Types of Divorce in India

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1. INTRODUCTION

Divorce is the legal process of ending a marriage, allowing both partners to live separately and move on with their lives. In India, marriage is a sacred institution that is regulated by various civil and religious regulations in addition to being a personal bond. However, when a marriage becomes difficult due to conflicts, misunderstandings, or other serious issues, divorce can be a necessary step.

In addition to the Special Marriage Act for interfaith or civil marriages, India has a number of laws pertaining to marriage and divorce that are based on many religions, including Hindu, Muslim, Christian, and Parsi laws. Since marriage is seen as an important part of life, divorce is often considered the last option. if you’re seeking professional lawyer help then get in touch with divorce lawyer in bangalore to handle your problem. The legal process for getting a divorce depends on the type of marriage law that applies to a couple.

Depending on the couple’s technique and the grounds for their separation, divorce in India can take many forms. Religious laws also play a role in defining how a divorce can take place. For example, Hindu law allows divorce based on fault grounds like cruelty, desertion, and adultery, while Muslim law has different types of divorce, such as Talaq and Khula. Christian and Parsi laws also have specific rules for ending a marriage.

Couples can make more educated decisions about their future by being aware of the many forms of divorce that are available in India. This article explores the various types of divorce in India, their legal procedures, and the rights of individuals during this process.

2. DIVORCE UNDER DIFFERENT PERSONAL LAWS

In India, many personal laws based on religion regulate marriage and divorce. Since marriage is seen as both a social and religious institution, each community follows its legal system for divorce. To ensure fairness, the Indian legal system has separate laws for Hindus, Muslims, Parsis, Christians, and interfaith marriages. The guidelines for separation, divorce, and the rights of both couples are outlined in these statutes. Each of these personal laws provides a legal pathway for individuals to seek divorce in a way that respects their religious customs while ensuring fairness and justice.

2.1 THE HINDU MARRIAGE ACT, 1955

This legislation applies to Buddhists, Hindus, Jains, and Sikhs. It offers two divorce procedures: contentious divorce and divorce by mutual consent. In a mutual consent divorce, both partners agree to separate peacefully, making the process simpler and faster. When one partner applies for divorce on the grounds of cruelty, adultery, desertion, mental illness, or religious conversion, the divorce is contested. The law guarantees that each spouse has an equal opportunity to argue their case in court.

2.2 DISSOLUTION OF MUSLIM MARRIAGE ACT, 1939

Muslim divorce laws are based on religious principles, and marriage is considered a contract. A Muslim man can end his marriage through Talaq, which can be given instantly or over some time. Other forms of divorce include Ila (where the husband takes an oath not to cohabit with his wife) and Zihar (where he compares his wife to a relative whom he cannot marry).

Muslim women can seek divorce through Khula, where they willingly give up certain rights, or Faskh, where they ask a court to dissolve the marriage due to cruelty, desertion, or failure to provide support. This law was created to ensure that Muslim women have the legal right to leave an unhappy marriage.

2.3 PARSI MARRIAGE AND DIVORCE ACT, 1936

In India, Parsi marriage and divorce are governed by this legislation. It permits divorce on certain conditions, such as abuse, desertion, adultery, mental illness, or a spouse who has been missing for more than seven years. Parsis must file for divorce in a Special Parsi Matrimonial Court, which ensures that both partners have a fair hearing. This law has strict procedures, making divorce a serious legal matter among the Parsi community.

2.4 DIVORCE ACT, 1869

This law applies to Christians in India. It permits divorce for reasons like as cruelty, desertion, infidelity, or a partner’s religious conversion. Under this act, Christian spouses must provide strong evidence to prove the reason for divorce. The process can be lengthy and challenging, as the law aims to preserve marriage unless there is a serious issue.

2.5 SPECIAL MARRIAGE ACT, 1954

This law applies to interfaith and civil marriages, where individuals from different religions or those who do not follow any particular religion get married. It allows for divorce on the basis of desertion, cruelty, or adultery, or by mutual consent. Since this law is meant for marriages outside religious traditions, it follows a secular legal process that treats both partners equally.

3. DIVORCE BY MUTUAL CONSENT

A legal procedure known as “divorce by mutual consent” occurs when a husband and wife decide to end their marriage amicably. It is the simplest and quickest way to get a divorce, as there is no need for long court battles. The Hindu Marriage Act of 1955, the Special Marriage Act of 1954, and the Parsi Marriage and Divorce Act of 1936 are among the laws in India that provide divorce by mutual consent.

