Ground of Divorce and Judicial Separation under Hindu Law

 Q. 8. Discuss the grounds on which marriage may be dissolved under Section 13 of the Hindu Marriage Act, 1955.

Or

What are the grounds of divorce under Section 13 of the Hindu Marriage Act, 1955? Discuss.

Or

Examine the grounds of divorce laid down in Section 13 of the Hindu Marriage Act, 1955.

Or

 Examine the concept of "cruelty" as a ground for divorce under the Hindu Marriage Act, 1955.

Or

Define the concept of cruelty. Is cruelty a ground of judicial separation and divorce under the Hindu Marriage Act, 1955 Elaborate your answer with the help of decided cases.

Or

Is cruelty a ground of judicial separation and divorce under the Hindu Marriage Act, 1955? Discuss the concept of cruelty. Refer also to the leading cases on the point.

or

 Referring to some important decisions, explain the concept of "desertion" under the Hindu Marriage Act, 1955.

Or

Discuss the concept of Desertion as a ground of Judicial Separation and Divorce under the Hindu Marriage Act. Refer to the leading cases in this connection.

Or

What are the essential ingredients of desertion as a ground of divorce and judicial separation? Discuss.

Or

Differentiate between judicial separation and divorce

 

Ans. Divorce in Ancient Hindu Law

Under Hindu Custom, marriage is considered sacred and they have this relation by the blessings of God. They believed in the concept of "marriages are made in heaven". Hindus considered the separation of the couple as a sin and hence the question of living separately did not arise in the olden days. Once married, the tie lasts till the end of life.

Divorce in Codified Hindu Law

Grounds of divorce as laid down in Section 13 of the Hindu Marriage Act.-Section 13 (i)-Section 13 (i) of the Hindu Marriage Act lays down the following grounds on which the marriage may be dissolved by a decree of divorce on a petition presented by either the husband or the wife

 

1.     1.  Adultery [Section 13 (1) (i)]- Under Section 13 (1) (1) the husband or the wife may present a petition for the dissolution of marriage by a decree of divorce on the ground that the other party "has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than his or her spouse."

In Tribat  Singh  v. Smt. Bimla Devi, [AIR 1958 J&K 72], the fact was that a married woman had been absenting herself from her house for four to six days at a stretch and had been seen more than once with a total stranger to her husband's family, and no explanation was given by her for having been seen in the company of that stranger at different places. leads to an irresistible conclusion that she had contracted illicit connection with that man and had been living in adultery with him.

In Veera Reddi v. Kistamma, [1969 Mad. 235], the Madras High Court held that the wife was guilty of adultery by observing that despite the disruption of the relation between the spouses, the wife gives birth to a child.

To prove adultery, the act of sexual intercourse must be voluntary but it is not involuntary like rape and on account of misrepresentation, there can be no adultery within the meaning of Section 13 of the Act.

2.       2. Cruelty [Section 13 (1) (i-a) -The husband or the wife may present petition for dissolution of marriage by decree of divorce on the ground that the other party "has, after the solemnisation of the marriage treated the petitioner with cruelty."

Cruelty is a ground for divorce. The expression cruelty is not defined in the Hindu Marriage Act. Cruelty is such conduct as to cause danger to life, limb or health or as to give rise reasonable apprehension of such danger. Past conduct is undoubtedly relevant as it forms the very basis of the reason for the apprehension of the injury or hurt in the future.

 

In Russel v. Russel. [1897 AC 395], Lopes, LJ. defined cruelty as conduct of such a character as to have caused danger to life, limb, or health, bodily or mental or a reasonable apprehension of it.

 

In Dastane v. Dastane, [AIR 1970 Bom. 312] the following five tests were laid down in determining whether a given conduct amounts to legal cruelty:

 

i) the alleged acts constituting cruelty should be proved according to the law of evidence:

 

ii) there should be an apprehension in the petitioner's mind of real injury or harm from such conduct,

 

i) the apprehension should be reasonable having regard to the socio economic and psycho-physical condition of the parties;

 

iv) the petitioner should not have taken advantage of his position;

 

v) the petitioner should not by his or her conduct have condoned the acts of cruelty.

