What are the legal grounds for divorce in India?

There are two kinds of divorce in India. Since two parties are directly involved in a marriage, their agreement to separate is called mutual consent divorce. In such cases, the parties, i.e. husband and wife only need to expound before the court that they wish to end their marriage and then after a certain process, divorce is granted. There is not much need to prove the
reasons for divorce before the court in detail. However, there is another tougher path to the already tough deal of divorce, i.e. contested divorce. It is opted for if one of them is willing to end the marriage while the other wishes to continue. In such cases, legal grounds for divorce in India have to be proved by the party willing to end the marriage. For example, divorce on
grounds of adultery requires the spouse to prove before the court acts of adultery of the other beyond reasonable doubt. There are several divorce grounds based on the religious laws applicable to parties to a marriage as explained earlier. Laws in India are a bit complicated, especially when it comes to family laws. Thus, divorce lawyers should be contacted by the
parties in case of any doubt. They will give a clear picture of how one should proceed with the matter to safeguard personal interests.

What are Valid Grounds for Divorce in India?

1. Divorce on Grounds of Adultery in India

Marriage is another name of being loyal to your partner. Marriage gives exclusive rights to couples against each other, especially when it comes to physical relations. Although the apex court has struck down adultery as a criminal offence under the Indian Penal Code, 1860. However, the same act remains among divorce grounds of adultery in India. For Hindus, Christians and Parsis, voluntary sexual intercourse with anyone other than the spouse is among divorce grounds. The provision applies to couples governed by grounds for divorce in India Special Marriage Act, as well. However, in case of Muslims, the husband’s association with women of evil repute or leading an infamous life indirectly depicts divorce on grounds of adultery.

2. Grounds for Divorce in India - Desertion

Marriage grants conjugal rights to a couple, i.e., right to be together. When one of the spouses wilfully abandons or leaves the company of another, lives separately and there is no cohabitation for a prolonged period, it may be termed as desertion in the matrimonial laws. Grounds for divorce under Hindu Marriage Act as well as those for Christians, Parsis, and the Special Marriage Act include desertion. Under all the previously mentioned laws, deserting a spouse for 2 years makes it grounds for divorce in India. For Muslims, instead of direct use of the term ‘desertion’, neglect and lack of maintenance for 2 years have been provided along with the non-compliance of marital obligations for 3 years.

3. Imprisonment as Divorce Ground

Matrimonial rights allow husband and wife to stay together in each other’s company. However, imprisonment for being guilty of an offence eventually results in the spouse getting apart. If one spouse has been imprisoned for 7 or more years, the other spouse may apply divorce grounds for imprisonment and get legally free from the marriage. It has been included among grounds for divorce in India for Muslims, Parsis and under SMA as well. But the laws for Hindus or Christians do not per se provide imprisonment as a ground for divorce in India.

4. Cruelty - Grounds for Divorce in India

Cruelty is a ground for divorce in India for all the religious laws, i.e. for Hindus, Muslims, Christians, Parsis, and couples married under SMA. However, there is no universal definition of what may constitute cruelty in a marriage. It may be physical as well as mental cruelty. Living with a spouse who makes you feel apprehended for your life or mental or physical health can never be easy person to deal with. This fact lay the foundation for cruelty to be included among divorce grounds. It is hard proving mental cruelty by the wife against the husband as compared to the other way around since laws in India are slightly tilted towards women.

5. Divorce Grounds of Unsound Mind

If the spouse is of unsound mind and the unsoundness or insanity is incurable through medical treatment making it impossible to stay in the company of such spouse, the other spouse can file a petition for divorce. For Hindus and under SMA, the divorce ground of insanity is not time-bound. However, in the case of Christians, Muslims, and Parsis, a petition for divorce over unsound mind or insanity has to be presented within 2 years.

6. Venereal Disease as Ground of Divorce

Sexually transmittable diseases (STDs) are also termed as venereal diseases, i.e. diseases that are communicable through sexual intercourse. Since the relationship between husband and wife is intimate, the risk of transferring STDs is eventually higher, risking the life of another spouse. Venereal disease in a communicable form is divorce grounds for Hindus, Muslims, Christians, Parsis and couples married under SMA.