Both couples must agree that they can no longer live together and have lived apart for at least a year in order for a mutual consent divorce to be granted. They also need to settle important matters like child custody, financial support (alimony), and property division before filing for divorce.

The process involves two steps:

First Motion: The couple files a joint petition in court, stating that they want a divorce. The court records their statements and gives them six months to reconsider.
Second Motion: After six months, if they still want a divorce, they appear in court again, and the judge grants the divorce.

The six-month waiting period may be waived under certain circumstances. Mutual consent divorce is a stress-free and respectful way for couples to separate without unnecessary conflict.

4. CONTESTED DIVORCE

When one partner wants a divorce while the other does not, it is called a contentious divorce. It can also occur when both partners want a divorce but cannot agree on issues like child custody, alimony, or property division. In such cases, the court decides whether the divorce should be granted based on the facts and legal grounds presented.

Laws like the Hindu Marriage Act of 1955, the Special Marriage Act of 1954, the Divorce Act of 1869 (for Christians), and the Parsi Marriage and Divorce Act of 1936 permit contentious divorce in India. The partner filing for divorce must prove one or more legal reasons, such as:

Cruelty – Physical or mental harm by the spouse.
Adultery – Having an extra-marital affair.
Desertion – Leaving the spouse without reason for at least two years.
Mental illness – If the spouse has a severe, incurable mental disorder.
Conversion of religion – If one partner changes their religion.
Untraceable spouse: This refers to a spouse who has been absent for seven years or more.

A contested divorce takes longer and involves court hearings, evidence, and witness statements. It can be emotionally stressful and expensive. However, it provides legal protection to those suffering from an unhappy or harmful marriage.

5. LAWS OF DIVORCE IN DIFFERENT RELIGIONS

5.1 TYPES OF DIVORCE UNDER HINDU LAW (CONTESTED DIVORCE)

Divorce is the legal process of ending a marriage, allowing both partners to separate and lead independent lives. Marriage, according to Hindu law, is a lifelong, sacred union. The Hindu Marriage Act, of 1955, does, however, include legal options for divorce in situations where the relationship becomes unreasonable.

A contested divorce happens when one spouse wants a divorce but the other disagrees, or when they are unable to agree on matters such as property division, alimony, or child custody. The court decides whether the divorce should be granted based on legal grounds and evidence.

5.1.1 GROUNDS FOR CONTESTED DIVORCE UNDER HINDU LAW

The Hindu Marriage Act, of 1955 allows divorce on certain legal grounds.

5.1.1.1 ADULTERY (Section 13(1)(i))

When a married person voluntarily has intercourse with someone other than their spouse, it is considered adultery. One spouse may file for divorce if the other can be shown to have cheated on them.

Example:
A husband discovers that his spouse has been seeing another man. He collects proof such as call records, messages, and photos and presents them in court as evidence. The court, after verifying the proof, grants him a divorce.

Case Law: Joseph Shine v. Union of India (2018)
In India in the past, adultery was a criminal penalty. But in this instance, the Supreme Court decided that adultery is still a legitimate reason for divorce even though it is no longer a felony.

5.1.1.2 CRUELTY (Section 13(1)(ia))

Cruelty can be physical or mental. Physical cruelty includes violence, beating, or physical harm, while mental cruelty includes constant insults, humiliation, false accusations, or refusal to have a marital relationship.

Example:
A wife’s husband physically and psychologically abuses her and harasses her constantly. She files for divorce, presenting medical reports and witness statements as proof of cruelty. Her divorce is granted by the court.

Case Law: Shobha Rani v. Madhukar Reddi (1988)
According to the Supreme Court, mental cruelty is a legitimate reason for divorce. In this case, a wife suffered from emotional torture due to her husband’s behavior. The court recognized her suffering and granted her a divorce.

5.1.1.3 DESERTION (Section 13(1)(ib))

Desertion means that one spouse leaves the other without any reason or consent for at least two years. The abandoned spouse can file for divorce.

Example:
A husband leaves his wife and does not contact her for two years. The wife waits but eventually files for divorce, proving that he deserted her without any valid reason. The court grants her the divorce.

Case Law: Bipin Chandra Jaisinghbhai Shah v. Prabhavati (1957)
According to the Supreme Court, desertion denotes the irreversible termination of unjustified cohabitation. The abandoned spouse has to demonstrate that the separation was deliberate.

