Grounds for Divorce under Hindu Marriage Act 1955 and Special Marriage Act 1954
Before learning about the grounds for divorce under Hindu Marriage Act and Special Marriage Act, we need to know about what marriage really is? Marriage can be rightly defined as the legally or formally recognized union of a man and a woman (or, in some jurisdictions, two people of the same sex) as partners in a relationship. But the concept of marriage is not restricted to this small definition, there is much more embedded in this relationship which is further stated in the blog.
According to the principles of Hindu religion, marriage is considered as a sacred and pure relationship. Marriage is undoubtedly the most important transitional point in a Hindu’s life and the most important of all the Hindu ‘’sanskaras’’ (life-cycle rituals). Parliament of India in the year 1955 enacted The Hindu Marriage Act which is an Act to amend and codify the laws relating to marriage. During this time three more acts were also enacted by the Parliament of India which were a part of the HINDU CODE BILLS which were as follows:
- Hindu Succession Act 1956
- Hindu Minority and Guardianship Act 1956
- Hindu Adoptions and Maintenance Act 1956
This act came into existence on 18th March 1955. This act includes the concept of divorce and separation. Since this act is applicable specifically to the Hindus and others, so Parliament of India in the year 1954 enacted Special Marriage Act to provide a special form of marriage for the people of India and all Indian nationals in foreign countries, irrespective of the religion or faith followed by either party which basically focused on 3 main objectives:
To provide a special form of marriage in certain cases,
To provide for registration of certain marriages and,
To provide for divorce.
Divorce means dissolution of marriage by competent court. Earlier divorce was unknown to general Hindu law as marriage was regarded as an indissoluble union of the husband and wife. Manu does not believe in discontinuance of marriage. He declares “let mutual fidelity continue till death”; this in brief may be understood to be the highest dharma of the husband and wife.
THEORIES OF DIVORCE
The concept of divorce can be categorized under mainly three theories which are basically:
- FAULT THEORY- under Fault Theory marriage can be dissolved only when either party to the marriage has committed a matrimonial offence.
- MUTUAL CONSENT THEORY- This theory states that since two persons can marry by their free will, they should be allowed to move out of their relationship of their own free will.
- IRRETRIEVALE BREAKDOWN OF MARRIAGE THEORY- According to this theory, the breakdown of marriage is defined as “such failure in the matrimonial relationships or such circumstances adverse to that relation that no reasonable probability remains for the spouses again living together as husband & wife.”
GROUNDS FOR DIVORCE
Section 13 of the Hindu Marriage Act 1955 and Section 27 of the Special Marriage Act 1954 stated the grounds and reasons for divorce which are as follows:
- Adultery – The act of indulging in sexual intercourse outside marriage is termed as adultery. Adultery is counted as a criminal offence and substantial proofs are required to establish it. An amendment to the law in 1976 states that one single act of adultery is enough for the petitioner to get a divorce.
- Cruelty – A spouse can file a divorce case when he/she is subjected to any kind of mental and physical injury that causes danger to life, limb and health. The intangible acts of cruelty through mental torture are not judged upon one single act but series of incidents.
- Desertion – If one of the spouses voluntarily abandons his/her partner for at least a period of two years, the abandoned spouse can file a divorce case on the ground of desertion.
- Conversion – In case either of the two converts himself/herself into another religion, the other spouse may file a divorce case based on this ground.
- Mental Disorder – Mental disorder can become a ground for filing a divorce if the spouse of the petitioner suffers from incurable mental disorder and therefore cannot be expected from the couple to stay together.
- Leprosy – In case of a ‘virulent and incurable’ form of leprosy, a petition can be filed by the other spouse based on this ground.
- Venereal Disease – If one of the spouses is suffering from a serious disease that is easily communicable, a divorce can be filed by the other spouse. The sexually transmitted diseases like AIDS are accounted to be venereal diseases.
- Renunciation – A spouse is entitled to file for a divorce if the other renounces all worldly affairs by embracing a religious order.
- Not Heard Alive – If a person is not seen or heard alive by those who are expected to be ‘naturally heard’ of the person for a continuous period of seven years, the person is presumed to be dead. The other spouse need to file a divorce if he/she is interested in remarriage.
- No Resumption of Co-habitation – It becomes a ground for divorce if the couple fails to resume their co-habitation after the court has passed a decree of separation.
Apart from this there are certain grounds embedded in the Hindu Marriage Act 1955 in which the petition for divorce can be filed by wife only.
· If the husband has indulged in rape, bestiality and sodomy.
· If the marriage is solemnized before the Hindu Marriage Act and the husband has again married another woman in spite of the first wife being alive, the first wife can seek for a divorce.
· A girl is entitled to file for a divorce if she was married before the age of fifteen and renounces the marriage before she attains eighteen years of age.
· If there is no co-habitation for one year and the husband neglects the judgment of maintenance awarded to the wife by the court, the wife can contest for a divorce.
Divorce by mutual consent is addressed under S. 13 B of the Hindu Marriage Act, 1955 and Section 28 of the Special Marriage Act, 1954.
For this section to apply there are certain requirements which have to be met and fulfilled by both the parties to the divorce which can be stated as follows:
- The parties have been living separately for a period of at least one year
- They have not been able to live together, and
- They have mutually agreed that marriage should be resolved
The Supreme Court in 2012 ruled that the waiting period of six months can be waived off and a Marriage Laws Amendment Bill, 2010 was proposed which replaces the words “not earlier than six months” in Section 13-B with the words “Upon receipt of a petition.” However the bill has not been yet passed by Lok Sabha as there was strong opposition to the bill and is still under a conflict.
