Grounds of Divorce in India

Divorce laws in India are governed by various personal laws, each defining specific grounds of divorce under which a marriage can be legally dissolved. Whether under Hindu, Muslim, Christian, or Parsi laws, the legal framework provides different reasons for seeking divorce, including adultery, cruelty, desertion, conversion, mental disorders, and more.

Understanding the grounds of divorce in india is crucial for individuals seeking legal separation, as the eligibility and procedures vary depending on the religion and governing Act. This article explores the legal provisions for divorce in India, covering key legislations such as the Hindu Marriage Act, Special Marriage Act, Muslim Personal Law, Indian Divorce Act, and Parsi Marriage and Divorce Act. Additionally, we will discuss landmark court judgments that have shaped divorce law in India.

If you are looking for a detailed breakdown of divorce laws in India and the legal grounds for filing a petition, read on to gain insights into the legal rights and options available under different marital laws.

Legal Framework Governing Divorce Grounds in India

Let's explore the divorce laws in India:

The Hindu Marriage Act, 1955

Section 13 of the Hindu Marriage Act provides various grounds for divorce available to parties married under Hindu law. These grounds are:

1. Adultery: Hindu marriage, being monogamous, bars having multiple relations. If a married person has voluntary sexual intercourse with someone else, it forms a ground for divorce.
2. Cruelty: Cruelty refers to any abuse that causes pain or hurt to the other party in marriage.
3. Desertion: If a spouse leaves another for two years or more, it is considered desertion. Desertion must be continuous, abrupt, and without any reason.
4. Conversion: Another ground to get a divorce, as per the Hindu law, is if one spouse converts to another religion.
5. Insanity: Divorce can also be taken if one spouse becomes unsound or suffers from a mental disorder. It should be such that parties can't live together.
6. Venereal disease: If a spouse suffers from a contagious venereal disease, then divorce can be claimed on that ground.
7. Renunciation: If one spouse renounces all world affairs and abandons marriage, the petitioner can file for divorce.
8. Presumption of death: A person is presumed dead if he is not heard of as being alive for at least seven years by people who usually would have heard from him. In such cases, divorce can be claimed.

Section 13(1A) also adds to the above grounds. The grounds are as follows:

1. No resumption of cohabitation after judicial separation: If the court has passed a decree of judicial separation and the parties have not started living together even after one year of such decree, then parties can claim a divorce.
2. No resumption of cohabitation after order of restitution of conjugal rights: Similarly, if one year has passed from the date of the order of restitution of conjugal rights and the parties have not started living together, we can file for divorce.

Also Read : Hindu Marriage Act Of 1955

Special Marriage Act, 1954

Section 27 of the Special Marriage Act covers divorce for parties married under this Act. These are the grounds of divorce available under the Act:

1. Adultery: If a spouse has voluntary sexual intercourse with a person who is not their spouse, it is termed adultery and stands as a ground of divorce.
2. Desertion: If the respondent deserts the petitioner for less than two years, the petitioner can file for divorce.
3. Imprisonment: If the respondent is undergoing a sentence in prison for seven years or more, then the petitioner can file for divorce.
4. Cruelty: Cruelty is a ground of divorce in this Act as well. Petitioners can claim divorce if they have been treated with cruelty by the respondent.
5. Unsound mind: If the respondent is insane or suffers from such a disorder that it cannot be reasonably expected for the parties to live together, then the petitioner can claim divorce.
6. Venereal disease: If the respondent suffers from a venereal disease in a communicable form, then the court can grant divorce.
7. Presumption of death: If a person is not heard of as being alive for seven years by people who usually would have heard from him if he were alive, the presumption of death enters, and divorce can be claimed on that ground.

Also Read : Desertion As A Ground For Divorce

Muslim Personal Law

In Muslim law, marriage is considered a contract that can be dissolved at any time. As per the law, only the Muslim husband has the right to divorce without any reason and in whatever way he likes. The divorce the husband gives can be for any reason and may take the form of talaq, ila, zihar, talaq-ul-biddat, etc. The husband undertakes all of these forms of divorce for any reason without a lawful ground for divorce. The wife has limited power to divorce.

