Divorce and Judicial Separation under Hindu law

1) Introduction

Marriage is a sacred union between two individuals and their families. It is a well-established and probably one of the oldest social institutions of the society. But not all marriages last and neither are all of them meant to be. This article covers the concepts of divorce and judicial separation under Hindu Law.

Concepts of marriage and divorce are governed under the Hindu Marriage Act 1955. It provides legislation to govern family matters concerning Hindu individuals in the country. Divorce, as a legal option for separation, was identified and practiced in British India in the year 1869 which was majorly for the Christians seeking divorce lawfully. In India, there was no legal framework that could formalize a divorce or allow for it. Later in the year 1955, the Hindu Marriage Act was formed, to enable people to file for a Divorce Under the Hindu Marriage Act.[1]

2) Who is a Hindu under the law?

Hindu law applies to any person who is Hindu by religion including [2] -

• Virashaiva, a Lingayat or a follower of Brahmo, Prarthana or Arya Samaj
• Who is a Buddhist, Jaina, or Sikh by religion
• A legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jaina, or Sikh by religion and who is brought up as a member of the tribe, community, group, or family to which such parent belongs or belonged; and
• any person who is a convert or re-convert to the Hindu, Buddhist, Jaina, or Sikh religion.

3) Must know.

One must know the brief concepts of this act to understand it better.

• The minimum age set for the bride is 18 years and the bridegroom is 21 years.
• Bigamy i.e. having multiple spouses, is prohibited and considered an offence in this law.
• A marriage is void if either or both the spouses are mentally unfit due to which they cant give valid consent to the marriage.
• Certain customs/ceremonies/rituals like the saptapadi, are essential for the legal validity of the marriage.

Under this act, there are two ways for separation i.e. Divorce and Judicial Separation. But before diving into these, we must understand what marriages are considered solemnized.

4) Solemnization

As mentioned in section 5 of the act, a marriage is considered legally solemnized if it adheres to all the below conditions-

If neither party is already married i.e. monogamy, which is the marriage of a man to a woman or of one individual to another. And if either of the spouses already has a previous partner to whom s/he is married, then it is considered void and an offense of bigamy under the Hindu Marriage Act 1955 and section 494 of IPC.

If neither party cant give valid consent due to unsoundness of mind or due to a mental disorder because of which that person is unfit for marriage or procreation or suffers from recurrent attacks of anxiety.

The bride must be of 18 years old and the bridegroom of 21 years and no less.

Neither party falls within the ambit of a prohibited relationship, like a father and daughter, unless their customs allow it. The degree of prohibited relationship is defined in section 3 (g) of the act. Marriages that fall under this condition are considered void under section 11 of this act, and

Neither party is sapindas of the other, in this case, also, the marriage will be considered void.

5) Divorce

Any marriage solemnized under the act can be dissolved based on the following grounds-[3]

Adultery i.e. voluntary sexual intercourse with any other person than the spouse.

In Swapna Ghose v. Sadanand Ghose [4] the wife found her husband and the adulteress to be lying in the same bed at night and further evidence from the neighbours that the husband was living with the adulteress as husband and wife is sufficient evidence of adultery. The fact of the matter is that direct proof of adultery is very rare. The offence of adultery may be proved by: Circumstantial evidence and contracting venereal disease.

Cruelty i.e. treating the spouse with cruelty in any form.

InPravin Mehtav.Inderjeet Mehta [5] the court has defined mental cruelty as the state of mind.

Desertion i.e. leaving the spouse for a continuous period of at least two years without reasonable cause or consent, including wilful neglect of the spouse. InBipinchandra v. Prabhavati [6] the Supreme Court held that where the respondent leaves the matrimonial home with an intention to desert, he will not be guilty of desertion if subsequently he shows an inclination to return is prevented from doing so by the petitioner.

Conversion i.e. has converted to another religion than Hindu.

Unsound mind or has been suffering from mental illness creating situations where one cant reasonably be expected to live with the spouse.

Communicable disease i.e. if either spouse is suffering from a sexually transmitted disease or any other disease that can be fatal for the other.

If the spouse has entered any religious order leading to renunciation of the world.

Presumed dead i.e. if the spouse is missing and it is unknown whether the spouse has been alive for at least seven years or more.

