Grounds for Divorce

THE HINDU MARRIAGE ACT, 1955: A GENERAL ANALYSIS ON GROUNDS FOR DIVORCE

Author: Adv. Pragyata Singh

INTRODUCTION

Marriage is a sacrament which we can find in every religion with different customs. Marriage being a sacramental union was an inviolable and immutable union and thus even death did not dissolve the marriage, this is according to the Dharmashastra which also did not recognize divorce or any attempt of dissolving the marriage. On the other hand, whether consider it as a sacrament or contract marriage gives rise to status[1].  Status of husband and wife on the parties to marriage and status of legitimacy on children from their marriage. The basic difference between the marriage contracts is that a commercial or mercantile contract does not give rise to any status, but marriage does and when once the marriage is performed the contract of marriage has utility in respect of the social status, or in regard to any rights and liabilities arising under it.

According to Hinduism in India and a legal point of view, marriage is meant for procreation and to continue family lineage and not to fulfill sexual desires and pleasures and under Hindu Law, it is an obligation which once accepted and should be maintained by both the parties throughout their lives. Hindu law is a legal system or it can be said it is a set of rules and regulations for the Hindu community so they can practice their traditions without violating any constitutional base of our country.

This article deals with the part made in the Hindu law for divorce but earlier this dissolution of marriage part is unknown to general Hindu law as marriages are considered indissoluble as discussed above but with the change of the time and through legislative modifications in the Hindu law of marriage this divorce concept has been added, but if we go through the customs divorce was not accepted by the old laws[2], but due to the need of the justice and stability of relations and peace within the communities some hard changes also be needed now how evolution in the part of divorce under Hindu law take place discussed below.

DIVORCE: A GENERAL PRESPECTIVE

For the society divorce or a dissolution of marriage is very big step to take but with the evolution of the society this practice take place at very large scale but still considered as last option because relations and with that liabilities and responsibilities towards each other  are priority and taught by almost every generation to generation on the other hand marriage is not considered a relation only between two parties but a relation between the two families the bond of care, love, and responsibilities goes hand to hand through both the families or the importance can be realized  by knowing the fact that a father  put and save a large amount of his income from the day her daughter born for her marriage and on the other hand the family of a groom accepting a girl with whole of the rituals and promise to respect and take care of her throughout her whole life so considering a marriage is just a normal part to play is totally wrong it plays a very important role but still due to some major issues the concept of dissolution of marriage has been added to our this system which also essential because every marriage cannot be consider as a successful marriage and every person have a right to stay happy not in the burden.

DIVORCE: HISTORICAL BACKGROUND

According to ancient Hindu law, it was an obligation that “once a marriage is always a marriage”  both parties cannot get out of the bond so easily, not even the death of parties can separate them or dissolve the marriage. An old Hindu saying that wife is a “half-body” of husband i.e. “Ardhangini”. It is defined as a union of bones with bones, flesh with flesh and skin with skin, the husband and wife consider as they become as if they were one person.[3] But with evolution, the first Indian Matrimonial Law has closely followed the development from English law. The Indian Divorce Act, 1869 is based on Matrimonial Causes Act, 1857, and lays down the same obligations of divorce[4], but it was only applied only to the Christian community and to their marriages at that time. Then the Indian Divorce Act was followed by the Special Marriage Act 1872 and then this Act was also repealed by the Special Marriage Act 1954. The Special Marriage Act was passed in 1954 and the Hindu Marriage Act, 1955 introduced[5].

DIVORCE: RELEVANT THEORIES

Fault Theory

By the name only it can be understood that this theory will apply when there is someone’s fault or in other words it can be said the marriage will come to the end when either one of the spouses is responsible for not fulfilling or performing his or her duties and on the other hand whosoever is the victim will seek the remedy but if both the parties are equally responsible then no one can seek the remedy.

Mutual Consent

According to this theory both the parties come to the decision to get separated and they can seek divorce on their mutual terms and if the court is satisfied that decision is mutually as well independent that is no one is forced to give their consent then only court will grant the divorce on their mutual agreement.

Irretrievable Breakdown

This theory talks about failure of matrimonial relationship or it can be said every marriage is not happy marriage and due very reasonable grounds the relationship cannot be continued and divorce is only the option to take so that both of the spouse can spend their lives in a better way as everyone have right to do so

DIVORCE UNDER THE HINDU MARRIAGE ACT, 1955

 Under the Hindu community Divorce is permitted only through The Hindu Marriage Act, 1955 with certainly reasonable grounds and this is the first time in history such permission is granted under Hindu law, in the Act of 1955 customs and special legislation are also saved on that basis grant of the dissolution of marriage is given in this time but still, in certain tribes and communities the divorce is only an exception and consider as uncivilized by the Hindu elite which is also recognized by the courts through the binding force of customs[6], but on the other hand, it is not recognized by general Hindu law.

Regarding the provisions of divorce The Hindu marriage act has been amended twice from the time it’s passed and such two important amendments are firstly Hindu Marriage (Amendment) Act, 1964 and secondly The Marriage Laws (Amendment) Act, 1976, after 1976 amendment was passed the stabilization into the divorce provisions have been settled with the new ground namely mutual consent of the parties regarding divorce.

