A divorce is undoubtedly one of the most life-changing experiences for a couple. Often the entire process is more challenging for women, especially if there are children involved.
While there’s no easy way to go through a divorce, a somewhat less complicated way can be to get a Divorce by Mutual Consent. In such cases, both the husband and the wife agree to a divorce and approach the court together to get their marriage dissolved.
If the couple decides to opt for a divorce by mutual consent, they must prove that they have been living separately for more than a year and have not been able to live together. Matters such as maintenance rights, custody of children and rights in relation to any property can be agreed upon between them.
Yet, in most cases, the husband and the wife fail to come to an agreement, which leads to their divorce being contested.
Where the couple is unable to reach a consensus on the matter, either one of them can file for a Divorce Without Mutual Consent.
Note that the scope of this blog post is limited to divorces among Hindus, Buddhists, Jains and Sikhs as laid out under the Hindu Marriage Act, 1955. Divorces with regard to other religions in India will be dealt with in other blog post(s).
Grounds on which a wife can file for a divorce
A wife can approach the court for a divorce on the grounds that:
- the husband has had sexual intercourse with someone other than the wife. To be considered a valid ground for divorce, the sexual intercourse must have been voluntary, and it must have taken place after the marriage was made legal. Note that a single act of adultery will be enough to rely on this ground for obtaining a divorce. Also note that proof of actual penetration is not required to qualify for the act of adultery.
- the husband has treated the wife with cruelty. Both physical and mental cruelty are included under this ground, though the cruelty must have occurred after the marriage was made legal. While it may be easier to ascertain physical cruelty, cases of mental cruelty are generally left for the courts to determine based on the facts and circumstances of each case. Courts generally look at numerous episodes of mental cruelty in the duration of the marriage, rather than viewing a few incidents alone. Mental cruelty includes instances of abusive behaviour, repeated humiliation, false allegations and unreasonable demand for money.
- the husband has left the wife without good reason and against the wishes of the wife. The husband must have intentionally abandoned the wife and the abandonment must have been for a period of at least two years just before the wife approaches the court. This includes cases where the husband has deliberately ignored the needs of the wife and, in doing so, has rejected his marital duties.
- the husband has converted to another religion and is no longer a Hindu. The wife can rely on this ground for a divorce if the husband has converted to a non-Hindu faith like Islam, Christianity and Zoroastrianism (religion of Parsis). This ground cannot be relied upon where the husband has converted to Jainism, Buddhism or Sikhism as Jains, Buddhists and Sikhs are considered Hindu by religion.
- the husband suffers from a mental disorder of a sort that it is impossible for the wife to live with him or is of a kind that is not curable. Mental disorders here include psychopathic disorders and schizophrenia. Mental illness could be either continuous or occasional.
- the husband suffers from a sexually transmitted disorder which is contagious in nature. The disorder must not have been transmitted to the husband by the wife.
- the husband has chosen to live like a sannyasi. In other words, the husband has completely given up on worldly affairs by entering any religious sect.
- the husband has been missing for seven years or more and no one has heard from or of him as being alive for this period.
- even after one or more year(s) of a ‘judicial separation’ decree by a court, the husband and the wife have not started living together as a married couple again. After a ‘judicial separation’ decree has been passed by a court, the husband and the wife are no longer obligated to live together.
- even after one or more year(s) of a ‘restitution of conjugal rights’ decree by a court, the husband and the wife have not started living together as a married couple.
- the husband already had a wife living when he married the current wife. It is important that the other wife is still alive when the divorce case is filed.
- the husband has been guilty of rape, sodomy or bestiality. The terms sodomy and bestiality mean unnatural sexual acts with a man, woman or animal. To be considered a valid ground for divorce, these acts must have occurred after the marriage was made legal.
- even after one or more year(s) of a maintenance order against the husband and in favour of the wife, the couple still hasn’t started living together.
- the wife was married when she was a child i.e. before she was 15 years of age, and that she has rejected the marriage after turning 15 but before turning 18 years of age.
Under the Hindu law a marriage is considered a sacred bond between a husband and a wife. Laws have been laid out in a manner that individuals are discouraged to break this union. The idea is to give every possible chance to a couple to reconsider their decision to get a divorce.
However, the law itself recognises instances that are compelling enough for individuals to want to part ways with their spouse. The damage done by certain experiences can be so lasting that it may become impossible to resolve any differences.
Talking about a divorce is never easy, which increases the chances of being misinformed about the issue. The more we become aware of these laws, the easier it will become for us to assert our rights, whether or not we choose to go down the path of a divorce.
[Disclaimer: This post is an attempt to raise awareness of laws affecting Indian women. The post is only for general information and is not meant to substitute legal advice.]
