What Is The Process Of One-Sided Divorce In India?

In India, marriage is the most sacred institution that is governed by the personal laws based on any religion. However, not all marriages last forever. When a relationship becomes abusive or completely breaks down, but one partner refuses to end it, divorce can become legally complex.

This is where one-sided divorce comes into play. Also known as contested divorce, it refers to situations where only one spouse wants separation and the other is unwilling. Unlike mutual consent divorce, this process is longer, requires evidence, and involves a court trial. This article breaks down the full legal procedure, grounds for filing, timelines, and what to expect.

What is a One-Sided Divorce?

A one-sided or contested divorce is filed by one spouse without the other’s consent. The petitioner must prove specific grounds under their applicable personal law. The case proceeds in family court and involves evidence, witness testimony, and legal arguments.

Grounds for One-Sided Divorce: What the Law Allows You to Say in Court?

Under the Hindu Marriage Act 1955, you can file for divorce based on the following grounds:

• Cruelty: This may take the form of persistent emotional abuse or even physical violence
• Adultery: Your partner had an affair, and you can prove it
• Desertion: They walked out of the marriage for 2+ years without reason
• Conversion: Your spouse converted to another religion
• Mental illness: Serious and incurable mental disorder affecting married life
• Venereal disease: An incurable STD that puts you at risk
• Renunciation: If your partner has become a monk or sanyasi
• Presumption of death: If they’ve disappeared and haven’t been heard from in 7+ years

In my practice, mental cruelty and false criminal accusations are the most common grounds cited by those filing a contested divorce.

My Client’s Journey: From Abandonment to Final Divorce Decree

Take one case of a girl, whose husband left her and their child and vanished for over three years. No calls, no financial support. After filing under desertion and submitting WhatsApp chats, her child’s school letters, and bank statements, we obtained a favourable ex parte divorce in just 10 months. She cried tears of relief when she held the decree. Justice can be served, but it requires guts and proof.

How to File a One-Sided Divorce in India: Step-by-Step?

Step 1: Talk to a Good Divorce Lawyer 

• A skilled lawyer will help you identify the right legal ground, assess available proof, and avoid technical errors in the petition.
• Clients often come to me after they’ve filed a weak petition that gets stuck in court. The first draft matters. Get it right.

Step 2: Filing the Divorce Petition in Family Court

Your lawyer will draft the petition with all the details and file it in the family court in the appropriate jurisdiction. This could be based on:

• Where the couple last lived together
• Where the other spouse currently lives
• Where you (the petitioner) live, under certain situations

Step 3: Notice to the Other Spouse

The court sends a summons to your spouse asking them to appear and respond to the allegations.

Step 4: Response and Trial

The other party may:

• Contest the divorce (by denying your allegations)
• File counter-allegations (e.g., domestic violence, dowry harassment)
• Then, both sides will present evidence, examine witnesses, and argue in court.
• I always prepare my clients emotionally for cross-examination, it can feel personal, but it’s part of the process.

Step 5: Final Judgment

The court, after hearing both sides, will decide whether the petition is valid and may grant or reject the divorce.

How Long Will It Take? Reality Check

Contested divorces are not quick. Here’s a rough idea:

• 2 to 5 years: If both sides are actively involved
• 6-12 months: If the respondent never appears (ex parte case)

Factors affecting duration:

• Number of witnesses
• Court backlog
• Complexity of issues (like child custody, alimony)

Documents You Must Have Ready

This is what I always ask clients to bring for their first consultation:

• Marriage certificate
• ID and address proof
• Evidence of cruelty, desertion, or adultery (texts, emails, medical reports, FIRs)
• Financial statements (for alimony or maintenance)
• Child’s birth certificate (if custody is an issue)

Alimony, Maintenance & Custody in One-Sided Divorce

Here’s what you should know:

• The Hindu Marriage Act’s Section 24 permits the request for temporary maintenance while the case is pending. 
• Custody decisions are made based on the child’s best interest under the Guardians and Wards Act, 1890

Case Insight: Gaurav Nagpal v. Sumedha Nagpal (2009): The Supreme Court made it clear that child welfare trumps everything, even parental rights.

One-Sided Divorce in Other Personal Laws

Muslim Law

• For men: Can give Talaq with due process (triple talaq is banned now).
• For women: Can seek Khula (with husband’s consent) or Faskh (court-ordered divorce) on grounds like cruelty, abandonment, or non-maintenance.

Christian Law

Under the Indian Divorce Act, 1869, Christians can file for divorce based on:

• Adultery
• Cruelty
• Desertion
• Conversion
• Unsoundness of mind

Parsi Law

Under the Parsi Marriage and Divorce Act, 1936, a contested divorce can be filed for adultery, cruelty, or desertion. These are heard in Parsi Matrimonial Courts.

Challenges You Should Prepare For

• Heavy emotional toll: Especially if children or false cases are involved.
• Evidence burden: You need solid, admissible proof.
• False counter-cases: Dowry, 498A, or Domestic Violence Act allegations are common.
• Delay tactics: Some spouses use adjournments to prolong the case.

Counselling and Mediation: Can the Court Send You for Reconciliation?

• Yes. Courts often refer parties to mediation before starting a trial.
• Some clients patch up during mediation. Others just use it to show they tried. Either way, it’s a necessary step.

When Can You Get Divorce Without Spouse’s Presence?

If your spouse ignores repeated court notices, the case can proceed ex parte. Courts have the power to grant you divorce even in their absence.

How to Stay Mentally Strong During the Process?

• Document everything
• Avoid reacting emotionally to false claims
• Maintain dignity during court proceedings

Conclusion: You Are Not Powerless

If your marriage is over but your spouse won’t let go, the law empowers you to walk away, with dignity. One-sided divorce is not easy, but it is your legal right and human right to seek peace.

So, a good lawyer, good documentation, and great emotional strength will help your future stay intact.

One can talk to lawyer from Lead India for any kind of legal support. In India, free legal advice online can be obtained at Lead India. Along with receiving free legal advice online, one can also ask questions to the experts online free through Lead India.

FAQs

1. What if one spouse refuses to appear in court for the divorce hearing?

Based on the information you presented, the judge may hold an ex parte hearing and issue the divorce in the other party’s absence if your husband consistently ignores summonses.

2. Can I claim maintenance from my spouse even if I file for a one-sided divorce?

Yes. Even as the petitioner, you have the right to request temporary or permanent support under Sections 24 or 25 of the Hindu Marriage Act.

3. Is it necessary to attend mediation if I know the marriage cannot be saved?

Yes, courts usually mandate at least one mediation session before trial. However, if reconciliation fails, proceedings will resume.