Termination of Marital Union-Divorce in India

Divorce or Dissolution of Marriage entails the process of terminating a marital union. It usually involves cancelling or altering the legal duties and responsibilities of matrimony. Therefore, a divorce petition would dissolve the matrimonial association of a married couple as per the rule of law of the particular country or state.

Divorce procedures and canons on divorce significantly vary in and around the world. In most nations, couples require court’s sanction or observe other legal processes to dissolve the marriage. The issues of child custody, maintenance, alimony, and property distribution are corollary to the divorce.

Indian Divorce Act 1896 legalizes termination of the marital union in India. Interestingly, the applicability of the Act remained limited to Christianity. Before this period, each religion had its notion of marriage and divorce. Hindus would see it as a sacred union that could not get terminated even after death. The Muslims considered it a civil contract and, hence, accepted triple talaq and others.

Types of Divorce in India

India system recognizes three types of divorce petitions. These are:

Divorce with Mutual Consent or Uncontested Divorce

Divorce with mutual consent or Uncotested Divorce happens when a couple agrees to have a peaceful divorce and agrees to all the divorce terms. It would be the elementary and peaceful way of dissolving the marriage.

Mutual Consent or the shared assent to part their ways would be the chief essential of such a separation method. While arriving at the mutual consent, husband and wife necessarily discuss the following viewpoints:

Maintenance

While at divorce, the couple primarily discusses the maintenance. It is the amount payable to the dependent wife to maintain herself. As per divorce rules in India, no minimum or maximum amount of maintenance would get fixed. It could be the amount that the court deems fit.

Custody of Children

Both husband and wife need to reach an agreement over the custody of the children.

Divorce by common assent could get filed when the couple lived separately for one year and concluded to end their marriage.

Divorce without Mutual Consent or Contested Divorce

A contested divorce lacks a couple’s mutual consent. Here, spouses might go through an entire divorce process to involve a judge to reach the final decision. For Hindus, contested divorce in India is looked after by Section 13(1) of the Hindu Marriage Act 1955. The said section lays down certain grounds on which either spouse could file the divorce. These grounds for divorce in India are:

Adultery

Under a matrimonial union, if either of the spouses, while living within the bonds of matrimony, gets involved or has sexual intercourse with another person to whom they are not legally married as a husband or a wife, it amounts to the offence of Adultery.

Cruelty

Cruelty could be a ground to attain a divorce. If either of the spouses treats others with cruelty, the victim could reach court for one-sided separation. Instances of cruelty could be:

1. fallacious allegation of adultery
2. Dowry demands
3. Denial of marital intercourse
4. Impotence
5. Drunkenness
6. Suicide threats
7. Wife’s writing false complaints to the employer of the husband
8. Incompatible temperaments
9. irretrievable breakdown of marriage

However, ordinary wear & tear of married life, wife’s refusal to resign her job, desertion per se and outbursts of temper without rancour would not amount to the cruelty.

Desertion

If either spouse refuses to observe the obligations of matrimony or abandons the other without any rational ground resulting in total repudiation of marital obligation, it is known as Desertion.

Conversion

If either of the Hindu spouses converts into another religion, it could be a ground for divorce.

Insanity

Divorce will be granted on the grounds of insanity if the petitioner proves that the accused is of unsound mind to the extent that the petitioner could not establish a marital union with the respondent.

Leprosy

Contagiousness of leprosy is a valid ground for divorce where the onus of proving this is on the petitioner.

Venereal disease

Communicable venereal disease is the valid ground for divorce.

Renunciation

“Renunciation of World” is a typical Hindu Notion. Person renouncing the world gets considered as civilly dead. Hence, it serves as a ground for divorce.

Presumption of Death

If a spouse is not seen or heard from for about seven years, the other spouse might believe such a spouse to be dead and hence, file a divorce petition.

In addition to the grounds above, divorce cases in India could also get filed on the grounds of no resumption of living together and no restitution of conjugal rights.

Likewise, the indigenous act of each religion governs the consented divorce in India.

