Grounds For Divorce To A Woman Under Hindu Marriage Act
Author: LawSphereX
Category: Family & Personal Law
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GROUNDS FOR DIVORCE TO A WOMAN UNDER HINDU
MARRIAGE ACT
Satyam Sharma, BA LLB (Hons), IILM University, Greater Noida
ABSTRACT
As we being the part of greatest constitution which had laid the foundation of our democratic country, since then we haven’t stopped. As our constitution being mother of all our statutes and acts passed y legislature safe guards the rights of every individual apart from caste, sex, creed, color, religion and etc. Our country has witnessed the overhaul of our legal systems through plethora of judgments which had pin-pointed the lacuna’s created by the law makers. In the present paper we will discuss about what set of grounds do a women have to take divorce and what in future we can foresee new grounds for divorce. In our nation’s history women were subject to various atrocities to which even today they are subject to. We have various legislations and above all our constitution which are structed and drafted rightly to meet needs of upcoming generation.
We lack behind the effective implementation, patriarchal society and lack of quality educated people, due to which we are still witnessing these heinous crimes like dowry death, domestic violence and others. A marriage being a social institution on which our society works and is the foundation of everyone’s family. Sometimes what happens is the one of the parties comes under the ambit of grounds of divorce mentioned in Section 13 of Hindu Marriage Act and whereas in Muslim law there is no specific codified law which speaks out for the same. In this paper we will not touching the ambit of what grounds do a woman have for lawful divorce. Keywords: Marriage, Solemnization, Divorce.
Introduction
Hindu marriage refers to the girl and boy solemnizing the relation with all the tradition and rites or custom. A marriage in the Hindu ancient tradition is prevailing from time immemorial which have evidence entrancing from Vedic periods to modern worlds with different modifications that have occurred in meanwhile. The Hindu Marriage Act, 1955 governs the marriage between two Hindus, it is not exhaustive, it extends to Sikh, Budhism and others who don’t follow Christianity and Islam1. It also extends to the person who is a Hindu outside the Indian Territory2. Unlike other marriage being contract rather a nature of contract, but in Hinduism it is considered to be a scarcement and husband and wife has the strongest relation between them supplementary it is ever lasting unbreakable bond.
The importance of marriage is not extended to one generation but in depth it is believed that it has eternal bonds. Without a spouse a person is declared to be incomplete while performing any rites of Hinduism. For a long period of time Hindu Marriage rites have been changed accordingly due to the foundation of justice, equity and good-conscience accompanying with the principles followed in vedas and hindu scriptures. Marriage is recognized as one of the 16 sacrament and this bond continues even to seven lives instead being related to unbreakable bond. As per the Vedas, man is complete until he gets married and meets with partner. The sacramental nature of marriage of a Hindu marriage is a religious sacrament in which a man and a woman are bound in a permanent relationship for the physical, social and spiritual need of dharma, and procreation.
Mariage is a very important social important for society which is start of union between two opposite sexes3. The three primarily contends that a nature of marriage is a (1) enduring bond of the husband and wife which is permanent and tied even after the death of the couple; (2) no one can untie and (3) it is pious and holy union of marrying parties. With initiation of globalization era and increased exposure to the Western society, there is a shift in the perception of marriage and relationships. In the past, woman was expected to indulge in household chores and often sacrificed their own aspiration and dreams. This shift has challenged the patriarchal and traditional gender theories. The impact was further intensifying with inception technology and mass media, as it has led to easy accessibility of information and exposure to the variety of education, economic liberalization.
These factors have initiated empowerment of woman
1 Section 2 Application of Act
2 Section 1 Short Title and extent
3 Girase RD, Haralkar SJ, Mulaje SM, Mangulikar SK. A Study of Socio-de mographic Factors Leading to Divorce – A Social Problem. Ntl J Community Med 2016; 7(2):116-120. which made self fulfilment and personal growth within the ambit of marriage. But still the Indian social stigma can be seen in the society. Even today, divorced individuals prominently women always face various difficulties in reinitiation their life. This paper will delve into the grounds of divorce which a woman has and understanding the trend of divorce in India. Conditions & Essentials of Hindu Marriage The marriages under Hindu law are not only regulated by customs, tradition and rites but also accompanied with different practices prevalent in various provinces and among diversified communities. The institution of marriage is highly sacred and considered to pious of all relations and ties between two individuals.
