1.
Desertion
is a matrimonial offence entitling the deserted spouse to file petition for
divorce. Deserted spouse should not be guilty of constructive desertion and it
should have been for a period of two years preceeding to file the petition on
this ground. Section 13 of Hindu Marriage Act deals with the same. The
petitioner will have to prove the factum of desertion since two years prior to
filing the petition and animus derendi i.e. the intention break the matrimonial
ties forever.
desertion is one of the grounds on which
divorce can be taken from the spouse. Divorce under the Hindu Marriage Act can
be obtained on the grounds of Adultery, Cruelty and Desertion
Grounds for Divorce under Hindu Act
Aparna Pengat | Sep
29, 2009
KNOW the grounds under which a Hindu
woman can obtain a divorce from her husband and her rights to claim
maintenance.
The Hindu Marriage Act, The Hindu Adoptions and
Maintenance Act, and Criminal procedure Code (Section 125) have till date
proved to provide a wide range of protection to Hindu women.
Hindu Marriage Act
Under the Hindu Marriage Act of 1955, you can file
a petition for divorce against your spouse, for dissolving the marriage under
any of the following grounds:
- Adultery
Your spouse had a voluntary sexual relationship,
including intercourse with any other person.
- Cruelty
Treating the petitioner with cruelty, both mental
and physical.
- Desertion
In case your spouse deserted you for a continuous
period of minimum two years.
- Conversion
Your hubby has ceased to be a Hindu by converting
to any other religion.
- Mental Disorder
Your hubby has been suffering intermittently and
continuously from a mental disorder and therefore cannot be expected to live
with.
- Leprosy
The spouse suffers from virulent and incurable form
of leprosy.
- Venereal Disease
The spouse is suffering from any venereal diseases
in a communicable form. That is, any sexually transmitted disease such as AIDS
etc.
- Renunciation
Your spouse has renounced the world for any
religious order.
- Not Heard Alive
Your spouse has not been heard as alive for about a
period of seven years or more.
- No Resumption of Co-habitation
There is no resumption of co-habitation between
spouses for a period of one year or more after passing of a decree for judicial
separation.
- No Restoration of Marital Rights
There is no restitution of conjugal rights between
spouses for a period of one year or more after passing of a decree for
restitution of conjugal rights.
In addition to the above, following are the grounds
available only to a wife to claim a divorce from her husband:
- If a husband is guilty of rape, sodomy or bestiality.
- If marriage was solemnised before the commencement of the Hindu Marriage Act and the husband had married again before such commencement to some other person, and that person is alive at the time of the marriage and also at the time of filing a divorce petition.
- If marriage is solemnized before a wife attains 15 years and renounces the marriage before attaining the age of 18, irrespective of the fact whether that marriage was consummated or not.
- That since the passing of judgment awarding maintenance to the wife, there is no co-habitation between the parties for one year or more.
Mutual Consent
You and your spouse can file a joint petition
before the court for obtaining a divorce by mutual consent. The petition must
be submitted with the following proof:
1. Both parties to the marriage have been living
separately for more than one year.
2. Have not been able to live together.
3. Have mutually agreed to seek a divorce.
Divorce Under Hindu Marriage
Act
As per the
ancient Hindu laws there was no place for Divorce and it was with the
codification of Hindu law that the first grounds for the new age laws were laid
down. Divorce between two persons married under the Hindu Marriage Act is also governed by the same act.
Grounds For Divorce
A petition for divorce may be presented by either the husband or wife for dissolving the marriage on the following grounds:
That the other party
- has after the marriage had voluntary sexual
intercourse with any other person; or
- has after the marriage treated the petitioner
with cruelty
- 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,
- has been incurably of unsound mind or has been
continuously or intermittently from a mental disorder that the petitioner
cannot reasonably be expected to live with such a person,
- has been suffering from a virulent and incurable
form of leprosy,
- has been suffering from venereal disease in a
communicable form
- has renounced the world by entering any
religious order.
- Has not been heard of as being alive for a
period of seven years or more by persons who would have naturally heard of
it, had that party been alive.
