“They say marriages are made in paradise. But then again so is thunder and lightning.” – Clint Eastwood
Sometimes, in spite of our hard attempts, life takes turns. We require various things from life; however, life got it its own twist. A bad marriage is something which no one expects, but it comes in one way or the other.
In the Hindu Marriage Act, 1955 there are two ways to get divorce –
First, contested divorce (Section 13 of the act) and second is Mutual divorce (Section 13-B of the act).
The easiest way to take divorce is Mutual consent divorce as both i.e. Husband and Wife have given consent for it. But sometimes one of the parties doesn’t agree to give divorce and it’s difficult to get consent from both. So, at this point, one can apply for contested divorce under the Hindu Marriage act, 1955.
A spouse can’t file a petition for Contested Divorce referring to any explanation it believes is sufficient to lawfully separate from his/her accomplice. There are explicit grounds set down under the Hindu Marriage Act, and just under these grounds can a Contested Divorce be petitioned in Court. In a contested divorce, the spouses or partners can’t come to a concession to issues, for example, kids care and the division of marital resources.
Divorce or Separation by common assent can be gotten inside a half year, however, no appeal in such a case can be documented inside the first year of marriage. The court can defer this cooling-off period now and again. So, if there should be an occurrence of divorce by mutual consent, it for the most part takes 18 to two years. In the event of a contested divorce, the period is longer, running from three to five years due to complications and plausibility that either party can challenge the choice/decision in the High Court and Supreme Court. [1]
The law allows a court to pass a divorce request just if there are legitimate causes. Grounds for separate are the reasons which the court checks before giving the divorce. In India, the grounds of separation are chosen dependent on the religion of the couple. Grounds like – Adultery, Cruelty, Desertion, Conversion, Mental disorder, Lepro’s, Renunciation, Not heard alive and many more.[2]
Documents the court may ask which depends on the type of divorce[3] –
- Address proof of the spouse
- Details of occupations and current income of both.
- Marriage certificate
- Details regarding the background of their family
- Marriage photographs
- Proof that the spouse has been living separately for more than 1 year
- Evidence proving failed attempts at settlement
- Salary statements
- Details of the property of the parties.
Procedure or Steps of Taking Contested Divorce[4] –
- Find the lawyer -For acquiring a Contested Divorce would start by finding and consulting a reliable Divorce Lawyer. The person would need to clarify the entire marriage circumstance in detail with the goal that the Divorce Lawyer can exhort accurately according to law and in the person’s wellbeing.
- Filing of petition by one of the spouses -The Divorce Lawyer would be required to set up a Divorce Petition according to the facts and conditions described and clarified by the person looking for the Contested Divorce. The Petition must be attached with all the applicable reports relating to the evidence of marriage and furthermore the records supporting the claims made in the Divorce Petition. When the Petition has been concluded, the petition would be required to sign the Petition, Affidavits, Vakalatnama.[5]
- Court issues summons and seeks response from the other spouse – Most state divorce laws require other people to react to the petition for divorce within 1 month. On the off chance that another person doesn’t react on your state’s predefined time limit, so, in default and you may acquire a default judgment of divorce. If other responds, the case will continue on to the next stages. Even the court may issues summons to the other party.[6]
- Settlement -At the first phase of the case, the Court will attempt to settled the dispute between the spouse, and will likewise guide both the spouse to show up before a Mediator for a solution for their issues. On the off chance that the mediation meetings are not productive and the issue between the spouse is not settled, the Court would proceed with further with the Divorce procedures.[7]
- Trial – The Court would continue towards the confining of issues and recording of proof/evidence. Examination in-Chief and Cross-Examination of the Petitioner and its supporting observers would be recorded first, trailed by Examination-in-Chief and Cross-Examination of the Respondent and its supporting witness.
This is the most critical phase of the whole case. It can possibly represent the deciding moment a case. So, the phase of the recording of proof/evidence which takes a ton of time and a lot of hearings to finish up. If there are custody issues then spouses can issues witness to prove that they are better for their child.[8]
- Counsels for both parties’ present final arguments – After the proof and evidence of both the parties have been verified and documented, the Divorce Lawyers for both the parties would be required to address their last closing arguments or contentions in the Court. Ensuing to which, the Court would fix a date on which it will articulate its decision.
- Decree of divorce passed by the court – Court articulates its decision.
- Appeal – The decision passed by the Court isn’t adequate to both of the parties, then party can document an Appeal against that Order inside a time of 3 months from the date of the order.
These are the steps of taking consented divorce but the legal framework depends on case to case. The consented divorce takes more time and is expensive.
“You Know why divorces are so expensive? As they’re worth it.” – Willie Nelson[9]
[1] Nelson, W. (2012, Nov 27). Retrieved from willienelson: http://willienelson.com/story/willie-nelson-on marriage-and-divorce-the-reason-divorces-are-so-expensive-is-theyre-worth-it/#:~:text=Willie%20Nelson%20on%20marriage%20and%20divorce%3A%20%E2%80%9CThe%20reason%20divorces%20are,is%20they’re%20worth%20it%E2%8
[2] (n.d.). Retrieved from MYLEGALWORK: https://mylegalwork.com/guides/contested-divorce
[3] Mehta, R. (2020, Jan 27). Retrieved from Economic Times : https://economictimes.indiatimes.com/wealth/save/divorce-costs-documents-needed-and-steps-involved/articleshow/73608055.cms?from=mdr#:~:text=In%20Contested%20divorce,examination%20of%20witnesses%20and%20evidence.
[4] Ibid,3
[5] Ibid,1
[6] Cathy, M. (2020, Jun 04). Retrieved from MYDOMAINE: https://www.mydomaine.com/steps-from-beginning-to-end-of-a-contested-divorce-1103298
[7] Ibid, 1
[8] Ibid
[9] Nelson, W. (2012, Nov 27). Retrieved from willienelson: http://willienelson.com/story/willie-nelson-on-marriage-and-divorce-the-reason-divorces-are-so-expensive-is-theyre-worth-it/#:~:text=Willie%20Nelson%20on%20marriage%20and%20divorce%3A%20%E2%80%9CThe%20reason%20divorces%20are,is%20they’re%20worth%20it%E2%8
This Article is Authored by Saumya Upadhyay, 2 Year, Law Student at Xavier law school, Xavier University Bhubaneswar.
Also Read – Is Divorce Law Different For Different Religions In India?
