CONTESTED DIVORCE

CONTESTED DIVORCE

In case of a contested divorce, there are specific grounds on which the petition can be made. It isn’t as if a husband or wife can simply ask for a divorce without stating a reason. The reasons for divorce are as follows, though some are not applicable to all religions.

Cruelty

Cruelty may be physical or mental cruelty. According to the Hindu Divorce Laws in India, if one spouse has a reasonable apprehension in the mind that the other spouse’s conduct is likely to be injurious or harmful, then there is sufficient ground for obtaining divorce due to cruelty by the spouse.

Adultery

In India, a man that commits adultery (i.e. has consensual sexual intercourse outside of marriage) can be charged with a criminal offence. The wife may, of course, file for divorce as a civil remedy. If, on the other hand, a wife commits adultery, she cannot be charged with a criminal offence, though the husband can seek prosecution of the adulterer male for adultery.

Desertion

One spouse deserting the other without reasonable cause (cruelty, for example) is reason for divorce. However, the spouse who abandons the other should intend to desert and there should be proof of it. As per Hindu laws, the desertion should have lasted at least two continuous years. Christians, however, will not be able to file a divorce petition solely for this reason.

Conversion

Divorce can be sought by a spouse if the other spouse converts to another religion, this reason does not require any time to have passed before divorce can be filed.

Mental Disorder

If the spouse is incapable of performing the normal duties required in a marriage on account of mental illness, divorce can be sought. If the mental illness is to such an extent that the normal duties of married life cannot be performed

Communicable Disease

If the spouse suffers from a communicable disease, such as HIV/AIDS, gonorrhea or a virulent and incurable form of leprosy, the Hindu Divorce Laws in India say that the other party can obtain a divorce.

Renunciation of the World

If the spouse renounces his/her married life and opts for sanyasa, the aggrieved spouse may obtain a divorce.

Presumption of Death

If the spouse has not been heard of as being alive for a period of at least seven years, by such individuals who would have heard about such spouse, if he or she were alive, then the spouse who is alive can obtain a judicial decree of divorce.

A few common questions about divorce without mutual consent have been answered:

What are the various steps involved in seeking a contested divorce?

With a contested divorce, spouses will have to go through numerous steps before the divorce is finalized, including:

  • prepare, file and serve (deliver) the divorce petition (legal paperwork asking for the divorce and stating the grounds for the breakdown of the marriage)
  • respond to the petition
  • interview and hire an attorney
  • engage in “divorce discovery” – the information gathering process, which involves various legal procedures to get information from your spouse and third-party witnesses (e.g., written questions, subpoenas, and depositions)
  • pre-trial legal motions and hearings
  • settlement proposals and negotiations between attorneys
  • if settlement fails, prepare for trial
  • complete a court trial
  • Appeal, if you dispute the trial judge’s decision(s).

During the settlement phase, spouses are often unable to resolve issues. Although the divorce judge may encourage spouses to work things out, when that doesn’t happen the next step is divorce court.

During trial, both spouses present witnesses, and their lawyers cross-examine the witnesses and present closing arguments. After trial is over, the court will issue a final order memorializing all of the judge’s decisions, and finalize the divorce.

What are the various documents required to file petition for a contested divorce?

  1. Address proof of husband
  2. Address proof of wife
  3. Marriage certificate
  4. Four passport size photographs of marriage of husband and wife
  5. Evidence proving spouses are living separately since more than a year
  6. Evidence relating to the failed attempts of reconciliation
  7. Income tax statements for the last 2-3 years
  8. Details of profession and present remuneration
  9. Information relating to family background

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