DIVORCE LAWS IN INDIA
INTRODUCTION
Divorce laws in India are different for the different religions in India. Divorce Procedure can be
initiated by the parties to the divorce in accordance with the personal divorce law governing
them.
A. HINDUS
The divorce for people married under the Hindu Marriage Act, 1955 which is also the divorce
law provides for the grounds of divorce on which divorce can be obtained in accordance with
divorce laws which are as follows:
Grounds for Divorce under Section 13
1) Adultery (Section 13(1)(i))
Adultery refers to voluntary sexual intercourse by a married person with someone other
than their spouse.
Historically, adultery was a criminal offence under Section 497 of the Indian Penal
Code, 1860 and Section 198(2) of the Code of Criminal Procedure, 1973. However,
the Supreme Court in Joseph Shine v. Union of India (2018) decriminalized adultery
by declaring these provisions unconstitutional.
2) Cruelty (Section 13(1)(ia))
Cruelty includes any act causing physical or mental suffering to the petitioner.
Cruelty is also punishable under Sections 85 and 86 of the Bharatiya Nyaya Sanhita,
2023, with imprisonment up to three years or fine, or both.
Section 85 defines cruelty as any act likely to drive a woman to suicide.
Section 86 includes harassment for unlawful demands for property or valuables.
3) Conversion (Section 13(1)(ii))
Conversion, or apostasy, occurs when one spouse renounces Hinduism and adopts
another religion.
The non-converting spouse may seek divorce under this ground. Conversion by one
spouse does not grant them the right to divorce under Section 23(1)(a).
4) Unsoundness of Mind (Section 13(1)(iii))
Divorce can be sought if one spouse is of unsound mind or suffers from mental disorders
making it unreasonable for the petitioner to live with them.
After the 1976 amendment, no specific duration of the mental condition is required to
claim this ground.
5) Venereal Disease (Section 13(1)(v))
A spouse suffering from a communicable venereal disease is a ground for divorce.
The disease must exist at the time of filing the petition.
6) Presumption of Death (Section 13(1)(vii))
If a person has not been heard from for seven years by those who would normally be
aware of their whereabouts, they are presumed dead.
This ground is supplemented by Section 111 of the BharatiyaSakshyaAdhiniyam,
2023, which shifts the burden of proving life to the claimant.
7) Non-Resumption of Cohabitation (Section 13(1A)(i))
If the spouses fail to resume cohabitation for one year or more after a decree of judicial
separation, either party may file for divorce.
8) Irretrievable Breakdown of Marriage
Although not explicitly provided under the Act, irretrievable breakdown has been recognized
by the judiciary as a valid ground for divorce in some cases, where the marital relationship is
beyond repair.
B) DIVORCE UNDER MUSLIM DIVORCE LAW
Under the Muslim Divorce Law, marriage can be dissolved either by the death of any of the
parties to the marriage or by divorce. A husband may marry immediately after the death of the
wife but the widow has to wait for the expiry of a specified time called Iddat as provided by
Muslim divorce laws. Both parties have the option of calling for a divorce under divorce laws
from the contract of marriage, but the husband has an upper hand under Muslim divorce laws.
The husband can dissolve the marriage at his will in the Muslim divorce laws. The divorce under
the Muslim divorce law can also take place by mutual agreement. But the wife cannot divorce
her husband without his consent in Muslim divorce laws. She can, of course, purchase her
divorce from her husband and can have the marriage dissolved by Tafweez (delegation). A
marriage may also be dissolved under the Dissolution of Muslim Marriage Act, 1955.
a) A Husband may divorce in the following manner as per Muslim personal divorce
laws-
1. Talaq- which is released from the marriage tie immediately or eventually.
2. Ila- where a husband of sound mind takes a vow that he will abstain from all relationship
from his wife.
3. Zihar- where the husband is sane, adult and compares his wife to his mother or any other
female within the prohibited degrees.
b) A wife may divorce in the following manner under Muslim divorce law-
1. Talaqetafwiz-talaq by the wife under the husband delegated power.
2. Khula- wife can ask for divorce by offering compensation to the husband.
3. Lian- if the husband puts false charges of adultery and unchastity on his wife then the
wife has the right to ask for divorce on these grounds under the Muslim divorce laws.
c) Divorce by judicial decree under the dissolution of The Muslim Marriage Act,1939
The following are the grounds on which a marriage may be dissolved under the Marriage Act
which also governs Muslim divorce laws.
1. Lian: Where the wife is charged with adultery and the charge is false. She can file a
regular suit for the dissolution of marriage as a mere application to the court is not the
proper procedure.
