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Dissolution of Hindu Marriage Divorce
The term ‘divorce’ comes from the Latin word ‘divortium’ which means ‘to turn aside’, ‘to separate’. Divorce is the legal cessation of a matrimonial bond. Under Shastric Hindu law, wedlock was unbreakable and the marital bond existed even after the death of a party to marriage. Divorce was known only as a matter of exception in certain tribes and communities which were regarded uncivilized by the Hindu elite. The courts recognized it in these communities due to the binding force of custom. But the general Hindu law did not recognize it. Divorce puts the marriage to an end, and the parties revert back to their unmarried status and are once again free to marry.3All rights and mutual obligations of husband and wife ceases. In other words, after a decree of dissolution of marriage, the marriage comes to an end and the parties p arties cease to be husband and wife, and are free to go their own ways. There remain no bonds between them except in relation to Section 25 and Section 26 of Hindu Marriage Act, 1955. The modern matrimonial law in India has been greatly influenced by and based upon English matrimonial law. In England, the Matrimonial Causes Act, 1857 for the first time permitted divorce by judicial process. Before 1857, divorce could be obtained only by a private Act of parliament and only very rich could afford this luxury. Under the Act, the husband could file a petition for divorce on the ground of wife’s adultery (single act was enough), but a wife had to prove adultery coupled with either incest, bigamy, cruelty or two years desertion deserti on or alternatively, rape or any other unnatural offence. This was the typical mid-Victorian attitude to sexual morality. Section 13 of the Hindu Marriage Act, 1955 has introduced a revolutionary amendment to the shastric Hindu law. It provides for the dissolution of marriage. Under the Hindu law, divorce does not take place unless it has been granted by a court. Before passing of the Marriage Laws (Amendment) Act, 1976, the grounds for judicial separation and divorce were different. The Marriage Laws (Amendment) Act, 1976 makes the grounds of divorce and judicial separation common. An aggrieved party may sue for divorce or judicial judicia l separation. THEORIES REGARDING DIVORCE
The provisions relating to divorce is contained in Sec 13 of Hindu Marriage Act, 1955.The Act recognizes two theories of Divorce: the fault theory and divorce by mutual consent. Under the fault theory, marriage can be dissolved only when either party to the marriage had committed a matrimonial offence. Under this theory it is necessary to have a guilty and an innocent party and only innocent party can seek the remedy of divorce. However the most striking feature and drawback is that if both parties have been at fault, there is no remedy available. Another theory of divorce is that of mutual consent. The underlying rationale is that since two persons can marry by their free will; they should also be allowed to move out of their relationship of their own free will. However critics of this theory say that this approach will promote immorality as it will lead to hasty divorces and parties would dissolve their marriage even if there were slight incompatibility of temperament. Some of the grounds available under Hindu Marriage Act can be said to be under the theory of frustration by reason of specified circumstances. These include civil death, renouncement of the world etc. In this article we shall see that how these theories, owing to change in social circumstances and change in attitude towards the institution of marriage had failed to provide full justice in matrimonial case
GROUNDS OF DIVORCE The Hindu Marriage Act, 1955 originally based divorce on the fault theory and enshrined 9 fault grounds in Section 13 (1) on which, either the husband or the wife could sue for divorce. Section 13 has undergone a substantial change by reason of subsequent amendments. The grounds mentioned in sub-Section (1) and (1-A) are available to both the husband and wife; while the grounds mentioned under sub-Section (2) are available only to the wife.31 In 1964, Section 13 (1A) has been inserted containing two clauses under which, non-resumption of cohabitation for two years or upwards after the decree of judicial separation or restitution of conjugal rights was made a ground of divorce. This is a modification of clauses (viii) and (ix) of Section 13 of the Hindu Marriage Act, 1955. By the Marriage Laws (Amendment) Act 1976, the period of two years is reduced to one year. Section 13 (1-A) introduced an element of Break-down theory in the Hindu Marriage Act 1955. Prior to the amendments the petition for divorce could be filed on the grounds of non-resumption of cohabitation after the decree of judicial separation and restitution of conjugal rights only by the petitioner. After the amendments, either party to the marriage can prefer such petitions. However, this is not applicable to in the cases where the decrees of judicial separation and restitution of conjugal rights were obtained prior to the passing of the Hindu Marriage (Amendment) Act, 1964. If the decrees are obtained after 1964, the respondent also can take advantage of the new Section. The Hindu Marriage Act, 1955 originally contained two fault grounds in Section 13 (2) on which, a Hindu wife alone could sue for divorce. The Marriage Laws (Amendment) Act 1976 has inserted two additional fault grounds of divorce for wife and a new Section 13-B under which, divorce by mutual consent has been made available as a matrimonial relief. Thus, in the modern Hindu law, the position is that all the three theories of divorce are recognized and divorce can be obtained on the basis of any one of them. Further, the customary mode of divorce is also retained. The Marriage Laws (Amendment) Act, 1976 has introduced certain changes of far-reaching consequences, which have materially affected the sacramental character of marriage. The relief of divorce may be obtained in respect of any marriage whether solemnized before or after the commencement of this Act. Thus, Section 13 is retrospective as well as prospective operation. Section 13 (1) at fault Grounds
