Divorce in India

The Law

All major religions have their own laws which govern divorces within
their own community, and separate regulations exist regarding divorce
in interfaith marriages.

Hindus, including Buddhists, Sikhs and Jains, are governed by the

Hindu Marriage Act, 1955; Christians by the Indian Divorce Act, 1869;
Parsis by the Parsi Marriage and Divorce Act, 1936; and Muslims by the
Dissolution of Muslim Marriages Act, 1939, which provides the grounds
on which women can obtain a divorce, and the uncodified civil law.
Civil marriages and inter-community marriages and divorces are
governed by the Special Marriage Act, 1956 (Kapur and Cossman 101).

Other community specific legislation includes the Native Converts'

Marriage Dissolution Act, 1866 that allows a Hindu to appeal for a
divorce if a spouse converts to Christianity (Virdi 36-37).

Grounds for Divorce

In most Western nations, there are approximately 16 distinct reasons

for which divorces are granted. In India, however, only five main
reasons are generally accepted as sufficient grounds for divorce
(Choudhary 90).

Adultery. While no formal definition of adultery exists, it does have "a

fairly established meaning in matrimonial law" (Diwan 171), namely
"the voluntary sexual intercourse of a married man or woman with a
person other than the offender's wife or husband" (Choudhary 91).
While the law considers it valid grounds for either sex, adulterous
women are "judged more harshly" than men (Kapur and Cossman
102). The various religious regulations a e not unanimous on this issue.
The law regarding Hindus allows divorce to be granted on the grounds
of infidelity of either husband or wife. The Christian law, however,
would traditionally not have granted a divorce to a woman solely on
the grounds of adultery. She would have had to prove another
violation, such as cruelty (Kapur and Cossman 102-4). A recent
Bombay High Court decision "recognised cruelty and desertion as
independent grounds for the dissolution of a Christian marriage,"
striking down a section of the law that allowed for an unconstitutional
distinction between the sexes (Raiker-Mhatre 1).
Desertion. The three main components of desertion are the "disruption
of cohabitation, absence of just or reasonable cause and their
combination throughout three years" before the abandoned spouse
may petition for a divorce (Virdi 71). There also must be an obvious
intent on the part of the offending spouse to remain permanently apart
from the other. This statute also applies to cases in which a spouse has
been heard from for at least seven years (Choudhary 91).

Cruelty. As with adultery, "the definition of the type of behavior that

constitutes cruelty varies according to the gender of the petitioner" of
the divorce. "Despite the fact that cruelty is often equally available to
husbands and wives, the way in which the law is interpreted and
applied suggests that women and men are evaluated by rather
different standards" (Kapur and Cossman 105). This category includes
both physical and mental abuse and neglect (Choudhary 91). A court
decision made in early May 1997 made cruelty sufficient grounds for a
Christian woman to obtain a; previously, the law required both adultery
and cruelty to be proven. The national Indian Christian community
seems to have embraced this judgment (Raikar-Mhatre 1-2.

Impotency. This refers to the physical inability of the couple to

consummate the marriage (Choudhary 91) or the refusal by one
spouse to do so (Diwan 136). Some cases have established that
sterility can be construed to mean non-consummation if the other
partner is not aware of the condition before the marriage (Diwan 139).

Chronic Disease. Both mental and physical illnesses are included in this
category, as well as sexually transmitted diseases (Choudhary 92). Not
all religions recognize identical diseases as grounds for divorce.
Christians and Parsis do not allow divorce for a sexually transmitted
disease or leprosy while the other communities do (Diwan 204-5).

Consequences of Divorce

Economic. There is great disparity between the economic ramifications

of divorce between men and women. Men remain relatively unaffected
while women, especially those with children, have difficulty "providing
food, clothing and shelter for themselves and their children." The
government in urban areas usually provides some form of public
assistance to single mothers, but this service is not fully taken
advantage of because most do not know of its existence (Amato 210).
Often a woman is not able to rely on her family for support because
many parents "feel they have discharged their obligations to a
daughter by arranging her marriage and providing a dowry." Dowries
are not returned after a divorce. Also, due to the social stigma of
divorce, women find it difficult to remarry and usually attempt to
establish an independent household (Amato 211).

Social. While India feels that one should have the right to divorce, it is
still a highly stigmatizing action. Women are looked upon more harshly
than men in this regard. There continue to be segments of Indian
society that feel divorce is never an option, regardless of how abusive
or adulterous the husband may be which adds to the greater
disapproval for women. A divorced woman often will return to her
family, but may not be wholeheartedly welcomed. She puts, especially
if she has children, an economic burden on her family and is often
given lowly household tasks to perform. There is also the risk that a
divorced woman's presence would ward off possible marriages for
other daughters within the household. Unavoidably, the overall status
of the family and household are lowered by having a divorcee living
with amongst them. A woman's class and caste are a major factor in
her acceptance back into society. Women from higher classes tend to
have an easier time than middle or lower class women in returning to
the social order after a divorce. An exception to this model is the
extreme bottom of the society who have experienced little rebuff from
peers after a divorce. This results from their already atypical status in
society (Amato 212-4).

Source : http://www.english.emory.edu/Bahri/Divorce.html