Divorce

What is Divorce

Divorce is derived from the Latin word ‘divortium’ which means ‘to separate’. It refers to the legal dissolution of marriage, terminating all the duties and responsibilities arising from it. Divorce is a legal process provided in the form of a remedy granted by the court after filing a petition by either spouse, provided that the grounds for divorce fulfil the requirement as specified in the relevant laws. India is a diverse country having different religions. The provisions of divorce are governed by the personal laws of different religious communities.

Official Definition of Divorce

Divorce as defined in legislations

Divorce in Indian demography can be broadly categorised as Statutory and Customary. Statutory divorce is governed by codified personal laws. It includes both contested and Mutual consent divorces. Contested divorce is where one spouse alleges a marital offence of another. Grounds for contested divorce are specified under various personal laws including The Hindu Marriage Act,1955, the Dissolution of Muslim Marriage Act, 1939, the Indian Divorce Act,1869, the Parsi Marriage and Divorce Act,1936. While, in cases of mutual consent divorce, the legal requirements and separation periods across the above mentioned laws vary but generally require joint petition and a prior period of separation. In contrast, customary divorce is based on traditional practises under law, such as Talaq in Muslim Law or long-standing tribal or community customs. India also has the Special Marriage Act, 1954 which is a secular statute which address matters of marriage and Divorce. It provides for provisions that include interfaith and civil marriages.

Legal provisions relating to Divorce

The Hindu Marriage Act, 1955

The Hindu Marriage Act, 1955, provides the grounds for divorce mentioned under Section 13. The grounds mentioned under section 13(1) and (1-A) are available to both husband and wife.

Grounds for Divorce for both the spouses

Section 13(1) stipulates grounds for divorce available for both the spouses. They are as follows:

• Adultery: where the party is involved in sexual intercourse with any person other than his or her spouse.
• Cruelty: where the petitioner is treated with cruelty by the other party.
• Desertion: when one party abandoned the other party for not less than 2 years.
• Conversion: where one party has converted to some other religion.
• Mental Disorder: where one party is suffering from an incurable mental disorder or unsoundness of mind and is of such extent that the petitioner is unable to live together with the respondent.
• Venereal Disease: disease in a communicable form that can be transmitted to the other party by touch, using each other's object and through intimate physical relationship.
• Renunciation of World: where the other party renounced the world by entering any religious order.
• Presumed Dead: where the whereabouts of another person are not known for 7 years.

Post-Decree Non-Compliance as Ground for Divorce

Non-compliance of either the decree of Judicial separation or Restitution of Conjugal rights will also amount to divorce, if the following conditions are satisfied as per Section 13 (1)A.

• No Resumption of Cohabitation: where there is no cohabitation between husband and wife for one year or more after passing of the judicial separation decree.
• No Restitution of Conjugal Rights: when there is no restitution of conjugal rights between husband and wife for one year or more after passing the decree of restitution of conjugal rights.

Additional grounds available only for the wife

In addition to the existing grounds, there are certain grounds only available for the wife as per Section 13(2) of the Act.

• Bigamy: where the husband has a spouse or multiple living at the time of marriage and any one of the wives can seek divorce by filing a petition in the court for bigamy, provided that all the marriages are legal, that means marriage happened before the act came and all the wives are alive.
• Rape, Sodomy, Bestiality: where the husband is guilty of rape, sodomy and bestiality, and all these offences are criminalised under Bharatiya Nyaya Sanhita.
• Non cohabitation after Maintanance Order: when a decree under section 18 of the Hindu Adoption and Maintenance Act, 1956 and order under section 144 of Bharatiya Nagrik Suraksha Sanhita, 2023, is passed against the husband to give maintenance to the wife and if there is no cohabitation by the husband to wife within 1 year after passing of decree or order, the wife can file for divorce.
• Repudiation of Marriage: when the girl is married before attaining fifteen years of age, she can reject the marriage after she attains fifteen years but before she attains the age of eighteen years.

