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Grounds For Divorce Under Hindu Marriage Laws

Divorce in India is still a sensitive topic. Even so, one shouldn't hold back in getting justice from a failed marriage. Read on to understand the fault grounds that allow one to seek divorce in India under the Hindu Marriage Act, 1955.
Written by:
Antim Amlan
Published on
13-Sep-19

As per this Act, divorce maintenance was originally based on the fault theory and enshrined nine fault grounds in Section 13 (1) on which either the husband or wife could sue for divorce, and two fault grounds in section 13 (2) on which wife alone could seek a divorce.

In 1964, by an amendment, certain clauses of Section 13 (1) were amended in the form of Section 13 (1A), thus recognizing two grounds for the breakdown of a marriage. The 1976 Amendment Act inserted two additional fault grounds for divorce for the wife and a new section 13 (B) for divorce by mutual consent.

The various grounds on which a decree of divorce can be obtained are as follows-

  • Adultery:

Though adultery may not have been recognized as a criminal offense in all countries, according to this Act, adultery is a valid ground for divorce.

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 the marriage. Since adultery is an offense against marriage, it is necessary to establish the fact at the time the offense was committed while the marriage was subsisting.

Also, it follows that unless one willingly consents to the act, there can be no case against adultery. The offense of adultery may be proved by:

  1. Circumstantial evidence[1]

  2. Contracting venereal disease

  • Cruelty:

The concept of cruelty is a changing concept. The modern concept of cruelty includes both mental and physical cruelty. Acts of cruelty are behavioral manifestations stimulated by different factors in the life of spouses, and their surroundings and therefore, each case has to be decided on the basis of its own set of facts.

While physical cruelty is easy to determine, mental cruelty is the lack of conjugal kindness, which inflicts the pain to such a degree and duration that it adversely affects the health, mental or bodily reactions of the spouse on whom it is inflicted.

In Pravin Mehta v. Inderjeet Mehta, the court has defined mental cruelty as ‘the state of mind’. Some instances of cruelty are as follows:

  1. False accusations of adultery or unchastity

  2. Demand for dowry

  3. Refusal to have marital intercourse/children

  4. Impotency

  5. Birth of a child (if pregnant without consent)

  6. Drunkenness

  7. A threat to commit suicide

  8. Wife writing false complaints to an employer of the husband

  9. Incompatibility of temperament

  10. Irretrievable breakdown of a marriage

The following do not amount to cruelty:

  1. Ordinary wear & tear of married life

  2. Wife’s refusal to resign her job

  3. Outbursts of temper without rancor

  • Desertion:

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.

The following 5 conditions must be present to constitute desertion. They must coexist to present a ground for divorce:

1. The factum of separation

2. Intention to desert

3. Desertion without any reasonable cause

4. Desertion without the consent of another party

5. The statutory period of two years must have run out before a petition is presented

In Bipinchandra v. Prabhavati, the Supreme Court held that where the respondent leaves the matrimonial home with an intention to desert, he will not be guilty of desertion if subsequently, he shows an inclination to return and is prevented from doing so by the petitioner.

  • Conversion:

When the other party has ceased to be a Hindu by conversion to any other religion for e.g. Islam, Christianity, Judaism, Zoroastrianism, a divorce can be granted.

  • Insanity:

Insanity as a ground of divorce has the following two requirements:

1. The respondent has been incurable of unsound mind.

2. The respondent has been 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.

  • Leprosy:

Contagiousness of leprosy and repulsive outward manifestations are responsible for creating psychology where a 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 upon the petitioner.

  • Venereal Disease:

At present, it is a ground for divorce if it is communicable by nature­ irrespective of the period for which the respondent has suffered from it. It is not necessary that it should have been communicated to the petitioner (even if done innocently).

  • Renunciation:

‘Renunciation of the world’ is a ground for divorce only under the Hindu law, as a renunciation of the world is a typical Hindu notion. Modern codified Hindu law lays down that 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. Such an act of renunciation must be unequivocal and absolute.

