DIVORCE UNDER HINDU LAW

Ashutosh Rajput | Hidayatullah National Law University | 27th May 2020

The term divorce is derived from the Latin word ‘divortium’ which means ‘to separate’. In context of Hindu Law, Divorce means to get separated from his or her spouse which may result in dissolution of marriage. Divorce in India is of a great concern. It is most traumatic misfortunes for any couple. There is a condition that no petition for divorce to be presented within one year of marriage^[1] which is established so as to allow parties to impliedly consider each other so that bond may not get broken.

Grounds for Divorce Under Hindu Marriage Act

As the ground for obtaining divorce and judicial separation are same so the party directly applies for divorce. Section 13 (1)^[2] ascertain the grounds for divorce. A person by his own wrong cannot claim divorce.^[3] These are the common grounds for both husband and wife to file for divorce.

A petition can be presented for divorce by one of the two parties to marriage on the following grounds:

1. Adultery or Extra-marital sex [Section 13(1)(i)]: Voluntary sexual intercourse between a married person and someone who is not their spouse. Before Amendment Act of, 1976, living in adultery was required to be proved and after the amendment it is not necessary to prove continuous adultery relationship rather the fact is to be established that the respondent had willfully indulged in sexual intercourse with a person other than his wife. It is not a criminal offence under Indian Penal Code. If the act of intercourse should be voluntary then it is adultery but if the act is involuntary which includes rape then there is no adultery. And if the second marriage is void then the sexual intercourse with the second wife will amount to Adultry. According to Delhi High Court in Chander Prakash v. Sudesh Kumari ^[4]the burden of proof of adultery lies on the person who alleged it.

• Cruelty [Section 13(1)(ia)]: The word has not been defined in the Act^[5], but the act uses this word with reference to human conduct or behavior with respect to matrimonial obligations. It includes both physical and mental cruelty which can cause either spouse danger to life, limb and health and includes both acts and omission. The concept of cruelty has been varied from time to time, individual to individual and place to place with respect to social status, economic condition and other matters of the persons involved.^[6] In Raj Talreja v. Kavita Talreja^[7] the Supreme Court observed that if wife makes any reckless defamatory and false allegations against her husband and his family members with intention of lowering down his reputation then such false accusations will amount to cruelty and the husband is entitled to decree of divorce. The party who is guilty of cruelty can be condoned by the other party to a marriage who suffered cruelty. To establish condonation there must be two things, forgiveness and restoration.

• Desertion [Section 13(1)(ib)]: If one spouse intentionally neglects the other spouse with no reasonable cause and without the other’s consent then such other spouse can claim divorce.  It is a matter of inference to be drawn from certain facts and circumstances of each case. The burden of proof will be on the petitioner. He or she must show that that it was without any reasonable excuse which existed at least 2 years^[8] In Ram Chandra Lamba v. Smt. Adarsh^[9] the wife left for her parent’s home during pregnancy with an intention to return after delivery, but husband neglected her and the child by not visiting them in nursing home and after caesarean operation, he did not come and take her back, it was held that the wife that in the circumstances desertion was not without just cause. 

• Conversion [Section 13(ii)]: If either party to a marriage changes his or her religion from Hindu to any other non-Hindu religion then divorce can be claimed by a Hindu party to it. In Madanam Seetha Ramulu v. Madanam Vimla^[10], the wife converted to Christianity after her marriage who was Hindu at the time of birth. Husband filled for divorce and court granted him decree of divorce.

• Unsoundness of mind [Section 13(iii)]: If one of the parties is suffering from incurable unsoundness of mind or from such kind of mental disorder^[11] as to which the petitioner cannot reasonably be expected to live with the respondent then it becomes the ground for divorce. The basic requirement is continuous suffering from disease so as to make it impossible for other side to discharge marital obligations. In T. Jagedeswari v. Anand^[12] the Madras Court observed that where unsoundness of mind becomes incurable which ultimately make life of spouse reasonably impossible to live together then the court will grant decree of divorce. 

