Yes. Divorce in India does not require both spouses to agree. If one refuses, the other can file a contested petition and must prove a legal ground such as cruelty, desertion or adultery. If the spouse ignores the case after proper notice, the court can proceed ex parte, but it still needs proof before granting the decree.
Key takeaways
- Mutual consent is one route to divorce, not the only one.
- Without consent you must prove a statutory ground; wanting out is not enough.
- A spouse who ignores summons cannot stop the case; the court can proceed ex parte.
- An ex parte decree can be challenged, so service of notice must be done properly.
- Consent given for mutual divorce can be withdrawn until the decree is passed.
Does divorce require mutual consent in India?
No. Indian law offers two routes. In a mutual consent divorce (Hindu Marriage Act, 1955 s.13B; Special Marriage Act, 1954 s.28) both spouses file together and no one has to prove fault. In a contested divorce (HMA s.13; SMA s.27) one spouse files alone, and the court can dissolve the marriage even if the other spouse objects strongly, provided a ground in the statute is proved.
What a one-sided petition cannot do is succeed on dissatisfaction alone. Family courts can grant divorce only on the grounds the law lists. 'We are incompatible' or 'the marriage is dead' is not by itself a ground a family court can use, which is why the choice and proof of ground matters so much. How that proof is built is covered in our guide to evidence for each divorce ground; this article is about the route itself when your spouse refuses or disappears.
Mutual consent vs contested divorce: how do they compare?
| Point | Mutual consent (HMA s.13B) | Contested (HMA s.13) |
|---|---|---|
| Who files | Both spouses jointly | One spouse |
| Consent of other spouse | Essential until the decree | Not needed |
| Preconditions | Living separately for at least one year; agreement on terms | A ground under s.13(1), 13(1A) or 13(2); petition normally not within one year of marriage (s.14) |
| Proof | Genuineness of consent | Ground proved on preponderance of probabilities |
| Waiting period | Six months between first and second motion, which can be waived in suitable cases (Amardeep Singh v. Harveen Kaur, 2017) | None fixed; depends on trial |
| Typical duration | Months | Often years, depending on the court |
| Appeal | Rare | Common; appeal lies under HMA s.28 |
Many contested cases end as mutual consent divorces once the spouses settle maintenance and custody, often through court-annexed mediation. Filing a contested petition does not close the door to settlement.
Which grounds can you rely on when your spouse refuses?
Under the Hindu Marriage Act, which applies to Hindus, Buddhists, Jains and Sikhs, the grounds available to either spouse under s.13(1) are adultery, cruelty, desertion for two years, conversion to another religion, serious mental disorder, venereal disease in a communicable form, renunciation of the world, and not being heard of as alive for seven years. Leprosy was removed as a ground in 2019.
Section 13(1A) adds a ground that is often overlooked: if there has been no resumption of cohabitation for a year or more after a decree of judicial separation, or no restitution of conjugal rights for a year after a decree under s.9, either spouse can seek divorce. A spouse who refuses to return can therefore be met with a s.9 petition first.
A wife has additional grounds under s.13(2), including the husband having been guilty of rape, sodomy or bestiality since the marriage, a pre-1955 second marriage of the husband, a marriage before she was 15 that she repudiated before 18, and non-resumption of cohabitation for a year after an order of maintenance in her favour under BNSS s.144 (earlier CrPC s.125) or HAMA s.18.
Other communities have their own statutes: the Special Marriage Act for civil and inter-faith marriages, the Indian Divorce Act, 1869 for Christians, the Parsi Marriage and Divorce Act, 1936, and the Dissolution of Muslim Marriages Act, 1939 for a Muslim wife seeking divorce through court. A lawyer should confirm which law governs your marriage before you plead.
What can stop a one-sided divorce petition?
Even with a ground, the court will refuse relief if a statutory bar applies. Under HMA s.23(1), the court must be satisfied that:
- the petitioner is not taking advantage of their own wrong or disability;
- for adultery or cruelty, the petitioner has not condoned it (forgiven it and resumed married life) or connived at it;
- the petition is not presented in collusion with the respondent;
- there has been no unnecessary or improper delay; and
- there is no other legal ground to refuse.
Section 14 also bars a petition within one year of the marriage, unless the court allows it for exceptional hardship or exceptional depravity. And under s.23(2), the court must first try to reconcile the spouses where the nature of the case allows. A refusing spouse will usually rely on these bars in the written statement, so be candid with your lawyer about reconciliation attempts and the timeline.
What happens if your spouse does not come to court?
