Mr. Abhishek Singh, a 1st year student of Banaras Hindu University, Varanasi.

Abstract-

This article delves into the intricate landscape of Hindu divorce laws and the challenges associated with solemnizing marriages abroad within the framework of Hindu traditions. It provides a thorough examination of Hindu divorce laws, shedding light on the historical evolution, key principles, and recent legislative amendments and also deals with the provisions dealing with marriages taking place abroad. At the eagle eye view, the article traces the legislations available and aims to provide a broad view on the Indian legislative intent on the subject matter of divorce.

Keywords- divorce, fault, consent.

Introduction

In India, the word “Hindu” and its derivation from the Sanskrit word, “Sindhu” is well known along with its civilizational history is well documented. However, after development of modern laws, in the background of British rule, the term started gaining its inclusive meaning which it currently have. The widest definition of the term was defined under Article 25(2)(b) as “Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.” Subsequent to this, personal laws were framed which broadened the term to include any other person domiciled in the territories who is not a Muslim, Christian, Parsi or Jew by religion. Keeping in mind, the wide definition provided to the word and to resolve the inevitable conflicts between customs and traditions of incorporated units with regards to marriage, Special Marriage Act,1954 and Hindu Marriage Act, 1955 was enacted. However, these laws were dealing with marriages solemnized in India, thereby, to deal with marriages solemnized in abroad The Foreign Marriage Act, 1969 was enacted. These laws deals with every aspect of marriage from its coming into existence to its annulment on several grounds, one of which is Divorce.

“Divorce”: Evolution and Theories of Divorce

Traditionally in textual Hindu Law, the concept of ‘marriage’ was given a sacrosanct status and question of breaking off the marriage union was never accounted for. However, Parasara and Narada, two great Smritikaras laid down five conditions which provided women with a choice of taking another husband for herself. These conditions were-

• Where the husband has been found lost.
• Died
• has renounced the world.
• Has become impotent.
• Has become an outcast due to Social stigma.

However, its difficult to know the extent to which these laws were followed. One of the most notable step for the evolution of right to divorce was enactment of Hindu Remarriage Act, 1856 which gave Hindu widows a legal right to remarry. Building on these laws, after Independence, Parliament enacted Hindu Marriage Act, 1955 and Special Marriage Act, 1954 which not only included the already provided right to remarry to Hindu women but also provided both the member of the union with the right to end their marriage on grounds including cruelty, adultery and others. Thereby, with societal change and awareness, spouses were slowly given the right to decide their partners and to end relationships in which they are unhappy. These changes provided scope for several theories of divorce to develop.

Some of the theories are –

• Fault theory– This theory is based on the principle of fault as it expects one spouse to be responsible for matrimonial offences and the other spouse at the receiving end, can only ask for divorce and if both of the spouses are liable, then none of them can seek the remedy concerned.
• Mutual Consent– This theory is based on the principle of freedom to choose as if both of the spouses mutually decides to end the marriage then they can follow the concerned procedure to end it without the need of any matrimonial offence. This theory is however, been criticized as its an undeniable truth that life have lots of hardship and none of the relationship is exception to it and if couples decide to end their marriage on even minor inconvenience, it can lead to breakdown of social fabric of society as soon hasty divorces would follow.
• Irretrievable breakdown– The latest incorporation is of theory of Irretrievable breakdown in matters of divorce in Indian Family Laws. This theory advocates for dissolution of marriage in conditions when they are fallen to a condition where they are beyond repair. It is expected that when the matrimonial relationship is damaged beyond repair, making spouses to stay with each other would not be anything other than forcing them to commit to a relationship, which no longer commands their respect.

Marriage laws, specifically laws applicable on Hindus, incorporate these several theories and on a brighter note, tries to strike a balance between these competing theories.

