What To Do If Wife Is Not Giving Divorce?

Marriage is based on love and companionship; however, one may not always be able to experience this. Marriage can collapse, and if this concluding step is reached, both spouses may be ready to divorce. If one spouse is ready to divorce by consent and the other spouse refuses and doesn’t cooperate, then the process becomes lengthy, emotionally exhausting, and legally convoluted. Nevertheless, Indian law considers such identifiable circumstances wherein one may apply for a contested divorce. Under a contested divorce in law, a husband may file for divorce and do so without the wife’s consent, on grounds as defined by the law. The grounds or categories recognized in law encompass cruelty, desertion, mental illness, adultery, and other reasonable and legal definitions. The husband must complete a petition in family court, and the husband must prove his allegations based on evidence provided to the judge. Even though this may take longer than a mutual consent divorce, a contested divorce provides legally binding options when no mutual agreement can be in place.

In this article, you will get to know about:

• Grounds for divorce without the wife’s consent.
• Common Grounds for Contested Divorce.
• What If Your Wife Refuses to Consent?
• Step-by-Step Legal Process to get a Contested Divorce from Wife.
• Key Case Laws.

Grounds For Divorce Without Wife’s Consent

According to Indian Marriage Law, especially the Hindu Marriage Act, 1955, it is not necessary for the husband to obtain the wife's consent for a divorce when he can establish certain legally justifiable reasons for dissolving the marriage. The grounds are laid out in section 13(1) of the Hindu Marriage Act, 1955, which provides that either party may seek a contested divorce.

Section 13 of the Hindu Marriage Act, 1955

Section 13(1) of the Hindu Marriage Act, 1955 sets out the grounds under which either spouse, husband or wife, can apply for a contested divorce. This section makes provisions for specific grounds that make a marriage incapable of continuing, and allows one party to file an application before the court when the other party is not willing to enter into a divorce.

The law has set out several grounds under which a contested divorce can be granted. These are: the voluntary sexual intercourse with another person after the marriage; cruelty; desertion for a continuous period of not less than two years; the spouse has converted to another religion; incurable mental disorder or unsoundness of mind that made it unreasonable to live together; leprosy; venereal disease in a communicable form; the spouse has renounced the world in a religious order; or the spouse has not been heard from in at least seven years (with a presumption of death). The law has also defined mental disorder and psychopathic disorder for clarification.

If any of the aforementioned conditions exist, a husband is entitled to file a petition for a contested divorce as per Section 13(1). This ensures that an individual is not forced to remain in a marriage that has broken down with good reason, with serious issues, merely due to the fact that the other party is unwilling to leave.

Common Grounds for Contested Divorce

A husband can file for a contested divorce under Section 13(1) of the Hindu Marriage Act, 1955, if any of the following grounds are met:

Cruelty (Mental or Physical)

Where a wife has treated the husband cruelly, physically and/or mentally, to the point that it would cause reasonable apprehension in the husband's mind that it would be harmful or injurious to continue living with her. Mental cruelty can manifest itself in many ways, including constant ridicule, unfounded allegations, threats, and acts that risk the husband's psychological well-being. Establishing cruelty requires evidence of the wife's actions and the harm they caused to the husband.

Desertion

Where the wife has deserted the husband without a valid reason and without his consent, and the desertion has been for a continuous period of no less than two (2) years prior to the divorce petition, the parties can prove desertion. Proving desertion includes evidence of the wife's intention to end the cohabitation, as well as proof that she has no valid reasons to separate.

Adultery

If the wife has engaged in voluntary sexual intercourse with someone other than her husband after the marriage. Adultery can be challenging to prove directly and often relies on circumstantial evidence. Under the Bharatiya Nyaya Sanhita, 2023 (BNS), which has replaced the IPC, adultery as a criminal offense is no longer recognized. However, it remains a valid ground for divorce under personal laws.

Mental Disorder

If the wife is suffering from a mental disorder that is incurable or of such a nature and extent that it makes it unreasonable for the husband to continue living with her. Medical evidence and expert testimony are crucial in establishing this ground.

Conversion or Renunciation

If the wife has converted to another religion or has renounced the world by entering a religious order. Proof of such conversion or renunciation is necessary.

Presumption of Death

If the wife has been continuously absent and has not been heard of as being alive for a period of seven years or more by people who would naturally have known her whereabouts if she were alive. This ground establishes a legal presumption of death.

What If Your Wife Refuses To Consent?

When a wife refuses to mutually consent to a divorce, the option available to the husband is to file for a contested divorce based on any of the grounds mentioned under Section 13(1) of the Hindu Marriage Act, 1955 (or equivalent provisions in other personal laws).

