Divorce Laws In India

The dictionary definition of divorce explains it as the legal dissolution of marriage. It was once a taboo and a reason to be discriminated against. But, the new reality shows us that today it is an actuality for almost 40 % marriages in the metro cities, with divorce rates having gone up by double in the last decade.

Where once, the most common reason used to be cruelty, there has now been a shift to reasons such as incompatibility and infidelity. This shows us the trend that Indian couples are opening up to the idea of having more than one partner. This could well be because they are not afraid of venturing out of their marriages on grounds of lack of adjustability. More so, financial liberation of women has made them less fearless of walking out on their husbands.

No longer do couples, especially in the metro cities feel that wedlock has to be a lifelong commitment. New age Indian marriages are all about commitment plus convenience, with an increasing number of couples opting for pre-nuptial agreements, wherein they agree on issues such as alimony and child custody before the ceremony, in case they decide to opt for separation later. This makes it more than evident that Indian marriages are willing to be divorced, and the Indian mindset is opening up.

Judicial Framework

India being a religiously and culturally diverse country has varying sets of laws and clauses for people belonging to different religions. 80 % of India’s population being Hindu is covered under 1955 act laid down specially for hindus residing within and outside Indian borders.

The term Hindu encompasses Sikhs, Jains, Buddhist and any person who is Hindu by religion excluding Muslims, Parsis, Christians and Jews because they are governed by a specially created set of laws. 13% of the population comprises Muslims and they are covered under Dissolution of Marriage Act, 1939 and The Muslim Women (Protection of Rights on Divorce) Act, 1986. Christians comprise a mere 2 % and the Parsis are dwindling in number.

Under the judicial framework in India, there are two types of divorces –

1. Contested or Uncontested divorce
2. Religion i.e the set of personal laws applicable to the person. In case of inter religion marriages, The Special Marriage Act 1954 is applicable. This Act was a positive step in promoting inter religion marriages in India, and opening up its acceptability to society, which was unthinkable in those decades, especially after partition left most people of that generation with bitter memories of the other religion.

A contested separation is a more complicated process than an uncontested or mutual consent divorce, and takes anywhere from 18-24 months to end in legal dissolution of marriage. Mutual consent on the other hand can be obtained as quickly as 4 weeks, if the couples seek waiver of the 6 month time-frame provided by the court for them to reconcile their differences.
As far as religion goes for divorce laws in India, every set of personal law provides people with different grounds to end their marital vows. Women are provided with more options than men in India. This is primarily because of widespread gender discrimination and vulnerability of Indian women prone to exploitation in the earlier decades. The personal law also provide grounds for obtaining alimony and maintenance of spouse and child.

Legal and Religious Framework

Broadly speaking, the 2 major religions in India are Hindu and Muslim. The different sets of personal law in India are mentioned below, with the grounds for divorce applicable to people belonging to those religions.

Laws For Hindus

Under the divorce laws in India, a petition can only be filed after one year has elapsed from the date of marriage unless there are exceptional circumstances. The law laid down for Hindus in 1955 lists 9 grounds for divorce to be granted in India. Those listed grounds are:

• Adultery
• Cruelty
• Desertion
• Conversion of religion
• Unsoundness of mind / serious mental disorder
• Virulent and incurable form of leprosy of partner
• Venereal and communicable disease suffered by a partner
• Renunciation of the world
• Unknown whereabouts of partner for at least 7 years

In addition to the above mentioned clauses, parties may also file for dissolution of marriage on the grounds of:

• Mutual consent
• No resumption of cohabitation, or no restitution of conjugal rights for a period of one year or upwards, after a judicial decree of separation has already been passed.
• Women have certain additional grounds while filing, namely – polygamous husband, sexual assault by husband, or if she was married before she attained the age of 15 years, as long as the marriage was repudiated before she attained the age of 18 years.

Laws For Muslims

Broadly speaking, Muslims in India are governed by their own set of personal laws. Namely, Dissolution Act, 1939 and The Muslim Women (Protection of Rights on Divorce) Act, 1986. Even within these laws, Shias and Sunnis have different customs and rules for divorce. Muslims have 2 kinds of divorce – Judicial and extra judicial. Extra judicial divorce encompasses the concept of Talaq, which is usually given by the husband, without requirement of a court of law. Judicial grounds cover provisions given under the laws. Under the 1939 act pertaining to dissolution, a Muslim woman can file on the following grounds –

• Unknown whereabouts of husband for a period of 4 years or upwards
• Failure of husband to provide for the wife
• Imprisonment of husband for a period up to 7 years
• Failure of husband to perform marital obligations for a period of 3 years
• Impotence
• Unsoundness of mind, venereal disease
• Cruelty
• If she was married before the age of 15, as long was marriage was repudiated before she turned 18.

Laws For A Marriage Between Two Individuals From Separate Religious Backgrounds

Intern religion marriages are governed by the Special Marriages Act 1954. Its lists the following grounds –

• Adultery
• Desertion
• Imprisonment
• Cruelty
• Unsoundness of mind
• No resumption of cohabitation for a period of one year from the date of passing of a judicial decree of separation
• A wife can proceed with filing if her husband has committed rape, sodomy or bestiality
• Mutual consent

Parsis are governed under The Parsi Marriage and Divorce Act 1936 and in addition to the above grounds, they have additional clauses for obtaining separation, such as one partner indulging in prostitution. Christians covered under The Christian Marriage Act 1872 have the same grounds as The Hindu Marriage Act 1955.

The divorce laws in India while confusing, are effective in respecting the various beliefs, customs and traditions held dear by the many religions that flourish in the country.