5.1.1.4 CONVERSION OF RELIGION (Section 13(1)(ii))

If one spouse changes their religion, the other may file for divorce.

Example:
A Hindu wife converts to Islam and starts following Islamic customs. The Hindu husband, unwilling to live in the changed situation, files for divorce. The court granted him a divorce based on religious conversion.

Case Law: Suresh Babu v. Leela (2006)
According to a ruling by the Kerala High Court, divorce may result from a spouse’s conversion to a different religion without their agreement.

5.1.1.5 MENTAL ILLNESS OR UNSOUND MIND (Section 13(1)(iii))

One spouse may file for divorce if the other spouse cannot live with their spouse due to a severe, incurable mental disease.

Example:
A wife suffers from a serious mental disorder that makes her aggressive and violent. The husband, unable to live safely with her, files for divorce and presents medical reports as evidence. He is granted a divorce by the court.

Case Law: Alka Sharma v. Abhinesh Chandra Sharma (1991)
The Supreme Court held that mental illness must be so severe that it affects married life to be considered a ground for divorce.

5.1.16 LEPROSY (Section 13(1)(iv))

Earlier, if one spouse suffered from incurable leprosy, the other could seek divorce. However, in 2019, leprosy was removed as grounds for divorce due to medical advancements.

Example:
Prior to 2019, a wife could file for divorce from a husband who had acute leprosy. But now, due to better treatments, this ground is no longer valid.

Case Law:
Earlier, in the case of Ammini E.J. v. Union of India (1995), the court ruled that leprosy should not be a reason to discriminate against a spouse.

5.1.1.7 VENEREAL DISEASE (Section 13(1)(v))

If a spouse has an incurable and contagious sexually transmitted disease (STD), the other spouse can seek divorce.
Example: A husband contracts an incurable STD. The wife, fearing for her health, files for divorce. The court grants it based on medical proof.

Case Law: M. v. M. (2008)
The Bombay High Court ruled that incurable venereal disease can justify divorce if it poses a risk to the other spouse.

5.1.1.8 RENUNCIATION OF THE WORLD (Sannyasa) (Section 13(1)(vi))

One spouse may seek for divorce if the other renounces all family duties and becomes a monk or nun..

Example:
A husband becomes a sannyasi and moves to a religious monastery, abandoning his wife. The court grants the wife’s request for a divorce.

Case Law: Sital Das v. Sant Ram (1954)
The Supreme Court recognized that renouncing the world means giving up all marital duties, making divorce valid.

5.1.1.9 SPOUSE MISSING FOR SEVEN YEARS (Section 13(1)(vii))

If a spouse has been missing for at least seven years and cannot be found, the court can declare them legally dead, allowing the other spouse to remarry.

Example:
A wife’s husband disappears, and she files a police complaint. After seven years, with no sign of him, she files for divorce. The court grants her request.

Case Law: Laxmi Devi v. Anil Kumar (2003)
The court held that continuous absence for seven years is enough to presume death and grant divorce.

5.1.2 SPECIAL GROUNDS FOR DIVORCE FOR WOMEN (Section 13(2))

Under Hindu law, both men and women have the right to seek divorce based on certain legal grounds. However, recognizing the challenges that women may face in marriage, the Hindu Marriage Act, of 1955, provides additional grounds for divorce that are exclusively available to Hindu women under Section 13(2). These provisions ensure that women have the legal right to end a marriage in situations where they are subjected to unfair treatment, cruelty, or other difficult circumstances.

Below are the special grounds on which a Hindu woman can file for divorce:

5.1.2.1 HUSBAND’S BIGAMY (SECOND MARRIAGE)

Marriage under Hindu law follows the principle of monogamy, meaning that a person can have only one spouse at a time. If a Hindu man marries another woman while his first wife is still alive and their marriage is legally valid, the first wife has the right to seek divorce. Bigamy (having more than one spouse at the same time) is illegal under the Hindu Marriage Act.

Example:
Neha and Rohan have been married for five years. One day, Neha finds out that Rohan has secretly married another woman without legally divorcing her. She feels betrayed and emotionally hurt. Since Hindu law does not allow bigamy, Neha can file for divorce on this ground.

Legal Case:
In the case of Smt. Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav (1988), the Supreme Court ruled that a second marriage by a Hindu man, while his first wife is still alive, is not legally valid. Divorce is a right that belongs to the first wife.
This law protects women from being abandoned or treated unfairly when their husbands enter into illegal second marriages.

