By Isha Thakur, Law Student, SNDT Law School
firstname.lastname@example.org | Dec 10, 2020
According to the Hindu religious codes/tenets, marriage is considered to be a religious sacrament, sanctified in the presence of gods. Marriage, being regarded as sacrosanct, is an obligation meant for procreation and preservation of the familial legacy as per the Hindu Dharma. In the pre-independence era, the term ‘divorce’ was a peculiar concept and traditionally there was no concept of divorce. Husband and wife were expected to live together in a conjugal relation despite of grave disagreements or infliction of unethical and immoral behaviour.
British India had only one enactment regulating the matrimonial laws which specifically governed the individuals professing Christianity. It was in 1955 that the Parliament of India thought it necessary to legislate a law on Hindu marriage and its dissolution and subsequently, the Hindu Marriage Act, 1955 was enacted. Under ancient Hindu law, divorce was not recognized and under the Act of 1995 also, divorce is not favoured or encouraged and permitted only on certain serious, specific grounds which are provided as below.
Who can apply for divorce (Applicability) under the Hindu Marriage Act, 1955:
The Hindu Marriage Act, 1955 governs the following categories of persons: –
1. Any person who is a Hindu, Buddhist, Jain or Sikh by religion;
2. Any person who is domiciled in India, who is not a Muslim, Christian, Parsi or Jew by religion and who is not governed by any other law; or
3. Any child (legitimate or illegitimate) whose both or one of the parents is a Hindu, Buddhist, Jain or Sikh by religion (provided that incase of one parent professing the herein mentioned religions, the child is brought up as a Hindu, Sikh, Jain or Buddhist).
Grounds for Divorce under Hindu Law or the Hindu Marriage Act, 1955:
A petition for divorce can be presented by one party on the ground that the other party has indulged in an act of sexual intercourse with a third party, however, such an act must be voluntary and consensual and without the prior approval/consent of the spouse. A single act of adultery is sufficient to invoke this ground, however, an attempt to commit adultery is insufficient. Adultery is no longer a criminal offence and circumstantial evidence is enough to prove the commission of the act.
It constitutes any act, conduct or behaviour which causes apprehension to one’s life or causes harm to one’s health and/or reputation or causes mental agony. However, such an act/conduct/behaviour must be so grave that it should not be possible for any reasonable person to tolerate such conduct. Cruelty can be physical as well as mental. Lack of mutual love, respect and understanding amounts to cruelty but it has to be differentiated from general depletion of marital bond.
An act of voluntary abandonment of spouse for a minimum period of two years without any just and reasonable cause. It is important that the abandoned spouse has not consented to such desertion. Desertion can be actual (physical desertion) and constructive (mental/emotional abandonment).
If a party ceases to be a Hindu by converting to another religion (i.e., a non-Hindu religion), in such circumstance, the other party can file a divorce petition on this ground. The converting spouse must, however, complete all the requisite formalities/rituals for such conversion and should actually preach the new religion.
If a party is suffering continuously or intermittently from a mental disorder to such an extent that its’ not reasonably possible to live with him, then the other party can file a petition for divorce by invoking such a ground. However, a marriage shall be treated as voidable if a person had been suffering from mental disorder before solemnization of marriage, without the knowledge of his/her spouse.
A party can file a divorce petition on this ground only if his/her spouse is suffering from ’virulent’ and ‘incurable’ form of leprosy. No duration is specified in the Act for this purpose.
These are the sexually transmitted diseases. A person can file a divorce petition on this ground if his/her spouse is suffering from a venereal disease in a communicable form. However, the spouse must not have contracted the disease from such person itself. The defense of curability or innocence cannot be taken in such case.
If a spouse renounces the world and enters into religious order, the other spouse can file a petition for divorce. A person is considered to have entered into religious order when he performs all the ceremonies/rituals prescribed by such order.
PRESUMPTION OF DEATH
If a person has not been heard of being alive for a continuous period of seven years by individuals who would have naturally heard of him, then his/her spouse can file a divorce petition on this ground.
When a decree of judicial separation is passed under the Act and even after one-year cohabitation has not resumed between the parties, in such case, either party can file a petition for divorce.
When such a decree has been passed under the Act and even after one year of passing the decree, there has been no restitution of conjugal rights/obligations, either party can file a divorce petition.
Grounds for divorce (available only to wife):
The wife can seek divorce on any of the following grounds: –
1. If the marriage is solemnized under the Hindu Marriage Act, 1955 and the husband marries another woman in spite of his first wife being alive, in such case, the first wife can file a petition for divorce.
2. If the husband has committed an offence relating to rape, sodomy or bestiality.
3. If cohabitation has not resumed even after one year of passing of the decree of maintenance in favour of the wife.
4. If the wife got married prior to attaining the age of fifteen then after attaining fifteen years but before eighteen years of age, the wife can repudiate the marriage irrespective of the fact of consummation of marriage.
Both husband and wife may jointly file a divorce petition before a District Court on the grounds that:
1. they have been living separately for a minimum period of one year;
2. they have not been able to live together; and
3. they have mutually decided that their marriage should be dissolved.
After presentation of the petition, the parties have to wait for a period of six months (‘Cooling Period’), however, not exceeding eighteen months from the date of filing the petition. After the aforesaid period, they are collectively/jointly required to move a motion in the Court that divorce be granted.
The Court, on being satisfied that the averments contained in the petition are true, shall pass a decree of divorce thereby dissolving the marriage. It is important to note that the parties to a divorce petition by mutual consent have the liberty to withdraw the consent at any time during the proceedings until the divorce decree is passed.