Under the old Hindu laws, divorce was viewed as forbidden and was not talked about as freely as it is spoken out today, but with the codification of the laws, the provision of divorce was laid down. The provision of “Divorce” has been dealt with under the Hindu Marriage Act, 1955 as being a true blue method whereby both the parties to the marriage, decide to break all the promises or vows taken at the time of marriage. All Hindus, Buddhist, Jains or Sikhs are covered under the divorce provisions of the act. In ancient times, the concept of divorce was not known to anyone. They considered marriage as a sacred concept. According to Manu, the husband and wife cannot be separated from each other; their martial tie cannot be broken. Later the concept of divorce came in the picture and established as a custom to put the marriage to an end.
Introduction
According to the [i]Arthashastra, marriage can end if dissolved by mutual consent and should be unapproved marriage. But Manu does not believe in the concept of the dissolution. According to Manu the only way to end the marriage is the death of one of the spouses.
The provision related to the concept of divorce was introduced by the Hindu Marriage Act, 1955. The Hindu Marriage Act defines divorce as a dissolution of the marriage. For the interest of the 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.
Different Theories of Divorce
Fault Theory
Under this theory, marriage can be ended when one party to the marriage is responsible or liable for the offense under [ii]matrimonial offenses done against another spouse. Only the innocent spouse can seek this remedy. The only drawback of this theory is when both the spouse are at fault, then no one can seek these remedies of divorce.
The Irretrievable breakdown of Marriage
The Marriage Laws (Amendment) Bill, 2010 incorporated another ground for seeking a divorce, namely the ‘Irretrievable breakdown of marriage’ under the [iii]Hindu Marriage Act, 1955 and the Special Marriage Act, 1954. As the term suggests, it leads to a situation whereby, either or both the parties to the marriage fine it impossible to peacefully cohabit with each other, due to personality’s clashes, differences in opinion and have lived separately from each other for a long period and are no longer too eager to further carry on their matrimonial relationship.
Divorce by mutual consent
Divorce by mutual consent is the fastest way of getting a divorce in India. A petition seeking divorce has to be filed in the Court by the married couple because both the husband and the wife have been living individually for a time frame of one year or more, thereby failing to fulfill their matrimonial obligations and wanting to dissolve their marriage. A reasonable amount of time, i.e. between 6 to 18 months are given to the married couple for reconsidering their decision for seeking divorce and withdraw the petition. However, if the petition is not withdrawn during this period, the Court after having been fully satisfied with the averments made in the plaint and after having heard both the parties would grant a decree of divorce.
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 divorce or appeal for dissolution of marriage in the court of law. For the interest of the 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 [iv](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.
Grounds of Divorce as per The Hindu Marriage Act
Adultery
The concept of Adultery may not be considered as an offense in many countries. But as per the Hindu Marriage Act, in the matrimonial offense, adultery is considered as one of the most important grounds for seeking a divorce. Adultery means the consensual and voluntary intercourse between a married person with another person, married or unmarried, of the opposite sex. Even the intercourse between the husband and his second wife i.e. if their marriage is considered under bigamy, the person is liable for the Adultery.
The concept of Adultery was inserted under the Hindu Marriage Act by the Marriage Laws Amendment Act, 1976.
In Swapna Ghose v. Sadanand Ghose
In this case, the wife found her husband with another girl lying on the same bed and the neighbor also confirmed that the husband has committed an offense. Here the wife gets the divorce.
In Sachindranath Chatterjee vs Sm. Nilima Chatterjee
In this case, the petitioner and the defendant were married. After marriage, the husband leaves the wife in his home town so that she can complete her studies and go to another city for work. He visited twice or thrice a month to meet her. Later he found that his wife commits adultery i.e. to involve in sexual intercourse with his nephew, watchman, etc. The plaintiff approaches the court to demand a divorce on the ground of adultery and his petition was accepted and the marriage gets dissolved.
Essentials of Adultery
- One of the spouses involved in intercourse with another person, married or unmarried, of the opposite sex.
- Intercourse should be voluntary and consensual.
- At the time of the act, the marriage was subsisting.
- There must be sufficient circumstantial evidence to prove the liability of another spouse.
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 [v]concept of mental cruelty was added as the spouse can also be mentally tortured by the other spouse. Mental Cruelty is a lack of kindness that 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 for Martial Physical Relationship without a valid reason.
- The wife having an affair.
- Wife living an immoral life.
- The constant demand for money.
- Aggressive and uncontrollable behavior of 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 behavior with him and his parents was Aggressive and uncontrollable and many times she filed the false complaint against her husband. The court accepts the petition and grants the divorce on the ground of cruelty.
What considered as Mental Cruelty against wife by Husband
- False accusation of adultery.
- The demand for dowry.
- Impotency of Husband.
- Force to abort the child.
- The problem of drunkenness of husband.
- Husband having affairs.
- The husband lives an immoral life.
- Aggressive and uncontrollable behavior 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 his consent. In General, the rejection of the obligations of marriage by one party.
Essentials
- Permanent abandonment of the other spouse.
- Rejection of the obligation of marriage.
