Reasons, Types and Laws pertaining to Divorce


What is Divorce

Divorce is the process in which spouses file a petition for their legal separation in the court. A couple seeks divorce for numerous reasons. It could be either divorce by mutual consent or contested divorce. The innocent party solely has the right to procure the remedy of divorce. The guilty party loses the eligibility to file a petition. Justice is served to both the parties if both of them are at fault. According to the law, the primary reasons would be adultery, cruelty, renunciation of the world, desertion, child marriage, marital rape, presumed death, conversion, communicable and venereal disease and unsound mind.


 Cruelty is a concept where a spouse is either physically or mentally abused by the other or both. The former involves causing bodily harm and indulging in physical violence. The latter is when a husband or wife is mentally tortured, which is likely to affect the physical and mental health of the victim.


When a spouse involves sexual intercourse with any person outside the marriage, then the other can demand a divorce from the court. Intimacy with another person is not regarded as adultery. The spouse must have an extramarital sexual affair to be proved as a guilty party.


A spouse abandons the other without their consent and with no proper reason for the abandonment. It does not necessarily involve leaving the partner, repudiation of the obligations of marriage would also fall under this category.


Marital rape means when a spouse is forced into sexual intercourse or action without their consent. It does not require a guilty party to abuse the victim physically. The lack of consent to sexual intercourse is considered a similar crime rape outside marriage. Marriage does not give one the licence to force their spouse into a sexual act.


If any news is not heard about the person by any of their family or friends of the missing person for seven years, the person is presumed to have died. In that case, the party demanding divorce must take the burden to prove.


The concept of conversion means the conversion of one party into another religion without the spouse’s consent. The one who converted into another religion relinquishing his/her religion is legally restricted to demand divorce on this ground. The other party lawfully has the right to seek divorce.

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A spouse can approach the court if their partner has venereal or sexually transmitted disease. This would communicate quickly to the other, which would affect their life. Infectious disease like Leprosy becomes the ground for a party to get a divorce as well. Hence, in this case, the spouse can file a suit to obtain a divorce as it is considered to be infectious and highly contagious.


When a person is mentally ill and is incurable of unsound mind to such an extent that the respondent is unable to live everyday life with their spouse, in such case, the partner is allowed to get a divorce either with mutual consent or the victim can claim divorce in the court.


Mutual divorce is when both husband and wife agree to break their relationship in free will. Both the party can apply for divorce in this process.


In a contested divorce, one wilfully initiates divorce as the person is no longer ready to stay in the relationship, say, due to heated disagreements. Still, the other is reluctant to agree to break the relationship. The spouse who refuses to give a divorce is willing to stay in the relationship. The party filing a petition need to have firm ground and evidence to prove their innocence or the spouse’s guilt. This kind of divorce is complicated and takes time to get a divorce. Not to forget that weaker evidence and the no more vital ground is mostly to affect the final decree of the court. The contested party might not always get a positive result from the court due to lack of evidence or no proper reason to file a divorce. Notably, the final judgement of the court is completely premised on the religious laws they fall under.


Different religion has different laws in India. Hence little knowledge about the divorce law is essential for both the parties to apply for divorce. Hindus, Buddhists, Sikhs and Jains are entitled to seek a divorce based on “THE HINDU MARRIAGE ACT of 1955”, Christians by the Indian Divorce Act of 1869 and Muslims by the Dissolution of Muslim Marriages Act of 1939. Separate laws are formulated for Interfaith marriages to know more check this table which contains more details about all Acts.

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