Grounds of divorce under hindu marriage act,1955

Tripaksha LitigationApril 8, 20241 Comment

INTRODUCTION:

To regulate and codify the laws related to marriage among Hindus, the Parliament of India enacted the Hindu Marriage Act in 1955. It is an important law that governs marriage and divorce among Hindus, Buddhists, Jains, and Sikhs and provides a legal framework for the institution of marriage in these communities. This Act introduced various provisions that define the concept of marriage and addressed the issue of divorce. Under this Act, divorce is defined as the legal dissolution of marriage, and can be sought by a spouse only on the grounds specified in the Act. The Act specifies that the decision to dissolve a marriage is a serious matter. Therefore, it provides other alternatives to divorce, such as judicial separation, i.e. couples are said to live apart but remain legally married.

There are different theories recognized by law:

The Fault Theory – A marriage can be terminated when one spouse is responsible for an offense against the other spouse. The innocent spouse is the only one who can seek this remedy. However, a drawback of this theory is that when both spouses are at fault, neither can seek the remedy of divorce.
The Irretrievable Breakdown theory – This theory holds that the dissolution of marriage occurs due to the failure of the matrimonial relationship. The divorce can be taken by either spouse when both of them are unable to live together. This theory recognizes that marriage is a complex relationship and can break down irretrievably.
The Mutual Consent theory – According to this theory, a marriage can be dissolved by mutual consent of both spouses. If both spouses agree to end the marriage, they can obtain a divorce.

The Hindu Marriage Act governs that marriages among Hindus are based on fault theory of divorce. Section 13(1) of the Act provides the remedy and specifies the grounds on which either spouse can seek a divorce. There are several grounds under this section for seeking divorce and provide a legal framework for individuals who wish to dissolve their marriage. These are as follows:

Adultery:

The term ‘adultery’ refers to voluntary and consensual sexual intercourse between a married individual and another person of the opposite sex, regardless of whether that person is married or unmarried. It is important to note that even if a man engages in sexual intercourse with his second wife while his first marriage is still valid and recognized by law (i.e., in cases of bigamy), it still amounts to adultery. The concept of adultery was added to the Hindu Marriage Act through the Marriage Laws Amendment Act in 1976.

Essentials of Adultery:

One of the spouses involved in the intercourse with another person, married or unmarried, of the opposite sex.
Intercourse should be voluntary and consensual.
At the time of the act, the marriage was subsisting.
There must be sufficient circumstantial evidence to prove the liability of another spouse.

Case laws:

1. Swapna Ghose Vs. Sadanand Ghose

In this case, the wife discovered her husband was in a compromising position with another girl on the same bed, and the neighbor confirmed the husband’s wrongdoing, therefore the wife was successfully able to establish that her husband had committed adultery.

2. Sachindranath Chatterjee Vs. Smt. Nilima Chatterjee

In this case, the petitioner and the defendant were married. After marriage, the husband leaves the wife in his hometown so that she can complete her studies and go to another city for work. He visited twice or thrice a month to meet her. Later he found that his wife commits adultery i.e. she was involved in sexual intercourse with his own nephew, watchman, etc. The plaintiff approaches the court to demand divorce on the ground of adultery and his petition was accepted and the marriage got dissolved.

3. Cruelty:

The Hindu Marriage Act recognizes both physical and mental cruelty as grounds for seeking a divorce. Physical cruelty refers to any act of violence caused by one spouse upon the other, whereas mental cruelty can be more difficult to define. Mental cruelty comprises emotional abuse, verbal harassment, and neglect. Essentially, mental cruelty refers to any behavior or action by one spouse that causes significant emotional distress to the other spouse. While physical cruelty may be more easily identified and proven through medical reports or other forms of evidence. Mental cruelty can be more challenging to establish in court. However, if a spouse can provide sufficient evidence to demonstrate that they have suffered from emotional distress due to other spouse’s behavior, then it is sufficient grounds for seeking a divorce on the basis of mental cruelty.

4. Mental cruelty against Husband by Wife:

Humiliating the husband in front of his family and friends.
Undertaking the termination of pregnancy without husband consent.
Making false allegations against him.
Denial for Martial Physical Relationship without a valid reason.
Wife having affair.
Wife living an immoral life.
The constant demand for money.
Aggressive and uncontrollable behavior of Wife.
Ill-treatment to the husband’s parents and family.

5. Mental cruelty against Wife by Husband:

False accusation of adultery.
The demand for dowry.
Impotency of Husband.
Force to abort the child.
The problem of drunkenness of husband.
Husband having affairs.
The husband lives an immoral life.
Aggressive and uncontrollable behavior of the husband.
Humiliating the wife in front of family and friends

Case laws:

Balaram Prajapati Vs. Susheela Bai

In this case, the petitioner filed a divorce petition against his wife on the ground of mental cruelty. He proved that his wife’s behavior with him and his parents was aggressive in nature and had filed false complaint against the husband. The court thus accepts the petition and grants the divorce on the ground of mental cruelty.

Desertion:

It refers to a situation where one spouse abandons the other spouse without any reasonable justification and without their consent. This abandonment is thus considered permanent in nature, indicating a complete rejection of the obligations that come with the marriage. Desertion includes both physical and emotional abandonment. Physical abandonment occurs when one spouse leaves the marital home and refuses to return or provide any support to the other spouse. Emotional abandonment occurs when one spouse fails to fulfill their emotional and psychological needs towards their partner, such as providing love and care. This leads to serious consequences for the spouse who is left behind, including emotional trauma, financial hardship, and social stigma. The abandonment must be permanent and without any reasonable justification. This means that if a spouse leaves temporarily for work or other reasons, it may not be considered as desertion. Moreover, the spouse who is left behind must not have given their consent to the abandonment, otherwise it cannot be considered as desertion.

