Contested Divorce in India: Meaning, Grounds, Documents & How to File

A contested divorce is a divorce that is filed by one spouse which is contested/ objected to, by the other spouse. The objection could be the due to the unwillingness of the other spouse to end the marriage, or when both spouses want a divorce but cannot agree on terms of divorce and issues such as alimony, child custody, or division of property. In such cases, a contested divorce is filed and decided by a family court after both sides present evidence and arguments. This guide walks you through what contested divorce means, the legal provisions that govern it in India, the valid grounds you can rely on, the documents required, and the complete step-by-step filing process.

WHAT DOES CONTESTED DIVORCE MEAN?

A contested divorce means that one spouse files a divorce petition while the other spouse either refuses to agree to the divorce or disputes the terms on which it should be granted. The family court then hears both sides, examines evidence, and passes a final judgment.

A contested divorce is different from a mutual consent divorce, where both spouses mutually agree for divorce and file a joint petition before the court. In a contested divorce, the petitioner must prove one or more legal grounds recognized under the applicable law and hence is generally more elaborate, time-taking and emotionally draining than a mutual consent divorce.

WHAT IS THE STATUTE FOR CONTESTED DIVORCE IN INDIA?

For Hindus, Buddhists, Sikhs, and Jains, a contested divorce is filed under Section 13 of the Hindu Marriage Act, 1955 which elaborates the grounds on which the divorce can be contested. For other communities and religions OR civil marriages, the process may differ slightly in line with their personal laws.

WHAT ARE THE VALID GROUNDS FOR FILING A CONTESTED DIVORCE?

The legal framework in India allows a contested divorce only when the petitioner can prove specific grounds and allegations as defined by the relevant statute. The most commonly cited grounds are as below-

Cruelty

Cruelty refers to any form of cruelty inflicted upon one spouse by the other which can be physical, verbal, mental or financial, that makes it unsafe or unreasonable for them to continue the matrimonial ties.

Cruelty as a ground to seek divorce is subjective and hence the courts examine the facts and circumstances of each case, including the nature, frequency, and impact of the conduct on the petitioner. Evidence such as medical records, messages, witness statements, or police complaints can help establish this ground.

In Ravi Kumar v. Julmidevi, the Apex Court emphasized that cruelty cannot be precisely defined and must be judged according to the facts and circumstances of each case. It encompasses the absence of mutual respect and understanding, may manifest as violence, neglect, attitudes, gestures, words, or even silence, and the categories of cruelty are never closed. The nature of cruelty may be subtle or severe, and judicial assessment must consider the cumulative effect of conduct on the marital relationship. The relevant paragraphs of the said judgment are reproduced herein below:

“19. It may be true that there is no definition of cruelty under the said Act. Actually such a definition is not possible. In matrimonial relationship, cruelty would obviously mean absence of mutual respect and understanding between the spouses which embitters the relationship and often leads to various outbursts of behaviour which can be termed as cruelty. Sometimes cruelty in a matrimonial relationship may take the form of violence, sometimes it may take a different form. At times, it may be just an attitude or an approach. Silence in some situations may amount to cruelty.

20. Therefore, cruelty in matrimonial behaviour defies any definition and its categories can never be closed. Whether the husband is cruel to his wife or the wife is cruel to her husband has to be ascertained and judged by taking into account the entire facts and circumstances of the given case and not by any predetermined rigid formula. Cruelty in matrimonial cases can be of infinite variety it may be subtle or even brutal and may be by gestures and words.”

Desertion

Desertion is an act of voluntarily abandonment of the spouse and repudiation of marriage without reasonable cause and consent, for a continuous period of at least two years immediately before filing of the petition. Merely living separately due to work, health, or other reasons does not amount to desertion unless there is a clear intention to abandon the marriage.

Dealing with the concept of desertion, an extract from the Supreme Court in Savitri Pandey v. Prem Chandra Pandey [(2002) 2 SCC 73] is reproduced as below-

"8. 'Desertion', for the purpose of seeking divorce under the Act, means the intentional permanent forsaking and abandonment of one spouse by the other without the other's consent and without reasonable cause. In other words it is a total repudiation of the obligations of marriage. Desertion is not the withdrawal from a place but from a state of things. Desertion, therefore, means withdrawing from the matrimonial obligations i.e. not permitting or allowing and facilitating the cohabitation between the parties. The proof of desertion has to be considered by taking into consideration the concept of marriage which in law legalises the sexual relationship between man and woman in the society for the perpetuation of race, permitting lawful indulgence in passion to prevent licentiousness and for procreation of children. Desertion is not a single act complete in itself, it is a continuous course of conduct to be determined under the facts and circumstances of each case.”

Adultery

Adultery refers to an act of having voluntary sexual intercourse with another person by a spouse, during the subsistence of the marriage. Even though adultery is now not a punishable offence in India, it is still a valid ground for obtaining divorce under the Hindu Marriage Act, 1955. Because adultery is a private act, courts generally rely on circumstantial evidence, such as call records, travel records, hotel bookings, or witness testimony.

Mental Disorder

If a spouse is suffering from a venereal disease in a communicable form or from a mental disorder of a kind that makes it difficult or unreasonable to live with them can be a valid ground for divorce. The mental disorder can be in forms such as incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia.

IS “IRRETRIEVABLE BREAKDOWN OF MARRIAGE” A GROUND FOR DIVORCE IN INDIA ?

