Divorce laws in India are governed by various religious and statutory frameworks that provide different mechanisms for dissolving marriages. Based on the applicable personal law or statute, divorce can be categorized into several types. Each type addresses the grounds on which the divorce is sought and the procedure to be followed. This article explores the various types of divorce available under Indian law, citing key provisions and case laws.
1. Divorce by Mutual Consent
Divorce by mutual consent is the simplest and least contentious form of divorce under Indian law. It allows both spouses to amicably terminate their marriage when they have mutually agreed that the marriage is irreparable. This type of divorce is available under:
– Section 13B of the Hindu Marriage Act, 1955
– Section 28 of the Special Marriage Act, 1954
– Section 10A of the Indian Divorce Act, 1869
– Section 32 B of the Parsi Marriage and Divorce Act, 1936
– Mubarat or Khula in Muslim Personal Law
The procedure requires both parties to file a joint petition for divorce, confirming that they have been living separately for at least one year and that the marriage has irretrievably broken down. The court grants the divorce after ensuring that the consent is voluntary and not coerced.
In Sureshta Devi v. Om Prakash, AIR 1992 SC 1904, the Supreme Court clarified that mutual consent must continue until the divorce decree is passed. Either spouse can withdraw consent at any time before the decree. This case highlights the importance of genuine, ongoing consent throughout the divorce proceedings.
2. Contested Divorce
In cases where one spouse wishes to dissolve the marriage but the other does not consent, a contested divorce may be sought. This type of divorce requires the petitioner to prove specific grounds for dissolution under the applicable law. These grounds vary by religion and statutory provision.
(a) Divorce under Hindu Law
Under Section 13 of the Hindu Marriage Act, 1955, a spouse can seek a contested divorce based on grounds such as:
– Cruelty
– Adultery
– Desertion for two years
– Mental disorder
– Conversion to another religion
– Leprosy or venereal disease
– Renunciation of the world
– Presumed death
In Naveen Kohli v. Neelu Kohli, (2006) 4 SCC 558, the Supreme Court granted divorce on the ground of cruelty, where the wife’s behavior made it impossible for the husband to continue with the marriage. The court emphasized that repeated accusations of immorality and threats of false criminal cases amounted to mental cruelty.
(b) Divorce under Muslim Law
In Muslim law, a husband can unilaterally divorce his wife through talaq, but judicial reforms have restricted certain forms of talaq. The practice of triple talaq (talaq-e-biddat) was declared unconstitutional by the Supreme Court in Shayara Bano v. Union of India, (2017) 9 SCC 1.
A Muslim wife can seek divorce through khula, where she offers compensation to the husband in return for his consent to dissolve the marriage. Alternatively, she can file for faskh under the Dissolution of Muslim Marriages Act, 1939, citing grounds such as cruelty, non-maintenance, or impotency.
(c) Divorce under Christian Law
Under the Indian Divorce Act, 1869, Christians can seek a contested divorce on grounds such as adultery, cruelty, desertion, or conversion to another religion. The petitioner must provide proof of the ground on which the divorce is sought.
3. Fault-Based Divorce
Fault-based divorce is a subtype of contested divorce where one spouse is accused of committing a matrimonial offense, such as adultery, cruelty, or desertion. The petitioner must prove the specific fault of the respondent.
In Russell v. Russell, AIR 1961 SC 349, the Supreme Court ruled that a divorce could be granted based on adultery. The court stated that once adultery is proven, the petitioner is entitled to a divorce decree.
Fault-based divorce emphasizes proving the fault of the other spouse, making it a contentious and often lengthy legal battle. Courts have ruled that the petitioner must provide substantial evidence to prove the fault, and in cases where the fault is not proven, the divorce may be denied.
4. Divorce on the Ground of Irretrievable Breakdown of Marriage
Although irretrievable breakdown of marriage is not yet codified as a statutory ground for divorce, Indian courts have granted divorce under this principle in several cases. This doctrine applies when the marriage has reached a point where reconciliation is impossible, and the parties have been living apart for a significant period.
In Naveen Kohli v. Neelu Kohli, (2006) 4 SCC 558, the Supreme Court recommended that irretrievable breakdown of marriage be included as a statutory ground for divorce. In this case, the couple had been living separately for several years, and there was no possibility of reconciliation. The court granted the divorce, stating that forcing the parties to remain married would cause greater harm.
5. Divorce by Conversion or Apostasy
Conversion to another religion can be a ground for unilateral divorce in certain cases. For instance, under Section 13(1)(ii) of the Hindu Marriage Act, 1955, a spouse can seek divorce if the other spouse has converted to a different religion and ceased to be a Hindu.
In Sarla Mudgal v. Union of India, AIR 1995 SC 1531, the Supreme Court dealt with cases where Hindu men converted to Islam to marry again without divorcing their first wives. The court held that such conversions for the purpose of second marriage did not dissolve the first marriage under Hindu law.
6. Divorce by Renunciation of the World
Renunciation of the world, or becoming a sanyasi or sanyasini, is a unique ground for divorce under Hindu law. Section 13(1)(vi) of the Hindu Marriage Act, 1955, provides that a spouse can seek divorce if the other spouse has renounced the world and embraced a religious order.
Though not frequently cited, the courts have recognized that renunciation of the world effectively severs the matrimonial bond, entitling the spouse to seek divorce. In such cases, no further matrimonial obligations remain, as the renouncing spouse is considered to have abandoned worldly life.
Conclusion
Divorce in India is governed by a complex interplay of religious and statutory laws, providing for various types of divorce, including mutual consent, contested, fault-based, and one-sided divorces. Indian courts have played a significant role in interpreting these laws, ensuring that individuals have access to remedies when matrimonial relationships break down. Key judgments such as Dastane v. Dastane, Naveen Kohli v. Neelu Kohli, and Shayara Bano v. Union of India have shaped the evolution of divorce law in India, making it more adaptable to contemporary social realities. While the process of divorce can be contentious, the legal framework ensures that both parties’ rights and interests are protected in the dissolution of marriage.
