Divorce under Hindu Law

Family Law

The following article is related to divorce in India. We will see if divorce is looked as beneficial or detrimental, concerning a family’s well being as well as if it complements the nature of the society. This research shall also consider if divorce is still a stigma in modern society. 

Divorce is said to be a lawful termination of a marriage between two people before a competent court. There are various ways through which a married couple can file for divorce which shall be discussed later in this research. Divorce can turn out to be a devastating process for the couple involved, but also for their families. Therefore as per my outlook, divorce is a decision that needs to be taken with utmost care and the couple should be thorough with the consequences that it might cause. 

As per June 2015:  India holds the lowest rate of divorce cases across the world whereas countries like the United States and the Czech Republic holds a rate of 49% and 61% respectively.

Introduction

Marriage in Hindu religion is considered to be sacred where there is a perpetual bond between a husband and wife. Divorce in earlier times didn’t even exist, as the bond between a husband and his wife was considered to be a relation that wouldn’t be broken even by death. But because of change in time and practices, divorce was introduced under the Hindu Marriage Act, 1955. 

As we know, our country has a variety of religions which are being followed. Therefore, to govern every set of faith there are separate regulations regarding divorce in India.

Hindu, Buddhists, Sikh, Jain: Hindu Marriage Act, 1955. 

Muslim: Dissolution of Muslim Marriage Act, 1939

Christian: Indian Christian Marriage Act 1872 and also the Divorce Act 1869

Parsi: Parsi Marriage and Divorce Act, 1936. 

For interreligious marriages: Special Marriage Act, 1954

We shall discuss divorce more precisely under Hindu Law.        

Theories for divorce

There are three theories for divorce:

  • Guilt Theory:  Under this theory, a marriage can end if either of the spouses has misbehaved by causing matrimonial offences (such as adultery, cruelty, desertion, etc). This theory only works if any one of the spouse is guilty of causing matrimonial offence. There should be an aggrieved party to assert remedy. If both the parties are at fault then there is no remedy available.
  • Mutual Consent: As a couple gets married by their own will or disposition, the choice to separate or dilute the wedding should also be as per their choice. But this might be a drawback because if there would be even slightest disagreement between the couple; they might decide to dissolve their marriage within fit of anger.  
  • Irretrievable Breakdown of Marriage Theory: This theory states that a marriage ends due to such situations that cause disruption between the couple and there is absolutely no chance of reconciliation and them living as a man and wife after they are given degree of restitution of conjugal rights and degree of judicial separation.           

Grounds for divorce

a. Adultery: It is defined under Section 497 [1]of the Indian Penal Code. The law defines adultery as an offence committed by a man having sexual intercourse with a woman who is married to another man, without the consent of the other man and that such intercourse does not amount to rape. A man found guilty of adultery, can be punished with imprisonment which may extend to five years, or with fine, or both.

This law is no longer effective as the law is considered to be unconstitutional. This law was seen both as pro-women and anti-women. Also, a woman cannot be punished under this law and she cannot sue her husband who has performed adultery neither can she sue the woman that her husband has performed adultery with. It is only the husband of the woman involved in adultery that can initiate the prosecution. Therefore, the offence of adultery can be said as an offence committed by a man to another man. 

  • Cruelty: Cruelty can be said as abusing someone repetitively and treating them in harsh and brutal way. Normal ups and downs or wear and tear in marriage does not amount to cruelty. The offence must be harsh and repetitive in nature that shall damage a person’s life. Cruelty can be established by causing physical as well as mental harm. Earlier cruelty was not considered as a ground for divorce but for judicial separation. But later in 1975, in Narayan Ganesh Dastane vs Sucheta Narayan Dastane [2]the Supreme Court upheld cruelty as a ground for divorce and its definition was changed thereafter.

But after Dastane v Dastane, the Supreme Court held that it should be under the court’s decree to establish if there’s any form of cruelty caused or not. Thereafter, the offence of cruelty was made more rigid under divorce than for judicial separation. 

  •  Desertion: Desertion is referred to when either of the spouses have left the other for no justifiable reason for not less than two years. The abandonment must be such that the spouse leaves the other, without consent or will with such intention to abandon the spouse.

Elements to prove desertion by the party

  1. The fact of separation
  2. The intention to desert
  3. Abandonment for not less than two years:
  4. Desertion without any valid reason and consent from the other party

   Termination of desertion

  1. Starts to co-habit again
  2. Continuation of marital intercourse
  3. Proposal to reconcile
  • Conversion: Conversion means when a person has renounced his/her religion and have opted other through a formal ceremony. Therefore renouncing a religion by the person is a valid ground for divorce. The petition is filed by the person whose spouse has changed his/her religion. 

