Index

1. Introduction 
2. Divorce Laws In India For Different Religions
3. Types Of Divorce Under Hindu Law
4. Types Of Divorce Under Muslim Law
5. Conditions For Court-Decreed Divorce In Muslim Law
6. Divorce Laws For Christians In India
7. Parsi Divorce Laws In India
8. Grounds For Parsi Divorce In India
9. Joint Divorce Petition For Parsis
10. Divorce Under The Special Marriage Act, 1954
11. Recent Changes In Hindu Marriage Act
12. Conclusion 
13. FAQs

 

Introduction 

This article explains the different types of divorces available in India, which vary according to the laws for different religions. In India, people from various religious communities have specific divorce procedures. Most communities have mutual and non-mutual (contested) divorces, with different grounds for each. 

For instance, Hindu, Christian, and Parsi laws share common grounds for contested divorces, such as adultery, cruelty, and desertion. However, in Islamic law, adultery is not considered a significant ground for divorce. Recently, there have been positive changes in divorce laws. This will be discussed further into the article.

Divorce Laws In India For Different Religions

Here are the laws governing divorce for different religions in India:

1. Hindus (including Buddhists, Jains, Sikhs, and Arya Samaj): Governed by the Hindu Marriage Act, 1955, with Section 13 addressing divorce.
2. Muslims: Governed by the Dissolution of Muslim Marriage Act, 1939, which outlines the grounds for judicial divorce.
3. Parsis: Governed by the Parsi Marriage and Divorce Act, 1936, which lists the grounds for divorce.
4. Any Religion: The Special Marriage Act, 1954, applies to couples of any religion if their marriage is registered under this Act.
5. Christians: Governed by the Divorce Act, 1869, as amended by the Indian Divorce (Amendment) Act, 2001.

Types Of Divorce Under Hindu Law

Under Hindu law, marriage is considered a sacred bond. However, if disputes arise, divorce becomes the only option. The Hindu Marriage Act, 1955, which also applies to Buddhists, Sikhs, and Jains, provides for both marriage and divorce. Section 13 of the Act outlines four types of divorces:

Contested Divorce: In a contested divorce, one party files for divorce without the consent of the other. The grounds for contested divorce vary by jurisdiction, but commonly include:

1. Adultery: Infidelity by one spouse.
2. Cruelty: Physical or mental abuse.
3. Desertion: Abandonment for a specified period
4. Impotency: Inability to consummate the marriage.
5. Mental Illness: Severe mental illness making marital life difficult.
6. Criminal Conviction: Imprisonment for a certain period
7. Substance Abuse: Habitual intoxication or drug abuse.

In these cases, the filing party must provide evidence of the grounds for divorce. The court examines the evidence, hears both parties, and then makes a decision.

Irretrievable Breakdown of Marriage: 

This ground is used when the marriage is deemed beyond repair. It doesn’t require proof of fault. The criteria can include:

1. Separation Period: The couple must live apart for a specified period.
2. Mutual Agreement: Both parties agree that the marriage has broken down.
3. Court’s Satisfaction: The court must be convinced that reconciliation is not possible.

Evidence such as prolonged separation, consistent marital discord, and failed attempts at reconciliation support this ground. This provision aims to end marriages where there’s no prospect of restoration.

Divorce by Mutual Consent: 

Divorce by mutual consent is when both parties agree to dissolve the marriage. Key features include:

1. Joint Petition: Both spouses file a joint petition for divorce.
2. Separation Period: Some jurisdictions require the couple to be separated for a specified period before filing.
3. Settlement Agreement: Terms of asset division, alimony, child custody, and other relevant issues are agreed upon.
4. Cooling-Off Period: A waiting period after filing to reconsider the decision (varies by jurisdiction).

This process is typically less adversarial and quicker than contested divorce, as it involves mutual agreement and cooperation.

Divorce by Custom: 

In some cultures and jurisdictions, divorces can occur based on customary practices. These practices vary widely but often include:

1. Community Practices: Divorce procedures as per local or tribal customs.
2. Religious Laws: Divorce granted according to religious doctrines.
3. Mediation by Elders: Intervention by community elders to mediate and grant divorce.

Such divorces must comply with state laws recognizing customary practices. They often address the needs of specific communities, balancing tradition with legal requirements.

