Law & Procedure of Contested Divorce 

Relevant Laws Related to Contested Divorce in India

In India, contested divorce cases are governed by various personal and secular laws, depending on the religion of the parties involved. Each law has specific provisions regarding the grounds for divorce, the place of filing the petition, and the procedural requirements. Below is a detailed examination of these laws:

1. Hindu Marriage Act, 1955

Governing Divorce Among: Hindus, including Sikhs, Jains, and Buddhists.

Grounds for Divorce:
Under Section 13 of the Hindu Marriage Act, 1955, the following are the grounds on which either spouse can file for divorce:

• Adultery: When one spouse has had voluntary sexual intercourse with someone other than their spouse.

• Cruelty: When one spouse is treated with cruelty, causing a reasonable apprehension of harm or injury to their life, limb, or health (physical or mental).

• Desertion: When one spouse deserts the other for a continuous period of not less than two years without any reasonable cause.

• Conversion: When one spouse converts to another religion, ceasing to be a Hindu.

• Mental Disorder: When one spouse has been suffering from an incurable mental disorder or insanity, making it impossible to live together.

• Leprosy: When one spouse has been suffering from a virulent and incurable form of leprosy.

• Venereal Disease: When one spouse has been suffering from a communicable venereal disease.

• Renunciation: When one spouse renounces the world by entering any religious order.

• Presumption of Death: When one spouse has not been heard of as being alive for a continuous period of seven years.

Place of Filing the Petition:

A petition for divorce under the Hindu Marriage Act can be filed in the Family Court or District Court within whose jurisdiction:

• The marriage was solemnized.

• If the petitioner is the wife, the place where she is residing.

• The respondent resides at the time of the presentation of the petition.

• The parties to the marriage last resided together.

• The petitioner is residing, in cases where the respondent is residing outside the jurisdiction of the court or has not been heard of for seven years.

2. Special Marriage Act, 1954

Governing Divorce Among: Inter-religious marriages and those not covered by any specific personal law.

Grounds for Divorce:
Under Section 27 of the Special Marriage Act, 1954, the grounds for divorce are similar to those under the Hindu Marriage Act. They include:

• Adultery

• Cruelty

• Desertion for a continuous period of not less than two years.

• Conversion to another religion.

• Mental Disorder or insanity.

• Leprosy that is virulent and incurable.

• Venereal Disease in a communicable form.

• Renunciation of the World

• Presumption of Death

Additionally, the Special Marriage Act allows for divorce by mutual consent under Section 28, provided the couple has been living separately for one year or more.

Place of Filing the Petition:
A petition for divorce under the Special Marriage Act can be filed in the Family Court or District Court within whose jurisdiction:

• The marriage was solemnized.

• The respondent resides at the time of filing the petition.

• The couple last lived together.

• The petitioner resides, in certain circumstances.

3. Indian Divorce Act, 1869

Governing Divorce Among: Christians in India.

Grounds for Divorce:
Under Section 10 of the Indian Divorce Act, 1869, the grounds for divorce include:

• Adultery: When the spouse has committed adultery.

• Conversion: When the respondent has ceased to be a Christian by conversion to another religion.

• Cruelty: When the respondent has treated the petitioner with cruelty.

• Desertion: When the respondent has deserted the petitioner for a period of at least two years.

• Insanity: When the respondent has been incurably of unsound mind for at least two years.

• Leprosy: When the respondent has been suffering from a virulent and incurable form of leprosy for at least two years.

• Venereal Disease: When the respondent has been suffering from venereal disease in a communicable form for at least two years.

• Failure to Observe Restitution of Conjugal Rights: When the respondent fails to comply with a decree for restitution of conjugal rights for two years or more.

• Presumption of Death: When the respondent has not been heard of as alive for a period of seven years.

Place of Filing the Petition:
Divorce petitions under the Indian Divorce Act can be filed in the Family Court or District Court within whose jurisdiction:

• The marriage was solemnized.

• The respondent is residing at the time of filing the petition.

• The petitioner resides, in specific situations where the respondent is residing outside the court's jurisdiction.

