Divorce Under the Hindu Law

This article ‘Divorce under the Hindu Law’ deals with the concept, different theories, and grounds of divorce, etc.

Brief Account on Historical Development of the Concept of Marriage

The establishment of marriage as an exclusive union between two people. To come with the establishment of the notions of the patriarchal stage in the form of a quest to know the paternity of the child. With this, monogamy became a stricter rule for women as her fidelity depended on the determination of paternity.

The ancient Rig Vedic Hindus considered marriage as a sacramental union and this thought process was carried on, as a result, we can see that till date marriage is considered as an essential sacrament amongst where the wife is considered as the ardhangini (half of man)[1].

Marriage being a sacramental union meant that it was regarded and sacrosanct implying it to be a permanent union of a kind, a tie that is once tied cannot be untied.[2]

In Hindu marriage of the olden days, a wife could never ask for divorce even if her husband was a lunatic, impotent, a leper, or a deserter and this is how women were made subordinate to their husbands.

Modern Conception of Marriage as a Contract

The Industrial Revolution brought with it the ideals of ‘equality’ and ‘freedom’ and the concept that all humans and social relations must be based on the free volition of the individuals and marriage was also to be regarded as the same. This gave rise to the thought process of marriage not being a sacramental relationship but a contractual union where consent of both parties played an important role.

But for the Hindus, regarded marriage as a sacrament where the consent of the parties to the marriage was immaterial. Thus, making a marriage valid if the rites are duly solemnized even if the person married was a minor or of unsound mind.

Marriage under the Hindu Marriage Act, 1955

By the virtue of the Hindu Marriage Act, 1955 the Hindu marriage has neither remained sacramental in toto and has nor taken the shape of a contract but carries a semblance of both. Amongst the three elements of the Hindu Marriage i.e permanent and indissoluble union, an eternal union, and a holy union, only the last characteristic still holds some ground as the Hindu Marriage Act, 1955 recognizes divorce.

Divorce Under the Hindu Law

Different Theories of Divorce

There are three main theories of divorce i.e

• offense or guilt theory of divorce,
• consent theory of divorce, and
• irretrievable breakdown theory of divorce.

(a) Offence or Guilt/Fault Theory of Divorce –

As per this theory, a marriage can be dissolved only if and when one of the parties to the marriage has, after the solemnization of the marriage committed some matrimonial offenses which is a recognized ground of divorce as prescribed by law. The guilt theory implied that one of the parties of marriage is innocent and the other guilty.[3]

Earlier in English law only, adultery, cruelty, and desertion were grounds for divorce. Later, insanity was also added to it and with it, the ‘guilt theory’ took shape of the ‘fault theory’ where, if one of the parties has some fault in him or her then the marriage could be dissolved.[4]

The Hindu Marriage Act originally incorporated this theory of divorce and laid down that there must be a guilty party and an innocent party where, all the three grounds i.e adultery, cruelty, and desertion were made grounds for judicial separation and not divorce.

Under Section 13 of the Hindu Marriage Act 1955, the plausible grounds of divorce that existed were:

living in adultery, change of religion, insanity, leprosy, venereal disease, the presumption of death, renunciation of the world order, non-resumption of cohabitation after a decree of judicial separation and non-compliance with the decree of restitution of conjugal rights.[5]

The 1964 amendment of the Act introduced ‘breakdown theory of divorce’ and the 1976 amendment of the Act introduced ‘consent theory of divorce’ & also made adultery, cruelty, and desertion as fault grounds of divorce.

(b) Consent Theory of Divorce

This can also be called as ‘free theory’ of divorce advocating that parties to the marriage should be free to dissolve a marriage as they enter in it. As it happens in other transactions where at times people do make errors or commit mistakes, so is marriage.[6] If the parties to marriage find their married life devoid of happiness and peace, intolerable, making it difficult for the parties to exist together in harmony affecting their physical and moral life.

In such situations, the parties must be given a choice to end the marriage. This theory is based on the principle that ‘freedom of marriage implies freedom of divorce’. If the parties are not provided a way out of this situation, then it might also lead any one of them to commit some or the other kind of matrimonial offense which will neither be in their interest nor in the interest of society.

There are two criticisms of the theory, one, that it makes divorces very easy leading to hasty and ill-considered divorces, and second, that it makes divorce very difficult as the divorce by mutual consent requires the consent of both the parties and if one of the parties decides to never consent to it then divorce can never be obtained.[7]

Section 28 of the Special Marriage Act and Section 13-B of the Hindu Marriage Act provide that, a petition for divorce by mutual consent may be presented to the District Court by both the parties together on the ground that they have been living separately for a period of one year or more and that they have not been able to live together and with mutual agreement wish to put an end to their marriage.

