Author: - Nandini Srivastava
3rd Year B.A. LL.B (Hons.)
Manipal University, Jaipur
In India, marriage is a sacrament. The aim of the Hindu Marriage Act, 1955 is to keep the families united but at times it is quite possible then one of the parties to the marriage does any act, omission or conduct which aggrieves the other party to the extent that they no longer want to reside with them. In this situation, the aggrieved party can file either for Judicial Separation or Divorce.
1. JUDICIAL SEPARATION
Section 10 of the Hindu Marriage Act, 1955 states that either of the parties whose marriage was solemnized either before or after this act came into existence, can file for Judicial separation. Judicial Separation, unlike divorce, is a suspension of marriage between the parties. Once the decree is passed, the Petitioner and the Respondent are not bound to reside together and can reconsider their marriage. Both the spouses are not allowed to remarry after obtaining the decree for Judicial Separation.
In India, divorce is still considered evil. It is a taboo. Section 13(1) of the Hindu Marriage Act,1955, presents some grounds on which one of the parties can file for a divorce. The grounds are as follows:
1. ADULTERY: When one of the parties indulges in voluntary sexual intercourse with another person who is not the spouse, it is known as adultery.
- Tripat v. Bimla – The court, in this case, stated that if a married woman absents herself from her husband for 4-6 days in a room and is seen with a total stranger and she has no reasonable justification then it will be assumed that she has had with him sexual intercourse and hence, the husband can file for divorce under the ground of adultery.
2. CRUELTY: If after the solemnization of marriage, one has done cruelty with the other, the spouse can file for divorce. The term ‘cruelty’ is a very broad term and a proper definition for the same cannot be adopted. Cruelty can be both mental as well as physical. Some cases laws for the same are as follows:
- Russell v. Russell – The court, in this case, stated that any conduct which causes danger to life, limb or health of the person whether physical or mental is cruel. Within the ambit of Cruelty, it also includes those conduct which gives rise to fear to the other party that the above-stated danger might happen in the future.
- Jayachandra v. Aneel Kaur  –The court stated that the conduct done by the other party should be grave and weighty to conclude that the Petitioner cannot reasonably be expected to live with the Respondent.
- Suman Kumar v. Sudhir Kapoor  – The court pronounced that Mens Rea is not an important element in cruelty. It is insignificant whether a party to the marriage had the intention to be cruel towards the other party or not.
- Bhagat v. Bhagat– The court defined mental cruelty as a conduct which inflicts mental pain and causes suffering to a person and the act being so cruel that the Petitioner cannot be bound to live with the R The court in various cases prescribed that filing the false case, refusal to indulge in sexual intercourse for a long period, the demand of dowry, torture to their child, refusal to have children when the other party wants to have etc. can also amount to mental cruelty. Each case of cruelty is to be decided individually depending on the facts and circumstances of the case. There can be no watertight definition for this.
3. DESERTION: – The spouse can file for divorce on the ground of desertion when the Respondent has deserted the Petitioner for a continuous period of not less than two years immediately before the Petitioner has filed the petition.
The desertion is of two types which are as follows:-
- Actual Desertion
- Constructive Desertion
For Actual Desertion, the intention to leave the matrimonial home and action for the same must have taken place. If a person has the intention to desert the other spouse but no action for the same has been taken then it will not amount to desertion and if the person has left the matrimonial home for some reason and not to desert the partner then it will also not be desertion.
- Ramesh v. Premlata– A spouse used to go to bed every day thinking that he would abandon the matrimonial home the next day but he never did it. As out of the two, only one element was present hence, it cannot amount to In Constructive Desertion, it is not essential that the partner has to live in the house. Instead, withdrawal from matrimonial obligations is necessary. The court in the case of Bowron v. Bowron pronounced that the party who intends to bring cohabitation to an end and whose conduct has caused the termination of the marriage will be liable. Desertion also includes willful neglect of one party by the other party. It will only be desertion if the party has left without a reasonable cause, against the will of the other party and the period of 2 years has been completed before the filing of the petition in the Court.
