By Samarth Jain-
Divorce is one of the most devastating life experiences for a married pair. Divorce is associated with religion in India since it is a personal affair. For Jains, Sikhs, Hindus, and Buddhists, the Hindu Marriage Act of 1955 governs divorce. The Dissolution of Muslim Marriage Act 1939 governs Muslim divorce laws, the Parsi Marriage and Divorce Act 1936 governs Parsi divorce laws, and Christians are governed by the Indian Divorce Act 1869. The Special Marriage Act 1954 governs all inter-community marriages.
Divorce was traditionally predicated on the fault basis theory under the Modern India Hindu Marriage Act, 1955. According to section 13(1), there are 9 grounds for divorce for both the husband and the wife, and under section 13(2), there are two grounds for divorce for women seeking divorce on their own. Other divorce grounds include break down under section 13(1), viz sections (viii) and (ix), which were renamed clauses I and II of section 13(1A) being mutual consent divorce under section 13-B being customary divorce and divorce under special legislation.
Divorce and judicial separation do differ from each other. Where divorce leads to termination of all mutual obligations and rights of the husband and wife except for section 25(maintenance and alimony) and Section 26 (custody, child education). Judicial separation, on the other hand, simply suspends marital rights and obligations for the duration of the judgment.
· DIFFERENT THEORIES OF DIVORCE
- FAULT THEORY
According to this theory, a marriage can be annulled if one of the spouses is guilty or culpable for matrimonial offences committed against the other. This remedy is only available to the innocent spouse. The sole disadvantage of this approach is that if both spouses are at fault, no one can seek divorce.
- IRRETRIVABLE BREAKDOWN
The failure of the matrimonial relationship, according to this theory, causes the breakdown of a marriage. When both of them are unable to live together again, the spouse can file for divorce as a final choice.
- MUTUAL CONSENT
According to this theory, a marriage can be ended by mutual consent. If both spouses agree to end the marriage, they can file for divorce. However, many philosophers argue that this idea is immoral and leads to a quick divorce.
· GROUNDS OF DIVORCE UNDER HINDU MARRIAGE ACT 1955 CONCERNING DIFFERENT THEORIES
Under the Hindu Marriage Act,1955 there exists following grounds of divorce such as:-
· Fault Ground (section 13(1))
· Irretrievable Breakdown Ground (section 13(1A)(i), 13(1A)(ii))
· Divorce By Mutual Consent (section 13-B)
· Customary Divorce (section 29(2))
- BASED ON THE THEORY OF FAULT GROUND
Section 13(1) of the Hindu Marriage Act of 1955 establishes nine grounds for divorce.
When one of the parties abandons or deserts the other without offering a valid reason then in that case it is a good ground to get a divorce from the other. The one who deserts the other spouse must have both the intention and the proof to do so. The separation must have lasted at least two years under Hindu law.
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 the consent or against the wish of such party and includes the willful neglect of the petitioner by the other party to a marriage, and its grammatical variations and cognate expressions shall be construed accordingly”.In other words, desertion refers to one spouse's permanent absence or forsaking of the other for no apparent reason and without the consent of the other.
There must be two basic requirements for the offence of desertion in the case of a deserting spouse i.e., the reality of the split and the desire to quit cohabitation once and for all (animus deserendi).
Similarly, when it comes to the deserted spouse, two factors are critical i.e., The lack of consent and a valid cause of action for the spouse leaving the marital home to fulfil the above-mentioned objective.
In Savitri Pandey v. Prem Chand Pandey court held that “there can be no desertion without previous cohabitation by the parties”
In Case Bipin ChanderJaisinghbhai Shah vs Prabhawati court held that“The offence of desertion is a path of behaviour that exists independently of its duration,” However, as a ground for divorce, it must have existed for at least 3 years before the filing of the petition or, in cases where the offence appears as a cross-charge, the filing of the answer. Desertion as a basis for divorce differs from the statutory reasons of adultery and cruelty in that the offence constituting the basis for the motion of desertion isn't necessarily full, but is inchoate until the healthy is formed. Desertion is the act of continuing to engage in offensive behaviour.”
Cruelty can be physical or mental, and if one of the parties believes that the other party's behaviour towards him or her is likely to inflict mental or physical harm, it is sufficient grounds for divorce.
Cruelty was not a valid reason for divorce prior to 1976. It served as justification for judicial separation. Cruelty is now a cause for divorce under the Amendment Act. According to the Oxford Dictionary, The term "cruelty" hasn't been defined, yet it's been used to describe human behaviour or behaviour. It's how you act around or in relation to marriage status responsibilities and obligations. It's a pattern of behaviour that is moving in the other direction. Cruelty can be mental or physical, and it can be intentional or unintentional.
