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.

'Divorce' in Legislations

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.

Section 13(1) -

• 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.

Section 13(1A) -

• 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 mentioned under section 13(2) are only available to women, which are:

• 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.

Section 13A 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.

The Dissolution of Muslim Marriage

This statutory law empowers Muslim women seeking divorce because, in Islamic personal law, all the divorce rights are delegated to the men; these rights are derived from the holy book of the Quran. 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. The husband can pronounce Talaq in one of the ways:

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.

Talaq-e-Tafweez is a form of divorce by the wife under a power delegated to her by her husband. 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. Section 2(i): When the husband is missing for four years then a divorce petition is filed by the wife and sends notice to the heirs of the husband given under section 3 of this act. Under the proviso (b) of Section 2, it is given that the decree of divorce is operative after a six-month observing period and if the husband, by himself or through an authorised agent, appears and satisfies the court that he would perform his conjugal duties.
2. Section 2(ii)- when the husband is unable to maintain her wife for two years, it is immaterial whether he is willing or unable to do so, the wife can seek divorce.
3. Section 2(iii)- when the husband has been sentenced to imprisonment for seven years or more for an offence the wife can seek divorce provided that the decree shall not be passed before the final judgement, and the husband must be convicted under the offence given under proviso (a) of section 2.
4. Section 2(iv)- when the husband does not perform his marital obligation for three years without any reasonable cause the wife can seek divorce.
5. Section 2(v)- when the husband is impotent, she can file for divorce provided that the impotence is permanent and incurable. Under proviso (c) of section 2 the husband can apply his potency in the court and satisfy the court within one year.
6. Section 2(vi)- when the husband has been suffering from insanity for two years and the husband's disease also includes a virulent venereal disease the wife can seek divorce.
7. Section 2(vii)- when the girl was given in marriage by her father or guardian before she was fifteen years of age she can reject the marriage when she attains fifteen years of age and before eighteen years of age.
8. Section 2(viii)- when the husband treats her wife with cruelty, and this is further sub-categories under this clause and seeks divorce under this clause:
   1. When a wife has been assaulted, mentally or physically tortured and ill-treated.
   2. When the husband is associated with a woman whose reputation is looked down upon in society and leads an infamous life.
   3. When the husband forces his wife to indulge in immoral activities and leads an unethical lifestyle.
   4. When the husband forcefully disposes of her wife's property or prevents her from exercising her legal rights over it.
   5. When the husband obstructs his wife from performing or practising her religious duties.
   6. When the husband has more wives than one and does not treat her equally as per instructions given in 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 law 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 32 of the act 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

The Special Marriage Act, 1954

This law 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.

Types of Divorce

Statutory Divorce

Statutory divorce refers to the dissolution of marriage through legal provisions mentioned under codified law. This is further divided into two parts: contested divorce and divorce by mutual consent.

Contested Divorce

A contested divorce is a form of divorce where one party to the marriage seeks divorce due to the other party's marital offense. It is also referred to as fault-based divorce because one spouse is at fault, and the other spouse must prove that the fault committed is specified in the applicable law. There are grounds defined for divorce where if a party falls under any one of the following grounds, he/she has committed a matrimonial offense and is prosecuted in court.

Grounds for divorce defined under different personal laws:

• The Hindu Marriage Act of 1955 governs the Hindus including Jain, Buddhists and Sikhs. Under this act, section 13 defines the grounds for divorce.
• The Dissolution of Muslim Marriage Act, of 1939 made for Muslim women to safeguard their divorce rights. Section 2 defines the grounds where a muslin woman can seek divorce.
• The Indian Divorce Act of 1869 governs Christians in India. Section 10 provides grounds for divorce.
• The Parsi Marriage and Divorce Act of 1936 defines grounds for divorce under section 32.
• The Special Marriage Act of 1954 provides grounds under section 27.

Divorce by Mutual Consent

In this kind of divorce, both parties to the marriage willingly agree to end the marriage and both parties jointly file a petition to the court to dissolve their marriage. In India, the provisions for divorce by mutual consent are outlined in different legislation, which are:

• The Hindu Marriage Act of 1955 governs the Hindus including Jain, Buddhists and Sikhs. Under this act, section 13B defines divorce by mutual consent and the parties file a petition after living separately for one year and before granting the decree the give a six-month waiting period for reconciliation.
• The Indian Divorce Act of 1869 governs the Christians in India. Section 10A provides divorce by mutual consent and parties must live separately for two years.
• The Parsi Marriage and Divorce Act of 1936 defines mutual consent divorce under section 32B, and parties must live separately for one year.
• The Special Marriage Act of 1954 provides under section 28 after one year of living separately.

Customary Divorce

Customary divorce refers to the dissolution of marriage by customs and traditions that are prevalent throughout history and are followed from generation to generation and it must be established by law. The Hindu Marriage Act, 1955 recognizes customary divorce under section 29(2), and it must be ancient, continuous, certain and must not be against public policy. In Muslim law Talaq is considered customary divorce as it has been followed for a long time. Some tribal communities follow customary divorce.

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.

The 71st Law commission report explicitly recommends introduction of another ground of irretrievable breakdown of marriage in Hindu Marriage Act, 1955. Additionally, it goes on discussing the pros and cons of such a ground and safeguards required. The 217th Law commission report [1] also recommends incorporating irretrievable breakdown of marriage under Hindu Marriage Act, 1955 and Special Marriage Act, 1954.

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.

Case Laws

1. Shipla Sailesh v. Varun Sreenivasan -The Supreme Court 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.”
2. Naveen Kohli v. Neelu Kohli - The Supreme Court determined that the marriage had irretrievably broken down and that there was no chance of reconciliation because of the Respondent's cold treatment of the Appellant, 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."
3. Dr. N.G. Dastane vs Mrs. S. Dastane - 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.
4. Shayara Bano v. Union of India and Ors. - 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.