Divorce Laws In India
Introduction
India is a secular and democratic country where a wide variety of religions are practiced. The major religions practiced in India are Hinduism, Christianity, Islam, and others religions.
People solemnize marriages in accordance with religious rituals and ceremonies, which are mostly codified by statutory personal laws. Therefore, the matrimonial laws in India, including laws on marriage, divorce, and other connected issues, are essentially governed by the personal laws of the parties depending on their religion, which are codified by statute in most cases:
Hindu: Hindu Marriage Act 1955
Muslim: Muslim marriage is a contract under Muslim law.
Christian: The Indian Christian Marriage Act 1872 and the Divorce Act 1869
Parsi: Parsi Marriage and Divorce Act 1936
In addition, the Special Marriage Act of 1954 applies to all persons of all religions. This is civil legislation, and parties from all religions, castes, and communities can elect to marry under it. A divorce would then be governed by the Special Marriage Act of 1954.
All these laws apply throughout India.
What Is Divorce?
Divorce, also known as “dissolution of marriage,” is “the process of terminating a marriage or marital union.” Divorce usually entails the cancellation or reorganizing of a marriage’s legal duties and responsibilities, thus dissolving the bonds of matrimony between a married couple under the rule of law of the country or state.
Divorce laws vary considerably around the world, but in most countries, divorce requires the sanction of a court or other authority in a legal process, which may involve issues of distribution of property, child custody, alimony (spousal support), child visitation, or access, parenting time, child support, and division of debt.
Divorce is different from annulment, which declares the marriage null and void, and from legal separation, either de jure separation (a legal process by which a married couple may formalize a de facto separation while remaining legally married) or de facto separation (a process where the spouses informally stop cohabiting). The only countries that do not allow divorce are the Philippines and Vatican City.
Divorce Laws Under Different Religions
Divorce is one of the most difficult phases of life that a married couple goes through. In India, since divorce is a personal matter, it is connected with religion. Separate laws exist for various religions due to diversity, and they are as follows:
“The Hindu Marriage Act, 1955” governs divorce for the Jains, Sikhs, Hindus, and Buddhists. The divorce laws of Muslims are governed by the “Dissolution of Muslim Marriage Act, of 1939,” the Parsis by the “Parsi Marriage and Divorce Act, of 1936,” and Christians are governed by “the Indian Divorce Act, of 1869.” All intercommunity marriages are governed by the Special Marriages Act of 1954.
Types Of The Divorce Petition
1. Divorce with mutual consent:-
The married couple can seek a divorce from the courts if they voluntarily agree to dissolve their marriage. The marriage will not However, the court immediately dissolves it. It is essential to demonstrate that the couple has been living separately for at least a year or two before the divorce petition is granted.
- When a husband and wife seek a divorce, they must consider three factors:
- The first consideration is the amount of time required by the pair at both the minimum and maximum.
- The issue of child custody is the second facet. When a couple divorces by mutual consent, it is up to them to decide who will have custody of their child. Custody can be shared or exclusive, depending on the parties’ agreement.
- The third factor is property, specifically how much of the husband’s and the woman’s property she will receive. Various laws specify varying time frames for the completion of the divorce procedure.
2. Divorce without mutual consent:-
- The following grounds can be used to get a divorce without mutual consent:
- Cruelty, desertion, adultery, conversion, mental illness, death presumption, the abandonment of the world
Grounds For Divorce In India
The secular mindset of the Indian judicial system has initiated the proclamation of various personal laws based on different religious faiths. Hindus, Christians, and Muslims are governed under separate marriage acts and grounds for divorce in India.
Common legal grounds for divorce, which are almost always present in every enactment are:
- Adultery
- Desertion
- Insanity
- Conversion
- Renunciation
- Cruelty
- Venereal disease
- Presumption of death
- Bill 2018, a recently introduced personal law (Amendment), has removed leprosy as a divorce ground. Some other legal reasons for divorce can be sodomy, bestiality, bigamy, and conviction for an offense of moral turpitude such as rape, etc.
