Divorce means that the dissolution of wedding by a competent court. This paper
discusses divorce below Hindu Law. It analyses however the conception was
non-existent below ancient law thanks to the religious ritual nature of wedding
however was introduced below the Hindu wedding Act, 1955.
It studies the various
theories of divorce- fault, mutual consent, breakdown; and conjointly describes
the grounds for divorce below this Act, with concentrate on extramarital sex and
cruelty, and the way these grounds were changed through amendments. It in brief
dwells on the grounds that square measure solely accessible to a adult female.
The paper addresses the professionals and cons of the addition of unretrievable
breakdown as a ground for divorce amidst the growing discussion regarding its
Earlier divorce was unknown to general Hindu law as wedding was considered AN
indissoluble union of the husband and adult female. Manu declared that a adult
female can't be free by her husband either by sale or by abandonment, implying
that the married tie can't be cut in any method. though Hindu law doesn't ponder
divorce nonetheless it's been command that wherever it's recognized as a
longtime custom it might have the force of law.
According to Kautilya’s Arthashatra
, wedding may well be dissolved by mutual
consent within the case of the unapproved type of wedding. But, Manu doesn't
believe the termination of wedding. He declares” let mutual fidelity continue
until death; this, in brief, is also understood to be the best Dharma of the
husband and wife”.
However, this modified once divorce was introduced within the Hindu wedding Act,
Theories Of Divorce
There are essentially 3 theories for divorce-fault theory, mutual consent theory
& unretrievable breakdown of wedding theory.
Under the Fault theory or the offences theory or the guilt theory, wedding will
be dissolved only either party to the wedding has committed a marital offence.
it's necessary to own a guilty ANd an innocent party, and also the solely
innocent party will seek the remedy of divorce. However, the foremost putting
feature and also the disadvantage is that if each parties are guilty, there's no
Another theory of divorce is that of mutual consent. The underlying principle is
that since 2 persons will marry by their discretion, they ought to even be
allowed to maneuver out of the connection of their own discretion. However,
critics of this theory say that this approach can promote immorality because it
can cause hasty divorces and parties would dissolve their wedding though there
have been slight incompatibility of temperament.
The third theory relates to the unretrievable breakdown of the wedding. The
breakdown of wedding is outlined as “such failure within the marital
relationships or such circumstances adverse thereto relationship that no
affordable chance remains for the spouses once more cohabitation as husband &
adult female.” Such wedding ought to be dissolved with most fairness & minimum
bitterness, distress & humiliation.
Some of the grounds accessible below the Hindu wedding Act will be
aforementioned to be below the speculation of frustration by reason of nominal
circumstances. These embody civil death, resignation of the globe etc.
Grounds For Divorce below Hindu wedding Act
It is conceded altogether jurisdictions that public policy, smart morals & the
interests of society need that conjugal relationship ought to be enclosed with
each safeguard and its severance be allowed solely within the manner and for the
cause nominal by law. Divorce isn't favored or inspired and is allowable just
for grave reasons.
In fashionable Hindu law, all the 3 theories of divorce square measure
recognized & divorce will be obtained on the premise of anyone of them. The
Hindu wedding Act, 1955 originally, primarily based divorce on the fault theory,
and enshrined 9 fault grounds in Section 13(1) on that either the husband or
adult female may sue for divorce, and 2 fault grounds in Section 13(2) on that
adult female alone may obtain the divorce.
In 1964, by AN modification, bound clauses of Section 13(1) were amended within
the type of Section 13(1A), therefore recognizing 2 grounds of the breakdown of
the wedding. The 1976 modification Act inserted 2 extra fault grounds of divorce
for adult female & a replacement section 13B for divorce by mutual consent.
The various grounds on that a decree of divorce will be obtained square
measure as follows:
While extramarital sex might not are recognized as a criminal offence altogether
countries, the marital offence of extramarital sex or the fault ground of
extramarital sex is recognized in most. Even below the Shastric Hindu law,
wherever divorce had not been recognized, extramarital sex was condemned within
the most unequivocal terms. there's no clear definition of the marital offence
of extramarital sex.
