DIVORCE UNDER HINDU LAW

Submitted by
…………….

Course: ……..., Division: ….., Batch: …..…., PRN: ………………..

Of
Symbiosis Law School, NOIDA
Symbiosis International (Deemed University) , PUNE
In
September, 2018

Under the Guidance of

……………………..,
Professor at
Symbiosis Law School, NOIDA.
 Certificate

The project entitled ”Divorce under Hindu Law” submitted to Symbiosis law
school, NOIDA for Family Law I as part of Internal assessment is based on my
original work carried out under the guidance of …………………………... The
research work has not been submitted elsewhere for award of any degree.
The material borrowed from other sources and incorporated in the project has been
duly acknowledged. I understand that I myself could be held responsible and
accountable for plagiarism, if any, detected later on.

Signature of student
Date:
 Acknowledgment

Family Law I project assigned to me has provided a lot of knowledge to me. In

performing the assignment, I had to take the help and guidance of some respected
persons, who deserve my greatest gratitude. I sincerely thank my teacher for the
guidance and encouragement in finishing this assignment and also for teaching this
course. I would like to show my gratitude to Symbiosis law school, NOIDA for
giving us a good guideline for assignment throughout numerous consultations. I
am really grateful because we managed to complete our assignment within the time
frame allotted to me.
 Index

1) Introduction Part……….……………....…….
 Introduction
 About the topic
 Research methodology

2) Discussion Part…………………………………..
 Background
 Conceptual framework
 Grounds of divorce
 Merits and demerits
 Judicial separation

3) Conclusion Part…………………………………..
 Conclusion
 Bibliography
 Introduction
Introduction

The research will be divided into 3 broad categories:-

1. Introduction in which the introduction, about the topic and research methodology
would come.

2. Discussion in which the research will firstly, talk and give a background to the theme
“Divorce under Hindu law”. Secondly, the research will talk about the conceptual
framework in which the explanation about the divorce and Hindu law related to
marriage will be provided. Thirdly, the research will state the grounds on which divorce
can be given. Lastly, the research will examine the merits and demerits and talk about
judicial separation.
3. Conclusion and reference– In this a conclusion would be derived from the
discussion done and will also state the references taken to reach that conclusion.

About the Topic

Divorce means dissolution of marriage by a competent court. This paper discusses divorce under
Hindu Law. It analyses how the concept was non-existent under ancient law due to the
sacramental nature of marriage, but was introduced under the Hindu Marriage Act, 1955. It
studies the different theories of divorce- fault, mutual consent, and breakdown; and also
describes the grounds for divorce under this Act, with focus on adultery and cruelty, and how
these grounds were modified through amendments. It briefly dwells on the grounds that are only
available to a wife. The paper addresses the pros and cons of addition of irretrievable breakdown
as a ground for divorce amidst growing debate about its merits.

Research Methodology
The information for the research was gathered from secondary sources like research papers,
articles, web journals, books and different sites. The information gathered is just subjective in
nature and gives fundamental and simple comprehension about the point. The quantitative
information explore isn't given and it is left to promote future research.
 Discussion

Background to the topic

Earlier divorce was unknown to general Hindu law as marriage was regarded as an indissoluble
union of the husband and wife. Manu declared that a wife cannot be released by her husband
either by sale or by abandonment, implying that the marital tie cannot be severed in anyway.
Although Hindu law does not contemplate divorce yet it has been held that where it is recognized
as an established custom it would have the force of law.

According to Kautilya’s Arthashatra, marriage might be dissolved by mutual consent in the case
of the unapproved form of marriage. But, Manu does not believe in discontinuance of marriage.
He declares” let mutual fidelity continue till death; this in brief may be understood to be the
highest dharma of the husband and wife.”

However, this changed when divorce was introduced in the Hindu Marriage Act, 1955

Conceptual Framework
There are basically three theories for divorce-fault theory, mutual consent theory & irretrievable
breakdown of marriage theory.

Under the Fault theory or the offences theory or the guilt theory, marriage can be dissolved only
when either party to the marriage has committed a matrimonial offence. It is necessary to have a
guilty and an innocent party, and only innocent party can seek the remedy of divorce. However
the most striking feature and drawback is that if both parties have been at fault, there is no
remedy available.

Another theory of divorce is that of mutual consent. The underlying rationale is that since two
persons can marry by their free will, they should also be allowed to move out of their
relationship of their own free will. However critics of this theory say that this approach will
promote immorality as it will lead to hasty divorces and parties would dissolve their marriage
even if there were slight incompatibility of temperament.

The third theory relates to the irretrievable breakdown of marriage. The breakdown of marriage
is defined as “such failure in the matrimonial relationships or such circumstances adverse to that
relation that no reasonable probability remains for the spouses again living together as husband
& wife.” Such marriage should be dissolved with maximum fairness & minimum bitterness,
distress & humiliation.

Some of the grounds available under Hindu Marriage Act can be said to be under the theory of
frustration by reason of specified circumstances. These include civil death, renouncement of the
world etc.
Grounds of divorce under Hindu marriage Act

Section 13 of Hindu Marriage Act, 1955 describes in Sub section 1 & 2 about the grounds on
which divorce can be obtained. However, Sub section 2 purely deals with the grounds available
for the wife to obtain divorce.

