Divorce Under Hindu Law

Divorce Laws in India are different for different religions. The Hindu Marriage Act, 1955 deals with divorce under Hindu laws.  

On completion of marriage, each spouse gets certain rights and owes certain duties against one another. The most important of them are conjugal rights. No spouse can leave the other without any lawful excuse.

A suit for restitution of conjugal rights can be brought against either the husband or wife who lives separately from the other without any sufficient reason under Section 9 of the Hindu Marriage Act. In which case, the court will compel them to come together again, if there no reasonable excuse exists.
Indian marriage laws dictate that if a decree of restitution is not complied with for more than a year, it may become a good ground for obtaining divorce.

The following are few situations as per divorce laws in India, wherein excuses for staying separately have been held reasonable by the courts:      

  1. Presence of concubine in the husband’s house

  2. Failure on the part of the husband to have physical relationship with the wife

  3. Cruelty on the part of the one spouse against the other spouse

  4. False allegation as to character of the wife by husband

  5. Where a teetotaller and a vegetarian spouse was insisted by the other spouse to take alcoholic drinks and non-vegetarian food

(Note: The above instances are merely indicative; the ambit of judicial interpretation is much larger. So, there can be other situations also, in which a wife can decide to live separately)  

The policy of divorce law in India is that divorce should not be easily granted and doors for opportunities for parties to unite should be kept open wherever divorce is not necessary. Under Section 10(1) of Hindu Marriage Act, a decree of judicial separation can be granted on the same grounds for which one can seek divorce under section 13 of Hindu Marriage Act.   

As per Indian marriage laws, a decree of judicial separation does not extinguish the marital relationship between the spouses. Judicial separation permits parties not to cohabit without bringing their marriage to an end. If the parties fail to reconcile after passage of one year from the passing of decree of judicial separation, either of them may seek divorce on this ground under section 13 of Hindu Marriage Act.

Divorce under Hindu law, the Hindu Marriage Act can be obtained by both the spouses on the basis of any of the following grounds:

  1. Adultery;

  2. Cruelty;

  3. Desertion for two years;

  4. Conversion of religion;

  5. Unsound mind;

  6. Suffering from venereal disease and/or Leprosy;

  7. has renounced the world;

  8. not heard of for 7 years;

  9. no resumption of co-habitation for one year after the decree of judicial separation, no restitution of conjugal rights for one year after decree for restitution of conjugal rights;

  10. Husband guilty of rape, sodomy or bestiality;

  11. If after an order of maintenance is passed under the Hindu Maintenance and Adoptions Act or the Criminal Procedure Code, there has been no cohabitation for one year.

Under the Hindu Marriage Act the spouses, who desire a divorce by mutual consent, have to present a joint petition in the court which has an appropriate jurisdiction. The parties, presenting such a petition, must claim with proof that:

  1. they have been living separately for a period of one year;

  2. they have not been able to live together;

  3. they have mutually agreed that marriage should be dissolved.

According to divorce law in India, once the petition for Divorce by mutual consent is filed, the Court gives the parties 6 months' times to reconsider. The Court may pass a decree of divorce after a period of 6 months from the date of presentation of the petition and not later than 18 months after the date of presentation, in case the petition is not withdrawn.        

Sec. 14(1) of Hindu Marriage Act lays down restrictions on the courts from entertaining a divorce petition before one year has elapsed from the date of marriage. However under exceptional hardships a spouse may be allowed to present such a petition and if a decree of divorce is pronounced, then such decree shall not have effect until expiry of one year from the marriage.   
A decree of divorce under Hindu law is considered to be final;

  1. If there is no right to appeal

  2. if there is right to appeal but the time for appealing has expired

A divorced person is allowed to remarry under Hindu Marriage Act. Section 15 of this Act lays down that it shall be lawful for either party to remarry after dissolution of marriage becomes final