The concept of divorce was not known to general Hindu Law, as the marriage was a sacrament and it created an indissoluble tie between the husband and wife for their lifetime. The Hindu Law also believed that the marriage between the husband and wife was nothing but the union of two souls. However, the Hindu law was amended considerably to meet the demands and challenges of the modern era. The matrimonial Hindu laws were amended to include the concept of Divorce. The concept of Divorce is new to the Hindu society and Hindu Laws. It was introduced only in the last century as a revolutionary change. Ever since the concept of the Divorce was introduced in the Hindu Law the said provision was invoked in the rarest of the rare cases. However the Indian society and Indian courts are seeing an unprecedented rise in the filling of the Divorce cases.
The word Divorce is not defined in the Hindu Marriages Act, 1955. Divorce means putting an end to the marriage by dissolution of marital relations. Section 13 of the Hindu Marriage Act 1955 provides for different grounds for granting divorce.
The Divorce can also be obtained by mutual consent when both the spouses presents the Petition seeking divorce under Section 13b of the Hindu Marriage act, 1955.
The Divorce can be obtained by either of the spouses by filling a petition seeking divorce before the concerned jurisdictional family judge by invoking various grounds mentioned in Section 13 of the Hindu Marriage Act, 1955. The various grounds that can be invoked for are as follows:
1. ADULTERY: If the husband or the wife after solemnization of the marriage had voluntary sexual intercourse with any person other than his or her spouse can apply for divorce on the ground of adultery.
2. CRUELTY: If the husband or the wife after their solemnization of their marriage treats the other party to the marriage with cruelty then that cruelty can itself become a ground for divorce.
3. DESERTION: If the husband or the wife deserts the other party for a continuous period of not less than two years immediately preceding the presentation of the petition by the other party.
4. CONVERSION TO OTHER RELIGION OTHER THAN HINDU: Conversion of either husband or wife to any other religion other than Hinduism is one of the grounds of the other party to give divorce.
5. MENTAL DISORDER: A divorce petition can be filed if the wife or husband is suffering from incurably unsound mind or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner/other party cannot be expected to live with the affected party. The Mental disorder includes the mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind which also included Schizophrenia. The expression also included ‘Psychopathic disorder’ which means a persistent disorder or disability of mind(whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party and whether or not it requires or is susceptible to medical treatment.
6. VIRULENT AND INCURABLE DISEASE If the spouse is suffering from virulend and incurable form of disease like that of leprosy then it is one such ground for divorce.
7. VENEREAL DISEASE IN COMMUNICABLE FORM: If the spouse is suffering from the Venereal disease in communicable form then it is also a ground for divorce.
8. RENOUNCING OF THE WORLD OR ENTERING OF ANY RELIGIOUS ORDER: If the spouse has renounced the world by becoming a saint, sanyasi etc or entered any religious order then such a marriage can be dissolved by a divorce.
9. NOT HEARD AS BEING ALIVE FOR A PERIOD OF SEVEN YEARS OR MORE: If the spouse has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive then such marriage can also be dissolved by divorce.
10. NON RESUMPTION OF COHABITATION FOR A PERIOD OF ONE YEAR OR UPWARDS AFTER PASSING OF THE DECREE FOR JUDICIAL SEPERATION:
11. NO RESTITUTION OF CONJUGAL RIGHTS AS BETWEEN PARTIES TO THE MARRIGE FOR A PERIOD OF ONE YEAR OR UPWARDS AFTER PASSIING OF A DECREE FOR RESTITUTION OF CONJUGAL RIGHTS.
12. The wife has been conferred the following special grounds for seeking divorce.
a. If the husband has married any other lady before solemnization of the marriage with the petitioner and that such marriage was solemnized before the commencement of the Hindu Marriage Acte 1955.
b. If the husband is guilty of Rape, sodomy or bestiality.
c. Expiry of one year without cohabitation after the passing of a decree in her favour for separate maintenance under s.18 of the Hindu Adoptions and Maintenance Act or of an order for payment of maintenance to her under the Code of Criminal Procedure.
d. Repudiation of child marriage (i.e., marriage performed before she was 15 years of age). This should be done after attaining 15 years and before attaining 18 years.
13. IRRETRIEVABLE BREAKDOWN OF MARRIAGE: Irretrievable breakdown of marriage has been introduced into the Hindu marriage Act, 1955 and introduced the new section 13C. Both the husband and the wife can move for the petition seeking divorce on the ground of irretrievably breaking down of marriage. However another section 13D has been introduced which says that if the husband moves to the court seeking a decree for divorce under the ground of ‘Irretrievably breaking down of marriage” then the wife can oppose the same. However if the wife moves for the same then the Husband cannot oppose to the same.
14. DIVORCE BY MUTUAL CONSENT: Another ground for granting divorce is the divorce by mutual consent. Section 13B of the Hindu marriage Act, 1955 provides for the divorce by Mutual Consent. Under this ground the Husband and wife can jointly present the joint petition to the court seeking divorce by mutual consent. On presentation of the petition seeking divorce by Mutual consent the court can grant the divorce immediately. The Parliament has made amendment to section 13B of the Hindu Marriage Act, 1955 and pursuant to this amendment the waiting period of 6 months is waived and the court has been granted the powers to grant divorce immediated upon presentation of the petition under Secton 13B of the Hindu Marriage Act, 1955.
