This article has been written by Vaishali. N, a student at the School of Excellence in Law, Chennai. This article attempts to discuss contested divorce in detail while providing relevant and important case laws. It briefly introduces the readers to the concept of divorce and then proceeds to explain the grounds for contested divorce under different personal laws, the procedure to be followed, and the requirements and documents necessary for filing a contested divorce.
It has been published by Rachit Garg.
Table of Contents
Marriage is an essential social institution which maintains cohesion and solidarity of the society we live in. It is a social and legal union of two individuals who commit to spending the rest of their lives together by sharing feelings of trust and love for each other. But sometimes it becomes difficult to continue a marital relationship if it evolves into an unhealthy or harmful relationship for the individuals bound to it. There are a variety of reasons for a marriage to go bitter, and this pushes unhappy couples to relieve themselves from the marriage by getting a divorce. Divorce is the legal termination of a marriage between two individuals.
In India, divorce is governed by different personal laws based on one’s religion; however, the grounds for obtaining a divorce under these laws vary only to a slight extent. Divorce can either be sought mutually or it can be contested. This article focuses on the laws and procedures related to contested divorce in India while discussing relevant case laws for the same.
What is a divorce
A divorce is sought when two parties in a marriage no longer wish to continue their matrimonial bond due to some or other reason that cannot be resolved and there is no scope of reconciliation. It can be simply defined as a legal dissolution of marriage, which can be initiated by filing a petition for divorce in court.
There are ways of getting a divorce: divorce by mutual consent and contested divorce. In the first case, both partners recognise their differences and mutually decide and agree upon getting divorced. There is consent and mutual agreement from both sides seeking a divorce. However, in a contested divorce, there is a disagreement between the parties, where one spouse initiates the divorce on legal grounds while the other attempts to oppose it, leading to prolonged legal battles to settle the dispute and obtain a divorce.
Divorce is not only about the dissolution of the matrimonial alliance; it also involves the issue of division of property, issue of payment of alimony to the spouse and the custody of children. It is also important to note that divorce can be granted only if there is “an irrevertible breakdown of marriage” where the parties should have such allegations levelled against each other that the marriage appears to be practically dead or irreparable.
What is a contested divorce
In a contested divorce, either one of the parties file a petition seeking divorce on certain grounds when the other has not consented to it. Unlike mutual divorce, the parties here are in a disagreement, so, the parties seeking divorce appoint separate lawyers to represent their individual interests and engage against each other in the legal proceedings. While mutual divorces take only a few months, contested divorces can take up to 2-3 years or even longer and are a relatively more expensive process as well.
There are certain grounds on which a contested divorce can be sought. The party filing for divorce must prove the grounds satisfactorily. Though there are separate personal laws governing marriage and divorce for people belonging to different religions, the grounds for a contested divorce are more or less similar for all. These grounds under Hindu, Christian, Muslim, and Parsi laws will be covered in greater detail in the upcoming section.
Grounds for filing a contested divorce
There are various grounds on which a divorce can be contested. These grounds, which are discussed in different personal laws, bear only slight differences but are similar in most aspects. The grounds on which the petitioner seeks divorce must be satisfactory for the court to grant a divorce.
Grounds under Hindu Marriage Act, 1955
Under Section 13 of the Hindu Marriage Act, 1955, a divorce can be contested on the grounds of adultery, cruelty, desertion, religious conversion, leprosy, communicable diseases, renunciation, mental instability, or presumption of death.
In a subsisting marriage, when one partner has sexual intercourse with another married or unmarried person consensually, then he/she is said to have committed adultery which was a criminal offence under Section 497 of the Indian Penal Code, 1860. Adultery was later decriminalised in 2019 in the case of Joseph Shine v. Union of India. Though it is no longer a criminal offence, it is considered to cause a serious and damaging lapse in marital relationships and thus forms a valid ground for obtaining a divorce under Section 13(1)(i).
The petition for divorce can be filed by the affected party, and the burden of proof lies on the party alleging the same.