A spouse cannot defeat a petition by staying away. If the respondent has been properly served and does not appear, the court can proceed ex parte under Order IX Rule 6 of the Code of Civil Procedure, 1908. The usual path is:
- Petition filed in a court with jurisdiction under HMA s.19: where the marriage was solemnised, where the respondent lives, where the couple last lived together, or where the wife lives if she is the petitioner.
- Summons issued by the court through its process server, registered post or, in many courts, email or other electronic modes.
- Service attempted. If the spouse refuses to accept, refusal itself can count as service. If they are avoiding service, the court can allow substituted service, such as newspaper publication, under Order V Rule 20.
- Order to proceed ex parte once the court is satisfied about service.
- Ex parte evidence. You still file your affidavit of evidence and documents and the court examines them. There is no cross-examination, but the judge must be satisfied that the ground is proved.
- Decree. If proved, the court grants the divorce; if not, it can dismiss the petition even though nobody opposed it.
An ex parte hearing is not a formality. Courts have refused decrees where the evidence was thin, so prepare it as carefully as for a contested trial.
Can an ex parte divorce decree be cancelled later?
Yes, which is why proper service matters. The spouse against whom the decree was passed can apply to the same court under Order IX Rule 13 CPC to set it aside by showing that summons was not duly served or that sufficient cause prevented them from appearing. Under the Limitation Act, 1963, the application is generally due within 30 days of the decree, or, where summons was not duly served, within 30 days of learning of the decree; courts can condone delay for sufficient cause. The spouse can also appeal under HMA s.28, within 90 days of the decree.
The practical consequences:
- Under HMA s.15, remarriage is lawful only after the appeal period expires without an appeal, or an appeal is dismissed. An ex parte decree obtained on a doubtful address carries more risk, because a later setting-aside application may be allowed.
- Using a wrong or old address to get an ex parte decree can be treated as fraud on the court.
- Keep proof of every service attempt: postal receipts, process-server reports, newspaper cuttings and screenshots of electronic service.
If you are a prospective partner checking someone's divorce, see what each status means in our guide on checking divorce case status online.
What if your spouse agreed to mutual divorce and then backed out?
This is common. The Supreme Court held in Sureshta Devi v. Om Prakash (1991) that consent in a s.13B petition must continue until the decree, so either spouse can withdraw before the second motion and the court cannot grant a mutual consent divorce against their will. If the withdrawal breaches a written settlement or an undertaking given to the court, some High Courts have treated that as a serious matter, even contempt, so take legal advice before relying on or breaking such an undertaking.
Your options if consent is withdrawn:
- file a contested petition on a ground you can prove;
- seek restitution of conjugal rights under s.9 and rely on s.13(1A) if the decree is not obeyed for a year;
- return to mediation, since withdrawals often come from disputes over money or custody rather than the divorce itself.
Separately, the Supreme Court in Shilpa Sailesh v. Varun Sreenivasan (2023) confirmed that it can dissolve a marriage for irretrievable breakdown using its special powers under Article 142 of the Constitution. That power belongs to the Supreme Court; family courts still need a statutory ground.
What if your spouse lives abroad or cannot be found?
Indian courts can try a divorce even if the respondent is abroad, provided they have jurisdiction and notice is properly served. Service may be attempted at the overseas address, through email or messaging channels where the court permits it, or by substituted service. Many courts record the evidence of parties living abroad by video conference. Our guide to NRI marriage issues covers related problems such as deserted brides.
Where you genuinely do not know where your spouse lives, the court will expect evidence of honest efforts to find them before allowing substituted service. A lawful address trace, using public records and field enquiries as described in how to find someone's address in India, can provide that, and it also protects your decree from a later 'I was never served' challenge. If the spouse has not been heard of for seven years, HMA s.13(1)(vii) provides a ground of its own.
A verified detective on Hire Your Detective can help trace a current address or confirm whether a spouse is cohabiting elsewhere; you can find one in your city. They will not access telecom, bank or travel records, which only courts and police can obtain.
Bottom line
A divorce in India can be one-sided. Your spouse's refusal to sign does not trap you in the marriage, and their absence from court does not stall it indefinitely. But the law asks for proof of a recognised ground, honest compliance with the bars in s.23, and scrupulous service of notice. Get those right and a contested or ex parte decree will stand. If maintenance is also in issue, read our guide on alimony and maintenance in India.
Sources & official links
This guide is general information, not legal advice. Laws and procedures change, and every case is different — speak to a lawyer about your situation. In an emergency, call 112.