Procedure to file contested divorce

What is Contested Divorce?

Contested Divorce is a process a matrimonial suit is filed by one spouse who wants divorce while the other is unwilling to give divorce or opposes it.  This is sometimes a lengthy process that might take two to three years or more. In that situation, a writ for expeditious hearing is maintainable before the High Court for a direction upon the trial court to dispose of the case within a time limit without giving an adjournment to either party.

If a divorce case is filed by your spouse in a district or state away from your place of residence then you need to approach the High Court to transfer the divorce suit from one district to another or to the Supreme Court of India to transfer the divorce suit from one state to another. However, such transfers are allowed in exceptional cases and also depending upon the facts of the case and the discretion of the Court.

What are the provisions in law for Contested Divorce?

• Section 27 of the Special Marriage Act,1954;
• Section 10 of the Indian Divorce Act-1869;
• Section 13 of the Hindu Marriage Act,1955; 
• Section 2 of the Dissolution of Muslim Marriage Act,1939.

Condition for presenting a petition for dissolving the marriage by a decree of divorce:

• no petitioner for divorce to be presented within one year of marriage
• where a spouse is unable to live with another on any of the grounds stated in the Act
• where a spouse wants to end the marriage and the other is not willing to give divorce on mutual consent
• where a spouse is living separately for a period of one year or upward and is not willing to resume his/her marital duties
• where there is no chance of reconciliation 

Court to which the petition shall be presented to the District/Family Court within whose jurisdiction:

• the marriage was solemnized
• husband and wife last resided together.
• the husband is residing after separation.
• the wife is residing after separation.

Documents required by the spouse filing for Contested Divorce under the Act:

• Marriage Certificate in case the marriage is registered otherwise marriage photo, wedding cards, etc. 
• Aadhaar Card or Voter’s ID Card 
• Passport size photograph 
• Documentary evidence related to the grounds of divorce

Procedure to file a contested divorce suit: 

1. Appointing a good divorce advocate
2. Legal notice for dissolving the marriage depending from case to case
3. Filing a divorce petition 
4. Issue of summons upon the other party
5. Mediation if it appears to the Court that it is a fit case to refer the case for mediation
6. Filing of written statement by the other party
7. Framing of issues
8. Evidence and witness
9. Trial – examination, and cross-examination of both the parties
10. Final arguments by the advocates of both parties
11. Judgement
12. Once a final judgement about the divorce is granted or not granted, it is most likely the aggrieved party may prefer an appeal within three months before the High Court. 

Restitution of Conjugal Rights:

When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights, and the court, on being satisfied with the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.

Judicial separation:

(1) Either party to a marriage, may present a petition praying for a decree for judicial separation on any of the grounds specified in the Act thereof, as grounds on which a petition for divorce might have been presented.

(2) Where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the court may, on the application by petition of either party and on being satisfied with the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so.

Voidable Marriage:

Any marriage shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:

• On any of the grounds stated in the Act
• Within one year from the date of marriage 
• the petitioner was at the time of the marriage ignorant of the facts alleged;