This article on ‘Grounds for Divorce under Indian Laws‘ was written by Rishabh Tyagi, an intern at Legal Upanishad.
Introduction
This article tends to state different grounds under which a divorce petition can be filed by either spouse under Indian law. Understanding the futility of preserving a legal bond between a man and a woman which in reality became a source of suffering and subjugation, the lawmakers provided provisions in the Hindu Law for the parties seeking dissolution of their marriage. It shall be noted that the grounds are nearly the same in substance for divorce under different laws. The Hindu Marriage Act, of 1955 substantially changed the landscape in the domain of getting a divorce as under the old law this concept was alien.
Section 13 of The Hindu Marriage Act, 1955
Under this section, various grounds are given based on which a party to a marriage can file a petition for divorce if the act of the other party falls under the purview of any of the subsequently stated grounds. This provision can be considered to be among the most comprehensive provision. Since its inception in the Hindu Marriage Act, of 1955, the provision has been altered to meet the challenges of society.
Grounds for Divorce under Section 13 of the HMA:
Adultery [13(1)(i)]
It is the act of having sexual intercourse during the subsistence of the marriage by either party to the marriage with a person of the opposite sex not being the other spouse. The act shall be committed after the solemnization of the marriage with the petitioner, to consider it to be ground for divorce. Since it is rare and difficult to get direct evidence for this act, the criteria for acceptance of proof is not to reach certainty but it shall point towards a high degree of probability.
Cruelty [13(1)(ia)]
Cruelty is the conduct of one party of the marriage that is prejudicial to the other and it can be either mental or physical. To invoke this ground a reasonable apprehension of death or injury for one spouse to live with other is enough.
In Dastane vs Dastane[1], the Supreme Court held that the test for reasonable apprehension provided under English law is not to be followed as it required that there shall be a real danger to the life or limb of the person facing cruelty. In this case, it was stated by the Court that to establish cruelty, proof beyond a reasonable doubt is not required and preponderance of probability would suffice.
Cruelty is also punishable under Section 498 A of the Indian Penal Code, 1860 which was added by the way of amendment in 1983. It provides for punishing the cruelty on part of the husband and his relatives towards the wife. The concept of cruelty is given a new element via this section.
Desertion [13(1)(ib)]
Desertion breaks the very essence of marriage which is the living together of both spouses. Divorce can be granted under such grounds if the respondent has deserted the petitioner for a period of more than two years. The period shall be continuous.
In Smt. Snehlata Seth vs Kawal Krishna[2], the Court held that where the wife left the husband’s house for his mood and temper to be calmed would not amount to desertion. Here the husband had no willingness to welcome her back. So, the divorce was not granted on the ground that the wife had deserted.
It is not always necessary that there should be a physical separation. Desertion can happen under one roof and it is termed as wilful neglect or constructive desertion. In this, the conduct of the party itself signifies the act. The requirements are the same as actual desertion. The neglecting is solely responsible and such conduct may amount to mental cruelty as held by the Karnataka High Court. In Dinshaw vs Dinshaw[3], it has been held that constructive desertion is to be inferred from the facts and circumstances of each unique matter.
Unsound Mind [13(1)(iii)]
This ground can be seen under two different lights- one prior to 1976 and another after the amendment in 1976. Before the amendment, in order to get a divorce under this head the petitioner had to show the unsoundness of mind persisted in the respondent for a period of three years. But the amendment took away this time limit.
What needs to be proved now is that the respondent is of unsound mind, it is incurable and the level of insanity is such that it is difficult to live with such a person. In Dastane vs Dastane, the Court denied the petition on this ground based upon the fact that even though the respondent was suffering from mental illness, her condition was recovered in its entirety before marriage.
Incurable Leprosy [13(1)(iv)]
The only condition to be fulfilled is that the respondent suffers from leprosy and it is virulent and incurable. In Peddigari Annapurnamma vs Peddigari Appa Rao, the respondent opposed the husband’s restitution of conjugal rights petition on the ground of leprosy. It was found that the condition was mild and her contention was dismissed.
Presumption of Death [13(1)(vii)]
If the whereabouts of a person who is a party to a marriage is not known for a period of seven years, he/she is deemed to be dead legally. No one in the relatives or the near and dear ones must have any knowledge in order to invoke this ground for a divorce.
Conclusion
Although there has been a significant improvement from there being no provisions for a divorce to there being proper statutory grounds, still there is scope for improvement in this area. The above-mentioned grounds are in no way exhaustive and there are few other technical grounds upon which a petition for divorce can be filed like conversion of religion by a spouse, renunciation of the world, etc.
The legislature needs to match the fast pacing of the changes that are happening in society as certain provisions and the timeline of expecting relief from the Court are such that a common man would rather stay away from the Court and entangle himself in the technicalities. Certain cases demand quick solutions due to the circumstances and it would be prudent to make such laws that would give justice timely in line with the principle of equity and good faith as the entire trajectory of the life of the parties to the case depends upon the final decision of the case.
References
- [Vidhikriya]. (16 November 2022). Divorce Grounds: What Are Legal Grounds For Divorce In India?. Retrieved: https://www.vidhikarya.com/legal-blog/divorce-grounds-what-are-legal-grounds-for-divorce-in-india
- Vikas Chaudhary. (16 November 2022). Analysis of Grounds of Divorce under the Hindu Marriage Act, 1955. Retrieved: https://www.latestlaws.com/articles/analysis-of-grounds-of-divorce-under-the-hindu-marriage-act-1955
- [B and B legal]. (16 November 2022). Legal grounds for divorce in India. Retrieved: https://bnblegal.com/article/legal-grounds-for-divorce-in-india/
- [Legal Services India]. (16 November 2022). Grounds of Divorce in India. Retrieved: https://www.legalserviceindia.com/helpline/grounds_for_divorce.htm
[1] Dastane vs Dastane, (1975) 2 SCC 326.
[2] Smt. Snehlata Seth vs Kawal Krishna, AIR 1986 Del 162.
[3] Dinshaw vs Dinshaw, AIR 1970 Bom 341.