Legal Strategies to Exit and Unhappy Marriage and start a New Life – How to establish a Strong Case for Divorce

By Aditya Pratap, Advocate at Bombay High Court

An unhappy and loveless marriage can be a frustrating and depressing experience. No spouse wants to waste his or her life putting up with the same tantrums, fights or unhealthy arguments. That is why if you feel that you are stuck in a loveless marriage, its time to put your foot down and move on.

While the final way to exit an unhappy marriage is Divorce, there are several legal routes to achieve that. These include divorce by mutual consent, contested divorce or judicial separation. On the other hand, if the parties decide to save their marriage, then they can go in for counseling or mediation which would help them resolve their differences.

Divorce – Not as Simple as it Sounds:

On paper, divorce appears to be a simple affair. However, difficulties can arise if one spouse decides to continue with the marriage and contest the divorce petition filed by the other. There is heavy pendency of litigation in the family and civil courts where divorce petitions are filed. Cases can last several years before arriving at a judgment, putting parties through considerable strain in the process.

What is Contested Divorce?

When a spouse does not agree to give divorce, it becomes a case of a contested divorce. The burden then falls on the spouse claiming divorce to prove how cruelty, infidelity and other grounds under Section 13 of the Hindu Marriage Act, 1956 are made out. Oral and documentary evidence will also have to be submitted to make out a strong case for divorce.

Why Do Divorce Cases last Several Years?

Cases of a contested divorce can last several years, depleting the warring spouses financially and emotionally. The time taken is directly proportional to the amount of evidence to be submitted, as well as the extent and depth of the legal arguments involved. Further parties also tend to file numerous interim and miscellaneous applications in the process, which require more time from the court to hear and decide.

How to make out a Strong Case of Divorce?

There is one magic word to swing a case – EVIDENCE. The more concrete evidence exists, the easier it will be to obtain a divorce. For example, evidence of spousal cruelty can be obtained in the form of audio or video recordings, CCTV footage and more. Even SMS or WhatsApp messages containing insults and abuses make concrete evidence for proving the cruelty of a spouse, which fulfills the requirements of Section 13 and validates the claim for divorce.

Once documentary evidence is collected, it must be tendered in court by way of a list of documents. These documents will be ‘marked’ as ‘exhibits’ and placed in the court file. Copies will also have to be given to the opposite party, who has a chance to oppose or deny the same.

Oral Evidence: Examination-in-Chief and Cross-Examination

In addition to documentary evidence, parties can rely on the oral evidence of witnesses. These witnesses can include family members, children, domestic help and other persons who have witnessed the house-fights and incidents of cruelty or infidelity.

In order to submit oral evidence, the party will have to submit a list of names of persons whom he intends to call to court. Once a witness appears, the lawyer for the party who called him will conduct the ‘examination-in-chief’. In this process, questions are put to the witness who then gives answers which are then recorded by the judge in the memo.

After the ‘examination-in-chief’ is conducted, the opposite party’s lawyer will ‘cross-examine’ the witness. ‘Cross-examination’ is a challenging stage where the truthfulness and veracity the witnesses statement is put to the test. The opposing lawyer can twist and turn his questions and contradict him in a bid to point out holes in the testimony and discredit the witness in the eyes of the court.

Cases argued by Aditya Pratap

Click to visit Aditya Pratap’s Official Website

Click here to visit and subscribe to Advocate Aditya Pratap’s YouTube Channel

Spread the word
Advocate Aditya Pratap
About Advocate Aditya Pratap 64 Articles
Aditya Pratap is a lawyer practising in Mumbai. He argues cases in the Bombay High Court, Sessions and Magistrate Courts, along with appearances before RERA, NCLT and the Family Court. For further information one may visit his website adityapratap.in or view his YouTube Channel to see his interviews. Questions can be emailed to him at aditya@adityapratap.com.