What Happens When One Spouse Does Not Agree to a Mutual Consent Divorce in India?
Divorce by mutual consent is considered the most peaceful and efficient way to dissolve a marriage under Indian law. It allows both spouses to separate amicably without alleging faults or engaging in prolonged litigation. However, this form of divorce entirely depends on the free will and continuous consent of both spouses. A very common and practical problem arises when one spouse refuses to agree or withdraws consent at any stage.
The direct and clear legal answer is: If one spouse does not agree to a mutual consent divorce, the court cannot grant a divorce by mutual consent under Indian law.
This blog post explains in a comprehensive and structured manner what legally happens when one spouse does not agree to a mutual consent divorce, the statutory provisions involved, the reasons behind refusal, remedies available to the aggrieved spouse, court procedures, practical difficulties, relevant judicial principles, and long-term consequences.
1. Understanding Mutual Consent Divorce in India
Mutual consent divorce is a legal mechanism where both husband and wife jointly approach the court stating that they are unable to live together and have mutually decided to dissolve their marriage. This process avoids blame, reduces emotional stress, and saves time and money.
Indian law recognises mutual consent divorce primarily under two statutes:
- Section 13B of the Hindu Marriage Act, 1955
- Section 28 of the Special Marriage Act, 1954
The core philosophy behind these provisions is that marriage should not be forcibly continued if both spouses have consciously and voluntarily decided to end it.
2. Legal Provisions Governing Mutual Consent Divorce
2.1 Section 13B of the Hindu Marriage Act, 1955
Under Section 13B, a decree of divorce by mutual consent can be granted if:
- Husband and wife have been living separately for at least one year.
- They have not been able to live together.
- They have mutually agreed that the marriage should be dissolved.
The process involves:
- First Motion: Filing a joint petition.
- Cooling-Off Period: Six months (which may be waived by court in exceptional cases).
- Second Motion: Reaffirmation of consent by both parties.
2.2 Section 28 of the Special Marriage Act, 1954
This provision applies to marriages solemnised or registered under the Special Marriage Act. The structure and intent are similar to Section 13B of the Hindu Marriage Act, with minor procedural differences.
3. Importance of Free and Continuous Consent
Consent is not a one-time formality. It must:
- Be free, without coercion, fraud, or undue influence.
- Continue till the final decree is passed.
- Be expressed clearly by both spouses before the court.
If at any stage—before filing, during proceedings, or before the second motion—one spouse refuses or withdraws consent, the foundation of mutual consent divorce collapses.
4. What Happens When One Spouse Does Not Agree?
When one spouse does not agree to a mutual consent divorce, the legal consequences are immediate and significant.
4.1 Legal Consequence in Simple Terms
- The court cannot grant a divorce by mutual consent.
- A joint petition cannot be filed or sustained.
- The divorce process under Section 13B or Section 28 comes to an end.
The court has no discretion to force a mutual consent divorce if one party is unwilling.
5. Situations Where Refusal May Occur
Refusal to consent can happen at different stages:
5.1 Refusal Before Filing the Petition
If one spouse outrightly refuses to sign the joint petition, mutual consent divorce is impossible from the very beginning.
5.2 Refusal After First Motion
Sometimes, spouses file the first motion jointly, but one spouse withdraws consent before the second motion. In such cases:
- The petition becomes infructuous.
- The court must dismiss the mutual consent petition.
5.3 Refusal at the Final Hearing Stage
Even if settlement terms are recorded, if one spouse expresses unwillingness before the final decree, the court cannot proceed.
6. Common Reasons for Refusal to Mutual Consent Divorce
Understanding the reason for refusal is critical for future legal strategy. Some common reasons include:
6.1 Disputes Over Alimony or Maintenance
One spouse may feel that:
- The alimony offered is inadequate.
- Financial security post-divorce is uncertain.
6.2 Property and Asset Disputes
Disagreements regarding:
- Division of matrimonial property
- Ancestral or self-acquired assets
- Transfer of ownership or possession
6.3 Child Custody and Visitation Issues
Concerns regarding:
- Permanent custody
- Visitation rights
- Child support expenses
- Education and upbringing decisions
6.4 Emotional, Social, or Family Pressure
Family pressure, social stigma, or emotional attachment often influences refusal, especially in long marriages.
