“They say marriages are made in heaven. But so is thunder and lightening.” — Clint Eastwood
At times, despite our best efforts, life takes a turn for the worst. We may have wanted different things from life, but life’s got its own plan as well. A bad marriage is something which nobody hopes for, but at times, that’s exactly what we are given and forced to face head on.
The Hindu Marriage Act, 1955 provides for 2 ways to obtain divorce from your spouse:
- Contested Divorce under Section 13 of the Act
- Mutual Consent Divorce under Section 13-B of the Act
I’ve already talked about Procedure for Mutual Consent Divorce in one of my earlier articles. Today I shall talk about Procedure for Contested Divorce as per Hindu Marriage Act in India.
Of course, the easiest way to obtain a Divorce is by Mutual Consent of the husband and wife. However, at times, the circumstances are not that easy, the situations are not that easy, and the other spouse itself may not be easy to handle as well. In that case, the only option left is to apply for a Contested Divorce under the Hindu Marriage Act.
A spouse cannot file for Contested Divorce citing any reason it thinks is good enough to legally separate from his/her partner. There are specific grounds laid down under the Hindu Marriage Act, and only under these grounds can a Contested Divorce be filed in Court.
Grounds For Contested Divorce
In totality, Section 13 of the Act provides for 15 grounds under which a spouse can file for Contested Divorce in India. The 9 major grounds under which a Contested Divorce is usually filed are:
#1: If a spouse, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or
#2: If a spouse, after the solemnization of the marriage, treated his/her spouse with cruelty; or
#3: If a spouse, deserted his/her spouse for a continuous period of not less than 2 years; or
#4: If a spouse, has ceased to be a Hindu by conversion to another religion; or
#5: If a spouse, 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 other spouse cannot reasonably be expected to live with that spouse; or
#6: If a spouse, has been suffering from a virulent and incurable form of leprosy; or
#7: If a spouse, has been suffering from venereal disease in a communicable form; or
#8: If a spouse, has renounced the world by entering any religious order; or
#9: If a spouse, has not been heard of as being alive for a period of 7 years or more by those persons who would naturally have heard of him/her, had he/she been alive.
If a person wishes to divorce his/her spouse, his/her case needs to falls under one of these grounds, or else the case would most likely be dismissed by the Court on the very first hearing itself.
Incompatibility between the couple and/or irretrievable breakdown of marriage is not yet a valid ground for filing a Contested Divorce as per the Hindu Marriage Act in India.
Procedure For A Contested Divorce
A person’s journey towards obtaining a Contested Divorce would begin by consulting a trustworthy Divorce Lawyer of choice. The person would need to explain the whole marital situation in detail so that the Divorce Lawyer is able to advise correctly as per law and in the person’s best interest.
Next, the Divorce Lawyer would be required to prepare a Divorce Petition as per the facts and circumstances narrated and explained by the person seeking the Contested Divorce. The Petition has to be accompanied with all the relevant documents pertaining to the proof of marriage and also the documents supporting the allegations made in the Divorce Petition.
Once the Petition has been finalized, the person would be required to sign the Petition, supporting Affidavits, Vakalatnama, etc. in the presence of an authorized Oath Commissioner/Notary.
After the completion of all the formalities, the Divorce Petition would be filed before the appropriate Court by the Divorce Lawyer, as per the applicable territorial jurisdiction.
Normally, a Contested Divorce Petition is listed for hearing within 7-10 days from the date of filing, however, it may take few or more days to get listed subject to the workload of the Court which is to hear the Divorce case.
Now, before the actual Divorce proceedings can begin, the Divorce Petition itself needs to be admitted by the Court. On the first date of hearing, the Judge would carefully study the Petition and hear opening arguments from the Divorce Lawyer regarding the allegations made in the Petition and the grounds on which the Contested Divorce is being sought.
Once the Court is satisfied that, on a preliminary level, the case seems to be carrying some weight and needs to be properly adjudicated, the Court would issue a formal notice of the case to be served upon the opposite side. Subsequently, a copy of the notice along with the Petition would be sent to the opposite side.
On the next date of hearing, the opposite side is supposed to appear in person along with its Lawyer and also file its reply to the Divorce Petition. The other side is also required to a file a reply to any Application (usually for maintenance or custody of child) which may have be filed along with the Divorce Petition.
At the initial stage of the case, the Court will try to resolve the dispute between the parties, and will also direct both the parties to appear before a Mediator for an amicable solution to their marital issues.
In case the mediation sessions are not fruitful and the issue between the parties are not resolved, the Court would continue further with the Divorce proceedings.
If an Application for maintenance is filed (usually) by the wife, the Court would first decide the Application so as to ensure financial security of the wife during the pendency of the Divorce Petition.
Subsequently, the Court would proceed towards framing of issues and recording of evidence. Examination-in-Chief and Cross-Examination of the Petitioner and its supporting witnesses would be recorded first, followed by Examination-in-Chief and Cross-Examination of the Respondent and its supporting witnesses.
This is the most crucial stage of the entire case. It has the potential to make or break a case. Therefore, the stage of recording of evidence usually takes a lot of time and a lot of hearings to conclude.
After the evidence of both the parties has been recorded, the Divorce Lawyers for both the parties would be required to address their final closing arguments before the Court. Subsequent to which, the Court would fix a date on which it shall pronounce its decision.
In case, the decision passed by the Court is not acceptable to either of the parties, that party can file an Appeal against that Order within a period of 3 months from the date of the order.
This was only a brief outline of the entire process involved in a Contested Divorce case. There is obviously a lot of work which goes into the entire case, and the legal complexities varies from one case to another, which is beyond the scope of this article.
- Disclaimer: This article is not a substitute for professional legal advice. This article does not create an attorney-client relationship, nor is it a solicitation to offer legal advice.
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What happens in the case of the respondent not coming to the court after having been served notice? Assuming that the court issues a divorce decree, will one have to wait to get remarried? how long in such cases?
Very helpful for mock test case
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Got great tips for going through a divorce. I like how you said that the lawyer you hire really is on your side. I’ll tell my sister that since she is planning on going through one soon.
Blogging is not my day job definately. Im trying to market my
business by attempting to reveal it. But crap is it ever
difficult. I do admire your posts, and I simply needed to comment to
offer you kuddos on wonderful content and information.
Blogging is not my day job. Im trying to market my
business by wanting to write about it. But crap is it ever
difficult. I do admire your articles, and I simply had to comment to
offer you kuddos on wonderful content and information.
It is a great blog post about DIVORCE AS PER HINDU MARRIAGE.I am always read your blog helpful and informative tips. I like it thanks for sharing this information with us
I’ve been looking for someone to explain it in simple terms and you’ve done it.
But I have question,
Can divorce be filed if one is in India and other is in different country?
Comments are closed.