CONTESTED DIVORCE
Divorce is a dissolution of marriage through a legal process by filing a petition in a court of law. When a court passes a divorce decree, it brings an end to the matrimonial alliance of spouses and therefore terminates all the marriage. Along with the separation of husband and wife, it also involves the division of property, assets, and the issue of custody of the child. Divorce procedures and laws in India vary with each religion.
Divorce under Hindu law
Mutual divorce:
Under the Hindu Marriage Act, Mutual divorce is governed by Section 13-B. As the name suggests, in mutual divorce, both the parties i.e. husband and wife mutually agree and express their consent for peaceful separation. The husband and wife have to predetermine the issues relating to alimony and child custody if any. There are only two requirements for filing a mutual divorce, one is mutual consent and the other is that they have to live separately for at least one year.
Contested Divorce:
When divorce is initiated by either spouse it is termed as a Contested Divorce. Section 13 of the Hindu Marriage Act, 1955 provides the grounds for filing a contested divorce, some of which are, cruelty, conversion of religion, unsound mind, communicable disease or either spouse is unheard of more than seven-year.
Concept of irretrievable breakdown of marriage:
Irretrievable breakdown of marriage simply means that the spouses are unable to live happily and comfortably together. When the relationship reaches an extent from where it is impossible to repair the marriage, it is termed is irretrievable breakdown of the marriage. Certain situations like there is no affection between the husband and the wife, the couple are living separately, there are frequent quarrels or either one of the spouses is having an extramarital affair, leading to the breakdown of the marriage.
As of now, there is no codified law that provides for the irretrievable breakdown of marriage as a ground for divorce. It is different from mutual consent divorce, as it does not depend on the volition of parties but is examined by the court whether the marriage can be saved or not based on facts and evidence.
Contested Divorce
1. Adultery- It is a criminal offense where either of the spouses is involved in sexual relations with someone out of the marriage.
2. Cruelty- It is defined as a willful act that can cause danger to body, limb, life or to mental health. It can include causing pain, abusing, torturing mentally or physically.
3. Desertion- When a spouse willfully abandons another without any intention of coming back, it is known as Desertion. Desertion for more than two years could be a valid ground for divorce.
4. Religion Conversion- In a Hindu marriage, if either of the spouses ceases to be a Hindu then it can be considered as a ground for divorce.
5. Mental Disorder- Mental disorder includes unsoundness of mind, mental illness, or such mental disorder which makes the person abnormally aggressive.
6. Communicable Diseases and Leprosy- Leprosy is a contagious and chronic disease that causes lesions on skins and nerve damage.
7. Spouse not heard of- If either of a spouse is not heard of for more than seven years, then it can be considered as a ground for divorce.
8. Renunciation of the world- Under the Hindu Law, the “Renunciation of the world” is a ground for divorce, if either of the spouses has renounced the world and has entered a holy order.
For wife only use these ground for Divorce
• Husband has been guilty of rape, sodomy or bestiality.
• The wife was married before the age of fifteen.
• A decree or order has been given by court awarding maintenance to the wife and they have not been living together for more than one year
According to Section 19 of the Hindu Marriage Act, 1955, the petition of divorce can be presented to the District Court within the local limits of whose ordinary original civil jurisdiction:Or in metropolitan cities Family Court.
1. the marriage was solemnized, or (the place where the marriage ceremony was duly performed.)
2. the respondent, at the time of the presentation of the petition, resides, or (If both the parties are filing for divorce through a joint petition, then either of them can be respondent, so a petition can be filed at either place of residence.)
3. the parties to the marriage last resided together, or (Suppose a husband and wife lived together at a different place other than their initial residence then they can file a petition in a court having jurisdiction over that place. Last resided means that they must have lived there for a substantial amount of time and not just visited the place for any occasion.) in case the wife is the petitioner, where she is residing on the date of presentation of the petition, or (This subsection carves out an except to section(iii) providing benefit to the wife. In case the petitioner is a wife then she can file the divorce petition at the place where she is residing.)
4. the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is, at that time, residing outside the territories to which this Act extends, or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he were alive. (This is a very crucial ground as it gives liberty to either spouse to file a petition at his/her place of residence in case their spouse has deserted them or is beyond the jurisdiction of the Indian courts.)