By Vaidehi Sharma, a student of BALLB at Mohanlal Sukhadia University
Introduction
In India, marriage was considered a religious sacrament and social institution that binds two individuals and two families. Earlier, marriage institutions were considered irrevocable and people used to sacrifice themselves for the sake of their families. Now the times have changed and even a minor inconvenience causes a marital tie to break down. In recent years, India has experienced a noticeable increase in divorce rates, driven by several interrelated factors. Traditional Social Norms around divorce are changing rapidly. Traditionally Indian societies used to be conservative, with a strong stigma attached to divorce. However, modern attitudes are shifting. As society becomes more open and progressive, the taboo surrounding divorce is diminishing. Due to societal pressure, individuals are more willing to end unhappy marriages instead of staying in them[1].
Before the codification of the Hindu laws governing marriage, there was no resort to divorce as Hindu customs and scriptures do not allow for divorce. It was only after the enactment of the Hindu Marriage Act in 1955 that couples were entitled to the remedy of divorce. However, Muslim traditions do allow for the dissolution of Muslim marriage. Thus because of cultural differences, there are various laws in India governing divorce in India.
Grounds of divorce under the Hindu Marriage Act, 1955 vis-à-vis Special Marriage Act
The Hindu Marriage Act, of 1955, governs the marriages of Hindus including Buddhists, Jains, and Sikhs. Section 13 of the Act lists the grounds for divorce, which can be sought by either spouse. According to the act, any party to a Hindu marriage whether solemnized before or after the commencement of the act can seek a divorce by presenting a petition to an appropriate court.
Similarly, the parties to a marriage solemnized under the Special Marriage Act of 1954 may seek a divorce decree by presenting a petition to the appropriate court subject to the rules and provisions of the Special Marriage Act of 1954[2].
Who may present a petition under the Hindu Marriage act?
Only the parties who are Hindu by birth or conversion and who have validly married under the act are entitled to divorce. Either party to a marriage i.e. the wife or the husband can seek divorce under the act.
On what grounds divorce may be presented?
Following are the general grounds on which a divorce decree may be obtained under the Hindu Marriage Act, 1955 as well as the Special Marriage Act,1954.
Adultery[3]:
Initially, adultery was not explicitly mentioned as a ground for divorce. However, after the Marriage Laws (Amendment) Act, of 1976, adultery became a recognized ground. Adultery refers to voluntary sexual intercourse between a married person and someone who is not their spouse.
Adultery was previously an offence under section 497 of the Indian Penal Code which was later held to be unconstitutional in the case of Joseph Shine v. Union of India[4]. Through adultery is not an offence under the penal code yet it continues to be a ground of divorce.
A similar ground for divorce is available under section 27(1)(a) of the Special Marriage Act,1954. The ground is the same in extent and scope the only difference is that only the marriages solemnized under the act can seek divorce under the same act
Cruelty[5]:
Cruelty as a ground for divorce includes both physical and mental cruelty. Physical cruelty involves bodily harm or injury, while mental cruelty refers to any conduct that causes severe mental suffering, making it impossible for the spouse to live together.
The courts have adopted a very vast and constructive approach to determine the extent of cruelty. In the case of Dastane v. Dastane[6], the court held that the condition of either spouse that causes danger to the life, limb, or health of the other spouse amounts to cruelty. It even includes reasonable apprehension of such danger.
Similar ground is available to either of the spouses to a marriage solemnized under the Special Marriage Act,1954 under section 27(1)(d) of the act.
The court in the case of Ompati v. Rajbir[7] ground of cruelty for divorce is equally available to husbands, where the wife levels false allegations against the husband was entitled to seek a decree of divorce since such an act of leveling false allegations amounts to cruelty.
Desertion[8]:
Desertion means the abandonment of one spouse by the other without reasonable cause and the consent of the other spouse. The desertion must be of continuous nature which shall be for at least two years before a petition is filed.
Similar ground is available under section 27(1) (b) of the Special Marriage Act, 1954.
Conversion[9]:
- If one spouse converts to another religion, the other spouse can seek a divorce. Conversion to another religion must be genuine and not just for the sake of obtaining a divorce.Under the clause, two conditions must be fulfilled:
- Respondent has ceased to be Hindu and
- He has converted to another religion
Insanity[10]:
Mental disorder or insanity of a spouse, which makes it impossible for the other spouse to live together, is a ground for divorce. The mental illness must be of such a nature that the petitioner cannot reasonably be expected to live with the respondent.
Leprosy:
Contagious and incurable forms of leprosy are also grounds for divorce under the Act. The condition must be such that it causes the other spouse to be repulsed from living with the afflicted spouse.
With the advancement in medical science, leprosy is now mostly curable in its early stages. Thus, a mild leprosy that is curable is neither a ground for divorce nor judicial separation. But lepromatous leprosy which is malignantand contagious and in which prognosis is usually grave virulent constitutes a valid ground for divorce as was held in the case of Annapurna v. Nabakishore[11].
Venereal Disease[12]:
If a spouse is suffering from a communicable venereal disease, it can be grounds for divorce, provided the disease is in a communicable form and is incurable.
A similar ground of divorce is available under Section 27(1)(f) of the Special Marriage Act, 1954 to the spouses of marriages solemnized under the act.