Divorce in Muslim Personal law

Divorce in Muslim Personal Law is not codified like others. However, divorce can be divided into three types. Unilateral divorces available to both husband and wife, divorce by mutual consent and by judicial decree. Divorce by judicial decree is governed by the Dissolution of the Muslim Marriage Act, 1939. Under Islamic personal law, a husband can only pronounce the Talaq, and a mere indication is sufficient to dissolve the marriage, and there are no provisions for a husband to divorce his wife. Islam has a system of unilateral divorces for both the spouses.

Types of unilateral divorce initiated by husband

1. Talaq-ul-sunnat: This talaq is divided into two forms Talaq-e-Ahsan, which is the best and most proper form of Talaq, consists of a single declaration between the Tuhr period. And Talaq-e-Hasan is a good and proper form of Talaq, and in this form, the husband must say it three times in a row.
2. Talaq-ul-biddet: this is also referred to as triple Talaq and it was considered unconstitutional by the Supreme Court in the case Shayara Bano vs Union of India; after that, it was criminalised under the Muslim Women (Protection of Rights on Marriage) Act, 2019, in Section 3, which states that the pronouncement of talaq-e-biddat is illegal and void.
3. Ila: In Ila, the husband takes an oath that he will never have sexual intercourse with his wife for four months.
4. Zihar: when the husband compares his wife to a female in a prohibited degree or mother

Types of unilateral divorce initiated by wife

1. Talaq-e-Tafweez is a form of divorce by the wife under a power delegated to her by her husband.
2. Khula, a practice rooted in Islamic law, grants Muslim women the autonomy to seek separation from their spouses independently. It is explicitly sanctioned in the Quran, aimed at upholding the rights of women within the bounds of Islamic jurisprudence. The procedure entails the wife initiating the divorce by formally petitioning the court, citing valid reasons such as irreconcilable differences, mistreatment, or abandonment. Throughout the 'Khula' process, there exists the option for the woman to either return the 'Mehr' or come to a financial arrangement with her husband as part of the divorce settlement.

Divorce by mutual consent

Mubarat/Mubara is when both parties agree to dissolve the marriage by mutual consent. These are all non-judicial divorces in which there is no need to approach the court.

The Dissolution of Muslim Marriage Act, 1939

In judicial divorce, it is granted by the court by the decree under the Dissolution of Muslim Marriage Act, 1939, on the grounds given under Section 2 of the act, which are:

1. If the husband is missing for four years, the wife can file for a divorce. After sending notice to the husband's heirs, a six-month observation period follows. If the husband appears and assures the court he will fulfill his marital duties, the divorce can be granted.
2. If the husband can't support his wife for two years, it doesn't matter if he doesn't want to or can't do it, the wife can ask for a divorce.
3. If the husband is sentenced to seven years or more in prison for a crime, the wife can only seek a divorce after the final judgment. The husband must be convicted under the offense in section 2, proviso (a) for the divorce decree to be granted.
4. If the husband neglects marital duties for three years without a valid reason, the wife can file for divorce.
5. If the husband is impotent, the wife can divorce him if the impotence is permanent and incurable. The husband can prove his potency to the court within one year.
6. If the husband is insane for two years and also has a severe sexually transmitted disease, the wife can file for divorce.
7. If a girl marries before she is fifteen, she can refuse the marriage when she turns fifteen but before turning eighteen.
8. If a husband mistreats his wife in these ways, he can seek a divorce: - If the wife is mentally or physically abused. - If the husband is involved with a woman of bad reputation. - If the husband pressures the wife into immoral behavior. - If the husband takes away the wife's property or rights. - If the husband stops the wife from practicing her religion. - If the husband has multiple wives and does not treat them equally according to the Quran.

Lien is also one of the judicial grounds covered under the act where the wife can seek divorce which says when the wife is falsely charged with adultery by her husband.

The Divorce Act, 1869

This Divorce Act governs divorce among Christians in India. Section 10 of the act provides grounds for divorce, which are:

Adultery, conversion to another religion, unsound mind for not less than two years and it is incurable, suffering from venereal disease in communicable form for not less than two years, not heard for seven years or more, willingly refusing to consummate the marriage, failure to comply with the decree of restitution of conjugal rights for two years, guilty of desertion for two years or more.

