This article is written by Aanika Aery, currently pursuing B.B.A. LLB from Symbiosis Law School, Noida. This is an exhaustive article which deals with the stages and the various phases of a contested divorce.
Marriage is a celebrated union between two people leading to cooperation and harmony. But this legal relationship does not often result in a better and safer present for them, resulting in a divorce. A divorce can be caused due to a few reasons and can be either a mutual divorce or a contested divorce.
Types of divorce under Hindu Law
- Mutual divorce: Section 13-B regulates the mutual divorce under the Hindu Marriage Act. As the name suggests, all parties agree on each other and agree on a patient separation in a mutual divorce, example- The husband and wife will predetermine the issues surrounding maintenance and custody of children. One condition is mutual consent, and the other requires that they live apart for a period of at least one year. The other requires a mutual divorce.
- Contested divorce: When each partner begins to divorce, this is referred to as a Divorce disputed. The grounds for seeking an impugned divorce, some of which include, abuse, conversion of faith, insane thoughts, infirmity or any spouse, are unheard of for more than seven years, are given in Section 13 of the Hindu Marriage Act, 1955.
Concept of ‘irretrievable breakdown of marriage’
Irrevocable marriage breakup literally means that couples can’t live peacefully and happily together. When the relationship reaches a point at which the marriage cannot be fixed, the dissolution of the marriage is considered irretrievable. For cases such as those between the wife and the husband, the couple lives separately and regular conflicts or one partner has an extra-marital affair leads to a divorce.
There is no codified law at this point which provides for an irreparable divorce or breakup of a marriage. This is not mutually agreed to divorce as it relies not on the wishes of the partners, but on the facts and proof to determine whether or not relationships can be saved.
Divorce cannot only be given for the irretrievable dissolution of the marriage if it is the fault of the party seeking divorce on that ground. In cases where they have made claims that the marriage is basically dead and the parties cannot work together, divorce can be given in the first place.
Grounds for a contested divorce
- Adultery-This is a sexual crime in which one of the partners has a sexual relationship outside marriage.
- Cruelty-It is described as a deliberate act which can endanger the body, limb, life and mental health. It can lead to suffering, mental or physical violence, torture.
- Desertion– If a partner leaves another partner willingly, without any intention to return, it’s known as Desertion. It can be a legal ground for divorce for more than two years.
- Religious Conversion-If one of the partners is no longer a Hindu, then the justification for divorce may be found in a Hindu marriage.
- Mental condition– Mental illness includes mental disease, mental health or mental disorder that is an abnormally violent person.
- Leprosy– Leprosy is an infectious and chronic disease-causing skin lesion and nerve damage. Leprosy is a contagious disease.
- A partner who is not heard of– If a partner is not heard about for seven years, then the basis for divorce can be considered.
- World renunciation – The ‘Renunciation of the Earth’ is a cause of divorce under Hindu law if one of the partners has left the earth and is in a holy order.
Other grounds of divorce include-
- The partner was guilty of adultery, sodomy or animal worship.
- Until the age of 15, the woman was married.
- The court grants a maintenance decree or order to the woman and they don’t stay together for more than a year.
Where the petition of divorce has to be filed/ Jurisdiction
Under Section 19 of the Hindu Marriage Act of 1950, a plea for divorce may be made before the District Court,
- in the limits of the local area in which the ordinary civil jurisdiction is centred on marriage was solemnised or (where the ceremony was properly held) the respondent resides, at the time the petition was filed, or (if the two parties are filing a petition) the respondent resides.
- The marrying parties last reside together or (if a husband and a wife live in a different location, other than their original residence, they may make a claim in a court that is qualified in that location; the last residing means that the parties must have resided in the same place for a significant duration and not merely visited the place at any time.) If you are a wife of the petitioner you can apply for a divorce at your residence.)
- The petitioner shall be resident at the time the petition was filed in a case where, at that time, the respondent was resident outside the territories protected by this Act or where those persons who, presumably, if he were alive had not heard of him, for a span of seven or more years, being alive. (This is an essential ground as it gives freedom to any partner, whether his partner has abandoned her or is not the Indian court’s competence, to file a petition at his or her place of residence.)
Considerations during divorce
- Child Custody-If either parent is not willing to afford his day-to-day expenses, the other parent will afford him a certain amount upon divorce. -Who is a child custody partner? The agreement between the partners (husband and wife) is subject to each other.
