This Article is written by Parshav Gandhi , a 3rd-year student, at Indore Institute of Law; and Monesh Mehndiratta, of Graphic Era Hill University, Dehradun. It explains the different grounds on which one can seek divorce. It also provides various grounds that are specifically available to a woman under the Hindu Marriage Act, 1955, on which she can seek divorce. Apart from this, it also explains irretrievable breakdown of marriage as a ground of divorce and provides recent case laws.
It has been published by Rachit Garg.
Table of Contents
In Ancient times, the concept of divorce was not known to anyone. They considered marriage as a sacred concept. According to Manu, the husband and wife cannot be separated from each other, their marital tie cannot be broken. Later the concept of divorce came into the picture and was established as a custom to put the marriage to an end.
According to the Arthashastra, marriage can end if dissolved by mutual consent and should be unapproved marriage. But Manu does not believe in the concept of dissolution. According to Manu the only way to end the marriage is the death of one of the spouses.
The provision related to the concept of divorce was introduced by the Hindu Marriage Act, 1955. The Hindu Marriage Act defines divorce as the dissolution of the marriage. For the interest of 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 alternatives.
“I want a divorce.” “We want a divorce from each other.”
You might have heard this from a lot of couples around you, but have you ever wondered on what grounds a person can actually seek divorce?
Well, today we are going to discuss the grounds for divorce under the Hindu Marriage Act,1955 . Marriage is considered one of the oldest institutions and has a religious sacrament attached to it. Marriage, according to Hindu law, is one of the most important sanskaras (duties). It is considered a ‘dharma’ (religious duty under Hindu law) by which men and women are united in wedlock to achieve the ends of life, namely, dharma , progeny, kama, and moksha .
In Hinduism, a marriage is seen as an inseparable bond between husband and wife, but with the changing times, there has been the introduction of the concept of divorce, which means that on certain grounds, the parties to a marriage can seek permanent separation. The present article explains the concept of divorce and the various grounds on which parties to a marriage can seek divorce under the Hindu Marriage Act of 1955. It also provides different grounds that are specifically available to a woman seeking a divorce. It tries to analyse the changes in practices that led to the enactment of modern Hindu law on marriage. The article discusses the irretrievable breakdown of marriage as a ground of divorce and also provides the jurisdiction of the courts dealing with divorce cases. Further, it also provides case laws to better understand the grounds for divorce.
Divorce was earlier unknown to people because marriage was considered as an indissoluble union between a husband and a wife. Manu, the great commentator of ancient India, never approved of divorce and said that only death can separate and break the relationship between a husband and a wife.
However, some texts like Narada and Parashar have different views on this. For some, marriage is a contract and divorce means to revoke the marriage or contract but for others it is sacred and the bond must not be broken. In Hinduism, it is not a contract but a sanskara and religious sacrament is attached with it. According to Naradasmriti , a woman is allowed to leave her husband under the following conditions:
On the other hand, many jurists like Kautilya in Arthashastra opined that if a marriage falls within unapproved forms of marriage such as asura, gandharva, rakshasa, and paisacha , it can be dissolved.
During the 1950s, the Hindu law was codified, and the Hindu Marriage Act, 1955, was enacted to govern marriages.
According to Section 2(1) of the Hindu Marriage Act, 1955, individuals professing the following religions are covered under the ambit of Hindus:
The modern law on divorce, on the other hand, brought many changes to the way marriage was perceived. Section 13 of the Hindu Marriage Act, 1955 deals with divorce and its grounds. Divorce is no longer unknown to people, and couples can seek divorce on any of the grounds enumerated in the Act. However, the objective of the court and legislature has always been to preserve the institution of marriage, so Section 14 of the Act provides that no petition for divorce can be filed by either of the parties to a marriage within one year of their marriage. The relationship or bond between a husband and a wife, which was once considered unbreakable, has changed with time, they can now be separated by way of divorce. Moreover, the introduction of remarriage has also led to a lot of changes.
