Divorce in India is governed under personal laws of the specific religions. Each religion has its own personal laws governing divorce and different sets of rules and grounds for divorce.
Grounds for divorce in India
Grounds for Divorce under Hindu Marriage Act 1955.
- Desertion- for a period of at least 2 years
- Mental Disorder
- Venereal Disease
- Renunciation- A spouse can file divorce if the other spouse has renounced all worldly affairs
- Not Heard Alive- When the spouse is not heard alive form those persons who would naturally have heard of the person for a continuous period of 7 years, person is presumed dead.
- No resumption for co-habitation- if the couple doesn’t resume co-habitation even after the court has passed a decree of separation
Also read Annulment of Marriage.
Provided only to women-
- When husband has indulged in Rape, bestiality and sodomy.
- If the marriage is solemnized under HMA and husband married another women when wife was alive without the dissolution of the first marriage.
- A girl entitled to divorce if married off before the age of 15 and renounces marriage before turning 18.
- When there is no-cohabitation for a year and the husband neglects maintenance judgement awarded by the court.
Grounds for Divorce under the Dissolution of Muslim Marriage Act 1939 (for Muslim women)
- When whereabouts of husbands not known for period of at least 4 years.
- When husband fails to provide maintenance to wife for at least 2 years.
- When husband under imprisonment for 7 years or more.
- When husband is not able to meet marital obligations.
- When girl was married before 15 and decides to end the relationship before attaining the age of 18.
- When the Husband indulges in the acts of cruelty.
Grounds for divorce under the Indian Divorce Act, 1869. (Christians)
- Suffering from unsound mind, leprosy or venereal disease for at least 2 years before filing of divorce.
- Failure in restoring conjugal rights for at least 2 years
- Inflicting cruelty and giving rise to such mental anxiety that can be injurious to health and injurious.
- Wife can file divorce on the grounds of rape, sodomy and bestiality.
Grounds for divorce under Parsi Marriage and divorce Act, 1936
- Continuing absence for at least 7 years.
- Non-consummation of marriage within 2 years
- Unsound mind with proviso that unsoundness was not known by the spouse at the time of marriage and divorce not filed within 3 years of marriage.
- Pregnancy by another man, provided that the husband was not aware of this at the time of marriage and the husband has not engaged in sexual intercourse with the wife, post knowledge of such pregnancy.
- Adultery, bigamy, rape fornication or any other perverse sexual act.
- Suffering from venereal disease or forcing wife into prostitution
- Sentenced to 7 years or greater of prison.
- Desertion for not less than two years.
- Co-habitation has not resumed after an order of maintenance or decree of judicial separation was passed.
Grounds for divorce under the Special Marriage Act,1954 are
- Desertion for period of 2 years
- 7 or more years imprisonment under the Indian Penal Code, 1860
- Mental disorder
- Communicable disease
- Presumption of death
- Judicial separation
- Restitution of conjugal rights
Type of divorce petitions in India
There are two types of divorce petitions in India –
- Divorce with Mutual Consent
- Divorce Without Mutual Consent/ Contested divorce
Divorce with Mutual Consent
When both husband and wife seek to obtain divorce, it is known as divorce by mutual consent, it is a convenient and less time consuming process.
Divorce by mutual consent is taken under sec 13 b of HMA, sec 28 of Special Marriage Act and sec 10A for Indian Divorce Act.
Petitions for dissolution of marriage are to be presented before the court the grounds of which are:
- Living separately for more than one year
- Have not been able to live together
- Have mutually agreed dissolution of marriage
- Parties are given a cooling off phase of 6 to 8 months, however this requirement can be waived off.
- Before the decree is passed the court will enquire about the authenticity of petition filed
You may also read How To Apply For Divorce.
Muslims can get Divorce by mutual consent is in two ways –
Khula- Wife gives a consideration for getting divorce by mutual consent.
There are three conditions for khula divorce-
- Offer form wife
- Consideration provided by wife to the husband
- Acceptance of the offer by husband
Mubarat- Both spouses mutually decide to get divorce. It is Offered by one spouse and accepted by other, once accepted becomes irrevocable
The contested divorce petitions can be filed on the grounds mentioned under the different acts by either the husband or wife. The parties have to contest in the court to get divorce.
- Hindus, Buddhist, Sikhs and Jains Under the HMA, 1955
- Christians under the Indian Divorce Act, 1869
- Muslim men can take divorce anytime without even filing the petition but Muslim women can take divorce under the dissolution of Muslim marriage act 1939.
- Those who have married under the Special marriage act have to take divorce under the grounds mentioned in the act.
A spouse can send a legal notice to the other spouse for communicating the intention to start legal proceeding of divorce against the other spouse.
Some essentials of the divorce notice are-
- Basic information of the sender of the notice(Name, place of residence, description etc.)
- Details of the cause of Action
- The relief claimed by the sender
- The legal basis of the relief claimed.