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In such cases, the grounds for contested divorce come to the rescue of the spouse who wants to terminate the marriage. There are different laws in India which govern marriages, based on religious beliefs as well as those providing for civil marriages. This helps the aggrieved spouse to end the marriage through the Court, and start life afresh. Contested divorce has its own challenges, since one spouse has to prove the fault of the other spouse, which has been affecting their marital relations.  

Contested Divorce under Hindu Marriage Act

The Hindu Marriage Act, 1955 governs the marriages among two Hindus, and lays the rule on how a valid marriage may be solemnised, and the rules regarding termination of such marriage as well. Contested divorce Section 13 of HMA lays different grounds based on which one spouse may get divorce, in cases when the other spouse is not willing to end the marriage. Hereunder, we have explained the various grounds for contested divorce in India, as provided under HMA.

1. Sexual Intercourse outside marriage

One of the grounds of contested divorce in India is adultery, when one spouse has sexual intercourse with another person outside the marriage. In such a case, if the other spouse wishes to end the marriage and the cheating spouse refuses to divorce, the aggrieved spouse can approach the Court with a petition for adultery as contested ground divorce. In such a case, the adulterer is also impleaded in most of the cases, and the aggrieved spouse seeking divorce on ground of adultery has to prove the sexual relations. Divorce is granted if the same is proved with the help of evidence.

1. Treating spouse with cruelty

Cruelty is the most used ground for contested divorce, but the same has not been concretely defined. However, the Courts in India have time and again answered the question to the kinds of behaviours which may constitute cruelty, and also acknowledged the fact of different perspectives which may make one person feel cruelty while the other may not. When a person uses cruelty as ground for divorce in India, they have to prove before the Court the behavioural gaps which led to breaking up the marriage. If the Court is convinced of the suffering of petitioner due to cruel behaviour of the spouse, divorce is granted.

1. Leaving spouse’s company

Desertion is also the most used divorce grounds in contested cases. With hard times in marriage, couples often find it difficult to live together and leave their matrimonial homes, more often the wives. In such cases, the other spouse has two options - either apply for restitution of conjugal rights under Section 9 of HMA, or use desertion as ground for contested divorce under HMA. Such desertion has to be for 2 or more years to be used as a ground for contested divorce.

1. Ceased to be Hindu

For a marriage performed as per Hindu rituals, being a religious marriage, if a spouse ceases to be Hindu and gets converted to some other religion, the other spouse can approach the Court seeking contested divorce. 

1. Incurably of unsound mind

If a spouse can prove before the Court that the spouse they got married to is incurably of unsound mind, which means that the mental capacity of the spouse is not fine and cannot be treated, it may be used as divorce ground. 

1. Suffering from venereal disease

If a person is suffering from an STD - Sexually Transmitted Disease, which is in its communicable form, the other spouse who married that person also has the chances of getting the same if they are in close contact. While some of the STDs are very painful, others could be deadly as well. Thus, the same may be used as grounds for contested divorce in India under the Hindu Marriage Act. 

1. Spouse renounced the world

A marriage is a civil union, when performed under a specific religion, the spouses follow the same religion as husband and wife and run their family. If a person has renounced the worldly pleasures, and has entered a specific religious order, his/her spouse can seek divorce on such ground so as to end the marriage. 

1. Spouse not heard alive

If the whereabouts of a person are unknown to the spouse for the past 7 years or more, and the person is not heard of from the other relatives who would otherwise have been in contact with such person, it could be used as grounds for contested divorce in India, where the aggrieved spouse can approach the Court for ending the marriage. Since the other spouse is unheard for years, it usually comes out as an ex-parte divorce decree. 

1. Cohabitation not resumed after judicial separation

If a Court of Law had earlier passed a decree for judicial separation, and there has been no cohabitation between the two since a year or more, a spouse may apply for contested divorce on such ground. Even Courts understand that if the two have been living separately for more than a year, there are less chances of the two reuniting. 

1. No RCR

If a Court had passed a decree for Restitution of Conjugal Rights, it has been a year since the same and the couple has not reunited, or started living together despite the decree, the same could be a contested divorce ground. 

1. Bigamy

For couples who got married before 1955, this was an exclusive ground for the wives whose husbands were already married previously and had a spouse living, to seek divorce on such grounds. 

1. Husband guilty of rape/sodomy/bestiality

This again being an exclusive divorce ground for the wife, if the husband has been found guilty of committing offences like sexual intercourse without consent of the woman, or unnatural sexual intercourse, or for having sexual intercourse with an animal, the wife may approach the Court for ending the marriage with her husband. 

1. Maintenance decree without cohabitation

If a Court has passed a decree for maintenance under CrPC (now BNSS) or HAMA, and there has been no cohabitation between the husband and wife for the past 1 year, the same could be used as ground for contested divorce in India. 

1. Repudiating the marriage

While the minimum age for marriage under the Hindu Marriage Act is 18 years for a female and punishable otherwise, there are customary practices wherein marriage may be solemnised before 18. In such cases, HMA provides that if the marriage was solemnised before the girl attained the age of 15 years, she may repudiate such marriage before attaining the age of 18 years. 

Contested Divorce under Special Marriage Act

The Special Marriage Act, 1954 is a special law for marriage between a boy and a girl, regardless of their religious beliefs. It may also be called as the first law in Independent India, codifying the law regarding marriages in India, after the concept of civil marriages was excluded from the Hindu Code. That is the reason that the grounds for contested divorce under Special Marriage Act are almost identical to that of the Hindu Marriage Act. The contested divorce Section 27 of SMA also provides an additional ground, where one spouse has been undergoing a sentence of imprisonment of 7 years or more, for an offence under the Indian Penal Code, 1860 (now replaced by the Bharatiya Nyaya Sanhita, 2023).

Irretrievable Breakdown of Marriage

The Supreme Court of India recently devised a new ground for termination of a marriage, being a no-fault divorce. There are times when the married couple has been living separately for a few years, and despite making efforts, they are not able to restore their marital relationship. In such cases, the Court sought to grant divorce under Article 142 of the Constitution of India on the ground of ‘irretrievable breakdown of marriage’. In such cases, the spouse does not need to prove the fault of the other spouse to seek contested divorce, but only needs to prove their irretrievably broken marriage. 

Procedure for Contested Divorce

When one spouse is not ready to end the marriage amicably, the other spouse can still approach the Court through a lawyer. The first step is usually to send a legal notice informing the other spouse of the future legal action of using grounds for contested divorce to get divorce. The lawyer goes on with filing the petition for divorce under one of the grounds based on the applicable laws, be it a religious law or a civil law. The two parties also undergo the mediation process, with an expert trying to mediate and settle the marital dispute. In case of failure of mediation, the parties are heard on both sides, and evidence is considered by the Court. If the petitioner is able to prove one or all the grounds for contested divorce in India, the Court may allow divorce decree.