Marriage is a holy or contractual union between two persons. Many a times people face issues in their wedlock and they want to come out of the obligations or restrictions of the marriage. Hindus consider marriage as a sacramental union and therefore, in earlier times divorce or separation was not accepted in the society. But with the change of mindset, people started thinking broadly and the developments in law made provisions for divorce in India. Divorce can simply be defined as the end of marriage contract which results in the end of obligations related to marriage. Divorce petition is a legal document which is submitted by the person (husband or wife) who intends to seek divorce from his/ her spouse. Marriage and Divorce between the parties are guided by the Personal Laws of the religions.
So what are the different types of petition which are filed in courts? On what basis divorce can be demanded by husband or wife?
Applicability of the Acts
- The Hindu Marriage Act, 1955- It is applicable to any person who is Hindu, Buddhist, Sikh and Jaina by religion. Also, it is applicable to every person who is domiciled in the territory of India and who is not Parsi, Christian, Muslim or Jew by religion.
- The Indian Divorce Act, 1869- It is applicable to an person who professes the Christian religion.
- The Dissolution of Muslim Marriages Act, 1939- It is applicable to Muslims. Muslim women seeking divorce can obtain it through the provisions of this Act.
Conditions of marriage
Section 5 of The Hindu Marriage Act, 1955, lays down 5 conditions of a valid marriage which are applicable to Hindus. Following are the conditions:
1. The first condition says that no party should have spouse living at the time of marriage which means that bigamy is strictly prohibited. Bigamy is also an offence under Section 494 of Indian penal code, 1860 and punishment extends upto 7 years of imprisonment or fine or both. If any married person marries again under this Act then, the second marriage becomes void.
2. Party to the marriage should not be of unsound mind; or having a mental disorder which is not fit for marriage or procreation of children; or has been suffering from recurrent attacks of insanity or epilepsy. Marriage with the person of unsound mind is voidable.
3. The bridegroom should be of 21 years and bride should be of 18 years at the time of marriage.
4. Fourth condition says that the parties to marriage should not be in prohibited degrees. The term “degrees of prohibited relationship” has been defined under section 3(g) of the Hindu Marriage Act. Marriage in contravention of this condition is void. This condition has an exception that the custom/usage of any religion allows this then the marriage will not be considered void
5. The last condition is that the parties should not be sapindas of each other, otherwise the marriage is void. The same exception applies to this condition that if any custom/usage allows the same then the marriage will be considered as a valid marriage.
Types of divorce petitions in India
Divorce by mutual consent
When both husband and wife obtain divorce then it is called divorce by mutual consent. This is the most convenient and less time consuming way of getting divorce.
Divorce by mutual consent is taken under Hindu Marriage Act, 1955, The Special Marriage Act, 1954 and Indian Divorce Act, 1869. Section 13B of Hindu Marriage Act, Section 28 of Special Marriage Act and Section 10A of The Indian Divorce Act specifies the provisions of divorce by mutual consent. Following are the provisions:
- Petition for dissolution of marriage is to be presented before the District court by both parties on the grounds that:
- they have been living separately for a period of one year or more;
- they have not been able to live together;
- they have mutually agreed that marriage should be dissolved.
- If parties are given 6 to 18 months which is known as cooling off phase and if they do not withdraw the petition before 18 months then court on being satisfied will pass a decree of divorce. In Davinder Singh Narula v. Meenakshi Nangia,[i] Supreme Court held that if circumstances so warrant the cooling period of 6 months can be waived off.
- Before passing the decree, the court will inquire about the authenticity of the petition filed by the parties to divorce.
Muslims can get the divorce by mutual consent in two ways, one is called khula divorce while the other is mubarat divorce.
- Khula- In this form of divorce, wife gives consideration to the husband for getting divorce by mutual consent.
- Mubarat- In mubarat, both husband and wife mutually decide to get divorce. One person offers and if the spouse accepts the offer then divorce becomes irrevocable.
In Mrs. Subah Adnan v. Adnan Sami Khan,[ii] it was held that khula is a recognised form of divorce and there are 3 conditions, which if fulfilled khula divorce will be completed. Following are the conditions:
- There must be an offer from wife;
- There must be consideration given by wife to the husband;
- Husband should accept the offer.
There are some rights and duties in matrimonial ties. All the Acts have certain grounds on which the divorce can be filed. The husband or wife can file a petition for divorce under The Hindu Marriage Act, 1955, The Special Marriage Act, 1954, Indian Divorce Act, 1869 and The Dissolution of Muslim Marriages Act, 1939.
The Hindu Marriage Act, 1955:
Section 13 lays down grounds on which divorce petition can be filed by husband or wife. Following are the grounds-
- Adultery- The first ground is adultery. If husband or wife had sexual intercourse with a person other than his or her spouse then, the divorce petition can be filed.
- Cruelty- If the party to marriage performs any act of cruelty, then his/her spouse can file for divorce. Here, the term ‘cruelty’ includes both mental and physical cruelty.
- Desertion- It means to move out of matrimonial home and desert the spouse. If husband or wife desert his/her spouse for two or more years, then it becomes a ground for divorce.
- Conversion- If any Hindu husband or wife converts to another religion then divorce petition can be filed against him/her.
- Unsoundness of mind- If the spouse is suffering from any incurable mental disorder to an extent that it is reasonably not expected to live with him/her, it becomes a ground for divorce. The term “mental disorder” is described in first explanation to Section 13 as “mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and include schizophrenia”.
- Communicable disease- Incurable form of leprosy and veneral disease is also a ground for divorce.
- Renunciation from the world- Renunciation from the world is a ground for divorce. If any person renounce the world, then his/her spouse can file a petition for divorce.
- Presumption of death- Divorce petition can be filed against any person whose whereabouts are not known for seven years.
