Marriage, whether a contract or a sacrament, is the nucleus of society. It provides certain conjugal rights and liabilities to the spouses towards each other. The basic principle of marriage is that the husband and wife legitimize their relationship and consequently share the pain and pleasure of life. In case if one of the spouses happen to leave the society of the other due to discord or dispute of minds, the aggrieved them can, by filing a petition to the District Court, can seek the decree of divorce on the condition that the Court is satisfied by the cause put forth by the aggrieved. However, earlier divorce was unknown to general Hindu law as marriage was regarded as an indissoluble union of the husband and wife.
Meaning of Divorce:
Divorce is straight away the dissolution of the marriage, i.e., the end to the cohabitation of the husband and the wife. It is an end to the consortium. There are different theories related to the concept of divorce. Some of them can be read as; a) fault theory, b) mutual consent theory, c) irretrievable breakdown of marriage theory, etc. the fault theory contemplates that the marriage can only be dissolved if one of the parties to the marriage has committed some matrimonial offence and the other party is aggrieved to it. Thus, it is necessary that one party is at fault and the other be innocent. In case both parties are at fault, there is no remedy available. Moreover, in mutual consent theory, the two persons can move out of a marriage by their mutual consent. However, Kautilya had also inscribed the concept of divorce by mutual concept. Further, in the irretrievable breakdown of marriage theory, the marriage is dissolved on the ground of failure of matrimonial relationship. Thus, the concept of divorce is fundamental and explicit.
Grounds for Divorce:
The ancient Hindu culture conceded marriage as an unbreakable bond for life. However, the evolving concept of marriage under Hindu laws recognizes marriage based on some specific grounds. The Hindu Marriage Act, 1955 enshrines provision for the dissolution of marriage based on all the aforementioned divorce theories. Section 13 (1) of the Act envisages eight divorce grounds, which either of the parties can file. However, earlier it used to be nine grounds, but the Amendment Act of 2019 has removed leprosy as a ground of divorce. Moreover, section 13 (2) specifies four grounds where the wife alone can seek divorce.
The grounds are:
- Venereal Disease
- Presumed Death
The grounds of divorce available for the wife only under section 13 (2) of the Act:
- Polygamous Marriage
- Rape, Sodomy or Bestiality
- Non-redemption of Cohabitation after a Decree
- Repudiation of Marriage
The aforementioned can be explained here as under:
Adultery means voluntary sexual intercourse beyond the capacity of the lawful wedlock. It has been added as a ground for divorce. If the husband or the wife had sexual intercourse with a person other than his/her spouse, it is considered a ground for divorce. The Shastri Hindu law also condemned the act of adultery. However, even a single act of adultery can become a ground for divorce. The act of adultery is no more an offence. Know more about Adultery Laws in India.
The concept of cruelty has evolved and includes both mental and physical cruelty. It is the most difficult thing to decide a parameter for cruelty. So, it is to be decided on the circumstances and facts of each case. Thus, cruelty, whether physical or mental, is a ground for divorce.
Learn More: Cruelty As A Ground for Divorce in India
Desertion means rejection of all kinds of matrimonial obligations and rights. If the husband or the wife, without any reasonable cause or justification and the consent of the spouse, abandons her/his society or cohabitation for a term of two years in continuation, it becomes a valid ground for divorce under section 13 (1) of the Act.
When any of the parties to a marriage has ceased to be a Hindu by conversion to any religion other than Hindu, a suit for divorce can be granted by the Court.
Insanity is a reasonable ground for divorce under the Hindu Marriage Act,1995. If a person is incurably insane or intermittently insane, it is difficult for the other spouse to live the rest of the life with them; the aggrieved can seek divorce by making the insanity of the person ground for divorce.
Venereal diseases are diseases that are communicable by nature. If any of the spouses is suffering from any venereal disease, it becomes a valid reason for divorce. However, it is immaterial whether the disease has been communicated to the other spouse. It is sufficient that one of the spouses is diagnosed with such a disease.
If the husband or the wife is unheard of as being alive, for a period of a minimum of seven years, to such person(s) to whom he is supposed to be heard of, is presumed to be dead, and the Court can pass a decree of divorce. However, the decree remains to be effective even if the person against whom it has been passed appears to be alive.
Under Hindu law, renunciation of the world is considered to be a valid ground for divorce. In the Hindu religion, renouncing the world is a holy nation. The spouse can seek a divorce because the other spouse has renounced the world to enter religious gratification. Thus, renunciation is a valid ground for divorce.
The grounds available only to the wife under section 13 (2) can be elucidated as:
If the husband has another wife alive at the time of the marriage, the wife can file a divorce petition. In other words, if the husband is married once or more than once before the time of the marriage and all the wives/ wife of such person is alive at the time of the marriage, the last wife or other can also seek the decree of divorce by filing a divorce petition under section 13 (2) of the Act.
Rape, Sodomy, or Bestiality:
If the husband has been guilty of rape, sodomy, or bestiality since the solemnization of marriage, the wife can seek divorce by filing a divorce petition.
Non-resumption of Cohabitation after a decree:
If the wife has obtained a decree under section 18 of the Hindu Adoption and Maintenance Act, 1956 for maintenance or the court has ordered maintenance for the wife under section 125 of CrPC. The husband has not cohabited with his spouse for a period of one year after the Court's order; the wife can file a petition to seek divorce.
Repudiation of Marriage:
The wife can avail this ground for divorce only if she was married before the age of fifteen years, and she has repudiated the marriage or refused to come back to her husband’s place after the marriage. Still, such repudiation has to be done before attaining the age of eighteen years.
Author: Shweta Singh