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What Are The Various Documents Required To File A Petition For A Contested Divorce?

Introduction

The divorce procedure in India is wearisome and requires a lot of documentation. So, to cut time and costs, knowing what all documents are required to file a petition for a contested divorce is quite important. A contested divorce is one of the various types of divorces and is relatively complicated. To understand this, we need to get familiar with divorce and its types, and laws governing divorce in India.

Divorce in India

India is a land of religious diversity. Indian population is made up of various communities each, having different faiths. Thus each religious community has its own marriage and divorce laws. Hindus, Jains, Buddhists, and Sikhs can seek divorce under the Hindu Marriage Act, 1955 as per Section 2 of that Act. Muslims, Christians, Parsis, and Jews are not covered under this Act.[1] They can seek divorce under laws governing their religious affairs like the Muslim Marriage Act, 1939; Indian Christian Marriage Act, 1872; etc. If spouses belong to different communities, they can seek divorce under the Special Marriage Act, 1954 as per Section 4 of the Act.[2] When one of the spouses is of any other nationality, the couple can seek divorce under the Foreign Marriage Act, 1969 as per Section 4 of the Act.[3] However, Section 18(2) of the Foreign Marriage Act, 1969 says that the provisions for divorce under the Special Marriage Act shall be applicable for couples covered under the Foreign Marriage Act.[4]

We now got a broad idea of the laws governing divorce in India. However, there is one common thing in all these laws and that is the grounds for divorce.

All these personal divorce laws provide that divorce can be filed on the following grounds, however, there are certain differences.

Grounds for filing divorce:

  1. On grounds of mutual consent[5]
  2. On grounds of [6]
  3. Adultery
  4. Cruelty
  5. Desertion
  6. Conversion
  7. Unsoundness of mind
  8. A virulent and incurable form of leprosy
  9. Venereal diseases in a communicable form
  10. Presumption of death
  11. Renunciation
  12. Non-compliance of the decree of judicial separation
  13. Non-compliance with the decree of restitution of conjugal rights

Now if divorce is sought on the ground of mutual consent, it shall be called an Uncontested Divorce or Divorce with Mutual Consent.

If divorce is sought on the grounds mentioned in the second category, it shall be called a Contested Divorce or Divorce without Mutual Consent.

The difference between a contested divorce and uncontested divorce is that in an uncontested divorce the couple agrees on all issues that are required to terminate the marriage and thus nothing is left unresolved. But in a contested divorce, the couple does not agree on one or more issues needed to resolve the disputes and to terminate the marriage.

This makes contested divorce a complex one.

Now that we have known the meaning of contested divorce and the grounds on which it is sought, we now need to know all the documents for filing a petition for a contested divorce.

What documents are required depends on the grounds on which the divorce is filed.

Documents for filing a petition for contested divorce-

1. Adultery[7]:- When a spouse after the solemnization of marriage has voluntary sexual intercourse with any person other than their spouse, then they shall be guilty of adultery. Pre-marital sexual intercourse does not constitute adultery.[8] Documents required-

  1. Marriage certificate
  2. Address proof of husband
  3. Address proof of wife
  4. Four passport size photographs of the marriage of husband and wife
  5. Evidence as to the single act of adultery
  6. Proof of the long term adulterous relationship between the spouse and the other person
  7. Statements of those who witnessed the adulterous act
  8. DNA evidence which proves the adulterous act and the person who tested the DNA to testify her findings

2. Cruelty[9]:- Section 13(1)(a) of the Hindu Marriage Act, 1955 deals with this offence. Previously, cruelty was ground for judicial separation only. But through the passing of the Marriage Laws ( Amendment) Act, 1976 cruelty has been declared as a ground for judicial separation as well as divorce.[10] In this case, the spouse treats the petitioner with cruelty after the solemnization of marriage. There should be a series of incidents wherein the spouse showed cruel behaviour towards the petitioner. A single incident of cruel behaviour shall not be used to decide the case. Documents required-

