Divorce Without Mutual Consent? Here’s how

KEY TAKEAWAYS

• The Hindu Marriage Act, 1955 provisions to obtain a decree of divorce without mutual consent.
• A married Muslim woman can obtain a decree of divorce under the Dissolution of Muslim Marriages Act, 1939.
• When one of the parties is not consenting to the divorce, one can file a petition in the Family Court. Such a divorce is known as a contested divorce.
• The grounds for divorce without consent apply to both – husband and wife.
• The parties must have been living separately for at least a year before they can apply for a divorce.
• According to Section 9 of the Family Courts Act, Mediation and settlement are one of the effective ways to resolve the issues.

INTRODUCTION

We have come across ‘Divorce with Mutual Consent’ quite frequently. So this article aims to focus on ‘How to get a divorce without mutual consent?’ It is said that marriages are made in heaven but matrimonial bonds may not always prove to be heavenly. When one party is not consenting to divorce, the only option left is to fight for divorce in the competent court. You can get a divorce even if your partner doesn’t want to. The only difference between a mutual consent divorce and a contested divorce is that a contested divorce can make things complicated. To begin with, let us see the provisions for divorce under the Hindu Law, Muslim Law and Christian Law.

Divorce under Hindu Law

This applies to all the Hindus, including a Virashaiva, a Lingayat, or a follower of Brahmo, Prarthana, or Arya Samaj, along with the people of Buddhist, Jain, and Sikh religion. Section 13 of the Hindu Marriage Act, 1955 states that “Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party has –

1. After the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or
2. After the solemnization of the marriage, treated the petitioner with cruelty; or
3. Deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or
4. Ceased to be a Hindu by conversion to another religion; or
5. Been incurable of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

Divorce under Muslim Law

In Islamic Law, the grounds for divorce is the inability of the spouses to live together rather than any particular cause on account of which the parties cannot live together. A divorce in Muslim law may take place by the act of either husband or wife or by a decree of the court of law. As per the Dissolution of Muslim Marriages Act 1939, a woman married under Muslim law shall be entitled to a decree of divorce on the following grounds –

1. If the whereabouts of the husband are unknown for four years.
2. If the husband has neglected or failed to provide for her maintenance for two years.
3. If the husband has been sentenced to imprisonment for 7 years or more.
4. If the husband treats her with cruelty.

Divorces in Christian Religion

A Christian Couple may gain a decree for divorce under section 10 A of the Indian Divorce Act. The issues relating to the divorces among Christian population are regulated by the Indian Divorce Act of 1869. This Act is applied if one of the parties is Christian. You can read more about it on the LAWyersclubIndia website.

Coming to the main aspect of this Article

HOW TO GET A DIVORCE WITHOUT MUTUAL CONSENT? Here’s the answer!

When one of the parties in the marriage is not consenting to divorce, the only option left is to fight for divorce in a court of law. Such a divorce is called a contested divorce. The grounds for divorce without consent apply to both – husband and wife. Given below are the grounds on which one can seek a divorce decree without the consent of his or her spouse:

1. If a party in the marriage has sexual intercourse with someone else after the solemnization of marriage:

• As per the (1) (i) of the HMA if one of the parties has voluntary sexual intercourse with someone else after the solemnization of marriage it is a valid ground for divorce.

2. If a party has treated the partner with cruelty:

• Here, cruelty implies both physical as well as mental. Formerly, only physical form of cruelty was taken into consideration. However, in modern times, mental cruelty or mental harassment is also taken into consideration. Mental cruelty has to be established from the facts.

3. If a spouse has deserted the divorce seeker for no less than a period of 2 years:

• To get a decree of divorce on this ground, the petitioner must establish that his or her spouse has deserted them for a continuous period of not less than 2 years. Here, desertion means the intentional forsaking and abandonment of one spouse by another without consent and justifiable cause.

4. If the party has converted to another religion:

• When a Hindu has ceased or ceases to be a Hindu by changing the religion, children born to him or her after such conversion and their heirs, are ineligible to inherit the property of any of their Hindu relatives, unless such children or descendants are Hindus at the time of the succession.

5. If a party is of unsound mind or has been suffering from a mental disorder:

• Section 13(1)(iii)states that if a spouse has been incurable of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

6. The other party has been suffering from a virulent and incurable form of leprosy or has been suffering from venereal disease in a communicable form:

• Leprosy is a ground for divorce and judicial separation under most of the matrimonial laws of the Indian communities. If a partner has been suffering from a communicable venereal disease it is a valid ground for divorce.

7. The other party has renounced the world by entering any religious order:

• The requirements of this ground are 1. Renunciation of the world by the respondent. 2. Entering into a holy order by him. Unless and until both the conditions are fulfilled, a spouse cannot file for divorce without mutual consent.

