One sided divorce in India

In India, A bond between married couples is perceived as a holy relationship of souls. However, when the same marriage becomes a reason for your misery, you can always opt-out of divorce. If there is consent from both partners, it is a divorce under mutual consent. But when one partner seeks separation while the other is unwilling, that's a one-sided divorce, also known as a contested divorce. Let's understand these two sorts of divorce in India in brief.

Quick Legal Updates (What’s changed recently)

• Adultery is no longer a crime (2018), but it still remains a civil ground for divorce.
• Leprosy is no longer a ground for divorce (2019 amendment across personal laws).
• CrPC 125 → BNSS 144: Maintenance applications now run under BNSS Section 144 (from 1 July 2024).
• In rare cases, the Supreme Court can directly dissolve a dead marriage under Article 142 (2023 Constitution Bench & later rulings).

Contested/One-Sided Divorce

It’s a contested divorce - you file alone because your spouse won’t join or doesn’t agree. The Family Court examines your legal grounds and evidence, hears both sides, and then decides.

Prefer a primer first? Read our overview: Contested Divorce in India.

Where can you file (jurisdiction)?

• Family Court where the marriage was solemnised, or
• Where you and your spouse last lived together, or
• Where the respondent currently lives.

Mutual Consent Divorce

A divorce by mutual consent is when the husband and wife jointly decide to separate and sign a joint petition saying they have been apart for more than a year. This type of divorce does not take place in court.

Difference Between Mutual Consent Divorce v/s Contested/One-Sided Divorce

In India, divorce by mutual consent is the quickest, most respectful, and most dignified method of obtaining a legal separation because, in this situation, both partners voluntarily accept all the terms and conditions of their joint petition for legal separation and feel they cannot coexist peacefully together do so. Such a combined petition addresses issues like support, child custody, asset distribution, housing for the spouse, etc.

Only specific legally recognized grounds can be used to file for a contested divorce. These include brutality, adultery, dissertation, conversion, mental illness, and contagious diseases.

Is One-Sided Divorce Possible in India?

Yes, under the Hindu Marriage Act, 1955, the Special Marriage Act, and other personal laws in India, one spouse can file for a one-sided divorce without the consent of the other under certain circumstances. The spouse seeking the divorce must provide evidence to the court, supporting the claim that the marriage has irretrievably broken down. Grounds for such divorce include cruelty, adultery, desertion, mental disorder, or incurable diseases.

Procedure for One-Sided Divorce

Look for a divorce lawyer to get assistance in filing a one-sided divorce. The entire procedure is a matter of discomfort, and it involves the following phases:

Step-by-step process (what usually happens)

1. Consult & assess grounds; pick the strongest, cleanest case theory.
2. Draft & file the petition in the correct Family Court.
3. Court issues notice → spouse files a written statement.
4. Mediation/settlement attempt (Family Courts routinely direct this). If it fails, the case proceeds.
5. Interim applications (maintenance, custody/visitation, residence protection, litigation expenses).
6. Framing of issues → evidence (your affidavit + cross-examination; then spouse’s).
7. Final arguments → judgment & decree.
8. Appeal (if needed) within limitation.

How long does it take?

Realistically, 2–5 years in many cities (faster/slower based on complexity, pendency, and cooperation). For expectations, see our guide: How soon can you get a divorce?

Money matters: maintenance & alimony

• During the case: apply for interim maintenance (HMA Section 24, BNSS Section 144).
• After divorce: permanent alimony (HMA Section 25; similar provisions under other personal laws).
• Rajnesh v. Neha (SC, 2020) standardised income disclosure affidavits and nudged time-bound decisions.

Evidence that really helps

• Medical records, FIRs/complaints, DV orders.
• Photos, chats, emails, call logs (add a Section 65B certificate for electronic records).
• Witness statements (neighbours, relatives, colleagues).
• Financials for maintenance: salary slips, ITRs, bank statements.

Grounds for One-Sided Divorce ( (Hindu Marriage Act examples )

(Other personal laws—Special Marriage Act, Indian Divorce Act for Christians, Parsi Act, and provisions for Muslim couples, have similar or equivalent grounds.)

