Contested Divorce in India: A Comprehensive Guide
Introduction
Marriage is considered a sacred bond in Indian society, symbolizing a lifelong commitment between two individuals. However, not all marriages endure the test of time. When couples face irreconcilable differences and cannot live together harmoniously, they may seek a legal end to their marriage through divorce. While some divorces are mutual and amicable, others are fraught with disputes and legal battles—these are known as contested divorces. This blog provides an in-depth understanding of contested divorce, its definition, legal provisions, nature, and grounds under Indian law.
What is Divorce?
Divorce is the formal termination of a marital union by a court of law, releasing both spouses from all matrimonial obligations. It signifies the legal dissolution of the bond of marriage, allowing both parties to live separately and, if they choose, remarry.
In India, divorce laws are governed by personal laws based on religion. For example:
- Hindu Marriage Act, 1955 – for Hindus, Buddhists, Sikhs, and Jains
- Muslim Personal Law (Shariat) Application Act, 1937
- Parsi Marriage and Divorce Act, 1936
- Indian Divorce Act, 1869 – for Christians
- Special Marriage Act, 1954 – for inter-religious or civil marriages
Definition of Contested Divorce
A contested divorce is one where one spouse files a petition for divorce without the consent of the other, and the other spouse contests or opposes it. It involves legal proceedings where the court examines the grounds presented by the petitioner and hears the objections of the respondent.
Unlike mutual consent divorce, contested divorce can be lengthy, emotionally draining, and complex due to disagreements over issues such as alimony, child custody, property division, and the very grounds for divorce.
Section 13 – Grounds for Divorce
This is the most crucial section for contested divorce under Hindu law. It provides grounds on which either the husband or wife can file a petition for divorce.
Section 13(1) – Grounds Available to Both Spouses.
Any marriage solemnized under the Hindu Marriage Act may be dissolved by a decree of divorce on the following grounds:
1. Adultery:- One spouse has voluntary sexual intercourse with someone other than their spouse after marriage.
2. Cruelty:- Physical or mental cruelty making it impossible to live together.
E.g., abusive language, physical violence, constant humiliation, threats.
3. Desertion:- Willful abandonment by the spouse without any reasonable cause for at least 2 continuous years immediately preceding the filing of the petition.
4. Conversion:- The other spouse has converted to another religion and ceased to be a Hindu.
5. Unsoundness of Mind:- The respondent has been incurably of unsound mind or suffering from a mental disorder making cohabitation unreasonable.
6. Leprosy (Now Removed):- Earlier, leprosy was a ground, but this was repealed by the Personal Laws (Amendment) Act, 2019.
7. Venereal Disease:- The spouse is suffering from a communicable and serious sexually transmitted disease (now also removed by the 2019 amendment).
8. Renunciation of the World:- The spouse has renounced the world by entering a religious order.
9. Presumption of Death:- The spouse has not been heard of as being alive for 7 years or more by those who would naturally have heard of them.
Section 13(1A) – Post-Decree Grounds for Divorce
A party may seek divorce on the basis of non-compliance with certain judicial decrees:
1. No resumption of cohabitation for at least 1 year after a judicial separation decree.
2. No restitution of conjugal rights for at least 1 year after a decree for restitution has been passed.
This section helps where one party obtained a judicial remedy earlier (e.g., judicial separation), but it failed to resolve the relationship.
Section 13(2) – Grounds Available Only to the Wife
This section empowers the wife to seek divorce under certain special grounds:
1. Bigamy:- The husband has married another woman or has a living wife from a previous marriage (provided the first wife is alive and the second marriage was solemnized during the subsistence of the first).
2. Rape, Sodomy, or Bestiality:- The husband has been guilty of rape, sodomy, or bestiality after the marriage.
3. Repudiation of Marriage:- If the marriage was solemnized before she attained the age of 15 years, she can repudiate it after attaining that age but before 18.
4. Maintenance Decree (Section 125 CrPC& Section 144 BNSS):- If a maintenance order has been passed in favor of the wife and there has been no cohabitation for one year or more after that, she can seek divorce.
Section 25 – Permanent Alimony and Maintenance/ Section 144 of BNSS
Either spouse (husband or wife) can apply for permanent maintenance and support after divorce or judicial separation.
The court may grant a lump sum or monthly/periodic amount considering:
- Income of both parties
- Property owned
- Conduct of the parties
- Needs of the applicant
The court may also vary or revoke the maintenance ifcircumstances change (e.g., remarriage).
Section 26 – Custody of Children
This section empowers the court to make orders regarding:
Custody
Maintenance
Education of minor children
The court always considers the welfare and best interests of the child as paramount.
These orders can be interim or permanent and may be modified later based on changing circumstances.
Section 27 – Disposal of Property
This section allows the court to deal with any jointly owned property presented at or about the time of marriage (commonly known as “streedhan” or wedding gifts).
The court may:
Order division of property
Return gifts to the rightful spouse
Pass necessary directions for possession or compensation
This is helpful in resolving disputes about items like jewelry, vehicles, or household articles gifted during marriage.
Nature of Divorce
The nature of divorce, particularly contested divorce, is adversarial and judicial in character. It requires:
- A petition filed by one spouse,
- Legal grounds justifying the dissolution of marriage,
- Court adjudication, based on evidence and testimony,
- A final decree of divorce, if the court is satisfied with the petitioner’s claims.
