In India, dissolution of Hindu Marriages is governed by the provisions of the Hindu Marriages Act. Couples falling under the ambit of the said act can seek a decree to dissolve their marriage either mutually or unilaterally. A marriage which is dissolved unilaterally is termed as Contested Divorce. Through this article, we will understand the concept of Contested Divorce under Hindu Law.
Meaning of Contested Divorce under Hindu Law
A Contested Divorce is a form of divorce where one party files a divorce against the other party without his/her consent. The decisioned divorce is also known as a Unilateral Divorce wherein the decision to end marriage is not unanimous in nature.
For instance, if a wife suffers from cruelty in the form of physical abuse, she is entitled to the right to seek divorce unilaterally based on the said ground. The burden of proof lies on the party seeking such divorce and in a such case, the party will be required to present the proof before the Court. Generally, it takes 2-3 year or even more to obtain such divorce in India and it is imperative to note that it is upon the discretion of the Courts to consider the matter on merit.
Grounds for Obtaining a Contested Divorce
a. Cruelty: Cruelty herein refers to mental and physical abuse, i.e. if a party (spouse) in their marriage suffers from such kind of abuse, they are entitled to a right to file for a divorce without any consultation or consent from the other party.
b. Deseration: When a party without giving any reason abandons the other party, the party suffering may approach the court and seek divorce on such ground. In simpler terms, where a party leaves the other party without providing any justifiable reason, the other party has been empowered with such right to seek a divorce.
c. Conversion: Parties practicing different religions cannot force each other to convert their religion. In any such case, the party who is being forced can approach the Hon’ble Family Court and seek a decree of dissolution of their marriage on such grounds. Hindu Law prohibits that no spouse can force each other to convert their religion.
d. Adultery: Earlier in India, adultery was considered as crime. However, with a recent shift in the trend, adultery is no longer a crime, but still if any person/spouse is indulged in any such practices, their respective spouse can file for divorce. Adultery means when one of the spouses is in a relationship with another person apart from their respective spouse. So, their respective spouse can approach the court and seek a decree for dissolution of their marriage.
e. Communicable Diseases: In cases, where one party is suffering from diseases which are communicable in nature, i.e., HIV AIDS, in such cases, divorce can be granted on such a ground by the Court.
Under what Circumstances a Spouse can Obtain a Contested Divorce?
A Contested Divorce is sought in cases where parties are unable to settle their differences amicably. However, following are the circumstances where such divorce is sought:
- In terms of Settlement: When parties are unable to decide the settlement terms, in such circumstances, they seek assistance from the court to decide such terms for them, so they can obtain a decree for divorce.
- In terms of distribution of Alimony: In such cases, where the parties are unable to decide the amount of alimony, the Court decides the said amount.
- In terms of Custody of Children: The said terms are also decided by the Court where parties are not able to amicably decide upon the custody of their children.
The above are the circumstances where parties along with their respective lawyer’s approach and seek assistance from the Court to settle their matter.
Procedure for Obtaining a Contested Divorce in India
- The First and foremost step is to file an application by way of a Petition. The party seeking divorce needs to file an application under the guidance of an advocate in the Family Court of the concerned jurisdiction. The party filing such an application needs to ensure that the reason/ground for seeking divorce along with relevant proofs are mentioned and annexed in the Petition. Petition can be filed either where the marriage was solemnized or where the couple is presently residing.
- Before filing the petition, all the documents are required to be annexed with the petition. Some of the documents needed for filing a petition under Contested Divorce are as follows:
i. Address proof of both the parties (both husband and wife)
ii. Marriage certificate along with other proofs such as photographs of marriage, video recording (if any) invitation card etc.
iii. Information pertaining to the Movable and Immovable properties of both the parties.
- Upon filing the Petition, the Hon’ble Court shall examine the case, and, on that basis, the Court shall issue notice to the other party to file their response/ reply.
- After hearing both the parties, the Hon’ble Court, before framing the issue, shall set up mediation for the parties, thereby giving both the parties a chance to reconcile.
- In case the mediation process fails, the Court shall resume the proceedings and issues will be framed accordingly.
- Both the parties will be required to file their statements along with evidence. Upon competition of this stage, the Hon’ble Court shall examine the statements of both the parties and then pass an order.
- If the Court is satisfied, it shall pass a decree for divorce, but if in case the Hon’ble Court is not satisfied, the application/ petition shall be disposed accordingly.
| Note: If any party is not satisfied with the order of the Family Court, they are entitled to file an appeal with the concerned Hon’ble High Court in lieu of the order passed by the Family Court within 3 months. |
Conclusion
In view of the above, a contested divorce is a way to end such marriages which are detrimental to the well-being of the individual i.e. when parties are not able settle their differences amicably, they sought divorce under such category.
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