DIVORCE UNDER HINDU LAW
INTRODUCTION
Before the implementation of the Hindu Marriage Act (HMA), 1955, divorce as a concept was unheard of in general Hindu law; instead marriage was seen as an everlasting and indissoluble union between two parties and their families. Manu, who is considered to be the law giver of India in fact did not believe in the end of marriage and is said to have declared, let mutual fidelity continue till death, meaning, he considered and understood it to be the highest dharma of a husband and wife.[1]
However, such a concept changed after the introduction of the HMA. Although the term divorce is itself not defined by the statute, it can be synthesized as a legal termination of judicial connections established during a marriage.[2]
1. APPLICABILITY OF THE HMA
First and foremost, the Hindu Marriage Act extends to the whole of India, this includes Hindus domiciled in the territories to which the act extends to but who are outside of the said territories.
Now, as per Section 2 of the Hindu Marriage Act, the act applies to individuals who are Hindus by religion in any of its forms or developments like a Virashaiva, a Lingayat or a follower of Brahmo, Prarthana or Arya Samaj.[3] The expression Hindu in the act also includes a person who is a Buddhist, Jaina, Sikh, and any individual who is not a Muslim, Christian, Parsi, or Jew, unless they can prove they would not have been governed by Hindu law or custom if the Act didn't exist.
The term Hindu hence includes children of Hindu (by the meaning of the act which also includes Buddhists, Jainas and Sikhs) parents, whether legitimate or illegitimate, and who are brought up in the religious tradition of one Hindu parent. The definition also brings into its ambit persons who are converts or re-converts of Hinduism, Buddhism, Jainism, or Sikhism.
It is to be noted however that there is an exception for members belonging to the Scheduled tribes; unless otherwise directed by the Central Government, they will not be governed by the act.
2. THEORIES OF DIVORCE
Divorce petitions often delineate specific reasons as grounds for seeking the dissolution of marriage. These grounds usually align with the different divorce theories that provide a conceptual framework for understanding the underlying causes of marital breakdown. The three prominent perspectives in this regard are the Irretrievable Breakdown theory which focuses on the failure of the marital connection; the Mutual Consent theory which emphasizes the agreement of both parties to terminate the marriage; and the Fault Theory, which centers on misconduct by one party, leading to the divorce. As such, we will notice that, while divorce petitions may cite particular reasons, they ultimately find their roots in these overarching theories.
3. GROUNDS OF DIVORCE UNDER HMA
The grounds under which either party to a marriage can file for divorce is specified under Section 13 of the HMA.[4] These specified grounds fall under the ambit of the fault theory such is the case since it highlights the fact that the divorce is being filed for by the petitioner due to the faulty actions of their spouse (husband or wife).
3.1 Adultery
Prior to adultery being one of the grounds for divorce, it used to be a criminal offence under the Indian Penal Court. After the case of Joseph Shine v Union of India(2018)[5] however, where the court held the provision as unconstitutional since it treated women as the property of their husbands and violated the right to equality, adultery as an offence was decriminalised. However, it still constituted as a valid ground for divorce under the HMA; which meant that even though the adulterer would not be punished, their spouse can seek divorce in virtue of the wrongful act.
The burden of proof that an adulterous act has been committed lies with the party who made such allegations, with the standard of proof being preponderance of probabilities and not beyond reasonable doubt.[6] Now, usually it becomes difficulty to prove adultery with direct evidence, as such circumstantial evidence becomes importance to reach a decision; the court in the case Samuel Bahadur Singh v. Smt. Roshini Singh (1960)[7] hence lays out a few circumstances where adultery can be inferred in India,
i) A male and female have been living together in the same house for a long time
ii) They are not related to each other by way of marriage or any other relationship
iii) They have refused to return to their spouses
iv) In such cases, the courts holds that they had opportunity to commit adultery
Again, it is important that Section 13 be read with Section 23. Subsection (b) of Section 23(1) mentioned how divorce on the ground of adultery cannot be granted if the petitioner had been accessory to or connived at or had condoned the act of adultery of the respondent.
3.2 Cruelty
After the 1976 amendment, even though cruelty became a ground for divorce under the HMA, it is to be noted that the Act didnt define what conduct amounts to this cruelty, either physical or mental (both of which are considered). It is hence to be implied that the courts determine it based on the facts and circumstances of each case; since the law has no standard measurement of cruelty: the physique, temperament, standard of living, culture of the spouses, daily interaction, and other relevant circumstances are looked into decide on the case.
