Stages of Contested Divorce Proceedings

A contested divorce is the divorce where the proceedings for divorce have been initiated by one party only. The grounds provided in the following Acts are almost common and a petition can be filed for divorce based on the following grounds only. These are- 

• The Hindu Marriage Act, 1955

• The Dissolution of Muslim Marriage Act, 1939

• The Indian Divorce Act, 1869

• Parsi Marriage and Divorce Act, 1936

• The Special Marriage Act, 1954

The grounds provided for divorce procedure in India are mainly- Adultery, Cruelty, Desertion, Conversion, Grave mental Disorder, Communicable venereal diseases, Other grounds such as the impotence of the spouse, imprisonment, failure to provide maintenance, etc.

Kinds of Divorce- 

The parties to a marriage, if they are not comfortable in continuing the relationship and wish to separate or end the relationship altogether, they opt for divorce. The divorce could be agreed by both parties or could be non-agreeable to one of the parties.

When both husband and wife agree to end their relationship, they could file a joint petition for divorce, in this case the divorce is applied by the mutual consent of the parties. 

In case one of the parties wishes to separate from the other party without the agreement of the other partner, for reasons such as cruelty or adultery of the partner etc. The party could file a petition for divorce on the ground provided by the law, making the other party defendant in the case. The divorce in this case is called a contested divorce.

Different stages of a contested divorce- 

While applying for a contested divorce, various stages of the legal procedure have been provided. These are-

Appointing the attorney- 

One of the most important steps before applying for divorce is to appoint an appropriate experienced advocate. Selecting an advocate would decide the course of action on your case. After going through the facts of your case only, the lawyer could decide the grounds on which the divorce petition  has to be filed.

Either of the parties could file for divorce- 

After the appointment of the advocate, all information and the documents are to be duly provided to the advocate. Based on the documents and the facts of the case the advocate shall draft a divorce petition and file it in the appropriate court. The primary jurisdiction in the matters of divorce lies with the family court. After a petition is filed, notice is served to the other party by the plaintiff or through the court.

Appearance before the Court and reconciliation- 

After the notices are served the parties appear before the court. If the court believes that there is a chance of reconciliation, the matter is forwarded to the Legal Services Authority where there are conciliators. The probability of reconciliation is looking for and the issue between the parties is trying to be settled. 

If the parties agree to settle the issue, then the petition is withdrawn from the court, if not then the following stages shall be followed.

Reply from the respondent-

At this stage the respondent files the reply to the petition filed by the plaintiff for divorce. 

If he/she is not in favour of the divorce, the defendant has to deny the allegations made against him/her. If the allegations are not denied specifically, it would be deemed that the defendant is agreeing to the allegations made. 

Settlement-

After assessing the documents and the facts of the case, the court settles for the points of consideration which have to be decided under Order XIV of the CPC. These points are the result of the unresolved conflict of the parties which have led to the petition for the divorce. At this stage, the Court might refer to the third party negotiation.

Trial-

The court determines the date for hearing and the examination of the witnesses. Before this, the summons was served to the witnesses to attend the proceedings in the court on a particular date. Cross- examination as well as final hearing are also included in this stage.

Order/decree-

After concluding the matter based on the arguments from both parties as well as the evidence provided, the Court pronounces its order or issues the decree granting or denying the divorce. 

Appeal-

The decree so provided can be challenged on appeal to the High Court with jurisdiction over the Family Court. A further appeal can be filed to the Hon’ble Supreme Court of India. Section 28 of the Hindu Marriage Act, 1955 or Section 39 of the Special Marriage Act, 1954 provide for the appeal in the Higher courts for the decree of divorce. 

In conclusion, it could be summarised, that the contested divorce proceedings may take a longer period of time, it would be preferable for the parties to file for divorce through a joint petition, i.e. Divorce by mutual consent. Also, in the case of a contested divorce, the most important factor is the appropriate legal representative, who if experienced, could ensure that your interests are taken care of in the court proceedings. 

In this regard, Lead India could assist you in a better way, as we offer you a team of experienced advocates, who have successfully dealt with the matters involving family laws as well as issues including divorce petitions, cases for child custody, maintenance, etc.