Apart from this, the Marriage Laws (Amendment) Act, 1976 , recognised divorce by mutual consent under Section 13B of the Act. This form of divorce is based on consent theory and takes a progressive approach to marriage and separation of husband and wife. It is clearly visible that there is a difference in the perspective and thought process regarding marriage in the old Hindu law and the modern law. The uncodified Hindu law did not recognise divorce at all, but modern law, on the other hand, is based on the principle that if two people are unhappy with each other and it is impossible for them to spend life together, they can be separated.
The Amendment Act of 1976 brought the following major changes in the Act:
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.
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.
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.
In the Hindu Marriage Act, there are some provisions given regarding a valid divorce, i.e. when the spouse can get a divorce or appeal for dissolution of marriage in a court of law. For the interest of 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 alternatives.
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.
Section 13(1) provides grounds on which divorce can be sought by either of the partners in a marriage. After the amendment of 1976, grounds for divorce specified under Section 13 of the Act and judicial separation under Section 10 are similar. The parties also have the option of judicial separation instead of divorce, where they can rethink their decision. The objective is to save the sacred institution of marriage and make efforts for reconciliation. In the case of Ishwar Singh v. Smt. Hukam Kaur (1965) , the Allahabad High Court held that if the husband permitted his wife to marry someone else of her choice because of his ill health, it does not amount to divorce because no such petition or application had been filed in the court and so the second marriage solemnised is illegal as the first marriage still subsists. It was also observed that a marriage subsists until a decree of divorce has been passed by the court.
Further, in the case of Niru Sarmah v. Jatin Chandra Sarmah (2014) , the Gauhati High Court observed that if a marriage is broken to the extent that it is irretrievable and there are no possibilities that the bond can be recovered and the marriage can be saved in near future, decree of divorce can be passed by the court.
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.
In this case, the wife found her husband with other girl lying on the same bed and the neighbour also confirmed that the husband has committed an offence. Here the wife gets the divorce.
In this case, the petitioner and the defendant were married. After marriage, the husband leaves the wife in his home town so that she can complete her studies and go to another city for work. He visited twice or thrice a month to meet her. Later he found that his wife commits the adultery i.e. to involve in sexual intercourse with his own nephew, watchman etc. The plaintiff approaches the court to demand divorce on the ground of adultery and his petition was accepted and the marriage gets dissolved.
Prior to the 1976 amendment, in order to seek divorce on the ground of adultery, a person had to prove that, on the date of the petition, his/her spouse was living in an adulterous relationship. However, after the amendment, even a single voluntary sexual intercourse with a person other than the spouse is a valid ground for divorce. It is given under Section 13(1)(i) of the Act. The burden to prove that the spouse committed the offence of adultery is on the person who made such allegations, and the standard of proof is by preponderance of probabilities and not proof beyond reasonable doubt.
It is correct that there can be no direct evidence to prove the act of adultery, so circumstantial evidence plays an important role. The Madhya Pradesh High Court in the case of Samuel Bahadur Singh v. Smt. Roshini Singh (1960) , rightly pointed out that in India, if a male and female are living together under the same roof without any connections or relations, it is not considered normal, and so adultery can be inferred from the following circumstances:
In the case of Chetan Dass v. Kamla Devi (2001) , appellant and respondent were married to each other according to Hindu ceremonies. After marriage, the appellant had an extramarital affair with one of the nurses in the hospital where he was working, and so his wife left him. He appealed, claiming that the allegations made by the respondent and her act of deserting him without any reasonable cause amount to mental torture. The Hon’ble Supreme Court observed that a man cannot take advantage of his own wrong. However, the decree for divorce was not passed because the wife, or respondent in this case, was ready to continue her marriage and live with him only on the condition that he must leave the other woman and end his adulterous relationship.
It must be noted that adultery as an offence has been decriminalised by the Hon’ble Supreme Court in the case of Joseph Shine v. Union of India (2018) . However, it is still a ground of divorce under the Hindu Marriage Act, 1955, which means that if a person commits adultery, he/she would not be punished but the spouse can seek divorce.