Types Of Divorce Under Muslim Law

In Muslim law, divorce is known as ‘talaq’. Unlike Hindu law, marriage in Muslim law is seen as a contract and is governed by personal laws. Muslims can seek divorce themselves or through the court. There are four types of divorce:

1. Divorce by the Husband
2. Divorce by the Wife
3. Divorce by Mutual Consent
4. Divorce by the Court

A husband can divorce his wife in three ways:

Talaq-ul-Sunnat (revocable):

1. Ahasan: The most common form. The husband says “talaq” once and can revoke it before the iddat period (a three-month waiting period) ends.
2. Hasan: The husband says “talaq” three times during successive tuhr (periods of purity).

Talaq-ul-Biddat (non-revocable):

Known as Triple Talaq, where “talaq” is said three times at once. This form was declared unconstitutional by the Supreme Court of India in the 2017 Shayara Bano v. Union of India case.

Ila:

The husband swears not to have sexual relations with his wife. If he abstains for four months, the marriage is dissolved irrevocably. If he resumes relations within this period, the ila is cancelled and the marriage continues.

Zihar

In zihar, a husband compares his wife to a prohibited relationship, such as a biological mother or sister, and cannot cohabit with her for four months. After four months, the wife can seek either a divorce or the restoration of marital rights.

If the husband wants to revoke zihar and resume cohabitation, the wife cannot seek a judicial divorce. To revoke zihar, the husband must fulfil one of these conditions:

1. Fast for two months
2. Provide food to at least sixty people
3. Free a slave

Khula:

 This divorce occurs when the wife consents to the divorce and gives compensation to the husband. The conditions are:

1. The wife offers the divorce.
2. The husband accepts the offer.
3. The wife provides compensation to the husband.

The wife can revoke the offer before the husband accepts it.

Talaq-e-Tafweez: 

In this divorce, the husband delegates his power to divorce to his wife or another person. This delegation can be:

1. Absolute or conditional
2. Temporary (irrevocable) or permanent (revocable)

Divorce by Mutual Consent (Mubarat): 

Both spouses agree to dissolve the marriage. The offer can come from either spouse, and once accepted, the divorce is irrevocable. The wife must observe iddat.

Divorce Granted by Court Decree: 

According to the Dissolution of Muslim Marriages Act, 1939, a court can dissolve a marriage based on these grounds:

1. The husband’s whereabouts are unknown for four years.
2. The husband has neglected or failed to provide maintenance for two years.
3. The husband has been imprisoned for seven years or more.
4. The husband has failed to fulfil marital obligations for three years.
5. The husband has been impotent since marriage.
6. The husband has been insane for two years.
7. The husband suffers from a severe venereal disease.

Additional Grounds for Divorce

If the wife was married before the age of 15 by her father or guardian, and she repudiated the marriage before turning 18, provided the marriage was not consummated.

If the husband treats the wife with cruelty, such as:

1. Assaulting her.
2. Associating with disreputable women.
3. Forcing her into an immoral life.
4. Disposing of her property or preventing her from exercising her legal rights.
5. Obstructing her religious practices.
6. Not treating her equitably if he has more than one wife, according to the Quran’s injunctions.
7. Any other valid ground for the dissolution of marriage.

Conditions For Court-Decreed Divorce In Muslim Law

The following conditions must be met:

1. A divorce decree based on the husband’s imprisonment for seven years or more can only be granted once the sentence is final.
2. If a decree is based on the husband’s unknown whereabouts for four years, it takes effect after six months. If the husband reappears within this period and is willing to fulfil his marital duties, the court can set aside the decree.
3. Before passing a decree based on the husband’s impotence, the husband can request up to one year to prove he is no longer impotent. If successful, the decree will not be granted on this ground.

 

Divorce Laws For Christians In India

The Indian Divorce (Amendment) Act of 2001 governs divorce for Christians in India, amending the Divorce Act of 1869. Divorce can be mutual or without mutual consent.

