Indian High Court Grants Divorce in Unconsummated Marriage

In India, divorce law holds that couples seeking a divorce must spend a minimum of one year living separately before a divorce can be granted, but a recent case has highlighted a particularly interesting exception to this rule.

Although they had not been living apart for one year, Indian couple Deepak and Aswathy challenged the Alappuzha family court’s denial of their divorce.  The couple was married on May 13, 2011 and had lived separately since June 30, 2011 – which was not a year from the date of their divorce filing, May 16, 2012. Yet, they ascertained that their marriage had suffered irreconcilable differences.

The family court originally held that because section 13B of the Hindu Marriage Act of 1955 required one year of living apart before a petition for divorce could be presented, the divorce could not be granted under Indian law.

After this denial, the couple petitioned the Kerala high court, where their lawyer S Shanavas Khan claimed that section 14 of the Hindu Marriage Act allows exceptions to be made in special circumstances that present “hardship to the petitioner.”

The high court ruled in favor of the couple, granting them a divorce – the “hardship” being a complete lack of sex within the marriage.  Invoking section 14 of the Hindu Marriage Act, the high court held that “Section 13B is subject to section 14 of the act. Hence, the power under the proviso to section 14 is available. Appellants have pointed out that there was lack of mutual co-ordination and during matrimonial life there was not a single instance of love and affection between the parties.” The order was giving by Justices TR Ramachandran Nair and AV Ramakrishna Pillai.