Theories And Grounds of Divorce under Hindu Law

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Introduction

Marriage has been thought to be an eternal and unbreakable bond between husband and wife since ancient times. The Hindu marriage itself was considered from ancient times to be a sacramental union between husband and wife that lasts until death or a sacred tie that can never be broken. This sacred tie cannot be untied once it has been formed. The division of spouses was considered by Hindus to be an act that breached the law of God. They therefore did not accept separation. According to Shastric Hindu Law, even if the spouses’ relationships are unhappy and sorrowful, they must live and die with them. Manu did not believe in divorce, stating that a woman cannot be released by her husband through abandonment or sale, and that the spouses cannot be separated in any way. While according to Kautilya’s Arthashastra, in case of an illegitimate marriage, the marriage can be dissolved by mutual consent. As a result, the Hindu Marriage Act is a revolutionary act of legislation in this regard, as it abandons historical values and norms and introduces significant and dynamic changes in Hindu Law of Marriage and Divorce, including provisions for divorce in various circumstances.

Divorce is defined as the legal dissolution and termination of a marriage by a competent court; it means that the parties who have been granted divorce are no longer husband and wife. Marriage is viewed as a social institution, not just a transaction between two people, and it was argued that there was a social interest in preventing and protecting the institution of marriage through legal means. Because India is such a diverse country, many religious groups coexist, each with their own set of marriage laws. As a result, the divorce process differs depending on the religion of the couple seeking divorce. According to Indian divorce laws, Hindus, Buddhists, Sikhs, and Jains will all seek divorce under the Hindu Marriage Act, 1955. Sections 13, 13(B), 14, and 15 of the Hindu Marriage Act set out the rules for divorce. It is the statutory termination by a judge or any competent court of a marriage. After divorce, both husband and wife will no longer be married. The decree of divorce allows anyone to terminate a marriage if husband and wife cannot live in compromise. It allows both parties to have fresh marriages.

There are various theories of divorces under Hindu law, namely, fault theory or guilt theory, mutual consent theory and irretrievable breakdown theory.

All the three theories are recognized under the Hindu laws. Divorce can be obtained under any of these theories. Originally, under the Hindu Marriage Act, 1955, the fault theory there were nine fault grounds enshrined in the Section 13(1) where wife or husband can demand for divorce and two fault grounds mentioned in 13(2) in which only wife can sue for divorce. Later in 1964 and 1976 amendments were made which added more grounds for divorce in the aforementioned act. A new section 13B for divorce by mutual consent was also added. There are different theories that a married couple may use to obtain a divorce; these theories are the justifications given for the separation or dissolution of marriages.

Guilt/ fault theory of divorce

Only when either spouse has committed a matrimonial offence, according to the guilt theory of divorce, can a marriage be dissolved. According to the theory, there must be a guilty and an innocent party, and only the innocent party may seek divorce, and there must be personal injury to the individuals’ marital relations. However, as a result of one party’s guilt, the other party must be entirely innocent; therefore, the main disadvantage of this theory is that if both parties are at fault, there is no way to dissolve the marriage.

The Hindu Marriage Act of 1955, as amended by the Marriage Laws (Amendment) Act of 1976, outlines nine grounds for divorce based on the guilt theory: 1) Adultery, 2) Cruelty, 3) Desertion, 4) Insanity or mental disorder, 5) Conversion, 6) Venereal communicable disease, 7) Leprosy, 8) Renunciation, 9) Presumption of Death

  • Adultery

While adultery may not be a criminal offence in every country, most countries accept the matrimonial offence of adultery or the fault ground of adultery. Adultery was condemned in the strongest terms even under Shastric Hindu law, which did not recognise divorce. Adultery is a matrimonial offence with no clear definition. During the subsistence of marriage, there must be voluntary or consensual sexual intercourse between a married person and another, whether married or unmarried, of the opposite sex, who is not the other’s spouse. Though a divorce could previously only be granted if one of the spouses was living in adultery, by the Marriage Laws Amendment Act, 1976 the Hindu Marriage Act now considers even a single act of adultery sufficient for a divorce decree[1].

