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Contested Divorce and its procedure.


Contested divorce is a formal way of seeking a divorce from your spouse who is not agreeable to the idea of divorce. But the reasons for contested divorce shouldn’t be mere your choice to live separately, it should be reasonable ground to prove that the actions, behaviour, omissions or conduct of your spouse has annoyed you to the extent that it made you come to the conclusion that living together is not possible.

Procedure and Court proceedings

            For obtaining a contested divorce you need to consult a good and trustworthy divorce lawyer and explain the whole marital situation and difficulties you are facing in detail to him.

            The divorce lawyer will prepare a Petition as per the facts and circumstances explained and narrated to him by you. You need to provide all the relevant documents and proof related to marriage and also the proofs supporting the allegation made in the divorce Petition

            After completing all the formalities required in preparing the petition, it would be filed along with documents before the appropriate Court by the Divorce Lawyer.

            After filing the petition, it will take few days for matter to be listed for the first hearing or admission. On the first date of hearing, the Judge will hear the opening arguments from the divorce lawyer and carefully examined the documents and proof regarding allegations made in the petition and the grounds on which the divorce is being sought.

            If the Court gets satisfied that matter seems to be carrying some weight and needs to be adjudicated properly, the Court will order to issue notice to opposite party. Subsequently, a formal notice along with a copy of petition will be sent and served to the opposite party.

            On the next date of hearing, the opposite party is supposed to appear along with its lawyer and also file the reply of the divorce petition. If other party despite notice or summons doesn’t represent itself in the court then the court may proceed with the matter in the absence of party which is called proceeding exparte. The other side is also required to file a reply to any application regarding maintenance or child custody, which may have filed along with the petition.

            Initially, The court will always try to resolve the dispute between the parties and for that it may also direct the parties to appear before a mediator for settling their issues. In case the mediation proceeding doesn’t succeed, the court will proceed further with the divorce proceedings.

            The Court will proceed with framing of issues and recording of evidence. Issues basically mean points of adjudication and on which parties have to give their evidence and witness. Examination-in-chief and Cross-examination of the petitioner and its witnesses will be recorded first, followed by Examination-in-chief and Cross-examination of the respondent and its witnesses.

            In the final stage of case, when the evidence of both parties is duly recorded, the respective lawyers of both parties needs to present their final arguments in the court. After hearing final arguments and considering facts and evidence the court pronounces its decision.

            Note: if any party feels aggrieved by the order or doesn’t accept the decision passed by the Court, then the party can file an Appeal against that order within the period of 3 months from the date of the order.  

      

Section 13 of the Hindu Marriage Act, 1955 provides the various ground under which a spouse can file for a contested divorce in India:

(1)  Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party—

   (i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person             other than his or her spouse; or

       (ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or

        (ib) has deserted the petitioner for a continuous period of not less than two years immediately                 preceding the presentation of the petition; or]

   (ii) has ceased to be a Hindu by conversion to another religion; or

  (iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

    (iv) has been suffering from a virulent and incurable form of leprosy; or

    (v) has been suffering from venereal disease in a communicable form; or

    (vi) has renounced the world by entering any religious order; or

   (vii) 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 it, had that party been alive;

(1A) Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground—

(i)        that there has been no resumption of cohabitation as between the parties to the marriage for a period of 8 [one year] or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or

(ii)       that there has been no restitution of conjugal rights as between the parties to the marriage for a period of 8 [one year] or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.

A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground, —

(i)    in the case of any marriage solemnized before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner: Provided that in either case the other wife is alive at the time of the presentation of the petition; or

(ii)     that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality; or

(iii)   that in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) (or under the corresponding section 488 of the Code of Criminal Procedure,1898 (5 of 1898), a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards;

(iv)     that her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.

 

Note: Where both the husband and wife are Hindu, Buddhist, Jain or Sikh, grounds for filing divorce are governed by section 13 of Hindu Marriage Act, 1955.

Grounds of divorce for Muslim Couple

A woman married under Muslim law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds, namely

(i) that the whereabouts of the husband have not been known for a period of four years;

(ii) that the husband has neglected or has failed to provide for her maintenance for a period of two years;

(iii) that the husband has been sentenced to imprisonment for a period of seven years or upwards;

(iv) that the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years;

(v) that the husband was impotent at the time of the marriage and continues to be so;

(vi) that the husband has been insane for a period of two years or is suffering from leprosy or virulent venereal disease;

(vii) that she, having been given in marriage by her father or other guardian before she attained the age of fifteen years, repudiated the marriage before attaining the age of eighteen years: Provided that the marriage has not been consummated; 

(viii) that the husband treats her with cruelty, that is to say,—

(a) habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment, or

(b) associates with women of evil repute or leads an infamous life, or

(c) attempts to force her to lead an immoral life, or

(d) disposes of her property or prevents her exercising her legal rights over it, or

(e) obstructs her in the observance of her religious profession or practice, or

(f) if he has more wives than one, does not treat her equitably in accordance with the injunctions of the Quran;

 

Grounds of divorce under Special Marriage Act, 1954

Where the husband and wife are following different religions and both of them do not want to convert their religion, Section 28 of the Special Marriage Act, 1954 provides ground for divorce for such couple.

 A petition for divorce may be presented to the district court either by the husband or the wife on the ground that the respondent—

(a) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or

(b) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or]

(c) is undergoing a sentence of imprisonment for seven years or more for an offence as defined in the Indian Penal Code (45 of 1860);

(d) has since the solemnization of the marriage treated the petitioner with cruelty; or

(e) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

(f) has been suffering from venereal disease in a communicable form]; or

(g) has been suffering from leprosy, the disease not having been contacted from the petitioner; or

(h) 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 the respondent if the respondent had been alive;

(1A) A wife may also present a petition for divorce to the district court on the ground,—

(i) that her husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality;

(ii) that in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) (or under the corresponding section 488 of the Code of Criminal Procedure, 1898) (5 of 1898), a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards.] 10[(2) Subject to the provisions of this Act and to the rules made thereunder, either party to a marriage, whether solemnized before or after the commencement of the Special Marriage (Amendment) Act, 1970 (29 of 1970), may present a petition for divorce to the district court on the ground—

(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or

(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties. 


If you want to consult a divorce lawyer we will help you to find one. Contact us

or visit http://www.wakeelsahab.in/ for any legal assistance.


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