MARRIAGES ARE MADE IN HEAVEN, AND SO IS DIVORCE!
A man and a woman’s bond or commitment is what we mean when we talk about marriage. Additionally, this bond is
strongly associated with harmony, love, tolerance, and support. In addition, starting a family signifies a new phase of
social advancement. Additionally, it is believed to be our society’s highest and most significant institution. In India, this
A seven-letter word indicates a bond that not only unites 2 people but two families. Whenever we think of Marriage, we
We think of long-lasting relationships, don’t we? But this experience of marriage can either be successful or unsuccessful.
The term that describes a broken and unsuccessful marriage is known as “divorce.”
The term “divorce” has no statutory definition, but it could be defined as the legal separation of judicial ties formed
during marriages. A divorce is also a seven-letter word that allows the married couple to separate at their own discretion
and with their own consent. As a result, divorce can be seen as a way to end a marriage that occurs not only between two
people but also between two families.
However, Hindu marriages did not allow for divorce until 1955. Traditional wisdom holds that marriage is not only
regarded as a relationship or bond that exists only in this world but also as one that endures beyond it. As a result, Hindu
society was so ingrained with the idea of staying together that divorce was stigmatized and viewed with prejudice in the
current world. However, the Hindu Marriage Act was considered in light of the shifting requirements of society, and in
the end, the Hindu Marriage Act also included provisions regarding divorce.
REASONS FOR DIVORCE IN INDIA
The rate of divorce has grown to a large extent in the past few years. There are many reasons for a married couple to end
their bond and leave this most important institution of society, Marriage.
A few of the reasons are:
Problems with In-laws
It becomes very difficult for a girl who leaves her home and comes to a new family and later finds out that her in-laws
are not cooperating, torturing her and making her life impossible to live. Instances are there as a result, the Indian Penal
Code also has a statutory provision relating to it such as Section 498A which states about the ‘husband or relative of the
husband of a woman subjecting her to cruelty’. At the same time, there are also many instances of forcing the wife to
bring money from her father’s home, and when she denies it or is unable to bring such huge financial amounts, the in-
laws torture her to death, for this, we also have penal provisions of Section 304B which provide for dowry deaths.
It should also be mentioned that there are many instances of the wrong use of Section 498A, thus in two such real cases
when there are actual torture and misuse of the law, divorce is bound to take place.
Adultery
Once trust has been broken, it can never be rebuilt. Therefore, when a cheating partner violates the faithful partner’s
trust, it cannot be regained, and divorce is inevitable. Having an extramarital affair or cheating can end a relationship that
was already in place between the two parties. In India, cheating on one’s spouse was even punishable by law.
Independence of Indian woman
In the past, for the sake of so-called “family respect and status in society,” women bowed their heads in front of
society without questioning the rules that were set for them. However, as urbanization, industrialization, and
modernization progressed, women began to acquire education and became more aware of their social context. Women
began earning their own money and became independent as a result of realizing the importance of standing up for
themselves. They began living happily and independently after raising their voices against the wrongs committed by their
husband and in-laws. As a result, the wives didn’t hesitate to stand up for themselves and divorce their abusive husbands.
As a result, divorce rates continued to rise for the same reason.
RELEVANT PROVISIONS RELATING TO DIVORCE IN INDIA
SECTION 10 OF THE HINDU MARRIAGE ACT,1955
Firstly, the word judicial separation means a legal process through which a married couple gets formally separated even
if they are legally married. Thus, this concept is also highlighted under Section 10 of the Hindu Marriage Act 1955.
Either party to the marriage regardless of the fact whether the marriage had been solemnized before or after the
commencement of this Act may present a petition praying for an order for judicial separation, on any grounds specified
under sub-section (1) of Section 13, and also on account of the wife additionally on any of the ground indicated in sub-
section (2) of these grounds, on which the request for separation had been made.
Similarly, Section 10(2) also states that when a decree of judicial separation had been passed it shall no longer be
It is obligatory for the concerned petitioner to stay with the respondent. However, the court also has the liberty that after
receiving the application from the petitioner of either party and being satisfied with the actual findings of the statements,
They may even dismiss or revoke the decree if they consider it just and reasonable to do so.
SECTION 5 OF THE HINDU MARRIAGE ACT,1955
Section 5 states the necessary conditions for a Hindu marriage. Thus, it could also be interpreted that if one of these
If one of these conditions is violated or not met, it may be grounds for divorce. These conditions are as follows:
None of the parties should have another living spouse during the time of marriage.
During the time of marriage none of the parties-
- Is capable of giving his/her valid consent to marriage as a result of unsoundness of mind.
