Introduction
The Hindu Marriage Act defines “Divorce as a dissolution of Marriage”. Section 13 in The Hindu Marriage Act, 1955 says that a marriage can be dissolved by a decree of divorce. Before The Hindu Marriage Act, 1955, the concept of dissolution of marriage was a little hazy as marriage is considered as an indissoluble union of husband and wife. Under Manu, it is given that a wife cannot be released from her husband in any way (either by sale or by abandonment). But it conflicts with Arthasastra of Kautilya as, under Arthasastra of Kautilya, marriages can be dissolved on the ground of mutual enmity. If both the parties agree and mutually consent to it, then it can be dissolved.
During the British period, Britishers helped us in alleviating social abuses and evils that existed at the time. For the first time, divorce was introduced to Hindus by Section 13 of the Hindu Marriage Act, 1955. This act brought a dynamic and vital change in society. A divorce is a judicial act, when a competent court passes a decree of divorce, the parties are no longer together as husband and wife.
Theories Of Divorce
Under Hindu Law, four different theories are considered for divorce. These four theories are as follows:
- The frustration of Marriage Theory
- Offense or Guilt or Fault Theory
- Mutual Consent Theory
- Irretrievable Breakdown Theory
- The frustration of Marriage Theory: Under this theory, if any of the spouses is suffering from
- Mental Disorder
- Leprosy
- Venereal disease in a communicable form, or
- Renounces the world
- Disappeared for a long time
- Changes his/her religion
In such a case, the other spouse has a right to end the marriage under Hindu Marriage Act, 1955.
- Offense or Guilt or Fault Theory: Under this theory, if any of the spouses commits a matrimonial offense that includes
- Adultery
- Desertion
- Cruelty
- Rape
- Sodomy
- Bestiality
- Refusal to obey court’s order to pay maintenance to the wife
- Marrying an underage person
In such a case, the other spouse has ha right to end the marriage under Hindu Marriage Act, 1955.
- Mutual Consent Theory: Under this theory, both parties agree mutually to end their marriage amicably for the good. Both the parties make a joint petition to the court for divorce on the ground that they can’t live together anymore and if they do, their life would be spoiled and result in moral degradation.
Section 13B of the Hindu Marriage Act, 1955 talks about divorce by mutual consent. A divorce can be granted under Section 13B on the following grounds:
- If they both have not been able to live together for a year or more
- There is mutual agreement that they want to dissolve the marriage
In such a case, the court can grant them divorce under Hindu Marriage Act, 1955
- Irretrievable Breakdown Theory: Under this theory, the breakdown of marriage means “such failure in the matrimonial relationship or circumstances so adverse to that relationship that no reasonable probability remains for the spouse to live together as husband and wife”.
Section 13C, which was included by the Marriage Law Amendment Bill, 2013 talks about divorce on the grounds of Irretrievable Breakdown Theory. The court can grant a divorce unless they are satisfied that the marriage has broken down irretrievably, which means the couple has to prove that they have been living apart for three years or more immediately after the preceding of the petition.
Grounds For Divorce Under Hindu Marriage Act
The various ground on which a decree of divorce can be granted are as follows:
- Adultery
- Cruelty
- Desertion
- Conversion
- Mental Disorder
- Leprosy
- Venereal Disease
- Renunciation
- Presumption of death
Adultery
Adultery under Section 13(1) of the Hindu Marriage Act, 1956, is consensual sexual intercourse between a married person and a person of other sex, whether married or unmarried, not being the other spouse. The concept of adultery was included in the Marriage Law Amendment Act, 1976. The essentials of adultery are as follows:
- It should be consensual
- The marriage should be subsisting at the time of the act
- One of the spouses should be involved in intercourse with the other sex, not being the other spouse.
- There should be enough circumstantial evidence.
In Tripat v. Bimla, 1959, it was held that under adultery, circumstantial evidence is enough. The proof need not be too direct as direct evidence is rare and not necessary.
Cruelty
Cruelty under Section 13(1)(i)(ia) of the Hindu Marriage Act, 1956, is a course of conduct of one spouse that adversely affects the other. Cruelty can be both mental and physical. Under physical cruelty, the fact and degree are questioned. Whereas, under mental cruelty, the nature and the impact of treatment are questioned. Cruelty causes reasonable apprehension in the mind of the spouse, that the other spouse is not safe for him/her to continue the matrimonial relationship. Under mental cruelty, it is very difficult to establish direct evidence as it is a matter of interference to be drawn from the circumstances of the case. Some instances of mental cruelty are as follows:
- False charge of unchastity, venereal disease, impotence.
- Marrying another woman
- Humiliation in public
- Abortion without the consent of the petitioner
- Causing injury to people who are close to the petitioner
- Drunkenness leads to the neglection of the family
In Dastane vs. Dastane, 1975, Supreme Court said that cruelty must be of such a character as to cause danger to life, such a type of reasonable apprehension is a higher requirement in cruelty.
