My Husband Has Filed for Divorce and I Have Received the Court Summons: How Do I Contest It?

You contest it by filing a written statement, and the clock on your divorce summons runs from the day you were served, not from the hearing date printed on it. Order VIII Rule 1 of the Code of Civil Procedure, 1908 requires the written statement within thirty days of service, and its proviso lets the court specify a later day, for reasons recorded in writing, but not later than ninety days. That Code reaches your husband's petition, as far as may be and subject to the rules the High Court makes, through Section 21 of the Hindu Marriage Act, 1955 and Section 10(1) of the Family Courts Act, 1984. On the same day as the written statement you file the applications that decide how you live while the case runs, one under Section 24 of the Hindu Marriage Act for maintenance during the proceeding and your litigation expenses, and one under Section 26 for interim custody, maintenance and education of the children.

Part of the family and divorce law practice at S Jain & Attorneys, Bangalore.

This page is for a wife in Bengaluru served with her husband's petition under the Hindu Marriage Act alleging cruelty, with no lawyer engaged yet. Check which law governs your marriage before relying on any section number here. If the marriage was registered under the Special Marriage Act, 1954, the section numbers differ and the FAQ below gives them. Muslim, Christian and Parsi marriages have their own statutes and are outside this page.

Deadline warning. Thirty days, ninety as the outer limit in the proviso, and both run from service and not from the first hearing. The harsher rule people quote, a hundred and twenty days after which the right to file is forfeited, is the Commercial Courts Act, 2015 version of that proviso and governs commercial suits, not a matrimonial petition.

The written statement answers him. The applications ask the court for things. What belongs in each:

How many days do I have to answer the divorce summons, and what happens if I miss the first date?

Thirty days from service, extendable by the court to ninety, and missing the first hearing date is not the same as missing the deadline. In practice the first date is for appearance, and a respondent who appears and asks for time is usually given it. The Supreme Court in Kailash v Nanhku, decided on 6 April 2005 by three judges, set out Order VIII Rule 1 in its current form and held that the rule, though couched in mandatory form, is directory, being procedural, and does not take away the court's power to take a written statement on record. The same judgment is firm about what that means: observance of the schedule is the rule and departure an exception, for satisfactory reasons recorded in writing, the circumstances being exceptional and beyond the respondent's control, never laxity or gross negligence, and the court may impose costs.

Two provisions bite if you do nothing. Order VIII Rule 10 lets the court pronounce judgment against a party who does not file in the time permitted, though Section 23(1) still requires the court to be satisfied that his ground is made out, whether the petition is defended or not, and Order IX Rule 6(1)(a) lets it order the petition heard ex parte where the summons is proved duly served and you do not appear. Order IX Rule 7 is the way back in, by appearing at or before the adjourned hearing and showing good cause. After a decree the route is Order IX Rule 13, which is narrower, because its second proviso bars setting a decree aside merely for an irregularity in service where you had notice of the hearing date and time to appear, as our guide on an ex parte divorce decree explains.

Three dates decide the first three months.

Do I need a lawyer in the Family Court, and can I appear myself?

You may appear yourself. Section 13 of the Family Courts Act says no party to a proceeding before a Family Court is entitled as of right to be represented by a legal practitioner, and the proviso lets the court seek a legal expert only as amicus curiae. The Act is built for a party in person: Section 10(3) lets the court lay down its own procedure to get at the truth of facts alleged by one side and denied by the other, and Section 16 lets formal evidence be given on affidavit. Family Courts in Karnataka do in practice permit advocates, so the real question is whether you can draft a written statement, a Section 24 application and an affidavit of assets within the deadline while the other side is professionally represented.

If cost is the obstacle, read Section 12 of the Legal Services Authorities Act, 1987 before concluding you cannot afford to defend. It entitles listed categories of person who has to file or defend a case to legal services under the Act, and clause (c) is simply a woman or a child, with no income condition attached, while the income figures in clause (h) apply to everyone else. Section 13(1) adds the only real filter, that the Authority be satisfied there is a prima facie case to prosecute or defend. Apply to the District Legal Services Authority for your district, which in practice sits in the court complex.

What does a written statement in a divorce case actually contain?