We can conclude that prior to this Act; there was no provision for Divorce as this concept was too radical as the marriage was considered as a sacred and divine bond. In earlier marriages wives were the victims and were always at the mercy of their husbands and in- laws family and had no source to raise their voice and revolt. But we can notice that there are pros and cons of every law. So the lawmakers of our country have a hard role to perform to see the future implications and act in a cautious manner.
Grounds for Divorce in India
Grounds for Divorce in India
The secular mind-set of the Indian judicial system has initiated proclamation of various personal laws based on different religious faiths. Hindus, Christians and Muslims are governed under separate marriage acts and grounds for divorce in India.
1. Grounds for Divorce under the Hindu Marriage Act, 1955
The following are the grounds for divorce in India mentioned under the Hindu Marriage Act, 1955.
Adultery – The act of indulging in any kind of sexual relationship including intercourse outside marriage is termed as adultery. Adultery is counted as a criminal offence and substantial proofs are required to establish it. An amendment to the law in 1976 states that one single act of adultery is enough for the petitioner to get a divorce.
Cruelty – A spouse can file a divorce case when he/she is subjected to any kind of mental and physical injury that causes danger to life, limb and health. The intangible acts of cruelty through mental torture are not judged upon one single act but series of incidents. Certain instances like the food being denied, continuous ill treatment and abuses to acquire dowry, perverse sexual act etc are included under cruelty.
Desertion – If one of the spouses voluntarily abandons his/her partner for at least a period of two years, the abandoned spouse can file a divorce case on the ground of desertion.
Conversion – Incase either of the two converts himself/herself into another religion, the other spouse may file a divorce case based on this ground.
Mental Disorder – Mental disorder can become a ground for filing a divorce if the spouse of the petitioner suffers from incurable mental disorder and insanity and therefore cannot be expected from the couple to stay together.
Leprosy – In case of a ‘virulent and incurable’ form of leprosy, a petition can be filed by the other spouse based on this ground.
Venereal Disease – If one of the spouses is suffering from a serious disease that is easily communicable, a divorce can be filed by the other spouse. The sexually transmitted diseases like AIDS are accounted to be venereal diseases.
Renunciation – A spouse is entitled to file for a divorce if the other renounces all worldly affairs by embracing a religious order.
Not Heard Alive – If a person is not seen or heard alive by those who are expected to be ‘naturally heard’ of the person for a continuous period of seven years, the person is presumed to be dead. The other spouse should need to file a divorce if he/she is interested in remarriage.
No Resumption of Co-habitation – It becomes a ground for divorce if the couple fails to resume their co-habitation after the court has passed a decree of separation.
The following are the grounds for divorce in India on which a petition can be filed only by the wife.
If the husband has indulged in rape, bestiality and sodomy.
If the marriage is solemnized before the Hindu Marriage Act and the husband has again married another woman in spite of the first wife being alive, the first wife can seek for a divorce.
A girl is entitled to file for a divorce if she was married before the age of fifteen and renounces the marriage before she attains eighteen years of age.
If there is no co-habitation for one year and the husband neglects the judgment of maintenance awarded to the wife by the court, the wife can contest for a divorce.
2. Grounds for Divorce under the Dissolution of Muslim Marriage act, 1939
Based on the Dissolution of Muslim Marriage Act, 1939, a Muslim woman can seek divorce on the following grounds for divorce in India.
The husband’s whereabouts are unknown for a period of four years.
The husband has failed to provide maintenance to the wife for at least two years.
The husband has been under imprisonment for seven or more years.
The husband is unable to meet the marital obligations.
If the girl is married before fifteen and decides to end the relationship before she turns eighteen.
The husband indulges in acts of cruelty.
3. Grounds for Divorce under the Indian Divorce Act, 1869
The following are the grounds of divorce mentioned under the Indian Divorce Act, 1869.
Adultery
Conversion to another religion
One of the couples suffering from an unsound mind, leprosy or communicable venereal disease for at least two years before the filing of the divorce.
Not been seen or heard alive for a period of seven or more years.
Failure in observing the restitution of conjugal rights for at least two years.
Inflicting cruelty and giving rise to mental anxiety that can be injurious to health and life.
Wife can file a divorce based on the grounds of rape, sodomy and bestiality.
4. Grounds for Divorce under the Parsi Marriage and Divorce Act, 1936 (Amendment 1988)
The following are the grounds for divorce in India included in the Parsi Marriage and Divorce Act, 1936 and the amendment of the same in 1988.
Continuous absence of seven years.
Non-consummation of marriage within one year.
Unsound mind provided the other spouse was unaware of the fact at the time of marriage and the divorce must be filed within three years of marriage.
Pregnancy by some other man, provided the husband was unaware of the incident during the time of marriage and that he must not have undergone sexual intercourse after he came to know about the situation. The divorce must be filed within two years of marriage.
Adultery, bigamy, fornication, rape, or any other type of perverse sexual act.
Act of cruelty
Suffering from venereal disease or forcing the wife into prostitution.
Sentenced to prison for seven years or more
Desertion for two or more years
Non-resumption of cohabitation after passing an order of maintenance or a decree of judicial separation.
