Laws of divorce in different religions
Types of divorce under Hindu law
Under Hindu law, marriage is a sacrament. However, when disputes arise among the couple, they are left with no option other than divorce. Hence, the Hindu Marriage Act, 1955 not only provides provisions for marriage but also for divorce. This Act is also applicable on Buddhists, Sikhs and Jains. Section 13 of the Act deals with divorce. According to it, there are four types of divorces under the Hindu law:
Contested divorce- It is further divided into two parts:
when either party may take a divorce
when the wife can alone take a divorce
Irretrievable breakdown of marriage
Divorce by mutual consent
Divorce by custom
Section 13(1) of the Act lays down nine types of fault divorces, such as adultery, cruelty, insanity, diseases and others as mentioned below.
When either of the party can take divorce:
Adultery
The word ‘adultery’ means having sexual intercourse with a wife of another man, and such an act has been committed without the consent of her husband. As per this Secton, it does not amount to rape and it does not penalise a married man who has sexual intercourse with an unmarried woman or a widow. Therefore, the offence of adultery is committed against the husband of the wife and not against the wife. Adultery is a ground for divorce under Hindu law, although it is not a crime per se. In 2018, in the case of Joseph Shine v. Union of India (2018), the Supreme Court quashed adultery as a criminal offence under Section 497 of the Indian Penal Code, 1860. However, it is still a ground for divorce under the Hindu Marriage Act. Section 13(1)(i) provides for adultery, and on this basis, either the husband or the wife can seek a decree for divorce by presenting a petition to the court.
For example, X and Y are married. X, after some time of his marriage with Y, commits adultery with A. Therefore, if Y can seek a divorce by proving that X committed adultery with A.
In the case of V. Varadarajulu Naidu v. Baby Ammal (1963), the appellant, i.e., the husband provided strong evidence with respect to the adultery committed by his wife that she was having an illicit relationship and living with one of the villagers of the same village, where the couple was residing. The Madras High Court granted a decree for divorce and held that since the respondent was living with the villager, the appellant was entitled to the decree of divorce.
Desertion
It means abandoning one spouse by the other without any reasonable cause or without the spouse’s consent. It is a total repudiation of obligations of marriage and it is permanent in nature. Under Hindu law, Section 13(1)(ib) of the Act states about desertion that it is a ground for divorce for Hindus. According to it, if the spouse has deserted the petitioner i.e., the other spouse, for a continuous period of 2 years from the time the petition has been presented.
Essential elements of desertion:
Permanent abandonment – It means abandoning the wife (in some cases, husband) permanently and there is no scope of her returning to the husband’s home.
Previous cohabitation – It means that the husband and the wife must have cohabited together previously.
Without reasonable cause – It means that the husband or the wife without any proper reason abandoned his or her partner.
Without consent – Here consent means the consent of the spouse. Therefore, the husband or the wife has not taken the consent of his or her spouse before abandoning.
For example, A and B have been married for 2 years. One day, in a heated argument, A abandoned B by throwing her out of their home without B’s consent. B can seek divorce on the ground of desertion.
In the case of Bipin Chander Jaisinghbhai Shah v. Prabhavati (1957), it was laid down by the Supreme Court that if the wife leaves her matrimonial home with an intention of deserting her husband and if she later on shows an intention to return, she will not be held guilty of desertion. The Court further laid down that to constitute desertion, it is important to prove that the deserting spouse continued with the intention of desertion throughout the statutory period.
Cruelty
Under the Act, Section 13(1)(ia) deals with cruelty, and it states that there is no precise definition of cruelty. The acts or conducts that constitute cruelty can be so varied and of different kinds that it is impossible to define cruelty. However, various courts have held that cruelty constitutes both physical and mental cruelty. Physical cruelty refers to the act of violence by the spouse, and mental cruelty refers to any act done by a spouse that distresses the other spouse emotionally. Mental cruelty is quite difficult to define; however, it can be said to comprise verbal harassment or emotional abuse.
