Divorce is a rough path to walk on and it becomes even more difficult if your spouse isn’t ready or if he/she refuses to give a divorce.
In this article, we are going to read what you can do if you want a divorce and your spouse doesn’t.
We will discuss the remedies and the procedure that you need to follow if you want to separate from your spouse.
To know all the information in detail keep reading till the end.
Do you need the consent of your spouse before divorce?
The answer to the above question is a NO.
You don’t need the consent of your spouse before the divorce. Such a type of divorce is called a contested divorce.
One can even seek Divorce when the other party is not willing to give divorce. This is a Contested Divorce and a petition for the same can be filed in the Court having appropriate jurisdiction.
Suggested Reading – Reasons for divorce in India
What is a contested divorce?
So basically there are two types of divorces one is mutual and the other one is a contested divorce. In a divorce that is mutually agreed upon by both parties, the couples are sorted on things like alimony, property, custody of the kids, maintenance, etc.
But not all couples part ways mutually, sometimes divorce can be ugly. Things turn out bad when the couple cannot decide to share their rights equally between themselves. In this case, the couple drags each other to the court and asks the court to decide and settle the matter. This process is long, tedious, and costs you a lot of money. This process can also be emotionally and mentally exhausting for you.
This type of divorce where the couple cannot decide between themselves and reach out to the court to settle the differences, this comes under uncontested divorce.
Suggested Reading – 7 aspects you should keep in mind before filing for a divorce
Grounds for a contested divorce
Adultery means having a sexual relationship outside the marriage. Adultery comes under criminal offence and the proper proof is required to establish this fact. An amendment to the law in 1976 states that one single act of adultery is enough for the petitioner to get a divorce.
Desertion means abandoning the partner voluntarily.
If one of the spouses voluntarily abandons the other spouse for two or more years then the abandoned partner can file for a divorce on the ground of desertion.
A spouse can ask for a divorce if he/she is subjected to any kind of physical, mental, or emotional torture or injury that causes a threat to life and health. Ill-treatment, food being denied, domestic violence, abuse, and perverse sexual activity all are included in the act of cruelty.
You can file for a divorce against your spouse if he/she converts to another religion after marriage. For example, if at the time of marriage you and your husband are Hindu and after some year he/she converts to some other religion then, you have the full right to divorce your partner.
- Mental Disorder
If the spouse of the petitioner is suffering from a mental condition that is incurable and hence the couple cannot be expected to live together peacefully then in this case the couple can opt for a divorce.
The spouse has the right to divorce the other spouse if she/she decides to leave all the materialistic desires and if he/she renounces all worldly affairs by embracing a religious order.
- Not seen or heard alive
If a person is not seen or heard alive by those who are expected to be ‘naturally heard of the person for a continuous period of seven years, the person is presumed to be dead. The other spouse should need to file a divorce if he/she is interested in remarriage.
- No Resumption of Co-habitation
It becomes a ground for divorce if the couple fails to resume their cohabitation after the court has passed a decree of separation.
In case of a ‘severe and incurable form of leprosy, a divorce petition can be filed by the other spouse based on this ground.
- Venereal disease
If your partner suffers from a sexually transmitted disease, you can file for a divorce.
Suggested Reading – Legal grounds for divorce
How to file for a contested divorce?
Under the Hindu Marriage Act, a contested divorce can be filed based on different grounds mentioned in the act. The process is very long and complicated. So the contested divorce journey starts with consulting a good divorce lawyer.
You will have to explain your entire case to your lawyer and then he/she can give you the best advice according to your case.
The procedure for filing a contested divorce is explained below.
- Step-1 Preparing the petition for divorce
Generally, in a contested divorce, the petition is filed by one of the spouses who has been aggrieved. The husband/wife seeking divorce will have to explain the reason and the circumstances under which he/she is taking divorce. The lawyer will then draft a petition based on facts that are explained by the petitioner. The Petition would have to be accompanied by relevant documents supporting the allegations as made in the petition. After it has been finalized, the petition along with affidavits and vakalatnama would be signed by the party contesting, in the presence of a Notary/commissioner.
