Broadly Speaking: Divorce under the Hindu Marriage Act and Special Marriage Act

WHAT IS MARRIAGE?

• Marriage can be rightly defined as the legally or formally or ritually recognized union of a man and a woman (or, under some jurisdictions, two people of the same sex) as partners in a relationship.

WHAT IS DIVORCE?

• Divorce means the disintegration of a marriage by the rulings and orders of a competent court. It is the action or instance of legally dissolving a marriage[1]
• In the times prior, the concept of divorce or dissolution of marriage was foreign to general Hindu law as marriage was considered as an indissoluble accord of the husband and the wife. Manu said the first man does not believe in the cessation of the marriage. Rather he declares, "Let mutual fidelity continue till death"; he asserts his ideology towards faithfulness in a relationship.

HINDU MARRIAGE ACT, 1955

• The Hindu Marriage Act, 1955, was initiated to safeguard the rights of marriage for the bride and groom who are Hindu and are bound under the sacred oath of marriage under any ritual or ceremony.

SPECIAL MARRIAGE ACT, 1954

• A marriage under the Special Marriage Act, 1954, was formulated to allow people from two different religious backgrounds to come together in the bond of marriage. The applicability of the Special Marriage Act extends to all citizens of India, irrespective of their religion.

GROUNDS FOR DIVORCE
(When it isn’t mutually consented)

The Hindu Marriage Act 1955[2] and the Special Marriage Act 1954[3] state-certain common determinants and reasons for divorce which are mentioned as follows:

• Adultery – Adultery is when either of the parties in a marriage has a sexual relationship outside the marriage. While applying for a divorce, the commission of an act of adultery has a significant impact on the divorce.
• Cruelty – Either of the parties in a marriage can apply for a divorce case when either of them has been exposed to any kind of mental and physical injury that causes danger to life, limb, and health; bodily or mental; or as to give rise to a reasonable apprehension of such a danger. The intangible acts of cruelty through mental torture are not judged upon one single act, but series of incidents and is a subjective matter that courts decide upon the facts of the case specifically.
• Desertion – If either of the parties in a marriage voluntarily abandons the other party for a period of minimum two years, the deserted party can apply for a divorce on the basis of desertion.
• Conversion – In case either of the two parties converts himself/herself into another religion, the other spouse may file a divorce case based on this determinant.
• Mental Disorder – Mental disorder can be a determinant for filing a divorce if the spouse of the petitioner has an incurable mental disorder and thus, out of bona fide intentions, it cannot be expected from the couple to stay together for the benefit and well being of both the parties.
• Leprosy – If either of the parties in a marriage suffers from leprosy, a petition can be filed by the other spouse based on this ground. It is important to note that the form of leprosy must be incurable. Only then can a divorce be granted.
• Venereal Disease – If one of the spouses is suffering from a major disease that is easily communicable or transferable, either verbally or sexually, in such a case, a divorce can be filed by the other spouse. AIDS is a sexually transmitted disease and is accounted to be venereal diseases.
• Renunciation – A spouse has the right to file for a divorce if the other renounces all worldly affairs, belongings, attachments, etc. by adopting a religious order.
• Not Heard Alive – If a person has not been seen or heard alive by those who are likely to be ‘naturally heard’ of that person for a recurring period of minimum of seven years, the person is apprehended to be dead. The other spouse needs to file a divorce if he/she is interested in remarriage or any other purpose.
• No Resumption of Cohabitation – It becomes a basis for divorce if the couple fails to resume their cohabitation after a competent court has passed a decree of separation.

THE DIFFERENCE

There are certain grounds provided for in the Hindu Marriage Act, 1955[4] under which the petition for divorce can be filed by WIFE only.

• If the husband has indulged in rape (unconsented sexual intercourse or sexual intercourse on false pretexts), bestiality (sexual intercourse with an animal) and sodomy (anal intercourse).
• If the marriage is solemnized before the Hindu Marriage Act and the husband has after that married another woman in spite of the first wife being alive, the first wife can seek for a divorce.
• A girl has the right to file for a divorce if she was married before turning fifteen and renounces the marriage before she attains eighteen years of age.
• If there is no cohabitation for one year and the husband continues to neglect the judgment of maintenance awarded to the wife by the competent court, the wife can contest for a divorce.

GROUNDS FOR DIVORCE BY MUTUAL CONSENT

Divorce by mutual consent is provided for under Section 13 B of the Hindu Marriage Act, 1955 and Section 28 of the Special Marriage Act, 1954.

For these sections to be applicable there are a few requisites which must be fulfilled by both the parties to the divorce which can be stated as follows:

• The parties have been living apart, individually for a period of at least one year;
• They have not been able to live together, and;
• They have mutually agreed that marriage should be resolved.

Landmark Judgements

Case name: Amardeep Singh v. Harveen Kaur[5]

As a major improvement to Hindu Law governing divorce by mutual consent, the Supreme Court ruled that the cooling-off period of 6-18 months provided under Section 13B(2) of the Hindu Marriage Act, 1955 as in this transitional period the parties or either of them may have second thoughts, is not mandatory but a directory provision and can be waived off under certain circumstances on the discretion of the courts.

Case name: Mrs. Christine Lazarus Menezes v. Mr. Lazarus Peter Menezes[6]

The court noted that if the Criminal Complaint filed by the appellant wife against her husband under sections 498-A and 406 of the Indian Penal Code, 1860 was false and was filed only to bring back her husband and consequent to which he was arrested and was in jail for about 7 days, it would constitute a clear case of cruelty by the wife against her husband and thus, shall be a ground for divorce.

Case name: Bipinchandra Jaisinghbhai Shah v. Prabhavati[7]

It was observed that if a spouse abandons the other in a state of temporary passions, for example, anger or disgust without intending permanently to cease cohabitation, it will not amount to desertion and divorce shall not be granted for such temporary outbursts.

{AUTHOR: Stuti Bhansali, a second-year law student at Manipal University}

REFERENCES

[1] Merriam-Webster’s Collegiate Dictionary (Merriam Webster, U.S., 11th edn., 2003)

[2] Hindu Marriage Act 1955, s 13

[3], s 27

[4] Hindu Marriage Act 1955, s 13(2)

[5] [2017] 8 SCC 746

[6] [2017] SCC OnLine Bom 1155

[7] [1957] SC 176 AIR