The law regarding divorce in India is different from typical divorce proceedings throughout North America. Divorce in India is regulated by the law and the couple's religious faith.
Divorce Laws in India
Marriage and divorce in India is regulated based on the faith of the husband and wife. Each major religion in India has an associated statute that cover marriage and divorce and if you marry under a specific act, you must follow that act's procedures for a divorce. There is also a statute that covers civil, inter-caste and interfaith marriages.
Hindu Marriage Act
This law was enacted in 1955 and covers marriage, separation and divorce for Hindus in India. It also covers Buddhists, Jains, Sikhs and anyone who is not a Christian, Jew, Muslim or Parsi. Under this act, either the husband or wife can petition for a divorce after the first year of marriage if:
- There has been a period where one has deserted the other for at least two years
- If a spouse converts to another religion
- If a spouse suffers from a sexually transmitted disease, mental illness or leprosy
- Women can petition for divorce if the husband marries a second wife or if he has committed rape, sodomy or bestiality
In 2012, India's Supreme Court invalidated an aspect of the Hindu Marriage Act that forced couples to wait for six months after petitioning for divorce. The new rule allows couples to divorce if both mutually agree before the six-month period is up. The Hindu Marriage Act also provides a process to void a marriage in cases where there is bigamy, marriages between close relatives or incest or if one of the parties at the time of the marriage was not able to consent fully due to mental illness, substance abuse or if they were coerced or defrauded.
Indian Divorce Act
The Indian Divorce Act was enacted in 1869 and covers Christians in India, who are also covered under the Indian Christian Marriage Act of 1872. Under this act, Christians in India can divorce:
- If both husband and wife agree to a divorce
- If one spouse suffers from mental illness that is "incurable" and has been diagnosed for at least two years prior to the divorce petition
- If the wife claims the husband has engaged in rape, sodomy or bestiality
Dissolution of Muslim Marriages Act
- If she was married to her husband before the age of 15 by her family and she rejects the unconsummated marriage before she turns 18
- Her husband has not fulfilled his marital obligations for at least three years
- Her husband has deserted her for at least four years and he cannot be located
- Her husband is in prison with a sentence of at least seven years
- Her husband has not provided financially for her for at least two years
- Her husband is impotent and was since the start of the marriage
- Her husband suffers from severe mental illness, a venereal disease or leprosy
- Her husband has been cruel which includes verbal and physical abuse, infidelity, polygamy or preventing her from practicing her faith
Like the Hindu Marriage Act, this law provides for a six-month period between the petition and granting a divorce. If the husband contests the divorce petition any time before the six months is up, the divorce petition will be rejected.
Parsi Marriage and Divorce Act
The Parsi Marriage and Divorce Act of 1936 covers marriage and divorce for Parsis. Parsis follow the Zoroastrianism religion and are a small minority within the larger population of India. The act was amended in 1988. Under this act, a Parsi can file for divorce if:
- Both mutually consent to divorce
- The marriage cannot be consummated due to a natural, physical ailment
- A spouse refuses to consummate the marriage within the first year
- A spouse is mentally ill for at least two years
- Either spouse has engaged in cruelty to the other
- A spouse converts to another religion
- A pregnancy that was due to infidelity prior to the marriage
- Either spouse has deserted the other for a period of two years
Special Marriage Act
This act from 1954 covers civil marriages for Indians of all religions or no professed faith. It also covers Indians who are living in other countries. The Special Marriage Act was designed to deal with inter-religion and inter-caste marriages. Under the Special Marriage Act, Indians who married under the act in a civil, or "court" marriage, can petition for divorce after one year of marriage under the following grounds:
- Mutual consent
- Desertion for at least two years
- Mental illness
- Venereal disease
- A spouse given a prison term of at least seven years
- Rape, sodomy or bestiality by the husband
- A spouse disappearing and presumed dead for at least seven years
- If cohabitation does not resume after a period separation between the spouses of at least one year
Although there is a prohibition on divorce under this act for the first year, a spouse can petition the court to remove that restriction if he or she can prove they are suffering extreme hardship.
The Divorce Process in India
Couples can file for divorce together if both mutually agree to a divorce and can mutually agree upon alimony, child custody and division of property together. The court will require a period of six months from the time they file before they can file a second motion in the process which will lead to final hearing by the court. This six-month period can be waived by the court, however. A spouse can petition the court for a contested divorce under the grounds allowed by the marriage act that he or she was married under. Additionally:
- Under all marriage acts, there will need to be a period of separation for at least one year where they do not live together and they will need to provide proof of this.
- Some marriage acts provide a provision for a spouse to petition for a shortening of that period if he or she can provide proof of serious hardship.
- Individuals in a contested divorce will need to appear before a judge in a trial to provide evidence for and against the divorce petition and the court will pass a final judgement.
- The two parties do have a right to contest the final judgement by taking it to a higher level court.
How Long Is the Divorce Process in India?
For mutually agreed upon divorce, the process takes about six to 18 months from the time of petition to the time a divorce is granted by the courts. When one party is petitioning the court against the other, the divorce process can take on average 18 to 24 months.
Divorce Rate in India
Despite the rise in the divorce rate around the world, India has a remarkably low divorce rate. In 2018 the divorce rate was under one percent, with only 13 out of every 1,000 marriages leading to a divorce. However, this rate has doubled over what it was in the decade prior.
The low rate of divorce can be explained by the societal pressures on men and women in India to remain married. While it's difficult for women in a heavily patriarchal society to petition for divorce, there's pressure as well on men to preserve the family's reputation and remain married.
Lengthy Divorce Process
The process to divorce in India is also a long one and even couples who mutually agree to divorce must undergo many steps, including counseling, to have their petition granted. A review of India's census data also found that the number of individuals in India who were separated was three times that of divorced people, which is a result of the difficulties that people face going through the legal divorce process.
Divorce rates also vary by region, with higher divorce and separations in the northeastern parts of the country where there is more of a matrilineal culture compared to lower rates in the northern areas that are more patriarchal.
While divorce is still rare in India, Indian men and women do have the right to ask the court to dissolve their marriage legally. It can be a long and arduous legal process, particularly if the divorce is not mutually agreed upon by both parties. Couples must also be prepared to deal with social, cultural and religious stigmas regarding separation and divorce in India.