Understanding Contested Divorce

A contested divorce is a type of divorce process in which one person wants a dissolution of marriage and the other person does not. In these cases, a spouse, here the husband, is asking the Family Court to declare legally that an unlawful situation exists and what can be done about it. In a contested divorce, the husband has to meet the burden of proving, at a minimum, one or more of the legally recognized grounds for a divorce to the satisfaction of the Family Court.

The process generally involves filing a petition, providing proof to the court, and the husband arguing the case before the judge; subsequently, a wife can contest the divorce action by filing a written reply denying the allegations and providing her own proof or argument.

Legal Rights of the Husband

In a situation where his wife refuses to consent to a divorce, the husband has the following legal rights:

• Right to File for Contested Divorce: As outlined in Section 13(1) of the Hindu Marriage Act, 1955, the husband has the right to file a petition for divorce based on the specified grounds, even without the wife's consent.
• Right to Present Evidence: The husband has the right to present all legally admissible evidence to support his claims and prove the grounds for divorce he has cited. This can include documentary evidence, electronic records, and witness testimonies.
• Right to Legal Representation: The husband has the right to be represented by a lawyer of his choice who can guide him through the legal process, draft the petition, present arguments in court, and protect his interests.
• Right to Seek Interim Orders: During the pendency of the divorce proceedings, the husband may be entitled to seek interim orders from the court on matters such as child custody, maintenance, and restraining the wife from certain actions if necessary.
• Right to Appeal: If the judgment of the Family Court is not in his favor, the husband has the right to appeal to a higher court (usually the High Court) against the decision.

Step-By-Step Legal Process To Get A Contested Divorce From Wife

The legal process for obtaining a contested divorce from a wife in India typically involves the following steps:

1. Consult a Family Lawyer

The initial and most important step is to meet with an experienced family law advocate. The advocate will look into the specific facts of your case, inform you of the relevant grounds for divorce, the strength of your evidence, and what legal strategies may be available to you.

2. Gather Evidence for Your Grounds

Based on the grounds for divorce you intend to pursue, you will need to gather relevant evidence. This might include:

• Cruelty: Medical reports, police complaints, communication records (emails, messages), witness testimonies from family members or friends who have witnessed the wife's cruel behavior.
• Desertion: Records of the wife's departure, communication indicating her intention not to return, and evidence showing the absence of any reasonable cause for her separation.
• Adultery: While direct evidence is often difficult to obtain, circumstantial evidence like call records, travel details, or witness testimonies can be presented.
• Mental Disorder: Medical records, psychiatric evaluations, and expert testimonies from qualified medical professionals.
• Conversion or Renunciation: Official documents or witness testimonies confirming the wife's conversion or renunciation of the world.
• Presumption of Death: Evidence confirming that the wife has been missing and unheard of for seven years or more by those who would naturally have heard from her.

3. File a Petition in Family Court

Your lawyer will write the divorce petition, which identifies the ground(s) for divorce, facts surrounding your marriage, your intention to obtain a divorce/dissolution, and proposed supporting evidence. The petition will be filed in the Family Court that has jurisdiction (usually where the marriage was solemnized, where the parties last lived together, or where the Wife lives now). You will be required to pay the appropriate court fees.

4. Court Issues Notice to the Wife

Once the petition is filed, the Family Court will issue a notice to your wife, summoning her to appear before the court on a specified date. The notice will be served through the court process server or by other legally recognized means.

5. Counseling and Mediation Efforts

The Family Court will usually try to assist the parties with reconciliation. You and your spouse may attend counseling or mediation sessions to find a way to reach a mutually agreeable settlement. If a settlement is achieved at this stage, the divorce will be changed to a mutual consent divorce. If there is no settlement, the next step is a trial.

6. Trial, Witness Examination, and Arguments

If your wife contests the divorce, or if there is no agreement on any issues that she is prepared to accept, then the trial will proceed. You will once again have the chance to present evidence and give witness evidence, cross-examine witnesses, and do opening and closing statements to the trial judge. Your lawyer will present your evidence to the judge and the legal arguments to support your divorce.

7. Final Verdict

The Family Court will issue its judgment after reviewing all the evidence and hearing the arguments from both parties. If the Court is satisfied that you have established one or more of the grounds for divorce, it will grant a decree of divorce, which dissolves the marriage. If the Court determines that the grounds for divorce have not been established, your application for a divorce may be dismissed.

Case Laws

A few case laws are:

Vishwanat vs Sau. Sarla Vishwanath Agrawal

The case Vishwanat vs Sau. Sarla Vishwanath Agrawal dealt with the ground of desertion and clarified the essential elements required to prove desertion, including the intention to abandon and the absence of reasonable cause.