  1. Marriage certificate
  2. Address proof of husband
  3. Address proof of wife
  4. Four passport size photographs of the marriage of husband and wife
  5. Medical evidence to prove the physical abuse
  6. Evidence as to cruel behavior by spouse towards the petitioner
  7. Statements of the witnesses

3. Desertion[11]:- Previously, desertion was ground for judicial separation only. But through the passing of the Marriage Laws ( Amendment) Act, 1976 desertion has been declared as a ground for judicial separation as well as divorce.[12] If one of the spouses deserts or abandons the other for a continuous period of two years, then the other spouse i.e., the abandoned spouse can file a petition for divorce on the ground of desertion. The Documents required are-

  1. Marriage certificate
  2. Address proof of husband
  3. Address proof of wife
  4. Four passport size photographs of the marriage of husband and wife
  5. Evidence to prove that the desertion was for a continuous period of not less than two years
  6. Evidence to prove that desertion was not consented.
  7. Evidence to prove that the other spouse who had deserted the petitioner had the intention to do so
  8. Evidence to prove that desertion was either actual or constructive

4. Conversion[13]:- In this case, if the respondent who is a Hindu converts to another religion, the Hindu marriage can be terminated by seeking a divorce on this ground but the condition is that the petitioner must be a Hindu. Just stating to be of another religion is not sufficient. The respondent must ceremonially convert to another religion. Documents required are-

  1. Marriage certificate
  2. Address proof of husband
  3. Address proof of wife
  4. Four passport size photographs of the marriage of husband and wife
  5. Conversion certificate
  6. Evidence to prove the ceremonial conversion to another religion
  7. Evidence to prove the free consent of the respondent in conversion
  8. Statements of persons who witnessed the conversion of the respondent

5. Unsoundness of Mind[14]:- To file a petition for divorce on this ground, the respondent should have been incurable of unsound mind or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent. Documents required-

  1. Marriage certificate
  2. Address proof of husband
  3. Address proof of wife
  4. Four passport size photographs of the marriage of husband and wife
  5. Medical certificate to prove the mental disorder
  6. Evidence to prove that the respondent has been suffering from an intermittent mental disorder
  7. Evidence to prove that it has been two years since the solemnization of marriage
  8. Evidence to prove that the petitioner was unaware of the disorder at the time of marriage
  9. Evidence to prove that the petitioner cannot live with the respondent

6. Leprosy[15]:- The respondent should be suffering from a virulent and incurable form of leprosy. Documents required are-

  1. Marriage certificate
  2. Address proof of husband
  3. Address proof of wife
  4. Four passport size photographs of the marriage of husband and wife
  5. Medical certificate to prove leprosy
  6. Statements of doctors to prove the validity of the certificate
  7. Medical reports to prove that the leprosy is incurable and virulent
  8. Evidence to prove that the petitioner was unaware of leprosy at the time of marriage

7. Venereal Disease[16]:- The respondent should be suffering from a venereal disease which is of a communicable form. Documents required-

  1. Marriage certificate
  2. Address proof of husband
  3. Address proof of wife
  4. Four passport size photographs of the marriage of husband and wife
  5. Medical reports to prove that the respondent is suffering from a communicable venereal disease
  6. Medical reports to prove that the petitioner did not have the disease at the time of marriage

8. Presumption of Death[17]:- For a continuous period of seven years if the respondent is not seen or heard alive by those who are expected to have naturally heard of the respondent being alive. Documents required:-

  1. Marriage certificate
  2. Address proof of husband
  3. Address proof of wife
  4. Four passport size photographs of the marriage of husband and wife
  5. Evidence to prove that neither the petitioner nor their relatives heard of the respondent for the last 7 years
  6. Evidence to show the effective search of the respondent has been made
  7. Details about the last date of cohabitation and details of the place and date when the respondent was last seen

9. Renunciation[18]:- The respondent must have renounced the world by entering into a new religious order. It is only the Hindu personal law of marriage and divorce that renunciation is a ground for divorce. Documents required are-

