DIVORCE UNDER HINDU MARRIAGE ACT AND NEED

FOR UNIFICATION OF DIVORCE LAWS

Trisha

3rd Year, B.COM. LLB, Institute of Law, Nirma University

Introduction:

Marriage under all matrimonial laws is the union of a man and a woman which imposes

certain marital duties and consequently confers to each of them certain legal rights.1 In

case of any dispute arising out of the matrimony, a matrimonial relief or remedy could be

sought by either parties.2 Under Hindu Marriage Act of 1955, various matrimonial

remedies (from section 9 to section 13 of the said Act) have been accorded to either parties

of a marriage which for example encompass restitution of conjugal rights (under section -

9), judicial separation (under section - 10) as well as divorce (under section- 13). The

researcher shall focus and emphasize on the matrimonial remedy of Divorce as provided

under section 13.3

In Ancient Hindu Law, marriage was recognized as a samaskar which means a sacred

duty.4 It was considered as divine in nature wherein the concept of divorce did not exist.5

Neither Vedic texts nor Smritis contain any advertence to divorce by which we can

conclude that once the husband and wife were united, they were bound for life and even

beyond that.6

It is interesting to note here that the sacramental character of Hindu Marriage has

evaporated as a result of induction of the remedy of divorce in Hindu Marriage Act.

Section 13 the Act.7

1 Retrieved on http://www.harvard-jlpp.com/wp-content/uploads/2013/10/GeorgeFinal.pdf. 2 Retrieved on http://shodhganga.inflibnet.ac.in/bitstream/10603/34874/12/12_chapter%207.pdf. 3 Hindu Marriage Act, 1955 4 Singh Shiv Sahai, Unification of Divorce Laws in India pg- 21 Deep & Deep Publications 5 Ibid 6 Ibid 7 Supra note 4, pg- 24 Singh Shiv Sahai

The researcher shall discuss upon various theories of divorce which are inclusive of ‘fault

theory’, ‘irretrievable breakdown of marriage’ as well as ‘mutual consent theory’ etc.,8 and

shall further deliberate on the several grounds on which divorce can be sought under the

Hindu Marriage Act and shall ponder on the requirement of unification of the divorce laws

in India.

Statement of Problem

The striking feature of the matrimonial laws in India lies in its diversity and thus, there is no

single uniform code of laws which are applicable to the marital relations of each person

irrespective of the religion.9 When it comes to divorce i.e., the legal dissolution of marriage,

the deviation from the uniform approach by accepting diverse divorce laws on the basis of

religious and ethnological considerations is like striking at the very root of unity and

solidarity of a nation.10

Review of Literature

The researcher has relied upon the following books, articles and journals for the purpose of

research:

The book Marriage and Matrimonial Remedies: A Uniform Civil Code for India by

Mohammad A. Qureshi provides a detailed analysis of the various matrimonial remedies

available under the personal law of Hindus, Muslims, Christians and Parsis11. He also

scrutinized the grounds for judicial separation and divorce under Hindu Marriage Act, 1955

and felt that grounds of adultery etc., are the most common grounds for divorce.12

The book titled, Matrimonial Remedies under Hindu Law, authored by Rajkumari

Agrawala, provides an account of detailed analysis of the various matrimonial remedies which

are available under the Hindu Marriage Act of 1955.13 She further vehemently criticises the

8 Retrieved on http://shodhganga.inflibnet.ac.in/bitstream/10603/39005/12/12_chapter%204.pdf. 9 Supra note 4 pg-6 Sigh Shiv Sahai 10 Supra note 4 pg-6 Sigh Shiv Sahai 11 Qureshi Mohammad A., Marriage and Matrimonial Remedies: A Uniform Civil Code for India, Concept

Publishing Company 12 Ibid 13Agrawala Rajkumari Matrimonial Remedies under Hindu Law, 1st edition., N. M. Tripath Pvt. Ltd. 1974

amendment to section 13 (1) made in 1964 by virtue of which section 13 (1A) was added in

which if there has been no resumption of cohabitation or restitution of the conjugal rights as

between the parties to the marriage for a period of one year or upwards after the passing of the

respective decrees, then the parties are at the liberty to file a petition for a decree of divorce.14

Further, the book Divorce: Law and Procedures written by Janak Raj Jai, provides an idea

of various Acts relating to divorce under different religions and forms such as The Hindu

Marriage Act, 1955, The Divorce Act, 1869, the Special Marriage Act, 1954 etc. He also

throws light upon the need for Uniform Civil Code in matters relating to divorce.15

In the Shiv Sahai Singh authored book, Unification of Divorce Laws in India, a descriptive

and detailed analysis of the concepts of marriage and divorce and the grounds for divorce can

be observed. The book highlights and reinstates the urgent requirement of the uniformity in

the divorce laws in India.16

14 Ibid 15 Jai Janak Raj, Divorce: Law and Procedures, 3rd edition. Universal Laws Publishing Co. Pvt. Ltd. 2004 16 Supra note 4 Sigh Shiv Sahai

CHAPTER I

INTRODUCTION

A legally sanctioned contract between a man and a woman is known as ‘marriage’ which

engender changes in legal status of both the parties wherein each are accorded with new rights

and obligations.17 The concept of marriage has come a long way since the Vedic times. The