1. Grounds for Divorce under the Hindu Marriage Act, 1955
- Section 13 of the Hindu Marriage Act of 1955 lists the grounds by which divorce can be obtained:
Adultery:
- In HMA, adultery is considered a matrimonial offence in which either of the spouses is involved in sexual relations with any person other than their spouse.
Cruelty:
- Cruelty comprises both physical and mental cruelty. Physical cruelty is easily identified when one spouse causes bodily harm to the other spouse; mental cruelty is harsher and more difficult to identify; mental cruelty affects the health of the person to whom mental cruelty has been caste.
Desertion:
- When one spouse, without any reason or consent, abandons the other spouse with the intention of not coming back, this is known as desertion. If two years have passed since desertion, it becomes a valid ground for divorce.
Conversion:
- If either of the two spouses changes religion, then the other spouse can go to court to get divorced.
Insanity:
- Insanity is a condition that occurs when a person becomes unsound. Insanity becomes grounds for divorce when it is not possible for the spouse to live with that spouse who is suffering from a mental disorder.
Leprosy:
- Leprosy is an infectious disease of the skin, nervous system, etc. This disease is transmitted from one person to another, making it a valid ground for divorce.
Communicable disease:
- If the disease is of this type and is incurable, it may be a cause for divorce.
Renunciation:
- Renunciation occurs when one person gives up something, renounces a way of life, and walks on the path of God; if any of the spouses do this, it becomes a valid ground for divorce.
Presumption of death:
A person is presumed dead if he is not heard from for 7 years by family and friends, and they have no idea whether the person is alive or dead. So, this becomes a valid ground for divorce.
Other grounds for divorce available only to the wife include:
- If the wife was married before the age of 15, this can be the ground for divorce.
- husband is guilty of rape, sodomy, or bestiality.
- In bigamy, a wife can apply for a divorce if her husband has married another woman in her life.
2. Grounds for Christians to get a divorce in India
- Section 10A of the Indian Divorce Act 1869 describes the two methods for obtaining a Christian divorce in India.
(a) Mutual Divorce: Both spouses agree that they are not able to live together happily and that they have been living apart for at least two years, and then they can file a petition for divorce before District Court.
(b) Contested Divorce: A contested divorce can be filed by either of the spouses on the following grounds:
- Unsound mind for a continuous period of not less than two years.
- Adultery.
- Either spouse has ceased to be Christian.
- Deserted for at least two years.
- Wilfully refusing to consummate the marriage.
- Cruelty
- Husband is guilty of rape and sodomy.
- Any of the spouses has not been heard from in at least seven years.
- Suffering from incurable leprosy for at least two years.
3. Grounds for Divorce for Parsis in India:-
- The Parsi Marriage and Divorce Act, of 1936, lays down the grounds on which marriage can come to an end.
According to Section 30, if it becomes impossible to consummate the marriage due to natural circumstances, either party may seek the nullity of the marriage.
Section 31 says that if either spouse hasn’t heard of the other spouse for a period of seven years from the persons who would have naturally known that person, then the marriage can be dissolved.
Section 32 lays down the grounds on which divorce can be obtained, and these are:
When one party refuses to consummate the marriage within one year of marriage.
Divorce can be granted if either spouse has been imprisoned for more than 7 years and one year has passed.
If either spouse has deserted the other for more than two years or has given up his or her religion, then divorce can be granted.
If the person at the time of marriage did not know that the other person was unsound, a divorce can be granted, but a divorce petition has to be filed within three years from the date of the marriage.
If the wife was pregnant at the time of marriage and the husband had no idea, then the divorce can be taken within two years of marriage, but the condition is that there should not have been any marital intercourse.
If either spouse has been treated with cruelty or any spouse is infected with venereal disease, then the divorce can be finalized within two years.