For example, X and Y have been married for over 3 years. For some time, Y has been harassing X emotionally by abusing him regarding his job, family and related things. This forms cruelty and on this ground, X can seek divorce. The same was observed by the Delhi High Court in the case of Deepti Bhardwaj v. Rajeev Bhardwaj (2022), where the appellant wife had used derogatory and humiliating remarks against her husband (respondent) and her in-laws.
In the case of Mayadevi v. Jagdish Prasad (2007), it was held by the Supreme Court that either of the spouses, be it a husband or wife, can file for cruelty as a ground for divorce for any mental cruelty suffered by them.
Conversion
Section 13(1)(ii) of the Act provides for conversion. If any of the spouses gets converted to another religion and ceases to be a Hindu, amounts to conversion. In this case, the aggrieved spouse can seek a decree from the court to dissolve the marriage.
For example, A and B are married as per the Hindu Marriage Act, 1955. Now, A gets converted to Islam and marries another woman. Thereafter, B can file for divorce on account of this conversion. [Suresh Babu v. Leela (2006)]
Unsound mind or insanity
In case one of the spouses is of unsound mind which makes it impossible for the other spouse to continue living with their spouse, he or she can file for divorce on the ground of unsoundness of mind or insanity of the spouse. Under Hindu law, Section 13 (1)(iii) of the Act deals with this provision. For the ground of insanity, the spouse must be suffering from incurable unsoundness of mind, either continuously or intermittently, from a mental disorder of such a kind or to such an extent which makes it impossible to live with each other. The Section further defines the meaning of “mental disorder” and “psychopathic disorder”. Here, mental disorder means mental illness, incomplete development of the mind or any psychopathic disorder. The meaning of psychopathic disorder is that it is a disorder or disability of the mind that is persistent in nature.
For example, X and Y are married for a month and now X shows symptoms of insanity such as throwing things at her husband without any reasonable cause or abusing him constantly, which makes it impossible for Y to continue living with X. Therefore, X can seek divorce for these reasons.
The Supreme Court in the case of Ram Narain Gupta v. Rameshwari Gupta (1989), held that in the condition of schizophrenia, the petitioner must not only prove the mental disorder but also establish that because of such disorder, it is reasonably not possible for the other spouse to live with his or her spouse suffering from such mental disorder.
Leprosy
The Marriage Laws (Amendment) Act, 1976 has made leprosy a ground for both judicial separation and divorce. Section 13(1)(iv) of the Act states about leprosy as a ground for divorce. The duration of leprosy is, however, not specified in the Act. For the ground of leprosy, it is on the petitioner to prove that the respondent is suffering from an incurable form of leprosy. There are two main conditions for this:
Leprosy must be virulent, and
Leprosy must be incurable.
However, in 2019, a Bill was passed by the Parliament i.e., the Personal Laws (Amendment) Act, 2019 which removed leprosy as a ground for divorce from the five personal laws which includes the Hindu Marriage Act, 1955 as well.
Venereal disease
Venereal disease is a communicable disease that is transmitted through sexual intercourse with the infected person. The other term for venereal disease is Sexually Transmitted Disease, popularly known as STD. Under the Hindu Marriage Act, if any of the spouses is suffering from a venereal disease in a communicable form, such a spouse can seek a decree from the court to dissolve their marriage. Section 13(1)(v) states that “venereal disease in a communicable form” is a ground for divorce.
The Madras High Court in the case of P. Ravikumar: v. Malarvizhi @ S. Kokila (2013) held that when a spouse is suffering from a sexually transmitted disease, the other spouse is entitled to get a divorce.
Renunciation
Renouncing the world by entering any religious path is one of the grounds for divorce under the Act. The Act, under Section 13(1)(vi) recognises renunciation as a valid ground. Therefore, if either of the spouses renounces the world and steps into a religious path without the consent of the other spouse, then the other spouse can seek a decree for divorce.
To constitute it a ground for divorce, two conditions must be fulfilled:
Therefore, if a person renounces the world by not taking any worldly affairs or retires to a single room or does not take interest in cohabitation or he has taken a vow of celibacy or has taken a vow not to speak or talk, however, did not join any holy order. In such a case, it will not be considered that he has renounced the world because the second condition, which states that he must enter into some religious order, has not been fulfilled.