Human life is divided into four Ashramas by Hindus18 namely:

Brahmacharya Ashrama (studentship)

Grihastha Ashrama (life of householder)

Vanasprastha Ashrama (life of recluse)

Sanyasa Ashrama (life)

Marriage is described by the Hindu Law as a holy union for the performance of religious duties

because according to Yajnavalka, it was performed to achieve: Enjoyment (love, bliss and

happiness), procreation (son) and Dharma.19 Therefore, it was an essential samskara for every

Hindu to marry and enter Grihasthaa Ashrama.20

Hindu marriage had a sacramental element of being an eternal, permanent and indissoluble

and a holy union which means that the concept of separation was alien and considered as a

blasphemy.21 This concept slowly and steadily gave away which ultimately led to the

enactment of Hindu Marriage Act, 1955.22 Section 13 of the said Act deals with the grounds

on which the parties can procure a decree of divorce by way of petition from a competent court

having the adequate jurisdiction.23

Before broaching on the discussion on divorce which is the complete termination of marriage.

The Hindu Marriage Act, 1955 provides additional matrimonial remedies of varying

intensities which do not lead to the actual termination of the marriage.

17Retrieved on http://legal-dictionary.thefreedictionary.com/marriage 18 Supra note 15, pg: 5, Jai Janak Raj 19 Supra note 15, pg: 5, Jai Janak Raj 20 Supra note 15, pg: 6, Jai Janak Raj 21 Supra note 15, pg: 31, Jai Janak Raj 22 Supra note 15, pg: 31, Jai Janak Raj 23 Supra note 15, pg: 31, Jai Janak Raj

The first being, “Restitution of Conjugal Rights” provided under section 9.24 Consortium is an

important right which emanates from marriage and in case one of the parties refuses to

discharge their respective marital duties, the prejudiced or the aggrieved party has the

availability of the right to get them enforced.25 The underlying foundation of the right to bring

a suit for restitution of conjugal rights is the fundamental right as provided under matrimonial

law that either of the spouses are entitled to the society and comfort of the of the other.26 The

aggrieved party under this section can file a petition against the husband or wife who without

any reasonable case has withdrew from the society of the other.27 It is the specific performance

of marriage to unite the strained relations judicially as ‘It aims at the stability of marriage,

brings co-habitation between the estranged parties to live together in the matrimonial home in

amity.’28

The other matrimonial remedy available is that of ‘Judicial Separation’ under the section 10.29

The marital rights between the spouses is temporarily suspended after a decree is passed by

the Court on any of the grounds as specified in the section.30 Judicial Separation is the right to

live separately while keeping the marital bonds intact.31 It results in the severance of conjugal

relations without breaking the ties of matrimony.32 As provided in section 10(1), a decree of

judicial separation can be sought on any ground mentioned in section 13(1) wherein, either

24 Section 9 of HMA, 1955: Restitution of conjugal rights. When either the husband or the wife has, without

reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the

district court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements

made in such petition and that there is no legal ground why the application should not be granted, may decree

restitution of conjugal rights accordingly.

Explanation- Where a question arises whether there has been reasonable excuse

for withdrawal from the society, the burden of proving reasonable excuse shall be

on the person who has withdrawn from the society. 25 Retrieved on http://www.adjuvalegal.com/pdf. 26 Retrieved on http://dullb.com/Downloads/Semester1/105%20FAMILY%20LAW_SEMESTER1%20(2).pdf. 27 Section 9 of Hindu Marriage Act, 1955 28 Harvinder Kaur v. Harminder Singh, AIR 1984 Del. 66 29 Section 10 of HMA: Judicial Separation: (1) Either party to a marriage, whether solemnized before or after

the commencement of this Act, may present a petition praying for a decree for judicial separation on any of the

grounds specified in sub-section (1) of Section 13, and in the case of a wife also on any of the grounds might

have been presented.

(2) Where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner to

cohabit with the respondent, but the court may, on the application by petition of either party and on being

satisfied of the truth of the statement made in such petition, rescind the decree if it considers it just and

reasonable to do so. 30 Supra note 26 Retrieved on

http://dullb.com/Downloads/Semester1/105%20FAMILY%20LAW_SEMESTER1%20(2).pdf 31 Supra note 25 Retrieved on http://www.adjuvalegal.com/pdf 32 Supra note 25

party to the marriage may present a petition and besides the above mentioned grounds, the

wife can have additional grounds.33 Thus, the grounds for judicial separation and divorce are

virtually the same.34

This leads us to the ultimate matrimonial relief of Divorce prescribed under section 13 of the

Hindu Marriage Act.

