What should I do if my spouse does not wish to divorce?

India is a culturally diverse country where solemnization and termination of marriage is regulated not by one but many statutes.

Religions such as Hinduism, Islam, Christianity, etc. have their own statutory provisions in India that regulate marriage and divorce of the people following them. There is not a uniform religion code in India as these laws have been made with respect to the customs and religious practices followed by people for generations.

Can Hindus get divorced?

Hindus are synchronized with the divorce law in India through the Hindu marriage act. Divorce for Hindus as per the act, can be of two types. – Mutual or contested.

  1. Mutual Divorce: Divorce by mutual consent, basically means a divorce not involving the courtroom, where both the husband and wife mutually decide to separate and sign a joint petition whereby stating that they have bene living separately for more than a year.

In India, divorce by mutual consent is the fastest, respectful and dignified way to get separation as in this case both the partners who believe that they cannot live together harmoniously and voluntarily agree to all terms and conditions of their joint petition to separate legally. Such a joint petition contains matters of maintenance, custody of child, division of assets, shelter of the spouse etc.

  1. Contested Divorce: A contested divorce is the type of divorce where one partner applies for the divorce and is ready to separate, while the other partner does not want wish to separate. In such a case, the divorce proceedings are heard in front of a judge and matters such as property dispute, child custody, maintenance and alimony are decided not by the partners but by the judge.

A contested divorce can be filed only on certain grounds which are mentioned under the law. Such grounds are – cruelty, adultery, dissertation, conversion, mental disorder, communicable general diseases, etc.

What should I do if my spouse does not wish to divorce me?

If you do not wish to continue your marital relations with your partner and they are not ready yet to go their separate ways, then you may opt for contested divorce in consultation with your lawyer. As explained in brief above, contested divorce as the name suggests is the form of divorce in which one partner files for divorce in the court while the other contests the said petition and its contents.

What is the procedure for filing contested divorce petition in India?

  • Consult a Lawyer

The most important step in pursuing a contested divorce is to consult a good lawyer. A lawyer is the one who shall be representing your interests in the court of law and in front of the judge, who shall be deciding the contents of your divorce. You must choose the lawyer who can best represent you and understand you and convey your concerns in the court, judiciously.

  • Filing of petition by the husband or wife

The second most important step is of preparation and filing of petition by either of the spouse. A petition for contested divorce under your chosen ground is submitted before the court to review the contents of the divorce petition. The person filing the petition provides all the related documents, evidences and information, is attached in the petition by the chosen lawyer.

  • Issuing of Summons and appearances

After filing of the petition, summons are issued by the court to the other party for appearance in the court. The summons asks the parties to appear in the court in front of the judge and also to cite any and all accusations against each other. Then on the given date, both the parties appear in front of the court and disclose their issues and contentions regarding the divorce proceedings.

  • Reconciliation attempt by the Court

After an attempt at reconciliation, when the case is redirected to the court, the court acknowledges and comprehends the gravity of the case. If the court believes that the issues between the parties are a result of misunderstandings or little bit adjustment between the parties can pave way for reconciliation; then, the case is forwarded to the legal service authority where both the parties mediate their issues and resolution between them is attempted. If the case is settled through a settlement by the act of mediation, then the petition is withdrawn from the court and the case is closed; if not, then the case is redirected to the court on the recommendation of the mediator and the procedure for contested divorce is followed.

  • Reply/counter reply from the respondent spouse

The respondent spouse against whom the petition for divorce has been filed, files a counter petition. Under this counter petition, the respondent spouse if is not in the favour of divorce, denies allegations made against them. The denies have to be specific and cannot be an overall denial towards those allegations. If any allegation filed by the petitioner have not been specifically denied, then in the language of the court, it shall be deemed as an accepted allegation on the part of the respondent spouse. The respondent spouse, in their counter reply can also file allegations against the petitioning spouse.

  • Examination and cross-examination of witnesses and evidence.

Through a series of petitions and counter petitions, both the spouses introduce witnesses and evidences with respect to their claims and to counter the claims of the other party. Information and documents regarding witnesses and evidences are produced in front of the judge to decide on the admissibility, validity and significance of these claims.

  • Counsels for both parties present final arguments.

This is the last step provided to both the parties to put their best foot forward and present the best to best arguments from their side to prove their contentions and invalidate the argument of the other party.

  • Decree of divorce passed by the court.

After paying due consideration to all the documents and information processed by both the parties, the court settles the points for consideration which are to be decided by the judge. These points are generally regarding the issues upon which both the spouses are not able to decide amicably, such as division of assets, maintenance- interim and permanent, child custody, etc.

  • Right to Appeal

Every aggrieved person has a right to appeal under the Indian Law. An aggrieved person can file an appeal to the High Court and then to the Supreme Court for a decree or a decision against the subsequent family and High court.

How can GS Bagga & Associates help you?

Greetings! When people marry, they do so with a hope of spending a lifetime together, sharing joys and sorrows together. Sometimes, marriages do not work out as while living together, it is realized that they are not able to cohabit together or with their spouse and it would be best to part their ways. In such situations, lawyers play a major role in getting you a divorce. The offices of G.S. Bagga & Associates have been experienced in family law and matrimonial issues for over 7 years now. If you’ve found the above information satisfying, you can get in touch with us and can book a free consultation. We would love to support you with our legal expertise in the matter. Feel free to contact us, anytime.