Divorce under Hindu Law

Sayaree Ganguly
Divorce under Hindu law Divorce is the process of terminating a marriage or marital union. It usually entails the canceling or reorganizing of the legal duties and responsibilities of marriage, thus dissolving the bonds of matrimony between a married couple under the rule of law of the particular country or state. Divorce laws vary considerably around the world, but in most countries divorce requires the sanction of a court or other authority in a legal process, which may involve issues of distribution of property, child custody, alimony (spousal support), child visitation / access, parenting time, child support, and division of debt. In most countries, monogamy is required by law, so divorce allows each former partner to marry another person; where polygyny is legal but polyandry is not, divorce allows the woman to marry another person. The concept of divorce arises from the concept of marriage. Marriage, also called matrimony or wedlock, is a socially or ritually recognized union between spouses that establishes rights and obligations between those spouses, as well as between them and any resulting biological or adopted children and affinity (in-laws and other family through marriage). The definition of marriage varies around the world not only between cultures and between religions, but also throughout the history of any given culture and religion, evolving to both expand and constrict in who and what is encompassed, but typically it is principally an institution in which interpersonal relationships, usually sexual, are acknowledged or sanctioned. Divorce laws in India. India, being a cosmopolitan country, allows each citizen to be governed under personal laws relevant to religious views. This extends to personal laws inter alia in the matter of marriage and divorce. Under Hindu law divorce are mostly of two types: mutual and contested. The concept of divorce under Hindu law has been discussed below:- Mutual Divorce under sec 13b of the Hindu marriage act 1955 By mutual consent if both the parties to a marriage desires to put and end to their marriage, they may present a petition to the district court of their residence on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved. And then not less than six months and not more than eighteen months, if the petition is not withdrawn, the Court shall on being satisfied after hearing the parties shall pass a decree of divorce. Contested Divorce . (Either the husband or the wife can claim for divorce) If either the husband or the wife decides to get a divorce from the other, he/she can file a petition for divorce on the grounds stated under sec 13. Adultery: The husband or the wife had sexual intercourse with someone else of the opposite sex. CRUELTY: The husband or the wife has treated you with cruelty. While physical cruelty is easy to determine, it is difficult to say what mental cruelty consists of. Perhaps, mental cruelty is lack of such conjugal kindness, which inflicts pain of such a degree and duration that it adversely affects the health, mental or bodily, of the spouse on whom it is inflicted. In Pravin Mehta v. Inderjeet Mehta, the court has defined mental cruelty as ‘the state of mind.’ Some Instances of Cruelty are as follows – 1. false accusations of adultery or unchastity 2. demand of dowry 3. refusal to have marital intercourse/children 4. impotency 5. forcing the birth of child 6. drunkenness 7. threat to commit suicide 8. wife’s writing false complaints to employer of the husband 9. incompatibility of temperament 10.physical violence 11.verbal abuse, such as insults or threats 12.drunkenness or drug-taking Desertion: The husband or the wife has left the other for a continuous period of not less than 2 years. The following 5 conditions must be present to constitute a desertion; they must co-exist to present a ground for divorce: 1. the factum of separation. 2. animus deserendi (intention to desert) 3. desertion without any reasonable cause 4. desertion without consent of other party 5. statutory period of two years must have run out before a petition is presented. In Bipinchandra v. Prabhavati, the Supreme Court held that where the respondent leaves the matrimonial home with an intention to desert, he will not be guilty of desertion if subsequently he shows an inclination to return & is prevented from doing so by the petitioner. Has not been heard of being alive for a continuous period of seven years or more. Has renounced the world by entering any religious order. Conversion: The husband or the wife has converted to another religion. Disease: The husband or the wife has been suffering from an incurable form of leprosy or a disease in a communicable form. Mental disorder: The husband or the wife has been suffering incurably of unsound mind. Cohabitation: After getting a decree of judicial separation, there has been no resumption of cohabitation for an year or more between the spouses. Restitution of conjugal rights: After getting a decree for restitution of conjugal rights, there has been no restitution of conjugal rights between the parties for an year or more. Wife alone can claim for divorce A Hindu wife can seek divorce on the following grounds : • Husband commits bigamy or marries another woman. • The husband is guilty of rape, sodomy or bestiality. • The wife has been married before attaining fifteen years and after attaining fifteen years she has refused to accept the marriage. Alimony and maintenance After a divorce has been done, on an application by either the husband or the wife, the court may order the other spouse to pay to the applicant for his or her maintenance and of such monthly or periodical sum or alimony which refers to a gross sum of money for a term not exceeding the life of the applicant having regard to the respondent’s own income and property. And it shall continue till the applicant remarries. Judicial separation and divorce. In a petition for divorce, if the petitioner fails to establish alleged grounds for divorce, though facts to establish a ground for judicial separation, the court has a power to pass a decree for judicial separation. Judicial separation is different from divorce. Divorce puts an end to marriage whereas by judicial separation the parties continue being husband and wife but just lives separately. Divorced person when can marry again When a marriage has been dissolved and either there is no right of appeal or the time for the right of appeal has expired, or an appeal has been presented but has been dismissed, it shall be lawful for either party to the marriage to marry again. Property rights of a divorced woman A divorced woman has no rights over the ancestral property or self -acquired property of her ex-husband. Her children from that ex-husband may have rights over the property if the same is ancestral or if their biological father dies without making any will. Conclusion Thus, the above blog summarizes the procedure of divorce under Hindu law:- Hindu marriage is a union of two individuals as husband and wife, and is recognized by law. In Hinduism, marriage is followed by traditional rituals for consummation. In fact, marriage is not considered complete or valid until consummation. The concept of getting divorced was too radical for the Indian society then. The wives were the silent victims of such a rigid system. However, time has changed; situations have changed; social ladder has turned. Now the law provides for a way to get out of an unpleasant marriage by seeking divorce in a court of law.

1 Comment

Sunny Jaiswal March 3, 2019
Informative. Good

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