Explain the grounds of divorce and judicial separation as provided to a Hindu spouse in the Hindu marriage act, 1955. Or On what specific grounds under the Hindu Marriage Act, 1955 a wife may file a petition for divorce, but the husband cannot ?
(b) What is the difference between judicial separation and divorce.
(c) Whether the marriage be dissolved on the basis of mutual consent ? If yes, state the provisions of Hindu Law in this regard.
Ans. (a) Grounds of Divorce and Judicial Separation Available to Husband and Wife Both— Under the Hindu Marriage Law (Amendment) Act, 1976, the grounds of divorce and judicial separation are virtually the same whatever the grounds of divorce under the amended S.13 (1) & (2) of the amended Act, 1976 have been given, they have been similarly adopted under S.10 also.
So the grounds of divorce and judicial separation arc one and the same and they are as under-
1. Adultery–Under the Marriage Laws (Amendment) Act, 1976, the expression “living in adultery” has been replaced by a simple requirement of adultery, that is, voluntary sexual intercourse with any person other than his or her spouse. Now, even a single act of adultery may constitute a sufficient ground for obtaining divorce. This amendment became necessary because under the unamended Act any cunning spouse, living a continuous life in adultery, could on sensing the intention of the other party to file a petition under the Act, discontinue the adulterous life temporarily and thus frustrate the object of the Act. Under unamended law it was essential for the petitioner to show that the opposite party is having sexual intercourse with a person other than the spouse, as a matter of usual indulgence. It was further necessary under S.23 (i) (b) to show that the petitioner has not been in any way accessory to it, and that he or she has not connived at or condoned it. The fact that the husband cohabited with the wife even after knowledge that she had been guilty of cohabiting with another, person would be sufficient to constitute condonation. To constitute a ground for decree of divorce, the sexual intercourse complained must have taken place after the solemnization of marriage with the petitioner. Pre-marriage unchastity of the wife or pre-marriage sexual relation of the husband with some other woman is not a ground of divorce. It is also necessary that such intercourse must be intercourse with a person other than his or her spouse. Therefore, intercourse with one of the wifes of the pre-Act polygamous marriage will not amount to extra-marital intercourse under this clause. In Sint. Pushpa Devi Vs. Radheysham, 4.1.R. 1972, Raj. 26, it was held that it is not necessary to prove the,fact of adultery by direct evidence and such evidence, if produced would normally be suspected and likely to be discarded. Normally adultery is prove4 by circumstantial evidence. The general rule is thai the circumstances must be such as would lead to a guarded judgment of a reasonable and just man to the conclusion. In Thimmappa Dasappa Vs. Thimmva, A.I.R. 1972, Mys. 1, the facts were that the wife used to be usually absent from the house and was found to be in the company with strangers. She was also found in the room of those strangers. She did not have any explanation for being in their company. On the petition for divorce filed by the husband, the court held that under the conditions, the wife’s living in adultery would be established and the petition would be decreed. In Hargovinda Soni Vs. Ram Dulari, A.I.R. 1986, M.P. 57, the court observed that it was no longer required that adultery must be proved beyond all reasonable doubt. It could be established by preponderance of probabilities. In this case the husband contended that he had no access to his wife from 28th April, 1968 but a boy was born to the wife on April 12, 1969, another boy on May27, 1972 and a girl on May 27, 1975. Since on medical evidence based on blood-test, it was established that the third child could not be the child of the petitioner, the court granted a decree of divorce on the ground of wife’s adultery.
2. Cruelty—After passing of the Marriage Laws (Amendment) Act, 1976, cruelty also has become a ground of divorce. Where cruelty has been established, it is all the more appropriate that the couple be permitted to live apart and their marriage deserved to be dissolved. The term ‘cruelty has no where been defined in the Act. However, for the purposes of establishing an act of cruelty it should be so serious and weighty that cohabitation becomes impossible. It should be somewhat more serious than ordinary wears and tears of routine marital life. In Indira Gangele Vs. S.K. Gangele, A.I.R. 1993, M.P.59, only some misunderstanding between parties was established. It was held that merely saying that parties are unhappy is not enough, not even unruly temper of a spouse or whimsical nature of a spouse is enough. Wherever cruelty is to be examined the entire background of the life of the parties to marriage.has to be considered. In matters of divorce continuous acts of curelty has to be established. The question of legal cruelty justifying judicial separation or divorce on that ground may be considered under the following heads—
(a) Actual or Threatened Physical Violence–Actual violence or threat of violence of such a character as to give rise to an apprehension of danger to life, limb or health will undoubtedly constitute cruelty.
