Divorce under Hindu law

Introduction

Divorce is incorporated under Section-13 of Hindu Marriage Act,1955. Divorce is a concept that focuses on separation of spouses from Marital relationships. Although definition of divorce is not explicitly given under Hindu Marriage Act, 1955. However Section 13 of aforesaid act states "GROUNDS OF DIVORCE " under Hindu Law which falls under Matrimonial reliefs provided to both the spouses. 

Moreover, Section 13 of the act is categorized in two different ways-
1 - GROUNDS for both husband and wife 
2 - GROUNDS specifically given to wife

 A  Section 13(1)- GROUNDS for both husband and wife. 

The mentioned clause Section 13 of HINDU MARRIAGE ACT,1955 , explicitly gives several grounds for divorce to both husband and wife.  These grounds works as the tool to initiate divorce against one another. 

Both the spouses may seek divorce if found themselves being concerned with any of the aforesaid grounds. However, to seek divorce, it is necessary that there must be valid marriage which is going to be called off by the spouses. Furthermore,  Hindu marriage is sacramental in nature unlike Muslim law. 

Under Hindu Law, both husband and wife are considered as better half of each other who after proper solemnization considered to be married to each other. 

 NOTE- COOLING PERIOD: As Hindu Marriage is sacramental in nature, so, protecting the marriage is most concerning under Hindu law.

Furthermore, to succeed with this principle Cooling period  has been defined under HMA,1955 which states that divorce will be granted after 6 months  of initiation of divorce.  The primary agenda of Cooling off period is to make the spouses realize the value of the sacramental marriage. 

Although under some concerning situations and conditions Cooling off period  may be excused and spouses are rest assured. 

RULE OF HARDSHIP :    This rule clearly states that Cooling off period is not mandatory under some hardship situations. 

For example- A , wants to give divorce to B .Primarily both have to follow Cooling off period. However if A needs  to move abroad for some unavoidable matters relating to his second marriage . Cooling off period is not necessarily concerning in this case.

Divorce (Concept)

• In a literal sense, "divorce" refers to the legal dissolution of a marriage between two individuals.
• Historically, within Hindu Dharma Shastra, marriage was seen as a sacred and indissoluble bond, with no provisions for divorce until the enactment of the Hindu Marriage Act in 1955.
• This Act, introduced grounds for divorce under Section 13, allows parties to petition a competent court for a divorce decree.
• Dissolution of a marriage required one spouse to be found guilty of behavior that fundamentally undermined the marriage.
• This development gave rise to the fault-based theory of divorce. Despite the traditional view of marriage as an eternal union, it became evident that even such unions were not entirely beyond dissolution.
• However, prior to this codification, there was no comprehensive legal framework specifically addressing divorce.