  1. Marriage certificate
  2. Address proof of husband
  3. Address proof of wife
  4. Four passport size photographs of the marriage of husband and wife
  5. Evidence proving the respondent’s renunciation of all worldly affairs
  6. Proof that the respondent no longer enjoys marital life or other comforts of life
  7. Evidence to prove that the respondent underwent ceremonial formalities to enter into the new religious order

10. Non-compliance of the decree of judicial separation[19]:- Judicial separation unlike divorce only means physical separation of the spouses as ordered by a competent court. This is done to give the spouses time to reconcile. But if there has not been any resumption of cohabitation between the spouse for a period of one year or upwards after the passing of a decree for judicial separation, either of the spouses can seek a divorce. Documents required-

  1. Marriage certificate
  2. Address proof of husband
  3. Address proof of wife
  4. Four passport size photographs of the marriage of husband and wife
  5. Evidence to prove that there is no resumption of cohabitation between the couple
  6. Documents showing the date on which the decree of judicial separation was passed.

11. Non-compliance with the decree of restitution of conjugal rights[20]:- Restitution of conjugal rights means when either of the spouses withdraws from the society of the other, the aggrieved party may file a petition in a district court for the restitution of conjugal rights. When the Court grants the same, the spouses shall be required to live together. Non-compliance with this decree shall give the right to seek a divorce to the aggrieved party. Documents required-

  1. Marriage certificate
  2. Address proof of husband
  3. Address proof of wife
  4. Four passport size photographs of the marriage of husband and wife
  5. Evidence to prove that either of the spouses did not comply with the decree
  6. Evidence to prove the ill-treatment by the other that has compelled the spouse for not abiding by the decree.

[1] ‘The Hindu Marriage Act, 1955’, India Code: Digital Repository of all Central and State Acts, PDF file, p. 3, https://indiacode.nic.in/bitstream/123456789/1560/1/a1955__25.pdf (last accessed 6 June, 2020)

[2] ‘The Special Marriage Act, 1954’, India Code: Digital Repository of all Central and State Acts, PDF file, p.5, https://indiacode.nic.in/bitstream/123456789/1387/1/195443.pdf (last accessed 6 June, 2020)

[3] ‘The Foreign Marriage Act, 1969’, India Code: Digital Repository of all Central and State Acts, PDF file, p.3, https://indiacode.nic.in/bitstream/123456789/1720/1/a1969-33.pdf (last accessed 6 June, 2020)

[4] ‘The Foreign MArriage Act, 1969’, India Code: Digital Repository of all Central and State Acts, PDF file, p.6, https://indiacode.nic.in/bitstream/123456789/1720/1/a1969-33.pdf (last accessed 6 June, 2020)

[5]  Section 13B of the Hindu Marriage Act, 1955, ‘The Hindu Marriage Act, 1955’, India Code: Digital Repository of all Central and State Acts, PDF file, p. 8, https://indiacode.nic.in/bitstream/123456789/1560/1/a1955__25.pdf  (last accessed 8 June, 2020)

[6] Section 13 of the Hindu Marriage Act, 1955, ‘The Hindu Marriage Act, 1955’, India Code: Digital Repository of all Central and State Acts, PDF file, p. 7, https://indiacode.nic.in/bitstream/123456789/1560/1/a1955__25.pdf  (last accessed 8 June, 2020)

[7] Section 13(1)(i) of the Hindu Marriage Act, 1955, ‘The Hindu Marriage Act, 1955’, India Code: Digital Repository of all Central and State Acts, PDF file, p. 7, https://indiacode.nic.in/bitstream/123456789/1560/1/a1955__25.pdf  (last accessed 8 June, 2020)

[8]   Section 497 of the Indian Penal Code, ‘The Indian Penal Code’, India Code: Digital Repository of all Central and State Acts, PDF file, p. 216, https://indiacode.nic.in/bitstream/123456789/4219/1/THE-INDIAN-PENAL-CODE-1860.pdf (last accessed 8 June, 2020)

