October 20, 2021

Dissolution of Hindu Marriage

Family law

According to the Vedas, marriage is a union between a masculine and feminine entity with commitments to pursue Dharma, Artha (possessions), Kama (physical and other desires) and Moksha (the liberation) in unison.

Introduction

Hindu scriptures observe as many as eight modes of marriages, some are in practice till date, while others are almost barbaric in nature, don’t find sanction in the scriptures and are not in conformity with the present ideas of consent, eligibility etc. Marriage in Hindu law is sacrosanct, a sacred relationship between a man and a woman that binds them together throughout their lifetime, and allegedly, for their next karmic lives as well. However, society progressed, the ideas and values relating to marriage, among other things also changed. Laws became more humanitarian. Dissolution of marriage on certain grounds were made permissible.

Theories regarding dissolution of marriage

All the personal conventions and customs of Hindus along with scattered legislations were brought under one umbrella around 1955 when four Acts were passed relating to Hindu marriage, guardianship, adoption etc. According to the Manu Smriti, dissolution of marriage was not permissible. But theories evolved concerning divorce and later it was consolidated under the Hindu Marriage Act, 1955. Dissolution of marriage can be in the form of divorce or judicial separation. There are basically three theories of divorce[1].

According to the Fault Theory, one of the two persons in a marriage commits some wrong, or is at fault somehow. The other person, the ‘innocent’ one can ask for divorce in this circumstance. Adultery, bigamy, or violence perpetrated by one can come under this theory. However fault theory is too binary. There is only black and white, no grey area. It claims that only one commits the fault and the other is the victim. This might not be the case at all times.

According to Mutual Consent Theory, the husband and wife mutually agree that the marriage is not working out and file for divorce. The Court may ask the parties to the marriage to live separately for a period of a year. If they still believe that their marriage can’t survive it is dissolved. In the case of Smt. Sureshta Devi vs Om Prakash[2], the conditions for divorce by mutual consent were discussed. The parties had to be living separately for a period of at least one year; it does not necessarily mean different houses. They may live in the same house, just not as husband and wife.

The theory of Irretrievable Breakdown of Marriage, is somewhat similar to divorce by mutual consent. In the case of Yousuf Vs Sowrama[3], the Court observed that parties cannot stay together, and the reason maybe of any kind, lack of financial security, for the children’s sake etc but one party refuses to file for divorce. After going through the facts, the Court may decide that there is an irretrievable breakdown of marriage and not granting divorce will lead to more problems.

[4]Judicial separation is a halfway ground between a functional marriage and its dissolution. A couple may decide, or a court may grant them, judicial separation instead of a divorce when it believes that the marriage might be saved in the future. It is not proper dissolution of the marriage, but a stepping stone to the remedy of divorce.

Grounds for Divorce availed by both spouses

Section 13 of the Hindu Marriage Act, 1955 speaks of divorce, a decree passed by court which announces absolute dissolution of a marriage. There are several grounds for divorce, some available to both husband and wife under Section 13(1), while some can only be availed by the wife under Section 13(2). These grounds are discussed below

