How to Obtain an Uncontested Divorce Effortlessly in India
We empathize with the challenging emotional journey you may be undergoing due to your divorce. Our aim is to assist you by providing guidance on the appropriate legal procedures, thereby making your life more manageable. Our team of experts is dedicated to equipping you with all the necessary information, including where and how to initiate the divorce proceedings.
Essential Documents Required:
1. Marriage certificate
2. Wedding photographs
3.Husband and wife’s Adhaar cards
4.Proof of unsuccessful attempts at reconciliation
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Description
Ending a marriage is a deeply challenging decision that requires careful consideration. When unresolved difficulties persist within a marriage, it can ultimately lead to the dissolution of the union through divorce. Divorces can occur for various reasons, ranging from cruelty and adultery to severe mental harassment and desertion. They can be either mutual, with the consent of both spouses, or contested. This article focuses on contested divorce and provides an explanation of the process involved. Additionally, it offers insights into the available grounds on which a contested divorce can be filed
Background Of Contested Divorce
Below, we have discussed the most common grounds for contested divorce, along with brief references to relevant case laws. A contested divorce can be filed in the jurisdiction where the marriage took place, where the couple last resided together, or where the respondent currently resides. If the wife is filing for a contested divorce, she may do so in the jurisdiction where she resides when filing the petition.
Both contested and uncontested divorce petitions must provide detailed information about the spouses, including their addresses. The divorce petition should state the reason or grounds for divorce, the spouse’s preferences regarding child custody, and the date of separation if the spouses have been living apart. In the case of a mutual divorce, at least one year must have passed since the date of marriage before filing.
It is important to note that contested divorces generally require a longer period to reach resolution compared to uncontested or mutual divorces. Consequently, contested divorces tend to be more expensive.
Background Of Contested Divorce
Below, we have discussed the most common grounds for contested divorce, along with brief references to relevant case laws. A contested divorce can be filed in the jurisdiction where the marriage took place, where the couple last resided together, or where the respondent currently resides. If the wife is filing for a contested divorce, she may do so in the jurisdiction where she resides when filing the petition.
Both contested and uncontested divorce petitions must provide detailed information about the spouses, including their addresses. The divorce petition should state the reason or grounds for divorce, the spouse’s preferences regarding child custody, and the date of separation if the spouses have been living apart. In the case of a mutual divorce, at least one year must have passed since the date of marriage before filing.
It is important to note that contested divorces generally require a longer period to reach resolution compared to uncontested or mutual divorces. Consequently, contested divorces tend to be more expensive.
Grounds Of Contested Divorce
1. Adultery- Adultery serves as one of the grounds for divorce when one spouse voluntarily engages in sexual intercourse with another person, whether married or unmarried. Previously, Section 497 of the Indian Penal Code deemed adultery as a punishable offense. However, it was repealed in 2019. The decision to file for divorce due to adultery lies with the faithful spouse. Adultery is recognized as a valid ground for divorce in various laws governing marriages and different religions. The burden of proof rests upon the spouse alleging the affair, and it is a crucial aspect when contesting divorce on this ground.
2. Cruelty-: As mentioned earlier, cruelty is a common ground for contested divorce. The Hindu Marriage Act was amended in 1976 to include cruelty as a valid ground for divorce. The term “cruelty” lacks a specific legal definition but is interpreted within various contexts, including physical, mental, intentional, unintentional, direct, indirect, subjective, or relative forms. Based on circumstantial evidence, it is at the court’s discretion to provide relief to the aggrieved spouse. In Russell v. Russell, cruelty was defined abstractly as an act or conduct that creates a reasonable apprehension of danger to an individual’s life, limb, mental, or bodily health. In Narayan Dastane v. Sucheta, the court analyzed whether the petitioner spouse had been subjected to cruelty during their cohabitation and if such cruelty posed a threat to the petitioner spouse’s life.
3. Desertion- Desertion is recognized as a common ground for divorce in almost all divorce laws in the country. It refers to the abandonment of one spouse without reasonable cause or against the will of the other spouse. To establish this ground for divorce, there must be a continuous period of separation lasting for two years without any reasonable cause. The Calcutta High Court provided a liberal interpretation of constructive desertion in Jyotish Chandra v. Meera. In this case, divorce can be granted if the petitioner spouse can prove that the relationship has irretrievably broken down, with nothing remaining except physical cohabitation.
Procedure For Filing Contested Divorce
- Gathering documents- Before initiating a contested divorce, it is important to gather relevant information and documentation to support one’s claims. This may include compiling a list of assets, debts, and documents related to the child.
- Finding an attorney- Selecting a suitable lawyer is a crucial aspect of the divorce process. It is advisable to choose an attorney who has regular courtroom presence and possesses qualities such as expertise in the relevant area of law and integrity. This increases the chances of success for the divorce petitioner.
- Preparing paperwork and filing- Upon consulting the chosen attorney, the petitioner can discuss the factors, circumstances, and reasons leading to the decision to file for divorce. In cases involving substance abuse or domestic violence, the petitioner may seek a temporary restraining order. Based on the client’s information, the attorney will draft the divorce petition and file it in the appropriate court, typically the family court.
- Service of notice and response- Before filing the divorce petition and paying the necessary court fees, a notice is served on the other spouse. After being served, the respondent has a limited period, usually ranging from 21 to 30 days, to respond to the petition.
- Discovery-
During this phase, both spouses exchange information, disclosing marital and non-marital assets, debts, income, child custody matters, and alimony considerations.
- Settlement- With complete information obtained through the discovery process, the court encourages the parties to reach a settlement by addressing unresolved conflicts. Mediation or third-party negotiation may be utilized to facilitate this stage.
- Trial- The majority of cases, approximately 95%, are resolved outside the courtroom. However, in the remaining 5% of cases, a trial becomes necessary. During the trial, evidence and witness testimony are presented before the judge. The court examines the issues at hand, sets hearing dates, and cross-examines witnesses. Prior to the trial, summons are served to the witnesses, requesting their presence in court.
- Order/decree and appeal- After considering the arguments and evidence presented by both parties, the court issues an order or decree either granting or denying the divorce. If dissatisfied with the decision, an appeal can be made to the high court that holds jurisdiction over the family court, and subsequently to the supreme court.