2. Fask: The cancellation, abolition, revocation, annulment. Before the passing of the
dissolution of the Marriage Act, Muslim women could only apply for the dissolution of
their marriage under the doctrine of Fask.
d) Woman's Right to Divorce Under The Dissolution Of Muslim Marriage Act. 1939
A Muslim woman may file for divorce on the following grounds in accordance with the Muslim
divorce laws-
1. When the whereabouts of the husband have not been known for a period of 4 years.
2. When the husband has neglected or has failed to provide for her maintenance for a period
of two years.
3. When the husband has been sentenced to imprisonment for a period of seven years or
upwards.
4. When the husband has failed to fulfill his marital obligation for a period of three years.
5. When the husband has been insane for two years or is suffering from leprosy or a virulent
form of venereal disease.
6. When the husband was impotent at the time of marriage and continues to be so.
The woman, having been given in marriage by her father or another guardian before she attained
the age of 15 years, repudiated the marriage before attaining the age of 18 is a ground for valid
divorce under Muslim divorce laws.
e) Triple divorce
Triple divorce is a recognized but disapproved form of divorce and is considered by the Islamic
jurists as an innovation within the fold of Sharia. It commands neither the sanction of the Holy
Quran nor the approval of the Holy Prophet. Recently, the legislature has passed a law declaring
triple talaq as unconstitutional thus raising questions on Muslim divorce laws.
C) CHRISTIANS
The divorce proceedings for Indian Christians are held under their divorce laws which are known
as the Indian Divorce Act, 1869.
When husband may present divorce petition for dissolution – Any husband may present a
petition to the District Court or to the High Court, praying that his marriage may be dissolved on
the ground that his wife has, since the solemnization thereof, been guilty of adultery.
When wife may present petition for dissolution- Wife may present a petition to the District Court
or to the High Court, praying that her marriage may be dissolved on the ground that, since the
solemnization thereof, her husband has exchanged his profession of Christianity for the
profession of some other religion, and gone through a form of marriage with another woman;
Other than the above, the divorce laws provide for the following grounds of divorce:
He has been guilty of incestuous adultery,
He has done bigamy with adultery,
He has married another woman with adultery,
He has committed rape, sodomy or bestiality,
Has done adultery coupled with such cruelty as without adultery would have entitled her
to divorce a mensa et toro,
Has committed adultery coupled with desertion, without reasonable excuse, for two years
or upwards.
D) PARSIS
The Parsi marriages come under The Parsi Marriage and Divorce Act,1936. If a husband or wife
shall have been continually absent from his or her wife or husband for the space of seven years,
and shall not have been heard of as being alive within that time by those persons who would
have naturally heard of him or her, had he or she been alive, the marriage of such husband or
wife may, at the instance of either party thereto, be dissolved under the divorce laws governing
Parsis. Any married person may sue for divorce as on any one or more of the following grounds
given under divorce laws for Parsis:
(a) that the marriage has not been consummated within one year after its solemnization owing to
the wilful refusal of the defendant to consummate it.
(b) that the defendant at the time of the marriage was of unsound mind and has been habitually
so up to the date of the suit: Provided that divorce shall not be granted on this ground, unless the
plaintiff:
(1) was ignorant of the fact at the time of the marriage, and
(2) has filed the suit within three years from the date of the marriage.
That the defendant has been incurable of the unsound mind for a period of two years or upwards
immediately preceding the filing of the suit or has been suffering continuously or intermittently
from mental disorder of such kind and to such an extent that the plaintiff cannot reasonably be
expected to live with the defendant. Explanation. —In this clause,—
the expression “mental disorder” under the divorce law means mental illness, arrested or
incomplete development of mind, psychopathic disorder or any other disorder or
disability of mind and includes schizophrenia.
