Introduction to Divorce: Grounds and Relevant Provisions Of hindu marriage Act,1955
The word ‘divorce’ had not been defined under any statutory provisions but it could be defined as a legal dissolution of judicial ties established at marriages. Thus a divorce is also a seven lettered word, which separates the united couple at their own wish with their own consent. Thus divorce can be considered a means to break marriage that happens not just between two individuals but also between two families.
Theories of Divorce
The theories of divorce are as follows:
(1) The fault theory
The fault theory of divorce is also known as the offense theory or guilt theory. Therefore it highlights on the point that a marriage can be dissolved when any of the parties within the bond of matrimonial ties commits an offense against the innocent party of the marriage. Thus it is necessary to have a guilty partner and an innocent partner within the bond the matrimonial ties. The innocent party only holds the right to seek remedy for the divorce. However, the most striking feature is that if both parties are at fault there is no remedy available for them.
(2) Mutual consent theory
The reasoning behind this theory is that since two people marry each other through their free will, at the same time, they ought to likewise be permitted to move out willingly. In any case, it highly criticized that this methodology will advance immorality as it will prompt rushed separations and parties would break down their marriage regardless of whether there was a slight contradiction of personality.
(3) Irretrievable breakdown of marriage theory
The irretrievable breakdown of marriage theory is defined as a failure in the matrimonial relationship owning to such adverse circumstances that no reasonable probability remains for the spouses to stay together. As a result of such adverse impossible conditions and situations, the husband and the wife cannot ever stay together. Thus we can say that in such cases there is a stronger reason to live apart compared to the emotions of love, affection, and loyalty that should commonly prevail between the husband and the wife. Therefore the rationale behind this theory is that if a marriage is beyond all possibilities of a repair then it should be brought to an end; when a marriage is not able to last then there is no point in sharing rights and obligations between the two parties.
Relevant provisions related to Divorce under the Hindu Marriage Act,1955
As the needs of the Indian society changed, the concept of divorce also got codified under the Hindu Marriage Act, 1955. Thus, there are a number of sections that deal with divorce such as:
(1) Section 10
Firstly, the word judicial separation means a legal process through which a married couple gets formally separated even if they are legally married. Thus this concept is also being highlighted under Section 10 of the Hindu Marriage Act 1955. Either party to the marriage regardless of the fact whether the marriage had been solemnized before or after the commencement of this Act, may present a petition praying for an order for judicial separation, on any grounds specified under sub-section (1) of Section 13, and also on account of the wife additionally on any of the ground indicated in sub-section (2) of these grounds on which the request for separation had been presented.
Similarly, Section 10(2) also states that when a decree of judicial separation had been passed it shall no longer be obligatory for the concerned petitioner to stay with the respondent. However, the court also has the liberty that after receiving the application from the petitioner of either party and being satisfied with the actual findings of the statements, they may even dismiss or revoke the decree if it considers just and reasonable to do so.
(2) Section 5
Section 5 states the necessary conditions for a Hindu marriage. Thus it could also be interpreted that if one of these conditions is contravened or not fulfilled then it could also be a ground of divorce. These conditions are as follows:
• None of the party should have another living spouse during the time of marriage.
• During the time of marriage none of the party-
(1) Is capable of giving his/her valid consent to marriage as a result of unsoundness of mind.
(2) Even if he or she is capable of giving valid legal consent, the party had been suffering from mental illness of such a nature and to such a limit that it is completely impossible for him/her to marry and to procreate a child.
(3) He/she had been subjected to continuous attacks of insanity.
(4) The bridegroom should complete the age of 21 and the bride should complete the age of 18 at the time of marriage.
(5) The parties should not be inside the degrees of precluded relationship except if the custom or usage administering every one of them licenses a marriage between the two;
(6) The parties should not be ‘sapindas’ of one another, except if the custom or usage administering every one of them grants a marriage between the two.
(3) Section 13
Section 13 is the foundation section that clearly states the grounds of divorce. These grounds are adultery, cruelty, Desertion, conversion, insanity, leprosy, venereal disease, renunciation, and presumption of death. Thus on these grounds divorce is bound to take place between the two legally married couples. Section 13(A) also provides a divorce through mutual consent where both the parties don’t want to continue a married life, thus mutually they accept the fact and consents to have a divorce.
(4) Section 14
Section 14 states that no petition of divorce could be filed within the first year of marriage. Thus it could be interpreted that one year is the time gap given by the law itself in order to solve, sort, understand and communicate problems with each other. Thus no court shall be competent to entertain a petition for divorce unless the time gap of one year had elapsed. However, upon receiving an application in accordance with the rules made by the High Court, the Court may allow the petition to be presented in case of one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent. But if it appears to the court upon hearing the petition that there is a misrepresentation of facts or concealment of the nature of the case the court may as it deems fit may also dismiss the petition without any prejudice.
