Explaining the Realm of Divorce Laws in India: Lawyers Advice
Marriage is considered sacramental in India. It is believed as the union of two souls. The Act does not use the term ”sacramental marriage” but is termed as ”Hindu Marriage” and is accepted as an obligation that needs to be fulfilled by both the spouses for all their lives. Though marriage is considered sacramental but, in case of any dispute between the husband and wife out of the matrimony, either spouse could seek a matrimonial relief or remedy. The Hindu Marriage Act, 1955 defines divorce as the dissolution of marriage. Under the Hindu Marriage Act, various reliefs have been accorded to either spouse in a marriage, from restitution of conjugal rights, judicial separation, to divorce. Under section 13 of the Hindu Marriage Act, 1955, either spouse can seek a divorce from a court of law. Section 13 of the Act deals with the grounds under which decree of divorce can be granted to the parties. Following are the grounds under section 13 (1) on which either party to the marriage are entitled to seek the decree of divorce:
Adultery: Under Section 13(1)(i) a decree of divorce can be sought if, either the husband or the wife after the solemnization of marriage, had voluntary sexual intercourse with any person other than his or her spouse. One of the essential requirements under which divorce could be granted based on adultery is the existence of sexual intercourse. In the case of H. T. Vira Reddi v. Kistamma (AIR 1969 Mad 235) Supreme Court observed that even a ‘single act’ of adultery would be a satisfactory ground for divorce. Other essentials for a decree of divorce to be granted based on adultery are-
• The act of sexual intercourse must be consensual and voluntary.
• At the time of committing adultery, the marriage was subsisting.
• There must be satisfactory circumstantial evidence to prove the liability of the spouse committing the act.
The High Court of Madhya Pradesh in the case of Hargovind Soni v. Ramdulari (AIR 1986 MP 57) observed that the offense of adultery need not be proved beyond reasonable doubt and can now be proved by a preponderance of the evidence. Earlier Adultery was punishable under section 497 of the Indian Penal Code. However, the Supreme Court in the case of Joseph Shine v. Union of India (AIR 2018 SC 4898) observed that the offense of adultery is unconstitutional as it is violative of articles 14, 15(1), and 21 of the Constitution of India and, therefore, is struck down by the court. Further, the court also elucidated on the current status of adultery as a ground for divorce and clarified that adultery is still a ground for divorce, which can be sought by either of the parties.
Cruelty: Under Section 13(1)(ia) a decree of divorce can be sought if, either the husband or the wife after the solemnization of marriage, causes reasonable apprehension in the mind of the other spouse that the other spouse’s conduct is likely to be injurious or harmful or treats the other spouse with cruelty. Supreme Court in the case of N.G. Dastane v. S. Dastane (AIR 1975 SC 1534) defined cruelty as, ”the conduct which causes danger to life, limb or health (bodily or mentally), or causes reasonable apprehension of such danger”. However, the Supreme Court made clarifications regarding the definition of cruelty in the case of Ravi Kumar v. Julmi Devi 2010(3) ALL MR SC 977 and observed that ”cruelty has no definition and even no such definition is possible”. Cruelty can be classified into two, mental cruelty and physical cruelty. Supreme Court in Shobha Rani v. Madhukar Reddi (AIR 1988 SC121) observed that the two elements i.e., nature of the cruel treatment and its effect on the aggrieved party, need to be proved for taking any action or conduct under the purview of cruelty because whether any act or conduct is an amount to cruelty or not would depend on the facts of each case.
Desertion: Under Section 13(1)(ib) a decree of divorce can be sought if, either the husband or the wife after the solemnization of marriage has deserted the other spouse for not less than two years immediately preceding the filing of the petition, without reasonable cause or the consent or against the wish of such party. Supreme Court observed in the case of Lachman Utmamchand Kirpalani v. Meena (AIR 1964 SC 40) that, it is imperative to prove in the case of desertion, that he/she was intentionally abandoned without reasonable cause and there was no bonafide attempt made by the party to return. While in the case of Bipin Chander Jaisinghbhai Shah v. Prabhawati (AIR 1957 SC 176) the Court clarified that if the husband/wife leaves the house with an intention to desert but comes back and the other party prevents from doing so, then, in that case, this act will not amount to desertion and the same was held in this case.