(b) Verbal Abuse and Insults–The continual use of abusive and insulting words indulged in to bring shame and mental agony to the other spouse may amount to legal cruelty.
(c) Excessive Sexual Intercourse– Excessive sexual intercourse by the husband against the wish of the wife.
(d) Refusal of Intercourse— If sexual intercourse is unreasonably refused and the refusal is persisted in for a long time, it will be a ground for holding that there is legal cruelty.
(e) Neglect— by the spouse in the discharge of his or her duties of attention and company to the other and forcing the latter to leave the home on account of such conduct would in the circumstances of any particular case constitute neglect justifying judicial separation or divorce on the ground of cruelty.
(f) Communication of Venereal Diseases.—A spouse who knowing that she or he is afflicted with venereal disease has sexual intercourse with the other is guilty of cruelty.
(g) Drunkenness and Use of Drugs—Drunkenness and intemperance and violent behaviour due to use of drugs may not in themselves constitute cruelty, but if they result in violent acts injurious to the health, whether mental or physical, of other spouse, then such acts would amount to cruelty.
(h) Forcing Association with Improper Persons.
(i) False Charge of Immorality Against the Wife.
(j) Ill treatment of Children.
(k) Wife’s Association, Persisting in with Another Woman, Raising Suspicion of her Practicing Lesbianism.
(I) Wife Suffering from Deadly Disease. Whatever might have been the view in past the present tendency is in favor of the view that any conduct of the husband which causes disgrace to the wife and annoyance and indignity amounts to legal cruelty. Cruelty as contemplated by S.13 is a conduct of such type that it has become impossible for the spouses to live together. A new thinking is developing about the concept of cruelty in the matters’ of sexual dissatisfaction of the wife. Where the husband fails to satisfy the wife in sexual intercourse on account of his physical disability or otherwise the courts have held it to be a cruelty. In Dr. Srikant Rangacharya V.s. Smt. Anuradha, A.I.R. 1980, Kar., the Karnataka High Court held that where the husband has failed to sexually satisfy the wife, it would be regarded as cruelty to her. The court observed further that cruelty is not only physical it maybe psychological also. Marriage without sex is a curse. To fail to satisfy the wife’s sexual desire is cruelty to her, for which divorce could be obtained by her.
Desertion—Where the petitioner has been deserted continuously for a period not less than two years immediately preceding the presentation of the petition for judicial separation or divorce, such petition may be granted. The expression ‘desertion’ means the desertion of the petitioner ‘by the other party to the marriage without reasonable cause and without the consent or against the wish of such party and includes the willful neglect of the petitioner by the other party to the marriage.
Requisites to Constitute Desertion– In order to constitute desertion, the following facts should be established–
(a) The spouses must have parted or terminated all joint-living,
(b) The deserting spouse must have the intention to desert the other spouse,
(c) The deserted spouse must not • have agreed to the separation,
(d) The desertion must have been without reasonable cause, and
(e) This state of affairs must have continued for two years.
(f) The separation must be without reasonable cause. The following have been held to constitute sufficient grounds for desertion-
(I) Confession of adultery by the wife,
(II) Habitual drunkenness of wife,
(III) Persistence in the false charge of unnatural offence having been committed by the husband,
(IV) Unreasonable and persistent refusal by the wife to consummate the marriage and, (V) Wife permitting indecent liberties taken by others with her.
(g) Desertion is a continuing offence. To constitute desertion it is necessary that both factum of separation and animus deserendi should continue during the entire statutory period of two years immediately preceding the presentation of the petition. The offence of desertion remains inchoate till the presentation of the petition however long might have been the period of previous desertion. During this period the offending spouse has always the locus poenitentiae to go back to the deserted spouse. It is necessary that during all this period the deserted spouse must affirm the marriage and be ready and willing to resume married life on such conditions as may be reasonable.
4. Conversion—A decree for divorce can be obtained by a petitioner where the opposite party has ceased to be a Hindu by conversion to another religion e.g., Islam, Christianity, Judaism or Zorostrianism.
