What is divorce/judicial separation? Explain the grounds on which a Hindu marriage can be dissolved? [ A.P.P.S.C 2007 ]

Divorce:

S. 13 of HMA, 1955 deals with divorce. A divorce decree has the effect of dissolving the marriage by putting an end to the marriage ties and the separation is absolute and final.

 

Judicial separation:

S. 10 of HMA, 1955 deals with Judicial Separation.   Parties may separate from

each other under a decree of the court known as judicial separation .     Separation of

parties means separation from bed and board.     During the continuation of separation,

parties are entitled to live separate from each other and all basic marital obligations

remain suspended.    Nonetheless, the marriage subsists and parties remain husband

and wife.     It affords an opportunity for reconciliation and adjustment as the wronged

spouse may not seek relief by way of dissolution of marriage.    Where there is no

reconciliation and cohabitation is not resumed it serves after one year of the passing

of the decree as the basis for the dissolution of the marriage by a decree of divorce u/S.

13(1A).

 

Procedure:

Either party to a marriage can present a petition in a District Court for divorce or judicial separation as the case may be on any of the grounds mentioned in S. 13(1) and furthermore in case of a wife also on any of the grounds specified in S. 13(2) of the Act.

 

Grounds on which a Hindu marriage can be dissolved:

1)    Grounds available to either party:

i)    Adultery, S. 13(1)(i)

ii)     Cruelty, S. 13(1)(ia)

iii)     Desertion, S. 13(1)(ib)

iv)    Ceased to be a Hindu by conversion, S. 13(1)(ii)

v)    Unsoundness of mind, mental disorder, S. 13(1)(iii)

vi)    Leprosy, S. 13(1)(iv)

vii)     Venereal disease, S. 13(1)(v)

viii)     Adoption of religious order, S. 13(1)(vi)

ix)    Not heard of for 7 years or more, S. 13(1)(vii)

 

2)    Grounds additionally available to wife:

i)    Bigamy, S. 13(2)(i)

ii)     Guilty of rape, sodomy or bestiality, S. 13(2)(ii)

iii)     Decree or order of awarding maintenance, S. 13(2)(iii)

 

iv)    Repudiation of marriage, S. 13(2)(iv)

 

(i)     Adultery:

Adultery is defined as consensual sexual intercourse between a married person and another person of the opposite sex during the subsistence of the marriage.

In Subbaram Reddiar vs. Saraswati, the husband returned home late night and found his wife with other person in his bedroom. The Madras HC held that adultery maybe inferred unless the act can be explained by explanation.

 

S. 23(1)(b) lays down that condonation of adultery is an absolute bar to granting of any relief by way of judicial separation u/s. 10 or by way of a divorce u/s. 13(1)(i).

 

In Srivastava vs. Srivastava, the Hon’ble SC held that the fact that the husband cohabited with the wife even after knowledge that she had been guilty of cohabiting with another person would be sufficient to constitute condonation.

 

(ii)     Cruelty:

The legal conception of cruelty and the kind of degree of cruelty necessary to amount to a matrimonial offence has not been defined by any statute of the Indian legislature relating to marriage and divorce.

In A. Jaya Chandra vs. Aneel Kaur, the Hon’ble SC has held that the word cruelty used u/S. 13 of HMA, 1955 refers to human conduct/behaviour and such conduct should be grave and weighty where the other party cannot be reasonably expected to cohabit with the respondent.

 

Cruelty includes cases of physical as well as mental cruelty and cases where both the elements are present.

In Savithri Pandy vs. Premchandra Pandey, (physical cruelty), the Hon’ble SC has observed that cruelty consists of acts which are dangerous to life, limb or health. Cruelty for the purpose of the Act means where one spouse has treated the other and manifested such feelings towards him/her as to have inflicted bodily injury or caused reasonable apprehension of bodily injury, suffering or to have injured health.

 

In Dastane vs. Dastane, (mental cruelty), the husband filed a petition for judicial separation on the ground of cruelty. The allegation was that the wife was continuously threatening the husband that she will put an end to her life or set the house on fire. She was also abusing her husband and his parents.

 

The Hon’ble SC held that it amounts to cruelty by observing that with the conduct of such type the petitioner cannot be expected to live with her.