 Theories of Divorce

• Fault Theory:
  • The fault theory of divorce, also referred to as the offense theory or guilt theory, asserts that a marriage can be terminated when one spouse commits an offense against the other, who is deemed innocent.
  • This theory necessitates the presence of both a guilty and an innocent party within the marriage.
  • Only the innocent party has the right to seek a divorce.
  • If both parties are found to be at fault, they are not entitled to any remedy.
• Mutual Consent Theory:
  • When two individuals freely choose to marry each other, they should also be allowed to separate willingly.
  • However, this approach is heavily criticized for potentially promoting immorality, as it could lead to impulsive divorces and the dissolution of marriages over minor personality conflicts.
• Irretrievable Breakdown of Marriage Theory:
  • When a marital relationship deteriorates to such an extent that there is no reasonable chance of reconciliation, the spouses are unlikely to remain together.
  • Under such extreme and challenging circumstances, the couple cannot continue their marriage.
  • Consequently, in these situations, the need to live apart outweighs the love, affection, and commitment that typically bind a husband and wife.
  • If a marriage is beyond repair, it should be terminated.
  • When a marriage cannot endure, there is no justification for maintaining the shared rights and responsibilities between the two individuals.
• Adultery:
  • Adultery had been defined under Section 13(1)(i) of the Hindu Marriage Act 1955.
  • Adultery means voluntary sexual intercourse between a married individual and someone of the opposite sex who is not their spouse, whether the other person is married or unmarried.
  • In a polygamous marriage, relations with the previous or subsequent wife are not considered adultery.
  • However, if the second marriage is invalid, sexual relations with the second wife are deemed adulterous.
  • Earlier, divorce could only be granted if a spouse was continuously living in adultery, but the Marriage Laws Amendment Act of 1976 revised this allows divorce based on a single act of adultery.
  • Marriage should be valid so as to consider Adultery as an offence.
  • Adultery cannot happen without the consenting participation of one party.
• Cruelty:
  • Cruelty includes both mental and physical abuse.
  • Such acts are behavioral manifestations influenced by different factors in the lives of spouses and their environments, necessitating a case-by-case assessment based on specific details.
  • Physical cruelty is generally more straightforward to recognize, while defining mental cruelty is more complex.
• Desertion:
  • Section 10(ib) of the Hindu Marriage Act 1955 defines desertion.
  • The respondent must abruptly and without reasonable cause, stop living with the petitioner and abandon all marital rights, obligations, and duties, demonstrating a clear intention to leave the marriage will be considered as desertion.
  • Mere absence from the home, with ongoing communication through emails or phone calls, does not qualify as desertion.
  • Divorce may be granted if the petitioner has been deserted by the respondent for a continuous period of two years immediately prior to filing the petition.
• Conversion:
  • It is defined under Section 13(1)(ii) of the Hindu Marriage Act 1955.
  • If any of the spouses converts his religion to another religion without the consent of the other spouse, then the other spouse can approach the court and seek the remedy of divorce.
• Insanity:
  • Insanity had been defined under Section 13(1)(iii) of the Hindu Marriage Act 1955.
  • The term "insanity" originates from the word "insane," which refers to a state of mind that is not sound or rational.
  • Consequently, an individual who cannot distinguish between right and wrong or who lacks the ability to give informed consent or make decisions about their surroundings is not deemed capable of entering into a marital relationship.
  • It is unreasonable to expect the petitioner to continue living with the respondent.
• Venereal Illness:
  • Venereal disease, commonly referred to as a sexually transmitted disease (STD),
  • It can be grounds for divorce under Section 13(1)(v) of the Hindu Marriage Act 1955.
  • If a spouse is suffering from a severe and incurable disease that is highly contagious, the other spouse may file for divorce.
• Renunciation:
  • A divorce can be filed under Section 13(1)(vi) of the Hindu Marriage Act 1955, if one spouse renounces all worldly affairs by embracing religion or another belief system.
  • This individual reaches a state of self-actualization, as described by Maslow, and seeks to free themselves from all worldly bonds, including marriage.
  • When a person no longer wishes to uphold the responsibilities of marriage, relationships, and family, this can serve as a fundamental reason for seeking a divorce.
• Presumption of Death:
  • Under Section 13(1)(vii), of the Hindu Marriage Act 1955 is a ground of divorce.
  • An individual is assumed to be deceased if their family or friends receive no information about them being alive or dead for a period of seven years or more.
  • This is recognized as a legitimate reason for divorce, but the responsibility to provide evidence falls on the person seeking the divorce.

 Special Grounds of Divorce for Wife

• If the husband has more than one wife, then she can exhibit an appeal for divorce under clause. (I) of sub-sec. (2) of s. 13 of the Hindu Marriage Act 1955.
• If the husband committed any Rape, Sodomy or Bestiality, then wife can dissolve the marriage under section 13(2)(ii) of the Hindu Marriage Act 1955.
• When a wife secures maintenance order under Section 125 of the Criminal Procedure Code, 1973, or a decree under Section 18 of the Hindu Adoption and Maintenance Act, 1956, and the couple has not resumed cohabitation for a year or more, thus they are eligible to file a divorce.
• If the marriage took place before the wife turned fifteen, thus she can renounce the marriage before she turned eighteen.

What are Case Laws of Divorce?

• Amardeep Singh v. Harveen Kaur:
  • It was stated that the 6 Months Waiting Period for Divorce which is provided under Section 13B(2) of the Hindu Marriage Act, 1955 by Mutual Consent is not mandatory.
• Swapna Ghose v. Sadanand Ghose:
  • It held that the direct proof of adultery is very rare.
• Suresh Babu v. Leela:
  • It was held that husband converted himself to Islam and wishes to marry another woman, thus wife demanded divorce on basis of conversion without her consent.
• Rani Narasimha Sastry vs Rani Suneela Rani:
  • The Supreme Court's decision stated that a marriage characterized by prolonged hostility towards both partners can be deemed as cruel, thereby qualifying for dissolution as per Section 13 (1) (ia) of the relevant legislation.
• Mohanlal v. Smt. Pushpaben:
  • Supreme Court held that irretrievable breakdown of marriage is a ground for divorce in India.

Conclusion

Marriage is considered a sacred bond in Hindu culture. Before the Hindu Marriage Act of 1955, there was no allowance for divorce, as it was deemed too extreme for Indian society of that era. Women were the unseen sufferers under this stringent system. The notion of divorce was not acknowledged, and it was expected that a woman would adapt and compromise. However, with the introduction of the Hindu Marriage Act in 1955, the concept of divorce and corresponding provisions began to evolve to meet the needs of an ever-changing society.