In the case of Swapna Ghose v. Sadanand Ghose[2], The wife discovered her husband and the adulteress lying in the same bed at night and further evidence from neighbours that the husband was living with the adulteress as husband and wife was sufficient evidence of adultery.

Because adultery is a crime against marriage, it is necessary to prove that the marriage was legal at the time of the act of adultery. Adultery can be proven in two ways: a) through circumstantial evidence, and b) through contracting venereal disease.

  • Cruelty

Cruelty is a notion that evolves over time. Both mental and physical cruelties are included in the modern definition of cruelty. Acts of cruelty are behavioral manifestations triggered by a variety of factors in the lives of spouses and their environment, so each case must be decided on its own set of facts. While physical cruelty is easy to identify, mental cruelty is more difficult to define. Perhaps mental cruelty is a lack of such conjugal kindness, inflicting pain to such a degree and for such a long time that it has a negative impact on the mental and physical health of the spouse on whom it is inflicted.

The cause of mental cruelty has been described as a “state of mind” by the court in Pravin Mehta v. Indrajeet Mehta[3].

Some Instances of Cruelty are as follows[4]– false accusations of adultery or unchastity, demand of dowry, impotency, drunkenness, incompatibility of temperament, threat to commit suicide etc.

The following do not amount to cruelty- ordinary wear & tear of married life, wife’s refusal to resign her job, desertion per se, and outbursts of temper without rancor.

  • Desertion

Desertion is defined as one party’s rejection of all marital obligations—the permanent forsaking or abandonment of one spouse by the other without justification and without the consent of the other. It entails a complete disregard for marital obligations. The following five conditions must be met in order for desertion to be considered; they must also be present in order for a divorce to be granted: • the factum[5] of separation • animus deserdendi (intention to desert) • desertion without any reasonable cause • desertion without consent of other party • statutory period of two years must have run out before a petition is presented.

In the case of Bipinchandra v. Prabhavati[6], the Supreme Court stated that if the respondent leaves the matrimonial home with the intent to desert, but later shows an intention to return and is prevented from doing so by the petitioner, he is not guilty of desertion.

  • Conversion

Conversion is a ground for divorce in which the aggrieved party is given a divorce when the other party has converted to another religion, such as Islam, Christianity, Judaism, Zoroastrianism, etc.

  • Insanity

The following two requirements apply to insanity as a divorce ground:

  • The respondent has been incurably insane/unsound mind;
  • ii) The respondent has been suffering from a mental disorder of such a nature and severity that the petitioner cannot reasonably expect to live with him.
  • Leprosy

The contagiousness of leprosy and its repulsive outward manifestations are to blame for forming a mentality in which man not only avoids but scorns the company of lepers. As a result, it is made available as a basis for divorce. The petitioner bears the burden of proof. In five personal laws, including the Hindu Marriage Act, the Personal Laws (Amendment) Bill, 2018 directs the removal of leprosy as a ground for divorce.

  • Venereal diseases

It is currently a ground for divorce if it is communicable by nature, regardless of the length of time the respondent has been afflicted. The ground is established if it can be demonstrated that the disease is communicable and that it was not transmitted to the petitioner (even if done innocently).

  • Renunciation

Only Hindu law recognises “renunciation of the world” as a basis for divorce, as renunciation of the world is a common Hindu concept. A spouse may seek divorce if the other party has renounced the world and entered a holy order, according to modern Hindu law. When someone does something like this, they are considered civilly dead. The renunciation made by joining a religious order must be complete and unequivocal.

  • Presumption of Death

A person is supposed to be dead if he or she has not been heard from in at least seven years, according to the Act. Under all matrimonial rules, the petitioner bears the burden of proving that the respondent’s whereabouts have been unknown for the required period. This is a universal acceptance assumption that aids proof in cases where proving a fact would be exceedingly difficult, if not impossible. Even if it later turns out that the respondent was alive at the time the decree was issued, a divorce decree granted under this clause is valid and effective.