Again, one must remember that Section 13 is to be read with Section 23; in the context of cruelty, as per Section 23(1)(b), the court is required to look into the question of condonation of such cruelty (even in undefended cases).
One example is the case of Dastane v Dastane (SC 1975)[8] where even though the husband had provided evidence of the presence of cruelty, the court had found that he had condoned the acts complained of and hence did not grant him the decree of divorce. In this case, the court had defined condonation as forgiveness of the matrimonial offense and restoration of the offending spouse to the same position he or she had occupied before the offence was
committed. The court stated that evidence of condonation does not lie merely in the fact that the spouses continue to cohabit after or during the acts of cruelty; instead it lies in the fact that, in this case, the parties had continued to lead a normal sexual life characterizing a normal matrimonial relationship, despite the acts of cruelty on the part of the respondent from this, according to the court, condonation can be inferred, justifying the court judegmnt at the end.
Another example to examine how courts decide on cases of cruelty is Animesh Trivedi v Kiran Bagai (2012)[9]. This case highlights the fact that one determining cruelty, importance is given to the background and status of the petitioner in society. Here, the petitioner was a highly educated woman, born and brought up in a family with liberal views. In such a case, the court held that the evidence provided of incidents of slapping, and repeated taunting, amounted to cruelty against the wife since she was a well-educated woman and lived in an environment where using filthy words against her and her family members was sufficient to make out a case of cruelty.
3.3 Desertion
Desertion in the context of matrimonial law is difficult to define. However, in essence, it can be considered the forsaking and abandonment of one spouse by the other without reasonable cause and without consent or against the wish of the other. It is important when contending for a case of desertion that the petitioner prove that the desertion by the deserting spouse was done with the intention to bring cohabitation permanently to an end and that it had continued during the entire statutory period of 2 years (as per the HMA).
It is also important to see that in the case of the deserted spouse, there was the absence of consent as well as the absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention as aforesaid. It is to be noted that the burden to prove both the intention of the deserting spouse as well as the absence of consent and conduct encouraging such desertion on the part of the deserted spouse lies with the party petitioning for divorce.
In Bipin Chandra v Prabhawati (SC 1956)[10], the husband had filed for divorce on the grounds of desertion since his wife had left the matrimonial home out of shame after being discovered in an extramarital affair with another man. Here, the court did not grant him a divorce; it held that even though it was true that the wife had left without the consent of the husband, as well as the fact that the husband's actions didnt encourage her to leave, the justification for its judgment lay in the fact that the petitioner was still angry over his wifes actions and was not prepared to take her back. The court held that if the deserting spouse decides to come back to the deserted spouse by a bona fide offer of resuming the matrimonial home before the expiration of the statutory period, the desertion comes to an end. In such a case, it is necessary that during the entire period that there has been desertion, the deserted spouse must affirm the marriage and be ready and willing to resume married life on such conditions as may be reasonable, which is, as we observe, not the case here.
3.4 Conversion to Another Religion
Under HMA, if a spouse undergoes religious conversion and in turn ceases to be Hindu, it gives the other party to the marriage to seek dissolution of the marriage under a decree of divorce. The existence of this as a ground for seeking divorce can be said to recognize the importance of religious continuity within the structure of Hindu marriages; the underlying assumption is that conversion alters the religious identity and thus the understanding on which the marriage was originally solemnized.
3.5 Unsoundness of Mind
The Section 13(1)(iii) of the HMA allows divorce if the spouse:
i) Has been incurably of unsound mind
ii) Has suffered continuously or intermittently from a mental disorder that makes it unreasonable for the petitioner to live with the respondent
Here, the Act defines:
i) "Mental disorder" to include mental illness, developmental disabilities, psychopathic disorders, or other mental disabilities
ii) "Psychopathic disorder" as a persistent mental disability leading to overly aggressive or irresponsible behaviour, whether treatable or not
Essentially, the law gives the other spouse grounds to file for divorce if one spouse suffers from a persistent mental illness that interferes with their ability to reason or conduct in a way that is proper for a married couple. The aim here is to avoid obligating spouses to remain in untenable relationships due to their partner's severe, unresolved mental health challenges.