 

The following instances have been held by the courts to be cruelty:

a)    Imputing unchastity to the wife

b)    Frequent demands for dowry

c)    Exposing wife to insulting behaviour of husband’s relations is mental cruelty.

d)    Impotency of husband

e)    Wife leaving for her father’s place w/o informing the husband and his family members.

f)    Wife threatening husband to burn herself and bring husband into trouble with police is legal cruelty.

g)    Wife failing to see husband in hospital undergoing treatment for several months after an accident is cruelty.

h)    Act of violence resulting in injury to body, limb or health or causing reasonable apprehension

i) Causing injury to private parts

 

What is not cruelty?:-

Cruelty has to be distinguished from normal wear and tear of marriage like for instance:-

a)    That the wife smokes;

b)    That the wife is illiterate

c)    Taking of a job elsewhere by wife per se due to husband not taking care of her

d)    refusal to give up a job

e)    Calling husband dhobi/son of dhobi

f)    Reluctance of working wife to do household chores.

 

(iii)     Desertion:

 

The expression desertion in the context of matrimonial law represents a legal conception and is very difficult to define. The essence of desertion is the forsaking and abandonment of one spouse by the other without reasonable cause and without the consent or against the wish of the other. It is withdrawal not from a place but from a state of things.

 

The essential ingredients of offence which may furnish a ground for relief

are:

(i)     Factum of separation and

(ii)     The intention to bring cohabitation permanently to an end - animus deserendi

(iii)   The element of permanence which is a prime condition requires that both these essential ingredients should continue during the entire statutory period of not less than 2 years immediately preceding the presentation of the petition.

 

Similarly, 2 elements are essential so far as the deserted spouse is concerned:

(i)     The absence of consent and

(ii)     Absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid.

 

(i)     Factum of separation:

In Wanbon vs. Wanbon, both parties lived as one household but wife refused to perform her wifely duties and never addressed a word to her husband except to find some fault with him.

It was held that the wife was guilty of desertion though both wife and husband lived as one household.

 

The Explanation to the section adds wilful neglect of the petitioner and its grammatical variations and cognate expressions.

In Geeta Jagdish Mangtani vs. Jagdish Mangtani, the Hon’ble SC has held that even though the wife knew about husband’s earning prior to marriage, she after having left her matrimonial home after 7 months of marriage and giving birth to a child and continuing with her teaching job clearly established animus deserendi and proved desertion by her wilful neglect and granted a divorce decree to the husband.

 

(iv)     Ceased to be a Hindu by conversion:

A person does not cease to be Hindu merely because he declares that he has no faith in his religion or does not practice his religion or renounces his religion or has an unorthodox life so much so even if he eats beef and insults all Hindu gods and goddesses or expresses his faith in another religion and even starts practising another religion. Such a person will continue to be a Hindu. Thus, ceasing to be Hindu is hardly material except in the context of conversion as observed by the Apex Court.

 

Similarly, a Hindu does not cease to be a Hindu if he converts to either Buddhism, Jainism or Sikhism because u/S.2 of the Act all the aforesaid religions are considered to be Hindus only.

 

When a person ceases to be a Hindu by conversion is, if he abdicates his religion by a clear act of renunciation and adopts the other religion i.e., the non-Hindu faith such as Christianity/Islam/Zoroastrianism by undergoing formalities prescribed the faith to which he seeks conversion.

 

(v)     Has been incurable of unsound mind or suffering from mental disorder: 

       The question of mental capacity of the spouses affecting formation of marriage is dealt u/s.5(ii). this section deals with supervening unsoundness of mind and also mental disorder of the nature mentioned in the Explanation. The unsoundness of mind must be incurable . The mental disorder must be of such a kind and to such an extent that the petitioner cannot be reasonably expected to live with the respondent.

The term “mental disorder” has been very widely interpreted so as to include mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia.

 

(vi)     Incurable and virulent leprosy:

Leprosy is no more a ground for decree of dissolution of marriage under the HMA, 1955 as it is omitted by the Personal Laws (Amendment) Act, 2019.

 

(vii)     Has been suffering from venereal disease of a communicable form:

Venereal diseases are only such diseases which are communicated by sexual intercourse.. Syphilis and gonorrhoea are considered as venereal diseases. The section requires that the disease must be in a communicable form.