In discarding any application under this section for leave to present a request for divorce before the [expiration of one year] from the date of the marriage, the court will have to respect the interests of any offspring from the marriage and to the inquiry, whether there is a sensible likelihood of a compromise between the parties before the termination of the [said one year].
(5) Section 15
Section 15 highlights on the point as to when a divorced person can marry again. It states that when a marriage had been dissolved by the decree of divorce then there is no question of appeal against the decree. However, if there is a right to appeal, there may be situations that the limitation period for appeal had expired without the appeal being presented or if the appeal being considered or presented had been dismissed. Therefore, after completion of all these procedures, the divorcee is free to marry again at their own will.
Irretrievable breakdown of the Marriage
1.Merits (Advantages)
If the individuals, tied within the matrimonial bond feels that the marriage is not working out, then mutually it may give the right to both of them to stay and live life separately and happily without any botheration on either part. As there is no reasonable probability of staying together thus it gives both of them the opportunity to start their life as per their own wishes independently and separately.
2.Demerits (Disadvantages)
i.Irretrievable breakdown of the marriage may become an excuse where the married couples may always feel that little arguments are unreasonable as a result of which there is no probability of them staying together. Therefore, in my opinion, the process of divorce following the irretrievable breakdown of marriage theory is not justified.
ii.It may also result from sudden arbitrary unreasonable decisions.
iii.It sometimes happens based on temporary emotions such as anger, humiliation, etc. which a couple may go through during the heat of the argument.
iv.It fosters no communication procedure between the partners.
V.It is not just the breakdown of marriage but it is also the wreckage of two united families at the time of marriage.
vi.If children are born out of that marriage when the parents ‘now’ think that there is no reasonable probability of staying together, such broken families could be a matter of stress for the child born out of the marriage as well.
Grounds of Divorce in India
In India grounds for divorce are same as grounds of judicial separation.
Grounds of judicial separation under Hindu Law refer to the legal reasons or circumstances under which a married couple can seek a formal separation recognised by the law without proceeding to a full divorce. Judicial separation allows couples to live apart while still legally married. In this section, we will explore various grounds for judicial separation in Hindu Law, examining the situations and criteria that enable either spouse to petition for this legal remedy.
(1) Adultery
Adultery refers to when one spouse in a marriage engages in voluntary sexual intercourse with another person outside of the marriage. In the case of Dr. H.T. Vira Reddi v. Kistamma (1968), the Court granted judicial separation under Hindu Law to the husband because the wife had engaged in sexual intercourse with someone else. The Court emphasised that even a single act of infidelity by one spouse is sufficient grounds for obtaining legal separation.
(2) Cruelty
The term ‘cruelty’ in the context of marriage doesn’t have the same meaning as in everyday language. ‘Legal cruelty’ has a different definition. In the case of G.V.N. Kaeswara Rao v. G. Jalli (2002), the Supreme Court attempted to define ‘cruelty’ within the context of marriage.
The court stated that an act is considered cruel if its intent is to cause suffering to the other spouse. It doesn’t necessarily have to create fear in the spouse that it’s dangerous to live with the other. The intent of the person causing the cruelty doesn’t matter and it doesn’t have to be committed by the respondent alone.
(3) Desertion
Desertion, for a continuous period of two years, can be a basis for seeking judicial separation under Hindu Law. It means one spouse completely abandoning their marital responsibilities without a valid reason and without the consent of the other spouse. There are three types of desertion:
• Actual desertion: When one spouse physically abandons the other without explanation. For instance, in the case of Meena v. Lachman (1959), the wife left for her parent’s home without informing her husband and made false promises of return but didn’t come back for two years. The Bombay High Court recognised this as desertion and granted judicial separation in Hindu Law.
• Constructive Desertion: Constructive desertion occurs when one spouse creates an environment that compels the other spouse to leave. In the case of Jyotish Chandra Guha v. Meera Guha (1969), the husband’s persistent disinterest and cold, rude behaviour towards his wife led to her enduring mental and physical suffering. She was eventually forced to file a divorce petition. The court deemed this as desertion at the hands of the husband.
(4) Wilful Neglect
Wilful neglect happens when one spouse intentionally neglects their marital duties towards the other without physically leaving. This may involve a refusal to cohabit or a failure to fulfil various marital responsibilities.
