Since the Vedic Era, the connection shared between the spouses in Hindu marriage has been considered to be of immense sanctity. Over the years, the sacrosanct bond of marriage has evolved to be characterized as a ceremony between the life partners. A codified law i.e., the Hindu Marriage Act, 1955 (referred to as ‘the Act’ hereinafter) is present to govern Hindu marriages. Though there existed no such concept of dissolution of marriage in the ancient times as marriage was then considered as a religious sacrament which could only be put to an end by the death of one of the spouses, however, with the changing society divorce has now been established as a custom to dissolve marriage. As per Manu, the marital bond could not be severed in any manner. Nevertheless, the Arthashastra by Kautilya acknowledged the notion of dissolution of marriage through mutual consent in case the marriage falls under any unapproved arrangement.
The concept of Divorce in Hindu marriage was first recognized in the Hindu Marriage Act, 1955 wherein certain grounds have been provided on fulfillment of which either spouse will be entitled to seek for divorce. It has been defined as “dissolution of the marriage” in the Act. In other words, all the mutual obligations of the spouses towards each-other cease to exist and they are granted the freedom to lead their own way. The only exception is Section 25 as well as Section 26 of the Act which deals with alimony, maintenance, custody and education of the child. Under normal circumstances, the Act is applicable on Hindus, Jains, Buddhists and Sikhs.
Table of Contents
Difference between Judicial Separation and Divorce
The institution of marriage is regarded as a sacred institution. As discussed earlier, the concept of dissolution of marriage was not known in the ancient times and it was considered as an irrevocable relationship shared between the spouses. However, with the passing of the Hindu Marriage Act 1955, the parties can simply break their marital bond if facing severe problems in marriage with the help of Judicial Separation or by seeking for Divorce under the Act.
The grounds for seeking divorce as well as judicial separation are made the same through the Marriage Laws (Amendment) Act, 1976. It is up to the spouses to opt for any of the methods of dissolution.[1] Either the husband or wife can file a petition under section 10 of the Act seeking judicial separation. Even though some matrimonial obligations and rights continue to exist, once a favorable decree to the parties is passed, they are not obligated to live together. For the duration of the separation, obligations and rights stay suspended.
While seeking judicial separation, a petition can be filed at any time post marriage, however, in case of divorce; it can be filed only after the completion of the first year of marriage. Moreover, through divorce marriage is brought to an end and both the partners are free to remarry on passage of the decree, whereas, in case of judicial separation, the rights and obligations are temporarily suspended and the spouses are not allowed to remarry throughout separation.
Various theories pertaining to Divorce
Essentially, there are three prevalent theories related to divorce, i.e., mutual consent, fault and irretrievable breakdown of marriage theory.
The fault theory is also known as the guilty or the offences theory, under which the marriage can be brought to an end only under such circumstances where one of the spouses commits a matrimonial offence. For this theory to apply, it is pertinent to have an innocent as well as a guilty party and the remedy to seek divorce is only available to the innocent party. Nonetheless, one of the major shortcomings of this theory is that if both the parties are found to be at fault, then no such remedy is available.
The mutual consent theory reflects the notion that since two individuals are supposed to exercise their free will while marrying one another, they should also be provided with the option of moving out of the bond by exercising their free will, in case of a failed marriage. However, this theory is criticized by stating that it promotes immorality and would lead to frequent divorces.
As per the irretrievable breakdown, the marriage is dissolved owing to failure of the relationship. Either of the spouses can seek divorce as last resort when it becomes impossible for both the partners to cohabit again.
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Grounds of Divorce and Judicial Pronouncements
It is in the societal interest that marriages should be safeguarded and severance of this sacrosanct relationship is only allowed by the procedure and for the reason established by law. Seeking the remedy of divorce is not promoted or favored and is only allowed for grave and severe reasons. Certain grounds are mentioned under section 13(1) of the Act, on the fulfillment of any of which, either of the partners can seek the remedy of divorce. In addition to that, two more grounds are provided under section 13(2) by using which only the wife is allowed to apply for divorce. The bases on which divorce can be sought are discussed further for better understanding.