 

Cruelty can be classified under two heads: (1) physical cruelty;

 and (ii) mental cruelty

Physical cruelty:- Acts of physical violence against another spouse resulting in injury to body, limb, or health or causing reasonable apprehension thereto constitute legal cruelty. What degree of physical violence will amount to cruelty will differ from case to case depending on the susceptibility or sensibility of the parties.

 

Mental cruelty:- Though physical violence is absent any conduct of the respondent which would render harmful or injurious for the petitioner to live with the respondent or is of such a nature so as to create a reasonable apprehension to that effect would amount to mental cruelty. Mental cruelty can be defined as that conduct which inflicts such mental pain and suffering as would make it not possible for the party to live with the other. It must be of such a nature that the parties cannot reasonably be expected to live together. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner.

In G V N Kameshwar Rao v. G Jabille AIR 2002 SC 576 the Supreme Court observed that it is not necessary to prove that the nature of the cruelty is such as to cause reasonable apprehension in the mind of the petitioner that it would be harmful for the petitioner to live with the other party. The Court laid down that cruelty can be said to be an act committed with the intention to cause suffering to the opposite party. Austerity temper, rudeness of language, occasional outburst of anger, may not amount to cruelty, though it may amount to misconduct. The court further opined that having regard to the sanctity and importance of marriages community life, the Court should consider whether the conduct of the counter-petitioner is such that it has become intolerable for the petitioner to suffer any longer and to live to gather is impossible, then only the court can find that there is cruelty on the part of counter petitioner.

 

 The Punjab High Court held in P.L. Sayal v. Sarla Rani, AIR 1961 Punjab 125 that willful intention to injure is not an essential element of cruelty.

In this case :

 

The Marriage was not rosy. The wife was crazy to get the love and affection of her husband. She consulted a fakir who gave her some love potion to administer to the husband, she did it. Due to the administering of love potion the husband became seriously ill and was admitted in the hospital where he remained for some time. The husband presented a petition for judicial separation on ground of wife's cruelty. (At that time cruelty was not recognized as a ground for divorce.)

 

The Court came to the conclusion that the husband was afraid of living with his wife lest such a thing happen again. It was held that the conduct of wife amounted to cruelty.

 

The Supreme Court also in Shobha Rani v. Madhukar Reddi, AIR 1988 SC 121 said that intention is not a necessary element in cruelty. If the intention to harm, harass or hurt could be inferred by the nature of the conduct or brutal act complained of, cruelty could be easily established. But the absence of the intention should not make any difference in the case, if by ordinary sense in human affairs, that act complained of could otherwise be regarded as cruelty.

 

Condonation of adultery or cruelty

Under the Hindu Marriage Act, a decree for judicial separation on ground of respondent's adultery or cruelty, or decree for divorce on the ground that the respondent is living in adultery shall not be granted if the act of respondent's adultery or cruelty has been condoned by the petitioner.

 

"Condonation" means a "blotting out of the offence imputed, so as to restore the offending party to the same position he or she occupied before the offence was committed." Essential characteristics of condonation are the forgiveness and reinstatement by the spouse who has suffered the matrimonial offence. There are two sorts of condonation, one express or by words only the other implied as by taking back a delinquent wife and cohabiting with her. But no condonation by words only will be sufficient unless they are followed by sexual intercourse. A husband who has sexual relations with his wife after knowledge of her adultery must be conclusively presumed to have condoned her offence.

 

In Narayan Ganesh Dastane v. Smt. Sucheta Dastane, AIR 1975 SC 1534 the wife was guilty of committing a series of acts of cruelty but the spouses led a normal sexual life resulting the birth of three children during six years of marriage-life. The Supreme Court held that the husband condoned that cruelty. The Supreme Court observed:

"The inference of condonation stands uncontradicted, the petitioner husband not having explained the circumstances in which he came to lead and live a normal sexual life with the respondent even after a series of act of cruelty on her part."