For a person to file divorce petition, it is important to establish that his/her partner once followed Hindu religion and now he/she no longer follows Hinduism. The next step is to present that the spouse is now following a religion other than Hinduism. 

It is important to note that the spouse who has converted cannot file a petition for divorce. It is the other party who can claim for divorce.  Conversion to another faith directly does not lead to divorce. There should be a feeling of hurt to the person whose spouse is getting converted. But when the conversion is done for unfair practices, like taking benefits of other religion then it stands as a ground for divorce.

e. Insanity: Insanity means that if either of the spouses who is suffering from such persistent mental illness or is of unsound mind that he/she does such outrageous acts that may cause harm to the other person. In such a situation when it becomes nearly impossible to live with the person having such lunacy, then the partner can seek divorce. For an individual to merely have a mental illness cannot be the only real ground for divorce, to seek divorce it is important to indicate that the spouse of the respondent cannot reasonably be expected to reside with them. The law states that an individual must have such mental illness that cannot be cured and that person has suffered from such illness for a minimum of five years before the petition. It is important to ascertain two elements so as to seek divorce:

  1. That the person has a prolong mental illness and it is untreatable. 
  2.  That the person has been suffering from such mental illness for so long that it is nearly impossible for his/her spouse to live with the respondent. 

  • Leprosy: Earlier leprosy was given as a ground for divorce under the Hindu Marriage Act, 1955 but it was removed last year from five personal laws: the Hindu Marriage Act; Special Marriage Act; Dissolution of Muslim Marriages Act; Hindu Adoptions and Maintenance Act; and the Divorce Act – for Christians. The un-amended law stated that a husband or a wife can separate from each other if the respondent is suffering from leprosy for not less than two years immediately before the filing of the petition.

Earlier it was considered that leprosy was untreatable and is contagious. But with the advancement in technology and medicines, leprosy can now be cured. It is because of this that leprosy has been struck out as a ground for divorce. A PIL filed threw light on the injustice on leprosy affected people as it violates Article 14, 19 and 21 of the constitution. It was seen to be as a discriminatory provision, and therefore it was recommended to amend the provisions. Although there was opposition saying not to intervene and change the Muslim Personal Law as it was still a relevant ground in countries like Pakistan and Bangladesh.

  • Venereal Disease: Venereal diseases are the sexually transmitted diseases such as AIDS, genital warts, gonorrhea, etc.

  2013: In a case before Madras High Court, the bench granted divorce to the husband whose wife was HIV positive. The judge said that if a spouse is suffering from a communicable venereal disease then it stands as a valid ground of divorce. 

 But in 2015, the Punjab and Haryana High Court made it clear that every communicable disease cannot be a ground for divorce. Thereafter, the court denied the plea in a case where the husband suspected that his wife was suffering from Hepatitis B and with the help of the court, the husband wanted a medical examination to determine if his wife was suffering from the disease or not.  

The court said that divorce cannot be granted under section 13 on mere apprehension of a person having Hepatitis B, as there is no legislation to allow husband to assess if his wife is suffering from any disease. But this case calls for cruelty on behalf of the husband. Firstly, it is cruel on the part of the husband that he decided to leave his wife under such difficult time. Secondly, it is not the wife denying sexual access but the husband, who is afraid that he might suffer from the same. Hence, the High Court held that suffering from sexually transmitted disease does not stand as a ground for divorce.

The decision is within the decree of court. It shall examine the severity of the situation and hence take decision accordingly.

  • Renunciation: Renunciation is referred as leaving, rejecting or terminate doing something that once gave us happiness and pleasure. When a person leaves all the materialistic things behind him in order to gain spiritual enlightenment, then it is called renunciation. A person leaves his family, career, business, love, lust or desires way behind him. It is a path for salvation in which the mighty lord answers all the questions a Sanyasi (a person who renounces) has. He, who renounces, detaches himself from the world and connects to God. A sanyasi is considered a civilly dead. Therefore, a spouse is granted divorce if his/her partner renounces everything and walks on the path of spiritual enlightenment. This has two components: First, the person should renounce all worldly affairs, and secondly, that the person should choose spiritual enlightenment which is recognized by Hindu religion. There are certain ceremonial formalities that need to be followed. The decision to renounce the world should be absolute. This also excludes the person from having any right in the ancestral property or any other property.
  • Presumption of death: Presumption of death is given as a ground of divorce under section 13 (1) (vii) of the Hindu Marriage Act, 1955. An individual can ask for divorce when the respondent is not heard of being alive for seven years or more. This has to be from the people that are most expected to hear from the respondent. It is for those whose existence becomes a question and is assumed to be dead. For a person who is alive, it is presumed that he should have communicated with either his relatives or his friends or family. But if there is no trace of any communication, then it is presumed that the person may have died. 

