In India, there are many laws for divorce. Here in this post Shri. Vishal Saini Advocate talks about the law for divorce in India for Hindus, But before proceeding its pertinent to mention that only a divorce lawyer handles the divorce case
What are the different types of laws regarding Divorce in India?
- For Hindus, Jains, Buddhists, and Sikhs – Hindu Marriage Act,1955
- Christians- The Indian Christian Marriage Act,1872/ Indian Divorce Act-1869
- Muslims – Personnel laws of Divorce/ Dissolution of Marriage Act,1939/ The Muslim Women (Protection of Rights on Divorce) Act,1986
- Parsis – The Parsi Marriage/ Divorce Act-1936
- Inter-religion or Inter-caste marriages – Special Marriage Act, 1954.
Who is Hindu?
The codified Hindu Law, which tells the legislature’s intention, lays down that a person who is not a Muslim, Parsi, Christian, or Jews is governed by Hindu Law.
Law for Divorce In India
Under the Hindu Marriage Act,1955 following are the grounds of divorce:-
- Fault Ground (section 13(1))
- Breakdown Ground (section 13(1A)(i), 13(1A)(ii))
- Divorce By Mutual Consent (section 13-B)
- Customary Divorce (section 29(2))
Fault Ground for divorce in India
Under the Hindu Marriage Act 1955, section 13(1), lays down nine fault grounds of divorce. Some of these are
Adultery is a voluntary physical relationship between two individuals who are not married to each other amongst whom both are wedded to someone else.
Reydon defines Adultery as “consensual sexual intercourse between a married person and a person of the opposite sex, not the other spouse, during the subsistence of marriage”.
The term adultery is further categorized into two types
A. Single adultery– If the relationship is between a married person and an unmarried person.
B. Double adultery– If both the partners involved are married to someone else and engaging in sexual intercourse with each other.
But this needs to be noted down if there is false allegations of adultery on one spouse on another and those allegations are not proven those can be ground for divorce for another spouse as held in Narendra V. K. Meena, 2016 9 Scc 455
In this case, court considers leveling of the absolutely false allegation and that too, with regard to an extramarital life to be quite serious and that can surely be cause for mental cruelty.
In Subbaramma v. Saraswati Court, it was held that one single act of adultery is enough for divorce or judicial separation.
In the same case, the court also held that “the unwritten taboos and rules of social morality in this country and particularly in village areas must be taken into account. If an unknown person is found alone with a young woman after midnight, in her apartment, in an actual physical juxtaposition, unless an excuse is given which is consistent with an innocent interpretation, the only conclusion that the Court of Justice can draw must be that the two have committed an act of adultery together”.
In explanation to sub-section (1) of Section 13, Hindu Marriage Act, 1955, the legislature explained Desertion: “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.” In other words, Desertion means permanent leave or forsaking of one spouse by the other without any sensible reason without the consent of the other.
For the offense of Desertion, so far as deserting a spouse is concerned, two essential conditions must be there
- the reality of the split and
- the desire to finally put an end to cohabitation (animus desired).
Similarly, two elements are essential so far as the deserted spouse is concerned:
- The lack of consent, and
- The lack of a valid cause of action for the partner leaving the marital home to render the required purpose referred to above.
Before 1976, Cruelty was not grounds for divorce, and it was just one of the grounds for judicial separation. By the Amendment Act, Cruelty is made a ground for divorce. It’s a course of conduct that adversely moves the opposite. Cruelty is also mental or physical, intentional or unintentional. The Oxford Dictionary defines The word “cruelty” as not being outlined, and it’s been utilized concerning human conduct or behavior. It’s the conduct concerning or in respect of marital status, duties, and obligations.
In the case of Smt. Nirmala Manohar Jagesha vs Manohar Shivram Jagesha, Apex Court held that “case for divorce, false, baseless, scandalous, malicious and unproven allegations made in the written statement may amount to cruelty to the other party and that party would be entitled to get a decree of divorce on that ground.”
