CONCEPT OF DIVORCE IN FAMILY LAW

Edited by – Arriba Siddique


This article is written by Sampoorna Saha, a law student at Sudrendranath Law College.


Family law is a very broad aspect, it majorly deals with family matters especially focusing upon the matrimonial laws including laws of marriage, divorce, adoption, and other connected issues. Marriage in ancient times was considered a sacrament, the concept of divorce was recognized later by the society, and it was introduced in the Hindu Marriage Act 1955, which defines divorce as a dissolution of marriage. Family law tends to gain the most attention from the legal attorneys. Divorce is a legal action where the marital relationship of a couple terminates and the marriage dissolves.

Grounds for divorce explain the several criterions’ based on which Divorce is secured.

Let us understand.

What is Divorce?

The Hindu Marriage Act, 1955: Under the old Hindu laws, divorce was viewed as forbidden and was not talked about as freely as it is spoken out today, but with the codification of the laws the provision of divorce was laid down The provision of “Divorce” has been dealt with under the Hindu Marriage Act, 1955 as being a true blue method whereby both the parties to the marriage, decide to break all the promises or vows taken at the time of marriage. All Hindus, Buddhist, Jains or Sikhs are covered under the divorce provisions of the act. (Anonymous)[1]

Grounds for Divorce under Hindu Marriage Act:

According to Section 13 of the Hindu Marriage Act, the grounds for divorce are as follows:

  • ADULTERY: When either of the parties enters into a consensual sexual relationship with someone other than the spouse, it is known as adultery. And the aggrieved party can file a divorce based on this ground.

Swapna Ghose v. Sadanand Ghose. (Bhattacharjee, n.d.)[2]

  • CRUELTY: when either of the spouses is a victim of physical or mental abuse, he or she may file a petition on the same ground.

In Balram Prajapati vs Susheela Bai (anonymous, casemine, n.d.)[3]

  • DESERTION: If either of the spouses abandons the other partner for not less than 2 years or also may be permanent.
  • CONVERSION: If either of the spouses ceases to be a Hindu and converts their religion to another religion, without the consent of the other spouse.

In Suresh Babu vs Leela (Sankaran, n.d.)[4]

  • MENTAL DISORDER: If either of the spouses in the marriage is of unsound mind, suffering from a mental disorder when the respondent is in an incurable state or has been suffering constantly to that extent where the petitioner cannot be living with them can file for a petition on this ground.
  • LEPROSY: If either party suffers from an incurable form of leprosy, this is considered as a ground for divorce.

In Swarajya Lakshmi vs G. G. Padma Rao (Mukherjea, n.d.)[5]

  • VENEREAL DISEASE: If either party suffers from any communicable form of venereal disease, for example, AIDS.
  • RENUNCIATION: If either party in the marriage decides to walk in the path of god and renounces the world by joining any religious sector. Then this is considered a valid ground for divorce.
  • NOT HEARD ALIVE: If either party in the marriage has not been heard from for 7 years, by persons who would naturally have heard from him had the party been alive. The burden of proof in such case lies on the petitioner
  • NO RESUMPTION OF COHABITATION: There has been no resumption of cohabitation between parties for or after 1 year of the passing of a decree of judicial separation.

There are special provisions provided to the wife;

  • If at times of solemnization of the marriage the spouse has a living wife from a previous marriage.
  • If the husband was considered guilty of rape, bestiality, or sodomy.
  • If the marriage was solemnized before she was 15 years old and she repudiated to such marriage after attaining 18 years of age.
  • In a suit under Section 18 of Hindu Adoptions and Maintenance Act, 1956 or under Section 125 of the Criminal Procedure Code, 1973 or under corresponding Section 488 of Criminal Procedure Code, 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 1 year or upwards.

Under Muslim Law

Under the Muslim Law, a marriage is dissolved either by the death of the husband or wife or by divorce. After the death of a wife, the husband may remarry immediately. But the widow cannot remarry before a certain specified period called Iddat expires. Marriage may also be dissolved by judicial decree under the Dissolution of Muslim Marriage Act, 1939.