i. Adultery Adultery is extra-marital sex. It is consensual sexual intercourse between a married person and a person of the opposite sex not being the other spouse, during the subsistence of the former’s marriage. Where the other party has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse, a divorce petition can be filed. Section 497 of the Indian Penal Code defines adultery: “Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man without the consent or connivance of that man such intercourse not amounting to the offence of rape is guilty of the offence of adultery”. The criminal action is filed not against the wife but against the adulterer. The wife is not guilty of offence, not even as an abettor. In the matrimonial court, when a petition is filed for the matrimonial relief of divorce or judicial separation on the ground of adultery, the main relief is sought against the spouse and not against the adulterer. The adulterer or the adulteress is made merely a co-respondent, and that too is not always necessary. It is in this aspect, that the matrimonial offence of adultery is different from the criminal offence. If the wife is raped, she is not guilty of adultery. It is a complete defence to the charge of adultery if the
respondent wife was raped. If a person lacks mental capacity to consent, such as a minor or person of unsound mind, the intercourse will not be voluntary. In Veena Kalia v. Jatinder Nath Kalia (AIR 1996 Del 54), the husband after marriage went abroad for studies leaving his two minor daughters and his wife in India. He did not tried to take his wife with him and left her. For twenty three years, they lived apart and the husband contracted a second marriage there. He had three children out of the second marriage. He was thus, guilty of cruelty, desertion and adultery. The wife got divorce on these grounds and the husband was ordered to pay her maintenance of Rs. 10,000 per month. The court also ordered him to deposit Rs. 10 lacs in the court towards the expenses of his daughters’ marriages. Burden of proof is on the petitioner. Earlier it had to be proved beyond doubt but now only high probability is required. Proof of adultery by direct evidence is rare and it would be unreasonable to expect direct evidence of adultery. Moreover, the nature of this act is such that direct evidence is not possible. Courts therefore expect circumstantial evidence and circumstantial evidence is sufficient.
ii. Cruelty Legal concept of cruelty has varied from time to time, place to place, and situation to situation. In early law, intention was considered an essential element of cruelty but in modern law it is not so. The intention of the law is to protect the innocent party from any harm -physical or mental. Scolding or nagging have also been considered as cruelty. Before passing of the Marriage Laws (Amendment) Act 1976, cruelty was a ground only for judicial separation and the petitioner was required to prove that the respondent had treated him or her with such cruelty as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the other party. The Marriage Laws (Amendment) Act, 1976 which makes cruelty also a ground for divorce, has changed the wording of the clause thus: “respondent has treated the petitioner with cruelty”. The change in the definition of cruelty will signify that an act or omission or conduct which constitutes cruelty is a ground for judicial separation or divorce. Even if it causes no apprehension of any sort in the mind of the petitioner. Cruelty can be of both kinds: physical and mental. It is physical when the body is injured. It is mental when feeling and sentiments are wounded. The petitioner may be meted with cruelty of either or both types. However, cruelty has to be distinguished from the ordinary wear and tear of family life. It cannot be decided on the basis of sensitivity of the petitioner and has to be adjudged on the basis of the course of conduct which would, in general, be dangerous for a spouse to live with the other. A few stray instances indicating a short tempered nature and somewhat erratic behaviour are not sufficient to prove cruelty for the purpose of this Section. In Shobha Rani v. Madhukar Reddi (AIR 1988 SC 121), the Supreme Court held that the word ‘cruelty’ used in Section 13 (1) (i-a) of the Act is with reference to human conduct or behaviour in relation to or in respect of matrimonial duties or obligations. It is a course of conduct of one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical, it is a question of fact and degree. If it is mental, the inquiry must begin as to the nature of the cruel treatment and then as to the impact of such treatment on the mind of the spouse. In this Case, the Supreme Court considerably enlarged the concept of cruelty and held that the demand for dowry, which is prohibited under law, amounts to cruelty entitling the wife to get a decree for dissolution of marriage.