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
In this case, the petitioner filed the divorce petition against his wife on the ground of mental cruelty. He proved that his wife that behaviour with him and his parents was Aggressive and uncontrollable and many times she filed the false complaint against her husband. The court accepts the petition and grants the divorce on the ground of cruelty.
Humiliating the wife in front of family and friends
Desertion means the permanent abandonment of one spouse by the other spouse without any reasonable justification and without his consent. In General, the rejection of the obligations of marriage by one party.
Before the 1976 Amendment, desertion was only a ground for judicial separation and not divorce. But now, desertion of any of the spouses by the other for a continuous period of two years immediately before filing the petition is a valid ground to seek divorce as well as judicial separation. Desertion as the ground of divorce is mentioned under Section 13(1)(i)(ib) of the Act. In the case of Malathi Ravi v. B.V. Ravi (2014) , the Supreme Court held that if there is no evidence to prove that the wife had an intention to end the marriage or whether she deserted her husband, then the court will not pass a decree of divorce. This means that the intention to end marriage is one of the essentials of desertion, i.e., animus deserendi must exist. Also, if there was no desertion for a continuous period of two years immediately before the presentation of the petition or if the party assumed it, no divorce can be granted.
In the case of Ranjeet Kaur v. Surendra Singh Gill (2012) , the Madhya Pradesh High Court gave the meaning of desertion as the intention of parties to permanently abandon the spouse without their consent and reasonable cause, which means that for the ground of desertion, the fact of separation and animus deserendi must co-exist. In the present case, the wife denied the allegations of cruelty and desertion made by her husband and requested that the court dismiss his petition. In the case of Om Wati v. Kishan Chand (1983) , the Delhi High Court opined that desertion does not mean withdrawal but is a state of things. It is a question of fact. In the case of J. Shyamala v. P. Sundar Kumar (1990) , the Madras High Court held that if a wife starts living with her parents rather than her husband because he made false allegations against her regarding her character and unchastity, it would not amount to desertion. It must be noted that the desertion of a spouse must be without reasonable cause. The burden of proof, in this case, lies on the petitioner, and it must be proved that the said desertion occurred without any sufficient and probable cause and did last for two years.
In this case, the respondent leaves the house with the intention to abandon his wife. Later the wife approaches the court, but the defendant proved that even though he left the house with the intention to desert, but he tried to come back and he was prevented from doing so by the petitioner. Here, the defendant cannot be held liable for desertion.
If one of the spouses converts his religion to any other religion without the consent of the other spouse, then the other spouse can approach the court and seek the remedy of divorce.
Illustration
A, a Hindu has a wife B and two children. One day A went to church and converted to Christianity without the consent of B, here B can approach the court and seek for divorce on the ground of conversion.
In this case, the husband converts himself into Muslim and marries another woman. Here the wife Leela filed a case and demanded the divorce on the ground of conversion without her consent and cruelty.
Insanity means when the person is of unsound mind. Insanity as a ground of divorce has the following two requirements-
In this case, the petitioner filed a case to get the divorce from the respondent on the ground that the respondent was suffering from Paranoid Schizophrenia which means mental disorder. She came to know these after her marriage. Here, the court grants the divorce on the ground of insanity of husband.
If one of the parties, i.e., either husband or wife, is of unsound mind, then it is a valid ground for divorce. It is given under Section 13(1)(iii) of the Act. The unsoundness may be continuous or intermittent and incurable to the extent that it is not possible for the petitioner to continue married life with the respondent. This was also mentioned in the Amendment Act of 1976. In the case of Smt. Alka v. Abhinesh Chandra Sharma (1991) , the Madhya Pradesh High Court found that the wife was suffering from schizophrenia because she was cold and frigid on the first night of marriage and could not cooperate with the husband. Also, she was not able to handle domestic appliances, so the husband was entitled to nullity of marriage in this case. It was also observed that the facts pertaining to the mental illness of the wife and her medical treatment were not disclosed to either the husband or his mother and grandmother, who negotiated the marriage on his behalf. The counsel representing the wife also argued that breaking the marriage just after 19 days of marriage would bring upon her great tragedy. However, the appeal made by the wife was dismissed.
