Laws of several religions in India govern different legal reasons for divorce in India. Every such law is considered valid in the eyes of the law, provided that it doesn’t discriminate against the new rules for divorce in India.
Presently, divorce cases in India have increased more than ever before. Today’s citizens are more aware of their rights and, hence, refuse the age-old concepts of patriarchy, misogyny, and gender role specification.
However, at times, partners seeking a divorce may also be doing it due to a lack of emotional understanding, cooperation, patience, and increased feelings of revenge or egoism. As a result, the sanctity of marriage has been broken.
Having explained the importance, it’s time to understand the new rules governing divorce, the rights of a woman in divorce in India, and much more related to it.
Legal Reasons for Divorce In India Before following a process to file for divorce in India
Cruelty
Any of the spouses holds the legal right to file a suit whenever he/she has to suffer through physical and mental injuries caused by his/her partner. Physical torture includes causing danger to health, limbs, and even life.
On the other hand, mental suffering can be judged through a series of intangible incidents happening consecutively. Some examples include denying their meals, treating them badly for so long, forcing them to be involved in perverse sexual acts, abusing wife severely for dowry, and so on, only to name a few.
To put it simply, whenever any of the spouses tortures his/her partner physically or mentally, the affected can terminate the marriage on the charges of cruelty.
Desertion
In the context of marriage, desertion implies a partner leaving his/her spouse permanently without giving any justifiable reason and without his/her approval.
It means whenever a partner refuses to comply with the obligations of marriage without providing any cause, it is called desertion. Herein, the wrongdoer leaves the house intentionally to ditch his/her spouse.
So, if any of the partners leaves his/her house and spouse for a minimum period of two years without the will or even knowledge of the abandoned person, he/she is allowed to file a divorce case on the grounds of renunciation.
The essentials to be fulfilled in this situation are as follows:
Permanent renunciation of another partner
Refusal to accept the commitment to marriage
Absence of justifiable cause
Consent of the other partner is not asked for
Adultery
Whenever any one of the spouses gets involved in a sexual relationship with a third person outside of marriage, it is known as adultery .
Since the aggrieved partner is cheated by his/her spouse for continuing an extramarital affair secretly, the law considers this as a criminal offense. To file a petition in this regard for divorce, substantial evidence has to be collected by the affected partner.
According to an amendment done in 1976 in this consideration, only a single proof of adultery is enough to get a divorce, provided that the evidence holds quite strong value.
Insanity or Irrational Sense of Intellect
If one of the partners becomes mentally insane, for which there is no possibility of treatment in the future, the other partner can file a petition for divorce in court.
The mentally disturbed partner may cause life-threatening harm to another on account of an irrational mind. In addition, if the couple has children, then it may also harm their intellect; hence, their mental growth may be influenced.
Therefore, practically, it sounds impossible for such a couple to stay together. To ensure safety in the future, it may become crucial for another partner to separate from such an insane spouse.
Renunciation of the World by Either of the Spouse
Renunciation of the world by one spouse is another legal reason in India to ask for divorce from an aggrieved partner. Herein, one who has renounced the world goes in search of inner peace and happiness and, thereby, abandons all worldly relationships and leisures.
It also implies withdrawal from all sexual temptations and every form of unclean life. Therefore, the affected spouse can ask for divorce in this case by proving the two basic conditions:
His/her spouse has disowned every worldly relationship and pleasure
He/she has taken this decision to follow any particular religious order
Child Marriage
If one of the partners or both of them were married as minors without their consent, that is considered child marriage. It mostly happens by enforcement of the families by both sides, and the couple’s desire holds no value, rather, they barely know about it.
However, as soon as both turned major, the couple had a choice to seek divorce on this ground. Herein, both, after having mutual consent, can claim for divorce.
It has to be noted that if only one of the spouses was minor at the time of marriage, then he/she has to file a divorce petition alone in court.
Forced Marriage
According to the Indian Constitution, every citizen is entitled to enjoy the “right to life” under Article 21, which is a fundamental right. It means forcing someone to enter into a marriage without his/her will is considered a violation of fundamental rights.
Accordingly, to punish the violators of this law, there is a prescribed procedure of law to protect the victims of those marriages in which they had to enter by undue pressure, threat, or abuse.
Apart from what I have explained above, some other significant legal reasons for divorce in India are as follows:
If one of the partners forces the other to convert to another religion, the accused may file a suit in court on the grounds of breach of fundamental freedom, thereby asking for divorce of such marriage.
If the husband puts undue coercion on a wife to abort the pregnancy for an immoral reason.
If the husband is accused of rape, sexual harassment, molestation, sodomy, or bestiality, the wife has the legal right to claim divorce.