It is necessary that the ground of adultery be proved beyond a reasonable doubt, and mere gossip does not prove adultery.
In the case of Dhedu Sheoram v. Mst. Malhanbai (1965), the husband, informed that there is a custom in their family where the married couple can have no sexual relationships until a specific ceremony is performed. But the wife had conceived before the ceremony was performed. The court held that the ceremony not being performed and the wife and husband living in separate homes alone cannot be proof of non-access. The child was born during the continuance of marriage, and the husband failed to submit sufficient evidence of ‘non-access’ during the period when the child could have been conceived. Thus, the decree of divorce at the instance of the husband was rejected.
Cruelty is also one of the common grounds for seeking matrimonial relief under all personal laws. Initially, it was not a ground under the Hindu Marriage Act, 1955; it was added after an amendment to the Act in 1976. Cruelty can be both mental and physical. However, there is no specific definition or categorisation of what cruelty can be, as the parameters to decide that are endless.
Section 13(1)(i)(ia) establishes that if a person has a well-founded fear and a reason to believe that the conduct of their spouse is likely to be harmful, then that can be a reasonable ground to seek divorce.
The concept of cruelty changes and evolves over a period of time. What was once considered to be an acceptable practice decades ago might not be acceptable now. It is not necessary to prove mens rea (a wrongful intention) for establishing a case under cruelty, any conduct that inflicts pain or produces a strong negative impact on the petitioning party is cruelty.
In the case of Bajrang Gangadhar Revdekar v. Pooja Bajrang Revdekar (2010), the High Court of Bombay dismissed the husband’s plea for divorce because the allegations against his wife to establish cruelty were merely the day to day quarrels they had over trivial matters and that the wife made her grievances in a loud voice, which cannot be considered instances of mental cruelty.
If a person abandons their spouse for at least 2 years continuously, without any reasonable cause, then the spouse can file for divorce under Section 13(1)(i)(ib). It is important that the person seeking divorce on this ground be able to establish that his/her spouse had the intention to desert them and not return again. The intention to permanently put an end to cohabitation is termed as animus deserendi.
In Om Prakash v. Madhu (1997), the husband sent his wife away to live separately to complete his studies. The husband filed against her for divorce on the grounds of desertion but the trial court rejected the petition. So he appealed to the High Court contending that they had been living separately for 16 years, and the wife’s refusal to receive the notices for return amounts to desertion. But, the court upheld the trial court’s decision and rejected the husband’s plea. It was held that there was no desertion on part of the wife. The court observed that the reason for living separately was for the sake of the husband’s studies. Even though he had visited her frequently during the separation, he did not have the courage to bring her back home against his family’s wishes. The wife was even ready to rejoin him during the proceedings, but his unwillingness has made her lose faith in their marriage. He had thought making her live separately would thrust upon her animus deserendi (intention to end cohabitation permanently), but that is not the case as there was no intention on the part of the wife to abandon him. Therefore, the claims of the husband were rejected. Further, the court cited that the couple had previously expressed their desire to live together in the local council proceeding. Hence, the petition was dismissed.
Under Section 13(1)(ii) of the Hindu Marriage Act, 1955, if either spouse converts to another religion, then a divorce petition can be filed. Because change in one’s religion alters their way of life, this can eventually lead to fallouts between the partners; hence, it forms a valid ground for divorce.
However, the spouse who converted to another religion cannot apply for divorce on this ground. In the case of Madanam Seetha Ramalu v. Madanam Vimala (2014), the husband was granted a divorce he filed against his wife for converting to Christianity. The court noted that conversion alone does not affect the marriage tie and that it is only the right of the non-convert spouse to apply for a divorce under this ground. The spouse who gives up Hinduism is the one who has wronged or caused disability in their marriage and hence cannot be the one to seek relief on this ground.
Leprosy and communicable venereal diseases
Under the amended Hindu Marriage Act, 1976, divorce can be sought by a person if their spouse suffers from a “virulent or incurable form of leprosy” under Section 13(1)(iv) or from any incurable communicable venereal disease under Section 13(1)(v). Prior to the 1976 amendment, it was required that the party against whom the petition was filed should have suffered for at least three years. This time period requirement was later removed after the amendment.