- Land and Asset Settlement — Land and asset ownership rights between the parties (male and female).
- Residence Facts of marriage between husband and wife
- Pictures of the husbands and wives
- Proofs indicating that mediation has been ineffective and that it can not be reconciled between the parties.
- Information showing that for more than one year husband and wife have live separately Descriptions of husband’s and wife’s occupation and income today.
- Three financial years’ income tax statements.
- Information about the couple’s family history.
- The property details and the spouse’s property.
- The provisions on which the divorce is filed.
Steps for filing a contested divorce
- Step 1: Drafting and submission of the petition (submissions for divorce) -The application drafted must be submitted to a family court together with the corresponding court fees. For the preparation of your petition, you need the right advice and guidance from a reputable and competent divorce lawyer.
- Step 2: A summons is issued by a court of law to the second party, usually sent by a speed post. Summons is issued by a court to be delivered by speed post. The purpose of a summons is to remind the other party that their wife initiated the divorce process. The appeal is submitted to the wife if the husband has started the proceedings.
- Step 3: Response (to Trial) -The party shall be present at the Trial on the day specified in the summons after the summons has been issued. If the party refuses to attend, even if the court issues an order and ends the divorce proceedings the court shall offer an opportunity to hear.
- Step 4: Court trial- All parties must provide sufficient proof and evidence at the Court in this stage. The test and cross-examinations of the parties, witnesses and testimony must be performed before the courts by respective lawyers. This is an important step in the divorce process.
Interim orders – Any party can file before the court a temporary petition regarding maintenance and custody of the child by interim orders. It can be charged after the trial and the legal proceedings have been concluded. The order remains in effect until the divorce becomes final. Not every divorce case has been passed through provisional orders. An appeal is discretionary and relies solely on the partner (male or female).
- Step 5: Argument -The two sides named their respective claimants, on the basis of documentary proof submitted and testimony, to appeal before the judge. Phase 5: Argument The experience and actions of lawyers is a lot to benefit the claim.
- Step 6: Final Order(Finishing divorce)- Upon effective completion of all the previously listed steps, the Court must issue a final order. If any party is not happy with the final order, the same can be questioned in superior courts.
Divorce on the grounds of cruelty
Cruelty may be emotional or physical in divorce proceedings. It is easy to understand physical brutality because the same is evident and noticeable. The most common explanation for pursuing disputed divorce is mental cruelties. Mental cruelty is the variable condition between spouses or individuals, and between spouses or individuals. In the case of Samar Ghosh versus Jaya Ghosh, the broader definition and actions of cruelty were set out in the Supreme Court of India, which are just as exhaustive as possible. They are as follows:
(i) Extreme emotional pain, anguish and misery may be brought under the specific boundaries of emotional abuse if the parties’ full matrimonial lives had been taken into account so that they would not be able to live with each other.
(ii) An extensive evaluation of the parties’ entire matrimonial lives shows that the situation is such that the wrong party is not reasonably required to conduct such behaviour.
(iii) Plain coldness and lack of affection can not lead to cruelness, constant rude language, petulant behaviour, indifference and neglect so that married life can be totally unbearable to the other partner.
(iv) The torture of mind is mental cruelty. The sense of deep pain, deceit and anger in one wife induced for a long time by the actions of the others can contribute to mental cruelty.
(v) The long-term course, calculated to induce pain, or wretched woman’s life, of toxic and degrading medicine.
(vi) The unjustifiable actions and conduct of one partner that affects the other spouse’s physical and mental health have been maintained. The reproached care and fear or anxiety arising from it must be quite serious, significant and severe.
(vii) Mental cruelness can also include persistent reprehensible behaviour, ignored experiments, indifference, or total removal from the usual standard of spousal kindness causing impaired mental health or sadistic enjoyment.
(viii) Behaviour that creates unease and discord and emotional distress should not be a justification for the grant of divorce due to mental cruelness must be much better than jealousy, egotism, possessiveness.
(ix) Pure trivial irritations, conflict, natural wear and tear in married life that occur daily, for reasons of mental cruelties it would not be enough to require a divorce.
(x) Married life should be analyzed in its entirety and some single events over the years should not be cruel. The abuse will continue for such a long time until the relationship has deteriorated to the point that it is exceedingly difficult for the wrong party to continue living with the other party because of the actions and behaviour of the partner, which may result in mental cruelty.
