This article is written by Durgesh Yadav of 3rd Semester of B R Ambedkar National Law University, Sonipat, an intern under Legal Vidhiya
ABSTRACT
Marriage is often celebrated as a union of love and commitment that lasts till your death. Most of the time, it is connected with some religious ceremonies and god’s blessing. For a long period, it was an unbreakable union of two people. They had to live their life with each other irrespective of their personal problems (Because of the same, till now ending a marriage is considered as a sin or a bad practice). But, with the development of society, married people started separating. Also, because of the conventional theory, people faced discrimination. Women, who were considered as men’s property or chattel (in Western Countries), were tortured by the men or their families. They had no right to leave their husband’s house. So, to counter both problems, the concept of divorce emerged.
In the early days, people got divorced based on mutual consent (that means both parties agreed on it). But with the enactment of laws, other grounds are also provided by the courts for divorce.
In today’s society, divorce is both a frequent and significant occurrence, which involves a complex web of causes, procedures, and outcomes. It is a phenomenon that cuts through social and cultural borders and has a significant, varied impact on people’s lives. The choice to dissolve a marriage is a personal one that is accompanied by emotional turmoil and complex legal processes. In India, different personal laws mention the concept of divorce, the grounds for the same, and the procedure that must be followed for divorce. Let’s discuss this in detail.
KEYWORDS: Divorce, Theories of Divorce, HMA, SMA
OBJECTIVE:
Divorce is considered as key to the cage of marriage. You can break all the tries of your married relationship and start a new journey. Divorce is a legal procedure for ending a marriage. But it also has some cons.
In the contemporary era, the number of divorces increased rapidly. It majorly affected the stability of society. People have the right to end their marriages but what if it is just because of heated arguments and fights (or called it because of temporary emotions)? In these cases, the courts have to play their role more cautiously. In this work also, we are going to discuss the concept of divorce mentioned by the court in its various judgments. We will also learn about the theories and grounds of divorce in India.
INTRODUCTION
Divorce, the legal procedure for dissolving a marriage, has a lengthy history dating back thousands of years. The rules and attitudes surrounding divorce have changed significantly from ancient civilizations to the present, reflecting the altering cultural and societal standards of each era.[1] For a long while, it was a taboo in the eyes of people that is still present in some parts of India. But now people have become liberal. They start accepting divorcees.
The word divorce is derived from the Latin term “divortium” which means separation.
The earliest divorce-related laws were codified in 1760 B.C., under the rule of King Hammurabi of Babylon. It is thought that the King inscribed 282 laws, including the divorce law, on stone tablets. [2] And now, it has become a significant concept of Family Law.
If we describe the term divorce, we can say that it completes disunion or disunites a marital union or any legal separation of a husband and wife in accordance with accepted customs of the society. Prior to the Hindu Marriage Act, of 1955, when divorce became formally recognized, marriage was viewed as a sacred union in Hindus and the concept of divorce was nonexistent. Following that, Section 13 of the Hindu Marriage Act of 1955 established the grounds on which the parties may request divorce from a court.
As per the HMA, 1955, there are mainly 3 theories for divorce- Fault theory, Breakdown theory, and Consent theory. [3]
In HMA, there are some other grounds mentioned under the theory of frustration. In this article, we will explore these theories.
DIVORCE
As long as marriage was seen as an unbreakable bond between the husband and woman, divorce was previously illegal under general Hindu law. Manu stated that a wife could not be released by her husband by either sale or abandonment, meaning that there was no means to break the marriage. Even though Hindu law does not yet address divorce, it has been ruled that in cases where it is acknowledged as an established custom, it will have legal standing.
In the case of an unapproved form of marriage, the marriage may be dissolved by mutual consent, according to Kautilya’s Arthashatra. Manu, however, rejects the idea of ending marriage. He declares: “Let mutual fidelity last till death; this is, in a nutshell, the dharma of the husband and wife. [4] However, this changed after the implementation of Hindu Marriage Act, 1955.
Divorce is the legal dissolution of a marriage, typically allowing the former spouses to remarry[5]. It is the last chapter of a novel called ‘Marriage’. It separates the united couples with their own agreement and will. A marriage or other marital relationship can be legally ended through divorce. It entails the severing of the legal and contractual ties that bound two people who were once married, enabling them to go their separate ways and reclaim their status as single people.