In a contested divorce, the burden of proof lies with the petitioner to establish the grounds, and the court ensures that natural justice and fairness are upheld during the proceedings.
Grounds for Contested Divorce under Hindu Marriage Act, 1955
Section 13 of the Act lays down statutory grounds on which either the husband or wife can seek a contested divorce. These grounds are recognized by the court as valid reasons for dissolution of marriage.
Let’s understand each ground in detail:
1. Adultery
Definition: When a spouse voluntarily has sexual intercourse with a person other than his or her spouse after the solemnization of the marriage.
The act must be consensual and proven through circumstantial or direct evidence.
The petitioner must show that the other spouse was involved in an extramarital relationship.
Example: If a husband is found to be living with another woman in a relationship like marriage, it amounts to adultery.
Note: After the 2018 Supreme Court judgment in Joseph Shine v. Union of India, adultery is no longer a criminal offence, but it still remains a ground for divorce.
2. Cruelty
Definition: When one spouse treats the other with physical or mental cruelty, making it unsafe or impossible to continue the marriage.
Cruelty includes:
Physical violence (hitting, slapping, beating, etc.)
Mental torture, such as:
Insults, abuses, humiliation
False allegations of character
Threats of suicide
Constant interference by in-laws
Withholding affection or sexual relations
Example: A wife files for divorce citing repeated verbal abuse and threats of physical harm by her husband.
Key Point: Mental cruelty need not involve physical harm; repeated emotional abuse is sufficient.
3. Desertion
Definition: One spouse voluntarily abandons the other without any reasonable cause or the consent of the abandoned spouse, for a continuous period of two years or more before the filing of the petition.
Ingredients of Desertion:
Factum of separation: Actual abandonment
Intention to desert: Must be permanent
Without any justification
4. Conversion to Another Religion
Definition: If a spouse has ceased to be a Hindu by converting to another religion (e.g., Islam, Christianity), the other spouse can seek a divorce.
No time requirement—divorce can be sought immediately after conversion.
It must be a complete and voluntary change of religion.
Example: A Hindu wife converts to Islam without the consent of her husband; he can file for divorce on this ground.
Example: The husband left the marital home in 2020 without explanation and has had no contact or support since then.
5. Unsoundness of Mind / Mental Disorder
Definition: A spouse is suffering from:
Incurable unsoundness of mind, or
Mental disorder of such a kind and extent that the other spouse cannot reasonably be expected to live with them.
Types of Disorders:
Schizophrenia
Bipolar disorder
Severe depression or hallucinations
Frequent violent behavior due to mental illness
Example: A spouse suffers from chronic schizophrenia and behaves violently without any awareness or control.
Note: Temporary mental illness is not sufficient. The condition must be incurable and serious.
6. Leprosy(Now Repealed)
Previously, a person suffering from a virulent and incurable form of leprosy was a ground for divorce. But this ground has been repealed by the Personal Laws (Amendment) Act, 2019 to remove discrimination against people with leprosy.
7. Venereal Disease (STD)(Now Repealed)
Earlier, if a spouse was suffering from a communicable venereal disease (such as HIV/AIDS), it was a valid ground for divorce.
However, this too was removed by the 2019 Amendment.
8. Renunciation of the World
Definition: If a spouse has renounced worldly life and entered a religious order (like becoming a monk or sanyasi), the other spouse can file for divorce.
Requirements:
Actual renunciation (not just interest in spirituality)
Must be permanent and public
Example: A husband becomes a sadhu and starts living in an ashram, renouncing all family ties.
9. Presumption of Death
Definition: If a spouse has been missing for 7 years or more and has not been heard of by anyone, they can be presumed dead, and the other spouse can file for divorce.
Key Points:
Must show efforts were made to trace the missing spouse.
Statements from friends, relatives, and local authorities may be required.
Example: A wife whose husband went missing in 2016 can file for divorce in 2023.
10. Non-Resumption of Cohabitation after Decree (Section 13(1A))
If the court has already passed:
A decree of judicial separation, or
A decree for restitution of conjugal rights (under Section 9),
and still, the parties have not resumed living together for at least one year, either party can seek divorce.
This shows that despite the court’s intervention, the marriage remains broken.
11. Special Grounds for Wife (Section 13(2))
Apart from the above, a wife can also seek divorce on the following exclusive grounds:
1. Bigamy: Husband already has a living wife at the time of marriage.
2. Rape, Sodomy or Bestiality: Husband is guilty of these offences after marriage.
3. Repudiation of Marriage: If the girl was married before age 15 and repudiates the marriage before turning 18.
4. Maintenance Order: Husband was ordered to pay maintenance under Section 125 CrPC, and no cohabitation occurred for 1 year after that.
Conclusion
Contested divorce is a complex legal process that requires strong evidence, strategic planning, and emotional resilience. Whether it involves cruelty, desertion, mental illness, or other grounds, the role of a skilled legal professional is crucial in protecting your rights and presenting your case effectively. If you are facing marital disputes and seeking legal advice, it is essential to consult the best advocate in Greater Noida West who has experience in handling such sensitive matters. A qualified and compassionate divorce lawyer in Greater Noida West can guide you through every step of the process, ensuring the best possible outcome for your future.
