Answer By law4u team
In India, the legal framework governing divorce depends heavily on the personal law applicable to the parties based on their religion, alongside secular legislation like the Special Marriage Act, 1954 (SMA). For Hindus, Buddhists, Sikhs, and Jains, divorce is governed by the Hindu Marriage Act, 1955 (HMA). For Muslims, divorce is governed by a combination of personal law and statutes such as the Dissolution of Muslim Marriages Act, 1939 (DMMA). Christians are governed by the Indian Divorce Act, 1869 (IDA), and Parsis by the Parsi Marriage and Divorce Act, 1936 (PMDA). The grounds for divorce can be broadly classified into fault-based grounds, where one spouse alleges matrimonial misconduct by the other, and modern statutory grounds that recognise the breakdown of the marriage. Under the HMA Section 13, the primary grounds available to both husbands and wives include adultery, cruelty, desertion, conversion to another religion, mental disorder or unsoundness of mind, venereal disease in a communicable form, renunciation of the world, and a presumption of death. Adultery involves voluntary sexual intercourse with any person other than one's spouse after the solemnisation of the marriage. While the Supreme Court of India decriminalised adultery under the Indian Penal Code (IPC) Section 497, it remains a valid civil ground for divorce under matrimonial laws. To succeed on this ground, the petitioner must provide clear and cogent evidence, as direct evidence is rarely available in such cases. Cruelty is another major ground, encompassing both physical and mental cruelty. Mental cruelty includes persistent verbal abuse, false accusations of infidelity, humiliation, denial of affection, or conduct that causes deep mental anguish and makes it impossible for the parties to live together. The standard of cruelty must be severe enough to create a reasonable apprehension in the mind of the petitioner that it is harmful or injurious to live with the other spouse. Desertion refers to the abandonment of one spouse by the other without reasonable cause and without the consent or against the wish of that party, for a continuous period of not less than two years immediately preceding the presentation of the petition. The deserting party must have the intention to bring cohabitation permanently to an end, known as animus deserendi. Conversion to a non-Hindu religion is a ground under the HMA, allowing the aggrieved spouse to seek dissolution because the religious foundation of the marriage has fundamentally altered. Similarly, incurable unsoundness of mind or mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent is a valid ground. A communicable venereal disease or leprosy of a virulent and incurable nature, contracted not from the petitioner, also serves as a statutory ground. Renunciation of the world by entering a religious order, or a failure to be heard of as alive for a period of seven years or more by those persons who would naturally have heard of them if the person were alive, creates a legal presumption of death, thereby terminating the marital bond. In addition to these fault grounds, the HMA provides specific grounds exclusively for the wife under Section 13(2). A wife can seek divorce if the husband has been guilty of rape, sodomy, or bestiality, or if a decree or order has been passed against the husband awarding maintenance to the wife under Code of Criminal Procedure (CrPC) Section 125 or Section 18 of the Hindu Adoptions and Maintenance Act, 1956, and separate living has continued for one year or more since the passing of such decree. A wife can also repudiate her marriage before attaining the age of twenty-one if the marriage was solemnised before she attained the age of fifteen, regardless of whether the marriage was consummated. Under the SMA, the grounds are largely similar to the HMA, applying universally to inter-faith marriages or those solemnised under civil law. For Muslims under the DMMA, a wife can seek a decree of dissolution on grounds including the whereabouts of the husband being unknown for four years, failure of the husband to provide maintenance for two years, imprisonment of the husband for seven years or more, failure without reasonable cause to perform marital obligations for three years, impotence of the husband at the time of marriage and its continuance, insanity, leprosy, or virulent venereal disease, or cruelty of the husband including physical assault, association with women of evil repute, forcing her to lead an immoral life, or disposing of her property. Divorce by mutual consent is another vital avenue available under all major Indian matrimonial statutes, such as HMA Section 13B and SMA Section 28. Under this mechanism, both spouses must jointly present a petition stating that they have been living separately for a period of one year or more, that they have not been able to live together, and that they have mutually agreed that the marriage should be dissolved. After filing, the court mandates a cooling-off period of six months, which can be waived by the court in exercise of its discretion under certain exceptional circumstances where reconciliation is impossible. Following the second motion after the cooling period, the court grants a decree of divorce dissolving the marriage.
