Introduction
Marriage is considered to be a sacrament in Hindu Law. According to Mark and Young, Marriage is an institution or set of norms which determines the particular relation of harmony to each other and their children. In ancient times, the people consider marriage as an indissoluble union but this position had changed after 1955. There was no concept or provision of divorce before the commencement of The Hindu Marriage Act, 1955.
What is Divorce?
Divorce is also known as the Dissolution of Marriage. According to the Oxford Dictionary, Divorce means legally ending the marriage by the procedure of the court.[1] In simple terms, divorce means ending up of responsibility, obligations, and duties with each other and with their families. Divorce is always considered to be the harmful to their relationship and to society. Divorce can be done by various aspects but the best way to get a divorce is by mutual consent through which both the parties would be satisfied.
Grounds of Divorce
Section 13 of The Marriage Act, 1955 talks about various grounds of divorce which are as follows:
1. Adultery – When one of the spouses had voluntary sexual intercourse with any person other than spouse during the subsistence of marriage. It is a criminal offence which shall be punishable under section 377 of IPC.
2. Cruelty – There are two types of cruelty like physical and mental cruelty. Cruelty is one of the grounds through which aggrieved party may take divorce.
3. Desertion – It means abounding another spouse from the obligation of a marital relationship without any reasonable cause for more than a period of 2 years.
4. Conversion – Divorce can be granted to petitioner party if another party has ceased to be a Hindu by converted into another religion e.g., Muslim, Parsi, Christian, etc.
5. Unsoundness of mind – When the other party has been suffering from a mental or psychopathic disorder and it becomes difficult to get a cure.
6. Leprosy – Divorce can be granted to the petitioner if the other party has been suffering from an incurable form of leprosy.
7. Venereal disease – The respondent must be suffering from communicable disease and not necessary that it was transferred to the petitioner.
8. Renunciation – The spouse may seek for divorce, if the respondent has renounced the world and entered into some religious order of Hindu faith. The person who does this is considered as civil dead.
9. Presumption of death – If the respondent has not been heard as alive for a period of 7 years would consider being dead and another spouse can take divorce after the said period. The decree and order of divorce passed will be valid and effective.
Some rights to ask for a divorce is only given to wife under Section 13 (2) of the HMA, 1955 because it has presumed that, in most of the cases the woman is the only one who suffers a lot in the society. The grounds are: polygamous marriage before the commencement of marriage; rape, sodomy or bestiality has been done by the husband; no cohabitation between parties after one year or upward for the passing of maintenance decree under Section 125 of Cr.P.C., 1973; solemnization of marriage before attaining the age of 15 years and repudiate it after attaining the age of 18 years.
Theories of Divorce
There are essentially three types of divorce theory through which we can apply for divorce proceedings. To get the divorce one party should be guilty and others would be innocent. These theories are: Fault theory, Mutual consent theory, and Irretrievable breakdown of marriage theory.
Fault Theory
According to this theory, if either of the party has committed matrimonial offence then another party can seek divorce. Adultery, Cruelty, and desertion are some matrimonial offence. In this the innocent spouse has to prove the other spouse guilty or faulty.[2]
Mutual Consent Theory
In this, both the party has decided to come out of this relationship by mutually consenting each other. The divorce by mutual consent was introduced in 1976 as a provision under The Hindu Marriage Act.[3] The court in the case of Amardeep Singh vs. Harveen Kaur[4], the court held that there was no need to wait for a cooling period of 6 months but the duration of divorce varies from 6 to 18 months in mutual consent divorce.
Irretrievable Breakdown of Marriage Theory
This form of divorce was introduced in 1964 as a provision under The Hindu Marriage Act.[5] According to Section 13 (1) (1A) of HMA, the party can seek divorce if there was no resumption of cohabitation and no restitution of conjugal rights between the parties for a period of more than 1 years. Breakdown marriage becomes impossible to repair or get back to normal life and the parties can seek for divorce.[6]
Also Read – How To Respond A Divorce Notice By Husband?
How can a lawyer help?
Approaching a lawyer in divorce proceedings is a better way than do it herself. As the lawyer help you in best in the matters of property, your relationship, amount of alimony, and your child custody which you will not handle if you do not have that knowledge of the law.
Firstly, the lawyer advice you to complete and signed your required documents like address proof of spouses, marriage certificate if you have, family details, property assets owned by parties, evidence of living separately more than a year, and evidence of not getting reconciliation or reunion.[7]
Secondly, the Custody of a Child is either given to his mother or father. If one parent gets custody than visitation rights are provided to another spouse. The custody of a child is governed by The Hindu Minority and Guardianship Act, 1956. The court in the case of Surya Vadanan vs. State of Tamil Nadu[8] held that the best interest and welfare of the child shall be of paramount consideration. Manu clearly says “custody of children vested in all children within the realm in the king as the Parens Partic” .The court sees that better financial resources or love are one of the factors but are not the sole determining factors in the custody of a child. According to Section 26, the court may pass an interim order from time to time as they find just and fair for a child concerning his custody, maintenance, and wishes.[9] Important thing is to ensure the child’s future should be safe and protected.
Thirdly, is property disputes matters which you or your spouse owned separately or jointly.[10] According to Section 27, the court may pass such order in the decree to the property belongs jointly by husband and wife as they deemed just and fair.[11] Both have the right to the property of others and to secure the future of children they have to resolve it. They can make the will of their property or alter it if they had already made so that no future dispute will arise. A woman cannot claim right in the husband’s ancestral property but she does if they have joint property or if a property is purchased in the name of a woman. Children have rights in the property of both.
Fourthly, Alimony in simple terms means maintenance or support[12]. It is a pecuniary compensation given by one spouse to another after getting a divorce to balance the livelihood of that spouse whose earning is low or none. It is generally provided after divorce because immediate financial support by own is not possible. The court under Section 24 and Section 25 of HMA, 1955 may pass any decree either for wife or husband in their support but under Section 18 of HAMA, 1956 the Hindu wife shall be entitled to claim maintenance from her husband if any of the points are fulfilled under clause 2 of this section. The alimony is gender- neutral[13] as it can be asked either by husband or wife.
Conclusion
Getting married is easy but when it comes to divorce it’s become very difficult as it takes a lot of time and money. The procedure of divorce is very complex which requires the help of a lawyer who has the experience and well-versed with law.[14] The women in the society have to face many consequences, harshness, injustice from her husband, and their family. Since independence, various laws for women were made to help them to get out of all the harsh reality by seeking a divorce from the court. Divorce is not only the solution to get separate, but judicial separation is also one such option to preserve marriage.
[1] Oxford English Dictionary, 2012 edition
[2]https://shodhganga.inflibnet.ac.in/bitstream/10603/39005/12/12_chapter%204.pdf
[3]Section 13B of The Hindu Marriage Act, 1955
[4] Civil Appeal no. 11158 of 2017
[5]Section 13 (1) (1A) of The Hindu Marriage Act, 1955
[6]Id at 2
[7]https://vakilsearch.com/advice/divorce-in-india/ (last accessed on 06-06-2020)
[8]2015 (2) SCC (CIVIL) 183 (SC)
[9] Section 26; The Hindu Marriage Act, 1955
[10]Id at 7
[11] Section 27; The Hindu Marriage Act, 1955
[12]https://family.findlaw.com/divorce/alimony.html (last accessed on 07-06-2020)
[13]Ibid
[14]https://lawrato.com/divorce-legal-advice/what-is-the-procedure-for-divorce-without-mutual-consent-946
This Article Written by Poornima Gupta, Student of Delhi Metropolitan Education, Noida, Affiliated to GGSIP University
