Marriage is an essential institution in Indian society and is often viewed as a scarcement and lifelong commitment between two individuals. Marriage ceremonies in India are a celebration of not just the union of two individuals but also of two families. And divorce is a subject that is often met with disapproval and stigma.
However, in some situations, the law recognizes that divorce may be necessary if the marriage cannot be saved. Divorce is a legal right and a necessary option for those who find themselves in an unhappy or untenable marriage. In this article, we will explore the various aspects of divorce in India, including the laws governing divorce for different communities and the court’s stance on the matter.
Divorce under various personal laws:
In India, several personal laws govern divorce proceedings for individuals belonging to different religions and communities. Divorce by mutual consent is available in almost all personal laws in India.
Here is a brief overview of divorce under various personal laws in India:
Hindu Marriage Act, 1955
This Act governs divorce for Hindus, Buddhists, Jains, and Sikhs. The sections that deal with divorce under this Act are:
Section 13: This section deals with the grounds for divorce.
Section 13A: This section deals with divorce by mutual consent.
Grounds for divorce under Hindu Marriage Act, 1955 are as follows:
Under the Hindu Marriage Act, 1955, there are several grounds on which a Hindu marriage can be dissolved. Here are some grounds for divorce under the Hindu Marriage Act:
- Adultery: If one spouse engages in voluntary sexual intercourse with another person outside the marriage, the other spouse can file for divorce.
- Cruelty: If one spouse treats the other with cruelty, either physically or mentally, to such an extent that it causes a reasonable apprehension that it will be harmful or injurious to live with the spouse, the other spouse can file for divorce.
- Desertion: If one spouse abandons the other for a continuous period of not less than two years immediately preceding the presentation of the divorce petition, the abandoned spouse can file for divorce.
- Conversion: If one spouse converts to another religion, the other spouse can file for divorce.
- Mental disorder: If one spouse has been suffering from a mental disorder to such an extent that it is impossible to live with that person, the other spouse can file for divorce.
- Virulent and incurable form of leprosy: If one spouse is suffering from a virulent and incurable form of leprosy, the other spouse can file for divorce.
- Venereal disease: If one spouse is suffering from a venereal disease in a communicable form, the other spouse can file for divorce.
- Renunciation: If one spouse renounces the world or embraces a religious order, the other spouse can file for divorce.
- Not heard of: If one spouse has not been heard of as being alive for a period of seven years or more, the other spouse can file for divorce.
- No resumption of cohabitation after a decree of judicial separation: If the spouses have been living separately for a period of one year or more after a decree of judicial separation has been passed and no resumption of cohabitation has taken place, either spouse can file for divorce.
- No resumption of cohabitation after a decree of restitution of conjugal rights: If the spouses have been living separately for a period of one year or more after a decree of restitution of conjugal rights has been passed and no resumption of cohabitation has taken place, either spouse can file for divorce.
- Any other ground: If there is any other valid ground for divorce under any law currently in force, either spouse can file for divorce.
Four specific grounds for a wife to seek divorce from her husband under Hindu Marriage Act, 1955:
- If the husband had already married another woman before the commencement of the Hindu Marriage Act and the other wife is still alive at the time the divorce petition is presented.
- If the husband has committed rape, sodomy, or bestiality since the marriage.
- If a court has awarded maintenance to the wife in a previous legal proceeding and the husband and wife have not resumed cohabitation for one year or more since the decree or order was passed.
- If the wife was married before she turned 15 years old and she rejected the marriage after turning 18 years old,
Muslim Personal Law (Shariat) Application Act, 1937:
This act governs divorce for Muslims. Section 2 of the act states that, “Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of personal law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula, and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments)”
- Divorce by husband,
- Divorce by mutual consent and
- Judicial divorce or divorce by the wife.
- According to this law, a Muslim man who has attained puberty and is of sound mind can divorce his wife at any time, without assigning any reason for doing so. This is known as talaq and can be either oral or written. Under Shia law, talaq must be pronounced orally in the presence of two competent witnesses, except in exceptional cases. There are two types of talaq: Talaq-i-sunna (in the approved form) and Talaq-ul-bidaat (unapproved form). The former has two forms, Ahsan and Hasan, while the latter involves three pronouncements made during one tuhr or a single pronouncement indicating an intention to divorce irrevocably.
