divorce

What Is Divorce?

Divorce is a legal action in which a couple terminate or dissolve their marital relationship. It generally refers to a legal action which ends a marriage before the death of either spouse. (See Here)

What Are The Grounds For Divorce?

Hindu Law

According to Section 13 of Hindu Marriage Act, the following are the grounds for divorce:-

 

  • ADULTERY– If either of the parties indulges in sexual intercourse outside marriage, it is called an act of adultery. Divorce can be filed by the aggrieved party on this ground. 
  • CRUELTY– If a petitioner is subjected to mental or physical harm that causes danger to his/her life, it is called an act of cruelty. 
  • DESERTION– If the petitioner is abandoned by his/her spouse for not less than 2 years immediately before the petition for divorce is presented in court. 
  • CONVERSION– If either party ceases to be a Hindu by converting to another religion. 
  • MENTAL DISORDER– If a party is of unsound mind, suffering from a mental disorder to such an extent that petitioner cannot live with the respondent. 
  • LEPROSYIf either party suffers from an incurable form of leprosy then a petition for divorce can be presented in court. 
  • VENEREAL DISEASE- If either party suffers from communicable form of a venereal disease then a petition for divorce can be presented in court. For eg. AIDS. 
  • RENUNCIATION– If either party has renounced the world by joining a religious sect.
  • NOT HEARD ALIVE– If either party has not been heard from for 7 years by persons who would naturally have heard from him had the party been alive. 
  • NO RESUMPTION OF COHABITATION– There has been no resumption of cohabitation between parties for or after 1 year of the passing of a decree of judicial separation. 
  • NO RESTITUTION OF CONJUGAL RIGHTS– There has been no restitution of conjugal rights between parties for or after 1 year of passing of a decree of restitution of conjugal rights.

 

A wife may also present a petition for divorce on the following grounds:-

  1. In case of a solemnized marriage before the commencement of this Act, the husband remarried before such commencement or any other wife of the husband was alive at the time of solemnization of the marriage of the petitioner. 
  2. Since the solemnization of marriage, the husband has been guilty of rape, sodomy or bestiality. 
  3. In a suit under Section 18 of Hindu Adoptions and Maintenance Act, 1956 or under Section 125 of the Criminal Procedure Code, 1973 or under corresponding Section 488 of Criminal Procedure Code, 1898, a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for 1 year or upwards. 
  4. Her marriage was solemnized before she was 15 years old and she repudiated such marriage after she was 15 years old but before she turned 18 years old.

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Under Section 13B of the Hindu Marriage Act, 1955  a petition for divorce can be presented by both the parties to a marriage to the district court because they have been living separately for 1 year or more, they have not been able to live together and they have mutually agreed to end this marriage. Parties may on a motion to withdraw this petition not earlier than 6 months and not later than 18 months after the date of presentation of the petition and if they do not withdraw it then the district court will, after hearing the parties and after making an inquiry that the marriage is solemnized under this Act and that the averments made in the petition are true, dissolve the marriage by passing a decree.

Muslim Law

According to Section 2 of The Dissolution of Muslim Marriages Act, 1939, the following are the grounds for divorce:-

  1. Husband’s whereabouts has not been known for 4 years. 
  2. Husband has neglected or failed to provide for his wife’s maintenance for 2 years. 
  3. Husband has been sentenced to prison for 7 years or more. 
  4. Husband has failed to perform his marital obligations without reasonable cause for 3 years. 
  5. Husband was impotent at the time of marriage and continues to do so. 
  6. Husband was insane for 2 years or suffering from leprosy or venereal disease. 
  7. Woman was given in marriage at 15 years of age by her father or guardian, repudiated the marriage before she was 18 years. 
  8. Husband treats his wife with cruelty.
  9. Any other ground valid for dissolving a marriage under Muslim law. 

Parsi Law

According to Section 32 of The Parsi Marriage and Divorce Act, 1936, the following are the grounds for divorce:-

  1. Marriage has not been consummated within 1 year after the solemnization due to refusal of the defendant. 
  2. At the time of marriage, defendant was of unsound mind. 
  3. Defendant was of unsound mind for 2 years immediately before filing of the suit or has been suffering from a mental disorder so much that the plaintiff cannot live with the defendant. 
  4. Defendant was pregnant at the time of marriage ny some other person except the plaintiff. 
  5. Since the solemnization of marriage, defendant has committed adultery or bigamy or rape or fornication or an unnatural offence.
  6. Defendant has treated the plaintiff with cruelty since the solemnization of marriage.
  7. Since the marriage, defendant caused grievous hurt or infected a venereal disease to the plaintiff or if defendant is the husband has compelled the wife to submit herself of prostitution.
  8. Defendant is undergoing imprisonment for 7 years or more. 
  9. Defendant has deserted the plaintiff for at least 2 years.
  10. Order passed against defendant awarding maintenance to the plaintiff and parties did not have intercourse for 1 year or more since such decree. 
  11. Defendant has converted to another religion.