It is absolutely necessary that only the party suffering from their spouse’s disability should be the one filing for a divorce. In Triveni Singh v. State of U.P. (2008), the father-in-law after the death of his son, petitioned against his daughter-in-law to annul the marriage of his deceased son. He alleged that the wife was suffering from HIV, and this fact was concealed from his son. But there was no evidence submitted that the wife had suffered from HIV nor that the consent of the son was obtained fraudulently. The Court observed that the marriage cannot be annulled as it did not involve the affected spouse seeking relief, and thus the basis of the suit was extraneous and not an inter-spousal issue.
When a person renounces the worldly way of living and enters into a religious order, it becomes a ground for dissolution of the marriage under Section 13(1)(vi) as renunciation of the world is considered holy.
Lunacy or any other form of mental instability were not considered as a ground for annulling marriage but this position changed with the establishment of the Hindu Marriage Act, 1955. under Section 13(1)(iii) of the Act relief can be provided if the spouse –
- Is incapable of giving valid consent to marriage due to his/her mental state
- Though capable of giving consent, she is unfit for marriage and procreation of children
- Has been subject to recurrent attacks of insanity
In R. Lakshmi Narayan v. Santhi (2001), the marriage was arranged and the couple had been together for 25 days, after which the husband sought a divorce to dissolve their marriage on the grounds that his wife was suffering from a chronic and incurable mental disorder. The husband submitted that on the night of their marriage, she was drowsy and refused cohabitation. She said that she had suffered from mental disorders since childhood and was not ready for any relationship, as she gave in to the marriage out of family pressure. The High Court rejected the petition on the basis that it was not established that the wife was unable to give valid consent due to unsoundness of mind during marriage and that judging her mental state merely due to her refusal to cohabitate is unreasonable, especially when the couple has lived together for a very short period of time.
The High Court held that it was necessary to establish that the mental ailment suffered should be to such an extent that it should be impossible for the person to lead a normal married life. Further appeal on the case was dismissed by the Supreme Court.
Presumption of death
If the spouse is presumed dead due to his/ her whereabouts being unknown to family or friends for a period of 7 years, then it forms a valid ground for divorce under Section 13(1)(vii).
Grounds under Muslim Law
There are two ways to dissolve a marriage under Muslim law:
- Judicial process: It involves initiating a divorce proceeding in court on the basis of the grounds provided under the Dissolution of Muslim Marriages Act, 1939.
- Extra-judicial process: It involves dissolving the marriage either mutually or by the will of either of the spouses through the customary and religious practices in Sharia Law.
Divorce under Muslim law is governed by the Dissolution of Muslim Marriages Act,1939, where grounds for divorce available to a Muslim woman are listed under Section 2 of the Act. A Muslim man does not need any grounds to divorce his wife. A married Muslim woman can seek to dissolve her marriage on the following grounds:
- The husband’s whereabouts have been unknown for a period of four years.
- He failed to provide maintenance for a period of two years.
- He has been sentenced to imprisonment for 7 years or more.
- The husband failed to perform his marital obligations for 3 years.
- Husband was impotent during the time of marriage and continues to be so.
- The husband has been mentally unstable for two years or suffers from leprosy or virulent venereal disease.
- The woman was given in marriage before she attained the age of 15 years by her father or guardian and was repudiated before she attained the age of 18. Divorce can be sought on this ground, provided that the marriage has not been consummated.
- If the husband treats her cruelly. Cruelty here includes assault, ill-treatment,associating with women of evil repute, forcing the wife to lead an immoral life, disposing of her property or restricting her legal rights over it, obstructing her observance of religious practice, having more than one wife, and not treating her equitably in accordance with the injunctions in the Quran.
Divorce under an extra-judicial process can be classified on the basis of which party wishes to nullify the marriage.