4. CONVERSION:- A partner can file for divorce if the spouse has ceased to be Hindu and converted into another religion. In this, both the conditions must be fulfilled. A person who is a Hindu but does not follow his religion or insults its practices or Gods will still be Hindu. He will not cease to be a Hindu only because he does not believe in it. Any person who has started following Sikh, Buddhist or Jain religion will also not cease to be a Hindu because under this Act they are considered a Hindu only. For a person to not be a Hindu, he has to convert into a Muslim, Christian, Parsi or Jew. A person can only convert if he performs the necessary rituals and ceremonies of the religion he wants to get converted into.
5. INSANITY: – It includes a person suffering from an unsound mind which is incurable. A person suffering from continuous mental disorder of such kind or such extent with which the Respondent cannot be reasonably asked to reside with. In the case of Ram Narayan v. Rameshwari, The court prescribed that the Petitioner should not only prove that the other party is suffering from any mental disorder rather it also needs to establish that the condition of the Respondent is such that the Petitioner cannot be reasonably asked to live with him.
6. The spouse is suffering from any communicable venereal disease that means that form of the sexual disease which is communicable.
7. When one of the spouses has renounced the world and joined any religious order.
The Hindu religion divided life into 4 parts as per which the last 25 years should be led as Sanyasi. The person in this not only has to give up his worldly life and longing but also the identity that he had in the Grihastha phase of life. It is considered very noble but yet it is considered as a ground for divorce. It is a ground for divorce because it is considered as an extreme form of desertion by one party of the marriage. For this ground to be applied, it is very necessary that the other party has fulfilled both the requirements that he has renounced the world and as well as joined the religious order. The court in the case of Sital Das v. Sant Ram connoted that a person enters into a religious order only when he has performed the required ceremonies needed to enter.
8. When one spouse does not know about the whereabouts of the other spouse for 7 years and that he is alive for 7 years. The spouse has not even heard that he is alive from those people who would have naturally heard of it.
Both the parties to the marriage will get a divorce if they file a petition for the dissolution of marriage on the ground that there has been no resumption of the cohabitation of the marriage or reinstitution of the conjugal rights for a year or upwards after the decree for the judicial separation or restitution of conjugal rights was passed by the court in which both of them were the parties.
GROUNDS AVAILABLE FOR DIVORCE FOR WIFE: There are certain grounds based on which only a wife can file for divorce which are mentioned below:
A. BIGAMY: The wife can file for a divorce if the husband had committed Bigamy. It is not essential whether the same has been committed before the commencement of the Act or after the commencement of the Act. The vital aspect is that the other wife was present at the time of the filing of the petition. The court in the case of Lalithamma v. Kanna stated that even if the wife knew of the second marriage will not stop her from filing the petition.
B. After the marriage has been solemnized the husband has been guilty of rape, sodomy and bestiality.
C. That in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) [or under the corresponding section 488 of the Code of Criminal Procedure, 1898 (5 of 1898)], a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards;
D. That her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.
3. RESTITUTION OF CONJUGAL RIGHTS: –
Many times, one of the parties may withdraw from the society of another. In this, the aggrieved party can take recourse of Section 9. Section 9 contemplates that when either the husband or the wife withdraws from the society of the other party without any reasonable justification then the other can file a petition in the District Court for restitution of conjugal rights. If the court is satisfied that the statements mentioned in the petition are true and it believes that there is no legal ground as to why the decree of restitution of conjugal rights should be passed then it will pass the same.
The party who has withdrawn has to prove that it has withdrawn due to some reasonable cause. This remedy was initially available in Jewish laws. It was then adopted and made part of the English law and we adopted it from English laws.
The word society is used about cohabitation. The word cohabitation has been taken into views in different ways. In the case of Tirath Kaur v. Kirpal Singh, The court stated cohabitation when both husband and wife live together as in when wife lives under the roof and protection of the husband. This understanding was adopted in many other cases as well. But, this possessed an issue because as per this then none of the parties will be able to live separately even if they are required to do so because of job or any other work. Thus, later on, in the case of Venugopal v. Lakshmi, the court mentioned that withdrawal from society refers to not fulfilling the matrimonial duties which include refusal to stay together, refusal to have marital intercourse, refusal to give company and comfort.
