Is One-Sided Divorce Possible in India?

Index
1. Meaning of One Sided Divorce
2. Types of Divorces in India
3. Reasons for One Sided Divorce
4. Filing One Sided Divorce?
5. Duration and Costs
6. Legal Precedents and Court Rulings
7. Conclusion
8. FAQs on Is one-sided divorce

Divorce is one of the legal ways of ending a marriage. It can be either one-sided or both if the spouses are unable to continue staying together. India has two forms of divorce i.e., mutually consented divorce and one-sided divorce.

A mutual consent divorce occurs when both partners agree to end their marriage relationship. Since both partners want to separate their paths, divorce in legal way can decrease the mental stress. However, in one-sided divorce in India if one partner refuses to terminate the union then it may lead into stalemate and mental stress. A contentious divorce also may be regarded as a one-sided divorce.

One of the hardest things to do when experiencing separation is obtaining a divorce that is not mutual because it is very draining on one’s emotions and could leave one partner feeling abandoned then the obvious question that arises is  “Can a divorce happen one sided?”. To answer this question we must understand how divorce law operates in different jurisdictions and the emotions that accompany such a process.

Meaning of One Sided Divorce

It is called one-sided divorce in the case where one of the partners does not file for divorce but the other files for it. One-sided divorce happens when a partner wants to end his or her marriage and has reasons for such purposes. In this aspect, both parties fight each other in pursuing as much as they can from this area of family law and only seek legal expertise from a seasoned Indian divorce lawyer who will have the chance to represent them in the suit.

People also read:  Divorce Procedure in India

Types of Divorces in Indian Communities

The Hindu Community

One sided divorce according to Hindu Marriage Act, 1955 is provided on the basis of cruelty, adultery, desertion, conversion, mental illness, infectious diseases, presumption of death and renunciation of worldly possessions.

The Muslim Community

One sided divorce or ‘Talaq’ by the husband and ‘Khula’ or one sided divorce by the wife if she can give valid reasons. The Dissolution of Muslim Marriages Act, 1939 gives women more legally acceptable reasons to apply for divorce.

The Christian Community

Christians can file for one sided divorce under the Indian Divorce Act, 1869 on the grounds of adultery, cruelty, desertion, conversion, insanity and leprosy.

The Parsi Community

Among Parsis, divorce is governed by the Parsi Marriage and Divorce Act 1936. One-sided grounds for divorce are adultery, cruelty, abandonment, insanity, venereal disease, forced conversion and likelihood of death.

Special Marriage Act

Under the provisions of The Special Marriage Act 1954 an individual who is seeking a one sided divorce is provided with a means to proceed with the case because the grounds for granting such divorces are almost similar to that as used in Hindu Marriage Acts.

Reasons for One Sided Divorce

Sometimes one person in a marriage may want a divorce even if the other person does not. There are several reasons why this can happen:

1. Adultery: 

This happens when a married person has a romantic or sexual relationship with someone else outside of their marriage. This breaks the trust and commitment of the marriage and can be a reason for divorce.

2. Cruelty: 

Cruelty means that one person in the marriage is being very mean or hurtful to the other either by hurting their feelings, hurting them physically or threatening them. This can make the marriage very difficult and unhappy which could lead to a divorce.

3. Desertion: 

Desertion happens when one partner leaves the other without any explanation and does not plan to come back. For this to be a reason for divorce three things need to happen:

• The person left on purpose and does not want to come back.
• The person left without telling or getting permission from their partner.
• The person has been gone for at least two years.

4. Conversion: 

If one person in the marriage changes their religion and the other person does not agree with or accept this change then it can create problems in the marriage and be a reason for divorce.

5. Mental Illness: 

If one person in the marriage has a serious mental illness that makes it very hard to stay married then the other person can ask for a divorce.

6. Communicable Diseases: 

If one partner has a disease that can easily spread to others then the other partner might find it hard to stay in the marriage.

7. Death or Long Absence: 

If one partner has been missing for at least seven years and is believed to be dead then the other partner can ask for a divorce.

8. Giving Up Worldly Life: 

If one person decides to leave everything behind like giving up all their belongings and not following any normal life rules then the other person can ask for a divorce.

9. Leprosy: 

Leprosy is a serious skin disease that can cause a lot of health problems. Under the law, this disease can be a reason for divorce.

How To File a One Sided Divorce?

1. Check If You Qualify: 

Make sure you have a valid reason for wanting a divorce. Reasons can include cruelty (being mean or harmful), adultery (cheating), desertion (being left alone by your partner), having a disease that can spread or mental illness.

2. Talk to a Lawyer: 

It is a good idea to speak with a lawyer. They can help explain your rights and the steps you need to take for a divorce.

3. Collect Evidence: 

Gather proof that supports your reason for the divorce. This could be documents, photos, emails, text messages or statements from people who know what happened.

4. Prepare the Petition: 

Ask your lawyer to write a divorce petition that explains why you want a divorce and provides information about your marriage. This document will be given to the Family Court where you or your spouse lives.

5. File the Petition: 

Submit your petition to the Family Court along with any necessary paperwork.

6. Notify Your Spouse: 

After you file the petition your spouse (the person you are divorcing) will get a notice to let them know that a divorce case has started.

7. Your Spouse’s Response: 

Your spouse will have a chance to respond to the petition. If they do not respond or disagree with the divorce then the court will continue with the case using the evidence provided.

8. Court Trial and Evidence: 

Both sides will present their evidence and tell their side of the story in court. The judge will look at all the information to understand what happened.

