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Grounds For Divorce Under Hindu Law, 1955

Divorce means putting an end to the marriage by the dissolution of marital relations. It is the legal dissolution of a marriage by a court or any competent court. After divorce parties can no longer be husband and wife.

Divorce was formerly unheard of in general Hindu law because marriage was seen as an indissoluble union of the husband and woman. Manu decreed that a wife could not be released by her husband by sale or abandonment, meaning that the marital bond could not be dissolved in any way. Although Hindu law does not allow for divorce, it has been determined that if it is regarded as an established tradition, it has the power of law.

Marriage may be dissolved by mutual consent in the case of an unapproved form of marriage, according to Kautilya's Arthashatra. Manu, on the other hand, does not believe in the end of marriage. He declares" let mutual fidelity continue till death; this, in brief, may be understood to be the highest dharma of the husband and wife."

However, this changed when divorce was introduced in the Hindu Marriage Act, 1955.

Concept Of Divorce

The term "divorce" had not been defined by statute, but it may be defined as a legal termination of judicial connections established during marriages. Hence, divorce is a seven-letter term that separates a married pair of their own will and with their own agreement. So, divorce can be viewed as a way to end a marriage that occurs not just between two individuals but also between two families.

Theories Of Divorce

The theories of divorce are as follows:
  • The Fault Theory
    The Fault Theory of divorce is also known as the Offense Theory or Guilt Theory. As a result, it emphasises the fact that a marriage can be dissolved if any of the parties inside the matrimonial bond commits an offence against the marriage's innocent partner. As a result, inside the married connections, a guilty and an innocent partner are required. The innocent party merely has the right to seek divorce redress. The most striking element, however, is that if both parties are at fault, there is no recourse accessible to them.
  • Mutual Consent Theory
    The argument behind this view is that since two individuals marry one other of their own free will, they should also be allowed to divorce freely. In any event, it has been heavily criticised that this practise will increase immorality by causing hurried separations and parties breaking down their marriage regardless of whether there was a tiny personality conflict.
  • Irretrievable Breakdown of Marriage Theory
    According to the irreversible breakdown of marriage theory, a failure in the married partnership due to such severe conditions that no reasonable prospect of the spouses remaining together remains. The husband and wife will never be able to stay together as a result of such awful difficult conditions and scenarios. Consequently, in such instances, there is a stronger cause to live apart than the emotions of love, affection, and devotion that should typically exist 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.

Grounds For Divorce Under Hindu Marriage Act, 1955

All Jurisdictions agree that public policy, good morals, and the interests of society demand that the marriage relationship be surrounded by every precaution and that its severance be permitted only in the manner and for the cause prescribed by law. Divorce is not favoured or promoted, and it is only tolerated for serious reasons.

All three theories of divorce are acknowledged in modern Hindu law, and divorce can be sought on the basis of any of them. The Hindu Marriage Act, 1955 originally, based divorce on the fault theory, and enshrined nine fault grounds in Section 13(1) on which either the husband or wife could sue for divorce, and two fault grounds in Section 13(2) on which wife alone could seek the divorce. In 1964, by an amendment, certain clauses of Section 13(1) were amended in the form of Section 13(1A), thus recognizing two grounds of the breakdown of the marriage. The 1976 amendment Act inserted two additional fault grounds of divorce for wife & a new section 13B for divorce by mutual consent.

The various grounds on which a decree of divorce can be obtained are as follows:
  • Adultery:
    While adultery is not a criminal offence in all nations, the matrimonial offence of adultery or the fault basis of adultery is recognised in the majority.

    Even in Shastric Hindu law, when divorce was not recognised, adultery was categorically forbidden. There is no clear definition of adultery as a marriage offence.

    During the subsistence of marriage, there must be voluntary or consenting sexual intercourse between a married person and another, whether married or unmarried, of the opposite sex who is not the other's spouse. Intercourse with the previous or latter wife of a polygamous marriage is hence not considered adultery. But, if the second marriage is null and void, sexual relations with the second wife will be considered adultery.

    Whilst initially a divorce could only be obtained if one spouse was living in adultery, the Marriage Laws Amendment Act of 1976 changed that, and the Hindu Marriage Act now considers even a single act of adultery sufficient for a divorce decree.

    Because adultery is a marital offence, it must be proven that the marriage existed at the time of the act of adultery. It therefore implies that there can be no adultery unless one actively consents to the act. If the woman can prove that the co-respondent raped her, the husband will be denied a divorce.

    In Swapna Ghose v. Sadanand Ghose, the wife found her husband and the adulteress to be lying in the same bed at night and further evidence of the neighbours that the husband was living with the adulteress as husband and wife is sufficient evidence of adultery. The fact of the matter is that direct proof of adultery is very rare.

    The offence of adultery may be proved by:
    • Circumstantial evidence
    • Contracting venereal disease
  • Cruelty:
    Cruelty is an ever-changing concept. Cruelty in the modern sense encompasses both mental and physical abuse. Cruel acts are behavioural manifestations triggered by various causes in the lives of spouses and their surroundings, and each case must be evaluated on the basis of its own set of facts. While physical cruelty is easier to identify, mental cruelty is more difficult to define.

