Grounds on which a Hindu wife can seek Divorce
Divorce means the termination of a marriage. Divorce is breaking all the responsibilities of the marital bond . In case of a divorce the legal duties between a married couple are cancelled. Various divorce laws are available around the world. But there are few countries like Philippines & Vatican city where divorce is not allowed. Divorce laws are different in different jurisdictions. And almost everywhere these laws are based upon the cultural & social traditions. Divorce laws often evolve with time & are not static in nature.
Hinduism and Divorce
There are various opinions among Hindus regarding divorce. Since marriage among Hindus is considered to be a sacred bond it is believed that marriage is a religious obligation. Thus, a lot of people believe that it is the duty of every married couple to complete all the marital responsibilities & thus abiding by the religious obligations. They don’t support the idea of divorce because it affects the family and children.
But many people believe that it is better to dissolve the marriage rather than being in a hateful and toxic relationship. There are married couples who have been through all odds & find out that divorce is the best option.
Theories of divorce
1. FAULT THEORY:
According to this theory one can seek divorce if the partner has committed any matrimonial offense like cruelty, adultery , etc . Marriage can be dissolved under this theory if there is a guilty party & an innocent party. There must be 2 parties for divorce under this theory. The major drawback is that if both the parties are at fault no divorce can take place.
2. MUTUAL CONSENT DIVORCE:
This theory is based on the principle that if two persons can marry willingly then they should also be allowed to move out if the relationship doesn’t work. Here both husband and wife mutually gives consent about dissolving the marital bond.
3. IRRETRIEVABLE BREAKDOWN OF MARRIAGE THEORY:
This refers to a marriage which cannot work at all. This theory is quite controversial. A marital relationship is based on love, compassion, tolerance and adjustment. But if any of th Septembere party is not ready to live with the spouse then there’s no point of stretching such relationship. From this point of view this theory is quite effective.
Grounds for divorce
Under Section 13 (1) of the Hindu marriage act,1955 there are 9 grounds based on which one can seek divorce from his/her partner.
Cruelty as a ground for judicial seperation was added only after 1976. The word cruelty has been used with respect to human conduct or behaviour. It can be physical, mental, intentional or unintentional.
Desertion means to go away one’s own spouse with none reason or without the consent of the spouse.
There are 2 essential conditions for desertion:
a) the reality of the separation
b) the desire to put an end to the relation
Similarly there are 2 elements for the deserted spouse:
a) lack of consent
b) lack of valid cause
Adultery is the consensual sexual between a married person & a person of opposite sex other than his own spouse.
In Subbaramma v. Saraswati ,Court held that one single act of adultery is enough for divorce or legal separation .
Under The Marriage Laws (Amendment) Act, 1976, Section 13(iii) if the partner is not of sound mind & is mentally insensible judicial separation is possible.
Divorce is feasible if leprosy is within the stage of
If leprosy is of mild type & is curable then divorce under this ground is not possible.
6. VENEREAL DISEASE:
Communicable disease are often a ground for divorce as per section 13(5) of the Hindu marriage act.
Divorce can be obtained if a partner is converted to Islam, Christianity, Parsi or Zoroastrianism & ceased to be a Hindu.
8. RENUNCIATION OF WORLD:
It means an individual has chosen to steer a religious life . Divorce under this clause is only possible if
a) the respondent has renounced the world
b) respondent must have entered some religious order.
9. PRESUMPTION OF DEATH:
If the person has not been heard or seen for a minimum of seven years, it’s presumed that the person is not any longer alive and therefore the partner can seek divorce.
Along with that a wife can also seek divorce if:
a) the husband was already married to a different woman
b) the husband is guilty of rape or sodomy
c) cohabitation is not continued
d) wife was below 18 years aged at the time of marriage
SUKHENDU DAS VS. RITA MUKHERJEE 2017
On 14 April 1993 2 district court judges Sukhendu Das & Rita Mukherjee gave birth to a girl child. The couple had conflicts between them & were living separately for 17 years.
A divorce application was filed in the court.
The appellant Sukhendu Das stating the reasons wanted divorce. His wife refused to give custody of the daughter to him. She did not even visit him when he was ill. She did act of cruelty.
But the respondent Rita Mukherjee denied all these allegations & did not participate in the court proceedings.
1. If it was an act of cruelty by the respondent?
2. Whether it’s an irretrievable break down of marriage?
The court stated that the respondent did not even appear for the court proceedings & lived separately for 17 years. This reflected her disinterest in continuing the marital relationship.
The appeal for divorce was granted.
In India marriage is one of the most important social institutions. Especially among the Hindus marriage is considered to be a sacred bond. Marriage comes with a lot of responsibilities & obligations. But there are a lot of married relationships that can’t be fixed . Divorce is quite painful & gives stress to the mental health of the parties. But in cases where the marriage is not a happy one divorce becomes the only option. That’s why there’s always a need for legal grounds to seek divorce.
Author: Sholanki Bhowmik,
Ramaiah College of law, 2nd year, law student