- Even if he or she is capable of giving valid legal consent, the party had been suffering from mental illness of such
a nature and to such a limit that it is completely impossible for him/her to marry and to procreate a child. - He/she had been subjected to continuous attacks of insanity.
- The bridegroom should complete the age of 21 and the bride should complete the age of 18 at the time of
marriage. - The parties should not be inside the degrees of precluded relationship except if the custom or usage administering
every one of them licenses a marriage between the two; - The parties should not be ‘sapindas’ of one another, except if the custom or usage administering every one of
them grants a marriage between the two.
SECTION 13 OF THE HINDU MARRIAGE ACT,1955
Section 13 is the foundation section that clearly states the grounds of divorce. These grounds are adultery, cruelty,
Desertion, conversion, insanity, leprosy, venereal disease, renunciation, and presumption of death. Thus on these grounds
divorce is bound to take place between the two legally married couples. Section 13(A) also provides a divorce through
mutual consent where both the parties don’t want to continue a married life, thus mutually they accept the fact and
consents to have a divorce.
SECTION 14 OF THE HINDU MARRIAGE ACT,1955
Section 14 states that no petition of divorce could be filed within the first year of marriage. Thus, it could be interpreted
that one year is the time gap given by the law itself in order to solve, sort, understand and communicate problems with
each other. Thus, no court shall be competent to entertain a petition for divorce unless the time gap of one year had
elapsed. However, upon receiving an application in accordance with the rules made by the High Court, the Court may
allow the petition to be presented in case of one of exceptional hardship to the petitioner or of exceptional depravity on
the part of the respondent. But if it appears to the court upon hearing the petition that there is a misrepresentation of facts
or concealment of the nature of the case the court may as it deems fit may also dismiss the petition without any prejudice.
In discarding any application under this section for leave to present a request for divorce before the [expiration of one
year] from the date of the marriage, the court will have to respect the interests of any offspring from the marriage and to
the inquiry, whether there is a sensible likelihood of a compromise between the parties before the termination of the [said
one year].
SECTION 15 OF THE HINDU MARRIAGE ACT,1955
Section 15 highlights the point as to when a divorced person can marry again. It states that when a marriage had been
dissolved by the decree of divorce then there is no question of appeal against the decree. However, if there is a right to
appeal, there may be situations where the limitation period for appeal had expired without the appeal being presented or if
the appeal being considered or presented had been dismissed. Therefore, after completion of all these procedures, the
divorcee is free to marry again at their own will.
GROUNDS FOR DIVORCE IN INDIA
UNDER HINDU MARRIAGE ACT,1955
Adultery
The act of indulging in any kind of sexual relationship including intercourse outside marriage is termed adultery.
Adultery is counted as a criminal offense and substantial proof are required to establish it. An amendment to the law
in 1976 states that one single act of adultery is enough for the petitioner to get a divorce.
Cruelty
A spouse can file a divorce case when he/she is subjected to any kind of mental and physical injury that causes
danger to life, limb, and health. The intangible acts of cruelty through mental torture are not judged upon one single
act but a series of incidents. Certain instances like food being denied, continuous ill-treatment and abuses to acquire
dowry, perverse sexual acts etc are included under cruelty.
Desertion
If one of the spouses voluntarily abandons his/her partner for at least a period of two years, the abandoned spouse can
file a divorce case on the ground of desertion.
Conversion
In case either of the two converts himself/herself into another religion, the other spouse may file a divorce case based
on this ground.
Mental Disorder
Mental disorder can become a ground for filing a divorce if the spouse of the petitioner suffers from incurable mental
disorder and insanity and therefore cannot be expected from the couple to stay together.
Leprosy
In case of a ‘virulent and incurable’ form of leprosy, a petition can be filed by the other spouse based on this ground.
Venereal Disease
If one of the spouses is suffering from a serious disease that is easily communicable, a divorce can be filed by the
other spouse. Sexually transmitted diseases like AIDS are accounted to be venereal diseases.
Renunciation
A spouse is entitled to file for a divorce if the other renounces all worldly affairs by embracing a religious order.
Not Heard Alive
If a person is not seen or heard alive by those who are expected to be ‘naturally heard’ of the person for a continuous
period of seven years, the person is presumed to be dead. The other spouse should need to file a divorce if he/she is
interested in remarriage.
No Resumption of Co-habitation
It becomes a ground for divorce if the couple fails to resume their co-habitation after the court has passed a decree of
separation.
The following are the grounds for divorce in India on which a petition can be filed only by the wife.
If the husband has indulged in rape, bestiality, and sodomy.
If the marriage is solemnized before the Hindu Marriage Act and the husband has again married another woman
in spite of the first wife being alive, the first wife can seek a divorce.
