In India, marriage is both a sacrament and a contract; it is based on an offer and acceptance. At the same time, it is a sacrament because of its religious ties. Divorce is the dissolution of a marriage by a competent court. Getting a divorce in India is very tiresome, with lengthy legal proceedings and intentional dragging by either of the parties. The divorce is mainly an ego battle between the partners. In certain cases, couples get divorced very late due to lengthy court battles. One of the major advancements in Hindu law is no fault divorce; this has helped reduce the legal procedures.

Divorce under Hindu Marriage Act, 1955

In the Hindu Marriage Act, there are some provisions given regarding a valid divorce, i.e. when the spouse can get a divorce or appeal for dissolution of marriage in a court of law. For the interest of society, the marriage or the marital relationship needs to be surrounded by every safeguard for the cause specified by law. Divorce is permitted only for a grave reason otherwise given other alternatives.

The Hindu Marriage Act is based on the fault theory in which any one of the aggrieved spouses (Section 13(1)) can approach the court of law and seek the remedy of divorce. Section 13(2) provides the grounds on which only the wife can approach the court of law and seek the remedy of divorce.

• Legal grounds for divorce:
  Section 13 of the Hindu Marriage Act provides grounds for Divorce. 
• Adultery:
  As per the Hindu Marriage Act, adultery is considered one of the most important grounds for seeking divorce. Adultery means consensual and voluntary intercourse between a married person and another person, married or unmarried, of the opposite sex. Even intercourse between a husband and his second wife (if their marriage is considered bigamous) is considered adultery.
   
• Essentials of Adultery:
  • One of the spouses must be involved in intercourse with another person, married or unmarried, of the opposite sex.
  • The intercourse should be voluntary and consensual.
  • At the time of the act, the marriage should be subsisting.
  • There must be sufficient circumstantial evidence to prove the liability of the other spouse.

The Madras High Court had ruled in Subbarama Reddiar vs Saraswathi Ammal (1996), that a single act of adultery is sufficient grounds for divorce or judicial separation. The unwritten taboos and laws of social decency in this nation, particularly in village regions, must necessarily be taken into account. Unless an excuse is given that is consistent with an innocent interpretation, the only conclusion that the court of law can draw from the fact that an unknown person was found alone with a young woman past midnight in her apartment, in an actual physical juxtaposition, is that the two have committed an act of adultery together.

In Joseph Shine vs Union of India (2018), the Supreme Court declared that adultery is not a crime and repealed Section 497 of the Indian Penal Code, 1860. It has been noticed that two people may separate if one of them cheats, but attaching crime to infidelity is taking things too far. Also under the provision punishing adultery, the woman was considered to be the property of the husband as it was the husband who was given the right to prosecute the other man and not the wife.

Further, the wife was not even considered as an abettor to the crime. Therefore, it was clear that the provision only sought to protect the proprietary rights of the husband over his wife. Adultery is a private problem, and how a couple handles it is a matter of extreme privacy. This lack of moral commitment in marriage, which damages the relationship, has been left to the couple's discretion. They have the option to proceed with the divorce if they so want.

Cruelty

The concept of cruelty includes mental as well as physical cruelty. The physical cruelty means when one spouse beats or causes any bodily injury to the other spouse. But the concept of mental cruelty was added as the spouse can also be mentally tortured by the other spouse. Mental Cruelty is lack of kindness which adversely affects the health of the person. Well it is easy to determine the nature of physical cruelty but difficult to say about mental cruelty

What is considered as Mental Cruelty against Husband by Wife:

• Humiliating the husband in front of his family and friends.
• Undertaking the termination of pregnancy without husband consent.
• Making false allegations against him.
• Denial of marital physical relationship without a valid reason.
• Wife having an affair.
• Wife living an immoral life.
• The constant demand for money.
• Aggressive and uncontrollable behaviour of the wife.
• Ill-treatment to the husband's parents and family.

In Balram Prajapati vs Susheela Bai

In this case, the petitioner filed the divorce petition against his wife on the ground of mental cruelty. He proved that his wife's behaviour with him and his parents was aggressive and uncontrollable, and many times she filed false complaints against her husband. The court accepted the petition and granted the divorce on the ground of cruelty.

What is considered as Mental Cruelty against Wife by Husband:

• False accusation of adultery.
• The demand for dowry.
• Impotency of the husband.
• Forced abortion of the child.
• The problem of drunkenness of the husband.
• Husband having affairs.
• The husband lives an immoral life.
• Aggressive and uncontrollable behaviour of the husband.
• Humiliating the wife in front of family and friends.

Desertion

Desertion means the permanent abandonment of one spouse by the other spouse without any reasonable justification and without his consent. In General, the rejection of the obligations of marriage by one party.