In Savitri Pandey vs Prem Chandra Pandey, the court held that cruelty has not been defined under the Act, but it is considered in marital problems as behaviour that endangers the petitioner's life with the respondent. Cruelty is defined as an act that endangers a person's life, limb, or health. Cruelty, for the Act, is that one spouse has handled the other and expressed such feelings toward her or him as to have inflicted bodily injury, or to have created cheap apprehension of bodily injury, suffering, or to have wounded health. Cruelty can be both physical and mental. Other spouse analogues' behaviour that creates mental agony or worries about the opposite spouse's marital situation is referred to as mental cruelty. Cruelty "therefore presupposes the petitioner's approach with such cruelty as to elicit an accessible fear that it may be damaging or destructive to him."
In Smt. Nirmala Manohar Jagesha vs. Manohar Shivram Jagesha, the court held that “in a divorce case, 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 a divorce decree on that ground.”
In Gurbux Singh vs Harminder Kaur court held that simple little aggravations, squabbles, and natural wear and tear of marital life that occurs in everyday life in all families would not be sufficient for a judgment of separation on the grounds of cruelty.
Adultery was previously a criminal offence in India; however, it was recently decriminalized following a Supreme Court decision. However, it can still be utilized to get a divorce from a spouse who has been having an affair. In most situations it has been observed according to the cases, it is the husbands that commit it rather than the wives.
Adultery, according to Reydon, is "consensual sexual intercourse between a married person and a member of the opposite sex, not the other spouse, while the marriage is in existence."
It is neither appropriate nor sufficient to prove that the correspondent had information or reason to think that the respondent was the petitioner's wife or husband in the context of a divorce petition. It was okay if the responder had a partnership with the completely comprehend exactly how co-respondent that he or she wasn't a wife or husband.
The Supreme Court in Subbaramma v. Saraswati decided that one act of adultery is sufficient grounds for divorce or judicial separation. “The unwritten taboos and laws of social decency in this nation, particularly in village regions, must necessarily be taken into account,” the court said in the same instance. Unless an excuse is given that is consistent with an innocent interpretation, the only conclusion that the Court of Justice can draw is that an unknown person was found alone with a young woman after midnight in her apartment, in an actual physical juxtaposition, the only conclusion that the Court of Justice can draw must be that the two have committed an act of adultery together.”
iv. Unsound mind
If a spouse is unable to perform the regular duties that he or she is expected to undertake due to a mental illness or disorder, divorce may be sought, provided that the unsoundness of mind has lasted for at least three years. However, if the mental condition does not prevent the person from carrying out his or her responsibilities, the divorce cannot be sought.
If the respondent has been experiencing mental upheaval of such a nature and intensity that the petitioner cannot rationally be compelled to live with the respondent, the petitioner may get a divorce or judicial separation judgement.
The Supreme Court stated in Ram Narayan v. Rameshwari that the petitioner must prove not only that the respondent has schizophrenia mental disease, but also that the petitioner could not fairly be expected to live with the respondent.
It was established in Smt. Alka Sharma v. Abhinesh Chandra Sharma that the spouse felt so frigid and nervous on the first evening of marriage that they were unable to coordinate in a sexual act. She was found to be unable to work with domestic machines. She fizzled in an attempt to clarify the direction of peeing in front of all of her relatives. The court ruled that she was suffering from schizophrenia and that her spouse was entitled to a divorce.
Leprosy is a basis for divorce and judicial separation under Section (1)(iv) of the Hindu Marriage Act, 1955. However, per Section (1)(iv) of the Hindu Marriage Act, 1955, leprosy must be virulent and incurable; a mild variety of leprosy that can be treated is not a valid reason for divorce or judicial separation.
vi. Venereal disease
If the spouse has been suffering from any contagious venereal illness for the past three years from the date of the petition, the aggrieved can receive a divorce.
The Hindu Marriage Act of 1955, Section 13(V), establishes a reason for divorce in cases of infectious venereal disease.
The Supreme Court declared in Mr X v. Hospital Z that either husband or wife might divorce on the grounds of venereal disease and that a person who has suffered from the disease cannot be claimed to have any right to marry even before marriage, as long as he is not healed of the condition.
In Sm., Mita Gupta vs Prabir Kumar Gupta 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
A spouse's conversion to a different religion is another basis to seek divorce from the other. There is no requirement that a certain amount of time passes before filing for divorce.
If the respondent changed from Hinduism to another religion and ceased to be a Hindu, divorce may be granted under Section (13)(1) clause (ii) of the Hindu Marriage Act. Two conditions must be met under the clause:
- The respondent is no longer a Hindu, and
- The respondent is now a follower of a different faith.
