CONTESTED DIVORCE IN INDIA: A COMPLETE GUIDE
CONTESTED DIVORCE IN INDIA: A COMPLETE GUIDE
A contested divorce is a formal way of seeking a divorce from your spouse. It should be exercised when mutual consent divorce is not possible. A contested divorce in India reflects a situation wherein one spouse has finally made up his/ her mind to proceed with the divorce. Contested Divorce means that your spouse is guilty of committing the matrimonial offense. Matrimonial Offences are grounds for divorce. Your spouse is guilty of committing fault. Your spouse actions or omissions, and failure to discharge reasonable behavior leads you to the conclusion that living together with spouse is not possible.
GENERAL GROUNDS FOR CONTESTED DIVORCE
Law provides various grounds to seek divorce from your spouse. Grounds for a contested divorce, which are commonly used:-
- Divorce on the ground of cruelty.
- Divorce on the ground of desertion
- Divorce on the ground of adultery.
Besides above, there are various other grounds for divorce such as unsoundness of mind, civil death, etc. to seek.
Let us understand abovementioned grounds for contested divorce.
DIVORCE ON THE GROUND OF CRUELTY
Cruelty in divorce cases can either be mental or physical. Physical cruelty is easily understandable as the same is apparent and visible. Whereas Mental cruelty is not visible. It exist in the mind. It is a pain in heart. Its a blow on emotion and soul. Mental cruelty is the most common ground for a contested divorce. Mental cruelty is variable. It varies from one spouse or individual to another spouse or another individual.
Meaning of Cruelty in a Divorce Case:-
Hon’ble Supreme Court of India in the case of Samar Ghosh versus Jaya Ghosh has explained mental cruelty by laying down situations and circumstances. It is only illustrative and not exhaustive:-
- On consideration of the complete matrimonial life of the parties, acute mental pain, agony, and suffering as would not make it possible for the parties to live with each other could come within the broad parameters of mental cruelty.
- On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that the situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.
- Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable.
- Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of another for a long time may lead to mental cruelty.
- A sustained course of abusive and humiliating treatment calculated to torture, discommode, or render the miserable life of the spouse.
- Sustained unjustifiable conduct and behavior of one spouse actually affecting the physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial, and weighty.
- Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.
- The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty.
- Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day to day life would not be adequate for grant of divorce on the ground of mental cruelty.
- The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill-conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behavior of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.
- If a husband submits himself for an operation of sterilization without medical reasons and without the consent or knowledge of his wife and similarly if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty.
- Unilateral decision of refusal to have intercourse for a considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.
- The unilateral decision of either husband or wife after marriage not to have a child from the marriage may amount to cruelty.
- Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such situations, it may lead to mental cruelty.
DIVORCE ON THE GROUND OF DESERTION:
In order to take desertion as ground for divorce, following two conditions are required to filled:-
a) Separation of a minimum of two years at the time of filing the case
b) Separation is caused by the other spouse. Separation should not be at the instance of the spouse filing the Petition.
DIVORCE ON THE GROUND OF ADULTERY:
Adultery implies that the spouse has indulged in a relationship outside marriage. The spouse establishes a physical relationship with a third person. Offending spouse indulges in sexual intercourse. Proving sexual intercourse is not easy. As such, it is always recommended that petition for divorce on the ground of adultery should have cruelty as another ground. Some time technical reasons may lead to failure to strictly prove the ground of adultery. In such a case, even if your facts are correct and truthful and supported with some evidence indicating involvement in a marital relationship outside marriage, Court may call such action on the part of spouse causing cruelty to you.
STEP BY STEP PROCESS AND PROCEDURE FOR FILING CONTESTED DIVORCE
1. You have to make up you mind. You have to decide if the time has come for it. Think again. Think hard.
2. You need to find a good divorce lawyer. He should be a subject matter expert, having integrity and a strong court presence. Meet your lawyer. You discuss the case with him openly. After meeting, you have to choose your divorce lawyer or divorce law firm
3. Your divorce lawyer then start the drafting of Contested Divorce Petition.
4. Divorce Petition is filed before Family court.
PLACE OF FILING DIVORCE CASE
A contested divorce case can be filed at either of the following places:
a. Place of marriage
b. Place where spouse last resided together
c. Place where the respondent( opposite party) residing
d. In case the wife is filing a contested divorce case, the place where the wife is residing at the time of filing of the petition
5.After filing, your divorce case gets listed for the first hearing/admission hearing. Court issues notice/summons to other party.
6. Your spouse will have to file a reply/written statement. If your spouse do not appear in the Court despite receiving summons, the court may proceed with the case in his/her absence. It is commonly called ex part divorce proceedings.
7.Courts frame issues. Issues basically mean points of adjudication by the Family Court. Parties give their evidence on these points/issues. And not on everything.
8.Evidence is first filed by the spouse that filed the Petition for contested divorce. Cross-examination of the witnesses is done by the opposite party lawyer.
9.Evidence of Respondent is done after above.
10. Case is listed for final arguments after evidence of both parties.
11. After final arguments are heard by the Court, the case is listed for passing judgment.
12.On successfully proving the case, decree of divorce is granted.