How To Get A Unilateral Divorce?

A unilateral divorce, or a contested divorce, is a process by which one spouse wishes to terminate the marriage without the consent or cooperation of the other spouse. It is the opposite of a mutual consent divorce, where the parties agree to terminate the marriage. In India, the grounds for divorce are governed mostly by personal laws, such as, the Hindu Marriage Act, 1955; the Special Marriage Act, 1954; the Indian Divorce Act, 1869 (for Christians); the Dissolution of Muslim Marriages Act, 1939; and the Parsi Marriage and Divorce Act of 1936.

In this article, you will get to read about:

• What is Unilateral Divorce?
• Legal Grounds for Filing a Unilateral Divorce.
• Step-by-Step Process to File for Unilateral Divorce.
• Common Legal Challenges In Unilateral Divorce.

What Is Unilateral Divorce?

A unilateral divorce, often referred to as a contested divorce, is a legal process in which one spouse wants to end the marriage without consent or cooperation from the other spouse.

Definition and Explanation of Unilateral Divorce

A unilateral divorce occurs when one spouse petitions a court for divorce on specific legal grounds, while the other spouse either contests the divorce or refuses to turn it into a divorce. If the court hears the case and the petitioner proves the grounds, the divorce will usually be granted, regardless of the objection of the other spouse. That is because it is an adversarial process; it requires the court to make a determination whether the marriage is irretrievably broken based upon the case presented by the petitioner.

Key differences between unilateral and mutual divorce

Common reasons for seeking a unilateral divorce

A spouse might opt for a unilateral divorce when:

• The other spouse refuses to consent to a divorce, despite the marriage being irretrievably broken down.
• There are severe marital issues, such as domestic violence, infidelity, or abandonment, which the petitioner believes warrant a legal separation.
• The spouses cannot agree on terms of separation, child custody, or alimony, making mutual consent impossible.
• One spouse has committed an act that constitutes a legal ground for divorce (e.g., adultery, cruelty).

Legal Grounds For Filing A Unilateral Divorce

The specific legal grounds for divorce vary slightly depending on the personal law applicable to the couple. However, some common grounds are recognized across most Indian personal laws:

• Cruelty (Section 13(1)(ia) of the Hindu Marriage Act, 1955; Section 27(1)(d) of the Special Marriage Act, 1954): This can be physical or mental cruelty that causes a reasonable apprehension of danger to life, limb, or health, or which makes it impossible for the petitioner to live with the respondent. Examples include persistent harassment, abuse, false accusations, or denying access to children.
• Adultery (Section 13(1)(i) of the Hindu Marriage Act, 1955; Section 27(1)(a) of the Special Marriage Act, 1954): If one spouse has had voluntary sexual intercourse with any person other than his or her spouse.
• Desertion (Section 13(1)(ib) of the Hindu Marriage Act, 1955; Section 27(1)(b) of the Special Marriage Act, 1954): When one spouse has deserted the other for a continuous period of at least two years immediately preceding the presentation of the petition, without reasonable cause and without the consent of the other spouse.
• Conversion (Section 13(1)(ii) of the Hindu Marriage Act, 1955): If one spouse has converted to another religion and ceased to be a Hindu (or their original religion, as per applicable law).
• Incurable Mental Illness (Section 13(1)(iii) of the Hindu Marriage Act, 1955; Section 27(1)(f) of the Special Marriage Act, 1954): If one spouse has been continuously or intermittently suffering from a mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.
• Virulent and Incurable Form of Leprosy (Section 13(1)(iv) of the Hindu Marriage Act, 1955; Section 27(1)(g) of the Special Marriage Act, 1954): If one spouse has been suffering from a virulent and incurable form of leprosy.
• Venereal Disease in a Communicable Form (Section 13(1)(v) of the Hindu Marriage Act, 1955; Section 27(1)(h) of the Special Marriage Act, 1954): If one spouse has been suffering from a venereal disease in a communicable form.
• Renunciation of the World (Section 13(1)(vi) of the Hindu Marriage Act, 1955): If one spouse has renounced the world by entering any religious order.
• Presumption of Death (Section 13(1)(vii) of the Hindu Marriage Act, 1955; Section 27(1)(c) of the Special Marriage Act, 1954): If the other spouse has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him or her if he or she had been alive.

