1. Introduction
In Ancient India
the marriages of Hindus was deemed Indissoluble and it was considered a sacred
act. The concept of divorce was unknown in Ancient India. According to “Manu” wife cannot be released from her husband
either by sale or abandonment. Let mutual fidelity continue till death: this in
brief may be understood to be the highest dharma of Husband and wife”.
With the changing
conditions in society, the concept of divorce in India has been introduced by the
Hindu Marriage Act, 1955. Marriage is an
institution through which two people commit to each other and work for the
well-being of the same, thus families are raised through it and an inseparable
attachment is also formed as a result. Human beings are unpredictable, thus
when the concept of marriage is there, at the same time the concept of divorce
also exists.
2. Theories of Divorce
There
are basically three theories for divorce-fault theory, mutual consent theory
& irretrievable breakdown of marriage theory.
1.
Fault theory
Under the fault theory, a marriage can
be dissolve in case when either party of a marriage has committed a matrimonial
offence. It is necessary to have one guilty and an innocent party, and the
guilty party only holds the right to seek remedy in order to get divorce.
2. Mutual Consent theory
The underlying principle of this theory
is that since both the parties married with each other with their mutual
consent then they should also be allowed to separate with their consent.
However, this theory is criticised in the society. According to the critics
that this approach will promote immorality as
it will lead to hasty divorces and parties would dissolve their marriage even
if there were slight incompatibility of temperament[1].
3. Irretrievable Breakdown of Marriage theory
This is theory deals with the
circumstances under the spouses cannot live with each other and there is no the reasonable probability remains for the spouses to stay together.
As a result of such an adverse situation
the husband and wife cannot ever stay together.
This theory of divorce is based on the principle
that union of two persons is based on natural love and affection and respect
to each other. If these elements are missing in any particular relationship and
it reaches to such an extent that neither spouse can live peacefully with each
other and acquire the benefits of matrimonial relations than 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.
3. Grounds of Divorce under
Hindu Marriage Act
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 the 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 in the form of Section 13(1A), thus
recognizing two grounds of the breakdown of the marriage. The 1976 amendment
Act inserted two additional fault grounds of divorce for the wife & a new
section 13B for divorce by mutual consent.
The various grounds on which a decree
of divorce can be obtained are as follows-
Adultery [Section 13 (1) (i)]
Adultery is defined as a
voluntarily sexual intercourse by a spouse with another person other than his/her
life partner. This act is considered as the matrimonial offence under Hindu
law, hence a divorce can be granted on this ground under section 13 (1) (i) of
Hindu Marriage Act.
Adultery is a crime
in India and also has its penal provision under Section 497 of the Indian Penal Code.
Section 497 of the Indian Penal Code defines as whoever has sexual intercourse
with an individual who is and whom he knows or has as a reason to accept to be
the wife of another man, without the assent or intrigue of husband, such sexual
intercourse not adds up to the offence of rape but is blameworthy of the
offence of adultery, and will be punished with imprisonment of either for a
term of five years, or with fine, or with both.
Standard of Proof: both circumstantial and direct evidence may be accepted in case of adultery. However, it is an act of secrecy and it is difficult for the petitioner to give direct evidence against the deceased. Mostly, the court relies on Circumstantial evidence.
But the evidence of
adultery whether direct or circumstantial must be necessary of such a
character as would make a reasonable man to believe beyond any doubts and a the mere probability that adultery may have been committed is not enough.
In Smt. Pushpa Devi vs. Radheysham[2] it was held that
normally adultery is proved by circumstantial evidence. The general rule is
that the circumstances must be such as would lead to a guarded judgement of a
reasonable and just man to the condition.
Cruelty [Section (13) (1-a)]
Petition for the
decree of divorce may be filed by either party to the marriage on the ground
that other party has treated him/her with cruelty after the solemnization of
marriage. The term ‘cruelty’ as defined under the English law in Russel vs. Russel[3] “to constitute
legal cruelty there must be a danger to life or injury to health, bodily or
mental or reasonable apprehension of it. However, this definition is not valid
in present Hindu law.
