This article is written by Vinay Kumar Palreddy, a student from Symbiosis Law School, Hyderabad. In this article, he enumerates the list of stages in the contested divorce proceedings, the grounds upon which a divorce can be contested by a single spouse, and explains the difference between a contested divorce and mutual divorce.
The legal regime of almost every nation and religion has formulated extensive laws governing the realm of marriage. Meanwhile, every law governing marriage also imbibes in itself the rules and grounds governing divorce as it is a rescue mechanism for the spouses from non-functional wedlock. Though divorce is perceived as a social evil in many places and societies across the world, the law permits couples to get a divorce in almost the same manner and based on the same grounds. In India, certain grounds are available upon which every married individual can contest a divorce on his or her behalf even without the other spouse’s consent. On the other hand, mutually agreed divorce can also be effectuated when certain requirements laid down by law are satisfied. This has become an important aspect in the lives of many couples as well as the educational component to all the law students.
This article primarily aims at explaining the meaning and the grounds for a contested divorce imbibed in marriage laws of various religions along with the judicial interpretation, the distinction between contested and mutual divorce, the stages of contested divorce proceedings, and analysis of the same.
What is a contested divorce and what are the grounds to contest?
Contested divorce denotes a form of divorce where one party to the marriage proceeds to utilize legal recourse for divorce even when the other spouse is resisting to have divorce between them. It also includes those situations where both the spouses agree to have a divorce but are having a discord regarding any issue involved with such divorce such as custody of children, alimony, property division, etc. A contested divorce is solely driven by the grounds available to the parties of a marriage where they have to prove at least one such ground in the court of law. These grounds are primarily the requirements which have to be essentially met. The grounds for a contested divorce are mostly common in all the marriage and divorce laws of various religions and individuals like the Hindu Marriage Act, 1955, Dissolution of Muslim Marriage Act, 1939, Indian Divorce Act, 1869, Parsi Marriage and Divorce Act, 1936 and the Special Marriage Act, 1954. Those grounds are:
- Adultery: If one of the spouses has voluntary sexual intercourse with any other married or unmarried person, such an act becomes a ground for giving divorce. This right lies with the loyal spouse and he/she can file for divorce only at his/her discretion. This is recognized as a ground for divorce In all the laws governing marriages and divorce in different religions. The alleged infidelity need not be in effect when the divorce was filed by one spouse. The essential principle to contest divorce on this ground is that such allegations must be proved by the spouse alleging the affair. In the case of Rajee v. Baburao, the Madras High Court while analyzing the allegations of adultery made upon the wife and evidence produced by the husband, it was held that the burden of proof will be upon the person who is alleging the adultery. Further, it was held that the degree of proof produced need not be of absolute certainty but must contain a high degree of probability. As the allegations were serious in nature, mere blathers or surmises were not accepted and divorce was not granted. In another significant case, Imrata Devi v. Deep Chand & Anr, the husband didn’t have access to his wife for 325 days but still, she conceived twins. Herein, the husband contested divorce based on the ground of adultery and he proved that they haven’t consummated even prior to 325 days and the delivery of children was not late. Accepting the averments and evidence, the Rajasthan High Court granted the divorce.
- Cruelty: Cruelty is also recognized as a ground for divorce in all the aforementioned laws. In the context of the Hindu Marriage Act, 1955, cruelty was not enumerated as a ground for divorce but the course was changed after the amendment of the Act in 1976. But, no legal regime has exactly defined the term ‘cruelty’ and it is interpreted based on various contexts like physical or mental, subjective or relative, intentional or unintentional, direct or indirect. Even the matrimonial laws in India have left it to the discretion of the judges to give remedy to the spouse based on circumstantial awareness of the case. But, in the case of Russell v. Russell ( AC 395), Justice Lopes tried to give an abstract definition for the term ‘cruelty’ as conduct which has the potential to cause danger to one’s life, limb mental or bodily health along with the apprehension of such danger. In the Indian scenario, the Supreme Court contextualized ‘cruelty’ in 1975 in the case of Narayan Dastane v. Sucheta Dastane wherein, it was laid down that the courts must essentially look into the question of whether the victim or the petitioner spouse was treated in such a cruel manner by the alleged spouse that their co-habitation will be harmful or injurious to the life of petitioner spouse. Further, this ground has evolved by the decision in the case of Shobha Rani v. Madhukar Reddi wherein it was held that divorce cannot be withheld even if the cruelty contended is not deliberate or the ill-treatment ==[[-[-[is not wilful.
