No marriage is perfect, and sometimes divorce is the best option for both parties. However, going through a divorce can be a long and complicated process, especially if you don’t know the law. If you are considering filing for divorce in India, it’s important to understand the grounds on which you can do so. This will help ensure that the process goes as smoothly as possible.
The present laws and rules must be modified in order to reflect societal developments. It is crucial to take both men’s and women’s perspectives into account while analysing various parts of a case.
Marriage and divorce are both major life transitions. Divorce proceedings are decided in large part thanks to the court’s discretionary powers. Marriages cannot end suddenly. Therefore, it is necessary to modify the India divorce laws and grounds in order to meet societal needs.
In India, there are several grounds for divorce under the Divorce Act of 2021. Here are some of the most common grounds for divorce in India:
- Conversion to another religion
- Mental illness
- Presumption of death
The Concept of Divorce under Indian Law
In India, the concept of divorce is relatively new. The first divorce law was enacted in 1869, and it was not until 1949 that the country’s divorce laws were codified. Prior to that time, divorces were granted on a case-by-case basis by individual courts. Under Indian law, there are two types of divorce: mutual consent divorce and contested divorce. As per the experts of Lex Solutions, a noted legal firm in Chandigarh, there are primarily two types of divorces such as;
Mutual consent divorce is granted when both parties agree to the terms of the divorce and there are no grounds for contesting the divorce.
Contested divorces are granted when one party does not agree to the terms of the divorce or there are grounds for contesting the divorce.
- The grounds for obtaining a contested divorce in India include adultery, mental cruelty, desertion, conversion to another religion, and physical cruelty.
- In addition, a woman can also obtain a contested divorce if her husband has been convicted of rape, sodomy, or bestiality; if he has been sentenced to imprisonment for seven or more years; or if he has contracted a venereal disease.
- Once a contested divorce is filed, the court will hear from both parties and make a determination as to whether or not the grounds for contesting the divorce have been met. If they have been met, then the court will grant the divorce; if not, then the marriage will remain intact.
Grounds for Divorce in India under Divorce Law 2021
There are grounds for divorce in India under the Divorce Law 2021. Matrimonial disputes are common ground that leads to divorce. The grounds for divorce are as follows:
1) Adultery: Adultery is defined as voluntary sexual intercourse between a married person and a person who is not his or her spouse. If either spouse commits adultery, the other spouse may file for divorce.
2) Cruelty: Cruelty is defined as any conduct that causes physical or mental harm to the other spouse. Cruelty is a ground for divorce if it is of such a nature that it causes mental or physical suffering to the aggrieved party which makes it difficult for them to live together. If either spouse commits cruelty, the other spouse may file for divorce.
3) Desertion: Desertion is defined as wilfully abandoning one’s spouse without his or her consent. The deserted spouse must also have been living apart from their partner for at least two years before they can file for divorce on this grounds. If either spouse commits desertion, the other spouse may file for divorce.
4) Conversion to another religion: If either spouse converts to another religion, the other spouse may file for divorce. This provision applies only to marriages solemnized under the Special Marriage Act, 1954.
5) Mental illness: If either husband or wife suffers from mental illness, then the aggrieved party can file for divorce on this ground. This provision applies only to marriages solemnized under the Special Marriage Act, 1954.
New rules for Divorce in India 2021
In 2022, the grounds for divorce rules in India are set to change. Currently, under Indian law, a couple can file for divorce on the grounds of:
- Mutual consent
- Mental cruelty
- Conversion to another religion
- Infection with a communicable disease.
However, from 2022 onwards, the grounds for divorce will be expanded to include:
- Domestic violence
- Dowry harassment
- As well as Child marriage
Other New Rules for Divorce in India under Divorce Law 2021
Exempting the required six-month rehabilitation period:
Section 13B (2) states that when spouses file for divorce with mutual consent, the court must provide them with a six-month window to contemplate whether they might want to alter their minds.
A six-month recovery time was required. However, under the current regulation, it is no longer required and is instead up to the court’s discretion.
Depending on the unique facts and circumstances of the case, the court may determine whether a six-month rehabilitation period is necessary or whether the couple should be permitted to divorce right away.
Irretrievably Breakdown of Marriage, a Legal Basis for Divorce:
Separation or the breakup of a marriage occurs when a couple determines they can no longer coexist as marital partners. The partners do not live as husband and wife, whether they share a home or not. In terms of divorce law, there are no specific guidelines for this matter.
Whether the separation can serve as the basis for divorce is up to the court’s discretion. The court may let the divorce go through if it determines that there is no chance of the pair reconciling or if one or both of the spouses refuses to live together.
Extension of the Maintenance Law to In-Residence Relationships:
According to the Hindu Marriage Act of 1955, the court has the authority to issue maintenance payments. This is done to assist the ladies in keeping their level of life the same following a divorce.
- Under Section 125 of the Criminal Procedure Code, the wife may request support if the marriage is not governed by Hindu law.
- According to the legislation, a live-in relationship is regarded as a marriage. Therefore, under the Code of Criminal Procedure, a woman who lived with someone else may likewise seek support from that person. There is also no requirement to show precise proof of marriage if the partners have been living together for a long period.
- According to the new regulations, even if the wife or live-in partner is not qualified to file a claim under the Criminal Procedure Code, she may nonetheless seek redress under the Protection of Women from Domestic Violence Act, 2005.
- Under the Protection of Women from Domestic Violence Act, the victim lady may be entitled to more remedy than what is provided under the Code of Criminal Procedure.
Adultery is not a crime:
The new laws permit adultery to be used as a basis for divorce, but they do not penalise it. The court made the observation that punishing the husband and the adulterous partner cannot be a solution to save the marriage. Although adultery is a legitimate basis for divorce, there is no legal penalty for it.
Divorce Cannot Be Filed on the Basis of Triple Talaq:
According to Islamic law, uttering the word “Talaq” three times is sufficient to cause a divorce. Due to the fact that it provides Muslim males with the authority to end a marriage on their own, this practice is discriminatory to Muslim women.
Divorce under personal law cannot supersede a civil court's authority:
Only the Civil Court has the authority to order a divorce. Any divorce conditions in India that are approved by the Christian Church or another personal law are void.
In the Molly Joseph v. George Sebastian case, the Apex Court ruled that the only action a competent court could take was to dissolve a marriage. Any order issued by a personal law or ecclesiastical tribunal shall be superseded by the order or decree of the civil court.
How do the New Rules Benefit Women?
This is a welcome change for many women in India who have been victims of domestic violence or dowry harassment.
- The expansion of the grounds for divorce will provide them with much-needed legal protection and allow them to seek a divorce on grounds that are more relevant to their experiences.
- Child marriage is another important issue that will be addressed by the new rules. In India, there are still many child marriages taking place despite it being illegal. The new rules will help to protect children from being forced into marriage and will provide them with a way out if they do find themselves in this situation.
Also Read: The rights of a women in Hindu Marriage Act
Law Firms like LEX SOLUTIONS can help you with your legal needs. Divorce is always a difficult decision to make, but sometimes it is the only option. If you are considering divorce in India, it is important to know the grounds for divorce under Divorce Law 2021. These grounds can include adultery, mental or physical cruelty, abandonment, and more. Be sure to speak with an attorney about your specific situation before making any decisions.
The changes to the new grounds for divorce in India were set to come into effect from January 1st 2022. This gives couples plenty of time to adapt to the new rules and ensure that they are familiar with all of the changes. For anyone going through a divorce in India after 2022, it is important to seek professional legal advice so that you can fully understand your rights and how the new rules may affect your case.