Desertion
Desertion under Section 13(1)(ib) means permanent abandonment by one spouse without any reasonable justification. It also includes the willful neglect of the other spouse. When a person withdraws his/her obligation from the matrimonial duties, then it comes under desertion. Once desertion is established, there is no obligation on the deserted party to appeal to the deserting spouse to change their mind. Essentials of desertion are as follows:
- Permanent abandonment
- No reasonable justification
- The absence of consent
- Rejection of the obligation of marriage
In Smt. Snehlata Seth vs. Kawal Krishna, 1986, the Delhi High Court held that if the wife left the matrimonial home at the instance of mother-in-law so that husband’s mood is restored, that would not amount to any desertion.
Conversion
Conversion under Section 13(1)(ii) means when either one of the spouses relinquishes one’s religion and adopts another religion. Under such an act, the divorce can be granted but if both the spouses relinquish their religion, then none of them can invoke this aid. Under conversion, the spouse has to prove the following point:
- The other spouse ceases to be a Hindu
- The other spouse has accepted some other religion
In Sarla Mudgal vs. Union of India, 1995, Supreme Court discussed the issue of bigamy and said the second marriage after conversion to any other religion allowing bigamy is not valid.
Mental Disorder: Unsoundness of Mind
Mental Disorder is given under Section 13(1)(iii). Earlier the term ‘unsoundness of mind’ only included insanity and schizophrenia but after the amendment of 1976, the term ‘unsoundness of mind’ has been defined to include all sorts of mental cases. To apply for divorce under this ground, the petitioner has to prove the following points:
- The respondent is of unsound mind
- It is incurable
- It is to that extent that the petitioner can’t live with the respondent.
If the above grounds are proved, then the court can grant the divorce to the couple.
In Bhagwat vs. Bhagwat, 1967, it was held that the intention or the motive is not an essential element of cruelty under Hindu Law. The conduct of the act is essential under cruelty.
Leprosy
Leprosy under Section 13(1)(iv) is a disease of the skin that can be transferred from one person to another. To apply for divorce under this ground, the petitioner has to prove only two things which are as follows:
- The respondent is suffering from leprosy
- It is infectious and incurable
If the above grounds are proved, then the court can grant the divorce to the couple.
Venereal Disease
Venereal disease under Section (1)(v) is a communicable disease that is transferred from one person to another. It is not necessary to prove that the disease was transferred to the petitioner. The court can grant a divorce on the ground that it can be transferred. The petitioner has to prove the following points:
- Medical evidence
- It is communicable
If the above grounds are proved, then the court can grant the divorce to the couple.
Renunciation
Renunciation under Section(1)(vi) means, if the person renunciate the world and join some holy sect, then the spouse can apply for divorce, provided he/she must enter into a religious order. Under this clause, the petitioner has to prove the following grounds:
- The respondent has entered some religious order.
- The respondent has renounced the world
If the above grounds are proved, then the court can grant the divorce to the couple.
Presumption of Death
The presumption is given under Section 13(1)(vii). Under this clause, the person is presumed to be dead, if he/she has not been heard of as being alive for at least seven years. The petitioner can seek divorce under this clause, but the burden of proof is on the petitioner.
Wife’s Special Grounds Of Divorce
Besides the grounds mentioned above available to both the spouses, The Hindu Marriage Act, 1955 provides four additional grounds that are only available to the wife under Section 13(2) of the Hindu Marriage Act, these four grounds are as follows:
Pre-Act Polygamous Marriage
Under this clause, a wife can claim divorce if the husband has another wife. Under this section, clear proof of the earlier marriage should be given to the court. The three essentials under this clause are as follows:
- Both the wives should be married to him
- Both the wives should be alive at the time of divorce
- Both the marriages should legally exist
If the above grounds are proved, then the court can grant the divorce.
Rape, Sodomy, and Bestiality
Under this clause, the court can grant a divorce if the husband has been guilty of rape, sodomy, and bestiality. Rape is committed by an individual who had sexual intercourse with a woman against her wishes or without her consent. Sodomy is anal intercourse with a woman against her wishes or without her consent. Bestiality is committed by an individual who had sex with an animal. It is covered under unnatural offenses under Section 377, IPC.
Non-Cohabitation after Maintenance Order
When an order for maintenance of wife under Section 125 of CrPC or a decree for maintenance of wife under Section 18 of Hindu Adoption and Maintenance Act, has been passed against the husband, the wife is allowed to claim for divorce under two conditions:
- If she was living apart
- After passing the decree or order, cohabitation between her and her husband has not been resumed for at least one year or more.
If the above grounds are proved, then the court can grant the divorce.
Repudiation of Marriage (Option of Puberty)
Under this clause, a wife can claim for divorce if the marriage was solemnized before the age of fifteen years. She can exercise this right after attaining the age of fifteen but before the age of eighteen. A wife can claim divorce under this clause if
- At the time of marriage, she was below the age of 15 years
- after attaining the age of 15 years, and before 18 years of age, she has opted for repudiation of such marriage.
If the above grounds are proved, then the court can grant the divorce.
Statutory Provision
- Section 13: Section 13 talks about the grounds on which a person can claim for divorce. These grounds are as follows:
- Adultery
- Cruelty
- Desertion
- Conversion
- Mental Disorder
- Leprosy
- Venereal Disease
- Renunciation
- Presumption of death
Section 13(A) talks about divorce by mutual consent. When both the parties mutually decide that they don’t was to stay together anymore and want to put an end to it, that is known as divorce by mutual consent.
