Under Indian Culture, marriage is considered as a sacred ceremony as it is not only the meeting of two people but it is the meeting of two souls. During the Ancient times, marriages were considered to be unbreakable and that’s why there was no concept of divorce. But Hindu Marriage Act, 1955 [1]changed the ancient concept and introduced the concept of divorce (dissolution of marriage). The word “Divorce” is derived from the Latin word “divortium” which means “to separate”. According to Arthashastra, a marriage can be dissolved by mutual consent and should be an unapproved marriage. But Manu does not believe in the concept of dissolution. According to Manu, marriage can come to an end only by the death of one of the spouses. However, this concept changed after the introduction of Hindu Marriage Act, 1955 which provides many grounds of divorce.
Theories of Divorce
There are basically three theories of divorce:
- Fault Theory
Under this theory, a marriage can be ended when one of the parties to the marriage commits any matrimonial offence and the other party is innocent. One of the major drawbacks of this theory is that if both the spouses are at fault, then they cannot avail the remedy of divorce.
- Mutual Consent Theory
Under this theory, the marriage can be ended by way of mutual consent. This theory believes that if two people marry each other with free consent, they should also be allowed to dissolve their marriage by free consent, they should not be forcefully allowed to continue with the marriage.
- Irretrievable Breakdown of Marriage Theory
This theory comes into play when there is a complete breakdown of relation between husband and wife, and there are no chances that the spouses will ever live together.
Grounds of Divorce under Hindu Marriage Act, 1955
Section 13[2] of the Hindu Marriage Act, 1955 deals with the fault-based theory. Section 13B[3] of the Act deals with Mutual Consent Theory and Section 13(1A)[4] of the Act deals with the Irretrievable Breakdown of Marriage Theory.
The following are the grounds which are available to both the parties:
- Adultery
This is the first ground of divorce which is available under Section 13 of the Act. Either party to the marriage can get a divorce if one of the parties to the marriage had voluntarily sexual intercourse with any other person after the marriage. The concept of adultery was added in the act by the Marriage Law (Amendment) Act, 1976[5]. Earlier Section 497 of the Indian Penal Code, 1860 used to deal with the offence of adultery. It was considered a crime in the eyes of law, but now it is no longer an offence. But it is still considered as a valid ground of divorce.
- Cruelty
Cruelty includes both mental as well as physical cruelty. Physical cruelty means beating one spouse or causing any bodily injury to another spouse. Mental Cruelty includes mental torture by the other spouse.
- Desertion
It means if one spouse is permanently abandoned by the other spouse without providing any reason and without his/her consent. To claim divorce under this ground, desertion should be for at least 2 years.
- Conversion to Another Religion
If one of the spouses converts himself/herself to any other religion without obtaining the consent of the other spouse, then the other spouse can claim divorce under this ground.
- Unsoundness of Mind
The unsoundness of mind is a valid ground of divorce if the following requirements are met:
- The respondent has become incurably unsound mind
- The respondent has been suffering continuously from mental disorder of such kind and to an extent that the petitioners cannot be expected to live with the respondent.
- Venereal Disease
If the respondent is suffering from any communicable disease, then it is a valid ground of divorce.
- Renunciation of World
If one of the spouses renounces the world and follows the path of God, then the other spouse can claim divorce.
- Presumption of Death
If the respondent has not been heard for a period of 7 years or more by his/her family members or friends, then he/she is considered to be dead and the petitioner can claim divorce under this ground.
- No Restitution of Conjugal Rights
If the time period of one year or more has expired after the passing of the order of restitution of conjugal rights and if there is no restitution of conjugal rights between the parties then it becomes a valid ground of divorce.
Grounds of Divorce which are only available to Wife
There are basically three grounds of divorce which are available to the wife:
- The Husband is guilty of rape, sodomy or bestiality after the marriage.
- If the order of maintenance has been passed against the husband and there is no cohabitation between the spouses after the passing of the order.
- If she got married before she attained the age of 15 years and she repudiated the marriage after attaining that age.
Conclusion
The ancient hindu law considered marriage as a sacred ceremony which cannot come to an end and it did not recognize the concept of divorce. But after the enactment of Hindu Marriage Act, 1955 there has been a change in this concept as this act introduced the concept of divorce. Now, there are various grounds like adultery, desertion, cruelty, etc. So, the spouse who is innocent can seek the remedy of divorce by approaching the court of law.
[1] https://highcourtchd.gov.in/hclscc/subpages/pdf_files/4.pdf (Last Visited on 17th August, 2021 at 11:55 AM)
[2] https://indiankanoon.org/doc/1284729/ (Last Visited on 17th August, 2021 at 12:10 PM)
[3] https://indiankanoon.org/doc/439618/ (Last Visited on 17th August, 2021 at 12:30 PM)
[4] https://indiankanoon.org/doc/1646471/ (Last Visited on 17th August, 2021 at 12:45 PM)
[5] https://indiankanoon.org/doc/1368282/ (Last Visited on 17th August, 2021 at 1:00 PM)
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