5.1.2.2 DOWRY HARASSMENT

Dowry refers to money, property, or gifts demanded by the husband or his family from the wife’s family at the time of marriage or later. The Dowry Prohibition Act of 1961 forbids the practice of dowries in India. If a husband or his family mistreats a wife, abuses her, or puts pressure on her to bring more dowry, she has the right to file for divorce.
Dowry harassment can take many forms, including:

Physical abuse (hitting, burning, or harming the wife)
Mental torture (continuous insults, threats, or emotional abuse)
Pressure to bring more money or expensive gifts from her family

Example:
Pooja was married to Arjun, and her parents gave gold and cash during the wedding as per tradition. A few months later, Arjun and his family started demanding more money. When Pooja’s parents were unable to fulfill these demands, Arjun started verbally and physically abusing her. Tired of the cruelty, Pooja decided to file for divorce based on dowry harassment.

Legal Case:
According to the Supreme Court’s 1988 decision in Shobha Rani v. Madhukar Reddi, dowry harassment is a legitimate reason for divorce. If a husband or his family pressures the wife for dowry and treats her cruelly, she has every right to end the marriage legally.
This law protects women from suffering in marriages where they are treated like financial burdens rather than equal partners.

5.1.2.3 HUSBAND’S RAPE, SODOMY OR BESTIALITY

If a husband forces his wife into rape, unnatural sexual acts (sodomy), or sexual acts with animals (bestiality), the wife can seek a divorce. A husband does not have the authority to coerce his wife into engaging in any sexual behavior against her choice just because they are married. Any form of sexual violence is considered cruelty and can be used as a reason to end the marriage.

Example:
Meera’s husband, despite her refusal, forces her into sexual activities that are painful and unnatural. He refuses to respect her consent. Meera feels violated and traumatized. Since the law recognizes forced unnatural sexual acts as a form of cruelty, Meera can file for divorce.

Legal Case:
In Gaurav Jain v. State of Bihar (2016), the court ruled that forcing a wife into unnatural sexual acts is a serious offense and is a valid ground for divorce. Women have the right to refuse any sexual activity that makes them uncomfortable, even within marriage.
This law ensures that women are not trapped in marriages where they face sexual abuse and cruelty.

5.1.2.4 CHILD MARRIAGE: RIGHT TO REPUDIATE MARRIAGE

The Prohibition of Child Marriage Act of 2006 makes child marriage unlawful in India. However, in some cases, girls are married at a very young age due to social or family pressures. To protect such women, Hindu law allows a girl who was married before the age of 15 to end the marriage after turning 18.

This provision ensures that girls who were forced into child marriages have the right to make their own decisions once they become adults.

Example:
Due to pressure from her family, Radha got married when she was fourteen years old. She was too young to comprehend marriage and had little influence over the situation. She made the decision to leave the marriage when she reached eighteen. Under Hindu law, Radha can file for divorce and start her life afresh.

Legal Case:
In Lila Gupta v. Laxmi Narain (1978), the court recognized that marriages performed before the legal age can be challenged once the girl becomes an adult. The law gives women the choice to leave a marriage they never consented to as minors.
This provision protects young girls from being trapped in child marriages that were forced upon them by their families.

5.2 MUTUAL DIVORCE UNDER HINDU LAW

When one spouse applies for divorce and the other disagrees, a legal struggle ensues, which is known as a disputed divorce. On the other hand, mutual divorce is a peaceful process where both partners agree to separate without any disputes. Section 13B of the Hindu Marriage Act, which permits a couple to end their marriage with mutual consent, covers this kind of divorce.

Mutual divorce is the preferred option for many couples because it is faster, less expensive, and avoids unnecessary conflicts. Unlike contested divorce, where one spouse must prove reasons like cruelty or adultery, mutual divorce does not require any blame or accusations.

5.2.1 CONDITIONS FOR MUTUAL DIVORCE UNDER SECTION 13B

For a couple to obtain a mutual divorce, the following conditions must be met:

Before filing for divorce, the couple must have been living apart for at least a year and both spouses must consent to the split, which should not be coerced.
They must agree on all important matters, such as child custody, alimony (financial support), and division of property.
The court must be convinced that there is no chance of reconciliation and that the marriage has irreparably broken down.

If these conditions are fulfilled, the couple can proceed with the divorce process.

5.2.2 PROCEDURE FOR MUTUAL DIVORCE

The following procedures are involved in getting a mutual divorce:

STEP 1: FILLING A JOINT PETITION

Both partners must submit a joint petition for divorce in the family court.
This petition should specify that they are no longer able to live together as husband and wife after living apart for at least a year.
Their agreement on financial assistance, property distribution, and child custody must also be included.