9. Divorce Decision: 

The court will decide if the divorce should be granted based on the reasons given.

10. Appeal and Forgiveness: 

If your spouse is not happy with the court’s decision then they can ask the court to look at the case again. Sometimes the court may ask if the two of you want to try to work things out.

11. Final Divorce Settlement: 

Once the court gives a final decision then the divorce is complete. Make sure you get a certified copy of the divorce papers for your records.

Duration and Costs of One-Sided Divorce

Duration Involved in Divorce

• General Time Frame: 

A couple of months to several years is the general time frame for one-way divorces depending on how complex the case is, cooperation of both parties, the timetables of the court and other considerations.

• Phases:

The duration covers various phases that include filing a divorce, answering the other party, attempt to reconcile, examination of the witnesses, last hearings and readmission of the divorce decree.

• Appeals: 

If an appeal is made, the time taken in the process can be stretched further.

Costs Involved in a Divorce

• Legal Fees: 

The cost of hiring a lawyer can be different depending on where you live, how complicated your case is and how experienced your lawyer is. It’s a good idea to discuss these costs with your lawyer before you begin.

• Court Fees: 

When you file for divorce and submit the necessary documents, there is usually a small fee that you need to pay to the court.

• Other Expenses: 

There may be other costs, like money for traveling, hiring experts, or collecting evidence. These expenses can add up depending on what your case needs.

• Possible Savings: 

If you and your spouse can agree on things without arguing, you can save money by using negotiation or mediation instead of going to court.

Legal Precedents and Court Rulings on One-Sided Divorce

1. Status of Article 142 In Supreme Court: 

The Indian Supreme Court stated that it would not grant divorce decree if one party is not interested in breaking the marriage under Article 142. It is repeated several times by Indian Supreme Court on sanctity of marriage in Indian society.

2. Cruelty: 

The Supreme Court and several High Courts have defined cruelty in different ways and have accepted both physical and emotional cruelty as grounds for a unilateral divorce.

3. Desertion and Its Understanding:

The courts have made it more explicit what constitutes desertion as a cause for divorce including the period, time span involved and intentions behind leaving.

4. Adultery and its Consequences: 

The court decisions have also come into help in bringing out which types of evidence are admissible in cases of unilateral divorce and how the courts can take in evidence of adultery.

5. Women’s Rights: 

Several judgments have been made concerning women’s rights during divorce processes in addition to fair treatment during divorce processes, spousal support and awarding of child custody.

In one sided divorce appeals, precedents are used to control them as well as to make rulings on when higher courts can get involved.

Conclusion

In India, it is possible for one person in a marriage to ask for a divorce even if the other person doesn’t agree. This is called a one-sided divorce. However it can be challenging because different religious communities have their own rules and procedures for divorce.

Even if the other spouse disagrees and tries to fight it, the divorce can still go ahead if there is enough evidence and the right legal help. Understanding the specific laws and getting advice from a good lawyer can make the process easier and help handle the difficulties of a one-sided divorce in India.

Frequently Asked Questions on Is one-sided divorce possible in India

Q.1. Is one sided divorce possible in India?

Ans.1: Yes, one sided divorce is possible in India through the Hindu Marriage Act 1955 section 13(1) also known as contested divorce.

Q.2. What is a contested divorce?

Ans.2: Contested Divorce is a type of divorce in which one spouse files for divorce without the consent of other spouse to end their marriage.

Q.3. What happens when one spouse refuses for divorce?

Ans.3: Even if the other partner refuses to give you divorce, you can still file for divorce through contested divorce and the court with the proper jurisdiction may receive your petition for it. That way, you can file a divorce petition to the proper court without your spouse’s consent.

Q.4. Reasons for one sided divorce in India?

Ans.4: Reasons for one sided divorce are:

• Adultery 
• Cruelty
• Desertion
• Conversion
• Mental Illness
• Communicable Diseases 
• Death or Long Absence 
• Giving Up Worldly Life
• Leprosy

Q. 5. How long one sided divorce takes in India?

Ans.5: It takes 6 months or 1 year for one sided divorce to resolve.

Q.6. What if the spouse contests giving a divorce?

Ans.6: Then file a petition in court and get divorce in a legal way using proper evidence.

Q.7. Is proving fault necessary in one sided divorce?

Ans.7: Yes, proving fault is necessary in one sided divorce as court needs valid reason for divorce.

Q.8. Is Divorce without court legal?

Ans.8: No, Divorce without court is not legal. Every Community has its Law for divorce, so you need to go to the court and get divorce according to your laws.

Q.9. Can I get maintenance for one sided divorce from my husband?

Ans.9: Yes, you can get and claim for maintenance in one sided divorce.

Q.10. Can I appeal a contested divorce decree?

Ans.10: yes, you can appeal against the decision made in your case by the decree court to a higher court if your spouse does so.

Q.11. What is the cost of contested divorce in India?

Ans.11: The cost of a disputed divorce in India depends upon how complicated the case is and how much the lawyer costs.

Q.12. How long is it going to take after applying for divorce decree?

Ans.12: Normally it takes 6-18 months but might be a little longer because of the complexity of the case.

Q.13. Can I remarry after getting contested divorce from my spouse?

Ans.13: Yes, you can remarry after the decree is passed against your spouse in a contested divorce.

Q.14. Is property divided after Divorce?

Ans.14: Yes, Property and assets are divided according to the parties involved or by decision the court makes.

Q.15. Does the custody of children come under contested divorce?

Ans.15: Yes, the custody of children comes under it and it will depend on the kids interest of by whom the kid want to stay.