Grounds For Divorce Available Only to Women

Last Updated at: May 30, 2020
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divorce

According to Indian law, there are three types of divorce theories. They are – Mutual consent theory, Divorce fault theory and Irretrievable marriage breakdown theory.

Under the mutual consent theory, both spouses in a marriage agree to end their relationship mutually. The court makes various agreements and holds multiple proceedings before it offers them the divorce.

As per the guilt or fault theory, the court gives the divorce when either of the married party has committed a matrimonial offence. 

Irretrievable marriage breakdown is subjected to matrimonial relationship failures. Here, neither of the parties would want to continue their relationship any further due to any circumstances or lack of various nature of profitability.

In all these cases, the court conducts multiple proceedings and even offers some cooling time for the couple to think over their decision. The court grants them the divorce only if the couple or the petitioner stays strong in their decision and has some valid evidence to support their request.

Grounds of Indian Divorce Laws 

All systems of Indian personal laws, except for the Parsi Marriage and Divorce Act, 1936, recognize some separate and special grounds of divorce for the wife. The Parsi Marriage and Divorce Act, 1936 recognizes the principle of equality. And lays down grounds for divorce which either spouse can avail. For example, it recognizes unnatural offences as a ground for divorce for either spouse, unlike the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954.

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Hindu Marriage Act, 1955

  1. Bigamy: If the husband has another wife from before the commencement of the act, alive at the time of the solemnization of the marriage of the petitioner. This case the wife can apply for a marriage stating the bigamy and proving their innocence in the matter.
  2. Unnatural Offences: That the husband has, since the solemnisation of the marriage, been guilty of rape, sodomy or bestiality. 

According to the Indian Penal Code, rape is also a criminal offence. A man has committed rape if he forced any woman to have sexual intercourse with him without her consent. Sometimes, the husband might force women to give consent by threatening to kill them or harm their beloved etc. In all these cases, the man is said to have committed rape and is legally chargeable. This does not apply to the wife above the age of 15 years. Sodomy is when a man has sexual intercourse with another man or non-coital copulation with the woman outside the marriage. Bestiality is when the husband has sexual union with an animal against the order of nature.

The wife must provide necessary pieces of evidence and witnesses to support their divorce petition.

  1. Separation: Non-resumption of cohabitation for one year after an order of maintenance. 
  2. Underage: That the marriage was solemnized before she attained the age of fifteen years, and she has refused to be in the marriage after attaining that age, but before the age of eighteen. 

Special Marriage Act, 1954

The Special Marriage Act, 1954, provides only two grounds of divorce ground for the wife. Namely, rape, sodomy or bestiality and the non-resumption of cohabitation after an order of maintenance. 

Muslim Marriage Act,1939

Muslim law provides seven special grounds of divorce for wife alone, seeing that the husband has the provision of unilateral divorce in his favour.

The various grounds are as follows:

  1. Whereabouts Unknown: Whereabouts of the husband not known for four years.
  2. Failure to Pay: Neglect or failure of the husband to pay maintenance for two years.
  3. Imprisonment: Sentence to seven-year imprisonment for the husband.
  4. Impotence: Failure to perform marital obligations by the husband for three years or impotence of the husband at the time of marriage and after.
  5. Insanity: Insanity of the husband for two years or that he is suffering from leprosy or virulent venereal disease.
  6. Underage: That the marriage was solemnized before she attained the age of fifteen years. And she has refused the marriage after attaining that age, but before the age of eighteen.

 

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Grounds For Divorce Available Only to Women

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According to Indian law, there are three types of divorce theories. They are – Mutual consent theory, Divorce fault theory and Irretrievable marriage breakdown theory.

Under the mutual consent theory, both spouses in a marriage agree to end their relationship mutually. The court makes various agreements and holds multiple proceedings before it offers them the divorce.

As per the guilt or fault theory, the court gives the divorce when either of the married party has committed a matrimonial offence. 

Irretrievable marriage breakdown is subjected to matrimonial relationship failures. Here, neither of the parties would want to continue their relationship any further due to any circumstances or lack of various nature of profitability.

In all these cases, the court conducts multiple proceedings and even offers some cooling time for the couple to think over their decision. The court grants them the divorce only if the couple or the petitioner stays strong in their decision and has some valid evidence to support their request.

Grounds of Indian Divorce Laws 

All systems of Indian personal laws, except for the Parsi Marriage and Divorce Act, 1936, recognize some separate and special grounds of divorce for the wife. The Parsi Marriage and Divorce Act, 1936 recognizes the principle of equality. And lays down grounds for divorce which either spouse can avail. For example, it recognizes unnatural offences as a ground for divorce for either spouse, unlike the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954.

Get FREE legal advice now

Hindu Marriage Act, 1955

  1. Bigamy: If the husband has another wife from before the commencement of the act, alive at the time of the solemnization of the marriage of the petitioner. This case the wife can apply for a marriage stating the bigamy and proving their innocence in the matter.
  2. Unnatural Offences: That the husband has, since the solemnisation of the marriage, been guilty of rape, sodomy or bestiality. 

According to the Indian Penal Code, rape is also a criminal offence. A man has committed rape if he forced any woman to have sexual intercourse with him without her consent. Sometimes, the husband might force women to give consent by threatening to kill them or harm their beloved etc. In all these cases, the man is said to have committed rape and is legally chargeable. This does not apply to the wife above the age of 15 years. Sodomy is when a man has sexual intercourse with another man or non-coital copulation with the woman outside the marriage. Bestiality is when the husband has sexual union with an animal against the order of nature.

The wife must provide necessary pieces of evidence and witnesses to support their divorce petition.

  1. Separation: Non-resumption of cohabitation for one year after an order of maintenance. 
  2. Underage: That the marriage was solemnized before she attained the age of fifteen years, and she has refused to be in the marriage after attaining that age, but before the age of eighteen. 

Special Marriage Act, 1954

The Special Marriage Act, 1954, provides only two grounds of divorce ground for the wife. Namely, rape, sodomy or bestiality and the non-resumption of cohabitation after an order of maintenance. 

Muslim Marriage Act,1939

Muslim law provides seven special grounds of divorce for wife alone, seeing that the husband has the provision of unilateral divorce in his favour.

The various grounds are as follows:

  1. Whereabouts Unknown: Whereabouts of the husband not known for four years.
  2. Failure to Pay: Neglect or failure of the husband to pay maintenance for two years.
  3. Imprisonment: Sentence to seven-year imprisonment for the husband.
  4. Impotence: Failure to perform marital obligations by the husband for three years or impotence of the husband at the time of marriage and after.
  5. Insanity: Insanity of the husband for two years or that he is suffering from leprosy or virulent venereal disease.
  6. Underage: That the marriage was solemnized before she attained the age of fifteen years. And she has refused the marriage after attaining that age, but before the age of eighteen.

 

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