One-Sided Divorce in India: A Clear, Compassionate Guide

When a marriage breaks and only one person wants out, the path can feel scary and confusing. This situation is called a one-sided divorce in India, also known as a contested or unilateral divorce. This guide explains the law, the steps, what to expect, and how to protect yourself and your kids. I’ve combined practical legal points, recent changes like the Bharatiya Nyaya Sanhita (BNS), and soft, real-world advice so anyone — even a teenager — can understand and act smartly.

What is a One-Sided Divorce?

A one-sided divorce in India happens when one spouse files for divorce and the other spouse does not agree. Unlike mutual consent divorce, where both partners agree and sign papers together, a contested divorce forces the court to decide the outcome after hearing both sides. It can be emotional, slow, and sometimes messy, but the law provides clear grounds and steps you can follow.

Key Legal Grounds for a Contested Divorce

Depending on your personal law (Hindu Marriage Act, Special Marriage Act, Christian Divorce Act), you can file on these common grounds:

• Cruelty: Physical or mental behaviour that makes it unsafe or unbearable to live with the spouse. This includes abuse, threats, harassment, or constant humiliation.
• Desertion: When a spouse leaves and stays away for a continuous period (usually two years) without reason or consent.
• Adultery: Though criminal adultery was decriminalised by the Supreme Court in Joseph Shine (2018), adultery can still be used as a civil ground in some personal law cases.
• Mental disorder or incurable illness: Serious mental illness that makes living together impossible.
• Renunciation or conversion: Entering a religious order or converting to another religion (under some laws).
• Presumption of death: If a spouse hasn’t been heard from for seven years.

Courts also sometimes recognise the irretrievable breakdown of marriage as a reason to end a marriage in exceptional cases, especially using Article 142 of the Constitution. Cases like Samar Ghosh and recent rulings have shaped this approach.

How the Bharatiya Nyaya Sanhita (BNS) Affects Divorce Cases

BNS reworked criminal laws and replaced parts of the old IPC framework. It doesn’t change personal laws like the Hindu Marriage Act, but it affects complaints that overlap with criminal offences. For example, cruelty that amounts to a crime will now be handled under BNS provisions (such as the new sections covering cruelty and harassment). Evidence from a BNS criminal case can strengthen your civil divorce petition based on cruelty.

Important points:

• BNS changes how criminal offences are defined and prosecuted. If you file a police complaint alongside a divorce petition, the investigation and trial will follow BNS rules.
• Adultery remains decriminalised after Joseph Shine, so it won’t attract BNS criminal charges unless other crimes are involved.
• Always check the official Gazette and Ministry of Law notifications for the operative dates and exact text of BNS provisions.

Step-by-Step: How to Start a One-Sided Divorce

For the person filing (Petitioner)

• Get a family lawyer experienced in contested cases. Talk clearly about what you want and what you can prove.
• Gather evidence: chats, emails, photos, medical reports, bank statements, witnesses, FIRs, and any proof of desertion or cruelty.
• File the divorce petition in the proper court (Family Court or District Court) with affidavits and supporting documents.
• Ask for interim reliefs if needed — temporary maintenance, child custody, protection orders under the DV Act, or injunctions to stop asset disposal.
• Attend hearings, submit evidence, and let your lawyer examine and cross-examine witnesses.
• If the court suggests mediation, be open — it can resolve money, property, or custody faster even if the divorce remains contested.

For the non-consenting spouse (Respondent)

• Seek legal help immediately. Do not ignore summons or notices.
• File a written reply and any counterclaims for maintenance, custody, or property.
• Gather proof to rebut allegations and line up witnesses.
• Consider mediation if you want to save the marriage or settle the ancillary issues.
• If there are criminal accusations, decide whether to pursue your own legal remedies or file complaints under BNS/DV Act as applicable.

Role of Courts, Mediation and Alternate Dispute Resolution

Family Courts usually encourage mediation and counselling. Judges often ask parties to try settlement before a full trial. Mediation can quickly fix maintenance, custody, and property issues and reduce emotional stress and costs. But if violence or coercion exists, prioritise safety and legal protection over mediation.