In the act, there are some specific provisions regarding valid divorce on which both parties are free to ask for the dissolution of marriage in the court of law, but on the other hand, firstly every alternative are tried to save their marriage, for example, arbitration, etc. so that both can give the second thought on their impulsive decision and if needed then only over the grave and satisfying reasons the divorce will be granted otherwise suitable alternatives will be given by the court.

DIVORCE: GROUNDS OF DIVORCE

The base of Hindu Marriage Act is fault theory which is already discussed above and according to that

By Section 13(1) parties can approach the court of law and ask for the divorce and seek the remedy, there are many different grounds given under this section which are discussed below and they all are applicable on both husband and wife-

  • If they had voluntary intercourse or sexual relations with any other person .
  • Treating their spouse with cruelty.
  • Not living or deserted their spouse more than two years without any reasonable cause.
  • covert themselves into any other religion other than hindu
  • Spouse is of unsound mind or any other mental disease or disorder due to which it is difficult to live with him or her.
  • any of spouse suffering from a virulent and incurable form of leprosy
  • if spouse is suffering from any venereal disease which is communicable
  • any of spouse is not heard as being alive for more than 7 years

By Section 13(2) which is available for wife only grounds are given which are as follows

  • if the wife is alive and during that period without any reasonable cause husband marry to any other lady then wife has all sought of right on this ground to ask for a divorce
  • if the husband is guilty of rape, sodomy or bestiality from the day they both get married on that basis she can ask for divorce
  • By Section 18 from the Hindu Adoption and Maintenance Act, 1956, or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 if under this any case falls then husband will pay maintenance to his wife, living apart, and no cohabitation will take place for one year or upward until the case over.
  • wife can ask for divorce  or on his behalf any suitable person if her age is not eighteen during the commencement of marriage

By Section 13-B of the Hindu Marriage Act this is available for both the parties when they are seeking divorce mutually for that they need file an application before six months and after completion of six months further proceedings will take place.

DIVORCE: CASES

  • Vinita Saxena vs Pankaj Pandit (2006) 3 SCC 778 

This case is related to the mental cruelty, in this case, the behavior between the married couple in the matrimonial house or any respective house is having a very big role to play, the conduct of spouse or his or her family members by speaking rude, taunting, complaining, putting useless accusations, etc. are sometimes impact very much on other personal mental health and when they continue for a very long period of time after putting every sought of efforts for settling them then the spouse can seek for divorce.

  • Suresh Babu vs Leela 2006 (3) KLT 891

This case is related to the conversion of religion in which the husband converts himself into a Muslim and marries another wife so Leela filled a case and on the ground of conversion without her consent and cruelty and demand for divorce.

In this case, the husband leaves the house with the intention of abandoning his wife but in court when she seeks for divorce she is not able to prove her point, because her husband clearly stated the reason that in spite of leaving the house with the intention but that was only a mere decision of heat of the moment, but he always tried to come back and her wife prevented that so no divorce is granted in this reason.

This is a case of insanity in which the husband is suffering from mental disorder namely Paranoid Schizophrenia and her wife know about this after marriage on which basis the wife asks for divorce which is granted to her on this reasonable ground which confirmed by the reports.

  • Swarajya Lakshmi vs G. G. Padma Rao 1974 AIR 165, 1974 SCR (2) 97

This is the case of an incurable disease in which the wife is suffering from leprosy which is a skin disease and on that basis, the husband seeks divorce and court grant divorce in this case on this reasonable cause.

DIVORCE: CONCLUSION

Marriage is the oldest form of joining two people, families and community but as our Constitution clears that everyone has right to live freely and happily on that basis people seek divorce but on our land divorce is considered as last option when there are all sought of tolerance is done, then person thinking of getting away but then also when parties are tried their every way then court also first try its professional methods by giving them mediation, arbitration, keeping them under one roof, etc. but if then also the feeling of stability is not generated between the parties then only divorce is granted because as divorce is not only the separation of parties it is a very hard decision against the children because both mother and father are responsible for raising their child, giving them proper atmosphere but if divorce is only the way giving them peaceful environment then divorce is granted through Hindu Marriage Act and according to the acts of the communities.


[1] Rajneesh Rajpurohit (Dr.) v. Savita, AIR 2008 Raj 119, ―”the concept of marriage under the Shastric Hindu Law is a sacrament, religious ceremony which results in a sacred and a holy union of man and wife by which the wife is completely transplanted in the household of her husband, become a part and parcel of the body of her husband.”

[2] . B.M. Gandhi- Hindu Law, 3rd edn. 2008, p.297. Eastern Book Company, Lucknow.

[3] See Dr. P.V.Kane, History of Dharmashastras, Vol. II, part I, pp.427-428.

[4] Bombay Hindu Divorce Act, 1947; Madras Hindu (Bigamy Prevention and Divorce) Act, 1949 Saurashtra Hindu Divorce Act, 1952.

[5]Prof. G.C.V. Subba Rao- Family Law in India, 8th edn. 2005, p.205, S. Gogia & Company, Hyderabad

[6] Swarajya Lakshmi v. Padma Rao AIR 1974 SC 165.

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