This explainer discusses the various laws governing divorce for Hindu marriage and the conditions under which a spouse can file for the same. It primarily deals with the law laid out in the Special Marriage Act, 1954, Hindu Marriage Act, 1955 and court judgements.
Maintenance and Remarriage
I am being harassed in my arranged marriage. What can I do?
If you are being harassed in your marriage, then you can file for divorce on the grounds of cruelty. If you have been married under Hindu law then your divorce will also be governed by the same law. You can divorce your spouse only based on the reasons specified in the law. It is harder to seek a divorce simply only on the grounds that you no longer wish to remain married without it matching any reasons recognized by the law. However, it is possible to get a divorce if you and your spouse mutually consent to it. Divorce can take place if the husband or wife brings a petition to the Court based on the recognized reasons.
Though prenuptial agreements are not legally validated under religious Hindu marriage law, a prenuptial agreement can be legally enforceable as per contract law in India. A contractual prenuptial agreement should follow the legal rules of contracts given under the Indian Contract Act , 1872. To be valid, the contract should not be contrary to law or public policy, so if the marriage is governed by the Hindu Marriage Act, the contract cannot have provisions that violate that law.
My husband has filed for divorce on the grounds that I have deserted him. However, the truth is that I was forced to leave and go to my parents house because he was physically abusing me. What can I do under Hindu law?
The law allows for situations where one spouse is forced to withdraw from the company of the other. For instance, in a situation where your spouse is treating you with cruelty – either mentally or physically – it would be considered reasonable for you to leave them. Therefore, while considering your spouse’s petition for divorce will be decided upon after taking into consideration your reasons for leaving his company.
Are there any reasons for Hindu divorce that are solely available to women?
What do Courts consider as a ‘valid Hindu marriage’ before granting a divorce?
In order to grant a divorce, one of the first things that the Court checks is if they were in a marriage that was legally valid i.e. a subsisting marriage. The Court can only grant a divorce if the marriage legally existed. So, it checks if your marriage existed as per the law to go forward with divorce proceedings. For example, Bhavana and Amit are in a live-in relationship. Bhavana cannot file a divorce against Amit as they are not in a “subsisting marriage” since they have not gone through the marital ceremonies or registered their marriage under the law.
What does marital relationship under Hindu law mean? How does Hindu law understand a marital relationship?
Which Court do you approach to file your case for Hindu divorce?
You have to file your case in the Family Court in your District. However, consult your lawyer before filing the case. There may be situations where a particular District does not have a Family court. In these situations, the District Judge or a Civil Judge appointed by the State Government will perform the same functions as a Family Court judge.
Do Courts use video conferencing during a Hindu divorce case?
Recently, many Courts have been using videoconferencing for matrimonial and divorce cases because it is hard for the parties to travel to another city just for the case. So, Courts have said that only after the husband and wife have discussed problems such as property, custody etc. and it has failed, that the case can proceed by the use of video conferencing. Further, both spouses have to consent to the use of video conferencing.
Are Hindu divorce proceedings held in private?
Under the law, the divorce proceedings in Court may be held ‘in camera’, i.e, cases that are those carried out in private, in the absence of the public and the press. The Family Court may direct the parties to use in camera proceedings or one of the parties can make a request for this, which will be considered by the Family Court. For example, Seema has filed a case against Deb for divorce. During the case, because of the amount of sexual abuse faced by the wife, Seema, she may request the Court to conduct in-camera proceedings keeping in mind the sensitive nature of her case.
My husband converted to Islam from Hinduism. Can I file a divorce case against him? If yes, what law will apply, Hindu Law or Muslim Law?
If your husband has converted to Islam, you can apply for divorce stating this reason. And since the marriage was performed as per Hindu law, the divorce will also be governed by Hindu law, even if your husband is not a Hindu anymore.
If my husband suffers from leprosy, can I divorce him under Hindu law?
No, you cannot give your spouse's leprosy as a reason for divorce. It used to exist as a reason, but the Supreme Court struck it down. There is even a bill pending in Parliament to amend all personal laws for removing leprosy as a reason for divorce.
Will the mediator tell the Court or the lawyers about what I said during the mediation?
The details of the reconciliation methods, which include mediation, conciliation and discussions with family counsellors, are not supposed to be part of the records of the Court or disclosed to any third party. This is done to respect and maintain the privacy of the husband and wife. So, neither the Court nor the lawyers will know what you said during the mediation.
What is the difference between mediation and conciliation?
The difference between the two reconciliation methods is that, in the process of mediation, the mediator assists the parties to arrive at a solution while in conciliation, the conciliator himself proposes solutions to solve the problems of the spouses during the divorce. For example, if you and your spouse go to a mediator, he will assist you in deciding about the future of your marital life while a conciliator will give you options on how to decide your future.
