What is the procedure for contested divorce in India?

A contested divorce occurs when one party does not agree to the divorce, or when there are disagreements on key issues like child custody, alimony, or division of property. Unlike a mutual consent divorce, which is more amicable and faster, a contested divorce involves a legal battle that can take a long time and requires both parties to attend hearings, present evidence, and potentially undergo mediation.

The procedure for a contested divorce in India is laid out under various personal laws, like the Hindu Marriage Act, 1955, Special Marriage Act, 1954, and others, depending on the religion or personal status of the parties involved.

Procedure for Contested Divorce in India

• 1. Filing the Divorce Petition:

  The divorce process begins when one spouse (the petitioner) files a divorce petition in the family court under the relevant law (Hindu Marriage Act, Special Marriage Act, etc.). The petition must clearly state the grounds for divorce, which may include:

  • Cruelty: Physical or mental cruelty by one spouse towards the other.
  • Adultery: One spouse engages in an extramarital affair.
  • Desertion: One spouse abandons the other for a continuous period (usually two years or more).
  • Inability to consummate the marriage (impotence).
  • Mental illness or incurable disease.
  • Conversion to another religion (in some cases).

  The petitioner must provide specific details and evidence of the grounds mentioned in the petition.

• 2. Court Proceedings and Summons:

  Once the petition is filed, the family court issues a summons to the other spouse (the respondent) to appear in court. The respondent may agree or contest the petition. If the respondent contests the divorce, they must file a counter-petition and state their reasons for opposing the divorce.

• 3. Respondent's Reply & Counter-Petition:

  If the respondent does not agree to the divorce, they can file a counter-petition challenging the divorce petition. The counter-petition may include reasons why the divorce should not be granted, such as claiming that the grounds for divorce are false or that the couple can reconcile.

  The court will then set a date for hearings based on the filed petitions. This process can take a few months depending on the court’s backlog.

• 4. Court Hearings & Presentation of Evidence:

  During the hearings, both parties present their evidence (such as medical reports, photographs, affidavits, financial documents, and testimonies from witnesses) to support their case.

  • Witness Testimonies: Both the petitioner and respondent may be asked to testify in court. Their family members, friends, or any other witnesses who can testify about the events leading to the breakdown of the marriage may also be called.
  • Cross-Examination: After the testimonies, the opposite party has the right to cross-examine the witnesses.
  • Family Court Mediation: In contested divorce cases, the court may refer the case for mediation or counseling to see if reconciliation is possible. This is an attempt to settle the matter without a prolonged trial. If the mediation is unsuccessful, the case proceeds to trial.
• 5. Interim Orders:

  During the divorce proceedings, either party may apply for interim orders related to maintenance, child custody, or restraining orders (e.g., preventing the spouse from selling shared property). The court may issue such orders if it finds it necessary to provide immediate relief.

• 6. Final Hearing and Arguments:

  After several hearings and presentation of evidence, the court will schedule the final hearing. Both parties will have an opportunity to present their final arguments regarding the divorce and other related issues (e.g., property, alimony, child custody).

• 7. Judgment:

  Once all the evidence and arguments have been presented, the court will deliver its judgment. If the court finds that the petitioner has proven the grounds for divorce, it will grant the divorce decree and officially end the marriage.

  If the court finds the grounds insufficient or believes the marriage can still be salvaged, it may dismiss the petition or grant a temporary separation.

• 8. Appeal and Post-Judgment Actions:

  If either party is dissatisfied with the court’s judgment, they can appeal to a higher court. Appeals must be filed within a specific time period, generally within 30 days from the date of the judgment.

Factors Affecting the Divorce Timeline

• Complexity of the Case: The more complex the issues (e.g., child custody, division of property, or alimony), the longer the case will take. In contested cases, each side may present detailed evidence, which prolongs the trial.
• Court Backlog: Family courts in India are often backlogged with cases, leading to delays. Some cases take several years before a final decree is issued, depending on the jurisdiction and workload of the court.
• Opposition by the Respondent: If the respondent contests the divorce, the case may drag on for years due to multiple hearings, the filing of counter-petitions, and the need for further evidence or witnesses.
• Legal Delays and Adjournments: Court adjournments, delays in evidence submission, and difficulties in serving summons can extend the time required to obtain a divorce.
• Mediation Attempts: If the court suggests mediation, the process can be delayed further if both parties are unwilling to reach a settlement.

Example

Example of a Contested Divorce Procedure

Ravi and Priya have been married for 10 years. Over time, Ravi became abusive and mentally cruel toward Priya. Priya files a contested divorce petition on the grounds of cruelty. Ravi does not agree to the divorce and files a counter-petition, stating that Priya is exaggerating and that their marriage can be salvaged.

• Filing the Petition: Priya files the divorce petition in the family court, listing cruelty as the ground for divorce.
• Summons and Response: Ravi is served a summons, and he files a counter-petition.
• Court Hearings: Multiple hearings take place where both parties present their evidence and testimonies. Ravi denies the allegations, but Priya presents medical reports and witness testimonies about the abuse.
• Mediation: The court refers the couple for mediation, but they are unable to reconcile.
• Final Hearing and Judgment: After months of hearings, the court grants Priya the divorce decree, acknowledging that Ravi’s behavior constituted cruelty.

Total time taken: The case takes around 2 to 3 years, with multiple hearings and a lengthy process.

Conclusion

The procedure for a contested divorce in India can be long and complex, often taking 2 to 5 years depending on factors such as the complexity of the case, the court's backlog, and whether the respondent contests the divorce. The process involves several stages, including filing a petition, hearings, mediation, presenting evidence, and finally obtaining a divorce decree.