Asked by a reader in Bengaluru

My spouse refuses to agree to a divorce. Can I still get one?

Answered by Advocate Sharan Jain··Family & Divorce Law

Short answer

Yes. Consent is only needed for a mutual consent divorce. Without it you file a contested petition on a statutory ground such as cruelty, desertion or adultery, and you must prove that ground with evidence.

Yes, but the route changes completely. Mutual consent under Section 13B needs both spouses. A contested divorce does not. What it needs instead is a recognised ground, and proof of it.

The trade-off you are making

A mutual consent divorce is short, cheap and predictable because nobody is contesting anything. A contested divorce is none of those things. You are now running a trial: pleadings, documents, examination and cross-examination of witnesses, arguments. Realistically that is years rather than months, and appeals extend it further.

You must plead a ground, not just unhappiness

Under Section 13 of the Hindu Marriage Act the grounds include cruelty, desertion for two years or more, adultery, conversion to another religion, unsoundness of mind, virulent and incurable disease, and renunciation of the world. Parallel provisions exist under the Special Marriage Act, the Indian Divorce Act and Muslim personal law. In practice, cruelty and desertion carry the overwhelming majority of contested petitions.

Cruelty is not only physical
Mental cruelty is a well-developed head: sustained humiliation, false criminal complaints, refusal of conjugal relations without cause, and conduct that makes cohabitation genuinely intolerable have all been accepted. It is judged on the cumulative effect of conduct, not one incident.

Evidence decides it

The court cannot act on your account alone. Messages, emails, medical records, police complaints, witnesses, and a clear chronology are what convert an allegation into a finding. Start collecting before you file, not after.

Mediation is not a formality

Family courts will refer the matter to mediation, and a large share of contested petitions convert into mutual consent once maintenance and custody are settled. That is not a failure. It is usually the fastest exit available, and it lets you control the terms rather than have them imposed.

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Go deeper on this

This answer is the short version. These guides cover the same ground in full, with the procedure, the timelines and the leading cases.

SJ

Answered by

Advocate Sharan Jain

Advocate based in Bangalore, practising before the Karnataka High Court and District, Sessions, Consumer and Family courts. Answers public legal questions to make Indian law more accessible.

This answer is general information on Indian law as at August 9, 2026, published for public education. It is not legal advice, it does not take account of your facts, and reading it does not create an advocate-client relationship. Law changes and every case turns on its own circumstances. Please consult a qualified advocate about your own matter.

People also asked

Family & Divorce

What exactly counts as a ground for divorce in India?

Under Section 13 of the Hindu Marriage Act the main grounds are cruelty, desertion for two years or more, adultery, conversion, unsoundness of mind, incurable disease and renunciation. Cruelty and desertion carry most contested petitions in practice.

Family & Divorce

How long does a mutual consent divorce actually take in India?

Usually six to eighteen months. It runs in two motions with a statutory cooling-off period of up to six months in between, and the Supreme Court has held that the six months can be waived where everything is genuinely settled.

Family & Divorce

Everyone says the marriage has irretrievably broken down. Is that a ground for divorce?

It is not a statutory ground that a family court can grant. Only the Supreme Court can dissolve a marriage on that basis, using its power under Article 142 to do complete justice, as confirmed in Shilpa Sailesh v. Varun Sreenivasan (2023).

Family & Divorce

My spouse has disappeared and I cannot serve any notice. Can I still divorce?

Yes. File on desertion, and where ordinary service fails, ask the court for substituted service by publication in a newspaper. If the spouse has not been heard of as alive for seven years, that is itself a ground.

Family & Divorce

Can my ex take our child abroad without my consent?

Not where it would breach a custody or access order, and a minor's passport application ordinarily requires both parents' consent. If removal is genuinely threatened, move urgently for an injunction, passport impounding and a Look Out Circular.

Family & Divorce

How is alimony or maintenance decided? Is there a fixed percentage?

There is no fixed percentage in Indian law. It is discretionary, and courts weigh the income gap, the standard of living during the marriage, reasonable needs, earning capacity, the length of the marriage and child responsibilities.

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