Apart from a valid marriage, a marriage can also be a void marriage or voidable marriage. Section 11 states that if a marriage contravenes any of the conditions mentioned in clause (1), (4) and (5) of Section 5 of the Act then on the petition of either of parties the marriage will be declared null and void.
Clause 1, 4 and 5 prohibits Bigamy, prohibited and Sapindas relationship. Prohibited and Sapindas relationship will not be considered void only if it is allowed in the custom or usage of the parties getting married.
For a person to get convicted of Bigamy the second marriage must be performed with all the required ceremonies. If the required ceremonies are not performed then no matter what the intention of the parties was, no marriage between them will be considered.
Section 12 of the Hindu Marriage Act, 1955 lays down the grounds of a voidable marriage. They are Section 12(1) (a) of Hindi Marriage Act, 1955 talks about impotence. Impotency means lack of ability to perform the sexual act.
In Smt. Suvarna v G.M. Acharya The fact that the husband could not accomplish sexual intercourse with his wife and even till the date of filing of the petition, the virginity of the wife remained intact, the court held that the wife would be entitled to get a decree of nullity. In the case of Rajinder Kapoor v Manmohan Singh, it was observed that refusal by the wife to have sexual intercourse when marriage was against her will and when no medical evidence shows that she is either psychologically or physically incapable of having intercourse then it cannot be held that she is impotent.
Section 12(1) (b) of the Act talks about unsoundness of mind. It says that at the parties to the marriage should not suffer from unsoundness at the time of marriage.
Section 12 (1) (c) refers to consent obtained by fraud or force. Absence of consent makes the marriage voidable. In case either party stays with another party (even though the consent was obtained by fraud of force) for one year or more than no petition for annulling marriage should be made.
In Balbir Kaur v Aghar Singh It observed that at the time of marriage the deformity of the wife was concealed from the husband and his family. This concealment amounted to fraud in so far as husband’s consent was concerned and he was entitled to a decree of nullity of marriage.
In Som Dutt v Raj Kumari it was held that the marriage was liable to be annulled due to gross matrimonial fraud against the husband by his wife in concealing her true age from him and thereby inducing him to marry a woman much older than his age.
Section 12(1) (d) deals with the pregnancy of the bride. The marriage may be annulled by a decree of nullity if the respondent at the time of the marriage is pregnant by some person other than the petitioner.
The petition for annulment shall not be entertained in the court in a situation where the respondent was at the time of the marriage pregnant by some other person other than the petitioner unless the court is satisfied –
- The petitioner was ignorant at the time of marriage.
- The marital intercourse has not taken place since the discovery by the petitioner of the existence of the said ground.
In Mahendra Nanavati v Sushila Nanavati  It was held that the groom had to establish such facts and circumstances as would lead the court either to believe that the respondent was pregnant by someone else at the time of marriage or to hold that the prudent man under the circumstances and on the facts of the cases, would be completely satisfied that it was so. The above mentioned are the matrimonial relief provided under the Hindu Marriage Act, 1955.
 Tripat v. Birmla 1959 J. and K. 72.
 Russell v. Russell (1897) AC 395.
 Jaya Chandra v. Aneel Kumar AIR 2005 SC 534 .
 Suman Kumar v. Sudhir Kapoor 2009 S.C. 589.
 Bhagat v. Bhagat 1994 S.C. 710 .
 Ramesh v. Premlata1979 MP 15
 Ram Narayan v. Rameshwari 1989 SC 149
 Sital Das v. Sant Ram 1954 SC 606
 Tirath Kaur v. Kirpal Singh 1964 Punj 28.
 Venugopal v. Lakshmi 1936 Mad 288 .
 Smt. Suvarna v. G.M. Acharya .
 Babir Kaur v. Aghar Singh AIR 2003 P H 134.
 Som Dutt v. Raj Kumari AIR 1986 P H 191.
 Mahendra Nanvati v. Sushila Nanvati 1965 AIR 364.