Section 10A of this act provides divorce by mutual consent and the party filing must live separately for not less than two years.

The Parsi Marriage and Divorce Act, 1936

Section 32of the Parsi Marriage and Divorce Act, 1936 provides grounds for the dissolution of marriage, which states as:

1. If the marriage has not been consummated within one year due to wilful refusal of the other party.
2. If the other party was of unsound mind at the time of the marriage and continues to be so up to the date of filing the suit, provided that the plaintiff must be unaware of the mental illness at the time of the marriage and must file within three years of the date of marriage.
3. The defendant was pregnant at the time of the marriage by some other person than the plaintiff, provided that the plaintiff was unaware at the time of marriage and filed a suit within two years of the date of marriage and did not have marital intercourse after finding out the fact.
4. If either spouse commits adultery or fornication or bigamy or rape or an unnatural force, the other spouse can file for divorce.
5. If the defendant has inflicted grievous hurt on the plaintiff or has inflicted their reputation.
6. If the defendant has since the marriage voluntarily caused grievous hurt to the plaintiff or infected with the venereal disease to the plaintiff or if the defendant is the husband, compelled his wife to submit herself for prostitution.
7. If the defendant has been sentenced to imprisonment for seven years or more for an offence under Bhartiya Nyaya Sanhita (BNS).
8. If the defendant has deserted for not less than two years.
9. An order has been passed against the defendant by a magistrate awarding separate maintenance to the plaintiff, and the parties have not had marital intercourse for one year since the decree or order was passed.
10. If the defendant has converted to another religion and a suit is filed within two years after finding out of the conversion.

As per section 32-A if there is no resumption of cohabitation or restitution of conjugal rights between the parties to a marriage for one year after the passing of the decree, and no decree of divorce be granted if the plaintiff(husband) fails to comply an order of maintenance passed against him under section 40 of this act or section 144 of Bhartiya Nagarik Suraksha Sanhita, 2023.

Section 32-B talks about divorce by mutual consent when both parties together file a petition and were living separately for one year.

Secular Provisions relating to Divorce

The Special Marriage Act, 1954

The Special Marriage Act, 1954 is a secular initiative that governs marriages and divorces of different religion, caste or nationality. Divorce under this act allows parties to dissolve their marriage irrespective of the religious personal law. The grounds for divorce are given under section 27 of this act, which states:

1. If the defendant had committed adultery.
2. If the plaintiff has deserted for not less than two years.
3. If the defendant has been sentenced to imprisonment for seven years for an offence under Bhartiya Nyaya Sanhita, 2023.
4. If the petitioner is treated with cruelty.
5. If the defendant is of unsound mind which is incurable.
6. If the defendant is suffering from venereal disease in a communicable form.
7. When the defendant is not heard for seven years.
8. If there is no resumption of cohabitation between the parties for one year after passing the decree of judicial separation.
9. If there is no restitution of conjugal rights between the parties for one year after passing the decree of RCR.

Section 27(1-A) gives extra grounds to the wife, which are:

1. If the husband is guilty of rape, sodomy, and bestiality.
2. If the husband fails to comply with an order of maintenance under section 18 of the Hindu Adoption and Maintenance Act, 1956 or section 144 of Bhartiya Nagarik Suraksha Sanhita, 2023.

Section 28 of the act provides divorce by mutual consent that the petition shall be filled together by both parties in the district court and at the time of filing the petition the parties must live separately for one year or more, after six months of filing the petition and before eighteen months both the parties make motion together seeking decree of divorce.

Divorce as defined in official government reports

71st Law Commission report

This report titled The Hindu Marriage Act, 1955 - Irretrievable Breakdown of Marriage as a Ground for divorce, recommends introduction of another ground of irretrievable breakdown of marriage in The HinduMarriage Act, 1955. Additionally, it goes on discussing the pros and cons of such a ground and safeguards required.