Therefore, if a person who has become a ‘chela’ does not mean that he has joined a religious order. This was held in the case of Govind Dass v. Kuldeep Singh (1971).
Presumption of death
If a person goes missing for a particular period of time and is not heard or seen as being alive, it is presumed that he or she is dead. The Act recognises the concept of presumption of death as a ground for divorce under Section 13(1)(vi). According to it, if either of the spouses has not been heard of being alive for 7 years or more by those who would have heard of him/her naturally, then the other spouse can seek divorce. Here, the spouse seeking divorce must prove that the other spouse has not been heard of being alive for the said time period.
In the case of Nirmoo v. Nikka Ram (1968), it was held by the Delhi High Court that when a person presumes that his or her spouse is dead and marries another person without a divorce, the person (presumed to be dead) can challenge the marriage after his or her return.
B. Grounds available to the wife for divorce:
On the following grounds, only the wife can file for divorce under Section 13(2) of the Act:
Bigamy
Bigamy means marrying another person, during the lifetime of the husband or wife. Therefore, if a husband already has an alive wife who is not divorced and if he marries another woman, he will be held guilty of bigamy. Under Hindu law, Section 13(2)(i) recognises the grounds for divorce.
Rape, sodomy, and bestiality
Rape is an act of forceful sexual intercourse by a man with any woman, without the consent of that woman. The exact meaning of rape as an offence is defined under Section 375 of the Indian Penal Code, 1860. Sodomy means unnatural sexual intercourse done by a person. Bestiality means sexual intercourse between a human and an animal.
If a husband commits rape, sodomy or bestiality, then a wife can file for divorce if their marriage is duly solemnized as per the Hindu Marriage Act, 1955. Section 13(2)(ii) recognises it.
Therefore, if a husband commits any of the above mentioned acts, then a divorce can be sought by the wife.
Non-resumption of cohabitation
If non-resumption of cohabitation between the spouses for one year or more since the decree or order for maintenance to the wife by the husband has been passed in a suit under Section 18 of the Hindu Adoptions and Maintenance Act, 1956 or under Section 125 of the Code of Criminal Procedure, 1973 (CrPC) or under the corresponding Section 488 of the CrPC, 1898, then the wife can seek divorce under Section 13(2)(iii) of the Act. even if the wife was living apart.
Solemnisation of marriage before attaining 15 years of age
Under Section 13(2)(iv) of the Act, if the wife’s marriage is solemnised before she attained the age of 15 years and she has repudiated the marriage before 18 years of age then she can seek for divorce. However, the consummation of marriage is an irrelevant factor. This clause is applicable to marriages that were solemnised before or after the Marriage Laws (Amendment) Act, 1976 was commenced.
Irretrievable breakdown of marriage
An irretrievable breakdown of marriage is a notion wherein the husband and the wife cannot stay together as a couple because their marriage has broken down to such an extent that it becomes impossible for them to stay husband and wife. However, there is no precise law dealing with this, and under the Hindu Marriage Act, 1955, the dissolution of marriage is recognised. Recently, the Supreme Court has allowed divorce on the irretrievable breakdown of marriage. This has been discussed in detail in the later part of the article.
The most common form of divorce, mutual divorce, is the kind of divorce preferred by the parties because of its lesser procedures and speedy remedy. In a mutual divorce, the parties mutually seek a decree for divorce from the court. Under Hindu law, Section 13B of the Act states about divorce by mutual consent. Based on the following grounds, a divorce shall be granted:
The parties must be living separately for a period of one year or more.
They have not been able to live together.
They have agreed mutually to dissolve the marriage.
A waiting period of 6 months to 18 months is provided under the Section so as to give the parties time for a chance of reconciliation, if possible.
Divorce by custom means dissolution of marriage by customary law or practice. Generally, under the Hindu Marriage Act, 1955 a marriage dissolved by custom is not recognized, however, Section 29(2) of the Act states an exception. Section 29(2) of the Act states the Act shall not affect the rights which are recognized by any custom or by any special enactment required for the dissolution of a Hindu marriage, irrespective of the fact that it was solemnised before or after the commencement of the Act.
