Grounds for Divorce

CONCEPT OF MARRIAGE UNDER VARIOUS RELIGIONS
According to the tenets of Hinduism, marriage is a sacred relationship, a sacrament, and a divine covenant meant for procreation and continuation of family lineage. Within this traditional framework reference, marriage is undoubtedly the most important transitional point in a Hindu’s life and the most important of all the Hindu sanskaras, or life-cycle rituals.

Under the Islamic law marriage is a social contract. Under Section 2 of the Muslim women  (protection of rights on divorce) Act, 1986, marriage or nikah among Muslims is a “Solemn Pact” or ‘Mithaq-e-ghalid’ between a man and a woman, soliciting each other’s life companionship which in the law takes form of a contract or aqd. The Christian Law recognizes marriage as voluntary union for life of one man and one woman to the exclusion of all others.

GROUNDS OF DIVORCE
In common parlance, Divorce is nothing but another term for dissolution of marriage, i.e. when parties cease to become husband and wife. It means to separate.  Following are the different divorce grounds under various personal laws-

HINDU LAW
Section 13 of The Hindu Marriage Act, 1955 mentions the divorce grounds. A petition for divorce may be presented by either the husband or wife for dissolving the marriage on the following divorce grounds:

 

  • Adultery- has after the marriage had voluntary sexual intercourse with any person other than his or her spouse. A party who is living in adultery cannot take this as a ground of divorce.

  • Cruelty- the word ‘cruelty’ here has been used in the context of human conduct and behaviour in relation to matrimonial duties and obligations. Cruelty can be both, physical as well as mental.

  • Desertion- It means intentional abandonment of one spouse by the other without his or her consent and without a reasonable cause. Here the other spouse should have deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition.

  • Conversion- it means that the other spouse has ceased to be a Hindu by conversion to another religion.

  • Unsound Mind- It means that the other spouse has been incurably of unsound mind or has been continuously or intermittently suffering from a mental disorder, that the petitioner cannot reasonably be expected to live with such a person.

  • Leprosy- It is a ground of divorce only when it is both, virulent and incurable.

  • Venereal Disease- it is a ground of divorce when the other spouse has been suffering from venereal disease in a communicable form.

  • Renounced world- If a spouse has left home and has become a “Sanyasi’, other spouse may seek divorce on this ground.

  • Unheard for a period of 7 years- When a spouse has not been heard of as being alive for a period of seven years or more by persons who would have naturally heard of it, had that party been alive, the other spouse can file a petition for divorce.

Additional divorce grounds available to the wife- Where, the husband has since the solemnization of marriage, been guilty (i.e., convicted by Court) of rape, sodomy, bestiality or bigamy, a petition of divorce can be filed by his wife against him. A woman can also seek divorce if her marriage was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before the age of eighteen years.

MUSLIM LAW
In Muslim Law, divorce may take place by the act of parties themselves or by a decree of the court of law. A divorce might be either by the act of the husband of by the act of the wife. The basis of divorce under Islamic Law is the inability of the spouses to live together rather than any specific cause on account of which the parties cannot live together.

Section 2 of the Dissolution of the Muslim Marriages Act, 1939 mentions the divorce grounds under which a woman married under the Muslim law can obtain a decree of divorce. Such divorce grounds are as follows:

  • That the whereabouts of the husband have not been known for a period of four years.

  • That the husband has neglected or has failed to provide for her maintenance for a period of two years

  • That the husband has been sentenced to imprisonment for a period of seven years or upwards

  • That the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years

  • That the husband was impotent at the time of the marriage and continues to be so

  • If the husband has been insane for a period of two years immediately preceding the suit or is suffering from leprosy or a virulent venereal disease

  • That she, having been given in marriage by her father or other guardian before she attained the age of fifteen years, repudiated the marriage before attaining the age of eighteen years, provided that the marriage has not been consummated.

CHRISTIAN LAW
Under Christian Law, both the husband and the wife can seek divorce on the following divorce grounds:

A wife may also bring a petition for the dissolution of her marriage on the ground that the husband has, since the solemnization of marriage, been guilty of rape, sodomy or bestiality.

PARSI LAW
Section 32 of the Parsi Marriage and Divorce Act 1936, mentions the various divorce grounds which may be taken recourse to by either spouse. They are:

  • Wilful refusal to consummate marriage within one year of the marriage.

  • unsoundness of mind of the defendant.

Two conditions are required to obtain divorce on this ground-

    • At the time of the marriage, plaintiff should be ignorant of the fact of unsoundness of mind of the defendant and;

    • That the plaintiff should have filed the suit within three years of the date of marriage.

  • pregnancy of the defendant-If the defendant was, the time of marriage, pregnant by some person other than the plaintiff, then the plaintiff can file a suit for divorce. Two conditions need to be fulfilled to obtain divorce on this ground-
  • The plaintiff was at the time of marriage, ignorant of the fact alleged,

  • The suit has been filed within two years of the date of marriage, and

  • marital intercourse has not taken place after the plaintiff came to know of the fact.

  • Conviction of defendant on the grounds of adultery, fornication, bigamy, rape or an unnatural offence.

  • Cruelty

  • Grievous hurt caused by the defendant to the plaintiff.

  • Venereal disease in communicable form

  • That the husband has forced the wife into prostitution. Here, the suit for divorce should be filed within two years after the last act of compulsory prostitution.

  • That the defendant is undergoing a sentence of imprisonment for seven years or more for an offence as defined in the Indian Penal Code.

  • That the defendant has deserted the plaintiff for at least two years.

  • Conversion.

  • 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.