How to Get Divorce in India Without Mutual Consent

How to Get Divorce in India Without Mutual Consent – Contested Divorce Guide

For Hindus in India, divorce is enforceable in two ways under the Hindu Marriage Act, 1955. They are listed below:

  • One way is through mutual consent under Section 13B of the same act.
  • The other way is through the wish of any one of the parties involved.
  • In the event that one of the parties in a marriage is unwilling to give divorce, the option left is to take the case to court and fight for divorce there. Such a divorce is known as a contested divorce.

Any marriage that was solemnized under the Hindu Marriage Act, 1955 can be dissolved by a decree of divorce when a petition is presented by either spouse to the court. It can be done on the basis of grounds mentioned below-

The grounds for divorce without mutual content that are applicable to the husband and wife both

Under the Hindu Marriage Act, if one of the spouses has sexual intercourse with someone else once the marriage has been solemnized, it is a valid ground for seeking divorce without mutual consent.

  • If a partner treated his spouse cruelly once the marriage was solemnized.
  • If at the time of filing the petition the other spouse has deserted him/her for a period of at least two years.
  • The other spouse gave up Hinduism to convert to another religion
  • In case the other spouse has an incurably unsound mind or has a continuous or intermittent mental disorder to an extent that it may no longer be reasonable for the petitioning spouse to continue with the marriage. A mental disorder could mean a mental illness or that the mind has not developed completely. Disorders of disability of the mind or psychopathic disorders include schizophrenia. A psychopathic disorder usually means a persisting disability of mind which leads to behaviour that is abnormally aggressive or conducting oneself irresponsibly. The degree of the disorder and whether or not medical treatment is required could also qualify as grounds for divorce without mutual consent.
  • The other spouse suffers from a serious, incurable and virulent form of leprosy.
  • The other spouse has been suffering from a communicable form of a venereal disease.
  • The other spouse has entered a religious order and renounced the world as a result of that.
  • The spouse has been missing for seven years or more and no one has heard of or seen him/her alive in that period.

In addition to the grounds stated above, either spouse may get a divorce without mutual consent under the following grounds as well.

  • If, even one year or more after the decree for separation has been passed, the couple did not resume living together.
  • Even after one year or more of the passing of a decree for restitution of conjugal rights, there has been no restitution of conjugal rights between the two parties.

Rights accorded (only) to women for divorcing their husbands

Under the Hindu Marriage Act, 1955, a wife can fight for divorce without mutual consent on the grounds stated below:

  • If the husband married someone else while he has been married to the petitioning spouse, or if the husband has a wife from a previous marriage and the wife is still alive while the petitioner is filing for divorce.

The pre-requisites of this particular section are:

  • Having a husband or a wife who is still alive.
  • The spouse marries again without being divorced.
  • Such a marriage should be deemed void because it took place while the already wedded spouse’s spouse was still alive.
  • If the husband has been guilty of rape, bestiality, sodomy, since the marriage had been solemnized.
  • In case the spouse has been involved in sexual intercourse with a third person after marriage.

Under Section 13 (1) (i) of the Hindu Marriage Act, 1955, a single act of voluntary sexual intercourse by a spouse with a person other than their partner qualifies as a ground for divorce without mutual consent. Unless it can be proved that the spouses has no access to each other when they could have actually been together, a child born during the course of the marriage happens to be conclusive proof of legitimacy. For instance, a wife had been living separately from her husband since June, 1900 and gave birth to a child on 1st May, 1904, is proof that the wife had sexual intercourse with a third person voluntarily and a valid ground for divorce without mutual consent.

Cruelty includes two types: mental as well as physical cruelty. Actual physical harm or a reasonable apprehension of it was thought to be the major ingredient of this kind of matrimonial offence. Thankfully, however, that doctrine has been revised to include mental cruelty too because it may be even more grievous to the affected spouse and also give rise to reasonable apprehension in the injured spouse’s mind, making it unsafe to cohabit with the other spouse.