- Step-2 Filing of the petition
After the petition is prepared and all formalities have been fulfilled, it would be filed before the appropriate family court according to the jurisdiction.
- Step-3 Scrutiny of the petition by the court
The court would scrutinize the petition and will hear the allegations from the lawyer filing the petition.
- Step-4 Appearance of the opposite side in the court
Once the court is satisfied with the petition and thinks the matter should move ahead, the court would issue a notice to be served upon the other party. After this, a copy of the petition and notice is sent to the other party, and on the next date of hearing, he/she should be present in the court with his/her lawyer. The opposite party would also have to file a reply to the divorce petition and any other application as the case may be.
- Step-5 Direction for mediation
The court at first will try to resolve the matter between the parties and ask them to appear for mediation. After the parties have appeared for the mediation in front of the mediator and in case no fruitful outcome is achieved, the court then proceeds with the divorce proceedings.
- Step-6 Framing of issues and recording of evidence by the court
The next step is that the court will proceed with the matter, frame the issues, and record the evidence. Both parties will have to get cross-examined by the lawyers, and both parties would be required to submit the pieces of evidence supporting their allegations. They may also have to produce supporting witnesses.
This step is the most crucial step of the entire proceedings. The whole fate of the case depends upon this step.
- Step-7 Final argument by councils of the parties
The above step is a time taking process. After this lengthy procedure is completed, the lawyer of each side would be required to present their arguments before the judge. Once the arguments are finished the court will decide a date on which it will pronounce its decision.
- Step-8 Final decision by the court
The court after hearing the entire proceedings decides the verdict. The verdict is based upon the facts and circumstances of each case.
If any party remains unsatisfied with the verdict, they can then challenge the decision in the higher court with the help of their lawyer. The limitation to filing for appeal is 3 months from the date of the order.
Suggested Reading – How to file for a divorce in India
Documents required for a contested divorce?
Several documents are required for a contested divorce. Here are a few important documents required to prove the ground upon which the divorce has been filed. Some of the essential documents have been listed below-
- Address proof of husband
- Address proof of wife
- Photographs of marriage between the husband and wife
- Certificate of marriage
- Evidence supporting the ground on which divorce is filed (cruelty, adultery, desertion, lunacy, leprosy, the presumption of death, conversion to another religion, etc.)
- Professional proofs
- Financial proofs
What about maintenance and alimony?
In a Contested divorce the court generally intervenes on the topic of maintenance and alimony and it is decided on the merits of each case.
In a Contested Divorce, the issue of alimony and maintenance is decided on the merits of each case and the court intervenes in these matters. However, the power of the court to grant alimony is not limited to cases where the decree is obtained by the wife. Courts also have the power to grant alimony/maintenance to the wife even where the husband is granted a divorce decree. It is quite possible there may be no alimony/maintenance awarded at all depending upon the facts and circumstances of the case. Assessment of the amount of alimony or maintenance is entirely the court’s discretion.
What to do if kids are involved?
The most difficult phase in a divorce proceeding is when kids are involved. Because the divorce is happening between the couple and not the kids so generally both the parents want to have custody of the child.
In case of a contested divorce, it becomes even more complicated and the matter is left to the court to decide.
The decision of granting custody of the child is based on the child’s best interest. The court will decide on the basis of the circumstances of every case and for the welfare of the child.
If a child is more than 18 years of age he/she can decide for themselves.
Suggested Reading – Child custody laws in India
How can a lawyer help you?
A contested divorce generally turns out ugly and it can take a toll on your mental and emotional health. It is a very good idea to hire a good and experienced divorce lawyer for your divorce matter. The lawyer will take care of all the drafting and document work. Also, the lawyer will help you to arrange proper evidence which will make your case stronger. An experienced divorce lawyer can give you expert advice on how to handle your divorce owing to his years of experience in handling such cases.
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So I hope this article would have helped you in understand what to do if you want a divorce and your spouse isn’t ready for a divorce.
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