Definition of Cruelty
There is no precise definition of cruelty because the term is so wide. Several situations and cases over past 100 years have shown that cruelty can be mental or physical. In the case of Dastane vs Dastane 1970 Bom, it was held that cruelty could be through words, gestures, or even by mere silence. A general explanation of cruelty can be found in the case of Russel vs Russel 1897, in which it was held that any conduct that poses a danger to life, limb, or health - physical or mental, or causes reasonable apprehension of such danger, is cruelty. Earlier, the petitioner had to show that the act of the respondent caused reasonable apprehension of danger. Thus, in the case of Sayal vs Sarla 1961 Punjab, when wife administered love-potion to the husband, causing his hospitalization, it was held to be cruelty even though she did not mean to hurt her husband because it caused reasonable apprehension of danger. However, now it is not required. The clause merely says, "if the respondent has treated the petitioner with cruelty". In the case of GVN Kameshwara Rao vs G Jalili 2002 , SC held that it is not necessary that the act has caused a reasonable apprehension in the mind of petitioner. The emphasis will be on the act or conduct constituting cruelty. It further held that social status of the parties, their education must be considered while determining whether the act constitutes cruelty or not. Thus, what amounts to cruelty in one case may not amount to cruelty in another. Intention to be cruel is not material
Earlier intention was necessary but now it is not so. In the case of Jamieson vs Jamieson 1952, House of Lords observed that unintentional acts may also amount to cruelty. In Williams vs Williams 1963 Allahbad, the necessity of intention in cruelty was finally rejected in India. In this case husband was insane and constantly accused the wife of adultery. This was cruelty without intention. Thus, in the case of Bhagwat vs Bhagwat 1976 Bom , when husband tried to strangulate wife's brother and he younger son in a fit of insanity, he was held to be cruel. Temporary insanity or schizophrenia cannot be a defense against the plea of cruelty. Cruelty need not only be against the petitioner
In Bhagwat vs Bhagwat, cruelty against his step daughter was held as cruelty against wife. The act or omission need not only be of the respondent
Since most women have to live in husband's joint family, they have to put up with their actions also. In the case of Shyam Sundar vs Santa Devi 1962 , the wife was ill treated by the in-laws and husband stood their idly without caring for wife. This was held as cruelty. However, in the case of Gopal vs Mithilesh 1979 Allahbad, husband's stand of neutrality regarding wife and mother and his inaction about his mother's nagging of his wife was not considered cruelty because it is normal wear and tear of a married life. Types of cruelty - Physical and Mental Physical Cruelty
Injury to body, limb, or health, or apprehension of the same. In the case of Kaushalya vs Wisakhiram 1961 Punj, husband beat his wife so much so that she had to lodge police complaint even though injury was not serious. It was held that serious injury is not required.
In Bhagat vs Bhagat 1994 SC held that a conduct that causes such a mental pain and suffering that makes it impossible to live with that person is mental cruelty. Mental cruelty must be such that it cannot reasonably be expected to live together. This has to be judged on the circumstances of the case. In the case of N Sreepadchanda vs Vasantha 1970 Mysore , wife hurled abuses at the husband and quarreled over trivial matters so much so that he became a laughing stock in the locality. This was held to be mental cruelty against the wife. In Saptami vs Jagdish 1970 Calcutta , false accusations of adultery were held to be mental cruelty. Yashodabai vs Krishnamurthi 1992 - Mere domestic quarrels with mother in law is not cruelty.
In the case of Jyotishchandra vs Meera 1970 , husband was not interested in wife, he was cold, indifferent, sexually abnormal and perverse. It was physical as well as mental cruelty.
iii. Desertion Desertion means withdrawing from the matrimonial obligation, i.e., not permitting or allowing and facilitating the cohabitation between the parties. It means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party and includes the willful neglect of the petitioner by the other party to the marriage. The deserting spouse should be proved that there is1. factum of separation; i.e., living apart and away from the deserted spouse, and 2. Animus deserendi; i.e., an intention to bring cohabitation to an end permanently. Further, it should be proved that on the part of the deserted spouse, there wasa. Absence of consent to the separation, and b. Absence of conduct giving reasonable cause to the spouse to leave the matrimonial home. In matrimonial law, desertion means continual absence from cohabitation contrary to the will or without the consent of the party charging it, and without reasonable cause. Desertion is not to be tested by merely ascertaining which party left the matrimonial home first. The party who intends to bring the cohabitation to an end and whose conduct in reality caused its termination commits the act of desertion. Desertion was a ground only for judicial separation under Hindu Marriage Act, 1955.101 However, after passing of the Act of 1976, this is a ground for both divorce as well as judicial separation under Section 13 (1) (i-b). Three Types - Actual Desertion, Constructive Desertion, Willful neglect. Actual Desertion - factum of desertion, animus deserdendi, Without reasonable cause, without consent, 2 yrs must have passed.