New Rules for Divorce In India The laws governing divorce in India have undergone multiple changes in recent years. Additionally, some new reforms have been added as a form of adaptability to the rapidly evolving period of new ideologies.
Therefore, it becomes highly crucial for you to be aware of these new rules of divorce in India. All you need to do is to simply go through every one of them in detail:
To Follow Six Months Period of Rehabilitation Is Mandatory
Whenever any couple files for divorce with mutual consent, then according to section 13B (2), the court provides them with 6 months.
In this period, the judiciary provides them the time to cohabit and expects both of them to ponder the decision critically with the sole motive of saving their marriage from any undue reason.
After the period ends, the couple can decide whether to separate from each other or stay together.
Irretrievable Breakdown of Marriage
There are circumstances when a couple sticks to their decision of taking divorce in such a way that there doesn’t seem to be any possibility of them getting reunited again.
This situation is popularly known as the breakdown of marriage on sufficient ground in legal terms. Since there is hardly any chance of revival of such marriage, the court often allows them to proceed with the matter of divorce without making any prior effort to save the relationship.
Maintenance is Applicable to Live In Relationships Also
If we look from the perspective of the Hindu Marriage Act of 1955, the court can order the male partner to pay for his wife’s maintenance. But it’s pretty surprising to know that today, a live-in relationship is considered at par with a legal marriage.
It implies that even if the couple has not married, as per Hindu Marriage Law, the female partner, after getting separated, can claim for maintenance under section 125 of the Criminal Procedure Code.
Moreover, the aggrieved partner doesn’t have to show any proof of marriage if the couple has been involved in that relationship for a prolonged period.
No Triple Talaq Cases to be Declated Legal Anymore
Earlier, as per Muslim Law, it was considered legal and even sufficient to say “Talaq” thrice times to terminate the marriage.
In this scenario, as far as the Muslim religious law was concerned, only the husband had the right to end the marriage in this manner and not the wife. Merely saying the word “Talaq” three times to end a marriage was challenged in court later on on the grounds of irrationality and illegality.
Therefore, to end such a derogatory practice of terminating marriages in the future and encourage Muslim women to have more say in their marriage, the court has banned the practice of “Triple Talaq ”.
So, today, the concept of “Triple Talaq” is completely unconstitutional according to law.
The Power of the Civil Court Can’t be Overruled
Divorce under personal law can only be given by civil court. It implies that any religious institution, such as a Christian Church or any personal law doesn’t have any power to grant a divorce.
Even if such institutions or other laws overrule the power of the civil court in this regard, it will be declared unconstitutional.
Rights of a Woman In Divorce In India Gone are the days when women hardly knew what was right and wrong. Since, today they are considered at par with men, women are not deprived of any vital law today.
To provide them with more autonomy and equal justice, the law has incorporated some rights for them in divorce. So, let’s go through the rights of a woman in divorce in India one by one:
Right to Alimony Along With Maintenance
The wife can claim for the divorce alimony from her husband during and after the divorce. It is meant to provide welfare support to wives by husbands, and if they have kids, then it also includes paying for the children’s wellbeing and their education.
Once the couple gets separated legally, the wife is entitled to alimony from her husband till she remarries or dies.
Additionally, maintenance has to be provided to a wife who doesn’t work or lacks skills or who has left her job after her marriage and hence needs financial support after divorce. However, granting alimony can be avoided
Rights to Child Custody
Whenever disputes arise in respect of child custody during divorce
The mother has an inherent right for custody if the child is below 5 years as at this stage, the child is emotionally attached to his mother, rather than his father. Nevertheless, the father, here is a natural protector and hence, holds the custody rights.
According to section 6 of the Hindu Minority and Guardianship Act 1956, the child custody of the child (between the ages of 5 and 18) is highly likely to go to the father. But as an exception, if the father has withdrawn from the proceedings voluntarily or is no more, then the mother can claim custody of the kid.
Right on Property
After the divorce, the wife can also claim a share in the property which was acquired during the marriage. Let’s have a look at different circumstances in this case:
When any property is in the name of the husband and the couple has divorced with mutual consent, then the wife can’t claim that property.
But, if the wife has also contributed financially to buy that estate, then first she has to show some documents as evidence in support, in case she wants to claim the property.
Let’s say that the husband and wife had jointly acquired property for financial gains, tax savings, future security, and so on. Herein, the wife can either claim a division or title over it.
It also has to be noted that the amount contributed by the wife plays a crucial role in deciding the wife’s claim. Additionally, the wife also needs to gather proof of her contribution to the property.
Lastly, the law states that unless the couple doesn’t get divorced officially, i.e., when both are separated but not legally divorced, the wife and the children (if the couple has one), are entitled to enjoy the legal rights of the husband’s property.