Adultery
Even though the offence of adultery has been decriminalized,[2] it is regarded as one of the most important grounds for filing divorce as per the Act. Adultery can be defined as voluntary sexual intercourse among a married person and any person other than his/her spouse. In case, the second marriage of a person is not valid, then if the person is indulged in sexual intercourse with the second wife, it would amount to adultery. In the current scenario, even a single act constituting adultery is considered enough for seeking divorce.
Cruelty
It has been established by the plain reading of the text and through a catena of judicial pronouncements that cruelty involves both physical as well as mental cruelty. Cruelty was not regarded as a ground for divorce from the beginning and was only a basis for seeking judicial separation. It was only after the amendment brought in 1976 that it was recognized as ground for seeking divorce as well.[3]
Desertion
Desertion refers to the state where a spouse is permanently relinquished by another with no reasonable justification available and without taking his consent. In other words, when either of the parties to a marriage denies fulfilling marital obligations and rejects them altogether, it can be considered as desertion. There are certain conditions that need to be present to constitute desertion, this includes the intention and fact of desertion, absence of any reasonable ground, without obtaining the consent of other party and before a petition could be presented, a statutory time period of not less than two years must have passed.[4]
Conversion
In such circumstances, where either the husband or the wife adapts any other religion and ceases to be a Hindu without obtaining the consent of the significant other, then the significant other can file for divorce on this ground.
Insanity
Insanity is considered as a valid ground for divorce. It refers to the condition when the person is not of a sound mind. For seeking divorce on this ground, any of the two conditions needs to be fulfilled; first, the unsoundness of the mind of respondent is incurable; second, the respondent has suffered from such a form of mental illness on an ongoing or irregular basis and to such a degree that the complainant cannot fairly be expected to live with the respondent.
Leprosy and Venereal Disease
Leprosy is a contagious and infectious disease of the skin, nervous system etc. Since this disease is communicable and can be transmitted from one individual to another, it is seen as a valid ground for seeking divorce. Moreover, if a person is suffering from any venereal ailment which is of a communicable nature, divorce can be sought on such ground.
Renunciation
When either of the spouses decide to renounce worldly pleasures and seek the path of the heavenly power, then the significant other can apply for divorce. In this case, the person who renunciates the world is regarded as socially dead. This practice is prevalent in the Hindu culture and constitutes a valid ground for seeking divorce.
Assumption of Death
In case any of the relatives or friends of a person have not heard from that person for the past seven years or so, it is assumed that the person is dead. It is regarded as a valid ground for seeking divorce; however, the burden of proof lies on the individual who seeks divorce. Any decree passed under this clause remains effective and completely valid even if the respondent turns out to be alive subsequently.
There are certain special grounds which are available only to the wife for seeking divorce. If the wife finds out that at the time of the marriage, the first wife of the husband was alive, she can seek divorce on this ground under Section 13(2)(i) of the Act. Furthermore, if the husband turns out to be guilty of the offence of rape, sodomy or bestiality, the wife is entitled to seek divorce on such ground.[5] However, if the wife is more than fifteen years old, then marital rape does not come into picture.
Conclusion
Hindu marriage has always been looked upon as a sacred bond shared between the husband and wife. Thus, marriage was earlier considered as an indissoluble bond which could only be broken on the death of one of the spouses. It was after the introduction of the Hindu Marriage Act, 1955 that a provision of divorce and separation was provided. Under the Act, various grounds for divorce have been provided which can be used by either of the spouses while filing a divorce petition. The remedies provided by the Act turned out to be effective in solving disputes between the spouses.
REFERENCES
[1] Indian Law Institute, Indian Legal System (2 Rev Ed 2006).
[2] Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.
[3] The Marriage Laws (Amendment) Act, 1976.
[4] The Hindu Marriage Act, 1955, s.13(1) Explanation.
[5] The Hindu Marriage Act, 1955, s.13(2)(ii).
BY SAKSHI RATHI | NATIONAL LAW UNIVERSITY ODHISHA