Know the difference between mutual and contested divorce in India

Marriage is a domain of life in which we enter not by blood but by our choice. Marriage is nothing but a sacrament and a contract. As it is connected with the freedom of choice, sometimes we do make choices that do not turn out the way we want them to be.

Divorce allows a person to be free from marital relationship. The law has an interest in protecting marriage, and not allowing it to be severed only by choice and on ordinary wear and tear. To get a divorce, one needs to prove certain matrimonial offences or grounds for e.g. adultery/desertion/cruelty etc.

Seeking a divorce in India can be a long-drawn out legal affair. In a mutual-consent divorce, Section 13B(2) of the Hindu Marriage Act 1955 provides for a “cooling-off” period of six months between the first and second motions. However, the Supreme Court has held that this six-month period is directory and not mandatory, and a Family Court may waive it where the parties have genuinely settled their differences and reconciliation is not possible (Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746). The Supreme Court can also dissolve a marriage that has irretrievably broken down by exercising its powers under Article 142 of the Constitution (Shilpa Sailesh v. Varun Sreenivasan, 2023), though irretrievable breakdown is not itself a statutory ground of divorce. However, the time and money required to obtain a divorce can be considerably shortened if the couple seeks divorce by mutual consent. In this case, estranged spouses can mutually agree to a settlement and file for a “no-fault divorce” under Section 13B of the Hindu Marriage Act 1955. All marriages which have been solemnized before or after the Marriage Laws (Amendment) Act 1976 are entitled to make use of the provision of divorce by mutual consent. However, for filing for a divorce on this ground, it is necessary for the husband and wife to have lived separately for at least a year.

Procedure of getting a contested divorce:

• Ascertain the ground on which you want to seek divorce.
• Collect evidences.
• Consult a seasoned divorce lawyer and file a petition in the Family Court of your district.

As the name suggests, you will have to contest it. Indian laws in general recognizes cruelty (Physical & Mental), Desertion (Period varies from 2 to 3 years), Unsoundness of mind (of Incurable form), Impotency, renouncing the world, etc. Aggrieved party has to take one of the above grounds of divorce and will have to file the case in the Court of appropriate jurisdiction. Party which files the case has to prove the case with support of evidence and documents. On successfully proving the case, divorce will be granted and divorce decree will be drawn up accordingly. The Court’s formal order in the end is known as the ‘decree’. After this either party may appeal in the High Court and then finally the Supreme Court. Normally the process in the Family Court would take anywhere between 2-3 years if contested vigorously.