This article will provide the provisions and case laws for the Divorce under Hindu Law.
Marriage is one of the oldest institutions of Hindus. It is considered one of the ten Sanskaras for them. It is the only Sanskara which has not been prohibited for any irrespective of caste and sex and has been provided as compulsory for all male and females. Hindu marriage implies the acceptance of the bride as wife by the groom through ceremonial process which is technically known as Kanyadan. Kesari writes, through the institution of marriage men and women are united into a wedlock, the purpose of which is generally to give birth to a male child.
In ancient times Marriage was a sacred Institution, so Divorce was not recognized. They did not believe in Divorce. But , now-a-days this things has changed. Divorce was unknown to the laws of Dharmashastra as marriage was regarded as an indissoluble union. Manu said,
“let mutual fidelity continue till death, this in brief may be understood to be the highest dharma of husband and wife. The duty of a wife continues even after her death. She can never have a second husband”.
Narada and Parashar codes of law permitted divorce to wife in certain conditions. Even Kautilya’s Arthasastra had a mention of it. Majority of jurists expressed their disapproval and favoured it only in unapproved forms of marriage, that too in extreme cases of distress. Divorce was even recognized in some communities of Hindus as an established custom. Prior to Hindu Marriage Act,1955 it was also permitted in some parts of the country by legislation like Bombay Hindu Divorce Act, 1947. In Yousuf v. Sowramma (AIR 1971 Ker 261)
“While there is no rose which has no thorns but if you hold is all thorn, no rose, better throw it away. The ground for divorce is not conjugal guilt but breakdown of marriage.”
DIFFERENT THEORIES OF DIVORCE :-
1) Fault/Offence/Guilty Theory:- Under this theory marriage can be ended when one party to the marriage is responsible or liable for the offence under matrimonial offences done against another spouse. Only the innocent spouse can seek this remedy. The only drawback of this theory is when both the spouse are at fault, then no one can seek these remedy of Divorce.
2) Mutual Consent Theory:- Hindu Marriage was considered to be religious sacrament, but after the Hindu Marriage Act, the nature of Hindu marriage is shifted or titled to civil contract. As an individual have the right to enter into s relationship, they also have the right to get out of it. The marriage can be dissolved by mutual consent.
3) Irretrievable Breakdown Theory:- The dissolution of marriage happens due to failure of the matrimonial relationship. The divorce can be taken by the spouse as a last resort i.e. when both of them are not able to live together again.
GROUNDS OF DIVORCE:-
There are several clauses in the Hindu Marriage Act involving a legal divorce, i.e. that a partner may get a divorce or an appeal to a court of law for the termination of a marriage. In the interests of humanity, marriage or romantic partnership must be surrounded by every protection for the cause laid down in the statute. Divorce is allowed only for a serious cause, in the absence of any such solution. Section 13 of the Hindu Marriage Act, 1955 provides the grounds of divorce.
1) Voluntary Sexual Intercourse ( Sec 13 (1)(i) )
2) Cruelty ( Sec 13 (1)(ia) )
3) Desertion ( Sec 13 (1)(ib) )
4) Conversion ( Sec 13 (1)(ii) )
5) Acceptance of Religious Order ( Sec 13 (1)(vi) )
6) Disappearance for 7 years ( Sec 13 (1)(vii) )
7) Venereal disease in a communicable form ( Sec 13 (1)(v) )
8) Insanity ( Sec 13 (1)(iii) )
GROUNDS AVAILABLE TO WIFE ALONE (SEC 13 (2) )
- (i) Bigamous Marriage: In case the marriage was solemnized before the commencement of this act, a wife is entitled to present a petition for divorce on this ground.
- ii) Rape, Sodomy and Bestiality: A wife can seek divorce on the ground that since the solemnization of marriage the husband has been guilty of rape or sodomy or bestiality.
- iii) Order of Maintenance: Angrez Kaur v. Baldev Singh, AIR 1980 P&H 171: Wife can claim divorce under this clause if for a period of one or more subsequent year after the passing of order under HAMA or CrPC, the wife and husband have not resumed cohabitation.
- (iv) Repudiation of Marriage: The marriage in contravention to sec 5 (iii) of the Act is neither void or voidable under the Act. Precedents suggest that it is a valid marriage. Under this clause, a wife married before attaining the age of 15 years, can go for repudiation of marriage after attaining the age of 15 years and before 18 years of age. Consummation of marriage is immaterial in this case.
DIVORCE BY MUTUAL CONSENT (SEC 13(B))
As per Section 13B, the person can file the petition for divorce by mutual consent of both the parties. If the parties want to dissolve their marriage as a mutual consent are required to wait for one year from date of marriage. They have to show that they are living separately for one or more year and not able to live with one another. m,
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