5. Unsound Mind—Under the Amendment Act of 1976 incurable unsoundness of mind or continuous or intermittent mental disorder of such a nature as to disable the petitioner to live reasonably, with the respondent makes the petitioner eligible to get a decree of divorce. The term ‘mental disorder’ has been very widely interpreted so as o include mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia. The expression psychopathic disorder has been further explained to include persistent disorder or disability of mind which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party. In Rani Narain Gupta Vs. Smt. Rameshwari Gupta, A.I.R. 1988, the Supreme Court held that the context in which the idea of ‘unsoundness of ‘mind’ and ‘mental disorder’ occur in the section as grounds for dissolution of a marriage, require the assessment of the degree of the `mental disorder’. Its degree must be such as that the spouse seeking relief cannot reasonably be expected to live with the other. All mental abnormalities are not recognised as grounds for grant of decree. If the mere existence of any degree of mental abnormality could justify dissolution of a marriage, few marriages would, indeed, survive in law. “Schizophrenia” it is true is said to be difficult mental affliction. Not all schizophrenias are characterised by the same intensity of the disease. The mere branding a person as schizophrenic therefore will not suffice for purposes of S. 13 (1) (iii).
6. Leprosy—Here the spouse presenting the petition has to show that the other spouse has been suffering from a virulent and incurable form of leprosy. The section nowhere requires that before such a petition is presented the marriage must have existed for more than three years and then alone it is possible for any one of the spouses to file an application for dissolution of marriage on that ground. In Swaraiya Laxmi Vs. Dr. G G Padma Rao. 1974, S.C. 165 the Supreme Court held that lepromatous leprosy is virulent. This type of leprosy is malignant arid contiguous. It is also an incurable form of leprosy and entitles the other spouse to a decree for divorce. The petitioner brought the divorce petition against the respondent on the ground of lepromatous leprosy and it was decreed.
7. Venereal Disease —It is essential for petitioner to prove that the opposite party has been suffering from venereal disease in a communicable form. We note that for divorce it is not specifically required that the disease shall not have been contracted from the petitioner, but this requirement is to be supplied from the “own wrong” provision of Sec.23(1)(a).
8. Renunciation of World—Renunciation is regarded tantamount to civil death and therefore it is given as a ground for a decree of divorce. A person, however, does not become a Sanyasi by merely declaring himself a ‘Sanyasi’ or by wearing clothes of Sanyasi. He or she must perform the ceremonies necessary for entering the class of Sanyasi; without such ceremonies he cannot be regarded dead for worldly purposes.
9. Presumed Death —Either party may seek divorce on this ground if the other party has not been heard of as being alive, for a period of seven years or more by those persons who would naturally have heard ofil, had that parly been alive. Thus, the aggrieved party may marry again and have legitimate children. If the second marriage is performed on the basis of presumption of death without getting a decree of divorce, no person other than the missing spouse can question the validity of the second marriage.
10. Judicial Separation—A party will be entitled to a decree ofdivorce if a decree of judicial separation has already been passed and the other party has not resumed cohabitation within one year thereafter. Where a wife has obtained the decree for judicial separation and the husband makes a petition of divorce, after 2 years of that separation on the ground that there was no cohabitation resumed, the Court passed the decree.
11. Failure to Comply with the Decree for Restitution of Conjugal Rights —A party will be entitled to a decree of divorce also when a decree for restitution of conjugal rights has been passed and it has not been complied with within one year of the passing of such a decree. Additional Grounds of Divorce Available to Wife Only-
1. Bigamy—A wife may also present a petition for the dissolution of marriage by a decree for divorce on the ground that in the case of any marriage solemnized before the commencement of this Act, i.e., 18th May, 1955, the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner. There is, however, one condition that in either case at the time of the presentation of the petition the other wife is alive. In a petition under S. 13 (2) by wife on the ground of second marriage by husband which was solemnized after the commencement of the Act, the husband admitted the facts of second marriage and living with her. No connivance or condonation by the petitioner was proved. It was held that a second marriage by the husband was void ab initio under S. 11 read with S.5 (1) of the Act and living with second wife amounted to adultery. The petitioner, therefore, is entitled to a decree of divorce under S. 13 (1) (i) and not under S.13 (2) of the Act.
2. Rape, Sodomy or Bestiality–The expressions ‘rape’ or ‘sodomy have been defined in S.375 and 377 of I.P.C. S. 375 defines “rape” while S. 377 “unnatural offences” (i.e. sodomy or bestiality, etc.). A carnal intercourse against the order of nature, with any man, woman or animal is an unnatural carnal intercourse and whoever voluntarily has such intercourse, commits an unnatural offence. It should be noted that only a proof of conviction, in these criminal offences will not be sufficient for a decree of divorce. The commission of the offences must be proved `de novo.’
