Divorce is the process of separation through legal intervention. A decree of divorce that is granted by the family court or local district court allows for the separation of the parties as the marriage has been dissolved. Once the divorce is granted the parties are free to re-marry, if so they wish. Divorce in India is governed by personal laws and depend upon the religion of the parties. Hindus are governed by Hindu Marriage Act, 1955. Muslim women are governed by Dissolution of Muslim marriages. Christians are governed by Indian Divorce Act, 1869. For inter-caste and inter-religious marriages provisions of Special Marriages Act, 1954 is applied. Despite the personal law one might follow there are some grounds that are applicable universally. It’s important to understand divorce law in India. To allow for the petition of divorce to be executed smoothly, the law lays down two kinds of divorce.
Divorce by Mutual Consent
Divorce by mutual consent is granted when both the spouse mutual decide to separate. Section 13B of Hindu Marriage Act, 1955 and Section 28 of Special Marriages Act, 1954 states that spouses need to be staying separately for over a period of one year to be able to file for divorce by mutual consent. Section 10A of India Divorce Act, which governs Christian marriages in India state that the spouses have to be separated for a period of two years to file for divorce by mutual separation.
Divorce law in India – What are the Legal Rights in Marriage? What are the Grounds for Divorce?
Divorce by Non-Mutual Consent
A petition for divorce can be filed by either the husband or wife before the court. In case one of the parties wishes to separate they have to state the grounds and reasons for divorce. There are some grounds for divorce that are available to both parties. “The grounds on which men and women can seek divorce are almost identical. The procedure for Muslim women is slightly different but across the board the grounds for divorce are the same” says Advocate Parsis Sidhva who litigates with the women’s rights organisation Majlis. There are also special grounds that are available to only women. Following are the grounds of divorce that are available to both the parties:
Adultery is defined as the act of living with and having intimate relations with a person who is not the legally wedded spouse. Even a single act of adultery is sufficient for the affected spouse to file a decree for divorce. However, this category does not apply for Muslim women as limited polygamy, up to four wives is permitted in Muslim law. Hindu, Christian and Parsis can file for divorce under grounds of adultery.
If either the husband or wife subject each other to any form of cruelty it becomes a ground for divorce. The spouse that has been treated cruelly can file for divorce. Cruelty as a category for divorce includes both mental and physical cruelty. Physical cruelty includes any form of physical violence that they either of the spouse may be subjected to. mental cruelty can be any form of emotional or psychological abuse which becomes ground for divorce.
Christian women under the Indian Divorce Act, 1869 could not apply for divorce on grounds for cruelty, till 2001. Advocate Parsis Sidhva, litigator with women’s rights organisation Majlis adds that, “Cruelty and adultery together had to be together raised as a ground for divorce so due to that a lot of women could not apply for a divorce. Due to these technicalities a lot of women were deprived of divorce by the court or they simply could not apply for divorce because they did not fit in”. In 2001 the amendment to the India Divorce Act to allow Christian women to apply for divorce on grounds of cruelty.
If either the husband or wife has deserted the other for a period of at least two years and above, then it is considered to be desertion. Desertion in law is defined as any form of neglect that one partner may have subjected the other to without any reasonable or justified cause. The desertion could be physical desertion or emotional desertion where the spouse continues to stay in the same house but neglects the other spouse. Desertion is a ground for divorce.
Conversion & Renunciation of World
In case one of the spouse converts to another religion, the affected party can file for divorce. Furthermore, if the spouse renounces the world for religious, spiritual or any other reason, the affected spouse has the right to file for divorce.
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Unsoundness of Mind
If either of the spouse has exhibited unsoundness of mind after marriage then such unsoundness can be a ground for divorce. However, if such unsoundness of mind was brought to the notice of the spouse before marriage then it cannot be a ground for divorce. Unsoundness of mind is a broad category and is also governed by the Mental Health Act, 2015. This continues to be a ground for divorce.
If either the husband or wife has been missing for a period of seven years or above, they are presumed to be dead in the eyes of law. If the surviving spouse brings this to the notice of the local family or district court, it becomes a valid ground for divorce.
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Additional Grounds Available to Wife
There are some grounds that are specifically available to women under Hindu Marriage Act, 1955. These grounds are also available to women who practice other religions.
If the husband has re-married while his first marriage has not been dissolved, the wife from the first marriage can file for divorce on grounds of bigamy. This grounds applies to all women, except Muslim women, as limited polygamy is allowed in Muslim law. Along with being a ground for divorce bigamy is also a criminal offence under Indian Penal Code.
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Rape, Sodomy, Bestiality
If the husband subjects the wife to any form of unnatural or non-consensual sexual intercourse then the wife can file for divorce on grounds of rape, sodomy and bestiality. Rape, sodomy and bestiality continue to be crimes under the India Penal Code and along with being grounds for divorce that are available to the wife.
Option of Puberty
In cases of child marriage, if the wife is above fifteen years and under eighteen years, she can ask the court for dissolution of marriage on attainment of puberty. Courts allow child brides for exercise of this right to protect those who may have been coerced into marriage.
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Why It Matters?
To be able to access law and legal systems it is crucial to know your rights. Divorce laws in this country looks different for individuals depending on religion. Hence, as a partner in a marriage knowing your rights and the grounds on which one can claim divorce allows the parties to go ahead and approach a lawyer for legal advice.