Answer By law4u team
Yes, under Indian law, divorce can certainly be granted even if one spouse does not agree to it. Mutual consent is not the only way to dissolve a marriage in India. If one partner refuses to give consent for a mutual divorce, the other partner can approach a competent family court and file a contested divorce petition under the relevant personal laws governing their marriage, such as the Hindu Marriage Act, 1955 (HMA) for Hindus, Buddhists, Sikhs, and Jains, or other applicable laws for different communities. To obtain a contested divorce without the consent of the other spouse, the petitioner must legally prove one or more specific grounds recognized by the applicable statute. Under Section 13 of the Hindu Marriage Act, 1955, these statutory grounds include cruelty, desertion, adultery, conversion to another religion, mental disorder of such a kind that the petitioner cannot reasonably be expected to live with the respondent, leprosy, venereal disease in a communicable form, or if the respondent has renounced the world by entering any religious order. Additionally, under the same section, a divorce can be sought if the respondent 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 them. Cruelty is one of the most frequently invoked grounds in contested divorce proceedings in India. Cruelty is not strictly confined to physical violence; it can be mental or emotional as well. Mental cruelty encompasses a wide range of conduct, such as continuous humiliation, insults, false allegations of character or chastity, threats of suicide, deliberate neglect, or forcing a spouse to live in unbearable conditions. The Supreme Court of India and various high courts have repeatedly held through numerous landmark judgments that when the mental or physical cruelty inflicted by one spouse makes the continuation of matrimonial life practically impossible and causes a grave apprehension to life, limb, or health, the court is fully justified in dissolving the marriage even against the strong resistance and total disagreement of the non-consenting spouse. Desertion is another prominent ground for a contested divorce. Under the law, desertion means the permanent abandonment of one spouse by the other without any reasonable cause and without the consent or against the wish of the deserted spouse. To successfully obtain a decree of divorce on the ground of desertion, the petitioner must prove that the desertion has continued for a continuous period of at least two years immediately preceding the presentation of the divorce petition, and that the deserting spouse had the clear intention to bring cohabitation permanently to an end. Adultery involves voluntary sexual intercourse with any person other than one's spouse during the subsistence of the marriage. Following the historic striking down of Section 497 of the Indian Penal Code (IPC) by the Supreme Court, adultery is no longer a criminal offense in India, but it remains a valid and potent ground for seeking a civil decree of divorce under personal laws. To prove adultery, the petitioner must present cogent, convincing, and reliable evidence, as direct evidence is rarely available in such matters, and the court often relies on circumstantial evidence that points unmistakably to the commission of the act. Apart from the specific fault grounds mentioned in the statutes, the breakdown of the marriage can also be considered by the highest courts under extraordinary circumstances. While ordinary district courts and family courts do not possess the inherent power to grant a divorce merely on the ground of irretrievable breakdown of marriage, the Supreme Court of India frequently exercises its extraordinary powers under Article 142 of the Constitution of India to dissolve a marriage directly when it finds that the marital bond is completely shattered, dead beyond repair, and that forcing the parties to remain legally bound together causes perpetual mental agony and constitutes cruelty in itself, irrespective of whether one spouse vehemently disagrees and opposes the divorce. When a contested divorce petition is filed, the family court follows a rigorous judicial procedure. The petition is served upon the non-consenting spouse, who is given an opportunity to file a written statement responding to the allegations. The court first attempts mandatory reconciliation between the parties to see if their differences can be resolved and the marriage can be saved. If reconciliation fails, the court frames issues, conducts a trial where both parties present oral and documentary evidence, allow cross-examination of witnesses, and finally hears arguments from both sides. If the petitioner successfully establishes any of the legally recognized grounds for divorce by a preponderance of probability, the court will pass a decree of divorce, dissolving the marriage legally, regardless of the non-consenting spouse's opposition.