Under Section 10 of the Divorce Act, 1869, a marriage can be dissolved by filing a petition in the District Court by either spouse if the respondent:

1. Committed adultery.
2. Converted to another religion.
3. Has been incurably insane for at least 2 years.
4. Has a communicable venereal disease for at least 2 years.
5. Has been unheard of for 7 years or more.
6. Refused marital intercourse or failed to consummate the marriage.
7. Did not comply with a restitution of conjugal rights decree for at least 2 years.
8. Deserted the petitioner for at least 2 years.
9.  Treated the petitioner cruelly or harmed them.
10. In cases of rape, sodomy, or bestiality by the husband after marriage, the wife can file for divorce.

The couple can seek a mutual divorce by filing a joint petition in the District Court based on these grounds:

1. They have lived separately for 2 years or more
2. They cannot live together
3. They both agree to dissolve the marriage.

 

Parsi Divorce Laws In India

Divorce for Parsis in India is governed by the Parsi Marriage and Divorce Act of 1936. Here are the provisions:

Under Section 32 of the Act, a married person can file for divorce on these grounds:

1. If the marriage has not been consummated within a year due to the defendant’s refusal.
2. If the defendant was mentally unsound at the time of marriage and remains so, provided certain conditions are met and they are the plaintiff was unaware of the defendant’s condition at the time of marriage, the suit is filed within 3 years of marriage, the defendant has been incurably mentally unsound for 2 years or more, the defendant has a mental disorder or psychopathic disorder as defined by the Act.

Grounds For Parsi Divorce In India

Under the Parsi Marriage and Divorce Act of 1936, divorce can be sought based on these grounds:

Non-Consummation Due to Defendant’s Pregnancy: 

If the defendant was pregnant by someone else at the time of marriage, provided certain conditions are met:

1. The plaintiff was unaware of this at marriage.
2. The suit is filed within 2 years of marriage.
3. Consummation did not occur after the plaintiff learned of this.

Adultery, Fornication, Bigamy, Rape, Unnatural Offense:

 If the defendant committed any of these acts, the suit must be filed within 2 years of the plaintiff learning about it.

Cruelty:

 If the defendant treated the plaintiff cruelly or behaved in a manner making it improper to live together. The court decides whether to grant a divorce or judicial separation.

Grievous Hurt or Venereal Disease: 

If the defendant caused grievous hurt to the plaintiff since marriage, or if the plaintiff has been infected with a venereal disease due to the defendant, or if the husband forced his wife into prostitution. But the suit must be filed within 2 years of:

1. The application of grievous hurt.
2. Plaintiff learning about the infection.
3. The last act of compulsory prostitution.

Under the Parsi Marriage and Divorce Act of 1936, divorce can also be sought based on these grounds:

1. Imprisonment of 7 Years or More: If the defendant is imprisoned for 7 years or more under the Indian Penal Code, but only if at least 1 year of this term has been served before filing the suit.
2. Desertion: If the defendant has deserted the plaintiff for at least 2 years.
3. Separate Maintenance Order: If a Magistrate has awarded separate maintenance to the plaintiff, and the parties haven’t consummated the marriage for 1 year or more since that order.
4. Conversion to Another Religion: If the defendant ceases to be Parsi by converting to another religion, but the suit must be filed within 2 years of the plaintiff learning about it.
5. Non-Resumption of Cohabitation or Restitution of Conjugal Rights: If there’s been no resumption of cohabitation or restitution of conjugal rights within 1 year after a decree for judicial separation or restitution of conjugal rights has been issued. However, if the plaintiff fails to comply with an order of maintenance, the divorce decree will not be granted.

Joint Divorce Petition For Parsis

Under Section 32B of the Parsi Marriage and Divorce Act, both parties can file for divorce together if:

1. They have been living separately for 1 year or more
2. They cannot live together.
3. They both agree to end the marriage.

The petition can be filed after 1 year of marriage. Once the court verifies the truth of their claims and confirms their consent, a divorce decree will be granted.

Divorce Under The Special Marriage Act, 1954

Divorce under the Special Marriage Act is categorised into mutual consent or without mutual consent. Here are the grounds for divorce without mutual consent as per the Act:

1. Adultery: If the respondent had voluntary sexual intercourse with someone other than their spouse after marriage.
2. Desertion: If the respondent has continuously deserted the petitioner for at least 2 years.
3. Imprisonment: If the respondent has been imprisoned for 7 years or more.
4. Cruelty: If the respondent treated the petitioner cruelly after marriage.
5. Mental Disorder: If the respondent has an incurable mental disorder making it impossible for the petitioner to live with them.
6. Communicable Diseases: If the respondent has a communicable venereal disease or leprosy not contracted by the petitioner.
7. Unavailability: If the respondent has not been heard of being alive for 7 years or more by those who would normally know.

