When Marriage Ends: What the Law Says About Divorce
Marriage is a serious emotional and legal commitment. But when irreconcilable breakdowns occur, Indian law does provide a disciplined and orderly procedure for separation and finalisation. The divorce laws in India aim not only to dissolve marriages but also to ensure a fair and decent way out, thereby protecting the dignity of both spouses.
Understanding Divorce Under Indian Law
In India, divorce is governed by personal laws based on religion, including:
- Hindu Marriage Act, 1955 (for Hindus, Buddhists, Jains, Sikhs)
- Special Marriage Act, 1954 (for interfaith marriages)
- Indian Divorce Act, 1869 (for Christians)
- Parsi Marriage and Divorce Act, 1936 (for Parsis)
Every law defines the grounds, procedures, and conditions for getting a divorce.
Grounds for Divorce Under the Hindu Marriage Act
The Hindu Marriage Act, 1955, prescribes definite legal grounds on which either of the spouses can seek divorce under Section 13. It acknowledges that there may be a situation that makes it impossible for the couple to continue their marital relationship.
Sexual Relationship
The voluntary sexual relationship of one spouse with someone other than his or her spouse would amount to adultery.
It was earlier considered a criminal offence, but the Supreme Court in Joseph Shine vs. Union of India, 2018, decriminalised it. But under matrimonial law, it is still a valid ground for divorce.
Example: If one of the spouses commits adultery, the other spouse can seek divorce on the grounds of adultery.
Cruelty
Cruelty can be either physical or mental. It means the tendency of one spouse to cause physical pain, emotional suffering, or mental distress to the other spouse.
Examples of cruelty include:
- Physical violence or abuse
- Constant humiliation or insults
- Slanderous accusations
- Emotional neglect
- Forcing the spouse to live apart without justifiable reasons
The courts examine cruelty case by case, depending on the intensity and impact of the conduct.
Desertion
Desertion-Where a spouse willfully abandons or departs from the other without reasonable cause and without consent.
To constitute a ground for divorce:
The desertion must be for a continuous period of at least two years before filing the petition.
Conversion to Another Religion
If one spouse converts to another religion and thereby ceases to be a Hindu, a divorce can be sought by the other spouse.
For example, if one of the partners converts to Islam or Christianity, the marriage can be dissolved on this ground.
The reason is that conversion alters the personal law governing an individual, and it may be impossible for the spouses to cohabit under one legal system.
Mental Disorder
The spouse can seek a divorce if the other party:
- Has been incurably of unsound mind, or
- Suffers from a mental disorder of such a kind and to such an extent that the respondent cannot reasonably be expected to continue a normal marriage with the petitioner.
However, courts are very cautious when applying this ground and usually rely upon medical evidence.
Mild or temporary mental illness is not sufficient; the condition must render it impossible to live together.
Incurable Disease (VD or Leprosy)
Previously, diseases like leprosy and some venereal diseases were considered to be sufficient grounds for divorce on their own.
After many legal reforms and medical advancements, the 2019 amendment deleted leprosy from the list of grounds, but it still recognises venereal disease in a communicable form.
Renunciation of the World
Marital dissolution is allowed if a spouse renounces worldly life by entering a religious order or becoming a sanyasi or monk.
The renunciation has to be in a formalised manner as understood in Hindu religious functions.
Presumption of Death
If a spouse has not been heard of as alive for seven years or more, the other spouse can seek a divorce.
It is based on a legal presumption of death. The petitioner must prove that all efforts to trace the missing spouse have failed and that no one from their family or circle has heard from them during that time.
Divorce by Mutual Consent (Section 13B)
It was introduced by the Marriage Laws Amendment Act, 1976, and Section 13B enables the spouses to dissolve the marriage by mutual consent, where the spouses have come to an agreement that the marriage has irretrievably broken down.
Conditions:
- The couple must have lived separately for at least one year.
- They must both agree to dissolve the marriage.
- They must file a petition for a mutual consent divorce together.
This is the most peaceful and efficient way of ending a marriage, since there are no unnecessary disputes or litigation.
Case Study: Saroj Rani vs. Sudarshan Kumar Chadha (1984)
The case of Saroj Rani vs. Sudarshan Kumar Chadha is an important landmark judgment of the Supreme Court of India that has upheld the constitutional validity of Section 9 of the Hindu Marriage Act.
Facts of the Case
Saroj Rani filed an application under Section 9 for restitution of conjugal rights against her husband, Sudarshan Kumar Chadha, alleging that he had withdrawn from her company without reasonable cause.
The decree was granted in her favour in the trial court.
Subsequently, when the husband did not comply with the decree, he filed an application for divorce under Section 13(1A)(ii), which provides for divorce upon the failure of a party to restore cohabitation for one year after the decree of restitution.
Judgment
The Supreme Court affirmed the decree of restitution and held that Section 9 is not unconstitutional.
It held that:
“The object of Section 9 is to offer an opportunity to the parties to live together and make an attempt at reconciliation. It serves a social purpose in preventing the breakdown of marriage.”
The Court rejected the contention that it violates Article 21 of the Constitution-Right to Life and Personal Liberty.
Significance of the Judgment
- It reaffirmed that the Restitution of Conjugal Rights aims to preserve marriage, not to coerce.
- It provided a legal ground for divorce if cohabitation does not resume even after the decree.
- It became a precedent in matrimonial disputes involving desertion or non-cohabitation.
Criticism of Restitution of Conjugal Rights
Still, Section 9 remains highly criticised by many due to its intrusion into people’s privacy, though it is legally recognised.
Main Criticisms :
- It violates personal autonomy and privacy by keeping a person against their will with another.
- This is often ineffective at restoring marital relationships, as emotional and personal issues cannot be legally enforced.
- Some High Courts, like Andhra Pradesh in T. Sareetha vs. T. Venkata Subbaiah (1983), even held Section 9 as unconstitutional, though the Supreme Court later overruled this view in Saroj Rani’s case.
Divorce After Restitution of Conjugal Rights
If the decree for restitution of conjugal rights is not complied with for one year, either spouse can file for divorce under Section 13(1A)(ii) of the Hindu Marriage Act.
How to File for Restitution of Conjugal Rights
Step 1: A petition under Section 9 of the Hindu Marriage Act can be drafted and filed in the family court.
Step 2: Add facts that reflect withdrawal without reasonable cause.
Step 3: Court sends notice to the other spouse.
Step 4: Evidence and arguments are presented.
Step 5: The court, upon satisfaction, grants a decree for restitution.
When Can You Seek Divorce Instead?
If reconciliation is not possible or the marriage has broken down completely, a spouse can directly file for divorce under Section 13 on grounds of cruelty, adultery, or desertion, or under Section 13B for mutual consent divorce. The restitution of conjugal rights is a strategic step when one spouse deserts the other without any justifiable cause. This is not to be used as a coercive tool. A family lawyer will help you determine whether filing for restitution or divorce is the better legal route, depending on your situation.