This Article is written by Sushma R Patil, student of KLE Society’s Law College, Bengaluru.
Family is considered to be one of the oldest institutions of human civilization. The family was the first successful peace group, or so it is noted, of a man and a woman, learning how to adjust while at the same time teaching the pursuits of peace and happiness to their children. “Marriage” that can be said to form the foundation of a Family, has played a vital role in the stability and prosperity of civilization. Thus making civilization dependent on the effective functioning of the Family. In Family laws of various religions across the world, marriage is considered to be a Contract. But according to Hindu law, which is applicable to Sikhs, Jains and Buddhists, apart from Hindus themselves, marriage is a Sacrament. It is a sacred tie between a man and a woman with the sole object of attaining “Chaturvidha Purushartha”, i.e., Dharma, Artha, Kama and Moksha.
In the case of,
- A Jayachandra v. Aneel Kaur (2005 2 SC 22)
The Supreme Court of India made an observation that “there may be physical union as a result of marriage for procreation, but what is essentially contemplated is the union of two souls.” Also “Marriage is considered to be a junction of three duties, i.e., social, religious and spiritual.”
The court requires a “legal reason” to end marriage. One of the main reasons between judicial separation and divorce is that Judicial separation only leads to separation of the husband and wife without ending their matrimonial rights and obligations towards each other. While in Divorce, the matrimonial rights and obligations of the parties to the marriage come to an end.
Divorce as a concept was unknown to general Hindu law, as marriage was regarded as an indissoluble union of the husband and wife. ‘Manu’ had declared that “a wife cannot be released from her husband either by sale or by abandonment”, implying that marital tie cannot be severed in any way. But with the advancement in the socio-economic conditions of the society, the concept of marriage has evolved and changed, so also the concept of divorce.
THEORIES OF DIVORCE
Various forms of divorce are discussed under various theories of divorce.
- Fault Theory
- Mutual Consent Theory
- Irretrievable Break-Down Theory
- FAULT THEORY
This theory is also known as the Guilt / Offence theory of divorce. It essentially evolved as a concept in the 19th century, when society abhorred divorce as an evil or a devil’s mischief and therefore society could agree for divorce only on the basis that one of the parties to the marriage has committed a sin.
Thus in present times, in accordance with this theory, if a party to marriage commits a matrimonial offence, the aggrieved party may seek a divorce from the spouse. It is to be noted here that only the matrimonial offence is considered to be as grounds for divorce. No criminal offence, howsoever heinous, can act a ground for divorce.
Thus, the fault theory stipulates for two things:
- A Guilty party – the party who has committed one of the specified matrimonial offence
- An Innocent party – the party who has been outraged and has no role, in anyway, in the matrimonial offence of the other party.
THE GROUNDS OF DIVORCE
It can generally be defined as an act of a married person having sexual intercourse with a person outside the marriage, i.e., other than their husband or wife, as the case may be. Adultery as a ground for divorce in Hindu law has been defined under Sec. 13(1)(i) of the Hindu Marriage Act, 1955, as the act of a party to a marriage, after solemnization of marriage, of having voluntary sexual intercourse with any person other than his or her spouse.
Thus, the essential ingredients are:
- There should be an act of sexual intercourse outside the marriage
- Such an act must be voluntary.
There has been a disparity between the courts judgments as to the extent to which circumstantial evidence can be termed as proof of adultery.
- Banchhanidhi v. Kamala Devi (AIR 1980 Ori 171)
Odisha High Court, in the particular case, held that the circumstances must be so compelling that the only irresistible conclusion can be adultery.
- Subbarama v. Saraswathi (1966 2 MLJ 263)
The Madras High Court held that where an unrelated person is found with wife after midnight, the same may be inferred to be an adulterous act.
The Indian Courts time and again had stressed that adultery has to be proven beyond a reasonable doubt, meaning that the spouse who intends to file for a divorce petition on the ground of adultery, should be able to substantiate the same with proper evidence. However, the Supreme Court has expressed views deviating from such notions, stating that proving beyond a reasonable doubt is essential in criminal cases and not civil cases.
- Dastane v. Dastane (1975 AIR 1534, 1975 SCR (3) 967)
In the particular case, the Apex court held that there certainly is no necessity of the presence of proof beyond a reasonable doubt where personal relationships are involved, especially the one between a husband and wife.
Cruelty as a ground for divorce, inserted through the 1976 and of the Hindu Marriage Act, is mentioned under Section 13(1)(a) of the Act.
Before the said amendment to the Act, cruelty was considered to be ground, only for judicial separation, and to constitute which, the petitioner should have been treated with such cruelty to cause a reasonable apprehension in his/her mind that to continue living with the respondent would be harmful or injurious to health. But in the case of
- Dastane v. Dastane ( AIR 1975 1534)
Supreme Court held that whether a spouse has suffered cruelty or not is a subjective matter that courts should decide on a case-specificmanner.
The current status of cruelty as a ground between judicial separation and divorce is distinguished with the use of words “persistently and repeatedly” for the latter.
Cruelty can be both physical and mental
- Mayadevi v. Jagadish Prasad ( AIR 2007 SC 1426 )
The Supreme Court held that since the term “cruelty” has not been expressly defined under the Act, it can be physical or mental.
Section 13 (1)(b) of the Act states desertion as a ground for divorce if the other party to the marriage has, “deserted the petitioner for a continuous period of not less than 2 years immediately preceding the presentation of the petition.” Desertion is a continuing offence, meaning that the factum and the animus must continue during the entire statutory period.