Laws dealing with Divorce rights of Hindus in India

Laws dealing with the marriage rights, also provides grounds on which divorce can be granted. The concerned laws are as follows-

1. Hindu Marriage Act,1955 – The Act deals with the marriage and divorce between two Hindus, i.e. both husband and wife should be within the definition of the term “Hindu” as given in section 2 (3) of Hindu Marriage Act, 1955 and is based on the theory of fault.
2. Special marriage Act, 1954 – The Act deals with the inter-religion marriage between Hindu and member of other religion. However, any one can register their marriage under the concerned Act. For the purpose of understanding the grounds of divorce, qwe qwill astudy the concerned sections of Hindu Marriage Act, 1955.

• Section 13- 15 deals with the subject matter of Divorce and after the amendment in 1976, grounds for divorce is similar to grounds mentioned in section 10 which deals with judicial separation so as to provide an alternative to the spouses and a chance to rethink their decision.
• Section 13 is the section which provides grounds on which divorce can be provided to the concerned couple as the Act necessitates that remedy of divorce can be provided only on the grounds mentioned and if other reasons are there, generally other alternatives are provided.

• Grounds mentioned in Section 13(1) are –
  • Adultery –  Supreme court in Joseph Shine v. Union of India has decriminalized adultery however, it is still considered as a matrimonial offence and provides a good enough ground for divorce. Adultery as defined by the Act, refers to having sexual intercourse with any other person other than his or her own spouse. The section is wide enough to include sexual intercourse between husband and his second wife, if his second marriage is included within the purview of Bigamy.

Elements of Adultery-

• sexual intercourse by spouse with member other than their spouse, of opposite sex whether married or unmarried.
• Intercourse should be voluntary and consensual.
• During the commission of adultery, marriage should be in existence.
• Circumstantial evidences to prove the allegations.

However, the onus is of probabilities and not of beyond reasonable doubt and courts have from time-to-time changed the scope of adultery to include new actions and exclude old ones on a case-to-case basis so as to maintain the sanctity of the marriage.

