This article provides for several grounds of divorced embodied under Section 13 of the Hindu Marriage Act, 1955. The same has been supplemented by various Judicial precedents.
SECTION 13 HINDU MARRIAGE ACT 1955- DIVORCE
Divorce among Hindus was not recognized until the Hindu marriage Act, 1955. Manu says that a marriage can end only with the death of one of the spouses. Any divorce taken otherwise was not only frowned upon but deeply stigmatized and prejudiced. Divorce was considered as a sin.
British India only had the Divorce Act, 1869[i] which provided for the divorce procedure in India for people professing the religion of Christianity. Other than that there was no enactment for the divorce process in India.
It was only in 1955 that parliament passed the Hindu Marriage Act 1955 and provision related to the concept of divorce was introduced in the act. Divorce, the said term has not been defined in the act but it simply means, dissolution of marriage. Various grounds of divorce are mentioned under section 13 of the Hindu Marriage Act[ii].
GROUNDS OF DIVORCE
1. ADULTERY- Section 13(1)(i)
Adultery means voluntary sexual intercourse outside lawful wedlock.
It is for the petitioner to prove that there was a lawful marriage and that the respondent had sexual intercourse with a person other than him/her. Marriage must be subsisting at the time of the act.
Supreme Court in Joseph Shine Vs Union of India[iii] ruled that adultery is not a crime and struck down section 497IPC. It was observed that two individuals may part if one cheat but to attach criminality to infidelity is going too far. Adultery is a personal matter and how do couple deals with it is a matter of privacy at its pinnacle. This loss of moral commitment in marriage which creates a dent in the relationship has been left for the personal call of the couple. If they wish to, they can proceed with the divorce.
2. CRUELTY- Section 13(1)(ia)
Treating the petitioner with cruelty after the solemnization of marriage is a ground for divorce. Cruelty can be both physical and mental. Physical beating or causing bodily injury to the spouse amounts to physical cruelty. Physical cruelty is easy to determine. It is difficult to say what constitutes mental cruelty. Cruelty is also an offense under section 498A IPC[iv]
a) The conduct complained of should be “grave and weighty”
b) The petitioner spouse cannot be reasonably expected to live with the other spouse.
c) It must be something more serious than “ordinary wear and tear of married life”.
Some instances of mental cruelty-
1. False accusations of adultery
2. Demand for dowry
3. Alcoholic and abusive partner
4. Impotency of wife
5. Immoral life of the partner
3. DESERTION- Section 13(1)(ib)
It can be simply understood to mean abandoning a spouse. As per section 10(1) of HMA[vi], divorce can happen if the petitioner had been deserted for a continuous period of two years immediately after preceding the presentation of the petition.
a) Factum of separation
b) Animus Deserdendi i.e., intention to desert
c) Desertion without any reasonable cause
d) Desertion without consent of the other party
e) Statutory period of 2 years must have passed before a petition is presented
4. CONVERSION- Section 13(1)(ii)
If any spouse ceases to be Hindu and converts into another religion without the consent of the other spouse, a divorce can be granted.
5. INSANITY-Section 13(1)(iii)
There are two requirements of insanity as a ground of divorce-
a) The respondent has been of incurable unsound mind
b) Respondent suffering continuously or intermittently from mental disorder of such a kind or extent that it would not be reasonable for the petitioner to continue living with the respondent.
6. LEPROSY – Section 13(1)(iv) (Omitted)
Leprosy was earlier one of the grounds of divorce is now omitted. The Law Commission in its report had recommended repeal of any provision which were discriminatory against leprosy-affected people. India is also a signatory to a UN Resolution which calls for the elimination of discrimination against persons suffering from leprosy. Parliament on 13th February 2019 passed, Personal Law Amendment bill[vii] removing leprosy as a ground for divorce under five personal laws including the Hindu Marriage Act.[viii]
7. VENEREAL DISEASE –Section 13(1)(v)
A sexually transmitted disease that is incurable and transmittable forms a ground of divorce, if either of the spouses is suffering from any such disease. A disease like AIDS is called venereal disease.
8. RENUNCIATION -Section 13(1)(vi)
When one of the spouses decides to renunciate the world and enters a holy order, then the other spouse can file a divorce petition. Renouncement of the world by entering any religious order must be absolute. It amounts to civil death and has the effect of excluding a person from inheritance and the right to partition.
8. PRESUMPTION OF DEATH- Section 13(1)(vii)
If a person has not been heard of as being alive for at least seven years, by those persons who would naturally have heard of it, had that party not been alive, this is a legal presumption of death.