In a recent judgement, the Chhattisgarh High Court held that a marriage can be dissolved by the customary law under Section 29(2) of the Act, only if it does not violate public policy. [Duleswar Prasad Deshmukh v. Kirtilata Deshmukh (2022)].
Types of divorce in Arya Samaj
The process for divorce in the Arya Samaj community is the same as the Hindu divorce process in accordance with the Hindu Marriage Act, 1955. The couples can either file for mutual consent or non-mutual consent, i.e., contest divorce.
Mutual consent
Under Section 13B of the Hindu Marriage Act, 1955, the couple can file for mutual divorce on the following grounds-
They have been living separately for 1 year or more;
They are unable to live together; and
They have mutually decided to dissolve the marriage.
Without mutual divorce
On the following grounds, divorce can be sought:
If either of the parties to a marriage, commits adultery with someone after the marriage is solemnised;
If either of the parties is treated with cruelty;
The defendant has deserted the plaintiff constantly for a period of 2 years immediately preceding the filing of the suit;
The defendant has ceased to be a Hindu by converting to another religion – any of the spouses gets converted to another religion and ceases to be a Christian, which amounts to conversion. In this case, the aggrieved spouse can seek a decree from the court to dissolve the marriage.
The defendant has been of unsound mind incurably or has been suffering constantly or intermittently from a mental disorder of such a kind to such an extent that the plaintiff cannot be expected to live with the defendant;
The defendant has been suffering from a virulent and incurable form of leprosy;
The defendant has been suffering from venereal disease which is in a communicable form;
The defendant has renounced the world with their entering into any religious order;
The defendant has not been heard of being alive for a term of 7 years or more if the defendant is alive.
Types of divorce under Muslim law
Divorce is known as ‘talaq’ in Mohammedan law. Unlike Hindu law, a marriage is a contract in Muslim law and is governed by their personal laws. Muslims can either take the divorce themselves or by the verdict of the court. There are four forms of divorce:
Divorce by the husband
A husband can get a divorce in three ways:
Talaq-ul-Sunnat – this is a revocable form of divorce because once the divorce is taken, it can be revoked. It is further divided into two parts:
Ahasan– this is the most popular form of divorce under Muslim law. In this type of divorce, the divorce can be revoked before the expiration of the iddat period and the word talaq is uttered only once. Iddat is a period which a Muslim woman has to observe after the dissolution of marriage. In case of divorce, the iddat period is of 3 months from the date on which her husband gave her talaq.
Hasan– It is also a revocable form of divorce. However, in this, the word talaq is uttered three times in successive tuhr.
Talaq-ul-Biddat – this is also known as Talaq-ul-Bain. This is a non-revocable form of divorce where the word talaq is uttered three times and it is not possible to revoke the divorce. This is mostly recognised by the Sunni Muslims and not the Shia. However, in the landmark judgement of 2017, the 5 Judge bench of the Supreme Court held talaq-ul-biddat as unconstitutional in the case of Shayara Bano v. Union of India (2017). This case is popularly known as the Triple Talaq case.
Ila – in the case of ila, the husband takes an oath not to have sexual intercourse with his wife. After the oath, the marriage is not consummated for 4 months and after the expiry of 4 months, the marriage is dissolved irrevocably. However, if within the said 4 months time period, the husband resumes the consummation then the said ila is cancelled and the marriage continues.
Zihar– in zihar, the husband compares his wife to prohibited relationships such as of a biological mother or biological sister and thereafter he cannot cohabit with his wife for a period of 4 months. After the expiry of 4 months, the zihar is completed and the wife can either seek a decree for divorce or of restitution of conjugal rights.
If the husband wants to revoke zihar by restarting the cohabitation, the wife cannot seek judicial divorce. It can be revoked only if the following conditions are fulfilled by the husband:
Divorce by the wife
A wife can take divorce in two forms:
Khula – Khula is a kind of divorce in which the wife gives consent for the divorce and provides certain consideration to the husband for her release from the marriage. This kind of divorce is based on the following conditions:
The wife must have given the offer to the husband
The husband has accepted the offer
The wife must give certain consideration to the husband
However, the same can be revoked by the wife before the acceptance of the offer by the husband or revocable before the husband accepts it.