Divorce By Mutual Consent
Filing Of Petition
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Divorce under Hindu Law
Cruelty |
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Click here if
you would like to Contribute or send a feedback. Click here to go to the main page of this section (Know Your Law). In the previous edition, we have discussed about Adultery In this edition let us know about cruelty. Under clause (ia) of sub-section (1) of section 13 and under sub-section (1) of section 10 of the Hindu Marriage Act, 1955 cruelty is a ground of divorce as well as judicial separation respectively. Whether a particular act or conduct complained of is covered under the ground of cruelty or not, will always be decided on facts and circumstances in each case. What is Cruelty? Under the English Law, legal concept of cruelty is conduct of such a character as to cause danger to life, limb or health (physical or mental) or as to give rise to a reasonable apprehension of such danger. Before the amendment of the Hindu Marriage Act, which was brought in the year 1976, the rigid meaning and interpretation was given to the ground of cruelty. But even before the amendment, the Supreme Court in Dastane Vs. Dastane, AIR 1975 SC 1534, tried to give a literal meaning to the ground of cruelty applicable in terms of divorce or judicial separation. Though the concept of English Law and the Hindu Marriage Act in terms of cruelty as a ground for divorce or judicial separation is more or less the same, yet the learned Judges in In Sukumar Vs Manohar Shivaram Jagesha, the Court observed: The question whether a particular act or behaviour would amount to cruelty or not depends upon the character, way of life of the parties, their social and economic conditions, their status, customs and traditions. Each case is to be decided on the facts of its own. The judges and the lawyers should not import their own notions of life while dealing with matrimonial cases. Classification of Cruelty: Cruelty is classified into two heads. 1. Physical cruelty and 2. Mental cruelty Physical Cruelty: It is a settled law that physical violence is not necessary ingredient of cruelty. Unending accusations and imputations can cause more pain and misery than a physical beating. Therefore, it goes without saying that the act of cruelty consists of mental torture or physical violence. If it is a physical violence, there will be no problem for a court to arrive at a decision while determining a case presented before it, but in case of mental torture or harassment, the court finds comparatively more difficult to come to final conclusion. Firstly the court begins its enquiry as to the nature of cruel treatment as well as the impact of that treatment in the mind of the spouse. Ultimately it is a matter of inference to be drawn by taking into account of the nature of the conduct and its effect on the complaining spouse. Kaushalya Vs Wisakhi Ram: The husband had been ill treating the wife and beating her. On one occasion she had to go to the police station to lodge a complaint against her husband. The Saptmi Vs Jagdish: It was held that if a husband constantly abuses and insults the wife and occasionally resorts to physical violence against her, it amounts to cruelty. Mental Cruelty: An act of mental cruelty is far more severe and dangerous than an act of physical violence. The eye opener cases of mental cruelty are Mohit Bhatnagar Vs Sangeeta Bhatnagar and Deepak Johri Vs Kum Kum Johri, the case of Mohit Bhatnagar has since been decided by the Deepak Johri and his wife Kum Kum Johri have been living separately for more than 12 years and the Court has yet to decide their fate. Criminal proceedings against Mohit Bhatnagar are still going on. As per my opinion, the non-decision of such cases for a very long time, also amount to mental torture, agony, and punishment of the highest order. In other words this amounts to mental cruelty to both the parties on account of delay oriented procedure prevalent in the courts, whatever be the reasons. In the judgment of the Supreme Court in V. Bhagat Vs D. Bhagat, the learned judges granted the relief by cutting short the delay oriented procedure adopted by the District Court as well as the High Court of Delhi. Every matrimonial petition may be heard on day to day basis, and be disposed of within six months from the service of the petition on the respondent. The High Court is also required to dispose of every appeal within three months of the service of the notice of appeal to the respondent. Inspite of the fact that the law provides that every matrimonial proceeding should be completed within six months, no serious efforts are made either by the courts or by the advocates to adhere to the time limit. And the reality is that no matrimonial proceedings are completed before five