What are the various grounds of divorce?

What are the various grounds of divorce?

Date : 29 Feb, 2020

Post By Adv. Prema K.

In India, marriages are considered to be a sacred commitment and are solely governed by our traditional rites and rituals and therefore consequently divorce, is also governed by the customary laws specific to one’s religion. Divorces among the Hindu, Jains, Buddhists, and Sikhs are governed by the Hindu Marriage Act, 1955, that between a Muslim couple is governed by the Dissolution Of Muslim Marriage Act, 1939, between Parsis through Parsi Marriage and Divorce Act, 1936 and among Christians by India Divorce Act, 1869. All the inter-caste, inter-religion or inter-community marriages and divorces are governed by the Special Marriage Act, 1954. 

In simple terms, Divorce can be defined as a legal process by the virtue of which dissolution of holy matrimony takes place governed by the set procedures of law.


GROUNDS OF DIVORCE ( MEN AND WOMEN) 

Under our Indian laws, most of the divorce grounds are based on the guilt or fault theory. However, it becomes pertinent to keep in mind that every disagreement between the married couple or any hardships and challenges which are a part of any relationship bound by matrimony does not form a ground for divorce in India.

In general, the grounds of divorce common for both a man and a woman in a marriage can be generalized and summarized as under as provided under the various customary and statutory laws governing divorce in India. 



  1. Adultery: The act of indulging in a sexual relationship outside of marriage is known as adultery. In a scenario where anyone of the spouses indulges in an extramarital affair, it entitles the other spouse to file a divorce petition in the appropriate court of law. 


  1. Cruelty: it is a common belief that only the woman in a marriage is entitled to file for divorce on grounds of cruelty. However, our Indian divorce laws give the husband the right to divorce his wife in case he suffers from any form of cruelty from his wife, whether emotional, mental or physical.


  1. Desertion: if any one of the parties to the marriage abandons his/her spouse for a period of more than two years, the party which is suffering is entitled to file for a divorce petition in the appropriate court of law.


  1. Conversion: in a scenario where either of the two parties to a marriage undergoes a change in faith and/or religion, the other party automatically gets the right to file for divorce. 


  1. Mental disorder: in cases where one of the spouses suffer from a mental disorder or insanity which is of incurable nature, such insanity or mental disorder becomes a valid ground for divorce. 


  1. Leprosy: where one of the spouses suffers from the leprosy of “virulent or incurable” nature the other spouse becomes entitled to file for divorce. 


  1. Venereal disease: if the husband or the wife suffers from a communicable venereal disease it becomes a valid ground for divorce. 


  1. Renunciation: in a case where either of the spouses has opted for sanyaas, the other spouse can very well file for a divorce before the appropriate court of law.

 

  1. Presumption of death: if either of the spouses has not been heard from for a period of more than seven years then a divorce petition can be filed by the party which is suffering.

  2. No resumption of cohabitation: if the married couple fails to cohabit as husband and wife during the course of the marriage or in other words if either of the spouses is denied a reasonable or ‘ expected’  sexual intercourse during the course of the marriage and in a scenario where there is an absence of sexual intercourse between the spouses, it becomes a reasonable ground for divorce.



RIGHTS AND ENTITLEMENTS 

Divorce is a complicated procedure as there is a separation of then lives that a married couple shared. There are many areas and aspects which are constantly challenged and deliberated upon during such proceedings.  However such disagreements and points of contention can be broadly classified into 

  1. Property

  2. Child custody 

  3. Alimony or maintenance

In general, the wife is entitled to receive a set maintenance amount till the time of her remarriage from her estranged husband which is decided in accordance with the financial capability of the husband, however with the changing dynamics of the position of women in the society the honorable courts of India have in many cases held that if a woman is capable of earning and maintaining herself by the virtue of her professional success the husband is then not liable to pay maintenance to his estranged wife.

When it comes to child custody mother is usually preferred to be the primary custodian when the child is of tender age, however, the issue of custody is based upon the best interest of the child and his or her personal preferences.  It is crucial to note that the earning capacity of any of the parties is, not a deciding factor while adjudicating upon the issue of child custody. The “best interest” of the child shall always be the deciding factor in these cases. 


CONCLUSION 


India is a country where marriages are considered to be a sacred commitment. At the background of such values and ideology, the phenomenon of divorce becomes a tedious and challenging step for the estranged couple. In addition to fighting the challenges of such separation, the couple also has to fight the social stigma. In light of these challenges, the Indian divorce laws are fair and practical for both the parties involved. It gives ample time for the estranged couple to reconcile and if the reconciliation fails the interest of both the parties is protected and considered to a fair extent.


The author of this blog is Adv. Prema K. having an experience of 17+ years in handling Divorce related matters from her experience she wants to share this beneficial information for the individuals having any issues with respect to Divorce related matters.

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