In the words of the Concise Oxford Dictionary of Sociology (1994), ‘the formal legal dissolution of legally constituted marriage’ is called divorce. It is a process through which marital bond ceases to be in existence as per law and the couple can no longer be called the husband or the wife. Like marriage, it is governed by cultural rules and varies from society to society and from time to time. In countries like Spain, Brazil and Peru marriage is indissoluble except by the death of either of the partner. In Islam and Judaism husband has the power to terminate his marriage by simply renouncing his wife. Hindu marriage is considered as a sacred and permanent bond of seven lives. According to Manu, the husband and the wife should always treat each other in such a manner that no occasion may arise for them to separate from each other. Despite this, early textbooks such as Hind Dharma Sastras approve the dissolution of marriage under certain special circumstances. Narada and Parashara have laid down rules that marriage could be dissolved if the husband was found to be kliba or impotent. According to Narada, if a woman finds that her husband is lacking masculinity and virility, she has to wait for six months and after the lapse of this period, she can get separated from him. Smritis has laid down five cases in which the wife is allowed to have the second husband. They are (i) if the husband is missing (ii) if the husband becomes an ascetic (iii) if the husband is impotent (iv) if the husband is degraded from the caste (v) If a husband is dead. Few other conditions have been laid by prominent Hindu scholars such as Kautilya and Kapadia. In modern times various legislations were passed to allow divorce in Hindu marriage as traditionally divorce was considered as a sinful activity and was not easy to perform. The first legislation in this regard was passed in Kolhapur state during the 1920s. Saurashtra Government passed a similar type of Act in 1952. Few other legislations were The Bombay Hindu Divorce Act, 1947 and Madras Hindu Bigamy Prevention and Divorce Act, 1949. On an all India level, the Special Marriage Act, 1954 and the Hindu Marriage Act,1955 legally permitted divorce to Hindus. The Hindu Marriage Act, 1955 amended in 1976 and 1981, provides for divorce.
Grounds for Divorce under the Hindu Marriage Act, 1955
1. Adultery:
The act of voluntarily indulging in any kind of sexual relationship including intercourse outside marriage is termed as adultery. According to Section 13(1)(i) to the Act, if the spouse is indulged in adultery at any point of time after the marriage, then this can be a ground for divorce. This was indulged in the Act through The Marriage Laws (Amendment) Act, 1976. Before that, the expression “living in adultery” was used. The famous cases in which divorce was given on this ground are Swapna Ghosh vs Sadananda Ghosh And Anr. [AIR 1989 Cal 1], Sachindranath Chatterjee vs Sm. Nilima Chatterjee [AIR 1970 Cal 38] and Veerendra vs Smt. Geeta.
2. Cruelty:
This was made as a ground for after the Marriage Laws (Amendment) Act, 1976. Before that, it was ground for judicial separation only. Here, cruelty amounts to mental cruelty. It can be broadly defined as the conduct which sets one party to such mental pain and suffering as would make it not possible to live with the other. This is a ground for divorce as per section 13(1)(ia) of the Act. The term “mental cruelty” is defined from time to time in many cases such as Narayan Ganesh Dastane vs Sucheta Narayan Dastane [AIR 1975 SC 1534], Sirajmohmedkhan Janmohamadkhan vs Hafizunnisa Yasinkhan & Anr [AIR 1981 SC 1972], V. Bhagat vs D. Bhagat [AIR 1994 SC 710], Savitri Pandey vs Prem Chandra Pandey [AIR 2002 SC 20], Gananath Pattnaik vs State of Orissa [AIR 2002 SC 1], Parveen Mehta vs Inderjit Mehta [AIR 2002 SC 3930], A. Jayachandra vs Aneel Kaur [AIR 2004 SC 7763] and Vinita Saxena vs Pankaj Pandit [AIR 2006 SC 1687].
In the case of Samar Ghosh vs Jaya Ghosh [AIR 2007 SC 151], the apex court put down some cases which amount to mental cruelty:
- Withholding sex without reason.
- Unilateral decision not to have a child.
- Abortion or sterilization without consent of the spouse.
- Nagging behavior.
- Indifference and frigidity.
- Denial of the company.
- Filthy language and verbal abuse.