The institution of marriage is always considered to be highly sacred in Hindu and a sacramental bond. Some of the prominent and widely followed are ‘Saptapadi’4 and ‘Kanyadaan’5. The present act6 which governs the marriage between Hindus is dominated by the Manusmruti and other Shastras which have specified certain set of rights and liabilities of the husbands and wives in a solemnized married. These laws govern only marriage between Hindus7. The essentialities for solemnizing a marriage are8 - (1) The parties must be Hindus- Anyone who is born and brought with traditions and culture as a Hindu or converted or re-converted to Hindu religion is governed by this section. Evena Buddhist, Jaina or Sikh by religion also comes under this definition9. (2) Forbidding Bigamy10- the law also prohibits from having more than one spouse at one time.
It is expressly stated in the section and a marriage solemnized even after the spouse living at that time is void and parties are liable for punishment. The expression ‘spouse’ which is being used here means a lawfully married person. Even before solemnizing a marriage it is necessary that both parties must be either un-married or 4 Seven Steps before the holy fire or homam (also stated under section 7 (2) of Hindu Marriage Act, 1955) 5 When prominently offers her daughter to the husband as to handover over the responsibility of care taking and responsibility.
6 The Hindu Marriage Act, 1955, herein referred as “This Act” or “HMA”
7 M. Vijayakumari v K. Devabalan 2003 Ker.
8 As per stated under Section 5 & 7 of Hindu Marriage Act, 1955; https://www. thehindu. com/news/national/hindumarriage-not-valid-unless-performed-with-requisite-ceremonies-sc/article68130754. ece 9 Section 2 (1) expressly states to whom it is applicable like “to any person who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj”. 10 The situation has fairly changed due to Sarla Mudgal v UOI (1995) as court had protected the exploitation of the women through the lacunas in the law by criminalizing bigamy even after changing religion and spouse from prior faith is living. divorced only then they are competent to marry anyone. In the case of Rakshel v Vinod Kumar Nayak11 , in this case the court nullified the marriage on the ground that there was not custom between the parties for divorce12.
Under Section 108 of Indian Evidence Act, 1872, a seven-year rule is applied for presumption of death of husband13. (3) Mental Capacity- This is one of the conditions for solemnizing Hindu Marriage, both parties must be mentally sound and not suffering from any mental disorder or insanity. At the time of marriage, a party must be able to wilfully give a valid consent. The mental incapacity must be to such and extent that it is difficult to live a normal life and procreation of child. If we see HMA, there is no express definition of Mental disorder or Mental unsound, as it depends ultimately case to case basis. (4) Age requirements- The act have laid down that at the time of marriage the bride and bridegroom must be 18 and 21 years respectively. It is very interesting to note that when a marriage is solemnized in violation of this condition are neither void or voidable.
But it can be punishable under Section 18 of this act, and Section 3 of PCMA as it will have overridden effect over the provisions of this act14. (5) Prohibited Relationships- This clause states that the party to marriage must be related to each other under prohibited degree of relations unless it is proven to the court that a custom prevails15. (6) Sapinda Relationship – Under thus clause any marriage which is solemnized between parties who are related to each other as sapindas, unless a custom is proved16. Section 7 states the ceremonies which are essential for Hindu Marriage. A marriage can be solemnized under the custom, traditions and practices of either party to marriage. There is no express definition of word solemnization, in common practices it means to “perform the
11 AIR 2012 Chh 100
12 Pilla Narasamma v Record Officer, AIR 2011 AD 183- the custom of divorce was not proved and the second marriage was declared null and void. A customary dissolution must be proved as a long standing practice in the community from the time immemorable.