33 Supra note 26 34 Supra note 25

CHAPTER II

DIVORCE: MEANING

The idea or the concept of divorce is quite old and its origin cannot be traced.35 The term

‘divorce’ is of Latin origin ‘divortium’ which means ‘to turn aside, to separate from,

diversion’.36 It is referred to as diversion because a husband is diverted from his wife.37 It was

considered to be of the following two categories wherein the divorce may be:

o Absolute, that is, the marriage stands dissolved38, or

o Limited, when the marital relation is suspended though the matrimonial bonds remain

in full force which is now referred to as ‘Judicial Separation’.39

Oxford English Dictionary defines ‘Divorce’ as ‘legal dissolution of marriage’40 i.e., it is the

permanent dissolution of marriage, the cancelling and/or reorganizing of the legal duties and

responsibilities of marriage, thus dissolving the bonds of matrimony between a married couple

under the rule of law.41 Since, there are no rights and obligations to maintain after this

permanent separation, thus, either party after such dissolution is free to remarry.42

However, it is important to distinguish divorce from ‘annulment’ to avoid any kind of

confusion. Annulment declares the marriage null and void per se.43 It retroactively invalidates

a marriage from the date of its formation.44 Annulling a marriage is as though it stands

completely erased, i.e., the marriage, technically never even existed and was thus, never

valid.45 Whereas on the other hand divorce is the court decree that terminates a marriage.46

35 Supra note 15, pg: , Jai Janak Raj 36 Supra note 15, pg: , Jai Janak Raj 37 Supra note 15, pg: , Jai Janak Raj 38 Supra note 15, pg: 5, Jai Janak Raj 39 Supra note 15, pg: 5, Jai Janak Raj 40 Oxford English Mini Dictionary 41 Supra note 25 42 Supra note 25 43 Retrieved on http://legal-dictionary.thefreedictionary.com/annulment 44 Ibid 45Retrieved on https://www.legalzoom.com/articles/whats-the-legal-difference-between-annulment-and-

divorce. 46 Retrieved on http://legal-dictionary.thefreedictionary.com/divorce

It is important to observe the distinction between ‘Judicial Separation’ and ‘Divorce’. The

former is the last resort before the actual act of legal termination of marriage, i.e., divorce.47

Unlike divorce, wherein the parties no longer have any marital ties attached to each other,

under the decree of judicial separation, the marital status of both the parties is not affected,

however, there is an impact on cohabitation i.e., the party who approached the court after the

pronouncement of the decree of judicial separation, is not obliged to live with his/her spouse.48

A divorce decree establishes the new relations between the parties which is inclusive of their

duties and obligations that they own, support responsibilities of either or both of them and

provisions for children, if any.49 When a marriage breaks up, a decree of divorce a legal

solution for the issue(s) that the parties to the marriage are not able to resolve through mutual

cooperation.50

47 Retrieved on http://lawyerslaw.org/what-is-the-difference-between-separation-and-divorce-under-hindu-law/ 48 Ibid 49 Supra note 46 50 Supra note 46

CHAPTER III

THEORIES OF DIVORCE

Divorce is a dynamic concept and is thus inclusive of various theories. The major theories of

“divorce’ are as follows:

Indissolubility of Marriage Theory: Marriage was considered as an unbreakable tie

between the husband and wife according to this theory. It was a union of bone with

bone and flesh with flesh which meant that it was an eternal tie between a man and a

woman.51 This implies that even if the parties were unhappy with each other, they were

bound for life and there was absolutely nothing that they could do about but to live and

die with each other.52 This particular theory is resonant with Vedic Hindu Laws and

Pre- English Common Law (prior to 1857, the concept of divorce in English Common

Law was non-existent and an act of the Parliament was required to for divorce to be

granted.53)

Will Theory of Divorce: According to this theory, anyone can divorce one’s spouse at

one’s will whenever he/she pleases.54 This theory is recognised by the Mohammedan

law by way of ‘Mubarat’ which literally means ‘obtaining release from each other’.55

It is said to take place when the husband and wife, with mutual consent and desire

obtain release and freedom from their married status.56

Both the indissolubility of marriage theory as well as the will theory are placed at two opposite

extremes.57 In the first case, marriage has been made despotically a prison wherein a spouse

is compelled to bear the yoke of torturous relationship.58 This should not be the case because

marriage is for making a loving home, not a rigorous imprisonment, and there should be an

51 Retrieved on http://shodhganga.inflibnet.ac.in/bitstream/10603/39005/12/12_chapter%204.pdf. 52 Ibid 53 Retrieved on http://www.branchcollective.org/?ps_articles=kelly-hager-chipping-away-at-coverture-the-

matrimonial-causes-act-of-1857 54 Supra note 51 55 Retrieved on http://waqaslaw.com/what-is-mubaraat/. 56 Ibid 57 Supra note 51 58 Supra note 51

escape from strained relation.59 While in the second theory, either party to the marriage may

dissolve it arbitrarily.60

The other theories of divorce are as follows:

Fault/ Guilt/ Offence Theory of Divorce: This theory is essentially a concept evolved

in the 19th century where divorce was abhorred by the society as an evil and was

considered as devil’s mischief.61 The only way the society could agree for divorce was

when one of the parties would commit a sin, i.e., a heinous offence against marriage

or during the subsistence of marriage.62 The offence theory stipulates two things:

i. a guilty party: the party who commits the sin,63 and

ii. an innocent party, who has been outraged64

It is important to note that the innocent party is in no way a party to or responsible for

the offence committed by the guilty party which means that the divorce would not be

granted if it is established that the petitioner is also guilty or was involved in

commission of the crime committed by the respondent. This is known as the ‘Doctrine

of Recrimination’.65 Thus, the petitioner will not be allowed to take advantage of

his/her own wrong.66 The grounds for claiming a divorce under the guilt theory have

been provided under section 13 of The Hindu Marriage Act, 1995.

