Contested divorce: grounds, steps and what to expect

What it is

A contested divorce is a divorce case in which one spouse asks the court to end the marriage and the other spouse opposes it, or simply does not agree. Because there is no joint consent, the spouse who files must prove to the court one of the grounds — the reasons for divorce — that the law allows.

The person who files is the petitioner. The spouse the case is against is the respondent. The court's final order ending the marriage is the decree of divorce.

When it applies

You need a contested divorce when you want the marriage to end and your spouse will not join a mutual consent petition, or when you cannot agree on custody, maintenance or property. If you both agree on everything, a mutual consent divorce is usually simpler; see mutual consent, step by step.

The grounds come from the law your marriage falls under:

• Hindus, Buddhists, Jains and Sikhs — Section 13 of the Hindu Marriage Act, 1955. Either spouse can rely on adultery, cruelty, desertion for a continuous period of at least two years, conversion to another religion, serious mental disorder, venereal disease in a communicable form, renouncing the world, or not being heard of as alive for seven years. Either spouse can also seek divorce where, for a year or more after a decree of judicial separation or restitution of conjugal rights, the couple have not lived together again. A wife has some further grounds of her own under Section 13(2).
• Marriages under the Special Marriage Act, 1954 — Section 27, with a similar list.
• Christians — Section 10 of the Divorce Act, 1869.
• Parsis — Section 32 of the Parsi Marriage and Divorce Act, 1936, which calls the case a suit.
• Muslim women — Section 2 of the Dissolution of Muslim Marriages Act, 1939 lists the grounds on which a wife married under Muslim law can ask the court to dissolve the marriage, including cruelty, failure to maintain her for two years and the husband's whereabouts being unknown for four years.

Desertion means one spouse leaving the other without reasonable cause and without their consent, and includes wilful neglect (Hindu Marriage Act, Section 13). Cruelty is not defined in the Hindu Marriage Act; courts decide it on the facts of each case, and it can be mental as well as physical.

One time limit applies to most petitions: under the Hindu Marriage Act (Section 14) and the Special Marriage Act (Section 29), you cannot file for divorce until one year after the marriage, unless the court allows it because of exceptional hardship or exceptional depravity.

The steps and the timeline

1. Choose the court. The petition goes to the Family Court where one has been set up (Family Courts Act, Section 7), otherwise to the district court. Under Section 19 of the Hindu Marriage Act you can file where the marriage took place, where your spouse lives, where you last lived together, or, if you are the wife, where you live now. The Special Marriage Act gives the same choices (Section 31).

2. The petition. Your advocate drafts a petition that names the ground, sets out the facts that prove it with dates, and states what else you ask for — custody, maintenance, return of belongings. It is verified by you and filed with the court fee.

3. Notice and reply. The court sends notice to your spouse, who files a written statement, their reply to your petition. They may deny your facts or make their own claims.

4. Settlement efforts. Before granting relief, the court must first try to bring about a reconciliation where it can (Hindu Marriage Act, Section 23), and a Family Court must try to help the parties settle (Family Courts Act, Section 9). Expect to be referred to counselling or mediation. If you reach agreement, the case can be settled, or turned into a mutual consent petition.

5. Interim applications. While the case runs, either spouse without enough income can ask for monthly support and the costs of the case (Hindu Marriage Act, Section 24; for a wife under the Special Marriage Act, Section 36). The court can also make interim orders on the custody, maintenance and education of children (Hindu Marriage Act, Section 26). See Maintenance.

6. Evidence. You give your evidence and are cross-examined, meaning questioned by your spouse's advocate. Your witnesses are examined the same way. Then your spouse and their witnesses.

7. Arguments and decree. Both sides argue. The court grants or refuses the divorce. With the decree, or later, it can order permanent alimony — a lump sum or a monthly amount for one spouse's support (Hindu Marriage Act, Section 25; Special Marriage Act, Section 37) — and orders about the children.

8. Appeal. An appeal from a Family Court goes to the High Court within thirty days of the judgment (Family Courts Act, Section 19). Under Section 15 of the Hindu Marriage Act, neither of you may remarry until the time for appeal has passed with no appeal filed, or any appeal has been dismissed.

How long. Section 21B of the Hindu Marriage Act asks courts to hear the trial from day to day as far as practicable and to try to finish it within six months of notice reaching the respondent. Treat that as a target. Your advocate can tell you what to expect in your court.

Documents needed

• Proof of marriage: the marriage certificate, or wedding photographs and an invitation card.
• Proof of your identity and your current address.
• A written timeline of the marriage and of the events behind your ground, with dates.
• Evidence for the ground: messages, emails, letters, medical records, police complaints, photographs, and the names of people who saw what happened.
• For desertion: proof of the date your spouse left, and anything showing you did not agree to it.
• Your income, assets and expenses, and whatever you know of your spouse's, for any claim about maintenance.
• Children's names, dates of birth and school details.
• Copies of any other case between you and your spouse.

Typical cost

The cost of a contested divorce varies. It depends on your city and court, the ground, the number of hearings and witnesses, and whether interim applications and appeals follow. The court fee is set by each state. The advocate who takes your case quotes their own fee before you pay anything; eMunshi does not set it.

What the advocate does

Section 13 of the Family Courts Act says no party is entitled as of right to be represented by a lawyer in a Family Court. Within that, an advocate:

• Tells you whether your facts make out a ground, and which law applies.
• Chooses the right court and drafts the petition.
• Prepares interim applications for support, custody and costs.
• Prepares your evidence and your witnesses, and cross-examines your spouse's witnesses where the court allows.
• Advises you on any settlement offer, and on an appeal.

The self-serve document that comes before it

There is no self-serve document for a contested divorce; the petition depends too much on your facts. If you and your spouse do reach agreement, the case can end in a mutual consent divorce, and the joint petition and affidavits can be prepared at ₹4,999, checked by a panel advocate.

If you are not sure yet whether to file, a 30-minute call with an independent advocate from our panel starts at ₹999; talk to an advocate. If you are facing violence at home, see Domestic violence application.