How To Establish Valid Grounds For Divorce?

Establishing valid grounds requires presenting concrete evidence to the court. This can include:

• Witness testimony: Friends, family, or professionals who have observed the behaviour.
• Documentary evidence: Letters, emails, messages, medical reports, police complaints, bank statements, or property documents.
• Photographic or video evidence: If relevant and admissible.
• Expert reports: For mental illness, medical conditions, etc.
• Police reports: In cases of domestic violence or harassment.

Process To File For Unilateral Divorce

To obtain a contested divorce in India, one must consult a family lawyer, file a detailed divorce petition in the appropriate Family Court, ensure proper service of summons to the spouse, respond to any contesting replies, participate in mediation or trial proceedings including evidence and cross-examinations, and finally, await the court’s judgment and issuance of the divorce decree.

Step-by-Step Process

The procedural steps for filing a unilateral divorce are as follows:

Step 1: Consult a divorce lawyer or legal expert

This is the most critical first step. A lawyer specializing in family law will:

• Assess your situation and advise you on the applicable personal laws.
• Determine if you have sufficient grounds for a unilateral divorce.
• Explain the legal process, timelines, and potential challenges.
• Help you gather necessary documentation and evidence.

Step 2: Prepare and file the divorce petition in family court

Your lawyer will draft the divorce petition, which is a formal document outlining:

• Your personal details and those of your spouse.
• Details of your marriage, including the date and place of marriage.
• The specific legal grounds for divorce are cited.
• A detailed narration of the facts supporting these grounds, along with supporting evidence.
• Any prayers for relief, such as alimony, child custody, or property division. The petition will be filed in the appropriate Family Court, which has jurisdiction over your case (usually where the marriage was solemnized, where the respondent resides, or where the parties last resided together).

Step 3: Serving Divorce Papers

After the petitioner has filed their divorce petition, the court will issue a summons to the respondent (your spouse). Those papers must be served on your spouse as soon as you can so they will have notice of the divorce, so they are informed about the proceedings. This could be done as a personal service by a court bailiff, sent by registered post, or by certain alternatives, such as substituted service, if you cannot find your spouse. Proper service must be done to give your divorce papers legal effect.

Step 4: Responding to Contested Divorce

Upon receiving the summons, the respondent has a stipulated period (usually 30 days) to file a written statement (reply) contesting the divorce petition. In their reply, they will either admit or deny the allegations made in the petition and may also raise counter-allegations.

Step 5: Court hearings and spouse’s response

• Conciliation/Mediation: Before proceeding with the trial, the court often refers the parties to mediation or conciliation, especially in Family Courts. The aim is to explore possibilities of reconciliation or a mutual settlement.
• Issues Framing: If conciliation fails, the court frames issues for determination, which are the points of dispute that need to be proven by evidence.
• Evidence and Cross-Examination: Both parties present their evidence, which includes their own testimony (examination-in-chief) and the testimony of their witnesses. The opposing party then has the right to cross-examine the witnesses. This is a crucial stage where the truth of the allegations is tested.

Step 6: Final hearing and divorce decree issuance

• Final Arguments: After all evidence has been presented and cross-examination completed, both parties' lawyers present their final arguments, summarizing their case and reiterating their claims based on the evidence.
• Verdict/Judgment: The court then pronounces its judgment, granting or dismissing the divorce petition based on the evidence and arguments presented.
• Divorce Decree: If the divorce is granted, a divorce decree is issued, formally dissolving the marriage. This decree is a legally binding document.

Documentation Required for Unilateral Divorce

The documents required for Unilateral Divorce are as follows:

• Marriage Certificate.
• Proof of residence of both parties.
• Identity proof of both parties.
• Photographs of the marriage.
• Evidence supporting the grounds for divorce (e.g., medical reports, police complaints, letters, emails, call records, financial statements, witness affidavits).
• Details of any children, if applicable (birth certificates).
• Income and asset details of both parties for alimony and maintenance claims.
• Bank statements.
• Any pre-nuptial agreements, if applicable.