- Divorce by husband
- Divorce by wife
- Mutual divorce
Divorce by husband
Talaq translates to “setting free” or “letting loose”. The pronouncement of talaq breaks one’s marriage and sets them free from its bondage. There are two types of talaq: talaq-e-sunnat and talaq-e-biddat.
Talaq-e-sunnat is considered to be in conformity with the tenets of the Prophet Mohammed, and it is further subdivided into: talaq-i-ahsaan and talaq-i-hasan.
Talaq-i-ahsaan is considered to be the most ideal way of divorce, the practice of which involves the husband pronouncing divorce just once during the period of tuhr (when the wife is not menstruating). This form of divorce can be revoked if the couple resumes cohabitation in the period of iddat.
Talaq-i-hasan is considered a proper way to divorce, where the husband pronounces divorce three times over three consecutive tuhrs while abstaining from having sexual intercourse during this period. The divorce can be revoked if the couple resumes cohabitation within one month of the first pronouncement.
Talaq-e-biddat, also known as “triple talaq”, is a process of divorce that involves pronouncing ‘talaq’ three times in a single sitting, which ends the marriage instantly. It is irrevocable and is considered an undesirable and sinful practice in Islam.
This practice was later banned by way of the Supreme Court’s landmark decision in the case of Shayara Bano v. Union of India (2017). The Court remarked that the practice of triple talaq is not protected under Article 25 of the Constitution of India as it is not an essential part of the religion and is condemned by the practitioners of Islam itself. It was held to be unconstitutional as it violates the fundamental rights of women under Article 13(1) and 14 and declared the Muslim Personal Law (Shariat) Application Act, 1937 to be void as it upheld the practice of talaq-i-biddat and was thus, in conflict with the aforementioned fundamental rights.
The husband vows to abstain from sexual intercourse for a period of four months, after which the marriage is dissolved irrevocably. However, if the husband breaks his vow and indulges in intercourse, then the marriage cannot be dissolved.
The husband places his wife in the position of his mother or sister and compares her to them. With such a view in mind, he refrains from cohabitation for a period of four months, after which the marriage stands dissolved.
Divorce by wife
The husband delegates the power to pronounce divorce onto his wife, giving her the authority to dissolve the marriage. The delegation of the authority to divorce can be absolute or conditional, temporary or permanent. Permanent delegation is revocable, but temporary delegation is not.
The wife can seek a divorce if the husband falsely accuses her of adultery.
The wife agrees to pay some compensation, usually in the form of property, to her husband, and he accepts it. The marriage is thus dissolved mutually, in exchange for some consideration on the part of the wife.
Both the husband and the wife no longer wish to continue their marriage, and thus either of the spouses puts forward a proposal for divorce and the other accepts it. Hence, the marriage is dissolved irrevocably.
Grounds under Christian Law
Divorce for Christians is governed by the Indian Divorce Act, 1869. But due to being outdated and discriminatory in many aspects, the act was substantially amended in 2001. Section 10 of The Indian Divorce (Amendment) Act, 2001, provides grounds for the dissolution of a Christian marriage that has been solemnised.
A divorce can be sought on any of the grounds mentioned under sub-clauses (i) – (x) under Section 10(1) against one’s spouse if he/she –
- has committed adultery;
- converts to another religion and ceases to be a Christian;
- has been mentally unsound for a period of at least two years;
- suffers from virulent and incurable leprosy for a period not less than two years;
- has been suffering from communicable venereal disease for a period of not less than two years;
- has not been heard from for a period of seven years;
- has willfully refused to consummate the marriage;
- failed to comply with the restitution of conjugal rights for a period of two years since the issue of decree against the respondent;
- deserted their spouse for a period of two years;
- treated their spouse with such cruelty, giving the petitioner enough reason to believe that it would be harmful or injurious to live with the respondent.
In addition to the aforementioned grounds, Section 10(2) provides a ground exclusively for women to file for divorce if the husband, since the solemnization of marriage, has been guilty of rape, sodomy, or bestiality.
