Marriage, this seven-letter word itself creates a bonding that not only unites the two people but two families as well. However, until 1955 divorce was completely unknown in the Hindu marriage. According to the traditional belief, a marriage is considered not only as a relationship or a bond that exists for the existing world but it is a bond which also continues beyond.
The word ‘divorce’ had not been defined under any statutory provisions but it could be defined as a legal dissolution of judicial ties established at marriages. Thus a divorce is also a seven lettered word, which separates the united couple at their own wish with their own consent. Thus divorce can be considered a means to break marriage that happens not just between two individuals but also between two families.
Theories behind Divorce:
1. Fault Theory
Under this theory, a marriage can end when one of the parties to the marriage is responsible or liable for the offense under matrimonial issues committed against the other spouse. Only innocent spouses can seek this remedy.
2. Mutual consent
Under this principle, marriage can be dissolved by mutual consent. If both spouses give their consent to end the marriage, they can divorce.
3. Irretrievable Breakdown:
According to this theory, dissolution of marriage is caused by the failure of the marital relationship. Divorce can be taken by husband and wife as a last resort, when the two cannot live together again.
Grounds of Divorce under section 13(1) of The Hindu Marriage Act, 1955:
Adultery means consent and voluntary intercourse between married or unmarried with another person, who is of the opposite sex.
Even if the intercourse between the husband and his second wife, ie if their marriage is considered under bigamy, the person is liable for adultery.
Under section 13(1)(i), Adultery is a ground for divorce.
Under section 13(1)(ia) of the Hindu Law, Cruelty is a ground for divorce by either spouse.
The concept of cruelty includes mental as well as physical cruelty.
Physical cruelty means when one spouse inflicts some physical injury on the other partner.
But the concept of mental cruelty was added because the spouse can also be mentally tortured by the other husband. Mental cruelty is a lack of kindness that adversely affects a person’s health.
It means withdrawn from the society of another. When one party withdraws from the society of another without reasonable excuse called desertion. Under section 13(1)(ib) deals with desertion that if either party deserted the other for a continuous period of not less than two years immediately preceding the presentation of the petition.
If one of the spouses converts their religion to another religion without the consent of the other spouse, the other spouse can approach the court and find a remedy of divorce.
Under section 13(ii) of the Hindu Marriage Act, 1955 when either party has ceased to be Hindu by conversion to another religion, the other party can seek the divorce.
It means when the person is of an unsound mind.
The following two requirements of insanity as the basis of divorce under section 13(1)(iii):
- The respondent has been incurably of unsound mind, or
- The respondent has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.
Under section 13(1)(v), venereal disease is a ground of divorce or judicial separation when either party is suffering from a venereal disease in a communicable form.
Presumption of Death:
Section 13(1)(vii) of the Hindu Marriage Act, 1955; states that when either spouse has not been heard alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive, is a ground for divorce by another party.
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