Contested Divorce

Meaning of Divorce
Putting an end to the marriage by dissolution of marital relations. The parties can no longer be husband and wife. This was a new remedy introduced by the Hindu Marriage Act, 1955. The different grounds for divorce/ conditions for obtaining divorce are laid down in Section 13 of the Act.
Contested Divorce
A contested divorce is one where both parties do not come to settle on the same issue unanimously. There has to be an underlying dispute in the marriage, at the heart of such divorce cases (cruelty/adultery/desertion etc., known as matrimonial offences or crimes relating to marriage). The parties are also generally unable to agree on divorce-related issues as well i.e. one wants to break away while the other does not agree with the same, and hence the court has to step into the personal affairs of the family to either try and resort to an amicable happy ending or examine both sides and final rule that there can be no reconciliation and grant divorce.
Grounds for contested divorce
A contested divorce is provided in Section 13 of the Hindu Marriage Act, 1955. There are some grounds given in Section 13 on which any spouses can come to the court for getting a divorce decree. Any spouse cannot come to court for divorce decree by citing any reason which they think are good enough to legally separate them from their partner.
If a person wishes to divorce his/her spouse, his/her case needs to fall under one of the below-mentioned grounds, else there is all likelihood that the case would be dismissed by the Court.

Grounds available to Hindu wife for dissolution of marriage
The 9 major grounds under which a Contested Divorce is usually filed are:
1. If a spouse, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or
2. If a spouse, after the solemnization of the marriage, treated his/her spouse with cruelty;
3. If a spouse, deserted his/her spouse for a continuous period of not less than 2 years;
4. If a spouse has ceased to be a Hindu by conversion to another religion;
5. If a spouse, has been incurable of unsound mind or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the other spouse cannot reasonably be expected to live with that spouse;
6. If a spouse, has been suffering from venereal disease in a communicable form;
7. If a spouse, has renounced the world by entering any religious order;
8. If a spouse, has not been heard of as being alive for a period of 7 years or more by those persons who would naturally have heard of him/her, had he/she been alive.

Exclusion of leprosy as ground of divorce
The President of India gave its assent to the Personal laws (amendment) bill, 2019 on 21st February 2019 which became an act. The act seeks to exclude leprosy as the ground of divorce covering all religions in our nation to eliminate the discrimination experienced by the patients in India.

The Act, passing of which would necessitate an amendment in five marriage associated legislation which is Dissolution of Muslim Marriages Act (1939), Divorce Act (1869), Special Marriages Act (1954), Hindu Adoptions and Maintenance Act (1956) and Hindu Marriage Act (1955). This is certainly an effective step taken by the government which eliminates injustice that is based on the spreading of wrong information as well as on the stigma of the disease.

Before the passing of the concerned statute, the statement of objects and reasons in the bill stated that the patients of leprosy were isolated as there was a disbelief that this disease can’t be cured however with modernized remedy have eliminated this disbelief. Slowly the mindset of the society has begun to transform. Currently, leprosy is absolutely curable and can be medicated through multidrug medicine.

CRUELTY

One of the grounds on which matrimonial relief in divorce can be claimed is cruelty.
The usual ground of cruelty is violent behavior. Thus, a husband who beats his wife is guilty of cruelty. However, there can be cruelty in the absence of physical violence or causing of bodily hurt or danger to the body of the complainant. Mental cruelty is also recognized in law as cruelty. This was clarified in Collins v. Collins.

The term cruelty has an inseparable nexus to human behavior or conduct. It is always dependent on social strata or milieu to which the parties belong, their ways of life, relationships, temperaments and emotions that have been conditioned by their social status. A set of facts amounting to cruelty may not be so in another case.