Divorce Process in India

Indian Divorce Act provides the following two divorce procedures regarding the type of divorce to get observed. These procedures answer the question- How to apply divorce?

Procedure for Unconsented Divorce

• Drafting of Documents
• Spouse reviews and signing of documents
• Judgment of reviews and signing of documents
• Final decree

Procedure for Consented Divorce

• Filing of divorce documents
• Respond period ( 20 days)
• Case Management Conference (CMC)
• Discovery
• Judicial Trial
• Final decree

Documents required to file divorce

• Address proof of both the parties
• Marriage certificate or Invitation card of marriage or Picture of marriage
• Proof of separate living of the spouses for more than a year
• Details of earnings
• Details of assets owned by the petitioner.

How to get Divorce in India: Unfolding Indian Divorce Laws

India is the land of varied religions and communities. Each community is secular enough to have laws that would govern divorces within their community. However, the Special Marriage Act, a unified code, looks after the divorce concerning inter-religious or inter-caste marriages in India.

• The Hindu Marriage Act of 1955 concerns Hindus, Buddhists, Sikhs, and Jains
• The Indian Divorce Act 1869 looks after Christians.
• The Parsi Marriage and Divorce Act of 1936 governs Parsis
• Dissolution of Muslim Marriages Act of 1939 works out Muslim divorce.

These Acts contain provisions for both contested and unconsented divorce for their respective religion. Each Indian religion has its notion of marriage and divorce. They accordingly lay out a set of rules to govern divorces.

Divorce Petition for Hindus

Hindus believed their marriage to exceed significantly beyond a simple man-woman bond. They considered it as an eternal and sacramental bond. But even in Vedas, Kautilya accepted the practice of a woman abandoning her husband due to the following reasons:

• The husband’s character is questionable.
• He is a traitor
• Endangers his wife’s life
• Is an out-caste
• Lost his virginity

However, an unaffected wife could not be granted a divorce on the said grounds if her husband is unwilling. Further, rough Vedas, Kautilya permitted divorce due to desertion, cruelty, apostasy, impotence, and mutual consent. It made clear that even Vedas recognized women’s rights in an unhappy marriage.

In 1931, the first-ever statutory attempt to legalize divorce for Hindus occurred in The Divorce Act 1931. The Act permitted both the spouses to file a divorce petition on the grounds of:

• Impotence
• Adultery
• Bigamy
• Desertion
• Conversion
• Cruelty
• Intoxication
• Presumption of death
• Wife’s pregnancy at the time of marriage

Soon the Madras Act 1933 replaced the Divorce Act. The said Madras Act could only cope for two decades, and then a bold successor- Hindu Marriage Act 1955 replaced it. Since then, the said Hindu Marriage Act governs the issues on Hindu matrimony and is of utmost importance.

Until 2019, the Act recognized leprosy as a valid ground for divorce. However, the Personal Laws (Amendment) Bill of 2019 removed the disease from the grounds.

In addition to the grounds laid down under section 13(1) of the Hindu Marriage Act, section 13 (2) lays down special grounds to be used by women alone to initiate a divorce. These are:

• Pre- Act polygamous Marriage
• Guilty of Rape, sodomy, Bestiality
• Non-resumption of cohabitation after a decree of maintenance
• Repudiation of Marriage

Divorce Petition for Muslims

From the beginning, Muslims perceived marriage as a civil contract and accepted the dissolution of such a union. Therefore, the termination of the marital union under Muslim law could get divided into three heads:

Extrajudicial divorce

It again gets divided into three categories:

• Divorce at the instance of husband (Talaq)

  It further includes two types of dissolutions:

  a) talaq pronounced by the husband himself

  b) talaq delegated by the husband (talaq-i-tafweez).

• Divorce at the instance of the wife

  It includes-

  1. khula
  2. ila
  3. zihar
  4. Lian.
• Divorce by mutual consent (mubaraat)

Judicial separation

Judicial divorce

Muslim Personal laws allow both men and women to initiate divorce without knocking on the court’s door. However, with the Dissolution of the Muslim Marriage Act, the Muslim community could file for judicial separation and judicial divorce.

