Procedure and grounds for divorce when couple not living together?

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In case of a contested divorce, certain already identified grounds are required to be fulfilled before filing a divorce petition. The grounds for divorce are mentioned below although not all are applicable to all religions in India.
 
Cruelty
Cruelty can be both physical and mental. Under the Hindu Divorce Laws in India, if any of the spouses has a reasonable fear in the mind that the other partner’s behavior in all likelihood be injurious or harmful, then there is sufficient ground for obtaining divorce due to cruelty by the spouse.

For example, physical attack on partner, uncontrollable anger towards the other spouse, screaming and shouting at a partner, constant taunting and criticizing other partner on life decisions, abilities, looks, and even employment, falsely accusations against other spouse, refusal to have marital sexual intercourse/ children, hiding an acquired sexually transmitted disease from the other spouse while maintaining sexual relations and also avoiding to stay at the matrimonial home without any reasonable explanation.
 
Adultery
Under Indian laws, if a man who commits adultery (consensual sexual intercourse by a married person other than his/ her spouse) can be punished with a criminal offence. The wife may, also, file for divorce as another remedy. However, if a wife commits adultery, she cannot be charged with a criminal offence, though the husband can seek prosecution of the adulterer i.e. the male involved in such adultery.
The offence of adultery can quite easily be proved by 2 ways:
1.    Any circumstantial evidence in relation to the sexual intercourse with an outsider.
2.    If the spouse contracts any form venereal disease.
 
Desertion
A spouse leaving/ abandoning the other without reasonable cause is a valid ground for divorce. However, the spouse who abandons the other should do so to desert and there should be evidence of it. For instance, as per Hindu laws, the desertion must last for at least 2 continuous years.
The following 5 conditions constitute a desertion; they must coexist to make a valid ground for divorce:
- Statement of the facts of separation
- The intention to desert the spouse
- Desertion without any reasonable cause
- Desertion without the consent of the other spouse
- The statutory period of 2 continuous years must be over before filing for divorce under this ground
 
Mental Disorder
If either spouse is incapable of performing the basic duties that are expected in a marriage because of any mental illness then it becomes a valid ground for divorce.
For example, anxiety and panic attacks. Anxiety is a normal emotion experienced by all, however, the same becomes a mental disorder when someone keeps feeling the same way most of the time.
·  Bipolar disorder- It is when someone experiences extreme stages of low (depressed) and high (insane) moods. 
· Depression-  It is a diagnosis given to someone who is upset/ depressed and finds it extremely difficult to enjoy life.
· Psychosis- A person having psychosis recognizes the world in a different way from those around him, including hallucinations etc.
· Schizophrenia- It is a diagnosis given to people who experience symptoms of psychosis, alongside what are called ‘negative symptoms’.
· Self-harm- Self-harm is when someone intentionally hurts/ tries to hurt themselves, usually done in order to cope up with the intense emotional distress and anxiety.
· Suicidal tendency- Suicide is that complex issue when someone tries to kill oneself and the feeling/ wanting to kill oneself is the suicidal tendency.
 
Communicable Disease
Under the Hindu Divorce Laws, if a spouse suffers from a communicable disease like HIV/AIDS, syphilis, gonorrhea or a virulent and incurable form of leprosy then it becomes a valid ground for divorce.
 
Presumption of death
If either of the spouses has not been heard of by the other spouse as being alive for a period of at least seven years, then the spouse who is alive can obtain a divorce on the ground that he/she should be able to live life without having been alone. However, the onus of proving the absence/ death of the other spouse for the stated period without being heard of as alive lies on the spouse claiming this ground for divorce. Thus, it is very important to give particulars relating to the last date of cohabitation of the couple, the date and place where the other spouse was last seen and steps are taken to find the spouse.
 
Conversion to new religion
Under the Hindu law, if a spouse ceases to be a Hindu by converting to another religion then the partner can seek divorce. This reason does not require any time limit to have passed before divorce can be filed. For example, Islam, Christianity, Judaism, Zoroastrianism.
 
Renunciation of the world
Only under the Hindu law, if either of the spouses surrenders his/her married life and chooses to be a sanyasi, the aggrieved spouse can obtain a divorce on this ground. The person renouncing the world is considered to be civilly dead in our society.
 
Non-compliance of a decree of restitution of conjugal rights  
Under the Hindu Marriage Act either party to the marriage has the right to present a petition for divorce on the ground that there has not been any resumption of conjugal rights for a period of not less than 1 year between the couple even after the court decree was passed.Restitution of conjugal rights is a process where the court directs the married couple to try and restore their marriage one last time before they finally get a divorce. The basic aim is to explore the possibility of settlement and cohabitation between the husband and wife.The law provides that when either of the spouses withdraws from the society of the other, then the other party can seek a direction from the court to direct the other party to live with him or her.
 
Non-compliance of a decree of judicial separation
Under the Hindu Marriage Act either party to the marriage has the right to present a petition for divorce on the ground that there has not been any resumption of cohabitation between the couple for a period not less than 1 year after the passing of a decree for judicial separation.
Resumption of cohabitation is when the couple is living together in a married relationship. The meaning of this expression therefore depends upon the intention of the parties, and there may be resumption of cohabitation even when the parties do not live under the same house of matrimonial home. If there is sexual intercourse between the parties to the marriage, it is no doubt a good ground for resumption of cohabitation, however, this is not the only ‘conclusive evidence’ in this. There may be resumption of cohabitation even without having sexual intercourse.
 
Rape, Sodomy or Bestiality
Under this provision, a divorce petition can be filed if the husband has, since the solemnization of marriage, been found guilty of rape, sodomy or bestiality.

Pre-Act Polygamous Marriage
According to the provision, if the husband has another wife from before the commencement of the Act and alive at the time of the solemnization of the second marriage then it is a valid ground for divorce.
This ground is available when both the marriages are valid and the 2nd wife is present at the time of the filing for the divorce. However, this ground is no longer of practical importance today. 

LawRato LawRato

396 votes

Both Sections 13B of Hindu Marriage Act of 2005 and Section 28 of Special Marriage Act of 54 outline the process for obtaining divorce by mutual agreement. The sections state that spouses have to live apart for at least one year before they can file for divorce.

Advocate Chikirsha Mohanty LawRato