Parties

• Appellant: Vishwanath S/o Sitaram Agrawal (husband)
• Respondent: Sau. Sarla Vishwanath Agrawal (wife)

Issues

The primary issue before the Supreme Court was whether the husband had successfully established mental cruelty by his wife to warrant a decree of divorce. The husband alleged that his wife exhibited tantrums, behaved nastily, and used abusive language, causing him mental agony. The wife denied these allegations, claiming ill-treatment from the husband led her to leave the matrimonial home.

Judgement

The Supreme Court allowed the husband to continue with his appeal and made a decree for divorce. The Trial Court and the High Court both dismissed the husband’s petition on the grounds of concurrent findings that there was no cruelty, but the Supreme Court found, exercising its power under Article 136 of the Constitution to require an exceptional case of misappreciation of evidence or perversity in concurrent findings, that cruelty was made out. The Supreme Court also noted that the wife’s conduct, which included publicizing false allegations of the husband being a womanizer and alcoholic in a newspaper, as well as her abusive behavior towards him and his family, undoubtedly amounted to mental cruelty, and the actions of the wife amounted to a great deal of anguish and reprehension to the husband.

K. Srinivas Rao v. D.A. Deepa

In the case of K. Srinivas Rao v. D.A. Deepa, the Supreme Court broadened the interpretation of cruelty under the Hindu Marriage Act.

Parties

• Appellant: K. Srinivas Rao (Husband)  
• Respondent: D.A. Deepa (Wife)

Issues

The primary question before the Supreme Court was the issue of whether the wife made false and defamatory allegations against the husband and his family, including a complaint under Section 498-A of the Indian Penal Code (dowry harassment) could amount to mental cruelty sufficient to pass a decree of divorce. The High Court had previously set aside the Family Court decree of divorce in favor of the husband.

Judgement

The Supreme Court allowed the husband's appeal and set aside the High Court's judgment, thereby granting a decree of divorce on the ground of mental cruelty.

The Court held that:

• Filing a false criminal complaint against the husband and his family members, alleging dowry harassment, unquestionably constitutes mental cruelty. Such acts are bound to cause immense mental pain, agony, and trauma to the husband and his family.  
• Mental cruelty does not necessarily require physical cohabitation. A spouse can inflict mental cruelty through their conduct even while living separately, such as by making defamatory allegations or initiating false legal proceedings.
• The prolonged separation of over ten years and the escalated animosity between the parties further indicated the irretrievable breakdown of the marriage, although this was considered within the context of the established mental cruelty.
• The Court observed that a marriage that is "dead for all purposes" cannot be revived by a court decree if the parties are unwilling to live together.

Conclusion

While mutual consent divorce is typically a more amicable process, the law in India acknowledges that a spouse cannot be tied in marriage to their partner indefinitely when one (or both) of the spouses has expressed a desire to be divorced, even when they do not agree. Section 13(1) of the Hindu Marriage Act, 1955, outlines enumerated grounds that a husband can ask the Family Court to grant him a contested divorce from his wife.

A husband who decides to pursue a contested divorce will need to prepare and gather the relevant evidence and have skilled lawyers representing him. It is important for a husband who wants to dissolve a marriage when a wife does not want to agree to a divorce to understand the grounds for divorce and the step-by-step process in the Family Court. Ultimately, divorce in the contested event is a decision for the court to make, based upon the evidence that is produced and the applicable law.

FAQs

A few FAQs are:

Q1. Can a husband get a divorce in India if his wife doesn't agree?

Yes, a husband can file for a contested divorce under Section 13(1) of the Hindu Marriage Act, 1955, without his wife's consent if he can prove legally recognized grounds such as cruelty, desertion, adultery, mental disorder, conversion, renunciation, or presumption of death.

Q2. What are the main grounds for a husband to seek a contested divorce under the Hindu Marriage Act?

The main grounds include physical or mental cruelty by the wife, desertion for at least two years, adultery by the wife, incurable mental disorder of the wife, the wife's conversion to another religion or renunciation of the world, and a presumption that the wife is dead if she hasn't been heard of for seven years.

Q3. What is the first step a husband should take if his wife is not giving a divorce?

The first step is to consult with an experienced family law advocate to understand the legal options, the strength of potential grounds for divorce based on the specific circumstances, and the legal process involved in filing a contested divorce.

Q4. What kind of evidence is needed to file for a contested divorce on the ground of cruelty?

Evidence for cruelty can include medical reports, police complaints, communication records (emails, messages), witness testimonies from family or friends who have observed the wife's cruel behavior, and any other documentation that supports the allegations.

Q5. What is the legal process for a husband to get a contested divorce from his wife in India?

The process involves consulting a lawyer, gathering evidence, filing a divorce petition in the Family Court, the court issuing a notice to the wife, potential counseling and mediation efforts, a trial where both sides present evidence and arguments, and finally, the court delivering its verdict.

Disclaimer: The information provided here is for general informational purposes only and should not be construed as legal advice.

For personalized legal guidance, please consult with a qualified family lawyer.