217th Law Commission Report

This report titled, Irretrievable Breakdown of Marriage - Another Ground for Divorce, urge the inclusion of this principle in the Hindu Marriage Act of 1955 and the Special Marriage Act of 1954. Define the concept as a scenario where, despite all efforts, the marriage cannot be salvaged, thus rendering reconciliation unfeasible. Statutory divorces predominantly operate under a fault-based system, requiring one spouse to demonstrate the wrongdoing of the other. Courts take into account various factors such as prolonged separation, unsuccessful counseling or mediation, lack of cohabitation, the nature of disagreements, and prior judicial involvement before they can make a decision. This approach acts as a no-fault solution recognizing irreparable marriages, providing courts with the flexibility to intervene in exceptional circumstances where statutory reasons are insufficient.

Divorce as defined in case laws

Irretrievable breakdown of marriage

Shipla Sailesh v. Varun Sreenivasan, 2023

In the case of Shilpa Sailesh v. Varun Sreenivasan used its power under Article 142 to grant divorce. The court, “has the discretion to dissolve the marriage by passing a decree of divorce by mutual consent, without being bound by the procedural requirement to move the second motion.” To determine whether a marriage is irretrievably broken down the court stipulated several factors that needs to be considered as follows; “the period of time the parties had cohabited after marriage; when the parties had last cohabited; the nature of allegations made by the parties against each other and their family members; the orders passed in the legal proceedings from time to time, cumulative impact on the personal relationship; whether, and how many attempts were made to settle the disputes by intervention of the court or through mediation, and when the last attempt was made, etc.”

Naveen Kohli v. Neelu Kohli, 2006

• The Supreme Court in the above case determined the marriage in question had irretrievably broken down. Specifically so, that there was no chance of reconciliation because of the Respondent's cold treatment of the Appellant and her refusal to grant a divorce by mutual consent. The fact that the parties had been living apart for ten years, and the fact that both parties had filed multiple criminal and civil lawsuits. Reasoning behind this was that, people cannot coexist after experiencing brutality, making accusations against one another, or bringing legal action against one another. Additionally, the court in this case recommended; "the Union of India to seriously consider bringing an amendment in the Hindu Marriage Act, 1955 to incorporate irretrievable breakdown of marriage as a ground for the grant of divorce."

Cruelty as a Ground for Divorce

Dr. N.G. Dastane vs Mrs. S. Dastane, 1975

In this case, the court ruled that the appellant must prove cruelty not beyond reasonable doubt but by preponderance of probability. Laid down that a reasonable apprehension of harm constitutes cruelty. Additionally remarked that revival of condoned cruelty will not be recognised by the court.

Permanent Alimony in cases of Irretrievable breakdown

Pravin Kumar Jain vs Anju Jain, 2024

The Honourable court in this case adjudicated on the quantum of maintenance and permanent alimony under the Hindu Marriage Act, 1955. Th marriage in this case had irretrievably broken down, by excercising its extraordinary jurisdiction under Article 142 of the Indian Constitution to dissolve the marriage. Eight vital factors was enumerated for determination of alimony/maintenance, as follows:

1. Social and financial status of the spouse.
2. Basic needs for the future of the spouse and children.
3. Educational background and current work situation of the spouse.
4. Income sources and property owned.
5. Standard of living if spouse during the subsistence of marriage.
6. Sacrifices made by the spouse during the marriage.
7. Legal cost for the spouse without independent income.
8. Financial capacity of the spouse, encompassing income, liabilities, and obligations.

The 2-Judge Bench of the Supreme Court, with Justice Vikram Nath and Justice Prasanna B Varale presiding, granted the wife a one-time permanent alimony of Rs. 5 Crores, along with Rs. 1 Crore allocated for the son's maintenance. This judgment highlights the importance of a comprehensive evaluation to secure equity and respect for the spouse with less financial means.