7. Divorce Grounds in India - Presumption of Death

If a person who is your spouse is not heard of to be alive for years by the kins and friends who would normally have heard from him/ her, there is no direction left for life. In such cases, the law sometimes allows the left out spouse to seek divorce so that they can start life afresh. For Hindus, Christians and well as couples married under the SMA, if the spouse has not been heard alive for 7 or more years, the other spouse may use it as grounds for divorce in India. For Muslims, the whereabouts of the husband are unknown for 4 or more years, divorce can be obtained. While for Parsis, there is no such concept among divorce grounds.

8. Divorce Ground - Marriage not Consummated

The relationship between a husband and wife is too intimate. Having a physical relationship is one of the various basic matrimonial rights of spouses against one another. If such a relationship has not been established by one spouse due to whatever reason, the other may seek divorce. In order to seek an answer to ‘Is impotence grounds for divorce in india?’, consummation of marriage is the key. In Parsis and Christians, non-consummation of marriage is one of the legal grounds for divorce in India. However, for Hindus and under Special Marriage Act, non-consummation is one of the grounds for annulment of marriage being a voidable marriage. Among Muslim women, option of puberty can be enjoyed only if marriage has not been consummated between husband and wife. Impotence grounds for divorce in India is also applicable under Section 2 (v) of the Act. In case of doubts for personal cases of parties residing in Kolkata, divorce lawyer in Kolkata may be consulted.

In case of P L Shaju vs Anitha the hon’ble court has explained what exactly constitutes consummation of marriage. The court held that “consummation’ means the act of making marital relationship complete by having sex……the marital relationship would become complete by the first sexual intercourse itself i.e., consummation is confined to first
intercourse only after the marriage.”

9. Ceased to Follow Religion

Since the marital laws uphold religion, it plays a great role for parties to stay as a husband and wife. If a person has ceased to be a Hindu Parsi or Christian and converted to another religion, the other spouse may call for application of divorce grounds for religious conversion. In case of Muslims[44], a wife who converts to another religion shall need a
decree from court in this regard since conversion itself won’t result in dissolution of marriage.

Grounds of Divorce Available to Wife Only

As per the Dissolution of Muslim Marriage Act, 1939, all the grounds provided are exclusive divorce grounds for wife since Muslim man does not need any justification for divorcing his wife. However, in some other religions, wives have been provided some additional grounds for divorce apart from those applicable to both husband and wife.

Special Marriage Act Divorce Grounds Exclusive to Wife
  1. Husband Guilty of Rape, Sodomy or Bestiality- If the husband is guilty of rape, sodomy or bestiality, wife may seek divorce.
  2. Divorce Grounds of No Cohabitation – If orders regarding maintenance have been passed by an appropriate court under section 18 of the Hindu Adoptions and Maintenance Act, 1956 or section 125 of the Code of Criminal Procedure, 1973, and there is lack of cohabitation for a year, divorce can be sought by wife.
  3. No Intimacy – Grounds for Divorce India- In the absence of resumption of cohabitation or restitution of conjugal rights for more than a year, divorce grounds apply.
Hindu Marriage Act - Ground for Divorce Available to Wife Only
  1. Bigamy- If the husband marries another woman while the first wife is alive, a petition for divorce may be moved.
  2. Guilty of Rape, Sodomy or Bestiality- If the husband is guilty of having sexual intercourse with a girl without her consent (rape), or unnatural sexual intercourse (sodomy), or sexual intercourse with an animal (bestiality), the wife may exclaim it under divorce grounds.
  3. Lack of Maintenance and Cohabitation- If the husband and wife have not been cohabiting since past 1 year, and a decree or order has been passed under section 18 of the Hindu Adoptions and Maintenance Act, 1956 or section 125 of the Code of Criminal Procedure, 1973, divorce may be sought by the wife.
  4. Repudiated Child Marriage- In case a girl gets married before the age of 15 years and seeks to end the marriage after attaining the age of 18 years.
Divorce Grounds for Christian Wife

Divorce grounds may be invoked by wife if husband has been declared guilty of having sexual intercourse with a girl without her consent (rape), or unnatural sexual intercourse (sodomy), or sexual intercourse with an animal (bestiality) by court of appropriate jurisdiction.

Divorce Grounds Exclusive to Parsi Wife

As per Section 32 (e), if the husband forces his wife to submit herself to prostitution, such wife can invoke it as ground for divorce in India within 2 years of such act.

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