- Judicial separation- If there has been no cohabitation between the parties for 1 year or upwards who were living separately under the decree of judicial separation.
- Restitution of conjugal rights- When husband/wife obtains the decree of conjugal rights and there is no restitution of conjugal rights for the period of 1 year or more then divorce petition can be filed.
In Vishwanathan Sitaram Aggarwal v. Sarla Aggarwal,[iii] it has been observed that members of family, relatives, friends and neighbours would be the most natural witnesses in cases of divorce. Brushing aside their deposition on ground of relationships is not proper. Their evidence ought to be tested on the parameter of objectivity.[iv]
The Special Marriage Act, 1954
Following are the grounds of divorce according to Section 27 of the Act:
- Desertion for period of 2 years
- Imprisonment for 7 years or more for any offence under Indian Penal Code, 1860
- Mental disorder
- Communicable disorder
- Presumption of death
- Judicial separation
- Restitution of conjugal rights
In Suman Kundra v. Sanjeev Kundra,[v] in the present case, the marriage originally had taken place according to Hindu Rights and Ceremonies in the year 1986. The said marriage was dissolved by a decree of divorce from a competent court on 02.06.1988. The parties had again got married under the Special Marriage Act and once they got married under Special Marriage Act, therefore, their conduct with regard to the grant of divorce or relationship would be covered under the Special Marriage Act only.[vi]
The Dissolution of Muslim Marriages Act, 1939
In Muslim community, men can take divorce anytime without even filing the petition but Muslim women can file for divorce on some specified grounds mentioned under Section 2 of the Dissolution of Muslim Marriage Act. Following are the grounds on which divorce can be filed:
- If the whereabouts of husband are not known for 4 years or more.
- When maintenance is not provided to the wife by husband for a period of 2 years.
- Imprisonment of husband for 7 years or more
- When husband has failed to fulfill the marital obligations for 3 years
- Impotency of husband at the time of marriage and if he continues to be so
- Unsoundness of mind
- Communicable disease of husband
- If wife was married before 15 years and she repudiates the marriage before 18 years
- Cruelty by husband
In a landmark judgment in Mr. Ali Abbas Daruwala vs Mrs. Shehnaz Daruwala,[vii] it was held that even if the parties are governed by Muslim Personal laws, it cannot restraint Muslim women to seek any relief of Domestic Violence Act.
The Indian Divorce Act, 1869
Section 10 of this Act specifies the following grounds of divorce:
- Conversion from Christian to any other religion
- Incurable mental disorder for 2 years or more
- Communicable disease for 2 years
- Presumption of death where the whereabouts of spouse is not known for 7 years or more
- When the spouse wilfully refuses to consummate the marriage
- If there is no restitution of conjugal rights for 2 years after the decree for the same has been passed
- Desertion for 2 or more years
- Wife can file for divorce where husband is guilty of rape, sodomy or bestiality
Irretrievable Breakdown Grounds
There are many cases in which the marriage has been broken irretrievably which itself becomes the proof of failure of marriage. Therefore, in cases where the parties have not continued cohabitation for a period of 1 year after getting the decree of judicial separation or restitution of conjugal rights, then husband or wife can present the divorce petition on this ground.
The question of guilt or innocence of either party does not arise. Further, in such a case, no useful purpose will be served in finding out as to which of the two is guilty or innocent. If the two-in-oneship has ended, the marriage should be dissolved at the instance of either party.[viii]
Section 13(A) of The Hindu Marriage Act, 1955, Section 27 of The Special Marriage Act, 1954, has the provisions regarding irretrievable breakdown of marriage.
In Manjula v. K.R. Mahesh,[ix] Supreme Court held granted divorce to the parties as all the efforts at reconciliation were unsuccessful and according to husband and wife the marriage was broken irretrievably.
Shayara Bano v. Union of India[x] is a famous case, also known as triple talaq case. In this Shayara Bano was given talaq by her husband instantaneously which is called Talak-e-biddat. She filed a writ petition contending that Triple talaq, nikah halala and polygamy violate the constitutional rights of Muslim women.
Triple talaq is an irrevocable form of talaq recognised by Sunni Muslims and in 2018, Government introduced a bill called “The Muslim Women (Protection of Rights on Marriage) Bill, 2018. This bill aims to declare Talaq-e-biddat void and illegal and makes it a cognizable, non-bailable offence with a punishment upto 3 years and fine. Also, Muslim women can approach Magistrate for subsistence allowance for her and her minor children. This bill has been passed in both the houses of the Parliament in 2019.
These matters of divorce are not controlled by any uniform law but each religion has different laws which lay down the provisions for marriage and divorce. Two types of divorce petitions can be filed by husband or wife. If they mutually decide to get divorce then divorce petition by mutual consent is filed and if any one party to the marriage wants to file divorce petition then it is called contested divorce and there are some grounds like cruelty, adultery, communicable disease, mental disorder, etc on which the petition can be filed in the court by husband or wife.
Edited by Pragash Boopal
Approved & Published – Sakshi Raje
[i] AIR 2012 SC 2890
[ii] AIR 2010 Bom 109
[iii] AIR 2012 SC 2586
[iv] Paras Diwan, Modern Hindu Law 161 (Allahabad Law Agency, Faridabad, (23rd edn., 2016)
[v] AIR 2015 Delhi 124
[vi] Indian Kanoon, Suman Kundra v. Sanjeev Kundra, https://indiankanoon.org/docfragment/177304220/?formInput=divorce%20under%20special%20marriage%20act (Last visited: August 26, 2019)
[vii] Writ Petition No. 114 of 2018 with Civil Application No. 518 of 2018
[viii] Supra note iv, p. 173
[ix] AIR 2006 Supreme Court 2750
[x] (2017) 9 SCC 1