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The Grounds For Divorce In India

Divorce in India is governed under different laws for different religions i.e., Hindu, Sikh, Muslims, Christians etc. The laws formulate the grounds, process and rules of granting a divorce that is acceptable in the eyes of law.

Statistics tell those broken marriages are on a rise. Which is both positive and negative. Positive, as people are becoming more aware of their rights and individualism, and are strongly rejecting the regressive practices and silent oppression such as misogyny, patriarchy, and role-biding. While negative, because the current prevalent emotional quotient for a rebel is higher than the intellectual understanding of responsibility, justice, and forgiveness.

Nevertheless, getting a divorce in India is not an easy affair. One has to comply with plenty of legal obligations.

The judicial system works on evidence and particular frameworks. In case of the dissolution of marriage, one must prove his/ her point in the court accompanied by a valid reason. Since marriage is observed as a sacrament in India, there are only a few legal grounds for divorce. Other than these legal grounds, some other valid reasons can also be considered by the court if found genuine.

Male spouses distressed about how to take divorce in India from the wife, or a female victim who is seeking divorce on any of the grounds will surely get an idea from this article regarding how to proceed further.

Even though one must get assisted by an expert divorce lawyer, but, getting acquainted with the basic legal compliances beforehand can be a helping hand and can save from being misdirected or misguided by a lawyer for their vested interests. Let�s start by knowing the legal grounds for divorce in India

The Grounds For Divorce In India

  • Hindu Marriage Act, 1955 for Hindu, Jains, Buddhists, and Sikhs.
  • Procedure and grounds for divorce under the Dissolution of Muslim Marriage Act, 1939 are taken into account for Muslim couples.
  • Special marriage Act
  • Christians & other person of different religion Procedure under Special Marriage Act
  • Divorce procedure under different laws: Hindu/Sikh/JainProcedure for filing divorce by mutual consent
  • Parsi Marriage and Divorce Act, 1936 is followed for divorce procedure in Parsi couples.[1]

The Common Legal Grounds For Divorce In India

The following grounds on which Judicial Separation can be granted:
Cruelty: Either of the spouse or both are cruel for one another.

Desertion: Either of the spouses is not alive and is missing in the past seven years and above.

Adultery: Either of the spouses is being cheated upon by other spouse. In case a husband or a wife knows that their respective spouse is married and that the other person is alive during this petition; then the grounds for judicial separation strengthens.

Forced conversion of religion: Either of the spouses is forcing the other one to change and convert his/her religion.

Incurable diseases such as leprosy, cancer, Ebola, etc.

Insanity or abnormality: Either of the spouses is not in a sound condition.

Venereal or sexual diseases: Either of the spouses is suffering from sexual diseases such as HIV, AIDS, Genital Herpes, Syphilis, etc.

Rape, Sexual Harassment, Molestation, Bestiality and Sodomy.

Renunciation of the world by either of the spouse on religious or spiritual grounds.

Child marriage: Either of the spouses is married without his/her consent before attaining 18 years of age.

Grounds For Divorce Under Different Religions:

Person of Hindu, Sikh and Jain religions are governed by Hindu Marriage Act, Christians are governed under Indian Divorce Act-1869 and the Indian Christian Marriage Act, 1872, Muslims are regulated by Personnel Law of Divorce, Dissolution of Marriage Act, 1939 and The Muslim Women (Protection of Rights on Divorce Act, 1986. Above all, there is a secular law that is open for all the people irrespective of their religion, i.e. Special Marriage Act, 1954. Let�s take a look at the grounds of divorce for following religions under their religious Acts.[2]

Hindu Marriage Act, 1955

In accordance to Hindu Marriage Act, any solemnized marriage can be terminated by a divorce decree, by either of the two spouses can file the petition on following said grounds:[3]
Adultery: where the person had intended physical relationship with a person other than his/her spouse.

Cruelty: The aggrieved party has been treated cruelly after marriage in terms of physical or mental torture.

Desertion: The spouse of the aggrieved party has deserted the spouse without giving any reasonable cause or without the consent or against the wish of aggrieved party for a period of 2 years urgently prior to the date of filing the petition for divorce.

Change of Religion: If the person has changed his religion and is no longer a Hindu due to conversion to some other religion.