Frustration of Marriage Theory: There is every possibility the marriage may be

frustrated for a party to the marriage even though the other party is not guilty of any

marital offence.67 This may happen when he/she is suffering from mental unsoundness,

has changed his/her religion or has renounced the world or has disappeared for a very

long time.68 If a party to the marriage prefers to be released from such a fruitless

59 Supra note 51 60 Supra note 51 61 Supra note 51 62 Supra note 51 63 Supra note 51 64 Supra note 51 65 Supra note 51 66 Supra note 51 67 Supra note 51 68 Supra note 51

marriage, they should be allowed to do so.69 The Hindu Marriage Act readily

recognises these grounds as being good for divorce.

Consent theory of Divorce: According to this theory, both the parties to the marriage

should be permitted to dissolve the marriage if they both are in the agreement of the

same.70 Compelling them to cohabit together will only give birth to matrimonial

delinquencies. In addition to saving the parties from moral degradation, in this

procedure, no allegations or counter allegations are levelled against each other.

Divorce by ‘mutual consent’ means that both the parties make a joint petition to the

court for the decree of divorce as there seems to be a genuine desire on both their parts

to get rid of each other.71

Whenever divorce by mutual consent is permitted, it is provided as a pre-condition for

submitting the petition to the court that the parties to marriage must have lived

separately for a considerable period (a year or two).72 Section 13-B of the Hindu

Marriage Act provides for divorce by mutual consent.73

Breakdown Theory of Divorce: the root cause of most social problems can be traced

to maladjusted couples. Many marriages fail not because of the wickedness of one

party or the other, but they just fail.74 Sometimes marriages fail because of selfishness,

boorishness, callousness, indifference and thinks like these on the part of one of the

parties to the marriage.75 All this does not amount to any matrimonial offence yet

remaining bound by marital ties becomes problematic.

Irretrievable Breakdown of Marriage Theory: Irretrievable breakdown of marriage

comes under the breakdown theory where the marriage is supposed to have reached a

point wherein there is complete breakdown of the institution with no scope for retrieval

of that previously existing bond.76 The irreparable nature of the situation gives rise to

69 Supra note 51 70 Supra note 51 71 Supra note 51 72 Supra note 51 73 Supra note 15, pg: 17, Jai Janak Raj 74 Supra note 51 75 Supra note 51 76 Retrieved on http://www.lawctopus.com/academike/irretrievable-breakdown-marriage/.

the alternative of providing the couple an option to leave each other’s company without

bitterness and distress.77 There has been a gradual shift from a fault theory to a no fault

theory.78 Previously, the provision was that after obtaining an order for restitution of

conjugal rights, the party which wronged could not obtain divorce rather only the

person who was wronged could move the court for a divorce order if the restitution

does not get executed.79

The Amendment of 1976 helped introduce the concept of irretrievable breakdown as

it was understood that making the right available only to one party when the marriage

is barely a form with no substance underneath.80 Even though irretrievable breakdown

of marriage has not been stated under Section 13 of the Hindu Marriage Act, 1955 as

a ground for divorce, there have been many judgments which gave decisions based on

the principle.81

In Ajay Sayajirao v. Rajashree Ajay Desai82, the Court had held that when there is no

alleged fault ground proved, relief cannot be granted on ground of irretrievable

breakdown of marriage.83 However, a differing stance was taken in the case of in

Dinesh Kumar Mandal v. Mina Devi84, it was held that a couple living separately for

many years justify the fact that the marriage is broken beyond repair and even though

the alleged ground of adultery was not proven here, divorce was granted.85

Another landmark case relating to the concept is of Naveen Kohli v. Neelu Kohli86,

wherein the Court held that if irretrievable ground for divorce is not taken into

consideration, then the Courts would be unrealistic in their approach which would

result in mechanisation and it would mean that the courts would then have turned blind

towards the feelings of the parties.87

77 Ibid 78 Ibid 79 Ibid 80 Supra note 15, pg: 13, Jai Janak Raj 81 Supra note 76 82 Ajay Sayajirao v. Rajashree Ajay Desai, AIR 2005 Bom 278 83 Ibid 84 Dinesh Kumar Mandal v. Mina Devi AIR 2005 Jhar 77 85 Ibid 86 Naveen Kohli v. Neelu Kohli AIR 2006 SC 87 Ibid

CHAPTER IV

GROUNDS FOR DIVORCE UNDER THE HINDU MARRIAGE ACT,

1955

Position of divorce before the passing of the Hindu Marriage Act, 1995

The concept of Divorce as discussed earlier was unknown and non-existent in traditional

Hindu Laws. This was so because it was considered as an indissoluble tie. It is interesting to

note here that although it was not allowed according to the general Hindu Law, it was

nonetheless recognised in certain castes of Hindu community based upon custom.88 States

such as Madras, Bombay and Saurashtra had their own state laws where divorce was allowed

on certain specified grounds before the Hindu Marriage Act came into existence. While in all

other states, there was no such provision for divorce.89

The need for reforms in the Hindu law of marriage and divorce was felt even during the regime

of the British in India.90 The enlightened and progressive Hindu women clamoured that the

laws of marriage and divorce were quite stringent and caused great hardships.91

A committee under the chairmanship of B.N. Rau was formed in 1941 to submit a report on

the feasibility of codifying Hindu law.92 The drafts report on marriage and divorce were also

accompanied with the report.93 Then, a Hindu code was referred to a select committee and

after numerous changes and suitable amendments, the Hindu code was finally adopted by the

