Before entering into the subject topic we have to first understood what is the meaning of divorce and divorce in Hindu law.
What is the meaning of Divorce in Hindu law?
Divorce is the termination of marriage. Means Cessation (समाप्ति; विराम) of matrimonial( वैवाहिक) bond. A decree of divorce puts an end to marital bond and parties no longer remain spouse.
Divorce was unknown to old Hindu Law but the concept of divorce introduced in the Hindu Marriage Act 1955 for the first time.
What are ground the divorce can executed according to Hindu law?
According to Hindu law the ground on which the divorce can be done , the important section in which it falls are :-
- Section 13(1) 8 grounds.
- Available to spouse.
- Section 13(1-A) 2 grounds.
- It is available for spouse.
- Section 13(2) 4 ground.
- This ground only available to wife.
- Judicial ground
- Irretrievable break down of marriage.
- Divorce by mutual consent.
According section 13(1) 8 grounds are in which divorce can be ,adultery, cruelty, desertion, conversion, unsoundness of mind, venereal diseases, Missing to 7 year or above(presumed as death).
Before 2019 there were 9 ground on which the divorce can be done.
Divorce can be on basis of adultery?
Divorce can be done on the basis of adultery as per section 13(1)(i) the important essential of this ground are:-
- Single act of adultery is sufficient to take divorce. Applicable to spouse.
- After solemnization of marriage if the adultery performed by spouse, it does not count the previous means before marriage solemnization.
- Voluntary sexual intercourse means there no other involvement forcefully such as by intoxication etc.
Case of adultery Joseph shine v. Union of India
In this case it was held that adultery has been declared unconstitutional but the court has expressly held that it will remain a ground for matrimonial case.
On the basis of Cruelty divorce can be?
Meaning of Cruelty any unreasonable conduct which cause pain and suffering that person cannot reasonable accepted to live with the person practicing cruelty.
Cruelty not only on the basis of physical but also it contains mental Cruelty elements both are any one is sufficient for divorce.
In general Cruelty means a creation of some apprehension such creation where in reasonable apprehension in the mind of spouse that it remain unsafe to stay together with the other spouse.
The test is that of reasonable person that is weather a reasonable person in same circumstances would believed that it would be dangerous to continue to stay with other spouse.
Cruelty cannot only caused not by actual physical violence rather it can also be cause mentally by creating some fear in mind of spouse.
In any marriage the spouse concern may condom the wrong committed by others spouse, but that in itself would not mean that the spouse had given to the other the licence to do wrong again even if the early cruelty was condemned if the spouse does cruelty again that can be made ground for divorce.
Duty of the court in Cruelty ground divorce
The duty of the court is to first try and bring about a reconciliation between the spouse (Section 23) and it can do that by the process of mediation, it is only when the said reconciliation is impossible that the court shall have for divorce.
When the court conduct proceeding of divorce petition on the ground of cruelty, it Shall not be looking for an ideal spouse .
The court shall not be philosophical while dealing with the matter it should be practical and understand that there may be temperamental between spouse.
Five test laid down in determinant whatever a given conduct amount to Cruelty in legal
- The alleged act constituting cruelty should be proof according law of evidence.
- There should apprehension in petitioner mind of real injury or harm from such conduct.
- The apprehension should be reasonable having regard to socio economic and distraught physical condition of the parties.
- The petitioner should not have taken advantage of his position.
- The petitioner should not by his or her conduct have condemned the act of cruelty.
Is Cruelty defined in Hindu Marriage Act ?
Cruelty not defined anywhere in the Hindu Marriage Act, the cruelty first decided in case name Russell v. Russell in which cruelty was defined for the first time as a conduct of such character as to have caused danger to life Limbs or health body or mental or give rise to a reasonable apprehension of such conduct.
Dastane v. Dastane case of Cruelty
Changing dimension of Cruelty in Dastane v. Dastane, Supreme Court held that cruelty includes both physical and mental cruelty, however mental cruelty was limited to apprehension of physical violence only.
Manisha tyagi v. Deepak kumar Cruelty case
To constitute cruelty it is not required that the respondent should have acted in such a manner so as to make the petitioner apprehended physical danger.
Shobha rani v. Madhukar reddy Cruelty case
In this case Shobha Rani vs Madhukar Reddy Supreme Court held that demand for dowry also constitute under cruelty.
Suman kapoor v. Sudhir kapoor Cruelty case
Supreme Court held that mens rea is not an essential element of cruelty, relief cannot be denied on the ground that there was no intention to cause cruelty.
On the basis of Desertion divorce can be, section 13(1)(i-b) of Hindu Marriage Act
Section 13(1)(i-b) of Hindu Marriage Act talks about the desertion that withdrawal from matrimonial obligations.
Means Without any reasonable cause or without any consent of the parties they want to separate from their marriage.
There are mainly 2 types of desertion 1) actual-physical staying away. 2) Constructive – not performing conjugal duties.
Essential of Desertion of marriage are as:-
- There is an element of separation.
- Intention to stop performing conjugal duties.
- Without any reasonable cause.
- Without consent of other party.
On the ground of Conversion Section 13(1)(ii) of Hindu Marriage Act
Section 13(1)(ii) of Hindu Marriage Act talks about the divorce on the ground of conversion.
- Either spouse ceases to be a Hindu by conversion.
- Conversion itself does not result into divorce.
- After conversion until suit of dissolution will not be filed in court and until the decree of the suit, they remain spouse. After decree they separate.
- Right to file for divorce under this ground is only available to non converting spouse.