In the case of Suvarnalata v. Mohan Anandrao Deshmukh and Anr. (2010) , husband filed for divorce on the ground that his wife was suffering from schizophrenia, but the Supreme Court did not accept and agree with the allegations made by the husband that his wife was suffering from mental disorder and desisted itself from giving any observations in this regard because of the effect that it would have on the minor child. Further, the Calcutta High Court in the case of Pramatha Kumar Maity v. Ashima Maity (1991) held that in order to obtain a decree for divorce on the ground of unsoundness of mind, it must be proved that unsoundness exists to the extent that it is impossible for the petitioner to cohabit and live with the respondent.
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.
In Swarajya Lakshmi vs G. G. Padma Rao, the husband filed the case for granting the divorce on the ground of leprosy. He claimed that his wife is suffering from incurable leprosy with the expert’s reports. Here he succeeds in getting the divorce on the ground of leprosy.
In the case of Mr. ‘X’ v. Hospital ‘Z’ (1998) , a marriage was called off as the appellant was found out to be HIV+ which is a venereal disease. Further, in the case of P. Ravi Kumar v. Malarvizhi @ S. Kokila (2013) , husband filed for divorce on the ground that the wife is suffering from HIV, which is a communicable sexually transmitted disease. The wife, on the other hand, argued that she is afflicted by the disease only through her husband. The medical reports proved that the husband was not suffering from HIV. On the basis of facts and circumstances, the husband was entitled to the decree of divorce.
Under this concept, if the disease is in communicable form and it can be transmitted to the other spouse, then this can be considered as the valid ground for divorce.
Illustration
A and B married on 9 September 2011. Later A suffered from a venereal disease and it is incurable. There’s also a chance that B can also get infected by that disease if she lives with A. Here, B can approach the court for the dissolution of the marriage
It means when one of the spouses decides 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 is considered as a valid ground for divorce.
Illustration
A and B got married and lives a happy life. One day A decides to renunciate the world. Here, B has a right to approach the court and seek the remedy of divorce.
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.
In the case of LIC of India v. Anuradha (2004) , the Supreme Court held that the death of a person can be presumed only after the lapse of seven years. However, it does not include the time of death. In the case of Prakash Chander v. Parmeshwari (1987) , a woman was asked to enter into a karewa marriage with her brother-in-law for the procreation of children because her husband became a lunatic and was discharged from the Army. He was not heard of after his discharge and was presumed to be dead. The customs of karewa marriage allowed a second marriage if the spouse was not heard of for 2-3 years, which means that they presumed the death of the spouse within this period. However, when she was ill-treated by her brother-in-law and thrown out of the house, she filed for divorce, but all the allegations were denied by the opposite party. The court in this case observed that such a custom is not judicially recognised and that the karewa marriage between the woman and her brother-in-law does not itself dissolve the first marriage between her and her husband.
Illustration
A was missing from the last seven years and his wife B does not get any news about him of being alive or dead. Here B can approach the court and ask for the divorce.
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.
There was no provision related to divorce by mutual consent till 1976. It was in the 1976 Amendment that the provisions for divorce by mutual consent was added. It is given under Section 13B of the Act and is retrospective in nature, which means that it is applicable to marriages solemnised before the commencement of the 1976 Amendment Act. According to the Section, both the parties can jointly file a petition for divorce by mutual consent on the grounds that they have been living separately for a year or more and cannot live together and resume their married life. They must also provide that they both have mutually decided to end their married life.
The Section also provides that when the petition has been filed, parties would have to wait for six months, after which they can bring the motion again in the court for dissolution of marriage. If the parties do not come to court after six months and within eighteen months from the date the petition was filed, it would be presumed that they have withdrawn the petition. If the petition is not withdrawn, the court would hear the parties and after necessary inquiry presume that the averments made are true and pass a decree of divorce.
