A CRITICAL ANALYSIS ON DIVORCE UNDER HINDU MARRIAGE ACT, 1955

ABSTRACT

The seven-letter word ‘Divorce,’ derived from the Latin word ‘divortium’, which means separation, causes a person shamed for being audacious and strong about just being single again. Divorce is regarded as a stigma, particularly in India. A person’s character is harshly judged simply because of a process that allows him or her to dissolve a relationship, which is legal under Section 13 B[1]. According to the court, the divorce must have a legitimate ground. In furthermore to officially diluting the marriage, the court considers other issues that must be resolved before the divorce becomes final. In India, people of various religions and castes live in harmony. Local customs and traditions govern marriages in India. This study will look into the legal aspects of Hindu marriages in India. Hindu marriages are typically performed in accordance with the Hindu Marriage Act. Though Section 13 made significant changes to Hindu law. It permits the dissolution of a marriage. Divorce doesn’t really imply an individual is weak; somewhat more, it indicates that he or she has the courage to stand up for themselves and consider leaving a toxic relationship. People who seek a divorce should be supported and treated kindly by society. The researcher hopes to take a step closer to eradicating the big taboo in Indian society with this article.

Keywords: Divorce, Hindu, Section 13, Hindu Marriage Act 1955, Taboo

INTRODUCTION

India is a dynamic country. Family law in India does not differ from one state to the next. Every community is directed by a distinct legal system. Even if community members are settled, domiciled, or dwell in any country region, they will be governed by a single legal system. However, the legislation may differ according to castes, sub-castes, or sub-sects. It is founded on customs, which cause differences among communities. Hindu marriage belief systems have evolved over time to meet changing demands in addition to people’s comfort.  This ceremony is one of the most important sacraments in Hinduism, ranking first among the 16 sacraments. It is a sacred bond that cannot be broken. It is a relation that withstands after rebirth and death, a connection that exists from birth to death.  As per Veda, man is not complete until he marries and meets his partner. Hindu marriage is a centuries-old practice which was carried down from the Vedic era to the current day, with various modifications all along way.

According to Section 2[2], there is a mention about “Who is a Hindu”. There are certain conditions that need to be fulfilled under this act for a proper Hindu Marriage. Section 5 of the act deals with the condition of Hindu marriage. The conditions mentioned in the section are as follows: –

• Both parties must be Hindu.
• Bigamy is not allowed
• Neither party should be suffering from unsoundness of mind.
• Both parties should be of marriageable age i.e., the female must be 18 or above and male should be at least 21.
• Marriage should not be withing prohibited degrees or sapinda[3].

We have gone through section (2) which clearly defines or deals with the question of “Who is a Hindu”. The researchers have also mentioned the conditions of the marriage which are dealt with in section 5[4].

In this paper, the researcher would try to cover the aspect of marriage as in the above part. When there is marriage then there is a provision for the separation of the bride and the groom. It can be a temporary separation or it may be permanent. There are sections in this act that deals with the separation of husband and wife though as per the religion it is considered a sacramental bond irrespective of that there is section that deals with the dissolution of the marriage which the researcher has dealt in the main analysis part of the paper.

ANALYSIS OF THE TOPIC

The formal dissolution of a married relationship is divorce. It dissolves the marriage and returns the parties to single status, allowing them to remarry. The husband and wife’s rights and mutual duties are terminated. Both spouses can get the marriage terminated by more than one reasons listed in this act. Some of the previous grounds have been replaced, and new grounds have been added. Throughout this research paper, we will examine the divorce grounds and theories in depth. This research aims to explore the legal relationship in the realm of divorce laws.

It cannot be denied that society is usually concerned with safeguarding the marital relationship in order to protect social stability, the family, the home, and the proper growth and happiness of the marriage’s children. Legislation for the purpose of dissolving the marriage deviates from that core idea, and the legislature is extremely cautious in defining the grounds for dissolution. It should be noted that divorce has existed as a customary law in Hindu society since ancient times.

