Marriage is considered one of the most important aspects of life. And especially in a country like India, it is not only important but sacred too. In our country rituals and religious ceremonies play a huge role during the marriage and because of this religious aspect the concept of marriage is still considered to be a very sacrosanct one. Thus the concept of holiness that comes with marriages makes the concept of divorce very much alien to the mandate of the religion.
In Ancient India, the 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 can’t be continued. 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.
The dictionary meanings of the word ‘divorce’ are severance, surrender or separation. In matrimonial makers divorce means the termination of marital relations, dissolution of the marital bond, permanent separation of the spouses from board to bed. Technically speaking, divorce means a decree of dissolution of marriage.
Types of Divorce Petitions
- Divorce with Mutual Consent: The Hindu Marriage Act, 1955, provides for divorce by mutual consent under Section 13-B. This concept was introduced in the year 1976 and thus it seems to be comparatively more practical than the previous provisions contested divorce. Under this, the parties are permitted to arrive at a divorce settlement amicably, wherein the court only plays the role of an administrative assistant. The parties filing for the divorce under these sections are at liberty to decide the terms of the divorce. Since the involvement of lawyers and that of the court is relatively less as compared to a contested divorce, a mutual consent divorce seems to be much less-cheaper and faster than a contested divorce.
- Divorce Without Mutual Consent: This concept is often referred to as Fault Divorce or Contest Divorce. The Hindu Marriage Act, 1955, under Sections 13 (1) & (2) provide for the various grounds on which divorce may be claimed before a court of law, the difference is that under Section 13 (1) both the parties may file a petition for divorce but under Section 13 (2) it is only the wife who is allowed to file a petition for divorce. The grounds laid down under section 13 (1) are as follows:
- desertion for a period of two or more years,
- the venereal disease of a communicable form,
- relinquishment of the world and conversion of religion.
Whereas, the grounds under section 13 (2) bestows special rights on a woman to avail divorce in India which are as follows:
- sodomy or bestiality by the husband,
- non-compliant by the husband to an order of paying maintenance,
- under-age marriage of the woman which has been repudiated by the woman before she attained the age of 18 and imprisonment of the husband as a habitual criminal.
Leprosy which existed as a ground of divorce until very recently was removed as a ground by an amendment in February 2019.
- Irretrievable Breakdown of Marriage: The Marriage Laws Amendment Bill, 2010, which has been passed by the Rajya Sabha but is yet to be passed by the Lok Sabha provides for the insertion of Section 13C in the Hindu Marriage Act which if introduced, shall provide for Irretrievable Breakdown of Marriage. Though the provision has not been enacted formally, the Supreme Court has, in exceptional cases granted a divorce by citing the ground of irretrievable breakdown of the marriage.
What are the grounds for getting a divorce?
It is conceded in all jurisdictions that public policy, good morals & the interests of society require that marital relationship should be surrounded with every safeguard and its severance be allowed only in the manner and for the cause specified by law. Divorce is not favoured or encouraged and is permitted only for grave reasons.
In modern Hindu law, all the three theories of divorce are recognized & divorce can be obtained on the basis of any one of them. The Hindu Marriage Act, 1955 originally, based divorce on the fault theory, and enshrined nine fault grounds in Section 13(1) on which either the husband or wife could sue for divorce, and two fault grounds in Section 13(2) on which wife alone could seek the divorce.
In 1964, by an amendment, certain clauses of Section 13(1) were amended within the sort of Section 13(1A), thus recognizing two grounds of the breakdown of the wedding. The 1976 amendment Act inserted two additional fault grounds of divorce for a wife & a new section 13B for divorce by mutual consent.
The various grounds on which a decree of divorce are often obtained are as follows-
While adultery might not be recognized as a criminal offence altogether countries, the matrimonial offence of adultery or the fault ground of adultery is recognized in most. Even under the Shastric Hindu law, where divorce had not been recognized, adultery was condemned within the most unequivocal terms. There is no clear definition of the matrimonial offence of adultery.
In adultery there must be voluntary or consensual sexual activity between a spouse and another, whether married or unmarried, of the other sex, not being the other’s spouse, during the subsistence of marriage. Thus, intercourse with the previous or latter wife of a polygamous marriage isn’t adultery. But if the second marriage is void, then sexual activity with the second wife will amount to adultery. Though initially a divorce might be granted as long as such spouse was living in adultery, by the wedding Laws Amendment Act, 1976, this position under the Hindu Marriage Act is that it considers even the only act of adultery enough for the decree of divorce. Since adultery is an offence against marriage, it is necessary to establish that at the time of the act of adultery the marriage was subsisting. Also, it follows that unless one willingly consents to the act, there is often no adultery. If the wife can establish that the co-respondent raped her, then the husband wouldn’t be entitled to a divorce.
