The legal dissolution of a valid marriage by a court is known as Divorce. When a marriage breaks up, the divorce provides legal solutions for the husband and the wife who are not able to resolve their marital issues by mutual cooperation. Nowadays in our society people are becoming more and more aware about their rights and the number of divorce cases are increasing day by day with the reasons being the waning influence of the family and joint family, growing psychological and financial independence of people. Sometimes things don’t work out and sometimes the adults come under pressure from their family and parents and eventually call off their marriage due to personality differences. Recently there has been a rise in the number of divorce cases. 11,000 approx. divorce cases were filed in 2014 in Mumbai, 8,000 approx divorce cases were filed in Kolkata and similar number of cases in the major metropolitan cities all over India. The divorce proceedings not only change the status of the husband and the wife but also involve other issues like maintenance for wife and the kids, alimony, custody of the kid(s), property related issues as well.
In India marriage laws are divided on the basis of the religion under:-
Hindus The divorce for people married under The Hindu Marriage Act, 1955 states that:-
- Any marriage between two Hindus shall be void if either party has a spouse living.
- A marriage may be dissolved by a decree of a divorce on the grounds of
- Adultery-after the solemnization of the marriage, the other party had voluntary sexual intercourse with any person other than his or her spouse.
- Cruelty -after the solemnization of the marriage treated the petitioner with cruelty. Cruelty involves mental and physical cruelty both.
- Desertion-has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition.
- Conversion-has ceased to be a Hindu by conversion to another religion.
- Renunciation- has renounced the world.
- Unsoundness of mind- has been incurably of unsound mind or hass been suffering from a mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.
- Leprosy-has been suffering froma virulent and incurable form of leprosy.
- Venereal disease- has been suffering from a venereal disease in a communicable form.
- Not heard of as being alive for a period of more than seven years.
A wife may also present a petition for divorce on the grounds if the husband since the solemnization of the marriage been guilty of rape, sodomy or bestiality.
There is also a provision of Divorce by Mutual consent where both parties can submit a petition for dissolution of marriage to the district court.
Muslims – under the Muslim Law a marriage can be dissolved either by the death of any of the parties to the marriage or by divorce. A husband may marry immediately after the death of the wife but the widow has to wait for a specified time called Iddat until it expires.
Both the parties have the option of calling for a divorce from the contract of marriage but the husband has the upper hand. The husband can dissolve the tie at his will. The divorce can also take place by mutual agreement. But the wife cannot divorce herself from her husband without his consent. She can of course purchase her divorce from her husband and can have the marriage dissolved by Tafweez (delegation).
A marriage may also be dissolved under the Dissolution of Muslim Marriage Act, 1955.
A Husband may divorce in the following manner-
- Talaq- which is release from the marriage tie immediately or eventually.
- Ila- where a husband of sound mind takes a vow that he will abstain from all relationship from his wife.
- Zihar- where husband sane and adult compares his wife to his mother or any other female within the prohibited degrees.
A wife may divorce in the following manner-
- Talaqetafwiz-talaq by the wife under the husbands delegated power.
- Khula- wife can ask for divorce by offering compensation to the husband.
- Lian- if the husband puts false charges of adultery and unchastity on his wife then the wife hass the right to ask for divorce on these grounds.
Divorce by judicial decree under dissolution of The Muslim Marriage Act,1939
Following are the grounds on which a marriage may be dissolved under the Marriage Act.
- Lian: Where the wife is charged with adultery and the charge is false.She can file a regular suit for dissolution of marriage as a mere application to the court is not the proper procedure.
- Fask: The cancellation, abolition, revocation, annulment. Before the passing of the dissolution of Marriage Act, Muslim women could only apply for the dissolution of their marriage under the doctrine of Fask.
WOMANS RIGHT TO DIVORCE UNDER THE DISSOLUTION OF MUSLIM MARRIAGE ACT. 1939
A Muslim woman may file for divorce on the following grounds-
- When the whereabouts of the husband have not been known for a period of 4 years.
- When the husband has neglected or has failed to provide for her maintenance for a period of two years.
- When the husband has been sentenced to imprisonment for a period of seven years or upwards.