Cruelty maybe
Physical and mental. Mental cruelty is the conduct of another spouse 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.
Mens rea is not an essential element of cruelty. Relief
cannot be denied on the ground that there has been no deliberate or wilful
treatment.
In Jayachandra v. Aneel Kaur[4]it was held that Cruelty is a course of
conduct of one which is adversely affecting the other. The cruelty may be
mental and physical, intentional or unintentional.
Some Instances of
Cruelty are as follows;-
- false accusations of adultery or unchastity
- demand of dowry
- refusal to have marital intercourse/children
- impotency
- birth of child
- drunkenness
- the threat to commit suicide
- wife’s writing false complaints to an employer of
the husband
- incompatibility of temperament
- irretrievable breakdown of the marriage
Desertion [Section 13(1) (1-b)]
Desertion means the
rejection by one party of all the obligations of marriage- the permanent
forsaking or abandonment of one spouse by the other without any reasonable
cause and without the consent of the other. It means a total repudiation of
marital obligation.
If the respondent or
the other spouse suddenly without any reasonable cause ceases to live with the
petitioner or dismisses all the rights, obligations and duties tied with the
marital bond, and then the essence of the only intention which he had was to
desert the partner in the marriage. Thus it could be a valid ground for divorce
as well. Therefore in the case of Ashok Kumar Arora V. Prem Arora[5]it had been held that when one spouse separates
himself/herself to bring cohabitation to an end the other is entitled to seek
for a decree of divorce.
Conversion [Sec 13(1) (ii)]
Conversion, as a
ground for divorce, had been defined under Section 13(1) (ii) of the Hindu
Marriage Act of 1955. In case when one of the spouses within the matrimonial bond
ceased to be Hindu and coverts into another religion then the very essence of
Hindu marriage gets destroyed. Therefore, the conversion is considered a lawful
ground for divorce.
Unsound mind [section 13(1) (iii)]
The decree of divorce
can be granted in a case where any of the spouses is insane or suffering from a mental disorder that affects him/her to such an extent that he is not capable of dysfunctional
behaviour captured or deficient advancement of the brain, psychopathic
confusion or some other issue or incapacity of the brain and incorporates
schizophrenia.
In Ram Narain Gupta v. Smt. Rameshwari Gupta[6] the court
elaborated the degree of mental disorder which will enable an aggrieved party
to a marriage to obtain a decree of divorce. It was held that requirement of
assessment of the degree of the mental disorder’. Its degree must be such that
the spouse seeking relief cannot reasonably be expected to live with the other.
If the mere existence of any degree of mental abnormality could justify the dissolution of a marriage, few marriages would, indeed, survive in law.
Venereal disease [Section 13(1) (v)]
In order to get
divorce under this ground, the petitioner is required to prove that the opposite
party has been suffering from venereal disease in a communicable form.
Renunciation of the World
When a person accepts
Sanyasa renounces all the worldly pleasures in this situation it is not
possible for him to obey matrimonial relations. A person however does not
become a sannyasi by merely declaring himself a sanyasi or by wearing clothes
of sannyasi. He or she must perform the ceremonies necessary for entering the
class of sannyasi.
Presumption of death [section 13(1) (vii)]
Under this clause
Decree of divorce can be granted on the ground if the other party has not been
heard of as being alive, for a period of 7 years or more by those persons who
would naturally have heard of it, had that party being alive. Thus the aggrieved party
may marry again and have legitimate children. If the second marriage is
performed on the presumption of death without getting a decree of divorce, no
person other than the missing spouse can question the validity of the second
marriage.
4. Wife’s Special Grounds 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-
Bigamy [Section 13(2) (i)]
Under this clause a petition for the decree
of divorce may be filed by wife on the ground that in case of any marriage
solemnized before the commencement of this act. And the wife is alive at the time of the
solemnization of the marriage of the petitioner.
In Gita Bai v. Fattoo[7] the
second marriage solemnized after the commencement of this act, the husband
admitted the fact of a second marriage and living with her. No connivance and
condition by the petitioner were proved. It was held that the second marriage by
the husband was void ab initio under
section 11 read with section 5(1) of the Act and living with a second wife
amounted to adultery.