- Section 32B talks about divorce by mutual consent, provided that the consent has not been obtained through fraud or force.
- In India, the Parsi Marriage and Divorce Act 1936 says that Parsis can initiate divorce only under Special Courts, which are instituted under Sections 19 and 20 of the said acts. Such courts are presided over by officials who are Parsis, and it is also necessary to register the divorce at the registrar’s office.
4. Divorce under Muslim law :-
There are two types of divorce under Muslim law, and they are as follows:
(a) Extrajudicial Divorce in Islam
- The extrajudicial divorce consists of the following divisions:
- By husband: Talaq, Ila, Zihar
- Talaq-i-Tafweez by wife
- By mutual consent: Khula, Mubara
(b) Judicial Divorce in Islam
- The Dissolution of Muslim Marriage Act, of 1939, governs judicial divorce.
- Lian
- Fask
Lian: When the husband puts charges of adultery on the wife and later the charges are proved false, the wife is entitled to sue and ask for a divorce.
- Fask: According to Muslim law, a lady may approach a qazi to dissolve a marriage if the following conditions are met:
- If the marriage is irregular,
- If the marriage was within prohibited degrees, etc.
Grounds for Divorce under the Dissolution of Muslim Marriage Act, 1939
Based on the Dissolution of Muslim Marriage Act, 1939, under Section 2 of this Act, a Muslim woman can seek divorce on the following grounds for divorce in India:
- The husband’s whereabouts have been 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 years or more.
- The husband is unable to meet marital obligations.
- If the girl is married before she turns fifteen and decides to end the relationship before she turns eighteen,
- The husband indulges in acts of cruelty.
Special Marriage Act ,1954
- The Special Marriage Act was enacted in 1954. It replaced the old Act III of 1872. Its goal is to provide special marriage services to all Indians living in India as well as Indians living in other countries, regardless of religion. The three main objectives because of which this Act was enacted to replace Act III, 1872, are:
- To provide a special form of marriage in certain circumstances.
- To provide a process in the case of divorce.
- To make such special marriages registerable.
1. Conditions for marriage :-
- The following are the conditions that are required to be fulfilled to ensure a valid marriage takes place:
- Both parties must have attained the age of majority, i.e., 18 in the case of girls and 21 in the case of boys.
- Neither party may be involved in another valid substituting marriage.
- The parties should be of sound mind to make sure that they give valid consent to the marriage.
- The parties should not have a relationship that is prohibited.
2. Section 27 of the Act:-
- As per Section 27 of the Act, a petition can be filed by either a wife or a husband claiming the respondent:
Has committed adultery since the solemnization of marriage.
Has abandoned the petitioners for at least three years immediately before the filing of the petition without giving any reasonable reason.
Has been imprisoned for seven or more years for an offense defined in the Indian Penal Code (1860).
Has treated the petitioner with cruelty since the solemnization of marriage?
Has treated the petitioner with cruelty since the solemnization of marriage.
Has been of unsound mind for a constant period of three years, immediately after the filing of the petition.
Has been suffering from some communicable venereal disease for not less than three years immediately before the filing of the petition, the disease not being contracted from the petitioner.
Has been suffering from leprosy for a period not less than three years immediately before the filing of the petition, the disease not being contracted from the petitioner. But the Personal Laws (Amendment) Act, 2019 has now omitted this clause.
Has not been heard of as being alive for the past seven years, even from the people who would have naturally heard of the respondent as being alive.
Has not continued the cohabitation for a period of two or more years after the passing of a decree for judicial separation against the respondent.
- Has failed to comply with the restitution of conjugal rights for a term of two or more years after the passing of the decree against the respondent. And by the wife claiming her husband is guilty of rape, sodomy, or bestiality since the solemnization.