An answer to every paragraph of his petition, your own version of the facts, your legal objections, the documents you rely on, and a counter-claim if you are making one. Order VIII shapes it. Rule 2 requires you to raise by your pleading every matter showing the petition is not maintainable and every ground of defence which, if not raised, would take the other side by surprise, fraud and limitation among them. Rule 3 says a general denial will not do and that you must deal specifically with each allegation of fact you do not admit. Rule 4 bars an evasive denial and requires you to answer the point of substance.

Rule 5(1) turns carelessness into loss. Every allegation of fact in the petition not denied specifically, or by necessary implication, or stated not to be admitted in your pleading is taken to be admitted, and the court then has a discretion, not a duty, to require an admitted fact to be proved. The stricter regime in Rule 3A applies to commercial disputes of a specified value, so the discipline that protects you is the older one in Rules 3, 4 and 5. Rule 1A requires you to list the documents you base your defence on and produce them with the written statement, and a document that ought to have been produced then cannot be received in evidence later without the court's leave. Section 21C of the Hindu Marriage Act removes one objection to a document, that it is not duly stamped or registered. Section 20(2) matters as you draft, because the verified statements in his petition may at the hearing be referred to as evidence, so read his verification and his pleaded dates closely before you answer them.

He has alleged cruelty. How do I answer allegations that are vague or invented?

Paragraph by paragraph, denying each specifically rather than globally, and where a paragraph gives no date, no place and no witness, deny it and say plainly that no particulars have been pleaded, so it cannot be answered and the petitioner should be put to strict proof. A vague allegation is a weakness in his pleading only if the written statement says so. Where an incident happened but not as described, admit what is true, deny the characterisation and set out what actually happened, with the date.

Then plead the bars. Section 23(1) requires the court, in any proceeding under the Act, whether defended or not, to be satisfied of several things before granting relief, and three are commonly open to a respondent. Clause (a) requires that the petitioner is not in any way taking advantage of his own wrong or disability. Clause (b) requires, where the ground is cruelty, that he has not in any manner condoned it, which matters where the parties lived together after the incidents he now pleads. Clause (d) requires that there has been no unnecessary or improper delay in instituting the proceeding. These are facts you plead now, with dates, because the court must be satisfied about them before it decrees anything. What the ground itself requires is in our guides on cruelty as a ground for divorce and the grounds for a contested divorce, the second written from the petitioner's side of the table.

Common mistake. Filing a short written statement that denies the petition as a whole and promises to explain everything in evidence. Order VIII Rule 5(1) treats an allegation not specifically denied, or stated not to be admitted, as admitted, so the short reply quietly concedes the facts it never addressed, and oral evidence later does not undo a pleading.

Can I claim maintenance and my litigation expenses in his case?

Yes, inside his case and without a separate suit, under Section 24 of the Hindu Marriage Act. It applies where it appears to the court that either spouse has no independent income sufficient for their support and the necessary expenses of the proceeding, and it lets the court order the other side to pay both those expenses and a monthly sum during the proceeding. Its proviso says the application shall as far as possible be disposed of within sixty days of service of notice of it. Litigation expenses are a separate ask from monthly maintenance, and a respondent who omits them funds the case herself.

What you file with it is fixed. In Rajnesh v Neha, decided on 4 November 2020, the Supreme Court directed that the affidavit of disclosure of assets and liabilities annexed to the judgment be filed by both parties in all maintenance proceedings, the claimant filing a concise application with it and the opposite party replying with his own affidavit within a maximum of four weeks and no more than two opportunities, failing which the court may decide the application on your affidavit and the pleadings, and, where he seeks more than two adjournments and the court finds his conduct wilful and contumacious, may consider striking off his defence. It also directed that maintenance in all cases be awarded from the date of filing the application, and that earlier maintenance orders be disclosed, with a set-off considered. The format is in our guide on the assets and liabilities affidavit, and our note on getting a husband's salary details sets out what a court can call for.

Can I file a counter-claim for divorce or judicial separation in his case?

You can, under Section 23A, but it is narrower than it looks. In a proceeding for divorce, judicial separation or restitution of conjugal rights the respondent may not only oppose the relief sought on the ground of the petitioner's adultery, cruelty or desertion, but also counter-claim for any relief under the Act on that ground, and if that adultery, cruelty or desertion is proved the court may give the respondent the relief available on a separate petition. Those three grounds are the gateway. A counter-claim on anything else does not fit the section, and the alternative is your own petition, which Section 21A requires to be heard with his where that petition is itself for divorce under Section 13 or judicial separation under Section 10.