Insanity is a prerequisite condition for a valid marriage as per Section 5 of the Hindu Marriage Act, 1955 which lays down conditions for a valid Hindu marriage.
The second condition of this provision provides three parameters, one of which should be possessed by neither of the parties at the time of their marriage.
1. Parties being restricted by unsoundness of mind to provide valid consent,
2. Parties are capable of providing valid consent but are suffering from mental disorders which can prohibit them from living a healthy married life and affect children’s procreation,
3. Parties are subjected to frequent insanity attacks.
Section (1)(iv) in the Hindu Marriage Act, 1955, Leprosy is grounds for divorce and judicial separation.
But for divorce under Section (1)(iv) in Hindu Marriage Act, 1955, Leprosy must be in the form of
- Virulent and
a mild form of Leprosy which is capable of treatment is neither ground for divorce nor judicial separation
6. Verenal Disease
Section 13(V) of the Hindu Marriage Act, 1955 provides ground for divorce against communicable Venereal Disease.
7. Conversion, Or Renunciation of the world
Under provisions of the Hindu Marriage Act, Section (13)(1) clause (ii), divorce orders may be obtained if the respondent converted from Hindu to another Religion and ceased to be a Hindu. Under the clause, two conditions must be satisfied:
- Respondent has ceased to be a Hindu, and
- He has converted to another religion
Ceased to be Hindu means a person converted to a non-Hindu faith such as Parsis, Islam, Christianity, or Zoroastrianism. A person does not cease to be Hindu if he converted to Jain, Buddhism, or Sikhism because Sikh, Jain, or Buddhist by religion is a Hindu.
In Short form in India married couple can get a divorce in two ways (i.e. Contested Divorce and mutual divorce)
- Contested Divorce –Contested divorce in India reflects a particular situation wherein one spouse has finally decided to proceed with the divorce, and the other spouse doesn’t agree with such a thing the above procedure explains contested divorce in India.
- Mutual Divorce –Where both Spouses agree to divorce. So Petition for mutual divorce can also be filled.
As the name suggests, a mutual consent divorce is when the husband and wife want to terminate the marriage. It is a decision taken by mutual consent; hence, the process is much smoother than divorce by other means. As per the Hindu Marriage Act, 1955, both spouses have the right to file for the dissolution of their marriage. Furthermore, the Act also allows both parties to file for a mutual consent divorce together.
As per Section 13B of the Hindu Marriage Act, 1955, the following conditions must be met to file for a mutual divorce.
(i) Both spouses must live separately for at least one year.
(ii) Both spouses feel that they cannot live together.
(iii) Both the husband and wife mutually agree that their marriage has collapsed
(iv) Both parties agree to comply and file jointly for a mutual divorce without any undue influence, bribe, or fraud
FAQ ( FREQUENTLY ASKED QUESTIONS)
- What are the New rules for divorce in India in 2022?
After a petition has been filed to obtain a divorce by mutual consent, the parties must wait for a minimum period of 6 months and not more than 18 months. In conclusion, the law has laid down the appropriate provisions for enabling the parties to obtain a divorce. You should hire the best divorce lawyers in India.
2. India Law for divorce
In India, couples can get a divorce from 2 options that are mutual divorce and contested divorce.
3. Best lawyer for Divorce in India?
Best Advocate can’t be defined in single words. A lot of facts need to be considered you must refer to this article
4. How to live separately without divorce in India?
Indian law has made different conventions where if one couple wants to live separately without filing for divorce, they can do so. This is called judicial separation in legal terms, and it has been mentioned under section 10 of the Hindu Marriage Law.
5. What is Indian Law for Divorce?
Under the Hindu Marriage Act,1955 following are the grounds for divorce
:- Fault Ground for divorce (section 13(1))
Breakdown Ground (section 13(1A)(i), 13(1A)(ii))
Divorce By Mutual Consent (section 13-B)
Customary Divorce (section 29(2))
- How to get a Fast divorce in India?
- Hindu Marriage Act, 1955