- Muslim law also allows a husband to delegate the power of divorce to a third person or even the wife herself, known as talaq-i-tafweez. Additionally, contingent divorce is recognized, where a talaq may be pronounced to take effect on the happening of a future event. A pre or post-marriage agreement between the husband and wife is also valid if it provides that the wife would be at liberty to divorce herself in specified contingencies, as long as the conditions are reasonable and not opposed to public policy.
- Muslim law recognizes divorce under compulsion or in a state of voluntary intoxication, but in such cases, the intention to divorce irrevocably must be clearly expressed.
Muslim law also recognizes two forms of constructive divorce, ila, and zihar.
Ila is accomplished when a husband takes a vow of abstinence from sexual intercourse for at least four months, and once the vow is fulfilled, it results in divorce.
Zihar form, if the husband compares his wife to a woman within prohibited degrees, such as his mother, which allows the wife to seek judicial divorce unless the husband undergoes some form of reparation.
Divorce by mutual consent also has two forms, khula, and mubaraat.
Both require the common consent of the husband and wife and the exchange of some consideration (iwad) from the wife to the husband. The difference between the two forms is that in khula, the wife desires a separation, whereas, in mubaraat, the aversion is mutual and can come from either party. Once the offer is accepted, divorce is complete. The consideration can be in the form of money, movable or immovable property, but generally, it is the dower (mahr) or a portion of it that the wife agrees to give up.
The grounds for divorce under the Dissolution of Muslim Marriages Act are as follows:
- If the whereabouts of the person are not known for a period of four years. A suit should be filed on this ground and close relations of the person would be given notice. They have the right of being heard. If the person appears within this period, the decree will not be effective.
- Negligence in providing maintenance to the wife.
- Sentence of imprisonment for a period of seven years or more.
- Failure in performing marital obligations for a period of three years or more, without reasonable cause.
- Impotence at the time of marriage and its continuance till the filing of the suit.
- Insanity or leprosy or virulent venereal disease.
- If a female was married by a guardian when she was a minor (below 15 years) and she repudiated it before the consummation of marriage.
- Any other ground on which a wife may divorce her husband under Muslim law.
Cruelty includes both physical and mental cruelty, and the following acts on the part of the husband constitute cruelty:
- Husband’s association with women of evil reputation.
- Attempt to force the wife into leading an immoral life.
- Preventing the wife from disposing of her property, or disposing her property.
- Obstructing in the observance of religious practices.
- Unequal treatment to the wife in case the husband has more than one wife.
Lian or imprecation, i.e., a false charge of adultery was the only ground that Muslim law recognized based on which the wife could divorce the husband. This is available only in the case of a valid marriage.
Indian Divorce Act, 1869:
This Act governs divorce for Christians. The sections that deal with divorce under this Act are:
Section 10: This section deals with the grounds for divorce, which include adultery, cruelty, desertion, conversion to another religion, and incurable mental illness.
Section 10A: This section deals with divorce by mutual consent.
Grounds for Divorce under the Indian Divorce Act, 1869:
Any marriage, before or after the Indian Divorce (Amendment) Act, 2001, can be dissolved if one party presents a petition to the district court on the following grounds:
- Adultery by the other party
- The other party has ceased to be a Christian by converting to another religion
- The other party has been incurably unsound of mind for a continuous period of at least two years
- The other party has been suffering from venereal disease in a communicable form for a continuous period of at least two years
- The other party has not been seen or heard from for seven years or more
- The other party has refused to consummate the marriage
- The other party has failed to comply with a decree for the restitution of conjugal rights for a period of at least two years after the passing of the decree
- The other party has deserted the petitioner for at least two years immediately preceding the presentation of the petition
- The other party has treated the petitioner with such cruelty that it causes a reasonable apprehension in the mind of the petitioner that it would be harmful or injurious to live with the other party.
A wife can also present a petition for the dissolution of her marriage on the grounds that the husband has been guilty of rape, sodomy, or bestiality since the solemnization of the marriage.
