This article is written by BUSHRA FATIMA, a FOURTH YEAR student of S.S. Khanna Girls’ Degree College (A Constituent College of University of Allahabad)
ABSTRACT
Marriage under Hindu religion is considered to be a sacrament. It is always been considered as a social institution wherein an effort should be made in order to protect and preserve it. Separation is not usually accepted to the overall Hindu regulation because of the fact that a marriage, from the Hindu perspective, makes an indissoluble tie between the spouse and the wife. However sometimes even after so much of efforts by the parties to the marriage and court of law, it seems out that it will be against the interest of either of the party to the marriage to continue this institutions of marriage, and hence comes the concept of divorce. The Hindu Marriage Act, 1955, provides a comprehensive legal framework governing marriages among Hindus in India. This document explores the diverse grounds for divorce which are provided under the Act with a critical analysis of the conditions and situations wherein divorce would be granted. The grounds include adultery, cruelty, desertion, conversion, mental disorder, venereal disease, renunciation of the world, and presumption of death. This article provides a detailed overview of the legal provisions related to these grounds along with some of the cases wherein the court has granted divorce under the conditions.
INTRODUCTION
The Hindu Marriage Act, 1955, is a legislation enacted by the Indian Parliament to regulate Hindu marriages across the country. Since its enactments it has gone various amendments relating to contemporary social issues. The primary objective of this Act is to codify and consolidate the laws relating to marriage among Hindus and also to provide a legal framework for solemnizing and dissolving marriages within the Hindu community in India.
Divorce is the golden key to the legal cage of marriage. The term ‘divorce’ comes from the Latin word divortium which means to turn aside; to separate. It is the legal cessation of a matrimonial bond.
Marriages in India are controlled and governed by various personal laws. All the personal laws in India provide for divorce under certain conditions and grounds. The divorce under different religion is governed by different statute but the grounds and conditions for it are more or less similar to each other having minimum variations.
Divorce under Hindu Marriage Act, 1955
The provisions relating to divorce under Hindu Marriage Act, 1955 has been provided under section 13 of the Act. This section provide for various grounds under which divorce can be provided. It also contains special provisions regarding special grounds for wife to take divorce.
It is significant to note that, a marriage cannot be dissolved under any circumstance except under the provisions of section 13 of the Hindu Marriage Act, 1955 or can be dissolved by customs which permits divorce only under the exceptional circumstances. The grounds provided under Section 13 are as follows:
- Adultery
- Cruelty
- Desertion
- Insanity
- Conversion
- Venereal diseases
- Renunciation of the world
- Presumption of death
ADULTERY
Adultery is considered as more serious issue and causes for the matrimonial disputes. It can be defined as consensual sexual intercourse between a married person and a person of the opposite sex, not the other spouse, during the subsistence of a marriage.
According to section 13(1)(i), if either party to a marriage, after the solemnization of the marriage had voluntary sexual intercourse with the person other than his or her spouse then such person is believed to commit adultery and hence a decree of divorce can be passed on this ground. From the above definition it is clear that in order to constitute adultery, there must be a sexual intercourse between either of the parties (husband or wife) and the other person.
The consent is the important aspect which is to be emphasized when constituting an offence of adultery. Hence to constitute adultery, it is important that the sexual intercourse should be with the consent of the respondent (husband or wife).
Burden of proof-
The burden to prove the offence of adultery is on the petitioner. The petitioner need not prove it beyond the reasonable doubt; rather mere preponderance of probabilities will suffice the commission of the adultery and would be a valid ground for divorce.
CRUELTY
Cruelty is not a static term. It keeps changing with the nature of the society from time to time. What constitutes cruelty may not be considered as cruelty in earlier times. Hence it becomes difficult to give a particular meaning to cruelty.
There is no specific definition of cruelty, nor is it possible to do so because of its organic nature. Seeing the scope of means of conducting cruelty, it would be difficult to confine the term into a watertight compartment. Cruelty may be brutal, physical, mental, emotional, verbal, or even it could occur by mere silence. In the case of Vishwanathan Sitaram Aggarwal v. Sarla Aggarwal it was found by the Apex court that cruelty may also depends on the social strata to which the parties belong.