Unsound mind: The spouse is mentally unstable or has been suffering from intermittent mental disorder of such a kind and to such an extent that the aggrieved party cannot reasonably be expected to live together with his/her spouse. Here, mental disorder includes mental illness, incomplete or retarded development of mind, psychopathic disorder or other mental disability including schizophrenia.

Incurable leprosy: The spouse of aggrieved party is suffering with virulent type of leprosy.

Venereal Disease: The spouse is suffering from a disease which is of communicable form.

Renunciation for religion: The spouse has repudiated the world by joining a spiritual or religious order.

Not alive for 7 years: The person has not been seen or heard to be living for a period of 7 years or more by parties known to him and has been declared dead.

Irretrievable Breakdown of Marriage: It has been added after the passing of The Marriage Laws (Amendment) Bill, where both the parties to marriage find it impossible to live together and have lived separately from each other for a long period of time and thus do not intend to continue their matrimonial relationship.

Muslim Marriage Act, 1939

There are 2 categories under Muslim Law: Extra Judicial Divorce and Judicial Divorce.[4]

Judicial Divorce:
As per Dissolution of Muslim Marriage Act, the woman married under Muslim Law is entitled to acquire a divorce decree on following grounds:
  • The husband�s position or location has not been known for about 4 years.
  • The husband failed or ignored to provide the wife with maintenance for a period of 2 years.
  • The husband is sentenced to jail for 7 or more years;
  • The husband has failed to execute his marital obligations for 3 years without any justifiable cause.
  • Due to impotency of husband at the time of marriage and up till the date of filing petition also.
  • The husband was mentally insane for a period of 2 years or is troubled with any virulent or venereal disease or leprosy.
  • The aggrieved wife is married at an unsuitable age of less than 15 years or rejected the marriage before such party attained the age of 18 years. It is subject to the condition that marriage has not been consummated.
  • That husband treats her with cruelty, where cruelty has been defined in detail under the said Act.

Extra Judicial Divorce:

In Islamic law, the husband can dissolve the marriage at will on the ground of irretrievable marriage breakdown. It is differently known as Talaq, Ila and Zihar.
Christians: According to Indian Divorce Act, husband professing Christianity can file petition for divorce on the ground that his wife has been guilty of adultery.

On the other hand, a wife can request for dissolution of marriage after solemnization on following grounds:
  • The husband has exchanged his profession of Christianity to other religious profession and thereby gone through a kind of marriage with another woman.
  • The husband is guilty of incestuous adultery or bigamy with adultery or marriage with any other woman with adultery;
  • He is guilty of rape, sodomy or bestiality;
  • He is guilty of adultery with cruelty;
  • He is guilty of adultery with desertion without any reasonable cause for 2 or more years.

Divorce By Mutual Agreement (Khula & Mubarat)

It is basically an act of parties where no court intervention is needed.

In Khula, both wife and husband sign an agreement to dissolve their marriage in lieu of monetary compensation paid by the wife to her husband out of her owned property. Once the husband gives his consent it is an irrevocable divorce.

In Mubarat, both husband and wife happily consent to get apart and enter into mubarat, where all their mutual rights and obligations end.[5]

Judicial Divorce Where Wife Seeks For Divorce:

  • The wife can file a petition in the court on any of the grounds mentioned in the dissolution of Muslim Marriages Act, 1939.
  • There is a need to submit respective documents which vary with the ground of divorce.
  • The court will get satisfied with the presentation of evidences and documents before granting the decree of divorce. It will hear both the parties.

Special Marriage Act, 1954

This Act clearly provides the grounds of divorce as under:[6]
  • The respondent since solemnization of marriage has committed adultery
  • The respondent has deserted the petitioner without any valid excuse for 3 or more years immediately preceding the petition date.
  • The respondent is serving an imprisonment sentence for 7 or more years for an offence committed under the Indian Penal Code sections.
  • The respondent has treated the petitioner with cruelty after marriage.
  • The respondent has been mentally unstable for a continuous period of not less than 3 years prior to the filing of the divorce petition.
  • The respondent is suffering with leprosy or communicable disease or a disease not having been contracted from petitioner for 3 or more years immediately preceding the date of petition.
  • The respondent had been alive but has not been heard of as being alive for a period of 7 years or more by known persons i.e. who naturally would have heard from him/her.
  • In case husband is guilty of rape, sodomy or bestiality, then wife can file the divorce petition.
Irretrievable Breakdown of Marriage:
It has been added after the passing of The Marriage Laws (Amendment) Bill, where both the parties to marriage find it impossible to live together and have lived separately from each other for a long period of time and thus do not intend to continue their matrimonial relationship.