 

In order to establish a plea of condonation, it was not necessary to prove that the spouse reserved cohabitation. It is sufficient if the wife is received back into the position of a wife in the home and once the offence condoned the same cannot be revived.

3. Desertion [Section 13(1)(i b )-The husband or the wife may sue for the dissolution of marriage by a decree of divorce on the ground that the other party "has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition."

 

Desertion in the context of matrimonial law represents a legal conception. It is difficult to give a comprehensive definition of the term The essential ingredients of desertion in order that it may furnish ground for relief are:

(1) The factum of separation,

 (2) the intention to bring cohabitation permanently to end-animus deserendi,

(3) the element of permanence which is a prime condition requires that both these essential ingredients should continue during the entire statutory period. [Adhyatma Bhattar Alwar v. Adhayatma Bhattar Sridevi, AIR 2002 SC 88)]

Desertion may be classified in two categories

 

1) Actual desertion:- To prove actual desertion it is necessary to prove:

(i) factum of separation;

(ii) intention to desert;

(iii) desertion without reasonable cause;

(iv) it is without consent of other party; and

(v) it is for a continuous period of two years.

 For the success of petition on the ground of desertion it is incumbent on the part of the petitioner to prove all five elements.

 

2) Constructive desertion (Wilful neglect):- If by words or conduct a spouse makes it impossible for the other spouse to live in his or her company and as a result the other spouse leaves the matrimonial home, the other spouse cannot be said to be the deserter. On the other hand, the spouse who makes impossible for other spouse to continue matrimonial relations would be the deserter. Thus desertion has to be inferred from the state of things. This principle is known as constructive desertion.

4. Conversion [Section 13(1) (ii)]-Any of the spouses may present a petition for the dissolution of marriage by a decree of divorce on the ground that the respondent "has ceased to be Hindu by conversion to another religion."

In Chandra Sekhar v. Kuldam Velu, [AIR 1963 SC 185], it has been observed that the marriage can be dissolved on the ground of conversion to another religion if a marriage solemnized under the provisions of this Act or according to old Hindu law and the marriage solemnized under Special Statutes cannot be dissolved and are not covered by the provisions of Section 13(1)(ii) of the Act.

 

Conversion to another religion does not ipso facto dissolve the marriage. The petitioner is required to obtain a decree of divorce on that ground from a competent Court.

Merely ceasing to be a Hindu would not amount to change of religion. It is only when he or she embraces other religion after renunciation of Hinduism that the decree of divorce is obtainable on that ground.

The ground of conversion is not available to the converting spouse: it is the other spouse who remains a Hindu that can avail of this ground if he or she so desires.

5. Mental Incapacity [Section 13(1)(iii)1- Either party to a marriage may present a petition for dissolution of marriage by decree of divorce on the ground that the other party "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."

 

In Ram Narayan Gupta v. Smt. Rameshwari Gupta, AIR 1988 SC 2260 it was held that the context in which the idea of unsoundness of mind and mental disorder occur in the section as grounds for dissolution of marriage require the assessment of the degree of mental disorder. Its degree must be such as that the seeking relief cannot reasonably be expected to live with the other. All mental abnormalities are not recognised as ground for grant of decree.

6. Leprosy [Section 13 (1) (iv)]-Either the husband or the wife may present a petition for the dissolution of the marriage by a decree of divorce on the ground that the other party "has been suffering from a virulent and incurable form of leprosy."

7. Venereal disease (Section 13 (1) (v)]-Either the husband or the wife may present a petition for the dissolution of marriage on the ground that the other party "has been suffering from venereal disease in a communicable form."

8. Renunciation of world [Section 13 (1) (vi))-Either party to a marriage may file a petition for the dissolution of the marriage on the ground that the other party "has renounced the world by entering any religious order."

In Shital Das v. Sita Ram, [AIR 1954 SC 506] , the Supreme Court has observed that renunciation of world affairs followed by entrance into a religious order generally operates as a civil death and it is necessary that all the required ceremonies for entering the religious sect or order are proved satisfactorily.

