Quick answer
- When one spouse does not agree to divorce, the other must prove a ground under Section 13 of the Hindu Marriage Act, 1955: cruelty, desertion for two years, adultery, conversion, serious mental disorder, communicable venereal disease, renunciation of the world, or not being heard of for seven years.
- Cruelty is the most common ground and includes mental cruelty (Samar Ghosh v. Jaya Ghosh, 2007).
- A divorce petition cannot ordinarily be filed within one year of marriage (Section 14), unless there is exceptional hardship or depravity.
- Irretrievable breakdown is not a ground before the Family Court; only the Supreme Court can dissolve a marriage on that basis under Article 142 (Shilpa Sailesh, 2023).
If both spouses agree, a mutual consent divorce is faster. When one spouse refuses, the other must file a contested petition and prove a legal ground with evidence.
In this article
What are the grounds for divorce under Section 13?
Either spouse can seek divorce if the other:
- Has had voluntary sexual intercourse with someone else after marriage (adultery)
- Has treated the petitioner with cruelty, physical or mental
- Has deserted the petitioner for a continuous period of at least two years before the petition
- Has converted to another religion
- Is suffering from an incurable mental disorder of a kind that the petitioner cannot reasonably be expected to live with
- Is suffering from a communicable venereal disease
- Has renounced the world by entering a religious order
- Has not been heard of as alive for seven years
Divorce is also available where there has been no resumption of cohabitation for one year after a decree of judicial separation, or no restitution of conjugal rights for one year after such a decree (Section 13(1A)). A wife has additional grounds under Section 13(2).
What amounts to mental cruelty?
In Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511, the Supreme Court gave illustrations: sustained humiliation and abuse, unilateral refusal of sexual relations for a long time without reason, a long period of separation showing the marriage has broken down, and conduct that makes it impossible to live together. False criminal complaints and baseless allegations of character against a spouse have also been held to be cruelty. Ordinary wear and tear of married life is not enough.
How is desertion proved?
You must show that the other spouse left without reasonable cause and without consent, with the intention of ending cohabitation, for at least two continuous years before filing. Letters, messages and witnesses about attempts to reconcile help prove intention.
Can you file in the first year of marriage?
Not ordinarily. Section 14 bars a divorce petition within one year of marriage unless the court allows it because of exceptional hardship to the petitioner or exceptional depravity by the respondent.
Is irretrievable breakdown a ground?
Not under the Hindu Marriage Act. In Shilpa Sailesh v. Varun Sreenivasan (2023), a Constitution Bench held that the Supreme Court can dissolve a marriage that has irretrievably broken down using its power under Article 142. Family Courts cannot do this, but long separation is relevant evidence of cruelty.
What is the process?
- File the petition in the Family Court where the marriage was solemnised, where the respondent lives, where the couple last lived together, or where the wife lives (Section 19).
- The court issues notice and refers the parties to mediation or counselling.
- If there is no settlement, both sides file evidence by affidavit and witnesses are cross-examined.
- The court decides and passes a decree. An appeal lies to the High Court within 90 days (Section 28).
Interim maintenance (Section 24), custody and residence issues are decided alongside. Read about permanent alimony and child custody.
How long does a contested divorce take?
Usually two to five years in the Family Courts of Delhi, Noida and Ghaziabad, depending on evidence and adjournments. Many contested cases end in a settlement and conversion into mutual consent divorce.
Need help?
Speak to our divorce lawyer in Noida, see our family law practice, or contact us.
Frequently asked questions
Can I get a divorce if my spouse does not agree?
Yes, by filing a contested petition and proving a ground under Section 13 of the Hindu Marriage Act, such as cruelty or desertion.
Is a false police complaint a ground for divorce?
Courts have held that filing false and baseless criminal complaints against a spouse can amount to mental cruelty, depending on the facts.
How long must the spouse have deserted me?
At least two continuous years immediately before filing the petition, without reasonable cause and without your consent.
Can a contested divorce be converted to mutual consent?
Yes. If the spouses settle during the case, they can file a joint petition for mutual consent divorce and end the contested case.
Sources
- Hindu Marriage Act, 1955 — Sections 13, 13(1A), 13(2), 14, 19, 24 and 28
- Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511
- Shilpa Sailesh v. Varun Sreenivasan, 2023 INSC 468
- Constitution of India — Article 142
This article is general legal information, not legal advice for your specific case. Law and procedure change; please consult an advocate before acting.
