Contested Divorce

A contested divorce occurs when one spouse files for divorce, and the other spouse disagrees with the petition or the terms proposed. Unlike an uncontested divorce, where both parties mutually agree to the terms of divorce, a contested divorce involves legal proceedings where the court decides the outcome of the divorce, custody, maintenance, and other issues.

Grounds for Contested Divorce

In India, grounds for a contested divorce depend on the personal law governing the marriage (e.g., Hindu Marriage Act, Special Marriage Act). Common grounds for a contested divorce include:

1. Under the Hindu Marriage Act, 1955 (Section 13)

• Adultery – If a spouse engages in voluntary sexual relations outside the marriage.
• Cruelty – Mental or physical cruelty inflicted by one spouse on the other.
• Desertion – If one spouse has abandoned the other for at least two years without reasonable cause.
• Conversion – If a spouse converts to another religion.
• Mental Disorder – If the spouse suffers from a mental illness that is incurable.
• Leprosy or Venereal Disease – If the spouse is suffering from a contagious disease.
• Presumption of Death – If one spouse has not been heard of for 7 years.
• Renunciation of the World – If a spouse becomes a renunciant (sannyasi) or ascetic.

2. Under the Special Marriage Act, 1954 (Section 27)

• Similar to the Hindu Marriage Act, grounds for a contested divorce include adultery, cruelty, desertion, mental disorder, and other causes such as conversion or presumption of death.

Procedure for Contested Divorce

1. Filing a Petition:
   • The spouse seeking a contested divorce files a divorce petition in the family court. This petition includes the grounds for divorce and any related claims (maintenance, custody, etc.).
2. Court Admission:
   • The family court will examine the petition, and if it meets the legal requirements, it will be admitted for further hearings.
3. Notice to the Respondent:
   • The court will issue a notice to the other spouse (respondent), who is required to appear in court to respond to the divorce petition.
4. Written Statement:
   • The respondent can file a written statement countering the allegations made in the petition. The respondent may deny the grounds for divorce or present their own reasons for seeking the divorce.
5. Reconciliation Efforts:
   • The court may attempt to reconcile the spouses before proceeding further, often mandating mediation or counseling to encourage reconciliation. If reconciliation fails, the case moves forward.
6. Evidence and Witnesses:
   • Both parties present evidence, including documents and witness testimony, to substantiate their claims. This may involve testimonies regarding cruelty, adultery, desertion, etc.
7. Arguments and Hearings:
   • The court hears both sides, and both parties can make arguments supporting their claims. Legal representation (through lawyers) is usually essential at this stage.
8. Final Judgment:
   • After reviewing the evidence, the court delivers its judgment. If the court grants the divorce, it will also address issues like custody of children, alimony, and division of property.
9. Appeal:
   • Either party can file an appeal to a higher court if they disagree with the family court’s decision.

Duration of a Contested Divorce

A contested divorce may take a longer time to resolve, often ranging from 1 to 5 years or even longer, depending on the complexity of the case, evidence, and the backlog in the court system.

Maintenance and Alimony in Contested Divorce

During contested divorce proceedings, one spouse may request maintenance or alimony from the other. The court decides the amount based on various factors, such as:

• Financial capabilities of both spouses.
• The standard of living during the marriage.
• The financial needs of the spouse seeking maintenance.

In contested divorce, maintenance may be claimed during the proceedings (interim maintenance) as well as after the divorce (permanent maintenance).

Child Custody in Contested Divorce

In contested divorce cases involving children, child custody becomes a major issue. The court may decide:

• Custody: Whether the children stay with the mother or father.
• Visitation Rights: The non-custodial parent may be granted visitation rights.
• Child Support: The non-custodial parent may be ordered to provide financial support.

The court always considers the best interest of the child when deciding custody.