With the abolition of Tripple talaq, both Muslim men and women resort to judicial divorce through the Dissolution of Muslim Marriage Act. The Act states the following grounds on which Muslim women could seek divorce:

1. Husband missing for last four years
2. Husband did not provide maintenance for two years
3. Husband’s imprisonment for seven years or more
4. Husband failed to fulfil marital obligations for three years
5. Husband suffering from insanity or leprosy for two years
6. Impotent husband

Divorce Petition for Christians

Like Hindus, Christians also observe marriage as a sacred union and match made in heaven. The Matrimonial Cause Act 1857, enacted during British rule in India, recognized the termination of this sacrament for the first time.

The Act considered adultery as the sole ground of dissolution. After considerable efforts, even cruelty found a place on the list. Considering the rise in the number of cases, the need for extensive provisions could be felt. Therefore, in 1869 the then Governor-General enacted the Indian Divorce Act 1869, which would deal with the divorce petitions of Christian communities across India.

The Act premised the victorian era’s notion that remained for over a century until the Act could significantly get amended. As per 1983’s amendment, the Act contains the following grounds for Christian divorce:

Grounds for Husband

On the sole ground of adultery, a husband could initiate a petition of divorce against his wife.

Grounds for Wife

• Conversion to different religion by the husband for marrying another girl,
• Adultery
• Bigamy along with adultery
• Sodomy, rape or bestiality by the husband
• Cruelty along with adultery
• Adultery coupled with Desertion for two years and more

However, with the 2001 Amendment Act, these grounds became common to both spouses.

Divorce Petition for Parsi

A long battle of Parsi women for maintenance and restoration of Conjugal Rights resulted in the enactment of the Parsi Marriage and Divorce Act 1865. The Act governs the Parsi institution of marriage and divorce.

Since the mid-19th century, a plethora of Parsi Laws enacted most recent one being the Parsi Marriage and Divorce Act 1936 that lays down ten grounds for initiating the divorce petition by either spouse. The Amendment Act of 1988 added the divorce by mutual consent to the Act.

The grounds as per Parsi Act are:

• Non-consummation of marriage within one year due to defendant’s reluctance
• Insanity or unsound mind
• Wife’s pregnancy at the time of marriage with someone except the plaintiff
• Adultery, fornication, Bigamy, rape or unnatural offence
• Grievous hurt
• Forceful prostitution
• Imprisonment for seven years or more
• Conversion

Divorce Petition under Special Marriage Act

The Special Marriage Act concerns inter-caste and inter-religion marriages and governs the divorce and marriage institutions. Section 27(1) of the Act lays down the following grounds of divorce:

• Adultery
• Cruelty
• Desertion for a minimum of two years
• Imprisonment for seven or more years
• Communicable venereal diseases
• Insanity or unsound mind
• Presumption of Death

  Additionally, Section 27 (1A) lays ground to be solely used by women. These are:

• Guilty of Rape, Sodomy or Bestiality
• Non-resumption of cohabitation post the issuance of maintenance under section 125 of CrPC 1973

New rules for Divorce in India

Divorce law aims to reach and attain settlement and cohabitation between husband and wife. The couples unable to establish a peaceful and successful matrimonial union could seek divorce. Hence, divorce results in the termination of marriage and is a right against the world.

With changing marriage trends, the laws concerning divorce should also get amended to meet the necessity. The past few years saw dynamic changes in the legal provisions on divorce. In light of the same, few new laws include

Waiving of 6 Month Mandatory Period

As per section 13B(2) of the Hindu Marriage Act, 1955, the courts must grant six months for rehabilitation. The rationale behind such a period is to lead spouses towards reconciliation. However, while giving the landmark pronouncement of Akansha v. Anupam Mathur, the Apex Court made the reconciliation span of six months discretionary.

