A question often asked if one of the spouses does not want to continue with the marriage, can she/ he divorce the other spouse without the consent of the latter. Answer to this in a nutshell could be, “Yes, she/ he can file a case without the spouse’s consent, but not without the latter’s knowledge.” Indian laws, influenced by various religious customs and statutory regulations, do allow for one-sided divorce in specific circumstances, but the grounds for it are strictly defined. Let’s dive deeper to explore the possibility of one-sided divorce under Indian matrimonial laws, citing relevant legal provisions and case laws.
What is a one-sided divorce?
One-sided Divorce or Unilateral divorce is a Contested divorce, where one of the parties files for divorce on the grounds specified in the applicable law. The other spouse is not willing to divorce, but the proof of the grounds on which the divorce sought is strong enough to prove the allegations. Hence the court orders divorce. The opposite party gets the notice and also he/ she is heard by the court, following the principle of natural justice – audi alteram partem. In cases where the opposite party does not make a representation in the court after receiving the notice orders are passed on “Ex-parte” basis. The decree is given on the merits of the case.
Grounds for One-Sided Divorce (Contested Divorce)
Indian law allows one spouse to initiate a divorce without the other spouse’s consent, but only on specific grounds as outlined in the respective statutes governing different religions. These include:
– The Hindu Marriage Act, 1955
– The Special Marriage Act, 1954
– The Divorce Act, 1869 (for Christians)
– The Dissolution of Muslim Marriage Act, 1939 (for Muslim women)
– The Muslim Personal Law (Shariat) Application Act, 1937 (For Muslims)
– The Parsi Marriage & Divorce Act, 1936
Cruelty as a Ground for Divorce (Contested Divorce)
Cruelty is one of the most commonly invoked grounds for one-sided divorce under the
Hindu Marriage Act, 1955 (Section 13(1)(i-a)),
The Special Marriage Act, 1954 (Section 27 (1) (d),
The Divorce Act, 1869 (Section 10 (1) (x),
The Dissolution of Muslim Marriage Act, 1939 (Section 2 (viii)
The Parsi Marriage & Divorce Act, 1936 (Section 32 (dd)
Both physical and mental cruelty are recognized by the courts as valid reasons for unilateral divorce.
In Dastane v. Dastane, AIR 1975 SC 1534, the Supreme Court of India defined cruelty in broad terms, holding that even mental anguish and emotional distress inflicted on a spouse can constitute cruelty. The court noted that “the concept of cruelty does not solely encompass physical harm but also includes the emotional and psychological impact of a spouse’s actions.” This case illustrates that a spouse can seek divorce independently, even if the cruelty is mental or emotional.
Further, in Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511, the court expanded on what constitutes mental cruelty, stating that behaviors such as constant accusations of infidelity, neglect of emotional needs, or belittling one’s spouse can all amount to cruelty. The court granted divorce to the petitioner without the consent of the respondent, underscoring that one-sided divorce is permissible in cases where the respondent’s behavior makes it impossible for the petitioner to continue with the marriage.
Desertion as a Ground for One-Sided Divorce (Contested Divorce)
Desertion is another ground for unilateral divorce, provided that one spouse has left the matrimonial home for at least two years prior to filing for divorce. This ground is covered under
Section 13(1)(i-b) of the Hindu Marriage Act, 1955
Section 27 (1) (b) of The Special Marriage Act, 1954
Section 10 (1) (ix) of The Divorce Act, 1869
Section 32 (g) of The Parsi Marriage & Divorce Act, 1936
In Bipin Chandra v. Prabhavati, AIR 1957 SC 176, the Supreme Court held that desertion means not only physical separation but also the abandonment of the marital relationship without reasonable cause. The court further clarified that desertion must be for a continuous period of at least two years. In this case, the petitioner sought divorce after being deserted by his wife, and the court granted it without the wife’s consent, thereby setting a precedent for one-sided divorce based on desertion.
