This Article has been written by Ms. Shamyana Parveen, a 5th Year B.A.LL.B. Student of Bikash Bharati Law College, Kolkata.

Abstract:

 Hindu marriage is traditionally considered to be a sacred and permanent bond, and divorce was not recognised as a legal remedy until the enactment of the Hindu Marriage Act, 1955. The Hindu Marriage Act, 1955, provides for both fault-based and non-fault-based grounds for divorce, such as adultery, cruelty, desertion, conversion, unsound mind, disease, mutual consent, irretrievable breakdown, and protracted separation. 

Introduction:

The Hindu Marriage Act, 1955, regulates the registration of marriages, the restitution of conjugal rights, the judicial separation, and the effects of divorce on related matters such as maintenance, alimony, custody, and inheritance. The Supreme Court of India has recognised ‘irreconcilable differences’ as a ground for divorce under Hindu law, in cases where the marriage has broken down beyond repair and there is no possibility of reconciliation. The protection of marital privacy is a contentious issue in India, as there is no clear legal definition or recognition of the right to privacy in the context of marriage. The Indian Penal Code, 1860, criminalises adultery, but only if the husband of the adulterous woman files a complaint. The Supreme Court of India has recently declared the criminalization of adultery as unconstitutional, as it violates the right to equality and dignity of women.

 The protection of marital privacy involves the issues of domestic violence, marital rape, dowry, and honour killings, which are prevalent in India and often go unreported or unpunished. The Protection of Women from Domestic Violence Act, 2005, is a civil law that aims to provide relief and protection to women who are victims of domestic violence, including physical, sexual, emotional, and economic abuse. However, marital rape is not explicitly recognised as a criminal offence in India, and there is a lack of awareness and sensitivity among the law enforcement agencies and the judiciary regarding the issue.

 The Hindu Marriage Act, 1995:

The Hindu Marriage Act, 1955 was drafted to provide a uniform law in the case of marriage to Hindus, Sikhs, Jains, and Buddhists. It is applicable to all of India’s permanent residents who’re not Muslims, Parsis, Jews or Christians.

Grounds For Divorce Under Hindu Law:

Hindu law governs divorce through a system of laws that have evolved and changed significantly through time. The historical background and development of divorce laws in India show the intricate interplay between legislative enactments, personal laws, and religious practices. Hindu law has historically drawn its concepts and regulations from the Vedas, Smritis, and Dharmashastras, among other early Hindu writings. These writings reinforced the sacramental essence of marriage and discouraged divorce by establishing it as a sacred and permanent bond. The dissolution of marriage was therefore seen as a rare and unfavourable event, and divorce was not recognised as a legal remedy.

But as society changed as a result of things like industrialisation, urbanisation, and greater exposure to other cultures, there was an increasing acceptance of the necessity for divorce as a valid legal option. In response, the Indian legal system introduced statutory regulations to control divorce and give people a legal framework within which to seek the dissolution of their marriages.

Fault-Based Grounds For Divorce:-

Fault-Based Grounds for Divorce are causes or behaviours that, in accordance with Hindu Law, can be used as justification for requesting a divorce. Cruelty, infidelity, deserting one’s spouse, and conversion to a different faith are some of these grounds. These actions or behaviours are regarded as serious breaches of the marriage contract that cause an irreparable breakdown and support the dissolution of the marriage.

• Cruelty: Section 13(1)(ia) of the Hindu Marriage Act of 1955, according to this clause, a divorce can be requested if one spouse has cruelly treated the other. Cruelty is defined as any action that causes a victim bodily or mental anguish to the point that it is untenable for the victimised spouse to maintain the marriage. Physical, verbal, and emotional abuse, harassment, ongoing humiliation, and threats against the spouse’s life or well-being are a few examples of cruelty.
• Adultery: Section 13(1)(i) of the Act, permits divorce in the event that one spouse has an extramarital affair. Adultery is defined as one spouse willingly participating in a sexual relationship outside of marriage without the other spouse’s agreement or knowledge. By betraying trust, creating emotional suffering, and undermining the faithfulness anticipated within the marriage, adultery can have an adverse effect on a marriage.
• Desertion: Section 13(1)(ib) of the Act, allows for a divorce if one spouse has abandoned the other for a continuous period of at least two years. Desertion is defined as when one spouse leaves the other without a good reason or with the goal of coming back, which causes the marriage to end. Desertion needs evidence of the spouse’s desire to desert as well as the absence of permission or a plausible defence.
• Conversion to Another Religion: Section 13(1)(ii) of the Act, permits divorce in cases where one spouse has converted to a different faith and has ceased to be a Hindu. Without the other spouse’s permission, changing one’s faith is seen as a major modification to the marriage, which is a ground for divorce.

Non-Fault-Based Grounds For Divorce:-

Non-Fault-Based Grounds for Divorce are situations when a divorce is requested without assigning blame or fault to either spouse. These grounds centre on the parties’ mutual agreement to dissolve their marriage and the realisation that the marriage has irretrievably broken down.