For cases falling under mental cruelty, the principle followed is that cruelty can be inferred from the kind of interaction the spouses had, matrimonial relations and other such evidences. Evidence of such nature can be very compelling to get divorce without mutual consent.

Therefore, mental cruelty is established from the facts available. Cruelty by one of the spouses also leads to reasonable apprehension in the other spouse’s mind that it would be unsafe for him/her to prolong the marriage with the spouse guilty of cruelty. Thus, cruelty is a valid reason for seeking divorce without mutual consent.

Now let us discuss the above grounds of divorce

If at the time of filing the petition the other spouse has deserted him/her for a period of at least two years then this is a valid ground for divorce

Desertion essentially means abandoning or intentional forsaking your spouse with their consent or with no reasonable cause in mind. Desertion counts as the complete repudiation of the obligations that are a part and parcel of marriage. Basically, desertion is not withdrawing from a place but from a state of how things are.

To obtain a divorce under grounds for desertion, the petitioning spouse must provide evidence that their spouse deserted him or her (continually) for at least two years or more. It must also be established by the petitioner that this was done without a logical explanation or his/her consent.

It must be noted that when a Hindu ceases to be a Hindu because he/she has converted to another religion, the children they bear post conversion stand disinherited from their or their Hindu relatives’ property, unless these children are Hindus when succession opens.

The Other Party in a Marriage is of Unsound Mind, Or has Been Suffering Continuously or Intermittently from Mental Disorder – A Valid Ground for Divorce

Although Section 13(1) (iii) of the act mentions mental disorders, the mere presence of a mental disorder cannot in itself stand as a ground for divorce or dissolution of marriage. The degree or intensity of the problem needs to be established. Only once the unsoundness of mind has been properly assessed can the divorce proceed forward.

The extent of the mental disorder must be such that the petitioner can no longer expect to live with their spouse reasonably. Every mental abnormality cannot be acknowledged as grounds for granting divorce.

Had the mere presence of any degree of such disorders or abnormalities been able to justify dissolution of marriages, only a handful of marriages would have survived the mandates of law.

In cases where the spouses are young and the mental disorder is established to be of a kind that procreation of children or sex is impossible, this may give a compelling ground for the marriage being nullified as begetting children is one of the foremost aims of Hindu marriage in which “samskara” of marriage is advisable for creating offspring and progeny.

The Other Party has been Suffering from a Virulent and Incurable Form of Leprosy – A Valid Ground for Divorce

Leprosy is a chronic, contagious and infectious disease that results in disfigurement. It is one of the causes of permanent disability primarily is a disease of those who are poor.

Most matrimonial laws of communities in India recognize leprosy as a ground for divorce or judicial separation. A virulent and incurable form of leprosy is a valid ground for being granted divorce without mutual consent. Since it is a venereal disease, the question whether the petitioner had communicated the disease to the respondent or not now stands immaterial.

Renounced the World by Entering any Religious Order – A Valid Ground for Divorce

Requirements for this ground are:

  • The respondent having renounced the world
  • The respondent entering into a holy order

Renunciation means that a person has given up on the world by not taking interest in worldy affairs or retiring to a single room, taking a vow of celibacy and withdrawing from cohabitation, or becoming a “mauni” but not joining a holy order. A spouse undertaking any of these activities will not be covered by this clause, even though his/her conduct amounts to cruelty and desertion.

A person cannot file for divorce without mutual consent under this cause until and unless the second condition is fulfilled too.

An individual enters a holy or religious order once he/she has undergone the ceremonies and rites that are prescribed by the order he/she has entered.
Becoming a “chela” of a guru does not amount to either renouncing the world or entering intoa holy order. Declaring oneself as a sanyasi or dressing up as one does not necessarily make the person a perfect sanyasi.

