Two Alternatives for Divorce under Hindu Law:
Judicial separation is less extreme and permanent than divorce. All the grounds of divorce are also grounds of judicial separation, except that though a divorce dissolves a marriage, a decree for judicial separation does not. You still remain ”married” to your spouse though marital rights and obligations are suspended during that time.
After obtaining a decree for judicial separation, it is no longer obligatory for you to live with your spouse. The advantage of such a decree is that should circumstances change and you and your spouse decide that you would like to remain married in the true sense of the term, the decree of judicial separation can be rescinded. This is not the case with a divorce. You cannot take back a decree for divorce and consider yourself married again.
A Separation agreement
A separation agreement is one wherein both parties to a marriage release the other from the marital obligation of cohabitation. These agreements are not part of matrimonial law but are regulated by the general law of contract that is the Indian Contract Act 1872.
Separation agreements are not void as against public policy, provided separation has actually occurred or is inevitable. In other words, the agreement must relate to present separation. Agreements between spouses for future separation will therefore be void, being against public policy.
Separation agreements are meant for couples that want to separate from each other but who do not want to go in for judicial separation or divorce. Such an agreement provides them a means to separate in the shortest possible time with minimum publicity.
A separation agreement may be void or voidable for the same reason as any contract may be. Thus, such an agreement may be void as a result of a mistake. Suppose parties entered into agreement on the assumption that they were lawfully wedded, but when it was discovered that no lawful marriage existed between them, the agreement becomes void. An agreement may be voidable for fraud, misrepresentation, coercion or undue influence. A separation agreement may also be illegal just as any other contract may be, i.e. where the purpose of the agreement is to promote adultery. A separation agreement, having a clause purporting to restrict the right to invoke the court”s jurisdiction for seeking maintenance, is void.
Grounds for Divorce under Hindu Law
The Hindu Marriage Act 1955 recognises nine grounds of fault, which are available to both the spouses. Of these, four are available to the wife alone;
Section 13(1) of the Hindu Marriage Act 1955, under which either spouse can seeks divorce, reads as follows:
Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party:
- Has after the solemnisation of marriage, had voluntary sexual intercourse with any person other than his or her spouse;( Adultery)
- Hhas after the solemnisation of marriage, treated the petitioner with cruelty; ( Cruelty can be physical assault or mental torture)
- Has deserted the petitioner for a continuous period of not less than two years, immediately preceding the presentation of the petition;
- Has ceased to be a Hindu by conversion to another religion; ( or has renounced the world)
- Has been incurably of unsound mind, or has been suffering continuously or intermittently from metal disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.
- The expression “mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;
- the expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence), which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment
- Has been suffering from venereal disease in any communicable form or has been suffering from a virulent or incurable form of leprosy
- Has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive.
Grounds of Divorce for the Wife
- The husband has, since the solemnisation of the marriage, been guilty of rape, sodomy or bestiality;
- In a suit under section 18 of the Hindu Adoption and Maintenance Act, 1956 or in a proceeding under section 125 of the Code of Criminal Procedure 1973, 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 a decree or order, cohabitation between the parties has not been resumed for one year or upwards;
- 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 the age of eighteen years.
Divorce by Mutual Consent
Section 13-B of the Hindu Marriage Act 1955 permits divorce by mutual consent on the following grounds:
- the spouses have been living separately for one year or more, immediately preceding the presentation of the petition,
- they have not been able to live together, and
- they have mutually agreed to dissolve the marriage.
If after 6 months and before 18 months of the filing of the above petition, the same is not withdrawn, then the Court shall, after hearing both parties and making such inquiries as it deems fit, dissolve the marriage. In effect, where all three ingredients are established, divorce cannot be refused and it is just a question of time (i.e. waiting for a minimum of 6 months).
An important question that arises is whether, if one of the parties comes before the court and says that he/she has changed his/her mind and therefore wants to withdraw his/her consent to the divorce, can he/she be allowed to do so? The Supreme Court of India has held that such withdrawal of consent is permitted. The reasoning of the Court is thus: the filing of the petition itself does not sever marital ties. The waiting period of six to eighteen months is for the very purpose – for the parties to reconsider their decision, to take advice and counselling. Therefore,if one of the parties changes his/her mind and feels that the marriage deserves one more shot, he/she should be allowed to withdraw his/her consent to the divorce.
This reasoning has been criticised as the period of six to eighteen months has been granted more for reconciliation than merely for change of heart. It is understandable if both parties decide that they do not want to go ahead with the divorce, but to let one party make that decision alone does not help the marriage. The ultimate aim of divorce law is to end a bad marriage – the continuance of a broken marriage cannot be said to serve any social purpose.
Section 13(1)(i-b) of the Hindu Marriage Act 1955 provides desertion as a ground of divorce. The said provision states that where one party has deserted the other for a continuous period of not less than two years immediately preceding the presentation of the petition for divorce, the court will grant the deserted spouse a divorce. If he is not maintaining you, you can also file a suit for maintenance under the Hindu Adoptions and Maintenance Act, 1956.
There are two main elements to desertion. They are:
- the fact of separation
- the intention to desert
Where one party has been guilty of such gross misconduct that it drives away the other party from the matrimonial home, the party, who is so driven away, is not the deserter. Here, the party that drives him/her away is the deserter. If a wife left home because her husband mistreated her, the law will treat him as the deserter even though it was the wife who left the house physically. The reason for this is that his behaviour was such that it left no other option for the wife. Thus, the wife can get a divorce on the ground of constructive desertion.
In actual desertion, factual separation is an essential ingredient but it does not mean that the spouse, who leaves the matrimonial home, is necessarily the deserter. The spouse, who stays behind might, on account of his conduct, have made it impossible for the departed spouse to have remained in the matrimonial home, and in such a case, the spouse who remains in the matrimonial home is considered the deserter.
