When one or both spouses are unable to live together as a pair, divorce is a legal way to dissolve the marriage. In India, there are two sorts of divorce: one sided divorce and divorce with mutual consent.
Mutual consent divorce occurs when both parties agree to stop their marriage, and the divorce takes a shorter time to complete since both parties wish to end the marriage. In India, a one sided divorce is when one spouse does not want to divorce the other. A contested divorce is another term for one sided divorce.
Meaning of One sided Divorce
In India, a one sided divorce occurs when one party refuses to end the marriage for any reason. When one partner has grounds for divorce and desires to dissolve the marriage, it is referred to as a one sided divorce. The husband and wife compete to obtain the most out of a divorce case, as the name implies, and appoint a divorce lawyer in India to represent their interests.
Types of Divorce for Specific Communities
Under the Hindu Marriage Act, 1955, one sided divorce can be filed on grounds such as cruelty, adultery, desertion, conversion, mental illness, communicable diseases, presumption of death, and renunciation of the world.
In Islamic law, one sided divorce can be initiated by the husband through “Talaq” or by the wife through “Khula” if she can prove valid grounds. The Dissolution of Muslim Marriages Act, 1939, also provides legal avenues for women to seek divorce on specific grounds.
Under the Indian Divorce Act, 1869, Christians can file for one sided divorce on grounds like adultery, cruelty, desertion, conversion, insanity, and leprosy.
The Parsi Marriage and Divorce Act, 1936, governs divorce among Parsis. Grounds for one sided divorce include adultery, cruelty, desertion, insanity, venereal disease, forceful conversion, and presumption of death.
Special Marriage Act
For inter-community marriages, the Special Marriage Act, 1954, provides provisions for one sided divorce on grounds similar to those under the Hindu Marriage Act.
Grounds for One sided Divorce
Under the Hindu Marriage Act of 1955 and other personal and common laws in India, the following are recognized as valid grounds for one-sided divorce:
- Adultery: Engaging in a sexual relationship outside of marriage constitutes adultery. It is considered a criminal offense and a valid ground for one-sided divorce, as it violates the sanctity of marriage.
- Cruelty: Any act that causes disruption, irritation, or torment to one spouse, either physically or emotionally, can be considered cruelty. Acts that endanger the spouse’s life or health are grounds for one-sided divorce, as enduring such suffering is not a normal part of marriage.
- Desertion: Desertion is defined as the intentional abandonment of one spouse by the other without any justifiable cause and without the consent of the other spouse, with no intention of returning. For desertion to be considered a valid ground for one-sided divorce, several key elements must be proven:
- Intention to Desert: The spouse who has left must have done so with the clear intention of permanently abandoning the other spouse.
- Lack of Consent: The abandonment must be without the consent of the other spouse, and not due to any conduct that might have driven the spouse to leave.
- Duration of at least two years: The desertion must have continued for a continuous period of not less than two years immediately preceding the filing of the divorce petition.
- No Justifiable Cause: Desertion is not merely physical; it also involves the intention to sever all marital obligations and duties.
- Conversion: Changing one’s religion and adopting new beliefs and ideologies can lead to a change in marital dynamics. If one spouse does not accept these changes, they can file for divorce on this basis.
- Mental Illness: A mental illness that makes cohabitation impossible can be grounds for divorce. Mental instability or disease can make sustaining a marriage very challenging.
- Communicable Diseases: If one partner has a communicable disease that can be transmitted through physical contact, it may be considered a valid reason for ending the marriage.
- Presumption of Death: If a spouse has not been heard from for seven years and is presumed dead, the other spouse has the right to file for divorce. The absence of opposition can expedite the process.
- Renunciation of the World: If a spouse chooses to renounce all worldly possessions and beliefs and refuses to adhere to any specific faith, the other spouse can seek divorce.
- Leprosy: Leprosy, a communicable skin condition that leads to physical disintegration, is considered a valid reason for divorce.
These grounds for one-sided divorce reflect the various challenges and complexities that may arise in a marriage. Understanding these grounds and seeking appropriate legal consultation can help individuals navigate the legal process of divorce in India.
How To File a One Sided Divorce?
To contest a one sided divorce in Indian courts, the following detailed procedure is laid down:
- Filing a Divorce Petition – After taking divorce consultation and identifying the appropriate court, an experienced divorce attorney in India must draft a contested divorce petition that includes 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 a divorce.
Following the filing of the divorce petition, the court will send a summons to the other spouse, informing him or her that their spouse has filed a divorce petition.
- Opposing Party’s Response – Once the summons has been received, the opposing party must send a response to the petition clarifying their position on one sided divorce. However, if the opposing party fails to appear at the hearing, the court may proceed to make a ruling based only on the testimony of one party.