A harmonious connection between two people is the fundamental purpose of marriage, so there is no use in continuing the tradition if this goal cannot be achieved. The idea of divorce emerged as a way for people who were previously bound by married relationships to live happy, free, separate, and independent lives.
The court gives a decree of divorce on several grounds. Before knowing the same, let’s discuss the main theories of divorce mentioned in the HMA, 1955.
HINDU MARRIAGE ACT, 1955
For the Indian Hindus, the concept of divorce is codified in their personal law- the Hindu Marriage Act of 1955. Section 13[6] of Hindu Marriage Act, 1955 deals with the concept divorce and grounds for the same. Sec. 13(1) [7]states that every marriage that has been solemnised, whether before or after the start of this Act, is eligible to file a petition for divorce, which may be presented by either the husband or the wife, and which may be dissolved by a divorce decision.
Before discussing the grounds under Section 13 of HMA, 1955, let’s discuss the theories of divorce which are the basis of these grounds.
THEORIES OF DIVORCE
- FAULT THEORY
It is also known as guilt theory or offense theory. In this theory, when either of the partners has committed a matrimonial offense, the innocent party seeks divorce and the court may dissolve the marriage. There must be a guilty and an innocent person, and only the innocent party may seek divorce as a remedy. The most notable aspect and drawback is that there is no recourse if both parties are at fault.
- MUTUAL CONSENT
Under this theory, both partners mutually agree to end their marriage. The rationale behind this is that since two people can choose to get married, they should also be able to end their partnership voluntarily. However, opponents of this notion claim that this strategy will encourage immorality because it will result in hurried divorces and cause partners to end their marriages even if there is just a tiny temperamental incompatibility and disagreements.
- IRRETRIEVABLE THEORY
This theory is defined as a failure in married relationships or such conditions it is detrimental to that relationship that there is a remote possibility of the couple ever living together as husband and wife again. The husband and wife are unable to coexist due to these unfavorable circumstances. Therefore, we might conclude that, under certain situations, there is a stronger motive to live away from your spouse than the feelings of love, loyalty, and affection that should typically rule between a husband and wife. Therefore, the premise of this idea is that if a marriage cannot be saved, it should be ended; if a marriage is destined to fail, there is no purpose in allocating rights and responsibilities to the two parties. [8]Such a marriage should be ended amicably and with the least amount of bitterness, grief, and shame possible.[9]
- Another theory is- the theory of frustration. The frustration theory of divorce states that a marriage may terminate if one or both partners are unable to fulfill their fundamental marital obligations due to extenuating circumstances. Although the frustration theory of divorce is not explicitly recognized by Indian law, courts have ruled that a marriage may be dissolved if one or both spouses are unable to meet their marital obligations due to extenuating circumstances, such as impotence, mental illness, or imprisonment.[10]
Now let’s discuss the grounds of divorce under Hindu Marriage Act, 1955
GROUNDS OF DIVORCE
In its original form, the Hindu Marriage Act of 1955, was founded on the fault theory of divorce, including nine fault reasons in Section 13(1) on which both the husband or wife could file for divorce and two fault grounds in Section 13(2) on which the wife alone could do so.
In 1964, an amendment changed some provisions of Section 13(1) to become Section 13(1A), recognizing two reasons for a marriage’s dissolution. Two new fault grounds for divorce for wives were added by the Amendment Act of 1976, along with a new section 13B allowing divorce by permission of the parties.[11]
The grounds for a decree of divorce are as follow-
- ADULTERY
Under Section 13(1)(i), adultery was defined. According to this, adultery has been committed by a married individual with marital connections who engages in sexual activity with someone who is not their spouse after the marriage has been solemnized.
Therefore, having sexual relations with a polygamous spouse’s previous or current wife is not considered adultery. Sexual relations with the second wife, however, will constitute adultery if the second marriage is void.
Before 2018, adultery was a penal offense under IPC, but in the case of Joseph Shine v. The Union of India[12], the same was decriminalized by the court. So, now adultery is only an offense against marriage and a valid ground for divorce under HMA, 1955.