The Dissolution of Muslim Marriage Act of 1939 is an act that broadly covers all grounds under which the dissolution of Muslim marriage can be claimed. The grounds are as follows:

1. Whereabouts not known for the last four years: If the wife has not known the husband's details or whereabouts for four years or more, she can file for divorce.
2. Non-maintenance for two years: If the husband has denied or failed to maintain his wife for two years or more, this becomes grounds for divorce.
3. Imprisonment: If the husband has been imprisoned for seven years or more for an offence, the wife can file for divorce.
4. Failure to perform marital obligations: If the husband fails to perform his duties for at least three years, divorce can be granted.
5. Impotence: If the husband is impotent at the time of marriage and continues to be so, then divorce can be claimed.
6. Venereal disease: If the husband has been insane for the last two years or is suffering from leprosy or other communicable venereal diseases, then the wife can go ahead and ask for divorce.
7. Reputation: If, when the marriage took place, the wife was below 15 years of age and she decides to repudiate the marriage before she attains 18 years of age, then divorce can be granted.
8. Cruelty: A wife can claim divorce on the grounds of cruelty if her husband does any of the following:

• Assaults or makes the life of his wife miserable, even if he doesn't resort to physical abuse,
• Associates himself with women of ill repute,
• Forces her to lead an immoral life,
• Disposes of her property and denies her rights to the property,
• Obstructs in her observance of religious practices,
• Has more than one wife and does not treat her well.

9. Any other ground recognized as a valid ground for the dissolution of marriage as per Muslim law.

Indian Divorce Act, 1869

Indian Divorce Act was an act that was introduced explicitly for divorce in Christian couples in India. Section 10 of the Act provides various grounds for a Christian husband or wife to claim for divorce. These are as follows:

• If a party commits adultery,
• If either party converts to some other religion and is not a Christian anymore,
• If either party becomes of unsound mind for a minimum period of two years,
• If a spouse suffers from a venereal disease in a communicable form,
• If either party refuses to consummate the marriage,
• If either spouse deserts the other for a minimum of two years without any reasonable cause,
• Cruelty.

Parsi Marriage And Divorce Act, 1936

The marriage of parties that follow the Parsi religion is governed by the Parsi Marriage And Divorce Act of 1936. Section 32 of this Act covers grounds for seeking divorce. It states that either husband or wife can claim divorce on the following grounds:

1. Non-consummation of marriage within one year of its solemnization,
2. Insanity at the time of marriage, and it continues up until the date of suit,
3. The defendant has been of unsound mind for two years or more or suffers from such a disorder that it cannot be reasonably expected for the parties to reside together,
4. The defendant has committed adultery, fornication, bigamy, or other unnatural offence,
5. The defendant has treated the plaintiff with cruelty,
6. The defendant has caused grievous hurt to the plaintiff, or he suffers from venereal disease, or has compelled the wife to prostitution,
7. The defendant is undergoing imprisonment for an offence for seven years or more,
8. The defendant has deserted the plaintiff for two years,
9. A magistrate passed an order awarding separate maintenance to the plaintiff, but the parties have not started cohabiting.

Ground Of Divorce For Wife

Section 13 (2) of the Hindu Marriage Act states a few exceptional grounds are available only to the wife in a marriage to claim divorce. Similarly, Section 27(1A) of the Special Marriage Act also covers grounds of divorce specifically available to a wife. The grounds are as follows:

1. Bigamy: Bigamy is when a married person gets married again. As per the law, a Hindu husband is supposed to have only one wife. To marry again, he should divorce his first wife. In case he doesn't, then he commits the offence of bigamy. It is also punishable under Section 82 of the Bharatiya Nyaya Sanhita, 2023. So, if the husband marries again, the wife has a right to file for divorce.
2. Husband guilty of rape, sodomy, or bestiality: If the husband commits rape, sodomy, or bestiality, then the wife has the right to dissolve the marriage under this section.
3. Non- resumption of cohabitation: If an order of maintenance has been passed in favor of the wife either under the Hindu Adoption and Maintenance Act 1956 or the Code of Criminal Procedure but the parties have not started living together even after one year of such order, then the wife can go ahead and file for divorce.
4. Repudiation: If the girl was married when she was under 15, she can decide to repudiate the marriage before she turns 18.

The ground of rape, sodomy, and bestiality are also available to a Christian wife under the Indian Divorce Act of 1869.

