When the marriage does not result in marital cooperation and harmony, it results in a divorce. Divorce law provides the framework that governs the circumstances under which a marriage may be brought to an end and spouses are free to remarry. A divorce can be caused due to a few reasons and can be either a mutual divorce or a contested divorce. We here will provide an excellent explanation for contested divorce.
CONTESTED DIVORCE: A contested divorce is one where the husband or the wife wants a divorce, but the other spouse does not. Even when both the parties want a divorce, but cannot agree on any issue such as alimony, custody of children, etc., it is a case of contested divorce.
Grounds for a contested divorce
- Adultery– Adultery means after the solemnization of the marriage, anyone whether the husband or wife had voluntary sexual intercourse with any person other than his or her spouse. In India, earlier, adultery was a criminal offence but in a recent Supreme Court judgment adultery has been decriminalized. But it still can be used as a ground to seek divorce from a spouse who has been committing adultery.
- Cruelty-It is described as a deliberate act which can endanger physical and mental health. It can lead to suffering, mental or physical violence, and torture.
- Desertion– Desertion means the permanent abandonment of one spouse by the other spouse without any reasonable justification and without his consent. If one of the parties deserts the other one without giving any reasonable reason, then, it is a good reason to obtain a divorce from the other.
- Religious Conversion-If one of the partners is no longer a Hindu, then the justification for divorce may be found in a Hindu marriage.
- Insanity–If the spouse is unable to perform the normal duties that he or she is required to perform due to some mental illness or disorder then, in that case, divorce can be sought. However, if the mental illness does not hamper the capabilities of the person from performing his or her duties then the divorce cannot be claimed.
- Leprosy-If the spouse has been suffering from some virulent and incurable form of leprosy, then, the aggrieved can seek divorce. Leprosy is an infectious disease of the skin, mucous membranes, nervous system etc. this disease is transmitted from one person to another. Thus it is considered as the valid ground for divorce.
- Venereal Disease– Under this concept, if the disease is in communicable form and it can be transmitted to the other spouse, then this can be considered as the valid ground for divorce.
- Renunciation– It means when one of the spouses decide to renunciate the world and walk on the path of the God, then the other spouse can approach the court and demand the divorce. In this concept the party who renunciates the world is considered as civilly dead.
- Presumption of Death– In this case, the person is presumed to have died, if the family or the friends of that person does not hear any news about the person alive or dead for seven years. It is considered as the valid ground for divorce, but the burden of proof is on the person who demands the divorce.
Naveen Kohli versus Neelu Kohli, (2006) 4 SCC 558 – It was held that the marriage had been destroyed past any expectation of salvation, the court held that open intrigue and the interests of all concerned lay in the acknowledgement, in law, of this reality. That despite the fact that the spouse was not pleasing to separation by common assent and appeared to have made plans to live in anguish just to make the life of her significant other a hopeless heck, open intrigue lay in the disintegration of the marriage bond. Keeping a hoax of marriage alive in law was held to be increasingly helpful for unethical behaviour and conceivably more biased to the open enthusiasm than the disintegration of a marriage. Not conceding a separation under such conditions was held to be awful for the gatherings. The allowing of separation would offer them the possibility, both mentally and inwardly, to settle down sooner or later and start another part throughout everyday life
Information/Documents required for contested divorce
- Aadhar card of the Petitioner.
- Residence Facts of marriage between husband and wife.
- Photos of marriage of the husband and wife.
- Descriptions of husband’s and wife’s occupation and income today.
- Three financial years’ income tax statements and bank statements.
- The provisions / facts on which the divorce is filed.
Steps for filing a contested divorce
- Step 1:Drafting and submission of the petition (submissions for divorce) -The application drafted must be submitted to a family court together with the corresponding court fees. For the preparation of your petition, you need the right advice and guidance from a reputable and competent and experienced divorce lawyer.
- Step 2: A summons/notice is issued by a court of law to the second party. The purpose of a summons is to remind the other party that their wife/husband initiated the divorce process.
- Step 3: The party shall be present at the Family court on the day specified in the summons after the summons has been issued along with the reply/written statement.
- Step 4:After the submission of the reply, the parties to divorce must provide sufficient proof and evidence at the Court in this stage. The test and cross-examinations of the parties, witnesses and testimony must be performed before the courts by respective lawyers. This is an important step in the divorce process.
- Step 5: Argument – On the basis of documentary proof submitted and testimony, argument is made by the counsel of both of the parties.
- Step 6: Final Order- Upon effective completion of all the previously listed steps, the Court must issue a final order. If any party is not happy with the final order, the same can be questioned in superior courts.
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