Parliament and the first Act which was passed by the Parliament was the Hindu Marriage Act,

1955.94

88 Hussain Syed Jaffar, Marriage Breakdown and Divorce Law, A Cotemporary Study of U.S.A., U.K. & India,

pg.- 150 Concept publishing Company 1983 89 Ibid 90 Ibid 91 Ibid 92Ibid 93 Ibid 94 Ibid

The Hindu Marriage Act, 1955 is a piece of central legislation which is uniformly applicable

to all Hindus. Section 13 of the said Act deals with the grounds on which Divorce can be

sought by either parties of the marriage.95

Following are the grounds under section 13 (1) on which either party to the marriage are

entitled to seek the decree of divorce:

I. Adultery: Section 13(1)(i) prescribes that a decree of divorce shall be sought on the

ground that the respondent after the solemnisation of marriage, had voluntary sexual

intercourse with any person other than his or her spouse.96 Initially a divorce could be

granted only if such spouse was living in adultery, but in the case of Veera Reddy v.

Kista Amma97, it was held by the court that even a ‘single act’ of adultery would be a

sufficient ground for divorce.98 Subsequently, by the Marriage Laws Amendment Act,

1976, the position under the Hindu Marriage Act changed on the lines of the above

judgement and now even a single act of adultery is considered as enough for the decree

of divorce.99 Thus, the vigour of ‘living in adultery has been reduced. The same was

also held in Sanjukta Pradhan v. Lakshminarain Pradhan100.

Burden of Proof: Adultery is a matrimonial offence as well as criminal one.101 The

burden of proof in a criminal case is stricter because the act is to be proved beyond

reasonable doubt whereas in a matrimonial offence, it is not so strict because the

evidence in this case is based on inferences and probabilities.102

In the case of Hargovind Soni v. Ram Dulari103, the High Court observed that adultery

need not be proved beyond all reasonable doubts, instead, it can be established by

preponderance of probabilities.104 The same was held in Pramila Devi v. Amarjeet

Singh105 wherein the court observed that no ‘direct evidence’ is required to prove the

95 Ibid, pg.- 151 96 Supra note 15, pg: 33, Jai Janak Raj 97Veera Reddy v. Kista Amma AIR 1969 Madras 98 Ibid 99 Retrieved on http://www.lawctopus.com/academike/divorce-under-hindu-law/. 100 Sanjukta Pradhan v. Lakshminarain Pradhan AIR 1991 Ori 39 101 Supra note 15, pg: 34, Jai Janak Raj 102 Supra note 15, pg: 33, Jai Janak Raj 103 Hargovind Soni v. Ram Dulari AIR 1986 MP 57 104 Ibid 105 Pramila Devi v. Amarjeet Singh AIR 2015 Haryana

matrimonial offence of adultery, the existence of circumstantial evidence is

sufficient.106

II. Cruelty: It is a ground for divorce and judicial separation under section 13(1)(ia) and

section 10(1) of the Hindu Marriage Act respectively. Cruelty was defined in Dastane

v. Dastane107 as “Conduct of such character as to have caused danger to life, limb or

health (bodily or mentally), or as to give rise to a reasonable apprehension of such

danger.”108

Cruelty is usually classified into two following categories:

a. Physical Cruelty- Physical violence is relatively easy to determine and the

courts would have no problem to arrive at a decision. Even a single act of

physical violence is enough to come under the purview of cruelty as held in

Marry v. Raghavan.109

b. Mental Cruelty- An act of mental cruelty is far more severe than a physical

cruelty.110 It is also comparatively difficult for the courts to ascertain mental

torture and harassment. In Pravin Mehta v. Inderjeet Mehta111, the court has

defined mental cruelty as ‘the state of mind’.

In Shobha Rani v. Madhukar Reddi112, the court observed that the question

whether a particular act or conduct would amount to cruelty or not would always

depend on the facts of each case, the court further held, the two elements which are

required to be proved are the nature of the cruel treatment and its effect on the

aggrieved party.113

Some Instances of Cruelty are as follows:

false accusations of adultery or unchastity

demand of dowry

refusal to have marital intercourse/children

106 Ibid 107 Dastane v. Dastane AIR 1975 SC 1534 108 Ibid 109 Marry v. Raghavan AIR 1979 MP 40 110 Supra note 15, pg: 37, Jai Janak Raj 111 Pravin Mehta v. Inderjeet Mehta AIR 2002 SC 2528 112 Shobha Rani v. Madhukar Reddi AIR 1988 SC 121 113 Ibid

impotency

birth of child

drunkenness

threat to commit suicide

wife’s writing false complaints to employer of the husband

incompatibility of temperament

irretrievable breakdown of marriage

III. Desertion: Under section 13(1)(ib), a decree of divorce can be obtained from the court

on the ground that the other party has deserted the petitioner for a continuous period

of not less than two years immediately preceding the presentation of the petition. An

explanation after clause (vii) of (13)(1) was inserted by the Amending Act of 1976

which is as follows:

“Explanation- In this sub-section, the expression "desertion" means the desertion

of the petitioner by the other party to the 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 expression shall be construed accordingly.”114

Even before the amendment, in Bipin Chandra v. Prabhavati115, the court had observed

that so far as the deserting spouse is consent two essential conditions must be met to

constitute the offence of ‘desertion’ namely116:

Factum of separation, and

The intention to bring cohabitation to an end (animus deserendi)

Similarly, two elements are essential which are required for the deserted spouse117:

The absence of consent, and

Absence of conduct giving reasonable cause to the spouse leaving the

matrimonial home to form necessary intention aforesaid.

