A couple can either get a divorce with mutual consent, or either spouse may file for divorce without the consent of the other. The second case, where the divorce is not mutual but initiated by one party alone, is what is known as a contested divorce.
In case of a contested divorce, there are specific grounds on which a petition for divorce can be made before court. While it is generally more time consuming and than a mutual divorce, if there exist satisfactory grounds for granting of divorce, it could be fairly straightforward.
The broad grounds under which a contested divorce is granted by court are listed below:
Cruelty could be either in the nature of physical or mental cruelty. As per the Hindu family laws, if one of the spouses has a reasonable and well founded fear that the conduct of the other spouse is likely to be harmful, then there is sufficient grounds for obtaining divorce due to cruelty.
A man that commits adultery (i.e. has consensual sexual intercourse outside of hismarriage) is liable to be charged with a criminal offence. The wife may, of course, still file for divorce as a civil remedy. If, on the other hand, a wife commits adultery, she may not be liable to be charged with a criminal offence, although the husband may seek prosecution of the adulterous male for adultery.
One spouse deserting the other without reasonable cause (cruelty, for example) is a cause for divorce in India. However, the spouse who abandons the other should intend to desert and there must exist some proof of it. As per Hindu laws, the desertion should have lasted at least two back to back years. Christians, however, will not be able to file a divorce petition solely on grounds of desertion.
Divorce can be sought by a spouse if the other spouse converts to another religion other than the one they were under at the time of marriage. In such cases, there is no requirement of any time to have passed before divorce can be filed.
If the spouse is incapable of performing any of the normal duties required in a marriage on account of mental illness, divorce may be sought by the other spouse.
If one spouse suffers from a communicable disease, as per the Hindu divorce laws, the other spouse can file for a divorce.
If the spouse renounces his/her married life and opts for sannyasa, the other spouse can file for a divorce.
If a spouse has not been seen or heard of to be alive for a time period of at least seven years, by any such persons who would have normally heard about such spouse if he or she were alive, then the spouse who is alive may file for a divorce.
What are the actions to be taken before filing a petition for divorce in court?
The very first step in initiating divorce proceedings is sending a divorce notice to your spouse. This is a formal communication to clarify your intentions to discontinue the relationship.
What are the different laws that govern divorce?
In India, each religion is governed by different laws of divorce. Hindus, Sikhs, Jains, and Buddhists are governed by Hindu Marriage Act,1955. Christians on the other hand are governed by Indian Divorce Act, 1869 as well as Indian Christian Marriage Act of 1872. Muslims are governed by personal laws of Divorce and also the Dissolution of Marriage Act,1939 & The Muslim Women (Protection of Rights on Divorce) Act,1986. Parsi divorces are dealt with under The Parsi Marriage & Divorce Act-1936. There is also a secular law governing marriage and divorce, called Special Marriage Act,1954.
Where is the petition for divorce filed?
The petition may be filed in the family court of the city or district (as the case may be) where the couple lived together for the last time.
What is alimony?
When a couple is married, there exists an obligation on them to support each other. This obligation does not necessarily end with divorce. As per the Code of Criminal Procedure, 1973, the right of maintenance is afforded to any person who may be financially dependent on the marriage. This may include either spouse, dependent children or even indigent parents.
The claim of either spouse (though, in the vast majority of cases, it is the wife), however, depends on the other spouse having sufficient means. When deciding the payment on the alimony, the court will take into account the earning potential of the spouse, their ability to regenerate their fortune, and their liabilities.
How is the duration and quantum of alimony computed?
In a contested divorce, the alimony, its amount and tenure, depend upon the length of marriage. A divorce after 10 years of marriage entitles the spouse to alimony for life. The other essential factors are:
How are property matters settled?
It rarely matters which spouse owns the property. If one is married – regardless of the fact that a divorce petition has been filed – they have the right to occupy the family property. If one is also looking after children, their case would be much stronger. While the property may be given to either spouse in the settlement, until and unless this is done, both spouses have equal right to remain on the property.
When can a divorcee remarry?
Based on the nature of the divorce decree, a divorcee may remarry after three months from the decree date, provided no notice of appeal is received by the person remarrying from the other spouse.
Which spouse gets child custody?
While the courts usually agree to the decision of the parents in a mutual consent divorce, the courts are expected to see to the best interest of the child. In a contested divorce, the courts will examine the ability of the mother or father to be a parent to the child, for example. Usually, the court provides the custody of their children to non-working mothers, but the fathers are expected to provide financial support.
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We are delighted to welcome you to the vakilsearch family. Divorce is a difficult decision for both husband and wife. If you have decided to separate, we can help make the whole process as painless and as swift as possible.
A contested divorce is just what it sounds like: one or both spouses contest (dispute) some aspect of their divorce. Therefore, the divorce proceedings take much longer to complete and typically involve greater stress and increased legal fees.
With a contested divorce, the partners will have to go through numerous steps before the divorce is finalized, including:
Divorce — especially ones that are contested—are complex. Therefore, spouses in a contested divorce should definitely speak with an experienced divorce lawyer who can inform them of their legal rights and ensure they are fully protected.
Feel free to reach out to me if you have any questions whatsoever.