Rape, Sodomy or
Bestiality [13 (2) (ii)]
The wife may also present a petition for the dissolution of her marriage by a
decree of divorce on the ground that the husband has, since the solemnization
of marriage been guilty of rape, sodomy or bestiality.
Non-Resumption of
Cohabitation after a Decree/Order of Maintenance [13 (2) (iii)]
Where
the decree or order has been passed against the husband awarding maintenance to
the wife in a suit under section 18 of the Hindu Adoptions and Maintenance Act,
1956, or under section 125 of the Criminal Procedure Code, 1973, and after
passing of such decree or order, cohabitation between the parties has not been
resumed for one year or upwards, a decree of divorce would be granted.
Repudiation of
Marriage [Sec 13 (2) (iv)]
This provision provides a ground for divorce to the wife
when the marriage was solemnized before she attained the age of fifteen years,
and she has repudiated the marriage but before the age of eighteen. Such
repudiation may be expressing (written or spoken words) or may be implied from
the conduct of the wife (left husband & refused to come back). Moreover,
this right (added by the 1976 amendment) has only a retrospective effect i.e.
it can be invoked irrespective of the fact that the marriage was solemnized
before or after such an amendment.
In Bathula Ilahi
v. Bathula Devamma[8] the court granted
the decree after the wife had attained the age of 15 years because after living
with the husband for some time she realised that it would be dangerous to live
with him anymore. In this court also held that even if the petition has been
presented after passing of the age of eighteen years it would be allowed in the
wake of reasonable explain nations
for the delay.
5. Divorce by Mutual Consent [Section 13-B]
a petition for mutual divorce is required to be moved
jointly by the parties to marriage on the ground that they have been living
separately for a period of one year or more and they have not been able to live
together and also that they have agreed that the marriage should be dissolved.
Section 13-B (2) of the Act lays down that on the motion
of both the parties made no earlier than six months after the date of the
presentation of the petition referred to in sub-section (1) give above and not
later than eighteen months after the said date, if the petition is not
withdrawn in the meantime, the court shall on being satisfied, after hearing
the parties and after making such inquiry as it thinks fit, that marriage has
been solemnized.
Essentials of divorce by mutual consent
I.
that both the
parties have been living separately for a period of one year or more;
II.
that both the
parties have not been able to live together;
III.
That both the
parties have mutually agreed that their marriage should be dissolved.
It is clear here that the consent of both parties
must be mutual. Section 23(1) (bb) of the Act, defines that the consent for a petition of divorce by mutual consent must not be obtained by force, fraud or
undue influence. If any of the elements mentioned above is found to be present
in the agreement, the application is liable to be rejected by the court on finding
the truth of the case.
In Leela Mahadeo
v. Mahadeo Sita Ram[9] the Bombay high
court held that the three ingredients under section 13-B are proved, divorce under
this section cannot be refused.
6. Conclusion
The phrase “Incredible India” is really true to itself. Each and every culture, religion, personal laws, codified laws amuses the society and its upbringing. The change in Hindu society and acceptance of the change in the dynamic society is a matter of immense pleasure and pride being an Indian. Previously the divorce concept was not accepted and it was considered that a girl is bound to adjust and compromise. But through the birth of the Hindu Marriage Act 1955, gradually the concept of divorce and therefore the relevant provision as per the needs of the dynamic society was also established. Hence staying in an abusive marriage is a curtailment of the basic fundamental rights like the Right to live peacefully, freedom of speech and expression, etc. Hence lastly it is only expected from the people that they don’t misuse these powers given by the law to them rather they should uphold the laws and human emotions of love, loyalty, trust and kindness.
[1] R.
K. AGARWAL, Hindu Law, 111 (Central Law Agency, Allahabad, twenty-sixth
Edition)
[2]
AIR 1972 Raj. 26.
[3]
(1897) AC 395
[4]
AIR 2005 SC 534
[5] AIR 1987 Del 255
[6] AIR 1988 SC 2260
[7]
AIR 1966 MP 130
[8]
AIR 1981 AP 74
[9]
AIR 1991 Bom. 105
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