STEP 2: FIRST MOTION HEARING

The court reviews the petition to ensure that both spouses are seeking divorce willingly and without any pressure.
The couple must appear before the judge to confirm their statements.
If the court is pleased, it notes their remarks and approves the initial divorce motion.

STEP 3: COOLING OFF PERIOD

After the first motion, the couple must wait for six months before proceeding to the next step.
The goal of this waiting period is to allow the couple to change their minds.
The petition can be withdrawn, and they can stay married, if they decide to change their minds.

STEP 4: SECOND MOTION HEARING

The court records the couple’s last remarks if they still want to move on with the divorce; if not, they must return to the court to confirm their decision after six months.
If the judge is convinced that the marriage has completely broken down, they grant the divorce decree, officially dissolving the marriage.

5.2.3 IMPORTANT CASE LAWS ON MUTUAL DIVORCE

5.2.3.1 SURESHTA DEVI V. OM PRAKASH (1991)

The Supreme Court ruled that both spouses must continue to agree to the divorce until the final decree is issued.
If one spouse changes their mind before the second motion, the court cannot grant a divorce.

5.2.3.1 AMARDEEP SINGH V. HARVEEN KAUR (2017)

The Supreme Court ruled that there is no requirement to wait six months.
Both spouses may ask the court to waive this time frame if they are confident in their choice.

5.3 DIVORCE BY CUSTOM

Divorce by custom means that if a certain community or caste has a tradition of allowing divorce, it will be legally recognized even if it is not specifically mentioned in the Hindu Marriage Act. However, the person claiming divorce through custom must prove that such a tradition has been continuously followed, is reasonable, and is not against public policy.

5.3.1 REQUIREMENTS FOR A VALID CUSTOMARY DIVORCE

For a customary divorce to be recognized, the following conditions must be met:

The custom must be ancient – It should have been followed for a long period and not be a recent practice.
The custom must be certain and clear – It should be well-known in the community and followed without confusion or dispute.
The custom must be continuously followed – It should not have been discontinued at any point.
It should not be against public policy – Customs that go against morality, justice, or public welfare cannot be recognized.

5.3.2 EXAMPLES OF CUSTOMARY DIVORCE

5.3.2.1 TRIBAL COMMUNITIES

Certain tribal groups in India have long recognized divorce as a common practice. For example:

In some Gond and Bhil tribes, divorce is granted through mutual consent, where both parties agree to separate.
In Santhal and Oraon tribes, marriages are often dissolved in front of village elders, who conduct a customary divorce ceremony.

5.3.2.2 CERTAIN CASTE PRACTICES

Some lower-caste communities in South India have followed a tradition where divorce is granted by the panchayat (village council).
Divorce was traditionally accepted in some Rajput communities under certain circumstances, such as the inability to conceive.

5.3.2.3 DIVORCE THROUGH CUSTOMARY RITUALS

In some communities, certain rituals mark the end of a marriage:

The wife or husband may return the mangalsutra (sacred wedding necklace) or ceremonial clothes in front of family members, symbolizing the end of marriage.
Some customs require written agreements, where both spouses sign a document in the presence of witnesses, declaring their separation.

5.4 TYPES OF DIVORCE IN ARYA SAMAJ

Arya Samaj marriages are conducted based on Vedic rituals, but when it comes to divorce, they follow the Hindu Marriage Act, of 1955, as Arya Samaj does not have a separate legal system for marriage dissolution.

When a marriage cannot be maintained because of irreconcilable differences or legal grounds, divorce is seen as a last choice. Arya Samaj divides divorce into two primary categories:

Mutual Divorce: When both couples decide to end their relationship amicably.
Contested Divorce: This occurs when one partner files for divorce for legal grounds.

Each type follows specific legal conditions and procedures.

5.4.1 MUTUAL DIVORCE (Section 13B of Hindu Marriage Act, 1955)

Mutual divorce occurs when both husband and wife agree that they cannot live together and decide to separate amicably. In Arya Samaj, it is the quickest and most straightforward method of divorce.

5.4.1.1 CONDITIONS FOR MUTUAL DIVORCE

For a minimum of a year, the couple must be living apart.
They must both agree that their marriage is beyond repair.
A joint petition must be filed in court.
A six-month waiting period is in place before the divorce is completed to allow for reconciliation.

