Contested divorce in Gurgaon

A contested petition asks the court to end a marriage over the objection of the other spouse. That makes it a trial: pleadings, issues, evidence on affidavit, cross-examination, arguments and a judgment that can be appealed.

• s. 13 Hindu Marriage Act, 1955
• s. 10 HMA
• s. 9 HMA
• s. 27 Special Marriage Act
• s. 19 Family Courts Act, 1984

Grounds under section 13

A marriage under the Hindu Marriage Act can be dissolved on the grounds listed in section 13. The corresponding provision under the Special Marriage Act is section 27, and the grounds substantially overlap. The available grounds are:

Section 13(1A) additionally permits either party to seek divorce where there has been no resumption of cohabitation for one year after a decree of judicial separation, or no restitution of conjugal rights for one year after a decree under section 9. Section 13(2) gives a wife certain additional grounds, including bigamy by the husband, conviction for rape or comparable offences, an order of maintenance in her favour with no cohabitation for a year afterwards, and repudiation of a marriage solemnised before she turned fifteen.

What each ground requires

The two grounds that account for most contested petitions are cruelty and desertion, and both are commonly pleaded badly.

Cruelty has no statutory definition, which is a feature rather than a defect — it lets courts respond to conduct the drafters never imagined. What courts consistently look for is specificity: dates, incidents, what was said or done, who witnessed it, and what followed. A petition that alleges the respondent "always behaved cruelly and mentally tortured the petitioner" pleads a conclusion, not a fact, and gives the other side nothing to answer and the court nothing to find. Mental cruelty is well recognised — sustained humiliation, false criminal complaints, denial of marital relations, and persistent interference by relatives have all been held capable of amounting to it — but each has to be established on evidence.

Desertion requires more than physical separation. It needs the fact of separation, the intention to abandon permanently, the absence of consent from the deserted spouse, the absence of reasonable cause, and continuity for at least two years immediately preceding the petition. A spouse who left after being driven out has not deserted; a spouse who offers to return in good faith interrupts the period.

Stages of the trial

1. Petition. Filed before the Family Court with the statutory particulars, the grounds pleaded with dates and incidents, and the relief sought.
2. Summons and appearance. The respondent is served. Where service is evaded, substituted service may be ordered by publication or affixation.
3. Reconciliation. The Family Courts Act, 1984 obliges the court to make an effort at settlement before proceeding. Matters are commonly referred to the Mediation Centre at this point.
4. Written statement. The respondent files a reply, and often a counter-claim seeking divorce or restitution on their own grounds.
5. Replication. The petitioner responds to the written statement.
6. Framing of issues. The court identifies the questions it has to decide and allocates the burden of proof on each.
7. Petitioner's evidence. Examination-in-chief is filed by affidavit; the witness is then tendered for cross-examination. Each witness may take more than one date.
8. Respondent's evidence. The same process in reverse.
9. Final arguments. Oral submissions, usually with written synopses.
10. Judgment and decree. Followed, if either party wishes, by an appeal.

Interim applications

A contested petition rarely proceeds in isolation. Applications commonly filed alongside it include interim maintenance and litigation expenses under section 24 of the Hindu Marriage Act, custody and interim visitation under section 26, injunctions restraining the disposal of property, applications for exemption from personal appearance, and applications to consolidate or transfer connected matters. These are dealt with on the pages on maintenance and custody.

Judicial separation and restitution of conjugal rights

Two related remedies are sometimes more appropriate than divorce. Judicial separation under section 10 relieves the parties of the obligation to cohabit without dissolving the marriage — useful where a party has religious or personal objections to divorce, or wants to preserve the position while matters settle. Restitution of conjugal rights under section 9 asks the court to direct a spouse who has withdrawn from the society of the other without reasonable excuse to return. Both are grounds for divorce under section 13(1A) if a year passes without compliance, which is why a section 9 petition is sometimes filed with the eventual divorce, rather than reconciliation, in view.

How long it takes

A contested divorce that is fought to judgment in the Family Court is realistically a matter of years, not months. The stages that consume the most time are service on an evading respondent, the recording of evidence where each witness requires several dates, and adjournments. Matters that settle at mediation, or that convert into a joint petition under section 13B partway through, conclude far sooner — which is why the possibility of settlement is reviewed at every stage rather than only at the beginning.

Appeal

Section 19 of the Family Courts Act, 1984 provides an appeal to the High Court from a judgment or order of a Family Court, to be filed within thirty days. The Punjab & Haryana High Court at Chandigarh hears appeals from the Family Court at Gurgaon. Delay beyond thirty days requires an application for condonation supported by an explanation for each day.

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