There are various laws relating
to Marriage and Divorce In India -
1. For Hindus, the Hindu
Marriage Act, 1955.
2. For Christians, the Indian
Divorce Act, 1869 and the Indian Christian Marriage Act, 1872
3. For Muslims, the Dissolution
of Marriage Act, 1939 and the Muslim Women(Protection of Rights on Divorce)
Act, 1986
4. For Parsis, the Parsi
Marriage & Divorce Act, 1936.
5. The Special Marriage Act,
1954
Contested Divorce - A contested divorce is filed when one of the spouses decide to
divorce the other without his/her consent.
In India a contested divorce
can be filled on the basis of the following grounds namely -
1. Cruelty
2. Adultery
3. Desertion
4. Leprosy
5. Venereal disease
6. Mental disorder
7. Acceptance of religious
order on renouncing the world
8. Respondent not heard of
being alive for seven years.
9. Conversion to some other
religion
10. Sentence of imprisonment
for seven years
11. No resumption of
cohabitation. etc.,
A divorce starts with a divorce petition. The petition is
written by one spouse (the petitioner) and served on the other spouse. The
petition is then filed in a district court
Contents of the petition for Contested Divorce (Divorce papers) :-
Section 20 of the Hindu
Marriage Act requires that every petition for divorce shall state as distinctly
as possible the facts on which Petitioner's claim for relief is grounded. Such
petitions are required to be verified by the Petitioner or by some other person
competent to do it as required in C.P.C. and such petitions can be referred to
as evidence.
Section 10 of the Indian
Divorce Act lays down that every petition for divorce shall state facts as
distinctly as possible on which rests Petitioner's claim for reliefs sought.
Section 47, Indian Divorce Act lays down the same rules as to verification and
probative force of the petition as section 20, Hindu Marriage Act does. Similar
provisions have been enacted by Section 32, Special Marriage Act.
Thus all petitions for contested divorce in India shall state:
1. The place and date of
marriage.
2. Whether the petitioner and
the respondent were Hindu by religion at the time of marriage and whether
they continue to be so up to the date of filing of the petition. ''. This
clause is not necessary in case of Divorce Petition filed under special
marriage act.
3. The name, status and
domicile of the husband and wife before the marriage and at the time of filing of
the petition.
4.The address where parties to
the marriage reside at the time of the
presentation of the petition
and last resided together,
5. The names of children, if
any, of the marriage, their sex and their dates of birth or ages;
6. If prior to the date of the
petition, there has been any proceeding under the Act between the parties to the
petition, foil particulars thereof;
7. The matrimonial offence or
offences alleged or other grounds, upon which the relief is sought, setting
out with sufficient particularity the time and places of the acts alleged and
other facts by which they are intended to be proved, for example,
a. In every petition for
divorce by either the husband or the wife on the ground that the other party
has after the solemnization of the marriage, had voluntary sexual intercourse
with any person other than his or her spouse, the petitioner shall state the
name, occupation and place of residence of such person or persons so far as
they can be ascertained, the specific acts of sexual intercourse and the
occasion when and the where such acts were committed.
b. In the case of alleged
desertion, the date and the circumstances in which it began; in the case of cruelty,
the specific acts of cruelty and the occasion when and the place where such
acts were committed.
c. In the case of unsoundness
of mind or mental disorder, the time when such unsoundness of mind or mental
disorder began to manifest itself and the nature and the period of the
curative steps taken.
d. In the case of virulent and
incurable form of leprosy or venereal disease in communicable form, when such
ailment began to manifest and the nature and the period of the curative
steps taken.
e. If the petition is on the
ground that the respondent has renounced the world by entering any religious
order, the date of
renunciation and the
particulars of the religious order which the respondent has entered into
f. If the petition is on the
ground that the respondent has not been heard of as being alive for a period of
seven years or more, the date and the place the respondent was last seen or
heard of alive and the steps, if any, taken to ascertain his or her
whereabouts;
g. When the petition is found
on the ground of rape or sodomy, the occasion when, the place where and the
names and addresses of persons with whom such acts were committed. In case of
conviction for committing rape or sodomy, the particulars thereof
h. Where the petition is
founded on the ground of bestiality, the occasion when, the place where and the
particulars of the beast with whom the husband had been guilty of bestiality
Affidavit of non-collusion :-
Every petition (excepting
petitions for void marriage) should be accompanied by an affidavit to the
effect that it is not presented or prosecuted in collusion with the respondent.
In the petition seeking judicial separation/divorce on the ground that the
party has, after the solemnization of the marriage had voluntary sexual
intercourse with any person other than his or her spouse, it will also state
that petitioner has not, in any manner, been accessory to or connived at the
acts complained of.
Connivance arises when a party
to marriage, being willing that a matrimonial offence should be
committed by the other party, manifests that willingness by action or
inaction with a corrupt intention or expectation that a matrimonial offence may follow.
According to Rayden
“Connivance implies an
anticipatory consent to adultery committed by the other spouse. It may be active
or passive acquiescence in or toleration of the adultery; but mere negligence,
inattention or over-confidence, not amounting to intentional concurrence and
consent, are not connivance. Where, however, a spouse bonafide and reasonably
believes that the other is committing adultery,and,in order to get proof, follows
or observes and does not interfere while adultery is being committed, such following
or observation and non-interference does not amount to connivance.
Connivance at adultery with one person may preclude relief in respect of
adultery with another.”
Thus, if a person promotes and
encourages the adultery of the other spouse, he cannot come to the court
saying that it is the case of adultery and thus, cruelty is being committed.
Apart from it, it is also
necessary, that the person should not be
accessory to the fact. The word
‘accessory’ is intended to mean aiding to produce or contribute to the bringing
about of the offence complained against.
Thus, where the ground of the
petition is that “the other party has after the solemnization of the marriage
sexual intercourse with any person other than his spouse or that ‘the other party
is living in adultery”, the court will satisfy itself that the petitioner has
not in any manner been accessory to or connived at or condoned the act or acts complained
of in the petition.
Affidavit of non- condonation:-
Where the ground for petition is
voluntary sexual intercourse of the respondent with any person other than his
or her spouse or where the ground for petition is cruelty, the petition shall
be accompanied by an affidavit to the effect that the petitioner has not
condoned the act or acts complained of or has not in any manner condoned the
cruelty.
Condonation:
The doctrine of condonation was established by the old Ecclesiastical Courts in Great
Britain and was adopted by the English Courts from the Common Law. It came to
India through English Courts.
“Condonation” means forgiveness
of the matrimonial offence and the restoration of offending spouse
to the same position as he or she occupied before the offence was committed. To
constitute condonation there must be, therefore, two things, forgiveness and
restoration.
Condonation is always subject
to the implied condition that the offending spouse will not commit a fresh
matrimonial offence, either of the same variety as the one condoned or of any other
variety. ‘No matrimonial offence is erased by condonation. It is obscured but
not obliterated’. Since the condition of forgiveness
is that no further matrimonial
offence shall occur, it is not necessary that the fresh offence should be ‘ejusdem
generis’ with the original offence. Condoned cruelty can, therefore, be revived, say
by desertion or adultery.
So, these are the contents of a
petition for contested divorce.
. 
