From the ancient times itself the Hindu Marriage was
considered as a sacramental union between the husband and wife that lasts till
the death or a sacred tie which can never be broken. Once created this sacred
tie cannot be untied. Hindus considered the separation of spouses as an act
which break’s the God’s law. Therefore they didn’t recognized separation, but
after the enactment of Hindu Marriage Act, 1955 it has laid down provisions
regarding divorce. Sections 13, 13(1A),
13A, 13B, 14, and 15 deals with the divorce and related things associated with
it. According to Kautilya in
Arthashatra, marriage can be dissolved by mutual consent in an unapproved
form of marriage. On the other hand, Manu believed that marriage being a
sacrament cannot be discontinued and the fidelity between the husband and the
wife should be carried till their last breaths. However, the conditions changed
after divorce was introduced under Hindu Marriage Act, 1955.
What is Divorce and by what laws in India are they
governed by?
The Hindu
Marriage Act defines divorce as “dissolution
of the marriage”. According to the Merriam Webster
Dictionary separate from signifies "to lawfully break down one's
marriage". Essentially put when a marriage went into according to the Hindu Marriage Act, 1955, gets broke up
and the companions are allowed to end their binds with each other, results into
the disintegration of marriage which is named as a separation.
India being home to
diverse networks has no uniform law on separate. Usually separate from laws
according to the Hindu Marriage Act,
1955 are appropriate on Hindus, Sikhs, Buddhists and Jains. For Christians,
separate is represented by the Indian
Divorce Act of 1869. Disintegration of Parsi Marriage is managed by the Parsi Marriage and Divorce Act, 1936.
Additionally, Muslims have two wellsprings of laws to administer the
disintegration of their relationships which are the uncodified laws (Sharia) and the Dissolution of Muslim Marriages Act,
1939.
Similarly, there are
also differences in the grounds on which a divorce could be sought for
depending upon the different laws, like for instance under Hindu Law divorce
can be sought for on the grounds of Adultery, Cruelty, Desertion etc. while on
the other hand under Muslim law, there are only 6 grounds (Impotency, Cruelty,
Irregular Marriage (Bassid), Non-Performance of Matrimonial Obligations,
Outcaste, Arrangement of marriage by a guardian who is not the biological
father).
Thus, there is a
great difference in divorce laws in different communities with major variances
in the grounds on which they could be sought. It is observable that out of all
the codified or uncodified laws the grounds specified for divorce are most
exhaustive in the Hindu Law and therefore grant a greater remedy to the
petitioner spouse.
Theories associated with Divorce under
Hindu law
There are
various theories associated with divorce in Hindu law they are:
1. Fault or guilt theory
This theory is
based on the 19th century concept where the society considered divorce as an
evil concept. If one of the parties has committed a sin or a matrimonial
offence such as adultery, cruelty, rape, desertion, bestiality, refusal to obey
the court order for maintenance, marrying an underage person then that marriage
can be dissolved on the basis of these grounds.
The divorce is
granted only on the basis of these matrimonial offences. Even if the defendant
has committed other heinous offences it will not exist as a ground for divorce.
There are mainly two parties included in the fault theory one is the guilty
party (who has committed the matrimonial offence) and other is the innocent
party (who is the aggrieved party).
The major
drawback of this theory is that if both the parties are at fault no divorce can
be granted and also if the innocent party forgives the act of guilty party no
divorce will be granted. The divorce legislation in India is based on ‘fault
theory’ that is no party should take advantage of his/her own fault. Most of
the grounds for judicial separation and divorce which are contained in Hindu
Marriage Act, 1955 are based on this theory. The various grounds for divorce
based on this theory are Adultery, Cruelty, Desertion, Rape, Bestiality, and
Maintenance to wife.
2. Frustration theory
In this theory
the concept of divorce is a relief from frustration. Frustration can occur to
the spouses due to various reasons. According to this theory either of the spouses
can put an end to the marriage on the basis of mental disorder, any physical
ailment, conversion of religion, renunciation of world, and unheard for a very
long period of time. Only these factors remains as the ground for divorce and
any type of marital offences will not include in this theory.
If a person
prefers for divorce on the above mentioned causes it is considered as a valid
ground under this theory. The Hindu Marriage Act 1955 considers Apostasy (conversion
of religion), Unsoundness of mind, and Renunciation of world as valid grounds
for divorce.
3. Mutual consent theory
In this theory
divorce is obtained by the spouses for their own good. According to this theory
the spouses by mutual consent can put an end to the marriage without any
arguments. The husband and wife can jointly file a petition for divorce. They
can move out of the marriage in free will. The essential ground for divorce
under this theory is mutual consent to dissolve the marriage that is free consent
of both parties without any compulsion is needed.
