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An overview of 'Grounds for Divorce'


Authored By- Gauhar Alam


Keywords- #divorce #grounds #Hindu #Marriage #Dissolution #Adultery #cruelty #Desertion


Abstract- Marriage is considered a sacred ceremony in Indian culture as it is not only the meeting of two persons but it is the meeting of two souls. In Hindus, it is mostly considered as a sacramental tie for the whole life and the seven Janam as. Ancient Hindu law considered the ceremony of marriage to be unbreakable that’s why it did not provide for its dissolution.


But the Hindu Marriage Act, 1955 brought a change in this concept of old Hindu law and introduced the concept of dissolution of marriage (Divorce). Sections 11 to 18 in the Hindu Marriage Act provides about the nullity of marriage and divorce.


The author in this article would discuss the grounds of divorce under the Hindu Marriage Act, 1955.


Introduction-

The term divorce is derived from the Latin word “divortium” which means “to turn aside”, “to separate”. Divorce is a legal cessation of a matrimonial bond and all the rights of the subject of marriage ends.

Under old Hindu law, there was no concept of divorce as marriage was considered a sacrament that cannot be broken under any circumstance.

According to Manu the tie of Husband and wife was for the whole life and it can only be broken by the death of a partner. Old Hindu law did not recognize any way of dissolution of marriage.

But this trend changed with the enactment of the Hindu Marriage Act, 1955 which recognized many grounds of divorce.


Theories of divorce

There are mainly three theories of divorce-


1. Fault theory- this theory comes to play only when one of the parties to the marriage has committed any matrimonial offence and the other party is innocent. The major drawback of this theory is that if both parties are guilty there is no remedy.


2. Mutual consent theory- this theory believes, as two persons marry with their free consent, they should also be allowed to break their bond by their free will, they should not be compelled to carry on their relations unwillingly.


3. Irretrievable breakdown theory- this theory comes to play when there is a serious breakdown in the relations of husband and wife, and there is no reasonable probability that the spouses will ever live together.


Grounds of divorce under the Hindu Marriage Act, 1955


Originally Section 13 of the Hindu Marriage Act, 1955 only recognized the fault theory of divorce, but after some major amendments in the year 1964 and 1976 the mutual consent theory was recognized under section 13B and the Breakdown theory was recognized section 13(1-A) of the Act

The Hindu Marriage Act, 1955 recognizes various grounds of divorce under section 13 of which some are available to both husbands and wives whereas some of them are available to wives only.

After the amendments of 1964 and the amendments made by Marriage laws (Amendment Act), 1976 there exists, the following grounds for divorce.


Grounds available to both the parties


1. Adultery- this is the very first ground for divorce under section 13 of the Act under which either party to the marriage can present a petition if one of the parties voluntarily had sexual intercourse with any other person after the solemnization of marriage.

Earlier section 497 of the Indian Penal Code, 1860 Penalized the act of committing adultery and adultery was a crime in the eyes of law but now adultery is no longer a crime, but still it is a ground of divorce under the Hindu Marriage Act, 1955.


In Joseph Shine vs Union Of India[1]

Hon’ble Supreme Court of India De-criminalised the act of adultery but held that it would still be a ground for divorce under the Hindu Marriage Act, 1955. It made the following observations-

“There can be no shadow of a doubt that adultery can be a ground for any kind of civil wrong including dissolution of marriage.”


2. Cruelty

Cruelty is also one of the grounds available for divorce under the act. Cruelty here does not only means physical cruelty but also includes mental cruelty.


In Savitri Pandey vs Prem Chandra Pandey,[2] the Hon’ble Supreme Court has made the following observations regarding the interpretation of the Cruelty used in section 13 of the Act-

"Treating the petitioner with cruelty is a ground for divorce under Section 13(1)(i-a) of the Act. Cruelty has not been defined under the Act but concerning matrimonial matters, it is contemplated as the conduct of such type which endangers the living of the petitioner with the respondent. Cruelty consists of acts that are dangerous to life, limb, or health. Cruelty for the Act means where one spouse has so treated the other and manifested such feelings towards her or him as to have inflicted bodily injury, or to have caused reasonable apprehension of bodily injury, suffering, or to have injured health. Cruelty may be physical or mental. Mental cruelty is the conduct of other spouses which causes mental suffering or fear of the matrimonial life of the other. "Cruelty", therefore, postulates a treatment of the petitioner with such cruelty as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the other party.”