(5) Conversion
If one spouse converts to another religion, ceasing to be a Hindu, the other party can seek judicial separation under Hindu Law. In the case of Vilayat Raj v. Smt. Sunila (1983), where the husband converted to Islam and sought to dissolve the marriage, the court established that a conversion alone does not automatically end the marriage but serves as a ground for its dissolution. However, the court also noted that a party cannot benefit from a situation they created to the detriment of the other spouse.
(6) Unsound Mind or Mental Disorder
If one spouse is of unsound mind or suffers from an incurable mental illness or disorder that makes it difficult for the other spouse to live with them, an appeal for judicial separation in India can be filed. In the case of Anima Roy v. Proboth Mohan Roy (1968), the husband sought nullity of the marriage, claiming his wife had schizophrenia at the time of their marriage. However, his petition was not allowed by the court due to an unwarranted delay of three years in filing the petition from the date he claimed to have learned about his wife’s condition. Additionally, the evidence presented was not satisfactory.
(7) Venereal Communicable Diseases
If one spouse suffers from a communicable and incurable venereal disease such as HIV/AIDS, HPV or syphilis, the other spouse can seek judicial separation under Hindu Law. In the case of Madhusudan v. Smt. Chandrika (1975), the husband filed a petition seeking annulment of the marriage or judicial separation due to his wife’s syphilis. The court rejected his appeal because he couldn’t prove that his wife had syphilis for three years before the petition and the incurable nature of the disease was not established.
(8) Renunciation
Renunciation occurs when a person forsakes worldly pleasures to lead a spiritual life and seek enlightenment. This is one of the grounds on which a party to a marriage can request judicial separation. In the case of Teesta Chattoraj vs. Union of India (2012), ‘renounce the world’ was defined as withdrawing from worldly interests to lead a spiritual life. It involves formally consenting to abandon or surrender material possessions and worldly claims.
(9) Presumption of Not Being Alive
If one spouse goes missing for a minimum of seven years and there is no information about their status and their family and friends are unaware of their whereabouts, it is presumed that the missing spouse may have passed away. In such cases, the other spouse can request judicial separation on these grounds.
Also Read : Sources Of Hindu law: Ancient and Modern
Grounds of Judicial Separation Available to the Wife
(1) Bigamy
Bigamy refers to marrying another person when one is already legally married to someone else. Prior to the commencement of the Act, if a husband remarried another woman while his wife was still alive, the wife could file a petition for judicial separation under Hindu Law. In the case of Harmohan Senapati v. Smt. Kamala Kumari (1978), the wife filed a suit for judicial separation because the husband married another woman and lived with her without dissolving their earlier marriage.
(2) Guilty of Rape, Sodomy or Bestiality
If the husband, after marriage, is found guilty of rape, sodomy or bestiality, the wife has the right to file a petition for judicial separation on these grounds. For example, if ‘A’ and ‘B’ are husband and wife and ‘A’ is convicted of rape of another woman, ‘B’ can file a petition for judicial separation under Hindu Law.
(3) Non-Resumption of Cohabitation After an Order of Maintenance
If a decree or order has been passed against the husband to provide maintenance to the wife under various acts like the Hindu Adoptions and Maintenance Act, 1956 or under Section 125 of the Code of Criminal Procedure, 1973 and no cohabitation between the husband and wife has resumed for a period of one year or more, the wife can file a petition for judicial separation.
(4) Repudiation of Marriage After the Age of 15 and Before the Age of 18
If a marriage was solemnised when the girl was under 15 years of age and she repudiates the marriage after turning 15 but before turning 18, the wife can file a petition for judicial separation under Hindu Law. This ground is significant in providing relief to minor girls, especially from disadvantaged communities, who were married against their will.
Divorce with Mutual Consent
Divorce by shared assent is when both parties agree to have a peaceful divorce. It is a basic method for leaving the marriage and dissolving the marriage legitimately. The primary part of such a separation is the mutual consent or the shared assent of the husband and wife. There are sure viewpoints to which the Husband and Wife need to arrive at a consensus. The first is the provision of maintenance issues. According to Law, there is no concept of minimum or maximum maintenance. It could be any figure. Another thought is child custody. Both parties need to go to an agreement over these two subjects. Section 13(B) specifically talks about divorce by mutual consent. Section 13B(2) also gives the transitional time period of 6 to 18 months as a period of interregnum which is intended to give time and opportunity to the parties. Divorce by common assent can be documented when the couple have been living independently for a time period of 1 year and have commonly chosen to end their marriage. A joint divorce petition is recorded by the separating couple in the court. Thus in this form of a divorce petition, the terms and conditions of such a separation are decided amicably and mutually through proper coordination and discussion.
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