A contested divorce is not simply a mutual divorce with an argument in it. It is a different proceeding, tried on evidence, and it has to be founded on a ground the statute recognises.
The grounds
Under Section 13 of the Hindu Marriage Act, 1955 the grounds include cruelty, desertion for two years or more, adultery, conversion, unsoundness of mind, specified communicable disease, renunciation of the world, and a spouse not being heard of for seven years. The other personal laws and the Special Marriage Act, 1954 have their own lists, and for Muslim marriages the position is different again — see the Muslim personal law page.
“We do not get along” is not a ground. Indian law still has no general no-fault divorce, and irretrievable breakdown is not available to an ordinary court — the Supreme Court can grant relief on that basis under Article 142, but that is not a route open on a district-court petition.
Cruelty, in practice
Cruelty is the ground most contested petitions are founded on, and it is broader than physical violence. Sustained mental cruelty is recognised, and what constitutes it is assessed on the whole conduct of the parties rather than on any single incident. It is also, being conduct rather than an event, the ground that most depends on what can actually be proved.
The stages
- Petition and notice. The petition is filed and notice issues to the respondent.
- Written statement. The respondent replies, and frequently files a counter-claim.
- Interim applications. Maintenance under Section 24 of the Hindu Marriage Act, custody, injunctions. These are often decided long before the divorce itself, and for most people they matter more in the short term.
- Issues framed. The court settles what actually has to be decided.
- Evidence. Examination and cross-examination, on both sides. This is the longest stage.
- Arguments and judgment.
The proceedings that run alongside
A contested divorce rarely travels alone. There may be a maintenance petition, a domestic-violence application under the PWDVA 2005, a custody proceeding, and sometimes a criminal complaint under Section 85 of the BNS (formerly Section 498A IPC). These sit in different forums, on different dates, before different judges.
Treating them as one connected matter rather than four unrelated files is most of the work, and it is where matters most often go wrong when they are not.
How long
Longer than a mutual divorce, and it is not possible to state a figure honestly. It depends on the ground, the evidence, how many interim applications are filed and how the other side conducts itself. What can be set out at the first consultation is the stages the matter must pass through and roughly what each involves.
A word about settling
A contested petition can convert to a mutual one at any stage if the parties reach terms, and a good many do. That is usually the better outcome for everyone, and particularly for the children. It is worth keeping in view even while the matter is being fought.
More on the divorce page. To discuss a specific matter, call or WhatsApp +91 98300 78687.
General information only, not legal advice on any particular case.