Rights to Streedhan
The wife has all the claims on streedhan which include jewelry and gifts given to her at the time of marriage. After the divorce, the husband can’t conceal it from her and she has full claim over them.
But, there is one exception to this that says if any part of a wife’s streedhan is found to be contributed over by the husband, then he can get it back after divorce.
To conclude about the rights of a woman in divorce in India, we can infer that divorced women’s rights have increased significantly over the years, since the law started recognizing the welfare and development of women.
Grounds of Divorce for Husband Not only a wife but a husband too has the right to seek divorce on some legal grounds. To have a look at some of the vital grounds of divorce for husband, read the following points:
Conversion: If the wife gets converted to another religion of her own will and puts coercion on the husband to adopt it, the husband can file for divorce in court.
Unsound mind: If the female partner loses her mental ability or becomes a victim of some serious disorder such as Psychopathy, it may sound impractical to stay with such a person, hence, the husband can file for divorce.
Renunciation of social life: Whenever the wife renounces the world to endure in any religious order or to follow a specific spiritual path, then the husband has a valid reason to seek divorce from his wife.
Anticipation of wife’s death: If the husband has a sojourning wife and has not heard of her for the past seven years by any of the sources, she will be considered dead according to law and on this valid ground, the husband can file for divorce.
Desertion: Sometimes, the wife may abandon her husband without providing any justification or without having the consent of her partner. Now, this adds to a valid reason for the husband to demand for divorce in the court.
Restitution of conjugal rights and cohabitation clause: Even after passing a judicial order of separation, if the couple can’t cohabit happily then the husband is allowed to file for a divorce plea.
To put it simply, if both can’t fulfill the rights arising out of marriage within a year of such order, then again the husband has a valid reason to file a divorce petition.
Grounds of Divorce Under Muslim Law Seeking divorce in a Muslim marriage follows a different concept as it includes more than a single format of dissolving the marriage. The procedure is a bit intricate as it includes not only judicial but also extra-judicial forms mentioned in the Muslim personal law.
We will understand it better by having a look at some of the prominent grounds of divorce under Muslim law in the context of husband and wife individually:
By Muslim Husband
Illa : Herein, the husband takes an oath to not get involved in any physical relationship with his wife, following which the consummation by the couple is stopped for four months. Once the four months are completed, the marriage is dissolved automatically.
Zihar: In this context, the husband renounces his marriage by comparing his wife with either his mother or sister. Having made such a comparison, the husband terminates every form of physical intercourse with his wife. Thereafter, he doesn’t live with her once the four months have passed.
Talaq-ul-Sunnat: In this respect, there exist two procedures through which a husband can seek divorce from his wife:
Ahsan: In this particular form, the husband has to say talaq once only. However, it is to be followed when the wife is not going through the menstruation period.
Even during this Iddat period, the husband can’t conjugate with his wife, and if he consummates before the Iddat period ends, the divorce becomes invalid.
Tripal ul Biddat: This was the most dreadful and sinful divorce in Muslim Law, which is not practiced today. Herein, a husband, without acknowledging any cause, merely says talaq thrice to seek divorce anytime.
In the year 2019, in the famous case of Shayra Bano vs. Union of India & Ors, triple talaq was banned all over India.
By Muslim Wife
Talaq e Tafweez: This is one of the swords available to Muslim wives to dissolve the marriage themselves. If the husband doesn’t remain committed to the wedding, the wife can declare divorce. However, it has been noted that this does not compel the husband to declare divorce from his side.
Khula: In Islam, a woman can initiate the process of seeking divorce from her husband through a procedure known as khula.
Herein, she has to return the mahr (dowry) or some of her marriage rights. Following this particular process, Muslim women can get a divorce in a dignified manner.
Mubarat: It’s a procedure of divorce that provides both partners the right to get separated from each other with mutual consent. Both spouses simply disown their obligations towards each other and abandon their conjugal rights.
Lian: Whenever a husband alleges false charges of adultery or unchastity against his wife, this executes the pure character of the wife.
Based on this ground, she has the right to file for divorce in the court according to the Dissolution of Muslim Marriage Act 1939. This particular process of getting a divorce is called Lian.
Final Judgment: Let’s Recapitulate Quickly Marriage is a pious relationship of husband and wife who commit to embrace each other for life, thereby forming a new family and fulfilling their marital obligations. Sadly, sometimes, some marriages are bound to break because of certain situations, and the couple has to file for divorce.
Undeniably, it’s a painful process where the couple has to deal not only to deal with emotional struggles but also with the complex legal procedure.
Therefore, it’s highly essential to know about your legal rights whenever you decide to get separated from your spouse.
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