Divorce Under Hindu Law

Khushi Pandey, 2nd Year Law Student at the Army Institute of Law, Mohali has written this article explaining divorce under Hindu Law

Marriage is union of not only two individuals rather two souls.

Introduction

The word divorce literally means the dissolution of marriage, whereby the marital status of an individual stands nullified. The Hindu Marriage Act, of 1955 governs the divorce between Hindu married couples. There are several grounds for divorce under Hindu Marriage Act, 1955. Section 13 of the Hindu Marriage Act, 1955 deals with the provision of divorce.

Section 13 of the Hindu Marriage Act,1955– Divorce Under Hindu Law

According to section 13 of the Hindu Marriage Act,1955 the conditions/grounds for divorce are as follows:-

The act provides for both fault-based and no-fault divorce. Fault-based divorce can be sought on grounds of adultery, cruelty, desertion, conversion to another religion, unsoundness of mind, and also incurable insanity. A no-fault divorce can be sought on grounds of mutual consent or irretrievable breakdown of the marriage.

1) Adultery:

If either spouse has after the solemnization of the marriage, had voluntary sexual intercourse with any other person than spouse. The other person may seek divorce.

Although adultery as a crime has been decriminalised under section 497 of the IPC. But it is still considered as a ground for divorce under Hindu Marriage Act,1955.

2) Cruelty:

If either spouse has subjected the other to physical or mental cruelty, the aggrieved spouse may seek divorce.

3) Desertion:

If one spouse has deserted the other without reasonable cause for a continuous period of at least two years, the abandoned spouse may seek divorce.

4) Conversion:

If one spouse has converted to another religion and ceased to be a Hindu, the other spouse may seek divorce.

5) Mental illness:

If one spouse is suffering from a mental disorder that makes it impossible for the spouses to live together. The other spouse may seek divorce.

Moreover, if the other spouse has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent, the other spouse may seek divorce.

In this clause,— (a) the expression “mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic disorder or also any other disorder or disability of mind and includes schizophrenia;

(b) the expression “psychopathic disorder” means a persistent disorder or disability of mind.

6) Venereal disease:

If one spouse has a venereal disease in a communicable form, the other spouse may seek divorce.

8) Renunciation:

If one spouse has renounced the world and become a sanyasi (ascetic), the other spouse may seek divorce.

9) Not been heard:

They have not been heard of as being alive for a period of seven years or more. Not heard by those persons who would naturally have heard of it, had that party been alive.

Other such grounds include-

-Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground—

• that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or
• that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.

-A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground,—

 (i) in the case of any marriage solemnized before the commencement of this Act, 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 that in either case the other wife is alive at the time of the presentation of the petition; or (ii) that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality.

Alternate relief in divorce proceedings—

Section 13A

In any proceeding under this Act, on a petition for dissolution of marriage by a decree of divorce, except in so far as the petition is founded on the grounds mentioned in clauses (ii), (vi) and (vii) of sub-section (1) of section 13, the court may, if it considers it just so to do having regard to the circumstances of the case, pass instead a decree for judicial separation.

Divorce by mutual consent –

Section 13B

 A decree of divorce may be presented to the district court by both the parties to a marriage together on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

On the motion of both the parties made not earlier than six months after the date of the presentation of the petition and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.

Further Section 14 prohibits that no application for divorce shall be made within one year of marriage. However, there are exceptions to this.

Case Laws Related to Divorce under Hindu Law

1)In the case of  Amardeep Singh v. Harveen Kaur[1], the Supreme Court had held that a 6 Months Waiting Period for Divorce by Mutual Consent is not mandatory.

In this case the parties were living separately from past 8 years, there was no chance that parties could live together again.  Hence, the Supreme Court decided that the time of interregnum or cooling time of 6- 18 months which is given under Section 13B(2) of the Hindu Marriage Act, 1955 isn’t required mandatorily. However, this can be postponed in specific situations or circumstances.

2)In Ram Narayan v. Rameshwari[2] the Supreme Court held that in schizophrenic mental disorder, the petitioner should prove not merely the said mental disorder, but also establish that account the petitioner could not reasonably be expected to live with the respondent.

3)In Sital Das v. Sant Ram[3]  it was held that someone is stated to have entered in a religious order whilst he undergoes a few ceremonies and rites prescribed via the faith. Now there are some other matters to observe here. For example, if a man/woman has entered into a religious order but comes home day by day and cohabits. Then it can not be taken as a floor for divorce because he has no longer renounced the world.

4)In Gurbux Singh vs Harminder Kaur[4] court held that Simple minor aggravations, squabbles, normal wear, and tear of married life which occurs in everyday life in all families would not be satisfactory for an award of separation on the ground of cruelty.

5)In Savitri Pandey v. Prem Chand Pandey[5] court held that “ there can be no desertion without previous cohabitation by the parties”

CONCLUSION

Section 13 outlines the numerous grounds for divorce that the spouse may have. Wives have been given more reasons to file for divorce. In the case of divorce, the Hindu marriage legislation applies the blame theory. This implies that a marriage can be dissolved if any spouse is accountable or liable for a marital violation. A divorce is an option for the innocent spouse. As holy as marriage might be, divorce must be acknowledged in a civilised culture. Higher focus on individual liberty and choices has resulted in increased acceptance of divorcees in our nation. As well as a decrease in stigmatisation, which is a beneficial trend in society.

Also Read: Procedure to adopt a child under Hindu Law

[1] CIVIL APPEAL NO. 11158 OF 2017

[2] AIR 1988 SC2260

[3] AIR 1954 SC 606

[4] (2010) 14 SCC 301

[5] AIR 2002 SC 591