3.6 Suffering from Venereal Disease in the Communicable Form
Under HMA, if a spouse has been diagnosed with a venereal or sexually transmitted disease that is communicable in nature, in other words, capable of being transmitted from one person to another through intimate contact, then the other party to the marriage is said to have valid grounds to seek the dissolution of the marriage. This recognizes the importance of intimate contact in marriages and tries to look out for the health and well-being of both spouses; it aims to address situation where the health and safety of one of the partys is at risk due to the existence of intimate contact in the structure of the marriage.
3.7 Renunciation
In some cases, one spouse may voluntarily choose to enter a religious order that adheres to a particular set of religious principles, such as renouncing or giving up worldly pursuits in order to dedicate themselves to the community's way of life. This is of a kind that impacts obligations that they would typically be expected to fulfill in their marriage and familial relations. In such cases, therefore, the other spouse has the right to seek it as grounds for the dissolution of the marriage.
3.8 Presumption of Death
Under HMA a party to a marriage can move to court for a decree of divorce on ground that their spouse has been missing or absent for a prolonged period of seven years or more. It is important however that the petitioner takes reasonable efforts to uncover information regarding the absent spouses well-being and whereabouts; only if the court is satisfied that nothing else could have been done to prevent the petitioners failure to gain information, would they allow for the dissolution of the marriage.
4. GROUNDS OF DIVORCE SPECIFICALLY AVAILABLE TO THE WIFE
4.1 Bigamy
This ground of divorce, which is retrospective in nature entitles a wife to present a petition for divorce if,
i) After the solemnization of her marriage, her husband had married again
ii) At the time of the solemnization of her marriage, her husband had another wife living
It is to be noted here, that at the time of filing the petition, the other wife should be living and not dead.
4.2 Husband Guilty of Rape, Sodomy or Bestiality
The Section 13(2)(ii) of the HMA enables the wife to present a petition for divorce on the ground that since the solemnization of her marriage, her husband has been guilty of heinous sexual offenses like that of rape, sodomy, or bestiality.
4.3 Non-Resumption of Cohabitation after passing of Maintenance Decree
According to Section 13(2)(iii) of the HMA, if a decree of maintenance has been passed under Section 18 of the Hindu Adoptions and Maintenance Act, or Section 125 of the CrPC against the husband, directing him to give maintenance to the wife, despite her living apart and that since the passing of such decree, the parties have not cohabited for one year or more, then it provides for a ground of seeking dissolution of the marriage.[11]
As such, the essential conditions to prove this ground include,
i) The petition for divorce must be presented by the wife
ii) A decree of maintenance that is passed against the husband
iii) The parties to the marriage have not lived together since the passing of such decree
iv) Non cohabitation of the parties should be for a minimum of one year
4.4 Repudiation of Marriage
This ground under Section 13(2)(iv) which is retrospective in nature, states that, in cases where the marriage of a woman was solemnized at the age of fifteen, and she had repudiated said marriage after the completion of fifteen but before the completion of eighteen years, she is legally empowered on that grounds to seek a decree of divorce to dissolve that marriage.
5. DIVORCE BY MUTUAL CONSENT
Section 13B of the HMA holds that a petition for dissolution of marriage by a decree of divorce can be presented to the court by both parties to a marriage on the grounds that,[12]
i) The parties had been living separately for one year or more
ii) They have not been able to live together
iii) They have mutually agreed that the marriage should be dissolved
iv) As per Section 23 of the HMA, the mutual consent should be such that it should not have been obtained by force, fraud or undue influence[13]
It is to be noted that there was no provision for divorce by mutual consent before the 1976 Amendment. Fortunately, the modification made it such that Section 13B was retrospective in nature, which meant that the provision (of divorce by mutual consent) would apply even to marriages solemnized before the 1976 Amendment.
The section also indirectly mentions a cooling-off period. After the date for presentation of the petition, both parties can move to court for a decree of divorce not earlier than six months and not later than eighteen months from the said date; during this time if the petition is not withdrawn and the court is satisfied after inquiry about the facts, then it can pass a decree of divorce and the marriage is dissolved. The cooling-off period can be inferred from the words made not earlier than six months and if the petition is not withdrawn it gives the couple ample time of six to eighteen months to reconsider their choice of divorce, as well as see to the possibility of reconciliation.