In extramarital sex there should be voluntary or accordant gender between a
relative and another, whether or not married or divorced, of the alternative
sex, not being the other’s domestic partner, throughout the subsistence of
wedding. Thus, intercourse with the previous or latter adult female of a
polygamous wedding isn't extramarital sex. however if the second wedding is
void, then gender with the second adult female can quantity to extramarital sex.
Though at first a divorce can be granted given that such domestic partner was
living in extramarital sex, by the wedding Laws modification Act, 1976, this
position below the Hindu wedding Act is that it considers even the one act of
extramarital sex enough for the decree of divorce.
Since extramarital sex is an offense against wedding, it's necessary to
determine that at the time of the act of extramarital sex the wedding was
subsisting. Also, it follows that unless one volitionally consents to the act,
there will be no extramarital sex. If the adult female will establish that the
co-respondent raped her, then the husband wouldn't be entitled to a divorce.
In Swapna Ghose v. Sadanand Ghose
the adult female found her husband and also
the fornicator to be lying within the same bed at nighttime and more proof of
the neighbors that the husband was living with the fornicator as husband and
adult female is enough proof of extramarital sex. the very fact of the matter is
that direct proof of extramarital sex is extremely rare.
The offence of extramarital sex is also evidenced by:
- Circumstantial proof
- Contracting VD
The conception of cruelty could be a ever-changing conception. the trendy
conception of cruelty includes each mental and physical cruelty. Acts of cruelty
square measure behavioural manifestations excited by various factors within the
lifetime of spouses, and their surroundings and therefore; every case should be
selected the premise of its own set of facts. whereas physical cruelty is
straightforward to see, it's troublesome to mention what mental cruelty consists
Perhaps, mental cruelty is lack of such connubial kindness, that inflicts
the pain of such a degree and period that it adversely affects the health,
mental or bodily, of the domestic partner on whom it's inflicted. In Pravin
Mehta v. Inderjeet Mehta
, the court has outlined mental cruelty as the state of
Some Instances of Cruelty square measure as follows:
- false accusations of extramarital sex or unchastity
- demand of gift
- refusal to own married intercourse/children
- birth of kid
- threat to kill
- wife’s writing false complaints to leader of the husband
- incompatibility of temperament
- irretrievable breakdown of wedding
The following don't come under cruelty:
- ordinary wear & tear of married life
- wife’s refusal to resign her job
- desertion as such
- outbursts of temper while not gall.
Desertion suggests that the rejection by one party of all the obligations of
marriage- the permanent forsaking or abandonment of 1 domestic partner by the
opposite with none affordable cause and while not the consent of the opposite.
It suggests that a complete repudiation of married obligation.
The following five conditions should be gift to represent desertion; they have
to co-exist to gift a ground for divorce:
- the factum of separation
- animus deserdendi (intention to desert)
- desertion with none affordable cause
- desertion while not consent of different party
- statutory amount of 2 years should have run out before a petition is
In Bipinchandra v. Prabhavati
the Supreme Court command that wherever the
respondent leaves the marital home with AN intention to abandon, he won't be
guilty of desertion if afterward he shows AN inclination to come & is prevented
from doing thus by the petitioner.
When the opposite party has ceased to be Hindu by conversion to the other faith
for e.g. Islam, Christianity, Judaism, faith, a divorce will be granted.
Insanity as a ground of divorce has the subsequent 2 requirements:
- The respondent has been incurably of unsound mind
- The respondent has been suffering ceaselessly or intermittently from
disorder of such a sort and to such an extent that the petitioner cannot
fairly be expected to measure with the respondent.
Contagiousness of infectious disease and repulsive outward manifestations square
measure liable for making science wherever man not solely shuns the corporate of
lepers however appearance at them contemptuously. Thus, it's provided as a
ground for divorce. The concern of proving this is often on the petitioner.