(c) Irretrievable Breakdown of Marriage Theory of Divorce

This theory of divorce depends upon how the parties can satisfy the court as to the fact that their marriage has broken down beyond all possibilities of repair, that the situation has become intolerable and one wishes to terminate their marriage.

It is believed that if this fact is established then, the marriage should be brought to an end, without looking into the causes of the breakdown and without fixing any responsibility on either party. The determination of the question of whether in fact, marriage has broken down beyond repair has been left to the courts.[8]

The grounds of divorce under this head recognized in many countries were narrowed down to three major conditions i.e incompatibility of temperament, profound and lasting disruption, and cruelty, wherein, cruelty was believed to be the most fertile ground.

In Hindu Law, the breakdown theory has been incorporated in a different way where divorce can be obtained by either party if it is shown that a decree for restitution of conjugal rights has not been complied with for a period of one year or more, or if it is shown that cohabitation has not been resumed for a period of one year or more after passing of the decree for judicial separation tough it has not yet been made a ground for obtaining the decree of divorce.

Grounds of Divorce under the Hindu Marriage Act, 1955

Section 13 of the Hindu Marriage Act, 1955 provides several grounds for divorce. Section 13(1) deals with general grounds of divorce that are available to both the parties; Section 13(1)(A) which was added with the 1964 Amendment of the Act provides two other grounds for dissolution of marriage and Section 13(2) provides for grounds which can be availed by the wife to dissolve the marriage.

The grounds of divorce provided in the Hindu Marriage Act, 1955 have been discussed below:

Adultery

Section 13(1)(i) provides adultery as a ground of divorce that is available to both parties in a marriage. Under the matrimonial Hindu Law, Adultery has been declared to be an offense against marriage, and to constitute an offense the prerequisite is the existence of marriage.

It was held in Vira Reddy v. Kistamma, [1969 Mad. 235] it was held that one single act of adultery is enough for divorce or judicial separation. Earlier the burden of proof existed on the petitioner but now, the preponderance of probabilities may also prove adultery.

Cruelty

Section 13(1)(ia) of the Act deals with cruelty. No precise definition of cruelty exists and therefore it is not possible to provide an appropriate and certain definition as to what specific acts constitute cruelty. Cruelty can be numerous and varied, subtle or brutal, mental or physical, and can be by violence or silence.[9]

Under Hindu Law, intention or motive is not material with regards to cruelty. It was held in Suman Kapoor v. Sudhir Kapoor, [2009 SC 589] that, in cruelty ‘mens rea’ is not important.

In A. Jaya Chandra v. Aneel Kaur, [2005 SC 534] it was observed by the Supreme Court that the expression ‘cruelty’ has been used in relation to human conduct or human behaviour to constitute cruelty and the conduct complained of should be grave and weighty for arriving at a conclusion that the petitioner spouse cannot reasonably be expected to live with the other spouse.

Cruelty has been classified under two broad heads i.e ‘physical cruelty’ and ‘mental cruelty’. Physical cruelty includes physical acts of violence by one of the spouses on the other causing injury to the body, limb, health, or reasonable apprehension of such act of violence has been considered cruelty.[10] In Vinit Joglekar v. Vaishali Joglekar, [1998 Bom 73] it was observed that even the husband indulging in an unnatural carnal relationship amounts to physical cruelty.

In Bhagat v. Bhagat 1994 SC 710, the Supreme Court opined a definition of mental cruelty wherein, the conduct which inflicts upon the other party such mental pain and suffering as would make it impossible for that party to live with the other. Therefore, implying that the effect of mental cruelty should be such that the parties thereafter cannot be expected to live together.

To judge mental cruelty, the court has to go by the “intensity, gravity, and stigmatic impact” of the cruel treatment which is meted out even once Vijay Kumar Ramchandra Bhate v. Neela Bhate, [AIR 2003 SC 2462].

In K.Srinivas Rao v. D.A. Deepa AIR 2013 SC 2177, the wife filed a complaint of harassment against her husband and his family and further made a false allegation that her mother-in-law asked her to sleep with her father-in-law such vulgar statement was bound to cause mental cruelty. The Court also observed that making unfounded indecent defamatory allegations against a spouse or relative in pleadings and filing complaints published in newspaper that having an adverse impact on the business or job of the spouse that instance is mental cruelty.

