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. Earlier divorce was unknown to general Hindu law as marriage was
regarded as an indissoluble union of the husband and wife. Manu declared that a
wife cannot be released by her husband either by sale or by abandonment,
implying that the marital tie cannot be severed in any way. Although Hindu law
does not contemplate divorce yet it has been held that where it is recognized as
an established custom it would have the force of law.
Divorce Under Hindu Marriage Act,1955
In the Hindu Marriage Act, there are some provisions given regarding a valid
divorce, i.e. when the spouse can get divorce or appeal for dissolution of
marriage in the court of law. For the interest of the society, the marriage or
the marital relationship needs to be surrounded by every safeguard for the cause
specified by law. Divorce is permitted only for a grave reason otherwise given
The Hindu Marriage Act is based on the fault theory in which any one of the
aggrieved spouses (Section 13(1)) can approach the court of law and seek the
remedy of divorce. Section 13(2) provides the grounds on which only the wife can
approach the court of law and seek the remedy of divorce.
Grounds Of Divorce
Grounds for Divorce under the Hindu Marriage Act, 1955 The following are the grounds for divorce in India mentioned under the Hindu
Marriage Act, 1955:
AdulteryThe act of indulging in any kind of sexual relationship
including intercourse outside marriage is termed as adultery. Adultery is
counted as a criminal offence and substantial proofs are required to
establish it. An amendment to the law in 1976 states that one single act of
adultery is enough for the petitioner to get a divorce.
CrueltyA spouse can file a divorce case when he/she is subjected to any kind
of mental and physical injury that causes danger to life, limb and health. The
intangible acts of cruelty through mental torture are not judged upon one single
act but series of incidents. Certain instances like the food being denied,
continuous ill treatment and abuses to acquire dowry, perverse sexual act etc
are included under cruelty.
DesertionIf one of the spouses voluntarily abandons his/her partner for at
least a period of two years, the abandoned spouse can file a divorce case on the
ground of desertion.
ConversionIn case either of the two converts himself/herself into another
religion, the other spouse may file a divorce case based on this ground.
Mental DisorderMental disorder can become a ground for filing a divorce if
the spouse of the petitioner suffers from incurable mental disorder and insanity
and therefore cannot be expected from the couple to stay together.
LeprosyIn case of a ‘virulent and incurable’ form of leprosy, a petition can
be filed by the other spouse based on this ground.
Venereal DiseaseIf one of the spouses is suffering from a serious
disease that is easily communicable, a divorce can be filed by the other
spouse. The sexually transmitted diseases like AIDS are accounted to be
RenunciationA spouse is entitled to file for a divorce if the other renounces
all worldly affairs by embracing a religious order.
Not Heard AliveIf a person is not seen or heard alive by those who are
expected to be ‘naturally heard’ of the person for a continuous period of seven
years, the person is presumed to be dead. The other spouse should need to file a
divorce if he/she is interested in remarriage.
No Resumption of Co-habitationIt becomes a ground for divorce if the couple
fails to resume their co-habitation after the court has passed a decree of
The following are the grounds for divorce in India on which a petition can be
filed only by the wife
- If the husband has indulged in rape, bestiality and sodomy
- If the marriage is solemnized before the Hindu Marriage Act and the husband has
again married another woman in spite of the first wife being alive, the first
wife can seek for a divorce.
- A girl is entitled to file for a divorce if she was married before the age of
fifteen and renounces the marriage before she attains eighteen years of age.
- If there is no co-habitation for one year and the husband neglects the judgment
of maintenance awarded to the wife by the court, the wife can contest for a
Grounds for Divorce under the Dissolution of Muslim Marriage act,
1939 Based on the Dissolution of Muslim Marriage Act, 1939, a Muslim woman can seek
divorce on the following grounds for divorce in India.
- The husband’s whereabouts are unknown for a period of four years
- The husband has failed to provide maintenance to the wife for at least
- The husband has been under imprisonment for seven or more years.
- The husband is unable to meet the marital obligations.
If the girl is married before fifteen and decides to end the relationship before
she turns eighteen.
- The husband indulges in acts of cruelty.
Grounds for Divorce under the Indian Divorce Act, 1869 The following are the grounds of divorce mentioned under the Indian Divorce Act,
- Conversion to another religion
- One of the couples suffering from an unsound mind, leprosy or
communicable venereal disease for at least two years before the filing of
- Not been seen or heard alive for a period of seven or more years.
- Failure in observing the restitution of conjugal rights for at least two
- Inflicting cruelty and giving rise to mental anxiety that can be
injurious to health and life.
- Wife can file a divorce based on the grounds of rape, sodomy and
Grounds for Divorce under the Parsi Marriage and Divorce Act, 1936 (Amendment
1988)The following are the grounds for divorce in India included in the Parsi
Marriage and Divorce Act, 1936 and the amendment of the same in 1988.
- Continuous absence of seven years
- Non-consummation of marriage within one year.
- Unsound mind provided the other spouse was unaware of the fact at the
time of marriage and the divorce must be filed within three years of
- Pregnancy by some other man, provided the husband was unaware of the
incident during the time of marriage and that he must not have undergone
sexual intercourse after he came to know about the situation. The divorce
must be filed within two years of marriage
- Adultery, bigamy, fornication, rape, or any other type of perverse
- Act of cruelty
- Suffering from venereal disease or forcing the wife into prostitution.
- Sentenced to prison for seven years or more
- Desertion for two or more years
- Non-resumption of cohabitation after passing an order of maintenance or
a decree of judicial separation.
The Hindu Marriage Act, 1955 provides various provision regarding divorce. The
Hindu Marriage Act defines “Divorce as a Dissolution of Marriage”. The main
three theories related to divorce are Fault Theory, Mutual Consent Concept, and
irretrievable theory. In India, the Fault theory works in the matter of the
divorce. Under this theory, marriage can be ended when one of the spouses is
responsible or liable for the offence under matrimonial offences. The innocent
spouse can seek the remedy of divorce.
Under the Hindu Marriage Act, the basic grounds on which the Hindu women can
seek the remedy of divorce are Adultery, Desertion, Conversion, Leprosy, Cruelty
etc. But many philosophers criticise the concept of Divorce. The Hindu married
women can also apply for the maintenance under section 125 of the Criminal
procedure code. So the spouse who is innocent can approach the court and can
seek the remedy of divorce.