Other Party 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 It, If the Party had Been Alive – A Valid Ground for Divorce

To quote the circumstances of a case, a woman sought divorce without mutual consent. She was 24 years old when she had been married. The marriage lasted for no more than four or five months as she finally was compelled to leave the matrimonial home. In her case, the marriage was also not consummated as the spouse was not in a position to do so. Both the parties have been living separately since the year 1993 and 13 years have passed since they last saw each other. Since the spouses have gone beyond the point of no return, coming up with a feasible solution was definitely not possible. At this stage, the spouses cannot even bring themselves to a point of reconciliation and live together thereafter. The woman who filed for divorce has done her PhD.
In light of these events, the court granted the woman a divorce.

After Judicial Separation, No Resumption of Cohabitation for One Year or More – A Valid Ground for Divorce

Judicial separation is understood as a couple being legally married but choosing to stay separately in different houses.

Sexual intercourse between the spouses during the course of separation may make one assume that the couple is cohabiting again but this cannot be considered as concrete evidence of it.

Once judicially separated, if the matter is not contested or retrieved in court, then it is in the best interest of the couple as well as justice that they end their marriage as soon as possible.

In case the wife had obtained the decree for restitution of conjugal rights and it was not responded to, by the husband, divorce without mutual consent will be granted even if the wife wanted to resume cohabitation and the husband was not in favour of it.

If either party proves that even after a year there has been no resumption of cohabitation between them then this will be sufficient grounds for divorce.

No Restitution of Conjugal Rights for One Year or More – A Valid Ground for Divorce

Marriage between two parties is pre-supposed when it comes to the remedy of restitution of conjugal rights. Under Hindu law, marriage is considered a holy union and the relationship between the spouses gives them certain marital rights and there is an imposition of marital duties upon the husband and wife. The petitioner who is applying for restitution is required to prove two things:

The other spouse has withdrawn from the society of the petitioning spouse. The withdrawal came without reasonable explanation.

Restitution of conjugal rights may be ordered by the court if it is content with the veracity of the statements that were made in the petition and the court can find no legal ground as to why the decree should not be granted. The court’s power to grant a decree for restitution of conjugal rights is completely discretionary. Non-resumption of cohabitation for one year or more, after the decree for restitution of conjugal rights has been passed, is a ground for divorce that can be availed by to either spouse under Sections of Hindu Marriage Act.

A Wife has These Following Absolute Grounds to Seek Divorce – Section 13(2)

1. When husband is already Married – Section 494 of IPC specifies that a woman can seek divorce without mutual consent if it is found that the husband is already married.

Marrying again when your spouse is alive or marrying someone by concealing the fact that you are already married renders the most recent “marriage” as void. Punishment in form of imprisonment for up to seven years and even a fine will be imposed when found guilty. There are three kinds of decrees that can generally be obtained. They are restitution of conjugal rights, judicial separation and divorce. Almost all of these can be availed by both the spouses nut those under Section 13 (2) are available only to the wife. Cases where a husband is already married and yet enters into the bond of marriage are considered valid for divorce without mutual consent. This particular section is empowering for women since there are many cases where conversion of Hindu men to Islam for the sole purpose of marriage was observed.

2. Husband guilty of Rape, sodomy, bestiality – The second provision available only to women for obtaining divorce is when the husband has been subjecting the wife to sodomy, bestiality or rape since the marriage was solemnized.

3. Married before 15 and repudiated the marriage before the age of 18 – Under the Hindu Marriage Act, in cases where a woman proves she was married before the age of 15 and repudiated the marriage before she attained the age of 18 is a legitimate ground for seeking divorce without mutual consent.

To avail this provision the marriage ought to have been solemnized before attaining the age of 15 and she is required to repudiate the marriage before having attained the age of 18. The conditions for a Hindu marriage are stated in Section 5 of the Hindu Marriage Act, 1955.

Section 5(3) states that the bridegroom should have attained the age of 21 years and the bride 18 years, at the time of marriage. It should be noted that the breach of these conditions does not render the marriage void under Section 11 or voidable under Section 12.

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