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Stages in Contested Divorce

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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VICTIMS OF DOMESTIC VIOLENCE HAVE A RIGHT TO RESIDENCE AT SHARED HOUSEHOLD OWNED BY IN-LAWS

Women who have been thrown out of their in-laws’ house due to a domestic dispute can now claim the right of residence in the “shared household” even if the house is owned by the in-laws.

In a judgment that would bring relief to many victims of domestic violence, a three-judge bench of the Supreme Court held that “shared household”, under the protection of women from Domestic Violence Act 2005, can also be a house owned by the joint family or any relative of the husband, provided that the woman has lived in that house after her marriage as a long-term resident “in a domestic relationship”.

“In the event, the shared household belongs to any relative of the husband with whom in a domestic relationship the woman has lived, the conditions mentioned in Section 2(s) are satisfied and the said house will become a shared household,” held the bench of Justices Ashok Bhushan, R Subhash Reddy and MR Shah.

This judgment would come as a massive relief to women who have been thrown out of the matrimonial home and denied relief on grounds that the house is the sole property of their father-in-law or mother-in-law.

The bench, in its 150-page verdict, observed that “domestic violence in this country is rampant and several women encounter violence in some form or the other almost every day, however, it is the least reported form of cruel behaviour.”

The bench also observed that the Domestic Violence Act 2005 was a “step to secure social justice by legislation”

The Act 2005 was enacted to give a higher right in favour of the woman. The Act 2005 has been enacted to provide for more effective protection of the rights of the woman who are victims of violence of any kind occurring within the family. The Act has to be interpreted in a manner to effectuate the very purpose and object of the Act,” said the court.

The judgment over-ruled a 2007 judgment in Tarun Batra case of a two-judge bench of the apex court, which had held that “shared household” is limited to a house that is owned or rented by her husband, or by the joint family of which the husband is a member.

Conditions on woman’s right of residence

  1. The bench has clarified that whether or not the residence is in fact a “shared residence” would be determined by the family court where the domestic violence case is being heard.
  2. The court additionally said that “the right to residence under Section 19 is not an indefeasible right of residence in the shared household especially when the daughter-in-law is pitted against aged father-in-law and mother-in-law.”
  3. “The senior citizens in the evening of their life are also entitled to live peacefully not haunted by marital discord between their son and daughter-in-law. While granting relief both in the application under Section 12 of Act, 2005 or in any civil proceedings, the court has to balance the rights of both the parties” the court has added.
  4. Relief for the daughter-in-law would also depend on whether the allegation of domestic violence can be proved in the trial.
  5. “It is to be observed that in a case any relief available under Sections 18, 19, 20, 21 and 22 is sought by the aggrieved person in any legal proceedings before a civil court, family court or a criminal court including the residence order, the aggrieved person has to satisfy by leading evidence that domestic violence has taken place and only on the basis of the evidence led on being satisfied that the domestic violence has taken place, the relief available under Section 19 can be granted…” the court said.
Case which led to the judgment

The observations have been passed in a case involving a domestic dispute where a couple married in 1995 and started living in the house owned by the father-in-law. In 2004, a separate kitchen was created on the first floor of the house where the husband and wife lived, while the in-laws lived on the ground floor. In 2014, the husband started living in the guest room on the ground floor, while the wife and children lived on the first floor.

The husband had initiated divorce proceedings in 2014, while the father-in-law filed a plea of injunction, to bar the woman from living in his house.

The trial court had passed an order in favour of the in-laws, which was overturned by the Delhi High court, which held that the woman did have the legal right to claim the right of residence.

The father-in-law then moved the apex court to decide on the legal issues of whether the daughter-in-law could seek rights of residence in his house.

The Apex court has now held that the trial court decision was incorrect, and has directed the trial court to re-adjudicate the matter.

“The claim of the defendant that suit property is shared household and she has right to reside in the house ought to have been considered by the Trial Court and non-consideration of the claim/defense is nothing but defeating the right, which is protected by Act, 2005” the SC has said.

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