- Savitri Pandey v. Prem Chand Pandey
The Court held that “there cannot be desertion without previous cohabitation by the parties.”
Conversion, of one of the parties to a marriage, to any other religion, is a valid ground for divorce under Section 13(1)(ii) of the Act.
The Act has enunciated the essentiality for this ground:
- The Respondent has ceased to be a Hindu,
- By conversion to another religion.
The Act provides for disease as ground.
Mentioned under Section 13 (1) (iii) of the Act
Considered as a ground if a party to the marriage has been:
- Incurably of unsound mind
- Suffering continuously or intermittently from a mental disorder
Of such kind and to such extent that the petitioner cannot reasonably be expected to live with the respondent.
Mentioned under Section 13(1)(v) of the Act
Considers venereal diseases as grounds. It is to be noted that venereal diseases are both kinds, communicable or non-communicable. But only the communicable ones are considered as grounds.
Provided as a ground for divorce under Section 13(1)(vi) of the Act, the term “renunciation” could imply to withdraw from worldly pursuits to lead a non-secular life.
As per the Act, the essentialities are that the respondent must have:
- Renounced the world, and
- Entered any religious order
- Sital Das v. Sant Ram (1954)
The Court held that if a married man or woman has entered into a religious order but comes home day by day and cohabits, then it cannot be taken as a floor for divorce because they have no longer renounced the world.
G. PRESUMPTION OF DEATH
The Act provides the same as a ground for divorce under Section 13(1)(vii), which states that a party to a marriage, if not heard of as being alive for a period of 7 years or more by those persons who would have naturally heard of it, had that party been alive, is presumed dead. Thus the spouse of such a party can file a divorce petition.
H. FRAUD OR MISREPRESENTATION
Generally, it means that one party to a marriage, grossly misrepresented issues so important that the other party would not have married, had they known the truth.
Fraud or misrepresentation could have been done in matters of religion or age or property or in performance of any ceremony/ritual of marriage.
I. WIFE’S SPECIAL GROUNDS FOR DIVORCE:
Under the Act, Section 13(2), the wife is also entitled to file the divorce petitions on the grounds that:
- Any other wife of the husband married before such commencement was alive at the time of solemnization of marriage, or
- The husband, since the solemnization of marriage, been guilty of rape, sodomy or bestiality.
- Her marriage was solemnized before she attained the age of 15 years and she has repudiated the marriage after attaining that age but before attaining the age of 18 years.
- MUTUAL CONSENT THEORY
Under Section 13 (B) of the Act, divorce on mutual consent of the parties is given as a ground.
There are 3 essentialities for the same:
- They have been residing separately for 365 days.
- They have not been capable of living together
- They have together agreed that the marriage has to be dissolved.
It is to be noted here that both the parties are able to document a joint petition for divorce by means of mutual consent.
- Londhe v. Londhe (1984)
The Court held that either party can withdraw the petition after thinking over the matter, meaning that they can withdraw the earlier consent though not obtained by means of fraud, undue influence and coercion.
- IRRETRIEVABLE BREAKDOWN THEORY
It can be defined as such failure in the matrimonial relationship or such circumstances adverse to that relationship that no reasonable probability remains, of the spouses remaining together as husband and wife for mutual comfort and support.
- K Srinivas Rao v. D A Deepa (2013) 5 SCC 226
The Court in this particular case held that irretrievable breakdown of a marriage is not a basis for divorce under the Hindu Marriage Act, 1955. However, where marriage is beyond repair due to the animosity induced by the actions of the husband or the wife or both, the courts have often treated the irretrievable dissolution of marriage as a severe situation, inter alia, causing matrimonial separation. A marriage that is dissolved cannot be restored by the decision of the court if the parties are not able to do so.
The Supreme Court recently dissolved a marriage by exercising its inherent powers under Article 142 of the constitution, even as it recognized that there is no statutory law for recognizing irretrievable breakdown of marriage as a ground for divorce in India.
The Bench observed that such powers are not exercised routinely. However, the same could be invoked in rare cases.
Divorce is different from Judicial separation, as in divorce all mutual obligations and rights of husband and wife cease to exist except those concerning Section 25 (maintenance and alimony) and Section 26 (custody, child education), unlike in Judicial separation.
As already mentioned, the concept of marriage has evolved through time and so has the concept of Dissolution of marriage. Yet, there is a long way to go for society to be able to accept Divorce, not as a sin or an evil, but as a remedy.
- The Hindu Marriage Act, 1955, Act No.25, Acts of Parliament, 1955.
- Parshav Gandhi, Grounds for divorce under the Hindu Marriage Act, 1955 (May 14 2019), https://blog.ipleaders.in/grounds-divorce-the-hindu-marriage-act/.
- Explained Desk, Explained: How Indian courts have seen mental cruelty as grounds for divorce (May 14, 2020, 8.42 PM), https://indianexpress.com/article/explained/explained-how-indian-courts-over-the-years -have-seen-mental-cruelty-as-grounds-for-divorce-6407154/.
- Rintu Mariam Biju, Irretrievable breakdown of marriage : “Nothing remains in this marriage”, Supreme Court invokes Article 142 to grant divorce (Dec 18, 2019, 12.40 PM),https://www.barandbench.com/news/irrretrievable-breakdown-of -marriage-nothing-remains-in-this-marriage-supreme-court-invokes-article-142-to-grant-divorce/.