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Legal Note on Contested Divorce as per Hindu Law

Marriage is a bond of love but sometimes it becomes difficult for the couple to carry it forward due to various reasons like infidelity, loss of interest or may be simple fall out of love. In a society like ours where few orthodox ways are still being followed in few parts, domestic violence and dowry harassment towards women and misuse of both towards men remain one of the primary grounds for unilateral divorces. Personal ego clashes and inability to compromise by the parties is also seen as a major reason in the current scenario. Sometimes both husband and wife neither want to live under the same roof nor wish to move on very easily.

In a situation where the couple disagrees on each and every single issue like alimony, custody of children etc. and where the concept of divorce by arriving at mutual terms looks impossible, the contested divorce also termed as “unilateral divorce” comes into picture. Generally in contested divorces, one party is interested in seeking divorce and the other is either not in favor of the same or gets so revengeful that they want their spouses to suffer for a very long time.

Under the concept of the contested divorce, the divorce is sought on the grounds of fault or guilt by one of the parties to the marriage.

Grounds for divorce under the hindu marriage act:

There are various grounds under which the divorce is granted. These are as follows:

  1. Cruelty, it includes both physical and mental cruelty.
  2. Unsoundness of mind which is incurable or mental disorder of such a kind and to such an extent that it is reasonably not expected for the parties to live together.
  3. Desertion (for continuous period of not less than 2 years)
  4. Adultery (voluntary having sexual intercourse with any person other than his or her spouse)
  5. Conversion from Hinduism to any other religion;
  6. Suffering from Venereal Disease in a communicable form
  7. Suffering from a virulent and incurable form of Leprosy

In India, most of the contested divorces are filed on the ground of cruelty as it covers various social issues mentioned in the opening para and the scope is so wide that anything which a person claims is mentally stressful and traumatic comes within its ambit. Divorces on other grounds are either not very common as compared to the ground of cruelty or require documentary evidence beyond any reasonable doubt. However, in case of Adultery, since the direct proof of Adultery is very rare, courts in India have held that Adultery can be proved by Circumstantial evidence.

Where to file the petition: On the basis of the above mentioned grounds of divorce, the aggrieved party can file the divorce before the District Court within whose jurisdiction the marriage was

  1. solemnized, or
  2. where the respondent resides,
  3. or where the parties last resided together.

Supreme Court is vested with powers to transfer petition from one state to other on request if such transfer is expedient for ends of justice. Same powers are vested with High Court where the transfer is sought within the same state. Burden of proof is on the party seeking transfer.

Procedure for filing divorce

    • Possession of sufficient evidence: First and foremost, the aggrieved party has to determine the ground under which his/ her case would fall and collect all the relevant documents and evidence in support of the case. Sometimes, for a ground like Adultery, assistance of private detective agencies may be required in order to collate the evidence or in cruelty, it needs to be supported with medical evidence, video or audio recordings etc.
    • Filing the petition before the competent court: A Divorce Petition along with documentary evidence can then be filed before the Court having the competent jurisdiction. The Court then summons the other party calling for his/ her presence.
    • Reference to mediation: Since marriage under Hindu law is a ‘sacrament’, the Courts also try to protect it rather than dissolve it. Therefore, the courts generally refer the parties to Mediation in order to resolve their disputes and differences. In the Mediation, if an agreement is arrived at between the parties, either regarding resolving their disputes and differences or regarding going for a Mutual consent divorce, the same gets recorded and the Court passes an appropriate order in terms of the agreement so arrived at.
    • Filing interim applications: The parties may file applications for the custody of children or maintenance during the pendency of the case. In case the court is convinced, an interim maintenance is granted depending upon the paying capacity of the person which depends on various factors and also visitation rights are also fixed in such cases.
    • Trial: In case the mediation fails, the case goes on to trial and the party who has filed the divorce petition needs to prove the ground by way of evidence & arguments.

Very pertinent to mention that the presence of both the parties at the time of evidence is mandatory and can’t be dispensed with. In case any of the parties is not in India, the said person shall be required to travel to lead evidence.

 

  • Divorce decree: If the court is satisfied with the facts and evidences of the case, then the Divorce is granted and the decree sheet is drawn for which parties need to formally apply for.
  • Divorce decree binding: The parties are bound by all the terms as mentioned in the decree and any non-compliance by any of the parties amounts to contempt of court and the aggrieved party can file contempt petition before the same court


- As on 1st July 2019