- False allegations
3. Desertion:
Desertion of spouse for a continuous period of at least two years is a ground for divorce under section 13(1)(ib) of the Act. The fundamental elements of desertion are: (i) The factum of separation; (ii) Intention to desert by the other party; (iii) It should be without any reasonable cause; (iv) It should be without the consent of other party; (v) The statutory period of two years must have run out before the petition is presented. In Bipin Chander Jaisinghbhai Shah vs Prabhawati [AIR In 1957 SC 176] the Supreme Court held that where the respondent leaves the matrimonial home with an intention to desert, he will not be guilty of desertion if subsequently, he shows an inclination to return & is prevented from doing so by the petitioner. The famous cases in which divorce was given on the ground of desertion are Daljit Kaur vs Balwant Singh [AIR 1982 Raj 230] and Smt. Shanti Devi vs Govind Singh [AIR 1983 Raj 211]
4. Conversion:
According to section 13(1)(ii) of the Act, if either of the spouses converts himself or herself to another religion then the other can file divorce against him. In the case of T. S. Chandarasekhara Mudaliar and ors vs Kulandaivelu Mudaliar and ors [AIR 1963 SC 185], the supreme court stated that a person will not cease to be a Hindu if he does not practice his religion, or does not have faith in his religion or leads an unorthodox life, so much so even if he eats beef and insults all Hindu gods and goddesses. He will also not cease to be a Hindu even if he expresses his faith in another religion and even starts practicing another religion. Such a person will continue to be a Hindu. Thus, ceasing to be a Hindu is hardly material except in the context of the conversation.
5. Unsoundness of mind:
This ground is provided in section 13(1)(iii) of the Act. As per the provision of this section, if the spouse is of incurable unsound mind or suffering continuously or intermittently from mental disorder then other partie can take divorce from him. Before Marriage Laws (Amendment) Act, 1976, the period of duration of unsoundness of mind has been omitted and elaborative clarifications have been made. Before that, it was the provision that the spouse must be in mental disorder for a continuous period of not less than three years immediately before the filing of the petition. After the amendment it includes schizophrenia.
6. Virulent and incurable leprosy:
Leprosy, also known as Hansen’s disease, is a chronic infectious disease caused by Mycobacterium leprae. The disease mainly affects the skin, the peripheral nerves, mucosal surfaces of the upper respiratory tract and the eyes. As per section 13(1)(iv) of the Act, if one party is suffering from leprosy then other can file a suit of divorce against him. It is not sufficient that he or she is suffering from leprosy, it must be virulent i.e. injurious and incurable.
7. Venereal Disease:
It means the diseases which are caused by sexual intercourse. For making a ground for divorce under section 13(1)(v) it must be in a communicable form. Congenital syphilis is excluded from its ambit. In Marriage Law (Amendment) Act, 1976 the duration of the disease is removed. Earlier the period was three years. It has also omitted the words, “disease having not been contracted from the petitioner”.
8. Renunciation:
This ground for taking divorce as per section 13(1)(iv) of the act can be fulfilled only when two conditions are satisfied. They are that the spouse must have renounced the world and must have entered some religious order. The renouncement of the world by entering any religious order must be absolute. Mere wearing saffron clothes and working as a pujari in a temple doesn’t amount to renunciation. As per the judgment of the apex court in Sital Das vs Sant Ram And Ors. [AIR 1954 SC 606], a person enters into holy or religious order when he undergoes the ceremonies and rites prescribed by the order which he enters.
9. Presumption of Death:
As per section 108 of the Indian Evidence Act, 1872, if a person is not heard alive for a period of seven years or more than he is presumed to be dead. Now, the question arises that whether the other party can assume that he or she has become a widower and window and can perform a second marriage? They can do at their own risk. But if after the marriage the missing spouse re-appears than not only the second marriage will be nullified but the spouse will be prosecuted for bigamy also. To eliminate this risk, section 13(1)(vii) of the Act provides that the spouse may obtain a divorce on this ground. Once the divorce is granted then he is free to re-marry even if the missing spouse appears on the next day of the decree.
Wife’s Special Grounds of Divorce
Section 13(2) of the Act provides for special grounds in which only wife can seek divorce. Originally there were only two grounds but after Marriage Laws (Amendment) Act, 1976 two more grounds have been added. They are:
1. In the case of any marriage solemnized before the commencement of the Hindu marriage act, 1955, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner, provided in either case the other wife is alive at the time of the presentation of the petition.
2. The husband has, since the solemnization of the marriage been guilty of rape, sodomy or bestiality.
3. In a suit under section 18, Hindu Adoptions and Maintenance Act, 1956, or in a proceeding under section 125, Code of Criminal Procedure, 1973 a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards.
4. The marriage of the petitioner -wife solemnized (whether consummated or not) before she attained the age of fifteen years and she had repudiated the marriage after attaining that age but before attaining the age of eighteen years.
