Wednesday, 20 July 2022

Divorce Under Hindu Marriage Act

 Divorce means the dissolution of marriage by a competent court. This paper discusses divorce under Hindu Law. It analyses how the concept was non-existent under ancient law due to the sacramental nature of marriage but was introduced under the Hindu Marriage Act, 1955. It studies the different theories of divorce-fault, mutual consent and breakdown; and also describes the grounds for divorce under this Act, with focus on adultery and cruelty, and how these grounds were modified through amendments. It briefly dwells on the grounds that are only available to a wife.


The paper addresses the pros and cons of the addition of irretrievable breakdown as a ground for divorce amidst the growing debate about its merits. Earlier divorce was unknown to general Hindu law as marriage was regarded as an indissoluble union of the husband and wife. Manu declared that 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.


Although Hindu law does not contemplate divorce yet it has been held that where it is recognized as an established custom it would have the force of law. According to Kautaliya’s Arthshastra, marriage might be dissolved by mutual consent in the case of the unapproved form of marriage. But, Manu does not believe in the discontinuance of marriage. He declares let mutual fidelity continue till death; this, in brief, may be understood to be the highest dharma of the husband and wife. However, this changed when divorce was introduced in the Hindu Marriage Act, 1955.

In Ancient times, the concept of divorce was not known to anyone. They considered marriage as a sacred concept. According to Manu, the husband and wife cannot be separated from each other, their martial tie cannot be broken. Later the concept of divorce came in the picture and established as a custom to put the marriage to an end.


According to the Arthashastra, marriage can end if dissolved by mutual consent and should be unapproved marriage. But Manu does not believe in the concept of the dissolution. According to Manu the only way to end the marriage is the death of one of the spouses.


The provision related to the concept of divorce was introduced by the Hindu Marriage Act, 1955. The Hindu Marriage Act defines divorce as a dissolution of the marriage. For the interest of the society, the marriage or the marital relationship needs to be surrounded by every safeguard for the cause specified by law. Divorce is permitted only for a grave reason otherwise given other alternative.


Different Theories of Divorce

Mutual Consent

Under this theory, the marriage can be dissolved by mutual consent. If both the spouse mutually gives their consents to end the marriage, they can take the divorce. But many philosophers criticise this theory as this concept is immoral and leads to hasty divorce.


Irretrievable Breakdown

According to this theory, the dissolution of marriage happens due to failure of the matrimonial relationship. The divorce can be taken by the spouse as a last resort i.e. when both of them are not able to live together again.


Divorce under Hindu Marriage Act, 1955

In the Hindu Marriage Act, there are some provisions given regarding a valid divorce, i.e. when the spouse can get divorce or appeal for dissolution of marriage in the court of law. For the interest of the society, the marriage or the marital relationship needs to be surrounded by every safeguard for the cause specified by law. Divorce is permitted only for a grave reason otherwise given other alternative.


The Hindu Marriage Act is based on the fault theory in which any one of the aggrieved spouses (Section 13(1)) can approach the court of law and seek the remedy of divorce. Section 13(2) provides the grounds on which only the wife can approach the court of law and seek the remedy of divorce.


Grounds of Divorce as per The Hindu Marriage Act

Adultery

The concept of Adultery may not be considered as an offence in many countries. But as per the Hindu Marriage Act, in the matrimonial offence, the adultery is considered as one of the most important ground for seeking divorce. Adultery means the consensual and voluntary intercourse between a married person with another person, married or unmarried, of the opposite sex.


Even the intercourse between the husband and his second wife i.e. if their marriage is considered under bigamy, the person is liable for the Adultery.

The concept of Adultery was inserted under the Hindu Marriage Act by the Marriage Laws Amendment Act, 1976.


In Swapna Ghose v. Sadanand Ghose

In this case, the wife found her husband with other girl lying on the same bed and the neighbour also confirmed that the husband has committed an offence. Here the wife gets the divorce.


In Sachindranath Chatterjee vs Sm. Nilima Chatterjee

In this case, the petitioner and the defendant were married. After marriage, the husband leaves the wife in his home town so that she can complete her studies and go to another city for work. He visited twice or thrice a month to meet her. Later he found that his wife commits the adultery i.e. to involve in sexual intercourse with his own nephew, watchman etc. The plaintiff approaches the court to demand divorce on the ground of adultery and his petition was accepted and the marriage gets dissolved.


Essentials of Adultery

One of the spouses involved in the intercourse with another person, married or unmarried, of the opposite sex

Intercourse should be voluntary and consensual.