Before the 1976 Amendment, desertion was only a ground for judicial separation and not divorce. But now, desertion of any of the spouses by the other for a continuous period of two years immediately before filing the petition is a valid ground to seek divorce as well as judicial separation.

Malathi Ravi v. B.V. Ravi (2014), the Supreme Court held that if there is no evidence to prove that the wife had an intention to end the marriage or whether she deserted her husband, then the court will not pass a decree of divorce. This means that the intention to end marriage is one of the essentials of desertion, i.e., animus deserendi must exist. Also, if there was no desertion for a continuous period of two years immediately before the presentation of the petition or if the party assumed it, no divorce can be granted.

Essentials

• Permanent abandonment of the other spouse.
• Rejection of the obligation of marriage.
• Without any reasonable justification.
• No consent of another spouse.

Conversion

If one of the spouses converts their religion to any other religion without the consent of the other spouse, the other spouse can approach the court and seek the remedy of divorce.

Case: Suresh Babu vs Leela

In this case, the husband converted to Islam and married another woman. The wife, Leela, filed a case and demanded divorce on the grounds of conversion without her consent and cruelty.

Unsoundness of Mind

Insanity as a ground of divorce has the following two requirements:

• The respondent has been incurably of unsound mind.
• The respondent has been suffering continuously or intermittently from a mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

Case: Vinita Saxena vs Pankaj Pandit

In this case, the petitioner filed for divorce on the ground that the respondent was suffering from Paranoid Schizophrenia. She became aware of this condition after their marriage. The court granted the divorce on the ground of the husband's insanity.

Leprosy

Leprosy is an infectious disease transmitted from one person to another. It is considered a valid ground for divorce.

Case: Swarajya Lakshmi vs G. G. Padma Rao

The husband filed for divorce, claiming his wife suffered from incurable leprosy, supported by expert reports. He succeeded in getting the divorce.

Venereal Disease

If the disease is in a communicable form and can be transmitted to the other spouse, it is considered a valid ground for divorce.

Renunciation

When one spouse renounces the world to follow a spiritual path, the other spouse can approach the court for divorce. The renouncing spouse is considered civilly dead, which is a typical Hindu practice and a valid ground for divorce.

Presumption of Death

If a person is not heard from for seven years, they are presumed dead. This is a valid ground for divorce, but the burden of proof lies with the petitioner.

Section 13(2): Special Grounds for Divorce by the Wife

• Pre-Act Bigamy: If the husband had another wife living at the time of marriage, which he concealed.
• Rape, Sodomy, or Bestiality: If the husband has been guilty of these acts after the marriage.
• Repudiation of Marriage: If the wife was married before the age of 15 and repudiates the marriage before turning 18.

Section 13B: Divorce by Mutual Consent

Introduced through an amendment in 1976, this allows both spouses to jointly file for divorce based on mutual consent. Conditions include:

• They have been living separately for at least one year.
• They have mutually agreed that the marriage should be dissolved.
• The court may grant the divorce after a six-month "cooling-off period" if it finds that the consent is free and voluntary.

Procedural Requirements

The Hindu Marriage Act, 1955, lays down procedural requirements for divorce to ensure fairness and opportunities for reconciliation.

Jurisdiction (Section 19)

The divorce petition must be filed in a district court. Jurisdiction lies with the court in the area where:

• The marriage was solemnized.
• The parties last resided together.
• The respondent currently resides.
• The petitioner resides, if the respondent resides outside the jurisdiction of Indian courts or cannot be found.

Filing a Divorce Petition The divorce process begins with the aggrieved party filing a petition in the district court, detailing the marriage, grounds for divorce, the respondent and children, and any interim relief requests, such as maintenance or custody of children. The petition should include details of the marriage, respondent, and any children involved.

Grounds for Divorce (Section 13) The petition must clearly state the grounds for divorce, such as adultery, cruelty, desertion, conversion, mental illness, and venereal disease. For divorce by mutual consent, both parties must agree to dissolve the marriage after living separately for at least one year.

Service of Summons The court issues a summons to the respondent, the spouse against whom the petition is filed, to appear in court, ensuring they are informed about the proceedings and have the opportunity to contest or respond.

Response from the Respondent The respondent must submit a written response to the divorce petition, allowing them to accept the allegations or contest the petition by refuting the petitioner's claims. They can also raise a counterclaim if they have grounds for seeking divorce or other relief.

Reconciliation Efforts India's courts are mandated to facilitate reconciliation between parties before proceeding with divorce. They may refer them to a family court, mediator, or counselor. If a possible marriage saves the marriage, the court may adjourn proceedings for reconciliation. If unsuccessful, the divorce case proceeds.

