Concept Of Divorce

As we can see this concept of divorce barely used to exist in ancient India Manu said that spouse cant be delivered by either by deal or deserting also that this sacred tie cant be cut off but in modern India concept of divorce do exists also can be said as divorce can be used to put the marriage to an end.

Divorce is process to dissolve the marriage and after the dissolution of marriage the couple moves back to their unmarried status and are free to marry any other individual, Section 13(1) of Hindu Marriage Act 1955 deals with divorce.

Divorce ceases all the mutual obligation over each other they are free to go but still they carry a concerning obligation i.e. Section 25 which deals with maintenance and alimony and Section 26 which deals with custody ,maintenance and education of children

However, there are few specific grounds under which we can appeal for a divorce under Hindu marriage Act,1955

Grounds For Divorce Under Hindu Marriage Act, 1955

Under Hindu Marriage Act , 1955 there are basically four grounds of divorce

• Fault Ground (section 13(1
• Breakdown Ground (section 13(1A)(i), 13(1A)(ii))
• Divorce By Mutual Consent (section 13-B)
• Customary Divorce (section 29(2))

In this Article we will discuss in detail about the fault grounds under which an individual can appeal for a divorce under Hindu marriage Act, 1955

Fault Ground (Section 13(1)

Under the Hindu Marriage Act 1955, section 13(1), lays down nine fault ground of divorce. Some of there are Adultery, Desertion, Cruelty, Insanity, Leporacy, Verenal Disease, while others like Conversion, Or Renunciation of words are typically Hindu grounds.

Desertion

· Before the amendment of 1976, desertion was a ground for judicial separation only. Now, it is ground for both the judicial separation and divorce. Desertion means “leaving/abandoning the spouse by the other spouse without reasonable cause”. The spouse who deserts is called ‘deserting spouse’ and the other, who is deserted is called ‘deserted spouse’. Desertion is “a withdrawal not from a place, but from a state of things”.​

To constitute desertion, the following conditions must be satisfied:​

1. Factum of Separation(intention to live separately); and​
2. Intention to bring cohabitation to an end permanently.​
3. Without reasonable cause.​
4. Without consent or wish of the deserted spouse.​

The burden of proof in case of desertion is always on the petitioner. He or she must show that it was without any reasonable excuse and that it existed throughout the period at least two years

Adultery

Adultery can be considered as a sexual intercourse between one individual and other person not being his/her spouse during the subsistence of the marriage. After the amendment of 1976 single act of adultery in sufficient.

In Subbaramma v. Saraswati Court [8] held that one single act of adultery is enough for divorce or judicial separation. In the same case court also held that “the unwritten taboos and rules of social morality during this country and particularly in village areas must necessarily be taken under consideration. If an unknown person is found alone with a girl after midnight, in her apartment, in an actual physical juxtaposition, unless an excuse is given which is consistent with an innocent interpretation, the sole conclusion that the Court of Justice can draw must be that the 2 have committed an act of adultery together”.

Cruelty

It is very difficult to describe about the cruelty in Rusell vs Rusell in 1897 it can be defines as an “conduct of such an character as to have caused danger to life ,limb or health ,bodily or health or mental.

In Smt.Nirmala Manohar Jagesha vs Manohar Shivram Jagesha[6] Court held that “case for divorce, false, baseless, scandalous, malicious and unproven allegations made within the written statement may amount to cruelty to the other party and that party would be entitled to get a decree of divorce on that ground”.

In Gurbux Singh vs Harminder Kaur[7] court held that straightforward minor aggravations, squabbles, normal wear, and tear of married life which occurs in lifestyle altogether families wouldn't

Insanity

Under the wedding Laws (Amendment) Act, 1976, Section 13(iii) petitioner may get a decree of divorce or legal separation if the respondent has been experiencing consistently or irregularly mental turmoil of such a kind then much that the petitioner can't sensibly be required to measure with the respondent.

In Ram Narayan v. Rameshwari[9], Supreme Court held that in schizophrenic mental disturbance , the petitioner should prove not merely the said mental disturbance , but also establish that account the petitioner couldn't reasonably be expected to live with the respondent.

Leprosy

Section (1)(iv) in the Hindu Marriage Act, 1955, Leprosy is both ground for divorce and judicial separation.
But for divorce under Section (1)(iv) in Hindu Marriage Act, 1955, Leprosy must be in the form of:

1. Virulent and
2. Incurable

A mild sort of leprosy which is capable of treatment is neither ground for divorce nor for legal separation .

Venereal Disease

Section 13(V) of the Hindu Marriage Act, 1955 provides ground for divorce against communicable Venereal Disease.

In Mr. X v. Hospital Z Supreme court held that on the bottom of VD Either husband or wife can get a divorce, and an individual who has suffered from the disease can not be said to possess any right to marry even before marriage, as long as he's not completely cured of the disease.

In Sm.Mita Gupta vs Prabir Kumar Gupta court held that Venereal disease is a cause of divorce, but the partner may be denied relief even though the other partner suffers as much if the previous is liable for the contagion

Conversion

Under the Hindu Marriage Act, Section (13)(1) clause (ii) divorce maybe obtain if the respondent converted from Hindu to other Religion and ceased to be a Hindu. Under the clause two conditions must be satisfied:

1. Respondent has ceased to be a Hindu, and
2. He has converted to another religion

Ceased to be Hindu means an individual got converted to a non-Hindu faith like Parsis, Islam, Christianity, or Zoroastrianism. A person not ceased to be Hindu if he converted into Jain, Buddhism, Sikhism because Sikh, Jain, Buddhist by religion may be a Hindu.

Renunciation of World
Renounce the world" could imply:
to withdraw from worldly pursuits as a way to lead a non-secular life.
Reference is made to section 13(1)(vi) of the Hindu Marriage Act. The word renouncing means "making a formal resignation of a few rights or, in particular, believing in one's position as successor or trustee.

To obtain a divorce under this clause two conditions must be satisfied:
The respondent must have renounced the world, and
He must have entered some other religious order

Presumption of Death
Under the Indian Evidence Act, 1872, a person is presumed to death if he/she has no longer been heard of as being alive for a period of at least seven years. On this ground, the petitioner may obtain a divorce. But in ancient Indian Hindu Law, a presumption of death isn’t like presumption under modern law, there should lapse of twelve years to be presumed a person dies. This presumption underneath the availability of regulation isn't inflexible and death might also even be presumed before the lapse of 7 years from proof of special instances.