Procedure comes from Order VIII. Rule 6A lets a defendant set up a counter-claim on a cause of action accruing before or after the suit is filed but before the defence is delivered or the time for delivering it has expired, which is why this is the moment to decide. Rule 6B requires you to state specifically in the written statement that you proceed by way of counter-claim, and a pleading that merely alleges his cruelty reads as a defence and nothing more. Rule 6A(4) treats it as a plaint, so it needs its own prayer, verification and court fee. If a decree ending the marriage is not what you want, Section 10 allows judicial separation on the same grounds and Section 13A lets the court, on a cruelty petition, pass that decree instead of divorce where it considers it just, as our comparison of judicial separation and divorce explains.

Our child lives with me. Do I need a separate custody case?

Not for the interim arrangement. Section 26 lets the court in any proceeding under the Act pass interim orders from time to time about the custody, maintenance and education of minor children, consistently with their wishes wherever possible, with a proviso that the application about their maintenance and education be disposed of as far as possible within sixty days of service of notice. Section 7(1) of the Family Courts Act brings custody of and access to a minor within the same court's jurisdiction, so the judge hearing his petition decides where your child lives while it runs. Where there has been violence, Section 21 of the Domestic Violence Act allows temporary custody, sought in this petition through Section 26 of that Act.

A separate petition serves a different object, appointing a guardian of the person or property of a minor, which our guide on a guardianship certificate for a minor child explains. Do not leave the arrangement oral because the child is presently with you. An order recording who the child lives with, who collects from school and when the other parent sees the child removes the argument that you obstructed access. The welfare test is in our guide on who gets child custody in a divorce.

Will the court send us to counselling or mediation first, and must I go?

Expect a referral, attend it, and know that attending is not agreeing. Section 23(2) makes it the duty of the court, in the first instance and in every case where it is possible to do so consistently with the nature and circumstances of the case, to make every endeavour to bring about a reconciliation, and the proviso removes that duty only for grounds in clauses (ii) to (vii) of Section 13(1). A cruelty petition is under clause (ia), so the duty applies to your case. Section 23(3) lets the court adjourn for a reasonable period not exceeding fifteen days and refer the matter to a person named by the parties or nominated by the court.

The Family Courts Act has its own wider power, which is why those fifteen days do not cap a Family Court referral. Section 9(1) requires the court to endeavour in the first instance to assist and persuade the parties towards a settlement and lets it follow such procedure as it thinks fit, subject to any rules the High Court has made, and Section 9(2) lets it adjourn for such period as it thinks fit where a reasonable possibility of settlement appears. None of that obliges you to settle, to resume cohabitation or to meet him alone. If a session is unsafe, say so in writing with dates before the next date and ask for separate timings or for the exchange to go through the counsellor. On privacy, Section 11 of the Family Courts Act requires the proceedings to be in camera if either party asks, and Section 22 of the Hindu Marriage Act makes it unlawful to print or publish matter relating to them. Our note on mediation in family disputes covers what a session is like.

Can I rely on things that happened after he filed, or on incidents I never complained about?

Yes to both, by different routes. Order VIII Rule 8 says any ground of defence which has arisen after the institution of the suit may be raised by the defendant in the written statement, so conduct between his filing and your reply belongs in the pleading as of course. For later events the route is Order VI Rule 17, which lets the court at any stage allow a party to amend a pleading as necessary for determining the real questions in controversy, subject to a proviso barring an amendment application after the trial has commenced unless the court concludes that in spite of due diligence the party could not have raised the matter earlier. That proviso is the reason to put everything you already know into the written statement.

Incidents you never reported are not shut out either. Section 14 of the Family Courts Act lets a Family Court receive as evidence any report, statement, document, information or matter that in its opinion will assist it to deal effectually with the dispute, whether or not it would otherwise be admissible under the Indian Evidence Act, 1872, an Act that Section 170(1) of the Bharatiya Sakshya Adhiniyam, 2023 has repealed, and that reference is now read as one to the Adhiniyam. Admissibility and weight remain two questions, and a record made at the time does more work than a later reconstruction.

What documents and evidence should I gather before the first hearing?