The ingredients, or essential conditions, to seek divorce by mutual consent are:
In the case of Laxmibai Ward v. Pramod (2009) , the wife challenged the decree of divorce by mutual consent on the ground that her signatures were obtained falsely and there was no separation for a year or more. The Bombay High Court held that subordinate courts, before passing a decree of divorce by mutual consent, must be satisfied of the fact that the consent was not obtained by force, coercion, undue influence, or fraud.
Further, in the case of Rajesh R. Nair v. Meera Babu (2014) , the Kerala High Court observed that parties can withdraw the application for divorce by mutual consent even at the stage of enquiry and if any of them withdraws their consent, then the court is not entitled to pass the decree. The court in the case of Anil Kumar Jain v. Maya Jain (2009) held that the consent to mutually dissolve the marriage must subsist till the second stage, where the petition comes before the court. With respect to the waiting period of six months, the Court in the case of Anjana Kishore v. Puneet Kishore (2001) observed that in exceptional circumstances it can be waived. Further, in the case of Amardeep Singh v. Harveen Kaur (2017) , the Supreme Court held that the period mentioned under Section 13B(2) is not mandatory but directory.
Another ground of divorce is the failure of the parties to a marriage to comply with the decree of restitution of conjugal rights. If such a decree has been passed by the court but the husband and wife failed to comply with it within one year from the date the decree was passed then they can seek divorce. This is given under Section 13(1A)(ii) of the Act.
Section 9 of the Act deals with the restitution of conjugal rights. Conjugal rights in a marriage are a matrimonial rights that husband and wife share in society, comfort, and affection and are made available to them by each other. Where either a husband or wife has withdrawn from the society of another without any reasonable cause and the court is satisfied of the same, it can pass a decree for the restitution of conjugal rights.
In the case of A.V. Janardhana Rao v. M. Aruna Kumari (2000) , a petition was filed by the husband seeking divorce on the ground that there was no cohabitation between him and his wife within one year from the date the decree of restitution of conjugal rights was passed and that they are not willing to resume their married life with each other. The court held that due to non-compliance with the decree, the husband was entitled to a decree of divorce.
The Act also provides certain grounds of divorce to women, i.e., wives, on which they can seek divorce. These are given under Section 13(2) of the Act and are as follows:
A wife can seek divorce if the husband has committed the offence of bigamy according to Section 13(2)(i) of the Act. Section 17 of the Act further punishes bigamy. The conditions for the offence are:
In the case of Lily Thomas v. Union of India (2000) , the wife filed a complaint against the husband, claiming that he converted to another religion and married another woman of that religion, even though the first marriage is still subsisting. The court held that even though he converted to another religion, he had not divorced his first wife. He would be liable for the offence of bigamy, and his second marriage would be void. The Supreme Court also observed that religion is not a commodity and must not be exploited for worldly gain or benefits.
If the husband is guilty of committing the offence or rape, sodomy, or bestiality, the wife is entitled to seek divorce on this ground under Section 13(2)(ii) of the Act. Rape as an offence is given under Section 375 of the Indian Penal Code, 1860 (IPC), while sodomy or bestiality fall under the category of unnatural offences. According to Section 377 of the IPC, unnatural offences are those where a person engages in carnal or anal intercourse against the order of nature with any animal. Carnal intercourse with a person of the same sex or opposite sex is sodomy, while if done with an animal, it amounts to bestiality.
The Amendment Act of 1976 provided another ground to the wife to seek divorce. According to Section 13(2)(iii) of the Act, if a decree or order of maintenance has been passed under Section 18 of the Hindu Marriage Act, 1955, or Section 125 of the Code of Criminal Procedure, 1973 against the husband, directing him to give maintenance to the wife in spite of whether she was living apart, and there was no cohabitation between both of them for a year or more after the passing of such a decree or order, the wife can claim divorce.