Wife’s special grounds for divorce

A woman has four additional grounds for divorce under Section 13(2) of the Hindu Marriage Act, 1955, in addition to the ones mentioned above. The following are some examples:

Pre-Act Polygamous Marriage: This clause states the ground for divorce as, “That the husband has another wife from before the commencement of the Act, alive at the time of the solemnization of the marriage of the petitioner. In the case of Venkatame v. Patil[7], a man had two wives, one of whom filed for divorce, and he divorced the other while the petition was pending. He then claimed that the petition should be rejected because he was left with only one wife. The court dismissed the claim. This ground is available if both marriages are valid and the other wife (2nd wife) is present at the time of the divorce.

Rape, Sodomy or Bestiality:  A divorce petition may be filed under this clause if the husband has been convicted of rape, sodomy, or bestiality since the marriage was solemnised.

Non-Resumption of Cohabitation: Following a Maintenance Decree/Order if a wife has received a maintenance order under Section 125 of the Cr.P.C., 1973, or a decree under Section 18 of the Hindu Adoption and Maintenance Act, 1956, and cohabitation has not resumed between the parties after one year or more, this is a valid ground for filing for divorce.

Repudiation of Marriage: This provision gives the wife grounds for divorce if the marriage was solemnised before she turned fifteen years old and she repudiated the marriage before she turned eighteen. Such rejection can be expressed (written or spoken words) or implied (by the wife’s actions) (left husband & refused to come back). Furthermore, this right (added by the 1976 amendment) is only retroactive, meaning that it can be invoked regardless of whether the marriage was solemnised before or after the amendment.

Mutual Consent Theory of Divorce

The Marriage Laws (Amendment) Act, 1976 included a provision for dissolving marriage by mutual consent in Section 13(B) of the Hindu Marriage Act. Because two people marry of their own free will and enter into a social contract of marriage, they should be able to leave the relationship and disband their marriage of their own free will. Miserable cohabitation can lead to matrimonial delinquencies and wrongdoing, which can lead to divorce grounds. If the spouses agree to separate and go their separate ways, they should be given the right to divorce and have their marriages dissolved, according to this theory. Allowing a couple to divorce on mutual consent before their marriage is ruined by delinquency is a positive step that benefits all partners.

According to the fault or guilt theory, one of the spouses must be guilty of any matrimonial infraction before the marriage can be dissolved. As a result, divorce by mutual consent argued that marriage freedom entails divorce freedom. The law acknowledges a situation that has existed for some time and has resulted in a dissatisfied marriage.

The main criticism of this theory is that it makes divorce extremely difficult because it requires the consent of both parties, and if one of the parties refuses to consent, divorce will never be granted.

Irretrievable breakdown of marriage

The Irretrievable Breakdown Theory of Divorce is the most contentious theory in legal jurisprudence, based on the principle that marriage is a union of two people bound together by love, affection, and respect. If either of these is hindered for any reason, and the matrimonial relationship between the spouses deteriorates to the point where it is entirely irreparable, that is, a point where neither spouse can live peacefully with the other and reap the benefits of a matrimonial relationship, it is best to dissolve the marriage because there is no point in prolonging such a dead relationship which exists only in name and not in reality.

The dissolution of the relationship is assumed to have occurred de facto. The fact that married couples have been living apart for a reasonable amount of time (say two or three years), for any reasonable reason (such as cruelty, adultery, or desertion) or even without a reasonable reason (which demonstrates the parties’ or even one of the parties’ unwillingness to live together), and their efforts to reunite failed, the relationship will be presumed to be dead.

In the case of Naveen Kohli v. Neelu Kohli[8], the Supreme Court recommended that the Hindu Marriage Act be amended so that either spouse can quote irretrievable breakdown of marriage as a reason for seeking divorce. In light of the fact that divorce could not be granted in a number of cases where marriages were practically dead due to the lack of an irreversible breakdown provision, the court strongly advocated for incorporating this idea into the law. The Court stated that the public interest requires that the married status be retained as much as possible, for as long as possible, and whenever possible. However, where a marriage has been irreparably damaged, the public interest necessitates acknowledgment of the fact. The decision states that there is no appropriate way for a spouse to be forced to resume life with the consort, and that circumstances that cause suffering should not be allowed to continue indefinitely because the law has a responsibility to properly respond to society’s needs. The deep rationale is that it would be useless to keep the marital tie alive in circumstances where there is no possibility of living together again or when it is beyond repair. The ground of irreversible breakdown is critical here. However, it should not be overlooked that, once in place, the ground must include safeguards to ensure that no party is exploited.

