Grounds For Divorce
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The grounds of divorce under Hindu and Muslim law are different and depend on the personal laws of each community. Divorce is the legal dissolution of a marriage by a court or other competent body.
- Impotency: If the husband is impotent at the time of marriage and continues to be so until the filing of divorce petition.
- Cruelty: If the husband treats the wife with cruelty, such as physical violence, confinement, harassment, etc.
- Irregular marriage (Bassid): If the marriage is irregular due to some defect in its validity, such as difference in religion, unlawful consanguinity, etc.
- Non-performance of matrimonial obligations: If the husband fails to perform his marital duties, such as maintenance, cohabitation, etc. without any reasonable excuse.
- Outcaste: If the husband becomes an outcaste by renouncing Islam or being excommunicated from his community.
- Arrangement of marriage by a guardian who is not the biological father: If the marriage was arranged by a guardian who is not the father or grandfather of the wife without her consent.
Under Hindu law, divorce can be sought on the following grounds under section 13(1) of the Hindu Marriage Act, 1955:
Adultery
Voluntary sexual intercourse of the spouse with a person other than the spouse.
Cruelty
Any willful conduct that causes physical or mental pain and suffering to the spouse.
Leprosy
A virulent and incurable form of leprosy affecting the spouse.
Venereal Disease
A communicable and incurable form of venereal disease affecting the spouse.
Renunciation
Renunciation of the world by entering a religious order by the spouse.
Unsoundness of Mind
Incurable mental disorder or insanity of the spouse that makes it impossible to live with him or her.
Desertion
Abandonment of the spouse without reasonable cause and consent for a continuous period of not less than two years.
Conversion
Renunciation of Hindu religion and adoption of another religion by the spouse without the consent of the other spouse.
Presumption of Death
Presumption that the spouse is dead if he or she has not been heard of as being alive for a period of seven years or more.
Additionally, under section 13(2) of the Hindu Marriage Act, 1955, a wife can seek divorce on the following grounds :
Bigamy
If the husband has another wife living at the time of marriage or remarries after marriage.
Rape, Sodomy or Bestiality
If the husband has been guilty of rape, sodomy or bestiality after marriage.
Non-Resumption of Cohabitation
If there has been no resumption of cohabitation between the parties for one year or more after a decree of judicial separation has been passed in favor of the wife.
Repudiation of Marriage
If the marriage was solemnized before the wife attained fifteen years of age and she repudiated it after attaining eighteen years but before attaining twenty-one years.
Divorce can also be obtained by mutual consent under both Hindu and Muslim law. Under Hindu law, section 13B of the Hindu Marriage Act, 1955 provides for divorce by mutual consent if both parties agree to dissolve their marriage and have been living separately for one year or more. Under Muslim law, divorce by mutual consent can be effected by khula or mubaraat. Khula is when the wife agrees to give some consideration, usually her dower, to the husband in exchange for her release from marriage. Mubaraat is when both parties agree to separate on amicable terms without any consideration.
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