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Hindu, Muslim and Christian Divorce Laws in India

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 other alternative.

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

  1. 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:
    • Adultery

      The 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.
       
    • Cruelty

      A 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.
       
    • Desertion

      If 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.
       
    • Conversion

      In case either of the two converts himself/herself into another religion, the other spouse may file a divorce case based on this ground.
       
    • Mental Disorder

      Mental 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.
       
    • Leprosy

      In case of a ‘virulent and incurable’ form of leprosy, a petition can be filed by the other spouse based on this ground.
       
    • Venereal Disease

      If 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 venereal diseases
       
    • Renunciation

      A spouse is entitled to file for a divorce if the other renounces all worldly affairs by embracing a religious order.
    • Not Heard Alive

      If 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-habitation

      It becomes a ground for divorce if the couple fails to resume their co-habitation after the court has passed a decree of separation.

      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 divorce.
         
  2. 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 two years.
    • 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.
         
  3. Grounds for Divorce under the Indian Divorce Act, 1869

    The following are the grounds of divorce mentioned under the Indian Divorce Act, 1869.
    • Adultery
    • 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 the divorce.
    • 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 years.
    • 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 bestiality.
       
  4. 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 marriage.
    • 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 sexual act.
    • 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.
Conclusion
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.

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