Talaq-e-Tafweez – This is a different kind of divorce where the husband delegates his power of divorce to his wife or any other person. The power so delegated can either be absolute or conditional and temporary or permanent. The permanent delegation is revocable but not in the case of temporary.
This form of divorce is also known as mubarat. It is a type of divorce that leads to the dissolution of the contract of marriage. The marriage is dissolved mutually and the offer can be from either of the spouses. If the offer is accepted then the divorce becomes irrevocable and the iddat becomes mandatory to be observed.
As per the Dissolution of Muslim Marriages Act, 1939, a court dissolves a marriage. Section 2 of the Act provides several grounds for a decree for the dissolution of marriage. As per this Section, a married woman shall be entitled to obtain a decree for dissolution of marriage on one or more of the following grounds:
the husband’s whereabouts have not been known for four years;
The wife did not get the maintenance for two years as her husband neglected or failed to provide it;
The husband has been sent to prison for a term of 7 years or more;
Failure on the part of the husband to perform the marital obligations for 3 years without reasonable cause;
The husband has been impotent since the time of marriage;
The husband has been insane for 2 years; or
The husband is suffering from a virulent venereal disease;
The wife was given in marriage before she attained the age of 15 by her father or other guardian, and she repudiated the marriage before she turned 18 years of age. In this case, the marriage must not be consummated;
The husband treats the wife with cruelty, such as
assaults her; or
associate with women of evil repute, who speak or thinks evil; or
forces her to live an immoral life; or
disposes of her property or prevents her from exercising her legal rights; or
obstructs her from practising her religious profession or practice; or
In case he has more wives than one, does not treat her equitably as per the injunctions of the Quran; or
On any other ground which is valid for dissolution of marriage.
However, the following conditions must be satisfied:
A decree has not been passed with respect to the ground, where the husband has been sentenced to imprisonment for 7 years or more, unless and until the sentence becomes final;
A decree that is passed on the ground that the husband’s whereabouts are not known for 4 years shall be in effect for 6 months from the date of such decree. If the husband appears either in person or through an agent within such time period, then the court can set aside the decree if the court is satisfied that the husband is prepared to perform the marital duties;
The court, before passing a decree on the ground that the husband is impotent, then he may file an application to satisfy the court within 1 year that he has ceased to be impotent. If the court is satisfied, then the decree shall not be passed on such grounds.
In the case of Tufail Ahmand v. Jamila Khatun (1962), the Allahabad High Court held that the Dissolution of Muslim Marriages Act, 1939 does not mention that the false imputation of unchastity or false charge of adultery against the wife can be a ground for divorce. However, the Court stated that, this could be called an “omnibus ground” as provided in Clause (ix) of Section 2 of the Act.
Types of divorce under Christian law
The law of divorce for Christians in India is governed by the Indian Divorce (Amendment) Act of 2001. This Act amended the Divorce Act of 1869. The divorce can be taken either mutually or without mutual consent by the parties. Under the said Act, Section 10 and 10A governs the provisions for divorce.
Without mutual consent
Section 10 of the Divorce Act, 1869 states the grounds for the dissolution of marriage. The marriage shall be dissolved by filing a petition in the District Court, either by the husband or the wife on the ground that after the marriage was solemnised, the respondent-
Committed adultery; or
Ceased to be Christian by converting to another religion; or
Has been of unsound mind incurably constantly for a minimum period of 2 years immediately preceding the presentation of the petition; or
Has been suffering from venereal disease in a communicable form for a minimum period of 2 years immediately preceding the presentation of the petition; or
Has not been heard of being alive for a term of 7 years or more by those persons who would have naturally heard of the respondent if they are alive; or
Wilfully refused to have marital intercourse and therefore, the marriage has not been consummated; or
Failed to comply with a decree that is passed for restitution of conjugal rights for a term of 2 years or more after the decree has been passed against the respondent; or
Deserted the petitioner for a minimum of 2 years immediately preceding the presentation of the petition; or
Treated the petitioner with such cruelty that the petitioner felt harm or injurious for them to live with the respondent.