The Supreme
Court has observed that the mutual consent should continue till the divorce
decree is passed and the court should be satisfied with the bonafide consent of
the parties. The disadvantage of this theory is that the spouses may decide to
dissolve the marriage on collusion and on small causes or immediate
temperament. Divorce by mutual consent was not included in the original Hindu
Marriage Act, 1955 but later it was amended and got included in the act.
4. Irretrievable break down theory
If any failure
in matrimonial relationships or any other such irretrievable circumstances
arises and the spouses in no probability can’t live together a breakdown occurs
in the marriage. In such a situation the spouses can opt for divorce. According
to this theory, after breakdown if the court finds that the spouses cannot live
together or is beyond repair, the husband and wife is allowed to live
separately for a definite period of time without any communication and
emotional attachment.
After this
period of time they can decide to get divorced, such type of marriages may be
dissolved without any delay even if one of the parties desires to get divorce.
The main idea behind this theory is to reduce the number of unhappy marriages
in the society. The major drawback of this theory is that the spouses can
obtain divorce easily and it gives an advantage to the guilty party.
The Supreme
Court has observed that irretrievable breakdown of marriage is not a ground for
divorce under Hindu Marriage Act, 1955 and made recommendation to make it as a
ground for divorce. In the Hindu Marriage Act, 1955 an attempt has been made to
introduce this theory as no resumption of cohabitation after decree of judicial
separation and no compliance with decree of restitution of conjugal rights.
Grounds for Divorce under Hindu
Law
1. Insanity and Leprosy
The Hindu Marriage
Act emphasizes on the sanity of parties at the time of marriage. Up until 1976,
for grounds like mental illness, leprosy and contagious venereal disease the
respondent spouse must have been suffering from it for a period of three years
such that it could become a ground of divorce. The Marriage Laws (Amendment.)
Act, 1976 has extraordinarily changed the Act, by eliminating the time stretch
and by amplifying the assortments of "psychological maladjustments"
to be secured for an explanation of separation.
Case Law – 1. In case of Pankaj Mahajan v. Dimple– In this case
the appellant husband brought an evidence to show that the respondent wife was
suffering from schizophrenia and asked for a divorce. The Hon’ble Supreme Court
while discussing about insanity as a ground of divorce held that the husband
should be granted a decree of divorce on this ground.
2. In Swarajya Lakshmi v. G.G. Padma
Rao the Hon’ble
Supreme Court while discussing about leprosy as a ground of divorce
observed that in case of an incurable and virulent form of leprosy decree of
divorce can be granted and based upon this reasoning granted a decree of
divorce.
2. Venereal Disease
Under the Hindu
Marriage Act, a spouse can ask for a divorce when his/her partner is suffering
from a contagious venereal disease which could spread due to mutual
cohabitation.
Case Law – In the case of Mr. X v. Hospital Z, a doctor informed the fiancé about her soon to be husband’s
communicable venereal disease because of which she refused to marry him. In a
suit filed before the Hon’ble Supreme Court it was held that this act of the
doctor didn’t violate Mr. X’s privacy and was for a greater good. It was also
held that in cases like this a divorce is permissible.
3. Desertion
Desertion without a
reasonable cause lasting for two years is a ground for divorce under the Hindu
Marriage Act. In the past desertion (of two years’ duration) constituted a
ground for judicial separation. However, after the 1976 change, the
justification for legal detachment and separation has been converged under that
Act. The common marriage law and the Hindu law are, hence, presently
indistinguishable in regard of abandonment as a ground for separate yet under
the Indian Divorce Act, renunciation going on for a long time without pardon is
ground just for legal partition and not separate.
If a spouse is
missing for a long period, the other spouse gets a ground for divorce under all
the laws except the divorce law of Christians. The base term of vanishing which
will make such right is seven years under the Hindu Marriage Act.
Case Law – In case of Adhyatma Bhattar Alwar v. AdhyatmaBhattar Sri Devi , Hon’ble Supreme Court while
discussing desertion as a ground of divorce observed that desertion has two
different essentials and once both of them are fulfilled the spouse can claim a
divorce. The burden of proof is on both the spouses on their parts.
4. Cruelty
Cruelty is a ground for divorce under the Hindu Marriage Act
(as altered in 1976) and the Dissolution of Muslim Marriages Act, 1939. In any
case, under the Hindu law the idea, of mercilessness is left indistinct, while
in Muslim law brutality is determined to be in a type of ongoing attack, famous
way of life, relationship with not well rumored ladies, improper life,
impedance with individual property and obstacle in strict practices.
Case Law–In the case of Darshan Gupta v. Radhika
Gupta the Supreme Court while examining about
the idea of Divorce saw that separate in situations where ground is that of
pitilessness must be announced if the other party is at no flaw. In light of
this thinking the suit for divorce by the spouse was saved.