The petitioner may not be forced to subject himself/herself for medical examination to determine if the disease has been contracted from the petitioner, but on his/her refusal the court may draw an inference against him/her and may refuse to grant the relief u/S. 23 of the Act.

 

VDs as evidence of adultery/cruelty and as a ground for leaving the other spouse is considered under those headings.

 

(viii)     Has renounced the world be entering any religious order:

Under Hindu law, when a person enters into a religious order renouncing all worldly affairs, his action is tantamount to civil death. The religious orders contemplated include those of Hindus, Buddhist, Jainas and Sikhs.

The religious orders well-known in India require on the part of a person who wants to enter the same the performance of certain ceremonies or certain formalities. The religious order should be one that requires renunciation of the

world.    This postulates relinquishment of all property and worldly concerns.

Renunciation must be unequivocal and absolute.

For instance, a person who wants to renounce the world by becoming a sanyasi can be held to have entered that order only if he has performed the necessary rites and ceremonies prescribed by the shastras.

 

(ix)     Has not been heard of as being alive for a period of seven years or more:

It is a rule of presumption that in the absence of evidence to the contrary a person shall be taken to be dead if he has not been heard of for a period of seven years or more by those persons who would naturally have heard of him had he been alive.

This is a presumption of universal acceptance as it aids proof of death in cases where it would be extremely difficult if not impossible to prove that fact. It is a presumption of great convenience and S. 108 of The Indian Evidence Act, 1982 lays it down as a distinct rule.

The standard of proof is laid down in S. 23 of HMA, 1955 and the court will grant a decree only if it is satisfied that reasonable grounds exist for acting on the presumption of death of the respondent. A decree of divorce granted on this ground is valid and effective even if it subsequently transpires that the respondent was in fact alive when the decree was passed.

 

Grounds available to wife only, S. 13(2), HMA, 1955:-

(i)     Husband having more than one wife alive; marriage solemnised before commencement of the Act.

This ground had great significance when the Act came into force and sometime thereafter but now after 63 years this ground has only historical significance.

 

In Mandal Naganna vs. Lakshmi Bai, the Court observed that where the wife presents a petition u/s. 13(2) of the Act for divorce on the ground that her husband had married again and the fact was that he has divorced the second wife subsequent to the filing of the petition there was no ground for dismissing the petition.

 

(ii)   Guilty of rape or sodomy or bestiality: 

Rape:

A man is said to commit rape when except in certain cases he has sexual intercourse with a woman under any of the following situations:

a)    Against her will

b)    Without her consent

c)    With her consent but it was obtained by putting her or any person in whom she is interested in fear of death or of hurt

d)    With her consent where the man knew that he was not her husband

e)    With or without her consent where she was under 16 years (S.375, IPC)

 

A sexual intercourse by a man with his own wife the wife not being 15 years of age is not rape. But, where a wife obtains a decree of judicial separation or an order for separate maintenance, her consent to martial intercourse is thereby revived and as such any act of sexual intercourse thereafter by the husband with the wife by force amounts to rape.

Sodomy:

It generally means unnatural sexual offence against man, woman or animal. A person who voluntarily has carnal intercourse against the order of nature with any man, woman or animal is punishable u/S. 377, IPC.

 

Bestiality:

It ordinarily means an act relating to a beast. Dictionary meaning of the word is a sexual relation between a human being and lower animal.

 

(iii)     Award of Maintenance:

Where in a suit u/s.18 of Hindu Adoptions and Maintenance Act or in a proceeding u/s.125 of CrPC, a decree or an order is passed against the husband awarding maintenance to the wife and since then the parties have not cohabited for a period of one year or more, the wife is entitled to present a petition for divorce.

 

(iv)     Marriage with a girl below 15 years of age:

Where a marriage is solemnised with a girl before she attained the age of 15 years and she has repudiated the marriage after attaining that age but before attaining the age of 18 years the wife will have the right to present a petition for divorce.

 

In Bathula Ilahi vs. Bathula Devamma, the wife had repudiated the marriage before attaining the age of 15 years because after living with her husband for sometime she realized that it would be difficult and dangerous to live with him anymore and she filed a petition before the court.

The court held that even though the petition has been presented after passing the age of 18 years, it would be allowed in the wake of reasonable explanation for the delay.

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