the expression “psychopathic disorder” under the divorce law means a persistent disorder
or disability of mind (whether or not including sub normality of intelligence) which
results in abnormally aggressive or seriously irresponsible conduct on the part of the
defendant, and whether or not it requires or is susceptible to medical treatment;]
that the defendant was at the time of the marriage pregnant by some person other than the
plaintiff: Provided that divorce shall not be granted on this ground unless: (1) the plaintiff
was at the time of the marriage ignorant of the fact alleged,
(2) the suit has been filed within two years of the date of marriage, and (3) marital intercourse
has not taken place after the plaintiff came to know of the fact; that the defendant has since the
marriage committed adultery or fornication or bigamy or rape or an unnatural offense: Provided
that divorce shall not be granted on this ground if the suit has been filed more than two years
after the plaintiff came to know of the fact;
that the defendant has since the solemnization of the marriage treated the plaintiff with
cruelty or has behaved in such a way as to render it in the judgment of the Court improper
to compel the plaintiff to live with the defendant: Provided that in every suit for divorce
on this ground it shall be in the discretion of the Court whether it should grant a decree
for divorce or for judicial separation only;
that the defendant has since the marriage voluntarily caused grievous hurt to the plaintiff
or has infected the plaintiff with venereal disease or, where the defendant is the husband,
has compelled the wife to submit herself to prostitution: Provided that divorce shall not
be granted on this ground, if the suit has been filed more than two years
1. after the infliction of the grievous hurt, or
2. after the plaintiff came to know of the infection, or
3. after the last act of compulsory prostitution.
that the defendant is undergoing a sentence of imprisonment for seven years or more for
an offense as defined in the Indian Penal Code (45 of 1860): Provided that divorce shall
not be granted on this ground, unless the defendant has prior to the filing of the suit
undergone at least one year’s imprisonment out of the said period.
that the defendant has deserted the plaintiff for at least 2[two years];
that an order has been passed against the defendant by a Magistrate awarding separate
maintenance to the plaintiff, and the parties have not had marital intercourse for [one
year] or more since such decree or order;
that the defendant has ceased to be a Parsi [by conversion to another religion]: Provided
that divorce shall not be granted on this ground if the suit has been filed more than two
years after the plaintiff came to know of the fact.
E) THE SPECIAL MARRIAGE ACT, 1954
The Special Marriage Act, 1954 is an Act of the Parliament of India enacted to provide a special
form of marriage for the people of India and all Indian nationals in foreign countries irrespective
of their religion or faith followed by either of the parties. The act also provides for the divorce
laws for the people who have married under this act. Subject to the provisions of this Act and to
the divorce laws and rules made thereunder, a petition for divorce may be presented to the
district court either by the husband or the wife with the help of divorce lawyer in India on the
ground that the respondent: -
has, after the solemnization of the marriage, had voluntary sexual intercourse with any
person other than his or her spouse; or
has deserted the petitioner for a continuous period of not less than two years immediately
preceding the presentation of the petition; or
is undergoing a sentence of imprisonment for seven years or more for an offense as
defined in the Indian Penal Code.
has since the solemnization of the marriage treated the petitioner with cruelty, or has been
incurring unsound mind, or has been suffering continuously or intermittently from mental
disorder of such a kind and to such an extent that the petitioner cannot reasonably be
expected to live with the respondent. Explanation. —In this clause, —
1. the expression “mental disorder” under divorce laws means mental illness, arrested or
incomplete development of mind, psychopathic disorder or any other disorder or
disability of mind and includes schizophrenia.
2. the expression “psychopathic disorder” under divorce law means a persistent disorder or
disability of mind (whether or not including sub-normality of intelligence) which results
in abnormally aggressive or seriously irresponsible conduct on the part of the respondent,
and whether or not it requires or is susceptible to medical treatment; or
3. has been suffering from venereal disease in a communicable form]; or
4. has been suffering from leprosy, the disease not having been contacted by the petitioner;
or
5. has not been heard of as being alive for a period of seven years or more by those persons
who would naturally have heard of the respondent if the respondent had been alive;
A wife may also present a petition for divorce as per the Indian divorce law to the district court
on the ground,—
(i) that her husband has, since the solemnization of the marriage, been guilty of rape, sodomy or
bestiality; either party to a marriage may present a petition for divorce to the district court on the
ground— (i) that there has been no resumption of cohabitation as between the parties to the
marriage for a period of one year or upwards after the passing of a decree for judicial separation
in a proceeding to which they were parties. (ii) that there has been no restitution of conjugal
rights as between the parties to the marriage for a period of one year or upwards after the passing
of a decree for restitution of conjugal rights in a proceeding to which they were parties.
No party can file for a petition for divorce within one year of the solemnization of the marriage.
The Irretrievable Breakdown Of Marriage
The Marriage Laws (Amendment) Bill, 2010 which included the divorce laws incorporated
another ground for seeking divorce under the Indian divorce laws, namely the ‘Irretrievable
breakdown of marriage’ under the Hindu Marriage Act, 1955 and the Special Marriage Act,
1954. As the term suggests, it leads to a situation whereby, either or both the parties to the
marriage find it impossible to peacefully cohabit with each other, due to personality clashes,
differences in opinion and have lived separately from each other for a long period of time and are
no longer too eager to further carry on their matrimonial relationship.
