Both you and your spouse can end the marriage and divorce each other if you both do not want to continue in the marriage and end all marital obligations.
What is essential in this form of divorce is that both you and your spouse should consent to ending the marriage. This form of divorce is known as Mubara’at.
The word ‘mubara’at’ means ‘freeing one another mutually’. Mutual divorce takes place in the form of ‘Mubara’at’ when:
- Both husband and wife consent to ending the marriage
- You (husband) have to say ‘talaq’ once
- This form of talaq cannot be revoked.
This form of divorce happens after coming to a mutual decision to end the marriage.
If you and your spouse decide to end the marriage, this means that certain duties have to be followed such as:
- Your wife has to follow the period of iddat after the divorce.
- Both your wife and children can get maintenance during this period.
If you did divorce your wife using this method, then you cannot remarry her again unless certain conditions are followed.
Cruel Behavior is a ground of divorce under Hindu Marriage Law. Cruelty is behavior or conduct which causes harassment to you. Cruelty may be in two forms:
- If your spouse physically hurts you by causing any bodily harm, then you can go to the Court to ask for a divorce. This kind of behavior amounts to physical cruelty. It is easier to prove this in Court.
- If your spouse is causing you mental distress, because of his or her conduct or words, then this kind of behavior amounts to mental cruelty. For example, if your spouse abuses you verbally or your spouse harms your reputation in front of your friends and colleagues etc. Mental cruelty is more difficult to prove in Court as compared to physical cruelty.
The act of cruelty is gender-neutral, meaning, a husband can file the case against the wife for cruelty and vice-versa.
Under Muslim law, there are provisions for divorce due to missing husband.
You can file for divorce if you do not know the whereabouts of your husband for a period of 4 years.
You can file for a divorce if your spouse has cheated on you, i.e. when they have had voluntary sexual intercourse with another person. This is also referred to as adultery.
To get a divorce, you will have to prove that voluntary sexual intercourse took place between your spouse and another person.
Till recently, cheating was a crime. It is no longer a crime. However, you can still file for divorce on the grounds that your spouse has cheated on you.
Under Muslim law, there are provisions for divorce due to non-payment of maintenance by the husband.
If your husband has failed to provide maintenance to you for a period of 2 years, then you can go to Court to ask for a divorce.
If your spouse has left you then you can file for a divorce. This is known as desertion.
Immediate Effect of Desertion
Desertion can happen if your spouse has left you with immediate effect with an intention to never come back to stay with you as your spouse, without you agreeing to this arrangement.
This will only be understood by the Courts on a case by case basis. It is important to note that if your spouse has temporarily or in the heat of the moment left you, without actually intending to abandon you, this will not amount to desertion.
For example, if you had a fight with your husband and he leaves the house in anger then it does not mean that he has deserted you.
However, it is important that you have not created such a circumstance that any reasonable person would find so difficult to bear with that would have had to desert you. If you have created such a circumstance then the courts may not consider your case for desertion.
Other Ways of Desertion
Apart from a single act of leaving you, desertion can happen over a period of time through a course of conduct or through repeated behavioural patterns.
If your spouse has slowly withdrawn from you and your social circles (for example: stopped all interaction with you and your family though he/she may live with you) and has stopped behaving as any spouse does in a marriage (for example: refusing to financially contribute to a household since and contribute in any other way to the household) it can be understood as desertion. In such a case the spouse doesn’t have to physically leave you. Depending on the circumstances of each case, the Court can consider the desertion to begin when such behaviour started.
The Court will look at all the facts and circumstances to understand each specific case to decide on granting a divorce.
Time Period for Desertion
In order to claim desertion as a reason for divorce:
- Your spouse should have deserted or abandoned you for two years.
- This two year period must be continuous.
For example, Karan left his wife, Vijji, in January 2016, but changed his mind and came back to be with his wife in July 2017. Vijji cannot go to Court to file for a divorce for this reason as the two year period was not continuous.
Under Muslim law, there are provisions for divorce due to incarceration of husband. If your husband has been convicted of a crime and is sent to jail for 7 years or more, then you can go to Court to file for a divorce.
Such decree for divorce may be granted only if the husband’s sentence has become final.
If you are in a Hindu marriage, the mental illness of your spouse can be a ground for divorce.
You can file for divorce if:
- Your spouse is suffering from any mental disorder that is not curable; or
- Your spouse has a mental disorder that occurs intermittently or continuously and this illness affects your capacity to live with them.
It is important to note that a few strong instances indicating a short temper and somewhat erratic behaviour on the part of your spouse may not amount to or be indicative of a mental disorder.
Divorce can only happen if your spouse’s mental disorder would lead to the behaviour of such a kind that you cannot reasonably be expected to live with him or her.
You can even ask the Court to direct your spouse to undergo a medical examination to ascertain that he or she is suffering from an unsound mind to prove your case.
Under Muslim law, you can file for divorce if your husband does not perform marital obligations. If your husband, without any reason, decides not to perform his marital obligations for more than 3 years then you can go to Court to file for divorce.
Marital obligations include:
- Sexual intercourse
- Living together in the same house
You can file for divorce if your spouse has undergone conversion to another religion and has ceased to be a Hindu.
File a Case
It is very important to note that since your spouse has converted to another religion it does not automatically end your marriage to them. You must still file for divorce.
Even if your spouse has converted to another religion the divorce proceedings will happen under the Hindu law and not the religion your spouse converted to. This is because your marriage to your spouse happened under Hindu law.
Marrying before Filing for a Divorce
Till the divorce has been finalized by the Court your marriage will continue to exist with your spouse. Your spouse cannot marry before this and such marriage will not be a valid marriage in law.
If your spouse marries again without getting a divorce from you then you can charge them with the offence of bigamy which is punishable with up to 7 years jail time and a fine.