Analysis of Grounds of Divorce under the Hindu Marriage Act, 1955

The Author, Vikas Chaudhary is a 2nd year student of B.A.LL.B(Hons.) in Dr. Ram Manohar Lohiya National Law University, Lucknow.

Introduction

In Ancient India, separation was obscure to general Hindu law as marriage was viewed as an insoluble association of the couple. Manu announced that a spouse can't be delivered by her significant other either by deal or by deserting, suggesting that the conjugal tie can't be cut off in any case. Albeit Hindu law doesn't mull over separation yet it has been held that where it is perceived as a built-up custom it would have the power of law.

As per Kautilya's Arthashatra, marriage may be broken up by common assent on account of the unapproved type of marriage. Be that as it may, Manu doesn't put stock in discontinuance of marriage. Yet Manu is not persuaded that marriage is discontinued. He declares that "reciprocal loyalty may continue until death; this, in short, may be understood as the highest dharma of the husband and wife. The obligation of a woman continues even after her death. She should never have a second husband.

Ordinally, in Modern India Hindu Marriage Act, 1955, divorce was mainly based on fault theory. The theory of fault includes 9 grounds for divorce according to section 13(1), for both the husband and a wife to seek a divorce, and under section 13(2) two grounds of fault arise for women to seek divorce by themselves. They're also available other divorce ground such as Break down ground under section 13(1), viz clauses (viii) and (ix) which were renumbered as clause (i) and (ii) of section 13(1A), Divorce by mutual consent under section 13-B, and customary divorce and divorce under a special law.

However, divorce is different from judicial separation, in divorce all mutual obligation and rights of husband and wife cease except concerning sec.25 (maintenance and alimony) and sec.26 (custody, child education). On other hands, judicial separation merely suspends marital rights and obligation during the period of subsistence of the decree..

Concept Of Divorce

As we know that in ancient India there no such type of concept exists. Manu announced that a spouse can't be delivered by her significant other either by deal or by deserting, suggesting that the conjugal tie can't be cut off in any case.but in modern India concept of divorce exist, Divorce put the marriage to end, It ceases all the mutual obligation of husband and wife, they are free to go there on way. This leads to end all bonds between them except concerning section 25 (maintenance and alimony) and section 26 (custody, maintenance, and education of children). There is available much ground on which husband and wife could take divorce.

Grounds of Divorce

Under the Hindu Marriage Act,1955 there exists following grounds of divorce such as:-

• Fault Ground (section 13(1))
• Breakdown Ground (section 13(1A)(i), 13(1A)(ii))
• Divorce By Mutual Consent (section 13-B)
• Customary Divorce (section 29(2))

Fault Ground

Under the Hindu Marriage Act 1955, section 13(1), lays down nine fault ground of divorce. Some of there are Adultery, Desertion, Cruelty, Insanity, Leporacy, Verenal Disease, while others such as Conversion, Or Renunciation of words are typically Hindu grounds.

1. Desertion

In explanation to sub-section (1) of Section 13, Hindu Marriage Act, 1955, Parliament has explained desertion: “The expression ‘desertion’ means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the willful neglect of the petitioner by the other party to marriage, and its grammatical variations and cognate expressions shall be construed accordingly”[1]. In other word Desertion means permanent leave or forsaking of one spouse by the other without any sensible reason without the consent of the other.

For the offence of desertion so far as deserting spouse is concerned, two essential conditions must be there

• the reality of the split and
• the desire to finally put an end to cohabitation (animus deserendi).

Similarly, two elements are essential so far as the deserted spouse is concerned:

• the lack of consent, and
• the lack of a valid cause of action for the partner leaving the matrimonial home to render the required purpose referred to above.