Section 10(2) was challenged in the case of Anil Kumar Mahsi v. Union Of India (1994), on the grounds that the exclusivity given to women under this clause violates the right to equality under Article 14. But the court dismissed the petition, keeping in view women’s general physical and social vulnerability in our country.
Grounds under Parsi Law
- If the marriage has not been consummated within one year of marriage and there is willful refusal to consummate the marriage from the defendant.
- The defendant was mentally unsound at the time of marriage or had been so for two years up to the date of the suit.
- The wife was pregnant with another person’s child at the time of marriage, provided that the plaintiff was ignorant of the fact. The suit should have been filed within two years of marriage.
- The defendant has committed adultery, fornication, rape, bigamy or any other unnatural offence
- Defendant has caused voluntary grievous hurt to the plaintiff, has infected the plaintiff with venereal disease, or if the defendant as the husband has forced his wife to submit herself to prostitution.
- The defendant has been sentenced to imprisonment for seven years and upwards
- The defendant had deserted the plaintiff for at least two years
- The defendant has failed to comply with the decree passed by the magistrate against the defendant and provide separate maintenance to the plaintiff, and no marital intercourse has taken place between the parties for a year or more since the decree was passed.
- [omitted by Section 8 of the Act.]
- The defendant ceased to be a Parsi (by converting to another religion).
Grounds under the Special Marriage Act, 1954
The grounds for divorce and separation under the Special Marriage Act, 1954 are similar to the grounds provided under the Hindu Marriage Act, 1955. The provisions for divorce are contained under Section 27 of the Special Marriage Act, 1954, where either spouse may file a petition for divorce on the following grounds-
- Adultery: If the respondent, after the solemnization of marriage, has had sexual intercourse with another person voluntarily.
- Desertion: If the petitioner was deserted for a continuous period of at least 2 years. Desertion here means that the respondent has engaged in ‘wilful neglect’ of the petitioner by abandoning him or her without any reasonable cause or consent.
- If the respondent has been convicted of an offence under the Indian Penal Code,1860 and is serving a sentence of imprisonment for seven years or more for the same.
- Cruelty: The respondent has treated the petitioner with cruelty since the solemnisation of the marriage.
- Mental instability: The respondent has an unsound mind or has been suffering from a mental disorder, continuously or intermittently, to the extent that it is not possible for the petitioner to continue to live with the respondent anymore. ‘Mental disorder’ includes mental illness, arrested development of the mind, psychopathic disorders like schizophrenia, or any such similar disorder that induces the respondent to act in an abnormally aggressive or reckless manner.
- The respondent is suffering from a communicable venereal disease.
- The respondent has been suffering from leprosy or any other serious disease (provided that it was not contracted from the petitioner).
- Presumption of death: The respondent’s whereabouts have not been known or have not been known to be alive for a period of at least 7 years or more.
Requirements to consider a contested divorce
There are certain requirements that need to be considered before filing for a contested divorce. The court could reject the petition if these basic requirements are not met.
Evidence to prove grounds
In a contested divorce, one party files a divorce petition on specific grounds against the other party. So in order to win the case, it is essential to have sufficient documents and evidence to support the allegation on the basis of which the divorce is sought. If the petitioner lacks the necessary evidence to prove the allegation or if the court finds that the documents and evidence submitted are fabricated, then the petition will be dismissed.
Proper filing of the petition
It is absolutely important to strictly adhere to the procedural codes that courts follow. It is necessary to keep a check on filing procedures and look out for procedural errors like missing stamps or essential documents. In cases of such errors or improper filing, the petition could be rejected by the court.
Reasonable exceptional hardship or depravity
The law establishes that a person can claim a divorce only in cases where he or she faces exceptional hardship or depravity. The petitioner should be facing exceptional hardship or depravity to the point where it’s almost impossible to live any longer with the spouse.
Procedure for a contested divorce in India
The person willing to file for a contested divorce must first seek an attorney that specialises in this field of work to fight for their case. The process of getting a contested divorce can be very long and tedious, and it involves various legal complexities.