Irretrievable breakdown of marriage as such is not recognised as a ground for divorce under the statute. However, the Hon’ble Supreme Court has time and again rendered judgements dissolving the marriage on the ground of “irretrievable breakdown”, while exercising plenary powers vested in the Supreme Court in terms of Article 142 of the Constitution of India.

In Shilpa Sailesh v. Varun Sreenivasan (2023), one of the questions considered by the Supreme Court of India was whether this Court can grant divorce in exercise of power under Article 142 of the Constitution of India in case of complete and irretrievable breakdown of marriage. The answer to the aforesaid question was in positive. This Court considered that irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act, 1955 Act, however, the same does not debar this Court to exercise the power to dissolve a broken and shattered marriage in exercise of its power under Article 142 of the Constitution of India. It is in the interest of the society that the marriages, as far as possible, should be maintained. If there is failure in the efforts for reconciliation and it is found that marriage has been wrecked beyond the scope of salvage, it is in the interest of all concerned to recognize that fact and dissolve the marriage, otherwise the litigation, sufferings by all the parties and the miseries may continue. This Court held that such discretionary power can be exercised to do complete justice. Despite opposition by the parties, this Court can dissolve the marriage if there is no possibility of parties living together. Continuation of formal legal relationships in such circumstances would not be justified. The relevant paragraph of the said judgment is reproduced herein below-

“63. That the marriage has irretrievably broken down is to be factually determined and firmly established. For this, several factors are to be considered such as the period of time the parties had cohabited after marriage; when the parties had last cohabited; the nature of allegations made by the parties against each other and their family members; the orders passed in the legal proceedings from time to time, cumulative impact on the personal relationship; whether, and how many attempts were made to settle the disputes by intervention of the court or through mediation, and when the last attempt was made, etc. The period of separation should be sufficiently long, and anything above six years or more will be a relevant factor. But these facts have to be evaluated keeping in view the economic and social status of the parties, including their educational qualifications, whether the parties have any children, their age, educational qualification, and whether the other spouse and children are dependent, in which event how and in what manner the party seeking divorce intends to take care and provide for the spouse or the children. Question of custody and welfare of minor children, provision for fair and adequate alimony for the wife, and economic rights of the children and other pending matters, if any, are relevant considerations. We would not like to codify the factors so as to curtail exercise of jurisdiction under Article 142(1) of the Constitution of India, which is situation specific. Some of the factors mentioned can be taken as illustrative, and worthy of consideration.”

HOW DO YOU APPLY FOR A CONTESTED DIVORCE IN INDIA? (STAGES)

1. Drafting and Filing of the petition seeking divorce

In order to file for a contested divorce in India, the petitioner must file a divorce petition before the appropriate family court of competent jurisdiction, along with supporting documents and evidence of the ground being claimed as per law. A contested divorce petition can be filed before the family court –

a)      within whose jurisdiction the marriage was solemnized,

b)     where the couple last resided together, or

c)      where the wife is currently residing.

Once the petition is filed and the matter is taken up by the competent court, the court issues notice to the opposite party and time is granted to file a reply to the divorce petition.

2. Filing of Reply

After having received the notice and the divorce petition along with documents, the opposite party is at liberty to file a reply/written statement to the divorce petition rebutting the allegations alleged therein and stating his/her version of the facts.

3. Filing of Rejoinder

Once The petitioner a reply/written statement filed by the defendant, the Petitioner is then at liberty to controvert the case set up by the defendant in the Written Statements. The court may also refer the matter to mediation at various stages.

4.  Evidence

At this juncture of the proceedings, both the parties tender their evidence by filing an affidavit and stating specifically on which documents they want to reply upon to prove their case (exhibit). Both the parties are then cross-examined by the other side. The purpose of cross examination is to crucify the veracity of the allegations/contentions.

5. Final Arguments

THE court then proceeds to hear the final arguments of both the sides where the parties set out their case in entirety relying upon the facts, documents, statements given by the opposite parties during cross examination etc. The parties at this stage are also at liberty to file relevant judgements to support their case. Once the final arguments are concluded, the case is then put up for passing of order/judgement.

6. Judgement

The court after examining all the facts, issues involved, documents relied upon, examination of witnesses, passes a detailed/speaking judgement.

WHAT DOCUMENTS ARE REQUIRED?

The documents typically required for filing a contested divorce include:

●       Proof of marriage such as marriage photographs, wedding card etc.

●       Certificate of registration of marriage.

●       Address proof of both spouses.

●       Passport-size photographs of both spouses.

●       Income Affidavit and financial details of both the spouses.

●       Evidence with respect to the ground claimed for filing a contested divorce.

●       Details of children, if any, and the parent who has the present custody of child.

What Is the Difference Between Contested and Mutual Consent Divorce?

How Long Does a Contested Divorce Take in India?

A contested divorce in India generally takes between two to five years to conclude, depending on the intricacies of the case, pendency and backlog of the court, and the evidence involved.

Can a Contested Divorce Be Converted to Mutual Consent Divorce?

Yes, a contested divorce can be converted into a mutual consent divorce at any stage of the proceedings if both spouses reach to a settlement. This is the reason, the courts attempt mediation at multiple stages while proceedings are pending between the parties. If the parties are willing to settle the disputes through mediation or out of court settlement, it can significantly reduce the time, cost, and emotional strain involved in continuing to contest the matter.

In such a case, parties come to a consensus upon pending issues such as maintenance, custody, assets, stridhan, etc. and conclude all pending proceedings.