Grounds of Divorce under Hindu Marriage Act, 1955 - Issues & Challenges
Authored By : Amrutha Valli
Divorce requires a competent court to end the union. Under Hindu law this paper deals with divorce. It analyzes how the definition according to ancient law was non-existent due to the sacramental essence of marriage but was implemented under the Hindu Marriage Act, 1955. It explores the different theories of divorce- blame, mutual consent, breakdown; and also explains the grounds for divorce under this Act, focusing on adultery and violence, and how those grounds have been changed by amendments. It dwells briefly on the grounds a wife just has at her fingertips.
Divorce, Hindu Marriage Act, adultery, cruelty, desertion, conversion, insanity, leprosy, renunciation, presumption of death.
Earlier divorce was unknown to general Hindu law as marriage was considered to be an indissoluble union between the husband and wife. Manu announced that her husband cannot release a wife either by sale or abandonment, indicating that the marital bond cannot be broken in any way. While Hindu law does not consider divorce, it has yet been held that it will have the force of law where it is accepted as an established practice.
Concept of Divorce:
No legislative laws had specified the word 'divorce,' but it could be characterized as a legal separation of the legal relations formed in marriages. Thus a divorce is also a seven lettered term, separating the married couple with their own consent upon their own wishes.
Relevant provisions related to divorce under Hindu Marriage Act, 1955
As the needs of the Indian community changed, the Hindu Marriage Act, 1955 also codified the principle of divorce. There are also several parts dealing with divorce, such as:
Section 10, Section 5, Section 13, Section 14, Section 15
Ground for divorce under Hindu Marriage Act, 1955:
All three theories of divorce are recognized in modern Hindu law & divorce can be obtained on the basis of any one of them. Originally based on the theory of fault, the Hindu Marriage Act of 1955 enshrined nine grounds of fault in Section 13(1) on which either the husband or the wife could sue for divorce, and two grounds of fault in Section 13(2) on which the wife alone could seek divorce.
In adultery there must be voluntary or consensual sexual intercourse during marriage life between one married person and another, whether married or unmarried, of the opposite sex, not the other's spouse. Therefore, the sex of a polygamous marriage with the former or latter partner is not adultery. But if the second marriage is invalid, then adultery would lead to sexual intercourse with the second partner.
The offence adultery may be proved by:
· Circumstancial evidence
· Contractual venereal disease
In basic terms, cruelty means brutality or inhuman violent actions against one. Thus Section 13(1)(ii) states that treating the petitioner with cruelty can also be considered a basis for marriage even after marriage has been solemnized. In the case of Krishna Sarvadhikary v. Alok Ranjan Sarvadhikary, AIR 1985 Cal. 431, it had been held that the actual intention on the part of one of the partners is to harm the other is an significant factor while in doubtful cases the accused spouse's state of mind will also be crucial.
Desertion means the rejection by one party of all the responsibilities of marriage- the irreversible forsaking or abandonment of one partner by the other without any fair cause and without the permission of the other. It means a complete repudiation of marital duty.
The following 5 requirements must be present; they must co-exist to present a basis for divorce:
· The factum of separation
· Animus deserdendi(intention to desert)
· Desertion without any reasonable cause
· Desertion without consent of other party
· Statutory period of two years must have run out before a petition is presented.
Where the other party has stopped being Hindu for example through conversion to some other faith. A divorce can be given to Islam, Christianity, Judaism, Zoroastrianism.
Insanity as a divorce ground has the following two conditions-
I The respondent was incurably unfit of mind
(ii) The respondent suffered from mental illness of this type constantly or intermittently and to such an degree that the respondent could not fairly be expected to live with the respondent.
Contagiousness of leprosy and repulsive physical appearances are responsible for creating society in which man not only shuns the lepers' company, but looks scornfully upon them. Venereal disease
Currently, if it is communicable by definition, it is a basis for divorce regardless of the time for which the respondent suffered from it. The basis is created if it is shown that the disease is communicable and it is not necessary to communicate it (even if it is done innocently) to the complainant
Renunciation of the earth "is a divorce ground only under Hindu law, because earth renunciation is a traditional Hindu notion. Modern codified Hindu law stipulates that if the other party has renounced the world and entered a holy order a spouse may seek divorce.
Presumption of death
Under the Act, if a person has not been heard of as being alive for at least seven years, a person is believed to be dead. Under all marriage rules, the burden of showing that the respondent's whereabouts are not known for the specified time is on the applicant.
Wife’s special grounds for divorce
four additional divorce grounds have been given for a wife under Section 13(2) of the Hindu Marriage Act , 1955.
· Pre-Act Polygamous Marriage
· Rape, sodomy, and Bestiality
· Non Resumption Of Cohabitation After A Decree/ Order of Maintenance
· Repudiation Of Marriage
Hindus regard marriage as sacred bonding. There had been no provision for divorce before the Hindu Marriage Act of 1955. The notion of divorcing then was too radical for Indian culture. The wives have been the silent victims of a system so rigid. The time has changed though; the situation has changed; the social ladder has switched.