Desertion for the purpose of seeking divorce under the Act means the intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent and without reasonable cause. In other words, it is a total repudiation of the obligations of marriage. Desertion is not the withdrawal from a place, but from a state of things. Desertion is not a single act complete in itself; it is a continuous cause of conduct to be determined under the facts and circumstances of each case.
In Durga Prasanna Tripathy v. Arundhati Tripathy(AIR 2005 SC 3297), the wife had deserted the husband after seven months of marriage and the parties were living separate since a period of fourteen years. Wife was not willing to live with husband in spite of all efforts. Better part of their lives was wasted in litigation and the parties disliked each other. There was irretrievable breakdown of marriage. Therefore, to put an end to litigation and to put an end to the bitterness between the parties, divorce on the ground of desertion can be granted. Constructive Desertion - If a spouse creates an environment that forces the other spouse to leave, the spouse who created such an environment is considered deserter. Jyotish chandra vs Meera 1970 - Husband was not interested in wife, he was cold, indifferent, sexually abnormal and perverse. Went to England. Then came back and sent wife to England for PhD. When wife came back, did not treat her well. Abused her and his inlaws physically. Wife was forced to live separately. Held desertion by husband. Wilful Neglect - If a spouse intentionally neglects the other spouse without physically deserting, it is still desertion. Refusing to perform basic marital obligations such as denial of company or intercourse or denial to provide maintenance is wilful neglect. Reasonable Cause
1. If there is a ground for matrimonial relief. (Ground for void, voidable marriage or grounds for maintenance under sec 18 of HAMA). 2. If spouse is guilty of a matrimonial misconduct that is not enough for matrimonial relief but still weighty and grave. 3. If a spouse is guilty of an act, omission, or conduct due to which it is not possible to live with that spouse.
iv. Conversion Under Section 13 (1) (ii) of the Hindu Marriage Act, 1955 if the spouse has ceased to be a Hindu by conversion to another religion, divorce may be obtained. Originally, this ground was not available for judicial separation in Section 10 of the Hindu Marriage Act, 1955. By an Amendment of Section 10 in 1964, it was made a ground for judicial separation. Subsequently in 1976, the grounds for judicial separation were omitted in Section 10 and were incorporated with slight modifications in Section 13, and is therefore a ground for divorce under Section 13 (1) (ii). When one spouse voluntarily relinquishes one’s religion and adopts another distinctive religion after formal ceremonies, it is conversion on his part. Thus, one should adopt some other religion which cannot be regarded as Hindu religion. If a Hindu person who is a Jain adopts Buddhism, he is still a Hindu. He cannot be said to have changed his religion. If one spouse ceases to be a Hindu, the marriage continues to be governed by Hindu law and it can be dissolved only under the provisions of the Hindu Marriage Act, 1955. However, if both the spouses change their religion and cease to be Hindus, none of them can invoke the aid of this Section. The remedy of dissolution of marriage on the ground of conversion is not available to the converting spouse. It is the other spouse who remains a Hindu that can avail of this ground if he or she so desires. Conversion of the respondent to a non-Hindu faith does not amount to automatic dissolution of marriage. The petitioner has to file a petition to obtain a decree of divorce. If the petitioner chooses to continue to live with the spouse who has converted to another religion, there is nothing to debar him or her from doing so.
v. Unsound mind Before passing of the Marriage Laws (Amendment) Act, 1976 the position of insanity as ground of divorce or judicial separation was as follows: i) Insanity (whether curable or incurable) - lasting for not less than two years ending with the filing of the petition was a ground for judicial separation; ii) Incurable insanity- lasting for at least three years immediately preceding the filing of the petition was a ground for divorce. In 1974, the law commission recommended abolition of the duration for the purpose of treating it as a ground for divorce. In 1976, while unifying the grounds for judicial separation and divorce, the legislature not only accepted the said recommendation, it also went further to explain and expand the concept of insanity under Section 13. This was done in the light of the commission’s general observations regarding insanity. Now the Act refers to two distinct mental conditions, namely: 1. Unsoundness of mind, and 2. Mental disorder. The conditions attached to each of these two are: 1. Unsoundness of mind must be incurable; and 2. Mental disorder (whether continuous or intermittent) must be ‘of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent’. After passing of the Marriage Laws (Amendment) Act 1976, incurable unsoundness of mind or continuous or intermittent mental disorder of such a nature as to disable the petitioner to live reasonably with the respondent makes the petitioner eligible to get a decree of divorce. The term “mental disorder” has been widely interpreted so as to include mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia.
