Divorce Grounds: What Are Legal Grounds For Divorce In India?


Posted On : June 28, 2022
Divorce Grounds: What Are Legal Grounds For Divorce In India?
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Divorce is just one word but it affects numerous people in one go. Someone getting a divorce may still be in trauma of being in the wrong marriage, someone who shared the household might still be struggling to mend the broken ties, someone who closely witnessed the relationship falling apart may never believe in the institution of marriage. However, life still goes on for everyone and divorce is not the end of the world for anyone. People in a toxic marriage often assume they can end the marriage at their sweet will. They often do not know that there are some black letters of law which decide how a marriage is going to end. Since some laws apply over the fact that you can not marry anyone but as per law, the same laws apply for divorce as well.

 

There is no Uniform Civil Code in India. Those who do not understand the previous sentence may be aware that religion plays a big role in our country. The same religion governs how and whom people of a particular religion can marry. Climax of such marriage is also governed by the personal laws of people involved.

 


Marriage Laws in India

Name of Legislation

Applicable to

The Special Marriage Act, 1954

Couples married under the Act

The Hindu Marriage Act, 1955

Hindus

The Divorce Act, 1869

Christians

The Dissolution of Muslim Marriage Act, 1939

Muslims

Parsi Marriage and Divorce Act, I936

Parsis


Is One Sided Divorce Possible? What are Divorce Grounds?

There are two kinds of divorce in India. Since two parties are directly involved in a marriage, their agreement to separate is called mutual consent divorce. In such cases, the parties, i.e. husband and wife only need to expound before the court that they wish to end their marriage and then after a certain process, divorce is granted. There is not much need to prove the reasons for divorce before the court in detail. However, there is another tougher path to the already tough deal of divorce, i.e. contested divorce. It is opted for if one of them is willing to end the marriage while the other wishes to continue. In such cases, legal grounds for divorce in India have to be proved by the party willing to end the marriage. For example, divorce on grounds of adultery requires the spouse to prove before the court acts of adultery of the other beyond reasonable doubt. There are several divorce grounds based on the religious laws applicable to parties to a marriage as explained earlier. Laws in India are a bit complicated, especially when it comes to family laws. Thus, divorce lawyers should be contacted by the parties in case of any doubt. They will give a clear picture of how one should proceed with the matter to safeguard personal interests.



What are Valid Grounds for Divorce in India?

1.    Divorce on Grounds of Adultery in India

Marriage is another name of being loyal to your partner. Marriage gives exclusive rights to couples against each other, especially when it comes to physical relations. Although the apex court has struck down adultery as a criminal offence under the Indian Penal Code, 1860. However, the same act remains among divorce grounds of adultery in India. For Hindus[1], Christians[2] and Parsis[3], voluntary sexual intercourse with anyone other than the spouse is among divorce grounds. The provision applies to couples governed by grounds for divorce in India Special Marriage Act[4] as well. However, in case of Muslims[5], husband’s association with women of evil repute or leading an infamous life indirectly depicts divorce on grounds of adultery.


2.    Grounds for Divorce in India - Desertion

Marriage grants conjugal rights to a couple, i.e. right to be together. When one of the spouses wilfully abandons or leaves the company of another, lives separately and there is no cohabitation for a prolonged period, it may be termed as desertion in the matrimonial laws. Grounds for divorce under Hindu Marriage Act[6] as well as those for Christians[7], Parsis and the Special Marriage Act[8] include desertion. Under all the previously mentioned laws, deserting a spouse for 2 years makes it a ground for divorce in India. For Muslims, instead of direct use of the term ‘desertion’, neglect and lack of maintenance[9] for 2 years have been provided along with the non-compliance of marital obligations for 3 years[10].

 

In case of Bipin Chandra[11], the hon’ble Supreme Court of India clarified the requisites of desertion as “.....so far as the deserting spouse is concerned, two essential conditions must be there - (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi ). Similarly, two elements are essential so far as the deserted spouse is concerned - (1) the absence of consent, and (2) absence of conduct, giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid.”


3.    Imprisonment as Divorce Ground

Matrimonial rights allow husband and wife to stay together in each other’s company. However, imprisonment for being guilty of an offence eventually results in the spouse getting apart. If one spouse has been imprisoned for 7 or more years, the other spouse may apply divorce grounds for imprisonment and get legally free from the marriage. It has been included among grounds for divorce in India for Muslims[12], Parsis[13] and under SMA[14] as well. But the laws for Hindus or Christians do not per se provide imprisonment as a ground for divorce in India.