5.4.2 CONTESTED DIVORCE (Section 13 of Hindu Marriage Act, 1955)

When one spouse wants a divorce while the other does not, it is called a contentious divorce. In this situation, the party requesting a divorce must provide the court with legitimate justification.

5.4.2.1 LEGAL GROUNDS FOR CONTESTED DIVORCE

The following are acceptable grounds for divorce under the Hindu Marriage Act:

CRUELTY: A spouse’s physical or psychological abuse. includes emotional abuse, humiliation, insults, and domestic violence. Example: A wife is constantly insulted and beaten by her husband. She files for divorce with medical reports as proof.
DESERTION: For a minimum of two years, one spouse separates from the other without a good reason. For instance, a spouse leaves his wife and never comes back. The woman has the right to divorce.
ADULTERY: The other spouse may file for divorce if one of them engages in extramarital affairs. Example: A husband is caught having an affair. His wife files for divorce with evidence.
CONVERSION TO ANOTHER RELIGION: The other spouse may file for divorce if one of them converts to a different religion. Example: A Hindu wife converts to Islam and stops following Hindu customs. The husband can file for divorce.
MENTAL ILLNESS: if one partner suffers from a severe mental illness that prevents them from becoming a married couple. Example: A wife has an incurable mental illness that affects daily life. The husband presents medical proof and files for divorce.
INCURABLE DISEASE: Diseases like leprosy or HIV/AIDS can be grounds for divorce. Example: A husband contracts an incurable disease, and the wife files for divorce.
RENUNCIATION: The other spouse may file for divorce if one of them gives up their material life to become a monk or nun. Example: A husband renounces family life to become a saint. His wife files for divorce.
PRESUMPTION OF DEATH: The other spouse may seek for divorce if one of the spouses has been absent for seven years or more. Example: A husband disappears, and after 7 years, his wife seeks legal divorce.

5.4.2.2 SPECIAL GROUNDS FOR DIVORCE FOR WOMEN

Women in Arya Samaj marriages have extra rights for divorce, including:

If the husband is bigamy, meaning he has another wife.
if the husband has committed rape, sodomy, or bestiality.
If a woman was married before 15 and seeks divorce after turning 18.

5.5 TYPES OF DIVORCE UNDER MUSLIM LAW

Divorce, or Talaq, in Muslim law, is the legal dissolution of marriage between a husband and wife. Islam considers marriage a sacred contract, but it also allows divorce if the relationship becomes unworkable. Islamic jurisprudence, the Quran, and Hadith serve as the foundation for Islamic divorce laws.
The various forms of divorce recognized by Muslim law can be roughly divided into three groups:

Divorce by Husband (Talaq)
Divorce by Wife (Talaq-e-Tafweez and Khula)
Divorce by Mutual Agreement or Judicial Process (Mubarat and Faskh)

Each type follows specific procedures and legal conditions.

5.5.1 DIVORCE MY HUSBAND (TALAQ)

The husband has the right to dissolve the marriage by pronouncing Talaq. Under Muslim law, talaq can take several forms:

Talaq-e-Sunnat (Approved Form of Talaq): This is the traditional and preferred method of divorce in Islam. It allows time for reconciliation before the final divorce. It has two types: Talaq-e-Ahsan and Talaq-e-Hasan.
Talaq-e-Biddat (Instant Divorce – Now Declared illegal)

5.5.2 DIVORCE BY WIFE

Although traditional Islamic law gives more power to the husband in divorce, a wife can also seek divorce under certain conditions.

Talaq-e-Tafweez (Delegated Divorce): The husband can delegate his right to divorce to his wife or a third person through an agreement (Nikahnama). This gives the wife the right to end the marriage if any of the terms stated in the contract are broken. Example: If the husband takes another wife or fails to provide maintenance, the wife can use Talaq-e-Tafweez to divorce him.
Khula (Divorce by Wife’s Request): If a wife wants a divorce but the husband refuses, she can seek Khula. The wife returns the Mahr (dower) or any financial settlement to obtain the divorce. The husband’s consent is generally required, but courts can intervene if he refuses unjustly. After Khula, the wife must observe Iddat before remarrying.

5.5.3 DIVORCE BY MUTUAL AGREEMENT

When both husband and wife mutually agree to separate, divorce can take place in the following ways:

Mubarak (Mutual Divorce): Both partners concur that they don’t want to stay married.Either party can initiate the process, and once accepted by the other, the divorce is immediate and final. The wife may or may not return the Mahr, depending on mutual agreement. The woman still has to observe the Iddat time.
Divorce by judicial process: If the husband refuses to grant a divorce and the wife is suffering due to his actions, she can seek divorce through the court. This process is called Faskh.