13 Surjit Kaur v Ghujhar Singh, AIR 1980 P&H 274.
14Satyajeet Desai, Mulla on Hindu Law, LexisNexis (22nd Edition) 855 15 Section 3 (a) of HMA – expressly states the condition in which custom can be regarded as binding on parties. Also see why a person must not marry in a prohibited relationship – Hina Gupta, Marriage In Prohibited Relations: Reasons And Consequences, Indian Journal of Law and Legal Research, Volume V Issue II (ISSN: 2582-8878)
16 Id. 15, Balusami v Balakrishna, AIR 1957 Mah 97.
official marriage ceremony”17 or “to celebrate (a marriage) with religious rites”18, the crux of the above two meaning comes to marrying someone with religious rites and practices19. The positive side of HMA is that it gives leverage to the parties to solemnize their marriage in accordance with custom and practices of their own and rather stating pre-defined procedure in the act. The essentials which are required under Hindu marriage are (i) invocation of fire and (2) saptapadi20. In so far, the above stated are the essentials for a solemnized Hindu Marriage and must be complied for a valid and lawful binding marriage. Grounds for Divorce The section 13 of HMA has expressly stated out the grounds for divorce, in which a married couple can end up their marriage but it is not easy though. In India, getting married is way easier than getting divorce which.
A divorce can only be granted when the parties have duly solemnized their marriage21 and is to be dissolved by the court only. The grounds of divorce are- (1) Adultery22- It is an act of voluntarily indulging into sexual intercourse out of the marriage any person other than the spouse23. The act of adultery is being decriminalized by the Supreme court in the case of Joseph Shine v Union of India24, and mere deletion does not mean that there are no consequences for engaging in this act. It only means that from now no one will have criminal liability but rather a civil remedy of divorce only. The burden of proof is on the person who makes allegation but finding a direct proof is difficult, rather it can only be proved through surrounding circumstances or by
17 Cambridge Dictionary
18 Merriam-Webster Dictionary
19 These customs and practices must be proved or prescribed by law – Eswari v Parvathi, AIR 2014 SC 2912; Priya Bala v Suresh Chandra, AIR 1971 SC 1153
20 It means seven steps.
21 Section 13 (1)- “Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party....” 22 Section 13 (1)(i)- “has after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse”. 23 For better explanation and what to know what adultery means – Dennis v Dennis (1955) 2 All ER 51 & Sapsford v Sapsford (1954) 2 All ER 373.
24 W.P. (Criminal) No. 194 of 2017
a way of witness25. (2) Cruelty26- The legal and exhaustive definition of cruelty is not mentioned anywhere in the Indian legislature as to what action or act amount to cruelty. It is difficult but rather impossible to give a particular category due to its unending definitions27. The Supreme Court in the case of Dastane v Dastane28, it was enumerated that the conduct must of such an extent which gives a reasonable apprehension of harmful and injurious to live for the petitioner to live with respondent29. The language of this provision is comprehensive and covers all the cases of physical and mental cruelty. The act of cruelty depends upon various factors like physical and medical condition of the parties, age, environment, status of life and standard of life30.
The court has to weigh all the evidence and incidents, while keeping in the mind that to what impact was on the personality and conduct of spouse upon the other31. The Supreme court has also made distinction between intention to commit cruelty and actual act of cruelty32. (3) Desertion33- This term is also very difficult to define, in general parlance it means that 25 Parmila Devi v Amarjit Singh, AIR 2015 P & H 63- The court in this case granted divorce on the ground of adultery as there was strong supporting evidence of wife being found in a compromising position; “8 On consideration of the matter, we find no force in the argument of learned counsel for the appellant.
The record indicates that respondent- Amarjit Singh substantiated his allegations against the appellant by making a statement on oath and also by examining the mediator of their marriage, who deposed in clear words that he had seen the appellant and Gurinder Singh-respondent No. 2 in a compromising position in a public park at Kharar. The information of Amarjit Singh regarding illicit relationship between the appellant and Gurinder Singh may be based on what was communicated to him by his children or some other persons but PW1- Joginder Singh was an eyewitness. He was the mediator to the marriage of the appellant with respondent Amarjit Singh and he had seen the appellant with Gurinder Singh in a compromising position. He had no score to settle with the appellant and therefore had no reason to depose against her.
