In India, getting a divorce becomes complicated if one spouse refuses to consent to dissolving the marriage. However, it is possible to get divorce even if one party refuses it. This situation leads to a contested divorce petition being filed.
Grounds for filing contested divorce petition
The spouse seeking a contested divorce can file a petition in court citing acceptable grounds like cruelty, adultery, desertion etc. The specific grounds for contested divorce differ based on the personal laws applicable to the couple.
For example, under Hindu marriage laws, the grounds for one spouse filing for contested divorce include:
- Cruelty (physical or mental) – For example, domestic violence, harassment for dowry, verbal abuse, etc.
- Adultery – For example, evidence of extramarital affair by the spouse.
- Desertion for two continuous years – For example, one spouse abandoning the family for years.
- Incurable mental disorder – For example, schizophrenia or bipolar disorder.
- Communicable disease like HIV/AIDS
- Presumption of death – For example, spouse missing for over 7 years.
The spouse filing for contested divorce must provide adequate evidence to prove the grounds for divorce to the court. The courts will thoroughly examine the evidence before granting a contested divorce.
The process for a contested divorce
To file for a contested divorce, the petitioning spouse first submits the divorce petition along with supporting documents as evidence to the court. The court then issues a legal notice to the other spouse along with copies of the divorce petition.
The defending spouse has to then legally reply to the divorce petition as per laws. The court may initially direct both parties to attempt mediation and counselling first to reconcile. If mediation fails, the court continues with normal contested divorce proceedings of recording evidence and hearing arguments from both spouses.
After final arguments from both sides, the court passes its final judgement on the contested divorce petition. If either spouse contests the judgement, they still have the right to file an appeal against it within 3 months.
Factors affecting how long contested divorce takes
A contested divorce case where one spouse refuses to give consent can take anywhere from 6 months to several years to finalize, depending on the complexities and evidence involved. The attempts at mediation and counselling during the legal process also adds to the timeline.
Courts generally aim to first reconcile the couple multiple times before finally granting a contested divorce. Only when irretrievable breakdown of the marriage is conclusively proved through evidence will the courts grant divorce if one party refuses it.
Rights to maintenance and child custody
During a contested divorce, the courts decide on maintenance and child custody rights based on the specific merits and circumstances of each case. It is possible that no maintenance is awarded to the wife if the circumstances demand it.
The child custody decision is taken by evaluating what is in the best interests and overall welfare of the child. For example, custody may be given to the more financially stable parent.
Why hiring a divorce lawyer is advisable
Going through a contested divorce where one party refuses to let go can be emotionally and financially draining for the spouse seeking separation. Hiring a skilled divorce lawyer allows you as a spouse to focus on taking care of yourself and your family while the legal complexities are handled by the lawyer. A good lawyer can also advice strategically to avoid mistakes and delays. Their expertise in contested divorces also helps shorten the duration of the divorce process.