A. Bhagwat v. Bhagwat
The husband who was not mentally sound tried to strangulate his wife`s brother and his own child. It was contended that it was not cruelty as force was not directed towards the wife. The contention was rejected and his conduct was held to constitute mental cruelty with reference to his wife.
B. Siddagangiah v. Lakshamma
An accusation of adultery amounts to cruelty if such accusations are unfounded since continuance in a matrimonial home would be agonizing for the wife, this is legal cruelty.
C. Sreepadachar v. Vasantha Bai
Wife was abusing, insulting and threatening the husband in public. This was legal cruelty by wife to husband.
D. Rajinder Singh v. Tarawati
Failing to see the husband in hospital where he was undergoing treatment for several months after his Jeep met with serious accident is cruelty on the part of the wife.
E. Vishwanath Sitaram Agarwal v. Sarla Vishwanath Agarwal
A decree of divorce can be granted to wife where her in-laws and the husband demands dowry and creates the apprehension in the mind of the wife that the consumption of Harpic, would affect her mind and body. This would amount to mental cruelty.
In Dastane v. Dastane five tests were laid down in determining whether a conduct amounts to legal cruelty:
a. The alleged acts constituting cruelty is proved by the law of evidence.
b. There should be an apprehension in the petitioner’s mind of real harm or injury from such injury.
c. The apprehension should be reasonable having regard to socio economic and psycho physical condition of parties.
d. The petitioner should not have taken advantage of his position
e. The petitioner could not have condoned the act of cruelty by his or her conduct.
Hon’ble Supreme Court of India in the case of Samar Ghosh versus Jaya Ghosh has explained mental cruelty by laying down situations and circumstances. It is only illustrative and not exhaustive: –

1. On consideration of the complete matrimonial life of the parties, acute mental pain, agony, and suffering as would not make it possible for the parties to live with each other could come within the broad parameters of mental cruelty.
2. On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that the situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.
3. Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable.
4. Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of another for a long time may lead to mental cruelty.
5. A sustained course of abusive and humiliating treatment calculated to torture, discommode, or render the miserable life of the spouse.
6. Sustained unjustifiable conduct and behavior of one spouse actually affecting the physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial, and weighty.
7. Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.
8. The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction, and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty.
9. Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day-to-day life would not be adequate for grant of divorce on the ground of mental cruelty.
10. The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill-conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behavior of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.
11. If a husband submits himself for an operation of sterilization without medical reasons and without the consent or knowledge of his wife and similarly if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty.
12. Unilateral decision of refusal to have intercourse for a considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.
13. The unilateral decision of either husband or wife after marriage not to have a child from the marriage may amount to cruelty.
14. Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such situations, it may lead to mental cruelty.
Cruelty to husband
1. Satya v. Suri Ram
Wife willfully undergoing abortion against the wishes of the husband and other family members is guilty of cruelty to husband.
2. Calling husband an impotent person in the presence of relatives and friends. (Harbhajan Singh v. Amarjeet Kaur)
3. Threatening to commit suicide and to involve husband and his family in criminal case. (Harbhajan Singh v. Amarjeet Kaur)
4. Wife filing false reports of non-bailable offences against husband. (Kalpana v. Surendranath)

