Divorce When Other Spouse Refuses to Give Divorce

हिंदी में पढ़ें
June 02, 2021
By Advocate Chikirsha Mohanty





What is Divorce?

Divorce is the official or legal separation of two spouses who had been married either by personal laws or Court marriage under the Special Marriage Act. Divoce as an official separation comes from an order of the Court.

Getting the final decree of Divorce from the Court can be a lengthy and expensive procedure. There are certain conditions that need to be fulfilled in order to get Divorce. The courts’ main aim is to reconcile the wedlock and only in the instance that irretrievable breakdown of marriage has occurred will the courts grant Divorce to the spouses.

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Do You Need Consent of Spouse for Divorce?

When both parties agree to get divorce, it is called mutual divorce and is easier and mentally less exhausting than the other kind of divorce. However, it is not mandatory to have the consent of the other party before going for Divorce. One can even seek Divorce when the other party is not willing to give divorce. This is Contested Divorce and a petition for the same can be filed in the Court having appropriate jurisdiction.

Thus, you do not need the consent of your spouse to file a Divorce Petition in the appropriate Court.



Contested Divorce; Meaning and Grounds

Contested Divorce is when only one spouse wants divorce whereas the other party is not willing to get a Divorce. There are some grounds upon which one party can file for Contested Divorce. However, the grounds may slightly differ depending upon the religion (personal laws) of parties or the Statutes under which Divorce is sought for example, Hindu Marriage Act, Christian Divorce Act, Muslim Personal Laws, etc.

Grounds for one-sided or Contested Divorce have been discussed below:



1.Cruelty

Cruelty has been given a wide definition by Indian Courts. Cruelty may be physical or mental. Physical cruelty is the actual hitting / torturing etc., whereas mental cruelty could be the emotional torture that the spouse put the other through. Thus, both mental and physical cruelty are grounds for seeking divorce. Under the Hindu Divorce Laws in India, if one spouse has a reasonable fear in the mind that the partner’s conduct in all likelihood be injurious or harmful, then there is sufficient ground for obtaining divorce due to cruelty by the spouse.

Consult:Top Divorce Lawyers in India



2.Adultery

Although not a criminal offence anymore, adultery is still a ground for divorce. The spouse may file for Divorce on the basis of adultery and cheating. Initially, if a man had committed adultery (i.e. has consensual sexual intercourse outside of marriage) he could have also been charged with a criminal offence under the Indian Penal Code.



3.Desertion

If one spouse deserts the other without reasonable cause, the other one can file for divorce upon this ground. However, the spouse who abandons the other should have an intention to desert and this should be proved by way of evidence as well. As per Hindu laws for divorce, the desertion should have lasted at least 2 consecutive years. For Christians, however, a sole reason of desertion is not a ground for Divorce.



4.Conversion

If one spouse converts to another religion, Divorce can be sought by the other spouse. This ground of Divorce does not require any time to have passed before divorce can be filed.



5.Mental Disorder

If one spouse becomes incapacitated of performing normal daily duties that are required to be performed in marriage due to some mental disorder or illness, divorce on this ground can be sought. However, to invoke this ground it is necessary that normal duties of married life cannot be performed.



6.Communicable Disease

If one spouse suffers from some communicable disease(s) such as HIV, gonorrhoea, etc. or some virulent or incurable form of leprosy, the other spouse can seek divorce on this ground, as per Hindu Divorce Law.



7.Renunciation of the World

If ‘sanyasa’ or renunciation of the world is adopted by one spouse, the other can obtain a divorce on this ground.



8.Presumption of Death

If one spouse has not been heard of being alive for a time period of the last 7 years by individuals who would have heard about such a person if he/she were alive, then the other spouse who is alive can seek to obtain a judicial decree of divorce on this ground.

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What to do if Husband Tortures Wife but does not want Divorce?

If you are being tortured by your husband, whether mentally or physically, you can make a police complaint and also ensure that a medical examination is being carried out to establish the physical torture inflicted by the husband on you. An FIR will be filed under Section 498A of the Indian Penal Code and also under Domestic Violence Act. Thus, a criminal remedy should be a first step. After this, you can seek divorce by filing a petition in the appropriate court (after sending a Divorce Notice as advised by your lawyer) on the grounds of cruelty etc.