6.5 Strategic or Tactical Reasons
Some spouses refuse consent to:
- Delay proceedings
- Gain leverage in negotiations
- Pressure the other spouse for higher settlement
7. Remedies Available When Mutual Consent Is Refused
When mutual consent divorce is not possible, Indian law still provides several alternatives.
7.1 Negotiation and Settlement Discussions
Before initiating contested litigation, it is advisable to:
- Reopen settlement discussions
- Address specific objections of the refusing spouse
- Revise terms related to money, custody, or property
Many disputes are resolved at this stage with the help of lawyers.
7.2 Mediation and Court-Annexed Counseling
Family Courts actively promote mediation. Mediation helps by:
- Providing a neutral platform for dialogue
- Reducing hostility
- Exploring flexible solutions beyond rigid legal positions
In many cases, mediation succeeds in converting contested disputes into mutual settlements.
7.3 Filing a Contested Divorce Petition
If refusal continues, the aggrieved spouse may file a contested divorce under applicable law.
Grounds Under Hindu Marriage Act (Section 13):
- Cruelty (mental or physical)
- Desertion for at least two years
- Adultery
- Conversion to another religion
- Mental disorder
- Incurable disease
- Renunciation of the world
- Presumption of death
Each ground requires strict proof and detailed pleadings.
7.4 Filing for Judicial Separation
As an interim step, a spouse may file for judicial separation, which allows spouses to live apart without dissolving the marriage. This is sometimes used strategically before a divorce petition.
8. Ancillary Reliefs During Contested Proceedings
When mutual consent fails, other legal remedies become important.
8.1 Maintenance and Alimony
- Interim maintenance under Section 24 HMA
- Permanent alimony under Section 25 HMA
- Maintenance under Section 125 CrPC
8.2 Child Custody and Guardianship
Courts decide custody based on:
- Welfare of the child
- Financial stability
- Emotional bonding
- Educational needs
8.3 Protection and Residence Orders
In appropriate cases, relief under domestic violence laws may also be sought.
9. Procedure of Contested Divorce: A Detailed Overview
Contested divorce proceedings generally involve:
- Filing of divorce petition
- Issuance of notice
- Written statement by respondent
- Framing of issues
- Evidence by affidavits
- Cross-examination of witnesses
- Final arguments
- Judgment and decree
This process can take several years depending on the complexity and court workload.
10. Judicial Principles on Consent and Withdrawal
Indian courts have consistently held that:
- Consent must exist till the final decree.
- Withdrawal of consent is legally valid.
- Courts cannot compel unwilling spouses to divorce by mutual consent.
These principles protect individual autonomy and free will in matrimonial matters.
11. Practical and Social Consequences of Refusal
Refusal to mutual consent divorce often leads to:
- Prolonged litigation
- Increased legal expenses
- Emotional exhaustion
- Delay in remarriage or personal settlement
- Impact on children’s mental well-being
Hence, courts and lawyers always encourage amicable resolution where possible.
12. Conclusion
When one spouse does not agree to a mutual consent divorce in India, the law clearly mandates that mutual consent divorce cannot proceed or be granted by the court. Consent is the backbone of this form of divorce, and its absence automatically diverts the legal process into contested litigation.
In such cases, the aggrieved spouse must explore alternative legal remedies such as negotiation, mediation, or filing a contested divorce on legally recognised grounds. While contested divorce is a valid and enforceable remedy, it involves longer timelines, higher emotional strain, and greater procedural complexity.
Understanding the legal position, available options, and practical consequences enables individuals to make informed decisions and adopt the most suitable legal strategy. Professional legal advice plays a crucial role in navigating such situations and protecting one’s rights related to marriage, maintenance, custody, and future security.
Disclaimer: This information is intended for general guidance only and does not constitute legal advice. Please consult with a qualified lawyer for personalized advice specific to your situation.
Advocate J.S. Rohilla (Civil & Criminal Lawyer in Indore)
Contact: 88271 22304