Constructive desertion is possible where the parties, though still under one roof, have ceased to cohabit with each other and have no contact with each other. A husband, who shuts himself up in his room and ceases to have anything to do with his wife, is living separately and apart from her as effectively as if they were separated by the outer door of a flat. It is similar to two persons, having different flats in the same apartment building. Since that separation is brought about by his behaviour, he is considered to be the deserter in the eyes of the law. Thus, you can get a divorce on the ground that your husband deserted you.
There was never any bar against remarriage on the death of a spouse – the bar, when it existed, applied only to the dissolution of marriage by a decree of divorce and not to the dissolution of marriage, due to the death of the spouse. Thus, the law permits you to remarry immediately after your husband’s death, though we are not sure your conscience will.
Before the Amendment of Section 15 of the Hindu Marriage Act 1955, there was a bar to remarriage for a period of one year after a decree, dissolving the marriage, had been passed. This provision was enacted to allay apprehension that divorce was sought only for contracting another marriage as well as to avoid dispute about the parentage of children. Thus, it was considered appropriate to have some time lag between the first and second marriages. A marriage, solemnised in the interim in violation of the above provision of law, was not void, as the provision was read to be regulatory rather than mandatory. However, the bar to remarriage was lifted by the Marriage Laws (Amendment) Act 1976 and so today, you do not have to wait for a year after your divorce to remarry. You must wait only till the time for filing an appeal has passed and no appeal has been filed. This is usually thirty days from the date of the judgment granting divorce (excluding the time taken for obtaining a certified copy of the judgment).
Except for Christian and Parsi law, leprosy is a ground for divorce under all personal laws in India. However, under Section 13(1)(iv) of the Hindu Marriage Act 1955, the leprosy has to be virulent and incurable before a divorce will be granted.
Wilful Neglect: This expression is used in both the Special Marriage Act 1954, and the Hindu Marriage Act 1955 and in some cases it has been considered a part of constructive desertion.
Restitution of Conjugal Rights
The only uniform provision in all the personal laws in India is about the Restitution of conjugal rights. There is no uniformity between any provisions in the rest of the personal law.
Normally, the court cannot grant specific performance of marriage. However, but by a decree of restitution of conjugal rights, it is possible. Section 25 of the Hindu Marriage Act provides this remedy.
The constitutional validity of this provision was challenged several times. The Supreme Court has finally upheld the validity of this provision.
Lawful wedlock among two persons imposes an obligation on both the spouses to cohabit with each other and to live with each other. The expression “withdrawal of society” means cessation of cohabitation, to bring an end the consortium. The cessation of cohabitation or bringing to end of consortium should be the act of the respondent. The word “society” here means the same thing as cohabitation. Refusal to live with other spouse, refusal for marital intercourse, refusal to give company and comfort to each other, all amounts to withdrawal from society.
In a petition for restitution of conjugal rights, it is not required to show that the parties were cohabiting earlier. If the parties were not staying together earlier, the petition would lie when one of the parties intends to cohabit with the other. This petition can be presented even if the marriage is not consummated and the other party wants to consummate the marriage.
Defence of restitution petition: If the respondent has withdrawn from the society of the petitioner for a valid reason, it is a complete defence to the restitution petition. A ground for any matrimonial cause is obviously a reasonable excuse. But the reasonable excuse need not be equivalent to a ground for matrimonial cause. Reasonable excuse may mean much less than a ground of a matrimonial cause. Any matrimonial misconduct, which is grave and weighty, will amount to reasonable excuse. The following will amount to be reasonable excuse:-
- a ground for relief in any matrimonial cause,
- a matrimonial misconduct, not amounting to a ground of a matrimonial cause, if sufficient weighty and grave, or
- such an act, omission or conduct, which makes it impossible for the respondent to live with the petitioner.
If during the pendency of an appeal against decree for restitution of conjugal rights, the husband files a petition under s.13 of the Hindu Marriage Act for a decree of divorce on the grounds of desertion and cruelty, the appeal becomes infructuous.
Execution of a decree of restitution of Conjugal Rights: A decree for restitution cannot be executed by arrest of the judgment-debtor. But, under order 21 Rule 32 of the Code of Civil Procedure, 1908, financial coercion can be exercised for its enforcement, i.e. the decree can be executed by the attachment of property of the judgment-debtor.
Rule 32: “Where the party against whom a decree for restitution of conjugal rights has been passed, and he had an opportunity of obeying the decree and has wilfully failed to obey it, the decree may be enforced. In case of a decree for restitution of conjugal right has been passed, and if he had an opportunity of obeying the decree and if he wilfully failed to obey it, the decree may be enforced in case of a decree for restitution of conjugal right by attachment of her/his property.”
Rule 33 further provides for periodic payment of money if a decree for restitution of conjugal rights is complied with.
- Notwithstanding anything in rule 32, the court, either at the time of passing a decree against a husband for the restitution of conjugal rights or at any time afterwards, may order that the decree shall be executed in the manner provided in this rule.
- Where the court has made an order under sub-rule(1), it may order that, in the event of the decree not being obeyed within such period as may be fixed in this behalf, the judgment-debtor shall make to the decree-holder such periodical payments as debtor shall, to its satisfaction, secure to the decree-holder such periodical payments.
- The court may from time to time vary or modify any order made under sub-rule (2) for the periodical payment of money, either by altering the times of payment or increasing or diminishing the amount or may temporarily suspend the same as the whole or part of the money so ordered to be paid, and again revive the same, either wholly or in part as it may think just.
- Any money, ordered to be paid under this rule, may be recovered as though it were payable under a decree for the payment of money.