Conversion or Change of Religion: Under Section 13(1)(ii) a decree of divorce can be sought if, either the husband or the wife after the solemnization of marriage, adopts another religion and ceases to be a Hindu, also, in this case, the spouse who has not changed his/her religion is entitled to file a petition for a decree of divorce. The Hon’ble Supreme Court in the case of Lily Thomas v. Union of India (AIR 2000 SC 1650) observed that conversion or apostasy does not automatically dissolve a marriage already solemnized under the Hindu Marriage Act, but if a person marries a second time during the lifetime of his wife, such marriage apart from being void u/s 11 and 17 of the Hindu Marriage Act, would also constitute the offense of bigamy u/s 494 of IPC.
Insanity: Under Section 13(1)(iii) a decree of divorce can be sought, if it is established that the other spouse is a person of unsound mind or has been suffering continuously or intermittently from a mental disorder up to such an extent, that is becoming reasonable for the other party in a marriage to stop living with her, then he/she can be granted a decree of divorce. The expression ”mental disorder” used in this section signifies a mental illness, or a state of incomplete development of mind, or a psychopathic disorder, or any other kind of disability which includes schizophrenia. The Apex Court in the case of Ram Narain Gupta v. Rajeshwari Gupta (AIR 1988 SC 2260), observed that to prove mental disorder for divorce u/s 13(1)(iii) merely specifying that the spouse as schizophrenic is not sufficient. It needs to be proved that it would not be possible or safe for the other spouse to live with her/him.
Leprosy: Under Section 13(1)(iv) a decree of divorce can be sought if, either the husband or the wife is suffering from a virulent and incurable form of leprosy, that is incurable.
Venereal Disease: Under Section 13(1)(v) a decree of divorce can be sought if, either the husband or the wife is suffering from a venereal disease, that is in a communicable form and is incurable.
Renunciation of the World: Under Section 13(1)(vi) a decree of divorce can be sought if, either the husband or the wife, has renounced the world and has entered a religious order. Supreme Court in Sital Das v. Sant Ram & Ors (AIR 1954 SC 606) observed that, the renunciation must be completed complying with the ceremonies and rites prescribed by the holy order in which the person is entering.
Presumption of Death: Under Section 13(1)(vi) a decree of divorce can be sought if, either the husband or the wife, has not been heard of as being alive for at least seven years. The Onus to prove that a person has not been heard for more than seven years is on the person who affirms it.
Unavoidable Judicial Separation: Under Section 13(1A) a decree of divorce can be sought if, either the husband or the wife, seek divorce on the ground that, ”there has been no cohabitation between the parties since one year or upwards after a decree has been passed for judicial separation in a proceeding to which they were parties” and ”that there has been no restitution of conjugal rights between the parties since one year or upwards after a decree has been passed for restitution of conjugal rights in a proceeding to which they were parties”.
In addition to the grounds mentioned above, a wife has been provided four other grounds of divorce under Section 13(2) of the Hindu Marriage Act, 1955. These are as follows-
- Pre-Act Polygamous Marriage: Under Section 13(2)(i) a decree of divorce can be sought by the wife if, the husband has another wife alive(from before the commencement of the act) at the solemnization of marriage.
- Rape, Sodomy, or Bestiality: Under Section 13(2)(ii) a decree of divorce can be sought by the wife if, the husband has been found guilty of any offense coming under the purview of Rape, Sodomy, or Bestiality.
- Non-Resumption of Cohabitation After a Decree/Order Of Maintenance: Under Section 13(2)(iii) a decree of divorce can be sought by the wife if, she has obtained a decree or order of maintenance in favor of her under section 125 Cr.P.C. or Section 18, Hindu Adoption & Maintenance Act 1956 and during this period no cohabitation has been there between the parties.
- Repudiation of Marriage: Under Section 13(2)(iv) a decree of divorce can be sought by the wife if, the marriage was solemnized before she attained the age of fifteen years, and she repudiated the marriage after that age but before the age of eighteen.
Recently, there has been a rise in the divorce cases filed in India. The coronavirus outbreak has affected the personal lives of individuals by taking its toll on strained couples. Law firms and advocates have reported numerous complaints of couples who want to split-up. Therefore, it is important to know the basic grounds under which divorce can be granted. It is important to know about the rights and duties in a marriage and the same has been conveyed by courts in various judgments. Though marriage is considered sacramental in India, still the law gives the right to all individuals who want to separate or split-up, the article above addresses all the grounds mentioned under section 13 of the Hindu Marriage Act, 1955 under which divorce can be granted to all the strained couples.
Authored By: Adv. Anant Sharma & Aditi Bhawsar