Parsi Marriage and Divorce Act, 1936:
This Act governs divorce for Parsis. The sections that deal with divorce under this Act are:
Section 32: This section deals with the grounds for divorce.
Section 32A: This section deals with divorce by mutual consent.
Grounds for Divorce under Parsi Marriage and Divorce Act, 1936:
- Marriage has not been consummated within a year after its solemnization due to the wilful refusal of the defendant to consummate it.
- Defendant was of unsound mind at the time of marriage and has been habitually so up to the date of the suit.
- Defendant was pregnant by someone else at the time of marriage.
- Defendant has committed adultery, fornication, bigamy, rape, or an unnatural offence.
- Defendant has voluntarily caused grievous hurt to the plaintiff or infected the plaintiff with venereal disease or compelled the wife to submit herself to prostitution.
- Defendant is serving a sentence of imprisonment for seven years or more for an offence defined in the Indian Penal Code.
- Defendant has deserted the plaintiff for at least two years.
- An order has been passed against the defendant by a Magistrate awarding separate maintenance to the plaintiff, and the parties have not had marital intercourse for one year or more since such decree or order.
- Defendant has ceased to be a Parsi by converting to another religion.
Additionally, A suit for divorce may be filed by both parties to marriage together, subject to the provisions of the Act.
If there has been no resumption of cohabitation or restitution of conjugal rights between parties for a year or more after the passing of a decree, a party can sue for divorce.
No decree for divorce can be granted if the plaintiff has failed or neglected to comply with an order for maintenance passed against him/her
The Special Marriage Act, 1954
governs divorce for couples who have entered into a civil marriage, regardless of their religion or faith. The sections that deal with divorce under this Act are:
Section 27: Deals with grounds for Divorce
Section 27A: Alternative relief in divorce proceedings.
Section 28: Divorce by mutual consent.
Section 29: Restriction on petitions for divorce during the first year after marriage.
Section 30: Remarriage of divorced persons.
Grounds for Divorce under The Special Marriage Act, 1954:
Either the husband or the wife can file for divorce in district court on the following grounds:
- Adultery: If the respondent has had voluntary sexual intercourse with someone other than their spouse after the marriage.
- Desertion: If the respondent has left the petitioner for a continuous period of at least two years without reasonable cause and without the petitioner’s consent.
- Imprisonment: If the respondent is serving a sentence of seven years or more for an offence under the Indian Penal Code.
- Cruelty: If the respondent has treated the petitioner with cruelty since the marriage.
- Mental disorder: If the respondent has an incurable unsound mind or a mental disorder that makes it impossible for the petitioner to live with them.
- Venereal disease: If the respondent has been suffering from a communicable form of venereal disease.
- Presumed death: If the respondent has not been heard of for seven years or more by people who would have naturally heard of them if they were alive.
- No resumption of cohabitation: If there has been no resumption of cohabitation between the parties for at least one year after the passing of a decree for judicial separation in a proceeding to which they were parties.
- No restitution of conjugal rights: If there has been no restitution of conjugal rights between the parties for at least one year after the passing of a decree for restitution of conjugal rights.
A wife can also file for divorce on the grounds of:
- Rape, sodomy, or bestiality committed by the husband since the marriage.
- Maintenance: If a decree or order has been passed against the husband in a suit or proceeding awarding maintenance to the wife despite living apart, and since then, cohabitation has not been resumed for one year or more.
The Special Marriage Act of 1954 provides for the solemnization and registration of marriages between people of different religions. This act also governs divorce for couples married under its provisions. To obtain a divorce under the Special Marriage Act, one spouse must file a petition for divorce in court, citing grounds. The court will then hear both parties and decide on the matter.
Landmark Judgments on Divorce in India:
Over the years, there have been several landmark judgments that have had a significant impact on divorce laws in India. One such judgment is the Shah Bano case, which established the right of Muslim women to receive maintenance from their husbands after divorce. Another significant judgment is the Sarla Mudgal case, which held that a Hindu man cannot circumvent the Hindu Marriage Act by converting to Islam and marrying again without obtaining a divorce.
Mohd. Ahmed Khan v. Shah Bano Begum was a landmark case in India’s legal history. The case was related to the interpretation of the Muslim Personal Law regarding maintenance for divorced Muslim women.