It will help your case if you try to record and keep evidence of your husband torturing you. It is also recommended that you hire a lawyer and take their advice as per your facts and circumstances before taking any steps.



How to File for Contested Divorce; Procedure

In order to file for a contested divorce, several steps are to be undertaken including:



1.Preparing of the Divorce Petition

An attorney will prepare your divorce petition after understanding the facts and circumstances of your case.



2.Filing of the Divorce Petition

The husband or the wife seeking to get divorced is required to file a divorce petition before the Court. The lawyer would file it for you and also attach necessary documents proving the marriage and the allegations made in the petition based on which divorce is sought. An affidavit and a vakalatnama bearing the signature of the party contested is also required to be attached with the petition.

Consult:Top Divorce Lawyers in India



3. Scrutiny of the Petition and Notice to Defendant

After the filing of the petition, a date for scrutinizing the petition and for hearing of the same is decided. Opening arguments of the petitioner are heard. If the court is satisfied that the petition is filed with all the requisite documents and the grounds mentioned therein are valid, it would admit the petition and will issue a notice to the defendant for appearance along with a copy of the divorce petition.



4.?Reply to the Petition

After the notice is given to the other party, the defendant will file a reply to the divorce petition and any other applications as required in the matter.



5.Settlements and Negotiations Stage

The court may then direct the parties to resolve their issue through mediation and in case the mediation is not successful the court will continue with the divorce proceedings.



6.Recording of Evidence and Framing of Issues

The court will then continue with the matter and would frame issues and record evidence submitted by both the parties. The evidence and witness will then be cross-examined by both the parties. This part of the procedure is the most crucial part in deciding the fate of the case.

7.Final Arguments and Court’s Decision

After the evidence is recorded and cross-examined, both the parties will submit their final arguments before the court and would fix a date to pronounce the final decision. Then it will give its final verdict on the date fixed by it based on the arguments advanced by both the parties. In case either party is not happy with the judgment, it can file an appeal against the same within 3 months from the date of pronouncement of the judgment.

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Documents Required for Contested Divorce

Documents required to file a contested divorce petition have been listed below:

  1. Address proof of husband and wife

  2. Wedding photographs

  3. Certificate of marriage

  4. Evidence supporting the ground on which divorce is sought

  5. Professional and financial proofs

  6. Details of assets held by husband and wife.



What about Custody of Children in Contested Divorce?

During a contested divorce proceeding, the issue concerning child custodybecomes a matter for the court to decide. The court takes the best interest of the child into account while deciding the custodial rights. The court will decide on the basis of circumstances of every case and for the welfare of the child.



Maintenance and Alimony Matters in Divorce

In a Contested Divorce, the issue of alimony and maintenance is decided on the merits of each case and the court intervenes in these matters. However, the power of the court to grant alimony is not limited to cases where the decree is obtained by the wife. Courts also have the powers to grant alimony/maintenance to wife even where the husband is granted a divorce decree. It is quite possible there may be no alimony/maintenance awarded at all depending upon the facts and circumstances of the case. Assessment of the amount of alimony or maintenance is entirely the court's discretion.

Consult:Top Divorce Lawyers in India



Why do you Need a Lawyer?

Divorce is a stressful time for everyone involved. Getting a Contested Divorce especially can feel like a battle, thus hiring a Divorce lawyer is recommended. While the attorney will need to gather information from you regarding the case, he or she will also take care of all the paperwork, allowing you more time to take care of yourself and your family. An experienced divorce attorney can give you expert advice on how to handle your divorce owing to his years of experience in handling such cases. You can also use LawRato's Free Legal Advice service to get free advice on your case from expert divorce/matrimonial lawyers. A divorce lawyer is an expert on the laws and can help you avoid significant mistakes that may cause financial harm or will require future legal proceedings to correct. Thus, by hiring an attorney a person can make sure that he/she can avoid delay and get the divorce completed as quickly as possible.

References:

  • https://wcd.nic.in/act/2314

  • http://health.delhigovt.nic.in/wps/wcm
    /connect/DoIT/delhi+govt/community/
    marriage+certificate+and+registration

  • https://www.indiacode.nic.in/handle
    /123456789/1560?locale=en

  • https://www.indiacode.nic.in/handle/
    123456789/1387?locale=en

  • https://www.indiacode.nic.in/handle/
    123456789/16225?sam_handle=
    123456789/1362



 

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