The onus of proof is on the petitioner to provide the court with evidences showing that there is absolutely no communication with the respondent or with any of his relatives or friends that he/she is most likely to communicate with. The legal presumption for a person being dead is seven years but under Hindu law; the period is of twelve years that needs to be elapsed in order to presume a person is dead. But the legal presumption is not made rigid; death can be presumed before seven years are elapsed, but it requires proof of special circumstances before the court.

  • Wife’s Special Grounds for Divorce under the Hindu Marriage Act, 1955: 
  1. Pre-Act Polygamous Marriage: According to this clause, if a man had a marriage before the commencement of the Hindu Marriage Act, 1955 and the husband has married another woman despite the fact that his first wife is alive. In such a case the first wife can seek divorce. 
  2. Rape, Sodomy or Bestiality: Rape[3] is defined under Indian Penal Code as if a man performs sexual intercourse with a female which is against her will; without her consent; or with her consent by putting her or any other person who is likely to be close with her, in fear of hurt or death or; with her consent when she believes that man to be her lawful husband and the man knows he is not her husband; or with her consent when she is unable to understand the situation and its consequences either because of unsoundness of mind or intoxication or by any other way; or with/without her consent when she is a minor i.e., under eighteen years of age; as she is incapable of giving a consent.

Sodomy– Usually it refers to oral or anal sex which was once illegal in our country. But since section 377 [4]has been struck down, homosexual relationships are now legal and so does sodomy.

Bestiality– it is a criminal offence of having sexual relationship with an animal.

So if a wife finds that her husband has been involved in any of these three offences she can seek for divorce.

  • If the husband does not resume cohabiting with the wife for one year or upwards after the decree of maintenance is awarded to the wife, then wife can seek divorce. 
  • Repudiation of marriage: A woman can seek for divorce if she has been married before attaining the age of fifteen. She has a chance to renounce her marriage before she attains the majority age i.e., eighteen years of age. 

References

  • https://www.latestlaws.com/articles/analysis-of-grounds-of-divorce-under-the-hindu-marriage-act-1955/#:~:text=Under%20clause%20(ii)%20of%20sub,or%20bestiality%20against%20her%20husband.&text=The%20matrimonial%20crime%20of%20sodomy,his%20wife%20without%20their%20consent.
  • https://economictimes.indiatimes.com/news/politics-and-nation/parliament-passes-law-removing-leprosy-as-ground-for-divorce/articleshow/67974143.cms
  • https://www.thehindubusinessline.com/news/bench-grants-divorce-to-man-whose-wife-is-hiv-positive/article23102822.ece
  • https://timesofindia.indiatimes.com/city/chandigarh/Sexually-transmitted-disease-no-ground-for-divorce-HC/articleshow/50120645.cms
  • http://www.legalserviceindia.com/helpline/divorce_for_wife.htm
  • https://blog.ipleaders.in/grounds-divorce-the-hindu-marriage-act/#:~:text=The%20Hindu%20Marriage%20Act%2C%201955%20provides%20various%20provision%20regarding%20divorce,as%20a%20Dissolution%20of%20Marriage%E2%80%9D.&text=Under%20the%20Hindu%20Marriage%20Act%2C%20the%20basic%20grounds%20on%20which,Conversion%2C%20Leprosy%2C%20Cruelty%20etc.
  • https://www.lawctopus.com/academike/divorce-under-hindu-law/
  • https://indiankanoon.org/doc/1284729/
  • https://lawtimesjournal.in/divorce-under-hindu-law/

[1] Section497 of the Indian Penal Code, 1860.

[2] Narayan Ganesh Dastane vs Sucheta Narayan Dastane,AIR 1534, 1975 SCR (3) 967

[3] Section 375 of the Indian Penal Code, 1860

[4] Section 377, Indian Penal Code

Author- Palak Mathu, Amity Law School

Law Library LawBhoomi

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