Divorce laws evolve over time to meet society’s changing needs, and this article covers various aspects of divorce law in India.

Under Hindu law, desertion can be grounds for divorce; however, this must occur for at least 2 years and be continuous.

Women’s property rights have increased over time to promote women’s advancement in our nation. Yet they may need support financially after divorce proceedings have ended.

Mutual consent

Divorce by mutual consent is a legal process by which both partners agree to end their marriage without going through an adversarial process of allegations and counter-allegations against one another, saving time and money in lawyer fees as well as stress levels during divorce proceedings. However, courts may still impose conditions despite mutual consent agreements being in effect.

Courts often order couples involved in domestic disputes to attend counseling sessions in order to reconcile and attempt to work things out together. When making custody and support decisions, courts take into account what’s in the best interests of children – typically mothers will receive custody while fathers provide financial support.

According to the Hindu Marriage Act of 1955, an individual may file for a mutual consent divorce after one year has elapsed if exceptional circumstances exist. Such divorces tend to be less expensive as there are no accusations or counter-allegations made against either party involved; however it’s still wise to hire a qualified attorney as their guidance will be invaluable throughout this process.

Separation or breakdown of the marriage

Divorce can be an emotionally taxing experience that requires both partners to navigate various issues together, particularly if children are involved. A divorce lawyer can be invaluable in aiding couples through this difficult journey and in settling any property matters that may arise during or after separation.

District courts have jurisdiction in divorce cases. A petition for divorce should be filed with the court where both spouses last lived together, and after waiting a mandatory six month wait, the judge will consider and grant or deny it accordingly. Depending on their findings, additional investigation or evidence may also be requested from either party; otherwise they will dismiss the case without further proceedings being undertaken.

Under Indian law, divorce may be granted for various reasons such as adultery, cruelty, desertion, mental disorder and venereal disease. Cruelty may include physical as well as emotional harm; to prove cruelty the spouses must show proof of injury, distress or fear from one or both spouses. Adultery was recently decriminalised by the Supreme Court. Furthermore, courts may issue a declaration of nullity, declaring the marriage never existed in its current form.

Irretrievable breakdown of the marriage

India recognizes irretrievable breakdown of marriage as one of its grounds for divorce, though this option should only be utilized when the court is certain that marriage has completely broken down and cannot be salvaged. When making its determination on this basis, courts take several factors into consideration such as length of separation time between partners, nature of allegations against each and other pertinent information.

Mental disorder, adultery, cruelty or venereal disease may all constitute grounds for divorce before going to court. Adultery could be considered grounds if one partner engages in sexual relations with someone other than his/her spouse; cruelty applies when either partner inflicts physical or emotional injury on the other partner; venereal diseases like AIDS could also provide grounds for legal separation.

Divorces cannot be granted on grounds of poverty alone. Instead, courts only grant divorces when there is proof that your marriage has broken down irretrievably and there is no chance for reconciliation – an extremely subjective test which means you need sufficient evidence before filing for one.

Adultery

Adultery is one of the grounds for divorce in India; however, certain restrictions must be considered before using it as grounds. Sexual intercourse must be voluntary rather than forced; thus rape cannot be used as grounds because it occurs under duress and thus it cannot be considered grounds.

As stated previously, evidence must exist of adultery by one or both partners for any divorce on this ground to be granted. If neither can provide this proof, another ground must be used.

Although courts take adultery very seriously, they also consider other aspects of divorce applicants’ circumstances, including whether or not they have children. A six-month waiting period may be waived in these instances if both partners agree to divorce under these grounds.

However, if the petitioner assisted, conspired or colluded with an adulterer then this ground for divorce may be denied by a court. A judge will consider all evidence and make their own decision based on these facts before appealing them further if necessary. It should also be noted that this ground only applies to Hindus; other religions have their own laws regarding divorce and legal separation that differ.

Cruelty

Women may file for divorce on grounds of cruelty if they’ve experienced physical or psychological abuse in their marriage. At first, cruelty was considered one of several grounds for legal separation under Section 10 of the Hindu Marriage Act but later made an independent ground for divorce by an amendment in that Act. For each individual case, court officials will examine its background and circumstances to decide if an act qualifies as cruelty under law; generally speaking any violence or demoralizing action directed against wives within matrimony constitutes cruelty; repeated or persistent behavior can also constitute grounds for divorce filings on these grounds.

Courts also look at whether it can be expected that couples can live together. Minor disagreements and spats don’t constitute cruelty and Courts may attempt to resolve them before awarding a divorce decree.

Tradition has it that Indian women have traditionally suffered abuse and harassment within marriages, yet with the rise of feminism their rights are being protected and men treat their wives with more consideration and respect – though this is not always the case as some misuse legal provisions to force their will onto them.

Mental disorder

India is plagued with various mental illnesses such as anxiety and panic attacks, bipolar disorders, depression, drug or alcohol addiction, post-traumatic stress disorder (PTSD), schizophrenia etc. which often manifest as physical or emotional abuse towards not only their spouse but other family members as well. Many find their marriage burdensome; this is not due to any fault on either partner but rather due to illness that cannot be controlled effectively by either.

No matter their treatability, illnesses listed as grounds for divorce in the Hindu Marriage Act or any other act of law will render marriage invalid and invalidate it as well. That’s why leprosy, which can lead to disability but remains curable today, remains a valid reason for separation, while epilepsy was also previously listed as such a ground until 1976.

The Supreme Court has held that psychological depression alone does not provide grounds for divorce; however, if a spouse concealed her condition prior to marriage or engaged in any fraudulent behavior that caused it, this may be used as grounds for annulling the marriage.

Venereal disease

Venereal disease can serve as grounds for divorce in marriages between Hindus, Muslims, Christians and couples married under the Special Marriage Act (SMA). According to this provision, either spouse may file for a divorce if one party has contracted a contagious form of venereal disease and can provide medical records as proof. Both parties should have also been aware of this at the time of marriage.

The term ‘contagious’ refers to diseases transmitted via sexual contact; however, this definition does not include HIV due to its infancy at the time it was written into law and doesn’t cover AIDS which wasn’t yet recognized when legislation was written. Additionally, HIV remains largely overlooked as it remains one of the more prevalent sexually transmitted diseases which can potentially prove fatal.

Adultery may no longer be legal offense in India but still appears among the grounds for divorce among Hindus, Muslims, Christians and Parsis. Adultery applies to any woman who has slept with anyone other than her spouse; petitioners can also file for divorce due to rape, sodomy and bestiality as grounds.