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Basis of Divorce in Hindu Law – By Yogita Goel
In Hindu society, marriage is considered sacred in nature, because it cannot be compared to a marriage like in a Muslim society which is on a contractual basis. There was no concept of dissolution of marriage due to it being a religious rite in the ancient Vedic period but with changing times and changes in the overall structure of Indian society, marriage became a part of Hindu family law and the provision relating to the concept of divorce was introduced by the Hindu Marriage Act, 1955. The Hindu Marriage Act defines divorce as the dissolution of a marriage.
Theories of Divorce:
1. Fault Theory
Under this theory, a marriage can end when one of the parties to the marriage is responsible or liable for the offense under matrimonial issues committed against the other spouse. Only innocent spouses can seek this remedy.
2. Mutual consent
Under this principle, marriage can be dissolved by mutual consent. If both spouses give their consent to end the marriage, they can divorce.
3. Irretrievable Breakdown:
According to this theory, dissolution of marriage is caused by the failure of the marital relationship. Divorce can be taken by husband and wife as a last resort, when the two cannot live together again.
Divorce under Hindu Marriage Act, 1955:
The Hindu Marriage Act is based on the fault doctrine in which any aggrieved spouse under Section 13 (1) can approach the court of law and find remedies for divorce where Section 13 (2) provides the grounds on which only the wife can approach to court of law and finds a remedy for divorce.
Grounds of Divorce under section 13(1) of The Hindu Marriage Act, 1955:
Adultery means consent and voluntary intercourse between married or unmarried with another person, who is of the opposite sex.
Even if the intercourse between the husband and his second wife, ie if their marriage is considered under bigamy, the person is liable for adultery.
Under section 13(1)(i), Adultery is a ground for divorce.
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 should be sufficient circumstantial evidence to prove another spouse’s liability.
Burden of proof:
The burden of proof is always on the petitioner.
Under section 13(1)(ia) of the Hindu Law, Cruelty is a ground for divorce by either spouse.
The concept of cruelty includes mental as well as physical cruelty.
Physical cruelty means when one spouse inflicts some physical injury on the other partner.
But the concept of mental cruelty was added because the spouse can also be mentally tortured by the other husband. Mental cruelty is a lack of kindness that adversely affects a person’s health.
# Russel v. Russel, Cruelty has been described as such behavior or conduct which put life and body under the physical or mental form of danger or may arise apprehension of such danger.
# Suman Kapur vs Sudhir Kapur (2009) 1 SCC 422
The Supreme Court held that Abortion by a woman without her husband’s knowledge and consent will amount to mental cruelty and a ground for divorce.
It means withdrawn from the society of another.
When one party withdraws from the society of another without reasonable excuse called desertion.
Under section 13(1)(ib) deals with desertion that if either party deserted the other for a continuous period of not less than two years immediately preceding the presentation of the petition.
- Without any reasonable cause.
- Live separately.
- Rejection of the obligation of marriage or no cohabitation.
- No consent from another spouse.
Bipin Chander Jaisinghbhai Shah vs Prabhawati, 1957 AIR SC 176
In this case, the couple had a kid and later the husband went to England and during his absence, the wife had an illicit relationship, and when the husband return and questioned, she got scared and left husband’s home and later he sends her a notice for not to come back. The court held that it is not desertion by Prabhawati because she was willing to return home as desertion is required to be without reasonable cause.
If one of the spouses converts their religion to another religion without the consent of the other spouse, the other spouse can approach the court and find a remedy of divorce.
Under section 13(ii) of the Hindu Marriage Act, 1955 when either party has ceased to be Hindu by conversion to another religion, the other party can seek the divorce.
The two conditions which must be satisfied are:
- Respondent has ceased to be a Hindu, and
- He has converted to another religion.
It means when the person is of an unsound mind.
The following two requirements of insanity as the basis of divorce under section 13(1)(iii):
- The respondent has been incurably of unsound mind, or
- 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.
The term ‘unsoundness of mind’ in the present provision is more comprehensive. Idiocy and lunacy are types of unsoundness of mind.
Under section 13(1)(v), venereal disease is a ground of divorce or judicial separation when either party is suffering from a venereal disease in a communicable form.
Renunciation of the World:
Under section 13(1)(vi) of the Hindu Marriage Act, 1955, if the spouse has renounced the world by entering any religious order is a ground for divorce by other spouse.
This means that when one of the spouses decides to abandon the world and walk in the path of God, the other party can approach the court and demand divorce. In this concept the party who renounces the world is considered civilly dead. This is a typical Hindu practice and is considered a valid basis for divorce.
Presumption of Death:
Section 13(1)(vii) of the Hindu Marriage Act, 1955; states that when either spouse has not been heard alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive, is a ground for divorce by another party.
This Article on Basis of Divorce in Hindu Marriage Act, 1955 was written by Yogita Goel, a student of Geeta Institute of Law and Legal Researcher Content Writer at Legal Thirst.