Essentials:

Permanent abandonment of the other spouse.
Rejection of the obligation of marriage.
Without any reasonable justification.
No consent of another spouse.

Case laws:

Bipin Chandra Jaisinghbhai Shah Vs. Prabhavati

In this case, the respondent leaves the house with the intention to abandon his wife. Later the wife approaches the court, but the defendant proved that even though he left the house with the intention to desert, but he tried to come back and he was prevented from doing so by the petitioner. Here, the defendant cannot be held liable for desertion.

Conversion:

Under Hindu Marriage Act, if one of the spouses converts to another religion without the consent of the other spouse, it is considered a ground for divorce. The reason behind this provision is to protect and conversion may affect the religious beliefs and practices of the other spouse. If one spouse converts to another religion, it may affect the upbringing of children in the marriage. Therefore, the aggrieved spouse can approach the court and seek a decree of divorce on the ground of conversion to another religion without their consent. However, it is important to note that the conversion must be voluntary and not under any undue influence or coercion.

Essentials:

That the respondent has ceased to follow the faith of Hinduism, that is he is no longer a Hindu.
That the respondent has converted to another religion which is a Non-Hindu faith.

Case law:

Suresh Babu Vs. Leela

In this case, the husband converts himself into a Muslim and marries another woman. Here the wife Leela filed a case and demanded the divorce on the ground of conversion without her consent and cruelty.

Insanity:

If one spouse is suffering from a mental disorder that makes it impossible to continue the marriage, it is a ground for divorce. The aggrieved spouse has to prove that the other spouse is suffering from a mental disorder and that the disorder is incurable. The court considers the medical evidence and decides whether to grant a divorce.

Essentials:

The respondent has been incurably of unsound mind.
The respondent has been suffering continuously or intermittently from a mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

Case law:

Vinita Saxena Vs. Pankaj Pandit

In this case, the petitioner filed a case as respondent was suffering from Paranoid Schizophrenia which means mental disorder. She came to know these after her marriage. Here, the court grants the divorce on the ground of insanity of husband.

Renunciation:

The Hindu Marriage Act recognizes renunciation as a valid ground for seeking divorce. Renunciation is the act of one spouse deciding to leave worldly life and pursue a religious path. This practice is rooted in Hinduism and allows the other spouse to approach the court and seek a divorce if their partner chooses to renunciate without their consent.

Presumption of death:

Under the Hindu Marriage Act, if one of the spouses has been absent for a continuous period of seven years or more and other spouse has no knowledge about the same during this period, the other spouse is presumed to be dead. In such a case, the other spouse can approach the court and seek the remedy of divorce. However, the burden of proof lies on the spouse who is seeking the divorce to prove that the spouse has not heard of the other for the continuous period of seven years. Once this is proved, the court may grant the decree of divorce.

Section 13 (2) Grounds of divorce for wife only:

Rape, sodomy, bestiality- A wife can sue her husband for divorce if the latter has committed rape, sodomy, or bestiality since the marriage was solemnized. Section 375 of the Indian Penal Code, 1860 makes rape a criminal offence. A person who has carnal copulation with an individual of the same sex or an animal, or non-coital carnal copulation with an individual of the opposite sex, amounts to sodomy. Bestiality refers to a human’s sexual union with an animal i.e. contrary to nature’s order.
Bigamy- If a husband already has a wife and then marries another woman, either of the two wives may file for divorce. The divorce petition would be granted if the other wife is still alive when the petition is presented.
Non-resumption of cohabitation for one year post passing of the decree in a maintenance case.

Section 13 (B) Grounds of divorce by Mutual Consent:

According to Section 13B of the Indian Hindu Marriage Act, a married person can file for divorce if both parties mutually agree to dissolve the marriage. However, if parties wish to seek a divorce by mutual consent, they must wait for one year from the date of their marriage before filing a petition. During this one year, the parties must have been living separately and must be able to prove that they are unable to live with each other. This waiting period is provided for reconciliation, and to ensure that the decision to dissolve the marriage is not made in haste. Once the waiting period is over and still the parties are not ready to reconcile, they may file a joint petition for divorce by mutual consent under Section 13B (1). Both parties may move for divorce not earlier than six months from the petition’s presentation date but not later than 18 months after that date. The court will make necessary inquiries, and if the divorce is granted, it will be effective from the date of the decree. This waiting period of 1.5 years is required under Sections 13B (1) and 13B (2) of the Hindu Marriage Act.

No Petitions for Divorce within One Year of Marriage:

As per Section 14, no Court will entertain the petition of divorce within one year of the marriage. But if the matter is related to bigamy, and where the consent of the spouse was taken through misrepresentation, fraud, undue influence, etc.

Remarriage of Divorced Persons:

As per Section 15, after the marriage gets dissolved and no further petition was filed by any of the spouses against the order of the court and the time for appeal has expired. At that time, it is assumed that both the spouses are satisfied. Afterwards the divorced person can marry again.

Conclusion:

The Hindu Marriage Act of 1955 includes provisions for divorce, defining it as the dissolution of marriage. There are three main theories related to divorce: Fault Theory, Mutual Consent Concept, and Irretrievable Theory. In India, the Fault Theory is the basis for divorce cases, where one spouse is held responsible for matrimonial offences and the innocent spouse can seek a remedy for divorce. The Hindu Marriage Act provides grounds on which both husband and wife can seek a divorce, if amounts to adultery, desertion, conversion and cruelty, etc. Additionally, married Hindu women can apply for maintenance under Section 125 of the Criminal Procedure Code. Therefore, the innocent spouse can approach the court to seek a remedy for divorce.

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