At present, it's a ground for divorce if it's communicable naturally no matter
the amount that the respondent has suffered from it. the bottom typeed|is
created} out if it's shown that the unwellness is in communicable form & it's
not necessary that it ought to are communicated to the petitioner (even if done
Renunciation“Renunciation of the world”
could be a ground for divorce solely beneath Hindu
law, because the renunciation of the planet could be a typical Hindu notion.
trendy statute Hindu law lays down that a significant other might obtain divorce
if the opposite party has renounced the planet and has entered a status. someone
United Nations agency will this is often thought-about as civilly dead. Such
renunciation by getting into a non secular order should be unequivocal &
Presumption Of Death
Under the Act, someone is plausible to be dead, if he/she has not been detected
of as existence for a amount of a minimum of seven years. The burden of proof
that the whereabouts of the respondent isn't identified for the requisite amount
is on the petitioner beneath all the marital laws. this is often a presumption
of universal acceptance because it aids proof in cases wherever it might be very
troublesome if not not possible to prove that fact.
A decree of divorce granted
beneath this clause is valid & effective though it afterward transpires that the
respondent was, in fact, alive at the time once the decree was passed. Wife’s
Special Grounds For Divorce.
Besides the grounds enumerated higher than, a married woman has been provided
four further grounds of divorce beneath Section 13(2) of the Hindu wedding Act,
These area unit as follows:Pre-Act Polygamous wedding
This clause states the bottom for divorce as:
That the husband has another
married woman from before the commencement of the Act, alive at the time of the
ritual of the wedding of the petitioner. as an example, the case of Venkatame v.
wherever a person had 2 wives, one among whom sued for divorce, and
whereas the petition was unfinished, he unmarried the second married woman. He
then averred that since he was left solely with one married woman, and therefore
the petition ought to be discharged. The Court rejected the plea.
Such a ground is obtainable if each the marriages area unit valid marriages &
the opposite married woman (2nd wife) ought to be gift at the time of filing of
the petition. However, nowadays this ground isn't any additional of sensible
Rape, anal intercourse Or sex
Under this clause, a divorce petition is conferred if the husband has, since the
ritual of the wedding, been guilty of rape, anal intercourse or sex.
Non-Resumption Of living together when A Decree/Order Of Maintenance
If a married woman has obtained Associate in Nursing order of maintenance in
proceedings beneath Section a hundred twenty five, Cr.P.C., 1973 or a decree
beneath Section eighteen, Hindu Adoption & Maintenance Act, 1956 & living
together has not been resumed between parties when one year or upwards, then
this is often a legitimate ground for suing for divorce.
Repudiation Of wedding
This provision provides a ground for divorce to the married woman once the
wedding was solemnized before she earned the age of fifteen years, and she or he
has unacknowledged the wedding, however before the age of eighteen. Such
repudiation could also be categorical (written or spoken words) or could also be
inexplicit from the conduct of the married woman (left husband & refused to come
back back). Moreover, this right (added by the 1976 amendment) has solely a
retrospective impact i.e. it is invoked no matter the actual fact that the
wedding was solemnized before or when such change.
Irretrievable Breakdown Of wedding
Irrespective of the 3 remedies obtainable to parties that is: restitution of
legal right, fiat, and divorce, the judiciary in India is strict irrecoverable
breakdown of wedding as a special ground for divorce, as generally courts face
some difficulties in granting the decree of divorce because of a number of the
technical loopholes within the existing theories of divorce.
Both the Supreme Court and Law Committee take into account the implementation of
such a theory as a boon to parties United Nations agency for one or the opposite
reasons area unit unable to hunt the decree of divorce. so within the opinion of
the Supreme Court and Law Commission of India, it's terribly essential to form
it a special and separate ground mission that introduction of irrecoverable
breakdown of wedding, as a special ground can do any public sensible.