(xi) Where a husband submits himself to a sterilization operation for no medical purpose, with his wife’s permission and without knowledge, and similarly where the woman is subject to a vasectomy or abortion for no medical reason or without her husband’s consent or knowledge, the wife’s actions will lead to mental cruelties.
(xii) Psychological abuse may be the result of a unilateral rejection decision of a significant duration of intercourse without physical impairment or legitimate cause.
(xiii) The unilateral decision, after marriage, of either husband or wife not to have a child may be cruelty.
(xiv) It can be fairly inferred that the matrimonial bond has not been remediated where a long period of continuous separation has been formed. Marriage is a myth, but a legal connection is recognized. The rule in these situations does not protect the sanctity of marriage by failing to sever it; on the contrary, it demonstrates a lack of consideration for the parties’ feelings and emotions. It can lead to mental violence in these cases.
Duration for a divorce
The divorce is granted by the court in approximately 18- 24 months. However, the spouses can withdraw their divorce petition during this 18 months period and no divorce will be granted by the court. Each spouse can withdraw the request for a joint divorce and apply the contested divorce by a separate divorce advocate.
The petition for divorce shall be submitted in the form of an affidavit to a family tribunal. On submission of the petition and completion of the court’s formalities, the matter is normally adjourned for a six-month period. Following the six-month time limit, the parties will appear again before the court for further transmission of the second motion to affirm the mutual consent submitted previously. The divorce order shall be issued by the judge only after these proceedings have been completed.
Proceedings according to religion
Divorce laws are special in India for various faiths. There was a need to create firm laws which focused on women’s rights in divorce in India, the most recent modification brought the following changes. Each of the following laws regulates its respective religions.
- Christians- It is, Divorce Act-1869 and The Indian Christian Marriage Act, 1872.
- Parsis- It is The Parsi Marriage & Divorce Act-1936.
- Hindus- Hindu Marriage Act, 1955, which includes Sikh, Jain, Budh.
- Muslims- The divorce procedure is governed by Personnel laws of Divorce & The Dissolution of Marriage Act, 1939 & The Muslim Women (Protection of Rights on Divorce) Act, 1986.
- For all the other religion and common issues, the Special Marriage Act, 1954 is followed.
Women have a 50% stake in a man’s residential property in the case of divorce.
Suman Kapur versus Sudhir Kapur (2009) 1 SCC 422
In this case, premature birth by a lady without her better half’s information and agree will add up to mental pitilessness and a ground for separate, the Supreme Court has held. “Mental remorselessness is a perspective. The sentiment of profound anguish, dissatisfaction, disappointment in one life partner brought about by the director of the other for quite a while may prompt mental brutality. A supported course of oppressive and mortifying treatment determined to torment, inconvenience or render life hopeless for the companion,” It was held: “The treatment griped of and the resultant peril or dread must be grave, significant and profound.
Continued unpardonable lead, considered disregard, lack of interest or absolute takeoff from the ordinary standard of matrimonial consideration, making injury psychological well-being or inferring savage delight, can likewise add up to mental mercilessness.” The lead must be substantially more than desire, narrow-mindedness, possessiveness, which caused misery and disappointment and passionate bombshell yet probably won’t be a purpose behind the award of separation on the ground of mental pitilessness. Nonappearance of expectation It was held: “To build up lawful remorselessness, it isn’t essential that physical brutality ought to be utilized. Nonstop end of conjugal intercourse or absolute lack of concern with respect to the spouse towards conjugal commitments would prompt legitimate remorselessness. In such cases, the savagery will be built up if the act is demonstrated or conceded. The nonattendance of goal ought not to have any effect for the situation if by the standard sense in human issues the demonstration grumbled could somehow be viewed as pitilessness. Mens rea is certainly not an essential component in mercilessness. The help to the gathering can’t be denied on the ground that there has been no conscious or wilful sick treatment.”
“Simple briskness or absence of love can’t add up to cold-bloodedness; visit impoliteness of language, peevishness of way, lack of interest and disregard may arrive at such an extent, that it makes the wedded life for the other companion completely insufferable.”
