Comparison of Hindu, Muslim and Christian divorce laws in India

The laws in India related to Divorce were not codified for most religions till not a long time ago. Hindu Males were allowed unlimited polygamy till 1955 and till 1939 a Muslim Woman could not seek divorce from her husband basis their personal laws.

Amongst the talks of Uniform Civil Code in the background, which is in the eye with Supreme Court asking government views on the same; let us visit as the situation stands today; following are the grounds for divorce for various communities in India.

Hindus/Sikhs/Jain/Buddhist

The Grounds for Divorce available under Hindu Marriage Act as well as for people who come under Special Marriage Act are as under:

1. Mutual Consent: If the parties have been staying apart for atleast ONE YEAR and have not been able to cohabit and they want to end the marriage; they can do so by way of approaching court by mutual consent.

2. Gender Neutral Provisions under Contested Divorce:

1. Adultery – The act of indulging in voluntary sexual relationship/ intercourse outside marriage is termed as adultery. Though Adultery for males is a criminal offence too; but the burden of proofs are different. It being stricter in criminal case and based on preponderance of probability in Divorce Case.
2. Cruelty –  A spouse can file a divorce case when he/she is subjected to any kind of mental and physical cruelty by the other spouse. Judicial pronouncements have been adding newer and newer acts which are counted as Cruelty by the courts. Filing false 498a and other complaints has been termed as cruelty by the courts, but the falsity has to be proven first.
3. 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.
4. Apostasy– Incase either of the spouse converts himself/ herself into another religion, the other spouse may file a divorce case based on this ground.
5. Incurable 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. However, small mental ailments are not counted in the same. The degree for mental disorders have been held differently by different courts at different times.
6. Incurable Leprosy – In case of a ‘virulent and incurable’ form of leprosy, the other spouse can seek divorce.
7. 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. However, the spouse filing the case should not be the reason of the other spouse contracting the Venereal Disease.
8. Renunciation of the World – If a spouse becomes a hermit/ has renounced the world and all relations; the other spouse can seek divorce.
9. Not Heard Alive for Seven Years – 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. There is a misconception that no divorce decree is needed in such circumstances, but unless a divorce decree is sought, a remarriage would be termed as Bigamy and such bigamy charges can be filed by the second spouse as well.
10. No Resumption of Co-habitation after decree of RCR or Judicial Separation within ONE YEAR of passing of such decree.

3. Provisions only for Women under Contested Divorce

1. If the husband has been found guilty of rape, bestiality and sodomy.
2. 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.
3. 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.
4. If there is no co-habitation for one year from the date when an order for maintenance u/s 18 of HAMA or CrPC 125 (CrPC 488 in older code) has been passed against the husband, wife can seek divorce. (Please understand that this is Final Order of maintenance and not interim)

Muslims

In Muslim Marriage; husband does not need any reason to seek divorce and can be sought by uttering Triple Talaaq. The form of uttering Talaaq can differ as per the sect (Shia/ Sunni/ Ahmadia)

However Muslim woman can seek divorce on the following grounds for divorce in India.

1. The husband’s whereabouts are unknown for a period of four years.
2. The husband has failed to provide maintenance to the wife for at least two years.
3. The husband has been under imprisonment for seven or more years.
4. The husband is unable to meet the marital obligations.
5. If the girl is married before fifteen and decides to end the relationship before she turns eighteen.
6. The husband indulges in acts of cruelty.

Christians

Christian and Indian Divorce Act has following grounds.

1. Adultery
2. Conversion to another religion (Apostasy)
3. 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.
4. Not been seen or heard alive for the period of seven or more years.
5. Failure in observing the restitution of conjugal rights for at least two years.
6. Inflicting cruelty and giving rise to mental anxiety that can be injurious to health and life.
7. Wife can file a divorce based on the grounds of conviction of husband for rape, sodomy and bestiality just like Hindu Marriage Act.