The evidence given by him was an eye witness account and there is no reason to disbelieve him. 9. Importantly, despite having been given adequate number of opportunities to cross-examine respondent-Amarjit Singh and PW1- Joginder Singh, the appellant failed to do so. There being no cross examination of the witnesses on the facts deposed by them, the irresistible conclusion is that the said facts stood admitted by the appellant. ” 26 Section 13 (ia)- “has after the solemnization of the marriage, treated the petitioner with cruelty”. 27 Sheldon v Sheldon, (1966) 2 All ER 257- the categories to what cruelty means are not closed, it eventually depends upon case to case.
28 AIR 1975 SC 1534.
29 Rajan Ravankar v Shobha AIR 1995 Bom 246
30 Supra 14, 916
31 Kaushalya v Wisakhi Ram, AIR 1961 Punj 521; N. Rajendran v. S. Valli, [2022] 16 S. C. R. ; Mrs. Nidhi Kedia Nee Chokhani v Sri Abhyudaya Kedia, F. A. No. 64 of 2021 With I. A. No. CAN 3 of 2023; DR. Nirmal Singh Panesar v. Mrs. Paramjit Kaur Panesar @ Ajinder Kaur Panesar, [2023] 13 S. C. R. 832 : 2023 INSC 896; Shilpa Sailesh v. Varun Sreenivasan [2023] 5 SCR 165 : 2023 SCC OnLine SC 544. 32 Shilpa Sailesh v Varun Sreenivasan, 2023 SCC OnLine SC 544- “33. Thus, there is a distinction between intention to commit cruelty and the actual act of cruelty, as absence of intention may not, in a given case, make any difference if the act complained of is otherwise regarded as cruel. Deliberate and wilful intention, therefore, may not matter”. The court had also defined what constitutes mental cruelty in the same para.
33 Section 13 (ib) – “has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition”. abandonment of one spouse by the other without any reasonable cause or wish or without the consent. In Mulla on Hindu law, the author have gave certain essentials or ingredients of this offence- “(i) factum of separation; (ii) intention to bring cohabitation permanently to an end- animus deserendi ; (iii) the element of permanence which is a prime condition requires that both these essentials ingredients should continue during these essential ingredients should continue during the entire statutory period”34. (4) Ceased to be Hindu35- The marriage under this act is only solemnized between the parties and the lawmakers have given a ground to seek dissolution to the marriage when one of the spouses changes their religion.
Conversion means that the person ceases or voluntarily relinquishes his religion and adopted another religion by a way of formal ceremony. (5) Unsound Mind36- The mental disorder must be to such extent that it makes impossible to govern a peaceful and normal marriage life37. Burden of proof comes on the party who asserts this ground38. The respondent being lunatic must be proved with a prima facie evidence of unsoundness of mind. The insanity or mental disorder must be incurable. (6) Venereal disease39- The venereal disease must be in a communicative form. The term “communicable form” means that it can be to other spouse or children born out of the wedlock but there must circumstantial evidence which proves that it is caused by the respondent only. 34 Supra 14, 935.
Kamal Kumar v Kalyani, AIR 1988 Cal 111; Adigarla Venkata Lakshmi v Adigarla Venkata Satya, AIR 2011 AP 15; Ravindra Kumar Tiwary v Anadi Tiwari, AIR 2012 Jhar 105.
35 Section 13 (ii)- “has ceased to be a Hindu by conversion to another religion”
36Section 13 (iii) –“has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent Explanation.--In this clause-- (a) the expression mental disorder means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia; (b) the expression psychopathic disorder means a persistent disorder or disability of mind (whether or not including subnormality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment”.