- Reconciliation Attempts by the Court – The court may refer the case to mediation or offer professional counselling to explore the possibility of reconciliation between the parties.
- Examination and Cross-Examination of Witnesses – Both parties present evidence to support their case, including witness testimony and cross-examination to assess the validity of claims.
- Final Arguments – The parties will have final arguments after the evidence has been filed. Final arguments are the most important deciding elements in a court’s decision to dissolve a marriage.
- Divorce Decree – After the court hears all of the arguments, it issues a final verdict and decree of one sided divorce. The divorced husband and wife sign the divorce papers after the divorce decree is issued. The divorce process is complete, and the marriage is legally dissolved. This leads to one sided divorce.
- Right to Appeal – If dissatisfied with the judgment, either party may appeal to a higher court within the stipulated time frame.
This comprehensive guide outlines the legal process involved in one sided divorce, ensuring that individuals are well-informed and supported throughout the legal process. It is essential to consult with an experienced divorce attorney to navigate the complexities of one sided divorce in India.
Duration and Costs of One Sided Divorce
- General Time Frame: One sided divorce proceedings can take anywhere from several months to a few years, depending on the complexity of the case, cooperation of both parties, court schedules, and other factors.
- Stages: The duration includes various stages such as filing the petition, response from the opposing party, reconciliation attempts, examination of witnesses, final arguments, and issuance of the divorce decree.
- Appeals: If an appeal is filed, it may further extend the duration of the process.
- Legal Fees: Costs can vary widely based on the lawyer’s experience, complexity of the case, and geographic location. It’s advisable to discuss fees upfront with the attorney.
- Court Fees: There are nominal court fees associated with filing a divorce petition and other related documents.
- Miscellaneous Expenses: Additional costs may include expenses for gathering evidence, hiring expert witnesses, travel, etc.
- Potential Savings: Opting for mediation or negotiation may reduce costs compared to a fully contested divorce.
Legal Precedents and Court Rulings on One Sided Divorce
- Supreme Court’s Stance on Article 142: In a landmark ruling, the Supreme Court of India stated that it would not use its powers under Article 142 to annul a marriage if one party is unwilling to divorce, emphasizing the sanctity of marriage in Indian society.
- Cruelty as Grounds for Divorce: Various High Courts and the Supreme Court have recognized both physical and mental cruelty as valid grounds for one sided divorce, defining what constitutes cruelty in different contexts.
- Desertion and Its Interpretation: Legal precedents have clarified the understanding of desertion as a ground for divorce, including the duration and intention behind the abandonment.
- Adultery and Its Implications: Court rulings have provided insights into how evidence of adultery can be presented and what constitutes valid proof in a one sided divorce case.
- Rights of Women in Divorce Proceedings: Several judgments have upheld the rights of women in divorce proceedings, ensuring fair treatment, alimony, and child custody arrangements.
- Appeal Process and Higher Courts’ Intervention: Legal precedents have shaped the appeal process in one sided divorce cases, guiding how and when higher courts may intervene.
Frequently Asked Questions (FAQs) on One Sided Divorce
- What is One Sided Divorce?
- One sided divorce, or contested divorce, occurs when one spouse wants to end the marriage, and the other does not agree. It requires legal proceedings and can be based on various grounds such as cruelty, adultery, desertion, etc.
- Can I File for One Sided Divorce Without a Lawyer?
- While it’s legally possible, it’s highly recommended to consult with an experienced divorce attorney due to the complexities of one sided divorce proceedings.
- How Long Does a One Sided Divorce Take?
- The duration varies depending on the complexity of the case, cooperation of both parties, and court schedules. It may take anywhere from several months to a few years.
- What Evidence is Needed for Grounds Like Cruelty or Adultery?
- Evidence may include photographs, messages, eyewitness testimony, medical records, etc. The specific requirements can vary, and legal consultation is advised.
- What Happens if My Spouse Doesn’t Respond to the Divorce Petition?
- If the respondent fails to appear or respond, the court may proceed with a ruling based on the testimony of the petitioner.
- Can I Appeal a One Sided Divorce Decree?
- Yes, either party may appeal to a higher court if dissatisfied with the judgment, within the stipulated time frame.
- How are Child Custody and Alimony Decided in a One Sided Divorce?
- Child custody and alimony are determined based on various factors such as the child’s best interest, financial stability of the parties, mutual agreements, etc. Court intervention may be required.
The party’s first attempt should be to go for a mutual divorce. However, if it is not possible, then the party can go for one sided divorce or contested divorce on the aforementioned grounds. One should seek divorce consultation to get the correct legal advice from an expert divorce lawyer.