Contested Divorce

Life doesn't always pan out the way one envisioned it and our choices do not always yield the result one was expecting. Unfortunately, unhappy marriages are all too common in India and a growing number of individuals and couples resort to getting a divorce. A divorce is one of the hardest and life-transforming decisions one can make in a lifetime and it pays dividends to be up to speed with the procedures before they commence.

Under Contested Divorce, The judicial system has a vested interest in protecting the institution that is marriage so it is only to be expected that certain legal barriers are erected to prevent marriages from being annulled on a whim.

For this exact reason, Indian family courts demand a reason be given for a divorce. Indian laws in general recognizes cruelty (Physical & Mental), Desertion (Period varies from 2 to 3 years), Unsoundness of mind (of Incurable form), Impotency(the inability to 'consummate' the marriage), Adultery, renouncing the world, etc. These reasons or Ground of Divorce can also be considered 'crimes against marriage' or 'Matrimonial Offences'.

Aggrieved party has to take one of the above grounds of divorce and will have to file the case in the Court of suitable jurisdiction. Party which files the case has to prove the case with support of evidence and documents. On successfully proving the case, divorce will be granted and divorce decree will be drawn up consequently.

STEPS UNDER CONTESTED DIVORCE:

Step 1. Collect data and start building your case. Hire a Lawyer.

You need to determine on what grounds you are seeking divorce and you need to start collecting evidence that will support your case. Start collecting information regarding your marital problems along with copies of your important personal documents such as tax statements, property and asset details. Also consider that photographs and videos are admissible in evidence and don't forget that your spouse's emails, chat logs, Facebook updates, tweets can be presented in court too. These might become the deciding factor when trying to prove adultery or cruelty.

Step 2. File a petition.

The divorce process formally starts when a spouse files a petition for divorce via a lawyer and a divorce notice is sent out to the other party. The purpose of a divorce notice is to clearly specify the reasons for seeking divorce and the violation of any grounds and proof of the committed violations. It must be acknowledged personally by the spouse who receives the notice with his/her signature.

Step 3. The court case & possible counseling.

The court case will begin with both parties in attendance (bi-parte) or with one partner missing from the proceedings (ex-parte).

Under the case of a bi-parte case the courts typically would send the couple to counseling or a mediation service and impose a waiting period. Always Remember, the Indian courts really don't want you to divorce! This might lead to re-unification or an amicable split/divorce and negate the need for elaborate court proceedings.

Step 4. The Hearings and Examinations.

Once this waiting period ends and the partners have not resolved their dispute, they are granted a hearing in court and the divorce proceedings resume. Examinations will take place followed by cross-examinations. The ultimate goal of these proceedings and interrogation techniques is to uncover the truth.

Reminder: In reality this step is a bit more complex than explained here. It is important that one is informed by their Lawyer on the correct procedures before the hearings take place.

Step 5. Try to settle out of court.

Complicated issues such as child custody, child support, alimony, division of assets etc., are usually recommended to be mutually settled out of court; as they may further stretch the already monotonous process of divorce if decided on to be settled legally by the court itself.

Step 6. The judgment.

After extensive evaluation of the case and after listening to final arguments of both the parties, the court issue a divorce decision and both spouses are given a copy of the court judgment for record purpose. The civil court judgment for divorce is final and cannot be contested in higher courts.

Step 7. Contest the Decree.

The Court's final judgment is drawn up in a 'decree'. The contents of this decree may be contested by APPEALING to the High Court and subsequent Supreme Court.

CONCLUSION:

The duration of a Contested Divorce ranges between 2 to 4 years, possibly longer if contested aggressively. The divorce process in India is tremendously challenging and can prove to be very draining – both emotionally and financially. However, adequate preparation and foresight while planning your divorce can help relieve the monotonous legal divorce process in India; and help you transition to a post-divorce future more easily.



DISCLAIMER:This article is for general information purposes only. Always consult a Lawyer before you proceed with your case. Your situation might need a different approach.