How Long Does A Unilateral Divorce Take?

In India, a one-sided or unilateral divorce could be a long process, from 2 up to 5 years, or longer, especially if the matter is complicated or goes through an appeal. The period can vary for different reasons:

• Caseload of the court: Busy courts can lead to delays in scheduling hearings.
• Complexity of the case: Cases involving extensive allegations, numerous witnesses, or intricate financial disputes take longer.
• Cooperation of parties: While one-sided, the degree of cooperation (or obstruction) from the respondent can impact timelines.
• Availability of lawyers and judges.
• Appeals: Either party can appeal the court's decision to a higher court, further extending the process.

Common Legal Challenges In Unilateral Divorce

• Proving Grounds: The biggest challenge is successfully proving the alleged grounds for divorce with sufficient evidence to support the claim. The burden of proof lies heavily on the petitioner.
• Lack of Cooperation from Respondent: The respondent might deliberately delay proceedings, avoid receiving summons, or refuse to appear in court, causing significant hindrances.
• Emotional and Financial Strain: The prolonged and adversarial nature of a unilateral divorce can be emotionally draining and financially exhausting for both parties.
• Alimony and Child Custody Disputes: These issues often become highly contentious, requiring extensive negotiation or court intervention.
• False Allegations/Counter-Allegations: Parties may make false claims or counter-allegations to strengthen their case or discredit the opposing party, thereby complicating the legal process.
• Jurisdictional Issues: Determining the correct court jurisdiction can sometimes be a challenge, especially if spouses reside in different cities or countries.
• Enforcement of Orders: Even after a decree, enforcing orders regarding alimony or child custody can sometimes be difficult if one party is uncooperative.

Relevant Case Laws

A few case laws are:

Sureshta Devi v. Om Prakash

In the case of Sureshta Devi v. Om Prakash, the Supreme Court held that the consent of both parties is a "sine qua non" (essential condition) for a decree of divorce by mutual consent under Section 13B of the Hindu Marriage Act.

Parties

• Appellant: Sureshta Devi (Wife)
• Respondent: Om Prakash (Husband)

Issues

The central issue before the Supreme Court was whether a party to a petition for divorce by mutual consent, filed under Section 13B of the Hindu Marriage Act, 1955, can unilaterally withdraw their consent before the final decree of divorce is passed. The High Court had held that consent, once given, could not be unilaterally withdrawn if it was otherwise free, and had granted a divorce. The wife appealed this decision.

Judgment

The Supreme Court allowed the appeal, setting aside the High Court's decree of divorce. The Court meticulously analyzed Section 13B of the Hindu Marriage Act, which provides for divorce by mutual consent.

The Court held that:

1. Mutual consent is a "sine qua non" (an essential condition) for obtaining a decree of divorce under Section 13B. This consent must continue to subsist at the time the court makes the "second motion" (after the statutory cooling-off period of six to eighteen months) and passes the final decree.
2. The filing of the initial petition under Section 13B(1) merely signifies the parties' intention to seek divorce by mutual consent. It does not automatically grant the court the power to dissolve the marriage.
3. The period of six to eighteen months provided in Section 13B(2) is a crucial interval for the parties to have a "second thought" and potentially reconcile.
4. If one of the parties unilaterally withdraws their consent during this interregnum period, the court loses its jurisdiction to grant a decree of divorce by mutual consent. The concept of "mutuality" and "consent" is fundamental to Section 13B, and if either party is unwilling, the divorce cannot be forced upon them on this ground.

Mary Sonia Zachariah v. Union of India

In the case of Mary Sonia Zachariah v. Union of India, the Kerala High Court held that the discriminatory provisions of Section 10 were unconstitutional as they violated Articles 14, 15, and 21 of the Constitution, which guarantee equality and right to life with dignity.

