Divorce is the legal dissolution of marital relations between a man and a woman. Sometimes the man wants to break the bond of marriage, sometimes the woman wants to end the marriage and sometimes both the couples want to separate from each other through a divorce decree.
When both the parties i.e. husband and wife mutually agree to end
their marriage, and also decide the terms and conditions of divorce amicably,
and they file a joint Divorce petition
before the family court to get the Decree of Divorce then it is termed
as Mutual divorce.
What is One-Sided
Divorce?
When one party i.e. husband or wife wants a unilateral divorce
without the consent of the other party and against his/her wishes, it is
generally called One sided Divorce.
As we see that
“One Sided Divorce” refers to a situation where one spouse wants a divorce
without the consent of the other, so it can also be called an Ex-Parte or a Contested Divorce, because a contested divorce
is filed when one spouse Wants divorce against the consent of other spouse.
Grounds for One-Sided Divorce:
👉Cruelty:
Physical or mental abuse inflicted by one spouse on the other.
👉Abandonment:
Abandonment of one spouse by the other for more than two years without
reasonable cause or consent.
👉Adultery:
Voluntary sexual intercourse between a married person and a person other than
his or her spouse.
👉Conversion:
When one spouse converts to another religion without the consent of the other.
👉Mental
Disorder: If one of the spouses is suffering from unsound mind, mental disorder
or insanity, and it is impossible to live together.
👉Presumption of
death: When one of the spouses has been missing for at least seven (7) years
and is presumed dead.
Grounds under Muslim Personal Law:
Under Islamic law, a husband can unilaterally divorce his wife by saying "Talaq" three times orally or in writing, with a waiting period between each utterance.
However, after the Supreme Court passed judgment in the case of Shayara Bano Versus
Union of India, "Instant Triple Talaq" has been declared illegal, and
so to get a One-Sided Divorce, a Muslim husband has to comply with the
"Triple Talaq Act, 2019", which requires the wife to give a formal
written declaration of divorce with a mandatory waiting period.
A Muslim
spouse can also seek divorce on the grounds of cruelty, desertion, impotence,
adultery and various grounds mentioned under the Hindu Marriage Act.
Under Section
2 of the Divorce of Marriage Act, 1939, the following are the grounds on which
a Muslim wife can sue for divorce:
➤Whereabouts of
husband not known for 4 years.
➤Husband has
failed to maintain wife for two years.
➤Husband is
sentenced for imprisonment of 7 years or more.
➤Husband has
failed to perform marital obligations for three years, without any reasonable
cause.
➤Husband is
impotent.
➤Husband is
suffering from insanity (for two years), leprosy or virulent venereal disease.
➤Wife being
married before 15 years rejects the validity of marriage after attaining the
age of 18 years, provided marriage must not be consummated.
➤Husband treats
wife with cruelty, such as imposing physical assault. Making defamatory
statements that affect her reputation etc.
How to legally obtain a One-Sided Divorce:
The procedure
for obtaining unilateral divorce from the Court is as follows:-
➧After being satisfied
with the petition filed and accepting the divorce petition, the court will
issue a summons/notice to the other spouse to appear before the court.
➧If the
opposite party/respondent fails to appear before the court after service of the
notice, and does not respond within the stipulated time, on the submission of
the petitioner, the court may proceed with ex parte divorce.
➧Finally, the
court will grant an Ex-parte divorce decree after hearing the petitioner's
arguments and reviewing the evidence presented by the petitioner.
Legally, this
Ex-pare divorce can be termed as One-Sided Divorce.
What is the limitation period
for Ex-parte(One-Sided Divorce)?
The time limit for setting
aside (challenging) an Ex- parte Divorce Decree by the same Court which passed
the Decree is 30 days, and for appeal before the High Court it is 90 days
against the Decree.
The Supreme Court in the case of Gauhati University Versus
Shri Niharlal Bhattacharjee, held that, the period of limitation began only
when the appellant had knowledge of the Ex-parte Decree. If the summons was not
duly served the period of limitation began when he became aware of the decree.
Can One-Sided Divorce be challenged after 90 days?
Yes, the party aggrieved by an Ex-parte decree can challenge an ex parte decree of divorce even after the expiry
of 90 days; however there must be reasonable valid grounds for the delay.
Can I marry after Ex-parte Divorce?
When the opposite aggrieved party does not file an Appeal against the Ex-parte
Divorce Decree within 90 days from the date of passing of the order by the
Family Court, you have the legal right to remarry. But if the Appeal is filed
within the prescribed time period by the opposite party then you cannot remarry
until the Appeal petition is dismissed.
Supreme Court in the matter of Chandra Mohini Srivastava Versus Avinash
Prasad Srivastava held that, Re-marriage
can take place only when the period for filing an appeal or application for
cancellation of an ex parte order has expired. And if an appeal has been filed
by the opposite party, the person can remarry only after the appeal is decided
by the court.
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