• Cruelty– It includes mental and physical cruelty. while physical cruelty refers to physical torture, mental torture is as broader term to include lack of kindness and affection towards the other spouse. As in Balram Prajapati vs Susheela Bai, petitioner contended that the behaviour of his spouse was aggressive and harmful towards his family. Court on the basis of circumstances decided that it is within the purview of mental cruelty. Courts through its various judgments have included grounds such as false accusation of adultery to not respecting your wife in front of family and friends.
• Desertion- Desertion which refers to abandoning the partner after the marriage for a Continuous period of not less than Two years just preceding the petition. Earlier it was just a ground for judicial separation however after the amendment of 1976 it was made a ground for divorce. Supreme Court in Malathi Ravi vs Bv Ravi(2014) decided that for the passing of a decree of divorce it is essential that the required intention should be proven on the part of the individual alleged for the matrimonial offence that there was an intention to break the marriage. Onus to prove the allegation lies on the petitioner. 
  • Essentials
    • permanent abandonment of the other spouse
    • rejection of the obligation of marriage.
    • without any reasonable justification.
    • No consent of another spouse.
• Conversion of religion-  Converting into any other religion by spouse without the consent of his/her spouse can be a viable ground for the other to ask for divorce. 
• Unsound mind or mental disorder-Insanity as a ground for divorce makes continuously or intermittent unsoundness of the mind of the spouse or his/her suffering from the mental disorder which makes the living with them next to impossible. As in Vineet Saxena v. Pankaj Pandit was observed by the court that the wife was not informed about the medical condition of schizophrenia while getting married.Therefore, she was entitled to be given divorce on the ground of Unsoundness of Mind or mental disorder.
  • One limitation on making insanity a ground for divorce is that due to that mental condition living with the spouse is not possible and if the court is of opinion that the unsoundness of the mind or mental disorder is not of such intensity that living with them would be impossible or harmful, The court can decide to not provide remedy.
• Venereal diseases in a communicable form-If one of the spouse is suffering from venereal diseases such as leprosy which are communicable in nature provides a viable ground for divorce as living with the infected spouse would be harmful for their health.
• Renunciation-In this, one of the spouse decides to renounce the world and walk on the path of God. Basically, they left the society and thereby, are not going to perform their martial duty and in the eyes of the Civil law they are dead and it provides a valid ground for divorce.
• Presumption of death- When the individual is not heard for continuous 7 year by their family and friends, they are presumed to be dead and is a valid ground for divorce. The burden on the proof lies on the person alleging the absence. However just because a person is not heard for continuous 7 years he can’t be considered as dead as other circumstances such as age of the person, circumstances revolving around his absence should be considered as stated in S.S. Dhanoa v. State of Punjab.
• Failure to obey decree of restitution of conjugal rights-One another ground for divorce is failure to comply with the decree awarded by the court for the restitution of the conjugal rights. Failure to comply with the concerned decree provide good enough ground for filing of divorce.
• In addition to the above mentioned grounds, there are also some grounds which are available only to women which are –
  • Bigamy-If husband has more than one wife, then his wife can file for divorce subject to the condition that his other wife should be alive at the time of petition.
  • Rape, sodomy or bestiality– Rape refers to unwanted, forced or non-consensual sexual intercourse. Sodomy refers to anal or oral copulation with another person or with an animal while bestiality refers to sexual intercourse with an animal. The commission of these offences must be proved by the wife either by witnesses as to fact or by evidence.
  • Decree or order of maintenance-This ground was added by the amendment of 1976, according to which, if a decree of maintenance under section 18 of Hindu marriage act, 1955 or an order of maintenance under section 125 of code for criminal procedure, 1973 is passed against the husband, and there is no  cohabitation between the spouses, then it provides a sufficient ground to the wife to claim divorce.
  • Repudiation of marriage-The amendment of 1976 also provided wife within option to repudiate their marriage if at the time of marriage she was under the age of 15 years subject to the condition that she can only repudiate the concerned marriage after attaining the age of majority which is 18 years.