3. Non-resumption of Cohabitation after Decree or Order of Maintenance-Where the decree or order has been passed against the husband awarding maintenance to the wife in a suit under S. 18 of the Hindu Adoptions and Maintenance Act, 1956, or under S. 125 of the Cr.P.C. 1973 and after passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards, decree of divorce would be granted. 4. Option of Puberty—Where the wife’s marriage was solemnized before she attained the age of fifteen years and she repudiated the marriage after attaining that age but before attaining the age of eighteen years. In Bathula Ilahi Vs. Bathula Devamma, A.I.R. 1981, A.P. 74, the Court granted the decree after the wife had attained the age of eighteen years. The wife in this case had repudiated the marriage before attaining the age of 15 years because after living with the husband for some time she realised that it would be dangerous to live with him any more. She came to learn later on about the passing of Marriage Laws (Amendment) Act, 1976, which entitled her to bring the present petition. The Court held that even if the petition has been presented after passing of the age of eighteen years it would be allowed in the wake of reasonable explanations for the delay. Where the wife was married before attaining the age of fifteen years but she repudiated the marriage after attaining the age of fifteen years but before attaining eighteen years and all this happened before the Amendment Act of 1976 came into force, the Court held that even after 1976 that episode can be taken into consideration and divorce can be granted to the wife. (b) Distinction Between Divorce and Judicial Separation –
DIVORCE JUDICIAL SEPARATION 1. Divorce is the permanent 1. Judicial separations temporarily dissolution of marriage between suspends the marriage relations the parties. of the parties. 2. In divorce the relation of 2. In judicial separation the husband and wife is over between relation of husband and wife the parties. exists between the parties. 3. In case of divorce parties can
3. In case of judicial separation, re-marry after a period of one year the parties can not marry unless has passed from the date of the after laps of a year on this very decree. ground a decree of divorce is obtained.
4. In divorce of the parties resort to
4. If the parties resort to cohabitation after a decree of cohabitation during the course of divorce is passed such an act judicial separation, the effect of would have no bearing on a decree the decree would be neutralized. of divorce.
5. In case of divorce the nature of 5. The nature of matrimonial relief matrimonial relief is comparatively more serious. 6. Divorce provides to both husband and wife to live independendent life.
is comparatively less serious.
6. It provides two opportunities for future–(i) cohabitation, (ii) to obtain a decree of divorce after one year, if no cohabitation takes place during judicial separation.
(c) Whether Marriage be Dissolved by Mutual Consent ? —According to S. 13-B, divorce can now be obtained by mutual consent of the parties to marriage also under the Marriage Laws (Amendment) Act, 1976. Such a petition is required to be moved jointly by the parties to marriage on the ground that they have been living separately for a period of one year or more and they have not been able to live together and also that they have agreed that the marriage should be dissolved. On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) given above and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the Court shall on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that averments in the petition are true, pass a decree of divorce, declaring the marriage to be dissolved with effect from the date of the decree. The underlying idea for divorce by mutual consent may be treated from the principle that if the marriage under most of the matrimonial Acts is a civil contract, contract based on certain conditions with the mutual consent of the parties, then the parties must be given discretion to finish that contract of marriage. However, although the basis has been derived from the common principle of a civil contract, yet the marriage contract can not be equated with contract under the Indian Contract Act.
Essentials of Divorce by Mutual Consent—According to S.13-B following are the three essentials of divorce by mutual consent —
(i) That both the parties have been living separately for a period of one year or more;
(ii) That both the parties have not been able to live together;
(iii) That both the parties have mutually agreed that their marriage should.be dissolved. The Bombay High Court held that if all the three ingredients of S.13- B are proved, divorce under this section cannot be refused. It is presumed that the incompatibility of temperament and certain differences between them existed so deeply that cohabitation came to an end. And hence they arc entitled to divorce by mutual consent. In its pronouncement, in Indrawn! Vs. Radhey Raman, A.LR. 1981, All. 152, the Allahabad High Court held that parties are not required to prove any grounds of dissolution of marriage but the Courts have to simply find out that the mutual consent is not the result of any conspiracy between them. Once it is proved that they want it voluntarily without any ground of divorce being present, the court would be obliged to pass a decree by mutual consent. By the amending Act of 1976, a new S. 13-A has also been added according to which, in any proceeding under this Act, on a petition for dissolution of marriage by a decree of divorce, except in so far as the petition is founded on the grounds as conversion, renunciation of the world and presumed death, the court may if it considers it just to do so, having regard to the circumstances of the case, pass instead a decree for judicial separation. In Santosh Kumar Vs. Virendra Kumar, A.I.R. 1986, Raj., the Rajasthan High Court had held that an application filed under S.13-B of the Act can be withdrawn by the parties to the. marriage or any of them till the expiry of the last day of the eighteenth month of the filing of the application. If one of the parties at the stage of inquiry withdraws his or her consent or refuses to be a willing party to the divorce, the court gets no jurisidiction to make a decree of divorce.