6. IRRETRIEVABLE BREAKDOWN OF MARRIAGE (IBM)
Usually, the law tends to pursue the fault theory in dealing with cases related to divorce; however, getting a divorce on grounds that fall under the ambit of that theory meant that the proceeding becomes a competition of proving and establishing the faults of either spouse by the other, leading the whole process to become cumbersome, time-consuming as well as mentally and physically exhausting, often bringing shame to the parties involved. In order to avoid such a situation, the Law Commission of India, in its 71st Law Commission Report suggested that irretrievable breakdown of marriage be considered as a separate ground to seek divorce.
According to the report, in cases where the marriage is a mere shell without substance, there is hardly any utility in maintaining such a marriage. The parties should then be given the right to decide whether their mutual relationship provides them with fulfillment; here divorce should be seen as a solution/an escape route out of such a difficult situation. Rather than divorce being concerned with the wrongs of the past, it should be seen as a way of bringing the parties and children involved, in terms with the new situation.
When there has been a lengthy period of continuous separation, it is reasonable to conclude that the marriage has been broken beyond repair; by refusing to cut the bond in such circumstances, the law does not serve the sanctity of marriage but shows scant consideration for the spouses' feelings and emotions. Hence, the divorce law in India which is largely based on the fault theory is inadequate to deal with such situations.
The case Naveen Kohli v Neelu Kohli (SC 2006)[14] can be considered as to why there is a need for irretrievable breakdown of marriage as a ground for divorce. Here, after a series of marital disputes between the husband and wife, as well as allegations of extramarital affairs by both spouses against each other, the husband had left home and started living separately. The disputes were of such a nature that there seemed to be an array of proceedings, both civil and criminal initiated by the parties against each other, affecting not only the mental and financial health of the parties but also forcing the realization that marriage had irretrievably broken down with no hope of reconciliation; more so, given the fact that they had been living separately for ten years, since the husband had first left the matrimonial home. Considering carefully the facts, the court finally decided to grant divorce and suggested HMA be amended to be inclusive of situations such as these.
7. FAILURE TO OBEY THE DECREE OF RCR
It is a necessary implication of marriage that parties will live together and that each spouse is entitled to the comfort consortium of the other, these can be considered as their conjugal rights.[15] As such, after solemnization, if either of the spouses to the marriage without reasonable excuse withdraws himself or herself from the society of the other, the other spouse has to right to file a petition under Section 9 of the HMA[16] for the restitution of those conjugal rights. The court, in such cases, on being satisfied that there are no legal grounds to refuse such a petition and that the statements made in the proceeding are indeed the truth can pass a decree of Restitution of Conjugal Rights (RCR). This means that the spouse who had withdrawn from the petitioners society is other to return to it and assume the usual marital obligations.
However, this doesnt automatically mean that there is always compliance with such decrees. The court instead, can be considered powerless to have the decrees specific performance by any law.[17] As such, in cases where there is non-compliance with such a decree of RCR, even after the expiration of one year, it becomes a ground for seeking divorce.
8. WHEN CAN A DIVORCE PETITION BE SUBMITTED?
In the usual course of legal proceedings and as stated clearly in Section 14(1) of the HMA, no court is competent to entertain any petition made for the dissolution of marriage before the expiration of one year from the date of marriage. The court may however allow such a petition if the case is such that it causes exceptional hardship to the petitioner or depravity on the part of the respondent. A situation similar to this can be observed in the case Dr Rajasi v. Dr. Shashank (2015)[18] where, on petitioning for divorce before the completion of one year, the husband had contended that divorce be granted on the grounds that his consent to marriage was obtained by fraud, that if he had been aware of the suicidal tendencies of his wife he would not have married her. He also alleged that his wife, on top of having such tendencies, also behaved inappropriately.[19] Here, the Bombay High Court held that, even if Section 14 is important in the context that it prevents the hasty decision of divorce, in this case, since the petitioners contentions were evidenced, proving cruelty on the part of the wife, the court decided for the dissolution of the marriage.[20]
Although it is to be noted that in case of such an allowance, if it so appears to the court upon hearing that the leave to present the petition by the petitioner was obtained by misrepresentation or concealment of the nature of the case, the court may either,
i) upon pronouncing a decree make it conditional; that the decree shall not have effect until the expiry of one year from the date of the marriage or
ii) dismiss the petition without prejudice to any petition brought after the dismissal, after the expiration of one year and upon the same or similar facts alleged in the dismissed petition
When deciding to allow a presentation of a petition before expiration of one year, the court must take also take note of,
i) interests of any children to the marriage
ii) whether there exists a reasonable possibility for reconciliation between the parties before the expiration of the said one year period