In Kondol Row v. Swamalavru, [401.C 5. ], Srinivas Aiyangar, J. has observed, "The person desiring to enter the order must perform his death ceremony (though this is not considered essential by some) and the eight Shradhas, the last of which is his own Shradha, he must then distribute his wealth among his sons and Brahmins reserving enough for Homas (sacrifice in the fire). The would-be Sanyasi then takes leave of his sons and standing in water utters a mantra three times to the effect that he has given up his desire for sons, wealth, world and everything. He does not become a sanyasi till the mantra is pronounced."

 

When a person renounces the world he renounces everything and so to say deserts his wife and children apart from the provisions of this clause desertion is a ground for obtaining judicial separation. One who enters into a religious order severs his connection with the members of his natural family.

9. Presumption of death [Section 13 (1) (vii)]-Either party to a marriage may present a petition for the dissolution of marriage by a decree of divorce on the ground that the other party "has not been heard of as being alive for a period of seven years or more by those persons who would have heard of it had that party been alive."

The expression "those persons who would naturally have heard of it^ neg means such persons namely parents, spouse, children (if any), brothers, uncles, any relation by adoption, other close relative and probably also close friends (if any).

Similarly, under the Evidence Act (Section 8) a person who has not been heard of for seven years or more by his close relations, etc., should be presumed to be dead and the burden of proving the contrary lies on him who asserts that he is alive.

 

Once a decree of divorce is granted under this section it shall be valid and effective, even if it is discovered later on that the respondent is in fact alive. Such a decree is not a decree declared the death of the missing or unheard of person, it is at best a decree of presumption of death under Section 8 of the Evidence Act.

 

When the Court is satisfied that sufficient enquiries have been made as to the existence or the whereabouts of the respondent and there is no reason to think that he or she was alive, the decree of divorce may be passed.

 

(10) Section 13(1)(1 ).-Under Section 13, sub-section 1-A of the Hindu Marriage Act, either party to a marriage, whether solemnised before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground:

(1) that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties,

In A.V. Janardhana Rao v. M. Aruna Kumari, [AIR 2000 AP 127] , the fact of the case is that there was no resumption of cohabitation between parties for a period of one year after passing of a decree for restitution of conjugal rights. The husband moved a petition for divorce under Section 13(1A)(i1) of the Hindu Marriage Act. The Court observed that both parties were not willing to reach a compromise for leading marital life jointly. The Court decreed for divorce.

Effects of judicial separation

The consequences of a decree of judicial separation can be summed up as under:

i) Judicial separation permits the parties to live separately.

ii) It does not dissolve the marriage.

iii) The husband and wife continue to have the same status.

iv) The rights and duties of the parties to the marriage are suspended and certain new rights and duties imposed by the Court substitute the rights and duties of the marriage.

v) It would not be obligatory for them to cohabit with each other.

vi) It does not prevent the parties from subsequently resuming cohabitation and living together as husband and wife as originally, they did.

(ii) that there has been no resumption 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. [Hirachand Srinivas Managoonkar v. Sunanda, AIR 2001 SC 1285]

 

Additional Grounds of divorce available to the wife alone.-

Under Section 13(2) of the Hindu Marriage Act, four grounds of divorce are gives on which only a wife may obtain decree of divorce. These grounds are the following:

 

(a) Polygamous marriage solemnised before the Hindu Marriage Act [Section 13(1)(i) – A wife may present a petition for the dissolution of her marriage by a decree of divorce on the ground in the case of my marriage solemnised before the commencement of this Act, that t husband had married again before such commencement or that any other wife of the husband before such commencement was alive at the time of the solemnisation of the marriage of the petitioner

Provided that in either case the other wife is alive at the time of presentation of the petition

(b) Unnatural offence [Section 13(2)(ii)]-A wife may present a petition for the dissolution of her marriage by a decree of divorce on the ground that "the husband has, since the solemnisation of the marriage been guilty of rape, sodomy or bestiality"

(e) Non-resumption of cohabitation after a decree or order of maintenance [Section 13 (2) (m)]-5 Section 13(2 ) (i) of the Hinde Marriage Act lays down that a wife may present a petition for the dissolution of her marriage by a decree of divorce on the ground "that in a suit under Section 18 of the Hindu Adoptions and Maintenance Act, 1956 or in a proceeding under Section 125 of the Code of Criminal Procedure, 1973 (or under the corresponding Section 488 of the Code of Criminal Procedure 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."

