Divorce

GROUNDS ON DIVORCE

In India marriage is considered an important ritual, but as per the our Indian culture divorce is not allowed by personal law or as per Manu but Hindu Marriage Act is giving right to couples to get separate from each other if they don’t want to stay together. There are many grounds given by law and Supreme Court Guidelines regarding the divorce.

GROUNDS OF DIVORCE UNDER THE PROVISIONS OF HINDU MARRIAGE ACT

Ø ADULTERY- Section 13(1)(i)

Adultery means voluntary sexual intercourse outside lawful wedlock.

It is for the petitioner to prove that there was a lawful marriage and that the respondent had sexual intercourse with a person other than him/her. Marriage must be subsisting at the time of the act.

In Swapna Ghose v. Sadanand Ghose, the wife found her husband and the adulteress to be lying in the same bed at night and further evidence of the neighbours that the husband was living with the adulteress as husband and wife is sufficient evidence of adultery. The fact of the matter is that direct proof of adultery is very rare.

The offence of adultery may be proved by:

Circumstantial evidence
Contracting venereal disease

Cruelty:

Cruelty either by physical or mental

In Pravin Mehta v. Inderjeet Mehta, the court has defined mental cruelty as ‘the state of mind.’

Grounds for Cruelty:

false accusations of adultery or unchastity
demand of dowry
refusal to have marital intercourse/children
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

Not Considered Cruelty:

ordinary wear & tear of married life
wife’s refusal to resign her job
desertion per se
outbursts of temper without rancor

Desertion:

The act of leaving a person, position, or relationship without giving proper notice or reason, 5 conditions must be present to constitute desertion; they must co-exist to present a ground for divorce:

the factum of separation
animus deserdendi (intention to desert)
desertion without any reasonable cause
desertion without consent of other party
statutory period of two years must have run out before a petition is presented.

In Bipinchandra v. Prabhavati, the Supreme Court held that where the respondent leaves the matrimonial home with an intention to desert, he will not be guilty of desertion if subsequently he shows an inclination to return & is prevented from doing so by the petitioner.

In Suresh Babu v. Leela, the husband converts himself into Muslim and marries another woman. Here the wife Leela filed a case and demanded the divorce on the ground of conversion without her consent and cruelty.

Ø CONVERSION- Section 13(1)(ii)

If any spouse ceases to be Hindu and converts into another religion without the consent of the other spouse, a divorce can be granted.

INSANITY-Section 13(1)(iii)

There are two requirements of insanity as a ground of divorce-

a) The respondent has been of incurable unsound mind
b) Respondent suffering continuously or intermittently from mental disorder of such a kind or extent that it would not be reasonable for the petitioner to continue living with the respondent.

Ø LEPROSY – Section 13(1)(iv) (Omitted)

Leprosy was earlier one of the grounds of divorce is now omitted. The Law Commission in its report had recommended repeal of any provision which were discriminatory against leprosy-affected people. India is also a signatory to a UN Resolution which calls for the elimination of discrimination against persons suffering from leprosy. Parliament on 13^th February 2019 passed, Personal Law Amendment bill removing leprosy as a ground for divorce under five personal laws including the Hindu Marriage Act.

Ø VENEREAL DISEASE –Section 13(1)(v)

A sexually transmitted disease that is incurable and transmittable forms a ground of divorce, if either of the spouses is suffering from any such disease. A disease like AIDS is called venereal disease.

Ø RENUNCIATION -Section 13(1)(vi)

When one of the spouses decides to renunciate the world and enters a holy order, then the other spouse can file a divorce petition. Renouncement of the world by entering any religious order must be absolute. It amounts to civil death and has the effect of excluding a person from inheritance and the right to partition.

Pre-Act Polygamous Marriage:

This clause defines the grounds for divorce as “that the husband has another wife from before the start of the Act who is alive at the time of the petitioner’s marriage.” Venkatame v. Patil, where a man had two wives, one of whom sued for divorce, and while the petition was pending, he divorced the second wife. He then averred that since he was left only with one wife, and the petition should be dismissed. The Court rejected the plea. 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.

Ø PRESUMPTION OF DEATH- Section 13(1)(vii)

If a person has not been heard of as being alive for at least seven years, by those persons who would naturally have heard of it, had that party not been alive, this is a legal presumption of death.

