Divorce / Divortium /

Divorce is the legal dissolution of a valid marriage by a court decree, permanently ending the marital status of both parties and releasing them from their mutual obligations as spouses. After a divorce, both parties are free to remarry. In India, divorce law is governed by personal law: (1) Hindus — Hindu Marriage Act, 1955 Section 13; (2) Muslims — Muslim personal law (Talaq, Khul, Mubarat — though the Muslim Women (Protection of Rights on Marriage) Act, 2019 criminalises instant Triple Talaq); (3) Christians — Divorce Act, 1869 (amended 2001); (4) Parsis — Parsi Marriage and Divorce Act, 1936; and (5) Persons who married under the Special Marriage Act, 1954 — Section 27 SMA.

Grounds for divorce under Section 13 HMA: (1) Adultery — voluntary sexual intercourse with any person other than the spouse after marriage; (2) Cruelty — physical or mental cruelty that makes it unsafe or unreasonable to live with the spouse (Section 13(1)(ia)); (3) Desertion — deserting the petitioner for a continuous period of not less than two years immediately before the petition (Section 13(1)(ib)); (4) Conversion — the respondent has ceased to be a Hindu by converting to another religion; (5) Insanity — incurable unsoundness of mind; (6) Leprosy — virulent and incurable; (7) Venereal disease in communicable form; (8) Renunciation of the world by entering a religious order; and (9) Presumed death — not heard of for 7 years. By Section 13B, mutual consent divorce is available after separation of at least 1 year, on joint petition.

Divorce under Muslim personal law: A Muslim husband may pronounce Talaq (repudiation of marriage) — in various forms (Ahsan, Hasan, Biddat). The Muslim Women (Protection of Rights on Marriage) Act, 2019 criminalised instant Triple Talaq (pronouncing Talaq three times in one sitting/message/call), making it punishable with 3 years imprisonment — addressing a long-standing grievance of Muslim women. Khul is divorce initiated by the wife; Mubarat is divorce by mutual agreement. The personal law framework for Muslim divorce is not codified in a statute in the manner of the HMA.

For advocates, divorce proceedings involve: (1) advising on the appropriate ground for divorce and available evidence; (2) interim maintenance and custody applications during pending divorce proceedings; (3) contested divorce — cross-examining witnesses on matrimonial fault; (4) mutual consent divorce — drafting consent terms covering maintenance, custody, and property division; and (5) Article 142 petitions to the Supreme Court where the marriage has irretrievably broken down but no statutory ground is technically made out.