In the case of Swapna Ghose v. Sadanand Ghose[13], the court held that if the wife discovered her husband and the adulteress sleeping in the same bed at night, it is sufficient proof of adultery.
- CRUELTY
It means to torture someone or behave unjustly or ruthlessly towards a person. It can be mental or physical cruelty. So, it is a valid ground for divorce under Section 13(1)(ii) of HMA. It is also a penal offense under Section 498A of IPC. It stated about the cruelty on women by her husband and family. But there is no penal provision for men for cruelty in the IPC.
While it is simple to define physical cruelty, it is more challenging to define mental cruelty. Perhaps mental cruelty is the absence of such marital compassion, which causes pain to the spouse to such a degree and duration that it harms their physical or mental health.
In the case of Maya Devi v. Jagdish Prasad[14], the court defined cruelty as intentional and unreasonable behavior of such a nature as to endanger life, limb, or bodily or mental health, or to produce a reasonable fear of such a danger. The subject of mental cruelty must be examined in the context of the particular society, to which the parties belong, as well as their social ideals, status, and environment.
In the case of A. Jayachandra v. Aneel Kaur, 2004 [15], the court held that cruelty is not the result of mere annoyance. Simple marital conduct that could irritate the other may not constitute cruelty.
So, we can say that it is one of the most debatable topics of family law.
- DESERTION
In layman’s language, it means to abandon someone. In legal terms, we can say that desertion is the permanent forsaking or abandonment of one spouse by the other without any justifiable reason and the other’s permission. It is the rejection of all of the commitments of marriage by one side. It denotes a complete renunciation of marital responsibilities. This is mentioned under Section 10(ib) of the Hindu Marriage Act 1955. It states that a court grants divorce if the petitioner has been deserted by the respondent for a continuous period of two years. Even if the petitioner’s spouse had left the house but was still in communication with them by phone or email, this cannot be used as grounds for divorce. However, if the respondent or the other spouse unexpectedly and without justification stops cohabitating with the petitioner or abdicates all rights, obligations, and responsibilities connected to the matrimonial bond, then his sole true goal was to desert his spouse.
In the case of Bipinchandra v. Prabhavati[16], the Supreme Court ruled that even if the respondent leaves the marital residence with the aim to desert, he will not be considered to have deserted the matrimonial residence if he later exhibits a desire to do so and is prevented from doing so by the petitioner.
- CONVERSION
The Hindu Marriage Act’s entire foundation is undermined if one of the married couple’s members renounces Hinduism and adopts a different faith. Because of this, it is seen as a legitimate basis for divorce under Section 13(1)(ii) of the Hindu Marriage Act 1955.
In Lily Thomas v. Union of India[17], the Hon’ble Supreme Court of India decided that conversion or apostasy only served as a basis for divorce under Section 13(1)(ii) of the Hindu Marriage Act, 1955, rather than immediately dissolving an already solemnized marriage.
- INSANITY
It means not being in the right state of mind. It is defined under Section 13(1)(iii) that a person is not competent enough to bind oneself within the married bonds if one is unable to understand the difference between right and wrong, to provide consent, or to approve or disapprove of what is happening around him/her.
Requirements of this ground are-
- The person is of unsound mind.
- The petitioner cannot fairly be expected to live with the respondent due to the respondent’s ongoing or intermittent mental disorder of such a sort and severity.[18]
In the case of Ajitrai Shivprasad Mehta v. Bai Vasumati[19], it was decided that to fully satisfy the court, the proof of unsoundness of mind must be established beyond a reasonable doubt.
- LEPROSY
Leprosy’s contagiousness and ugly physical manifestations are to blame for the psychology that makes people avoid being around lepers and treat them with contempt. As a result, it is included as a ground for divorce. The petitioner has the burden of demonstrating this.
In the case of Annapurna Devi v. Nabakishor Singh[20], the court held that even if it is undisputed that the respondent has had leprosy for at least three years prior to filing the divorce petition, the petitioner is still required to prove that the disease is severe and incurable.
- VENEREAL DISEASE
It means sexually transmitted diseases. It is a ground for divorce under Section 13(1)(v). A divorce petition may be submitted by one spouse if the other is afflicted with a serious, transferrable incurable disease.
