WHAT IS THE CORRECT PROCEDURE FOR CONTESTED DIVORCE IN INDIA ?

When a marriage breaks down, the parties involved cannot continue to live together as a couple, hence the process of divorce is initiated. Filing for divorce will not only affect the couple but also their families. Divorce could either be by Mutual Consent or it could be Contested divorce.

Mutual Consent Divorce could be initiated when both parties agree to end their marriage, whereas Contested Divorce will be applied to when one party is not willing to end the marriage.

The process of Mutual Consent Divorce will be relatively quicker, which could take around 6 to 9 months, however Contested Divorce will take from around 2 to 3 years or even longer in certain cases. The latter will be usually filed by one party against the wishes of the other partner.

Defining Contested Divorce

contested divorce procedure in india:

When One Party to the marriage is Willing, however the Other is Not-

Contested Divorce, could also be called One-Sided Divorce, shall occur when one party to the marriage is willing to dissolve the marriage, however the other spouse is not. The decision to separate is not to be taken mutually by both parties.

This kind of divorce shall take place when one spouse will have grounds for separation as well as having desire to end the marriage. In case of a contested divorce, both parties shall hire separate lawyers in order to represent their interests and contest against each other in the court.

Grounds for Contested Divorce

As has been provided under Section 13 of the Hindu Marriage Act, 1955, various grounds have been provided based on which a Contested Divorce can be filed in India. These include:

• Adultery: When one of the spouses engages in sexual relationships with someone else outside of their marriage.
• Cruelty: in case when one of the spouses causes harm, annoyance, or disturbance to the other partner, leading to problems in their relationship.
• Desertion: if one of the spouses in a marriage willingly as well as knowingly abandons the other partner without providing any justifiable reason and having no intention of returning.
• Conversion: in case one of the spouses converts to other religion
• Mental disorder: if in a situation where one of the spouses is suffering from some kind of mental disability.

Appropriate Court for filing the Contested Divorce:

If filing for a Contested Divorce, it is necessary to understand as to which court has jurisdiction over the case. The Family Court is an appropriate court for cases of contested divorce. Jurisdiction could be determined on the basis of several factors such as:

• The location where the marriage ceremony took place
• The last address where both parties to the marriage have lived together as a couple
• The current address of both the parties.

It is necessary to understand that the jurisdiction of the court could vary on the basis of specific circumstances of the case and it would be favourable for you to consult with a lawyer to determine the appropriate court.

The Step-by-Step Process to File for a Contested Divorce in India

In order to contest a divorce in the Indian courts, following procedure is required to be followed:

1. Filing a petition for divorce: A well-drafted Contested Divorce petition is required to be submitted in the respective Family Court by an experienced Family Lawyer.Once the petition is filed, summons will be issued to the other spouse as notification.
2. Reply by the Opposite Party: Once the summons is sent, the opposite party may submit a reply in the court, outlining their side of the story with the assistance of an experienced Divorce Lawyer.
3. Interim Decision: The court can order for mediation in order to try settling the dispute amicably between the parties before granting a divorce. This process shall be conducted by a neutral person who will help both sides to understand and solve the issue.
4. Evidence: In case the process of mediation is not successful, the proceedings of evidence will begin, in which both parties to the divorce case will have to submit their respective evidence as proof. Examination as well as cross-examination start with the petitioner and then the opposite party would have to fulfil it.
5. Argument: After the evidence has been filed, both parties will be called for the final argument. On its basis, the court will finalise the issue of dissolution of the marriage.
6. Divorce Decree: After the final judgement has been passed and a divorce decree is provided by the court, both parties to the marriage would have to sign the divorce papers so as to bring the proceedings to an end.
7. Appeal: If either party to the divorce case is not satisfied with the order of the respective Court, an appeal could also be filed in the higher court within a period of 3 months from the date from which order was passed by the respective Court.

It should be noted that in the case related to the contested divorce in india, other petitions including the cases related to the Maintenance, Alimony, Child custody, and Property Separation are also required to be dealt with. In a Mutual contested divorce, it can be handled mutually by both parties.

Lead Indiaoffers you a team of experienced advocates who have been successfully handling cases related to divorce maintenance, child custody etc. Hence, for example for filing a contested divorce by husband, if wishes to talk to a lawyer or seek free legal advice, he can contact us.

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