Are you thinking divorce?
Before jumping to any conclusion or running to a lawyer, or even uttering it aloud, we recommend that you take some time to think the matter over, and confirm whether your situation will fulfill the grounds of divorce in an Indian court of justice. It is very common for people to file a petition under the influence of well-wishers who do not have enough knowledge to advise correctly on legal matters. And, while ideally a lawyer should be able to explain the right course of action but it doesn’t always happen that ways. Every year thousands of individuals end up losing their case just because of lack of knowledge and preparation.
If you are perturbed about your married situation, and want to find out where would your divorce petition stand when judged through the Indian legal framework, read further about the acceptable reasons for divorce. These are clearly outlined in various acts of the Indian judicial system, for example the Section 13 of The Hindu Marriage Act, 1955 as amended up to date, or the Special Marriage Act, 1954, and so forth.
The moment you hear of an illegitimate relationship of a married individual with another person, you think adultery. However, there’s more to it than what comes to mind. A married person wishing to file a divorce petition against his or her spouse on the basis of adultery must have sufficient proof. With the popularity of Whatsapp, Facebook and other mobile and digital platforms for romantic exchanges increasing each day, it is not difficult at all to trace adulterous escapades of one’s partner. Either party to the marriage may present a petition for divorce on the ground of adultery. The Special Marriage Act,1954 also recognizes adultery -an act of consensual sexual intercourse by a married person with someone other than his or her spouse, while the spouse is still living – as a reasonable ground for divorce.
Cruelty is a very complex area of marital dispute – so easy to assert and yet difficult to prove. How is cruelty defined as a ground for divorce? What kind of act would be deemed cruel in a relationship? Isn’t cruelty relative? Well, first and foremost, we must remember that cruelty was a ground for judicial separation according to The Hindu Marriage Act, 1955. After the Marriage Laws (Amendment) Act 1976, cruelty has been made a ground for divorce as well as judicial separation. Cruelty could indicate certain actions that result into unbearable physical, mental, or emotional stress in a couple’s relationship. If a petitioner decides to use this as grounds for divorce, then he or she has to prove that the respondent has behaved in a way which makes it unacceptable to continue living with him or her. In case of physical cruelty, it is quite simple to establish the nature and degree of cruelty but not so much in the case of mental or emotional. Most recently, a new judgement has clearly outlined that economic exploitation of the spouse comes under economic cruelty.
Marriage and religion are very closely intertwined in the Indian society. Marriages are primarily based on the religion one follows. Since parents tend to arrange marriages for their children, they will scout for a match in their own community following the same religion. Conversion after marriage can be a tricky thing for the partner who has not been taken into confidence before the change happens. According to The Hindu Marriage Act, 1955, if a person ceases to be a Hindu by conversion to another religion, he or she will be eligible to apply for divorce based on the ground of conversion.
Unsoundness of Mind
One of the most important aspects of marriage other than sexual fulfillment and reproduction is companionship. That companionship is further sweetened by love, romance, caring, sacrifice and commitment. It is difficult to expect strong and long term companionship from a partner who suffers from mental disorder. The legal term used for establishing this situation as grounds for divorce is “‘uncurably of unsound mind”. The petitioner must be able to prove that not only is the respondent of unsound mind to the extent that it is beyond cure, but that the condition has persisted for at least three years preceding the day the application for divorce is filed. The court demands clear evidence from the petitioner that proves that it is not possible to live with the respondent because of the extent of his or her insanity. A simple psychological condition or mental abnormality is not acceptable in court as a reason for divorce. At some point recurring epilepsy was also a disqualification for marriage but it has lately been removed from the list of grounds for divorce. If your spouse is able to answer questions intelligently in the court, your petition might not be successful.
Virulent and Incurable Leprosy
For the longest time, leprosy was considered a communicable disease. This made it difficult for people to carry on with their married life especially if they were not told before marriage that the potential partner suffered from this disease. The Hindu Marriage Act, 1955, the Dissolution of Muslim Marriage Act, 1939, the amended Indian Divorce Act, 1869, Special Marriage Act, 1954 and The Hindu Adoption and Maintenance Act, 1956 had unanimously approved of leprosy being a reasonable reason for a spouse to petition divorce against the affected partner. So far the petitioner has to prove that the respondent is suffering from a virulent and incurable form of leprosy.
If any one of the spouses is suffering from a venereal disease in a communicable form, it suffices as a ground for divorce in India. THe Venereal Diseases Act 1917 recognized Syphillis, Gonorrhea or soft chancre as venereal diseases. Most recently, HIV Aids has been accepted as a communicable venereal disease as well and therefore, a spouse can file divorce if his or her partner is HIV Aids patient.
If a spouse decides to enter a new religios order to the effect that s/he renounces active worldly and especially married, life, the other spouse can call it quits and file divorce. However, it is important to prove that this transition is religiously recognized as renunciation equivalent to civil death. Merely sporting a saffron robe or holding a religious post doesn’t equate to being a ground for divorce.
Unheard of Being Alive
A petitioner can file divorce on grounds that the respondent has not been heard of as being alive for at least a period of seven years, or more, by those persons who would naturally have heard of it, had that party been alive. However a petitioner must prove in court that the respondent is not alive and that the petitioner has undertaken steps to inquire or search his or her spouse. In special circumstances such as when respondent is absconding or evading law, this presumption of death will not hold ground.
If the married couple has not resumed co-habitation for at least one year since the decree for judicial separation was passed by the district court, either of the spouses can file a petition for divorce. In this context, resumption of habitation means restitution of conjugal life which does not necessarily imply sexual intercourse or living together under the same roof.
No Resumption of Co-habitation
Once a married couple applies for divorce, the court will give them a decree of judicial separation which has to last at least one year from the day it was issued. This judicial separation has to be followed strictly in order to obtain the decree of divorce. If cohabitation has not been resumed between the couple, they are entitled for divorce.
Non-compliance with a decree of restitution of conjugal rights
While a couple is going through marital issues and living separately (judicial separation), the court might pass a decree to resume conjugal rights. Once the decree of restitution of conjugal rights has been passed, and yet the couple did not resume their conjugal life together, it presents a ground for divorce. Either of the spouses can then apply for divorce based on non-compliance of the decree. It is clearly indicative that there are scarce chances of a reconciliation and that the spouses should be provided relief.