When a wife is free from venereal disease, it is considered cruel on the part of the husband to force her to engage in sexual activity, according to the ruling in the case of Birendra Kumar v. Hemlata Biswas[21].
- RENUNCIATION
If one spouse embraces religion or another belief and renounces all worldly interests, the other spouse may file for divorce in accordance with Section 13(1)(vi). It must be a complete renunciation of all worldly affairs. Thus when the person himself/herself doesn’t want to take the responsibility of marriage, it is a ground for divorce.
- PRESUMPTION OF DEATH
According to Section 13(1)(vii), if a person has not been reported as being alive for at least seven years, he/she is presumed to be dead. Under all matrimonial laws, it is the petitioner’s responsibility to demonstrate that the respondent’s whereabouts have not been known for the required amount of time.
Grounds for Wives
Under Section 13(2) of the Hindu Marriage Act, 1955, a wife has access to four additional grounds for divorce in addition to those listed above. Those are –
- Pre-Act Polygamous Marriage
In accordance with this clause, the ground for divorce is “That the husband has another wife from before the commencement of the Act, alive at the time of the solemnization of the petitioner’s marriage.”
In the case of Venkatame v. Patil[22], a man had two wives; one of them filed for divorce, and while the petition was being processed, he divorced the second wife. The man sought for the dismissal of petition because he was left with just one wife. The court turned down the argument.
- Rape, Sodomy or Bestiality
A wife is eligible to have a petition for divorce filed against her by her husband on the grounds of rape, sodomy, or bestiality under Section 13(2)(ii) of the Act. In addition, rape is a crime that is defined in Section 375 of the Indian Penal Code.
In Statham v. Statham[23], (1929), the court ruled that rape, sodomy, and other acts of sexual perversion must all be pled and made out clearly. A divorce order cannot be obtained based on vague charges.
- Non-Resumption of Cohabitation after an Order of Maintenance
If a woman has acquired a maintenance order by legal action under Section 125 of the Criminal Procedure Code of 1973 or a decision under Section 18 of the Hindu Adoption and Maintenance Act of 1956, and the couple’s cohabitation has not resumed after a year or more, this is a legal basis for filing for divorce.
- Repudiation of Marriage
This clause gives the woman the right to a divorce if the marriage was consummated before she turned fifteen years old and she repudiated the union before turning eighteen.
OTHER GROUNDS
- MUTUAL CONSENT
The Hindu Marriage Act of 1976 has provisions for divorce that are carried out by mutual consent in Section 13B. The conditions of this section are-
Parties don’t want to cohabit after 1 year of judicial separation.
After the divorce petition, if parties don’t withdraw the petition within 18 months of its presentation in the court.
- IRRETRIEVABLE BREAKDOWN
This means that they can no longer cohabitate as husband and wife. The court must be convinced by both partners that there is no likelihood of the marriage working out again.
CONCLUSION
Hindus regard marriage as a holy union. Divorce was considered too radical at the time for Indian society. The victims of such a barbaric regime were the women. But with time, things have changed, and the social order has changed. The law now offers a mechanism to end a bad marriage by filing for divorce in a court of law. Women no longer have to suffer abuse or injustice at the hands of their husbands. However, it is anticipated that the way the judiciary is handling the issue of the irretrievable breakdown of marriage may utterly freeze the marital system. Therefore, our nation’s parliamentarians must approach the topic with extreme caution after carefully weighing its potential effects in the future.
References
- Deyasini Chakrabarti, Divorce under Hindu Marriage Act, 1955, IPleader, https://blog.ipleaders.in/divorce-under-hindu-marriage-act-1955/
- Patna Law School, Divorce Under Hindu Law https://www.patnalawcollege.ac.in/econtent/1604508999217.pdf
- Rai, S. (2022) Divorce theories under Hindu Marriage Act 1955, National Journal for Legal Research and Innovative Ideas. Available at: https://www.njlrii.com/2022/03/divorce-theories-under-hindu-marriage.html#:~:text=Frustration%20Theory%3A&text=The%20grounds%20of%20granting%20divorce,other%20resulting%20to%20mental%20cruelty.