Merits: The only merit of the jurists’ theory is that a marriage, which is considered a sacramental institution in practise, should be founded on the foundations of a sound marriage, which are tolerance, adjustment, and respect for one another. If one of the parties to the marriage is unwilling to live with the other, the marriage will not be a happy one. Stretching such a relationship will do more harm than good, as it will breed hate and anger between the parties. As a result, it is necessary to dissolve such a marriage in order to protect the sanctity of marriage, to decrease the number of unhappy marriages, and to avoid wasting the spouses’ precious years of life.

Demerits: The Law Commission of India has detailed the flaws of the irretrievable breakdown theory in Chapter 4 of its 71st report. The following are the two main oppositions outlined in the report: (i) Divorce will be easy. It would allow the spouses, or even just one of them, to dissolve the marriage for personal reasons. (ii) It would allow the guilty spouse to profit from his own mistake by divorcing and dissolving the marriage.

The Supreme Court made a strong case to the Union of India to amend the Hindu Marriage Act, 1955, to include “Irretrievable Breakdown of the Marriage” as a separate ground for divorce under Section 13. The Law Commission of India’s 71st Report, published in 1978, examines the theory of irretrievable breakdown of marriage, questioning the circumstances, applicability, and extent to which this theory can be included as a ground for divorce under the Hindu Marriage Act.

Except for the Supreme Court, no other court in the country has the authority to grant divorce based on the theory of irretrievable breakdown of a matrimonial relationship.

Conclusion

Divorces were somewhat a taboo in India but over the years there has been a shift in social thinking in the area of husband-wife relationships over the years. In our society, the determination and desire to live separately rather than remain united in an unhappy marriage is gaining acceptance.

Divorce was unknown to general Shastric Hindu laws prior to the enactment of the Hindu Marriage Act, 1955, since marriage was viewed as an eternal bond and an indissoluble union of husband and wife. Now that laws and provisions for seeking divorce have been enacted, there is a legal way to end an unhappy and sorrowful marriage.

Understanding of the concept of divorce and its legal implication is the basic awareness everyone should have. The basic knowledge of procedure, steps, theories, different grounds of divorces and its legal implication (or benefits) can help many people stuck in unsatisfactory marriages. Many victims of cruelty and domestic abuse are unaware of their options and are helpless.

Bibliography:

Acts/Regulations/Rules Referred:

  1. Hindu Marriage Act, 1955
  2. Code of Criminal Procedure, 1973
  3. The Marriage Law Act, 1976
  4. Hindu Adoption and Maintenance Act, 1956

Books:

  1. Indian law of marriage and divorce by Kumud Desai

Articles:

  1. https://www.ourlegalworld.com/theories-of-divorce-under-hindu-law/
  2. https://indianlawportal.co.in/theories-of-divorce-under-hindu-law/

Websites Referred

  1. https://blog.ipleaders.in/grounds-divorce-the-hindu-marriage-act/#:~:text=The%20Hindu%20Marriage%20Act%2C%201955%20provides%20various%20provision%20regarding%20divorce.&text=The%20innocent%20spouse%20can%20seek%20the%20remedy%20of%20divorce.,Conversion%2C%20Leprosy%2C%20Cruelty%20etc.
  2. https://www.ourlegalworld.com/theories-of-divorce-under-hindu-law/
  3. https://indianlawportal.co.in/theories-of-divorce-under-hindu-law/

[1] Vira Reddy v. Kistamma, 1969 Mad. 235; Subbarma v. Saraswathi, (1966) 2 MLJ 263

[2] AIR 1979 Cal 1.

[3] AIR 2002 SC 2528.

[4] http://www.legalserviceindia.com/articles/irrbdom.htm.

[5] a statement of the facts of a case.

[6] AIR 1957 SC 176.

[7] AIR 1963 Mys 118.

[8] 2006(3) SCALE 252.

Author: Ananya Yadav

Editor: Kanishka VaishSenior Editor, LexLife India

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