Contested Divorce Procedure in India: Step-by-Step Guide

From the very terminology, Contested Divorce is a form of divorce where one party to the marriage opts for divorce and the other does not opt for divorce. Contrary to the mutual consent divorce where the voluntary mutual consent of both the parties are essential for the filing of the divorce petition, Contested Divorce happens where one party intends to opt out of marriage. 

This type of divorce opens the road to strenuous court proceedings and enunciates the array of legal disputes over maintenance, child custody and division of assets. Since there is disagreement over the very basic aspect of filing for divorce, the party claiming for divorce must fulfil any one of the legal grounds that are enunciated under the specific legislation. For any kind of assistance in filing for divorce, you can always consult Prime Legal’s Divorce Lawyers in India

What Is a Contested Divorce?

Divorce is a legal procedure by which a marriage is held as void. A contested divorce is a type of divorce where one party intends to file for divorce however the other party does not intend to end the marriage. 

By reason of this disagreement, this sets forth a complicated and time consuming legal proceedings where the court looks into the need for the grant of divorce and the party claiming for divorce must satisfy the court that any of the legal grounds necessary for divorce exists in that case. 

Contested divorce is dealt under the personal laws of India which includes the Hindu marriage Act, 1955, Special Marriage Act, 1954, the Indian Christian Marriage Act, 1872 and the Indian Divorce Act, 1869. 

Unlike the mutual divorce which is a much easier and faster process of receiving a divorce as it is based upon the mutual consent of both the parties, this mutual consent does not exist here and it prolongs the process of reaching a settlement. For having a better understanding on the difference between the mutual and contested divorce, do visit our guide on Mutual Divorce vs Contested Divorce: Key Differences Explained 

Legal Grounds for Filing a Contested Divorce

Though Contested Divorce is governed by the specific personal laws of the concerned parties, the legal grounds filing a divorce are the same irrespective of the varying personal laws. 

1. Adultery: When one spouse is involved in an extramarital affair while the marriage continues, then the other spouse can file a petition for divorce with the legal ground as adultery.
2. Cruelty: In simple words, cruelty is the infliction of physical or mental suffering by one spouse upon the other. It is one of the most important and commonly used grounds for filing divorce petitions.
3. Desertion: If either party has deserted the other for a period of two or more years then the other party can file for divorce on the ground of desertion.
4. Impotency of husband: Another one ground for divorce is the impotency of the husband in which case the wife could file for divorce.
5. Insanity/ Mental Illness: The mental illness or insanity has deprived the party from taking sane decisions and has affected the marriage as such in which case, the other party can file for divorce.
6. Conversion of religion: If either spouse converts to a religion other than the one to which they belong at the time of marriage, then the other party can file for divorce.
7. The marriage is not consummated: In case if the marriage is not consummated and either party is unwilling to consummate the marriage then in this case the other party can file for a divorce.

To have a better understanding on types and grounds of marriage, do visit our guide on Types & Grounds for Divorce in India

Step-by-Step Contested Divorce Procedure in India

Step 1: Consultation with a Divorce Lawyer

The first and foremost step in the array of proceedings is to consult a divorce lawyer for evaluating the case. It is the lawyer who brings out the particular legal ground in each case and identifies the applicable personal law and also it is important to note that it is the lawyer who assesses the evidence brought forth to calibrate with the case. 

Step 2: Filing the Divorce Petition

Upon the framing of the case by the lawyer, then the petition for divorce is filed before the Family Court under the particular personal laws which apply to the parties. The petition of divorce would elucidate the brief facts of the case, the details of the parties, the relevant law applicable, legal ground upon which the divorce is prayed and any other supporting evidence to corroborate the case.    

Step 3: Court Issues Notice to the Opposite Party

Upon the filing of the divorce petition, the court will look into the case and will issue summons to the other party which is a way of intimidating the other party of the divorce petition filed and gives an opportunity to the other party to present his/her side of the story. The court gives time for the other party to be present in the court and to give a reply. 

Step 4: Written Statement and Counter-Claims

Upon intimation of the divorce petition, the opposite party files a written statement which is the statement that opposes each and every line of the divorce petition and further files for counter claims that is puts forth counter claims in the claims made by petitioner.  