If broadly considered, the following acts have so far been recognized by the Indian Courts as acts of cruelty

• False accusations of adultery or unchastity[11]
• The demand for dowry[12]
• Persistent refusal to have marital intercourse[13]
• Wilful refusal to have sexual intercourse and impotency[14]
• Drunkenness of one of the spouses[15]
• Prosecution of one of the spouses by other of a false criminal charge[16]
• Refusal to have children[17]
• Peculiar and unnatural behaviour of one of the spouses [18]
• Birth of an illegitimate child[19]
• Irretrievable breakdown of marriage[20]
• A false allegation of insanity and lunacy[21]
• False complaints to the employer[22]
• Threat to commit suicide[23]

Desertion

Section 13(1)(ib) deals with the ground of desertion and Explanation to sub-section(1) of Section 13, Hindu Marriage Act the meaning of desertion has been explained i.e,

“the expression ‘desertion’ means the desertion of the petitioner by the other party to 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, and its grammatical variations and cognate expressions shall be construed accordingly.”

Therefore, it can be construed that desertion means a total repudiation of the obligation of marriage, total withdrawal not only from the place but also from the state of things. It was observed in Savitri Pandey v. Prem Chand Pandey, 2002 SC 591 that, to constitute desertion previous cohabitation by the parties is a must and without previous cohabitation there cannot be any desertion.

Desertion under the Hindu Marriage Act can be categorized under three broad heads i.e actual desertion, constructive desertion, and wilful neglect.

• Actual Desertion – In actual desertion, the two important things that need to be determined are the ‘factum of separation and animus deserted meaning the intention to desert.[24] The desertion should be without any reasonable cause, should be without the consent of the other party and the statutory period of two years as provided must have run out before a petition is presented before the court.
• Constructive Desertion – This implies desertion not from the place but from the state of things. It was held in Savitri Pandey v. Prem Chand Pandey, [2002 SC 591] that desertion means withdrawal from matrimonial obligations & not withdrawal from the place.[25] If a party withdraws from cohabitation then the party is guilty of desertion despite the fact that he chooses to stay in the same matrimonial home.
• Wilful Neglect – The Explanation to Section 13(1) of the Hindu Marriage Act lays down that ‘desertion includes wilful neglect of the petitioner by the other party to the marriage.’ In order to constitute willful neglect, the act or omission has to be deliberate or intentional. Failure to fulfill basic marital obligations such as denial of company or denial of marital intercourse or denial to provide maintenance amounts to willful neglect.[26]

Option of Puberty

Section 13(2)(iv) provides that, “a wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground 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”.

The Explanation of this section provides that this clause applies whether the marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976. This provision is for a child bride who when reaches puberty has the option of opting out of the marriage to safeguard her interest who may have been forced into wedlock before attainment of the required maturity.

Mutual Consent

Section 13B lays down the provisions of divorce by mutual consent. The Hindu Marriage Act, 1955 lays down that a petition for divorce by mutual consent may be presented jointly by both the spouses with the following averments i.e – that they have been living separately for a period of one year, that they have not been able to live together, and they have mutually agreed to live separately.

If all these conditions are fulfilled then divorce can be granted. The motion of divorce under this section has to be moved by both parties and it cannot be granted if only one spouse moves the motion of divorce by mutual consent.

The Supreme Court in Hitesh Bhatnagar v. Deepa Bhatnagar, [2009 SC 2840] observed that the existence of mutual free consent should be there till the decree is passed, the consent can be withdrawn anytime before the decree is passed. The period of eighteen months prescribed is therefore for the speedy disposal of cases and not to specify the time within which the consent can be withdrawn.

Irretrievable Breakdown of Marriage

This does not exist as a ground of divorce under the Hindu Marriage Act, of 1955. In a landmark judgment, Naveen Kohli v. Neelu Kohli, [AIR 2006 SC 1675], it was observed by the Supreme Court that the Union of India must consider and amend the existing act to add the ground of irretrievable breakdown of the marriage.

The Supreme Court also highlighted that the fault grounds are proving to be inadequate to deal with this problem as once the marriage has broken down beyond repairs, then it would be unrealistic for the law not to take notice of the fact and it will be harmful and injurious to the society.

71^st Report of Law Commission of India

The Law Commission under the Chairmanship of Shri Justice H. R. Khanna presented its report on April 7, 1978. It suggested that an irretrievable breakdown of marriage should be made as a ground for divorce. Taking notice of the modern trend which is considered in the laws of a number of countries and this ground is regarded as a good and appropriate ground for dissolution of marriage by granting a decree of divorce.

