In India, issues of family law such as marriage, divorce and adoption are governed by a myriad of both religious and secular laws. Marriage and Divorce are influenced by religion, and each religion has a separate set of divorce laws that will be applicable to its followers. Hence, the grounds or the possible reasons for divorce differ depending on the legislation or religion under which the marriage was solemnized.
The following are some of the reasons for divorce which are covered under the Hindu Marriage Act, 1956 (applying to any two Hindus, Buddhists, Jains or Sikhs), the Indian Divorce Act, 1869 (applying to Christians), the Parsi Marriage and Divorce Act, 1936 (applying to Parsis) and the Special Marriage Act, 1954(for secular marriages).
Adultery: Adultery is when either partner indulges in voluntary sexual intercourse with a person other than his/her spouse. It is a criminal offence, and is punishable with up to five years of imprisonment. Even a single act or instance of adultery is sufficient to file for divorce. Adultery is a ground for divorce under all the four abovementioned Acts. For Christians, mere adultery is not sufficient and some other matrimonial fault such as cruelty must be simultaneously proved.
Cruelty: Cruelty may involve physical cruelty, mental cruelty, words, gestures, accusations, or even silence. However, mere day-to-day quarrels are not sufficient and the cruelty much be such that the person applying for divorce finds it impossible to live with their spouse. Mental cruelty is usually taken through a series of events and not one single act. Making false allegations about the mental health, or illegitimate relations of the spouse can also amount to cruelty. Cruelty is a ground under Hindu law, Parsi law and the Special Marriage Act.
Desertion: Desertion is when one spouse abandons another for a period of two years. This means that the concerned spouse has completely given up all their duties in the marriage, without reason and while intending to desert the other or end their cohabitation. This means that if the spouse leaves in sudden anger or disgust temporarily, it is not desertion. Desertion must be permanent and without any justification.It is a ground for divorce under all the four abovementioned Acts, but for Christians, desertion must be coupled with adultery before divorce can be filed for.
Conversion: If one spouse formally, ceremonially converts to another religion, then the spouse who continues to be a of the same religion may file for divorce. Conversion is a ground for divorce under Hindu and Parsi law.
Mental Disorder: If one spouse is suffering from a mental disorder of some nature, or is of an unsound mind, then the other spouse may file for divorce. The mental disorder must be of such a kind that makes it very difficult for the spouse to live with them. It is a ground for divorce under Hindu law, Parsi law and the Special Marriage Act.
Leprosy/Venereal Disease: If one spouse is suffering from a virulent and incurable form of leprosy, or some sexually transmittable disease such as AIDS, the healthy spouse may file for divorce. Leprosy is a ground for divorce under all personal laws, but venereal disease is not available under Christian law.
Renunciation: If one spouse renounces all worldly affairs and enters some religious order which is recognizable under Hindu religion, then the other spouse may file for divorce. However,proper ceremonies should take place and the renunciation should include the renunciation of other civil rights and material possessions such as the right to inheritance, property, etc. Simply affirming to some faith is not enough. This is available only under Hindu law.
Presumption of Death: If a person is not heard of as being alive for seven years, then that person is presumed to be legally dead. In such a case, the spouse may file for divorce. It is available under all laws except Parsi law.
Non-resumption of cohabitation: If the court has passed a decree of separation or restitution of conjugal rights, and the couple has still not resumed living together or the conjugal rights have not been restored one year after the order, then this is a reason to file for divorce. This is only under Hindu law.
Seven Years Imprisonment: If the husband is imprisoned for a period of at least seven years, this is a ground for divorce under all personal laws except Hindu and Christian law.
Second Marriage: This applies only in the rare case when the couple were married before the enactment of the Hindu Marriage Act, in 1955. If after the Hindu Marriage Act came into being, the husband then married another person, the wife can file for divorce.
Unnatural Offences: If the husband has been found guilty of rape, bestiality or sodomy or other unnatural offences, then the wife may file for divorce. This available under all the four abovementioned personal laws.
Non-Resumption of Cohabitation: If the couple have not been living together, and the court has passed an order for the husband to pay maintenance to the wife then the wife may file for divorce in case they do not resume living together within one year. This is under Hindu law.
Minority: A female child may file for divorce if she is married before the age of fifteen, but renounces the marriage before she turns eighteen. This is under Hindu law.
Mutual Consent: It is possible to seek a divorce by mutual consent under all personal laws, if the husband and wife find themselves unable to live with each other and agree to a divorce.
Divorce under Muslim law is slightly different from the aforementioned Acts. Under Muslim law, a man may use talaaq to divorce his wife without any valid reason, even on a whim or in jest. Hence, according to traditional Muslim law a man may use words to divorce his wife without citing any reasons, and the law in India recognizes this.
The following are the ways and reasons for which a Muslim woman may file for divorce. The first two reasons arise out of customary law, while the latter four are listed under the Dissolution of Muslim Marriage Act, 1939.
- Talaaq-i-Tafweez: This is a circumstance where the husband may delegate the right of talaaq to his wife. This may be done unconditionally, where the wife need not cite any reason, or he may delegate the right to divorce him in case of happening of some event, such as the non-payment of maintenance.
- Lian: If the husband makes afalse allegation of adultery against his wife, she may divorce him.
- The husband’s whereabouts are unknown for a period of four years.
- The husband has not provided for his wife’s maintenance for at least two years.
- The husband has been sentenced to imprisonment for at least seven years.
- The husband has failed to perform marital, meaning conjugal, obligations for three years.
Author: This blog is written by Ms. Sweta Pochiraju, student of National Law University-Delhi, a passionate blogger & intern at Aapka Consultant.