Procedure of Contested Divorce in India
Contested Divorce is filed when one of the spouses decides to divorce the other without his/her consent. This petition is filed in a court with help of a divorce lawyer, and the court sends a divorce notice to the other spouse.
A contested divorce is based on a fault-based approach. One spouse will accuse the other of some reason because of which the marriage cannot work out.
The courts will then hold a trial and deem whether such a reason is enough grounds for granting a divorce decree to the aggrieved party.
It is imperative that one spouse wants to remain married. So in one interesting case, the wife filed for divorce on grounds of cruelty, and the husband contested the claim of cruelty but stated that he had no qualms about divorcing his wife.
The courts stated that both parties agreed on getting the divorce and the contested divorce petition was dismissed.
The aggrieved spouse can file for a contested divorce in the courts. Gender is no bias in contested divorce cases.
The party which files the case has to prove the case with the support of evidence and documents. On successfully proving the case, divorce will be granted and a divorce decree will be drawn up accordingly.
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Grounds For Contested Divorce
Section 13 of the Hindu Marriage Act provides for 15 grounds under which a spouse can file for Contested Divorce in India. The major grounds under which a Contested Divorce is usually filed are:
- If a spouse, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or
- If a spouse, after the solemnization of the marriage, treated his/her spouse with cruelty; or
- If a spouse, deserted his/her spouse for a continuous period of not less than 2 years; or
- If a spouse, has ceased to be a Hindu by conversion to another religion; or
- If a spouse, has been incurable of unsound mind or has been suffering continuously or intermittently from a 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
- If a spouse, has been suffering from a virulent and incurable form of leprosy; or
- If a spouse, has been suffering from venereal disease in a communicable form; or
- If a spouse has renounced the world by entering any religious order; or any other reason.
Where Should The Divorce Petition Be Filed?
The Government established Family Courts through the Family Courts Act 1984 in many districts. A Petitioner has to approach these to file for a divorce. For the districts which do not have Family Courts established, the petitioner should approach the District Court of the jurisdiction. The Jurisdiction where the petition for divorce may be filed is-
- The place where marriage was solemnized
- The place where wife and husband last resided together,
- The place where the wife is residing at the time of filing of the Petition, or
- The place where the husband is residing at the time of presentation of the petition.
What Is The Procedure For Filing A Divorce Petition?
The Act states that a divorce petition must distinctly state the nature of the case and the claims of relief.
The assistance of a good attorney must be taken for the drafting of the Divorce Petition in a detailed manner as prescribed by the law along with all the required documents and evidence.
The statements contained in the petition should be verified by the petitioner or some other competent person as per the law with a statement that there is no collusion between the parties (husband and wife).
The petition must mention the
- Details of the parties,
- The date and place of solemnization of the marriage and the rituals followed,
- Status and place of residence of the parties (together or separated and since when)
- Children out of wedlock,
- The financial status of the parties and the dependency,
- The grounds of divorce and facts being relied upon,
- Details of any previous attempt at reconciliation, and
- the relief being claimed with respect to marriage, children, and maintenance.