5.5.4 OTHER FORMS OF DIVORCE IN MUSLIM LAW

LIAN (False Accusation of Adultery): If a husband falsely accuses his wife of adultery without proof, the wife can seek divorce. This is based on Quranic principles that protect women from false accusations.
ILA (Vow of Abstinence): If a husband takes an oath not to have marital relations with his wife for four months or more, the wife can seek divorce.
ZIHAR (Comparing Wife to Mother/Sister): If a husband declares his wife as forbidden to him (like his mother or sister), she can seek divorce. This practice is condemned in Islam and requires atonement (Kaffara).

5.5 TYPES OF DIVORCE UNDER CHRISTIAN LAW

The Indian Divorce and Christian Marriage Acts of 1869 and 1872, respectively, regulate Christian divorces in India.
Under Christian law, divorce can be categorized into two main types:

Divorce by Mutual Consent
Contested Divorce

Both types have specific legal requirements and procedures.

5.5.1 DIVORCE BY MUTUAL CONSENT

Mutual consent divorce is the simplest and most peaceful way to end a marriage. A mutual consent divorce can be filed when both parties agree that their marriage is failing and that they want to officially separate. The following requirements must be met in order for a divorce to be granted by mutual consent:

Both the husband and the wife must agree to dissolve a marriage; the couple must have lived apart for a minimum of two years prior to filing for divorce.
Prior to submitting the petition, they need to resolve matters including property distribution, alimony, and child custody.

5.5.2 CONTESTED DIVORCE

When one spouse wants a divorce while the other does not, it is called a contentious divorce. Under the Indian Divorce Act of 1869, the spouse requesting a divorce in such circumstances must provide precise legal justification. The following grounds may be used by a Christian spouse to initiate a disputed divorce:

ADULTERY: The other spouse may seek for divorce if one of the spouses is unfaithful and has an affair outside the marriage. The petitioner must prove adultery with solid evidence like messages, photos, or witness testimony. Case Law: In Russell v. Russell (1897), the court ruled that clear evidence of adultery is required for divorce under Christian law.
DESERTION: Desertion occurs when one spouse abandons the other for two years or longer without a good reason. Divorce can be filed by the abandoned spouse.
CRUELTY: A spouse may file for divorce if they are the victim of physical or psychological abuse.
Cruelty includes domestic violence, humiliation, false accusations, or mental torture. Case Law: In D. Silva v. D. Silva (1999), the court recognized mental cruelty as a valid ground for divorce.
CONVERSION TO ANOTHER RELIGION: If a Christian spouse converts to another religion (such as Hinduism or Islam), the other spouse can file for divorce. The conversion must be voluntary and permanent.
UNSOUND MIND OR MENTAL ILLNESS: The other spouse may file for divorce if one of the partners has a serious mental illness that prevents them from living together. The mental illness must be incurable and proven by medical records.
LEPROSY OR COMMUNABLE DISEASE: The other spouse may file for divorce if one of them has a communicable and incurable illness. The disease must be medically verified.
PRESUMPTION OF DEATH: The other spouse may seek for divorce if one of the spouses has been absent for at least seven years and their whereabouts are unknown. The court requires proof that all efforts to locate the missing spouse have failed.

5.5.3 ANNULMENT OF MARRIAGE

In some cases, a Christian marriage can be annulled, meaning it is declared invalid from the beginning. Since annulment treats the marriage as though it never happened, it differs from divorce. Annulment grounds include the following:

Forced Marriage – If one spouse was forced or threatened into marriage.
Fraud – If a spouse lied about their identity, past marriage, or serious health issues.
Impotence – If a spouse is physically unable to have marital relations.
Underage Marriage – if, at the time of marriage, one spouse was younger than the legal age.

5.6 TYPES OF DIVORCE UNDER PARSI LAW

The Parsi Marriage and Divorce Act, of 1936, which was later amended in 1988, governs divorce for Parsis in India. Unlike some other personal laws, Parsi law requires all matrimonial disputes to be decided by a Special Parsi Matrimonial Court, which includes a judge and community members called delegates.