vi. Leprosy Before passing of the Marriage Laws (Amendment) Act, 1976 the position of ground of leprosy for divorce was as follows: “the other party has for a period of not less than one year immediately preceding the presentation of the petition, been suffering from a virulent form of leprosy”, it was a ground for judicial separation. If it was virulent and incurable, it was a ground for divorce, where it lasted for three years ending with the filing of the petition. The Marriage Laws (Amendment) Act 1976 has made leprosy, a ground for both judicial separation and divorce. It omitted the period of three years. Under this clause, the petitioner is required to show that the respondent has been suffering from virulent and incurable leprosy. Clause (iv) of Section 13 (1) of the Hindu Marriage Act, 1955 lays down that the divorce can be obtained by a spouse if the other party has been suffering from a virulent and incurable form of leprosy. There are various types of leprosy. They are classified under: a) Lepromatous leprosy, b) Tuberculoid leprosy, c) Maculoan aesthetic leprosy, d) Polyneuritic leprosy, e) Borderline leprosy and f) Indeterminate leprosy. Of these, Lepromatous leprosy at present, is the most dangerous and aggravated form of leprosy. In this leprosy, the person suffering from it has low resistance and mycobacterium leproe multiply
very fast, almost in astronomical number. It is in malignant form and highly contagious. It is incurable and there are hardly any chances of self-arrest and regression.
vii. Venereal disease Venereal disease is a ground both for judicial separation and divorce. Originally under the Hindu Marriage Act 1955, the requirement for judicial separation was as follows: “Respondent has for a period of not less than three years immediately preceding the presentation of the petition, been suffering from venereal disease in a communicable form, the disease not having been contracted from the petitioner”. Clause (v) of Section 13 of the Hindu Marriage Act 1955 which contains the venereal disease as a ground of divorce lays down that a spouse may present a petition for dissolution of marriage on the ground that the other spouse has been suffering from venereal disease in a communicable form. The Marriage Laws (Amendment) Act, 1976 has simplified this ground. Prior to amendment, the disease was required to be of three years duration. The amendment has done away with the period. Now under the Hindu Marriage Act, 1955 the venereal disease to be a ground of judicial separation or divorce, should be in a communicable form. Venereal diseases comprise a number of contagious diseases that are most commonly acquired in a destroyer of life (syphilis) and a preventer of life (gonorrhea). The group includes at least three other diseases; cancroid, lymphogranuloma venereum and granuloma inguinale. These five are linked not because of similarity of causative agents, tissue reactions and symptoms produced, but because of the principal means of spread of each disease is by sexual intercourse especially promiscuous sexual intercourse, as implied by their group name, venereal which is derived from the name of goddess of love, ‘Venus’. Not only are the causative agent’s different morphologically but they also represent five distinct classes of micro-organisms: Spirochetes; bacilli; viruses and Donovan body (perhaps a bacterium). The most common form of venereal diseases are Syphilis and Gonorrhea; and of these two, former is considered to be more dangerous. Gonorrhea is considered to be more treatable and in most of the cases, complete cure can be obtained. Syphilis in early stage is also now curable. Congenital syphilis is not a disease in a communicable form and is thus not considered to be ground of divorce. It is immaterial that the disease incurable or was contracted innocently. The duration of the disease is not mentioned. Therefore, it may be of any duration. The Hindu Marriage Act, 1955 does not say that the disease should not have been contracted form the petitioner. If the disease is contracted form the petitioner, under the Hindu Marriage Act, 1955 by virtue of Section 23 (1) (a), the decree cannot be passed as it would amount to ‘taking advantage of one’s own wrong’. In Mr. X v. Hospital Z (AIR 1999 SC 945), though it is a case under Art. 21 of the Constitution of India i.e., right to Privacy where the question was as to the disclosure of a person being HIV Positive by the hospital is violative of Article 21? In the context of marriage it was held that the basis of this institution is a healthy body and moral ethics. Since as law provides Venereal disease as a ground for divorce it implies that a person suffering from Venereal disease prior to marriage must be injuncted from entering into marriage so as to prevent him from spoiling the health and consequently the life of an innocent spouse.