Grounds of Divorce[5]

• Adultery

The adultery is no more a crime according to the case in 2018[6] but it is a valid ground for divorce is the case of Hindu marriage act 1955. It is sexual intercourse that is consensual and willing between a married person and another adult of the opposite sex, whether married or not. Sexual relations with a second wife are considered adultery because their marriage is presumed bigamy, and the individual is accountable for the adultery. There needs to be sufficient circumstantial evidence to establish the responsibility of the other spouse. One act of adultery has been deemed sufficient grounds for divorce.[7]

• Cruelty

The concept of cruelty encompasses both mental and physical cruelty. When one spouse physically harms the other spouse, this is referred to as “physical cruelty.” The concept of mental cruelty was included, however, since the other spouse could also torture another spouse mentally. Lack of kindness that negatively impacts a person’s health is known as mental cruelty. Physical cruelty can be easily identified, while mental cruelty is more difficult to identify. In Dastane v. Dastane[8] cruelty is interpreted as “Conduct of such character as to have caused danger to life, limb or health (bodily or mentally), or as to give rise to a reasonable apprehension of such danger.”

• Desertion

Desertion is the act of one spouse leaving the other for good without that spouse’s permission or a valid reason. Generally speaking, when one side refuses to accept the responsibilities of marriage.

Essentials:

1. The other spouse’s complete abandonment.
2. Refusing to accept the requirements of marriage.
3. Without any justifiable explanation.
4. No agreement from a second spouse.

The petitioner must demonstrate that he or she was abandoned without appropriate reasons, that the defendant made no real attempt to return and did not gave the respondent simply a legitimate excuse to go.[9]

• Conversion

If one of the spouses changes his or her religion without the other spouse’s consent.

For example: A, a Hindu, has a wife and kids named B and C. Without B’s permission, A went to church one day and decided to become a Christian. Now B can go to court and ask for a divorce based on A’s conversion.

Though conversion to a different religion is a ground for divorce, the courts concluded that a spouse may be denied divorce regardless of whether the other spouse has changed to a different religion if the former provoked the latter’s conversion.[10]

• Insanity

For insanity to qualify as a reason for divorce, two conditions must be met: first, the respondent must have been incurably insane. Second, the petitioner cannot fairly be expected to live with the respondent due to the respondent’s ongoing or intermittent mental disease of such a nature and severity. The Supreme Court ruled that “in the situation of schizophrenic mental disorder, the petitioner must prove not only the mental disorder, but also that the petitioner also couldn’t reasonably be expected to reside with the respondent.”[11]

• Venereal Illness

According to this theory, a sickness that is contagious and can be passed on to the other spouse qualifies as a legal reason for divorce.

For instance: A and B had a wedding on August 19, 2010. A later developed an untreatable venereal illness. If B lives with A, there’s a chance she could contract the sickness as well. Here, B may request a marriage dissolution from the court.

The Supreme Court ruled that “on the basis of venereal disease either husband or wife can divorce, and a person who has suffered from the disease has no right to marry, even before marriage, as long as he is not completely cured”.[12]

• Renunciation

It means that the other spouse may go to court and request a divorce if one spouse decides to give up the world and follow God’s path. According to this theory, the party who renounces the world is considered legally dead. It is a common Hindu custom that is legally recognised as a basis for divorce. Illustration: X and Y are happily married and living their lives. X makes the decision to give up the world one day. Y is entitled to ask the court for a divorce in this situation.[13]

It was held that renunciation has to be complete and irrevocable, with the ceremonies and rites required by the order into which the person joins.[14]

• Presumption of Death

If an individual’s family or friends don’t hear anything about them for seven years—either living or dead—they are assumed to have passed away. It is accepted as a legal basis for divorce, but the party seeking the divorce bears the burden of proof.

Illustration: – X has been gone for the past seven years, and his wife Y hasn’t heard anything about whether he’s alive or not. Here, Y can go to court and request a divorce.

