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Divorce Under Hindu Law

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 deserves.

Introduction
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, 1955.

Grounds for divorce under 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:
Adultery
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 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:
Cruelty
  • 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 of.

Desertion
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:
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.

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.

Conversion
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
Insanity as a ground of divorce has the subsequent 2 requirements:
Leprosy
  1. The respondent has been incurably of unsound mind
  2. 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.

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 & absolute.

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, 1955.

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. Patil 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.

Conclusion
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: Priyambika Singh - Presidency University, Bangalore, 2nd yr BALLB

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