5.
Extra-marital sex (Adultery)
Extra conjugal
sex is a ground of separation under Hindu Law. A spouse can likewise apply for
a separation if her better half has submitted assault, homosexuality or
inhumanity. Normally, infidelity is, under the Act, is a ground for legal
division accessible to the two mates.
Under Section 10 of
the Indian Divorce Act, a spouse may introduce a request for the disintegration
of her marriage on the ground that "the husband has been liable of
assault, homosexuality or savagery". A comparative arrangement is additionally
given under Section 13(2)(ii) of the
Hindu Marriage Act with ad libbed to clarify that such slips by probably
occurred "since the solemnization of marriage" and not previously.
Case Law – In Ballabhdas v. Sushila Bai, Hon’ble Supreme Court observed that in case where ground of
divorce is adultery the party making the condemnation should prove beyond
reasonable doubt that the other party has indeed been adulterous and only then
a court can decree for a divorce.
6. Wife living separate
The Marriage Laws (Amendment) Act, 1976
has added to the Hindu Marriage Act a new ground for divorce under Section 13
(1A) which says that non-cohabitation for one year or more or non-restitution
of conjugal rights following a decree or order entitles either of the parties
to the marriage to proceed for divorce. This does not lead to a divorce
directly but leads to an order of judicial separation.
7. Conversion
Conversion to
different religion is a ground for separate in the Hindu Law. In Hindu law,
there is no transformation inasmuch as an individual stays a Hindu, Buddhist,
Sikh or Jain. For separate, under this, there is no plan of action of a legal
division in light of the fact that a legitimate marriage can't be assumed
between the Hindu life partner and the "changed over" mate. The Act
is, in any case, quiet with respect with the impact of the spouse's
transformation.
In Hindu Law sanyas
for example renunciation of material life for profound and strict life, is a
ground for separate. This is only for the Hindus and has no spot either under
the Special Marriage Act or some other individual law working in India.
Case Law- In Suresh Babu v. Leela, it was held that conversion to a
non-hindu religion does not automatically dissolved the marital bond but only
provides the aggrieved spouse to move towards a court for a decree of divorce
and in this relation the court admitted the decree of divorce.
8. Option of Puberty
This
idea has been presented, into the Hindu Marriage Act, 1955 of every 1976.
Received from the Muslim law of Khayyar a
Bulugh
for example Alternative of Puberty and executed under Section 13(2)(iv), a Hindu spouse may appeal to for
separate on the ground that her marriage was solemnized before she accomplished
the age of fifteen years and she has renounced the marriage in the wake of
achieving the age of 15, however before accomplishing 18 years old.
When can a person file a suit for
divorce?
By virtue of Section
14 of the Hindu Marriage Act, as a general rule, post The Marriage Laws
(Amendment) Act of 1976 the period, to move before court for divorce has been
reduced to one year from the earlier period of two years, therefore, a Hindu
person cannot ask for a divorce till the expiry of one year from the date of
marriage. There are exceptions to this general rule which says that in case of
“exceptional hardship”, the High Court is empowered to grant leave to file a
suit for divorce before the expiry of one year. This period is only for these
two particular acts and does not apply to marriages governed by any other
codified or uncodified personal laws.
Can a spouse remarry after a
divorce?
Till 1976, the Hindu
Marriage Act did not permit the parties to a marriage dissolved by divorce to
remarry until the expiry of one year from the date on which the divorce was
confirmed. But now subject to the provisions of the 1976 Amendment under
Section 15 of the Act, when no further petitions are filed by any of the
spouses against the order of divorce and the time for appeal has expired then
the divorced person can marry again.
Conclusion
Hindus believe
union with be a consecrated security. Before the Hindu Marriage Act of 1955,
there was no arrangement for separate. The idea of getting separated was
excessively radical for the Indian culture at that point. The spouses were the
quiet casualties of such an inflexible framework. Nonetheless, the time has
changed; circumstances have changed; the social stepping stool has turned.
Presently the law accommodates an approach to escape a terrible marriage by
looking for separate in an official courtroom. The genuine advocates of such an
arrangement are ladies who no longer need to quietly persevere through the
provocation or foul play caused to them by their spouses.
However, the way wherein the legal executive is managing the subject of
lost separate of marriage, it is expected that it will totally delay the
arrangement of relationships. Each hypothesis has its negative and positive
characteristics. Their pertinence contrasts from circumstance to circumstance.
Along these lines it is exceptionally basic that the administrators of our
nation should manage the subject in a wary way subsequent to considering in
detail its future ramifications.
Nivethi Natarajan