Grounds of Divorce Available Only to Wife[15]: –

In addition to the grounds stated above, a wife has been given four more grounds for divorce. These are as follows:

• Pre-Act Polygamous Marriage (Bigamy): A guy had two wives and one filed for divorce, and he divorced the other while the case was still pending. He stated that since he was left with just one wife, the petition should be rejected. The Court flatly rejected this claim.[16]
• Rape, Sodomy or Bestiality: If the husband was being convicted of rape, sodomy, or bestiality since the marriage’s start, a divorce petition may be filed under this provision.[17]
• Non-Resumption of Cohabitation After a Decree/Order of Maintenance: If a wife obtains a decree of maintenance under Section 125 of the CrPC, 1973, or a decision under Section 18 of HAMA, and cohabitation between the parties has not resumed after one year or longer, this is a solid reason for applying for divorce.[18]
• Repudiation of Marriage: In case marriage takes place before attained the age of 15 then she can repudiate before age of eighteen. Crossing the age limit presumed she waived off her right. Such repudiation can be expressed verbally or in writing, or it can be inferred from the wife’s actions such as left the husband.[19]

Irretrievable Breakdown of Marriage[20]

Regardless of restitution of conjugal rights, judicial separation, and divorce, the Indian judiciary provides irretrievable breakdown of marriage as a special ground for divorce, since judges frequently face difficulties in issuing divorce decrees owing to a specific loophole in current theories of divorce. In this theory, couple gets separated due to failure of matrimonial relationship and divorce is the last resort available in that particular situation according to them. The court concluded that an irretrievable breakdown of a marriage is not grounds for divorce. Furthermore, when a marriage is completely broken-down owing to ill will induced by the actions of either the husband or the wife, or both, the courts have usually regarded it as a serious circumstance ending in marital conflict. A judge’s ruling cannot be utilised to reunite a dissolved marriage if the parties are unwilling to reconcile.^[21] In Naveen Kohli v. Neelu Kohli^[22] has proposed a modification to the Hindu Marriage Act that would allow either spouse to use irretrievable breakdown of marriage as a ground for seeking divorce where a marriage has been destroyed beyond hope of repair and the public interest necessitates acknowledgment of the reality.[23]

Theories of Divorce

Three main theories can be interpreted whereby divorce is given:

1. Fault Theory: Where marriage can be ended under this theory if one party is innocent and the other is liable. This theory allows only the victim to apply. The basic issue of this concept is that when both sides are at fault, there is no alternative.
2. Consent Theory: The marriage can be ended by mutual consent. If both parties in a marriage mutually decide to end their relationship, they can because they are free to marry and free to separate[24].

The judge concluded that “the court has the authority to waive the statutory period of six months in exercising its jurisdiction under Article 142 of the Constitution. The statutory period of six months for filing the second petition under section 13B (2) of the Act has been set aside to allow incidents to connect and withdraw the petition for dissolution of marriage.”[25]

3. Supervening Circumstances Theory: According to this theory, frustration in one or both minds of a spouse can result in mental trauma in the other or both. According to this theory, either party can end the relationship or marriage due to a mental disorder.

CONCLUSION

The current study sought to comprehend the changes in divorce litigation and the decision-making process, as well as the socio-legal issues that have arisen as a result of the existing divorce laws under the Hindu Marriage Act, 1955. Without a doubt, the framework of a particular marriage would be to stick together and to accept one another with support and affection that the married people seek to. Nevertheless, this isn’t always the case throughout every marriage, resulting in the concept of separation created, providing the parties with the matrimonial remedy to end the marriage.

There have been significant changes in Hindu law. Thus, the concept of marriage has shifted. Divorce was once considered a sin, but that perception has shifted as a result of codified legislation. In an unhappy marriage, one or both partners may file for divorce. It recognises the Fault Theory, the Frustration of Marriage Theory and the Mutual Consent Theory; the grounds outlined in them can be used to obtain a divorce. According to various Supreme Court recommendations, the Hindu Marriage Act of 1955 should include an irreversible breakdown as a unique remedy. In some situations, the parties to a Hindu marriage find it extremely difficult to obtain a divorce because of legal obstacles. The Law Commission of India has also thoroughly examined this idea and how to apply it to the law in its 71st report. The sole divorce statute that recognizes irretrievable breakdown in India is the Special Marriage Act of 1954.