- When the husband has failed to fulfill his marital obligation for a period of three years.
- When the husband has been insane for two years or is suffering from leprosy or a virulent form of venereal disease.
- When the husband was impotent at the time of marriage and continues to be so.
The women, having being given in marriage by her father or other guardian before she attained the age of 15 years, repudiated the marriage before attaining the age of 18.
Triple divorce is a recognized but disapproved form of divorce and is considered by the Islamic jurists as an innovation within the fold of Sharia. It commands neither the sanction of Holy Quran nor the approval of the Holy Prophet.
Christians– The divorce proceedings for Indian Christians are held under the Indian Divorce Act, 1869.
When husband may petition for dissolution – Any husband may present a petition to the District Court or to the High Court, praying that his marriage may be dissolved on the ground that his wife has, since the solemnization thereof, been guilty of adultery.
When wife may petition for dissolution- Any wife may present a petition to the District Court or to the High Court, praying that her marriage may be dissolved on the ground that, since the solemnization thereof, her husband has exchanged his profession of Christianity for the profession of some other religion, and gone through a form of marriage with another woman ;
He has been guilty of incestuous adultery,
He has done bigamy with adultery,
He has married with another woman with adultery,
He has committed rape, sodomy or bestiality,
Has done adultery coupled with such cruelty as without adultery would have entitled her to divorce a mensa et toro,
Has committed adultery coupled with desertion, without reasonable excuse, for two years or upwards.
Parsis- the Parsi marriages come under The Parsi Marriage and Divorce Act,1936.
If a husband or wife shall have been continually absent from his or her wife or husband for the space of seven years, and shall not have been heard of as being alive within that time by those persons who would have naturally heard of him or her, had he or she been alive, the marriage of such husband or wife may, at the instance of either party thereto, be dissolved.
Any married person may sue for divorce on any one or more of the following grounds:—
(a) that the marriage has not been consummated within one year after its solemnization owing to the wilful refusal of the defendant to consummate it;
(b) that the defendant at the time of the marriage was of unsound mind and has been habitually so up to the date of the suit: Provided that divorce shall not be granted on this ground, unless the plaintiff: (1) was ignorant of the fact at the time of the marriage, and (2) has filed the suit within three years from the date of the marriage;
27 [(bb) that the defendant has been incurable of the unsound mind for a period of two years or upwards immediately preceding the filing of the suit or has been suffering continuously or intermittently from mental disorder of such kind and to such an extent that the plaintiff cannot reasonably be expected to live with the defendant. Explanation.—In this clause,—
(a) 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;
(b) the expression “psychopathic disorder” means a persistent disorder of disability of mind (whether or not including subnormality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the defendant, and whether or not it requires or is susceptible to medical treatment;]
(c) that the defendant was at the time of marriage pregnant by some person other than the plaintiff: Provided that divorce shall not be granted on this ground unless: (1) the plaintiff was at the time of the marriage ignorant of the fact alleged, (2) the suit has been filed within two years of the date of marriage, and (3) marital intercourse has not taken place after the plaintiff came to know of the fact;
(d) that the defendant has since the marriage committed adultery or fornication or bigamy or rape or an unnatural offence: Provided that divorce shall not be granted on this ground, if the suit has been filed more than two years after the plaintiff came to know of the fact;
[(dd) that the defendant has since the solemnization of the marriage treated the plaintiff with cruelty or has behaved in such a way as to render it in the judgment of the Court improper to compel the plaintiff to live with the defendant: Provided that in every suit for divorce on this ground it shall be in the discretion of the Court whether it should grant a decree for divorce or for judicial separation only;]
(e) that the defendant has since the marriage voluntarily caused grievous hurt to the plaintiff or has infected the plaintiff with venereal disease or, where the defendant is the husband, has compelled the wife to submit herself to prostitution: Provided that divorce shall not be granted on this ground, if the suit has been filed more than two years (i) after the infliction of the grievous hurt, or (ii) after the plaintiff came to know of the infection, or (iii) after the last act of compulsory prostitution;
(f) that the defendant is undergoing a sentence of imprisonment for seven years or more for an offence as defined in the Indian Penal Code (45 of 1860): Provided that divorce shall not be granted on this ground, unless the defendant has prior to the filing of the suit undergone at least one year’s imprisonment out of the said period;
(g) that the defendant has deserted the plaintiff for at least 2[two years];
(h) that an order has been passed against the defendant by a Magistrate awarding separate maintenance to the plaintiff, and the parties have not had marital intercourse for [one year] or more since such decree or order;
(j) that the defendant has ceased to be a Parsi [by conversion to another religion]: Provided that divorce shall not be granted on this ground if the suit has been filed more than two years after the plaintiff came to know of the fact.