In Swapna Ghose v. Sadanand Ghose, the wife found her husband and the adulteress to be lying in the same bed at night and further evidence which was recorded of the neighbours that the husband was living with the adulteress as husband and wife is sufficient evidence of adultery. The fact of the matter is that direct proof of adultery is extremely rare.
The offence of adultery may be proved by:
Contracting venereal disease
The concept of cruelty is a changing concept. The modern concept of cruelty includes both mental and physical cruelty. Acts of cruelty are behavioural manifestations stimulated by various factors within the lifetime of spouses, and their surroundings and therefore; each case has got to be selected the idea of its own set of facts. While physical cruelty is easy to determine, it is difficult to say what mental cruelty consists of. Perhaps, mental cruelty is lack of such conjugal kindness, which inflicts the pain of such a degree and duration that it adversely affects the health, mental or bodily, of the spouse on whom it is inflicted. In the case of Pravin Mehta v. Inderjeet Mehta, the court has defined mental cruelty as ‘the state of mind.’
Some Instances of Cruelty are as follows:
- False accusations of adultery or unchastity.
- The demand for dowry.
- Refusal to have marital intercourse/children.
- Birth of a child.
- The threat to commit suicide. Wife’s writing false complaints to the employer of the husband.
- Incompatibility of temperament.
- Irretrievable breakdown of the marriage.
What does not amount to cruelty:
Ordinary wear & tear of married life.
Wife’s refusal to resign her job.
Desertion per se.
Outbursts of temper without rancour.
Desertion means the rejection by one party of all the obligations of marriage- the permanent forsaking or abandonment of 1 spouse by the opposite with none reasonable cause and without the consent of the other. It means a total repudiation of marital obligation. The following 5 conditions must be present to constitute desertion; they must co-exist to present a ground for divorce:
The factum of separation;
1.Animus deserdendi (intention to desert);
2.Desertion without any reasonable cause;
3.Desertion without consent of other parties;
4.The statutory period of two years must have run out before a petition is presented.
In Bipinchandra v. Prabhavati the Supreme Court held that where the respondent leaves the matrimonial home with an intention to abandon, he won’t be guilty of desertion if subsequently, he shows an inclination to return & is prevented from doing so by the petitioner.
When the opposite party has ceased to be Hindu by conversion to the other religion for e.g. Islam, Christianity, Judaism, Zoroastrianism, it is a valid ground for divorce.
Insanity as a ground of divorce has the subsequent two requirements-
i) The respondent has been incurable of unsound mind;
ii) The respondent has been suffering continuously or intermittently from mental disturbance of such a sort and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.
Contagiousness of leprosy and repulsive outward manifestations are liable for creating psychology where a man not only shuns the corporate
At present, it’s a ground for divorce if it’s communicable naturally regardless of the amount that the respondent has been affected by it. the bottom is formed out if it’s shown that the disease is in communicable form & it’s not necessary that it should are communicated to the petitioner (even if done innocently).
“Renunciation of the world” may be a ground for divorce only under Hindu law, because the renunciation of the planet may be a typical Hindu notion. Modern codified Hindu law lays down that a spouse may seek divorce if the opposite party has renounced the planet and has entered an order. an individual who does this is often considered as civilly dead. Such renunciation by getting into a spiritual order must be unequivocal & absolute.
Presumption of Death
Under the Act, an individual is presumed to be dead, if he/she has not been heard of as life for a period of a minimum of seven years. The burden of proof that the whereabouts of the respondent isn’t known for the requisite period is on the petitioner under all the matrimonial laws. this is often a presumption of universal acceptance because it aids proof in cases where it might be extremely difficult if not impossible to prove that fact. A decree of divorce granted under this clause is valid & effective albeit it subsequently transpires that the respondent was, in fact, alive at the time when the decree was passed.
Grounds Provided to The Wife for Divorce:
Besides the grounds enumerated above, a wife has been provided four additional grounds of divorce under Section 13(2) of the Hindu Marriage Act, 1955. These are as follows-
Pre-Act Polygamous Marriage
This clause states the bottom for divorce as, “That the husband has another wife from before the commencement of the Act, alive at the time of the solemnization of the wedding of the petitioner. for instance, the case of Venkatame v. Patil where a person had two wives, one among whom sued for divorce, and while the petition was pending, he divorced the second wife. He then averred that since he was left only with one wife, and therefore the petition should be dismissed. The Court rejected the plea. Such a ground is out there if both the marriages are valid marriages & the opposite wife (2nd wife) should be present at the time of filing of the petition. However, today this ground is not any more of practical importance.
Rape, Sodomy or Bestiality
Under this clause, a divorce petition is often presented if the husband has, since the solemnization of the wedding, been guilty of rape, sodomy or bestiality.