 

Although the law directly does not promote imprisonment as ground for divorce in Hindu law, courts through case laws include the same through desertion or cruelty grounds for divorce in India. In case of Ganesha vs Vijaya[15], the court held that “....wife cannot be made to suffer for no fault of hers as the husband had been convicted for life.”

 

4.    Cruelty - Grounds for Divorce in India

Cruelty is a ground for divorce in India for all the religious laws, i.e. for Hindus[16], Muslims[17], Christians[18], Parsis[19] and couples married under SMA[20]. However, there is no universal definition of what may constitute cruelty in a marriage. It may be physical as well as mental cruelty. Living with a spouse who makes you feel apprehended for your life or mental or physical health can never be an easy person to deal with. This fact lay the foundation for cruelty to be included among divorce grounds. It is hard proving mental cruelty by wife against the husband as compared to the other way around since laws in India are slightly tilted towards the women.

 

Dastane vs Dastane[21] is the classic unmissable case while discussing mental cruelty grounds for divorce in india. The apex court in this case held that “The inquiry has to be whether the conduct charges as cruelty is of such a character as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or injurious for him to live with the respondent....”

 

5.    Divorce Grounds of Unsound Mind

If the spouse is of unsound mind and the unsoundness or insanity is incurable through medical treatment making it impossible to stay in the company of such spouse, the other spouse can file a petition for divorce. For Hindus[22] and under SMA[23], the divorce ground of insanity is not time bound. However, in the case of Christians[24], Muslims[25] and Parsis[26], a petition for divorce over unsound mind or insanity has to be presented within 2 years.

 

In case of Rita Roy[27], the hon’ble Supreme Court clarified unsoundness of mind as a divorce ground through the words - “The party concerned must be of unsound mind or intermittently suffering from schizophrenia or mental disorder. At the same time that disease must be of such a kind and of such an extent that the other party cannot reasonably be expected to live with her.”

 

6.    Venereal Disease as Ground of Divorce

Sexually transmittable diseases (STD) are also termed as the venereal diseases, i.e. diseases that are communicable through sexual intercourse. Since the relationship between husband and wife is intimate, the risk of transferring STDs is eventually higher, risking the life of another spouse. Venereal disease in a communicable form is divorce ground for Hindus[28], Muslims[29], Christians[30], Parsis[31] and couples married under SMA[32].

In the case of P. Ravikumar[33], the Madras High Court explained the lack of special mention of ‘HIV’, i..e Human Immunodeficiency Virus in the divorce laws because when the concerned laws were framed, HIV was not so common.

 

7.    Divorce Grounds in India - Presumption of Death

If a person who is your spouse is not heard of to be alive for years by the kins and friends who would normally have heard from him/ her, there is no direction left for life. In such cases, the law sometimes allows the left out spouse to seek divorce so that they can start life afresh. For Hindus[34], Christians[35] and well as couples married under the SMA[36], if the spouse has not been heard alive for 7 or more years, the other spouse may use it as grounds for divorce in India. For Muslims[37], the whereabouts of the husband are unknown for 4 or more years, divorce can be obtained. While for Parsis, there is no such concept among divorce grounds.

 

8.    Divorce Ground - Marriage not Consummated

The relationship between a husband and wife is too intimate. Having a physical relationship is one of the various basic matrimonial rights of spouses against one another. If such a relationship has not been established by one spouse due to whatever reason, the other may seek divorce. In order to seek an answer to ‘Is impotence grounds for divorce in india?’, consummation of marriage is the key. In Parsis[38] and Christians[39], non-consummation of marriage is one of the legal grounds for divorce in India. However, for Hindus and under Special Marriage Act, non-consummation is one of the grounds for annulment of marriage being a voidable marriage. Among Muslim women, option of puberty can be enjoyed only if marriage has not been consummated between husband and wife. Impotence grounds for divorce in India is also applicable under Section 2 (v) of the Act. In case of doubts for personal cases of parties residing in Kolkata, divorce lawyer in Kolkata may be consulted.