114 Section 13 of Hindu Marriage Act, 1955 115 Bipin Chandra v. Prabhavati AIR 1957 SC 176 116 Ibid 117 Ibid

In the case of Lachman Utmamchand Kirpalani v. Meena118, the judgement in the

above case was reiterated stating that for desertion to be proved, the petitioner has to

prove that he/she was intentionally abandoned without reasonable cause; that there was

no bona fide attempt by the respondent to return; he/she did not provide the respondent

a reasonable cause to stay away etc.119

IV. Conversion or Change of Religion: under section 13(1)(ii), if one of the spouses

adopts another religion, he/she does ceases to be a Hindu. The marriage however would

not stand dissolved merely because the other spouse embraced another religion.120

Also, the spouse who did not change his/her religion is entitled to file a petition for a

decree of divorce on the ground that the other spouse has ceased to be a Hindu by

embracing another religion.121

In the case of Lily Thomas v. Union of India122, the husband of the petitioner had

converted for the sole purpose of marrying another woman without divorcing the

previous one.123 It was pleaded that since he had converted to Islam, he could keep up

to four wives at a time and thus could not be prosecuted for bigamy u/s 494 of the

Indian Penal Code.124 It was further contended that the marriage automatically stood

dissolved u/s 13 of the Hindu Marriage Act because of the conversion.125 The Supreme

Court rejected the two contentions and held that conversion or apostasy does not

automatically dissolve a marriage already solemnised under the Hindu Marriage

Act.126 Section 13 of the act only provides the ground for divorce. Further, if a person

marries a second time during the lifetime of his wife, such marriage apart from being

void u/s 11 and 17 of the Hindu Marriage Act, would also constitute the offence of

bigamy u/s 494 of IPC.127

V. Insanity: If it has been established that the other spouse has been incurably of unsound

mind or has been suffering continuously or intermittently from mental disorder of such

118 Lachman Utmamchand Kirpalani v. Meena AIR 1964 SC 40 119 Ibid 120 Supra note 15, pg: 61, Jai Janak Raj 121 Supra note 15, pg: 61, Jai Janak Raj 122 Lily Thomas v. Union of India AIRR 2000 SC 1650 123 Ibid 124 Ibid 125 Ibid 126 Ibid 127 Ibid

a kind and to such an extent that the petitioner cannot reasonably be expected to live

with him/her, a decree of divorce can be granted by the court.128 The Hindu Marriage

Act goes on to specify the meaning of ‘mental disorder’ under explanation to the

section, which appears as under:

“the expression "mental disorder" means mental illness, arrested or incomplete

development of mind, psychopathic disorder or any other disorder or disability of mind

and include schizophrenia;”129

In the case of Ram Narain Gupta v. Rajeshwari Gupta130, the Supreme Court held that

by merely branding the spouse as schizophrenic is not sufficient to prove mental

disorder for the purpose of divorce u/s 13(1)(iii). The said disease should be such to

justify the reasonable apprehension that it would not be possible or safe for the

petitioner to live the spouse.131

Further, in Nirmala Manohar Jagesha v. Manohar Shivram Jagesha132, the court held

that a few stray instances indicating a petulant behaviour does not amount to mental

disorder for the purpose of section 13(1)(iii) because such alleged mental disorder is

not of such a kind that the petitioner cannot be reasonably expected to live with the

other spouse.133 Also, a decree of divorce would not be granted u/s 13(1)(iii) of the

Hindu Marriage Act where the spouse suffers from curable epilepsy.134

The onus of proof that the respondent is of incurably unsound mind or that he/she is

suffering from a mental disorder lies on the petitioner.135

VI. Leprosy: if a spouse is suffering from a ‘virulent and incurable form of leprosy’, it

would constitute a ground for divorce.136 The petitioner has to prove that his/her spouse

has been suffering from such form of leprosy which is not only ‘virulent’ but also

incurable.137

128 Supra note 15, pg: 65, Jai Janak Raj 129 Section 13 of Hindu Marriage Act, 1955 130 Ram Narain Gupta v. Rajeshwari Gupta AIR 1988 SC 2260 131 Ibid 132 Nirmala Manohar Jagesha v. Manohar Shivram Jagesha AIR 1991 Bom 259 133 Ibid 134 Ibid 135 Supra note 15, pg: 65, Jai Janak Raj 136 Supra note 15, pg: 67, Jai Janak Raj 137 Supra note 15, pg: 68, Jai Janak Raj

VII. Venereal Disease: Venereal disease, if in a communicable form, constitutes a ground

for obtaining a decree of divorce under section 13(1)(v) of the Hindu Marriage Act.138

Thus, the respondent must not only be suffering from a venereal disease, like syphilis,

gonorrhoea etc., but also the disease should be such as to infect others who come in

contact with the infected.139

VIII. Renunciation of the world: Section 13(1)(vi) makes the ‘renouncement of world by

entering any religious order’ a ground for divorce. Modern codified Hindu law lays

down that a spouse may seek divorce if the other party has renounced the world and

has entered a holy order.140 A person who does this is considered as civilly dead. Such

renunciation by entering into a religious order must be unequivocal & absolute.

