Matrimonial & Divorce Law in India

Under the Hindu Marriage Act, 1955, Section 13 deals with the provision relating to Divorce on the grounds of :-

Adultery – The act of indulging in any kind of sexual relationship including intercourse outside marriage is termed as adultery. Adultery is counted as a criminal offence and substantial proofs are required to establish it. An amendment to the law in 1976 states that one single act of adultery is enough for the petitioner to get a divorce.

Cruelty – A spouse can file a divorce case when he/she is subjected to any kind of mental and physical injury that causes danger to life, limb and health. The intangible acts of cruelty through mental torture are not judged upon one single act but series of incidents. Certain instances like the food being denied, continuous ill treatment and abuses to acquire dowry, perverse sexual act etc are included under cruelty.

Desertion – If one of the spouses voluntarily abandons his/her partner for at least a period of two years, the abandoned spouse can file a divorce case on the ground of desertion.

Conversion – Incase either of the two converts himself/herself into another religion, the other spouse may file a divorce case based on this ground.

Mental Disorder – Mental disorder can become a ground for filing a divorce if the spouse of the petitioner suffers from incurable mental disorder and insanity and therefore cannot be expected from the couple to stay together.

Leprosy – In case of a ‘virulent and incurable’ form of leprosy, a petition can be filed by the other spouse based on this ground.

Venereal Disease – If one of the spouses is suffering from a serious disease that is easily communicable, a divorce can be filed by the other spouse. The sexually transmitted diseases like AIDS are accounted to be venereal diseases.

Renunciation – A spouse is entitled to file for a divorce if the other renounces all worldly affairs by embracing a religious order.

Not Heard Alive – If a person is not seen or heard alive by those who are expected to be ‘naturally heard’ of the person for a continuous period of seven years, the person is presumed to be dead. The other spouse should need to file a divorce if he/she is interested in remarriage.

No Resumption of Co-habitation – It becomes a ground for divorce if the couple fails to resume their co-habitation after the court has passed a decree of separation.

However certain grounds of divorce are exclusively available to Wife i.e. If the husband has indulged in rape, bestiality and sodomy. 

• If the marriage is solemnized before the Hindu Marriage Act and the husband has again married another woman in spite of the first wife being alive, the first wife can seek for a divorce.
• A girl is entitled to file for a divorce if she was married before the age of fifteen and renounces the marriage before she attains eighteen years of age.
• If there is no co-habitation for one year and the husband neglects the judgment of maintenance awarded to the wife by the court, the wife can contest for a divorce

Types of divorce: Broadly, divorce can be a Contested Divorce or a Mutual Divorce.

A Divorce is a contested divorce where either spouse is not willing to grant divorce and thereafter the other spouse can not live with the other and moves a court on any of the grounds specifies in Section 13 of the Hindu Marriage Act, 1955.

A mutual divorce on other hand is a divorce where both the spouses are willing to take divorce.

Procedure to take Divorce in India:-

Steps by Step Contested Divorce:-

1. Either spouse can approach the Principal Judge of Family Court established under the Family Courts Act and file a petition. In Delhi usually court fees of Rs. 13 is attached with the petition and is filed at the filing counter of family courts. Thereafter the filing counter gives the filing party a date for admission before the Family court and thereafter the Principal Judge of the Family Court hear the matter for its admission and on the satisfaction of the Judge, a summon is sent to other Spouse or his family members as the case may be.
2. Summon is received the other spouse & file his/her reply.
3. After the reply, if any petitioner can file rejoinder
4. Issues framed by the Principal Judge of Family Court.
5. Petitioner lead evidence in its favour
6. Respondent lead evidence in its favour
7. Final Arguments 
8. Pronouncement of JUDGMENT.
9. Decree of Divorce is granted or rejected.

Steps by Step Mutual Divorce:-

Both spouses moves a joint petition to the Principal Judge of the Family Court and thereafter a cooling off period 6 months to 18 months are given to both parties to make right decisions. 

After the completion of cooling period once again a joint petition is moved before Principal Judge of the Family Court and thereafter recording of statements of both the parties, a decree of Divorce is granted.

Important points to note:- 

1) Jurisdiction of case is decided according to 

a) last residing of husband and wife

b) where the wife presently residing

c) where the marriage took place

2) 6 months to 18 months cooling off period can be waived of by the court subject to just exceptions in the case.

3) it is advisable to take help of legal specialist in the matter before initiating any sort of matrimonial litigation.