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.

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.

Contested/One-Sided Divorce

When one spouse files for divorce and is prepared to separate from the other spouse, but the other spouse does not want to separate, the divorce is contested. In such a situation, the divorce processes are handled in front of a court, and the judge, not the partners, decides on issues like property divison after Divorce, child custody after divorce, maintenance, and Divorce Alimony.

Divorce is a legal procedure to end a marriage when one or both partners cannot live together. There are two types of divorce in India: one-sided divorce and divorce with mutual agreement.

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:

Filing a divorce petition

After seeking divorce advice and determining the appropriate court, an experienced divorce attorney in India must draft a contested divorce petition outlining the issues and problems that have arisen as a result of the marriage, as well as the grounds on which the petitioner wishes to file for divorce. After submitting a legal notice for divorce, The court will issue a summons to the other spouse after filing the divorce petition, alerting them that the spouse has filed for divorce.

Opposing party's reaction

Once the summons has been received, the opposing party must file a response to the petition outlining their viewpoint on a one-sided divorce. If the opposite party does not show up at the hearing, the court may issue a judgment based only on the evidence of one side.

Mediation

Mediation is an informal dispute settlement process run by a trained third party, a mediator. Mediation is intended to bring two parties together to clarify misunderstandings, find concerns, and reach a resolution. The process is voluntary.

Evidence and Proof Submission

 When the court fraes it is called a point of adjudication, A court may ask to submit all the proofs and evidence on these issues. A spoue that filed the petition should first present the evidence. A lawyer of the opposite party carries cross-examination. Then the respondent party submits their evidence before the court finalizes the case for the final argument

When the court frames, it is called a point of adjudication, A court may ask to submit all the proofs and evidence on these issues. A spouse that filed the petition should first present the evidence. A lawyer of the opposite party carries cross-examination. Then the respondent party submits their evidence before the court finalizes the case for the final argument.

Final arguments

After the evidence has been submitted, the parties will conduct final arguments. The final arguments are the essential decisive factors in a court's decision to dissolve a marriage.

Divorce decree

After the court hears all of the arguments, it delivers a final judgment and issues a divorce decree one-sided divorce.

After taking the issue of the divorce, the couple signs the divorce papers. The divorce procedures have finally been completed, and the marriage is officially dissolved. This results in a one-sided divorce where one spouse files a divorce against another, and on service to the other party and his/, her failure to be present, the case will be heard ex- part i.e. in the absence of the other spouse. If adequate reasons and proof are available, the court shall grant a divorce.

Grounds for One-Sided Divorce

The Hindu Marriage Act of 1955 describes the reasons for one-sided divorce. In India, these grounds are widely mentioned in numerous personal and common laws for one-sided divorce:

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

If a spouse has a mental illness that makes it hard to live with them in a marriage, a divorce petition may be filed with the assistance of an Indian divorce lawyer. It will be harder to preserve a marriage if you have mental instability or any mental condition.

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.

Leprosy

Leprosy is a contagious skin ailment that causes physiological breakdown and is a valid ground to oppose a divorce.

Schizophrenia

The Greek word for "divided mind" is where the name "schizophrenia" comes from. Such a victim has confused, warped thoughts. He experiences hallucinations occasionally. People with schizophrenia frequently believe they are being persecuted due to their delusion. They acquire strange and obsessional behaviors.

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.

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.

FAQs

Q.1. What are the requirements for a one-sided divorce?

Ans. All laws provide for some grounds as the basis of one-sided divorce. An individual has to prove at least one of those grounds to get a one-sided divorce.

Q.2. How long does a divorce take if one party doesn't agree? 

In such cases, you can opt for a contested (one-sided) divorce. In a contested divorce, the process takes longer, typically ranging from 3 to 5 years, due to various complications and the possibility that either party may challenge the court's decision.

Understand the factors affecting divorce timelines by reading this article.

Q.3. What happens if one spouse doesn't agree to divorce?

Ans. In cases of one-sided divorce, a petition for the same can be filed in the Court having appropriate jurisdiction, if the other spouse is not ready for a mutual one.

Q.4. Can I marry after a one-sided divorce?

Yes. In mutual and one-sided divorce, you can remarry

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.