  • 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 is 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. A decree of divorce granted under this clause is valid & effective.

  • Wife’s Special Grounds for Divorce:

Besides the grounds enumerated above, a wife has been provided four additional grounds of divorce under 7 of this Act. These are as follows:

a. Pre-Act Polygamous Marriage - This clause states the ground for divorce as, ‘That the husband has another wife, alive at the time of the solemnization of marriage of the petitioner’.

For example, in the case of Venkatame v. Patil where a man had two wives, one of whom sued for divorce, and while the petition was pending, he divorced the second wife. He then averred that since he was left with only one wife, the petition should be dismissed. The Court rejected the plea.

Such a ground is available in both the marriages are valid marriages and the other wife (2nd wife) should be present at the time of filing of the petition. However, today, this ground is no more of practical importance.

b. Rape, Sodomy or Bestiality - Under this clause, a divorce petition can be presented if the husband has, since the solemnization of marriage, been guilty of rape, sodomy or bestiality.

c. 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, the 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.

d. 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 verbal) or may be implied from the conduct of the wife that she left her husband and refused to come back. Moreover, this right (added by the 1976 Amendment) has only a retrospective effect i.e. it can be invoked irrespective of the fact that the marriage was solemnized before or after such amendment.

 

Irretrievable Breakdown Of Marriage

Irrespective of the three remedies available to parties that are- the restitution of conjugal rights, judicial separation, and divorce, the judiciary in India is demanding this as a special ground for divorce, as sometimes courts face difficulties in granting divorce due to some technical loopholes in the existing theories of divorce. Both the Supreme Court and the Law Committee consider the implementation of such a theory as a boon to parties who for one or the other reasons are unable to seek the decree of divorce.

Under this Act, primarily there are three theories under which a divorce is granted:

  1. Guilt theory or Fault theory

  2. Consent theory &

  3. Supervening circumstances theory

The Irretrievable Breakdown Theory of divorce is the fourth and the most controversial theory in legal jurisprudence, based on the principle that marriage is a union of two people based on love, affection, and respect for each other. Thereby, an irretrievable breakdown of a relationship[2] is presumed de facto.

The fact that two parties who are married to each other are living separately for a reasonably long period of time (say two or three years), with any reasonable cause (like cruelty, adultery, desertion) or even without any reasonable cause which shows the unwillingness of the two parties (or even one of the two parties) to live together and all their attempts to reunite failed, it will be presumed by law that the relationship is dead now.

Recently the Supreme Court has recommended an Amendment to the Act, whereby either spouse can cite unwillingness to cohabit as a reason to seek a divorce. Expressing the concern that divorce could not be granted in a number of cases where marriages were virtually dead due to the absence of the provision of irretrievable breakdown, the Court strongly advocated incorporating this concept in the law in view of the change of circumstances. The Court observed that public interest demands that the married status should, as far as possible, as long as possible and whenever possible, be maintained.

What is Interim Maintenance?

As per the Hindu maintenance laws, Interim Maintenance can be sought by the divorced wife, who does not have any source of independent income or any money to support her living. The calculation of amount is not prescribed in the law and is based on the Court’s discretion and understanding of the divorce and maintenance payments in India.

Interim maintenance has to be paid from the date when the petition is presented before the court until the date it is dismissed or decree is passed by the court. It is the amount that is given to meet her basic yet immediate needs for the time the case is pending in court.

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[1] Circumstantial Evidence - Circumstantial evidence is direct evidence of a fact from which a person may reasonably infer the existence or nonexistence of another fact. A person's guilt of a charged crime may be proven by circumstantial evidence, if that evidence, while not directly establishing guilt, gives rise to an inference of guilt beyond a reasonable doubt.

[2] Irretrievable Breakdown of a Relationship - The Commission examined the extant legislations as well as a number of judgments of the Supreme Court and High Courts on the subject and is of the view that “irretrievable breakdown of marriage” should be incorporated as another ground for granting divorce under the provisions of the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954.