Step 5: Interim Applications (Maintenance & Custody)

Further in case if the parties have children, then Interlocutory Applications (IA) will be filed by both the parties for the grant of interim custody of the children and also IAs will be filed for grant of maintenance of children from the father.Upon analysing the specific facts of the case, the court will grant temporary custody rights and visitation rights to the parties. 

To know more about the custody of children, do visit our guide on How Is Child Custody Decided After Divorce in India?   

Step 6: Evidence and Examination of Witnesses

Upon the filing of the petition and the written statement, then the submission of the evidence is made by the parties. All the necessary documents are submitted by the parties which corroborates their case are reviewed by the court. Further the examination and cross examination of the parties are conducted

Step 7: Final Arguments

Upon the completion of the cross examination, the parties are presented with the opportunity to finally present their case, where they do not adduce any new evidence but just gives a glimpse of their case in a summary  

Step 8: Judgment and Decree of Divorce

Upon reviewing the case, facts of the case, evidence adduced and arguments advanced, the court will pass a judgement that either grants decree of divorce or rejects it.

Documents Required for Contested Divorce

1. Marriage certificate : The first and foremost document submitted for divorce is a marriage certificate that is a proof of marriage. 
2. Address proof: The parties must submit documents that are proof of address and this includes the Aadhaar card, Pan Card etc. 
3. Income proof: Further the parties must also submit their income certificate as well.  
4. Evidence supporting divorce grounds: any kind of evidence that supports the particular legal ground must also be submitted for aiding that side of the story.
5. Children’s documents (if applicable): In the case if the parties have children then their birth certificates should also be submitted to the court.

How Long Does a Contested Divorce Take in India?

Contest Divorce is a time consuming process and will ordinarily take around 1 to 3 years or even more for attaining a finality. There are several factors that cause the delay including the pendency of a huge number of cases in the family courts and also the parties’ non appearance before the court will further delay the process.

Cost of Filing a Contested Divorce

The cost of filing a contested divorce is much higher than the mutual consent divorce and it is not a fixed rate. It is a combination of several fees including the court fees, lawyer fees, other miscellaneous fees etc.

1. Court Fees: This includes the fees for filing the petition which may vary from Rs  50 to Rs 500 depending upon the state laws and personal laws.
2. Lawyers Fees: This may vary largely from one lawyer to another.
3. Miscellaneous Fees: This includes the stamp duty, notary fees etc.   

Rights of Women in Contested Divorce Cases

1. Maintenance rights: During the ongoing of the divorce proceedings the wife can file for an interim maintenance amount and after the grant of divorce, she has the right to maintenance from her husband.   
2. Custody Preference: The custody of minor children are given to the mother in most of the cases unless it is contrary to the child’s welfare in which case the custody rights will be given to the father.
3. Protection under Domestic Violence Act:  Further in case the provisions of Domestic Violence Act apply, then the wife can also claim for protection as well.

For a better understanding on the legal rights of women during and after divorce , do visit our guide on Legal Rights of Women During and After Divorce in India.

Can a Contested Divorce Be Converted Into Mutual Divorce?

In some cases, if the party disagreeing to divorce at a later point of time consents for divorce , then the contested divorce can be converted into mutual divorce. This may simplify the procedure and they could arrive at a middle ground at a much faster phase. 

However, it is important to note that such a conversion requires the permission of the court along with a whole new documentation because the applicable laws changes in this conversion.   

Common Mistakes to Avoid in Contested Divorce

1. Inadequate evidence: It is hard to prove the case in case of there is inadequate evidence
2. Ignoring interim orders: The parties should adhere to the interim orders that are passed including the custody rights, maintenance etc.
3. Emotional Decision without legal advice: The case should be built on the strong legal advice that decides the applicable legal grounds and personal laws and not the emotion of the parties.

Conclusion

The process of filing for Contested Divorce starts with the legal advice and proceeds with further to the filing of the petition followed by the written statement, submission of evidence, chief and cross examination, final arguments and then the judgement is passed by the court as to the grant of decree of divorce.

It is always important to get the right and adequate legal representation in divorce matters and you can always contact Prime Legal for Expert Divorce lawyers in Bangalore