Section 32A states that either party to a marriage if it is solemnized before or after the commencement of Parsi Marriage and Divorce (Amendment) Act, 1988 may also file for divorce under the following grounds:-

  1. If there is no resumption of cohabitation between parties to the marriage for 1 year or above after passing of a decree of judicial separation. 
  2. If there has been no restitution of conjugal rights between parties to the marriage for 1 year or above after passing a decree regarding the same.

According to Section 32B, a petition for divorce can be presented by both the parties to a marriage to the district court because they have been living separately for 1 year or more, they have not been able to live together and they have mutually agreed to end this marriage provided that no suit can be filed unless 1 year has passed since the date of marriage. 

Christian Law

Section 10 of The Divorce Act, 1869 lays down grounds for divorce in case a respondent:-

  1. has committed adultery. 
  2. has converted to another religion. 
  3. has been for not less than 2 years immediately before the presentation of petition:-
  4. Suffering from an incurable unsound mind.
  5. Suffering from a communicable venereal disease.
  6. Suffering from leprosy. 
  7. has not been heard from for 7 years or more by those people who would naturally have heard of him is he was alive. 
  8. has wilfully refused to consummate the marriage. 
  9. has not complied with decree of restitution of conjugal rights for 2 years or more decree is passed. 
  10. has deserted the petitioner for at least 2 years immediately before the presentation of petition. 
  11. has treated the petitioner with cruelty.

A wife can present a petition for divorce if the husband has since marriage been guilty of rape, sodomy or bestiality.

Section 10A states that both the parties to the marriage may together present a petition for divorce to the District Court if such marriage was solemnized before or after the commencement of Indian Divorce (Amendment) Act, 2001 on the grounds that they have been living separately for 2 years, they have not been able to live together and they have mutually agreed to end this marriage.

Special Marriage Act, 1954

Section 27 of the Special Marriage Act, 1954 lays down the grounds for divorce if the respondent has:-

  1. After the solemnization of marriage had indulged in the act of voluntary sexual intercourse with any person other than his/her spouse. 
  2. Deserted the petitioner for 2 years immediately before the presentation of petition. 
  3. Been undergoing imprisonment for 7 years for any offence under Indian Penal Code, 1860. 
  4. Been treating the petitioner with cruelty since the solemnization of marriage. 
  5. Been incurably of unsound mind or suffering from a mental disorder. 
  6. Been suffering from a communicable venereal disease or leprosy not being contacted from the petitioner. 
  7. Not been heard of as being alive for 7 years by those people who would have naturally heard from him if he would have been alive.

A wife can also present a petition for divorce to a district court on the following grounds:-

  1. Her husband has been guilty of rape, sodomy or bestiality since the solemnization of marriage. 
  2. In a suit under Section 18 of Hindu Adoptions and Maintenance Act, 1956 or under Section 125 of Criminal Procedure Code, 1973 or under corresponding Section 488 of Criminal Procedure Code, 1898, a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for 1 year or upwards.

If a marriage is solemnized before or after the commencement of Special Marriage (Amendment) Act, 1970, either party to a marriage may present a petition for divorce:-

  1. If there is no resumption of cohabitation between parties to the marriage for 1 year or above after passing of a decree of judicial separation. 
  2. If there has been no restitution of conjugal rights between parties to the marriage for 1 year or above after passing a decree regarding the same.

According to Section 28, a petition for divorce can be presented by both the parties to a marriage to the district court because they have been living separately for 1 year or more, they have not been able to live together and they have mutually agreed to end this marriage. Parties may on a motion to withdraw this petition not earlier than 6 months and not later than 18 months after the date of presentation of the petition and if they do not withdraw it then the district court will, after hearing the parties and after making an inquiry that the marriage is solemnized under this Act and that the averments made in the petition are true, dissolve the marriage by passing a decree.  

What Is Judicial Separation?

It is an instrument devised by law in which time is given to the married couple  for introspection in their troubled marriage. It is seen as a last resort before divorce is granted. Once a decree for judicial separation is passed, the husband or wife is under no obligation to cohabit with their spouse. (See Here)

Hindu Law

Section 10 of Hindu Marriage Act, 1955 specifies judicial separation in which either party may present a petition for the same on any grounds for divorce given under Section 13 and in case of a wife presenting such a petition, it shall on the grounds specified separately in the same section.

Muslim Law

A Muslim woman can present a petition for judicial separation on the grounds of divorce given under Section 2 of Dissolution of Muslim Marriages Act, 1939. (See Here)

Christian Law

Sections 22 to 26 of The Divorce Act, 1869 explain judicial separation. Section 22 states that petition for judicial separation may be presented by either party on the grounds of adultery, cruelty or desertion for 2 years or above and such decree shall have the effect of a divorce.