  • Adultery- it comes under the fault theory of divorce. It is considered a greatly important ground. Adultery is the consensual intercourse of a married person with another who is not his/her spouse. The aggrieved party or the victim may seek divorce on account of their spouse’s adultery. However there are certain essentials to adultery. The intercourse of a married person with someone other than their spouse has to be voluntary, that they must have done it on their own volition. The marriage has to be valid and subsisting at the time of the commission of the act. There has to be enough circumstantial evidence. In the case of Sachindranath Chatterjee vs Sm. Nilima Chatterjee[5] the petitioner left his wife in his home town so she could complete her education. However when he came back he found out she had physical relations with his own nephew. When he appealed to the Court, he was granted divorce on the ground of adultery committed by his wife.
  • Cruelty- Cruelty can be either physical in the form of physical violence meted out to one party in the marriage by the other, or mental, in the form of unprecedented behaviour, insults in front of friends and family, mental pressure to undergo abortion etc. Signs of physical cruelty can be observed easily. However, mental cruelty is harder to prove in a court of law. In the case of Balram Prajapati Vs Susheela Bai[6], the husband claimed that his wife meted out rude and uncouth behaviour in front of him and his parents. She also filed false allegations against him. The court granted divorce on the ground of mental cruelty.
  • Desertion- Without any reasonable cause, when one spouse, against the consent of the other, voluntarily leaves unexplained, and does not come back for a continuous period of two or more years, the spouse who is left behind may obtain divorce on the ground of desertion. It connotes one spouse renouncing the marital obligations and leaving permanently. The case of Bipin Chander Jaisinghbhai Shah Vs Prabhawati[7] is very interesting where the husband set out with intention to desert his wife, but later had a change of mind and tried to come back. The wife approached the court asking for divorce on grounds of desertion. However the husband argued that when he tried to come back he was prevented from doing so by his wife. The court held it did not amount to desertion on his part.
  • Conversion- When a party to marriage converts to any other religion against the wishes of their spouse, under the Hindu Marriage Act, the aggrieved party can ask for divorce on the ground of conversion. In the landmark judgement of Suresh Babu Vs Leela[8], the husband converted to Islam against the wishes of his wife and married another woman. The wife filed for divorce on the grounds of conversion and cruelty.
  • Insanity- To appeal for divorce, under the ground of insanity, that is a spouse is of unsound mind, certain requirements need to be fulfilled. The unsoundness of mind of the respondent has to be incurable, and it has to be going on continuously or intermittently in such a way that the petitioner cannot be reasonably expected to live with them. In the case of Vinita Saxena Vs Pankaj Pandit[9], the wife urged the court for divorce on account of the medical condition of paranoid schizophrenia that her spouse had and she was not told about it before marriage. Her plea was successful.
  • Leprosy- Leprosy is a highly contagious disease of the tissue, nervous system etc. On account of a spouse having leprosy, the other may get it from cohabitation. In the case of Swarajya Lakshmi vs G. G. Padma Rao[10], the husband proved in court with the help of experts’ reports that his wife was suffering from incurable leprosy. The divorce was granted. It is to be noted, divorce is granted only in cases where the nature of the disease is incurable.
  • Venereal Diseases- A venereal disease like Chlamydia, HIV, Syphilis is sexually transmitted. It forms a ground for divorce of a person if their spouse has a venereal disease.
  • Renunciation- Renunciation of the world is different from renunciation of marital duties that come under desertion. It is an old Hindu practice where a person renunciates the world and decides to walk on the path of god, as an ascetic. They are henceforth said to have no earthly attachments, marital or otherwise. Such a person is considered civilly dead. The spouse they leave behind can apply for divorce on this ground. However it is to be noted that it is different from desertion, where a person doesn’t give up all their earthly attachments, they only give up their marriage with the spouse.
  • Presumption of death- If a person is missing for a period of seven or more years, in a way that neither his family nor friends have any word about him, that person may be presumed to be dead. In such circumstance, their spouse may apply for divorce.
  • Divorce by mutual consent- As per Section 13B, a petition can be filed for divorce by mutual consent of both the parties. The parties are required to wait for one year from date of marriage. They have to show that they are living separately for one or more year and not able to live with one another.

Grounds for divorce available only to wife

In the backdrop where offences against women were high in number, and it pervaded marriages as well, the Court and legislature, with the aim to protect and redress women’s grievances made certain grounds for divorce which are available only to the wife.