Naveen Kohli versus Neelu Kohli, (2006) 4 SCC 558
It was held that the marriage had been destroyed past any expectation of salvation, the court held that open intrigue and the interests of all concerned lay in the acknowledgement, in law, of this reality. That despite the fact that the spouse was not pleasing to separation by common assent and appeared to have made plans to live in anguish just to make the life of her significant other a hopeless heck, open intrigue lay in the disintegration of the marriage bond. Keeping a hoax of marriage alive in law was held to be increasingly helpful for unethical behaviour and conceivably more biased to the open enthusiasm than the disintegration of a marriage. Not conceding a separation under such conditions was held to be awful for the gatherings. The allowing of separation would offer them the possibility, both mentally and inwardly, to settle down sooner or later and start another part throughout everyday life.
Vinita Saxena versus Pankaj Pandit (2006) 3 SCC 778
It was held that what comprises the necessary mental savagery for reasons for the said arrangement, won’t rely on the numerical tally of such episodes or just on the nonstop course of such lead yet truly pass by the power, gravity and stigmatic effect of it when allotted even once and the harmful impact of it on the psychological demeanour, vital for keeping up a helpful wedding home. In the event that the insults, grumblings and censures are of standard nature just, the court may need to consider the further inquiry regarding whether their duration or tirelessness over some undefined time frame render, what ordinarily would, something else, not be so genuine a demonstration to be so damaging and difficult as to make the mate accused of them really and sensibly presume that the upkeep of wedding home is beyond the realm of imagination any more.
A. Jayachandra versus Aneel Kaur (2005) 2 SCC 22
It was held that gatherings to a marriage tying marital bunch should realize the association of spirits. It creates another relationship of adoration, fondness, care and worry between the couple. As indicated by Hindu Vedic way of thinking it is sanskar a holy observance; one of the sixteen significant ceremonies basic to be taken during one’s lifetime. There might be physical association because of marriage for multiplication to propagate the lineal descendants for guaranteeing otherworldly salvation and execution of strict ceremonies, yet what has basically been considered is an association of two spirits. Marriage is viewed as an intersection of three significant obligations, for example, social, strict and profound. Physical viciousness isn’t significant to establish pitilessness and a reliable course of direct dispensing unfathomable mental distress and torment may well comprise remorselessness inside the importance of Section 10 of the Act. Mental remorselessness may comprise of boisterous attacks and put-down by utilizing messy and injurious language prompting steady unsettling influence of mental tranquillity of the other party. On the off chance that demonstrations resulting to the recording of the separation request can be investigated to surmise approbation of the variations, demonstrations ensuing to the documenting of the appeal can be observed to show an example in the conduct and direct.
It was held that long nonattendance of the physical organization can’t be a ground for separate if the equivalent was because of the spouse’s lead. In Shiv Sunder’s case (supra) it was noticed that the spouse was driving double-crossing life and he can’t exploit his significant other avoiding his organization.
In the cases of divorce in India, the laws of the Family Courts of 1984, the Code of Civil Procedure or the Rules of Procedure are being enforced by the relevant High Court. All this does not allow or compel an attorney to assist in the divorce process. As there is normally less costly to file divorce lawsuits in the courts, a reasonable alternative is to pursue divorce by mutual consent without having a lawyer.
However, if other complications occur in divorce proceedings, a lawyer can also prove beneficial. It is unquestionable that a mental and emotional divorce is spiritual. The only thing you want to do in this case is that someone else manages it bluntly.
However, a divorce can not be managed by an adult on its own. When divorce comes through the parties’ mutual consent, by entering into a marital settlement agreement (MSA), which even takes place at the court’s judgment, the legal system can be completely circumvented. Parties may themselves negotiate an MSA. It also gives them power over their divorce terms and conditions. Such a maintenance/alimony pendente lite is provided for under both the Hindu Marriage Act and the Indian Divorce Act. In compliance with Section 24 of the HMA, and Section 36 of the IDA, during the ongoing divorce proceedings, a spouse may apply for maintenance. The court may order a respondent, upon complaint of the husband and wife, to pay the complainant, and a monthly amount deemed appropriate by the Court for the proceedings. The appeal is disposed of and informs the parties of their earnings during the divorce process within 60 days of notification.
An additional smart way to save on costs is to opt for mediation during divorce proceedings. Mediation is a different method of resolving conflicts that facilitates the resolution of the fundamental issues behind divorce in such a method that it takes less time, less energy, and allows the parties to exert more influence with the aid of a neutral third party over their divorce proceedings.
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