GROUNDS FOR DIVORCE
Author: Parth Jaisinghani, Symbiosis Law School, Hyderabad
Recently, a judgment was passed by Kerala High Court stating that if a wife forces his husband or threatens him to leave his parents for her then it can be a ground for divorce. The court said this action would be termed as cruelty from the wife’s side.
‘A Vinculio Matrimonii’ it means absolute or total divorce. India is such a diverse country. Different laws govern various communities. For example in the case of divorce Hindu, Jain, Buddhist, and Sikh are governed by the Hindu Marriage Act, 1955, Christians are governed by the Indian Divorce Act, 1936. In addition, Muslims are governed by the Dissolution of Muslim Marriage Act, 1939. When we scrutinize all these acts, we can find out that there are nine common grounds for divorce. These are adultery, desertion, insanity, conversion, renunciation, cruelty, venerable disease, the presumption of death. Now you must be wondering which the ninth one is. Therefore, the ninth ground was leprosy, which was recently removed by Personal Laws (Amendment) Bill, 2018. This article tries to cover each ground for divorce, what is a special provision given to women in divorce? In addition, what is essential of marriage in each personal law? In addition, this article discusses a recent plea in the apex court for a uniform civil code for divorce.
ESSENTIAL OF MARRIAGES IN EACH PERSONAL LAW:
- Hindu law: In Hindu marriages, essential are provided under sec.5 of HMA. The first core essential is both parties must be Hindu. There was a case in Ramesh Kumar v. Kannapuram Gramapanchayat. In this case, a Japanese lady used to follow Buddhism, visited India. Here she got married to a man who was Hindu under the rituals of the Niar Community. The Kerala High Court said her marriage could not be registered under sec.8 of HMA as she is not a permanent resident of our country. Also in the case of Ga [email protected] Arti Sharma v. Gopal Dutt Sharma, it was held that if wife conversion is not proved before marriage is solemnized from any other religion to Hindu. Hence, she cannot get married under this act. So she cants claim divorce under Hindu Marriage Act. Another essential is monogamy, which means having only one bye. Under sec.17 and Sec. 494 of IPC, bigamy is punishable. In the case of Sarla Mudgal v. Union of India, four Hindu men converted to Islam to practice bigamy as it is prohibited in Hindu Law. However, their conversion was declared void and hence their marriage was void ab initio. Mental Health is also essential for a valid Hindu marriage. A person should be mentally fit for marriage. If at the time of marriage, he is of unsoundness of mind or has not given consent for marriage because of a mental state hence the marriage can be termed as voidable. Also, if he is impotent then also the marriage can be termed as voidable. To make wedlock legitimate the groom must be above the age of 21 years and the bride must be above the age of 18 years. In the case of Subodh Saha v. Ajanta Shah, it was held that there is no upper age limit to get married that is a person can marry at any age but the only condition is he should be above 21 for men and she should be above 18 years. Another condition for a valid marriage is the degree of prohibited relationship that is if a boy and a girl are closely related to each other, for example, one is a lineal ascendant of other than in such cases they cannot marry. Even if the relationship is of brother and sister or uncle or aunt etc. then they cannot marry each other. Sapinda relationship is also prohibited in HMA. Sapinda means marrying within one own pind that is community. So a person marrying three-generation from the mother’s side and five-generation from the father’s side is considered prohibited. Sec three (f) of HMA talks about this type of relationship.
- Muslim Marriage- essentials in a Muslim marriage are like the essentials of a contract. There must be proper offer and acceptance, both the parties must be competent and no legal disability must be there then only the marriage is considered to be a valid one. In the case of Sayad Mohimuddin vs. Khatijabi, it was held that if a girl marries without her will then that marriage is considered to be void. In case of competence of the party, the parties must be of sound mind. There is no minimum age limit of marriage in Muslim law. A girl can get married at any age only the required condition is when she attains puberty. In Muslim law, also a person cannot marry his mother, daughter, niece, etc. Polygamy is also allowed but up to five wives only.
- Parsi Marriage- these are the following requirement for marrying under Parsi Law. A marriage is prohibited under Parsi Law if there is a relation of consanguinity. This degree is given in Schedule I of The Parsi Marriage and Divorce Act, 1865. A marriage must be done following the ceremony of Ashirvad, which is done in presence of a priest and two eyewitnesses. The age limit is the same as that is given in HMA. In the case of Maneka Gandhi v. Indira Gandhi, the marriage was done with Vedic rites hence it was not a Parsi marriage.