Adultery

When a spouse gets involved with someone else and maintains a sexual relationship outside of the marriage, this is known as adultery. This is an illegal activity, and adultery in a marriage is a strong ground for one-sided divorce since it goes against the meaning of marriage. Know more about adultery Laws in India

Cruelty

Cruelty is any disturbance, annoyance, or agony placed on one spouse by the other, which may interfere with one spouse's everyday and calm living. Cruelty may take the shape of physical or emotional abuse. Any act of cruelty that peril the spouse's life or health is grounds for a one-sided divorce. Suffering such misery, insults, and suffering is not natural inside a marriage and can be grounds for a one-sided divorce.

Learn More: Cruelty As A Ground for Divorce in India

Desertion

Desertion is described as the purposeful and knowing departure of one spouse by another for no valid cause and with no intention of returning. No intention of returning, lack of authorization from the other spouse, and the fact that the desertion has been continuous for more than two years must all be demonstrated for desertion to be regarded as credible grounds for a one-sided divorce. The other spouse should not have instigated desertion, and the spouse who had left should have done so on his or her own.

Conversion

Conversion to a different religion is another basis for a divorce petition. After changing one's religion, one's beliefs and ideologies may be transformed in line with that religion's teachings. Another spouse is not bound to accept them either and thus can apply for divorce.

Mental Disease

Mental disorder of such kind/severity that cohabitation is unreasonable (e.g., severe schizophrenia with medical proof).

Presumption of Death

If a spouse has not been heard for seven years and is assumed dead, the other spouse has the right to submit a divorce petition. If a person does not choose to wait for his or her spouse to return and wait for an unending amount of time, they are not forced to do so. Because there is no other party to challenge the divorce, it may be granted swiftly.

Renunciation of the world

If one spouse chooses to renounce the world, leaving all worldly things, beliefs, and thoughts behind and refusing to join any particular religion, the other spouse can petition for divorce in court.

Removed/outdated: Leprosy is no longer a divorce ground. “Schizophrenia” is covered under mental disorder

Non- Compliance with the decree of Judicial separation

Either spouse may file for divorce because the parties to the marriage have not resumed living together for at least a year after the court issued a judgment of judicial separation. Resuming cohabitation entails continuing a romantic partnership.

It is undoubtedly a fair reason to assume that cohabitation has resumed if the parties to the marriage are having sexual relations, but that is not sufficient proof for this purpose. A kid born from a single act of sexual contact does not signal the start of a new living arrangement. Without engaging in sexual activity, cohabitation could resume.

Non- Compliance with the decree of restitution of conjugal rights

If there hasn't been a resumption of conjugal rights for at least a year following the issuance of a decree, either party to the marriage may file a divorce petition. Before awarding a divorce order, the court may be satisfied that the petitioner is not ineligible for this privilege due to any restrictions outlined in Section 23 of the Act.

Suppose the husband does not follow the decree and acts positively by mistreating the wife and ejecting her from the home after she wins a decree to restore conjugal rights. In that case, he is not eligible for relief.

According to the ruling in Saroj Rani v. Sudarshan Kumar, the husband is entitled to a divorce under Section 13 of the Act following a decree for the return of conjugal rights, and his inability to live with his wife again would not be considered wrongdoing. However, if the husband obtained an order for restitution of conjugal rights only to file for divorce and eject the wife from home, this constituted misconduct since the husband was profiting from his own mistake and was, therefore, violating the law.

Any way to finish faster?

• Mutual consent is faster when both agree on alimony, custody, and property. It is always by court decree, and the 6-month cooling period can be waived when conditions are met.
• In exceptional cases (long separation + complete settlement + no chance of reunion), the Supreme Court can dissolve the marriage using Article 142. This is not a routine shortcut in trial courts.

Also see: How to get a unilateral divorce and Divorce after court marriage.

Conclusion

The parties should make a mutual divorce their first option. The party may, however, pursue a one-sided or contested divorce on the aforementioned grounds if it is not practicable. In India, a "one-sided divorce" occurs when one spouse refuses to end the marriage. When just one spouse wants out of the marriage but both believe there are grounds for divorce, the divorce is unilateral. One should seek divorce consultation to acquire the best legal counsel from a knowledgeable divorce Lawyers.

About the Author:

Adv. Manan Mehra has a distinguished practice based in Delhi in commercial and civil law, and he is the go to choice for persons involved in consumer disputes. Although he takes on a wide spectrum of cases in all legal fora across the country, keeping clients first and ensuring speedy resolution has earned him distinct reputation in complex matrimonial and property related cases as he has routinely secured favourable outcomes for his clients.