If your wife or husband does not want to divorce you, then what can you do? There are many instances where you want to get divorced, the reason can be anything but your husband or wife refuses to divorce you.
I am Supriya Gill, a Lawyer and the purpose of this article is to provide guidance on how to get a divorce in this situation.
When your husband or wife refuses to divorce you, you have the option of a Contested divorce. To get a Contested divorce you need to file a divorce petition in the Court and you need to prove the grounds such as Cruelty, desertion etc. on which your divorce petition is based. Whatever grounds there might be, you must establish that one of these grounds exists in your case to file for divorce. If the court is satisfied that the grounds for divorce have been established, you will get the divorce decree.
Types of divorce processes in India
In India, there are two main types of divorce processes i.e, Contested divorce and Mutual consent divorce.
In a Contested divorce, one or both spouses disagree on the grounds of divorce or issues related to divorce such as property division, child custody, etc. and they must go to Court to resolve their differences.
In Mutual Consent Divorce, both spouses agree to the divorce and sign a joint petition. Mutual Consent Divorce is a faster and simple process than a Contested divorce.
The process to file for divorce when one spouse is not ready
The legal process to get a divorce when one spouse is not ready:
- Determine the grounds for divorce: Indian law recognizes several grounds for divorce, which include cruelty, desertion, adultery etc. You need to establish that one of these grounds exists in your case to file for divorce.
- File a divorce petition: File a petition for divorce in the relevant court, which must be served on your spouse. You must provide evidence to support your claims and it is advisable to seek legal advice.
- Attend the hearing: If your spouse does not agree to the divorce, the court will schedule a hearing. Both parties must attend the hearing and present their cases.
- Obtain the divorce decree: If the court is satisfied that the grounds for divorce have been established, it will issue a divorce decree, officially ending the marriage.
How to file a Contested divorce when one spouse is not ready?
Step 1: Gather Documents: The first thing that you need to do is gather all the required Documents such as:
- Proof of marriage like an Invitation Card, Marriage Certificate, photos, etc.
- Residence proof like Aadhaar Card, PAN Card, etc.
- Evidence to prove the Grounds of divorce. If your ground of divorce is cruelty, you need to have evidence to establish this ground such as videos or photos of the incident, medical proof, witnesses of the incident, etc.
Step 2: Approach an Advocate: To ensure that your case is strong enough, you must take the advice of an advocate. Discuss all the factors relating to your case with your Advocate.
Step 3: You may Send Legal Notice to Husband or Wife: Before filing the divorce petition, you may send the Legal notice to your husband or wife as a final warning.
Step 4: Draft the Petition: The Advocate will draft the divorce petition. Mention all the incidents in chronological order.
Step 5: Filing of divorce petition: Once your divorce petition is drafted, file it in the appropriate Court.
Step 6: Notice is served to the opposite party by the Court to join the process of the Court.
Step 7: Mediation: The court gives chance for a settlement, by ordering counselling.
- If both parties agree to divorce then the process of Mutual Consent divorce starts.
- If both parties agree to settle the dispute then the petition is withdrawn.
- If there is no such settlement then the trial starts.
Step 8: Evidence: As the trial begins in the Court. The petitioner needs to establish the ground of divorce by providing all the evidence in the Court.
Step 9: The final order of the Court: At the end of the trial the Court gives its final order. If the petitioner satisfies the Court that the grounds for divorce have been established, the divorce decree will be passed.
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