This section also mentions specific grounds exclusively for the wife seeking divorce-

If after the solemnization of marriage, the husband marries again when the existing wife is alive.

If the husband is already married and the wife is alive before the solemnization of the marriage.

If there is a decree or order of maintenance, subject to section 18 of the Hindu Marriage Act 1955 or section 125 of the IPC.

Husband is guilty of the offense of rape, sodomy, or bestiality.

The wife was married before the age of 15 years.

Both spouses have been living separately for at least one year.

6) Judicial Separation

Section 10 of the act mentions judicial separation. It includes allowing spouses to live separately without needing to dissolve the marriage. The grounds for judicial separation are the same as divorce mentioned in section 13 of the act.Once a decree for judicial separation is passed, the spouses are no longer entitled to live together. But on appeal, the court can rescind the decree if it is reasonable to do so.

The key difference between divorce and judicial separation is that in the latter, the marriage does not end, and the parties are not allowed to remarry yet.

7) Prohibition of dissolution

Section 14 of the act prohibits the dissolution of any marriage that has not been completed/lasted for at least one year from the date of marriage. However, exceptions can be provided and with enough proof for the exceptions, the court may allow it. Furthermore, before allowing a divorce application before one year of marriage, the court gives regard to the interest of the children the spouses have within their marriage and the reasonable possibility of reconciliation between the spouses.

8) Remarriage

According to section 15 of the act, when the decree of divorce is granted and there is no right to appeal possible anymore, both the parties to the marriage are legally allowed to remarry as the marriage between the parties stands null and void.

9) Types of divorce petitions

There are two main types of divorce petitions-

i) Mutual consent when both parties agree to divorce mutually. It is mentioned in section 13 (b), the provisions of which include:

Petition of divorce can be given by both parties before the district court on the following grounds- have been living separately for one year or more, and both have mutually agreed to dissolve the marriage.

If the parties are given the cooling off phase of 6-18 months and neither party withdraws their application for divorce, the court will pass the decree of divorce.

But the cooling phase can be waved off if conditions and circumstances make it necessary.[7]

ii) Without mutual consent when only one party/spouse wants the divorce, and the other does not.

10) Maintenance and Alimony

It is the financial support that one spouse gives to the other as per the court order.[8] The court orders alimony or maintenance to be paid to the financially dependent party to ensure that they dont suffer due to the divorce. A lot of factors are considered before granting this like the income of the spouses, the cost of education of children, lifestyle expenses, etc. Once decided, the respondent is to pay it regularly and can't defy it unless the court orders so. Section 25 of the act mentions provisions about maintenance and alimony.

11) Conclusion

Hindus consider marriage as sacred and of utter importance, rejecting the idea of divorce. The wives used to suffer and remained silent accepting the mistreatment by their husbands. But with changing times, such thinking has also changed. The law has included provisions for divorce and separation. The legal framework instituted in the Hindu Marriage Act 1955, seeks to find an equilibrium between maintaining the sanctity of marriage and legal remedies in case of irretrievable breakdown. Lastly, dissolving one's marriage is a big step that requires thoughtful consideration as it drains oneself emotionally, financially, and mentally, including various procedures and paperwork, and therefore, the judicial system must deal with such matters very cautiously.

Citations

1) Important things to know about divorce under Hindu Marriage Act 1955 available at https://www.lexisnexis.in/blogs/divorce-under-hindu-marriage-act/#:~:text=Section%2014%20for%20Divorce%20Under,provided%20while%20filing%20the%20petition (last visited 11 December 2023)

2) The Hindu Marriage Act,1955, s. 2.

3) The Hindu Marriage Act, 1955, s.13.

4) Swapna Ghose v. Sadanand Ghose, AIR 1979 Cal 1.

5) Pravin Mehtav.Inderjeet Mehta, AIR 2002 SC 2528.

6) Bipinchandra v. Prabhavati, AIR 1957 SC 176.

7) Davinder Singh Narula v. Meenakshi Nangia AIR 2012 SC 2890.

8) Important things to know about divorce under Hindu Marriage Act 1955 available at https://www.lexisnexis.in/blogs/divorce-under-hindu-marriage-act/#:~:text=Section%2014%20for%20Divorce%20Under,provided%20while%20filing%20the%20petition (last visited 11 December 2023)