DIVORCE ON THE GROUND OF DESERTION:
In order to take desertion as ground for divorce, following two conditions are required to filled: –
a) Separation of a minimum of two years at the time of filing the case
b) Separation is caused by the other spouse. Separation should not be at the instance of the spouse filing the Petition.
Desertion is another popular ground for divorce recognized by all the divorce laws in the country. It essentially means the abandonment or forsaking of one spouse without any reasonable cause or against the wishes of the other spouse. Desertion involves two elements i) factum of separation ii) Animus deserendi. Moreover, Section 13(1)(ib) of the Hindu Marriage Act, 1955 enumerated that such desertion must be without any reasonable cause or without the consent of the spouse filing for divorce and the period must be for a continuous period of 2 years. While dealing with these elements, in the case of A.V. Subba Rao v. A. Surya Kumari wherein, the wife and husband came into agreed terms for living separately which involved remittance of Rs. 150 as maintenance, the court held that one of the spouses cannot file for divorce on the ground of desertion as there is consent involved in the separation. Moreover, there can be actual desertion where the spouse physically deserts the other without any information regarding them as well as constructive desertion where the spouse refrains from adhering to the marital obligations even though they are physically under the same roof. While dealing with the concept of constructive desertion, the Calcutta High Court in the case of Jyotish Chandra v. Meera liberally interpreted that if the petitioner is able to prove that there is nothing left in the relationship with the other spouse except living in the same house or being physically present, the divorce can be granted. The explanation of the aforementioned provision in Hindu law also includes ‘wilful neglect’ which is intended to broaden the horizon of this ground. The term ‘wilful neglect’ was interpreted in the case of Lachman Uttamchand Kriplani v. Meena as the conscious reprehensible acting of a spouse in discharging the marital duties or the abstention of such obligations.
DIVORCE ON THE GROUND OF ADULTERY:
Adultery implies that the spouse has indulged in a relationship outside marriage. The spouse establishes a physical relationship with a third person. Offending spouse indulges in sexual intercourse. Proving sexual intercourse is not easy. As such, it is always recommended that petition for divorce on the ground of adultery should have cruelty as another ground. Sometime technical reasons may lead to failure to strictly prove the ground of adultery. In such a case, even if your facts are correct and truthful and supported with some evidence indicating involvement in a marital relationship outside marriage, Court may call such action on the part of spouse causing cruelty to you.
Adultery: If one of the spouses has voluntary sexual intercourse with any other married or unmarried person, such an act becomes a ground for giving divorce. This right lies with the loyal spouse and he/she can file for divorce only at his/her discretion. This is recognized as a ground for divorce In all the laws governing marriages and divorce in different religions. The alleged infidelity need not be in effect when the divorce was filed by one spouse. The essential principle to contest divorce on this ground is that such allegations must be proved by the spouse alleging the affair. In the case of Rajee v. Baburao, the Madras High Court while analyzing the allegations of adultery made upon the wife and evidence produced by the husband, it was held that the burden of proof will be upon the person who is alleging the adultery. Further, it was held that the degree of proof produced need not be of absolute certainty but must contain a high degree of probability. As the allegations were serious in nature, mere blathers or surmises were not accepted and divorce was not granted. In another significant case, Imrata Devi v. Deep Chand & Anr, the husband didn’t have access to his wife for 325 days but still, she conceived twins. Herein, the husband contested divorce based on the ground of adultery and he proved that they haven’t consummated even prior to 325 days and the delivery of children was not late. Accepting the averments and evidence, the Rajasthan High Court granted the divorce.
CONVERSION
Conversion: Conversion of one spouse to another religion is a good ground for divorce. In the Hindu Marriage Act, 1955, Section 13(1)(ii) governs the conversion as a divorce ground in Hindus. When construing this ground, it must be done in such a manner that consent for such conversion cannot become a defence in granting a divorce. With respect to this, in the case of Suresh Babu v. V.P. Leela, the court observed that the consent of one spouse for the conversion of another spouse will not take away the right of the consented spouse to file for divorce on the ground of conversion. Moreover, one cannot utilize the ground of conversion as a divorce mechanism if he/she is the one who converted to another religion. In the case of Md. Zulfiqar Ali v. Anuradha Reddy, the husband filed the divorce petition contending that he has converted to Islam from Hinduism and hence, ceased to be the husband of his Hindu wife. Rejecting the petition, the Court held that the husband cannot file for divorce on the ground of conversion as this right does not subsist with the converted person.
Communicable Venereal Diseases:
Venereal diseases are those diseases that can be contracted through sexual intercourse between two people where one is already infected by such disease. Even this ground is recognized as a ground for divorce. In the Hindu Marriage Act, 1955, Section 13(1)(V) of the Act deals with this ground and prior to 1976, it laid down the time period of three years for such disease to subsist immediately before filing the petition. But, the legislature felt that the imposition of the time period will only violate the rights of another spouse in a way that they might also fall prey to the communicable disease. Hence, the amendment in 1976 brought in a new approach towards this ground of divorce. This ground acts as a standard reason for getting a divorce. But as the aim of this ground is to prevent the other spouse from getting infected by such disease, it also acts as a deterrent even before entering the marriage. The right of a person to marry who is infected can be suspended. In the case of Mr X v. Hospital Z, the court upheld that such suspension can be continued till the venereal disease is cured and also held that the right to marry cannot be enforced by the court when such a person is infected with such disease.
Grave Mental Disorder:
Mental Disorder is a ground for divorce as per all the aforementioned Acts. But such disorder or unsoundness must be serious and incurable in nature. In the earlier stages, the decision of the courts based on this ground found their root in the discretion of judges case by case, but later on, the decisions of the English Courts laid down proper tests for analyzing the effect of this ground. In the Indian context, ‘mental disorder’ was interpreted in the case of Bani Devi v. A.K. Benerjee has the incapacity of a person to manage himself or his state of affairs, any marital or other obligations. Moreover, to utilize this ground, the spouse must essentially prove that it is not at all possible to live with such a mentally disabled spouse. With regards to Schizophrenia as a mental disorder, the court held in the case of Joginder Kaur v. Surjit Singh that Schizophrenia must be in such a manner that the petitioner cannot reasonably live together with such a spouse to get the divorce. As in the instant case, the patient spouse was recovering slowly and is not suffering from a continuous mental disorder, the court did not grant a divorce to the husband.
Other Grounds:
Along with the grounds enumerated till now, there are certain other grounds for divorce. These grounds are impotency, husband’s imprisonment, failure to provide maintenance, etc. Though all these factors are not recognized by all the Acts as standard grounds for divorce, they are given due importance based on the evolution of their religious laws into these Acts. Though the approach of the parties is different based on the grounds, the primary idea to include them is to provide the individual justice to the person who is suffering from the conduct and the availing situation of the other spouse. Impotency is provided as a ground for divorce in Hindu, Muslim, Christian laws and is left out in the Parsi and inter-religious laws.
Difference between mutual divorce and contested divorce
As divorce is a rescue mechanism from a non-functional marital relationship, it can be both agreeable and non-agreeable in nature. The non-agreeable divorce is called a contested divorce as the parties to a marriage try to prove their contentions with regards to divorce. It can either be supporting, opposing divorce at all, or can be supporting, opposing the issues involved in divorce like child custody, property division, maintenance, etc. On the other hand, an agreeable divorce is known as a mutual divorce where both the husband and wife decide that their marital relationship is non-functional hence resolve to give-up their relationship. It is also known as an uncontested divorce where both spouses agree upon certain terms regarding all issues and formalities involved in a divorce. In a mutual divorce, both the husband and wife file a joint petition for divorce whereas in a contested divorce, one of the spouses files a one-sided divorce petition in the court and another party files counter-petition. The parties can start a divorce petition in the form of a contested divorce, but due to certain factors, can also file for a mutual divorce by satisfying the requisites of mutual divorce. The below-given provisions regarding mutual divorce will make a clear distinction between a contested divorce and mutual divorce.