viii. Renunciation of the world Clause (vi) of Section 13 (1) lays down that a spouse may seek divorce if the other has renounced the world by entering into any religious order. Thus the requirements of the clause are: a) the other party has renounced the world, and
b) has entered into a holy order. Hindus recognize Sanyasa Ashrama as the last of the four Ashramas into which, the life of a Hindu is organized. According to Hindu religion, every Hindu is required to enter the last ashrama in his old age. Entering into this ashrama amounts to civil death. For taking sanyas, a person has to perform eight shradhas (including his own sradha) and has to give up his matrimonial life and property. A Hindu can according to his religion, renounce the world and take up sanyas or vanaprastha ashram. Such a person is known as sanyasi, yati, vanaprastha or perpetual brahmachari, cannot any more attend to his worldly obligations. Therefore, law treats sanyas etc., as civil death. The sanyasi gives up his name and assumes a new name. In other words, entering into a sanyasa ashram means not merely renunciation of the world and worldly things, but also renunciation or rather an end of one’s worldly life led in grihasth ashrama or the life led in the vanaprastha ashrama. Entering into the sanyasa ashrama in the old age is in accordance with Hindu religion. A person may enter into a holy order even at the young age and it is not contrary to Hindu religion. But it becomes a ground for divorce. The reason seems to be that one can follow the religious faith or belief one has, but it should not amount to hardship to one’s spouse. And when one spouse leaves the other, even by becoming a sanyasi, it prima facie causes hardship to the other party. Looked at from this angle, to become a sanyasi is no hope that the sanyasi spouse will ever return to resume cohabitation. This seems to be the reason for making it a ground for divorce.
ix. Presumed death Clause (vii) of Section 13 (1) of the Hindu Marriage Act, 1955 which lays down that a spouse may file a petition for divorce on the ground that the other spouse has not been heard of being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive. Under Section 108 of the Indian Evidence Act, 1872, a person is presumed to be dead if he is not heard of as alive for seven years or more by those who would have normally heard from him or about him had he been alive. Under matrimonial law, the other spouse on the basis of presumption of death, by assuming that he or she has become a widower or widow, contracts a second marriage and after some time, the missing spouse re-appears, then the second marriage is void under Section 11 and the spouse can also be prosecuted for bigamy. To avoid the risk of missing spouse re-appearing, rendering the second marriage void, Clause (vii) of Section 13 (1) provides that a petitioner may obtain a decree of dissolution of marriage on this ground. Once the marriage is dissolved, the petitioner is free to marry again and even if the missing spouse returns the next day of the passing of the decree or much before the second wedding, he can do nothing.146 He or she as the case may be is not entitled to the restitution of conjugal rights with the petitioner (who has obtained divorce). The remarriage of the decree holder is not violative of Section 5 (i) of the Hindu Marriage Act, 1955 and hence is not bigamy. A court may under Section 108 of the Indian Evidence Act, 1872 draw the presumption in the above circumstances that the person is dead. Though the Hindu Marriage Act, 1955 does not draw this presumption, but it seems that it is based on the above presumption. As it is not a presumption of the death of the respondent, the petitioner cannot take it for granted that his or her marriage is ipso facto dissolved as in the case of the actual death of the respondent.