A petition for dissolution of marriage can also be presented by a wife on the ground that her husband is guilty of rape, sodomy or bestiality after the marriage has been solemnized.
In the case of Ammini E.J. v. Union of India (1995), the Kerala High Court observed that in case of adultery, the husband is in a favourable position as compared to the wife because in cases of adultery, the wife has to prove it with one or other aggravating conditions.
In the case of Sudhira Minj v. Amit Anuj Minuj (2018), the Jharkhand High Court held that merely going to the police station with an allegation of mental and physical torture by the husband does not amount to cruelty, which shall allow the wife to seek divorce on that ground as the wife could not provide corroborative evidence which would prove that living with her spouse was harmful or injurious for her. This is an essential element as specified under Section 10(x) of the Divorce Act, 1869. The Court observed that “cruelty in marriage is something beyond the normal wear and tear of daily life. It must be of such a nature which creates unreasonable apprehension in the minds of the aggrieved spouse that it would be harmful or injurious for him/her to live with his/her spouse.”
Mutual consent
The couple can seek divorce mutually by filing a petition together in the District Court on the following grounds under Section 10:
That they are living separately for a period of 2 years or more;
That they are unable to live together;
That they have mutually agreed to dissolve the marriage.
Types of divorce under the Parsi law
Parsi is the smallest religious community in India with a declining population. They follow the Zoroastrian religion and are primarily based in Mumbai For the Parsis in India, divorce is governed by the Parsi Marriage and Divorce Act, 1936. This Act was enacted by the British government and Section 32 to Section 32-B of Chapter IV governs the divorce provisions.
Without mutual consent
Section 32 of the Parsi Marriage and Divorce Act, 1936 states the grounds for divorce among the Parsi community in India. According to it, any married person can sue on one or more of the followings grounds:
If the marriage has not been consummated within a year after its solemnization because of the refusal by the person who is being sued i.e., the defendant;
At the time of marriage, if the defendant was of unsound mind and remains the same till the date of the suit. For getting a divorce on this ground, the following conditions must be satisfied:
The person who is filing for the divorce i.e., the plaintiff must be ignorant of the fact at the time of the marriage
The plaintiff must have filed the suit within 3 years of marriage
The defendant must be unsound incurably for a period of 2 years or more immediately preceding the filing of the suit or;
The defendant must be suffering from a mental disorder either constantly or intermittently and to such an extent that the plaintiff cannot live with the defendant. Section 32(bb) further elaborates on the definition of mental disorder and psychopathic disorder under Section 32(bb)(a) and (b). This ground is similar to Section 13(1)(iii) of the Hindu Marriage Act, 1955 which also states about mental disorder as a ground for divorce.
The defendant was pregnant by someone else other than the plaintiff at the time of their marriage. The divorce under this ground shall not be granted unless the following conditions are satisfied:
At the time of marriage, the plaintiff did not know this fact;
The suit for divorce must be filed within 2 years of the date of marriage;
Consummation did not take place after the plaintiff came to know the fact.
The defendant committed adultery or fornication or bigamy or rape or unnatural offence. However, the suit for divorce must be filed within 2 years after the plaintiff came to know the truth.
The plaintiff has been treated with cruelty or has behaved in such a manner as to which the court finds it improper to live with the defendant. For this ground, it shall be at the court’s discretion whether the decree for divorce shall be granted or only the judicial separation;
Since the marriage, the defendant has voluntarily caused grievous hurt to the plaintiff or the plaintiff has been infected with venereal disease. In the case, where the defendant is the husband and he has compelled his wife into prostitution. However, the divorce on this ground shall not be granted if the suit has been filed for more than 2 years-
After the application of grievous hurt by the defendant or;
After the plaintiff came to know about the infection or;
After the last act of compulsory prostitution which means the date on which the last act of prostitution was done, from that date within 2 years the suit has to be filed.
