India is a diverse country with different religions therefore divorce is considered as a personal matter. Each religion has its own set of laws related to the grounds of divorce. In this article, the author will be giving a general description of the various grounds and how each of them affects the different religions in India.
Grounds for divorce are special circumstances under which a person would be granted a divorce. At present in India, there are nine grounds of divorce. They are; –
Table of Contents
Adultery
Adultery means having intercourse or sex with someone other than your spouse. When either spouse has intercourse outside the legal marriage amounts to adultery. In India adultery is defined under Section 497 of the Indian Penal Code. It’s prescribed punishable only for men and not women. It will not be applicable to women even if they are the ones to have committed adultery. It is to be noted that every personal law considers adultery a ground for divorce except Muslim law. But the Hanafi school of Muslim law recognizes adultery as a ground for dissolving Muslim marriage. Some essential points to be noted to constitute adultery is that there should be consensual sexual intercourse[1], if the person was raped then it wouldn’t constitute as adultery and in the case of Arokia Raj Morias v. Babita Maria[2], it was held that adultery prior to marriage is immaterial.
Desertion
Desertion is the intentional and permanent abandonment of one spouse without the consent of the other spouse or without a reasonable cause.[3] Desertion is the act of abandoning the matrimonial obligations. The spouse should have deserted for a minimum period of two or more years to constitute desertion. There are three types of desertion; –
Actual Desertion
Actual desertion means the abandonment of matrimonial obligations. The spouse has deserted with his/her consent. In the case of Om Wati v. Kishan Chand,[4] the parties were living separately for more than two years. When the husband was informed of his child’s death, he did not even appear for performing the last rites. The husband had totally cut off all ties from his family and was guilty of desertion.
Constructive Desertion
Those acts in nature which are either intentional or unintentional causing the spouse to leave the matrimonial home. In the case of Bipin Chandra v. Prabhavati,[5] the wife had left the matrimonial home due to allegations of adultery against her and the husband prevented her from returning. The court held the husband guilty of constructive desertion as he had prevented the wife from returning.
Willful Desertion
If the spouse intentionally causes any act or neglects in performing matrimonial obligation then it amounts to willful desertion. In Muslim law whether desertion is wilful or not is immaterial.
Cruelty
The meaning and concept of cruelty changes from time to time. Cruelty varies for persons from different backgrounds. Cruelty is known as the wilful and unjustifiable conduct which causes danger to life or health or to give reason to cause such harm. It may be physical or mental in nature. If it is physical the court can easily comprehend by looking at the injuries caused to the spouse but if it is mental it is difficult to determine. Therefore, the court has used various judgements to define cruelty. In the case of Ravi Kumar v. Julmi Devi,[6] “To ascertain cruelty the court has to take into account the entire facts and circumstances of the case and not by any predetermined rigid formula”. In matrimonial cases cruelty can be of various types; it may be subtle, brutal or through gestures or words and son. In Viswanath v. Sarla Vishwanath,[7] the wife had published a defamatory notice in the newspaper and made wild allegations about the character. The court held that the husband was entitled to divorce on the basis of cruelty. Cruelty under Section 13(1)(ia) of the Hindu Marriage Act talks about the behaviour of one spouse towards the other which results in a reasonable apprehension in the mind of the latter that it is not safe for him or her to continue to stay in the matrimonial relationship anymore with the other.
In Muslim Law, the husband can divorce the wife without giving any reason but if the wife wants to divorce then she has to state the reason or cruelty caused by the husband to attain divorce according to 2(ix) of the Dissolution of the Muslim Marriage Act, 1939. Other statues in their respective religion accept cruelty as a ground for divorce.
Insanity
Insanity, as it sounds, means that the spouse must be suffering from some mental disorder. It can be a mental illness, psychopath disorder or any other disorder related to the mental capacity of the individual. The requirements to claim insanity as a ground for divorce is that the spouse should be suffering from some incurable mental illness or the individual has been suffering from mental illness continuously and that the spouse cannot live with him/her. There are provisions present for insanity as a ground for divorce in all the matrimonial laws in India. Section 13(1) (iii) of the Hindu Marriage Act, 1955 states that mental illness is a ground for divorce. Under Muslim Law, Section 2 (vi) of the Dissolution of Muslim Marriages Act, 1939 provides if the husband is insane or suffering from leprosy, or any venereal disease from a period of two years, judicial divorce by wife can be claimed on the same ground.