New Rules For Divorce In India
- Divorce is the legal end of the marriage. Thoughts and beliefs about the marriage system evolve over time. The divorce laws in India are also modified as per the needs of the time. The new rules for divorce in India in 2022-2023 are as follows:
1. Waiving the Mandatory 6-Month Period for Rehabilitation
According to Section 13B (2), when couples move to the court for divorce with mutual consent, the court grants them a mandatory six-month period to consider any chances of changing their decision. The court grants this period to save the marriage. After the end of six months, the couple may decide to reunite or proceed with a divorce.
The rehabilitation period of six months was mandatory. But as per the new rule, it is no longer mandatory and is left to the discretion of the court. The court may decide, as per the facts and circumstances of the specific case, whether there is a need to order a six-month rehabilitation period or whether the couple should be immediately allowed to divorce.
This was observed in the Supreme Court ruling in the Akanksha vs. Anupam Mathur case. The court was satisfied that the couple had made a conscious decision to divorce, and there was no point in requiring the parties to wait another six months for divorce. The court decided to waive the six-month period and ordered the dissolution of the marriage.
2. Irretrievable Breakdown of Marriage: A Valid Ground for Divorce
When the couple decides that they cannot continue living as married partners, this situation is called separation or the breakdown of the marriage. The partners may or may not live under the same roof, but they do not live as husband and wife. There are no separate rules for this issue in the divorce law.
It is a matter of the court’s discretion whether the separation can form the basis for divorce. If the court is of the view that there is no possibility that the couple can reunite or if both or any of the spouses are unwilling to live with each other, it can allow them to proceed with the divorce.
In the Sangamitra Ghose vs. Kajal Kumar Ghosh case, the Supreme Court observed that the marriage between the parties was irretrievably broken down and that there was no possibility to repair the bond of the marriage. The apex court, therefore, ordered that the couple can divorce on the grounds of the irretrievable breakdown of the marriage.
3. The Maintenance Law Has Been Extended to Include Live-in Relationships
As per the Hindu Marriage Act of 1955, the court may order the payment of maintenance. This is to help the women maintain the same standard of living after divorce. If the marriage is not under Hindu law, the woman is eligible to claim maintenance under Section 125 of the Criminal Procedure Code.
The live-in relationship status is treated as a marriage in the eyes of the law. Therefore, a woman who was in a live-in relationship can also claim maintenance from the live-in partner under the Code of Criminal Procedure. Also, if the partners have been in a live-in relationship for a long time, there is no need to provide strict proof of marriage.
- The victim, i.e., the wife or the live-in partner, can seek relief under the Protection of Women from Domestic Violence Act, 2005, even if she is not eligible for a claim under the Criminal Procedure Code, according to the new divorce rules in India 2022. The victim woman can claim even greater relief under the Protection of Women from Domestic Violence Act than what is contemplated under the Code of Criminal Procedure.
4. Adultery is not punishable.
- As per the new rules, adultery can be considered a ground for divorce in India, but it is not punishable. The court observed that punishing the spouse and his or her lover, with whom he or she indulged in adultery, cannot be a remedy to save the marriage. The partners can claim divorce based on adultery, but there is no punishment for adultery.
5. Triple Talaq is not a valid reason for divorce.
- As per Muslim law, merely saying “Talaq” three times can be the basis for divorce in India. This practice is unfair to Muslim women, as it gives Muslim men the right to unilaterally dissolve the marriage. The arbitrary practice of triple talaq is against the rights of women. The “Triple Talaq” has now been declared unconstitutional and has no significance in the eyes of the law as per the new divorce rules for 2022-2023 in India.
6. Divorce under personal law cannot override the power of the civil court.
- The divorce can be ordered only by the civil court. If the Christian Church or another personal law grants the divorce, it is null and void. In the Molly Joseph vs. George Sebastian case, the Apex Court ruled that the competent court could only grant a dissolution of marriage. The order or decree of the civil court shall prevail and override any order passed by personal law or the ecclesiastical tribunal.
What Is Alimony?
