The Revised grounds for Divorce under Hindu Marriage Act, 1955

The Revised grounds for Divorce under Hindu Marriage Act, 1955



THE PERSONAL LAWS (AMENDMENT) ACT, 2019 OMITTED ‘LEPROSY’ AS GROUND OF DIVORCE

The provision related to the concept of divorce has been introduced in the Hindu Marriage Act, 1955, which describes divorce as a “dissolution of the marriage.” So, divorce is permitted only for a grave reason on the defined ground/s otherwise given another alternative.

Further, in the Hindu Marriage Act, the provision of divorce is defined under Section 13 as:

“Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on any of the ground or grounds mentioned under this provision.”

Further, the provision of divorce is categorized into two parts as:
The Revised grounds for Divorce under Hindu Marriage Act, 1955

Based on the fault theory, the Section 13 of the Hindu Marriage Act, describes the provision under which one of the aggrieved spouses can approach the court of law to dissolve his/her marriage (through divorce) under any one or more of the ground/s mentioned below:

GROUNDS FOR DIVORCE

As per Section 13 (1), following are the major grounds of divorce:

Adultery

Adultery, defined under Section 497 of the Indian Penal Code, is defuncted on September 27, 2018 by a judgement of the Supreme Court of India. However, adultery still is a valid ground of divorce.

In adultery, there must be voluntary or consensual sexual intercourse between a married person and another, whether married or unmarried, of the opposite sex, not being the other’s spouse, during the subsistence of the marriage.

Since adultery is an offense against marriage, it is necessary to establish the fact that the offense was committed while the marriage was subsisting. Also, it follows that unless one willingly consents to the act, there can be no case against adultery. The offense of adultery may be proved by: Circumstantial evidence and Contracting venereal disease.

Cruelty

Cruelty is a pattern of atrocious behavior especially by one of the spouses over other one. Under such behavior, the aggrieved spouse has consistently been tortured and abused by his or her spouse physically as well as mentally. The physical cruelty means when one spouse beats or causes any bodily injury to the other spouse. But the concept of mental cruelty was added as the spouse can also be mentally tortured by the other spouse. Mental Cruelty is lack of kindness which adversely affects the health of the person.

Following are the points, which are considered as Mental Cruelty against the spouse:

> Humiliating the spouse in front of his or her family and friends
> Undertaking the termination of pregnancy without husband consent
> Making false allegation against him or her
> Denial for Martial Physical Relationship without a valid reason
> Wife/husband having affair
> Spouse living an immoral life
> The constant demand for money
> Aggressive and uncontrollable behavior
> Ill-treatment to the in-laws or/and parents and other family members

Case Law

Balram Prajapati vs Susheela Bai

In this case, the petitioner filed the divorce petition against his wife on the ground of mental cruelty. He proved that his wife’s behaviour with him and his parents was aggressive and uncontrollable and many times she filed the false complaint against him. The court accepts the petition and grants the divorce on the ground of cruelty.

Desertion

In Simple term, desertion means the rejection of the obligations of marriage by one party. Further, Desertion means the permanent abandonment of one spouse by the other spouse without any reasonable justification and without his/her consent.

Following are the essential factors for desertion:

> Permanent abandonment of the spouse.
> Rejection of the obligation of marriage.
> Without any reasonable justification.
> Without consent of the spouse.



Conversion

If one of the spouses converts his or her religion and start practicing another religion without the consent of his or her spouse, then the aggrieved spouse can approach the court to seek the remedy of divorce.

Illustration

A, a Hindu has a wife B and two children. One day A went to church and converted to Christianity without the consent of B, here B can approach the court and seek for divorce on the ground of conversion.

The Revised grounds for Divorce under Hindu Marriage Act, 1955

Insanity means unsoundness of mind; so, when one of the spouses turns insane, then the second party has the right to get divorce. Insanity as a ground of divorce has the following two requirements:

The respondent has been incurably of unsound mind.
The respondent 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.

Venereal Disease

Under this concept, if the disease is communicable or contagious and it can be transmitted to the other spouse, then this can be considered as the valid ground for divorce.

Illustration

A and B get married in 2011. Later A infected with a venereal disease and it is incurable. In this case, there is also a chance that B can also get infected by that disease. Here, B can approach the court for dissolution of marriage.

The Revised grounds for Divorce under Hindu Marriage Act, 1955
Renunciation

It means ,when one of the spouses decides to renunciate the world and walk on the path of the God, then the other spouse can approach the court to demand the divorce. In this concept, the party who renunciates the world is considered as civilly dead. It is a typical Hindu practice and considered as a valid ground for divorce.

Illustration

A and B got married and lives a happy life. One day A decides to renunciate the world. Here, B has a right to approach the court and seek the remedy of divorce.   

The Revised grounds for Divorce under Hindu Marriage Act, 1955

Presumption of Death

In this case, the person is presumed to have died, if the family or the friends of that person does not hear any news about the person alive or dead for seven years. It is considered as the valid ground for divorce, but the burden of proof is on the person who demands the divorce.

Illustration

A was missing from the last seven years and his wife B does not get any news about him of being alive or dead. In this case, B is free from the marital obligation and hence, she can remarry.


Divorce with Mutual Consent (Section 13B)

Section 13B of Hindu Marriage Act, defines the provision of divorce with mutual consent and it states that 

1. “Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), 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.”

2. “On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) 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.”

The Revised grounds for Divorce under Hindu Marriage Act, 1955

CONCLUSION

For the interest of the society at large, the marriage or the martial relationship needs to be surrounded by every safeguard, based on this principle, the various provisions of Hindu Marriage Act and other such Acts, properly defined the provisions of dissolution of marriage very comprehensively and hence court grants divorce only after proper investigation and adequate satisfaction and it is done under the specified provisions of law.


Author 
Ms. Pooja Lahoti



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