How to get Divorce if one's partner refuses to give Divorce in India?
July 07, 2023 हिंदी में पढ़ेंTable of Contents
- What is Divorce?
- Do you need the consent of your spouse for getting a Divorce?
- What to do if your Husband or Wife denies to give you Divorce in India?
- What to do if the Husband does not want to give Divorce but tortures his Wife?
- What is the process to file for Contested Divorce by Wife or Husband in India?
- What are the documents required for filing a Contested Divorce petition by Husband or Wife in India?
- What about custody of children in a Contested Divorce case?
- What about the maintenance and alimony in a Contested Divorce case?
- How long does a Divorce take if one party doesn't agree to divorce?
- Why do you Need a Lawyer for a Divorce process in India?
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. Divorce is an official separation that 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 a Divorce. The courts’ main aim is to reconcile the wedlock and only in the instance that an irretrievable breakdown of marriage has occurred will the courts grant Divorce to the spouses.
Connect with an expert lawyer for your legal issue
Do you need the consent of your spouse for getting a Divorce?
When both parties agree to get a 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 a divorce. This is a 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.
Consult: Top Divorce Lawyers in India
What to do if your Husband or Wife denies to give you Divorce in India?
If one spouse wishes to obtain a divorce but the other spouse refuses to give it, the spouse desiring divorce from the other can file for a Contested Divorce. Contested Divorce is when only one spouse wants divorce whereas the other party is not willing to give Divorce. In a contested divorce, one party is seeking a divorce while the other party is opposing it. 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, the Hindu Marriage Act, Christian Divorce Act, Muslim Personal Laws, etc.
Grounds for one-sided or Contested Divorce have been discussed below:
-
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 a divorce. Under the Hindu Divorce Laws in India, if one spouse has a reasonable fear in mind that the partner’s conduct in all likelihood is injurious or harmful, then there is sufficient ground for obtaining divorce due to cruelty by the spouse. -
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. consensual sexual intercourse outside of marriage) he could have also been charged with a criminal offence under the Indian Penal Code. -
Desertion
If one spouse deserts the other without reasonable cause, the other one can file for divorce on this ground. However, the spouse who abandons the other should have the 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, the sole reason for desertion is not a ground for Divorce. -
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 a divorce can be filed. -
Mental Disorder
If one spouse becomes incapacitated from 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. -
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. -
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. -
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.
In a contested divorce, the party seeking divorce must prove that the grounds for divorce exist. The court will examine the evidence and make a decision on whether to grant the divorce. The process for a contested divorce can be lengthy and complex.
Connect with an expert lawyer for your legal issue
What to do if the Husband does not want to give Divorce but tortures his Wife?
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 the Domestic Violence Act. Thus, a criminal remedy should be the 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.
Consult: Top Divorce Lawyers in India
What is the process to file for Contested Divorce by Wife or Husband in India?
Stated below is the procedure to file a contested divorce petition:
-
Preparing the Divorce Petition
An attorney will prepare your divorce petition after understanding the facts and circumstances of your case. -
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 are also required to be attached to the petition.
Consult: Top Divorce Lawyers in India
-
Scrutiny of the Petition and Notice to Defendant
After the filing the Petition, a date for scrutinizing the petition and for a 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. -
?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. -
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. -
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 parties. The evidence and witness will then be cross-examined by both parties. This part of the procedure is the most crucial part in deciding the fate of the case. -
Final Arguments and Court’s Decision
After the evidence is recorded and cross-examined, both 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 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.
Connect with an expert lawyer for your legal issue
What are the documents required for filing a Contested Divorce petition by Husband or Wife in India?
Documents required to file a contested divorce petition have been listed below:
-
Address proof of husband and wife
-
Wedding photographs
-
Certificate of marriage
-
Evidence supporting the ground on which divorce is sought
-
Professional and financial proofs
-
Details of assets held by husband and wife.
What about custody of children in a Contested Divorce case?
During a contested divorce proceeding, the issue concerning child custody becomes 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 the circumstances of every case and for the welfare of the child.
What about the maintenance and alimony in a Contested Divorce case?
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 power to grant alimony/maintenance to the 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
How long does a Divorce take if one party doesn't agree to divorce?
The time taken to obtain a divorce in India can vary depending on several factors, such as the complexity of the case, the grounds for divorce, and the court's workload.
In the case of a Contested Divorce, where one party does not agree to the divorce, the process can be longer and more complicated than a mutual consent divorce. Typically, a contested divorce can take anywhere from 6 months to several years to finalize, depending on the circumstances of the case.
During the contested divorce proceedings, both parties will have to present evidence and make arguments in front of the court. The court may also order mediation or counselling to try and resolve the issues between the parties. If the issues cannot be resolved, the court will make a decision on whether to grant the divorce.
It is important to note that the time taken to obtain a divorce can vary significantly from case to case, and it is advisable to consult with a qualified divorce lawyer who can help you understand the process and the time that your specific situation may take.
Why do you Need a Lawyer for a Divorce process in India?
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
These guides are not legal advice, nor a substitute for a lawyer
These articles are provided freely as general guides. While we do our best
to make sure these guides are helpful, we do not give any guarantee that
they are accurate or appropriate to your situation, or take any
responsibility for any loss their use might cause you. Do not rely on
information provided here without seeking experienced legal advice first. If
in doubt, please always consult a lawyer.
The internet is not a lawyer and neither are you.
Talk
to a real lawyer about your legal issue.
Comments by Users
No Comments! Be the first one to comment.
Related Articles
Divorce Law Articles
User Reviews
4.8 - 16 reviews
nicely written. Great work
needed legal advice…who to call
good advice. Who can I contact for my legal issue?
nice one. Please share more info
Good work with the article.
very informative.
Gave a clear understanding about my legal issue.
Very helpful in understanding the law.
Thanks for the detailed article.
learned all the basics about the legal issue. Good article. Keep it up.
Nice piece on the subject.
I want to know more about this law. Good work
very good article. Please provide more information on the subject
more info needed on the law
how to contact a lawyer from your website
it’s a very nice legal article
VIEW ALL