- Section 14: Section 14 says that no petition can be filed within the first year of marriage. That one-year gap is for the couple to solve and sort the issue with each other. However, the court may grant a divorce under exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent.
- Section 15: Section 15 talks about when divorced people can marry again. They can marry again when a marriage has been dissolved by the decree of divorce. If there is a right of appeal and that time has expired without an appeal being presented, or presented but dismissed, then it is lawful for both the parties to marry again.
Landmark Cases
G. Dastane vs. S. Dastane
In this case, the meaning of cruelty and its condonations was held. It was held that cruelty must be of such a character as to cause danger in life. It should be established that there was a reasonable apprehension of danger for one spouse to live with the other. The word ‘satisfied’ means “satisfied beyond a reasonable doubt” and condonation means conditional forgiveness, implying that no further matrimonial offense shall be committed.
Bipin Chandra vs. Prahbavati, 1975
In this case, it was held that the clause of desertion can’t be used without animus deserendi (the intention to bring cohabitation permanently to an end is nothing but the opposite of intention to resume cohabitation). If any case animus deserendi is missing, then divorce on the ground of desertion won’t be granted. The factum of desertion yet alone is not sufficient to prove the ground the desertion.
Rita Nijhawan vs Mr. Nijhawan, 1973
In this case, it was held that the absence of normal sexual relations can constitute cruelty. If a party was incapable of performing the sexual intercourse fully, he would be, in law, deemed to be impotent. The decree of judicial separation was granted in favor of the wife under Section 10(1)(b) of the Hindu Marriage Act, 1956.
N. Bhagwat vs Bhagwat, 1967
In this case, it was held that the intention to be cruel is not necessary if conduct otherwise can be held to be cruel. If future cohabitation is rendered unsafe by ungovernable fits of passion decree would be granted on the ground of cruelty. If any act amounts to cruelty even if the intention is absent, then it would be considered as a ground of divorce.
Sureshta Devi vs Om Prakash, 1992
In this case, it was held that any of the parties at any time till the decree of divorce is passed can withdraw the consent given earlier at the time of filing the petition under Section 13B for Divorce by Mutual Consent. Under Section 13B of the Hindu Marriage Act, 1956 mutual consent to the divorce is a sine qua non for passing a decree for divorce which means mutual consent is important and should continue till the decree of the divorce is passed.
Recent Case Laws
Samar Ghosh vs Jaya Ghosh, 2007
In this case, the legal concept of mental cruelty was discussed. The general rule in all cases of cruelty is that the entire matrimonial relationship must be considered. The effect of the conduct is given more importance rather than its nature, which is of paramount importance in assessing a complaint of cruelty. The plaintiff need not establish actual instances of physical abuse.
Naveen Kohli vs Neelu Kohli, 2006
In this case, the Supreme Court made some recommendations regarding the irretrievable breakdown of a marriage. The conduct has to be considered in the background of several factors such as the social status of the parties, their education, mental condition, customs, and conditions. Talking about mental cruelty, a consistent course of conduct inflicting mental agony and torture constitutes cruelty. It was also held that if marriage between the parties had broken down irretrievably and then there is no point in living together.
Conclusion
The Hindu Marriage Act, 1956 brought divorce under Hindu Law, before this act the concept of divorce was considered too radical as, under Hindu Law, marriage is considered as sacrament bond. The legislature of our country has played a great role to help in a heedful manner and provided justice in every case staying in an abusive and toxic marriage is against our fundamental rights. The laws related to divorce are very liberalized in nature and are changing according to the dynamics of society. There are special laws made considering the upliftment and status of women. The Supreme Court and the Law Commission of India have made various recommendations making an irretrievable breakdown of marriage as a ground for divorce. It is always expected that the Judiciary deals with every case very cautiously as every case is different from the other and should be given utmost importance before delivering any judgment.
Frequently Asked Questions (FAQs)
What is the remedy if a woman has been married off before she turned 18?
A woman whose marriage was performed when she was under 15 years of age can reject the marriage, or “repudiate” it and get a divorce on that ground alone. She can only take the step after turning 15, but before turning 18.
If a woman has been forced into a marriage, such a marriage will be void or voidable?
Such marriages are voidable. If the consent of the complaining party has been obtained by force or by fraud relating to the nature of the ceremony performed, the marriage can be voided.
Can someone get a divorce on stamp paper?
No, you cannot get a divorce on stamp paper. To get a divorce you need to make a proper divorce application in the district family court where your marriage ceremony took place, or you last resided with your spouse, or your spouse is residing at the time of filing for divorce.
Is registration of marriage a necessary ground for the filing of divorce?
No, registration of marriage is not necessary but you should get your marriage registered as your marriage certificate will be helpful and will add value to your divorce case as far as the validity of your marriage is concerned.
Can someone file for divorce on behalf of any other person?
No, the wife and the husband are the only people that can file the case. no one else is allowed to file the case on their behalf.