Divorce is a legal ending of a matrimonial bond. After divorce either party of the marriage will no longer be spouse and they are free to remarry.
In India, except for divorce by Muslim husbands; statutory laws, varying with the religion of the parties to marriage and the mode of solemnization of marriage, govern the practice of divorce.
Applicability of Laws
Provisions for divorce contained in the Hindu Marriage Act, 1955 are applicable to Hindu, Jain, Sikh and Buddhist couples marrying according to customary rites and ceremonies of either party. For Christians, the Divorce Act, 1869 which was amended in 2001 is applicable. The Parsi Marriage and Divorce Act, 1936 governs the practice of divorce among Parsis.
The Special Marriage Act provides a secular way of solemnizing marriage. Divorce in such marriages is governed by the same Act.
Religious laws of Muslims enable a Muslim husband to divorce his wife at will. A Muslim wife can obtain a decree of divorce as per Dissolution of Muslim Marriage Act, 1939.
Grounds for divorce
A marriage in law can be dissolved only by a method recognised in law and not otherwise. It is significant to note that there can be no divorce de hors grounds/provisions under the Act; and also the grounds for divorce have to be established before a decree can be granted: nor can there be a divorce for consideration.
All the personal laws in India provide for divorce under certain conditions and grounds. Though there are different statutes governing people belonging to different religions, grounds for divorce are more or less the same, with minor variations.
Divorce is granted when one of the spouses commits a matrimonial offence; or when the marriage gets frustrated because of intervening circumstances; or on the basis of mutual consent of the parties; or irretrievable breakdown of the marriage.
When one of the spouses commits a matrimonial offence, the other may seek a divorce from the delinquent spouse. The matrimonial offence includes adultery, desertion, cruelty, rape, sodomy, bestiality, refusal to obey the court’s order to pay maintenance to wife and marrying an underage person.
Adultery means voluntary sexual intercourse between a married man or married woman and any person other than his or her spouse during the subsistence of such marriage. It is available to husband and wife both as a ground for divorce in the Hindu, the Parsi, the Christian Laws and the Special Marriage Act. Although it is not explicitly mentioned as a ground for divorce in Muslim Law, one of the instances of cruelty in the Dissolution of marriage act, 1939 i.e. association of husband with women of evil repute or leading an infamous life; is, in substance, a species of adultery.
Desertion is an intentional permanent abandonment of one spouse by the other without that other’s consent and without reasonable cause. It includes the wilful neglect of one party by the other. Except for Muslim laws, desertion for a continuous period of two years is available as a ground of divorce for both husband and wife in all other Acts. Under the Dissolution of Muslim Marriage Act 1939, desertion is not a ground for divorce but the wife can sue for divorce if the husband has failed to perform marital obligation for a period of three years.
It is not possible to comprehend the human conduct and behavior for all time to come and to judge it in isolation. A priori definition of cruelty is thus not possible and that explains the general legislative policy – with sole exception of the – Dissolution of Muslim Marriages Act- to avoid such definition and leave it to the Courts to interpret, analyse and define what would constitute cruelty in a given case depending upon many factors such as social status, background, customs, traditions, caste and community, upbringing, public opinion prevailing in the locality etc.
Cruelty is interpreted as cruelty of such type that a party cannot reasonably be expected to live with the other or living together of the spouses had become incompatible.
The Dissolution of Muslim Marriages Act, 1939 gives six instances of cruelty such as habitual assault, association with women of ill repute, forcing the wife to lead an immoral life, disposal of wife’s property, obstruction in observance of religion and inequitable treatment with other wives.
There are some grounds for divorce on the basis of matrimonial offences which are available only to women. Under Hindu Law, Parsi Law, Christian law and the Special Marriage Act, a woman may get a divorce if the husband has been guilty of rape, sodomy or bestiality. Repudiation of marriage by minor wife after attaining majority is available under Hindu Law and Special Marriage Act, but subject to consummation under Muslim Law.
Pre-marriage pregnancy of wife is a ground for divorce under the Divorce Act and Parsi Marriages and Divorce Act.
Frustration of marriage
Certain unfortunate intervening circumstances such as leprosy, venereal and communicable disease, insanity or unsoundness of mind of either spouse are also grounds for divorce in all laws. These circumstances frustrate the marriage. Sentence of imprisonment for seven years or upwards is a ground for divorce in the Special Marriage Act, Parsi Law, and Muslim law. If either spouse has not been heard of as being alive for a period of seven years, the other may present a petition for divorce. Wilful non-consummation of marriage is a ground in Parsi and Christian Laws. Renunciation of the world for religious purposes is a ground only in Hindu Law.
