This article provides several grounds for divorce, which are contained in Section 13 of the Hindu Marriage Act of 1955. Various precedents have been added to this reason.
SECTION 13 HINDU MARRIAGE LAW 1955 – DIVORCE
Divorce among Hindus was not recognized until after the Hindu Marriage Act of 1955. Manu says that a marriage can only end with the death of one of the spouses. Any other divorce has not only been frowned upon, but deeply stigmatized and biased. Divorce was seen as a sin.
British India only had the Divorce Act of 1869[i] This provided for the divorce proceedings in India for people who profess the religion of Christianity. Otherwise there was no decree on the divorce process in India.
It was not until 1955 that Parliament passed the 1955 Hindu Marriage Act, and provisions related to the concept of divorce were incorporated into the law. Divorce, the term mentioned was not defined in the law, but simply means dissolution of the marriage. Various grounds for divorce are mentioned in Section 13 of the Hindu Marriage Act[ii].
Reasons for divorce
1. Adulterer – Section 13 (1) (i)
Adultery means voluntary sexual intercourse outside of legal marriage.
It is up to the petitioner to prove that there was a lawful marriage and that the interviewee had sexual intercourse with someone other than himself. The marriage must exist at the time of the act.
Supreme Court in Joseph Shine versus Union of India[iii] decided adultery is not a crime and struck Section 497IPC. It has been observed that if a cheater goes too far in associating crime with infidelity, two people can separate. Adultery is a personal matter, and how a couple deals with it is a privacy issue. This loss of moral engagement in the marriage that affects the relationship has been left to the couple’s personal reputation. If they wish, they can proceed with the divorce.
2. CRUELTY – Section 13 (1) (ia)
Treating the petitioner with cruelty after the marriage ceremony is a ground for divorce. Cruelty can be both physical and mental. Physical beatings or bodily harm to the spouse mean physical cruelty. Physical cruelty is easy to pinpoint. It is difficult to say what constitutes spiritual cruelty. Cruelty is also a section 498A IPC offense[iv]
a) The behavior complained of should be “serious and difficult”.
b) The petitioner’s spouse cannot reasonably be expected to live with the other spouse.
c) It has to be something more serious than “ordinary wear and tear of married life”.
Some cases of mental cruelty
1. False charges of adultery
2. Demand for dowry
3. Alcoholic and Abusive Partner
4. Woman impotence
5. Immoral life of partner
3. DESERTION – Section 13 (1) (ib)
It can simply be understood that a spouse is being abandoned. According to Section 10 (1) HMA[vi]Divorce can result if the petitioner has been abandoned for an uninterrupted period of two years immediately prior to filing the petition.
a) Separation factor
b) Animus Deserdendi, that is, the intention to desert
c) Desertion for no good reason
d) Desertion without the consent of the other party
e) The legal period of 2 years must have passed before a petition can be submitted
4. CONVERSION – § 13 Paragraph 1 Letter Ii
If one spouse ceases to be Hindu and converts to another religion without the consent of the other spouse, divorce can be granted.
5. Madness – Section 13 (1) (iii)
There are two requirements for insanity as a reason for divorce:
a) The respondent was terminally insane
b) The respondent suffers continuously or intermittently from a mental disorder to such an extent or to an extent that it would not be reasonable for the petitioner to continue living with the respondent.
6. LEPROSIA – Section 13 (1) (iv) (omitted)
Leprosy used to be one of the reasons for divorce now omitted. In its report, the Legal Commission recommended repealing all provisions that discriminate against people affected by leprosy. India is also a signatory to a UN resolution calling for the elimination of discrimination against lepers. On February 13, 2019, parliament passed the law amending personal rights[vii] Eliminating Leprosy as a Ground for Divorce under Five Personal Laws, including the Hindu Marriage Act.[viii]
7. VENEREAL DISEASE – Section 13 (1) (v)
A sexually transmitted disease that is incurable and communicable forms a ground for divorce if one of the spouses suffers from such a disease. A disease like AIDS is known as an STD.
8. RENUNCIATION – Section 13 (1) (vi)
If one of the spouses chooses to renounce the world and enter a sacred order, the other spouse can file for divorce. The renunciation of the world by entering into a religious order must be absolute. It amounts to a civil death and has the effect of excluding a person from inheritance and the right to division.
8. DEATH REQUIREMENTS – § 13 Paragraph 1 Letter Vii)
If a person has not been heard as alive for at least seven years by people who would of course have heard of if that party had not been alive, that is a legal presumption of death.
