Spouse won't agree to a divorce? Contested divorce explained

What has probably happened

You have decided the marriage cannot go on, and your spouse will not agree to a divorce. Perhaps they refuse outright. Perhaps they agree in principle but not on the children, money or property. Or they have simply stopped answering.

When both spouses agree, they can file together for a mutual consent divorce. When one does not, the spouse who wants the divorce must file a case alone and prove a reason the law accepts. This is a contested divorce. The spouse who files is the petitioner; the other is the respondent. The reason you rely on is called the ground for divorce.

The ground depends on the law your marriage falls under:

• Hindus, Buddhists, Jains and Sikhs — Section 13 of the Hindu Marriage Act, 1955. Grounds include adultery, cruelty, desertion for a continuous period of at least two years, conversion to another religion, serious mental disorder, venereal disease in a communicable form, renouncing the world, and not being heard of as alive for seven years.
• Marriages under the Special Marriage Act, 1954 (often inter-faith or court marriages) — Section 27.
• Christians — Section 10 of the Divorce Act, 1869.
• Parsis — Section 32 of the Parsi Marriage and Divorce Act, 1936.
• Muslim women — Section 2 of the Dissolution of Muslim Marriages Act, 1939 lists the grounds on which a wife can ask the court to end the marriage.

Desertion means your spouse left you without reasonable cause and without your consent, and includes wilful neglect. Cruelty is not defined in the Hindu Marriage Act; courts decide it on the facts, and it can be mental as well as physical.

What to do, step by step

First — if you are not safe, deal with that before anything else. If you are in danger, call 112. A woman facing abuse at home can apply to a Magistrate under Section 12 of the Domestic Violence Act, 2005 for protection, residence and money orders, and that case can run alongside a divorce. See Domestic violence application.

Week 1 — write your timeline. Write down, in order, when you married, where you lived together, and each event that has brought you here, with dates. Note who saw what happened. Memory fades; a timeline written now is the backbone of your case.

Week 1 to 2 — keep the evidence safe. Save messages, emails, letters, photographs, medical records and any police complaint. Back them up somewhere your spouse cannot reach. Keep originals of your marriage certificate and your children's birth certificates.

Check the first-year rule. Under the Hindu Marriage Act (Section 14) and the Special Marriage Act (Section 29), a divorce petition ordinarily cannot be filed until a year after the marriage. An earlier petition needs the court's permission on grounds of exceptional hardship or exceptional depravity.

Think about money now. List your income, savings and monthly expenses, and whatever you know of your spouse's job, salary, property and bank accounts. If you do not have enough income of your own, you can ask for monthly support and the costs of the case while it runs. See Maintenance: who can claim and Interim maintenance.

Think about the children now. Where they live while the case runs matters. The court in a divorce case can make interim orders about their custody, maintenance and education (Hindu Marriage Act, Section 26). See Custody of a child after separation.

Consider the other routes. Not everyone needs to start with a contested divorce:

• Try once more for agreement. If the only dispute is about money or the children, an advocate or a mediator may help you settle, and then file for mutual consent divorce, which is usually quicker.
• Judicial separation. A court order that you no longer have to live together, without ending the marriage (Hindu Marriage Act, Section 10). See Judicial separation.
• Restitution of conjugal rights. If you want your spouse to come back, not a divorce (Hindu Marriage Act, Section 9).

Talk to an advocate before you file. Whether your facts make out a ground, which ground to rely on, and which court to file in are the decisions that shape the whole case. Under Section 19 of the Hindu Marriage Act, you can file where the marriage took place, where your spouse lives, where you last lived together, or, if you are the wife, where you live now.

What happens after you file

The full court process is in Contested divorce: grounds, steps and what to expect. In short:

1. Notice and reply. The court sends notice to your spouse, who files a written statement answering your petition.
2. Settlement efforts. The court must first try to bring about a reconciliation where it can, and may refer you to a person or counsellor for up to fifteen days to try (Hindu Marriage Act, Section 23). A Family Court must also try to help you settle (Family Courts Act, Section 9).
3. Interim applications. Support, costs of the case, and children's custody and maintenance while the case runs (Hindu Marriage Act, Sections 24 and 26; for a wife under the Special Marriage Act, Section 36; for a wife under the Divorce Act, Section 36; for either spouse under the Parsi Act, Section 39).
4. Evidence. You give evidence and are questioned by your spouse's advocate. Then your spouse and their witnesses.
5. Decree. The court grants or refuses the divorce, and can order permanent alimony and orders about the children.

Section 21B of the Hindu Marriage Act asks courts to try to finish the trial within six months of notice reaching the respondent. That is a target, not a promise. Contested cases often take longer.

Timeline and costs

When	What	Who pays
Now	Timeline, evidence, list of income and expenses	—
Before filing	Advice on the ground, the court and interim claims	A call with a senior advocate from our panel: ₹10,000 for 30 minutes
Filing	Petition in the Family Court, or the district court where there is none	Court fee (set by your state) and the advocate's fee, which they quote first
While the case runs	Counselling, interim applications, evidence	The advocate's fee as quoted; you can ask for case expenses under Section 24
Decree + appeal time	Appeal to the High Court within thirty days of a Family Court judgment (Family Courts Act, Section 19)	—

Documents to keep handy

• Marriage certificate, or wedding photographs and the invitation card.
• Your identity and address proof.
• Your written timeline, with dates and the names of witnesses.
• Messages, emails, letters, photographs, medical records, police complaints.
• Salary slips, bank statements, tax returns, and a list of monthly expenses.
• Children's birth certificates and school records.
• Copies of any earlier case or complaint between you and your spouse.

Mistakes that sink people

• Filing before checking the ground. A petition that does not prove a ground is dismissed, however unhappy the marriage.
• Leaving out the money and the children. Ask for interim support and custody orders early, not at the end.
• Losing evidence. Phones get reset and accounts get locked. Back up now.
• Exaggerating. Every fact you state can be tested in cross-examination. State what happened, plainly and accurately.
• Remarrying too soon. Wait until the appeal period has passed (Hindu Marriage Act, Section 15).
• Ignoring a notice if your spouse files first. The court can go ahead without you.

When you are not sure yet

If you have not decided, or you want to know whether your facts are strong enough, a 30-minute call with an independent advocate from our panel starts at ₹999. For a contested divorce, a senior advocate is usually the right choice. eMunshi is a technology platform, not a law firm; the advocate you speak to is independent and gives you their own advice.