Terminating a marriage is one of the toughest and testing decisions in an individual's life which must be dealt with proper caution. When tough situations in a marriage are not resolved can turn down the marriage leading to divorces. There are several reasons or grounds divorces, from cruelty, adultery to being subject to grave mental harassment and desertion. Divorces can be mutual with consent of both the spouses as well as contested. This Article deals with contested divorce and explains the process of the contested divorce. The Article also gives a fair idea on the grounds available on which contested divorce can be filed.
Background Of Contested Divorce
The most common grounds of the contested divorce has been discussed below with case laws briefly. One can file a contested divorce where the marriage of the couple took place. It can also be filed at the place where both the spouse resided together last or where the respondent resides. If a contested divorce is being filed by a wife then the place for filing the divorce is the place where the wife resides while filing the petition.
A contested or uncontested divorce petition must include information and details of both the spouses including their address. The divorce petition must also state the reason or ground for divorce, wishes of the spouse for custody of the child as well as the date of separation of the spouses if they have been living separately. It provides that at least one year must be completed from the date of the marriage for filing a mutual divorce.
Further contested divorces take a longer period to be resolved than the uncontested of mutual divorce. Therefore, contested divorces are expensive.
Grounds Of Contested Divorce
Adultery- When one spouse is involved in voluntary sexual intercourse with any other person being married or unmarried, forms adultery thereby becoming one of the ground for divorce. Earlier the section 497 of the Indian Penal Code made adultery a punishable offence. However, in 2019 it was repealed. It is at the discretion of the spouse who is loyal whether to file for divorce or not. Adultery the loyal spouse has the right of filing the divorce. All the laws governing marriages as well as in different religions have recognised adultery to be a valid ground for divorce. The burden of proving the allegation lies on the spouse who alleges such an affair. It is an important principle while contesting divorce on this ground for the party alleging adultery.
Cruelty- As mentioned earlier cruelty is the common ground for a contested divorce. With the amendment of the Hindu Marriage Act in 1976 cruelty was included as a ground for divorce. The term 'cruelty' has not been given a certain definition in legal regime. However, it is interpreted within various contexts such as physical, mental, intentional or unintentional, direct or indirect, subjective or relative. Based on the circumstantial evidence, it is in discretion of the court for giving remedy to the aggrieved spouse. The term 'cruelty' has been given an abstract definition in Russell v. Russell as an act or conduct having potential reason for apprehension of danger to an individual's life, limb mental or bodily health. However, the term has been interpreted by the court in Narayan Dastane v. Sucheta, where the question, if the victim or the petitioner spouse was subjected to cruelty was looked into by the courts essentially. The court while analysing the circumstances will look if such cruelty has occurred during the cohabitation of both spouses and the cruelty was injurious to the life of the petitioner spouse.
Desertion- almost all divorce laws in the country recognise desertion as a common ground for divorce. Desertion is the abandonment by one spouse without any reasonable cause or against the will of the other spouse. To attract this ground for divorce there must be a continuous period of 2 years of separation and without any reasonable cause. A liberal interpretation was given by the Calcutta High court while dealing with the constructive desertion in Jyotish Chandra v. Meera. In this case the divorce can be granted if the petitioner spouse can prove that nothing is left in the relationship except physically dwelling in the same house.
Procedure For Filing Contested Divorce
Gathering documents- before heading for filing a contested divorce one may want to sum up and gather a lot of information as well as documentation for supporting his claims. The documents can include a list of assets, debts or documents related to the child.
Finding an attorney- choosing the best suited lawyer is a crucial part of divorce. One must choose an attorney for their case who has daily presence in the court along with factors while choosing the attorney such as area of practice of the attorney and person of integrity. This helps the divorce petitioner have higher chances of winning his case.
Preparing paperwork and filing- on meeting with the chosen attorney one can start discussing and elaborating the factors and circumstances along with reasons for him or her to file the divorce. One can seek a temporary restraining order in case of any substance abuse or domestic violence. Based on the information given by his client an attorney can start drafting the divorce petition and file it before the court of law which is generally family court in case of divorces.
Service of notice and response- a notice is also served on either spouses before filing the divorce petition on paying the court fees. One serving of the notice, there is a limited period within which a spouse is allowed to respond to the petition filed against them. Generally the period of responding ranges from 21- 30 days.
Discovery- in this phase, information is exchanged between the spouses where marital as well as non-marital assets are disclosed. It includes debt, income, custody of the child and alimony.
Settlement- on having full information on discovery, the court will move for settlement of points of consideration. Unresolved conflicts are reflected in these points concerning the divorce by the parties. The court can also refer to third party negotiation at this stage by mediation.
Trial- 95% of the cases are solved outside the court whereas 5 % go through this stage. The case is presented before the judge by presenting evidence and witness testimony. Issues are determined in the court by the judges where dates for hearing and examining the witnesses is given. Before proceeding for trial, summons are served on the witnesses for attending the court proceedings.
Order/decree and appeal- when issues are solved and concluded based on the arguments and evidence provided by the parties, order is passed or a decree is issued granting the divorce or denying it. An appeal can lie to the high court with jurisdiction over such family court and then to the supreme court from such an order granting the divorce or denial of it.
Trustworthy & Confidential - We assure you that all your personal details & documents must be kept private. We never share these details with anyone.
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.
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.
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.
Track Your Case - We provide you the opportunity to track your cases from the online dashboard. You can easily track your case status, payment status, etc.