This presumption can be rebutted if a person has not been heard in the past 7 years due to special circumstances such as fleeing for murder.[ix]
SECTION 13 (1A) (i) – Failure to comply with the Judicial Separation Decree
If the couple has not resumed cohabitation within a year since the decree on judicial separation was passed, one of the spouses can apply for divorce. Resumption of coexistence simply means living together in a conjugal relationship.
The court will issue a divorce judgment under 13 (1A) if there is no ban set out in Section 23 of the HMA.
SECTION 13 (1A) (ii) – FAILURE TO COMPLY WITH DECLARATION OF CONJUGAL LAW
The restoration of marital rights means the restoration of marital obligations. If there has been no resumption of marriage law for a year after a decree was issued under Section 9 of the Act, one of the spouses can apply for divorce.
For this reason, before issuing a divorce decree, the court may convince itself that the petitioner is on the basis of one of the reasons set out in section 23 of the Act.[x]
in the Saroj Rani versus Sudarshan Kumar[xi] It was found that if the husband received a decree on the return of marital rights, only to apply for divorce among s. 13 (1 A) (ii) of the law and preventing the woman from fulfilling her marital duties by evicting her from the house, this constituted misconduct under s. 23 (1) (a) of the law, since the Husband took advantage of his injustice and was therefore not entitled to relief after s. 13 (1A) of the Act.
SPECIAL REASONS FOR DIVORCE FOR THE WIFE
The woman was given special reasons to get a divorce.
SECTION 13 (2) (i) – BIGAMIA
If a husband has a wife before the law begins and marries another woman after the law begins, one of the two wives can apply for divorce. The only driver is that the divorce petition would be successful if the other woman were still alive at the time the petition was filed.
SECTION 13 (2) (ii) – Rape, Sodomy, or Bestiality
A woman can file for divorce if her husband has committed rape, sodomy, or bestiality since the marriage ceremony.
Rape is a criminal offense under Section 375IPC. Section 375 of the IPC, which defines rape does not criminalize marital rape. Rape laws Our country maintains the patriarchal stance that women are the property of men after marriage. After marriage, a woman is said to have tacitly consented to having her body used in the way that her husband liked.
Exception 2 to Section 375 is that sexual intercourse or sexual acts by a man with his wife who is not younger than 15 years is not rape. Section 42A was added to the POCSO Act, stating that to the extent of inconsistency, the provisions of POCSO would take precedence over all other laws including IPC. According to the POCSO, a child is a person under the age of 18 and any sexual intercourse with a child under the age of 18 is a criminal offense. POCSO takes precedence over IPC. However, the law is still silent about the rape committed by a husband of his wife who is 18 years or older.
Sodomy is committed by a person who has carnal copulation with a member of the same sex or with an animal, or who has non-coital carnal copulation with a member of the opposite sex. Bestiality means the sexual union of a person against the order of nature with an animal.[xii]
SECTION 13 (2) (iii) – REGULATION OR MAINTENANCE ORDER
If a decree to uphold the woman under Section 18 of the Hindu Adoption and Maintenance Act of 1956 or
A maintenance order was issued against the husband in accordance with Section 125CrPC
The woman has the option to apply for divorce if two conditions are met:
a) That she lived apart
b) Since the adoption of such a decree, there has been no cohabitation between her and her husband for at least a year.
SECTION 13 (2) (iv) – MARRIAGE BEFORE the age of fifteen
A woman can apply for divorce if the marriage was solemnly concluded before the age of 15. Such a child bride can cancel the marriage upon reaching puberty and ask the court to reject the marriage after reaching the age of 15, but before reaching the age of 18.
Courts allow child brides to exercise this right to protect those who may have been coerced into marriage.
Section 13 contains various grounds for divorce that are available to the spouse. Wives were given additional grounds to apply for divorce. Hindu marriage law adopts the theory of error related to divorce, which means that the marriage can be terminated if one of the spouses is responsible or liable for the offense due to marital offenses. The innocent spouse can apply for divorce.
As pious as a marital relationship is, it is important to recognize divorce in a civilized world. Apart from the various reasons mentioned here, Divorce by mutual consentIrrecoverable breakdown of the marriage is one of the other reasons that: a Married couple because of divorce. The increasing emphasis on individual freedom and their choices has increased acceptance of divorce in our country, and stigma has also decreased, which is a positive change in society.