Renunciation of the World[13]:
Renunciation, or ‘Sannyasa,’ where one spouse renounces the world and enters a holy order, allows the other spouse to seek a divorce.Under this clause, two conditions must be established:
- That the respondent must have renounced the world and
- He must have entered some religious order
Presumption of Death[14]:
If a spouse has not been heard of as being alive for seven years or more, the other spouse can seek a divorce on the grounds of presumed death.A similar ground of divorce is available under Section 27(1)(h) of the Special Marriage Act, 1954 to the spouses of marriages solemnized under the act.
Under Section 108, of the Evidence Act[15]a person is presumed to be dead if he is not heard of as alive for seven years or more by those who would have normally heard from him or about him hadhe been alive. The burden of proving that such a person is not dead but alivelies on him who affirms it.The question that becomes important in matrimoniallaw is; can the other spouse based onthe presumption of death assume thathe or she has become a widower or widow and therefore the marriage standsdissolved? And, on this assumption, can he or she contract a second marriage?One can do so only at his own risk. After some time if the missing spousere-appears, can the validity of the second marriage be maintained? The answer isin the negative. Not only will the second marriage not be valid, the spouse canalso be prosecuted for bigamy. To avoid the risk of the missing spouse re-appearingrendering the second marriage void,.clause (vii) of Section 13(1) provides that apetitioner may obtain a decree of dissolution of marriage on this ground. Oncethe marriage is dissolved, the petitioner is free to marry again and even if themissing spouse returns the next day after the passing of the decree or much beforethe second wedding, he can do nothing[16].
Either party to a marriage, whether solemnized under the Hindu Marriage Act, 1955 or Special Marriage Act, 1954[17]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 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 between the parties to the marriage for one yearor upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.
Wife’s Special Grounds of Divorce
Under the Hindu Marriage Act of 1955 as well as the Special Marriage Act of 1954, there are certain grounds for divorce available only to the wife of such marriage. These grounds are:
Bigamy:
If the husband had married again during the subsistence of his previous marriage i.e. the wife of the first marriage is alive at the time of solemnization of the second marriage and he had not divorced her, the first marriage shall be void and the husband may be prosecuted for bigamy under Section 82 of the Bhartiya Nyaya Sanhita, 2023.
Bigamy also constitutes a valid ground for divorce by the wife under section 13(2)(i) of the Hindu Marriage Act, 1955.
Huband guilty of Rape, Sodomy, or Bestiality[18]:
The husband has, since the solemnization of the marriage been guiltyof rape, sodomy, or bestiality.A similar ground for divorce is available to the wife under Section 27(1-A) (i) of the Special Marriage Act, 1954.
Order against Husband under section herein enumerated[19]:
In a suit under Section 18, Hindu Adoptions and Maintenance Act, or 1956, or in a proceeding under Section 125, Code of CriminalProcedure, 1973, a decree or order, as the case may be, has beenpassed against the husband awarding maintenance to the wifenotwithstanding that she was living apart and that since the passingof such decree or order, cohabitation between the parties has not beenresumed for one year or upwards.A similar ground for divorce is available to the wife under Section 27(1-A) (ii) of the Special Marriage Act, 1954.
Minority:
The marriage of the petitioner-wife was solemnized (whetherconsummated or not) before she attained the age offifteen years andshe had repudiated the marriage after attaining that age but beforeattaining the age of eighteen years. This ground is available u/s 13 (2) (iv) of the Hindu Marriage Act, 1955.
Decree by Mutual Divorce
In addition to these grounds, the Hindu Marriage Act, of 1955 also provides for mutual consent divorce under Section 13-B. For this, both parties must agree that they can no longer live together, and the marriage has irretrievably broken down. There must be a separation of at least one year before filing the petition.
Similarly, also under the Special Marriage Act of 1954, a divorce decree can be obtained mutually under Section 28 of the Special Marriage Act of 1954. To obtain a mutual divorce decree, subject to the rules and provisions of the act, the parties shall present an application to the district court 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.
[1]https://timesofindia.indiatimes.com/life-style/relationships/love-sex/why-do-most-divorces-in-india-happen-and-basic-things-that-can-prevent-them/articleshow/110699107.cms accessed on August 18, 2024
[2]Section 27(1) of the Special Marriage Act, 1955
[3]section 13(1)(i) of Hindu Marriage Act, 1955.
[4] (2019) 3 SCC 39, AIR 2018 SC 4898
[5]section 13(1) (ia) of Hindu Marriage Act, 1955.
[6]975 AIR 1534, 1975 SCR (3) 967
[7](2004) P & H 171
[8]section 13(1) (ib) of Hindu Marriage Act, 1955.
[9]section 13(1)(ii) of Hindu Marriage Act, 1955.
[10]section 13(1)(iii) of Hindu Marriage Act, 1955.
[11]1965 Ori. 72.
[12]section 13(1)(v) of Hindu Marriage Act, 1955.
[13]section 13(1)(vi) of Hindu Marriage Act, 1955.
[14]section 13(1)(vii) of Hindu Marriage Act, 1955.
[15]Section 111 of the Bhartiya SakshaAdhiniyam, 2023
[16]Ntmoo V. Nikkaram, 1968 Delhi 260.
[17]Section 13 (1-A) of the Hindu Marriage Act, 1955 & Section 27 (2) of the Special Marriage Act, 1954
[18]3(2) (ii) of the Hindu Marriage Act, 1955