4. Muslim Personal Law (Shariat) Application Act, 1937

Governing Divorce Among: Muslims in India.

Types of Divorce:

• Talaq (Divorce by the Husband):

  • Talaq-e-Ahsan: A single pronouncement followed by abstinence from sexual intercourse for the iddat period.

  • Talaq-e-Hasan: Three pronouncements made during successive tuhrs (menstrual cycles), with no intercourse during these periods.

  • Talaq-e-Biddat: An instant and irrevocable divorce by pronouncing talaq three times in one sitting (Note: This practice has been declared unconstitutional by the Supreme Court of India in 2017).

• Khula (Divorce at the Instance of the Wife): A wife can seek divorce by giving something in return (usually a portion of her dower) to the husband. The husband's consent is required.

• Mubarat (Mutual Divorce): Both spouses agree to dissolve the marriage mutually.

Grounds for Divorce (Under Dissolution of Muslim Marriages Act, 1939):
A Muslim wife can seek a divorce on the following grounds:

• Desertion: The husband has neglected or failed to provide maintenance for two years.

• Cruelty: The husband has treated the wife with cruelty.

• Impotence: The husband is impotent.

• Failure to Perform Marital Obligations: The husband has failed to perform his marital obligations without reasonable cause for three years.

• Imprisonment: The husband has been sentenced to imprisonment for seven years or more.

• Missing Husband: The husband has not been heard of for four years.

• Insanity or Leprosy: The husband has been insane for two years or has leprosy.

• Any Other Ground: Any other ground recognized by Muslim law.

Place of Filing the Petition:
A divorce petition under Muslim law can be filed in the Family Court or District Court within whose jurisdiction:

• The marriage was solemnized.

• The respondent resides.

• The petitioner resides.

• The parties last resided together.

5. Parsi Marriage and Divorce Act, 1936

Governing Divorce Among: Parsis in India.

Grounds for Divorce:
Under Section 32 of the Parsi Marriage and Divorce Act, 1936, a divorce can be sought on the following grounds:

• Adultery: Voluntary sexual intercourse by one spouse with any person other than their spouse.

• Cruelty: Inflicting cruelty on the other spouse.

• Desertion: Desertion for a continuous period of two years.

• Insanity: Unsoundness of mind or mental disorder rendering cohabitation unsafe.

• Leprosy: Virulent and incurable leprosy.

• Venereal Disease: Communicable venereal disease.

• Force or Fraud: Marriage obtained by force or fraud.

• Non-Consummation of Marriage: Willful refusal to consummate the marriage.

• Imprisonment: Sentencing of the spouse to imprisonment for seven years or more.

• Presumption of Death: The spouse has not been heard of for seven years.

Place of Filing the Petition:
A divorce petition under the Parsi Marriage and Divorce Act can be filed in the Family Court or District Court within whose jurisdiction:

• The marriage was solemnized.

• The respondent resides at the time of filing the petition.

• The petitioner resides in certain cases, especially when the respondent's residence is not known.

Procedure and Other Relevant Information

1. Filing the Petition:
   The divorce petition must be filed in the appropriate Family Court or District Court, along with all necessary documents such as a marriage photograph, invitation card, certificate of marriage, identity & address proof of the petitioner, and affidavits.

2. Notice to the Respondent:
   After the petition is filed, the court issues a notice to the respondent (the other spouse) to appear before the court.

3. Mediation and Reconciliation:
   In many cases, the court may refer the parties to mediation or attempt reconciliation before proceeding with the trial. If reconciliation fails, the court proceeds with the hearing.

4. Trial:
   During the trial, both parties present evidence and witnesses to support their claims. The court examines the grounds for divorce and the evidence presented before making a judgment.

5. Final Decree:
   After hearing both sides, the court may grant a decree of divorce, dissolve the marriage, and pass orders regarding alimony, child custody, division of property, etc.

6. Appeals:
   If either party is dissatisfied with the judgment, they may appeal to a higher court, such as the High Court, within the prescribed time.