Types of cruelty:
- Physical cruelty – it includes acts of spouse causing physical violence resulting in injury to body, limb, health or causing reasonable apprehension of the same violence. However, what amounts to physical cruelty will depend on the facts and circumstances of each case. In the case of Kaushalya v. Mast Ram, it was found that it is not necessary to prove the actual danger to life, rather reasonable apprehension to such danger will amount to physical cruelty.
- Mental cruelty – in the case of Bhagat v. Bhagat, the Supreme Court defined the meaning of mental cruelty as thst conduct which inflicts upon the other party such mental pain and suffering as it would make it not possible for the other party to live with each other. Further in a recent case of Praveen Mehta v. Inderjeet Mehta, it was held mental cruelty is a state of mind and feelings. It is a matter of inference and inference has to be drawn from the facts and circumstances of each case.
While dealing with cruelty as a ground for divorce it is important to note that there is no hard and fast rule as to determine what constitute cruelty and what not. It will be seen from the facts and circumstances of each and every case.
In the case of Rajkumari alias Chandrakala v. Nandlal, it was found that hiding facts like age and pre marital status and the fact that wife’s first husband has committed suicide, will also amount to cruelty. Further undue familiarities with members of opposite sex may also amount to mental cruelty.
Burden of proof- the burden to prove the cruelty as a ground for divorce lies upon the petitioner and it need not be proved beyond the reasonable doubt.
DESERTION
In the case of Bipinchndra Jai Singhbai v. Prabhavati the court explained the meaning of desertion. It held that if a spouse abandons the other in a state of temporary passion, for example, anger or disgust without intending permanently to cease cohabitation, it will not amount to desertion. It further held that for the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely i) the factum of desertion and ii) the intention to bring cohabitation permanently to an end. Similarly two elements are essential so far as the deserted spouse is concerned, (i) the absence of consent; and (ii) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid.
According to section 13(ib), if the other party has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petitioner, then it will be a valid ground for the divorce under Hindu Marriage Act, 1955.
In a case of Sau Varsha v. Parvin Patil it was found that mere separate residence by one party, per se, would not amount to desertion, the other party needs to establish animus deserendi.
Further a wife leaving the matrimonial house and going to her mother at the insistence of the mother-in-law in order that it may cool off and restore husband’s temper was held not to be in desertion. This was found in the case of Snehlata Seth v. K.K. Seth
CONVERSION
According to clause (ii) of Section 13 of Hindu Marriage ACT, 1955, if a respondent has ceased to be a Hindu by way of conversion, then it becomes a valid ground for the petitioner to apply for the divorce. However tWO conditions are necessary before a divorce can be granted on the ground of conversion, these are:
- Respondent must have been ceased to be a Hindu and
- He must have been converted to another religion.
In the case of Chandrashekara v. Kulndaivelu, it was held that ceasing to be a hindu is hardly material except in the context of conversion. Further mere losing faith in one’s religion will not lead to a fact that a person has converted into another religion.
RENUNCIATION OF WORLD
The divorce may also be granted if the respondent has renounce the worl by entering into a religious order. However two conditions must be satisfied:
- the respondent should have renounce the world and
- he should have done this by entering into a religious order.
INSANITY
Insanity is also one of the ground for divorce. According to section 13 clause (iii), if the respondent has incurably been of unsound mind, or has been suffering from such mental disorder to the extent that the petitioner cannot reasonably be expected to live with the respondent, then it becomes a valid ground for the divorce.
In the case of Ram Narayan v. Rameshwari, the supreme court has held that in schizophrenic mental disorder the petitioner should not merely prove the said mental disorder but should also prove that on account of such disorder the petitioner could not reasonably live with the respondent.
“Mental disorder” – the term mental disorder has been defined in the Explanation (a) of the said section as mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia.
