What are the Grounds for Divorce in India?

Last Updated at: October 22, 2019
1065

Historically, marriage has been considered a sacrament according to Hindu Law. A marriage once performed was considered to last for seven lives. However, after the codification of Hindu Law in 1955, marriage is only partially sacramental. It is considered so because there now exists an option to ‘terminate’ a marriage, just as a contract would be. This option to terminate a marriage is known as divorce. Section 13 of the Hindu Marriage Act, 1955 deals with divorce and states the grounds on which one can apply for divorce. It is important to note that none of these grounds suo moto make a marriage ‘void’, the marriage is merely voidable. This means that parties can choose to continue living in matrimonial ties even upon occurrence of a situation which would be a grounds for divorce. The marriage is perfectly valid in the eyes of the law, and can be terminated only upon the innocent party (the person whose partner committed one or more acts which are grounds for divorce) approaching the court. I. Grounds for Divorce for Husband & Wife: Section 13(1) lays down the grounds for divorce. This article shall discuss each ground of divorce with relevant case laws and the current position of law. 1. Adultery: Adultery refers to the act “of voluntary sexual intercourse with any person other than his or her spouse”. In Sapsford v. Sapsford, the four basic conditions for an act to constitute adultery were laid down. Firstly, there ought to be physical intimacy, the act must have been voluntary, the person with whom the person committed adultery ought to be of the opposite sex and the other person must not be the spouse. In India as well, the stand is that some penetration by genital organs for the purpose of sexual pleasure is required for an act to be considered adulterous. The burden of proof is on the plaintiff and the burden of proof is high because of the nature of accusation (questioning the character and morals of the accused) involved. However, it is difficult to find direct proof of the adultery because of the very nature of the act. Therefore, circumstantial evidence is sufficient to establish adultery. As laid down in Hargovind Soni v. Ram Dulari, the Court held that the proof need not be beyond reasonable doubt, but should have a high level of probability. Some of the indicators of adultery that are generally recognised by the Courts as proof are circumstantial evidence, birth of child when there is non-access, contracting a venereal disease, visits to brothels, confessions and admissions and preponderance of probability. Some examples of proof in cases are, Swapna Ghosh v. Sadananda Ghosh, where the wife found her husband and his adulteress in bed. Or in Patta Dhanalakshmi v. PattaRamachandraRao, where a child was borne by the wife during the period of non-access. Considering the nature of adultery and how it is against the very fabric of marriage, the defences to this act are minimal. The only defence that is recognised by courts is if the plaintiff condoned or forgave the acts of the accused party. In such a case, divorce will not be granted. 2. Cruelty: Cruelty was added as ground for divorce in 1976. It was in Dastane v. Dastane, that the Court recommended this amendment to the Act. Further, this case also clarified the Indian position of the law and distinguished it from that of the English courts. Contradictory to the English position, the Indian position evaluates cruelty with respect to the aggrieved party, there is no concept of a ‘reasonable man’. Further, cruelty can be either physical or mental and Indian courts have recognised the existence of both forms of cruelty. Also, as held in Trimbak Narayan Bhagwat v. Kumudevi Trimbak Bhagwat, cruelty need not only be inflicted directly on the aggrieved spouse. Inflicting cruelty on a near and done one will amount to cruelty itself. The burden of proof is on the plaintiff (the person who is claiming divorce) and the burden is of the same level as that of the adultery, based on probability and not beyond reasonable doubt. 3. Desertion: One of the basic fundamentals of living in matrimony is that both partners share the bed and board, i.e., they enjoy cohabitation. Thus, ‘desertion’ was added as a grounds for divorce in 1976 as it was regarded as reprehensible discharge of marital obligations. There is no comprehensive definition of desertion, and the most suitable one states that ‘it is a withdrawal, not from a place, but from a state of things’. This definition essentially means that desertion can be actual or constructive desertion. Thus an important factor that ought to be present for desertion is ‘wilful neglect’. The legal position, laid down in the Bipin Chinder case, and reiterated by the Supreme court in the case of Lacchman UtamChand Kirplani v. Meena, is that factum and animus deserendi are two conditions required from the side of the deserting spouse and the lack of consent and absence of conduct giving reasonable cause to the leave the matrimonial home from the end of the deserted spouse are required in order to establish desertion. Thus, if an insane woman leaves her matrimonial home, as was in Peri v. Peri, it does not amount to desertion. Also, if one partner ignores the other and does not share matrimonial relations with the other partner even if they share the same house, it will amount to desertion. With reference to the law in England, the Supreme Court in the case of Bipin Chander v Prabhawati observed that the onus lies on the plaintiff to prove the offense of desertion beyond all doubt, and the evidence provided by him shall subsequently be corroborated. It is also important to note that the period of desertion ought to be a minimum of two years. 4. Conversion of Religion: Marriage is linked to religion, which is why various personal laws have separate laws relating to marriage. It is on this basis that the Act as well as the Courts opine that conversion of religion by a spouse after the marriage ceremonies are performed is a ground for divorce. Conversion of religion is known as ‘apostasy’ and the spouse that converts to another religion is known as an ‘apostate’. 5. Leprosy: The Supreme Court in Swarajya Lakshmi vs G. G. Padma Rao, laid down the basic requirements for divorce to be granted on a spouse suffering from leprosy. The Court clarified that the plaintiff only needs to prove that the spouse suffered from leprosy for a minimum of three years before filing the suit. There is no requirement that the three years of leprosy ought to occur during the subsistence of marital life. Moreover, the Court held that leprosy was a ‘virulent’ disease which according to medical terms is a non-curable and contagious disease. However, with advancements in modern science, leprosy is now regarded as curable and non-contagious. This has led to social organisations opposing this clause in the Act. However, this hasn’t been repealed and it is a valid grounds for divorce. The justification for this as given by the Court is that even when the Act was passed, cures for leprosy were known. The legislative intent behind including this clause in the Act is to give a chance to the other spouse to break marital ties if they decide to do so. On a balance of justice, it would seem unfair to ask a person to live with a sufferer of chronic disease as such leprosy. 6. Venereal Disease: A venereal disease is a disease that is contracted through sexual intercourse, it is basically a sexually transmitted disease. Considering the nature of the relationship between husband and wife, the Act permits divorce if the petitioner can prove the existence of this disease for three years prior to the filing of the suit. This time gap required has been heavily criticised and termed as ‘absurd’. Recently, in P. Ravikumar v. Malarvizhi the Madurai Division Bench of the Madras High Court included AIDS within the definition of venereal diseases. 7. Renouncement of the World: When a spouse renounces the world and enters into religious order, it essentially means that he/she will no longer be able to maintain a matrimonial relationship with the other partner. This would violate the fundamental concept of marital life. Thus, the Act provides for divorce on this ground. This clause also has historical basis as the Shastras and the Manu Smirit refer to men leaving home to lead the life of a sanyas. As laid down in early case laws, the decision to enter religious order ought to ‘irrevocable’. For example in Ramakrishna v. Srinivasarao, a decision of the Andhra Pradesh High Court, since the man did not ‘renounce worldly affairs’ but actually took an interest in the management of the household, it did not amount to ground for divorce. The person ought to renounce interest in worldly affairs completely. 8. Not Been Heard as Being Alive for Seven Years or Longer: In a recent judgment of the Andhra Pradesh High Court in Smt. Pilla Appala Narsamma v. The Record Officer, for OIC Records and Ors, the Court held that the burden of proof to prove that if a person was not heard of being alive by anyone who would generally know if she was alive, was on the petitioner. However, once this burden was discharged satisfactorily with requisite evidence, the burden would shift on the respondent if he/she wanted to prove that he/she was alive and this was known to the petitioner. But this does not mean that the presumption that the spouse is dead automatically means that the other spouse can get married again. It would still amount to bigamy. Therefore, this is only a ground for divorce. As already mentioned, the marriage is valid and subsisting and this presumption of death of the spouse after seven years has elapsed does not mean that the other spouse can marry again. II. Grounds for Divorce for the Wife: 1.Bigamy: Hinduism historically has allowed for polygamy. However, the codified laws made bigamy punishable. It is so under Section 17 of this Act as well. This relief of divorce is applicable only to women. This has been criticised by some, however, the legislative justification is keeping in mind the social conditions and situation of women in India. However, a murky area regarding such situations, is the trend of men converting to Islam to marry more than one wife. Hindu personal law strictly enforces monogamy whilst Mohammaden law allows for a man to marry four wives. It was in Sarla Mugdal v. Union of India, that the Court held that the second marriage will be invalid even if the husband converts to the other religion. 2.Rape, Sodomy and Bestiality: These grounds are available to a wife if the husband commits any of these offences. 3. Marriage Solemnised Before She is 15: Contrary to public perception, child marriage is perfectly valid according to Hindu Law. The only option available is to a woman who was married before the age of fifteen, and she repudiated between the ages of fifteen and eighteen. This is a narrow leeway given for divorce to child brides, and it is advisable to petition under the PCMA 2006, which is a secular law, which makes the marriage voidable at the option of the contracting party who was a minor.