9. CAN DIVORCED PERSONS REMARRY?
Section 15 of the HMA states that a person who is divorced under the HMA by a decree is legally allowed to remarry.[21] However, as the section states, there are conditions to such allowance,
i) After the marriage was dissolved by a decree, there was no right to appeal it
ii) If there was a right to appeal, the time for such appealing had expired with any appeal being presented
iii) Even though an appeal was submitted, it was dismissed
It must be noted however, as held by the Supreme Court in the case Tejinder Kaur v. Gurmit Singh (1988)[22] that when the decree for divorce is passed and the marriage is dissolved, the spouse getting remarried must wait for a reasonable time before doing so, to give the other party time to present a petition before the Supreme Court against such divorce decree.If such is not followed, it might lead to a situation when a party is benefitting from his or her own wrong, which directly goes against Section 23 of HMA which states that the petitioner is not to take advantage of his or her own wrong for the purposes of relief provided[23].
10. JURISDICTION OF COURTS WHEN DEALING WITH DIVORCE CASES
Section 19 of the HMA specifies which courts jurisdiction would deal with the divorce petitions. The section states that every petition under the act shall have to be presented to the District Court within whose civil jurisdiction,[24]
i) The marriage was solemnized
ii) The respondent at the time of petition resides
iii) The parties to the marriage last resided together
iv) If the petition is filed by the wife, where she is residing
v) Where the petitioner is residing, when the respondent is residing outside of the territories that the act extends to
vi) Where the petitioner is residing, when the respondent has not been heard of being alive for seven years or more
CONCLUSION
Even though HMA acts as a guide providing us with a structured framework for marital dissolution, it is important that, in following this guide, one has to acknowledge the existence of the human narratives that constitute the legal issues that arise in the proceedings. It is the responsibility of the judiciary to recognize that a petition for divorce is preceded by multifaceted reasons, ranging from irreconcilable differences to grounds defined by the Act; the complexity is often of such nature the Act underscores the diversity of experiences that might be experienced in a marital relationship. The court must, in this case, be prepared to balance both the need for justice, acknowledging the personal liberty and happiness of the aggrieved and, to institute such a justice in the contemporary social reality.
REFERENCES
1. Grounds For Divorce Under Hindu Law, 1955, India, available at: https://www.legalserviceindia.com/legal/article-12565-grounds-for-divorce-under-hindu-law-1955.html (last visited on December 16, 2023).
2. Ibid.
3. The Hindu Marriage Act. 1955 (25 of 1955), s. 2.
4. The Hindu Marriage Act. 1955 (25 of 1955), s. 13.
5. 2018 SC 1676.
6. Adultery in India - A ground for Divorce, India,available at: https://www.legalserviceindia.com/helpline/adultery.htm(last visited on December 16, 2023).
7. AIR 1960 MP 142.
8. AIR 1975 SC 1534.
9. AIR 2012 Jhar 115.
10. 1957 AIR 176, 1956 SCR 838.
11. Supra note 4.
12. The Hindu Marriage Act. 1955 (25 of 1955), s. 13B.
13. The Hindu Marriage Act. 1955 (25 of 1955), s. 23.
14. AIR2006 SC 1675.
15. Restitution of Conjugal Right: A Comparative Study Among Indian Personal Laws, India, available at: https://www.indianbarassociation.org/restitution-of-conjugal-right-a-comparative-study-among-indian-personal-laws/ (last visited on December 17, 2023).
16. The Hindu Marriage Act. 1955 (25 of 1955), s. 9.
17. Supra note 15.
18. 2015(3) ALLMR316.
19. Grounds of Divorce, India,available at: https://blog.ipleaders.in/grounds-divorce-the-hindu-marriage-act/#Failure_to_obey_decree_of_restitution_of_conjugal_rights (last visited on December 17, 2023).
20. Ibid.
21. The Hindu Marriage Act. 1955 (25 of 1955), s. 15.
22. 1988 SCR (2)1098, 1988 SCC (2) 90.
23. Supra note 13.
24. The Hindu Marriage Act. 1955 (25 of 1955), s. 19.