The steps for obtaining a contested divorce are as follows:
Firstly, necessary information like facts, grounds, and supporting documents related to the case should be gathered. Then a well-drafted petition should be prepared and filed before the district family court where the couple last resided, the place where the marriage was solemnised or where the spouse currently resides.
The petition is scrutinised by the court. If the court is satisfied, it serves a notice to the spouse against whom the petition is filed to appear in court with an attorney on a fixed date. The general response period ranges from 21 – 30 days from the issue of the notice.
The court will suggest that the parties take up mediation to resolve the issue. If mediation fails, then the court will continue with the divorce proceedings.
At the trial, parties from both sides will present facts, evidence, and witnesses to the judge. The court frames the issues. Cross-examinations will be conducted, and the submission of arguments will be made by the counsels of both parties.
The court, after listening to the final arguments of both parties and resolving the issue, delivers the verdict and may allow or deny the divorce decree.
The aggrieved party can appeal to the High Court with jurisdiction over the family court and then later to the Supreme Court within 3 months of passing the verdict.
Documents required for filing a contested divorce
The documents that are to be produced while filing for a contested divorce are as follows:
- Proof of marriage: marriage certificates issued by the registrar and photographs of marriage, invitation cards, etc. are to be produced as evidence.
- Residential address proof of both the husband and the wife
- Information regarding the parties’ family background, occupation and source of income
- Particulars of moveable, immovable properties and other assets owned by the parties
- Income tax return statements for the previous two financial years at least
- Documents providing information on the grounds on which the suit is filed.
- There is evidence to establish that the parties have been living separately for more than a year and that all attempts to reconcile have been unsuccessful.
- In the event that divorce is sought on the grounds of cruelty, or on the grounds that the spouse suffers from communicable venereal disease or leprosy, then the necessary medical reports in support of such allegation are to be produced.
Important case laws
Shobha Rani v. Madhukar Reddy (1988)
This case establishes that dowry demand per se is cruelty under Section 13(1)(ia) of the HMA, 1955.
The appellant, wife and the respondent, husband were both educated and financially well off. The wife alleged that her in-laws were constantly demanding money from her every day, and the husband too had supported his parents and conveyed to her in one of the letters that there was nothing wrong with his parents asking her for a few thousand rupees. The constant pestering for money had reached a point where the appellant was afraid to go back and live with her husband. She had also not disclosed the fact that she had property and some money in her account to her husband or in-laws as she had an apprehension that she might be ill-treated physically or mentally for more money. The couple had initially tried to part ways mutually, but it was not granted. Thus, the appellant filed for divorce on the grounds of cruelty.
Whether the demand for dowry per se would amount to cruelty?
The Apex Court remarked that intention to harm is not an essential ingredient to prove matrimonial cruelty. Even though there had been no deliberate or wilful ill-treatment of the appellant, the demand for dowry is prohibited by law. The conduct of the in-laws and the husband in demanding dowry from the appellant constitutes cruelty. Thus, the wife’s appeal was granted, and a decree to dissolve the marriage was passed in her favour on the grounds of cruelty.
Shashi Bala v. Rajiv Arora (2012)
Conjugal relationships are an essential part of marriage. This case deals with whether a spouse’s non – cooperation in conjugal relations includes cruelty under Section 13(1)(ia) of the Hindu Marriage Act, 1955.
The husband had petitioned for divorce on the grounds of cruelty, and the wife had filed a counter-claim for restitution of conjugal rights. The husband alleged that the wife did not cooperate in having sexual relations with him and did not participate in any traditional ceremony after the marriage, which caused him humiliation and embarrassment, and contended that this amounts to cruelty. The trial court dismissed the wife’s claim and held in favour of the husband. Hence, the wife filed an appeal to the High Court of Delhi.
Whether a non-responsive and non-cooperative attitude of the wife in sexual relations entitles the husband to obtain a divorce decree ?