Wife’s Grounds for Divorce:

The wife can file for divorce if:

1. The husband is guilty of rape, sodomy, or bestiality after marriage.
2.  Cohabitation hasn’t resumed for 1 year or more after a maintenance order against the husband.

Either Party’s Grounds for Divorce:

Either party can file for divorce if:

1. Cohabitation hasn’t resumed for 1 year or more after a decree for judicial separation.
2. Restitution of conjugal rights hasn’t happened for 1 year or more after a decree for it.

Mutual Consent Divorce:

Both parties can file for divorce together if:

1. They have lived separately for 1 year or more.
2. They cannot live together.
3. They mutually agree to dissolve the marriage.

Recent Changes In Divorce Laws

1. No Mandatory 6-Month Rehabilitation Period: Earlier, couples seeking mutual divorce had to wait six months for reconsideration. Now, courts can decide if this wait is needed or if they can divorce immediately, based on the case.
2. Irretrievable Breakdown of Marriage: If a marriage breaks down irretrievably, leading to separation, it’s now a valid reason for divorce, decided by the court.
3. Recognition of Live-in Relationships: Live-in relationships are now legally akin to marriage. Women in such relationships can claim maintenance, and they are protected under domestic violence laws even without strict proof of marriage.
4. Adultery Decriminalized: While adultery can lead to divorce, it’s no longer a punishable offence. Couples can seek divorce based on adultery without facing legal penalties.
5. End of triple talaq :The practice of Triple Talaq in Muslim law, where saying ‘Talaq’ three times meant instant divorce, is now unconstitutional and doesn’t hold legal weight for divorce.
6. Civil Court for Divorce: Divorce can only be granted by the Civil Court. Any divorce granted by personal laws, such as in Christian churches, won’t be valid. The Supreme Court has affirmed the Civil Court’s authority over divorce matters.

Conclusion 

In India, divorce laws vary across different religions, each governed by specific legal frameworks. Hindu Law recognizes various types of divorces like mutual consent, contested, and divorce by conversion. Muslim Law allows for different types of divorces, including Talaq, Khula, and Mubarat, with specific conditions for court-decreed divorces. Christians in India follow their own divorce laws, while Parsis have unique laws with grounds such as adultery and cruelty. The Special Marriage Act, 1954, provides for divorce in marriages of interfaith couples. Recent changes in the Hindu Marriage Act have streamlined divorce procedures. Overall, understanding these diverse legal provisions is crucial for navigating the complexities of divorce in India.

FAQs

1.What are the different types of divorce under Hindu Law?

Answer: Under Hindu Law, divorce can be obtained on grounds such as cruelty, desertion, adultery, mental disorder, and communicable diseases, among others, as outlined in the Hindu Marriage Act, 1955.

2.How is divorce regulated for Muslims in India?

Answer: Muslim divorce laws are governed by the Dissolution of Muslim Marriages Act, 1939, which includes types like Talaq (by husband), Khula (by wife), and Mubarat (mutual consent).

3.What conditions must be met for a court-decree divorce under Muslim Law?

Answer: Conditions for court-decree divorce in Muslim Law include issues like husband’s cruelty, failure to provide maintenance, husband’s imprisonment for seven years or more, and husband’s impotence, among others.

4.What are the grounds for divorce among Christians in India?

Answer: Christian divorce laws in India are governed by the Indian Divorce Act, 1869, which allows divorce on grounds such as adultery, conversion to another religion, cruelty, desertion, and incurable mental disorder.

5.What is the procedure for obtaining a divorce for Parsis in India?

Answer: Parsi divorce laws are governed by the Parsi Marriage and Divorce Act, 1936, with grounds including adultery, cruelty, desertion for more than two years, and unsoundness of mind. Parsis can also file a joint divorce petition.

6.What recent changes have been made to the Hindu Marriage Act?

Answer: Recent amendments to the Hindu Marriage Act have focused on making the divorce process more efficient, addressing issues of maintenance and alimony, and ensuring the rights of children and women are protected during divorce proceedings.