This article is written by Shobhit Chakravarty B.L.S., LL.B 1^st year law student of KLE LAW College during his internship at Le Droit India.

Keywords: Divorce, Manu, Separation, Arthashastra, Marriage, Dissolution,

Introduction

Divorce was not a concept known to everyone since the very beginning when Manu said “Husband wife cannot be separated ever from one another, marriage has always been a sacred concept the concept of divorce arrived later. It has been mentioned in Arthashastra that marriage can be dissolved if both the parties express their consent, but if the viewpoint of Manu is seen, it is said that marriage can only be dissolved when one of the partners dies.

The Hindu Marriage act, 1955 introduced the provision of marriage which has been defined as the dissolution of marriage. Divorce is a legal procedure it is granted only when there is a legitimate reason otherwise alternate method is preferred.

The Theories of Divorce

Fault Theory

The theory states that if one person has committed an offence which falls under matrimonial offences so the innocent party has the right to seek the remedy but if both the party are at offence then no party has the right to file for divorce.

Mutual Consent

According to this theory both the party have the right to file for divorce by mutual consent, the theory is many times criticized by a lot of philosophers as it leads to hasty and unthoughtful divorces.

Irretrievable Breakdown

If two people are not able to fulfil the basic requirements of the marriage such as living together, compatibility with one another, etc then it may be termed a failure of matrimonial relationship so it becomes the ground for the dissolution of marriage.

Divorce under Hindu Marriage Act, 1955

The Hindu marriage act lays down certain provisions regarding the dissolution of the marriage the act was drafted in such a manner that it would be used for the interest of the society and no unnecessary divorces take place that is why divorces are granted only in the extreme cases otherwise alternative is used.

The Hindu marriage act Centres around fault theory which says any of the spouses can appeal for divorce under section13(1). Whereas Section 13(2) states that the wife can file for divorce.

Adultery

The concept of Adultery may not be considered an offence in many countries. But as per the Hindu Marriage Act, in the matrimonial offence, adultery is considered one of the most important grounds for seeking a 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 Adultery.  

Maybe it may not be a ground for divorce in many countries but in India, adultery is a ground for divorce, and divorces are granted much more easily on grounds of adultery in comparison to other grounds.

The concept of Adultery was inserted under the Hindu Marriage Act by the Marriage Laws Amendment Act, 1976.

In Swapna Ghosh vs Sadananda Ghosh And Anr. on 22 July, 1988

If the wife says she has seen her husband with some other girl on the bed then this becomes a strong ground for divorce she just needs a confirmation of some other person for the divorce.

Essentials of Adultery Essentials for proving Adultery

1. If it has been proved that the other spouse is involved in intercourse with another married or unmarried person.
2. If the intercourse is with consent.
3. The marriage should be valid at the time of committing the act.
4. The evidence is the most important part to prove the liability of the other person.

Cruelty

There should be violence (physical) Metal cruelty has also been inserted as a part of cruelty as mental torture is also torture determining mental torture is indeed hard to determine whereas physical one can be easily seen.

1. A spouse living an immoral life.
2. If the wife is having an affair.
3. If money is constantly demanded.
4. If a false allegation is made against a spouse.
5. If the husband is humiliated in front of his family members.

How do determine that the Husband committed Mental Cruelty against the Wife?

1. False accusation of adultery.
2. If the husband is demanding dowry from the wife.
3. If the husband is Impotent.
4. If the husband is forcing the wife for an abortion.
5. If the problem of drunkenness lies with the husband.
6. If the Husband is having an affair.
7. If the husband has Aggressive or uncontrollable behaviour.

Desertion

Desertion means if there is permanent abandonment of one of the spouses by the other spouse without giving any reasonable justification.

 What are the Essentials for Desertion

1. If there is Permanent abandonment of the other partner.
2. Rejection of the obligation of marriage.
3. Without any reasonable justification. If there is no proper justification.
4. If the other spouse does not give consent.

Conversion

If one partner gets converted to another religion without the consent of the spouse then it is the ground for getting a divorce.

Leprosy

Leprosy is an associated communicable disease of the skin, mucose membranes, system etc. this illness is transmitted from one person to a different. therefore it was thought about out because of the valid ground for divorce.

No petition for Divorce within one year of Marriage

As per Section fourteen, no Court can entertain the petition of divorduringong the one year of the wedding. however may be pleased if the matter is said to be to bigamy, and wherever the consent of the significant other was taken through  a false statement, fraud, undue influence etc.

Re Marriage of a Divorced Person

As per Section fifteen, when a marriage ends and no additional petition was filed by any of the spouses against the order of the court and also the time for attractiveness has expired. At that point, it’s assumed that parties are satisfied. Then solely the single person will marry once more.

CONCLUSION

There are many provisions for getting a divorce under Hindu Marriage Act, 1955. According to Hindu Marriage Act Divorce is a dissolution of Marriage. The theories related to divorce are “Fault theory, Irretrievable theory, and Mutual Consent” The theory that works on the matters of divorce is the Fault theory. Marriage can be ended if one of the spouses commits an offence under matrimonial offences. The grounds on which a spouse can seek the remedy of divorce are adultery, Desertion, leprosy, Cruelty, and Conversion. The concept of maintenance makes the Hindu Marriage Act makes it unique Section 125 contains provisions of Maintenance so whoever is innocent can appeal in court and seek the remedy.