According to the legal dictionary divorce means, “The legal separation of man and wife, effected, for cause, by the judgment of a court, and either totally dissolving the marriage relation, or suspending its effects so far as concerns the cohabitation of the parties.” It is a process which completely dissolves and puts a final end to a lawful marriage. It is believed that there was no concept of divorce under ancient Hindu law. Ancient Hindu law rested in a rule that “once a marriage is always a marriage”, nobody can get out of the bond, not even the death of parties may separate them or dissolve the marriage. According to Hindu philosophers, marriage is a sacrament, a divine covenant and a pure relationship.
Divorce is only permitted for grave reasons and it is definitely not encouraged in Indian society. The dissolution of marriage by a competent court means divorce. Hindu law permits divorce only on some particular grounds. Divorce is not generally favoured or encouraged by courts but it is permitted only for serious and grave reasons and divorce cannot be granted within the first year of the marriage.
Lord Blansburgh while delivering a judgement observed, “So long as divorce, in contrast with marriage, is not permitted to be a matter of agreement between parties, but the public at large are directly interested in them, affecting as they do, not only the status of the two individuals immediately concerned but not remotely when taken in the mass, the entire social structure and the preservation of a wholesome family life throughout the community.”
The idea or the concept of divorce is very old and its origin is not traceable. According to Letourneau, “divorce as an institution is the final milestone in the process of freeing the woman from the slavery of man in marital relationship”.
The grounds of divorce under Hindu Law are divided into four parts,
- The fault grounds or the grounds based on guilt theory of divorce.
(i) Grounds on which either of the parties may obtain the decree of divorce.
(ii) Grounds on behalf of which wife alone can claim divorce
- Breakdown grounds of divorce.
- Divorce by mutual consent.
- Divorce under special laws and customary laws. Section 13 of Hindu Marriage Act, 1955, provides for nine fault grounds of divorce. Some of these grounds are typically based on guilt theory or are called fault grounds of divorce, such as adultery, desertion, cruelty, insanity, leprosy, venereal disease, and then there are some grounds which are religion-based such as conversion or renunciation of world. To get the order of divorce either party has to prove at least one ground of divorce provided by the statute. In Rajender v. Anita, the court had held that a marriage cannot be put to an end or dissolved on a ground not specified under Hindu Marriage Act, 1955.
Adultery – According to the Hindu Marriage Act, adultery is considered as one of the most important ground for seeking divorce. Adultery means the consensual and voluntary intercourse between a married person with another person, married or unmarried, of the opposite sex. Even the intercourse between the husband and his second wife i.e. if their marriage is considered under bigamy, the person is liable for adultery.
The landmark judgement of Joseph Shine v. Union of India decriminalised adultery on the ground that women are not a property of men and it harmed the autonomy, dignity and privacy of women.
The concept of adultery was inserted under the Hindu Marriage Act by the Marriage Laws Amendment Act, 1976. In the case of Swapna Ghose v. Sadanand Ghose adultery was first time taken as a ground for divorce.
Essentials of Adultery
- One of the spouses involved in the intercourse with another person, married or unmarried, of the opposite sex.
- Intercourse should be voluntary and consensual.
- At the time of the act, the marriage was subsisting.
- There must be sufficient circumstantial evidence to prove the liability of another spouse.
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. Physical cruelty means when one spouse beats or causes any bodily injury to the other spouse. But the concept of mental cruelty was added as the spouse can also be mentally tortured by the other spouse. Mental cruelty is lack of kindness which adversely affects the health of the person. While it is easy to determine the nature of physical cruelty, it is difficult to ascertain mental cruelty. The landmark judgement of cruelty as a ground for divorce was Mayadevi v Jagdish Prasad
Desertion – If a spouse voluntarily abandons his/her spouse without any reasonable justification and without his consent for at least a period of two years, the abandoned spouse can file a divorce case on the ground of desertion.
- Permanent abandonment of the other spouse.
- Rejection of the obligation of marriage.
- Without any reasonable justification.
- No consent of another spouse.
The landmark judement where desertion was held as a ground for divorce was Bipin Chander Jaisinghbhai Shah vs Prabhawati
Conversion – If either of the spouses converts himself/herself into another religion without the consent of the other, the other spouse may file a divorce case based on this ground. The Landmark judgment of Vilayat Raj Alias Vilayat Khan vs Smt. Sunila where conversion was taken as a ground for divorce for the first time.
Mental Disorder/ Insanity – It can become a ground for filing a divorce if the spouse of the petitioner suffers from incurable mental disorder and insanity and therefore it cannot be expected from the couple to stay together.
Insanity means when the person is of unsound mind. Insanity as a ground of divorce has the following two requirements-
- The respondent has been incurably of unsound mind.
- The respondent has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.
The landmark judgement of Om Prakash Gupta vs Puspa Kumari where insanity was taken as a ground for divorce for the first time
Leprosy – Leprosy is an infectious disease of the skin, mucous membranes, nervous system etc. This disease is transmitted from one person to another. Thus, it is considered as the valid ground for divorce. A landmark judgement for leprosy is Swarajya Lakshmi vs G. G. Padma Rao
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 comes under venereal diseases.
Renunciation – A spouse is entitled to file for a divorce if the other renounces all worldly affairs by embracing a religious order.
It means when one of the spouses decide to renunciate the world and walk on the path of the God, then the other spouse can approach the court and demand the divorce. In this concept the party who renunciates the world is considered as civilly dead. It is a typical Hindu practice and considered as a valid ground for divorce.
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.
In this case, the person is presumed to have died, if the family or the friends of that person does not hear any news about the person alive or dead for seven years. It is considered as the valid ground for divorce, but the burden of proof is on the person who demands the divorce.
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 ground for divorce.
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 person is still married but remarries another woman without giving divorce to his first wife then that stands as a ground for divorce of the first wife and the second marriage is considered void.
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 a period of one year and the husband neglects the judgment of maintenance awarded to the wife by the court, the wife can contest for a divorce.
Concept of Divorce with Mutual Consent
According to section 13B, the person can file the petition for divorce by mutual consent of both the parties. If the parties want to dissolve their marriage as a mutual consent 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.
No petition for Divorce within one year of Marriage
According to section 14, no court will entertain the petition of divorce within the one year of the marriage. But can be entertained if the matter is related to bigamy, and where the consent of the spouse was taken through misrepresentation, fraud, undue influence etc.
Remarriage of Divorced Person
According to Section 15, after the marriage gets dissolved and no further petition was filed by either of the spouses against the order of the court and the time for appeal has expired, it is assumed that both the spouses are satisfied. After that the divorced person can marry again.
The Hindu Marriage Act, 1955 provides various grounds for divorce. The Hindu Marriage Act defines “divorce as a dissolution of marriage”. The main three theories related to divorce are fault theory, mutual consent concept, and irretrievable theory. In India, the fault theory works in the matter of the divorce. Under this theory, marriage can be ended when one of the spouses is responsible or liable for the offence under the grounds mentioned above. The innocent spouse can seek the remedy of divorce. Under the Hindu Marriage Act, the basic grounds on which the Hindu spouse can seek the remedy of divorce are adultery, desertion, conversion, leprosy, cruelty, heard not alive, renunciation etc. Then there are certain grounds specifically for women to seek divorce such as if she below the age of 15 then she can renounce the marriage when she attains the age of 18 etc. The Hindu married women can also apply for the maintenance which is provided under section 125 of the criminal procedure code (CPC). So, the spouse who is innocent can approach the court and can seek the remedy of divorce.