A girl is entitled to file for a divorce if she was married before the age of fifteen and renounces the marriage
before she attains eighteen years of age.
If there is no cohabitation for one year and the husband neglects the judgment of maintenance awarded to the
wife by the court, the wife can contest a divorce.
UNDER THE DISSOLUTION OF THE MUSLIM MARRIAGE ACT,1939
Based on the Dissolution of Muslim Marriage Act, 1939, a Muslim woman can seek divorce on the following grounds
for divorce in India.
The husband’s whereabouts are unknown for a period of four years.
The husband has failed to provide maintenance to the wife for at least two years.
The husband has been imprisoned for seven or more years.
The husband is unable to meet the marital obligations.
If the girl is married before fifteen and decides to end the relationship before she turns eighteen.
The husband indulges in acts of cruelty.
DIVORCE UNDER THE INDIAN DIVORCE ACT,1869
The following are the grounds for divorce mentioned under the Indian Divorce Act, 1869.
Adultery
Conversion to another religion
One of the couples suffered from an unsound mind, leprosy, or communicable venereal disease for at least two
years before the filing of the divorce.
Not been seen or heard alive for a period of seven or more years.
Failure in observing the restitution of conjugal rights for at least two years.
Inflicting cruelty and giving rise to mental anxiety can be injurious to health and life.
The wife can file a divorce based on the grounds of rape, sodomy, and bestiality.
UNDER THE PARSI MARRIAGE AND DIVORCE ACT,1936 (Amendment 1988)
The following are the grounds for divorce in India included in the Parsi Marriage and Divorce Act, of 1936 and the
amendment of the same in 1988.
Continuous absence of seven years.
Non-consummation of marriage within one year.
3) Unsound mind provided the other spouse was unaware of the fact at the time of marriage and the divorce must be filed
within three years of marriage.
4) Pregnancy by some other man, provided the husband was unaware of the incident during the time of marriage and that
he must not have undergone sexual intercourse after he came to know about the situation. The divorce must be filed
within two years of marriage.
5) Adultery, bigamy, fornication, rape, or any other type of perverse sexual act.
6) Act of cruelty
7) Suffering from venereal disease or forcing the wife into prostitution.
8) Sentenced to prison for seven years or more
9) Desertion for two or more years
10) Non-resumption of cohabitation after passing an order of maintenance or a decree of judicial separation.
Types of Divorce Petitions
A Christian couple can get a divorce with mutual consent (no-fault divorce or mutual divorce), or either spouse may file
for divorce without the consent of the other (fault divorce) as per the Indian divorce act.
Divorce with Mutual Consent
When the couples agree to a divorce, the courts will consider a divorce with mutual consent as per. Section 10A of
Indian Divorce Act, of 1869, requires the couple to be separated for at least two years, the couple only needs to provide that
they have not been living as husband and wife during this period.
The couples should be separated for over a year
The couple should be able to prove that they have not been able to live together
Matters of children’s custody, maintenance, and property rights need to be agreed to mutually
Alimony or Maintenance Issues
There are three aspects regarding which the couples have to reach a consensus. One is alimony or maintenance issues. As
per divorce law, there is no minimum or maximum limit of support
Custody of the child
The second consideration will be the custody of the child. Child custody in the mutual consent divorce can also be shared
or joint or exclusive depending upon the understanding of the spouses.
Property Rights
The third is property. The couples must decide who gets which part of the property (both movable and immovable
property). Regarding the bank accounts, everything must be divided.
Duration of Divorce
The duration of divorce by mutual consent varies from six to 18 months, depending on the decision of the court.
Dissolution of Marriage (Divorce without Mutual Consent)
According to the Indian Diverse act, either the husband or wife can file the petition for dissolution of Marriage. The
conditions, when they can file the petition, are explained in detail below:
Petition by Husband
Any husband can present a petition to the District Court or the High Court, praying that his marriage needs to be
dissolved on the ground that his wife has been guilty of adultery since the solemnization of marriage. According to this
act, such marriage might be solemnized according to the Christian Marriage Act.
Petition by Wife
Any wife can present a petition to the District Court or the High Court for dissolution of marriage. The wife can file such
a petition under any of the following circumstances:
If her husband has exchanged his profession of Christianity for the profession of some other religion
If the husband went through a form of marriage with another woman
If her husband has been guilty of incestuous adultery since the solemnization of marriage
In the case of bigamy with adultery
In case of marriage with another woman with adultery
In case of rape, sodomy, or bestiality
In case of adultery coupled with such cruelty as without adultery would have entitled her to a divorce a mensa
et toro
In the case of adultery coupled with desertion, without reasonable excuse, for two years or more
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