Divorce by mutual consent
Fault-based matrimonial litigations are time-consuming and expensive. Another way to get divorce is by mutual consent of both the parties to the marriage. Prior to this, the parties must have been living separately for a period of one year or more. Consent must be free and not vitiated from fraud and undue influence.
Under the Divorce Act, 1869, divorce by mutual consent was inserted by an amendment in 2001. Here, the separation period was to be two years or more. It has been read down to one year by the Kerala High Court.
There is no statutory provision for divorce by mutual consent for Muslims, but the Muslim Law does recognize it in the form of Khula and Mubarat.
Irretrievable breakdown of marriage
Divorce on matrimonial offence and mutual consent fails to provide an adequate solution to the problem of deadlocked marriages. If a marriage has broken down irretrievably, may be on account of a fault of one of the spouses or both, or at the fault of neither, there is no sense in continuing such union. Dissolution of such marriages serves the interest of the individual as well as the society.
The Law Commission of India in its seventy-first report suggested the introduction of breakdown theory as a ground for divorce. Separate living for three years with no prospect of reconciliation was indicative of the breakdown of the marriage.
However, the statutory provisions are that simple breakdown of marriage per se is no ground for divorce under any personal laws. Decree of divorce may be granted if there is no resumption of cohabitation for a period of one year or more after passing of a decree for judicial separation or restitution of conjugal rights.
Bars on divorce
Every marriage should be given a fair trial. For effecting this principle, every personal law bars court to entertain petition for divorce before passing of one year of marriage. All statutes provide for certain other bars to the relief of divorce, such as, one erring spouse can’t get a decree of divorce if she/he is taking advantage of her/his own wrong. Collusion between spouses in presenting the petition is also a bar. Condoning a matrimonial offence or unreasonable delay in institution of proceedings deprives one from getting the decree.
Content of Petition for Divorce
Every petition for divorce should distinctly contain facts on which the divorce is claimed. It should also state that there is no collusion between the petitioner and other parties. Statements in the petition must be verified by the petitioner or some other competent person. It may be referred to as evidence at the time of hearing.
Jurisdiction of courts and procedures
Different matrimonial and divorce laws have different jurisdictional rules. Under the Divorce Act 1869, the jurisdiction is conferred to the High Court and District Courts. Under the Parsi Marriage and Divorce Act, jurisdiction is vested in the special Parsi matrimonial courts.
Before 1984, a petition for divorce under Hindu Law, Special Marriage Act, and Muslim Law was to be presented in district courts with original civil jurisdiction. In 1984 the Government of India passed the Family Court Act 1984 following the recommendations of the Law Commission in its 59th report. As per this Act, family courts were to be set up for towns exceeding 1 million populations and for such other places as the state government in consultation with the High Court deem necessary. The number of functional family courts was 453 as of May 2016.
The petition of divorce can be presented before the court under whose jurisdiction the marriage was solemnised, or the respondent resides, or the parties to the marriage last resided together.
Some procedures have been laid down in each of the enactments, but additionally, the provisions of the Civil Procedure Code have been made applicable to all matrimonial proceedings.
Evidence and Trial
The family court can receive any document or statement even if it is not relevant as per the Indian Evidence Act 1872. It can also take help of medical and welfare experts for discharging its function.
Proceedings may be held in camera if the court so desires. In case either party desires so, the proceedings shall be held in camera. No person is allowed to print or publish any matter in relation to such proceedings.
Strictness of proof
Divorce is a civil proceeding so the guilt may be proved by balance of probabilities. In early cases, the petitioner has to prove the grounds beyond reasonable doubt. But the same was reversed In N.G. Dastane v. S. Dastane. In this case the Supreme Court held that the society has a stake in the institution of marriage and therefore the erring spouse is treated not as a mere defaulter but as an offender. But this social philosophy has no bearing on the standard of proof in matrimonial cases.
Other aspects of divorce
Maintenance during pending proceedings and afterwards to the spouse having insufficient income, alimony or dower to wife, custody of minor children and division of matrimonial property are matters intertwined with divorce proceedings.
Appeal and period of limitation
Appeal from judgment or order of the Family Court can be made to the High Court within 30 days of passing the order or the judgment.
 N.G. Dastane v. S. Datane, AIR 1975 Sc153