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    BlogLegal BlogsBASIS OF DIVORCE IN HINDU LAW - By Kajal

    BASIS OF DIVORCE IN HINDU LAW – By Kajal

    Introduction

    Earlier divorce was unknown to general Hindu law as marriage was regarded as an indissoluble union of the husband and wife. Manu declared that a wife cannot be released by her husband either by sale or by abandonment, implying that the marital tie cannot be served in any way. Although Hindu law does not contemplate divorce yet it has been held that where it is recognized as an established custom it would have the force of law.

    According to Kautilya’s Arthashastra, marriage might be dissolved by mutual consent in the unapproved form of marriage. But many do not believe in the discontinuance of marriage. He declared” let mutual fidelity continue till death; this, in the brief, may be understood to be the highest dharma of the husband and wife.
    Divorce under Hindu marriage act, 195
    In the Hindu marriage act, there are some provisions given regarding a valid divorce, i.e. when the spouse can get divorce or appeal for dissolution of marriage in the court of law.
    Divorce is permitted only for a grave reason otherwise given another alternative.

    The ground of divorce:- in the Hindu marriage act 1955 have many grounds of divorce. They are:

    1. Adultery
    2. Cruelty
    3. Desertion
    4. Conversion
    5. Unsound mind or Insanity
    6. Leprosy
    7. Venereal disease
    8. Renunciation of world
    9. Presumed death
    10. Judicial separation
    11. Failure to comply with the order of restitution of conjugal rights
    12. Additional grounds available to women only

    #1. Adultery

    If any husband and wife doing voluntary sexual intercourse with any other person other than his or her spouse, then we say that he/she is doing adultery.
    Pre- amendment a word use usually “living in adultery”. After the amendment has removed those words and replace them in “Adultery”.
    In pre-amendment has proved that the other party’s usual indulgence but in the new act, only a single act of Adultery is sufficient ground of divorce.
    Before the marriage is solemnized husband and wife are unchastity/in sexual relations that are not a ground of divorce. But if adultery is creat after the marriage is solemnized then it makes the ground of divorce.

    Case law: Swapna ghosh vs. Sadanand ghosh

    In this case, the wife found her husband and the adulteress to be lying in the same bed at night and further evidence of the neighbors that the husband was living with the adulteress as husband and wife is sufficient evidence of Adultery. The fact of the matter is that direct proof of Adultery is very rare.

    #2. Cruelty

    The concept of cruelty includes mental as well as physical cruelty. The physical cruelty means when one spouse beats or causes of any bodily injury to the other spouse. But the concept of mental cruelty was added as the spouse can also be mentally tortured by the other spouse. Mental cruelty is a lack of kindness that adversely affects the health of the person. Well, it is easy to determine the nature of physical cruelty but difficult to say about mental cruelty.

    Act which are treated as cruelty:
    • Actual physical injury
    • Threatens physical injury
    • Verbal abuse
    • Insult
    • Excessive sexual intercourse against the wish of wife
    • Less sexual intercourse
    • Unreasonable refusion to intercourse
    • Neglect
    • Communication of the venereal disease 10. Ill-treatment of children
    • Drunkenness/ use of drugs
    • Refusal to speak
    • Forcing the associates or partner with the improper person to wake the sexual relationship
    • False charge of immortality against the wife
    Case law: Balaram Prajapati vs. Susheela Bai

    In the case, the petitioner filed the 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 and uncontrollable and many times she fields the false complaint against her husband. The court accepts the petition and grants the divorce on the ground of cruelty.

    #3. Desertion

    When the husband starts the separate living and stops living jointly. And this is carried on at least 2 yrs continuously against her wife and without the consent of her. Then we say that it is desertion and the wife can file the petition for divorce.
    In that husband called deserter and wife is called deserted.

    REASON OF DESERTION:-
    • Reasonable causes
    • Without any reasonable cause

    For reasonable cause deserted is responsible and for without any reasonable cause, deserter is responsible.
    Reasonable cause is not the basis of desertion. Only without any reasonable cause are the basis of desertion.

