Divorce Without Mutual Consent

This article on “How to Get Divorce Without Mutual Consent-Complete Guideline” is written by Anubhav Pandey.

In India divorce for Hindus under the Hindu Marriage Act, 1955 can be enforced in two ways-

  • One is through mutual consent (Section 13B of the Act).
  • The other is by the wish of any one party.

Suggested Read: Grounds for Dissolution of a Marriage

When one of the party in a marriage is not willing to give divorce then the option left is to fight for divorce in a court of law and such divorce are called contested divorce.

Under the Hindu Marriage Act, 1955, any marriage solemnized, on a petition presented by either the husband or the wife will be dissolved by a decree of divorce on any of the following ground mentioned below.

Grounds Of Divorce Without Mutual Consent Applicable To Both Husband & Wife

  • If other party in a marriage have sexual intercourse with someone else after solemnization of the marriage, it results in a valid ground for divorce without mutual consent under the Hindu Marriage Act.
  •  After the solemnization of the marriage, treated the partner with cruelty.
  • The other party has deserted the divorce seeker for a continuous period of not less than two years, immediately preceding the presentation of the petition.
  • The other party has ceased to be a Hindu by conversion to another religion.
  • The other party has been incurably of unsound mind or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent, that the divorce seeker cannot reasonably be expected to live with the other party in a marriage.

Mental disorder is mental illness, or incomplete development of mind. Psychopathic disorder or any other disorder or disability of mind includes schizophrenia.

Psychopathic disorder means a persistent disorder or disability of mind which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment.

  •  The other party has been suffering from a virulent and incurable form of leprosy.
  • The other party has been suffering from venereal disease in a communicable form.
  • The other party has renounced the world by entering any religious order.
  • The 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.

Along with the above conditions, either party to a marriage, may also get a divorce without mutual consent for the dissolution of the marriage on any of the following grounds too-

  1.  There has been no resumption of cohabitation as between the parties to the marriage for a period one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties.
  2. There has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.

Rights Given To A Wife Only for Divorcing The Husband

A wife under the Hindu Marriage Act, 1955, can contest for divorce without mutual consent on the following grounds-

  • The husband had married again or that any other wife of the husband married before the contented marriage was alive at the time of the solemnization of the marriage of the petitioner, provided that, in either case, the other wife is alive at the time divorce is contested.

The Necessary Ingredients of The Section Are:

  • Having a husband or wife living.
  • Marries again in any case.
  • Such marriage should be void.
  • By reason of its taking place during the life of such husband or wife.
  • The husband has, since the solemnization of the marriage, had been guilty of rape, sodomy or bestiality.

If Other Party is Involved in Sexual Intercourse With Someone Else After Marriage – A Valid Ground for Divorce under Hindu Marriage Act

A single act of voluntary sexual intercourse by a marriage partner with any person other than their spouse is a ground for a decree of divorce without mutual consent under Section 13 (1) (i) of the Hindu Marriage Act,1955.

The birth of a child during the marriage is conclusive proof of legitimacy unless it can be shown that the parties to the marriage had no access to each other at any time when they could have been together.

The contention that, wife has been living separate from him since June,1973 and she gave birth to a child on 1st May,1974 and therefore, it must be held that the wife had voluntary sexual intercourse with a third person, proved to be a valid ground for divorce without mutual consent on the satisfaction of several other considerations.[1]

After the Solemnization of Marriage, Treatment of Divorce Seeker with Cruelty – A Valid Ground for Divorce

Cruelty comprises of both physical as well as mental cruelty. It was formerly thought that actual physical harm or reasonable apprehension of it was the prime ingredient of this matrimonial offence. That doctrine is now repudiated and the modern view has been that mental cruelty can cause even more grievous injury and create in the mind of the injured spouse reasonable apprehension that it will be harmful or unsafe to live with the other party.

The principle that cruelty may be inferred from the whole facts and matrimonial relations of the parties and interaction in their daily life disclosed by the evidence, is of greater cogency in cases falling under the head of mental cruelty.