This presumption may be rebutted if a person has not been heard of for the last 7 years due to special circumstances such as absconding on a charge of murder.[ix]
SECTION 13(1A)(i) – NON-COMPLIANCE WITH DECREE OF JUDICIAL SEPARATION
If there has not been any resumption of cohabitation between the couple even after one year has elapsed since the passing of the decree for judicial separation, a spouse can present a divorce petition. Resumption of cohabitation simply means living together in a conjugal relationship.
The court will grant a decree for divorce under 13(1A) if there is no bar as laid down in section 23 of HMA.
SECTION 13(1A)(ii) -NON-COMPLIANCE WITH DECREE OF RESTITUTION OF CONJUGAL RIGHTS
Restitution of conjugal rights means restoration of marital obligations. If there has not been any resumption of conjugal rights for one year after the passing of a decree under section 9 of the act, then either of the spouses may present a divorce petition.
The court before granting a decree for divorce on this ground may be satisfied that the petitioner is not disentitled to this right because of any bar laid down in s. 23 of the Act.[x]
In Saroj Rani Vs Sudarshan Kumar[xi] it was held that where the husband has obtained a decree for restitution of conjugal rights, only to seek a divorce under s. 13(1 A)(ii) of the Act and preventing the wife from performing her conjugal duties by driving her away from the house, this constituted misconduct under s. 23(1)(a) of the Act as the husband was taking advantage of his wrong and hence he was not entitled to any relief under s. 13(1A) of the Act.
SPECIAL GROUNDS OF DIVORCE FOR WIFE
The wife has been given special grounds to seek divorce.
SECTION 13(2)(i) – BIGAMY
If a husband already has a wife before the commencement of the act and after the commencement of the act he gets married to another woman, either of the two wives may apply for divorce. The only rider is that the divorce petition would be successful if the other wife was alive at the time of the presentation of the petition.
SECTION 13(2)(ii)- RAPE, SODOMY or BESTIALITY
A wife can file a divorce petition if her husband has been guilty of Rape, sodomy, or bestiality since the solemnization of marriage.
Rape is a criminal offense under section 375IPC. Section 375 IPC which defines rape does not criminalize marital rape. Rape laws in our country continue with the patriarchal outlook of considering women to be the property of men post marriage. After marriage, a woman is supposed to have given implied consent for her body to be used in and as the way her husband likes.
Exception 2 to section 375 reads that sexual intercourse or sexual acts by a man with his wife who is not below 15 years of age, is not rape. Section 42A was inserted in the POCSO Act which says that the provisions of POCSO would prevail over any other law including IPC to the extent of the inconsistency. According to POCSO, a child is a person below 18years of age and any sexual intercourse with a child below 18years is a punishable offense. POCSO prevails over IPC. However, the law is still silent over the rape committed by a husband of his wife who is 18 or above.
Sodomy is committed by a person who has carnal copulation with a member of the same sex or with an animal or has non-coital carnal copulation with a member of the opposite sex. Bestiality means sexual union by a human being against the order of nature with an animal.[xii]
SECTION 13(2)(iii)- DECREE OR ORDER OF MAINTENANCE
When a decree for maintenance of wife under section 18 of Hindu Adoptions and Maintenance Act, 1956 or
An order of maintenance has been passed under section 125CrPC against the husband
The wife has the option to present a petition for divorce if 2 conditions are satisfied-
a) That she was living apart
b) There has been no cohabitation between her and her husband for at least one year after the passing of such decree.
SECTION 13(2)(iv)- MARRIAGE BEFORE ATTAINMENT OF AGE OF FIFTEEN YEARS
A wife may present a petition for divorce if marriage was solemnized before her attaining the age of 15 years. Such a child bride can opt-out of marriage on the attainment of puberty and can ask the court for repudiation of the marriage after attainment of 15 years of age but before completing 18 years of age.
Courts allow child brides to exercise this right to protect those who may have been coerced into marriage.
Section 13 presents various grounds for divorce that are present to the spouse. Additional grounds have been provided to wives to claim divorce. Hindu marriage act adopts fault theory in the matter of divorce which means that marriage can be ended when one of the spouses is responsible or liable for the offense under matrimonial offenses. The innocent spouse can seek the remedy of divorce.
As pious a relationship of marriage is, recognizing divorce in a civilized world is important. Apart from the various ground mentioned here, divorce by mutual consent, irretrievable breakdown of marriage is some of the other grounds available to a married couple for seeking a divorce. Increased emphasis on individual liberty and their choices has increased acceptance of divorcees in our country and stigmatization too is seeing a decline which is a positive change in society.