Start with the court papers, because each item feeds a different part of the file:

1. The petition, every annexure, the summons and the envelope or courier slip, because the date of service starts the thirty day clock and may have to be proved.
2. The marriage certificate or proof of the ceremony, and identity documents for you and the children.
3. Your income and expenses for the Section 24 affidavit: salary slips or their absence, bank statements, rent, school fees, medical bills and any loan.
4. Whatever you can lawfully obtain about his income: salary slips, income tax acknowledgements, joint account statements, business registrations and registry details of any property.
5. The children's school and medical records, and anything showing who does the daily care.
6. Dated records of the incidents you rely on: messages with dates visible, call logs, photographs, prescriptions, discharge summaries and any complaint acknowledgement.
7. Your stridhan list with bills and photographs, so the jewellery question is not a word against word contest.
8. A one page dated chronology of the marriage, which is what your advocate drafts from and what makes the Section 23(1) points visible.

Gather it lawfully. Reading his email or cloning his phone is not lawful gathering, whatever it turns up, and it can discredit the material itself, as our guide on evidence in divorce cases and what privacy forbids sets out, and the certificate requirements for electronic material are in our note on WhatsApp chats as evidence in a family court.

Can he withdraw the petition later, and does my claim survive if he does?

He can, and what survives depends on what you filed. Order XXIII Rule 1(1) lets a plaintiff abandon his suit at any time after institution, and Rule 1(4) makes him liable for costs and bars a fresh suit on the same subject matter unless the court permitted withdrawal with liberty to file again under Rule 1(3). Order VIII Rule 6D says a counter-claim may nevertheless be proceeded with where the suit is stayed, discontinued or dismissed. A counter-claim can keep your own case alive. A written statement that only opposes him cannot.

Money behaves differently, and this is where respondents misjudge. On the words of Section 24 the sum is payable during the proceeding, so an order under it is not a standing maintenance order, while Section 25 permanent alimony arises at the time of a decree or after it. What happens to instalments already fallen due when the petition ends is a separate question to take advice on. Two claims do not depend on him: Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023, explained in our guide on maintenance for a wife and children, and monetary relief under the Domestic Violence Act. Running both is permissible, and Rajnesh requires the earlier order to be disclosed in the later proceeding, where the court considers a set-off.

Three claims sit in different places, and which one outlives the petition is the difference between cover and a gap.

How long does a contested divorce take in Bengaluru, and what drives the cost?

Years rather than months once evidence begins, and the cost turns on whether the matter settles at mediation, whether evidence is led and how many interim applications are fought. Treat any quoted figure as an indicative range, because nothing here is fixed by law except the court fee, which is set by State law. Beyond professional fees come certified copies, process charges and days away from work. Where money is the obstacle, the Section 24 expenses head and the Section 12 legal services route both exist, and our guide on divorce cost and timeline breaks the heads down.

On time, the Act is more optimistic than the list of cases. Section 21B requires the trial to be continued from day to day so far as practicable and says endeavour shall be made to conclude it within six months from service of notice on the respondent. That gap is why the interim orders govern your daily life. One date not to assume: for an appeal from a Family Court, Section 19(1) operates notwithstanding the Code of Civil Procedure or any other law and Section 19(3) prescribes thirty days from the judgment or order, while Section 28(4) of the Hindu Marriage Act speaks of ninety days and Section 20 of the Family Courts Act gives that Act overriding effect. Work to the shorter period and take advice on it, as our guide on appealing a family court order explains.

What do respondents get wrong in the first sixty days?

The written statement is treated as the whole case and the applications as paperwork, when it is the other way round, because the Section 24 and Section 26 orders decide how the next few years are lived while the decree is years away. The Section 24 application is held back until a lawyer is engaged, which costs arrears. Denials are drafted generally and in a hurry, which Order VIII Rule 5(1) converts into admissions. Something is signed at a counselling session on the understanding that it is only a draft. The child arrangement is left oral because it is working, until the week it stops working and there is no order to point to. And the document almost always missing at a first consultation is the one page chronology with dates.

Frequently Asked Questions

This article is for general informational purposes only and does not constitute legal advice. Consult a qualified advocate for advice on your specific situation.

Related Guides

See the family and divorce law practice for the work this page describes, the maintenance and alimony page for the Section 24 and Section 26 applications, and the child custody page for the interim arrangement.

• How to Reply to a Divorce Notice in India
• Interim Maintenance During Divorce in India: A Guide to HMA s.24
• Family Court Procedure in India: A Step-by-Step Guide