The Special Marriage Act, 1954 is an Act of the Parliament of India enacted to provide a special form of marriage for the people of India and all Indian nationals in foreign countries irrespective of their religion or faith followed by either of the parties.
Subject to the provisions of this Act and to the rules made thereunder, a petition for divorce may be presented to the district court either by the husband or the wife on the ground that the respondent:-
(a) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or
(b) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or]
(c) is undergoing a sentence of imprisonment for seven years or more for an offence as defined in the Indian Penal Code.
(d) has since the solemnization of the marriage treated the petitioner with cruelty; or has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent. Explanation.—In this clause,—
(a) 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;
(b) the expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the respondent, and whether or not it requires or is susceptible to medical treatment; or
(f) has been suffering from venereal disease in a communicable form]; or
(g) has been suffering from leprosy, the disease not having been contacted from the petitioner; or
(h) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of the respondent if the respondent had been alive; 6[***] 7[Explanation.—In this sub-section, the expression “desertion” means desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage,
A wife may also present a petition for divorce to the district court on the ground,—
(i) that her husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality;
either party to a marriage may present a petition for divorce to the district court on the ground—
(i) that 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.
(ii) that 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.
No party can file for a petition for divorce within one year of the solemnization of the marriage.
The Irretrievable breakdown of Marriage
The Marriage Laws (Amendment) Bill, 2010 incorporated another ground for seeking divorce, namely the ‘Irretrievable breakdown of marriage’ under the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954. As the term suggests, it leads to a situation whereby, either or both the parties to the marriage find it impossible to peacefully cohabit with each other, due to personality’s clashes, differences in opinion and have lived separately from each other for a long period of time and are no longer too eager to further carry on their matrimonial relationship.
Filing for the Petition for divorce
Every petition for divorce should be filed in the District Court within the jurisdiction of which
- The marriage was performed as per the ceremonies and rituals,
- Both parties to the marriage dwelled,
- The other party at the presentation of the petition resides; or
Where the petitioner is residing at the time of presentation of the petition in case the other party is residing outside the territories to which the Act extends or has not been heard of as being alive for a period of seven years or more.
Every petition should include the following details:
- The facts or details on the basis of which relief is sought for by the party seeking divorce,
- Both the parties have not collaborated together to deceive the court by filing for a divorce,
- The averments made in the petition are subject to verification by the petitioner or any other reliable person.
Section 125 of the Code of Criminal Procedure, 1973 talks about the order for maintenance of wives, children and parents.
(1) If any person having sufficient means neglects or refuses to maintain-
(a) his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or
(d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct: Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means –
(a) ” minor” means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875 ); is deemed not to have attained his majority;
(b) ” wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.
(2) Such allowance shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance.
(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month’ s allowances remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made: Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due: Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such
Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing. Explanation.- If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife’ s refusal to live with him.
(4) No Wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.
(5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.
The ideas and expectations of the husband and wife vary and sometimes their differences are such that they cannot be solved even after trying. However, it is always advisable to go with the legal proceedings carefully and seek proper legal help from divorce lawyers, before going ahead with a divorce.
Location and Address of some of the following family courts in India are as follows:
1.Tees Hazari Court,
near Inter State Bus Terminal,
2.District Court Saket,
New Delhi -17
District Court, Karkardooma,
4.Dwarka Court,Dwarka Courts Complex,
In Sector – 10
5.Patiala House, 348, PuranaQuila Road,
India Gate, New Delhi-01
6.Rohini Court, Rohini Sector 14 Extension,
North West District,
H Siddaiah Road,
Annex Building of City Civil Court Complex,
High Court Campus,