8. Another Party has not been heard of as being alive for 7 years or more by those persons who would have heard of it if the party had been alive:

• If a party has been absent and not heard from for about 7 years or more, it is a valid ground for divorce without mutual consent.

9. No resumption of cohabitation for one year or more after judicial separation:

• Judicial separation is when still being legally married the couples are living separately in a separate house.

10. No Restitution of conjugal rights for one year or more:

• The petitioner applying for a restitution decree will have to prove two things: Primarily, that the respondent has withdrawn from the society of the petitioner, and secondly, that such withdrawal has been without reasonable excuse.

Now you must be wondering,

How to apply for a divorce without mutual consent? Here’s how

1. The parties must have been living separately for at least a year before they can apply for a divorce.
2. Appoint a lawyer who will apprehend your situation and file the divorce petition in the necessary forum, family court at the district level.
3. You will be required to share all information that could form a ground for divorce and submit all below mentioned documents for this purpose.
4. File a petition in the concerned family court. The next step is serving summons to the opposite party for him or her to appear before the court.
5. The applicant should confirm that he has read and understood the bail petition prepared by the lawyer before he files it and thereafter make sure that all affidavits and Vakalatnama are accordingly signed by him.
6. Both the parties are required to go to trial where the court hears both the parties.
7. The next step is the interim orders passed regarding the custody of the child or maintenance, etc.
8. The final step involves the final order by the court where the marriage is dissolved and the court proceedings come to an end.
9. There are certain grounds, which have been discussed above, under which the applicant filing for divorce must fit in to be granted a divorce decree by the court.

What are the documents to be submitted before the court of law

• Marriage certificate
• Address proof of husband and wife
• Evidence showing that they lived in separation for a year
• Passport size photographs
• Income tax returns for three years
• Evidence showing attempts at reconciliation
• Birth certificate
• Family members information

Landmark Judgements

1. K Srinivas Rao v/s D. A. Deepa

Facts of the case:

The husband filed the petition on the Supreme Court requesting the grant of a divorce based on mental cruelty caused to him by his wife. The row started with a fight between the elders of the family, subsequently, the wife’s family took her away from the nuptial house. The wife later filed a petition for restitution of conjugal rights, to which the husband filed a divorce petition. According to the wife, she did so to force her husband to accept her again. What followed was a series of events such as the wife filing a case of dowry against her husband, the wife alleging that the husband’s mother was asking her to sleep with the husband’s father, the husband beating his mother-in-law, wife’s brother threatening her mother-in-law, etc. The wife’s actions were considered as cruelty by the family court and her petition was dismissed accordingly. It was stated by the High Court that as the wife and husband weren’t living together, it wouldn’t constitute cruelty and granted 6 months imprisonment to the husband under the dowry charges. The husband filed a petition in the Supreme Court. Consequently, the issues raised were – whether the wife’s actions amounted to cruelty? And how could the parties have handled the situation in a better way?

Apex Court’s Orders:

The Apex court held that, though all the wife’s actions were frantically for being with him, it caused a great deal of mental agony and harassment to the husband and caused suffering to his entire family. It also held that the issue wouldn’t have escalated so much if the wife was given proper guidance at the time, but in matrimonial cases, only one party cannot be blamed. For this the Court suggested Mediation. The court referred to § 9 of the Family Courts Act and said that mediation should be made mandatory in disputes where settlement is possible.

2. Savitri Pandey v/s Prem Chandra Pandey

Facts of the case:

In this case, the parties were married as per the Hindu Marriage customs and rites. The wife lived with the husband without having consummated their marriage. The wife alleged that even after spending Rs. 80,000/- in the marriage and giving quite a lot of gifts in cash to the in-laws, they kept on demanding more. The wife also held that because they were not complying with the in-laws' demand, the in-laws kept torturing her. This aggrieved the appellant which led her to file a petition u/s13 of the HMA seeking a decree of divorce and praying for permanent maintenance and return of the gifts given to them (in-laws). The issues raised in this court were – whether cruelty and desertion as grounds of divorce were applicable in this case? And whether the petitioner i.e. the wife was entitled to relief under section 27 of HMA?

Apex Court’s Orders:

The case is pending in the Supreme Court for resolution.

Conclusion

As said earlier in this article, marriages are made in heaven but matrimonial bonds may not always prove to be heavenly. It is not necessary that both partners have to agree to file a divorce. A Spouse may file for a divorce without the other’s consent. The purpose of divorce is to put an end to the marriage which has already broken down irretrievably. But couples should primarily try sorting out the problems and issues by themselves instead of approaching the court over trivial matters. A divorce should be considered in the gravest cases. As directed in the K. Srinivas Rao v/s D. A. Deepa, couples should consider mediation to solve these issues. It is rightly said that no one party can be blamed in a matrimonial case. However, when one files for divorce, it seems that the marriage has already been broken.