The consequences of divorce are multiple and severe. Divorce is the loss of family life, and as a result, it has significant consequences for the person, family, and community. Several scientific trials and observations have shown that the negative effects of divorce contribute to intimate, family-like outcomes and cultural disturbance. Divorce is a significant change in status and position for everyone involved. This transition is a tragedy in their lives. Those who have a strong or well-integrated intensely selfish life will be able to withstand this with relative ease. But what a great one, it is not possible to deeply for people with poor personalities or those who wish to adapt. They are incapable of forgiving. They do not automatically adapt to their new position and function. It should be remembered that romantic relationships are a matter of human life. Human life must not follow the prescribed dotted lines or chartered route. Before granting the petitioner’s request to permanently dissolve the relationship between the union’s parties, it must be remembered that any effort ought to be made to preserve the sanctity of the relationship, which is important not only for people or their children, but also for society.

REFERNCES

• Diwan, Paras. “The Hindu Marriage Act, 1955.” The International and Comparative Law Quarterly 6, no. 2 (1957): 263–72.
• Dommaraju, Premchand. “Divorce and Separation in India.” Population and Development Review 42, no. 2 (2016): 195–223.
• Syed Nadeem Farhat. “Hindu Marriage Law: Need, Impediments and Policy Guidelines.” Policy Perspectives 12, no. 2 (2015): 131–46.
• S., Jaya. “IRRETRIEVABLE BREAKDOWN OF MARRIAGE AS AN ADDITIONAL GROUND FOR DIVORCE.” Journal of the Indian Law Institute 48, no. 3 (2006): 439–44.
• “DIVORCE BY MUTUAL CONSENT.” Journal of the Indian Law Institute 29, no. 1 (1987): 110–14.
• Pallavi Raitani & Kashish Saxena, Revisiting Adultry as a Ground of Divorce under Hindu Marriage Act, 1955, 6 Supremo Amicus 272 (2018).
• Ujjwal Anand, Hindu Marriage Act, 2 INT’l J.L. MGMT. & HUMAN. 438 (2019).
• Manasa Rudrakshala, Discrimination of Mentally Ill under Hindu Law: Need for Amendment to Hindu Marriage Act, 1955, 29 Supremo Amicus [310] (2022).
• Poonam Pradhan Saxena, Family Law– 2 (Lexis Nexis 2022).

[1] Hindu Marriage Act, 1955 § 13B.

[2] Hindu Marriage Act, 1955 § 2.

[3] Hindu Marriage Act, 1955 § 3.

[4] Hindu Marriage Act, 1955 § 5.

[5] Hindu Marriage Act, 1955 § 13.

[6] Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676

[7] Subbarama Reddiar v. Sakaswathi Ammal, 1966 SCC OnLine Mad 61

[8] Dastane v. Dastane AIR 1975 SC 1534

[9] Lachman Utmamchand Kirpalani v. Meena AIR 1964 SC 40

[10] Teesta Chattoraj v. Union of India, 2012 SCC OnLine Del 1949

[11] Ram Narain Gupta v. Rameshwari Gupta, (1988) 4 SCC 247

[12] Mr “X” v. Hospital “Z”, (2003) 1 SCC 500

[13] Mahant Sital Das v. Sant Ram, AIR 1954 SC 606

[14] Sita Das v. Sant Ram AIR 1954 SC 606

[15] Hindu Marriage Act, 1955 § 13(2), cl. (ii).

[16] Venkatame v. Patil AIR 1963 Mys 118

[17] Hindu Marriage Act, 1955 § 13(2).

[18] Hindu Marriage Act, 1955 § 13(2), cl. (iii).

[19] Hindu Marriage Act, 1955 § 13(2), cl. (iv).

[20] Hindu Marriage Act, 1955 § 13(1A).

[21] K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226

[22] Naveen Kohli v. Neelu Kohli, (2006) 4 SCC 558

[23] Saigal, Suchita, and Uttara Gharpure. “Naveen Kohli v. Neelu Kohli, (2006) 4 S.C.C. 558.” Student Bar Review 18, no. 2 (2006): 113–24.

[24] Hindu Marriage Act, 1955 § 13B.

[25] Manish Goel v. Rohini Goel, (2010) 4 SCC 393