Divorce by Mutual Consent (Section 32B): When both spouses agree that their marriage cannot continue, they can file for divorce by mutual consent. This is the easiest and least stressful way to dissolve a marriage.
Contested Divorce (Section 32): When one spouse wants a divorce while the other does not, it is called a contentious divorce. Under Section 32 of the Parsi Marriage and Divorce Act, 1936, the spouse requesting a divorce in such circumstances must provide proof of one of the legal grounds.

5.7 DIVORCE UNDER THE SPECIAL MARRIAGE ACT, 1954

A statute known as the Special Marriage Act, 1954 (SMA) permits marriages between individuals of various nations, classes, and religions in India. This legislation offers a consistent and secular legal framework for marriage and divorce, in contrast to the personal laws that regulate marriages within particular religious communities.

5.7.1 DIVORCE BY MUTUAL CONSENT (Section 28)

When both partners agree that their marriage is not working, they can file for mutual consent divorce. This is the quickest and most straightforward method of ending a marriage. The following requirements must be met in order for the Special Marriage Act to allow a divorce by mutual consent.

The couple must have lived apart for at least a year in order to petition for divorce.
Both partners must agree that they cannot live together anymore.
Key issues like property partition, alimony, and child custody require mutual consent.

5.7.2 CONTESTED DIVORCE (Section 27)

If one spouse wants a divorce but the other does not agree, the person seeking divorce must prove one of the legal grounds listed under Section 27 of the Special Marriage Act. The following are the grounds:

ADULTERY: If a spouse has a sexual relationship with someone else, it is considered adultery. The innocent spouse can file for divorce by providing evidence like messages, photographs, or witness testimonies.
CRUELTY: One spouse may apply for divorce if the other spouse is subjected to cruel physical or mental treatment. Cruelty includes domestic violence, constant insults, humiliation, false accusations, and refusal to have marital relations.
DESERTION: Desertion occurs when one spouse abandons the other without cause and does not return for a minimum of two years.The abandoned spouse can file for divorce.
CONVERSION TO ANOTHER RELIGION: The other spouse may file for divorce if one of them changes their religion. The conversion needs to be voluntary and long-lasting.
MENTAL ILLNESS: The other spouse may petition for divorce if the other spouse’s severe mental illness prevents them from cohabitating. The illness must be incurable and affect daily life.
COMMUNICABLE DISEASE: If a spouse suffers from an incurable, contagious disease such as leprosy or a sexually transmitted disease (STD), the other spouse can file for divorce. The illness needs to be confirmed by a doctor.
IMPRISONMENT: One spouse may file for divorce if the other spouse receives a sentence of seven years or more in jail.
PRESUMPTION OF DEATH: The other spouse may seek for divorce if one of the spouses has been absent for at least seven years and their whereabouts are unknown.

6. DIVORCE DUE TO IRRETRIEVABLE BREAKDOWN OF MARRIAGE

Irretrievable breakdown means that the couple is no longer able to live together as husband and wife, and there is no hope of reconciliation. Many countries recognize this as a valid ground for divorce, allowing couples to separate without proving fault. In India, however, this concept is not explicitly mentioned in existing marriage laws, but courts have granted divorce based on this principle in some cases. The irretrievable breakdown of marriage means that the relationship has completely collapsed, and there is no chance of the couple coming back together. There are numerous reasons why this could occur, including:

Long periods of separation where the couple has not lived together for years.
Continuous fights, misunderstandings, and lack of communication.
Lack of affection, care, or emotional connection between the spouses.
Situations where living together is impossible, even if no legal ground like cruelty or adultery is proven.

In such cases, forcing the couple to stay married serves no purpose. If the marriage is beyond repair, the law should allow them to end it peacefully.

6.1 KEY SUPREME COURT JUDGEMENTS

In a number of judgments, the Indian Supreme Court has been crucial in establishing the idea of irretrievable breakdown:

Naveen Kohli v. Neelu Kohli (2006): The husband and wife had been fighting for many years. The husband accused the wife of cruelty, while the wife filed multiple cases against the husband. The Supreme Court noted that there was no possibility of reconciliation and that the marriage was totally destroyed.
The court recommended that irretrievable breakdown should be added as a ground for divorce in Indian law.
Suman Kapur v. Sudhir Kapur (2009): The couple had been living separately for many years and had multiple legal disputes. The Supreme Court held that forcing them to stay married would be unfair and granted divorce based on irretrievable breakdown.
Ojaswa Pathak v. Rashmi Pathak (2022): The Supreme Court again ruled that when a marriage is beyond repair, divorce should be granted, even if the law does not specifically mention irretrievable breakdown.

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