Special Marriage Act, 1954

Section 23 of Special Marriage Act, 1954 states that either party to a marriage may present a petition to the District Court on any of the grounds mentioned in Section 27 and on failure to comply with a decree for restitution of conjugal rights. 

Difference Between Judicial Separation And Divorce

The difference between judicial separation and divorce are as follows:-

  1. In judicial separation, marriage is temporarily suspended whereas in divorce marriage permanently comes to an end. 
  2. In judicial separation, reconciliation between parties is possible whereas in divorce parties cannot reconcile. 
  3. In judicial separation, parties cannot remarry wheres in divorce parties can remarry. 
  4. In judicial separation, there is only one stage of judgment wherein if the grounds are satisfied then the decree is passed. In divorce, judgment is a two step process in which there is reconciliation and then divorce.

What Is Annulment Of Marriage?

Annulment is a legal procedure in which a marriage is declared null and void. It is generally given only in cases of bigamy and not meeting the minimum age requirements for marriage. A marriage is annulled if certain legal requirements are not met at the time of marriage. Such marriage is considered to never have existed in law (See Here)

Hindu Law

Void and voidable marriages given under Sections 11 and 12 Hindu Marriage Act, 1955 respectively are annulled by parties. 

Muslim Law 

Faskh is translated as nullity of marriage but is not equivalent to annulment of marriage used in matrimonial suits. A declaratory suit can be filed with respect to right or status outside marriage under this law as per Section 34 of Specific Relief Act, 1963. A declaratory suit can be filed on the following grounds:- (See Here)

  1. The marriage of the plaintiff with the defendant is null and void; 
  2. The defendant who is claiming himself or herself to be the husband or wife of the plaintiff, is, in fact, not his or her husband or wife. (This is known as jactitation); 
  3. The plaintiff is lawfully wedded husband or wife of the defendant; 
  4. The plaintiff in the exercise of his right of repudiation of marriage, or in the exercise of the option of puberty, has repudiated the marriage with the defendant; 
  5. The plaintiff has terminated his or her irregular marriage with the defendant; or 
  6. The plaintiff’s marriage with the defendant has been validly dissolved.

Parsi Law

Section 30 of The Parsi Marriage and Divorce Act, 1936 states that if consummation of a marriage is not possible then on the instance of either party such marriage shall be declared as void. 

Christian Law

Sections 18 to 21 of The Divorce Act, 1869 explains nullity of marriage. Either husband or wife can present a petition to the district court declaring the marriage to be null and void on the grounds that:-

  1. The respondent was impotent at the time of marriage and institution of suit. 
  2. Parties are within the prohibited degree of consanguinity or affinity. 
  3. Either party was a lunatic or idiot at the time of marriage. 
  4. Former husband or wife of either party was alive at the time of marriage and such marriage with former husband or wife was then in force. 

If the consent of either party was obtained by force or fraud then it shall not affect the jurisdiction of district court to make a decree of nullity of marriage.

Special Marriage Act, 1954

Section 24 states that either party to a marriage may present a petition seeking a decree of nullity if:-

  • Either party had a spouse living. 
  • Either party:-
  • was incapable of giving consent to the marriage due to unsoundness of mind
  • even if capable of giving consent, has been suffering from a mental illness of such an extent as to be unfit for marriage
  • has been subjected to recurrent attacks of insanity. 
  • Male was below 21 years of age and female was below 18 years of age. 
  • Parties were within the degrees of prohibited relationship.

This section will not apply to a marriage solemnized within the meaning of Section 18 (Effect of registration of marriage) but such registration will have no effect if it was in contravention of any conditions of Section 15.

Section 25 states that a voidable marriage may be annulled by a decree of nullity if:-

  1. There has been non-consummation of marriage due to wilful refusal of the respondent to consummate the marriage. 
  2. Respondent was pregnant by some other person other than the petitioner at the time of marriage. 
  3. Consent of either party was obtained by coercion or fraud.

Decree shall not be granted in the 2nd condition if:-

  1. Petitioner was ignorant of the facts alleged at the time of marriage. 
  2. Proceedings were instituted within 1 year of marriage. 
  3. Marital intercourse has not taken place with the consent of the petitioner because of the existence of the grounds of decree. 
  4. Decree shall not be granted in the 3rd condition 
  5. Proceedings have not been instituted within 1 year after coercion had ceased or fraud had been discovered.
  6. Petitioner has lived with his/her partner as husband and wife with  free consent after coercion had ceased or fraud had been discovered.    

Difference Between Annulment Of Marriage And Divorce

Divorce ends a legal marriage whereas annulment treats the marriage as if it never existed. (See Here)


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