In the Hindu Marriage Act, 1955, a mutual divorce is driven by Section 13B of the Act which was added by the amendment in 1976. As per this provision, both parties are required to file a petition in the court by satisfying a prerequisite that they lived separately for a minimum of one year period immediately before filing the petition. Later, they have to file a motion regarding divorce after six months but before eighteen months of filing the petition so that the court will make required inquiries and grant the divorce. If a petition is genuinely presented by the parties where the spouses tried to live together but failed, the court will be duty-bound to grant divorce rather than at its discretion.

There are certain elements which are needed to be satisfied in order to get a divorce by mutual consent. The first element is that the petition must be filed by both the parties. In these petitions, the component of ‘consent’ is of utmost importance. As they file separate petitions, it will be quite clear that the consent is given in their individual roles. Moreover, the consent thus given can be revoked during the time period given for filing motion. This is based on a discerned observation that one or both the parties to the divorce petition might revise their perspective on their marital relationship. Regarding this, in the case of Sureshta Devi v. Om Prakash, it was held that the consent can be taken back by one or both the spouses filing for divorce as it cannot be considered as irrevocable. The second element to get a divorce is that they must live separately for one year or more immediately before filing a petition.

Here, separate doesn’t necessarily mean that they live in distant places but the significance must be given to the idea of not living together in their respective roles i.e husband and wife even if they are living under the same roof. This notion was upheld in multiple cases including Kiritbhai v. Prafulaben where the lower court disallowed divorce petition as they are living in one place but the High Court quashed the lower court’s view and granted divorce as they have consensually given up on their respective marital roles. The other element is to prove that they are not able to live together even after sincere efforts put forth by both parties. With regards to the interpretation of living separately and not being able to live together, the Bombay High Court in the case of Leela Joshi v. Mahadeo held that they have to be read in conjunction and courts must look into the fact as to whether cohabitation has come to end or not.