[9] Section 13(1)(i)(a) of the Hindu Marriage Act, 1955, ‘The Hindu Marriage Act, 1955’, India Code: Digital Repository of all Central and State Acts, PDF file, p. 7, https://indiacode.nic.in/bitstream/123456789/1560/1/a1955__25.pdf  (last accessed 9 June, 2020)

[10] Section 7 of the Marriage Laws (Amendment) Act, 1976, ‘The Marriage Laws (Amendment) Act 1976’, PDF, http://14.139.60.114:8080/jspui/bitstream/123456789/15488/31/Appendix%20%28333-352%29.pdf (last accessed 9 June, 2020)

[11]  Section 13(1)(i)(b) of the Hindu Marriage Act, 1955, ‘The Hindu Marriage Act, 1955’, India Code: Digital Repository of all Central and State Acts, PDF file, p. 7, https://indiacode.nic.in/bitstream/123456789/1560/1/a1955__25.pdf  (last accessed 9 June, 2020)

[12] Section 7 of the Marriage Laws (Amendment) Act, 1976, ‘The Marriage Laws (Amendment) Act 1976’, PDF, http://14.139.60.114:8080/jspui/bitstream/123456789/15488/31/Appendix%20%28333-352%29.pdf (last accessed 9 June, 2020)

[13]  Section 13(1)(ii) of the Hindu Marriage Act, 1955, ‘The Hindu Marriage Act, 1955’, India Code: Digital Repository of all Central and State Acts, PDF file, p. 7, https://indiacode.nic.in/bitstream/123456789/1560/1/a1955__25.pdf  (last accessed 9 June, 2020)

[14] Section 13(1)(iii) of the Hindu Marriage Act, 1955, ‘The Hindu Marriage Act, 1955’, India Code: Digital Repository of all Central and State Acts, PDF file, p. 7, https://indiacode.nic.in/bitstream/123456789/1560/1/a1955__25.pdf  (last accessed 9 June, 2020)

[15] Section 13(1)(iv) of the Hindu Marriage Act, 1955, ‘The Hindu Marriage Act, 1955’, India Code: Digital Repository of all Central and State Acts, PDF file, p. 7, https://indiacode.nic.in/bitstream/123456789/1560/1/a1955__25.pdf  (last accessed 9 June, 2020)

[16] Section 13(1)(v) of the Hindu Marriage Act, 1955, ‘The Hindu Marriage Act, 1955’, India Code: Digital Repository of all Central and State Acts, PDF file, p. 7, https://indiacode.nic.in/bitstream/123456789/1560/1/a1955__25.pdf  (last accessed 9 June, 2020)

[17] Section 13(1)(vii) of the Hindu Marriage Act, 1955, ‘The Hindu Marriage Act, 1955’, India Code: Digital Repository of all Central and State Acts, PDF file, p. 7, https://indiacode.nic.in/bitstream/123456789/1560/1/a1955__25.pdf  (last accessed 9 June, 2020)

[18] Section 13(1)(vi) of the Hindu Marriage Act, 1955, ‘The Hindu Marriage Act, 1955’, India Code: Digital Repository of all Central and State Acts, PDF file, p. 7, https://indiacode.nic.in/bitstream/123456789/1560/1/a1955__25.pdf  (last accessed 9 June, 2020)

[19]  Section 13(1A)(i) of the Hindu Marriage Act, 1955, ‘The Hindu Marriage Act, 1955’, India Code: Digital Repository of all Central and State Acts, PDF file, p. 7, https://indiacode.nic.in/bitstream/123456789/1560/1/a1955__25.pdf  (last accessed 9 June, 2020)

[20] Section 13(1A)(ii) of the Hindu Marriage Act, 1955, ‘The Hindu Marriage Act, 1955’, India Code: Digital Repository of all Central and State Acts, PDF file, p. 7, https://indiacode.nic.in/bitstream/123456789/1560/1/a1955__25.pdf  (last accessed 9 June, 2020)

This article has been written by Tonangi Sanjana Priya from GITAM (Deemed to be University) Visakhapatnam.

Also Read – How To Respond A Divorce Notice By Husband?

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