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.
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.
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If your spouse has slowly withdrawn from you and your social circles (for example: stopped all interaction with you and your family though he/she may live with you) and has stopped behaving as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.
In order to claim desertion as a reason for divorce:
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:
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:
You can file for divorce if your spouse has undergone conversion to another religion and has ceased to be a Hindu.
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.
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.
Under Muslim law, you can file for divorce if you find out that your husband is impotent or even if you knew throughout your marriage that your husband was impotent. In this situation your husband can do either of the following:
The proof that your divorce has happened is the Court’s final order known as ‘decree of divorce’. This is in the form of an order, which is a document that enforces your divorce.
A decree of divorce is final when either of the two happens:
Please consult a lawyer for more information on this.
There are provisions on cruel behavior under the Muslim marriage law. Cruelty is any conduct or behavior which causes harassment in the mind of the spouse. Under the Muslim law, cruelty is specifically understood as when your husband:
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