Contested Divorce happens when spouses don't agree on the key issues related to the dissolution of their marriage, like custody of children, alimony, division of property or grounds of divorce. This is in contrast to the mutual divorce, where both parties agree to part ways cordially. The contested divorce involves litigation and requires the court's intervention to resolve disputes.
Marriages or Vivah in Hindu Religion are considered to be a sacred union.
Therefore, there are no provisions for the dissolution of the marriage in any of the religious texts. Thus, the constitution has the Hindu Marriage Act, 1955 that talks about the grounds of contested divorce.
According to the Hindu Marriage Act of 1955, the grounds for contested divorce are as follows:
Adultery
As per Section 13(1)(i), if a married individual cohabits with another individual other than his/her spouse in the course of the marriage, he/she will be said to have engaged in adulterous acts. The burden of proof lies on the petitioner.
Section 497 of the Indian Penal Code originally made adultery a crime. However, the Apex Court invalidated the aforementioned section in the Joseph Shine v. Union of India (2018) case, ruling that while permitting divorce on the grounds of infidelity is one thing, adding criminality to the act of infidelity is quite another, as it exacerbates the situation and makes it more complicated by meddling in a couple’s private affairs.
Cruelty
The Hindu Marriage Act’s Section 13(1)(a) addresses cruelty as a reason for divorce. In this section, the term “cruelty” has not been defined precisely. The definition of cruelty continues to evolve, and courts have primarily relied on English judgments to determine what it means. However, Section 498A of the Indian Penal Code discusses and treats cruelty to women as a criminal violation.
Conversion
The Hindu Marriage Act’s Section 13(1)(ii) addresses conversion as a reason for divorce. When a married Hindu man or woman converts to another religion—such as Islam, Christianity, etc.—and stops being a Hindu, this is known as conversion. The marriage dissolves if one partner stops being Hindu since, according to Section 5 of the aforementioned Act, it no longer satisfies the requirements for marriage.
Desertion
If an individual has been abandoned by his/her spouse for two years or more before applying the petition. Additionally, if the petitioner’s spouse has refused to live without a reason or does not discharge obligations towards the petitioner, this also counts as desertion.
Section 13(1)(ib) of the Hindu Marriage Act talks about desertion, which is abandoning a spouse or petitioner without a cause.
Insanity
The Hindu Marriage Act’s Section 13(1)(iii) addresses insanity as a basis for Contested divorce. When a person lacks the mental capacity to make wise judgments for themselves or to distinguish between right and wrong, they are said to be insane. Married couples who have a spouse with an incurable mental illness or who experience ongoing or sporadic mental illness may file for divorce on this basis.
Venereal sickness
The Hindu Marriage Act’s Section 13(1)(v) addresses venereal sickness as a basis for Contested divorce. A spouse may file for divorce if the other spouse has a sexually transmitted disease that is both incurable and transferable.
Renunciation
The Hindu Marriage Act’s Section 13(1)(vi) addresses renunciation as a basis for divorce. When a married person renounces the world and joins the holy order, their spouse may file for divorce on this basis. But the renunciation of the world must be complete.
Death Presumption
The Hindu Marriage Act’s Section 13(1)(vii) addresses the presumption of death as a basis for divorce. It will be assumed that a married person is deceased if they have not been seen or contacted by anyone who would have known they were alive for seven years. The spouse may file for divorce on this basis in such a case.
Special Grounds for divorce for women under the Hindu Marriage Act,1955.
Presence of more than one wife – Section 13(2)(i) of the Hindu Marriage Act states that if a man has more than one wife at the same time, a wife can file for divorce. However, it is essential to note that the other wife has to be alive before presenting the petition in court.
Rape, Sodomy, or Bestiality
If the husband gets involved in acts of rape, sodomy, or bestiality, the wife can seek for a divorce. The section 13(2)(ii) of the Hindu Marriage Act talks of Rape, Sodomy, or Bestiality as a ground of divorce.
No Cohabitation for 1 Year after passing of maintenance award against husband – According to section 13(2)(iii), if the maintenance award has been passed against the husband and no sexual intercourse has taken place between them for one year or more, counts for a ground of divorce for the wife.
The Special Marriage Act of 1954 governs marriages between individuals of different religions or for couples who choose to marry without sticking up to any personal laws. Furthermore, it also provides provisions and grounds for divorce for the dissolution of the marriage. Here’s an overview of the same:
A spouse may seek divorce under Section 27 of the Special Marriage Act on the following grounds:
Adultery – Voluntary cohabitation outside the marriage counts as grounds for divorce.
Cruelty – The Act of causing mental or physical harm that makes it unbearable to continue the relationship.
Desertion – The abandonment of the petitioner by their spouse for two years or more.
Mental Illness – If the spouse is mentally unstable, that or they are incapable of fulfilling the obligation of the marriage.
Venereal Disease – If the spouse of the petitioner is suffering from a contagious or sexually transmitted disease, it counts as a ground for divorce.
Presumption of Death – If the spouse has not been heard from for seven years, it counts for a provision for divorce.
In Islamic Law, marriage or Nikah is a contract; therefore, the provisions for the dissolution of the marriage are clearly outlined. The grounds for a contested divorce are Adultery, Desertion, Failure to provide maintenance, Impotence, Venereal Disease, Husband’s absence, etc.
Divorce Contested by the husband:
A husband has the right to initiate divorce through talaq. Talaq are of two types:
Talaq-e-Ahsan
Talaq-e-Hasan
Divorce Contested by the wife:
Khul’ – The wife has the right to initiate a Khul’, but has to pay a sum to the husband as the compensation of divorce.
If you need more clarity on the provisions related to Contested Divorce, explore these FAQs to find your answers. We are here for you
The duration of a contested divorce can vary depending on the complexity of the case and the court's index. It can basically take anywhere from months to several years.
Absolutely, you can file for divorce even if your spouse is not willing. However, the process could be more complex and tedious.
The division of property in a contested divorce is based on the equitable distribution principles. The factors like length of marriage, income of both the partners, and their contribution in marriage.
The division of property in a contested divorce is based on the equitable distribution principles. The factors like length of marriage, income of both the partners, and their contribution in marriage.
The grounds for a contested divorce usually vary by jurisdiction but often include: Adultery Cruelty Desertion Mental Illness Venereal Sickness
Spousal support or alimony is awarded to one of the spouses (usually females) to maintain their standard of living after the divorce. The amount and the duration of alimony depends on various factors, such as income and earning capacity of both the spouses, length of the marriage, and the needs of the receiving spouse.