- Christian Law- their essentials are provided under the Christian Marriage Act, 1872. Sec.4 of the act talks about marriage can be solemnized if one of the two is Christian. The age limit for marrying is the same as that of Hindu. Polygamy is prohibited under this act. Also, there must be a licensed person who solemnizes their marriage under sec.9 and at least two eyewitnesses for the same must be there. The parties are bound to say “ I call upon these people here present to witness that, I A and B, in the presence of Almighty God and the name of our Lord Jesus Christ, take these, C and D, to be my lawful wedded wife of the husband ” or some words like this have to say while getting marring. These essentials are given in part III of the act.
Also Read Article on same topic written by Adv. Pragyata Singh
GROUNDS FOR DIVORCE IN INDIA
Divorce is a legal process of separation between spouses. This decree is granted by the district court or family court. Divorce is granted by different laws in India. Divorce is of two types a) by mutual consent- when both the parties give consent for divorce mutually that it is called divorce by mutual consent. In section 13 B of HMA and sec.28 of Special Marriage Act,1954 it is said that if spouses are living separately for more than one year then they can file a case of divorce with mutual consent. However, in the case of Christian, they have to live separately for two years, which is laid down in a sec.10 A of India Divorce Act. There are nine grounds for divorce by non-mutual consent. Apart from this, there is some additional ground given to women for divorce these are bigamy- when the husband had married more than one woman. Rape and Bestiality- when the husband had committed such a cruel and heinous act and puberty-if a girl is married before the age of 18 then when she attains the age of 18 years she has an option to either dissolve the marriage. Therefore, these were some additional grounds given to the women.
DIFFERENT THEORIES OF DIVORCE-
There are three theories for divorce-
- Fault theory- it is also called the guilt theory. This theory arises when one of the spouses has committed extra matrimonial affairs and because of this, the innocent party has given an option for dissolution of marriage.
- Divorce by mutual consent- this theory talks about the will of both the spouse. If they can marry with free consent and will then they should also have free consent to dissolve the marriage.
- Irretrievable breakdown theory- if there is some failure, which leads to the breakdown of marriage, and there is no scope of repairing their relation then in such case than getting the decree of divorce.
WHAT ARE GROUNDS FOR DIVORCE?
- Adultery- it might be not an offense in all countries but it can be a ground for divorce. It is an extramarital affair. In the case of Swapna Gosh v. Sadanand Ghosh, the wife got a divorce from her husband on the ground of adultery.
- Cruelty- it can be of both types of mental and physical cruelty. It is another ground for divorce. It is easy to determine physical cruelty but that is not the case with mental cruelty. It depends on case-to-case and how much mental trauma one has suffered. Mental cruelty was defined as ‘the state of mind’ in the case of Pravin Mehta vs Inderjeet Mehta.
- Desertion- when one party denies or refuses to follow religious and moral obligation towards spouse then it is called desertion. In this one-party deserts his marital obligation so the other party has an option for dissolution of marriage.
- Conversion- when one party converts his religion to any other religion then the other party can seek divorce.
- Insanity- when one person is of unsound mind or he is suffering from a mental disorder so the court has an opinion then in such a case it is not justified that they should live together hence another party can get a divorce.
- Leprosy- this is a type of skin disorder. Before Personal Laws (Amendment) Bill, 2018 it was a ground for divorce but now it is not.
- Venerable disease- if a person is suffering from a communicable disease then the other person can ask for a divorce.
- Renunciation- if one of the parties decides to leave all his ties and wants to move on a holy path like a saint then the other party can seek divorce.
- Presumption of death- if the husband or wife went missing for more than seven years and there is no information about that person missing then the other party can remarry.
Marriage is a holy bond, seeking a divorce is considered morally wrong in our society. Because of this wife became a silent victim. However, evolution is observed from time to time. Now the legislature has said if there is no reason for staying together and if it is affecting their mental and physical health then they can seek divorce. Hence, no injustice can arise. Still, each personal law has its flaws for divorce hence we should have a uniform code for divorce.
Recently a Public Interest Litigation was filled in Supreme Court demanding uniform civil ground for divorce for all Indian citizens. The plea stated there is so much difference in divorce law of each personal law, which is based on “religion, race, caste, or place of birth”. The plea stated as the court is the guardian of the fundamental rights of the citizen hence all these discriminatory grounds should be removed and uniform grounds must be made for divorce. This plea was filled by Adv. Ashwini Kumar Upadhyay. He said we have different laws for divorce like HMA, 1955, Special Marriage Act, 1956, Foreign Marriage Act, 1969, and Muslim, Parsi, and Christian have their laws. He also said grounds in these acts are not gender-neutral and hence violated articles 14, 15, and 21 of our constitution. Hence, there must be uniform ground for Indians. He also said these uniform guidelines must be made by the Law Commission within a period of three months.