Evidence and Interim Reliefs: What Helps Your Case

Evidence matters. Collect everything you can that supports your story:

• Chats, emails, call logs, screenshots
• Medical reports, photos of injuries
• FIR copies, police reports, protection orders
• Financial documents like bank statements, property papers, salary slips
• Witness statements and affidavits

Interim reliefs courts can grant quickly include temporary maintenance (pendente lite), child custody orders, protection orders under the Domestic Violence Act, and injunctions stopping a spouse from selling shared property.

Checklist: Documents to Prepare

• Marriage certificate and children’s birth certificates
• Identity proofs and address proofs
• Proof of separation or desertion (dates, stays)
• Conversation records, screenshots, emails
• Medical and police records if there was cruelty or violence
• Bank statements, income proof, property documents
• Details and affidavits of witnesses

Practical Tips and Emotional Support

This process is often as emotional as it is legal. Here’s simple, practical advice:

• Tell trusted friends or family and get emotional support. Consider therapy if you feel overwhelmed.
• Don’t post personal details or rants on social media — those posts can hurt your case.
• Protect your finances: make copies of important documents and secure your accounts.
• Put kids first. Courts decide custody based on the child’s best interest — stability, education, and emotional health matter most.
• Be patient. Contested divorce cases can take years, but careful preparation shortens delays.

How Employers, NGOs and Others Should Respond

• Employers: Respect privacy and offer leave for court dates. Don’t take sides and follow court orders about maintenance or custody.
• NGOs and support groups: Offer counselling, legal aid and safe shelter if needed. Coordinate with lawyers for urgent interim reliefs.
• Investors and organisations: Keep legal teams updated on family law changes that could affect key personnel, and respect confidentiality.

Key Judgments and Legal Points to Know

• Joseph Shine v. Union of India (2018): Decriminalised adultery but left it as a civil ground in some cases.
• Samar Ghosh v. Jaya Ghosh (2007): Courts may, in exceptional cases, use constitutional powers to dissolve a marriage when it has irretrievably broken down.
• Shilpa Sailesh vs. Varun Sreenivasan (2023): Shows how courts use their powers for fair results in certain deadlocked marriage cases.
• Cruelty cases often rely on the Supreme Court’s interpretation that mental cruelty matters as much as physical acts (e.g., N. G. Dastane).

FAQs: Quick Answers

• 1. Can I get a divorce if my spouse doesn’t agree? Yes. You can file a contested divorce on legal grounds like cruelty, desertion or adultery. The court will decide after hearing both sides.
• 2. How long does a contested divorce take? It varies. It can be months if both sides cooperate, but often it takes 2–5 years in complex cases.
• 3. Will allegations of cruelty also lead to criminal cases? They can. If cruelty involves criminal conduct, police complaints will follow BNS rules and can support the civil divorce case.
• 4. Is mediation useful when the divorce is contested? Yes. Mediation can settle money, custody, and property issues quickly even if the marriage itself remains contested.
• 5. What interim help can courts give? Temporary maintenance, interim custody, protection orders under the DV Act, and orders preventing asset disposal.
• 6. Does adultery still matter? Adultery is not a criminal offence anymore, but it can still be used as a civil ground in some personal law cases.
• 7. How does BNS change things? BNS updates criminal law. If a divorce includes criminal allegations like cruelty or harassment, those criminal charges will be handled under BNS.

Final Steps: How to Move Forward

If you face a one-sided divorce in India, do these three things first:

• Preserve all evidence and start a file (digital and physical).
• Consult a specialist family lawyer right away.
• If you’re in danger, call the police and apply for protection under the Domestic Violence Act.

About LawCrust Legal Consulting

LawCrust Legal Consulting, part of LawCrust Global Consulting Ltd., helps people through family matters, property disputes, criminal and civil cases, immigration, and more. With over 50 offices and 70+ specialised lawyers across India, we offer legal help for contested divorce cases, interim reliefs, mediation and litigation. You can use our app to connect with lawyers quickly.

Contact LawCrust:

• Call: +91 8097842911
• Email: inquiry@lawcrust.com
• Book an online legal consultation through their website or app.

Facing a divorce alone feels tough, but you don’t have to go through it without help. Stay calm, collect proof, get legal advice, and protect your children and finances. The law gives you routes to safety and a fair outcome — use them with care.