VENEREAL DISEASE
Venereal disease in order to be a ground for divorce would qualify that it must be in a communicable form.
PRESUMPTION OF DEATH
According to section 13(vii), if the respondent has not been heard alive for a period of seven years or more than seven years by the persons who would have heard if he would have been alive then it will be presumed that such person is dead, and the ground for divorce becomes operative.
Burden of proof – the burden to prove that such a person is not dead but alive is on the person who affirms it.
WIFES SPECIAL GROUND FOR DIVORCE
The above mentioned grounds were for both wife and husband. However section 13 also provides some of the grounds specially for women. These are:
- Pre-Act polygamous marriages
According to this, any wife of a polygamous marriage can seek divorce provided that at the time of the presentation of the marriage at least one or more wives must be alive. The Hindu Marriage Act did not rightly render the pre-Act polygamous marriage void, but it provides some relief of divorce to any wife of polygamous marriage.
- If the husband is guilty of rape, sodomy or bestality since the solemnisation of marriage – “Sodomy or Bestality” – it is committed when one has carnal intercourse against the order of nature with any man, woman or animal.
- Non-resumption of cohabitation after a decree of maintenance
According to this if a wife has obtained a decree of maintenance under the law in force and cohabitation between the parties has not been resumed for one year or upwards after the decree order is passed then the wife has a valid ground to sue the husband for divorce.
In the case of Swaraj Garg v. K.M. Garg it was held that where there is a breakdown of the marriage, this in itself should be a cause for which divorce should be available under the law. It would then be immaterial to inquire as to which of the part was at fault.
- Repudiation of marriage
If the marriage was not solemnized before a woman has attained the age of fifteen years and before attaining the majority (18 years) she has repudiated such marriage, then the ground for divorce will be operative exclusively for the wife.
DIVORCE BY MUTUAL CONSENT
Apart from the grounds available under section 13 of HMA, 1955, according to section 13B a divorce can also be obtained by mutual consent. However there are certain prerequisites attached to it. These are:
- The petition may be presented by both the parties
- Parties must be living separately for a period of one year or more.
- They should mutually agree to not live together.
If the above grounds are satisfied then there can be divorce by mutual consent.
However a cooling period has been provided under this section which is a period of interregnum which is intended to give time and opportunity to the parties to reflect on their move of divorce by mutual consent. The parties in this period may have second thoughts to their step. In the case of Hitesh Bhatnagar v. Deepa Bhatnagar it was held that one of the parties may withdraw his/her consent at any time before the passing of decree, even after expiry of 18 months from the date of filing of petition.
CONCLUSION
To conclude it can be said that Hindu Marriage Act, 1955 provides a very detailed provisions as to the grounds of divorce for both the husband and the wife. However seeing the complexity of today’s notion of institution of marriage, the amendments are again required to enhance the definitions of some words like cruelty, adultery, etc. The Act also provides some of the special grounds exclusively for wife in order to take divorce. I believe this area should be re-think upon because some of the grounds are also misused by women in order to get the order in their favour. The men today are also facing serious issues in their marital relationship, and hence law should again be revised keeping in view the gender neutrality not the vulnerability.
Reference:
Family Law I, Poonam Pradhan Saxena, 1st edition, 2021
Modern Hindu Law, Dr. Paras Diwan, 25th edition, 2021
Vishwanathan Sitaram Aggarwal v. Sarla Aggarwal AIR 2012 SC 2586
Kaushalya v. Mast Ram 1981 P. & H 63
Bhagat v. Bhagat, 1994 SC 710
Praveen Mehta v. Inderjeet Mehta, 2002 SC 2582
Neelam Kumari v. Gurnam Singh, 2004, P. & H. 9.
Sau Varsha v. Parvin Patil (2009) I DMC 649 (Bom).
Snehlata Seth v. K.K. Seth AIR 1986 Del 162
Chandrashekara v. Kulndaivelu 1963 SC 185
Ram Narayan v. Rameshwari 1989 SC 149