In Savitri Pandey v. Prem Chand Pandey[2] court held that “ there can be no desertion without previous cohabitation by the parties”

In Case Bipin Chander Jaisinghbhai Shah vs Prabhawati[3] court held that “The offense of desertion is a path of behavior which exists independently of its duration, however as a ground for divorce it needs to exist for a duration of as a minimum 3 years at once previous the presentation of the petition or, in which the offense seems as a cross-charge, of the answer. Desertion as a ground of divorce differs from the statutory grounds of adultery and cruelty in that the offense founding the purpose of motion of desertion isn't always complete, however is inchoate, till the healthy is constituted. Desertion is persevering with the offense”

2. Cruelty

Before 1976, Cruelty was not ground for divorce. It was ground for judicial separation. By the Amendament Act, Cruelty is made a ground for divorce. Oxford Dictionary defines The word “cruelty” has not been outlined and it's been utilized with respect to human conduct or human behavior. it's the conduct with respect to or in respect of marital status duties and obligations. it's a course of conduct and one that is adversely moving the opposite. The cruelty is also mental or physical, intentional, or unintentional[4].

In Savitri Pandey vs Prem Chandra Pandey[5] court held that Cruelty has not been outlined underneath the Act however in respect to marital matters it's contemplated as the conduct of such sort that endangers the living of the petitioner with the respondent. Cruelty is an act that is dangerous to life, limb, or health. Cruelty for the aim of the Act suggests that wherever one spouse equivalent has therefore treated the opposite and manifested such feelings towards her or him on have inflicted bodily injury, or to own caused cheap apprehension of bodily injury, suffering, or to own bruised health. Cruelty could also be physical or mental. Mental cruelty is that the conduct of other spouse equivalents that causes mental suffering or worry about the marital life of the opposite. Cruelty "therefore postulates the petitioner's approach with such cruelty as to trigger an accessible apprehension that it may be detrimental or harmful to him.

In Smt. Nirmala Manohar Jagesha vs Manohar Shivram Jagesha[6] Court held that “case for divorce, false, baseless, scandalous, malicious and unproven allegations made in the written statement may amount to cruelty to the other party and that party would be entitled to get a decree of divorce on that ground”.

In Gurbux Singh vs Harminder Kaur[7] court held that Simple minor aggravations, squabbles, normal wear, and tear of married life which occurs in everyday life in all families would not be satisfactory for an award of separation on the ground of cruelty.

3. Adultery

Reydon defines Adultery as “consensual sexual intercourse between a married person and a person of the opposite sex, not the other spouse, during the subsistence of marriage”.

In the case of a divorce petition, it is not appropriate, or sufficient, to show that the correspondent had information or reason to believe that the respondent was the petitioner's wife or husband. If the respondent had a partnership with the complete understand exactly-how co-respondent that he or she wasn't a wife or husband then that was appropriate.

In Subbaramma v. Saraswati Court[8] held that one single act of adultery is enough for divorce or judicial separation. In the same case court also held that “the unwritten taboos and rules of social morality in this country and particularly in village areas must necessarily be taken into account. If an unknown person is found alone with a young woman after midnight, in her apartment, in an actual physical juxtaposition, unless an excuse is given which is consistent with an innocent interpretation, the only conclusion that the Court of Justice can draw must be that the two have committed an act of adultery together”.

So we can conclude that in contest of Indian law actual penetration is not required for act of adultery.

4. Insanity

Under The Marriage Laws (Amendment) Act, 1976, Section 13(iii) petitioner may get a decree of divorce or judicial separation if the respondent has been experiencing consistently or irregularly mental turmoil of such a sort and so much that the petitioner can't sensibly be required to live with the respondent.

In Ram Narayan v. Rameshwari[9], Supreme Court held that in schizophrenic mental disorder, the petitioner should prove not merely the said mental disorder, but also establish that account the petitioner could not reasonably be expected to live with the respondent.

In Smt. Alka Sharma v. Abhinesh Chandra Sharma[10], t was discovered that the spouse was so cold and sub-zero and apprehensive on the first evening of marriage as not to have the option to coordinate in a sexual act. She was discovered incapable to deal with homegrown machines. She fizzled to clarify the direction of peeing within the sight of all relatives. The court held that she was experiencing schizophrenia, and the spouse was held to be entitled to the nullity of marriage.

5. Leprosy

Section (1)(iv) in the Hindu Marriage Act, 1955, Leprosy is both ground for divorce and judicial separation.

But for divorce under Section (1)(iv) in Hindu Marriage Act, 1955, Leprosy must be in the form of

1. Virulent and
2. Incurable

a mild type of leprosy which is capable of treatment is neither ground for divorce nor for judicial separation[11].