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Leprosy
Leprosy is an infectious disease which causes nerve damage and as a result deformity of body parts. Leprosy is a ground for divorce in all the personal laws in India except for Parsi. Nowadays, though these statutory provisions are considered discriminatory in nature against those suffering from leprosy, the statutes have a divided opinion on Leprosy. For example; –
Ø Sec 13(vi) of the Hindu Marriage Act, 1955- Divorce is available if the other party is suffering from an incurable form of leprosy.
Ø Sec 27(vi) of the Special Marriage Act, 1954- It is not necessary for leprosy to be incurable in nature.
Ø The Parsi Marriage and Divorce Act, 1936- Leprosy is not provided as a ground for divorce
Ø Sec 10(1)(iv) of the Divorce Act, 1869 has the same stance as the Hindu Marriage Act but in the Divorce Act it is necessary that the individual has been suffering from leprosy not less than two years preceding the presentation of the petition for divorce.
Ø Sec 2(vi) of the Muslim Marriage Act, 1939- entitles the wife to divorce if the husband is suffering from leprosy.
Venereal Disease
Venereal Diseases comprises a number of contagious diseases that are mostly acquired through sexual intercourse. It includes AIDS, syphilis and so on. Venereal diseases pose a threat to the health of the other spouse. This is the main reason as to why it’s considered as a ground for divorce. Venereal disease is considered as a ground for divorce in all the matrimonial laws in India.
Conversion
Divorce can be sought by a spouse if the other spouse converts to another religion. This reason does not require any time to have passed before a divorce can be filed.[8] It is considered as a ground for divorce in all the matrimonial laws except for the Special Marriage Act, 1954 which provides no provision regarding conversion under Muslim law. Conversion to another religion is known as apostasy and is considered as a ground for divorce.
Renunciation
Renunciation refers to the act of abandoning material comfort and going on the journey of spiritual enlightenment. As a ground for divorce, it refers to refrain from cohabitating or abandoning the spouse in not performing matrimonial obligations.[9] Section 13 of the Hindu Marriage Act, 1955 is the only personal law to provide renunciation as a ground for divorce.
Presumption of Death
The disappearance of the spouse for a period of seven years without his whereabouts being known to close relatives or no one can be considered as a presumption of death and valid ground for divorce. The other spouse will then be allowed to remarry again. In the case of Nirmoo v. Nikkaram[10], it was held that if the second marriage is performed on the grounds for a presumption of death no person other than the missing spouse can question the validity of the second marriage. The statutory period for the presumption of death is considered as seven years in all of the personal laws except for section 2(i) of the Dissolution of Muslim Marriage Act, 1939 in which case the husband should only disappear for a period of 4 years.
Conclusion
A divorce is a tragic event in any person’s life as it means separating from a person who you thought would be your soulmate. But sometimes life does not go the way you want it to go. Therefore, this article is to provide an insight into the various rights and laws applicable in case of divorce. In our country there are different laws for each religion therefore it would be wise to know the rights and duties and the grounds on which the parties can claim a divorce.
Referenes
[1] Santa Kumar v. Sudershan (2006) 2 KLT 13.
[2] (2006) 2 MLJ 537 (Mad).
[3] B&B Associates, “Legal Grounds For Divorce in India”, available at: https://bnblegal.com/article/legal-grounds-for-divorce-in-india/ (Last visited on 10-10-20).
[4] AIR 1985 Del 43.
[5] AIR 1957 SC 176.
[6] 2010 (1) UAD 757 (SC).
[7] 2012 (2) UAD 439 (SC).
[8] “What is Contested Divorce”, available at: https://vakilsearch.com/contested-divorce (Last visited on 10-10-20).
[9] “Divorce Laws in India”, available at: https://www.lawyered.in/legal-disrupt/articles/divorce-laws-india/ (Last visited on 10-10-20).
[10] AIR 1968 Del. 260.
BY JATIN JOHNS PALY | NATIONAL UNIVERSITY OF ADVANCED LEGAL STUDIES, KOCHI