Is Your Spouse Not Agreeing To Divorce? Know The Contested Divorce Process In India

Introduction

Are you struggling in your marriage and want to get divorce, but your partner is not ready to give you divorce? Or are you confused about your rights and process of contested divorce? Basically, this situation become emotionally and legally challenging to a person. 

Are you confused that where and how to start with the procedure? The process involves various legal method and strategy, so it is advisable to hire an expert lawyer if you are suffering the same. Though this process is time consuming, but it is only legal way to safeguard your rights and dignity.

On what legal grounds can you file a contested divorce in India?

When either spouse does not consent or agree to give divorce, then you have an option to file for contested divorce. The contested divorce is filed on the specific legal grounds mention under Section 13(1) of Hindu Marriage Act, 1955. 

1. Adultery - Section 13(1)(i), Hindu Marriage Act, 1955

When either partner is engaged in extra martial affair along with sexual relationship, the other partner has right to take divorce. Earlier adultery was punishable under Indian laws but now it has been decriminalized and is considered only a legal and valid ground of divorce.  

2. Cruelty - Section 13(1) (ia), Hindu Marriage Act, 1955

If you are facing cruelty, threat, harassment and abuse by your partner and in laws, you can file for contested divorce. It includes constant abuse, domestic violence and false allegations.

3. Desertion - Section 13(1) (ib), Hindu Marriage Act, 1955

If your partner abandoned, you continuously without any reason and without your consent for at least two years then you can file for contested divorce.

4. Conversion of Religion - Section 13(1)(ii), Hindu Marriage Act, 1955

If your partner has converted to some other religion, without your consent then you can file for contested divorce.

5. Mental Disorder or Unsoundness of Mind - Section 13(1)(iii), Hindu Marriage Act, 1955

You can take divorce from your partners if spouse is suffering from some serious mental disorder or if he/she is of unsound mind and making your marital life impossible.

6. Venereal Disease- Section 13(1) (v), Hindu Marriage Act, 1955

A spouse suffering from a serious and communicable venereal disease can be a valid ground for contested divorce.

If your partner is suffering from communicable diseases venereal disease, which can harm even your health, is considered a valid ground for divorce.

7. Renunciation of the World - Section 13(1)(vi), Hindu Marriage Act, 1955

If your spouse joins a religious order (such as becoming a saint, monk, sanyasi, sadhu, or nun) by giving up all nominal family life, duties and responsibilities, you can seek contested divorce.

If your spouse has renounced worldly life by joining a religious order, you can file for divorce.

8. Not Heard Alive for Seven Years- Section 13(1)(vii), Hindu Marriage Act, 1955

If your spouse has not been heard of as alive for seven years, the court may grant divorce.

Can the same grounds apply under different personal laws? 

Generally, the legal grounds are common and applicable to different personal laws but the condition and sections mar vary depending on the law.

Cruelty, adultery, desertion, and mental illness are known to be as common grounds under Hindu Marriage Act, 1955, Special Marriage Act, 1954 and Indian Divorce Act, 1869

Some other grounds like renunciation of the world applies only to Hindu Marriage Act, on other hand Christian and Muslim may follow different procedures and principles. So, is it very crucial to first identify which personal law applies to your marriage.

Where should you file the contested divorce case?

The petition of divorce is filed in district court or family court. Either spouse can file a petition where marriage was solemnized, husband or wife last resided, or the respondent currently resides, in some cases the wife can also file the petition at the time where she is residing at the time of filing it.

What documents are required to file for contested divorce?

• Marriage certificate, it is a most important document which proves that marriage has been legally registered and it is considered as an official evidence of your marital status.

• Identity proofs of both spouses, it can be Aadhaar, PAN, Passport as it authenticates the identity of a person to remove any fraudulent claims.

• Address proof, it can be ration cards, voter ID cards, electricity bill or rent agreement. It is essential because it determine that where the jurisdiction of family court.

• Passport-size photos of both spouses are required for filing documents and maintain the records of case.

• Income documents like salary slips, tax returns are financial documents which is used to determine the alimony, maintenance and division of assets.

• Evidence plays a crucial role, if the divorce is filed on the basis of adultery and cruelty then the supporting evidences must be provided like what’s app chat, record of hospital, witness statement or any other relevant proof.

• Children’s birth certificates also become important when the couple has children, as it determines the custody of child.

What happens after filing a contested divorce petition?

Firstly, you should hire an expert lawyer before filing a contested divorce petition in court, who will assist you with the best course of action and with all the legal procedures to move forward step by step. Once divorce petition is filed in court then:

1. Court issues notice to the spouse: The court will issue a summon to the other party to notify them about their physical presence in next hearing. 

2. Reply / Written Statement by the other spouse: After being served with the summon, the other party submits a reply to the court by presenting their side of the story and responding to the claims made in the divorce petition. If they have their own grievances, they can also file counter – claim.

3. Mediation or counselling: The court may also order the process of mediation to help both the parties settle the matter in an amicable way. A neutral mediator assists both parties with best course of action in understanding their issues and reaching to a particular solution. If this fails, the case moves further.

4. Framing of issues: Then the court reviews and identifies the main issue which needed to be proved during trial.

5. Evidence stage: The court will proceed to evidence stage. Both the parties will present proof supporting their claims, including documents, witness statements, and other relevant material for consideration. This the time consuming process of contested divorce.

6. Final arguments: After presenting the evidence, both the parties give their final arguments. The court estimates all submissions and arguments to figure out the result regarding the ending of marriage.

7. Judgment by the court: The court issues the final divorce decree. Both husband and wife sign the divorce decree, making the divorce legally obligatory and officially ending the marriage.

It is important to know that this required proper documentation, patience and strong legal strategy to take divorce decree. That’s why it is crucial to hire an experienced family lawyer who will protect your side at every stage of process.

What if your partner denies or avoids the summons? 

If your partner denies or refuse to accept summon despite multiple attempts, then court can grant ex parte decree. It means that court may decide the matter in your favor without the presence of other party, based on your evidence alone.

Can you get maintenance during the proceedings of a contested divorce?

If you are facing financial crises during the ongoing process of contested divorce, then you have right to seek interim maintenance from your partner under Section 24, Hindu Marriage Act, 1955 and Section 36, Special Marriage Act, 1954. Both husband and wife has right to seek maintenance. The amount is decided on the basis of income of payee partner and lifestyle of other partner who is willing to seek maintenance.

What if your partner threatens or harasses you during divorce proceedings?

If you are facing threat and harassment during divorce proceedings, then you can file a police complaint for criminal intimidation. Moreover, woman can seek protection under the Domestic Violence Act, 2005. This conduct will strengthen your legal ground of cruelty to take divorce.

Can contested divorce convert into mutual consent later?

A contested divorce can be converted into mutual consent if both spouses later agree to separate peacefully. They can file a joint petition for mutual divorce under Section 13B, Hindu Marriage Act, 1955 or Section 28, Special Marriage Act, 1954. This often saves time, cost, and emotional stress.

How Lead India can help you?

1. Trustworthy & Confidential - We assure you that all your personal details & documents must be kept private. We never share these details with anyone.

2. Expert Advice - Clients need expert advice before proceeding with any issues troubling them. We have the most experienced lawyers who provide you with the best guidance and procedure required. 

3. Zero Stress - The partners do not have to worry about the paperwork & complex process at the court. Our Associate will perform all these actions at the court.

4. Top Quality Lawyers - Lead India Law Associates will help you to choose among the best divorce lawyers for your mutual divorce. There are different associates who work with us, you can choose a lawyer depending upon their practice area, experience & user rating.