- Deyasini Chakrabarti, Divorce under Hindu Marriage Act, 1955, IPleader, https://blog.ipleaders.in/divorce-under-hindu-marriage-act-1955
- Publishing Team, HISTORY OF DIVORCE, ORIGINS AND MEANING, Michael Kuldiner, https://phillyesquire.com/history-of-divorce-meaning/#:~:text=%E2%80%9CDivorce%E2%80%9D%20comes%20from%20the%20Latin,%E2%80%9Cdivortium%E2%80%9D%20which%20means%20separation
[1] Editor Team, The History of Divorce: A Look Back at the Evolution of Marriage Dissolution, KANCELARIA PRAWNA BERNARD ŁUKOMSKI (17 September 2023, 12;10 AM) https://kpbl.pl/en/the-history-of-divorce-a-look-back-at-the-evolution-of-marriage-dissolution/
[2] Publishing Team, HISTORY OF DIVORCE, ORIGINS AND MEANING, Michael Kuldiner, P.C. (17 September 2023, 12;19 AM) https://phillyesquire.com/history-of-divorce-meaning/#:~:text=%E2%80%9CDivorce%E2%80%9D%20comes%20from%20the%20Latin,%E2%80%9Cdivortium%E2%80%9D%20which%20means%20separation
[3] Hindu, Muslim and Christian divorce laws in India, Legal Service India – Law, Lawyers and Legal Resources. (17 Sep. 23 11:11 PM) Available at: https://www.legalserviceindia.com/legal/article-5532-hindu-muslim-and-christian-divorce-laws-in-india.html.
[4] Simran, Divorce Under Hindu Law, Academike, Lawctopus (17 Sep. 23) https://www.lawctopus.com/academike/divorce-under-hindu-law/#_edn1
[5] Divorce, History and Society, Encyclopaedia Britannica (17 Sep. 23) https://www.britannica.com/topic/divorce
[6] Hindu Marriage Act,1955, Section 13, No.25, Act of Parliament, 1955 (India)
[7] Hindu Marriage Act,1955, Section 13, No.25, Act of Parliament, 1955 (India)
[8] Deyasini Chakrabarti, Divorce under Hindu Marriage Act, 1955, IPleader, (17 Sep. 23) https://blog.ipleaders.in/divorce-under-hindu-marriage-act-1955/
[9] Patna Law School, Divorce Under Hindu Law (17 September 2023) https://www.patnalawcollege.ac.in/econtent/1604508999217.pdf
[10] Rai, S. (2022) Divorce theories under Hindu Marriage Act 1955, National Journal for Legal Research and Innovative Ideas. Available at: https://www.njlrii.com/2022/03/divorce-theories-under-hindu-marriage.html#:~:text=Frustration%20Theory%3A&text=The%20grounds%20of%20granting%20divorce,other%20resulting%20to%20mental%20cruelty. (Accessed: 17 Sep. 23,).
[11] Deyasini Chakrabarti, Divorce under Hindu Marriage Act, 1955, IPleader, (17 Sep. 23) https://blog.ipleaders.in/divorce-under-hindu-marriage-act-1955/
[12] Joseph Shine v. The Union of India AIR 2018 SC 4898
[13] Swapna Ghose v. Sadanand Ghose AIR 1979 Cal 1.
[14]Maya Devi v. Jagdish Prasad AIR 2007 SC 1426
[15] A. Jayachandra v. Aneel Kaur, (2005) 2 SCC 22
[16] Bipinchandra v. Prabhavati AIR 1957 SC 176.
[17] Lily Thomas v. Union of Indi AIR 2000 SC 1650
[18] Hindu Marriage Act,1955, Section 13, No.25, Act of Parliament, 1955 (India)
[19] Ajitrai Shivprasad Mehta v. Bai Vasumati, AIR 1969 Guj 48
[20] Annapurna Devi v. Nabakishor Singh, AIR 1965 Ori 72
[21] Birendra Kumar v. Hemlata Biswas, AIR 1921Cal. 459: ILR 48 Cal 283.
[22] Venkatame v. Patil 2006(3) SCALE 252
[23] Statham v. Statham [1929] P. 131
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