6. Venereal Disease

Section 13(V) of the Hindu Marriage Act, 1955 provides ground for divorce against communicable Venereal Disease.

In Mr. X v. Hospital Z[12] Supreme court held that on the ground of venereal disease Either husband or wife can get a divorce, and a person who has suffered from the disease can not be said to have any right to marry even before marriage, as long as he is not completely cured of the disease.

 In Sm. Mita Gupta vs Prabir Kumar Gupta[13] court held that Venereal disease is a cause of divorce, but the partner may be denied relief even though the other partner suffers as much if the former is responsible for the contagion

7. Conversion

Under the Hindu Marriage Act, Section (13)(1) clause (ii) divorce maybe obtain if the respondent converted from Hindu to other Religion and ceased to be a Hindu. Under the clause two conditions must be satisfied:

1. Respondent has ceased to be a Hindu, and
2. He has converted to another religion

Ceased to be Hindu means a person got converted to a non-Hindu faith such as Parsis, Islam, Christianity, or Zoroastrianism. A person not ceased to be Hindu if he converted into Jain, Buddhism, Sikhism because Sikh, Jain, Buddhist by religion is a Hindu.

In Teesta Chattoraj vs Union Of India [14] court held that Conversion to another religion is a ground for divorce, but a spouse may be denied divorce even if the other spouse has embraced some other religion if the former goaded the latter to such conversion.

8. Renunciation of World

Renounce the world" could imply "to withdraw from worldly pursuits as a way to lead a non-secular life." Reference is made to section 13(1)(vi) of the Hindu Marriage Act. The word "renouncing" means "making a formal resignation of a few rights or, in particular, believing in one's position as successor or trustee.".

To obtain a divorce under this clause two conditions must be satisfied:

1. The respondent must have renounced the world, and
2. He must have entered some other religious order

In Sital Das v. Sant Ram[15] it was held that someone is stated to have entered in a religious order whilst he undergoes a few ceremonies and rites prescribed via the faith. Now there are some other matters to observe here. For example, if one man or woman has entered into a religious order but comes home day by day and cohabits then it can not be taken as a floor for divorce because he has no longer renounced the world.

9. Presumption of Death

Under the Indian Evidence Act, 1872, 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. On this ground, the petitioner may obtain a divorce. But in ancient Indian Hindu Law, a presumption of death isn’t like presumption under modern law, there should lapse of twelve years to be presumed a person dies. This presumption underneath the availability of regulation isn't inflexible and death might also even be presumed before the lapse of 7 years from proof of special instances.

Irretrievable Breakdown Ground

Under Hindu Marriage Act 1955, section 13(1A) Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground

1. that there has been no resumption of cohabitation as between the parties to the marriage for a period of 8 [one year] or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or
2. that there has been no restitution of conjugal rights as between the parties to the marriage for a period of 8 [one year] or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.

In K. Srinivas Rao v. D.A. Deepa[16] court held that the irretrievable breakdown of a marriage is not a basis for divorce under the Hindu Marriage Act of 1955. However, where marriage is beyond repair due to the animosity induced by the actions of the husband or the wife or both, the courts have often treated the irretrievable dissolution of marriage as a rather severe situation, inter alia, causing marital separation. A marriage that is dissolved for all purposes can not be restored by the decision of the court if the parties are not able to do so.

In Vishnu Dutt Sharma vs Manju Sharma[17] court held that on bare reading section13, we have not found that legislature provides divorce on the ground of irretrievable breakdown of a marriage. However, in some cases, this court dissolves the marriage on the ground of irretrievable breakdown. In our opinion, this case should not be treated as a precedent.   

Divorce by Mutual Consent

Under Hindu Marriage act, sub-section (1) of section 13B of the Act required that the petition for divorce via mutual consent need to be provided before the court jointly among the events and that there had been 3 other requirements of sub-section (1) specifically

1. they have been residing separately for a period of 365 days,
2. they have not been capable of live together and
3. they've together agreed that the marriage has to be dissolved[18]

Under Hindu Marriage Act, Section 13-B, it might be clear that both the parties are able to document a joint petition for divorce by means of mutual consent, provided they were living separately for a period of 365 days. moreover, it's far provided that at the motion made by means of each the events not earlier than 6 months after the date of presentation of the stated petition and no longer later than 18 months of the stated date, the court on being satisfied after hearing the events and after making such an inquiry as it thinks suit, pass a decree of divorce dissolving the wedding by way of mutual consent.