The essentials conditions to obtain divorce under this ground are:
The Amendment Act of 1976 also gave the wife an opportunity to repudiate her marriage if it was solemnised before she attained the age of 15 years. This is given under Section 13(2)(iv) of the Act. However, she can do so only before attaining the age of majority, i.e., 18 years. This is known as repudiation of marriage. This clause applies irrespective of whether the marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976.
It has been observed that the rules pertaining to divorce have been liberalised especially under the Hindu Marriage Act, 1955. However, getting a divorce on the basis of grounds related to fault theory is cumbersome, time consuming and exhausting. It also causes mental and physical trauma and shame to the parties. In order to avoid such situations, the Law Commission in India proposed that the parties to a marriage must be allowed to seek divorce on the ground of irretrievable breakdown of marriage and that it must be recognised as a separate ground for divorce. This recommendation was made in the 71st Law Commission Report. Further, it also suggested that a separation period of three years must be used as the criteria in this regard.
In N.G. Dastane v. S. Dastane (1975) , a petition was filed by the husband seeking judicial separation, but his application was rejected on technical grounds. This case laid the importance of irretrievable breakdown of marriage and the trauma and impact it has on the children. The court also in several instances felt that where the parties cannot live with each other and there is no possibility of restoring the relationship, marriage must be dissolved on the basis of irretrievable breakdown of marriage. In the case of Naveen Kohli v. Neelu Kohli (2006) , the Hon’ble Supreme Court suggested the government to consider inclusion of irretrievable breakdown of marriage as a separate ground of divorce under the Act. The appellant in this case alleged that his wife was aggressive and rude. She used to quarrel and misbehave with her in-laws. One day, he found her in a compromising position with another man and so he started living separately and filed the petition for divorce.
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.
According to Section 14 of the Act, no petition can be filed for divorce within one year of marriage. The object of this provision is to enable parties to a marriage to make efforts to save their marriage and marital bond. It is also based on public policy because marriage is Hindu is considered to be a sacrament and has religious importance to it. The courts try to safeguard a marriage till the end.
However, if there are exceptional hardships to the petitioner or exceptional depravity by the respondent then the court can hear the application. While deciding the application, the court must consider the interest of children born and whether there is a chance of reconciliation between the parties. In the case of Dr. Rajasi v. Dr. Shashank (2015) , a petition was filed by husband under Section 12(1)(c) for nullity of marriage and also to dissolve his marriage by way of divorce within one year of his marriage on the ground that his wife had suicidal tendencies and behaved inappropriately. He also contended that if he would have known about the same, he would have not solemnised the marriage. The Bombay High Court observed that the object of Section 14 is laudable as it prevents hasty decision of dissolving the marriage within one year however, in the present case, the husband was able to prove that there was cruelty on the part of wife and it is difficult for him to live with her and so ordered for dissolution of marriage.
As per Section 15, a fter 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.
According to Section 15 of the Act, a person has a right to remarry the person he or she divorced. However, the following conditions must be satisfied:
It must be noted that this Section is only applicable to marriages that are dissolved by divorce and not that are declared null and void under Sections 11 and 12 of the Act. In the case of Tejinder Kaur v. Gurmit Singh (1988) , the Hon’ble Supreme Court observed that a spouse who got the decree of divorce cannot take away the right of the other to present a special leave petition before the Supreme Court by marrying immediately after the decree of divorce has been passed. He or she must wait for a reasonable time.
Section 19 of the Act provides territorial jurisdiction of the courts that deal with divorce petitions filed therein. It provides that every such petition must be brought before a district court in whose jurisdiction:
However, Section 13 of the Family Courts Act, 1984 , provides that no party to a suit before the Family Court would be entitled to legal representation as a matter of right.
