A Complete Overview of Divorce Laws/Rules in India

Comparison of Hindu, Muslim and Christian divorce law in India

The Divorce law in India was not codified for most religions until long ago. Hindu Males were allowed unlimited polygamy till 1955, and till 1939, a Muslim Woman could not seek divorce from her husband basis their laws. Every religion is governed by its own set of personal rules, and keeping in mind the set of laws, there are different divorce lawyers to deal with the cases.

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

Getting a divorce in due course of time is not easy, but to obtain your divorce quickly, it is essential to hire a good divorce lawyer who will understand your case more categorically and strategically,

Hindus/Sikhs/Jain/Buddhist

The Divorce rules in India are available under the Hindu Marriage Act as well as for people who come under the Special Marriage Act are as under:

1. Mutual Consent: If the parties have been staying apart for at least ONE YEAR and have not been able to cohabit and want to end the marriage, they can do so by approaching the 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 is no more a criminal offence as per the Apex Court, it is still a ground for Divorce rules in India. The burden of proof is based on preponderance of probability and is much easier to prove than in a criminal 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 (Husband or relative of husband of a woman subjecting her to cruelty: Proposed Section 84 of The Bharariya Nyaya Sanhita, 2023) 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. Venereal Disease – It is Divorce rule in India, 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.
7. Renunciation of the World – It is Divorce rule in India, if a spouse becomes a hermit/ has renounced the world and all relations; the other spouse can seek divorce. Divorce rule in India or divorce can be taken on 7 major grounds,
8. Not Heard Alive for Seven Years – It is Divorce rule in India, 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.
9. 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 Law in India

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 despite the first wife being alive, the first wife can seek a divorce.
3. A girl is entitled to file for a divorce if she was married before age fifteen and renounces the marriage before she attains eighteen years of age.
4. If there is no cohabitation for one year from when an order for maintenance u/s 18 of HAMA or CrPC 125 (CrPC 488 in older code) has been passed against the husband, the wife can seek divorce. (Please understand that this is a Final Order of maintenance and not an interim)

Muslims Divorce Law in India

In Muslim Marriage, the husband does not need any reason to seek divorce. There are various methods through which a Muslim male can seek talaq from his wife. A Muslim male can no longer give talaq by way of triple talaq as the same has been declared unconstitutional by the Supreme Court in Shayara Bano vs Union of India (2017) 9 SCC 1 and now constitutes a punishable offence with imprisonment up to 3 years.

Various Methods through which Muslim male can pronounce talaq are:

1. Talaq-ul-Sunnat/ Talaq-ul-raje It is further of two types:
   i) Ahasan
   ii) Hasan
2. Talaq-ul-Biddat/ Triple Talaq This talaq has been declared unconstitutional by the supreme Court.
3. Ila
4. Zihar

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

1. The husband’s whereabouts are unknown for four years.
2. The husband has not provided 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 ends the relationship before she turns eighteen.
6. The husband indulges in acts of cruelty.

Christians

Christian and Indian Divorce Act has the 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 seven or more years.
5. Failure to observe the restitution of conjugal rights for at least two years.
6. Inflicting cruelty and giving rise to mental anxiety that can be harmful to health and life.
7. The wife can file a divorce based on the grounds of conviction of her husband for rape, sodomy and bestiality, just like Hindu Marriage Act.