DIVORCE AND ITS PROVISONS UNDER HINDU LAW

Divorce mans to legally dissolve one’s marriage  all mutual obligations and rights of husband and wife cease to exist, In short after a decree of divorce marriage comes to an end and husband and wife are  free to go on their own ways . After divorce parties are once again free to remarry. In Hindu law how divorce can be obtained is discussed as under:

1) Fault grounds-

a) As per Hindu Marriage Act 1955 grounds on which either party may obtain divorce are:

(i) Desertion: Desertion means permanent abandonment of  one spouse by other without any reasonable cause and without the consent of another for a period not less than 2 years. Desertion can be of three types actual desertion or constructive desertion and willful neglect

Actual desertion is when the desertion is intentionally(animus deserdendi) without any reasonable cause and without the consent of the other party but before presenting a petition the statutory period of two years must run out. supreme court in the case of  lachman vs meena 1964  held that desertion is a matter of inference to be drawn from facts and circumstance if each case. There was satisfactory proof besides the factum of desertion , there was animus deserdendi at the time wife left the house the requisite animus continued for a duration of two years before presentation of the petition  wife was held guilty for desertion.

Constructive desertion means “if a  spouse creates  a situation or conducts himself/herself in a manner that the other spouse is compelled to leave the matrimonial home, the  spouse who forced  the other party to leave the house is the deserter and not the spouse who left the matrimonial home” – Savitri Pandey vs Prem Chand Pandey 2002 SC 591.

Willful neglect means when a spouse consciously acts in a reprehensible manner in discharge of his martial obligation or consciously fails in a reprehensible in discharge of his obligation.

(ii) Cruelty: cruelty means causing physical or mental harm to another, especially spouse, in Russel vs Russel 1897 was defined as a character as to have caused danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such  danger. In the case of Jaya Chandra vs Aneel Kaur 2005 supreme court  has observed that the expression “cruelty” has been in relation to human conduct or human behavior to constitute cruelty. The conduct complained of should be grave  for arriving at a conclusion that petitioner spouse cannot be reasonably expected to live with the other spouse. 

(iii) Adultery:  is an act when a married person haves sex with the opposite gender other than the wife or husband, However rape cannot be a ground for divorce. Sexual intercourse  has to be consensual for it to be a legal ground for divorce.

(iv) Insanity: if spouse has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the other person  reasonably cannot be expected to  live with the spouse.   

(v)  Leprosy: leprosy is a contagious disease it was held in the case of  Asha Ram vs Amrat Lal 1977 that the petitioner is required to show that the respondent  has been suffering from virulent and incurable leprosy. Thus two conditions are necessary : it must be (i) virulent and (ii) incurable.

(vi) Venereal Disease : venereal disease  is a ground in a communicable form it doesn’t matter is the disease is curable or was contracted innocently.

(vii) Conversion: if respondent has ceased to be a Hindu by conversion to another religion divorce can be obtained, conversion is necessary mere renouncing of religion will not be ground for divorce as held in the case of Chabdrashekara vs Kulndaivelu 1963 SC 185   .

(viii) Renunciation of the world: when one of the spouse renounces the world by entering into a religious order divorce can be obtained.

 (ix) Presumption of death: As per the evidence act a person is presumed to be dead if he is not heard of as alive for seven years .

b) Grounds on which only wife may obtain divorce:

(i) if husband is found guilty of rape, sodomy or bestiality after the marriage.

 (ii)   if marriage was solemnized before her attaining the age of 15 years. Such a child can opt-out of marriage on the attainment of puberty and can ask the court for repudiation of the marriage after attainment of 15 years of age but before completing 18 years of age.

(iii) If a husband already has a wife before the commencement of the act and after the commencement of the act he gets married to another woman, wives may apply for divorce but wife has to be alive at the time of the presentation of the petition.

(iv) When a decree for maintenance of wife under section 18 of Hindu Adoptions and Maintenance Act, 1956 or An order of maintenance has been passed under section 125CrPC against the husband then The wife has the option to present a petition for divorce if she was living apart and There has been no cohabitation between her and her husband for at least one year after the passing of such decree.

2).Break down grounds:

Either party may present a petition for divorce if there has been no cohabitation as between the parties for minion one year or upward after the passing of decree for judicial separation or  there has been no restitution of conjugal rights minimum one year after the decree for restitution of conjugal right was passed.

3) Divorce by mutual consent: petition for divorce by mutual consent may be presented jointly if they have been living separately for a period of one year, they are not able to live together and they have mutually agreed to live separately. 

CONCLUSION:It can be concluded that divorce puts and end to marriage   and Hindu marriage act sec 13 provides the grounds on which a Hindu can obtain divorce but divorce is  always an last resort when judicial separation or restitution of conjugal rights  no longer seems fit and there is nothing left in a relationship but to part their own ways  and are free to remarry again.