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Additional Grounds for Divorce for wife
Husband having more than one wife livingIf the husband has more than one wife living after the commencement of this Act, a wife may present a petition for divorce under cl. (i) of sub-sec. (2) of s. 13 of the Act. Only limitation on the right of a wife who applies for divorce under this provision is that the other wife should be alive at the time of presentation of the petition irrespective of findings that the petitioner was aware of existence of the other wife and that the husband was not guilty of cruelty.
Delay as leading to an inference of condonation of or connivance or indifference to matrimonial wrong is not an appropriate consideration for cases under s. 13(2)(i) of the Act. The right of divorce given to the first wife by s.13(2)(i) does not depend on her conduct prior to the commencement of the Act. The existence of the first wife at the time of performance of the second marriage need not be established by direct evidence and that fact may be inferred from other facts proved in the case.
Rape, sodomy or bestialityUnder s. 13(2)(ii) of the Act a wife is entitled to petition for divorce on the ground of rape, sodomy or bestiality committed on her by the husband. Rape is also a criminal offence and defined in s. 375 of the Indian Penal Code. A man is said to commit rape who has sexual intercourse with a woman against her will, without her consent, with her consent which is obtained by putting her in fear of death or of hurt, with her consent when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married, or with or without her consent when she is under sixteen years of age. Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. There is however one exception.
No rape is committed by the husband on the wife if she is over fifteen years of age. Sodomy is committed by a person who has carnal copulation with a member of the same sex or with an animal, or has non-coital carnal copulation with a member of the opposite sex. Bestiality means sexual union by a human being against the order of nature with an animal.
The commission of these offence by the husband must be proved by the wife either by witnesses as to fact or by evidence of admission made by the respondent, such as a plea of guilty of his trial. Though these are criminal offences, but mere evidence of conviction for these offences is not sufficient to obtain a decree for divorce. In divorce proceedings these offences are required to be proved b the wife de novo. Where the wife is a consenting party to the commission of any of these offences, her evidence should not be accepted without corroboration.
Decree or order of maintenanceWhere a decree for maintenance of wife under s.18 of the Hindu Adoptions and Maintenance Act 1956, or an order for maintenance of wife under s. 125, Cr PC 1973, has been passed against the husband, the wife is entitled to present a petition for divorce provided two conditions are satisfied. First, she was living apart, and secondly, since the passing of such decree or order cohabitation between her and her husband has not been resumed for at least one year.
Marriage before attainment of the age of fifteen yearsWife is entitled to present a petition for divorce if her marriage was solemnized before her attainment of the age of fifteen years provided she has repudiated the marriage after attaining the age of fifteen years but before attaining the age of eighteen years. But the petition may be presented after completing eighteen years of age.13 In absence of a school certificate, the parents are the best witnesses of the fact of the date of birth of their children. Entries in a horoscope can be used to prove the date of birth and also by examining the person who wrote it.
Consent obtained by forceWhere divorce petition is filed by wife on the ground that her consent to the marriage was obtained by force and under threat but without making any complaint to that effect to the Registrar of Marriage at the time of registration, it cannot be inferred that her consent was involuntary.
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