What can I do if my partner refuses to divorce me?

Marriage is both a legally and socially approved union, but if the marital union collapses irretrievably, divorce is a legal necessity. While mutual consent divorce allows for a quick separation, issues arise when one of the spouses—more often than not, the husband—declines to provide his consent. The issue then presents itself: Can an individual be compelled to stay in a marriage against their will? Indian matrimonial law responds negatively.

In Indian law, particularly the Hindu Marriage Act, 1955, a spouse's refusal to agree does not leave the other spouse helpless. Provisions of law are present that allow one to apply for a contested divorce, as long as there are grounds available. This article discusses such remedies in detail. It goes into the process of contested divorce under Indian personal law, statutory provisions applicable, court procedure, and landmark court pronouncements. Regardless of whether the resistance is emotional, religious, or strategic, a spouse's refusal to agree to divorce does not legally exclude the other from getting one. This article seeks to clarify the steps to be taken, providing illumination for those stuck in one-sided marriages.

Legal Framework for Divorce in India

In India, marriage and divorce are governed by personal laws based on religion:

• Hindus, Buddhists, Jains, and Sikhs: Hindu Marriage Act, 1955

• Muslims: Muslim Personal Law (Shariat) Application Act, 1937 and Dissolution of Muslim Marriages Act, 1939

• Christians: Indian Divorce Act, 1869

• Parsis: Parsi Marriage and Divorce Act, 1936

• Interfaith Marriages: Special Marriage Act, 1954

  Each of these laws outlines the grounds on which a spouse can seek divorce unilaterally, that is, without the other's consent.

Understanding Contested Divorce

A contested divorce arises when one spouse initiates legal proceedings seeking dissolution of marriage, and the other contests it, either by disputing the allegations or refusing to participate. Section 13 of the Hindu Marriage Act, 1955, lays out specific grounds for contested divorce, including:

• Cruelty (mental or physical)

• Adultery

• Desertion for at least two years

• Conversion to another religion

• Mental disorder makes cohabitation unreasonable.

• Leprosy or venereal disease in communicable form

• Renunciation of worldly life (Sanyasa)

• Presumption of death (absence for 7+ years)

  If these grounds are satisfactorily proven, the Family Court may grant a unilateral divorce decree, irrespective of the respondent’s opposition.

Procedure to File for Divorce When Spouse Refuses

1. Legal Consultation

The first step involves engaging a family law practitioner to assess the facts and determine the appropriate legal ground. A lawyer will draft the plaint (petition for divorce) in line with statutory requirements.

2. Filing of Divorce Petition

The petition is filed in the appropriate Family Court having territorial and subject-matter jurisdiction, along with supporting affidavits, documents, and proof of marriage.

3. Issuance of Summons

Upon scrutiny, the court issues a summons to the respondent spouse, calling upon them to file their written statement and appear before the court on the scheduled date.

4. Mediation and Reconciliation

In compliance with Section 9 of the Family Courts Act, 1984, the court refers parties to mediation or counselling to explore the possibility of reconciliation. If such attempts fail, the court resumes adjudication.

5. Reply and Counter-Claims

The respondent may file a written statement denying the petitioner’s claims or raise counter-allegations such as mental cruelty, financial exploitation, or extramarital affairs.

6. Evidence Stage

Both parties are called upon to lead evidence—oral and documentary—to substantiate their claims. Witnesses may be summoned and cross-examined. This is a crucial phase, as the burden of proof lies on the petitioner to demonstrate valid legal grounds.

7. Final Arguments and Judgment

After the evidentiary stage, both parties present final arguments through counsel. The judge then passes a reasoned judgment either granting or denying the decree of divorce.

Legal Safeguards for the Aggrieved Spouse

1. Ex-Parte Divorce: If the respondent consistently avoids court appearances despite due service of summons, the court may proceed ex parte and grant divorce based solely on the petitioner’s pleadings and evidence.

2. Court's Discretion: Even if the respondent contests the divorce, the court may grant a divorce if the allegations are proven. In Samar Ghosh v. Jaya Ghosh (2007) 4 SCC 511, the Supreme Court clarified that prolonged mental agony and incompatibility can amount to mental cruelty.

3. No Requirement of Spouse’s Signature: There is a common misconception that divorce requires both spouses to sign. In contested divorces, the respondent’s consent or signature is irrelevant. It is the court’s decision, not mutual agreement, that dissolves the marriage.

Delaying Tactics by the Spouse

A non-cooperative spouse may:

• Avoid summons

• Skip court dates

• File unnecessary interlocutory applications.

• Challenge procedural steps

In such cases, you may:

• Seek early hearing orders under Order XV-A, CPC.

• File for costs or compensatory litigation expenses

• Seek contempt proceedings under the Contempt of Courts Act, 1971

  The judiciary, recognizing these tactics, ensures that delays are minimized to protect the right to dignified separation.

What If You Can’t Locate Your Spouse?

In such cases:

• Newspaper publications in widely circulated dailies are submitted as evidence.

• A report from the local police station shows due diligence in finding the spouse.

• If all steps fail, the court may permit substituted service under Order V, Rule 20 CPC, and proceed to grant divorce ex parte.

Landmark Judgments

1. Dastane v. Dastane (1975 AIR 1534) – Clarified that proof of cruelty need not meet criminal standards; even mental cruelty suffices.

2. Naveen Kohli v. Neelu Kohli (2006) 4 SCC 558 – Recognized irretrievable breakdown as valid justification for divorce.

3. Ravi Kumar v. Julmi Devi (2021 SCC OnLine SC 52) – Reaffirmed that a spouse cannot be forced to stay in a dead marriage.

Right to Appeal

The aggrieved party may appeal the Family Court decree to the High Court under Section 19 of the Family Courts Act, 1984, and further to the Supreme Court under Article 136 of the Constitution if substantial injustice is shown.

In Conclusion, A spouse’s refusal to grant a divorce may emotionally and psychologically burden the other, but legally, it does not prevent the marriage from being dissolved. Indian family law prioritizes substantive justice, recognizing that forced cohabitation is against individual dignity and freedom. With sufficient legal grounds and procedural adherence, a contested divorce remains a viable and enforceable remedy. Individuals in such marital impasses must approach the courts with proper legal representation and not succumb to the myth that divorce is impossible without the partner's agreement.