 

In case of P L Shaju vs Anitha[40], the hon’ble court has explained what exactly constitutes consummation of marriage. The court held that “consummation' means the act of making marital relationship complete by having sex……the marital relationship would become complete by the first sexual intercourse itself i.e., consummation is confined to first intercourse only after the marriage.”

 

9.    Ceased to Follow Religion

Since the marital laws uphold religion, it plays a great role for parties to stay as a husband and wife. If a person has ceased to be a Hindu[41], Parsi[42] or Christian[43] and converted to another religion, the other spouse may call for application of divorce grounds for religious conversion. In case of Muslims[44], a wife who converts to another religion shall need a decree from court in this regard since conversion itself won’t result in dissolution of marriage. 

 

In case Suresh Babu vs Leela[45], after husband converted to Islam, the Hindu wife sought divorce on the ground of conversion. However, the husband claimed that such divorce can not be granted since his conversion to Islam was consented by the Hindu wife. The court held that divorce grounds of conversion are not affected by consent of the partner.

 

Grounds of Divorce Available to Wife Only

As per the Dissolution of Muslim Marriage Act, 1939, all the grounds provided are exclusive divorce grounds for wife since Muslim man does not need any justification for divorcing his wife. However, in some other religions, wives have been provided some additional grounds for divorce apart from those applicable to both husband and wife.

 

Special Marriage Act Divorce Grounds Exclusive to Wife

1.     Husband Guilty of Rape, Sodomy or Bestiality[46] - If the husband is guilty of rape, sodomy or bestiality, wife may seek divorce.

2.     Divorce Grounds of No Cohabitation - If orders regarding maintenance have been passed by an appropriate court under section 18 of the Hindu Adoptions and Maintenance Act, 1956 or section 125 of the Code of Criminal Procedure, 1973, and there is lack of cohabitation for a year, divorce can be sought by wife.

3.     No Intimacy - Grounds for Divorce India[47] - In the absence of resumption of cohabitation or restitution of conjugal rights for more than a year, divorce grounds apply.

 

Hindu Marriage Act - Ground for Divorce Available to Wife Only

1.      Bigamy[48] - If the husband marries another woman while the first wife is alive, a petition for divorce may be moved.

2.     Guilty of Rape, Sodomy or Bestiality[49] - If the husband is guilty of having sexual intercourse with a girl without her consent (rape), or unnatural sexual intercourse (sodomy), or sexual intercourse with an animal (bestiality), the wife may exclaim it under divorce grounds.

3.     Lack of Maintenance and Cohabitation[50] - If the husband and wife have not been cohabiting since past 1 year, and a decree or order has been passed under section 18 of the Hindu Adoptions and Maintenance Act, 1956 or section 125 of the Code of Criminal Procedure, 1973, divorce may be sought by the wife.

4.     Repudiated Child Marriage[51] - In case a girl gets married before the age of 15 years and seeks to end the marriage after attaining the age of 18 years.

 

Divorce Grounds for Christian Wife

1.     Divorce grounds may be invoked by wife if husband has been declared guilty of having sexual intercourse with a girl without her consent (rape), or unnatural sexual intercourse (sodomy), or sexual intercourse with an animal (bestiality) by court of appropriate jurisdiction.

 

Divorce Grounds Exclusive to Parsi Wife

As per Section 32 (e), if the husband forces his wife to submit herself to prostitution, such wife can invoke it as ground for divorce in India within 2 years of such act.

 

Can I Divorce Without Reason?

Yes, if you are a Muslim man who wishes to divorce his wife, you do not need to specify the reason for divorce. Muslim men are not even required to serve the legal notice for divorce to their wives since the Islamic laws do not require so. Pronunciation of ‘talaq’ is enough for dissolving the marriage on part of the husband. However, in all other cases, wherever it is a matter of contested divorce, the reason for divorce, specifically the grounds for divorce in India need to be satisfied. Even for mutual divorce, at least incompatibility as grounds for divorce in India need to be insisted in case any other reason is not agreed by the couple. The reason behind such a cause is that marriage is considered a sacrament in the eyes of laws in India. Courts restrict summing-up a marriage casually.


[1] Section 13 (1) (i) of the Hindu Marriage Act, 1955.

[2] Section 10 (1) (i) of the Indian Divorce Act, 1869.

[3] Section 32 (d) of the Parsi Marriage and Divorce Act, 1936.