Section 13 (1-A) Breakdown Theory In 1964, Section 13 (1-A) was inserted which contains second type of divorce based on the ‘Break down’ theory. Thus the two grounds mentioned in sub-Section (1-A) are available to both the
husband and wife. The two clauses under which, non-resumption of cohabitation for two years or upwards after the decree of judicial separation or restitution of conjugal rights was made a ground of divorce. This is a modification of clauses (viii) and (ix) of Section 13 (1) of the Hindu Marriage Act, 1955. By the Marriage Laws (Amendment) Act, 1976 the period of two years is reduced to one year. Section 13 (1-A) introduced an element of Break-down theory in the Hindu Marriage Act, 1955. (i) No cohabitation for 1 yr after passing the decree of judicial separation. (ii) No cohabitation for 1 yr after passing the decree of restitution of conjugal ri ghts. Effected by provisions in Section 23. Trace of the breakdown principle is evident in Section 13 (1-A) of the Hindu Marriage Act, 1955. However, for passing of the decree, either a decree of judicial separation or that of restitution of conjugal rights, court is invariable required to go into the question of marital offence or withdrawal by one spouse from the society of other spouse without reasonable cause, respectively. The necessary implication is that the consideration of fault is brought in though indirectly In addition to the above mentioned grounds, Sub- Section (2) of Section 13 of Hindu Marriage Act, 1955 provides four additional grounds to the women for obtaining divorce from her husband. Originally, Section 13 (2) of the Hindu Marriage Act, 1955 provided only for two special grounds on which, a Hindu wife alone could seek divorce. Later, the Marriage Laws (Amendment) Act, 1976 has added two more grounds. Thus, a wife may file a petition for divorce on any one of the following four grounds: i) in the case of any marriage solemnized before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner: Provided that in either case, the other wife is alive at the time of the presentation of the petition; or
Additional grounds for wife- Section 13(2) In addition to the above mentioned grounds, Sub- Section (2) of Section 13 of Hindu Marriage Act, 1955 provides four additional grounds to the women for obtaining divorce from her husband. Originally, Section 13 (2) of the Hindu Marriage Act, 1955 provided only for two special grounds on which, a Hindu wife alone could seek divorce. Later, the Marriage Laws (Amendment) Act, 1976 has added two more grounds. Thus, a wife may file a petition for divorce on any one of the following four grounds: i. in the case of any marriage solemnized before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner: Provided that in either case, the other wife is alive at the time of the presentation of the petition; or ii. that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality; or iii. that in a suit under Section 18 of the Hindu Adoptions and Maintenance Act, 1956 or in a proceeding under Section 125 of the Code of Criminal Procedure, 1973, (or under the corresponding Section 488 of the Code of Criminal Procedure 1898, a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since
passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards; or iv. that her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years. Explanation: This clause applies whether the marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act 1976. Section 13 (2) (i): deals with bigamous marriage. Before passing of the Hindu Marriage Act, 1955 a Hindu male can marry as many wives as he liked and no limit to the number of wives. Later, It is provided by Section 13 (2) (i) that if a man had married more than one wife before the Hindu Marriage Act, 1955 came into force, then every wife was given a right to seek divorce from the husband on the ground of his pre-Act remarriage. The first wife on the plea that her husband married again during her life time and the second wife on the plea that her husband married her when he already possessed a wife. A petition for divorce is barred if no other wife is alive due to death or divorce. But if once a petition is made, the death or divorce of the other wife does not bar the decreeing of divorce. If a person rapes a woman who is not his wife, he is guilty of rape and his wife can sue for divorce. It is immaterial as to whether the woman is related to him or not. The age of the woman raped is also immaterial. A mere attempt of rape will not be sufficient. Further, Section 376-A provides punishment to a husband having intercourse with his wife during separation. Rape is a criminal offence under Section 375 of Indian Penal Code and a person guilty of these offences can be prosecuted in a criminal court. However, under the Hindu law, these are recognized as special grounds of divorce for the wife. ‘Sodomy’ is anal intercourse by a man with his wife or with another woman or with a man. The age and consent of the victim is irrelevant. If a man commits sodomy on his own wife without her consent, then it would amount to the matrimonial offence of sodomy within the meaning of the clause. ‘Bestiality’ means sexual intercourse with an animal Section 13 (2) (iii) lays down that, where a wife obtains a decree or order for maintenance either under Section 18 of the Hindu Adoptions and Maintenance Act, 1956 or under Section 125 of the Code of Criminal Procedure, 1973 if cohabitation between the parties had not been resumed for one year or upwards after the decree, can avail herself of this provision for obtaining divorce, notwithstanding that she was living apart. Where a decree under Section 18 of the Hindu Adoptions and Maintenance Act, 1956 or under Section 125 of the Code of Criminal Procedure, 1973 is passed in favour of the wife, it becomes the duty of her husband to pay maintenance to her and he must resume cohabitation within one year. If he fails to do so, the wife can seek divorce.