Section 13(1) says that any marriage solemnized, whether before or after the commencement of
this Act, 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-

Adultery
While adultery may not have been recognized as a criminal offence in all countries, the
matrimonial offence of adultery or the fault ground of adultery is recognized in most. Even under
the Shastric Hindu law, where divorce had not been recognized, adultery was condemned in the
most unequivocal terms. There is no clear definition of the matrimonial offence of adultery. In
adultery there must be voluntary or consensual sexual intercourse between a married person and
another, whether married or unmarried, of the opposite sex, not being the other’s spouse, during
the subsistence of marriage. Thus, intercourse with the former or latter wife of a polygamous
marriage is not adultery. But if the second marriage is void, then sexual intercourse with the
second wife will amount to adultery.
In Swapna Ghose v. Sadanand Ghose the wife found her husband and the adulteress to be lying
in the same bed at night and further evidence of the neighbors that the husband was living with
the adulteress as husband and wife is sufficient evidence of adultery. The fact of the matter is
that direct proof of adultery is very rare.
The offence of adultery may be proved by:

 Circumstantial evidence
 Contracting venereal disease

Cruelty
Cruelty includes both mental and physical cruelty. While physical cruelty can be determined
easily, it is difficult to set the parameters of mental cruelty. Acts of cruelty are behavioural
manifestations stimulated by different factors in the life of spouses, and their surroundings and
therefore; each case has to be decided on the basis of its own set of facts.

In Pravin Mehta v. Inderjeet Mehta, the court has defined mental cruelty as ‘the state of mind.’

Desertion
Desertion means the rejection by one party of all the obligations of marriage- the permanent
forsaking or abandonment of one spouse by the other without any reasonable cause and without
the consent of the other. It means a total repudiation of marital obligation.
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.

Conversion
When the other party has ceased to be Hindu by conversion to any other religion for e.g. Islam,
Christianity, Judaism, Zorostrianism, a divorce can be granted.

Insanity

Insanity as a ground of divorce has the following two requirements-

i) The respondent has been incurably of unsound mind

ii) The respondent has been suffering continuously or intermittently from mental disorder of such
a kind and to such an extent that the petitioner cannot reasonably be expected to live with the
respondent.

Leprosy
Contagiousness of leprosy and repulsive outward manifestations are responsible for creating a
psychology where man not only shuns the company of lepers but looks at them scornfully. Thus,
it is provided as a ground for divorce. The onus of proving this is on the petitioner.

Presumption Of Death
Under the Act, a person is presumed to be dead, if he/she has not been heard of as being alive for
a period of at least seven years. The burden of proof that the whereabouts of the respondent are
not known for the requisite period is on the petitioner under all the matrimonial laws. This is a
presumption of universal acceptance as it aids proof in cases where it would be extremely
difficult if not impossible to prove that fact[viii]. A decree of divorce granted under this clause is
valid & effective even if it subsequently transpires that the respondent was in fact alive at the
time when the decree was passed.
Merits and Demerits

Merits

The only merit of the theory as has been propounded by the jurists is that a marriage, which in
practice is considered to be sacramental institution, should be based on grounds on which a
sound marriage is built- that is tolerance, adjustment and respecting each other. If any of the
party to marriage is not ready to live with the other party the relationship will not be a happy
relationship. Stretching such a relationship will do no good, rather will develop hatred and
frustration among the parties for each other. Therefore to protect the sanctity of marriage, to
reduce the number of unhappy marriages and to prevent from getting wasted the precious years
of life of the spouses, it is necessary to dissolve such a marriage.

Demerits

The Law Commission Of India in Chapter 4 of the 71st report has dealt in detail the demerits of
the irretrievable breakdown theory. The two main oppositions discussed in the report are as
follows:

(i) It will make divorce easy. It will allow the spouses or even to any one of the spouses to
dissolve the marriage out of their own pleasure.

(ii) It will allow the guilty spouse to take the advantage of his own fault by getting separated and
dissolving the marriage.

Judicial Separation
Section 10 of Hindu Marriage Act deals with the laws pertaining judicial separation. As per the
law, either party to a marriage may present a decree of judicial separation. The grounds for
obtaining the Judicial Separation are same as specified in sub section 1 and 2 of section 13 of
Hindu Marriage Act.

If the decree of Judicial Separation has been passed by the court , then it shall no longer be
obligatory for the petitioner to cohabit with the respondent. But if a petition for cohabitation is
made by either of the party and court is satisfied by the truth of the statements of petition, may
rescind the decree of Judicial Separation.
 Conclusion

Conclusion
Hindu religion takes marriages as a sacred bond and earlier no laws related to divorce were
available. But due to increase in harassment to the spouse, there was a need of action against the
other spouse. Also, the force relationships were resulting in large number of suicide cases and ill
health. To bring the proper end to marriage relationships, concept of divorce came into action
under Hindu Marriage Act 1955. The court made the provisions of judicial separation, where
both spouse can live apart from each other and think and decide whether they actually need to
get divorced or not. Also to reduce the harassment over women and give them more freedom, the
court has set some exclusive grounds under which wife can obtain the decree of divorce.

Bibliography
 Agarwal, R.K, Hindu law ,Central law agency, Print 2014.
 Vira Reddy v. Kistamma, 1969 Mad. 235; Subbarma v. Saraswathi, (1966) 2 MLJ 263.
 Swapna Ghose v. Sadanand Ghose AIR 1979 Cal 1
 Pravin Mehta v. Inderjeet Mehta AIR 2002 SC 2528.
 Bipinchandra v. Prabhavati AIR 1957 SC 176.
 Venkatame v. Patil AIR 1963 Mys 118.