Different stages of a contested divorce
The procedure is regulated for filing a divorce is generally regulated by the provision of Code of Civil Procedure, 1908.
Meeting With an Attorney
This is an important part as it decides the course of action in your case. A prior assessment is required to choose your attorney which can be done either by asking someone who has acquaintance with the law or advocates to refer an attorney who specializes in family law or can be done by directly attending court proceedings and assessing the advocates arguing in the matters of divorce. In both scenarios, the rudimentary factor which is to be considered by the party while choosing their advocate is whether the advocate has daily court presence or not. If the advocate is not present in the court because of his intermittent practice, choosing such an advocate does not yield desired results.

Either spouse File a petition for divorce
As the spouse who is seeking divorce approaches his/her advocate, all the required documents and information shall be duly provided. After assessing all the information, an advocate will draft a divorce petition and file it in the court of law. The family court establishments have the primary jurisdiction in the matters of divorce. The filing of a petition is followed by the serving of notices to the other spouse either by the party himself/herself or by the court upon payment of charges.

Appearance and Reconciliation
After the notices are served, the parties appear in the court of law. If the court is of the view that there is a chance of conciliation between the parties, it forwards the issue to the Legal Services Authority where the conciliators are present. They look into the possibility of settlement and function in that way. If it is settled, the petition is withdrawn from the court or else the stages below will be followed.

Reply/counter reply from the respondent spouse
This is the stage where the respondent files a counter. As he/she is not in the favor of divorce being granted, they have to deny every allegation made in the petition. The denial herein must be specific in nature and cannot be an overall denial of allegations. If every allegation with respect to the fact is not denied specifically, it will be deemed as admitting such allegations. Hence, the respondent must take enough care to look at all the denials made in the counter or must take the help of others to scrutinize the reply.

Discovery
In this stage, as the documents and required information is produced in the court, it will be duly provided to the other parties as well upon the inquiry. It helps the parties to sharpen their sides by assessing the other party’s stand and the evidence regarding the issues involved in the divorce.

Settlement
After assessing the documents and information, the court settles the points for consideration which are to be decided. Order XIV of Civil Procedure Code deals with settlement of points of consideration. These points will generally reflect the unresolved conflicts between the parties regarding divorce or granting divorce as a whole. At this stage, the court might also refer it to the third-party negotiation.

Trial
In this stage, the courts determine certain dates for hearing and examining the witnesses. Prior to this, summons is served upon witnesses to attend the court proceedings on defined dates. This stage also includes the cross-examination, final hearing, etc

Orders/Decree
After duly concluding upon all the issues based on the arguments and evidence provided, the court pronounces the orders or issues a decree granting or denying the divorce.

Appeal
The decree thus given can be first appealed to the High Court with jurisdiction over such family court and then to the Supreme Court. It is generally appealable under Section 28 of the Hindu Marriage Act, 1955, or Section 39 of the Special Marriage Act, 1954. The time period for an appeal varies and in Hindus, it stands between 30 days to 90 days.
Contents of petition:
The petition must state the following:

Name of the parties
Status and domicile of the parties
Date and place of marriage
Principal permanent place where the parties cohabit
Place where the parties last resided together
Names of the children of the marriage( if any) with date of birth
Ground of seeking divorce or separation

Also, the petition should include the following details,

The facts and details on the basis of which the relief is sought by the petitioner
That the parties are not deceiving the court by collaborating
The averments made are verified.
Documents required
Income tax statement for past 3 years
Details of profession and present remuneration
Personal information
Asset ownership details.
Jurisdiction
The Hindu Marriage Act 1955
This jurisdiction applies to a marriage solemnized under this Act only. Section 19 of the Act provides for the Court to which petition under this Act shall be presented. Every petition under the Act shall be filed with the District Court( family courts) within the local limits of whose ordinary civil jurisdiction:

The Marriage was solemnized, or
The respondent at the time of the presentation of the petition resides, or
The parties to the marriage last resided together, or
In case wife is the petitioner, where she is residing on the date of presentation of the suit, or
The petitioner is residing, in case respondent is out of the territory of which the Act applies or has not been heard for 7 years.