Marriage in India is more than just a union it is considered a sacrament marriage as an institution requires mutual and complementary rights, duties and obligations between the two spouses and two families. Since the institution of marriage is considered holy, divorce is believed to be the last resort in case of extreme problems.
Divorce was earlier considered a western phenomenon and breaking up or separation in marriage in India was considered taboo. The days of Indian marriage lasting more than 25 years and couples compromising to make things work out is a thing of the past now.
Even though the divorce rate in India is still among the lowest in the world, in recent times more and more people are opting for divorce. Today extramarital affairs or physical relations outside marriage is the most common reason for divorce but there are many more grounds for divorce in India.
Table of Contents
Laws governing divorce procedure in India are:
- Indian Divorce Act, 1869 applicable to Christians
- Hindu Marriage Act, 1955 for Hindus, Jains, Sikhs and Buddhists
- Parsi Marriage and Divorce Act, 1936 for Parsis
- Dissolution of Muslim Marriage Act, 1939 for Muslims
Grounds for Divorce in India
Adultery is a voluntary sexual relation between a married person and a person who is not his/her spouse. A single act of adultery provides a valid reason to get a divorce. Until 2018 adultery was a criminal offence under section 497 of the Indian penal code. It was decriminalised on 27 September 2018. However, it still remains a ground for divorce.
The Hindu Marriage Act 1955 clearly considers adultery a valid ground for divorce. Although after the 1976 amendment a single instance of adultery was only a ground for judicial separation and not divorce.
Dissolution of Muslim Marriage Act 1939 does not separately state adultery as a ground for divorce. However, the section on cruelty can be inferred to recognize adultery as a ground for divorce. Parsi Marriage and Divorce Act, 1936 and Indian Divorce Act, 1869 acknowledge adultery as a ground for divorce.
As per the oxford dictionary, cruelty is a behaviour that causes physical or and mental harm to somebody and makes them suffer deliberately. Both physical and mental harm can be accounted as a valid ground for divorce certain conditions need to be fulfilled. Unlike physical cruelty, mental cruelty is difficult to prove.
Physical cruelty can include
- physical abuse or violence
- Showing agony rage or yelling and abusing
Mental cruelty includes
- False accusation of adultery
- Incessant demand for dowry by husband or in laws
- Complete lack of acknowledgement or affection for spouse
- False accusation of insanity or lunacy
Cruelty against woman can include
- Persistent denial of food
- Pervasive insistence on sexual conduct
- Locking out of house
- Denying access to children leading to mental torture
- Taunting demoralising putting down
- Physical torture
- Disallowing normal social intercourse
- Abusing children in front of mother
- Threatening divorce unless dowry given
Cruelty against man can include
- Misuse of dowry acts or domestic violence acts
- Desertion by wife or threatening a second marriage
- threat to commit sucide
- Abusing accusing or use of derogatory words
Desertion or Abandonment
Desertion or abandonment in this context means when one spouse leaves the matrimonial alliance deliberately without any valid reason. If however, a spouse is forced to leave a matrimonial home or alliance, then that cannot be labelled as dissertation or abandonment and thereby not qualify for a divorce.
Two essential components of desertion are
- Intention (to desert or abandon)
Desertion can be of two types
- Constructive- basically refers to deserting matrimonial relationships and may include forms of cruelty.
- Actual- abandoning of matrimonial home without justification.
NRI related desertion
Every year many NRIs come to India to marry local Indian girls who intend and aspire to migrate to a foreign country. However, the NRI scam is equally relevant. NRIs marry local girls, use them and then return to a foreign country leaving the wife with vague hopes. Sometimes these abandoned wives receive papers in the form of a foreign divorce decree.
India has been willing to make tougher laws to tackle these types of NRI divorce desertion. In 2011 the ministry of external affairs emerged with a scheme for providing legal and financial assistance to Indian women deserted by their overseas Indian or foreign husbands. This scheme applies to women who were deserted in India or overseas within 15 years of marriage.
Conversion is the voluntary changing of religion to a different one through a formal ceremony. Conversion can be regarded as a ground for divorce if the changing of religion is in any way affecting the nuptial love, care and behaviour towards the other spouse. But, if the conversion is only with the intention to get married and then later getting converting to the prior faith or belief system then that cannot be treated as being ground for divorce
Insanity can qualify as a ground for divorce depending on the severity of the mental illness. If the other spouse cannot reasonably live with him/her or if the mental illness is beyond healing then the other spouse can legally file a divorce petition. However, the decision rests with the court. In India insanity or mental illness as a ground for divorce is taken seriously. Often divorce or such grounds can be faulty or distorted. Another thing the court looks for in these cases is whether the spouse with mental illness is capable of managing a married life.
Renunciation is rejecting a typical belief system or faith completely, officially and formally. in Hindu law renunciation of the world is a valid ground for divorce however it has to be absolute. the person who has chosen to renunciate is considered civilly dead. To file divorce the spouse has to prove that their spouse has completely forsaken all matrimonial duties.
Apart from mental illness, the spouse of a person suffering from a virulent incurable form of disease or communicable disease can apply for divorce. As per section 13 (V) of the Hindu Marriage Act if a spouse suffers from a communicable disease it qualifies as a ground for divorce. Communicable diseases include syphilis, gonorrhoea. One could also include HIV. In 2013 Madras High Court granted a divorce on HIV naming it the same as venereal disease. Venereal disease is a disease contracted and transmitted through sexual conduct.
Presumption of Death
In India presumption of death is a ground for divorce. when a person is not seen or heard from in seven years or more he is presumed to be dead. The decision rests with the judges. such a death is also called absentia- death declared without any actual proof of that person’s death. However, the stated period of 7 years needs to be fulfilled. For example, 6 years and 350 days cannot be considered 7 years. The period needs to be completed to qualify for a divorce petition.
Is leprosy ground for divorce?
In a judgement by the supreme court of India in 2019 the personal laws amendment bill 2018 was passed removing leprosy as a ground for divorce from the five personal laws. Leprosy is now a curable disease against earlier notions of its incurability. it is also a step to eliminate bias against those with this disease who were earlier isolated and segregated from normal social interactions.
Difference between the presumption of death and desertion
In desertion, the spouse leaves the matrimonial alliance intentionally without any justification.
Under the presumption of death If the spouse assumed his or her, partner to be dead, remarries and after some time if the absent partner reappears, the second marriage will be considered invalid and the spouse may also be sued for bigamy unless if the 7 years has been completed and the divorce procedure has been concluded. In this case, the second marriage is valid.
Wife’s special grounds for divorce
- Rape, Bestiality, Sodomy- Rape, Bestiality, Sodomy by the husband gives the right to wife to file for divorce. Rape is also a criminal offence under section 375 of IPC. evidence must be provided to prove the commission of these offences either by a witness or admission by the perpetrator such as a plea of guilt. However, a mere conviction for these offences is not sufficient to obtain a decree for divorce.
- Decree or order of maintenance- if a decree or order of maintenance of wife under Hindu law has been passed against the husband then the wife is entitled to file for divorce provided that
- She is living separate
- Since the passing of the decree, the cohabitation between the spouses has not resumed for at least a year
- Rejection or repudiation of marriage- if a woman married before the age of 15 years rejects or repudiates the marriage between the age of 15-18 years then she can file a divorce petition. in this case, divorce should be filed only after the petitioner attains the age of 18.