    Possibly mental cruelty is a lack of such conjugal kindness, which inflicts agony of such magnitude and duration that it negatively affects the mental or physical health of the spouse on whom it is perpetrated.

    In Pravin Mehta v. Inderjeet Mehta, the court has defined mental cruelty as 'the state of mind.'

    Some Instances of Cruelty are as follows:

    Grounds for Cruelty:

    • false accusations of adultery or unchastity
    • demand of dowry
    • refusal to have marital intercourse/children
    • impotency
    • birth of child
    • drunkenness
    • threat to commit suicide
    • wife's writing false complaints to employer of the husband
    • incompatibility of temperament
    • irretrievable breakdown of marriage

    Not Considered Cruelty:

    • ordinary wear & tear of married life
    • wife's refusal to resign her job
    • desertion per se
    • outbursts of temper without rancor
  • Desertion:
    Desertion means the rejection by one party of all the obligations of marriage- the permanent forsaking or abandonment of one spouse by the other without any reasonable cause and without the consent of the other. It means a total repudiation of marital obligation.

    The following 5 conditions must be present to constitute desertion; they must co-exist to present a ground for divorce:
    • the factum of separation
    • animus deserdendi (intention to desert)
    • desertion without any reasonable cause
    • desertion without consent of other party
    • statutory period of two years must have run out before a petition is presented.
    In Bipinchandra v. Prabhavati, the Supreme Court held that where the respondent leaves the matrimonial home with an intention to desert, he will not be guilty of desertion if subsequently he shows an inclination to return & is prevented from doing so by the petitioner.
  • 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.

    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 for divorce on the ground of conversion.

    In Suresh Babu v. Leela, the husband converts himself into 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 incurably 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 v. Pankaj Pandit, 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 insanity of husband.
  • Venereal Illness:
    It is now a cause for divorce if it is infectious by nature, regardless of how long the respondent has suffered from it. The ground is established if it is demonstrated that the sickness is infectious and that it was not communicated to the petitioner (even if done innocently).

    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:
    Only in Hindu law is "renunciation of the world" a reason for divorce, as renunciation of the world is a common Hindu concept. According to modern codified Hindu law, a spouse may seek divorce if the other partner has renounced the world and entered a holy order. A person who accomplishes this is declared legally dead. Such renunciation must be explicit and absolute by joining a religious organisation.
  • 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.

    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.

Wife's Special Grounds for Divorce:
Besides the grounds enumerated above, a wife has been provided four additional grounds of divorce under Section 13(2) of the Hindu Marriage Act, 1955.

These are as follows:
  • Pre-Act Polygamous Marriage:
    This clause defines the grounds for divorce as "that the husband has another wife from before the start of the Act who is alive at the time of the petitioner's marriage."

    For example, the case of Venkatame v. Patil, where a man
    had two wives, one of whom sued for divorce, and while the petition was pending, he divorced the second wife. He then averred that since he was left only with one wife, and the petition should be dismissed. The Court rejected the plea. Such a ground is available if both the marriages are valid marriages & the other wife (2nd wife) should be present at the time of filing of the petition. However, today this ground is no more of practical importance.

    Rape, Sodomy or Bestiality:
    Under this clause, a divorce petition can be presented if the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality.
  • Non-Resumption of Cohabitation After a Decree/Order Of Maintenance:
    If a wife has obtained an order of maintenance in proceedings under Section 125, Cr.P.C., 1973 or a decree under Section 18, Hindu Adoption and Maintenance Act, 1956 and cohabitation has not been resumed between parties after one year or upwards, then this is a valid ground for suing for divorce.
  • Repudiation Of Marriage:
    This provision allows the wife to divorce if the marriage was solemnised before she reached the age of fifteen and she renounced the marriage before reaching the age of eighteen. Such rejection can be expressed verbally or in writing, or it can be inferred from the wife's actions (leaving husband and refusing to return). Furthermore, this right (added by the 1976 amendment) has only a retroactive impact, which means that it can be used regardless of whether the marriage was solemnised before or after such amendment.

Marriage is regarded as a holy tie among Hindus. There was no provision for divorce prior to the Hindu Marriage Act of 1955. Divorce was considered too radical in Indian society at the time. The women were the unnoticed victims of such a strict regime.

Yet, times have changed, situations have altered, and the social ladder has shifted. Now, the law allows you to get out of a bad marriage by filing for divorce in a court of law. Women who no longer have to face harassment or unfairness at the hands of their spouses are the true beneficiaries of such a law.

But, it is anticipated that the way the judiciary is dealing with the topic of irreversible marriage breakdown will utterly halt the marriage system.

Every theory has both negative and positive aspects. Their applicability varies according on the situation. As a result, it is critical that our country's parliamentarians approach the matter with caution after carefully examining its long-term repercussions.

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