or ten years. This long delay itself is also the cause of mental torture or mental cruelty to all aggrieved parties facing matrimonial proceedings in the courts. How to prove mental cruelty? The standard of in case of mental cruelty need not be beyond reasonable doubt, as is required in the criminal trials. What is required in such cases is that the court must be satisfied of preponderance of probabilities and not satisfaction beyond all reasonable doubts. The act of mental cruelty in matrimonial homes, matrimonial violence and wife battering continues all over the world. Often the unwanted acts of mental cruelty prove to be much more devastating than the acts of physical violence. Mental cruelty can be inflicted by many ways. A false criminal case to harass the husband would be an act of cruelty. Refusal to have marital intercourse, false complaints to the employees by the wife, an act of nagging, false, scandalous, malicious and baseless charges etc. come under the purview of mental cruelty. Kiran Mandal Vs Mohini Mandal: Where a wife is found to be of bad temperature and makes false allegations against her husband that he had illicit relations with his brother's wife. It amounted to an act of cruelty. Harbhajan Singh Vs Amarjit Kaur: The wife not only refused to do household work, but in the presence of guests, also forced the husband to clean the dining table, utensils and crockery. She even slapped the husband. She used to keep her husband waiting outside the house for half an hour or more on his return from the office. She went to the extent of levelling false charges of embezzlement against her husband to the bank authorities, where he was employed. Shanti Devi Vs Raghav Prakash: The wife made an allegation that her husband was impotent. She also put on fire the doctoral thesis of her husband, which was yet to be submitted. The husband was a lecturer in the college. Ashok Kumar Vs Vijay Lakshmi: False allegations of the wife that an attempt by the husband was made to burn her amounts to cruelty. Condonation of Cruelty: Condonation is forgiveness of conjugal offence with full knowledge of all circumstances. To constitute condonation there must be two things, viz., forgiveness and restoration. Forgiveness is the essence of condonation. To be condonation, it must completely restore the offending party and must be followed by cohabitation. There is no condonation unless conjugal cohabitation has been resumed or continued. While filing a petition for divorce, on the ground of cruelty in the matrimonial court, the aggrieved party is required specifically to mention that he / she has not condoned the cruelty. Even in an affidavit, he / she is required to mention the non - condonation of cruelty to get a decree of divorce on the basis of cruelty. to be continued.... Sandeep Shenoy |
NULLITY OF MARRIAGE
AND DIVORCE
Hindu Marriage Act 1955
Section 12 - Voidable marriages :- Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:-
a. that the marriage has not been
consummated owing to the impotence of the respondent; or
b. that the marriage is in contravention
of the condition specified in clause (ii) of section 5; or
c.
that
the consent of the petitioner, or where the consent of the guardian in marriage
of the petitioner was required under section 5 as it stood immediately before
the commencement of the Child Marriage Restraint (Amendment) Act, 1978 (2 of
1978), the consent of such guardian was obtained by force or by fraud as to the
nature of the ceremony or as to any material fact or circumstance concerning
the respondent; or
d. that the respondent was at the time
of the marriage pregnant by some person other than the petitioner.
Notwithstanding any
contained in sub-section (1), no petition for annulling a marriage:-
a. On the ground specified in clause (c)
of sub-section (1) shall be entertained if:-
i.
the
petition is presented more than one year after the force had ceased to operate
or, as the case may be, the fraud had been discovered; or
ii.
the
petitioner has, with his or her full consent, lived with the other party to the
marriage as husband or wife after the force had ceased to operate or, as the
case may be, the fraud had been discovered;
b. on the ground specified in clause (d)
of sub-section (1) shall be entertained unless the court is satisfied:-
i.
that
the petitioner was at the time of the marriage ignorant of the facts alleged;
ii.
that
proceedings have been instituted in the case of a marriage solemnized before
the commencement of this Act within one year of such commencement and in the
case of marriages solemnized after such commencement within one year from the
date of the marriage; and
iii.
that
marital intercourse with the consent of the petitioner has not taken place
since the discovery by the petitioner of the existence of the said ground.
