In India, marriage is a sacred bond, but when one spouse seeks divorce while the other resists, the law provides robust remedies through contested divorce under personal laws like the Hindu Marriage Act, 1955 (HMA). Courts recognize that forcing a dead marriage serves no purpose, allowing unilateral petitions on fault-based grounds without mutual consent.
Legal Grounds Under HMA Section 13(1)
Even if your spouse refuses, you can file for divorce by proving:
Cruelty (Section 13(1)(ia)): Physical/mental harassment, abuse, or denial of conjugal rights.
Desertion (Section 13(1)(ib)): Abandonment for 2+ continuous years without cause.
Adultery (Section 13(1)(i)): Extramarital relations.
Conversion (Section 13(1)(ii)): Spouse converts to another religion.
Mental Disorder (Section 13(1)(iii)): Incurable insanity or venereal disease.
Presumption of Death (Section 13(1)(vii)): Missing for 7 years.
For wives, additional grounds like husband’s bigamy or rape exist under Section 13(2).
Step-by-Step Legal Remedies
File Petition: In family court of matrimonial home/jurisdiction (Section 19 HMA); pay court fee (~₹500-2000).
Cooling-Off Period: 6 months mandatory (waivable if cruelty proven).
Evidence & Mediation: Submit affidavits, witnesses, medical reports; court mandates counseling.
Interim Relief: Seek maintenance (Section 24), custody (Section 26), or protection orders.
Decree: Granted if grounds proven; appealable to High Court.
Restitution of Conjugal Rights (Section 9 HMA): Counter-remedy—if spouse deserts, file to compel return; non-compliance strengthens divorce grounds after 1 year.
Landmark Case Studies
| Case | Key Facts | Ruling & Impact |
|---|---|---|
| Naveen Kohli v. Neelu Kohli (2006) 4 SCC 558 | Wife’s persistent harassment drove husband to suicide attempt; wife refused mutual divorce. | SC granted divorce invoking irretrievable breakdown (though not statutory then); recommended legislative change—paved way for judicial separations. |
| Dastane v. Sucheta Dastane (1975) AIR 1534 SC | Husband proved mental cruelty via taunts/denied relations. | Defined “cruelty” broadly (conduct causing danger to life/limb); divorce upheld despite wife’s denial—gold standard for evidence. |
| Bipin Chandra v. Prabhawati (1957) AIR 176 SC | Wife deserted for 5 years without cause. | Clarified desertion needs intent + duration; one-sided divorce granted—emphasized no consent required for fault grounds. |
| Shayara Bano v. Union of India (2017) 9 SCC 1 | Challenged triple talaq; wife sought remedies against unilateral husband divorce. | Declared instant talaq unconstitutional; reinforced women’s right to contested remedies under secular laws. |
Practical Advice & Challenges
Contested divorces take 3-7 years (fast-tracks in cruelty cases), costing ₹50k-5L in fees. Success rate ~70% with strong evidence (WhatsApp logs, medicals). Post-2023 Bharatiya Nagarik Suraksha Sanhita, timelines shortened via mediation.
Bottom Line: Refusal doesn’t block divorce—courts prioritize justice over consent. Consult a family lawyer immediately for petition drafting; evidence wins cases. For Hindus/Muslims/Christians, personal laws align similarly—act decisively to reclaim your life.