[4] Section 27 (1) (a) of the Special Marriage Act, 1954.

[5] Section 2 (viii) (b) of Dissolution of Muslim Marriage act, 1954.

[6] Section 13 (1)(ia) of the Hindu Marriage Act, 1955.

[7] Section 10 (1)(ix) of Indian Divorce Act, 1869.

[8] Section 27 (1)(b) of the Special Marriage Act, 1954.

[9] Section 2 (ii) of Dissolution of Muslim Marriage act, 1954 - husband’s neglect or failure to provide for maintenance for a period of two years.

[10] Section 2 (iv) of Dissolution of Muslim Marriage Act,1954.

[11] Bipin Chander Jaisinghbhai Shah vs Prabhawati, (1957) AIR 176, (1956) SCR 838.

[12] Section 2 (iii) of the Dissolution of Muslim Marriage Act, 1939.

[13] Section 32 (f) of the Parsi Marriage and Divorce Act, 1936.

[14] Section 27 (c) of the Special Marriage Act, 1954.

[15] Ganesha v. Vijaya, MFA 11864/2011 (F.C.).

[16] Section 13 (1) (ia) of the Hindu Marriage Act, 1955.

[17] Section 2 (viii) of of the Dissolution of Muslim Marriage Act, 1939.

[18] Section 10 (x) of Indian Divorce Act, 1869.

[19] Section 32 (dd) of the Parsi Marriage and Divorce Act, I936.

[20] Section 27 (d) of the Special Marriage Act, 1954.

[21] N.G. Dastane v. S. Dastane, (1975)2 SCC 326.

[22] Section 13 (1) (iii) of the Hindu Marriage Act, 1955.

[23] Section 27 (e) of Special Marriage Act, 1954.

[24] Section 10 (iii) of Indian Divorce Act, 1869.

[25] Section 2 (vi) of the Dissolution of Muslim Marriage Act, 1939.

[26] Section 32 (b) of the Parsi Marriage and Divorce Act, I936.

[27] Smt. Rita Roy vs Sitesh Chandra Bhadra Roy, AIR 1982 Cal 138, 86 CWN 167.

[28] Section 13 (1)(v) of the Hindu Marriage Act, 1955.

[29] Section 2 (vi) of the Dissolution of Muslim Marriage Act, 1939.

[30] Section 10 (v) of the Indian Divorce Act, 1869.

[31] Section 32 (e) of Parsi Marriage and Divorce Act, I936.

[32] Section 27 (f) of Special Marriage Act, 1954.

[33] P.Ravikumar : vs Malarvizhi @ S.Kokila, CMSA. No. 40 of 2008 & M.P. No. 1 of 2010.

[34] Section 13 (1) (vii) of the Hindu Marriage Act, 1955.

[35] Section 10 (vi) of the Indian Divorce Act, 1869.

[36] Section 27 (h) of the Special Marriage Act, 1954.

[37] Section 2 (i) of the Dissolution of Muslim Marriage Act, 1939 - Whereabouts of husband not known for a period of 4 years.

[38] Section 32 (a) of Parsi Marriage and Divorce Act, 1936 - Non consummation of marriage within 1 year of solemnization.

[39] Section 10 (vii) of the Indian Divorce Act, 1869 - Wilful refusal to consummate the marriage.

[40] P. L. Shaju vs Anitha, Mat. Appeal. No. 108 of 2008 (A).

[41] Section 13 (1)(ii) of the Hindu Marriage Act, 1955.

[42] Section 32 (j) of Parsi Marriage and Divorce Act, 1936.

[43] Section 10 (1) (ii) of Indian Divorce Act, 1869.

[44] Section 4 of Dissolution of Muslim Marriage Act, 1939.

[45] Suresh Babu vs Leela, 2006 (3) KLT 891.

[46] Section 27 (1A) (i) of Special Marriage Act, 1954.

[47] Section 27 (2)(i) and (ii) of Special Marriage Act, 1954.

[48] Section 13 (2) (i) of the Hindu Marriage Act, 1955.

[49] Section 13 (2)(ii) of Hindu Marriage Act, 1955.

[50] Section 13 (2) (iii) of the Hindu Marriage Act, 1955.

[51] Section 13 (2) (iv) of the Hindu Marriage Act, 1955.

Written By:
Ridhi Khurana

Ridhi Khurana

Gurgaon

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