Divorce under Muslim Personal Law

Shayara Bano v. Union of India and Ors., 2017

The court in this landmark judgment addressed the issue of whether the practice of talaq-e-bidat (specifically, instant triple talaq) is an essential part of Islam. And whether  the practice of Triple Talaq violates any fundamental rights? In a 3:2 split decision, the Supreme Court ruled that talaq-e-biddat (instant triple talaq) was'manifestly arbitrary' and unconstitutional. The dissenting judges, Chief Justice Khehar and Justice Nazeer argued that the Right to Religion protected talaq-e-biddat and that enacting legislation to regulate the practice was Parliament's responsibility.In July 2019, Parliament passed the Muslim Women (Protection of Rights on Marriage) Act, 2019, which criminalized talaq-e-biddat and imposed a three-year prison sentence. In August 2019, Jamiat Ulama-I-Hind, Samastha Kerala Jamiathul Ulema, and the President of the Rashtriya Ulema Council filed petitions with the Supreme Court challenging the law. The Court, however, has yet to begin hearing arguments on the matter.

Mohammed Arif Ali Vs. Afsarunnisa and Ors., 2025

The issue in this case is regarding the validity of the wife's unilateral divorce through Khula and whether such a divorce requires the husband's consent or formal approval from religious authorities. The Telangana High Court enumerated that, the wife's right to demand Khula is absolute and does not have to be predicated on a cause or acceptance of the demand by the husband, the only role of a Court of law is to put a judicial stamp on the termination of the marriage, which then becomes binding on both parties.

Admissibility of secret recordings in martial disputes

Vibhor Garg v. Neha, 2025

The Supreme Court in this case held that secretly recorded phone calls between spouses are admissible in matrimonial disputes, such as divorce proceedings. The court further clarified that such evidence does not violate the right to privacy under Article 21 when used between the spouses themselves. It also ruled that Section 122 of the Indian Evidence Act (now Section 121 of the Bharatiya Sakshya Adhinayam ) does not bar marital communications in such cases. The decision underscored that revalvence and authenticity, not consent, govern admissibility of such recordings.

Slight differences and nuances in the concept

Judicial separation as an alternative for divorce

Section 13A of the Hindu Marriage Act, 1955 allows the courts the discretion to grant alternate relief in the form of judicial separation. This is applicable only when the petition is based on grounds specified in clauses (ii), (vi), and (vii) of section 13(1). The court may issue such a decree for judicial separation if it deems it just and appropriate based on the facts of the case. Judicial separation does not dissolve the marriage but suspends marital obligations offering legal space for resolution. Unlike divorce, it preserves the marital bond, allowing time for reconciliation. It carries legal consequences, such as maintenance, child custody, and property decisions, while keeping the door open for future cohabitation or permanent separation.

Irretrievable Breakdown of Marriage

Divorce is either mutual consent or fault-based grounds. But, ‘Irretrievable breakdown of marriage’, on the other hand, is a ground which the Court can examine and if the Court, on the facts of the case, comes to the conclusion that the marriage cannot be repaired/saved, divorce can be granted. The main principle behind is that, once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be harmful to society and injurious to the interest of the parties. Divorce cannot be granted on this basis if the party seeking it is found to be at fault. A decree of divorce on the grounds of irretrievable breakdown may be issued in cases where both parties have made mutual allegations against each other, rendering the marriage effectively unviable and demonstrating that reconciliation is unlikely. Only the Supreme Court can pass a decree of divorce on the ground of irretrievable breakdown of marriage. Since, none of the existing legislations pride such a ground.

Annulment in the context of child marriages

Under Section 3 of the Prohibition of Child Marriage Act, 2006, child marriages are not void but voidable according to the Act. This makes them legally valid unless annulled by the party who was a minor at the time. This remedy is available to both boys and girls and must be exercised within two years of attaining majority. Unlike divorce, which addresses the breakdown of marriage, annulment here operates as a statutory tool to nullify a marriage that lacked full legal consent from the outset. A key distinction between annulment and divorce lies in the legal foundation of the marriage. While divorce dissolves a valid marriage, annulment challenges whether the marriage should have existed in the first place. In essence, a divorce ends a legally valid marriage but an annulment means the marriage was never legally valid.