• These mentioned grounds depict the theory of fault, however section 13B deals with the theory of divorce through mutual consent.
  • Divorce through mutual consent –It was added through amendment of 1976 and is retrospective in nature, it can be contended by the couples on the grounds that they are living separate from each other for more than 1 years and unable to resume their marriage. This section makes provision according to which after filing of the petition the couples would have to wait for six months and within eighteen months of the original petition, they can bring another resolution for dissolution of the marriage and if not filed code will presume that they had withdrawn the petition for divorce.
• Irretrievable breakdown of marriage as a ground of divorce –
  • Judiciary through it’s interpretative power have included irretrievable breakdown of marriage as a ground for divorce, it is observed that if a marriage is damaged beyond repair and it is at such a stage that asking the couple to continue their marriage would be nothing more than forcing them to undergo a mental trauma, so for the purpose of providing them a remedy, divorce can be granted.
• It can be observed that with changing time, different theories of divorce was incorporated to according to  the sensitivity of the society as the Act was framed on the theory of fault but as the society progressed theory of breakdown of marriage was also included by the court but still these are applicable only on the marriages solemnised in India. So, to govern the marriages solemnized abroad Foreign Marriage Act of 1969 was enacted.
• Foreign Marriage Act,1969–
  • The objective of the Act is to solemnize the marriage between the foreigners and the Indian citizens residing in foreign countries and consists of the provisions exclusive of other Acts and has eased some of the disperancies which could not be dealt by other available family laws.
  • Solemnization of marriages under the Act– Section 4 of the act deals with the conditions necessary for the solemnization of marriages under the Act which is more or less same to the conditions mentioned under other family laws with a mandatory condition that atleast one of the party should be an Indian citizen.
  • These conditions given under section 4 are – 
    • Neither party has a spouse living.
    • Neither party is idiot or lunatic.
    • Both of them are not minor in age and capable of giving consent.
    • Parties are not within the purview of degree of prohibited relationship. Subject to the provision that if any personal law or custom permits marriage between them, then they are allowed to marry.
  • Subject to the conditions aforementioned, Section 5 of the act provides that the parties should give a notice to the Marriage Officer of the district, in which atleast one of them, are resident for at least thirty days immediately preceding, prior to the filing of the notice. 
  • After getting the notice,  Marriage Officer checks the conditions mentioned under section 11 of the Act to check whether the marriage should be solemnized or not and if not, then he will give the reasons behind it, in writing. Section 11 deals with the grounds on which marriages can be refused to be solemnised which are-
    • If any local law of the foreign country prohibits it.
    • If solemnizing the marriage would be inconsistent with the international law or comity of the nation.
  • And if the couple is not satisfied with the answer or is aggrieved, then they may appeal to the central government regarding the decision of the marriage officer.
  • Notice of the marriage–After fulfilment of the aforementioned conditions, notice of the intended marriage is issued and the marriage officer is under the statutory duty to maintain the Marriage Notice Book under section 6 of the Act.
  • Publication of Notice -Marriage officer should publish the notice as under section 7 of the Act at a prominent place in his office as well as server places of the residence of the couple concerned.
  • Objection to marriage –Section 8 of the Act allows anyone to object to the marriage with a written statement and signature on the grounds mentioned under Section 4 of the Act. The Marriage Officer is bound by the Act to take note of the objection in his Marriage Notice Book. If after the expiry of the period, no objection is raised, marriage can be solemnized under section 9 of the Act and if, objection is raised, then marriage can’t be solemnized until the objection is resolved.
  • Place and form of marriage –Section 13 of the act says that the marriage should be conducted in the presence of marriage officer and shall be solemnized at his residence in the presence of three witnesses with the open doors between the prescribed hours.
  • Certificate of marriage-  After declaration of marriage, under section 14, marriage officer will issue a marriage certificate. This certificate after being signed by the parties and three witnesses concerned, will be considered as a conclusive evidence for proving that marriage has been conducted according to the provision of the Act and is valid.

Conclusion– 

Summing it up, laws dealing with marriage and divorce though being different, are similar in essence as they provide same grounds for divorce as already mentioned. Initially the Act were based on the theory of fault, however, as with changing societal dynamics amendment of 1976 was done, which brought many fundamental changes as it included section 13B which incorporated theory of mutual consent. However, there existed a lacuna as there is as there is a necessary condition that divorce can be granted only on the grounds mentioned in the relevant Acts, so as to remove this anomaly judiciary created the escape of irretrievable breakdown of marriage so as to provide the remedy however legislature is still silent on it and there’s a need that legislature should also cement it through an amendment so as to provide a way for a respectable divorce. Solemnizing of marriages taking abroad iIs dealt by foreign Marriage Act of 1969 and it provides extensive checks and balances to provide a deterrent to fraudulent marriages and other concerned offences.

References-

• S.S. Dhanoa vs Union Of India And Ors 1991 SCR (3) 159.
• Ammini E.J. v. Union of India AIR 1995 Ker 252.
• Hindu Marriage Act 1955, Indian parliament, No. 25 of 1955
• Special Marriage Act,1954, Indian parliament, No. 43 of 1954
• Foreign Marriage Act, 1969, Indian parliament, No. 33 of 1969 
• This article was originally published on ipleaders, link of which is https://blog.ipleaders.in/adultery-and-divorce/
• This article was originally written by rachit garg, published on ipleaders, link of which is https://blog.ipleaders.in/grounds-divorce-the-hindu-marriage-act/ 
• Tapan Kumar Chakraborty vs Smt. Jyotsna Chakraborty, AIR 1997 Cal 134.
• Bhagwan Raoji Dale vs Sushma Alias Nanda Bhagwan Dale, 1999 (5) BomCR 851