Under the Hindu wedding Act, 1955 primarily there area unit 3 theories beneath
that divorce is granted:
- Guilt theory or Fault theory
- Consent theory,
- Supervening circumstances theory.
The irrecoverable breakdown theory of divorce is that the fourth and therefore
the most disputed theory in legal jurisprudence, supported the principle that
wedding could be a union of 2 persons supported love fondness and respect for
every different. If Associate in Nursingy of those is hampered because of any
reason and if the marital relation between the spouses reaches to such an extent
from wherever it becomes fully irreparable, that's some extent wherever neither
of the spouses will live peacefully with one another and acquire the advantages
of a marital relations, than it's higher to dissolve the wedding as currently
there's no purpose of stretching such a dead relationship, that exist solely in
name only and not in reality.
The breakdown of the connection is plausible de
facto . the actual fact that parties to wedding reside one by one for fairly
longer amount of your time (say 2 or 3 years), with any cheap cause (like
cruelty, adultery, desertion) or maybe with none cheap cause (which shows the
temperament of the parties or maybe of 1 of the party to measure together) and
every one their makes an attempt to reunite failing, it'll be plausible by law
that relationship is dead currently.
Recently the Supreme Court Naveen Kohli v. Neelu Kohli
has suggested Associate
in Nursing change to the Hindu wedding Act, whereby either significant other
will cite irrecoverable breakdown of wedding as a reason to hunt the divorce.
Expressing the priority that divorce couldn't be granted in an exceedingly
variety of cases wherever marriages were just about dead because of the absence
of the supply of irrecoverable breakdown, the court powerfully advocated
incorporating this idea within the law seeable of the amendment of
circumstances. The Court discovered that public interest demands that the
married standing ought to, as way as doable, as long as doable and whenever
doable, be maintained.
However, wherever a wedding has been destroyed on the far
side any hope of being repaired, the general public interest needs the
popularity of the actual fact. The judgment notes that there's no acceptable
manner in which a significant other is compelled to resume life with the consort
which things inflicting misery mustn't be allowed to continue indefinitely
because the law contains a responsibility to adequately reply to the
requirements of the society.
The profound reasoning is that in things once
there's fully no likelihood to measure once more together or once it's on the
far side repair, in such a case it might be futile to stay the marital status
tie alive. Here the bottom of irrecoverable breakdown is admittedly required.
however it mustn't be oblivious that the bottom, once introduced, must give
safeguards to make sure that no party is exploited.
The only benefit of the speculation as has been propounded by the jurists is
that a wedding, that in apply is taken into account to be a religious ceremony
establishment, ought to be supported grounds on that a sound wedding is built-
that's tolerance, adjustment and respecting one another. If any of the party to
the wedding isn't able to swallow the opposite party the connection won't be a
Stretching such a relationship can do no sensible, rather
can develop hate and frustration among the parties for every different. so to
shield the holiness of wedding, to scale back the amount of sad marriages and to
stop from obtaining wasted the valuable years of the lifetime of the spouses,
it's necessary to dissolve such a wedding.
The Law Commission Of India in Chapter four of the 71st report has dealt very
well the demerits of the irrecoverable breakdown theory. the 2 main oppositions
mentioned within the report area unit as follows:
- It can create divorce simple. it'll enable the spouses or maybe to
anyone of the spouses to dissolve the wedding out of their own pleasure.
- It can enable the guilty significant other to require advantage of his
own fault by obtaining separated and dissolving the wedding.
Hindus take into account wedding to be a sacred bond. before the Hindu wedding
Act of 1955, there was no provision for divorce. The thought of obtaining
unmarried was too radical for the Indian society then. The wives were the
silent victims of such a rigid system.
However, the time has changed; things
have changed; the social ladder has turned. currently the law provides for some
way to induce out of Associate in Nursing unpleasant wedding by seeking divorce
in an exceedingly court of law. the particular benefactors of such a provision
area unit ladies United Nations agency not need to taciturnly endure the
harassment or injustice caused to them by their husbands.
Written By: Sanghapriya Samajder