When both the husband and wife are married, there are certain duties that each of them has to perform; after divorce, these duties do not come to an end. When either of the spouses is dependent on the other spouse (in most cases, it is the wife), then, in that case, the wife can claim maintenance from the husband for her living or her children, even in the case of an indigent parent.
In cases of maintenance, the court investigates various factors before giving any maintenance, such as the earnings of the husband or his ability to reclaim his property assets and liability in case he must give some part of the property to his wife.
1. Alimony in mutual divorce
When the parties obtain a divorce by mutual consent, the question of the payment of alimony is solved based on understanding and agreement between the contesting parties. The decision of who will pay who depends on the mutual understanding of the parties. The court, based on their agreement, will pass the order, thus binding the parties.
2. Alimony calculator
Spousal support, also known as alimony, is assessed based on the following:
- Petitioner’s gross yearly income.
- Petitioner’s net yearly income.
- Gross yearly income of the spouse.
- Net yearly income of the spouse.
- A sum paid by both the contesting parties in child support for their children.
- Length of the marriage.
Conclusion
India is a secular country with many different cultures, traditions, and language groups that coexist. It is complex to apply the same law to everyone because of different customs and traditions. As a result, India adopted various marriage and divorce laws, i.e., laws appropriate to respective religions.
India is a diverse country with a number of religions, cultures, and traditions. Our country’s laws are appropriate for the respective religions, for example, the Hindu: Hindu Marriage Act 1955. Muslim: Muslim marriage is a contract under Muslim law. Christian: The Indian Christian Marriage Act 1872 and the Divorce Act 1869
Parsi: Parsi Marriage and Divorce Act 1936 The Special Marriage Act of 1954 is applicable to all and provides special marriage to all persons living in India as well as Indians living in foreign countries, irrespective of the religion of either of the parties.
Top 13 Facts About Divorce Laws In India
1. The only countries that do not allow divorce are the Philippines and Vatican City.
2. India is a secular and diverse country. So, there are different laws for respective religions, i.e., the Hindu Marriage Act of 1955; Muslim marriage is a contract under Muslim law; Indian Christian Marriage Act of 1872 and the Divorce Act of 1869; Parsi Marriage and Divorce Act of 1936.
3. In addition to all these, the Special Marriage Act of 1954 applies to all persons of all religions. This is civil legislation, and parties from all religions, castes, and communities can elect to marry under it.
4. Divorce is also known as “dissolution of marriage,” i.e., “the process of terminating a marriage or marital union.” This means the legal separation of wife and husband.
5. A divorce petition is of two types:
- divorce with mutual consent.
- divorce without mutual consent.
6. Common legal grounds for divorce, which are present in every enactment, are:
- Adultery
- Desertion
- Insanity
- Conversion
- Renunciation
- Cruelty
- Venereal disease
- Presumption of death
7. Section 13 of the Hindu Marriage Act of 1955 deals with grounds for divorce, i.e., adultery, cruelty, desertion, conversion, insanity, renunciation, the presumption of death, and other grounds which can be used by the wife only.
8. According to Muslim law, a man can marry four wives; it is legal. Monogamy is practised in other religions.
9. Divorce under Muslim law is of two types:
(a) Extrajudicial divorce:
- By husband: Talaq, Ila, Zihar.
- By wife: Talaq-i-Tafweez.
- By mutual consent: Khula, Mubara
(b) Judicial divorce:
- Lian
- Fask
10. The Special Marriage Act, of 1954, provides special marriage to all persons living in India as well as Indians living in foreign countries, irrespective of the religion of either party.
11. The 1954 Special Marriage Act requires that parties be of sound mind, of majority, give valid consent, not be in a prohibited relationship, and not be involved in any other valid substituting marriage.
12. The new laws regarding divorce in India are:
- The maintenance law applied to live-in relationships.
- Adultery is not punishable.
- Triple talaq cannot be a ground for divorce under Muslim law.
13. According to Section 13B (2), the court decided that waiving the mandatory 6-month period for rehabilitation is now not necessary and left to the discretion of the court.