A person's conversion to a non-Hindu faith, such as Parsis, Islam, Christianity, or Zoroastrianism, is known as ceasing to be Hindu. If a person converts to Jainism, Buddhism, or Sikhism, he remains a Hindu because Sikhs, Jains, and Buddhists are Hindus by religion.
The court in Teesta Chattoraj vs Union of India concluded that while conversion to another religion is a reason for divorce, a spouse may be granted a divorce even if the other spouse has converted to a different faith if the former has pushed the latter to do so.
viii. Renunciation of world
"Renouncing the world" could mean "renouncing worldly pursuits to live a non-secular existence." and its reference is found in Hindu Marriage Act's section 13(1)(vi). The term "renouncing" refers to "formally resigning a few rights or, more specifically, believing in one's position as successor or trustee."
The aggrieved spouse might seek divorce if the partner intends to abandon the world and obtain a holy order. This renunciation, however, must be complete and irreversible.
Two conditions must be met to seek a divorce under this clause:
- The respondent had to have renounced worldly pursuits of the world, and
- He must have joined a different religious order.
In the case of Sital Das v. Sant Ram, it was held that someone is considered to have joined a religious order if he participates in a few of the faith's ceremonies and rites. Now there are a few more things to consider. For example, if a man or woman joins a religious order but returns home day after day and cohabits, it cannot be used as a basis for divorce because he has not forsaken the world.
ix. Presumption of death
If a spouse has not been heard of for a minimum of seven years, the spouse who has not heard any news about his or her spouse's whereabouts can file for divorce since the courts presume that the other spouse is dead.
According to the Indian Evidence Act of 1872, if a person has not been heard from in at least seven years, he or she is presumed to be dead. The petitioner may be granted a divorce on this basis. However, under ancient Indian Hindu law, a presumption of death is not the same as in modern law; twelve years must pass before a person is presumed to have died. This presumption is not immutable under the law, and death could be presumed before the seven years from the date of proof of exceptional circumstances.
- BASED ON THE THEORY OF IRRETRIEVABLE BREAKDOWN OF MARRIAGE
Section 13(1A) of the Hindu Marriage Act of 1955 states that "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: -
· that there has been no resumption of cohabitation between the parties to the marriage for at least 8 [one year] following the entry of a judicial separation decree in a procedure to which they were parties; or
· that after the passing of a decree for restitution of conjugal rights in a procedure to which they were parties, there has been no restitution of conjugal rights between the parties to the marriage for a period of 8 [one year] or above.
The court in K. Srinivas Rao v. D.A. Deepa held that under the Hindu Marriage Act of 1955, irreversible breakdown of a marriage is not a basis for divorce. However, where marriage is irretrievably broken due to animosity caused by the activities of either the husband or the wife, or both, the courts have frequently considered the irreversible dissolution of marriage as a serious problem, resulting in marital separation, among other things. A marriage that has been dissolved for all intents and purposes cannot be restored by court order if the parties are unable to do so.
In Vishnu Dutt Sharma vs Manju Sharma, the court decided that based on a cursory reading of section 13, the law does not provide for divorce on the grounds of irreversible dissolution of a marriage. In some situations, however, the court will divorce the marriage due to irreversible breakdown. This case, in our opinion, should not be considered precedent-setting.
- BASED ON THE THEORY OF MUTUAL CONSENT
Subsection (1) of section 13B of the Hindu Marriage Act stipulated that the petition for divorce by mutual consent must be presented to the court jointly by the parties and that there were three further conditions of subsection (1).
· For the past 365 days, they have been living separately.
· They haven't been able to live together for a long time.
· They've both agreed that the marriage should be dissolved.
According to Section 13-B of the Hindu Marriage Act, both parties are eligible to file a joint petition for divorce by mutual consent if they have been living separately for 365 days. Furthermore, it's far stipulated that the court, on being satisfied after hearing the events and making such an inquiry as it thinks fit, pass a decree of divorce dissolving the marriage by mutual consent not earlier than 6 months after the date of presentation of the stated petition and no later than 18 months after the date of presentation of the stated petition, pass a decree of divorce dissolving the marriage by mutual consent.
It is more likely to take less time if a divorce petition is submitted with both parties' approval. There aren't many disagreements in this case because the parties only have to prove that they've been living apart for at least a year and have no plans to reconnect. The court must determine whether the required circumstances have been met, and if the parties are still unwilling to continue their marriage, the court may issue a divorce judgement.
The court held in Smt. Jayashree Ramesh Londhe vs Ramesh Bhikaji Londhe that either party can withdraw the petition after thinking about the divorce through mutual consent, and that this way a party can withdraw the earlier consent even if it was not obtained through fraud, undue influence, or coercion.