The High Court upheld the order of the trial court. It was observed that a healthy sexual relationship plays an important role in building a healthy marriage. The court remarked that “sex starved marriages are becoming an epidemic,” that denial of sexual relationships is a grave act of cruelty, and that a healthy sexual relationship is necessary for a happy marriage. Thus, on the ground of the wife’s non-cooperation in the conjugal relationship and her act of filing baseless criminal complaints against the husband, it amounts to cruelty and entitles the husband to a decree of divorce.
Naveen Kohli v. Neelu Kohli (2006)
Irreversible breakdown is an essential element in deciding the state of one’s marriage and checking if the marriage is broken to an extent where the couple can no longer live together. But “irrevertible breakdown” is an essential ingredient rather than a ‘ground’. The court in this case decides whether irrevertible breakdown can be considered the sole ground for divorce.
The appellant-husband and the respondent wife were married in 1975 and had three sons out of wedlock. The appellant alleged that his wife had a bad temperament and rude behaviour. After the marriage, the respondent ill-treated him and his family, due to which they had to move to a rental property. During their trip to Bombay to attend the appellant’s parent’s silver jubilee wedding anniversary, the respondent was alleged to have engaged in indecent and impermissible behaviour and was found in a compromising position with another man.
And since this incident, the appellant had been living separately and had endured severe mental and emotional abuse due to the conduct of the respondent.
Further, the appellant alleged that the respondent had drawn out Rs. 9,50,000/- from the appellant’s bank account and deposited the amount into her account. She had also lodged a number of false first information reports against him, which ruined his reputation and caused mental cruelty. The appellant filed a civil suit against the respondent. He claimed that he was manhandled at the behest of the respondent and that it was on her instruction that the eldest son had filed a complaint against the appellant, alleging that he had physically beaten their son, Nitin Kohli.
Whether irreversible breakdown of a marriage can alone be used as a ground to grant a divorce decree?
In this case, even though the divorce petition was not filed on any specific ground mentioned under the Hindu Marriage Act,1955, the court observed that the marriage had broken down beyond repair. It was remarked that it is injurious to the interests of the parties to keep a practically dead marriage legally alive. The court observed that “once the marriage has been broken down beyond repair, it would be unrealistic for the law to not take notice of the fact, and it would be harmful to the society and injurious to the parties”. After evaluating the evidence and analysing the facts, the court came to the conclusion that it was obvious that the respondent wanted to live in agony and make the appellant’s life miserable. It was clear that the marriage had been broken down to such an extent that there was no way the damage could be reversed and the couple could live together again. Even after this observation, if the decree were not to be granted, this would induce perpetual bitterness in their lives and may lead to immorality, which is more concerning to the interest of the public.
Thus, the Apex Court allowed the decree and made a strong suggestion to include “irreversible breakdown of marriage” as a ground for divorce.
C. Solomon v. Josephine (1958)
In this case, the court decides whether the mere absence of a happy marriage can be considered a reasonable basis to grant divorce over the allegations made under a specific ground for divorce (which in this case is mental illness) under the Indian Divorce Act, 1869.
The husband filed a petition under Section 18 of the Indian Divorce Act, 1869, to declare his marriage null and void on the grounds that his wife was a lunatic and an idiot. He said she had been this way even before their marriage, but it was concealed from him, and he was told that she was just suffering from mental illness and that she would be alright after the marriage. However, the wife alleged that she was being ill-treated by her husband; hence, she ran away out of fear. The district judge ruled that the circumstances in the case are such that they would support the continuation of a happy married life; thus, the suit of the husband was decreed. But a confirmation proceeding before the high court reversed the decision.
Where allegations of mental illness or abnormality are made, can the court take mere incompatibility and the absence of prospects of a happy marriage to grant relief?
The High Court ruled out the District Court’s order. It noted that the husband had failed to establish that his wife was suffering from mental abnormalities. On the basis of the provisions under the Indian Divorce Act, 1869, if the ground is not proved, divorce or the declaration of marriage as null and void cannot be granted merely on the basis of the incompatibility of the spouses or on the prospect of leading an unhappy married life.