Get FREE legal advice now

Procedure for Divorce

The Hindu Marriage Act lays down the following procedure for divorce where there is an option for the Hindu married couple to approach the courts: 1. The pre-condition for divorce for Hindus is that the couple should be living separately for at least one year. 2. There are two types of approaches to file an application for divorce. One is “by mutual consent” and the other is “by contest”. 3. The divorce application “by mutual consent” is easier as it takes lesser time as both husband and wife agrees for the grounds on which separation is sought. If the application is made “by contest” it leaves room for the counter party to contest the application and drag the case for years together without a valid reason. 4. The papers to be submitted includes the Income Tax returns for three years, details of present income, the purpose for applying for the divorce, birth and family details and the details of the assets possessed. 5. The applicant(s) should be open in discussions with the lawyer as to the marriage date, situations that compelled the divorce and the like. The more detailed the information is, the more easy it will be for the lawyer to file and fight the case in the applicant’s favour. 6. The procedure for divorce is time-consuming in India and may last for a year or more in certain cases, making the procedure often harrowing for the separated couple. 7. The grounds for Hindu divorce can be anything from adultery, desertion, mental disorder, renunciation, life threatening disease, no-resumption of co-habitation. 8. Once the application is made, the case comes up for hearing after six month during which period, the couple is asked to reconsider. If the couple does not appear in the court after this “cooling period” the application stands void automatically. Also, the couple can withdraw the application during these six months. 9. During the divorce process, the couple should come to a conclusion related to custody of child, return of marriage gifts, post-divorce maintenance and litigation expenses. 10. The alimony is a relatively new concept in India, whereby the separating partner agrees to support the other financially. In mutual consent cases of divorce, the alimony amount is decided mutually, but in contested cases, the courts of law steps in to decide the alimony amounts, when the parties fail to come out with an alimony amount.

    SHARE