I moved to Australia for a job assignment in January 2016, but my wife chose to stay in India. We both discussed this arrangement and consented to it. Now she is filing for divorce claiming that I deserted her, but my intention was never to do so. Can I object to the divorce? Is her reason a valid one in Hindu law?
No, if you never intended to abandon her, then she cannot claim desertion as a ground for divorce. Intention to desert a spouse plays an important role in getting a decree of divorce. However, you must also make that clear in your response to her divorce petition.
I cheated on my spouse, will I go to jail under Hindu law?
No, cheating on your spouse is not a criminal offence. Adultery used to be a crime under the Indian Penal Code, but the Supreme Court recently struck it down.
What will the Court take into consideration while finally deciding a divorce case for Hindu marriage?
My husband keeps coming to my office and harassing me at work in front of my employer. Can I file for a divorce under Hindu law?
Continuous harassment by your spouse may amount to mental cruelty in some cases, and may even be valid grounds for a divorce. However generally, actions such as creating hurdles relating to your professional life, or humiliating you in front of your colleagues or boss, need to be in addition to other actions such as instituting dishonest cases against you, etc. However, there is no one strict formula for granting a divorce, and each order for divorce is granted based on the specific facts of your case. Therefore, depending on factors such as the extent of harassment, the mental trauma you have suffered, and the regularity of these occurrences, a divorce may be granted. For legal advice relevant to your experiences, please contact a lawyer.
When I ask the Court for maintenance for me and my child, can I ask for something else apart from money under Hindu law?
Yes, you can even apply for a residence order requesting the Court to direct your husband to either provide or pay for accommodation.
Can I file for a divorce simply because my marriage is not working out under Hindu law?
Under Hindu Divorce law you cannot easily file for divorce simply because you unilaterally believe that your marriage is not working out. The Courts have recognized that “Irretrievable Breakdown of Marriage” is a situation where either one or both spouses are no longer able or willing to live with each other, thereby ending their marital relationship with no hope for its revival. The law does not specifically recognise this as a reason for divorce, but some courts have accepted it to be a valid ground. However, it would be hard to successfully get a divorce simply on this ground.
What will happen to my children after divorce under Hindu law?
While your divorce case is being decided, along with it, you can apply for the custody of your children. Depending on the facts and circumstances of each case, the issue of custody will be decided keeping the best interest of the child.
Can a husband file for maintenance against the wife under Hindu law?
Yes, an application for maintenance, whether temporary or permanent, can be made by either husband or wife.
If my husband did not intend to behave in a cruel manner with me, can I still go to Court to file a case of cruelty under Hindu law?
Just because your spouse did not intend to hurt you or harass you, does not mean that it is not an act of cruelty. The intention of your spouse does not matter. Unintentional acts also amount to cruelty. For example, if your husband has a habit of beating you under the influence of alcohol, the excuse of him not “intending” to beat you, will not matter – it would still be an act of physical cruelty and you can go to the Court to file for a divorce.
What are some examples of cruel behaviour that Courts have looked at under Hindu law?
Can the act of cruelty be an isolated incident under Hindu law?
Cruelty is not a singular or isolated act done by one of the spouses. It has to be of such a nature that it is recurring or continuing over a period of time. However, there may be cases where a single conduct is bad enough or is an illegal act such as domestic violence . In such cases, Courts may consider such acts as acts of cruelty and grant the divorce.
Do Hindus have a separate law for divorce or is it the same as all religions?
Yes, Hindus have a separate law for divorce. The Hindu Marriage Act, 1955 is the law which governs Hindu marriages and divorce. Therefore, a couple married as per the Hindu Marriage Act must also get divorced under the same law.
What is my marital status if my husband dies during the divorce proceeding under Hindu law?
In a situation where the spouse who filed for divorce dies, the divorce proceeding would be discontinued and therefore you would be a widow, not a divorcee. A divorcee is a divorced person. In a situation where you have filed for divorce and your husband dies, the divorce proceedings may not necessarily be discontinued because certain legal obligations continue after his death. Therefore, your case for divorce can continue and you may claim maintenance from the legal heirs of your husband. Depending on the decision of the court, you will not only be a widow but also a divorcee.
My wife is a qualified dentist but isn’t currently working. Can the Court still order me to pay her temporary maintenance for the course of the divorce proceedings under Hindu law?
Yes, the Court can order you to pay her temporary maintenance. It does not matter if she has earning capacity or not or whether she is qualified or not. If she does not have any source of income during the course of the proceedings, she can make an application for temporary maintenance and the Court can grant her the same.
I’m about to divorce. address on my ids like adhar card voter id, pan and ration card is of my husband’s house. How can I change it to my parental address?
Read this explainer to understand how to update the address in all your identification cards.Nyaaya is an open access, digital resource that provides simple, actionable, reliable and accessible legal information to all Indians, helping you solve your day-to-day legal problems so that you are aware of your rights and feel empowered to seek justice.