Non-Resumption of Cohabitation After A Decree/Order Of Maintenance
If a wife has obtained an order of maintenance in proceedings under Section 125, Cr.P.C., 1973 or a decree under Section 18, Hindu Adoption & Maintenance Act, 1956 & cohabitation has not been resumed between parties after one year or upwards, then this is often a legitimate ground for suing for divorce.
Repudiation of Marriage
This provision provides a ground for divorce to the wife when the wedding was solemnized before she attained the age of fifteen years, and she or he has repudiated the wedding, but before the age of eighteen. Such repudiation could also be express (written or spoken words) or could also be implied from the conduct of the wife (left husband & refused to return back). Moreover, this right (added by the 1976 amendment) has only a retrospective effect i.e. it is often invoked regardless of the very fact that the wedding was solemnized before or after such amendment.
Irretrievable Breakdown of Marriage
Irrespective of the three remedies that are available to parties that are:
- restitution of conjugal rights,
- judicial separation,
- and divorce,
the judiciary in India is demanding an irretrievable breakdown of marriage as a special ground for divorce, as sometimes courts face some difficulties in granting the decree of divorce due to some of the technical loopholes in the existing theories of divorce. Both the Supreme Court and Law Committee consider the implementation of such a theory as a boon to parties who for one or the other reasons are unable to seek the decree of divorce. Hence, in the opinion of the Supreme Court and Law Commission of India, it is very essential to make it a special and separate ground mission that introduction of irretrievable breakdown of the marriage, as a special ground will do any public good.
Under the Hindu Marriage Act, 1955 primarily there are three theories under which divorce is granted:
(i) Guilt theory or Fault theory,
(ii) Consent theory,
(iii) Supervening circumstances theory.
The Irretrievable breakdown theory of divorce is the fourth and the most controversial theory in legal jurisprudence, based on the principle that marriage is a union of two persons based on love affection and respect for each other. If any of these is hampered due to any reason and if the matrimonial relationship between the spouses reaches to such an extent from where it becomes completely irreparable, that is a point where neither of the spouses can live peacefully with each other and acquire the benefits of matrimonial relations, then it is better to dissolve the marriage as now there is no point of stretching such a dead relationship, which exist only in name and not in reality.
The dissolution of the relationship is presumed de facto. The fact that parties to the marriage are living separately for a reasonably prolonged period of time (say two or three years), with any probable cause (like cruelty, adultery, desertion) or even without any reasonable cause (which shows the unwillingness of the parties or even of one of the party to live together) and all their attempts to reunite failed, it will be presumed by law that relationship is dead now.
Recently, the Supreme Court Naveen Kohli v. Neelu Kohli has recommended an amendment to the Hindu Marriage Act, whereby either spouse can cite the irretrievable breakdown of marriage as a reason to seek the divorce. Expressing the concern that divorce could not be granted in a number of cases where marriages were virtually dead due to the absence of the provision of irretrievable breakdown, the court strongly advocated incorporating this concept in the law in view of the change of circumstances.
The Court observed that public interest demands that the married status should, as far as possible, as long as possible and whenever possible, be maintained. However, where a marriage has been wrecked beyond any hope of being repaired, the public interest requires the recognition of the fact. The judgment notes that there is no acceptable way in which a spouse can be compelled to resume life with the consort and that situations causing misery should not be allowed to continue indefinitely as the law has a responsibility to adequately respond to the needs of the society. The profound reasoning is that in situations when there is absolutely no chance to live again jointly or when it is beyond repair, in such a case it would be futile to keep the marital tie alive. Here the ground of irretrievable breakdown is really needed. But it should not be oblivious that the ground, when introduced, needs to provide safeguards to ensure that no party is exploited.
The only merit of the theory as has been propounded and interpreted by the jurists is that a marriage, which in practice is considered to be a sacramental institution, should be based on grounds on which a sound marriage is built- that is tolerance, adjustment and respecting each other. If any of the party to the marriage is not ready to live with the other party, the relationship will not be a happy relationship. Stretching such a relationship will do no good, rather will develop hatred and frustration among the parties for each other. Therefore, to protect the authenticity of marriage, to reduce the number of unhappy marriages and to prevent from getting wasted the precious years of the life of the spouses, it is necessary to dissolve such a marriage.
The Law Commission Of India in Chapter 4 of the 71st report has dealt in detail the demerits of the irretrievable breakdown theory. The two main oppositions discussed in the report are as follows:
(i) It will make divorce easy. It will allow the spouses or even to any one of the spouses to dissolve the marriage out of their own pleasure.
(ii) It will allow the guilty spouse to take advantage of his own fault by getting separated and dissolving the marriage.
Also Read: Judicial Separation under Hindu Law