Grounds for divorce Under Dissolution of Muslim Marriage Act 1939:

According to Section 2 of The Dissolution of Muslim Marriages Act, 1939, the following are the grounds for divorce: –

  • The husband has neglected or has failed to provide for his wife’s maintenance for 2 years.
  • The husband’s whereabouts have not been known for 4 years.
  • The husband had been sentenced to prison for 7 years or more.
  • The husband has failed to perform his marital obligations without reasonable cause for 3 years.
  • The husband was impotent at the time of marriage and continues to do so.
  • The husband was insane for 2 years or suffering from leprosy or venereal disease.
  • The woman was given in marriage at 15 years of age by her father or guardian, repudiated the marriage before she was 18 years.
  • The husband treats his wife with cruelty.
  • Any other ground valid for dissolving a marriage under Muslim law.
  • Family law also involves Christian law, let us now understand divorce,

Under Christian Law:

The Divorce Act 1869, section 18 to 21 defines that either the husband or the wife may present the petition before the court of law, declaring the marital tie to be null and void.

Grounds for divorce under Christian law, The Divorce Act 1869:

  • At the time of marriage, the respondent was impotent.
  • Both the parties in the marriage are within the prohibited degree of consanguinity or affinity.
  • Either of the parties in the marriage was lunatic at the time
  • The spouse of either of the parties from the previous marriage was alive at the time of the solemnization of the marriage.

Under the Parsi Marriage and Divorce Act 1936;

The Parsi Marriage and Divorce Act 1936, Section 2(7) defines that the marriage shall be declared void if consummation of marriage is not possible. It also states that Zoroastrianism id founded on the belief of god and has nothing to do with religious professions.

Under the Special Marriage Act 1954;

The Special Marriage Act 1954 provides the dissolution of marriage by a decree of divorce, only if such marriage had been solemnized under the Act or in any other form. But the registration of such marriage was done under this act.

Grounds for Divorce;

  • A spouse was living from the previous marriage at the time of marriage
  • The parties in the marriage were unable to give mutual consent due to unsoundness of mind, or have been suffering from a mental illness which is considered unfit for marriage, or have been subject to recurrent attacks of insanity.
  • The age criteria were not fulfilled, i.e., 21 years for the male and 18 years for the female.
  • Both the parties in the marriage were within the degrees of prohibited relationship.

Under the Foreign Marriage Act 1969;

When a marriage is solemnized in a foreign country, where at least one parties to the marriage is a citizen of India this kind of marriages can get dissolved under The Special Marriage Act 1954, in case either of the parties in the marriage shares a sexual relationship with someone else than their spouse then this is a valid ground for divorce.

Conclusion

Divorce and annulment of marriage are often confused, while Divorce is a legal practice of dissolution of marriage, annulment of marriage is a declaration of the marriage to be null and void. Family Law attorneys are mostly hired to represent their clients for Divorce cases before the court of law. In ancient times dissolution of marriage was considered a sin since marriage was considered a sacrament, but after the provision of divorce was introduced in The Hindu Marriage Act 1955, the concept of divorce now seems to provide aid to a lot of couples. Although when a couple decides to part their ways it tends to adversely affect their children, and family (if any). Family law perhaps has always played the most important role in every aspect related to families starting from marriage to divorce. Lastly, reports suggest that during this entire lockdown period divorce cases have recorded a hike of nearly five times more than the usual.


[1] Anonymous. (n.d.). Legal solutions worldwide Helpline Law. Retrieved from google.com: http://www.helplinelaw.com/family-law/DIVH/divorce-under-hindu-marriage-act.html

[2] Bhattacharjee, A. (n.d.). indiakanoon. Retrieved from google.com: https://indiankanoon.org/doc/296734/

[3] Anonymous. (n.d.). Casemine. Retrieved from google.com: https://www.casemine.com/judgement/in/5609792ce4b014971133c78f

[4] Sankaran, K. (n.d.). India Kanoon. Retrieved from google.com: https://indiankanoon.org/doc/130775/

[5] Mukherjea, B. (n.d.). India kanoon. Retrieved from google.com: https://indiankanoon.org/doc/1925440/


Written by –

Author Name – Sampoorna Saha

Published on – 01/09/2020