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Husband refused divorce: What should I do?

Shivendra Pratap Singh

Advocate (Lucknow)

Online advising since Oct. 2014

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Question: My husband is a very cruel person. He has no friends and does not spend time with family. His life is monotonous and there is no space for me. My husband has refused to give divorce and set me free from his jail. He treats me like a slave therefore, my husband refuses to give divorce. I am suffering mental cruelty.

My life has been ruined and I want to live a peaceful life. I have talked to my husband about divorce but he became violent and refused my divorce proposal. I want to know whether he has a right to decide or the court will decide divorce? We both are hindu.

Question from: Karnataka

Section 13 of the Hindu Marriage Act (HMA) gives some grounds for divorce. Cruelty, desertion, adultery, impotency, conversion, mental disorder etc are the grounds for divorce. All these grounds are based upon the guilt theory. It does not depend upon the will or desire of the spouse.  

If there is a guilt of the spouse the court can grant a decree of divorce. The court will not consider the fact that husband does not want divorce. However, consent of husband is mandatory in divorce by mutual consent. Your husband is a very ruthless person and his conduct amounts to mental cruelty. Mental cruelty is a ground for divorce under section 13 of the HMA. 

Your married life has turned into a hell due to the rude behaviour of your husband. You can file a divorce case however, your husband has refused the divorce proposal. 

What to do if husband refuses divorce

The divorce petition does not depend upon consent of the husband. It is a wrong assumption that a wife cannot get divorce if her husband is not ready for it. Existence of a legal ground for divorce is the only requirement for divorce. If there is a ground the wife can seek divorce. 

Divorce.— (1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party— (i-a) has, after the solemnization of the marriage, treated the petitioner with cruelty;

Section 13 HMA

Cruelty includes physical as well as mental cruelty. In V. Bhagat vs. D. Bhagat (Mrs).), (1994) 1 SCC 337 the Supreme Court opined that no one has ever attempted to give a comprehensive definition of cruelty and I do not intend to try to do so. Much must depend on the knowledge and intention of the respondent, on the nature of his (or her) conduct, and on the character and physical or mental weaknesses of the spouses.

Your husband does not perform his matrimonial obligation, there is no love and affection between spouses. No wife can live in this situation. You file divorce case irrespective that your husband has refused to give divorce. These facts are sufficient to prove mental cruelty and you will get divorce without the consent of your husband.

shivendra pratap singh advocate

Shivendra Pratap Singh

Advocate (Lucknow)

You can consult on Criminal, Civil, Matrimonial, Writ, Service matters, Property, Revenue and RERA related issues.

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