- Desertion: Desertion is another popular ground for divorce recognized by all the divorce laws in the country. It essentially means the abandonment or forsaking of one spouse without any reasonable cause or against the wishes of the other spouse. Desertion involves two elements i) factum of separation ii) Animus deserendi. Moreover, Section 13(1)(ib) of the Hindu Marriage Act, 1955 enumerated that such desertion must be without any reasonable cause or without the consent of the spouse filing for divorce and the period must be for a continuous period of 2 years. While dealing with these elements, in the case of A.V. Subba Rao v. A. Surya Kumari wherein, the wife and husband came into agreed terms for living separately which involved remittance of Rs. 150 as maintenance, the court held that one of the spouses cannot file for divorce on the ground of desertion as there is consent involved in the separation. Moreover, there can be actual desertion where the spouse physically deserts the other without any information regarding them as well as constructive desertion where the spouse refrains from adhering to the marital obligations even though they are physically under the same roof. While dealing with the concept of constructive desertion, the Calcutta High Court in the case of Jyotish Chandra v. Meera liberally interpreted that if the petitioner is able to prove that there is nothing left in the relationship with the other spouse except living in the same house or being physically present, the divorce can be granted. The explanation of the aforementioned provision in Hindu law also includes ‘wilful neglect’ which is intended to broaden the horizon of this ground. The term ‘wilful neglect’ was interpreted in the case of Lachman Uttamchand Kriplani v. Meena as the conscious reprehensible acting of a spouse in discharging the marital duties or the abstention of such obligations.
- Conversion: Conversion of one spouse to another religion is a good ground for divorce. Though it is not recognized as a ground in the Dissolution of Muslim Marriage Act, 1939, and Special Marriage Act,1954, it is recognized as a ground in other divorce laws. In the Hindu Marriage Act, 1955, Section 13(1)(ii) governs the conversion as a divorce ground in Hindus. When construing this ground, it must be done in such a manner that consent for such conversion cannot become a defence in granting a divorce. With respect to this, in the case of Suresh Babu v. V.P. Leela, the court observed that the consent of one spouse for the conversion of another spouse will not take away the right of the consented spouse to file for divorce on the ground of conversion. Moreover, one cannot utilize the ground of conversion as a divorce mechanism if he/she is the one who converted to another religion. In the case of Md. Zulfiqar Ali v. Anuradha Reddy, the husband filed the divorce petition contending that he has converted to Islam from Hinduism and hence, ceased to be the husband of his Hindu wife. Rejecting the petition, the Court held that the husband cannot file for divorce on the ground of conversion as this right does not subsist with the converted person.
- Grave Mental Disorder: Mental Disorder is a ground for divorce as per all the aforementioned Acts. But such disorder or unsoundness must be serious and incurable in nature. In the earlier stages, the decision of the courts based on this ground found their root in the discretion of judges case by case, but later on, the decisions of the English Courts laid down proper tests for analyzing the effect of this ground. In the Indian context, ‘mental disorder’ was interpreted in the case of Bani Devi v. A.K. Benerjee has the incapacity of a person to manage himself or his state of affairs, any marital or other obligations. Moreover, to utilize this ground, the spouse must essentially prove that it is not at all possible to live with such a mentally disabled spouse. With regards to Schizophrenia as a mental disorder, the court held in the case of Joginder Kaur v. Surjit Singh that Schizophrenia must be in such a manner that the petitioner cannot reasonably live together with such a spouse to get the divorce. As in the instant case, the patient spouse was recovering slowly and is not suffering from a continuous mental disorder, the court did not grant a divorce to the husband.
- Communicable Venereal Diseases: Venereal diseases are those diseases that can be contracted through sexual intercourse between two people where one is already infected by such disease. Even this ground is recognized as a ground for divorce in all the five aforementioned Acts. In the Hindu Marriage Act, 1955, Section 13(1)(V) of the Act deals with this ground and prior to 1976, it laid down the time period of three years for such disease to subsist immediately before filing the petition. But, the legislature felt that the imposition of the time period will only violate the rights of another spouse in a way that they might also fall prey to the communicable disease. Hence, the amendment in 1976 brought in a new approach towards this ground of divorce. This ground acts as a standard reason for getting a divorce. But as the aim of this ground is to prevent the other spouse from getting infected by such disease, it also acts as a deterrent even before entering the marriage. The right of a person to marry who is infected can be suspended. In the case of Mr X v. Hospital Z, the court upheld that such suspension can be continued till the venereal disease is cured and also held that the right to marry cannot be enforced by the court when such a person is infected with such disease.