This presumption may be rebutted if a person has not been heard of for the last 7 years due to special circumstances such as absconding on a charge of murder.

SECTION 13(1A)(i) – NON-COMPLIANCE WITH DECREE OF JUDICIAL SEPARATION

If there has not been any resumption of cohabitation between the couple even after one year has elapsed since the passing of the decree for judicial separation, a spouse can present a divorce petition. Resumption of cohabitation simply means living together in a conjugal relationship.

The court will grant a decree for divorce under 13(1A) if there is no bar as laid down in section 23 of HMA.

SECTION 13(1A)(ii) -NON-COMPLIANCE WITH DECREE OF RESTITUTION OF CONJUGAL RIGHTS

Restitution of conjugal rights means restoration of marital obligations. If there has not been any resumption of conjugal rights for one year after the passing of a decree under section 9 of the act, then either of the spouses may present a divorce petition.

The court before granting a decree for divorce on this ground may be satisfied that the petitioner is not disentitled to this right because of any bar laid down in s. 23 of the Act.

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 and Maintenance Act, 1956 and cohabitation has not been resumed between parties after one year or upwards, then this is a valid ground for suing for divorce.

Repudiation Of Marriage:

This provision allows the wife to divorce if the marriage was solemnised before she reached the age of fifteen and she renounced the marriage before reaching the age of eighteen. Such rejection can be expressed verbally or in writing, or it can be inferred from the wife’s actions (leaving husband and refusing to return). Furthermore, this right (added by the 1976 amendment) has only a retroactive impact, which means that it can be used regardless of whether the marriage was solemnised before or after such amendment.

Procedure to approach for Divorce:-

The divorce process in India signifies the legal termination of a marriage. It’s a life-altering decision that impacts not only the couple but also their families and the society around them.

Legally it act like formal dissolution of marriage for their rights and responsibilities but it is also a bi heavy weight for family. We leaving in India where rituals and Rites is the significance of Indian culture and Marriage is base of our society, and when the married couples are going to approach for divorce families facing issues, inrespect of child custody,or maintenance part and the stigma on the reputation of family in the society.

Financially, it involves the equitable division of assets and liabilities, preventing undue financial burdens. In matters of child custody and support, the court’s focus is on the best interests of the child, ensuring their well-being and access to both parents. Ultimately, it serves as both a legal and emotional compass guiding individuals toward a new and hopeful future.

DOCUMENTS REQUIRED FOR DIVORCE

Marriage Certificate: A copy of the marriage certificate is essential to prove the existence of the marital relationship.

Address Proof: Both spouses are usually required to provide address proof, such as a copy of their Aadhaar card, passport, voter ID, or driver’s license.

Identification Proof: Identification documents, such as a copy of the Aadhaar card, passport, voter ID, or PAN card, are generally required.

Photographs: Recent passport-sized photographs of both spouses may be needed for court records.

Income and Financial Documents: Income and financial documents, including salary slips, bank statements, income tax returns, and property documents, may be necessary, especially when discussing issues like alimony and property division.

Proof of Residence: Evidence of the place of residence of both spouses, such as utility bills or rental agreements, may be required.

Evidence of Grounds for Divorce: Depending on the grounds for divorce (e.g., cruelty, adultery, desertion), evidence supporting the claim may be necessary. This can include photographs, witness statements, or other relevant documentation.

Children’s Birth Certificates: If there are children from the marriage, their birth certificates may be required for custody and child support matters.

List of Streedhan: In some cases, a list of “streedhan” (personal belongings and gifts given to the wife during marriage) may be needed for property division.

Copy of Divorce Petition: If you are the petitioner (initiator) of the divorce, you will need copies of the divorce petition and other related documents.

Receipt of Court Fees: Proof of payment of court fees for filing the divorce petition is typically required.

Additional Documents: Depending on the specific circumstances of the case, other documents may be requested by the court or your lawyer.

CONCLUSION

If we go with Hindu rituals so, there is no any divorce provision because as per our hindu rites and rituals Marriage may be dissolved by mutual consent in the case of an unapproved form of marriage, according to Kautilya’s Arthashatra. Manu, on the other hand, does not believe in the end of marriage. He declares” let mutual fidelity continue till death; this, in brief, may be understood to be the highest dharma of the husband and wife.”

Advocate Shruti Mishra