Grounds For Divorce

I cannot continue my marriage with my spouse because we are not in a happy marriage, I wish to take divorce as soon as possible.Therefore, on what grounds can I be granted divorce.
Posted 6 months ago  | 
Divorce & Alimony,Family Law
Divorce & Alimony Family Law

1 Answer(s)

Deepika Gill
Advocate

The grounds for divorce in India is different for different religious groups in accordance to their personal laws,

1.     Grounds for Divorce under the Hindu Marriage Act, 1955 (applies to all the religious groups other than Islam, Christianity, Parsi and Jew)

The following are the grounds for divorce in India mentioned under the Hindu Marriage Act, 1955.

Adultery – The act of indulging in any kind of sexual relationship including intercourse outside marriage is termed as adultery. Adultery is counted as a criminal offence and substantial proofs are required to establish it. An amendment to the law in 1976 states that one single act of adultery is enough for the petitioner to get a divorce.

Cruelty – A spouse can file a divorce case when he/she is subjected to any kind of mental and physical injury that causes danger to life, limb and health. The intangible acts of cruelty through mental torture are not judged upon one single act but series of incidents. Section 498-A of IPC explains cruelty these include food being denied, continuous ill treatment and abuses to acquire dowry, perverse sexual act etc are included under cruelty

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.

Conversion – Incase either of the two converts himself/herself into another religion, the other spouse may file a divorce case based on this ground.

Unsoundness of Mind – This 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.

Leprosy – In case of a ‘virulent and incurable’ form of leprosy, a petition can be filed by the other spouse based on this ground.

Venereal Disease – 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.

Renunciation – A spouse is entitled to file for a divorce if the other renounces all worldly affairs by embracing a religious order.

Not Heard Alive – 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.

No Resumption of Co-habitation – It becomes a ground for divorce if the couple fails to resume their co-habitation after the court has passed a decree of separation.

The following are the grounds for divorce in India on which a petition can be filed only by the wife.

  1. If the husband has indulged in rape, bestiality and sodomy.
  2. If the marriage is solemnized before the Hindu Marriage Act and the husband has again married another woman in spite of the first wife being alive, the first wife can seek for a divorce.
  3. A girl is entitled to file for a divorce if she was married before the age of fifteen and renounces the marriage before she attains eighteen years of age.
  4. If there is no co-habitation for one year and the husband neglects the judgment of maintenance awarded to the wife by the court, the wife can contest for a divorce.

2.     Grounds for Divorce under the Dissolution of Muslim Marriage act, 1939

Based on the Dissolution of Muslim Marriage Act, 1939, a Muslim woman can seek divorce on the following grounds for divorce in India.

  1. The husband’s whereabouts are unknown for a period of four years.
  2. The husband has failed to provide 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 decides to end the relationship before she turns eighteen.
  6. The husband indulges in acts of cruelty.

3.     Grounds for Divorce under the Parsi Marriage and Divorce Act, 1936 (Amendment 1988)

The following are the grounds for divorce in India included in the Parsi Marriage and Divorce Act, 1936 and the amendment of the same in 1988.

  1. Continuous absence of seven years.
  2. Non-consummation of marriage within one year.
  3. Unsound mind provided the other spouse was unaware of the fact at the time of marriage and the divorce must be filed within three years of marriage.
  4. Pregnancy by some other man, provided the husband was unaware of the incident during the time of marriage and that he must not have undergone sexual intercourse after he came to know about the situation. The divorce must be filed within two years of marriage.
  5. Adultery, bigamy, fornication, rape, or any other type of perverse sexual act.
  6. Act of cruelty
  7. Suffering from venereal disease or forcing the wife into prostitution.
  8. Sentenced to prison for seven years or more
  9. Desertion for two or more years
  10. Non-resumption of cohabitation after passing an order of maintenance or a decree of judicial separation.

4.     Grounds for Divorce under the Indian Divorce Act, 1869

The following are the general grounds of divorce mentioned under the Indian Divorce Act, 1869.

  1. Adultery
  2. Conversion to another religion
  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 a period of seven or more years.
  5. Failure in observing the restitution of conjugal rights for at least two years.
  6. Inflicting cruelty and giving rise to mental anxiety that can be injurious to health and life.
  7. Wife can file a divorce based on the grounds of rape, sodomy and bestiality.

 

5. Persons married under the special marriage act can seek divorce on the following grounds:

Adultery – The act of indulging in any kind of sexual relationship including intercourse outside marriage is termed as adultery. Adultery is counted as a criminal offence and substantial proofs are required to establish it

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.

Convicted Felon – If one of the spouses  is undergoing a sentence of imprisonment for seven years or more for an offence as defined in the Indian Penal Code

Cruelty – A spouse can file a divorce case when he/she is subjected to any kind of mental and physical injury that causes danger to life, limb and health. The intangible acts of cruelty through mental torture are not judged upon one single act but series of incidents. Section 498-A of IPC explains cruelty these include food being denied, continuous ill treatment and abuses to acquire dowry, perverse sexual act etc are included under cruelty

Mental Disorder: The expression “mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia.If one of the spouses suffers from such disorder ,it can be ground for divorce

Leprosy – In case of a ‘virulent and incurable’ form of leprosy, a petition can be filed by the other spouse based on this ground.

Venereal Disease – 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.

Not Heard Alive – 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

These are few other grounds under the Special Marriage Act

  1. The husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality;
  2. If there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or
  3. If  there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.]