IT MEANS TERMINATION OF THE RELATIONSHIP BETWEEEN THE 2 SPOUSES.
WHATARE THE GROUNDS>:-
While adultery may not have been recognized as a criminal offence in all countries, the matrimonial offence of adultery or the fault ground of adultery is recognized in most. Even under the Shastric Hindu law, where divorce had not been recognized, adultery was condemned in the most unequivocal terms. There is no clear definition of the matrimonial offence of adultery.
In adultery there must be voluntary or consensual sexual intercourse between a married person and another, whether married or unmarried, of the opposite sex, not being the other’s spouse, during the subsistence of marriage. Thus, intercourse with the former or latter wife of a polygamous marriage is not adultery. But if the second marriage is void, then sexual intercourse with the second wife will amount to adultery. Though initially a divorce could be granted only if such spouse was living in adultery, by the Marriage Laws Amendment Act, 1976, the present position under the Hindu Marriage Act is that it considers even the single act of adultery enough for the decree of divorce. Since adultery is an offence against marriage, it is necessary to establish that at the time of the act of adultery the marriage was subsisting. Also, it follows that unless one willingly consents to the act, there can be no adultery. If the wife can establish that the co-respondent raped her, then the husband would not be entitled to a divorce.
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 which was recorded 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:
Contracting venereal disease
The concept of cruelty is a changing concept. The modern concept of cruelty includes both mental and physical cruelty. Acts of cruelty are behavioural manifestations stimulated by different factors in the life of spouses, and their surroundings and therefore; each case has to be decided on the basis of its own set of facts. While physical cruelty is easy to determine, it is difficult to say what mental cruelty consists of. Perhaps, mental cruelty is lack of such conjugal kindness, which inflicts the pain of such a degree and duration that it adversely affects the health, mental or bodily, of the spouse on whom it is inflicted..’
Some Instances of Cruelty are as follows:
False accusations of adultery or unchastity.
The demand for dowry.
Refusal to have marital intercourse/children.
Nagging for Impotency.
Birth of a child.
The threat to commit suicide. Wife’s writing false complaints to the employer of the husband.
Incompatibility of temperament.
Cruelty leading to Irretrievable breakdown of the marriage.
What does not amount to cruelty:
Ordinary wear & tear of married life.
Wife’s refusal to resign her job.
Desertion per se.
Outbursts of temper without rancor.
Desertion means the rejection by one party of all the obligations of marriage- the permanent forsaking or abandonment of one spouse by the other without any reasonable cause and without the consent of the other. It means a total repudiation of marital obligation. The following 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 parties;
The statutory period of two years must have run out before a petition is presented.
When the other party has ceased to be Hindu by conversion to any other religion for e.g. Islam, Christianity, Judaism, Zoroastrianism, it is a valid ground for divorce.
Insanity as a ground of divorce has the following two requirements-
- i) The respondent has been incurably of unsound mind;
- ii) 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.
At present, it is a ground for divorce if it is communicable by nature irrespective of the period for which the respondent has been suffering from it. The ground is made out, if it is shown that the disease is in communicable form & it is not necessary that it should have been communicated to the petitioner (even if done innocently).
“Renunciation of the world” is a ground for divorce only under Hindu law, as the renunciation of the world is a typical Hindu notion. Modern codified Hindu law lays down that a spouse may seek divorce if the other party has renounced the world and has entered a holy order. A person who does this is considered as civilly dead. Such renunciation by entering into a religious order must be unequivocal & absolute.
Presumption Of Death
Under the Act, a person is presumed to be dead, if he/she has not been heard of as being alive for a period of at least seven years. The burden of proof that the whereabouts of the respondent is not known for the requisite period is on the petitioner under all the matrimonial laws. This is a presumption of universal acceptance as it aids proof in cases where it would be extremely difficult if not impossible to prove that fact. A decree of divorce granted under this clause is valid & effective even if it subsequently transpires that the respondent was, in fact, alive at the time when the decree was passed.
In my viewpoint, Hindus consider marriage to be a sacred bond. Prior to the Hindu Marriage Act of 1955, there was no provision for divorce. The concept of getting divorced was too radical for the Indian society then. The wives were the silent victims of such a rigid system. However, the time has changed; situations have changed; the social ladder has turned. Now the law provides for a way to get out of an unpleasant marriage by seeking a divorce in a court of law