Grounds for Divorce under Hindu Marriage Act 1955 and Special Marriage Act 1954
By Bhavneet Vohra June 29, 2016
Before learning about the grounds for divorce under Hindu Marriage Act and Special Marriage Act, we need to know about what marriage really is? Marriage can be rightly defined as the legally or formally recognized union of a man and a woman (or, in some jurisdictions, two people of the same sex) as partners in a relationship. But the concept of marriage is not restricted to this small definition, there is much more embedded in this relationship which is further stated in the blog.
According to the principles of Hindu religion, marriage is considered as a sacred and pure relationship. Marriage is undoubtedly the most important transitional point in a Hindu’s life and the most important of all the Hindu ‘’sanskaras’’ (life-cycle rituals). Parliament of India in the year 1955 enacted The Hindu Marriage Act which is an Act to amend and codify the laws relating to marriage. During this time three more acts were also enacted by the Parliament of India which were a part of the HINDU CODE BILLS which were as follows:
- Hindu Succession Act 1956
- Hindu Minority and Guardianship Act 1956
- Hindu Adoptions and Maintenance Act 1956
This act came into existence on 18th March 1955. This act includes the concept of divorce and separation. Since this act is applicable specifically to the Hindus and others, so Parliament of India in the year 1954 enacted Special Marriage Act to provide a special form of marriage for the people of India and all Indian nationals in foreign countries, irrespective of the religion or faith followed by either party which basically focused on 3 main objectives:
To provide a special form of marriage in certain cases,
To provide for registration of certain marriages and,
Divorce means dissolution of marriage by competent court. Earlier divorce was unknown to general Hindu law as marriage was regarded as an indissoluble union of the husband and wife. Manu does not believe in discontinuance of marriage. He declares “let mutual fidelity continue till death”; this in brief may be understood to be the highest dharma of the husband and wife.
THEORIES OF DIVORCE
The concept of divorce can be categorized under mainly three theories which are basically:
- FAULT THEORY- under Fault Theory marriage can be dissolved only when either party to the marriage has committed a matrimonial offence.
- MUTUAL CONSENT THEORY- This theory states that since two persons can marry by their free will, they should be allowed to move out of their relationship of their own free will.
- IRRETRIEVALE BREAKDOWN OF MARRIAGE THEORY- According to this theory, the breakdown of marriage is defined as “such failure in the matrimonial relationships or such circumstances adverse to that relation that no reasonable probability remains for the spouses again living together as husband & wife.”
GROUNDS FOR DIVORCE
Section 13 of the Hindu Marriage Act 1955 and Section 27 of the Special Marriage Act 1954 stated the grounds and reasons for divorce which are as follows:
- Adultery – The act of indulging in sexual intercourse outside marriage is termed as adultery. Adultery is counted as a criminal offence and substantial proofs are required to establish it. An amendment to the law in 1976 states that one single act of adultery is enough for the petitioner to get a divorce.
- Cruelty – A spouse can file a divorce case when he/she is subjected to any kind of mental and physical injury that causes danger to life, limb and health. The intangible acts of cruelty through mental torture are not judged upon one single act but series of incidents.
- Desertion – If one of the spouses voluntarily abandons his/her partner for at least a period of two years, the abandoned spouse can file a divorce case on the ground of desertion.
- Conversion – In case either of the two converts himself/herself into another religion, the other spouse may file a divorce case based on this ground.
- Mental Disorder – Mental disorder can become a ground for filing a divorce if the spouse of the petitioner suffers from incurable mental disorder and therefore cannot be expected from the couple to stay together.
- Leprosy – In case of a ‘virulent and incurable’ form of leprosy, a petition can be filed by the other spouse based on this ground.
- Venereal Disease – If one of the spouses is suffering from a serious disease that is easily communicable, a divorce can be filed by the other spouse. The sexually transmitted diseases like AIDS are accounted to be venereal diseases.
- Renunciation – A spouse is entitled to file for a divorce if the other renounces all worldly affairs by embracing a religious order.
- Not Heard Alive – If a person is not seen or heard alive by those who are expected to be ‘naturally heard’ of the person for a continuous period of seven years, the person is presumed to be dead. The other spouse need to file a divorce if he/she is interested in remarriage.
- No Resumption of Co-habitation – It becomes a ground for divorce if the couple fails to resume their co-habitation after the court has passed a decree of separation.
Apart from this there are certain grounds embedded in the Hindu Marriage Act 1955 in which the petition for divorce can be filed by wife only.
· If the husband has indulged in rape, bestiality and sodomy.
· If the marriage is solemnized before the Hindu Marriage Act and the husband has again married another woman in spite of the first wife being alive, the first wife can seek for a divorce.
· A girl is entitled to file for a divorce if she was married before the age of fifteen and renounces the marriage before she attains eighteen years of age.
· If there is no co-habitation for one year and the husband neglects the judgment of maintenance awarded to the wife by the court, the wife can contest for a divorce.
Divorce by mutual consent is addressed under S. 13 B of the Hindu Marriage Act, 1955 and Section 28 of the Special Marriage Act, 1954.
For this section to apply there are certain requirements which have to be met and fulfilled by both the parties to the divorce which can be stated as follows:
- The parties have been living separately for a period of at least one year
- They have not been able to live together, and
- They have mutually agreed that marriage should be resolved
The Supreme Court in 2012 ruled that the waiting period of six months can be waived off and a Marriage Laws Amendment Bill, 2010 was proposed which replaces the words "not earlier than six months" in Section 13-B with the words "Upon receipt of a petition." However the bill has not been yet passed by Lok Sabha as there was strong opposition to the bill and is still under a conflict.
We can conclude that prior to this Act; there was no provision for Divorce as this concept was too radical as the marriage was considered as a sacred and divine bond. In earlier marriages wives were the victims and were always at the mercy of their husbands and in- laws family and had no source to raise their voice and revolt. But we can notice that there are pros and cons of every law. So the lawmakers of our country have a hard role to perform to see the future implications and act in a cautious manner.
Image Source: http://chinnlaw.com/divorce-basics/fault-grounds-divorce/
Author- Bhavneet Singh Vohra
Vivekananda Institute of Professional Studies
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