Abdurahiman v. Khairunnessa (2010)
Polygamy is not an illegal practice under Islamic laws. However, there are certain conditions under which a Muslim woman can seek divorce on the grounds of her husband’s second marriage. In this case, the court looks into the conditions under which such a petition under the Dissolution of Muslim Marriages Act, 1939, can be entertained.
The wife filed for the dissolution of marriage under Section 2(viii)(f) of the Dissolution of Muslim Marriages Act, 1939. The woman had four children with her husband, who later married another woman and entered into a polygamous relationship. After the second marriage, the husband started treating her differently and in a discriminatory manner. He usurped her property, jewellery and cash and treated her with cruelty. Thus, the petitioner has filed for divorce on the grounds of not being treated in an equitable manner according to the injunctions of the Quran.
Can a Muslim woman seek divorce on the grounds of her husband’s polygamous marriage when polygamy is not illegal under Islamic law?
The Court decreed the divorce and ruled in favour of the petitioner. The court remarked that the accepted modern concept of marriage holds space only for two people to be a part of it. If a third person intrudes between them, then the one who is unwilling to accommodate must be given the choice to walk out of the marriage. And Section 2 (viii)(f) serves as an escape route out of a polygamous marriage for Muslim women. Further, the court invoked the provisions of Article 21 of the Constitution and noted that the right to life also includes the right to live in a healthy and harmonious relationship. It added that marriage as an institution becomes meaningless if it is not enjoyed, and though the right to opt out of an emotionally dead marriage might raise concerns of morality and public order, it will eventually be accepted as it is essentially a matter of the right to life.
Therefore, the court held that though polygamy is not condemned under Islamic law, it is the duty of the husband to treat all his wives in an equitable manner in accordance with the tenets of Islam, which the respondent has failed to do. Thus, the petitioner was granted the decree to dissolve the marriage under Section 2 (viii) (f) of the act.
Divorce can be a difficult and emotionally challenging process to go through. In India, divorce still remains quite stigmatised and it particularly affects the women of our society as they tend to get ostracised for getting divorced. Divorce even negatively impacts the children of the divorcees, their families, and their communities. Despite this, divorce rates have been increasing over the years as both men and women have become economically and socially independent. Back in time, men alone were considered to be the providers in a family, and hence women had to stay in a marriage to sustain themselves and their children, even if they were unhappy with their marital lives. Men too feared getting a divorce, as it was considered humiliating for a man to not be able to protect his marriage. But in the contemporary world, social stigmas have relatively eased down, and both men and women are able to sustain themselves and their children either by way of their own financial independence or by way of the protection of matrimonial laws, which mandate the maintenance of the divorcee. Thus, neither men nor women these days wish to reluctantly continue the institution of marriage if it is not working. Moreover, after several enactments and amendments to the personal laws, the grounds for contesting a divorce have been widened, and this has provided a way out for the individuals suffering in an abusive marriage.
Even though getting divorced can be a painful experience, it often becomes a necessary process to go through so that individuals can walk out of a toxic relationship and find happiness and greater fulfilment by starting a new chapter in their lives.
Frequently asked Questions (FAQs)
What is the difference between a contested divorce and judicial separation?
Judicial separation is a temporary suspension of conjugal rights and marital obligations, while contested divorce is a legal remedy that can bring about the permanent dissolution of marriage. A suit for judicial separation can be filed at any time after marriage, but for a divorce, there are time restrictions. Either of the spouses can file for a judicial separation, but only the aggrieved/suffering party can file for a contested divorce.
Who gets custody of a child or children in a contested divorce?
The court decides the matter regarding custody of children in a contested divorce. The court takes into consideration many factors to examine the character and capacity of the mother or father before granting custody of the children. If the minor children are mature enough to make a well-informed decision, their preference will usually be considered.
When is a notice for a contested divorce given to the spouse?
The party who plans to file for a contested divorce must send a divorce notice to their spouse before filing a petition for divorce at the court.
- Family Law – I (4th edition) by Prof. Kusum
- Cases and materials on Family Law (4th edition) by Prof. Kusum
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