In this blog post, Harsha Asnani, student, NIRMA University, Ahmedabad writes about the grounds for divorce in India. The article also covers various personal laws that govern the divorce procedures depending upon the religious sect of the two parties to the case.
A cursory glance at the Indian legislative setup with respect to marriage and divorce laws reflects that marriage in India can be dissolved based on two grounds, either by mutual consent or by contested divorce. Divorce petitions filed under the former category need to be coupled with the consensus of both the parties with respect to the amount payable as alimony or maintenance and the over the matter of child custody. Whereas in the latter category where mutual consent lacks, there are several grounds on which a divorce petition can be filed. In the Indian legislative setup, due to the secular mindset, people belonging to different religious faiths are governed by separate laws on marriage and divorce. Therefore, Hindus, Muslims and Christians are governed by separate personal laws.
Grounds for divorce under the Hindu Marriage Act, 1955
Judicial Separation and Divorce is defined under Section 10 and 13 of the Hindu marriage Act, 1955 respectively. A petition for divorce can be made by either of the parties by specifying the ground on which decree of divorce can be passed. After passing of the decree for judicial separation, it will no longer be obligatory for the petitioner to live with the respondent in future. According to it, there are several grounds over which a solemnised marriage can be dissolved.
Firstly, if the other party, after the solemnisation of marriage had sexual intercourse with any person other than his or spouse or in other words has committed adultery, then a valid ground for divorce exists. An amendment brought by this law in 1976 specifies adultery need not be continuous in its course of occurrence. Even a single act of indulging in a sexual relationship with another person shall be enough under this section.
Secondly, if after the solemnisation of marriage, the petitioner has been treated with cruelty, mental or physical, being dangerous for his/her life, limb or health then a petition for divorce can be filed. Unlike adultery, under this ground, it is important that a series of acts be committed in furtherance of cruelty. Such acts may include denial of food, continuous ill behaviour or maltreatment, continuous demand for dowry etc.
Thirdly, if any one of the spouses has deserted the other for a period not less than two years, and the desertion of the petitioner by the respondent was without a reasonable cause and absence of consent or against the wishes of the former then the other partner can file a petition for divorce on the ground of desertion.
Fourthly, if any one of the partners converts his or her religion and has ceased to be a Hindu then the other partner can file a divorce based on this ground of conversion.
Fifthly, a divorce petition can be filed if one of the partners is suffering from a terminal or an incurable or a venereal disease which is easily communicable or mental disorders. Sexually transmitted diseases like HIV-AIDS can be accounted as venereal diseases. The concerned disease should be of such a kind that that the petitioner could not be reasonably expected to live with the respondent. Mental disorders under this section could be of such a kind which may include mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind or schizophrenia. Psychopathic disorders may include continuous disorder or disability of mind which causes abnormal, aggressive or irresponsible conduct of the other party.
Sixthly, a divorce petition can be filed on the ground that the respondent has renounced the world affairs by embracing a religious order.
Seventhly, if after the passing of the decree of judicial separation, there has neither been a resumption of cohabitation between the two parties nor observance of conjugal rights for a period of one year or more, it becomes a ground for divorce.
Eighthly, if either of the partners is not heard of being alive by those persons who would have naturally have heard of it for a period of seven years or more, a divorce petition can be filed.
Apart from these grounds, there are several other grounds under the Indian statute that provide for additional grounds for divorce. An important distinction between the former category of grounds and the grounds of divorce under the present heading is that these grounds are available to wives only. They consist of firstly, indulgence of the husband in rape or sodomy, secondly, if a marriage has been solemnized before the Hindu Marriage Act, and the husband has remarried in spite of the fact that the first wife was alive then the first wife can file a divorce petition, thirdly, if a girl has been married before the attainment of 15 years of age and renounces her marriage before she has attained 18 years of age, fourthly, in cases of non cohabitation for a period of one year and the husband has neglected the judgement of fulfilling the maintenance awarded to the wife by the court. Considering any one of the above grounds, a wife can file a divorce petition.
Grounds for divorce under the Indian Divorce Act, 1869
Under the said legislation following are the grounds on which a divorce petition can be filed. According to Section 10, a husband may file a petition for dissolution of marriage on the ground that since the solemnization of marriage, the wife has been guilty of adultery. Under the same section a wife can file divorce petition on the ground that her husband has converted his religion from Christianity to any other religion and has married another woman or is guilty of incestuous adultery or bigamy coupled with adultery or is guilty of rape, sodomy or bestiality or is guilty of cruelty or has committed adultery coupled with desertion without providing a reasonable excuse for two years or more. Apart from this there are certain additional grounds available under this act where any one of the partners can file a divorce petition such as one of the partners suffering from mental illness, leprosy or a communicable or lethal disease for two years before the filling of the petition of divorce or non observance of conjugal rights and their corresponding restitution for a period of two years.
Grounds for divorce under the Muslim Marriage Act, 1939
Under the Muslim Marriage Act of 1939, any woman married under the Muslim law can claim for a divorce if any one or more of the following grounds are fulfilled. Firstly, if the whereabouts of the husband are not known for a period of four years, secondly, the husband has not paid or neglected the payment of maintenance for a period of two years, thirdly, the husband has been convicted and sentenced for a term exceeding seven years, fourthly, the husband has failed to comply with his marital obligations for three years, fifthly, it is found that the husband was at the time of solemnization of marriage and continues to be impotent, sixthly, insanity or suffering from leprosy for a period of two years, seventhly, if it is found the husband is guilty of cruelty i.e. prevents his wife from exercising her legal rights or disposes off her property or does not respect her equally in cases where he has more than one wives or restrains her from following her religious practices or habitually assaults her etc., eighthly, if a girl has been married before fifteen years of age and has decided to renounce her marriage before attainment of eighteen years of age. In addition to all these grounds a necessary condition which exists with respect to this section is that the marriage should not have been consummated.
Grounds for divorce under the Parsi Marriage and Divorce Act, 1936
Section 32 of the Parsi Marriage and Divorce Act, 1936 lays down the grounds of divorce with respect to parties belonging to the Parsi community. Under this section, any married person can claim divorce against his or her partner if any one or more grounds stand to be fulfilled. The grounds for divorce under this section are first, that the marriage has not been consummated within one year of solemnization of marriage due to willful denial on the part of defendant to consummate it; secondly, at the time of marriage the defendant was of unsound mind and remains so till the date of filing of petition, provided that the plaintiff was not aware of this fact at the time of marriage and that the divorce petition has been filed within three years of marriage. Also this mental disorder should be of such a kind that it cannot be reasonably expected on the part of plaintiff to live with the defendant; thirdly, the wife is found to be pregnant by a man other than her husband provided that the husband was unaware of this fact at the time of marriage and on realisation has restrained himself from any sexual intercourse with his wife; fourthly, the defendant is guilty of cruelty, adultery, bigamy, rape or any unnatural offence; fifthly, the defendant has caused grievous hurt, infected the plaintiff with some venereal disease or the husband has compelled his wife to enter prostitution; sixthly, the defendant is convicted and undergoing a sentence of more than 7 years; seventhly, desertion; eighthly, the defendant has converted his religion and has ceased to be a Parsi.