Supreme Court in Sita Das v. Sant Ram141 held that the renunciation must be complete

and final and must be effected with the ceremonies and rites prescribed by the order

which he enters.142

IX. Presumption of Death: Under the Act, a person is presumed to be dead, if he/she has

not been heard of as being alive for a period of at least seven years. The burden of

proof that the whereabouts of the respondent are not known for the requisite period is

on the petitioner under all the matrimonial laws.143

In view of section 108 of the Indian Evidence Act, 1872, the burden to prove that a

person has not been heard of for more than seven years, is still on the person who

affirms it.144

X. Unavoidable Judicial Separation: Section 13(1A)(i) provides that either of the

parties to a marriage may seek dissolution of marriage on the ground “that there has

been no resumption of cohabitation as between the parties to the marriage for a period

of one year or upwards after the passing of a decree for judicial separation in a

proceeding to which they were parties;”145

However, while availing the ground of divorce provided under this clause, provisions

of section 23(1)(a) have also to be kept in mind, which requires that “the petitioner

138 Supra note 15, pg: 68, Jai Janak Raj 139 Supra note 15, pg: 68, Jai Janak Raj 140 Supra note 15, pg: 69, Jai Janak Raj 141 Sita Das v. Sant Ram AIR 1954 SC 606 142 Ibid 143 Supra note 15, pg: 70, Jai Janak Raj 144 Section 108 of Indian Evidence Act, 18872 145 Section 13 of Hindu Marriage Act, 1955

should not in any way take advantage of his/her own wrong or disability for the purpose

of such relief”.146 Thus, to justify the decree of divorce under the provisions of 13(1)

and 13(1-A) and 23(1) the essentials are147:

i. A decree of judicial separation between the petitioner and the respondent,

whosoever might be the decree holder;

ii. Non-resumption of cohabitation between the parties for a period of one year or

upwards

iii. The petitioner should not be in any way taking advantage of his or her wrong

or disability

iv. Non-existent of any other legal ground warranting refusal of relief prayed.

This clause enables even a defaulting party and not merely an aggrieved party to obtain

a decree for dissolution of marriage.

XI. Non-resumption of cohabitation after passing of a decree for restitution of

conjugal rights: For a period of one year or upwards after the passing of a decree for

restitution of conjugal rights there has been no restitution of conjugal rights between

the parties also constitutes a ground for divorce under of the Act.

Under this clause also, the court would have to consider under section 23(1) whether

the petitioner is taking advantage of his/her wrong in the pleading that there has been

no restitution of conjugal rights after the passing of a decree for that purpose, and thus,

the provisions of section 13(1-A)(ii) are subject to the provisions of section 23(1)(a).

Grounds which are available only to the wife are as follows:

Besides the grounds enumerated above, a wife has been provided four additional grounds of

divorce under Section 13(2) of the Hindu Marriage Act, 1955. These are as follows-

A. Pre-Act Polygamous Marriage: This clause states the ground for divorce as, “That

the husband has another wife from before the commencement of the Act, alive at the

time of the solemnization of the marriage of the petitioner. In the case of Venkatame

v. Patil148 where a man had two wives, one of whom sued for divorce, and while the

146 Supra note 15, pg: 70, Jai Janak Raj 147 Supra note 15, pg: 70, Jai Janak Raj 148 Venkatame v. Patil AIR 1963 Mys 118

petition was pending, he divorced the second wife.149 Consequently, he then averred

that since he was left only with one wife, and the petition should be dismissed. The

Court out rightly rejected this plea.150

Such a ground is available if both the marriages are valid marriages & the other wife (2nd

wife) should be present at the time of filing of the petition. However, today this ground is no

more of practical importance.151

B. Rape, Sodomy or Bestiality: Under this clause, a divorce petition can be presented if

the husband has, since the solemnization of the marriage, been guilty of rape, sodomy

or bestiality.152

C. Non-Resumption of Cohabitation After a Decree/Order Of Maintenance: If a wife

has obtained an order of maintenance in proceedings under Section 125, Cr.P.C., 1973

or a decree under Section 18, Hindu Adoption & Maintenance Act, 1956 &

cohabitation has not been resumed between parties after one year or upwards, then this

is a valid ground for suing for divorce.153

D. Repudiation of Marriage: This provision provides a ground for divorce to the wife

when the marriage was solemnized before she attained the age of fifteen years, and she

has repudiated the marriage, but before the age of eighteen. Such repudiation may be

express (written or spoken words) or may be implied from the conduct of the wife (left

husband & refused to come back). Moreover, this right (added by the 1976

amendment) has only a retrospective effect i.e. it can be invoked irrespective of the

fact that the marriage was solemnized before or after such amendment.154

149 Ibid 150 Ibid 151 Supra note 99 152 Section 13 of the Hindu Marriage Act 153 Supra note 99 154 Section 13 of Hindu Marriage Act

CHAPTER V

NEED FOR THE UNIFICATION OF DIVORCE LAWS IN INDIA

“Justice to all is a far more satisfying way of dispensing justice than justice from case to case”

-Supreme Court in Shah Bano Case

Uniform Civil Code has been very much there in our Constitution as an ardent wish of the

Constituent Assembly and thus, is in no way a new born baby of postmodern constitutional

thought.155

Article 44 of the Constitution of India lays down that the “the state shall endeavour to secure

for the citizens a Uniform Civil Code throughout the territory of India.”156 This article which

is a Directive Principle of State Policy is considered as fundamental to the governance of India.