Section 13 - Divorce :-
1. Any marriage solemnized, 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
i.
has,
after the solemnization of the marriage, had voluntary sexual intercourse with
any person other than his or her spouse; or
ii.
has,
after the solemnization of the marriage, treated the petitioner with cruelty;
or
iii.
has
deserted the petitioner for a continues period of not less than two years
immediately preceding the presentation of the petition; or the passing of a
decree for restitution of conjugal rights in a proceeding to which they were
parties.
2. A wife may also present a petition
for the dissolution of her marriage by a decree of divorce on the ground;
i.
in
the case of any marriage solemnized before the commencement of this Act, that
the husband had married again before such commencement or that any other wife
of the husband married before such commencement was alive at the time of the
solemnization of the marriage of the petitioner;
Provided
that in either case the other wife is alive at the time of the presentation of
the petition; or
ii.
that
the husband has, since the solemnization of the marriage, been guilty of rape,
sodomy or bestiality; or
iii.
that
in a suit under section 18 of the Hindu Adoption sand Maintenance Act, 1956(78
of 1956), or in a proceeding under section 125 of the Code of Criminal
Procedure , 1973 (2 of 1974) (or under the corresponding section 488 of the
Code of Criminal Procedure, 1898 (5 of 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 one
year or upwards;
iv.
that
her marriage (whether consummated or not) was solemnized before she attained
the age of fifteen years and she has repudiated the marriage after attaining
the age of eighteen years.
Explanation:- This clause applies whether the
marriage was solemnized before or after the commencement of the Marriage Laws
(Amendment) act, 1976 (68 of 1976).Section 13B - Divorce by mutual consent :-
1. Subject to the provisions of this Act
a petition for dissolution of marriage by decree of divorce may be presented to
the district court by both the parties to a marriage together, whether such
marriage was solemnized before or after the commencement of the marriage Laws
(Amendment) Act 1976 (68 of 1976), 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.
2. On the motion of both the parties
made not earlier than six months after the date of the presentation of the
petition referred to in sub-section (1) and not later than eighteen months
after the said date, if the petition is not withdrawn in the meantime, the
court shall, on being satisfied, after hearing the parties and after making
such inquiry as it thinks fit, that a marriage has been solemnized and that the
averments in the petition are true, pass a decree of divorce declaring the
marriage to be dissolved with effect from the date of the decree.
Section 24 - Maintenance pendent life and expenses of proceedings :- Where in any proceeding under
this Act it appears to the court that either the wife or the husband, as the
case may be, has no independent income sufficient for her or his support and
the necessary expenses of the proceeding, it may, on the application of the
wife or the husband, order the respondent to pay to the petitioner the expenses
of the proceeding, and monthly during the proceeding such sum as, having regard
to the petitioner’s own income and the income of the respondent, it may seem to
be court to be reasonable.Section 25 - Permanent alimony and maintenance :-
1. Any court exercising jurisdiction
under this Act may, at the time of passing any decree or at any time subsequent
thereto, on application made to it for the purpose by either the wife or the
husband, as the case may be, order that the respondent shall pay to the
applicant for her or his maintenance and support such gross sum or such monthly
or periodical sum for a term not exceeding the life of the applicant as, having
regard to he respondent’s own income and other property, if any, the income and
other property of the applicant the conduct of the parties and other
circumstances of the case it may seem to the court to be jest and any such
payment may be secured, if necessary, by a charge on the immovable property of
the respondent.
2. If the court is satisfied that there
is a change in the circumstances of either party at any time after it has made
an order under sub-section (1), it may at the instance of either party, vary,
modify or rescind any such order in such manner as the court may deem just.
3. If the court is satisfied that the
party in whose favour an order has been made under this section has re-married
or if, such party is the wife, that she has not remained chaste, or, if such
party is the husband, that he has had sexual intercourse with any woman outside
wedlock, it may at the instance of the other party vary, modify or rescind any
such order in such manner as the court may deem just.
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