Parties

• Petitioner: Mary Sonia Zachariah (a Christian woman)
• Respondents: Union of India and others (including her husband and other interested parties/organizations who intervened)

Issues

The primary issue in this landmark case was the constitutional validity of Section 10 of the Indian Divorce Act, 1869, particularly as it applied to Christian women seeking divorce.

Specifically, Section 10 at that time stipulated different grounds for divorce for Christian husbands and wives:

• A Christian husband could obtain a divorce on the sole ground that his wife was guilty of adultery.
• A Christian wife, however, had to prove adultery on the part of her husband coupled with an additional aggravating circumstance, such as cruelty or desertion, or bigamy, or certain heinous sexual offenses.

The petitioner contended that this distinction was discriminatory, arbitrary, and violated her fundamental rights to equality (Article 14), non-discrimination (Article 15), and life with dignity and personal liberty (Article 21) under the Constitution of India.

Judgment

The Kerala High Court delivered a significant judgment, holding that the discriminatory provisions of Section 10 of the Indian Divorce Act, 1869, were unconstitutional.

The Court observed that:

• The requirement for a Christian wife to prove adultery coupled with another matrimonial offense placed an undue and often impossible burden on her. Proving adultery itself can be difficult, and demanding additional proof of cruelty or desertion made it virtually impossible for many Christian women to obtain a divorce even in cases of genuine marital breakdown.
• This distinction created an unequal playing field between Christian husbands and wives, solely on the basis of sex, which was a clear violation of Articles 14 and 15 of the Constitution.
• The archaic nature of the Indian Divorce Act, a colonial-era law, had not kept pace with more progressive matrimonial laws enacted for other communities in independent India (like the Hindu Marriage Act, 1955, and the Special Marriage Act, 1954), which provided more equitable grounds for divorce.

To rectify the constitutional infirmity, the Court severed the offending discriminatory clauses within Section 10. The effect of the judgment was that Christian women could thereafter seek a divorce on grounds that were similar to those available to Christian men, including adultery as a standalone ground.

Conclusion

Getting a unilateral divorce in India can be legally complicated and take time, due to legal procedural requirements, strong evidentiary requirements, and good legal representation. While imperfect, it does enable individuals to access a legal path out of a broken marriage when both sides cannot agree on annulment. Anyone contemplating a unilateral divorce should understand the legal grounds, the steps to go through, and the risks involved. There is no time wasted in contacting professional legal advice from a family lawyer from the first day of exercising a unilateral divorce, to get it right.

FAQs

A few FAQs are:

Q1. Can I get a divorce if my spouse doesn't agree in India?

Yes, you can get a divorce even if your spouse doesn't agree, by filing a unilateral or contested divorce petition in court based on legally recognized grounds such as cruelty, adultery, or desertion.

Q2. What are the strongest grounds for unilateral divorce in India?

The "strongest" ground depends on the specific facts and available evidence. However, common grounds that frequently lead to successful unilateral divorces include proven cruelty (physical or mental), adultery, and desertion for the statutory period.

Q3. Is adultery a valid ground for unilateral divorce in India?

Yes, adultery is a valid ground for unilateral divorce under most personal laws in India, including Section 13(1)(i) of the Hindu Marriage Act, 1955.

Q4. How much does a unilateral divorce cost in India?

The cost of a unilateral divorce can vary widely, but it is generally significantly higher than a mutual consent divorce. It can range from ₹50,000 to several lakhs, depending on the complexity of the case, the duration of the litigation, and the fees of your legal counsel.

Q5. Can a unilateral divorce be challenged after it's granted?

Yes, a unilateral divorce decree can be challenged by filing an appeal in a higher court within the stipulated time limit, usually 90 days from the date of the decree.

Q6. What is the role of mediation in a unilateral divorce?

In many Family Courts, mediation or conciliation is a mandatory step before proceeding with a contested divorce. The court refers the parties to a mediator to attempt reconciliation or reach a mutually agreeable settlement on issues like alimony and child custody, thereby avoiding a lengthy trial.

Disclaimer: The information provided here is for general informational purposes only and should not be construed as legal advice.

For personalized legal guidance, please consult with a qualified divorce lawyer.