Divorce under Hindu Marriage Act
Under the old Hindu laws, divorce was viewed as forbidden and was not talked about as freely as it is spoken out today, but with the codification of the laws the provision of divorce were laid down The provision of “Divorce” has been dealt with under the Hindu Marriage Act, 1955 as being a true blue method whereby both the parties to the marriage, decide to break all the promises or vows taken at the time of marriage. All Hindus, Buddhist, Jains or Sikhs are covered under the divorce provisions of the act.
Grounds for Divorce
The following grounds can be invoked for securing a divorce under the act:
Adultery: During the period of marriage, if either spouse maintains sexual relations with a person other than his or her lawfully wedded companion.
1. Cruelty: After the marriage, subjecting the petitioner to cruelty.
2. Desertion: If either one of the parties to the marriage deserts the other for a consistent span of at least two years , prior to the filing
of the petition by the other party.
3. Conversion to another religion by either party other than Hinduism
4. Mental Disorder: If the spouse of the petitioner suffers from any unsoundness of mind, mental illness or disorder that cannot be cured, then
the petitioner can file for divorce
5. Virulent and Incurable Disease: in the form of leprosy.
6. Venerable Disease in Communicable form.
7. The renunciation of the world or entered any religious order.
8. Not heard being alive for a period of seven years or more.
Additional Grounds for Dissolution of the Marriage by the Wife
Under the act, the wife is entitled to seek divorce from her husband on the following grounds:
1. Where the husband has another living wife from his previous subsisting marriage, before the commencement of the act.
2. Post the marriage, the husband was found guilty of rape, sodomy or bestiality.
3. Where the wife was awarded an order or decree for maintenance under section 18 of the Hindu Adoption and Maintenance Act, 1956 or under section 125 of the Code of Criminal Procedure, 1975, by the court, in spite of the fact that she was living apart from her husband even before the passage of such decree or order. The conjugal relations between the parties failed to resume within one year or more, even after the passage of this order.
4. The marriage was performed before the attainment of 15 years of age by the wife, and on completion of 15 years and not before 18 years of age, the wife rejected the marriage Under the Hindu Marriage Act, 1955, a divorce petition can be filed by the parties only after the passage of one year from the marriage date.
The Irretrievable breakdown of Marriage
The Marriage Laws (Amendment) Bill, 2010 incorporated another ground for seeking divorce, namely the ‘Irretrievable breakdown of marriage’ under the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954. As the term suggests, it leads to a situation whereby, either or both the parties to the marriage fine it impossible to peacefully cohabit with each other, due to personality’s clashes, differences in opinion and have lived separately from each other for a long period of time and are no longer too eager to further carry on their matrimonial relationship.
Section 13B in the Hindu Marriage Act, 1955
*13B DIVORCE BY MUTUAL CONSENT —
(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976)*, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.
(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.]
(i) The period of 6 to 18 months provided in section 13B is a period of interregnum which is intended to give time and opportunity to the parties to reflect on their move. In this transitional period the parties or either of them may have second thoughts; Suman v. Surendra Kumar, AIR 2003 Raj 155.
(ii) The period of living separately for one year must be immediately preceding the presentation of petition. The expression ‘living separately’ connotes not living like husband and wife. It has no reference to the place of living. The parties may live under the same roof and yet they may not be living as husband and wife. The parties should have no desire to perform marital obligations; Sureshta Devi v. Om Prakash, AIR 1992 SC 1904.
(iii) The period of six to eighteen months time is given in divorce by mutual consent as to give time and opportunity to the parties to reflect on their move and seek advice from relations and friends. Mutual consent should continue till the divorce decree is passed. The court should be satisfied about the bona fides and consent of the parties. If there is no consent at the time of enquiry the court gets no jurisdiction to make a decree for divorce. If the court is held to have the power to make a decree solely based on the initial petition, it negates the whole idea of mutuality. There can be unilateral withdrawal of consent. Held, that since consent of the wife was obtained by fraud and wife was not willing to consent, there could be unilateral withdrawal, of consent; Sureshta Devi v. Om Prakash, AIR 1992 SC 1904.