  • Bigamy- If the marriage is valid, and the wife is still alive when her husband marries another woman, the wife can file for divorce under grounds of bigamy. It is to be noted that the next marriage will be invalid. This remedy is available only to a legally wedded wife who has been wronged by her husband marrying another. The second wife has entitlement of maintenance but nit property rights. In the case of Priya Bala Ghosh vs Suresh Chandra Ghosh[11], the nuances of the offence were discussed. All the proper ceremonies need to be performed for the second marriage for it to be an efficient complaint of bigamy.
  • Rape, Sodomy, or Bestiality committed by the husband after solemnization of marriage forms a solid ground for divorce.
  • If there is no cohabitation between the parties for one year or more after the decree is passed for maintenance to the wife, under Hindu Adoptions and Maintenance Act, 1956.
  • If the marriage was solemnized before the bride was 15 years of age, after she reaches adulthood, ie 18, she can file for divorce under grounds of puberty. If she repudiates the marriage after attaining 15 years and before reaching 18 years.

Judicial Separation and its grounds

Section 10 of the Hindu Marriage Act speaks of judicial separation. Judicial separation is almost a case of last resort before the actual breakdown of marriage, ie divorce. However in some, the parties may choose to resume their marital status again. Divorce is utmost dissolution of marriage. However judicial separation is not so. When a plea comes to the court asking for divorce, the court considers the reasons and circumstances of the case and may sometimes decree for a judicial separation instead of a divorce. The grounds for judicial separation are almost same as those of divorce.

The grounds available to both husband and wife are:-

  • Adultery
  • Cruelty
  • Desertion
  • Apostacy (Conversion of religion)
  • Insanity
  • Virulent and incurable form of leprosy
  • Venereal disease in a communicable form
  • Renunciation of world by entering any religious order
  • Presumption of death

Some grounds are available only to the wife. They are as follows:-

  • Bigamy committed by the husband while the marriage between his first wife is valid, and the wife is still alive.
  • Rape, sodomy or bestiality by the husband committed after the solemnization of his marriage with the wife.
  • Non-resumption of co-habitation between the parties till at least one year after an award of maintenance was made by any court against the husband and in favour of the petitioner wife.
  • Solemnization of the wife’s marriage with the husband before she had attained the age of 15 years provided she had repudiated the marriage on attaining the age of 15 years but before attaining the age of 18 years.

All these points have been previously discussed under grounds for divorce. Usually, couples applying for divorce are asked to spend at least one year in judicial separation giving them time to think, reconcile, or arrive at a decision. If a year has passed, and still they believe their marriage cannot be saved, the court dissolves the marriage by granting divorce. Non resumption of cohabitation after a year of judicial separation forms a ground for divorce in itself. However, if the parties do reconcile, the Court carefully considers the decision and rescinds the decree for judicial separation.

Conclusion

Alimony and maintenance can be granted in both cases of divorce and judicial separation. However the main difference between these two is that divorce is absolute dissolution of marital status. After divorce is granted, any of the parties can have intercourse with or marry another and it won’t be an offence legally. However doing such, while being separated judicially leads to adultery and bigamy respectively.

Marriage in Hindu law is sacred, a pure bond between spouses. A wife in hindu scriptures is called ‘Ardhangini’ meaning one who is half of a soul and body, the husband being the other half. Spouses in marriage are karmic partners. Hence, the courts are hesitant to grant divorce at every small inconvenience. Judicial separation and divorce are the last resort, which on one hand maintains sanctity of marriage, on the other works in a way that two people who are unhappy with each other are not bound together.


[1] https://lawtimesjournal.in/theories-of-divorce/

[2] 1992 AIR 1904, 1991 SCR (1) 274

[3]  AIR 1971, Kerala, 261

[4] http://www.legalserviceindia.com/legal/article-3066-judicial-remedies-divorce-and-its-theories-under-family-law.

[5] AIR 1970 Cal 38, 74 CWN 168

[6]  II (2003) DMC 708

[7] 1957 AIR 176, 1956 SCR 838

[8] 2006 (3) KLT 891

[9] 21 March, 2006

[10] 1974 AIR 165, 1974 SCR (2) 97

[11] [1965] 2 S.C.R. 837

Author Details: Debasrita Choudhury (K.L.E. Society Law College)

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