The defendant has been imprisoned for a term of 7 years or more for an offence under Indian Penal Code, 1860. However, it is applicable only if the defendant has been imprisoned for a minimum of 1 year of the said term, prior to the filing of the suit;
The plaintiff has been deserted by the defendant for a period of a minimum of 2 years;
A Magistrate has passed an order against the defendant by awarding a separate maintenance to the plaintiff and the parties have not consummated for 1 year or more since such decree or order;
The defendant has ceased to be a Parsi by being converted to another religion. However, the suit for divorce must be filed within 2 years after the plaintiff came to know the fact.
In cases of non-resumption of cohabitation or restitution of conjugal rights within 1 year of pursuance of a decree as stated under Section 32A of the Act. In such cases, either of the parties can sue for divorce if:
No resumption of cohabitation between the parties for a term of 1 year or more after the decree for judicial separation has been passed; or
No restitution of conjugal rights between the parties for a term of 1 year or more after the decree for restitution of conjugal rights has been passed.
The Section further states that the decree for divorce shall not be granted if the plaintiff fails or neglects to comply with an order of maintenance as passed against him. [Section 32A(2)]
Mutual consent
As mentioned under Section 32B, both parties can file for divorce together on the grounds-
According to this Section, the parties to a marriage may jointly file a suit for divorce, if the marriage is solemnised before or after the commencement of the Parsi Marriage and Divorce (Amendment) Act, 1988.
that both of them are living separately for a term of 1 year or more;
that they have not able to live together;
that they have mutually agreed to dissolve the marriage.
However, the suit has to be filed after 1 year of marriage.
After the court is satisfied that the averments made in the plaint are true and the parties have given consent out of their free will shall pass a decree to dissolve the marriage.
Under the Special Marriage Act, 1954
Divorce under the Special Marriage Act, 1954 (“Special Act”) is similar to other personal laws. Under this Act also, there are two main categories of divorce i.e., by mutual consent or without mutual consent. Sections 27, 27A and 28 of the Special Marriage Act of 1954 deal with the divorce provisions.
Without mutual consent
Section 27 deals with the grounds on which either the husband or the wife can seek divorce by filing a petition in the District Court. The respondent has –
After the solemnization of the marriage, had voluntary sexual intercourse with any person who is not their spouse; or
Deserted the petitioner constantly for a term of a minimum of 2 years immediately preceding the presentation of the petition; or
Imprisoned for 7 years or more for an offence under the Indian Penal Code, 1860; or
Treated the petitioner with such cruelty, after the solemnisation of the marriage; or
Been of unsound mind which is incurable or has been suffering constantly or intermittently from mental disorder of such kind and such an extent that the petitioner cannot be expected to live with the respondent; or
Suffering from venereal disease which is in a communicable form; or
Suffering from leprosy which has not been contacted by the petitioner; or
Not been heard of a being alive for a term of 7 years or more by those persons who would have naturally heard of the respondent, if the respondent is alive.
In the case of Mr. ‘X’ v. Hospital ‘Z’ (1998), the Supreme Court observed that “ under Section 27 of the Special Marriage Act, the party to a marriage has been given the right to obtain a divorce if the other party to whom he or she was married was suffering from venereal disease in a communicable form. The emphasis in all systems of marriage is on a healthy body with moral ethics. A person who was suffering from that disease even prior to the marriage cannot be said to have any right to marry as long as he is not fully cured of the disease.”
The wife can also present a petition for divorce in the District Court if-
The husband has been guilty of rape, sodomy or bestiality after the marriage has been solemnized;
If the cohabitation has not resumed between the couple within 1 year or more and if the wife has been living separately after an order or decree for maintenance has been passed against the husband.
Either party to a marriage can file for divorce to the District Court under the following grounds-
There has been no resumption of cohabitation between the parties for a term of 1 year or more after the decree for judicial separation has been passed;
There has been no restitution of conjugal rights between the parties for a term of 1 year or more after the decree for restitution of conjugal rights has been passed.
