Blog Details

  A Legal Battle to End a Broken Union

Introduction:
Marriage is not just a ceremonial union of two individuals—it is a deeply rooted social, legal, and emotional bond that forms the foundation of family and society. Across cultures and religions, marriage is regarded as a sacred commitment involving mutual trust, respect, and responsibility. In legal terms, marriage confers a host of rights and duties upon spouses, including cohabitation, mutual support, inheritance, legitimacy of children, and shared property rights.
In India, marriage is both a sacrament (sanskār) under personal laws like Hinduism, and a contractual relationship under laws like the Special Marriage Act, 1954. While Hindu law sees marriage as an indissoluble union meant for life, other frameworks recognize it as a contract that can be dissolved under certain conditions.
 

What is Divorce?
Divorce is the formal legal dissolution of a marriage by a competent court. It marks the end of a matrimonial relationship and frees both spouses from the rights and obligations that arise from marriage. In simpler terms, divorce is the process by which two people who were legally married decide to separate and live independently, with legal sanction. 
Definition of Divorce:
Divorce is defined as the termination of the marital bond under the law. It involves the revocation of the legal duties and responsibilities of marriage and dissolves the marital status of the parties.
Under Indian law, divorce is governed by different personal laws based on the religion of the parties, and the procedure, grounds, and consequences can vary. However, the essential legal concept remains the same: a judicial declaration that the marriage no longer exists.

Nature of Divorce
1.Legal Act: Divorce must be granted by a court of law. Merely separating or living apart does not constitute divorce unless formalized by legal proceedings.
2.Breakdown of Marriage: Divorce is often the result of a complete breakdown in the relationship, where reconciliation is no longer possible.
3. Types of Divorce:
i.Mutual Consent Divorce: Both spouses agree that the marriage has broken down and jointly petition for divorce.
ii.Contested Divorce: One spouse files for divorce, and the other contests or disagrees, leading to a trial where grounds must be proven.

What is Contested Divorce?
A contested divorce is a type of divorce proceeding where one spouse seeks to dissolve the marriage, but the other does not consent to the divorce or disputes the grounds raised. This type of divorce typically involves a legal battle in court, as both parties are in disagreement—either on ending the marriage itself or on associated issues like child custody, maintenance, alimony, division of property, or other marital rights.
Unlike a mutual consent divorce, where both spouses agree to separate and approach the court jointly, a contested divorce is initiated by one spouse (the petitioner) against the other (the respondent), making it adversarial in nature.

Grounds for Contested Divorce under Hindu Marriage Act, 1955.
The Hindu Marriage Act, 1955, governs divorce for Hindus, including Buddhists, Jains, and Sikhs in India. Section 13 of the Act provides various grounds on which a spouse can seek a contested divorce—that is, without the mutual consent of the other spouse.
Below are the main grounds under Section 13(1) for filing a contested divorce by either the husband or the wife:
1.Cruelty – [Section 13(1)(i-a)]
Cruelty can be physical or mental. The term is not precisely defined in the Act, so courts interpret it broadly.
▪ Physical cruelty:
Acts of domestic violence
Assaults or bodily harm
▪ Mental cruelty:
Humiliation or verbal abuse
False allegations (e.g., of adultery)
Continuous neglect or indifference
Denial of marital obligations without valid reason
Example: If a wife constantly abuses her husband’s family, or a husband habitually insults his wife in public, it may amount to cruelty.

2.Adultery – [Section 13(1)(i)]
Adultery refers to a voluntary sexual relationship of a married person with someone other than their spouse.
After the 1976 amendment, even a single act of adultery is enough.
Proof must show opportunity and inclination—direct evidence is rare but circumstantial evidence may suffice.
Note: As per recent legal developments, adultery is no longer a criminal offense (as per Joseph Shine v. Union of India, 2018), but it remains a valid ground for divorce.

3.Desertion – [Section 13(1)(i-b)]
Desertion means abandonment of one spouse by the other without reasonable cause and without consent.
It must be intentional and continuous for at least 2 years immediately preceding the filing of the petition.
Both physical separation and the intention to permanently desert are necessary.
Example: If the husband leaves the matrimonial home and refuses to return without justification for two years or more, it is desertion.