In Manish Goel v. Rohini Goel, the court decided that in exercising its power under Article 142 of the Constitution, it is competent to waive the statutory time of six months. The statutory time limit of six months for submitting the second petition under section 13-B(2) of the Act has been established to give the parties a chance to reconcile and withdraw the dissolution of the marriage petition.
- CUSTOMARY DIVORCE
Although divorce was not recognized under Hindu law, it was accepted by the custom in some societies, and courts observed the custom where it did not conflict with public policy. The scheme and aim of this Act are not to avoid any of the practices that have been recognized as having divorce and effect under the provisions of this chapter. In any other circumstance, the spouses are not obligated to appear in court to seek divorce on customary grounds.
· SPECIAL GROUNDS OF DIVORCE FOR WIFE
- HUSBAND HAVING MORE THAN ONE WIFE
The wife was entitled to file a petition dissolving his marriage under clause I of sub-clause (2) of section 13 of the Hindu Marriage Act because the first wife of the appellant who was married to the appellant before the commencement of the Act was alive at the time of the ceremony of a marriage between the appellant and the appellant.
In Leela v. Anant Singh court held that the wife of a polygamous marriage cannot be denied her right to divorce because she entered into a compromise with her husband to continue living with her before the commencement of the act; nor can the husband plead that her conduct or disability is a bar to her claim.
- RAPE, SADOMY or BESTIALITY
The wife has the right to divorce her husband for rape, sodomy, or bestiality under clause (ii) of sub-clause (2) of section 13 of the Hindu Marriage Act.
A man is guilty of rape if he forces an unwilling or unfiltered woman to engage in sexual intercourse, or if he obtains her consent by putting her in fear of death or her consent, or by falsely believing that she is his wife when she is not, or if they are under the age of twelve. However, unless his wife is under the age of 15, he cannot be accused of raping her.
Sodomy or bestiality occurs when a man, woman, or animal engages in a carnal relationship outside of the natural order. If a man performs sodomy on his wife without her consent, he commits the matrimonial offence of sodomy under the terms of the clause.
- NON-RESUMPTION OF COHABITATION AFTER A DECREE OF MAINTENANCE
The wife had an alternative cause for divorce under clause (ii) of sub-clause (2) of section 13 of the Hindu Marriage Act. The goal of including the aforementioned provision was to give the wife the right to divorce if her husband had disregarded her or had failed to support her after a maintenance order had been granted in her favour.
- REPUDIATION OF MARRIAGE
Wife/applicant filed a divorce petition against respondent-husband on the grounds that she was under the age of 15 when she married, but that she had rejected her marriage before she turned 18, and that she was thus granted a divorce under Section 13(2)(iv) of the Hindu Marriage Act, 1955.
There are many grounds for divorce available under Section 13 of the Hindu Marriage Act, 1955, on which both the husband and wife can submit a divorce petition. There are nine fault grounds for divorce available under sub-clause (1) of section 13 of the Act. Desertion, adultery, brutality, venereal illness, leprosy, insanity, and conversion are some of the justifications. There are four grounds under sub-clause (2) of section 13 of the Act on which the wife alone can submit a divorce petition. These grounds include a husband living with more than one woman, rape, sodomy, or bestiality, non-resumption of cohabitation following a maintenance decree, and repudiation of marriage. Irretrievable Breakdown Ground is also applicable for both husband and wife under sub-clause (1A) of section 13 of the Act. The husband and wife can divorce based on a societal tradition under sub-clause (2) of section 29 of the Act. After one year of marriage, a divorce can be filed. Divorce necessitates the completion of two separate judgement procedures. The first is when the petition is submitted, and the second is six month
References: Paras Diwan, MODERN HINDU LAW, 24th ed. 2019, p. 134 2002 SC 591 1957 SC 176  Vidhya Viswanathan vs Kartik Balakrishnan (2014) 15 SCC 21.  2002 SC 591  AIR 1991 Bom 259  (2010) 14 SCC 301  (1966) 2 MLJ 263  1988 AIR 2260  1991 (0) MPLJ 625  Paras Diwan, MODERN HINDU LAW, 24th ed. 2019, p. 169  AIR 2003 SC 664  AIR 1989 Cal 248  188(2012) DLT 507  1954 SC 606  (2013) 5 SCC 226  (2009) 6 SCC 379)  Smt. Sureshta Devi vs Om Prakash, 1991 SCR (1) 274  AIR 1984 Bom 302  (2010) 4 SCC 393  P. Mariammal vs Padmanabhan, AIR 2001 Mad 350  AIR 1963 Raj 178
Author- Samarth Jain
BBA. LLB(H), 4th Year
Jagran Lakecity University