Mutual consent
Section 28 of the Act deals with mutual consent divorce. According to this Section, the parties to a marriage can file for divorce mutually to the District Court together on the following grounds-
That they have been living separately for a term of 1 year or more;
That they are unable to live together and;
That they have decided mutually to dissolve the marriage.
Divorce due to irretrievable breakdown of marriage
Irretrievable breakdown of marriage means the married couple cannot live together any longer as husband and wife because of any problem arising between them. They have to prove to the court that their marriage broke down inadequately and that there are no reasonable chances for them to get back together and separation is the only solution.
The 71st Law Commission Report of India dealt with the concept of irretrievable breakdown of marriage and it strongly recommended it to be included as a separate ground for obtaining divorce under the Hindu Marriage Act, 1955. Based on this report, the Marriage Laws (Amendment) Bill, 1981 was also introduced by the Parliament. However, due to some constant opposition by a few women organisations, it was no longer valid.
There is no codified law regarding this, hence it acquired informal validity that is evoked in several judicial decisions related to divorce. This was not included as an independent ground for the dissolution of marriage by divorce, although various courts have recognized this notion in different cases. In the case of Naveen Kohli v. Neelu Kohli (2006), the Supreme Court recommended the government to incorporate irretrievable breakdown of marriage as a reasonable ground for divorce. Also, the case of N.G. Dastane v. S. Dastane (1975) emphasised on the fact that the irretrievable breakdown of marriage should become an independent ground for divorce.
The Supreme Court recently passed a judgement breaking this rule. The case is discussed below:
Shilpa Saliesh v. Varun Sreenivasan (2023)
Recently in this case, the Supreme Court allowed the divorce on the ground of irretrievable breakdown of marriage and further held that the mandatory waiting period of six months in order to get a decree for divorce under the Hindu Marriage Act, 1955 shall be waived. However, the Court has laid down certain conditions for determining the irretrievable breakdown of marriage which clarified that the parties cannot directly move to the Supreme Court for dissolution of marriage.
Reason behind the judgement
The Court opined that matrimonial suits include many legal proceedings which are time-consuming and sometimes of criminal nature. The multiple legal proceedings before different courts burden the judiciary and increase its work. Moreover, the multiple legal proceedings not only burden the judiciary but also burden the parties financially. Therefore, the Court, exercising its power under Article 142 of the Constitution of India, granted the divorce to the consenting parties on the ground of the irretrievable breakdown of the marriage.
The Court also opined that if there is no possibility of reconciliation in a marriage, then it would be meaningless to continue with that marriage. Therefore, dissolving such a marriage would be a speedy remedy for the parties who cannot live together and have decided mutually to end the marriage.
Six months waiting period
As per Section 13B of the Hindu Marriage Act, 1955 there is a condition that a couple seeking divorce have to wait for a period of six months mandatorily after they have filed the first motion for divorce before the District Court. This condition is laid down because it gives an opportunity to the couple to reconcile their differences and rethink the divorce. However, as per the recent judgement of the Supreme Court, the Court stated that when there is no possibility of reconciliation then this condition would be waived off; otherwise, the long legal proceedings would make the parties suffer.
Conditions to check for seeking divorce under the ground of irretrievable breakdown of marriage
The time period of cohabitation of the parties after the marriage;
Last cohabitation of the parties;
The nature of allegations the parties have made against others and their family members;
The orders passed in the legal proceedings and its impact on the parties relationship;
How many attempts were made by the parties to settle the disputes by the court’s intervention or through mediation and whether they have made an attempt or not and when the last attempt was made;
The separation period must be sufficiently long, and more than six years will be more relevant.
All these factors would be assessed on the basis of the economic and social status of the parties which includes their educational qualifications, the existence of children, alimony and other factors.
Frequently Asked Questions (FAQs)
Is a husband entitled to divorce due to cruelty by the wife?
A husband is entitled to divorce from his wife on the ground of cruelty. This was held in the case of Ompati v. Rajbir (2004), where the wife falsely accused her husband of illegal affairs with his sister-in-law. Therefore, it was held by the Punjab-Haryana High Court that the husband was entitled to grant a decree of divorce because the acts of false allegations would cause cruelty to the husband.
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