3. Desertion for a continuous period of not less than 2 years. Desertion has also been made a valid ground of divorce under the act.

"Desertion is the separation of one spouse from the other, with an intention on the part of the deserting spouse of bringing cohabitation permanently to on end without reasonable cause and the consent of the other spouse; but the physical act of departure by one spouse does not necessarily make that spouse the deserting party".[3]


If the petitioner had been deserted by the other spouse for a continuous period of not less than two years immediately preceding the presentation of the petition, then the petitioner is entitled to divorce under the act.


Bipin Chander Jaisinghbhai Shah vs Prabhawati[4]

In this case, the Supreme Court mentioned some of the essential ingredients for desertion, these are as follows:

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

(1) the factum of separation, and

(2) the intention to bring cohabitation permanently to an end (animus desired ).


4. Conversion to another Religion

If one of the parties to the marriage gets converted to another religion then, the other spouse can seek divorce.


5. Unsoundness of mind or Mental disorder

Petitioner is eligible for divorce if-

· The respondent has become incurably of unsound mind; or

· 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.


Vinita Saxena vs Pankaj Pandit[5] divorce was granted to the petitioner on grounds of unsoundness of mind of the respondent.


6. Leprosy[6]

Leprosy was a ground of divorce till 2019 bit now it has been removed from the act vide section 5 of Act 6 of 2019 w.e.f from 1 march 2019.


7. Venereal Disease

If the respondent has been suffering from any communicable venereal diseases then the petitioner is entitled to a divorce.


8. Renunciation of World

If one of the spouses to the marriage renounces the world by entering any religious order then it is a valid ground for divorce.


9. Presumption of Death

If the respondent has not been heard of being alive for seven years or more by his family members or friends then also the petitioner is entitled to a divorce.


10. Non-resumption of Cohabitation

If a time of one year or more has expired after the passing of the decree of judicial separation and there is no cohabitation between the parties then it is a valid ground for divorce.


11. No Restitution of Conjugal Rights

If a time of one year or more has expired after the passing of a decree for restitution of conjugal rights and there is no restitution of conjugal rights between the parties.


Grounds Available to Wife Only

· Husband has been guilty of rape, sodomy or bestiality after the solemnization of marriage.

· A decree or decree order of maintenance has been passed against the husband and the cohabitation between the spouses has not resumed since the passing of decree or order.

· If her marriage has been solemnized before she attained the age of 15 years and she repudiated the marriage after attaining that age.


Conclusion

The old Hindu law considered the bond of marriage to be eternal which cannot come to an end and did not recognize the concept of dissolution of marriage. But after the enactment of the Hindu Marriage Act, 1955 there is a shift in this concept as the act has introduced the concept of Divorce. Now there are many grounds based on of which the bond of marriage can be broken by either party.



[1]Joseph Shine vs Union Of India, 2018 SC 1676. [2]Savitri Pandey vs Prem Chandra Pandey, (2002) 2 SCC. [3] Rayden on Divorce 6th edition p. 128. [4]Bipin Chander Jaisinghbhai Shah vs Prabhawati, 1957 AIR 176. [5]Civil Appeal No. 1687 of 2006. [6]Omitted by Act 6 of 2019, s. 5 (w.e.f. 1-3-2019).

References-


· The Hindu Marriage Act,1955

· https://blog.ipleaders.in/grounds-divorce-the-hindu-marriage-act/

· https://www.lawctopus.com/academike/divorce-under-hindu-law/

· https://www.myadvo.in/blog/grounds-of-divorce-under-hindu-marriage-laws

· https://shodhganga.inflibnet.ac.in/jspui/bitstream/10603/237655/12/12_chapter%204.pdf

· http://www.legalserviceindia.com/helpline/grounds_for_divorce.html

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