Thus, mental cruelty has to be established from the facts.[2] Cruelty for the purpose of divorce is to be taken as a behavior by one spouse towards the other, which causes reasonable apprehension in the mind of the latter that, it is not safe for him or her to continue the matrimonial relationship with the other.[3]

The Other Party has Deserted the Divorce Seeker for a Continuous Period of Not Less Than Two Years Immediately Preceding the Presentation of The Petition or Desertion – A Valid Ground for Divorce

In its essence desertion means the intentional forsaking and abandonment of one spouse by the other without that other’s consent and without reasonable cause. It is a total repudiation of the obligations of marriage. Desertion is not the withdrawal from a place but from a state of things.

In order to get a decree on the ground of desertion, the petitioner must establish that the other party has deserted him/her for a continuous period of not less than two years immediately preceding the presentation of the petition without reasonable cause and without the consent or against the wish of the petitioner. [4]

The Other Party has Ceased to be a Hindu by Conversion to Another Religion- A Valid Ground for Divorce

Also, when a Hindu has ceased or ceases to be a Hindu by conversion to another religion, children born to him or to her after such conversion and their descendants, are disqualified from inheriting the property of any of their Hindu relatives, unless such children or descendants are Hindus at the time when succession opens. [5]

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

Section 13(1)(iii) of the act does not make the mere existence of a mental disorder of any degree sufficient in law to justify the dissolution of a marriage. The context in which the ideas of unsoundness of “mind” and “mental disorder” occur in the section as grounds for dissolution of a marriage, require the assessment of the degree of the mental disorder.

Its degree must be such that the spouse seeking relief cannot reasonably be expected to live with the other. All mental abnormalities are not recognized as grounds for grant of decree.

If the mere existence of any degree of mental abnormality could justify dissolution of a marriage, few marriages would indeed survive in law.[6]

Where the parties are young and the mental disorder is of such a type that sexual act and procreation of children is not possible, it may furnish a good ground for nullifying the marriage because, to beget children from a Hindu wedlock is one of the principal aims of Hindu marriage where samskara of marriage is advised for progeny and offspring.[7]

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

Leprosy is an infectious disease, chronic, contagious, resulting in disfigurement, one of the causes of permanent disability in the world and is primarily a disease of the poor.

Leprosy is a ground for divorce and judicial separation under most of the matrimonial laws of the Indian communities. Incurable and virulent form of leprosy is a ground for divorce (or judicial separation) without mutual consent and also the Venereal disease in a communicable form come with refinement and the question as to whether or not the petitioner had communicated the disease to the respondent is now immaterial.

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

The requirements of this ground are:

  1. Renunciation of world by the respondent.
  2. Entering into a holy order by him.
  • A person may renounce the world, such as when he does not take any interest in the worldly affairs or retires to a single room, withdraws from cohabitation or takes a vow of celibacy, or becomes a mauni, yet he may not join a holy order. Such a spouse will not be covered under this clause, though his conduct may amount to desertion or cruelty.

Unless the second condition is also fulfilled, the other spouse cannot sue for divorce (or judicial separation) without mutual consent under this clause.

  • A person enters into holy or religious order when he undergoes the ceremonies and rites prescribed by the order, which he has entered.

Becoming a chela of a guru does not by itself mean entering a holy order may not always amount to renunciation of the world. The mere fact that a person declares that he has become a sanyasi or that he calls himself or is described by others as such or wears clothes ordinarily worn by sanyasis, would not be sufficient to make him 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

  • The lady seeking divorce without mutual consent in a case was 24 years of age when she got married. The marriage lasted for four to five months only when she was compelled to leave the matrimonial home.
  • The marriage between the parties was not consummated as the respondent was not in a position to fulfill the matrimonial obligation.
  • The parties have been living separately since 1993.
  • 13 years have passed they have never seen each other. Both the parties have crossed the point of no return.

A workable solution was certainly not possible. Parties at this stage cannot reconcile themselves and live together forgetting their past as a bad dream. The lady seeking divorce without mutual consent did her PhD.

In such a situation, court decided in favor of wife and granted a divorce.[8]

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

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

If there is sexual intercourse of the parties to the marriage, it is no doubt a good ground to presume the resumption of cohabitation but that is not the conclusive evidence for this purpose.[9]

In the relationship of husband and wife, once there is judicial separation without contesting the matter seriously before the court and if the matter is not retrieved, it is in the interest of the justice that marriage be put to an end to as early as possible.

If the wife had obtained decree for restitution of conjugal rights but the husband did not respond to it, even if she wanted to resume cohabitation the husband did not want it, in such a situation divorce without mutual consent is granted.