 

(d) Option of Puberty [Section 13(2)(iv) --Section 13 (2) (iv) of the Hindu Marriage Act lays down that a wife may present a petition for the dissolution of her marriage by a decree of divorce on the ground that "her marriage (whether consummated or not) was solemnised 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.

The Hindu Marriage Act indirectly accepts that a minor's marriage is not void (though penal). Because, if it was void, the question of allowing of a divorce should not arise.

In Indira v. Balbir Singh, [1995 (2) HLR 102 (P&H)] , it was observed that presenting of the petition by the appellant in itself amounts to repudiation of marriage particularly when no particular form for repudiation of marriage is provided statutorily under the statute or any rules framed thereunder.

 

In Kamlesh v. Chamel Singh, [1986 (2) HLR 464 (P& H)] , the Court has held that it is sufficient if she repudiates the marriage before completion of 18 years and it is not necessary that she should file a petition under Section 13(2)(iv) of the Act before that date. She could file the petition even after that date.

Difference between  Judicial separation and divorce

 

Judicial separation is the break-up of marriage which differs from divorce Doth in nature and degree. In divorce, the marriage is dissolved, and the parties o it becomes free to re-marry anywhere. If they wish to join again, they must solemnize the marriage. But in judicial separation, the marriage is only eclipsed, and parties are not completely alienated. The doors of reconciliation are open. They can resume co-habitation without re-marriage.

 

1. As regards effect upon marriage.-A decree for divorce dissolves the marriage and puts an end to the marriage tie permanently, while the decree for judicial separation is a divorce mansa at thoro-the separation from bed and board only.

 

2. As regards remarriage. The decree for divorce changes the status of spouses from coverture to single person, while the decree for judicial separation retains the status of the spouses. On divorce parties are free to marry and the remarriage by a party after divorce will not bigamy even if he or she marries within one year from the date of the decree of divorce.

 

3.       As regards opportunity for reconciliation between the parties. On judicial separation marriage tie subsists. Parties are under all the burdens of matrimony and cut off from all its benefits. The remarriage by a husband or wife is bigamy punishable under Section 17 of the Hindu Marriage Act, and sexual intercourse with someone else is still adultery. In divorce relation of parties comes to an end once for all. But on judicial separation spouses have an opportunity for reconciliation and adjustment. There is always a locus poenitentiae and the parties may at any time resume cohabitation. The judicial separation if continued for one year, affords, a ground for divorce under the Act. On application of either party, the decree of judicial separation may be rescinded by the Court if it considers just and reasonable to do so. Parties may resume cohabitation even without the rescission of the decree of judicial separation, and such cohabitation will void the decree. But after the decree of divorce parties cannot resume cohabitation without going again in the solemnization of marriage.

4.        As regards entertainment of petition by the Court.-There is one more difference, the petition for divorce is not to be entertained, except in hard cases, by the Court within one year of the marriage, but this is not so the case of a petition for judicial separation.

 

 

References:-

 

Family law---Paras Diwan

Family law—S.R. Myneni

https://www.iilsindia.com/study-material/880413_1617519779.docx

https://legislative.gov.in/sites/default/files/A2007-06.pdf

https://www.slideshare.net/RashmiDubey21/hindu-marriage-act1955

https://www.indianemployees.com/acts-rules/details/hindu-marriage-act-1955

http://www.legalservicesindia.com/article/558/Salient-features-of-the-Hindu-Marriage[1]Act,-1955.html.

http://www.legalservicesindia.com/article/558/Salient-features-of-the-Hindu-Marriage[1]Act,-1955. html

https://www.iilsindia.com/study-material/880413_1617519779.docx