CONCEPT AND GROUNDS OF DIVORCE

By | February 24, 2017

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Divorce was unknown to the laws of Dharamshastras as marriage was regarded as indissoluble union of the husband and wife. Manu does not approve of dissolution of marriage in any conditions. He declared, “Let the mutual fidelity continue till the death, this in brief may be understood to be the highest dharma of husband and wife. The duty of a wife continues even after her husband’s death. She can never have a second husband.” The majority of the ancient jurists expressed their disapproval of the divorce. It was only in the unapproved forms of marriage where they favoured divorce, that too in the extreme cases of distress.

The provisions of Divorce in the existing Marriage law i.e., the Hindu Marriage Act, 1955 has brought about a radical change in the legal concept of Hindu Marriage. Section 13 of the Act describes the circumstances which extend the right of divorce. Section 14 renders the provisions of divorce a bit difficult as it provides that no petition for divorce can be presented within one year of the marriage unless it causes exceptional depravity on the part of the Respondent. Section 15 lays down the limitations on the right of the divorced persons to marry again.

GROUNDS FOR DIVORCE

 Adultery

Adultery is an extramarital sex. It is a consensual sexual intercourse between a married person and a person of the opposite sex not being the other spouse, during the subsistence of the former’s marriage.

While adultery may not have been recognized as a criminal offence in all countries, the matrimonial offence of adultery or the fault ground of adultery is recognized in most. Even under the Shastric Hindu law, where divorce had not been recognized, adultery was condemned in the most unequivocal terms.

Though initially a divorce could be granted only if such spouse was living in adultery, by the Marriage Laws Amendment Act, 1976, the present position under the Hindu Marriage Act is that it considers even the single act of adultery enough for the decree of divorce.

Since adultery is an offence against marriage, it is necessary to establish that at the time of the act of adultery the marriage was subsisting. Also, it follows that unless one willingly consents to the act, there can be no adultery. If the wife can establish that the co-respondent raped her, then the husband would not be entitled to divorce.

In Swapna Ghose v. Sadanand Ghose the wife found her husband and the adulteress to be lying in the same bed at night and further evidence of the neighbours that the husband was living with the adulteress as husband and wife is sufficient evidence of adultery. The fact of the matter is that direct proof of adultery is very rare.

The offence of adultery may be proved by:

  • Circumstantial evidence
  • Contracting venereal disease

Cruelty

The concept of cruelty is a changing concept. The modern concept of cruelty includes both mental and physical cruelty. Acts of cruelty are behavioural manifestations stimulated by different factors in the life of spouses, and their surroundings and therefore; each case has to be decided on the basis of its own set of facts. While physical cruelty is easy to determine, it is difficult to say what consists of mental cruelty. Perhaps, mental cruelty is lack of such conjugal kindness, which inflicts pain of such a degree and duration that it adversely affects the health, mental or bodily, of the spouse on whom it is inflicted. In Pravin Mehta v. Inderjeet Mehta,  the court has defined mental cruelty as ‘the state of mind.’

Some Instances of Cruelty are as follows –

  • false accusations of adultery or unchastity
  • demand of dowry
  • refusal to have marital intercourse/children
  • impotency
  • birth of child
  • drunkenness
  • threat to commit suicide
  • wife’s writing false complaints to employer of the husband
  • incompatibility of temperament
  • irretrievable breakdown of marriage

The following do not amount to cruelty-

  • ordinary wear & tear of married life
  • wife’s refusal to resign her job
  • desertion per se
  • Outbursts of temper without rancour.

Desertion

Desertion means the rejection by one party of all the obligations of marriage- the permanent forsaking or abandonment of one spouse by the other without any reasonable cause and without the consent of the other. It means a total repudiation of marital obligation.

The following 5 conditions must be present to constitute a desertion; they must co-exist to present a ground for divorce:

  • the factum of separation
  • animus deserdendi (intention to desert)
  • desertion without any reasonable cause
  • desertion without consent of other party
  • Statutory period of two years must have run out before a petition is presented.

In Bipinchandra v. Prabhavati,  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.

Conversion

When the other party has ceased to be Hindu by conversion to any other religion for e.g. Islam, Christianity, Judaism, Zorostrianism, a divorce can be granted.

Insanity

Insanity as a ground of divorce has the following two requirements-

  1. The respondent has been incurably of unsound mind
  2. 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.

Leprosy

Contagiousness of leprosy and repulsive outward manifestations are responsible for creating a psychology where man not only shuns the company of lepers but looks at them scornfully. Thus, it is provided as a ground for divorce. The onus of proving this is on the petitioner.

Venereal Disease

At present, it is a ground for divorce if it is communicable by nature­ irrespective of the period for which the respondent has suffered from it. The ground is made out if it is shown that the disease is in communicable form & it is not necessary that it should have been communicated to the petitioner (even if done innocently).

Renunciation

“Renunciation of the world” is a ground for divorce only under Hindu law, as renunciation of the world is a typical Hindu notion. Modern codified Hindu law lays down that a spouse may seek divorce if the other party has renounced the world and has entered a holy order. A person who does this is considered as civilly dead. Such renunciation by entering into a religious order must be unequivocal & absolute.

Presumption of Death

Under the Act, a person is presumed to be dead, if he/she has not been heard of as being alive for a period of at least seven years. The burden of proof that the whereabouts of the respondent are not known for the requisite period is on the petitioner under all the matrimonial laws. This is a presumption of universal acceptance as it aids proof in cases where it would be extremely difficult if not impossible to prove that fact. A decree of divorce granted under this clause is valid & effective even if it subsequently transpires that the respondent was in fact alive at the time when the decree was passed.

 

Wife’s Special Grounds for Divorce

Besides the grounds enumerated above, a wife has been provided four additional grounds of divorce under Section 13(2) of the Hindu Marriage Act, 1955. These are as follows-

Pre-Act Polygamous Marriage

This clause states the ground for divorce as, “That the husband has another wife from before the commencement of the Act, alive at the time of the solemnization of the marriage of the petitioner. For example, the case of Venkatame v. Patil, where a man had two wives, one of whom sued for divorce, and while the petition was pending, he divorced the second wife. He then averred that since he was left only with one wife, and the petition should be dismissed. The Court rejected the plea.

Such a ground is available if both the marriages are valid marriages & the other wife (2nd wife) should be present at the time of filing of the petition. However, today this ground is no more of practical importance.

Rape, Sodomy or Bestiality

Under this clause, a divorce petition can be presented if the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality.

Non-Resumption of Cohabitation after a Decree/Order of Maintenance

If a wife has obtained an order of maintenance in proceedings under Section 125, Cr.P.C., 1973 or a decree under Section 18, Hindu Adoption & Maintenance Act, 1956 & cohabitation has not been resumed between parties after one year or upwards, then this is a valid ground for suing for divorce.

Repudiation of Marriage

This provision provides a ground for divorce to the wife when the marriage was solemnized before she attained the age of fifteen years, and she has repudiated the marriage, but before the age of eighteen. Such repudiation may be express (written or spoken words) or may be implied from the conduct of the wife (left husband & refused to come back). Moreover, this right (added by the 1976 amendment) has only a retrospective effect i.e. it can be invoked irrespective of the fact that the marriage was solemnized before or after such amendment.

Beside these grounds, the divorce as a customary divorce can also be seeked through mutual consent under Section 13-B.

Author: Mayank Shekhar

Mayank is a student at Faculty of Law, Delhi University. Under his leadership, Legal Bites has been researching and developing resources through blogging, educational resources, competitions, and seminars.