• Venereal Disease [Section 13(v)]: When one of the parties is suffering from venereal disease in communicable form then the decree of divorce will be granted in favour of non-suffering party. Venereal diseases includes Human papillomavirus, genital herpes, HIV/AIDS, Gonorrhoea, etc. 

• Renunciation [Section 13(vi)]: Either party can seek dissolution of marriage, by a decree of divorce if one party has renounced the world by entering any religious order. A person who wants to renounce the world can only become Sanyasi if he/she has performed necessary rites and ceremonies prescribed by Shastras. Where a person has left the world but had not performed the religious ceremony then he/she can be guilty of desertion and non-guilty party can claim divorce on that ground.

• Not heard alive [Section 13(vii)]: This clause states that if the respondent has not been heard of as being alive for a period of 7 years or more by those persons who would naturally have heard of it, had the party been alive and the petitioner has reasonable ground for supposing the respondent is no more in existence which ultimately makes marriage becomes dead then the petitioner may seek divorce. If the respondent returns after passing of the decree then the marital relationship cannot be restored.

• No resumption of cohabitation [Section 13(1A)(i)]: There should be no cohabitation between the parties to a marriage for a period of 1 year or upwards after passing of the decree of judicial separation. Then the party will be entitled decree of divorce.   

1.  No restitution of conjugal rights as between the parties [Section 13(1A)(ii)]: Either party can apply for dissolution of marriage if it can be shown that there has been no restitution of conjugal right between the parties to a marriage for 1 year or upwards after the passing of the decree of restitution. 

Additional grounds of divorce in favour of the wife-

1. Husband’s bigamy [Section 13(2)(i)]: If the husband has married another women despite having a wife then such wife can seek for a divorce with a condition that either of the women whom he married should be alive at the instance of petition.  
2. Rape, sodomy or bestiality [Section 13(2)(ii)]: If the respondent is guilty of the offence of rape or sodomy after solemnization of marriage the petitioner can seek divorce. Rape is defined in Section 375^[13] as a forcibly sexual encounter without her consent. Sodomy and bestiality has been defined in Section 377^[14]. Sodomy is defined anal intercourse with same or opposite sex and bestiality is defined sexual intercourse with any animal.
3. No cohabitation for one year or upwards after the passing of maintenance order under Section 18^[15] or under Section 125^[16] [Section 13(2)(iii)]: When decree of judicial separation is passed then the order of maintenance also passes simultaneously. And if they both have not cohabited during that interval which relates to 1 year or more then the decree of divorce can be passes.
4. Repudiation of marriage [Section 13(2)(iv)]: The petitioner, if her marriage is solemnized before the age of 15 years then she can repudiate the marriage after attaining the age of 15 years and but before she attains the age of 18 years.

Conclusion

Divorce literally means the breakage of legal bonds. Divorce was not recognized in ancient time but became prevalent in recent time because of the need. Divorce can be termed as a legal right because it initiates dissolution legally when either party has a just ground. The procedure of court is time consuming because of the fact that the marriage is the strongest union between husband and wife and it cannot be broken by just filling of the petition, the court gives time impliedly to either party to reconsider their matrimonial duty. Women have been given additional grounds for divorce just because they are more sensitive part of the marriage.

^[1] Section 14 of Hindu Marriage Act, 1955 

^[2] Hindu Marriage Act, 1955

^[3] AIR 2013 SC 2916

^[4] AIR 1971 Del. 208

^[5] Hindu Marriage Act, 1955

^[6] 1979 (J & K) 12

^[7] AIR 2017 SC 2138

^[8] AIR 1972 S.C. 459

^[9] AIR 1987 Del. 99

^[10] AIR 2014 NOC AP 412

^[11] [Section 13(iii)a] of Hindu Marriage Act, 1955 

^[12] AIR 2017 NOC 415 Mad.

^[13] Indian Penal Code

^[14] Indian Penal Code

^[15] Hindu Adoption and Maintenance Act, 1956

^[16] Code of Criminal Procedure, 1973