- Without any reasonable justification.
- No consent from another spouse.
In Bipin Chander Jaisinghbhai Shah vs Prabhawati
In this case, the respondent leaves the house with the intention to abandon his wife. Later the wife approaches the court, but the defendant proved that even though he left the house with the intention to desert, but he tried to come back and he was prevented from doing so by the petitioner. Here, the defendant cannot be held liable for desertion.
Conversion
If one of the spouses converts his religion to any other religion without the consent of the other spouse, then the other spouse can approach the court and seek the remedy of divorce.
Illustration
A, a Hindu has a wife B and two children. One day A went to church and converted to Christianity without the consent of B, here B can approach the court and seek divorce on the ground of conversion.
In Suresh Babu vs Leela
In this case, the husband converts himself into a Muslim and marries another woman. Here the wife Leela filed a case and demanded the divorce on the ground of conversion without her consent and cruelty.
Insanity
Insanity means when the person is of unsound mind. Insanity as a ground of divorce has the following two requirements-
- The respondent has been incurable of unsound mind.
- The respondent has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.
In Vinita Saxena vs Pankaj Pandit
In this case, the petitioner filed a case to get the divorce from the respondent on the ground that the respondent was suffering from Paranoid Schizophrenia which means mental disorder. She came to know these after her marriage. Here, the court grants the divorce on the ground of the insanity of the husband.
Leprosy
Leprosy is an infectious disease of the skin, mucous membranes, nervous system, etc. this disease is transmitted from one person to another. Thus it is considered as the valid ground for divorce.
In Swarajya Lakshmi vs G. G. Padma Rao
In this case, the husband filed the case for granting the divorce on the ground of leprosy. He claimed that his wife is suffering from incurable leprosy with the expert’s reports. Here he succeeds in getting the divorce on the ground of leprosy.
Venereal Disease
Under this concept, if the disease is in communicable form and it can be transmitted to the other spouse, then this can be considered as the valid ground for divorce.
Illustration
A and B married on 9 September 2011. Later A suffered from a venereal disease and it is incurable. There’s also a chance that B can also get infected by that disease if she lives with A. Here, B can approach the court for dissolution of marriage
Renunciation
It means when one of the spouses decides to renunciate the world and walk on the path of God, then the other spouse can approach the court and demand the divorce. In this concept the party who renunciates the world is considered civilly dead. It is a typical Hindu practice and considered a valid ground for divorce.
Illustration
A and B got married and lives a happy life. One day A decides to renunciate the world. Here, B has a right to approach the court and seek the remedy of divorce.
Presumption of Death
In this case, the person is presumed to have died, if the family or the friends of that person does not hear any news about the person alive or dead for seven years. It is considered as the valid ground for divorce, but the burden of proof is on the person who demands the divorce.
Illustration
A was missing from the last seven years and his wife B does not get any news about him of being alive or dead. Here B can approach the court and ask for the divorce.
Concept of Divorce with Mutual Consent
As per Section 13B, the person can file the petition for divorce by mutual consent of both the parties. If the parties want to dissolve their marriage as mutual consent is required to wait for one year from the date of marriage. They have to show that they are living separately for one or more years and not able to live with one another.
No petition for divorce within one year of Marriage
As per Section 14, no Court will entertain the petition of divorce within one year of the marriage. But can be entertained if the matter is related to bigamy, and where the consent of the spouse was taken through misrepresentation, fraud, undue influence, etc.
Remarriage of Divorced Person
As per Section 15, after the marriage gets dissolved and no further petition was filed by any of the spouses against the order of the court and the time for appeal has expired. At that time it is assumed that both the spouse are satisfied. Then only the divorced person can marry again.
Conclusion
The Hindu Marriage Act, 1955 provides various provisions regarding divorce. The Hindu Marriage Act defines “Divorce as a Dissolution of Marriage”. The main three theories related to divorce are Fault Theory, Mutual Consent Concept, and irretrievable theory. In India, the Fault theory works in the matter of the divorce. Under this theory, marriage can be ended when one of the spouses is responsible or liable for the offense under matrimonial offenses. The innocent spouse can seek the remedy of divorce. Under the Hindu Marriage Act, the basic grounds on which the Hindu women can seek the remedy of divorce are Adultery, Desertion, Conversion, Leprosy, Cruelty, etc. But many philosophers criticize the concept of Divorce. The Hindu married women can also apply for the maintenance under section 125 of the Criminal procedure code. So the innocent spouse can approach the court and can seek the remedy of divorce.
References
- 1- https://en.wikipedia.org/wiki/Grounds_for_divorce
- 2- http://www.legalserviceindia.com/helpline/grounds_for_divorce.htm
- 3-https://indianexpress.com/article/explained/explained-how-indian-courts-over-the-years-have-seen-mental-cruelty-as-grounds-for-divorce-6407154/
- 4- https://vakilsearch.com/advice/grounds-divorce-hindu-marriage-act/
- 5https://www.advocatekhoj.com/library/lawareas/divorceinindia/7.php?Title=Grounds%20for%20Divorce%20in%20India
