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Divorce

The concept of Divorce is introduced by the Hindu Marriage Act of 1955. It means that the marriage has been dissolved by a competent court. It was earlier not that prevalent as under the ancient law, marriage was considered to be sacrament which was to be fulfilled for seven lives. But after the Act came into existence, divorce took place under the reasons of mutual consent, irretrievable breakdown of marriage etc.

According to Manu:
A wife cannot be released by her husband either by sale or by abandonment, implying that the marital tie cannot be severed in any way.

The grounds for divorce are given under Section 13 of the Hindu Marriage Act, 1955.

Section 13 (1):

Grounds available to both husband and wife

There are 9 grounds mentioned under this Section. They are:

  • Desertion:
    The term Desertion means desertion of one party by the other party in a marriage without a reasonable cause and consent of the party. It means a total repudiation of marital obligation.
     
  • Adultery:
    It is the consensual sexual intercourse between a married person and a person of opposite gender, who is the spouse during the marriage. Since adultery is an offense against marriage, it's necessary to determine that at the time of the act of adultery the wedding was subsisting.
     
  • Cruelty:
    It is the conduct by the spouses with respect to or in respect to marital status and obligations. The cruelty can be mental, physical, intentional and unintentional.
     
  • Insanity:
    If any of the spouses of the marriage is mentally unstable consistently of a sort that the other spouse canít sensibly live with the other. The onus of proving this is often on the petitioner.
     
  • Leprosy:
    It is a virulent and incurable type of skin disease which is incapable of treatment. It's both a ground for legal separation and divorce. Repulsive outward manifestations are responsible for creating psychology where man not only shuns the company of lepers but looks at them scornfully.
     
  • Venereal Disease:
    It is also a type of disease which is generally transmitted due to intercourse between the two spouses. It is an incurable form of disease. Example: HIV positive or AIDS
     
  • Conversion of Faith:
    The spouses can claim divorce if any one of the spouses has ceased to be a Hindu or converted to another faith or religion which is non-Hindu.
     
  • Renunciation of World:
    It means to withdraw from all the worldly pursuits as a way to live a non-secular life. The spouses can ask for divorce if the respondent have renounced the world or must have entered into other religious order.
     
  • Presumption of Death:
    A person is presumed to death if he/she has no longer been heard of as being alive for a period of at least seven years.

Section 13 (2): Special grounds available only to wife

  • Husband has more than one wife living:
    The wife can dissolve the marriage if at the time of marriage, the appellant had a wife living.
     
  • Rape, Sodomy and Bestiality:
    A man is guilty of rape if he induces an unwilling woman to participate in a sexual intercourse or when her consent is gained by placing her in the fear of death. Or if they are less than 12 years of age. Sodomy or Bestiality happens when one features a carnal relationship with another man, woman, or animal outside the order of nature.
     
  • Non-resumption of cohabitation after a decree of maintenance:
    It was given to the wife to grant the right to pursue a divorce if her husband had ignored her or not sustained her after a maintenance order was passed in her favour.
     
  • Repudiation of Marriage:
    If any of the respondent is below the age of 15 years of age when she was married or, when she rejected the marriage while turning 18 years of age.

Such repudiation could also be expressed (written or spoken words) or could also be implied from the conduct of the wife. Moreover, this right was added by the 1976 amendment and has only a retrospective effect i.e. it is often invoked regardless of the very fact that the wedding was solemnized before or after such amendment.

Section 13B: Divorce by Mutual Consent

Mutual Divorce is defined as a legal process of separation, when both the husband and wife want to separate with their own will after marriage, because they are incapable to live with each other. Both husband and wife can apply for the divorce by mutual consent. It provides for a complete 18 months before a verdict of divorce can be passed.

There are two ways on which Husband & Wife can reach to a consensus:

One is the alimony or maintenance issues. As per Law there's no minimum or maximum limit of maintenance. It could be any figure.

Another consideration is the Child Custody. This can even be figured out effectively between the parties, and is in mutual consent. Divorce is often shared or joint or exclusive depending upon the understanding of the spouses.

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