In this case , Smt. Sushmita Ghosh was married to Shri G.C. Ghosh, who then, after some years of marriage, converted to Islam to take advantage of marrying twice. An NGO named Kalyani observed the increase in the number of such cases and decided to help women who suffered because of the conversion of their husbands to other religions only because they wanted to exploit the advantage of a second marriage and had no faith in the religion. She, along with other such women, filed a petition in the Supreme Court and asked the court to declare polygamy by Hindus and non-Hindus after converting to Islam as void and illegal. She also asked the court to restrain her husband from marrying another woman, as her marriage still subsists.
The Apex Court in this case observed that mere conversion of the husband to any other religion would not dissolve the first marriage. The Act of converting to Islam just to take the advantage of more than one marriage amounts to religious bigotry, as the respondent had no faith in the religion. In the present case, the respondent was held liable for the offence of bigamy because the solemnization of a second marriage after conversion to another religion does not ipso facto dissolve the first marriage, which was solemnised according to Hindu rituals.
In this case , the petitioner and respondent were married to each other and had children but decided to live separately owing to certain issues. After some time, they filed an application for divorce by mutual consent. They also decided to waive the cooling period or the waiting period of six months given in Section 13B because they had been living separately for the past eight years and were firm on their decision to seek divorce. For this, they filed a petition in the Supreme Court to allow them to waive the period.
Whether the period of six months for the second motion mentioned under Section 13B of the Act can be relaxed in certain situations?
It was observed that the period of six months is there to help the parties resolve their dispute if there is a possibility of doing so and saving the marriage. The court also observed that the object of the legislature to introduce divorce by mutual consent was to give parties the option to dissolve the marriage by mutual consent where there is no possibility of reconciliation and the bond is irretrievably broken. It did not aim at prolonging the agony of the parties. The court thus held that the period of six months is not mandatory but a directory, and after the following conditions are fulfilled, it is at the discretion of the court to waive off the period:
The purpose of marriage and its importance is different for different religions. In Hinduism, it is a dharma for a person to get married in order to fulfil religious obligations, so there was no concept of divorce or judicial separation. The marital bond, once created, was considered to exist till eternity. But with the introduction of the concept of divorce, the unbreakable bond could be broken, and husband and wife could be separated. Generally, the entire structure of divorce is based on the faulty theory.
However, there has been inclusion of grounds like non-compliance with the decree of restitution of conjugal rights and non-resumption of cohabitation within one year after the decree of judicial separation has been passed for divorce. This is based on the concept of frustration of marriage, or breakdown theory. After the 1976 Amendment, a liberal provision or ground has been added for divorce, which is divorce by mutual consent. This is based on the consent theory. Thus, it can be said that the marital life in a Hindu marriage has undergone drastic changes, but the notion of marriage still remains the same. It still has religious sanctity attached to it and the courts try to preserve the institution of marriage in every case that comes before it.
Voidable marriages are those that can be annulled by a decree of nullity at the option of either of the parties. According to Section 12 of the Act, the grounds on which a marriage can be voidable at the option of either husband or wife are as follows:
According to Section 17, if a person is guilty of the offence of bigamy, he would be liable for punishment according to Sections 494 and 495 of the Indian Penal Code, 1860, and such a marriage would be null and void under the Hindu Marriage Act, 1955.
According to Section 5 of the Act, for a marriage to be valid under Hindu law it must be solemnised between two Hindus and fulfil the following conditions:
When a spouse compels the other by words or conduct to quit the matrimonial home, he would be guilty of desertion even though the other physically left and lived separately. Desertion means abandonment, while in constructive desertion, there is no abandonment of place but of a matrimonial relationship. The same was discussed in the case of Savitri Pandey v. Prem Chandra (2002) , wherein it was also observed that desertion does not mean withdrawal from the place but means repudiation of the obligations of marriage.
Judicial separation is a situation where the marriage is not terminated but the spouses do not fulfil conjugal duties, and neither of them is under obligation to cohabit with the other. Section 10 deals with judicial separation, and it is termed as alternate relief to divorce under Section 13A of the Act. There is a possibility of reunion and resumption of matrimonial rights in judicial separation, but after the decree of divorce is passed, marriage comes to an end.
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.
LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:
Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.
