Mutual Divorce

Divorce in India

Divorce laws specify the grounds on which a decree for divorce may be obtained by a party to the marriage in India

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Divorce laws

(l) Any Any marriage which is solemnized, whether before or after the commencement of the Hindu marriage Act, may be Dissolved by a decree of divorce, by either the Husband or the wife presenting the petition on the following grounds:
(i) Firstly having had voluntary sexual intercourse with any person other than his or her spouse

(ia) Secondly has treated the petitioner with cruelty after marriage; or

(ib) Thirdly: has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or

(ii) Fourthly has changed is religion and has ceased to be a Hindu by conversion to another religion; or

*(iii) has been incurably of 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-
(a) the expression "mental disorder" means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;

(b) the expression "psychopathic disorder" 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 other party, and whether or not it requires or is susceptible to medical treatment; or

(iv) has been suffering from a virulent and incurable form of leprosy; or (v) has been suffering from venereal disease in a communicable form; or (vi) has renounced the world by entering any religious order; or
(vii) 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 it, and that party been alive;

Explanation.- In this sub-section, the expression "desertion" means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the willful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly;

(lA) Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce 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; or
(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.

(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground,-
(i) in the case of any marriage solemnized before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner;
Provided that in either case the other wife is alive at the time of the presentation of the petition; or
(ii) that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality; or
(iii) that in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956, or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (or under the corresponding section 488 of the Code of Criminal Procedure, 1898), a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards; or
(iv) that her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.

Explanation.-This clause applies whether the marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act 1976.

1. Corresponding law. This section corresponds to s. 27 of the Special Marriage Act 1954, s. 10 of the Divorce Act 1869 and s. 32 of the Parsi Marriage and Divorce Act 1936.

2. Object and scope. The object of this section is to specify the grounds on which a decree for divorce may be obtained by a party to the marriage. This Act is the first Central legislative interference in the customary law of divorce among Hindus. It provides for the grounds of divorce. This section has two parts, the first part dealing with the right of divorce by either party to the marriage, and the second part dealing with the right of divorce by the wife only. The first part of this section places both the husband and the wife on equal footing so far as the right of divorce is concerned. The second part places the wife in a privileged position for the purpose of divorce. The ground of divorce as specified in sub-secs. (1) and (3) of s. 13 are identical to those of judicial separation under s. 10 of the Act. Thus, s. 10(1) and sub-secs. (1) and (2) of s. 13 stand on the same and one legal platform.

The Act protects the customary divorce which is outside its scope and not dealt with in specific terms. This will be evident from the provision of s. 29(2) of the Act. It is enough for the exception in s. 29(2) of the Act to operate to prove that there has been as a fact such a customary divorce or dissolution of a Hindu marriage. It is necessary for the parties to such a divorce or dissolution of the Hindu marriage to go again before the court under s. 10 or s. 13 of the Act and obtain sanction of the court in order that this divorce or dissolution may be rendered valid. The words "Nothing contained in this Act shall be deemed to affect any right" in s. 29(2) of the Act clearly indicate the limited scope of s. 13 of the Act, limited in sense that it will not override the provisions in special enactments conferring right to obtain dissolution of the Hindu marriage.

In P.C. Prema vs A.P. Sreekumar the Supreme Court held that the marriage between the parties was rightly under s.7 of the Madras Marumakkathayam Act 1933 and the husband was directed to pay rupees one lakh as ex gratia compensation to the wife.

Lord Denning in Landmarks in the Laws has observed: There is no longer any binding knot for marriage. There is only a loose piece of string which the parties can untie at will. Divorce is not a stigma. It has become respectable. One-parent families abound".

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