A Brief on the Concept of Divorce under Hindu law

In the typical historical Hindu set up of society, the scope of women’s freedom was very limited. The modern concept of divorce or even judicial separation did not exist. Once she left her parents’ home after marriage, she was completely at the mercy of her husband to take care of her. She had no right to remarry, to divorce or even to leave the house. Men, on the other hand had a lot of privileges and freedoms which he could exercise in the pretext of upholding Dharma[1]. Fast forward to the modern times, the concept of divorce has been recognized in almost all the religions now. Hindu law recognizes the history of women’s lag in legal rights and makes for provisions especially for women as well. Let us look at in brief the concept of Hindu Divorce as put down in the Hindu Marriage Act 1955.

There are 3 main concepts/theories regarding divorce

  1. Fault theory – earlier called guilt theory, this penalizes the party in a marriage that commits a conjugal offence which makes them undeserving of holy union like marriage. It is important that one party is at fault and the other party is innocent. Until a certain period of time the doctrine of recrimination was followed, which said that in case of both spouses being at fault, then neither would be entitled for relief
  2. Consent theory – in this theory, both the parties agree to a common decision to end the matrimonial relationship. Marriage is seen like a contract – the parties can enter and exit it freely. The party should be able to exit the marriage in case of some differences. Divorces became both easy and difficult at the same time under this theory; it was easy to get a divorce now, but in case one party doesn’t consent, then divorce can’t be given.
  3. Breakdown theory – believes that if the marriage has broken down to such an extent that it cant be fixed, then it should be brought to an end, without trying to fix any responsibility of the parties. Either of the parties can go ask for divorce.
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Let us now get to the different grounds for divorce recognized under Hindu Marriage Act

  1. Adultery – If a partner has voluntary sexual intercourse with any person other than the spouse, then that party has committed adultery. There needs to be sufficient evidence to prove this; as held in the Hotel Bill and register case, merely showing that the respondent was seen booking a room with an unknown woman isn’t enough proof for adultery. In the case, of Swapna Ghose V Sadananda Ghose[2]
    , it was proved by the family that lived next door that the husband and another unknown woman were living as a couple.
  2. Cruelty – when one of the parties treats the other with cruelty, it is a ground for divorce. The Act does not define what constitutes cruelty, but we can infer the same through the judgements delivered by the courts. Cruelty Is defined in the IPC. Cruelty can be physical in nature. As seen in the case of Dastane V Dastane[3], demanding dowry as seen in Shobha rani V Madhukar reddy[4], refusing or even forcing the partner to have kids as in Samar Ghosh V Jaya Ghosh[5].
  3. Desertion – if the respondent has deserted the petitioner continuously for a period of 2 years, then a petition can be presented for divorce. There are mainly 3 type of desertion-
  4. Actual desertion – the 5 requirements of factum of separation(fact of separation), animus deserendi(intention to desert), no reasonable cause, without the consent of the other party and continuous desertion for 2 years should be fulfilled. The court elaborated and shed light on the concept of desertion in Bipinchandra v Prabhavati[6]
    and said that if because of the conduct of the other spouse, the party is compelled to leave the marital house, then the spouse itself will be guilty of desertion.
  5. Constructive desertion – in this, the party does not withdraw from the marital home or particular place of dwelling, but withdraws from the state of things. This can take place even though both parties reside in the same house but different floors etc. the factum of separation may or may not exist. In the case of Jyotish Chandra V Meera[7], the wife came back from her parents house after 2 years, but the court said that there was no bonding between husband and wife
  6. Willful neglect – If one of the parties wifully neglects the other, it is a ground for divorce. However, one or two instances of such neglecting wont amount desertion. In the case of Gurubacchan Kaur V Preetam singh[8], court said that mutual desertion was not a ground for divorce.
  7. Insanity – the lack of ability of managing marital obligations due to mental conditions is a ground for divorce. In the case of Sudhakar Shenoy V Vrinda shenoy[9], in order to get divorce for insanity – there should be proof of insanity, there should be unsoundness of mind, the person should not be able to perform marital obligations and the said unsoundness of mind should be uncurable.
  8. Virulent disease – if one of the parties is suffering from a virulent (dangerous or sexually transmitted disease)  and incurable disease, a petition for divorce can be filed.
  9. Conversion – Converting to another religion after marriage is also a ground for divorce. In the case of Gobardhan Das V Jasadamoni Dassi[10], the couple got married as Hindus, but later converted to Christianity. They had to ask for divorce under personal law which they had got married under which was the hindu Shastric law.
  10. Renunciation – in order to put forward a petition for divorce under renunciation, two criteria’s need to be fulfilled –
  11. The respondent should have renounced the world
  12. They should have entered some or the other religious order
  13. Presumption of death – divorce under this can be asked only after 7 years of not hearing from the other party, or not hearing about that party from a person who was in contact with the said party. Before putting forward a petition, there should be due diligence and effort put in searching for the other party by means of enquiry, newspaper advertisements etc.
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[1] Hinduwebsite.com

[2] AIR 1979 Cal 1

[3] AIR 1975 SC 1534

[4] AIR 1988 SC 121

[5] (2007)3 SCJ 253

[6] AIR 1957 SC 176

[7] AIR 1970 Cal 266

[8] AIR 1998 All 140

[9] AIR 2001 kar 1

[10] (1898) 18 Cal 252

Author: Palguna M,
School of Law Christ University 2 year

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