Christians & other person of different religion Procedure under Special Marriage Act:
The petitioner i.e. party seeking divorce file petition with the district court of apt jurisdiction.

The petition must state the nature of the case, ground of divorce as per the said Act, statements of the petitioner etc. and other important requirements. The lawyer hired by the petitioner will present the case before the court.

Every proceeding is recorded under CCTV surveillance and cannot be published or printed.

The notices will be sent to the other party to marriage to appear before the court on mentioned hearings, once the court acknowledges the petition.

The court will hear both the parties in the light of presented evidences, documents etc. and will pass the decree after it is satisfied. It will also pass relevant judgments on child custody, alimony & maintenance etc. accordingly. It is important to see that the parties filing divorce should not deceive the court and the statements mentioned in the petition should be verified by petitioner and a third party.[7]

Hindu/sikh/jain procedure for filing divorce by mutual consent:
Both the parties can start the procedure by filing the petition in the court of appropriate jurisdiction along with affidavits from both the spouses. It is known as first motion petition, which comprise of a joint statement from both the parties stating that they cannot stay together and the irreconcilable reasons behind their intentions.

In general, the second motion can be filed after the reconciliation period of 6 months only but this can be waived off by the Supreme Court on serious circumstances of the situation.
After elapse of the duration of 6 months, the second motion to be filed by the parties and they are required to appear in person before the court for respective hearings of the case.
Once the judge is satisfied that all relevant grounds for the divorce are met, the mutual consent divorce is passed.

The petition must cover all the significant issues i.e. child custody, alimony, financial arrangement etc. and both the parties should have mutually agreed on the same.
If either of the party withdraws the petition within 18 months of filing the first motion petition and he/she refuses to consent for the divorce petition, then court will not have the right to pass the decree.

Divorce means the termination of marital relations. It means dissolution of the marital bond. Technically speaking, divorce means a decree of dissolution of marriage. Divorce is a process through which marital bond ceases to be in existence as per law and the couple can no longer be called the husband or the wife.

There was no provision for divorce. The concept of getting divorced was too radical for the Indian society then. The wives were the silent victims of such a rigid system. However, the time has changed; situations have changed; the social ladder has turned. Now the law provides for a way to get out of an unpleasant marriage by seeking divorce in a court of law. The actual benefactors of such a provision are women who no longer have to silently endure the harassment or injustice caused to them by their husbands.

But the manner in which the judiciary is dealing with the subject of irretrievable break down of marriage, it is feared that it will completely pause the system of marriages. Every theory has its negative and positive traits. Their applicability differs from situation to situation. Therefor it is very essential that the lawmakers of our country should deal with the subject in a very cautious manner after considering in detail its future implications.

  • Dr. Paras Diwan and Peeyushi Diwan, Family Law, (7th edn, 2oo5), Allahabad Law Agency
  • Iqbal Ali Khan (rev.), D.F. Mulla, PRINCIPLES OF MAHOMEDAN LAW, 22nd ed. 2o17.
  1. Virdi, P.K., 2oo9. The Grounds for Divorce in Hindu and English Law:(A Study in Comparative Law). Motilal Banarsidass Publ.
  2. Garg, S.P., 1998. Law and religion: The divorce systems of India. Tulsa J. Comp. & Int'l L., 6, p.1.
  3. Diwan, P., 1957. The Hindu Marriage Act, 1955. The International and Comparative Law Quarterly, 6(2), pp.263-272.
  4. Carroll, L., 1982. Talaq-i-Tafwid and stipulations in a Muslim marriage contract: important means of protecting the position of the South Asian Muslim wife. Modern Asian Studies, 16(2), pp.277-3o9.
  5. Mirshahzadeh, S.M.S. and Karimi, M.H., 2o16. Analysis of Consequences and Ordinances of Revocation in Khula and Mubarat Divorce. J. Pol. & L., 9, p.242.
  6. Dommaraju, P., 2o16. Divorce and separation in India. Population and Development Review, pp.195-223.
  7. Thatcher, A., 1999. Marriage after modernity: Christian marriage in postmodern times (Vol. 3). A&C Black.

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