Ground Of Divorce For Husband

The husband has a right to claim divorce on similar grounds. It may include the following:

• Adultery committed by wife,
• Cruelty by wife,
• Desertion by wife for more than two years,
• If the wife converts to another religion,
• If the wife becomes insane or suffers from a mental disorder,
• If she suffers from a venereal disease which can be transmitted,
• If she decides to renounce the world and become a nun or
• If she is not heard of as being alive for the last seven years.

Section 32(c) of the Parsi Marriage and Divorce Act 1936 provides a ground of divorce available to the husband. As per the provision, the husband can claim divorce if his wife was pregnant by some other person at the time of marriage.

This ground is also available in Section 12 of the Hindu Marriage Act. It must be noted that this ground makes a Hindu marriage voidable. This means that if parties desire, they can continue their marriage; otherwise, they can annul it.

Landmark Judgments Cases Related To Grounds Of Divorce

Here are some landmark cases related to grounds of divorce:

Birendra Kumar vs. Hemlata Biswas (1921)

In this case, the wife has an incurable venereal disease. She didn't tell her husband about it before the marriage. When her husband found out about it, he filed for divorce. The court granted divorce because the disease was contagious and was incurable.

A. Yousuf vs. Sowramma (1971)

In this case, the wife was 15 years old and married a man more than twice her age. After the marriage was consummated, the husband left for work, and the wife returned to her house. There, she filed for divorce because the husband had not maintained her for the last two years. The court granted her divorce based on the husband's inability to retain her for two years, even if the non-maintenance occurred due to the wife's actions.

Shobha Rani vs. Madhukar Reddi (1988)

The Supreme Court explained that cruelty as a ground of divorce cannot be defined. It refers to any conduct or behavior that causes pain and humiliation to the other person. It can be mental or physical cruelty that makes it impossible for the parties to live together.

Sarla Mudgal vs. Union of India (1995)

The Supreme Court had an opportunity to discuss bigamy as a ground for divorce. In this case, the husband converted to Islam and married again. The question was whether that made the first marriage void or if he was liable for the offence of bigamy. The court held that conversion to a different religion does not automatically end the first marriage. Since the first marriage is still valid in the eyes of the law, he has committed the offence of bigamy.

Molly Joseph vs. George Sebastian (1996)

In this case, the petitioner separated from her husband and obtained an annulment of marriage from the local church. Based on that, she married again. However, later, her second husband claimed that her second marriage was invalid since she had not obtained a divorce from a court. The court upheld this contention, saying that the church has no authority to grant divorce, so her second marriage was thus considered invalid.

Naveen Kohli vs. Neelu Kholi (2006)

This is a landmark case regarding divorce in Indian law. The Apex Court highlighted that if a marriage breaks down to the extent that it causes no happiness but only pain and bitterness, it should be ended. It reiterated that if you hold only thorns and no rose, you better throw it away. A breakdown of marriage was a valid ground for divorce.

Conclusion

The grounds of divorce in India vary across different personal laws, ensuring that individuals have legal remedies based on their religious and civil rights. Whether under the Hindu Marriage Act, Special Marriage Act, Muslim Personal Law, Indian Divorce Act, or Parsi Marriage and Divorce Act, spouses can seek divorce for reasons like adultery, cruelty, desertion, mental illness, or conversion.

Understanding these legal provisions is essential for anyone considering divorce, as each Act specifies unique requirements and procedures. Additionally, landmark court judgments have played a crucial role in shaping divorce laws in India, reinforcing the importance of legal awareness in marital disputes.

If you or someone you know is facing marital issues, consulting a legal expert can help navigate the grounds of divorce effectively. Staying informed about the legal framework ensures that individuals can make empowered decisions regarding their marital rights and future.

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Disclaimer: The information in this article is for educational purposes only and should not be considered legal advice. Please consult a qualified attorney for specific legal concerns.

About the Author:

Adv. Manish Sharma,

Adv. Manish Sharma, completed graduation of Law in 2013, and after enrolling with Punjab and Haryana High Court and Himachal Pradesh High Court, associated with a renowned Criminal Lawyer in 2014, and handled serious criminal cases and got name in providing justice to victims till 2020, later in 2020, associated with Famous Family law advocate where handled many critical family / matrimonial disputes and provide them solutions.Currently managing all Criminal and Civil along with Matrimonial cases for Punjab, Haryana, and Himachal courts of Law and providing them solutions for their needs.