Evidence and Trial The court schedules a hearing after pleadings are complete, and both parties must appear to present their case. The petitioner must present evidence to prove grounds for divorce, while the respondent can contest the petition and present counter-evidence to refute allegations or support their own claims.

Interim Orders The court can grant interim relief to either party during a pending divorce petition, including interim maintenance and temporary custody orders. These orders provide financial support for the petitioner or children until the case is resolved, ensuring their financial needs and well-being are met during the litigation.

Divorce by Mutual Consent (Section 13B The divorce by mutual consent procedure is simpler and faster than contested divorce. It involves a joint petition from both spouses stating they have been living separately for at least a year and agree to dissolve the marriage. A six-month cooling-off period is provided for reconsideration, but courts may waive this. After six months, both parties must appear for a second hearing to confirm their intention to divorce. If consent is free and voluntary, the decree is granted.

Final Decree of Divorce The court dissolves a marriage after proving grounds for divorce or mutual agreement, passing a decree that may include custody, asset division, and maintenance orders.

Post-Divorce Reliefs After a divorce, parties can seek additional relief, including permanent alimony and maintenance, which may be granted to financially weaker spouses, and orders regarding the custody, maintenance, and education of minor children, considering both parties' income and property.

Fault-Based Divorce System
A fault-based divorce system requires one spouse to prove the other is at fault for the breakdown of the marriage. This can be done through adultery, cruelty, abandonment, bigamy, imprisonment, mental illness, or substance abuse. The petitioner must demonstrate specific grounds for divorce, such as adultery, cruelty, abandonment, bigamy, imprisonment, mental illness, or substance abuse. These grounds can be used to determine the legality of the divorce and the ability to continue the marriage.

Impact on society

Fault-Based Divorce System

• Complexity and Length of Proceedings: The process can be lengthy and contentious due to the need to prove fault grounds through evidence.
• Blame and Hostility: The requirement to prove misconduct can increase animosity and conflict over child custody, property division, and spousal maintenance.
• Moral Judgment: The court must determine who is to blame for the breakdown of the marriage, potentially making the process more adversarial.
• Financial Implications: Proving fault can influence decisions regarding alimony, maintenance, or asset division.
• Social Stigma: Fault-based divorces often carry social stigma, especially in conservative societies.

No-Fault Divorce System

A no-fault divorce system, introduced in the U.S. by California in 1970, allows couples to seek divorce based on "irreconcilable differences" or "irretrievable breakdown" of the marriage, without requiring proof of wrongdoing or fault. This system has since been adopted globally.

Impact of No-Fault Divorce on Family Law

• Simplifies divorce process: No need to gather evidence or prove fault, making it less adversarial and faster. Focus shifts to resolving issues like child custody, property division, and spousal support.
• Reduces emotional strain: No need to assign blame, reducing conflict between parties, beneficial in cases involving children.
• Increases divorce rates: Critics argue it has contributed to the rise in divorce rates globally.
• Provides equitable property division and alimony: Property division and alimony are based on equitable distribution, not punitive measures.
• Balances child custody: Focuses on the best interests of the child, creating a balanced approach.
• Promotes empowerment and autonomy: Recognizes that marriages may end for reasons beyond control.

Comparison of No-Fault and Fault-Based Divorce Systems

Aspect	Fault-Based Divorce	No-Fault Divorce
Requirement for Divorce	Proof of fault (adultery, cruelty, desertion, etc.).	No need to prove fault; irreconcilable differences suffice.
Emotional Impact	Often increases hostility and conflict between spouses.	Reduces hostility; focuses on mutual resolution.
Duration of Proceedings	Typically longer due to the need for evidence and trial.	Quicker and more straightforward, less focus on blame.
Financial Consequences	Fault may influence division of property or alimony.	Property and support are based on equity, not fault.
Child Custody	Custody may be influenced by who is deemed at fault.	Custody decisions are based on the child's best interests.
Stigma	May carry social stigma, as one spouse is blamed.	Less stigma; no one is blamed for the breakdown.
Impact on Divorce Rates	Tends to be lower as divorce is harder to obtain.	Critics argue it leads to higher divorce rates due to ease of access.

Conclusion:
Both no-fault and fault-based divorce systems have significant implications for family law. While fault-based divorce focuses on assigning blame and moral responsibility, no-fault divorce simplifies the process and prioritizes resolution over conflict. No-fault divorce offers a more humane approach, especially in terms of reducing emotional strain and promoting cooperation, though it may also raise concerns about the perceived weakening of the marriage institution. Ultimately, the choice of system reflects broader societal values related to marriage, individual autonomy, and fairness.