On the ground of Unsoundness of mind section 13(1)(iii) of hindu marriage act
Under section 13(1)(iii) discussed about the ground of divorce on Unsoundness of mind in Hindu Marriage Act.
In this case of matter the petitioner has to prove the unsoundness of mind of respondent that:-
- Respondent is suffering from incurable unsoundness of mind.
- Nature of Unsoundness is such that the petitioner cannot reasonable expected to live with the respondent.
leprosy, Section 13(1)(iv) of hindu marriage act , removed
Section 13(1)(iv) of hindu marriage act that deal with leprosy- removed after Personal Law (amendment) act 2019.
Leprosy is a chronic, curable infectious disease mainly causing skin lesions and nerve damage.
Leprosy is caused by infection with the bacterium Mycobacterium leprae. It mainly affects the skin, eyes, nose and peripheral nerves.
Venereal disease ground of divorce Section 13(1)(v) of hindu marriage act
Section 13(1)(v) deal with venereal disease in this ground of divorce the respondent suffering from this venereal disease in communicable form.
Venereal disease is the disease caused by sex with any person who have it.
On the ground of Renunciation divorce Section 13(1)(vi) hindu marriage act
Section 13(1)(vi) talks about the Renunciation can be the ground of divorce in Hindu Marriage Act.
Renunciation in which respondent has renounced the world by entering into religious order. Means discharge himself/ herself from all binding relationship, such as sage, saint, wiseman etc.
Missing from 7 year or above can be ground of divorce Section 13(1)(vii) hindu marriage act
Missing from 7 year or above can be ground of divorce and no one have knowledge of that person is lived or not, so in this case it presumed as death of that person.
Judicial separation decree section 10 hindu marriage act
Section 10 talk about the Judicial separation decree , ground of divorce when:
- No resumption of cohabitation for 1 year or more after passage of degree of judicial separation, then its ground of divorce.
- Means they remain spouse but after judicial separation degree passed by court, they are not bound to perform their conjugal duty.
- No restitution of conjugal rights between the parties for 1 year or more after passing of decree of restitution of conjugal rights.
- Under section 9 restitution of conjugal right passed —No compliance by respondent —1 year or more — u/s 13(1-A)(ii). become ground of divorce.
This ground of divorce under section 13(1-A)(ii) applicable to spouse.
Grounds only available to wife Under section 13 (2) hindu marriage act
- Under section 13 (2) ,
- Bigamy,
- rape,
- sodomy,
- bestiality,
- option of puberty,
- Non resumption for 1 year or more after decree for maintenance.
Bigamy ground of divorce
- Wife was married before commitment of this act.
- Respondent married again before commencement of this act.
- At the time of Bigamy marriage any of his previous wife was alive.
Rape, sodomy, bestiality ground of divorce
If the husband found guilty of rape, sodomy, bestiality, then the wife can file a petition and get divorce on the ground of this.
No restitution of cohabitation
No Institution of cohabitation after decree of the maintenance under section 125 of Crpc and under section 18 of Hindu Adoption and maintenance act (maintenance to wife) against husband.
Order for maintenance of wives, children and parents Section 125 of Crpc
Section 125 of Crpc maintenance to wife
1) If any person having sufficient means
neglects or refuses to maintain:-
- (a) his wife, unable to maintain herself, or
- (b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
- (c) his legitimate or illegitimate child (not being a married daughter) who has attained majority,
- where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or
- (d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal,
- order such person to make a monthly allowance for the maintenance of his wife or
- such child, father or mother, at such monthly rate as such Magistrate thinks fit and to pay the same to such person as the Magistrate may from time to time direct:
Magistrate may order in maintenance
- Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance,
- until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child,
- if married, is not possessed of sufficient means:
- Provided further that the Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this sub-section, order such person to make a monthly allowance for the interim maintenance of his wife or
- such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct:
Maintenance application disposal
Provided also that an application for the monthly allowance for the interim maintenance and expenses of proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person.
Minor means under Section 125 Crpc
- (a) “minor” means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875) is deemed not to have attained his majority.
Wife means under Section 125 Crpc
- (b) “wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.
Order of maintenance by Magistrate
- Any such allowance for the maintenance or interim maintenance and expenses of proceeding shall be payable from the date of the order, or,
- if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be.
ordered fails without sufficient cause to comply with the order maintenance
(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines.
And may sentence such person, for the whole or any part of each month’s allowance for the maintenance or the interim maintenance and expenses of proceeding,
As the case may be, remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made.
Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due:
Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her,
And may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.
Explanation- If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife’s refusal to live with him.
No wife shall be entitled to receive maintenance
(4) No wife shall be entitled to receive an allowance for the maintenance or the interim maintenance and expenses of proceeding,
As the case may be, from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual
consent.
(5) On proof that any wife in whose favour an order has been made under this section in living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent.
Section 18 of Hindu Adoption and maintenance act
(1)Subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her life time.
(2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to
maintenance,
- (a) If he is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent or against her wish, or of wilfully neglecting her.
- (b) If he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband.
- (c) ______________removed.
- (d) If he has any other wife living.
- (e) If he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere.
- (f) If he has ceased to be a Hindu by conversion to another religion.
- (g) If there is any other cause justifying her living separately.
(3) A Hindu wife shall not be entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by conversion to another religion.
Option of puberty ground of divorce Section 13(2)(iv) hindu marriage act
Section 13(2)(iv) talk about the option of puberty means marriage solemnized before wife attended age of 15 year.
She can repudiate marriage whether consummated or not after attending 15 year but before the age of 18 years.