At the time of the act, the marriage was subsisting.

There must be sufficient circumstantial evidence to prove the liability of another spouse.


Cruelty

The concept of cruelty includes mental as well as physical cruelty. The physical cruelty means when one spouse beats or causes any bodily injury to the other spouse. But the concept of mental cruelty was added as the spouse can also be mentally tortured by the other spouse. Mental Cruelty is lack of kindness which adversely affects the health of the person. Well it is easy to determine the nature of physical cruelty but difficult to say about mental cruelty:

What is considered as Mental Cruelty against Husband by wife:

Humiliating the husband in front of his family and friends.

Undertaking the termination of pregnancy without husband consent.

Making false allegation against him.

Denial for Martial Physical Relationship without a valid reason.

Wife having affair.

Wife living an immoral life.

The constant demand for money.

Aggressive and uncontrollable behavior of Wife.

Ill-treatment to the husband parents and family.

In this case, the petitioner filed the divorce petition against his wife on the ground of mental cruelty. He proved that his wife that behavior with him and his parents was Aggressive and uncontrollable and many times she filed the false complaint against her husband. The court accepts the petition and grants the divorce on the ground of cruelty.


What considered as Mental Cruelty against wife by Husband

False accusation of adultery

The demand for dowry.

Impotency of Husband.

Force to abort the child.

The problem of drunkenness of husband.

Husband having affairs.

The husband lives an immoral life.

Aggressive and uncontrollable behavior of the husband.

Humiliating the wife in front of family and friends


Desertion

Desertion means the permanent abandonment of one spouse by the other spouse without any reasonable justification and without his consent. In General, the rejection of the obligations of marriage by one party.


Essentials:

Permanent abandonment of the other spouse

Rejection of the obligation of marriage.

Without any reasonable justification.

No consent of another spouse.


In Bipin Chander Jaisingh bhai Shah vs. Prabhawati

In this case, the respondent leaves the house with the intention to abandon his wife. Later the wife approaches the court, but the defendant proved that even though he left the house with the intention to desert, but he tried to come back and he was prevented from doing so by the petitioner. Here, the defendant cannot be held liable for desertion.


Conversion

If one of the spouses converts his religion to any other religion without the consent of the other spouse, then the other spouse can approach the court and seek the remedy of divorce.

In Suresh Babu vs Leela

In this case, the husband converts himself into Muslim and marries another woman. Here the wife Leela filed a case and demanded the divorce on the ground of conversion without her consent and cruelty.


Insanity

Insanity means when the person is of unsound mind. Insanity as a ground of divorce has the following two requirements:

The respondent has been incurably of unsound mind.

The respondent has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.


In Vinita Saxena vs Pankaj Pandit

In this case, the petitioner filed a case to get the divorce from the respondent on the ground that the respondent was suffering from Paranoid Schizophrenia which means mental disorder. She came to know these after her marriage. Here, the court grants the divorce on the ground of insanity of husband.


Leprosy

Leprosy is an infectious disease of the skin, mucous membranes, nervous system etc. this disease is transmitted from one person to another. Thus it is considered as the valid ground for divorce.


In Swarajya Lakshmi vs G. G. Padma Rao

In this case, the husband filed the case for granting the divorce on the ground of leprosy. He claimed that his wife is suffering from incurable leprosy with the expert’s reports. Here he succeeds in getting the divorce on the ground of leprosy.

Concept of Divorce with Mutual Consent

As per Section 13B, the person can file the petition for divorce by mutual consent of both the parties. If the parties want to dissolve their marriage as a mutual consent are required to wait for one year from date of marriage. They have to show that they are living separately for one or more year and not able to live with one another.


No petition for Divorce within one year of Marriage

As per Section 14, no Court will entertain the petition of divorce within the one year of the marriage. But can be entertained if the matter is related to bigamy, and where the consent of the spouse was taken through misrepresentation, fraud, undue influence etc.


Remarriage of Divorced Person

As per Section 15, after the marriage gets dissolved and no further petition was filed by any of the spouses against the order of the court and the time for appeal has expired. At that time it is assumed that both the spouse are satisfied. Then only the divorced person can marry again.


Conclusion

The Hindu Marriage Act, 1955 provides various provision regarding divorce. The Hindu Marriage Act defines Divorce as a Dissolution of Marriage. The main three theories related to divorce are Fault Theory, Mutual Consent Concept, and irretrievable theory. In India, the Fault theory works in the matter of the divorce. Under this theory, marriage can be ended when one of the spouses is responsible or liable for the offence under matrimonial offences.


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