The discretion of waiving could occur when spouses peacefully decide and resolve their issues pertaining to alimony, child custody, maintenance and other vital matters.

Law of Maintenance

Section 25 of the Hindu Marriage Act, 1955 empowers the court to order the payment of maintenance. The Court could either set it monthly or a period as it deems fit.

The act’s objective is to assist the woman after the divorce to maintain the same standard of living. If the marriage is not as Hindu law, a woman would claim maintenance through the section mentioned above of CrPC.

Recently, the Supreme Court began to recognize Live-in relationships as marriages and stretched the veil of maintenance to such women. If cohabitation is for a long time, then strict proof might not be necessary. The sole motive is to broaden and empower women. The landmark pronouncement of Lalita Toppo v. the State of Jharkhand upheld the said eligibility.

Irretrievable Breakdown of Marriage

When it becomes difficult for the spouses to live together and fulfil their marital obligations, then they could seek irretrievable breakdown of marriage as grounds for divorce. Section 13 of the Act permits its usage.

Irretrievable breakdown of marriage is equivalent to separation. There is no particular law governing it.

The Supreme Court upheld its legality in the judgment of Sangamitra Ghose v. Kajal Kumar Ghosh. While exercising its power under Article 142 of the Constitution, it accepted it as a ground for divorce. Further, the Apex Court supported its reasoning by claiming that the divorce would only be the way out where there is no probability of the couple to get back after the breakdown.

Decriminalizing Adultery

Adultery would be the common ground for divorce amongst the personal laws in India. The unethical and immoral act attracts serious allegations. However, the Apex Court, in a landmark judgement, decriminalized adultery. It stated that punishing either one of the spouses or wife’s lover will not help save the marriage.

Though not punishable, it still serves to be a ground for divorce. Therefore, there stands no restriction to choosing a sexual partner even after marriage.

Unconstitutionality of Triple Talaq

The practice of triple talaq has been customary to the Muslim Law. The said practice has been unfavourable to the women. The pronunciation of ‘talaq’ ‘talaq’ ‘talaq’ served as a woman’s divorce. Therefore, while deciding Shayara Bano v. Union of India, the Apex Court concluded the petition by abolishing the practice of triple talaq.

The Triple talaq bill pending in the Parliament would govern the divorce under the Muslim community upon its enactment.

Christian Divorce

Through Molly Joseph v. George Sebastian, the Apex court clarified that personal laws could not override the law. Hence, the Court stated that the divorce decree for the Christian community should be from a Civil Court and not from the ecclesiastical tribunal as the divorce forms a right against the world at large.

Further, it added that after the divorce, as per personal laws, if such a person remarries, it would amount to bigamy. Therefore, only civil courts reserve the power to grant the divorce decree, irrespective of religion, caste, or community—such power vests in the Civil Courts under Section 18 of the Divorce Act, 1869, thereby taking away the powers of personal law courts.

Conclusion

India is a land of varied cultures, and communities have various personal laws governing divorce in India. The ethos of each religion or community differs. Therefore, it becomes a must to have unified authority to look after it. In India, civil courts serve the said purpose.

Divorce or Dissolution of Marriage entails the process of terminating a marital union. It usually involves cancelling or altering the legal duties and responsibilities of matrimony. Therefore, a divorce petition would dissolve the matrimonial association of a married couple as per the rule of law of the particular country or state.

Each Indian religion has its notion of marriage and divorce, which layout a set of rules to govern divorces; for instance:

• the Hindu Marriage Act of 1955 concerns itself with Hindus,
• Buddhists, Sikhs, and Jains,
• The Indian Divorce Act 1869 looks after Christians,
• the Parsi Marriage and Divorce Act of 1936 governs Parsis
• Dissolution of Muslim Marriages Act of 1939 works out Muslim divorce.

These Acts contain provisions for both consented and unconsented divorce for their respective religion.

But, these personal laws have always favoured the male community and suppressed women. The changes and introduction of new divorce provisions would change the scenario and guarantee equal power to the women in the marriage.