4.Conversion – [Section 13(1)(ii)]
If a spouse converts to another religion (e.g., from Hinduism to Islam or Christianity), the other party can file for divorce.
No minimum time period required.
It must be a voluntary and genuine conversion.

5.Unsoundness of Mind – [Section 13(1)(iii)]
A spouse can seek divorce if the other is:

Incurably of unsound mind, or

Suffering from a mental disorder that makes it unreasonable to live together.

The mental condition must be such that cohabitation becomes impossible or dangerous.

Examples: Schizophrenia, severe bipolar disorder, or chronic psychosis, if proven through medical evidence.

6. Virulent and Incurable Leprosy – [Section 13(1)(iv)]
If one spouse is suffering from a serious and incurable form of leprosy, the other can seek divorce.

It must be proved that the disease is virulent (severe) and incurable.

Medical certification is generally required.

7. Venereal Disease in a Communicable Form – [Section 13(1)(v)]
If a spouse suffers from a sexually transmitted disease (STD) in a communicable stage, such as HIV/AIDS, syphilis, or gonorrhea, the other can seek divorce.

No minimum period is required.

The disease must pose a risk of transmission.

8. Renunciation of the World – [Section 13(1)(vi)]
If one spouse renounces the world and adopts sannyasa (a religious ascetic lifestyle), the other is entitled to seek divorce.

It must be a formal renunciation in accordance with Hindu religious customs.

The renouncing spouse is treated as civilly dead.

9. Presumption of Death – [Section 13(1)(vii)]
If a spouse has not been heard of as being alive for at least seven years, they are presumed dead, and the other spouse may seek divorce.
It must be proven that the petitioner and others have made genuine efforts to trace the missing spouse.

Process of Contested Divorce in India
A contested divorce is filed when one spouse seeks to end the marriage without the consent of the other. This usually involves disputes over the grounds for divorce, alimony, child custody, or property. The process is legal, detailed, and often time-consuming.
Step 1: Filing of Divorce Petition

One spouse (called the Petitioner) files a divorce petition under Section 13 of the Hindu Marriage Act in the Family Court having jurisdiction.

The petition must clearly mention the grounds for divorce (such as cruelty, adultery, desertion, etc.) along with supporting facts and documents.

Basic details such as the date of marriage, place of marriage, children (if any), and prior efforts to reconcile are included.

Step 2: Service of Notice / Summons to the Respondent

The court issues a notice/summons to the other spouse (called the Respondent) informing them about the divorce petition.

The Respondent is given time (usually 30 days) to appear in court and file their written reply to the allegations.

Step 3: Filing of Written Statement by Respondent

The Respondent files a Written Statement denying or admitting the allegations.

They may also file counter-allegations or claim reliefs such as custody of children, maintenance, or property division.

Step 4: Framing of Issues

The court examines the petition and reply, and then frames specific legal issues to be determined during the trial.

These issues outline what is to be proved by each party (e.g., whether cruelty occurred, whether there was desertion, etc.).

Step 5: Evidence Stage

Petitioner’s Evidence: The petitioner presents evidence, such as witnesses, documents, call recordings, photos, etc.

Cross-Examination: The respondent’s advocate gets a chance to cross-examine the petitioner and their witnesses.

Respondent’s Evidence: After this, the respondent presents their evidence.

Cross-Examination: The petitioner’s lawyer can cross-examine the respondent’s witnesses.

Step 6: Final Arguments

Both sides present their oral arguments and submit relevant case laws or judgments to support their case.

The court considers all pleadings, evidence, and arguments.

Step 7: Judgment / Decree of Divorce
The Family Court passes a judgment either granting or rejecting the divorce.
If divorce is granted, the court may also decide on:

Alimony / Maintenance

Child Custody / Visitation Rights

Division of property or assets

The decision is recorded in a Decree of Divorce, legally dissolving the marriage.

Conclusion
The Hindu Marriage Act, 1955, provides both spouses with specific legal grounds to seek a contested divorce when the marriage has irretrievably broken down. However, these grounds must be proven in court with supporting evidence. The process can be long and emotionally challenging, making it crucial to consult a qualified family law advocate who can provide strategic and sensitive guidance through the proceedings.