In divorce proceedings, the most complex and emotionally drenching issue is that of child custody. Children, young and at times infant have to bear the pain for no fault of theirs. Due to the extreme emotional attachment, both parents want to keep the custody of the children. In Indian set-up, such question is decided by the court of Guardian and Wards. Welfare of the children is the paramount consideration before the Court while deciding the question as to who is entitled to have the custody of children. Custody of children can be divided in to three parts:

1) Permanent Custody: After determining all issues, Court grants permanent custody of children to one of the party.

2) Interim Custody: During the pendancy of the case and otherwise, court can grant interim custody to one of the spouse. It is also possible that Court grants interim custody of children to the other parent at the times of vacations, holidays etc.

3) Visitation Rights: Every parent has inalienable right to meet and see his/her children. Even after winning the case of custody of children by one parent, other parent can not be denied the right to meet and see his/her children. In disposing of such cases, Court awards reasonable visitation right to the other parents and fix up the time and days for the meeting with his/ her children so that the emotional ties are not broken between the child and the other parent.

Contested Divorce implies party desirous of divorce approach the family Court/Civil Court for the dissolution of marriage. Spouse seeking divorce has to take one of the grounds provided under the law of contested divorce.

There are different laws dealing with contested divorce for different section of the Society. Hindu Marriage Act,1955 provides ground for divorce for Hindus which includes Sikh, Jain and Budh religion. Indian Divorce Act,1869, provides grounds for divorce for Christian. Special Marriage Act provides grounds for divorce for people married under civil law and whose marriages are registered under Special Marriage Act,1954. Broad grounds for Divorce are as under:-

1. Divorce on the ground of Adultery

2. Divorce on the ground of Cruelty

3. Divorce on the ground of Desertion

4. Divorce on the ground of Conversion to another religion

5. Divorce on the ground of Unsoundness of mind or mental disorder

6. Divorce on the ground of Virulent and Incurable form of leprosy

7. Divorce on the ground of Venereal disease

8. Divorce on the ground of Renounce the World

9. Divorce on the ground of Not heard for a period of seven years or more

10. Beside above, there are couples of additional grounds for divorce available only to female.

CONTESTED DIVORCE PROCEDURE:

Contested Divorce proceedings commences with filing of Divorce petition. Family Court/Civil Court causes a notice to be served on the opposite party for appearance.

On receipt of summons, opposite party has to appear in person and/or through divorce lawyer and file the response.

Court may try to resolve the differences between parties to start with by conducting conciliation or sending the matter to counselor/mediation center. If there is no settlement between parties, divorce case proceeds as per procedure.

Once initial allegation and response and counter allegations process are over, which is called pleading, case is set up for evidence after determining issues of controversy between parties.

Party initiating contested divorce has to start with the evidence first. Other party is given a chance to cross examination witness/es of the opposite party.

After that responding party i.e. Respondent has to lead evidence. Similarly, cross examination process is conducted by the divorce lawyer of opposite side.

After conclusion of evidence, Final arguments are advances by divorce lawyers from both sides.

Then the court pronounces judgement. If party initiating divorce is able to prove the case, Family Court/Civil Court will grant the decree of Divorce.

Contested divorce requires expert divorce lawyer either in prosecuting or defending divorce case. Such expert divorce lawyer guides, strategize and plan the whole action. Effective planning by divorce lawyers increases the probability of success in the trial of the case for a favorable outcome.

Contested Divorce is a long process requiring through professional work and approach. Good Divorce lawyer take through these challenging and arduous task by his/her expertise and your counsel through turbulent and emotional time.

Divorce by Mutual Consent is the simplest and easiest way of dissolving a marriage. For easy understanding, the procedure for mutual consent divorce is laid down as under: –

1. Both parties, i.e., husband and wife, have to reach a mutual understanding and agreement regarding the terms and conditions of divorce.

2. On the basis of settlement and agreement, a petition for mutual consent is drafted. Under Hindu Marriages, such a petition is filed under section 13 B of the Hindu Marriage Act. Under Christian Marriages, section 10 A of the Indian Divorce Act Under secular or civil marriages, section 28 of the Special Marriage Act

3. A Divorce Petition will be drafted, which will include terms of settlement agreed between the parties.

4. Such Mutual Consent Divorce Petition shall be filed in the Court as court procedure.

5. A matter will come up for hearing in the court and, generally, parties have to be present before the court and their statements are recorded.

6. After the recording of statements, the first motion will be passed.

7. The court gives six months’ time to the parties to reconsider their decision. This is called the “cooling period” generally. Second Motion is set up.

8. The aforesaid steps shall be repeated. Statements of the parties will be recorded again.

9. After such a recording of a statement, the court will grant a passing order and judgement. The decree for divorce is then granted.

DIVORCE BY MUTUAL CONSENT, BY POWER OF ATTORNEY & VIDEO CONFERENCE

Some states, like Delhi, allow the statements of one party to be recorded through power of attorney. Some courts, along with powers of attorney, also conduct video conferencing for Mutual Consent Divorce. This process is quite useful and advisable in the case of a party or parties living outside India. Thus, divorce by mutual consent for non-resident aliens is possible without physical presence. It saves time, energy, and money. Six-month Waiver in Mutual Consent Divorce: – The law specifically provided a six-month gap or waiting period between the first and second motion. Prior to 2009, compliance of six months’ waiting was not mandatory. But, in 2009, the Supreme Court made it mandatory and took away the power of the Family Court or the District Court to waive the period of six months. But, the Supreme Court still has the power to waive the period of six months. Thus, the Supreme Court is the only court which has the power to dissolve a marriage in less than six months.

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