The decision of the Delhi High Court in Ram Kali v. Gopal Das, [(1971) J.L.R. 1 Delhi 10 (F.B)] was also highlighted wherein the High Court in a full Bench maintained that the maintenance of union utterly broken down should not be insisted upon as it would not be a practical and realistic approach.[27]

It was urged by the commission that a petition for divorce on the ground of irretrievable breakdown of marriage would not make it necessary for the court to go into the question as to which party was at fault before granting the decree of divorce and it would be enough to prove that the relation between husband and wife have reached such a breaking point where there is no possibility of reconciliation.

A law of divorce based on fault was believed to be inadequate to deal with broken marriages and, it was urged by the commission that the old laws where the law demands that men and women must be found innocent or guilty must be done away with. It was suggested that the public interest demands that the court should be empowered to declare de jure what is already defunct de facto.

Marriage Laws Amendment Bill, 2013

The Marriage Laws (Amendment) Bill, 2013 which was passed by the Rajya Sabha lapsed before it could be considered by the Lok Sabha, the lower house was dissolved upon completion of its term and general elections were held and since then it was never again brought into the light. The highlights of the Marriage Laws Amendment Bill, 2013 are as follows:[28]

• the ground that the marriage has broken down irretrievably was to be inserted in the current Act.
• the court shall not hold the marriage to have broken down irretrievably unless it is satisfied that the parties to the marriage have lived apart for a continuous period of not less than three years immediately preceding the presentation of the petition
• a marriage living with each other shall be construed as a reference to their living with each other in the same household.
• if the ground of divorce by irretrievable breakdown would result in hardship to the woman then it will be wrong to dissolve the marriage.
• the court would grant a decree this ground shall consider all the circumstances, including the conduct of the parties to the marriage and the interests of those parties and of any children or other persons concerned.
• if the court is of the opinion that the dissolution of the marriage shall result in grave financial hardship to the respondent and that it would then it shall dismiss the petition, or in an appropriate case stay the proceedings until arrangements have been made to its satisfaction.
• the court shall not pass a decree of divorce on this ground unless the court is satisfied that adequate provision for the maintenance of children born out of the marriage has been made consistently with the financial capacity of the parties to the marriage.

Therefore, it can be seen that through this bill an attempt was made to introduce a ground of divorce considering the practicality of the modern world with adequate assured safeguards.

Conclusion

The Law of divorce based mainly on fault is inadequate to deal with a broken marriage. Under the fault theory, guilt has to be proved; divorce courts are presented with concrete instances of human behaviour as bring the institution of marriage into disrepute.

The individual free will has to be recognized and no marriage remains sacrosanct when devoid of peace. It is important to diversify and mould the divorce laws as per the current social situation and, the law must cater to those in pain and must not be a facilitator prolonging such pain.

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[1] Dr. Paras Diwan, Modern Hindu Law

[2] Ibid.

[3] Ibid.

[4] Ibid.

[5] The Hindu Marriage Act, 1955, Section 13

[6] Supra note 1

[7] Ibid.

[8] Ibid.

[9] Ibid.

[10] Russell v. Russell (1897) AC 395

[11] Kusumlata v. Kampta Prasad 1965 All 280

[12] Navneet Kumar v. Meena Kumar, 2002 H.P. 16

[13] Shakuntala v. Om Prakash 1981 Del, 291

[14] Rita v. Balakrishna Nijhawan 1973 Del 200

[15] Rita v. Brij 1984 Del, 291

[16] Shyamlata v. Suresh 1986 P&H 383

[17] Jyotish v. Meera 1970 Cal. 266

[18] Umawant v. Arjan Dev 1955 P & H 312

[19] Madan Lal v. Sudesh Kumar 1988 Del 93

[20] Romesh Chander v. Savitri 1995 SC 851

[21] Bhagat v. Bhagat, 1994 SC 710

[22] Lajwanti Chandhok v. O.N. Chandhok 1982, NOC 111

[23] Dastane v. Dastane 1975, S.C. 1534

[24] Supra note 1

[25] Ibid.

[26] The Hindu Marriage Act, 1955, Section 13

[27] 71^st Report of the Law Commission on Hindu Marriage Act 1955 – Irretrievable Breakdown of Marriage as Ground of Divorce

[28] Marriage Laws Amendment Bill, 2013

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