to consummate the marriage for one year
- Unsound mind of the spouse from time of the marriage till date of filing the case. In this case, the plaintiff will have to show that he/she was ignorant of this fact, and the case has to be filed within three years from the date of the marriage
- Unsound mind of the spouse for two years up to the date of filing the case
- Adultery, fornication, bigamy, rape or an unnatural offence by the spouse. In such a case, the case has to be filed within two years after the plaintiff came to know of the fact
- Cruelty
- Grievous hurt to the plaintiff caused voluntarily by the spouse. In such a case, the case has to be filed within two years
- Venereal disease caused to the plaintiff by the spouse. In such a case, the case has to be filed within two years
- Imprisonment of spouse for at least seven years for an offence under the Indian Penal Code, and the spouse has already undergone at least one year’s imprisonment
- Desertion for at least 2 years
- A court has ordered payment of maintenance to the plaintiff, and they have not had marital intercourse for at least one year after such order
- In such a case, the case has to be filed within two years
- No resumption of cohabitation by spouse
- No restitution of conjugal rights by spouse
- Procedure for contested divorce
- If you want a divorce irrespective of the consent of your partner, you should first ascertain the grounds on which you can file your divorce. Many of the grounds, such as cruelty, are subjective. It is advisable to consult an expert advocate about your particular case.
- The legal proceedings start when the ‘petitioner’ (the person who has filed for the divorce) sends a legal notice to the other, asking for divorce. Depending on the response of the other party, the petitioner files a divorce petition in the family court. Along with the divorce petition, evidence and relevant documents supporting the claim of the petitioner are also filed. Once the court receives the petition and the supporting papers, it issues a notice to the other spouse (called ‘respondent’), and asks the respondent to appear before the court. If the respondent wishes to appear before the court, the respondent submits a reply to the divorce petition. If the respondent chooses not to appear before the court, or chooses not to contest the divorce, the court proceeds ex-parte (i.e. without the presence of the respondent).
- Once all written proceedings are complete and documents are filed, the court proceeds to frame the issues. Issues are the matters which are in dispute between the parties, and on the basis of which the court has to pass its judgement. The trial starts, and the parties are called in to submit evidence in support of their claims. This trial is held over multiple hearings, and involves inspection of documents and examination of witnesses, if necessary. In an ex-parte case, the court considers the submissions and evidence provided by the petitioner, and decides the truthfulness of the petitioner’s claims.
- After the trial is complete, the court considers the submissions and evidence presented before it by both the sides. It then pronounces its decision. This decision contains the brief facts of the case, the decision of the court and the basis of the decision. This entire process of getting a contested divorce takes 2 – 3 years or more to complete. During this time, if the parties agree to dissolve their marriage on mutual terms, the court may pass a divorce decree based on such terms.
Maintenance
Maintenance or alimony is the financial support paid by one spouse to another during the pendency of divorce and after the divorce proceedings are concluded. This can be a one-time payment, or a recurring payment for certain duration of time. Generally, the court directs the husband to pay alimony to support the wife till such time that the wife is financially independent or till the time she remarries. If the spouses have children, the order provides for support and education of the children.
Some of the factors taken into consideration for determining maintenance are:
- Current financial position of the spouses
- Duration of marriage
- Age of the spouse receiving the maintenance
- Personal law of the spouses
It is the obligation of the husband to maintain his wife and children. Section 125 of Code of Criminal Procedure comes to the rescue of desolate women. Section 125 makes provision for granting maintenance by the husband to desolate or divorced wife and children. An estranged wife can approach the court under this provision for claiming maintenance from her husband.
Streedhan
Streedhan is the property which a woman receives at the time of her marriage. This property may include jewellery gifted by her family or by her in-laws, gifts received during the wedding, immovable articles, and dowry given by her family. Streedhan also includes the articles purchased by her after marriage from her own income. The court have time and again ruled that the wife has an absolute and exclusive right over her streedhan. The wife is free to sell or dispose off her Streedhan during her lifetime, or can pass it on to her legal heirs through a Last Will. Her husband and her in-laws have no right over her Streedhan.
Child custody on divorce
Custody of minor children is one of the most important aspects of divorce proceedings. The personal laws regarding marriage and divorce of the parents makes provision for custody of the child. During a contested divorce proceeding, the issue concerning child custody becomes a matter for the court to decide. Custody can be of two types: legal custody and physical custody. Legal custody means that the parent can make the decisions affecting the child, such as deciding the child’s school. Physical custody decides with which parent will the child stay. Generally, both the parents continue to share the legal custody of the child and one of the parents is given the physical custody, which depends upon the age of the child. The court’s decision on custody of the child is made keeping the best interests of the child in mind. As a general rule if a child is under five years of age, then the custody is awarded to the mother. In other cases, the court decides the custody of the child depending on the age and gender of child, and taking into consideration each parent’s financial and social position. The court also takes the child’s willingness into consideration. If the custody of the child is with the mother, then the father can move an application for the custody of a child under the Guardians and Wards Act, 1890 (applicable to all religions), the Hindu Minority & Guardianship Act, 1956 if the parties are Hindus), Section 41 of the Indian Divorce Act, 1869 (if the parties are Christians).
Khanna & Associates LLP 