In 1978, Shah Bano Begum, a Muslim woman from Madhya Pradesh, was divorced by her husband, Mohd. Ahmed Khan, after 43 years of marriage. Following the divorce, Shah Bano filed a petition in the court seeking maintenance from her husband under Section 125 of the Criminal Procedure Code (CrPC), which provides for the maintenance of wives, children, and parents.
The case went to the Supreme Court of India, where a bench of five judges gave its verdict in 1985. The Supreme Court ruled that the provisions of Section 125 of the CrPC apply to all Indian citizens, regardless of their religion, and that Shah Bano Begum was entitled to maintenance from her ex-husband. The court further held that the Muslim Personal Law could not override the provisions of a secular law like the CrPC.
The judgment was met with a lot of controversies and led to protests from conservative Muslim groups who felt that the court’s decision went against the principles of Islamic law. The Indian government, under pressure from these groups, passed the Muslim Women (Protection of Rights on Divorce) Act in 1986, which limited the amount of maintenance payable to divorced Muslim women.
The case remains significant as it highlights the conflict between personal laws and the Constitution of India, which guarantees equality before the law and prohibits discrimination on the grounds of religion, race, caste, sex, or place of birth. The case also brought attention to the issue of gender justice and the need to reform personal laws to ensure the rights of women are protected.
In this case, Sarla Mudgal and others had filed a Public Interest Litigation (PIL) in the Supreme Court of India, seeking a ban on the practice of bigamy by Hindus who convert to Islam to marry again without obtaining a divorce from their first wife. The petitioners argued that such a practice violated the principles of Hindu law, which recognize monogamy as the only valid form of marriage.
The Supreme Court, in its judgment in 1995, upheld the petitioners’ argument and declared that a Hindu man, who converts to Islam and marries again without obtaining a divorce from his first wife, commits an offense of bigamy under Section 494 of the Indian Penal Code. The court also held that such marriages would be void and could not be legally recognized.
The court further directed the central and state governments to take steps to prevent such conversions and marriages and to ensure that the offenders are punished under the law. The court emphasized that the freedom of religion guaranteed by the Constitution of India cannot be used as a cover to violate the principles of secularism and gender justice.
The general stand taken by Courts on Divorce:
The Indian courts have generally taken a sympathetic view toward the institution of marriage, and divorce is viewed as a last resort. However, the courts have also recognized that in some situations, divorce may be the only option for couples who are unable to reconcile their differences. The courts have also recognized that divorce can have a significant impact on the lives of those involved, particularly on children, and have sought to ensure that the rights of all parties are protected.
In divorce cases, the courts have to decide on various issues, including division of property, custody of children, and maintenance
The courts have also recognized that divorce can be a traumatic and emotional process, and have encouraged couples to seek mediation and counseling before taking the decision to divorce. In some cases, the courts have also ordered couples to attend counseling sessions before granting a divorce.
Overall, while the courts recognize that divorce can be a difficult and emotional process, they have also recognized that in some situations, divorce may be the best option for couples who are unable to resolve their differences. The courts have sought to ensure that the rights of all parties are protected and that the process of divorce is conducted in a fair and just manner.
In conclusion, divorce is a complex issue that involves legal, social, and personal factors. While it may be a difficult decision to make, divorce can provide individuals with the opportunity to move on from an unhappy marriage and create a better future for themselves. It is important to understand the laws and procedures governing divorce in India and to seek legal and emotional support when going through the process.
While divorce was once considered taboo in Indian society, it is now increasingly accepted as a legitimate option for couples who are unable to resolve their differences. The legal system has also made it easier for couples to obtain a divorce, with the simplification of divorce procedures.
However, despite these changes, divorce continues to be a complex and emotionally challenging process, especially for women who may face social stigma and economic hardships. The legal system has attempted to address these challenges by providing for maintenance and alimony for women, and by protecting their property and inheritance rights.
Overall, the divorce laws in India have come a long way, but there is still room for improvement. More reforms are needed to ensure that the legal system is able to provide a fair and equitable resolution to the complex issues that arise in divorce cases and that the rights of women are protected throughout the process.