An onerous duty has been cast on the State by the Constitution towards the fulfilment of the

Directive Principles which the State so far has failed to comply with.157 On the other hand, it

can be noticed that the Courts have been quite diligent and have not hesitated in reminding the

State of its duty and the dire need of the introduction of the Uniform Civil Code.158

UCC came into being in the much debated case of Mohm. Ahmed Khan v. Shah Bano Begum159

wherein the fundamental issue was whether a divorced Muslim woman could claim

maintenance under section 125 of Cr.P.C. or not while it was argued that under Muslim

Personal Law, there was no scope of maintenance after the Iddat period.160 In this case, the

Supreme Court made it very clear that in case of maintenance, which is essentially secular in

nature, the personal laws of any community have no overriding effect and section 125 of

Cr.P.C. would nonetheless prevail.161

The same was reiterated in the case of Danial Latifi v. Union of India162, wherein the

constitutionality of Muslim Women (Protection of Rights) Act was challenged. The Supreme

155 Supra note 15, pg: 3, Jai Janak Raj 156 Constitution of India, pg-76 (Gopal Shankaranarayanan et al. ed., 7th edition. Eastern Book Company

Lucknow) 157 Supra note 15, pg: 146, Jai Janak Raj 158Supra note 15, pg: 146, Jai Janak Raj 159 Mohm. Ahmed Khan v. Shah Bano Begum AIR 1985 SC 945 160 Ibid 161 Ibid 162Danial Latifi v. Union of India (2001) 7 SCC 740

Court held that the Act in question was not unconstitutional as the Act provided that a Muslim

woman is entitled a reasonable and fair provision of maintenance and that it was very much in

the lines of the Shah Bano case. 163

In Sarla Mudgal v. Union of India164, the husband who was a Hindu wanted to convert to Islam

so that he could marry a second time. Kuldip Singh J. drew attention to the fact of the urgent

need of the Uniform Civil Code and that if the husband converted to Islam only for the purpose

to marry again, he shall be liable for bigamy punishable under section 494 of the IPC.165

Further, in the case of Pragati Varghese v. Cyril George Varghese166, the constitutional

validity of section 10 of the indian Divorce Act, 1869 was challenged. A husband u/s 10 of

the said Act canould claim divorce merely by proving that his wife has been guilty of adultery,

the wife was not given a similar right. She was required to prove that her husband was guilty

of incestuous adultery or bigamy with adultery or marriage with another woman, with adultery

or adultery coupled with cruelly or, adultery coupled with desertion. It was further contended

that the aforesaid provisions adversely discriminate them vis-a-vis wives belonging to other

communities. They are, therefore, denied equality before law and hence the provisions are

violative of Article 14 of the Constitution. Consequently, the court struck down Section 10 of

the said Act.167

The root cause why these cases arose in the first place was because of the lack of the Uniform

Civil Code in India.

163 Ibid 164 Sarla Mudgal v. Union of India AIR 1955 SC 1531 165 Ibid 166 Varghese v. Cyril George Varghese AIR 1997 Bom 349 167 Ibid

CHAPTER VI

CONLUSION

No doubt the fundamental of a particular marriage is to stay together, and to provide each other

with warmth and support which is expected by the partners in the marriage.168 But this, does

not always remain the case in each marriage and hence the concept of divorce came into

existence by virtue of which, the parties have the matrimonial remedy to dissolve the

marriage.169

The Hindu Marriage Act, 1955 provides for various matrimonial remedies such as that of

‘Restitution of Conjugal Rights’ as well as ‘Judicial Separation’ which vary in intensity of the

relief granted.170 The said Act recognises ‘divorce’ under section 13 which is the permanent

dissolution of marriage and provides numerous grounds on which either parties to the marriage

are capable of obtaining a decree of divorce as well as the grounds which are solely available

to the wife. It also specifies grounds wherein both the parties can mutually agree to obtain the

decree of divorce.171 In any case, divorce should always be the last resort as all the marital ties

between the parties are severed.

It has been established through a catena of cases that there exists a burning need to unify the

divorce laws in India as such problematic issues would keep arising. To bring uniformity and

equality in the adjudication for the purpose of justice, the unification of the divorce laws is a

prerequisite and unless uniformity is brought, controversies and chaos would always pose a

problem.172

Thus, the hypothesis, “There exists a dire necessity for the unification of the divorce laws in

India” is hence proved.

168 Supra note 15, pg: 16, Jai Janak Raj 169 Supra note 15, pg: 16, Jai Janak Raj 170 Supra note 25 171 Supra note 25 172 Supra note 15, pg: 3, Jai Janak Raj