The grounds for obtaining the divorce as enumerated in the Section 13 of the Hindu marriage Act, 1955, are listed above. The grounds enumerated above are little ambiguous for the common man to interpret. The Supreme court has itself interpreted the grounds to include various other aspects relating to the aforesaid grounds. The supreme court of India in various case has interpreted the aforesaid grounds in the following manner:
1. CRUELTY[SECTION 13(1)(IA)]: Cruelty is one of the ground for seeking divorce. The Supreme Court of India has time and again reiterated and reviewed the law relating to the cruelty. The cruelty does not mean that there should be danger to ones life, limb and health. If there is a reasonable apprehension that is harmful and injurious to one spouse to live with the other then it amounts to cruelty. The supreme court of India has further laid down the following guidelines which interpreting the term cruelty.
a) Cruelty need not always be of such nature as causing reasonable apprehension that it would be harmful for the petitioner to live with the other party. Act committed with intention to cause suffering to other party will also amounts to cruelty.
b) Even a single act of cruelty is sufficient if it is of a “grievous and inexcusable nature”, to afford matrimonial relief of Divorce.
c) Dowry demand by itself amounts to cruelty and wife can file a petition for divorce.
d) the wife asked her mother-in-law to transfer house in her name and when she refused she misbehaved with the mother-in-law and turned her away from the house. The husband was beaten by her brothers at her behest and false charge of demanding dowry was hoisted against the husband. The court held that it amounts to cruelty.
e) the Supreme court has held that it is not necessary that cruel treatment should be for a particular duration or period.
f) As to what constitutes the required mental cruelty for purposes of section 13 (1)(1-a) of the Hindu Marriage Act, will not depend upon the numerical count of such incidents or only in the continuous course of such conduct but really go by the intensity, gravity and stigmatic impact of it when meted out even once and deleterious effect of it on the mental attitude, necessary for maintaining a conducive matrimonial relationship.
g) Expression cruelty has been used in relation to human conduct or human behavior. In order to constitute cruelty, conduct complained of should be grave and weighty for arriving at conclusion that petitioner spouse cannot be reasonably expected to live with other spouse.
2. ADULTERY: Adultery is one of the grounds of divorce. The wife/husband taking the ground of adultery has to state the particulars of place, time and person with whom the opposite party/husband/wife is alleged to have committed the adulterous act. while praying for the relief of divorce has not right to implead a third party unless specific acts of adultery with particulars of place, time and person are alleged.
The husband who has committed a matrimonial wrong of leading adulterous life cannot be permitted to take advantage of his own wrong and claim divorce on the ground of desertion of the wife who evidently willing to live with him provided he stops living in adultery with another women.
3. DESERTION: The party seeking divorce can claim the divorce based on the ground of the other party deserting him/her for a continuous period of time more than 2 years from the date of filling of the Petition of divorce. The party who has filed the divorce petition has to prove the desertion of the opposite party beyond reasonable doubt to the satisfaction of the court. The parties claiming desertion are bound to prove that desertion was without just cause and further the parties have to establish
a) the factum of separation;
b) the intention to bring cohabitation permanently to an end (animus deserendi);
c) the absence of consent; and
d) the absence of consent giving reasonable cause to the spouse leaving the matrimonial have to form the necessary intention aforesaid.
The husband who has committed a matrimonial wrong of leading adulterous life cannot be permitted to take advantage of his own wrong and claim divorce on the ground of desertion of the wife who evidently willing to live with him provided he stops living in adultery with another women.
4. IRRETRIEVABLE BREAKDOWN OF MARRIAGE: Irretrievable breakdown of marriage is another ground for divorce. Where a marriage has been wrecked beyond the hope of salvage, public interest and interest of all concerned lies in the recognition of the fact and to declare defunct de jure a broken marriage what is already defunct de facto a broken marriage.
When the defense of Irretrievable Breakdown of Marriage has been taken the court shall not make any efforts to bring about the conciliation between the parties. However it is the bounded duty of the court to make provision for the welfare of the children.
5. CHANGE OF RELIGION: When the Hindu husband has become a convert to Christianity, his Hindu wife can petition the court for divorce under s.13 cl.(ii) of the Hindu Marriage Act, 1955.
6. MENTAL DISORDER: A divorce petition can be filed if the wife or husband is suffering from incurably unsound mind or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner/other party cannot be expected to live with the affected party.
In one of the cases husband was suffering from mental disorder. Husband was not able to have sexual relationship with wife. The husband and wife were living separately for 13 years. In this case it was held that wife was entitled to divorce.
The Concept of Divorce in Hindu law still needs to be changed drastically. The waiting period for getting the divorce is enormous. The grounds that are stated in the Hindu Marriage Act, 1955 and the subsequent amendments are primitive. The Hindu law relating the marriages and divorce is not evolving according to the global matrimonial laws. Few more grounds needs to be incorporated into the Hindu Marriage Act, 1955 in order to make the matrimonial laws more practical.