Adultery as a Ground for One-Sided Divorce (Contested Divorce)
Adultery is another ground for one-sided divorce, and the law is quite clear on this matter. Under
Section 13(1)(i) of the Hindu Marriage Act, 1955,
Section 27 (1) (a) of The Special Marriage Act, 1954
Section 10 (1) (i) of The Divorce Act, 1869
Section 32 (d) of The Parsi Marriage & Divorce Act, 1936
Section 2 (viii) (b) The Dissolution of Muslim Marriage Act, 1939 (in this provision if husband associates with women of evil repute or leads an infamous life a wife can seek dissolution of marriage)
a spouse can file for divorce if the other spouse has engaged in extramarital relations.
In Joseph Shine v. Union of India, (2018) 2 SCC 189, the Supreme Court decriminalized adultery but maintained it as a valid ground for divorce.
In Russell v. Russell, AIR 1961 SC 349, the court observed that once adultery is proven, divorce can be granted to the petitioner without needing the other spouse’s consent or involvement in the process. This case set a strong precedent for allowing one-sided divorce on the ground of adultery, showing that the consent of the other party is not required when one spouse has committed a matrimonial offense.
Mental Disorder and Incapacity (Contested Divorce)
The law also provides for unilateral divorce in cases where one spouse suffers from an incurable mental disorder or unsoundness of mind. Under
Section 13(1)(iii) of the Hindu Marriage Act, 1955,
Section 27 (1) (e) of The Special Marriage Act, 1954
Section 10 (1) (iii) of The Divorce Act, 1869
Section 32 (bb) of The Parsi Marriage & Divorce Act, 1936
Section 2 (vi) The Dissolution of Muslim Marriage Act, 1939
a spouse can seek divorce if the other spouse has been suffering from a mental disorder to such an extent that it becomes unreasonable for the couple to live together.
Irretrievable Breakdown of Marriage
The irretrievable breakdown of marriage is not formally codified in Indian divorce law but has been recognized by the judiciary in various cases. This concept allows for divorce when the marriage has broken down to such an extent that there is no possibility of reconciliation, even if one spouse does not consent to the divorce.
In Naveen Kohli v. Neelu Kohli, (2006) 4 SCC 558, the Supreme Court recommended that irretrievable breakdown of marriage be included as a statutory ground for divorce. The court granted divorce in this case, recognizing that the couple had been living apart for many years and that the marriage had effectively ceased to exist. The court’s recommendation, though not yet legislated, provides for one-sided divorce in situations where the marital relationship has completely broken down.
Unilateral Divorce in Muslim Law
Muslim personal law permits unilateral divorce through the concept of talaq. Historically, a Muslim man could divorce his wife unilaterally by pronouncing talaq. However, in the landmark case of Shayara Bano v. Union of India, (2017) 9 SCC 1, the Supreme Court declared the practice of instant triple talaq (talaq-e-biddat) unconstitutional, effectively limiting the scope of one-sided divorce under Muslim law.
While the ruling curtailed the instant form of unilateral divorce, talaq is still a valid process under certain conditions. Similarly, Muslim women can seek a one-sided divorce through khula or faskh, which are judicial processes initiated by the wife with or without the husband’s consent.
Conclusion
In conclusion, one-sided divorce is legally possible in India under various circumstances and legal provisions. The Hindu Marriage Act, 1955, and similar laws governing different religions provide grounds such as cruelty, desertion, adultery, and mental illness, allowing one spouse to seek divorce without the other’s consent. Judicial interpretations, such as in Dastane v. Dastane and Naveen Kohli v. Neelu Kohli, have expanded the scope of unilateral divorce, making it clear that mutual consent is not always necessary when matrimonial offenses are involved. With the inclusion of the irretrievable breakdown of marriage in judicial discussions, the scope of one-sided divorce in India continues to evolve, balancing individual autonomy with matrimonial obligations.