If it is proved by either party that still after a period of one year, there is no resumption of cohabitation between husband and wife and this will be a suffice ground for divorce.

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

The remedy of restitution of conjugal rights pre-supposes the existence of marriage between the parties. According to Hindu Law, marriage is a holy union and the relationship between the husband and wife imposes upon each other certain marital duties and gives each of them certain marital rights.

The petitioner applying for restitution decree will have to prove two things:

  • Firstly, that the respondent has withdrawn from the society of the petitioner.
  • Secondly, that such withdrawal has been without reasonable excuse.

The court may order restitution of conjugal rights if it is satisfied of the truth of the statements made in the petition and that there is no legal ground why the decree should not be granted.

The power of the court to grant a decree for restitution of conjugal rights is discretionary. Non-resumption of cohabitation for a period of one year or upwards, after the passing of the decree for restitution of conjugal rights, is a ground for divorce available to either party to a marriage 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 – A valid ground for divorce without mutual consent. Section 494 of IPC says.

Marrying again during lifetime of husband or wife—Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, will be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

Generally speaking, three kinds of decrees can be obtained, namely- restitution of conjugal rights, judicial separation and divorce, and almost all of those can be prayed for by either spouse, except those under section 13(2), which remedy is available to the wife alone.

Where a husband is already married and still enters into the sacred bond of marriage, it is a valid ground for divorce. This section empowers women as there were many cases where conversion of Hindu men into Islam for the purpose of marriage was observed.

2. Husband guilty of Rape, sodomy, bestiality
Second ground, available only to women for seeking divorce is, when husband since solemnization of marriage been guilty of rape, sodomy or bestiality.

3. Married before 15 and repudiated the marriage before the age of 18 –
A valid ground for divorce without mutual consent only for women under Hindu Marriage Act.
When a women proves that her marriage was solemnized before she attained the age of fifteen years and she repudiated the marriage before attaining the age of eighteen years, it is a valid ground for divorce without mutual consent under the Hindu Marriage Act.

To attract this provision the marriage should have been solemnized before she attained the age of 15 years and she has to repudiate the marriage after attaining that age but before attaining the age of 18 years. The conditions for a Hindu marriage are informed in Section 5 of the Hindu Marriage Act, 1955.

Section 5(3) places requirement that the bridegroom should have been completed age of 21 years and the bride 18 years at the time of marriage. Noteworthy, it is that the breach of such condition does not render the marriage void under Section 11 or voidable under Section 12.

That’s all about “How to Get Divorce Without Mutual Consent” for now. Comment below your view. And, Share the article.

 

References,

[1] 1981 SCC OnLine Del 364
[2] Mulla’s Hindu Law, 17th Edn., Vol. II, p. 91
[3] Parveen Mehta v. Inderjit Mehta, (2002) 5 SCC 706
[4] Bankim Chandra Banerjee v. Chinmoyee Banerjee, 2003 SCC OnLine Cal 512
[5] The nature of the changes introduced in the Hindu Law in respect of the Law of Inheritance with regard to Women, (1959) 72 LW (JS) 27,Sri D. Krishnamurthi Iyer
[6]  Ram Narain Gupta v. Rameshwari Gupta, (1988) 4 SCC 247
[7] Alka Sharma v. Abhinesh Chandra Sharma [AIR 1991 MP 205]
[8] Vinita Saxena v. Pankaj Pandit, (2006) 3 SCC 778
[9] 1999 SCC OnLine Bom 578

 

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1 COMMENT

  1. Hi,

    My colleague and I are in love with each other. She is married and I am single. Her husband doesnt love her and never touched her after her first child that too occurred due to family pressure. Every day he and her in laws dont behave well with her and always say she is ugly or her dress is bad or cooking is bad or any other comment and taunts.
    She is living her life with that man only because of her child who is 6 years old. Her husband no doubt never stop her from spending money and always give money to her for her shopping and other usefulness needs. But she doesnt get the emotional and physical love from him and her in laws which require a woman to live a happy life. She is going through so much of mental depression and stress.

    I came into her life just 4 years back and are in love past 1 year. she is married for 8 years. Please advise what to do. what to do to file for divorce. I dont think her husband will give mutual consent to divorce.

    Please advise.

    Thanks,

    Rahul

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