37 B.N. Panduranga Shet v S.N. Vijayakshmi, AIR 2003 Kant 357; Shiv Sagar v Smt. Poonam Devi,
2024:AHC:139479-DB (
38 Sampa Karmakar v Dr. Sajib Karmakar, AIR 2012 Gau 32
39 Section 13 (v) has been suffering from venereal disease in a communicable form
(7) Renouncing world40- Under Hindu law, when a person renounces all the worldly affairs and leave a life as a saint. The term religious order means to adopt any of Hindu, Sikh, Jain and Buddhists. The person is said to renounce the world, when necessary, ceremonies and rites and are proved by a way of evidence. (8) Not Known to be alive41- The rule of seven-year presumption is applied in this case, the petitioner must not have any hereabouts the respondent and is dead. The court will analyse every fact and circumstances must govern that respondent is presumed to be dead42. (9) No resumption of cohabitation43- Under the present clause the either party have filed a petition by showing that there is no possibility of cohabitation for a period of one year or upwards after passing the decree of judicial separation.
(10) No restitution of conjugal rights44- When one of the parties to marriage had obtained a decree of restitution of conjugal rights, apply to the court for decree of divorce by showcasing that there has been no attempt restitution for a period of one year or upward45. After all this above stated grounds, these all provided to both husband and wife but from Subsection (2) wife has been granted certain grounds for divorce- (1) Husband having more than one wife alive- Under HMA, monogamy is being followed and bigamous marriage is null and void. A petition for dissolution of marriage, that the husband known to the fact and have concealed this essential fact or even known to this has been married by another spouse. This is to be proved by an evidence of marriage performed with another spouse46.
40 Section 13 (vi) has renounced the world by entering any religious order
41 Section 13 (vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive
42 Parkinson v Parkinson, (1939) 3 All ER 108
43 Section 13 (1A) (i) – “that there has been no resumption of cohabitation as between the parties to the marriage for a period of 8[one year] or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties”. 44 Section (1A) (ii) – “that there has been no restitution of conjugal rights as between the parties to the marriage for a period of [one year] or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties”.
45 Bhagaban Sahu v Maya Sahu, AIR 2013 Ori 11; Dharmedra Kumar v Usha Kumar – AIR 1977 SC 2218.
46 Ishwar Chander v Pomilla, AIR 1962 Punj 432; Nagana v Lachmi Bai, AIR 1963 AP 82 and Gitabai v Fatto, AIR 1966 MP 130.
(2) Husband has been guilty of rape, sodomy or bestiality- The husband in the present clause is guilty or accused of rape, sodomy or bestiality since the solemnization of the marriage. It is essential that the husband must be convicted47. Wife can sue only when the marriage is solemnized and husband is convicted for any unnatural offence being committed and convicted. (3) No reconciliation48- It is an additional ground of divorce for wife to seek divorce when even after the period of one year has lapsed and maintenance being awarded, no attempt of reconciliation is done49. (4) Repudiation of marriage50- This clause protects the woman who are married under the age of 15 years to take divorce but not before attainment of 18 years51. This clause applies either before or after the commencement of this act, which give both retrospective and prospective approach.
Conclusion In conclusion, the Hindu Marriage Act is self sufficient to adapt with present societal needs and with numerous judicial interpretation have made a wider understanding of present or modern approach of divorce under Hindu Marriage Act. But still the legislature must also pay heed to issue like Marital Rape as there are dicey opinions of various High Courts52. So, in my suggestion I would like to say that the divorce must be expeditiously resolved or let the parties reconciliation to maximum extent and if it seems no significance the party must try to take divorce.
47 Gardner v Gardner, (1947) 1 All ER 630.
48 Section 13 (2) (iii)- “that in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) (or under the corresponding section 488 of the Code of Criminal Procedure, 1898 (5 of 1898), a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards”.
49 Ramesh Kumar v Sunita Devi, AIR 2005 P&H 55
50 Section 13 (2) (iv)- “that her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years”.
51 Jiviben v Dahyalal, AIR 1984 Guj 6; Ramesh Kumer v Sunita Devi, AIR 2005 P&H 55.
52 Mr. Hrishikesh Sahoo v State of Karnataka, [Writ Petition No.48367 Of 2018 (Gm-Res) C/W Writ Petition No.12976 Of 2017 (Gm-Police) Writ Petition No.10001 Of 2018 (Gm-Res) Writ Petition No.50089 Of 2018 (Gm- Res)]; Justice J.S Verma (Retd), Report of the Committee Amendments to Criminal law 113.