• Mutual Consent: Section 13B of the Hindu Marriage Act of 1955: This clause permits divorce by permission of both parties. The voluntarily decision by both spouses to end their marriage and the marital tie is referred to as mutual consent. To dissolve the marriage, both parties must sign a joint petition with the family court indicating their common desire to divorce. If the court is convinced that the consent is sincere and that there was no compulsion or undue influence, it will approve the divorce.
• Irretrievable Breakdown of Marriage: The Hindu Marriage Act does not contain any provisions that specifically address the irretrievable breakup of a marriage, but the Supreme Court of India has recognised it as a legal basis for divorce. Marriage that has irrevocably broken down to the point that reconciliation is impossible is referred to as having an irretrievable breakdown. Courts may take into account the overall situation, protracted marital strife, a lack of emotional intimacy, and the incapacity to carry out marital responsibilities as signs of an irretrievable collapse of marriage.
• Long Separation Period: According to Section 13(1)(ib) of the Hindu Marriage Act of 1955, divorce is possible if the couple has been apart for a continuous period of at least two years. A lengthy period of separation is when partners live apart for a protracted period of time without any hope of reunion. Both spouses must have lived apart voluntarily for a continuous length of time without cohabiting or picking up their marriage again.

What Is Protection Of Marital Privacy Under Hindu Divorce Laws?

Protection of marital privacy is a concept that refers to the right of married couples to enjoy their intimate and personal relationship without any interference or intrusion from the state, society, or other third parties. It is also related to the right to confidentiality and non-disclosure of the details of one’s marital life.

Under Hindu divorce laws, protection of marital privacy is not explicitly recognised as a ground for divorce, but it may be relevant in some cases where the spouse has violated the privacy of the other spouse. For example, if the spouse has disclosed the sexual or medical history of the other spouse to the public, or has installed hidden cameras or devices to spy on the other spouse, or has forced the other spouse to undergo medical tests or procedures without consent, it may amount to cruelty or mental harassment, which are grounds for divorce under Section 13 of the Hindu Marriage Act, 1955¹. Similarly, if the spouse has interfered with the other spouse’s personal choices, such as religion, profession, or education, it may also constitute cruelty or desertion, which is also, grounds for divorce under the same section.

However, protection of marital privacy is not an absolute right, and it may be subject to some reasonable restrictions or exceptions. For instance, if the spouse has committed adultery, or has contracted a venereal disease, or has converted to another religion, or has been guilty of rape, sodomy, or bestiality, the other spouse may have a valid reason to seek divorce, and the court may require the disclosure of evidence or information to prove these grounds¹². Moreover, if the spouse has been subjected to domestic violence, dowry harassment, or any other form of abuse, the other spouse may have a right to seek protection, relief, or compensation from the court or the authorities, and the court may order the production of documents or witnesses to substantiate these claims³.

The protection of marital privacy is a legal and ethical issue that involves the rights and obligations of spouses in relation to their personal and intimate matters. Marital privacy can be seen as a subset of the broader right to privacy, which is recognized as a fundamental right under Article 21 of the Indian Constitution.

Marital privacy can be invoked to protect the autonomy and dignity of married couples, especially in matters such as contraception, abortion, sexual orientation, and domestic violence. However, marital privacy can also be misused to justify the exclusion of state intervention in cases of marital rape, adultery, or dowry harassment. Therefore, the scope and limits of marital privacy are often contested and debated in the courts and the society.

Some of the landmark cases that have shaped the jurisprudence of marital privacy in India are:

K.S. Puttaswamy v. Union of India (2017): This was a landmark judgment by a nine-judge bench of the Indian Supreme Court that unanimously declared that the right to privacy is a fundamental right under Article 21 of the Indian Constitution. The court overruled its previous judgments that had denied the existence of such a right and held that privacy is an intrinsic part of the right to life and liberty. The court also recognized the various facets of privacy, such as informational privacy, bodily privacy, and decisional privacy, and laid down the principles for balancing the right to privacy with other competing interests1.

Joseph Shine v. Union of India (2018): This was a historic judgment by a five-judge bench of the Indian Supreme Court that decriminalized adultery by striking down Section 497 of the Indian Penal Code, 1860. The court held that the provision was unconstitutional as it violated the right to equality, dignity, and privacy of women and men. The court also rejected the argument that adultery was a threat to the sanctity of marriage and held that marital privacy cannot be used as a shield to deny the agency and autonomy of the spouses.

These cases illustrate the evolving and dynamic nature of marital privacy and its implications for the rights and responsibilities of married couples in India. Marital privacy is not an absolute or static concept, but a relative and contextual one that depends on the values and norms of the society and the constitution. Therefore, marital privacy requires a constant and careful balancing of the interests of the individual, the family, and the state.

Conclusion:Therefore, protection of marital privacy under Hindu divorce laws is a complex and nuanced issue, and it may depend on the facts and circumstances of each case. The court may have to balance the interests of both the spouses, as well as the public interest, while deciding on the matters of divorce and related issues.

People may handle the divorce process more effectively by looking at alternative conflict resolution techniques and raising awareness about how crucial it is to seek legal remedies in troubled marriages. To guarantee that those seeking divorce under Hindu Law have access to a just and compassionate procedure that takes into consideration their particular circumstances and supports their well-being, it is ultimately crucial to match the legal system with shifting society factors.

Reference:

• This article was originally written by Charchit Pathak, published on Lawyers Club India website. The link for the same is herein. https://www.lawyersclubindia.com/articles/grounds-for-divorce-under-hindu-law-15908.asp.
• This article was originally written by Parshav Gandhi, published on IPleaders. The link for the same is herein. https://blog.ipleaders.in/grounds-divorce-the-hindu-marriage-act/.
• This article was originally written by Chhavi Priya, published on Legal Service India E-Journal. . The link for the same is herein. https://www.legalserviceindia.com/legal/article-6822-divorce-under-the-hindu-marriage-act-1955.html.