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,
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:
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:
- 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
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.
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.
“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.
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. 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.
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