What is divorce
By divorce we mean dissolution of marriage or in other words that all ties entered with your partner through marriage get dissolved and/or end with divorce. So it is a way to break a marriage by operation of law.
Hindu Law regards marriage as an inseparable union between husband and wife and more so regards it as a sacrament unlike in English law where it is a contract. There was no process of divorce under the Hindu law in ancient times. In earlier times divorce could only be taken if some customs allowed people to take it. Only such customs allowed divorce which had a force of law. To custom get a force of law it has to satisfy the following conditions:
- Antiquity: A custom must be in existence from time immemorial
- Continuance: A custom must be practiced without interruption; continuity is an essential feature of the custom
- Peaceable enjoyment
- Matter of right
- Conformity with statute law
It was only after the coming into force of the Hindu Marriage Act, 1955 that the divorce was specifically specified and was allowed to be taken by the parties in case of the specified circumstances.
Ways to take Divorce
The Hindu Marriage Act, 1955 based divorce on the fault theory, and enlisted nine fault grounds in Section 13 (1) upon which either the husband or wife could sue for divorce. There are two fault grounds specified in Section 13(2) upon which only the wife could seek the divorce.
By Amendment in 1964,Section 13(1A) was inserted , thus adding two grounds of the breakdown of the marriage. The 1976 amendment Act inserted two additional fault grounds of divorce for wife & a new section 13B for divorce by mutual consent.
Grounds for divorce
Adultery is not defined anywhere in the law. In adultery there must be voluntary or consensual sexual intercourse between a married person and another, whether married or unmarried, of the opposite sex, not being the other’s spouse, during the subsistence of marriage.
Intercourse with the first or latter wife of a polygamous marriage is not adultery.
But if the second marriage is void, then sexual intercourse with the second wife will amount to adultery.
Adultery is an offense against marriage, it is necessary to establish that at the time of the act of adultery the marriage is subsisting. If there is willingness, there can be no adultery. However if the wife has been raped by the accused and the same fact is established then the husband will not be entitled for divorce.
Cruelty as a ground of divorce includes both mental as well as physical cruelty. Physical cruelty can be established by wounds and corresponding medical reports substantiating cruelty but it is very difficult to prove mental cruelty. Some examples of cruelty are as follows
- False accusations of adultery or unchastity
- Dowry demand
- Refusal to have marital intercourse/children
- Birth of child
- Threat to commit suicide
- Wife’s writing false complaints to employer of the husband
- Incompatibility of temperament
- Irretrievable breakdown of marriage
The following do not amount to cruelty-
- Ordinary wear & tear of married life
- Wife’s refusal to resign her job
- Desertion per se
- Outbursts of temper without rancor.
Desertion means the rejection by one party of all the obligations of marriage- the permanent forsaking or abandonment of one spouse by the other without any reasonable cause and without the consent of the other. It means a total repudiation of marital obligation.
Following 5 conditions must be present to constitute desertion:
- Factum of separation
- Animus deserdendi (intention to desert)
- Desertion without any reasonable cause
- Desertion without consent of other party
- Statutory period of two years must have run out before a petition is presented.
When the other party has ceased to be Hindu by conversion to any other religion for e.g. Islam, Christianity, Judaism, Zoroastrianism, a divorce can be granted.
Insanity as a ground of divorce must be as under:-
- Disease i.e. must be incurable
- Person must be suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.
Contagiousness of leprosy and repulsive outward manifestations are responsible for creating psychology where man not only shuns the company of lepers but looks at them scornfully. Thus, it is provided as a ground for divorce. The onus of proving this is on the petitioner.
4. Venereal Disease
Venereal diseases mean a disease which is communicable or non-communicable. Venereal disease will be a ground for divorce only if it is communicable. The ground is made out if it is shown that the disease is in communicable form & it is not necessary that it should have been communicated to the petitioner (even if done innocently).
“Renunciation of the world” is a ground for divorce. A spouse may seek divorce if the other party has renounced the world and has entered a holy order. A person who does this is considered as civilly dead.
6. Presumption Of Death
Under the Act, a person is presumed to be dead, if he/she has not been heard of as being alive for a period of at least seven years. The burden of proof that the whereabouts of the respondent are not known for the requisite period is on the petitioner under all the matrimonial laws. This is a presumption of universal acceptance as it aids proof in cases where it would be extremely difficult if not impossible to prove that fact. Decree of divorce granted under this clause is valid & effective even if it subsequently transpires that the respondent was, in fact, alive at the time when the decree was passed.
Wife’s Special Grounds For Divorce
Besides the grounds enumerated above, a wife has been provided four additional grounds of divorce under Section 13(2) of the Hindu Marriage Act, 1955. These are as follows-
1. Pre-Act Polygamous Marriage
Polygamouis marriage means that if the husband at the time of marriage has another spouse from valid marriage existing.
2. Rape, Sodomy Or Bestiality
Under this clause, a divorce petition can be presented if the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality.
3. Non-Resumption Of Cohabitation After A Decree/Order Of Maintenance
If a wife has obtained an order of maintenance in proceedings under Section 125, Cr.P.C., 1973 or a decree under Section 18, Hindu Adoption & Maintenance Act, 1956 & cohabitation has not been resumed between parties after one year or upwards, then this is a valid ground for suing for divorce.
4. Repudiation Of Marriage
This provision provides a ground for divorce to the wife when the marriage was solemnized before she attained the age of fifteen years, and she has repudiated the marriage, but before the age of eighteen. Such repudiation may be expressed (written or spoken words) or may be implied from the conduct of the wife (left husband & refused to come back).
Irretrievable Breakdown Of Marriage
If the relations between the parties are deteriorated to such an extent that it becomes impossible for both the parties to stay with each other then the marriage can be said to have been broken down irretrievably. In other words, it can be treated as a dead marriage.
Divorce by Mutual Consent
Divorce by Mutual Consent is another way to get divorce in which both the parties consent to take divorce. You can read here for information on how to get divorce by mutual consent.