Legal Grounds for Divorce in India

Legal Grounds for Divorce in India

LegalKart Editor
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Last Updated: Apr 10, 2024

Marriage has always regarded as a sacramental union between the husband and the wife, thus their marital ties cannot be severed. Later, the concept of divorce i.e. the dissolution of marriage by a competent court, this led to the enactment of the Hindu Marriage Act, 1955 in which particularly Section 13(1) and Sec. 13(2) deals with the various reasons the aggrieved spouse can approach the court and seek remedy of divorce.

Grounds of Divorce Under Hindu Law

Section 13(1) explains the grounds for which either husband or wife can approach the court, file the petition, and seek dissolution. First on the grounds of adultery wherein if one of the spouse engages in voluntary, consensual intercourse with another person whether married or not, given that the person is of the opposite sex. Second, on the grounds of cruelty here, if one spouse treats the other one with either physical or mental cruelty, including cases of false allegation, aggressive behavior, unreasonable demand of money, etc. In the landmark case of Mayadevi v. Jagdish Prasad, Supreme Court held that any kind of mental cruelty faced by either of the spouses not just the woman but men can apply for a divorce on grounds of cruelty.

Third, the ground of desertion states that if one of the spouse abandons the other without any reasonable justification then that is seen as a rejection of marital obligations by the spouse in the court's eyes. Here, there is a requirement to prove that the spouse deserted the aggrieved spouse for a period of two years immediately preceding the filing of petition. Fourth, the ground of insanity includes instances of spouses suffering from incurable mental disorder or such unsoundness of mind that the aggrieved spouse cannot be reasonably expected to live with the spouse. Here, the mental illness can be of continuous or intermittent. Other grounds could be the instances of renunciation from the worldly affairs, presumption of death i.e. no news of the whereabouts of the spouse for seven years by relatives and family.

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There has been a recent amendment regarding the ground of leprosy, the Personal Laws (Amendment) Bill, 2019 removed leprosy as a ground for divorce from the five personal laws- Hindu Marriage Act, Dissolution of Muslim Marriages Act, Divorce Act (for Christians), Special Marriage Act and the Hindu Adoptions and Maintenance Act. The notion that leprosy is an incurable disease has been proven wrong and thus it is now a curable disease. But, venereal diseases, also called sexually transmissible diseases are still a valid ground for divorce. 

Section 13(2) gives the wife special grounds to file a petition for divorce on bigamy, rape, etc done by the husband during their marriage. It can also be granted in the cases where the husband refuses to provide maintenance to the wife.

Grounds of Divorce Under Special Marriage Act

The Special Marriage Act, 1954, is an Act of the Indian Parliament created to give a special form of marriage to Indian citizens and Indian nationals in other nations, regardless of the religion or faith practised by either partner. Under Section 27 of the Special Marriage Act, 1954 the grounds for divorce are almost same as that mentioned in the Section 13 of the Hindu Marriage Act. One additional ground that can be seen is the clause regarding the cases wherein the respondent is undergoing a sentence imprisonment of seven or more years for an offence as mentioned in Indian Penal Code, 1860. Also, two separate provisions are mentioned especially for the wife which includes, first if the husband commits rape, sodomy or bestiality. Second, if there has been no success in resuming cohabitation for one year or more after the maintenance order has been passed as under Section 125 of the Criminal Procedure Code.

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Section 28 of the act states that the marital separation can be requested by the mutual consent of both the spouses by filing a petition in the District Court. However, the court usually does not allow the couple to file for divorce within the first year of their marriage, but in exceptional cases of hardships or depravity suffered by the petitioner then the court might allow some relaxations.

Legal Grounds for Divorce

Some universally applicable grounds for divorce can be stated in two kinds: divorce by mutual consent and second by non-mutual consent. To be precise the first kind of divorce is evident from Section 13B of the Hindu Marriage Act, 1955 and Section 28 of the Special Marriage Act, 1954 which states that the spouses need to be staying separately for at least one year to file for divorce by mutual consent. But, in Section 10 of the India Divorce Act which oversees the Christian marriages states that the duration must be that of two year rather than the one year as stated above. Depending on the court's judgment, a divorce by mutual consent might last anywhere from six to 18 months. In most cases, the courts seek to finish mutual consent divorces as quickly as possible.

The common legal grounds for divorce by non-mutual consent which are common in all current enactments on divorce law which are: adultery, desertion, insanity, conversion, renunciation, cruelty, venereal disease, presumption of death. The landmark case of Joseph Shine v. Union of India declared the Section 497 of IPC as unconstitutional, which made the adultery a punishable offence for the man who committed adultery with another man's wife without his consent. Thus, adultery is now a ground for divorce, however the 1976 amendment in the Hindu law made one single instance of adultery up for judicial separation and not divorce.

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In one of the special grounds available to women are the cases of child marriages wherein the wife who is below eighteen years but above fifteen years can file for dissolution of marriage on attainment of puberty. Thus, the court upholds the rights of child bride who may have been coerced into marriage.

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