INTRODUCTION

The term ‘divorce’ finds its etymological roots in the Latin word ‘divortium’, which signifies a turning aside or separation. In legal terms, divorce represents the formal dissolution of a matrimonial union, effectively terminating the marital bond between two individuals. It marks the conclusive end of the spousal relationship, where the parties involved cease to be husband and wife under the law. Prior to the enactment of the Hindu Marriage Act in 1955, the Courts generally regarded themselves s hamstrung in matters of marriage and divorce.[i]

Marriage under the Hindu law was considered to be a sacrament and more or less indissoluble, exceptions apart, under customary law. However, over a period of time, we have moved from the concept of indissolubility of marriage to a fault-based divorce, to practically divorce on demand. The Hindu Marriage Act, 1955 revolutionised the entire concept of divorce and provided for several grounds for divorce. These are fault-based grounds where an aggrieved party could seek relief of divorce from the opposite guilty party. The grounds were, adultery, cruelty, desertion, conversion, renunciation, unsoundness of mind, leprosy and presumption of death.

In 1976, the ground for divorce by mutual consent was added to the Hindu Marriage Act. Prior to 1976, the only Indian statute which provide or divorce by mutual consent was the Special Marriage Act, 1954. Further, in 1964, non-resumption of cohabitation after a decree of judicial separation or restitution became a ground available for divorce to both the decree holder and the judgment debtor. In 1978, the Law Commission of India, in its 71^st Report, strongly recommended am introduction of breakdown of marriage as a ground for divorce. In 1981, a Bill was introduced providing for irretrievable breakdown of marriage as one of the grounds for divorce. The Supreme Court also made recommendations in this direction in various judgments pursuant to which the Marriage Laws (Amendment) Bill, 2010 and 2013 were introduced.

DIVORCE

Section 13 of the Hindu Marriage Act, 1955 which provides for divorce. As per the Act, 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 the ground that either party:

1. Has, after the solemnization of the marriage, treated the petitioner with cruelty,
2. Has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse,

• Has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition

1. Has ceased to be a Hindu by conversion to another religion
2. Has been incurably of unsound mind or has been suffering continuously or intermittently from mental disorders of such a kind and to such an extent that the petitioner cannot reasonable be expected to live with the respondent.

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 –

1. 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
2. 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 of restitution of conjugal rights in a proceeding to which they are parties.

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

1. In the case of any marriage solemnized before the commencement of this Act, that the husband had marriage 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,
2. That the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality,

• That in a suit under Section 18 of the Hindu Adoptions and Maintenance Act, 1956, or in a proceeding under Section 125 of the Code of Criminal Procedure, 1973 [now Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023], a decree or order, as the case may be has been passed against the husband awarding the maintenance to the wife notwithstanding that she as 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.

1. That her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before the age of eighteen years. .

GROUNDS FOR MATRIMONIAL RELIEFS

1. Adultery

Adultery is a serious matrimonial lapse and even the most liberal of societies view this as extremely damaging to a harmonious marital relationship. Under almost all the personal law statutes in India, adultery of a spouse entitles the other to seek divorce or judicial separation. Under Sections 13(1)(i) and 10(1) of the Hindu Marriage Act, 1955, either the husband or the wife may file a petition for dissolution of marriage or judicial separation respectively, on the ground that the other party “has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than his or her spouse.”

2. Cruelty

As was held in the Supreme Court case of Ravi Kumar v. Julmi Devi, cruelty has no definition and can be of infinite varieties.[ii] Under Sections 13(1)(i) and 10 of the Hindu Marriage Act 1955, as amended by the Marriage Law (Amendment) Act 1976, cruelty is a ground for divorce as well as judicial separation. Section 13(1)(ia)states that a marriage may be dissolved on the ground that the other party has “after the solemnisation of the marriage, treated the petitioner with cruelty”. Prior to 1976, cruelty was only a ground for judicial separation.

3. Desertion

When one spouse leaves another in a manner which is not justifiable, the deserted spouse has a remedy by way of matrimonial reliefs. For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely:

1. The factum of desertion
2. The intention to bring cohabitation to a permanent end (animus deserendi)

Under the Hindu Marriage Act, prior to the 1976 amendment, desertion was grounds for judicial separation only. However, after the amendment, this is grounds for both divorce and judicial separation. Section 13(1)(ib) of the Act provides so as a ground for divorce. In this Section, the expression ‘desertion’ means the desertion of the petitioner by the other party to the marriage without reasonable casue and without the consent or against the wish of such party, and excludes the wilful neglect of the petitioner by the other party to the marriage.

4. Conversion

Conversion could have the following legal effects on the marriage:

1. An automatic dissolution of the marriage
2. A ground for divorce at the instance of the non-convert

• A ground for divorce at the instance of the convert.

Under Section 13(1)(ii) of the Hindu Marriage Act, any marriage solemnized, whether before or after the commencement of this Act, may, on a petitioner presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party has ceased to be a Hindy by conversion to another religion.

5. Fraud

Under Section 12(1)(c) of the Hindu Marriage Act, a marriage may be avoided on the ground that the consent of the petitioner or the consent of the guardian when such consent is necessary for the marriage, was obtained by force or fraud. This force or fraud has to be:

1. As to the nature of the ceremony
2. To any material fact or circumstance concerning the respondent

Prior to 1976, under Section 12(1)(c), a marriage could have been avoided only when such consent was obtained by fraud and the crucial time for ascertaining the existence of fraud was the time when the marriage was actually performed. In Rasikal v. Sulochana, the court clearly laid down that “a fraud said to have been practised at the time of an agreement to marry would would include also a betrothal, would not ipso facto be a ground available to an aggrieved party to avoid a marriage”.[iii]

CONCLUSION

The evolution of divorce laws under the Hindu Marriage Act, 1955, reflects a significant shift from the indissoluble nature of traditional Hindu marriages to a more flexible and responsive legal framework. Initially governed by rigid sacramental views, divorce now accommodates various grounds such as cruelty, adultery, desertion, and conversion. The Act’s amendments, including the introduction of mutual consent in 1976 and the recognition of irretrievable breakdown in subsequent years, signify a progressive approach to marital dissolution. These reforms address the complexities of modern relationships and acknowledge the need for legal recourse in cases of marital discord. As societal norms and values continue to evolve, ongoing legislative updates and judicial interpretations will likely further refine the grounds for divorce, balancing traditional principles with contemporary needs. This dynamic legal framework underscores the importance of adapting legal standards to reflect and address the changing nature of marital relationships.

 

 

[i] J Duncan M Derrett, The Death of a Marriage Law: Epitaph for the Rishis, (1978).

[ii] Ravi Kumar v. Julmi Devi, (2010) I DMC 411 SC.

[iii] Rasikal v. Sulochana, (1967) ILR Guj. 822.