Divorce by Mutual Consent (No Fault theory of Divorce) - Section 13-B Divorce by mutual consent is not new to Hindus and it was recognized through legislation and customs by some states and communities189. But there was no provision of divorce by mutual consent under Hindu Marriage Act, 1955. Section 13-B was added by the Marriage Laws (Amendment) Act, 1976 where the parties can now obtain divorce by mutual consent. This provision is retrospective as well as prospective. Hence, parties to a marriage whether solemnized before or after that Amending Act can avail themselves of this provision. If both the parties have agreed to dissolve their marriage, they may do so in a more civilized and cultured way than by quarrelling between themselves in a court. They may petition together under Section 13-B in a District court that they may be granted a decree of divorce. The court can allow the parties to amend a petition for divorce under Section 13-B to be converted into a petition for divorce by
mutual consent. This is possible even at the appellate stage. When a decree of divorce under Section 13-B is passed on such an amended petition, the effect is that all the past allegations and cross-allegations made by the parties against each other during the hearing of the petition under Section 13-B are quashed. Procedure of Mutual Divorce
Mutual Divorce is to be filed by the couple only after they have lived apart for at least a year. A petition supported with affidavits for divorce should be filed in the district court by the both the spouses. The husband and the wife should jointly state to the court that they are unable to live together as they are facing immense difficulties in adjustment. The filing of divorce petition by both the husband and the wife is legally known as the "The First Motion Petition for Mutual Consent Divorce" . "The Second Motion Petition for Mutual Consent Divorce" mentioned in the sub-section (2) of Section 13 B is filed when the couple reappears to the court for the second time after a period of six months. If the judge is satisfied after a hearing from both the husband and wife, the court announces a mutual divorce decree. If the couple fails to appear in the court after six months and not later than eighteen months from the date of first motion, the divorce petition becomes null and void. Either of the couple can withdraw his/her petition within the six months term. A judgment for mutual divorce is passed out only if all the necessary agreements required for a mutual divorce in India are strictly maintained. The husband and the wife should come to terms of settlement regarding the following issues. Custody of Child Return of Dowry Articles / Istridhan of Wife Lump Sum Maintenance Amount of Wife Litigation Expenses
Withdrawal of consent For pursuing divorce by mutual consent, it is imperative that mutual consent should continue till the decree is granted by the court. In case, even if one of the parties to marriage withdraws his or her consent initially given, the court instantly loses the jurisdiction to proceed further and grant relief under Section 13-B of the Act. In this respect, the Supreme Court in the Hitesh Bhatnagar case reaffirmed its earlier decision in Sureshta Devi v. Om Prakash (1991), which overruled the view of the High Courts of Bombay and Delhi that proceeded on the premise that the crucial time for giving mutual consent for divorce is the time of filing petition and not the time when they subsequently move for a divorce decree.
The statutory expression “they have not been able to live together” under Section 13-B(1) of the Act, is to be construed not just as a trite statement of pure volition. It bears a deeper connotation. It indicates, as the apex court has expounded, “the concept of broken down marriage”’ implying thereby that reconciliation between them is not possible. In this respect, the court is duty bound to satisfy itself “after hearing the parties and after making such inquiry as it thinks fit” about the bona fides and the consent of the parties, and then and then alone the court shall consider the grant of divorce decree. The purpose of the period of 18 months from the date of presentation of the joint petition under Section 13-B (2) of the Act is for re-think and reconciliation. If the consent is withdrawn by either party to marriage, the petition becomes instantly ineffective and is liable to be dismissed at the threshold on this very count.
In view of the long separation of more than a decade from his wife, the husband, as a last resort, urged the apex court to dissolve his marriage by exercising its special jurisdiction under Article 142 of the Constitution. To buttress his claim he specifically cited a proximate decision of the Supreme Court itself – Anil Kumar Jain v. Maya Jain (2009) – wherein though the consent was withdrawn by the wife, yet the court found the marriage to have irretrievably broken down and granted a decree of divorce by exercising its special constitutional power. Special power
However, in the instant case the apex court refused to invoke its special power in favour of the husband mainly for two reasons. One, the special power is to be used very sparingly in cases which cannot be effectively and appropriately tackled by the existing provisions of law or when the existing provisions cannot bring about complete justice between the parties. Generally such a power is exercised neither in contravention of statutory provisions nor merely on grounds of sympathy. Two, the sanctity of the institution of marriage cannot allowed to be undermined merely at the whims of one of the annoying spouses, more specially in the situation and circumstances, as in the present case, wherein the wife has stated that she wants this marriage to continue “to secure the future of their minor daughter”. Invariably it is found that a petition for divorce on fault grounds under section 13 is replaced by the remedy of dissolution of marriage by mutual consent under section 13-B of the Act. This is advisedly done as if the purpose of the latter provision is to facilitate divorce by effecting compromise between the parties in respect of ancillary matters. This in our view is perhaps the most erroneous construction of the provisions of section 13-B of the Act. The purpose of the remedy of mutual consent, we repeat, is not to facilitate the dissolution of marriage, inasmuch as even the provisions of section 13-B are subject to the other provisions of the Act. Thus, to save marriage and not to hasten its dissolution should be the core concern of the court. Spouses may think of dissolving their marriage if they so fancy provided the court is satisfied that any of the grounds for granting relief exists, and that in court’s view it is not p ossible to make them reconciled.
It is suggested to go through the class notes also.