    Case law: Bipin Chandra jaisingh bhai shah vs Prabhawati

    In this case, the respondent leave the house with the intension to abandon his wife. Later the wife approach the court, but the defendant proved that even though he left the house with the intension 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.

    #4. Conversion of religion

    If either of them (husband/wife) anyone converts their religion Hindu to non-Hindu like Islam, Judaism, and Christianity, etc.

    Illustration:- A, a Hindu has a wife B and two children. One day A went to church and converted to Christianity without the consent of B, here B can approach the court and seek divorce on the ground of conversion.

    Case law: Suresh Babu vs leela

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

    #5. Unsound mind or Insanity

    If one spouse has suffered in the:
    -Incurable unsoundness of mind
    -Continuous or intermittent mental disorder

    And of such a nature as to disable the petitioner to live reasonable with the respondent.

    Including in mental disorder:

    • Mental illness
    • Mental arrest
    • Incomplete development of mind
    • Psychopathic disorder or other disorder or disability if mind.
      Here be included in the psychopathic disorder
    • Abnormal aggression
    • Seriously irresponsible
    • Schizophrenia
    Case law: Vinita saxena vs Pankaj pandit

    In this case, the petitioner filed a case to get the divorce from the respondent on the ground that the respondent was suffering from paranoid schizophrenia which means mental disorder. She comes to know these after her marriage. Here, the court grants the divorce on the ground of the insanity of the husband.

    #6. Leprosy

    Leprosy is virulent and incurable form of disease.

    Case law: Swarajya lakshmi vs Dr. G. G. Padma Rao

    In that case, facts are that the respondent has suffered from a lepromatous disease that is malignant and contagious and that will be effective the health of all family. And the court held that it is a valid ground of divorce.

    #7. Venereal disease

    It is a sexual transmitted and communicable disease also. It can be transmitted to the other spouse, then this can be considered as the valid ground for divorce.

    Illustration:- A and B married on 25 May 2013. Later A suffered from a venereal disease and it is incurable. There’s also a chance that B can also get infected by that disease if she lives with A. Here, B can approach the court for dissolution of marriage.

    #8. Renunciation of world

    If a one spouse attained the renunciation of world (sanyas) then the other party can file the patition for divorce.

    Illustration:- A and B got married and lives a happy life. One day A decides to renunciate the world. Here, B has a right to approach the court and seek the remedy of divorce.

    #9. Presumption of death

    In this case, the person is presumed to have died, if the family or the friend of that person does not hear any news about the person alive or dead for seven years. It is considered as the valid ground for divorce, but the burden of proof is on the person who demands the divorce.

    Illustration:- A was missing from the last seven years and his wife doesn’t get any news about him of being alive or dead. Here, B can approach the court and ask for the divorce.

    #10. Ground of divorce only for female

    • Polygamy
    • Unnatural offenses
    • No refusion of cohabitation after a decree of maintenance.

    Theory of Divorce

    1. Fault theory :-

    Under this theory, marriage can be ended when one party to the marriage is responsible or liable for the offense under matrimonial offenses done against another spouse. Only the innocent spouse can seek this remedy. The only drawback of this theory is when both the spouse are at fault, then no one can seek these remedies of divorce.

    2. Mutual consent :-

    Under this theory, the marriage can be dissolved by mutual consent. If both the spouse mutually gives their consent to end the marriage, they can take the divorce. But many philosophers criticize this theory as this concept is immoral and leads to hasty divorce.

    -• The Hindu marriage act is based on the fault theory in which any one of the aggrieved spouses [section 13(1)] can approach the court of law and seek the remedy of divorce.
    Section 13(2) provides the ground on which only the wife can approach the court of law and seek the remedy of divorce.

    This article on Criminal Psychology is written by Kajal, student of 1st-year B.A. L.L.B., Department of Law at Maharishi Dayanand University.

    Kindly Suggest for any correction or Addition in the Post at editor@legalthirst.com.

    Read More such articles written by law students: Effect of Domestic Violence Charges on Divorce Case

     

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