- Other Grounds: Along with the grounds enumerated till now, there are certain other grounds for divorce which are recognized by the aforementioned Acts. These grounds are virulent leprosy, impotency, husband’s imprisonment, failure to provide maintenance, etc. Though all these factors are not recognized by all the Acts as standard grounds for divorce, they are given due importance based on the evolution of their religious laws into these Acts. Though the approach of the parties is different based on the grounds, the primary idea to include them is to provide the individual justice to the person who is suffering from the conduct and the availing situation of the other spouse. As far as these grounds are concerned, virulent leprosy is one such important ground where the term ‘virulent’ was expounded in the case of Annapurnamma v. Appa Rao as venomous and malignant in its nature. Secondly, Husband’s imprisonment is given due importance in the Dissolution of Muslim Marriage Act, 1939 wherein Section 2(3) of the Act provides a right to the decree of divorce to the wife if the husband is imprisoned for a period of 7 years of more, provided that such sentence is final. Impotency is provided as a ground for divorce in Hindu, Muslim, Christian laws and is left out in the Parsi and inter-religious laws. There are also few other grounds upon which a divorce can be contested by parties.
Difference between mutual divorce and contested divorce
As divorce is a rescue mechanism from a non-functional marital relationship, it can be both agreeable and non-agreeable in nature. The non-agreeable divorce is called a contested divorce as the parties to a marriage try to prove their contentions with regards to divorce. It can either be supporting, opposing divorce at all, or can be supporting, opposing the issues involved in divorce like child custody, property division, maintenance, etc. On the other hand, an agreeable divorce is known as a mutual divorce where both the husband and wife decide that their marital relationship is non-functional hence resolve to give-up their relationship. It is also known as an uncontested divorce where both spouses agree upon certain terms regarding all issues and formalities involved in a divorce. In a mutual divorce, both the husband and wife file a joint petition for divorce whereas in a contested divorce, one of the spouses files a one-sided divorce petition in the court and another party files counter-petition. The parties can start a divorce petition in the form of a contested divorce, but due to certain factors, can also file for a mutual divorce by satisfying the requisites of mutual divorce. The below-given provisions regarding mutual divorce will make a clear distinction between a contested divorce and mutual divorce.
In the Hindu Marriage Act, 1955, a mutual divorce is driven by Section 13B of the Act which was added by the amendment in 1976. As per this provision, both parties are required to file a petition in the court by satisfying a prerequisite that they lived separately for a minimum of one year period immediately before filing the petition. Later, they have to file a motion regarding divorce after six months but before eighteen months of filing the petition so that the court will make required inquiries and grant the divorce. If a petition is genuinely presented by the parties where the spouses tried to live together but failed, the court will be duty-bound to grant divorce rather than at its discretion.
There are certain elements which are needed to be satisfied in order to get a divorce by mutual consent. The first element is that the petition must be filed by both the parties. In these petitions, the component of ‘consent’ is of utmost importance. As they file separate petitions, it will be quite clear that the consent is given in their individual roles. Moreover, the consent thus given can be revoked during the time period given for filing motion. This is based on a discerned observation that one or both the parties to the divorce petition might revise their perspective on their marital relationship. Regarding this, in the case of Sureshta Devi v. Om Prakash, it was held that the consent can be taken back by one or both the spouses filing for divorce as it cannot be considered as irrevocable. The second element to get a divorce is that they must live separately for one year or more immediately before filing a petition.
Here, separate doesn’t necessarily mean that they live in distant places but the significance must be given to the idea of not living together in their respective roles i.e husband and wife even if they are living under the same roof. This notion was upheld in multiple cases including Kiritbhai v. Prafulaben where the lower court disallowed divorce petition as they are living in one place but the High Court quashed the lower court’s view and granted divorce as they have consensually given up on their respective marital roles. The other element is to prove that they are not able to live together even after sincere efforts put forth by both parties. With regards to the interpretation of living separately and not being able to live together, the Bombay High Court in the case of Leela Joshi v. Mahadeo held that they have to be read in conjunction and courts must look into the fact as to whether cohabitation has come to end or not.
As far as the mutual divorce in Muslims is concerned, this mechanism is classified into two types known as Khula and Mubarat. Khula is a form of divorce where the wife gives consideration to her husband or relieves her husband from paying Mahr. On the other hand, Mubarat is a divorce where both the parties are against the preservation of their marital relationship and one spouse proposes to revoke marriage, and the other accepts it. An iddat period is defined and later, the divorce will come into force. The common practice in both these types is that the wife has to relinquish the dower amount or certain property to relieve from matrimonial relation. But we need to understand that these are practices and are not sanctioned in the court of law.
Different stages of a contested divorce
Meeting With an Attorney
This is an important part as it decides the course of action in your case. A prior assessment is required to choose your attorney which can be done either by asking someone who has acquaintance with the law or advocates to refer an attorney who specializes in family law or can be done by directly attending court proceedings and assessing the advocates arguing in the matters of divorce. In both scenarios, the rudimentary factor which is to be considered by the party while choosing their advocate is whether the advocate has daily court presence or not. If the advocate is not present in the court because of his intermittent practice, choosing such an advocate does not yield desired results.
