Divorce Under Hindu law

The provision related to the concept of divorce was introduced by the Hindu Marriage Act, 1955. The Hindu Marriage Act defines divorce as a dissolution of the marriage. For the interest of the society, the marriage or the marital relationship needs to be surrounded by every safeguard for the cause specified by law. Divorce is permitted only for a grave reason otherwise given other alternative.

Theories of Divorce

Fault Theory

Under this theory, marriage can be ended when one party to the marriage is responsible or liable for the offence under matrimonial offences done against another spouse. Only the innocent spouse can seek this remedy. The only drawback of this theory is when both the spouse are at fault, then no one can seek these remedy of divorce.

Mutual Consent

Under this theory, the marriage can be dissolved by mutual consent. If both the spouse mutually gives their consents to end the marriage, they can take the divorce. But many philosophers criticise this theory as this concept is immoral and leads to hasty divorce.

Irretrievable Breakdown

According to this theory, the dissolution of marriage happens due to failure of the matrimonial relationship. The divorce can be taken by the spouse as a last resort i.e. when both of them are not able to live together again.

The Hindu Marriage Act is based on the fault theory in which any one of the aggrieved spouses (Section 13(1)) can approach the court of law and seek the remedy of divorce. Section 13(2) provides the grounds on which only the wife can approach the court of law and seek the remedy of divorce.

Grounds of Divorce as per The Hindu Marriage Act

Adultery-

The concept of Adultery may not be considered as an offence in many countries. But as per the Hindu Marriage Act, in the matrimonial offence, the adultery is considered as one of the most important ground for seeking divorce. Adultery means the consensual and voluntary intercourse between a married person with another person, married or unmarried, of the opposite sex. Even the intercourse between the husband and his second wife i.e. if their marriage is considered under bigamy, the person is liable for the Adultery.

The concept of Adultery was inserted under the Hindu Marriage Act by the Marriage Laws Amendment Act, 1976.

Cruelty-

The concept of cruelty includes mental as well as physical cruelty. The physical cruelty means when one spouse beats or causes any bodily injury to the other spouse. But the concept of mental cruelty was added as the spouse can also be mentally tortured by the other spouse. Mental Cruelty is lack of kindness which adversely affects the health of the person. Well it is easy to determine the nature of physical cruelty but difficult to say about mental cruelty

  • What is considered as Mental Cruelty against Husband by wife:
  • Humiliating the husband in front of his family and friends.
  • Undertaking the termination of pregnancy without husband consent.
  • Making false allegation against him
  • Insanity

    Insanity means when the person is of unsound mind. Insanity as a ground of divorce has the following two requirements-

    • The respondent has been incurably of unsound mind.
    • The respondent has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

      Leprosy-

      Leprosy is an infectious disease of the skin, mucous membranes, nervous system etc. this disease is transmitted from one person to another. Thus it is considered as the valid ground for divorce.

      Renunciation-

      It means when one of the spouses decide to renunciate the world and walk on the path of the God, then the other spouse can approach the court and demand the divorce. In this concept the party who renunciates the world is considered as civilly dead. It is a typical Hindu practice and considered as a valid ground for divorce.

      Presumption of Death-

      In this case, the person is presumed to have died, if the family or the friends of that person does not hear any news about the person alive or dead for seven years. It is considered as the valid ground for divorce, but the burden of proof is on the person who demands the divorce.

      Concept of Divorce with Mutual Consent-

      As per Section 13B, the person can file the petition for divorce by mutual consent of both the parties. If the parties want to dissolve their marriage as a mutual consent are required to wait for one year from date of marriage. They have to show that they are living separately for one or more year and not able to live with one another.No petition for Divorce within one year of Marriage

      As per Section 14, no Court will entertain the petition of divorce within the one year of the marriage. But can be entertained if the matter is related to bigamy, and where the consent of the spouse was taken through misrepresentation, fraud, undue influence etc.

      Remarriage of Divorced Person-

      As per Section 15, after the marriage gets dissolved and no further petition was filed by any of the spouses against the order of the court and the time for appeal has expired. At that time it is assumed that both the spouse are satisfied. Then only the divorced person can marry again.

      Conclusion-

      The Hindu Marriage Act, 1955 provides various provision regarding divorce. The Hindu Marriage Act defines “Divorce as a Dissolution of Marriage”. The main three theories related to divorce are Fault Theory, Mutual Consent Concept, and irretrievable theory. In India, the Fault theory works in the matter of the divorce. Under this theory, marriage can be ended when one of the spouses is responsible or liable for the offence under matrimonial offences. The innocent spouse can seek the remedy of divorce. Under the Hindu Marriage Act, the basic grounds on which the Hindu women can seek the remedy of divorce are Adultery, Desertion, Conversion, Leprosy, Cruelty etc. But many philosophers criticise the concept of Divorce. The Hindu married women can also apply for the maintenance under section 125 of the Criminal procedure code. So the spouse who is innocent can approach the court and can seek the remedy of divorce.

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