In Smt. Jayashree Ramesh Londhe vs Ramesh Bhikaji Londhe[19] court held that either party can withdraw the petition after thinking over the matter about divorce through mutual consent and that in this way a party can withdraw the earlier consent though not obtained by using fraud, undue influence, and coercion.

In Manish Goel v. Rohini Goel[20] court held that this court is competent to waive of the statutory period of six months in the exercise of its jurisdiction under Article 142 of the Constitution. the said statutory duration of six months for filing the second one petition under section 13-B(2) of the Act has been prescribed for offering an opportunity to events to reconcile and withdraw the petition for dissolution of marriage.

Customary Divorce

It is a fact that divorce was not known to the general Hindu rule, but however, in some cultures, divorce was accepted by custom and the courts followed the custom where it was not contrary to public policy. The scheme and the purpose of this Act are not to circumvent any of those customs which have been recognised as having divorce and effect by the saving found in this chapter. Under any other situation, it is not mandatory for the spouses to come before the Court to seek divorce on the grounds recognised by custom.[21]

Wife Special Ground of Divorce

Husband having more than one wife living

Under clause (i) of sub-clause (2) of section 13 of the Hindu Marriage Act, The wife was entitled to file a petition dissolving his marriage on the ground that at the time of the ceremony of a marriage between the appellency and the appellant the first wife of the appellant who was married to the appellant before the commencement of the Act was alive.

In Leela v. Anant Singh[22] court held that The wife of polygamous marriage can not be deprived of her right of divorce on the ground that, prior to the commencement of the act, she entered into a compromise with her husband to continue living with her; nor can the husband plea that her conduct or disability is a bar to her claim of divorce.

Rape, Sodomy or Bestiality

Under clause (ii) of sub-clause (2) of section 13 of the Hindu Marriage Act, the wife is entitled to divorce on the ground of rape, sodomy, or bestiality against her husband.

A man is guilty of rape if he induces an unwilling woman to participate in sexual intercourse, i.e. unwilling or unfiltered, or when his consent is gained by placing her in the fear of death or her consent, or by falsely believing that she is his wives when they are not, or if they are less than twelve years old. However, one can not be accused of raping his own wife unless she is less than 15 years old.

Sodomy or bestiality happens when one has a carnal relationship with another man, woman, or animal outside the order of nature. The matrimonial crime of sodomy under the scope of the clause would be if the man were to perform sodomy on his wife without their consent.

Non-resumption of cohabitation after a decree of maintenance

Under clause (ii) of sub-clause (2) of section 13 of the Hindu Marriage Act provided the woman with an alternative basis for a divorce. The purpose of incorporating the aforementioned provision was to grant the wife 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 Mrriage

Wife/applicant lodged an application for divorce from the respondent-husband on the basis that she was under 15 years of age when she was married, but that she had rejected her marriage before she was 18 years of age, and that she was thus given a divorce order under Section 13(2)(iv) of the Hindu Marriage Act, 1955.

Difference between Divorce and Judicial Separation

Conclusion

Under Section 13, Hindu Marriage Act,1955, There are available much grounds of divorce on which both husband and wife can file a divorce petition. Under sub-clause (1) of section 13 of the Act, there are available 9 fault ground on which divorce can be taken. These grounds are such as desertion, adultery, cruelty, venereal disease, leprosy, insanity, and conversion. Under sub-clause (2) of section 13 of the Act, there are available four ground on which the wife alone can file a divorce petition. These grounds are such as husband having more than one wife living, rape or sodomy or bestiality, non-resumption of cohabitation after a decree of maintenance, repudiation of marriage. Under sub-clause (1A) of section 13 of the Act, Irretrievable Breakdown Ground also available for both husband and wife. Under sub-clause (2) of section 29 of the Act, the husband and wife can take divorce based on a custom prevailing in society. Divorce may be initiated at the end of 1 year of marriage. Two judgment procedures are required for divorce. One is when the petition is filed and the second is after a post of 6 months.

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