Either spouse File a petition for divorce
As the spouse who is seeking divorce approaches his/her advocate, all the required documents and information shall be duly provided. After assessing all the information, an advocate will draft a divorce petition and file it in the court of law. The family court establishments have the primary jurisdiction in the matters of divorce. The filing of a petition is followed by the serving of notices to the other spouse either by the party himself/herself or by the court upon payment of charges.
Appearance and Reconciliation
After the notices are served, the parties appear in the court of law. If the court is of the view that there is a chance of conciliation between the parties, it forwards the issue to the Legal Services Authority where the conciliators are present. They look into the possibility of settlement and function in that way. If it is settled, the petition is withdrawn from the court or else the stages below will be followed.
Reply/counter reply from the respondent spouse
This is the stage where the respondent files a counter. As he/she is not in the favor of divorce being granted, they have to deny every allegation made in the petition. The denial herein must be specific in nature and cannot be an overall denial of allegations. If every allegation with respect to the fact is not denied specifically, it will be deemed as admitting such allegations. Hence, the respondent must take enough care to look at all the denials made in the counter or must take the help of others to scrutinize the reply.
In this stage, as the documents and required information is produced in the court, it will be duly provided to the other parties as well upon the inquiry. It helps the parties to sharpen their sides by assessing the other party’s stand and the evidence regarding the issues involved in the divorce.
After assessing the documents and information, the court settles the points for consideration which are to be decided. Order XIV of Civil Procedure Code deals with settlement of points of consideration. These points will generally reflect the unresolved conflicts between the parties regarding divorce or granting divorce as a whole. At this stage, the court might also refer it to the third party negotiation.
In this stage, the courts determine certain dates for hearing and examining the witnesses. Prior to this, summons are served upon witnesses to attend the court proceedings on defined dates. This stage also includes the cross-examination, final hearing, etc
After duly concluding upon all the issues based on the arguments and evidence provided, the court pronounces the orders or issues a decree granting or denying the divorce.
The decree thus given can be first appealed to the High Court with jurisdiction over such family court and then to the Supreme Court. It is generally appealable under Section 28 of the Hindu Marriage Act, 1955, or Section 39 of the Special Marriage Act, 1954. The time period for an appeal varies and in Hindus, it stands between 30 days to 90 days.
The divorce proceedings in India run in consonance with the Code of Civil Procedure. This Code provides exhaustive rules and regulations to be followed in case of a contested divorce. In the case of Mutual divorce, provisions of this Code are nominal as the points for consideration are already settled and the prerequisites are already laid down by various divorce laws in India. Though the proceedings seem defined and structured, the practical approach would be different and prolonged. There is no time limit determined in the procedure code or the divorce laws to dispose of a divorce case. Hence, there is no obligation on the courts to complete a case in a defined period. Also, there are a lot of instances where one spouse started contested divorce but due to the prolongation and high expenses, the couple ended up having a mutual divorce. This is a major drawback in the divorce proceedings. On the other hand, appeals have a limitation period. Though there is no time limit for disposal of the appeals, at least the limitation period acts as a deterrent to pile up the cases.
But the jurisdiction is slightly different with respect to Christian divorces. The divorce petition by Christians has to be filed in the Principal District Court whereas the Procedure defined for Hindus and others can be filed in family courts and Senior Civil Judge Court or suburban courts.
The proceedings also involve reconciliation proceedings. These reconciliation proceedings are aimed at avoiding the break of the marital tie in case the dispute between the couple is minor or reconcilable. This is governed at the discretion of the judge as he looks into the possibility of settlement. If the ground taken for divorce is so grave that the marital relationship will affect the rights and lives of the spouse seeking a divorce, the court generally will take a stand against the reconciliation proceedings.
Moreover, as far as points for consideration are concerned, child custody is given due importance among those points. There is no primacy or exclusive right given to any particular parent in case of child custody. The law over the years has evolved in such a manner that the child’s best interest is given a significance rather than a standard approach towards giving custody. Hence, this point must be looked at carefully by the parties before seeking a divorce.
As we have delved into the stages of proceedings and grounds for a contested divorce, it is quite clear that they are almost the same for spouses being governed by various religions and their own marriage laws. But certain grounds are recognized by few Acts and are left out by other laws. Parties must take a note regarding the prolongation of proceedings and the procedural flaws hence must consider the option of reconciliation. The parties must also think carefully about the future of children and their own lives before seeking divorce as such a decision will lead to a chain of numerous events. But if the ground which is involved is so grave, the parties can directly get the divorce. If the cause of the party is genuine and true, the court will easily grant a divorce.
The proceedings in a contested divorce are already carefully drafted by the legislature and have been in force for decades together. Though there might be few nuances in the practical approach, the concepts of stages and grounds in a contested divorce mostly adhere to the norms defined by the legislature.
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