DIVORCE UNDER THE HINDU MARRIAGE ACT, 1955: PROVISIONS, CASES, AND PROCEDURE

DIVORCE UNDER THE HINDU MARRIAGE ACT, 1955: PROVISIONS, CASES, AND PROCEDURE

Author Name: SHRADDHA PATIL

Editor Name: Krishna Parmar

ABSTRACT:

Marriage refers to an institution where two people get involved in a stable and socially permissible relationship legally bound by different personal laws. In the case of Hindus, a marriage is bound by the Hindu Marriage Act, of 1955. The procedures to be followed during the marriage commission are binding on both parties in a Hindu marriage. Similarly, if both parties wish to dissolve their marriage, the procedures to be followed according to the rule of law are formulated in Section 13 of the Hindu Marriage Act, 1955. It lays down nine grounds on which the separation of husband and wife is permitted. Divorce can either be through mutual consent or judicial proceedings when one of the parties does not agree with the terms of marriage.

INTRODUCTION:

The term ‘divorce’ has not been defined in any legal body or act of law, but it pertains to the legal dissolution of a marriage with the use of judicial proceedings and legal machinery. In medieval India, the term divorce was very unknown. With time, there was a need to include divorce in marital rights due to increased awareness regarding human rights and individuality. Before 1955, divorce was denounced due to the notion that marriages were not only to be continued till the death of husband and wife in the real world but also after that. However, changing societal needs created a place for divorce in the Hindu Marriage Act, of 1955.

KEYWORDS:

  1. Hindu Marriage Act
  2. Divorce
  3. Hindu marriage
  4. Grounds of divorce
  5. Divorce petition
  6. Divorce provisions
  7. Divorce case laws
  8. Family law

PROVISIONS:

Recently, the Supreme Court said that it may utilize the authority conferred by Article 142, which gives the Supreme Court the power to administer comprehensive justice, to dissolve any marriage, or to issue a divorce judgment if it has irretrievably broken down. People will find it simpler to approach the Supreme Court right away and skip the waiting time as a result. Let’s explore a few of the significant clauses included in the Hindu Marriage Act:

Section 5: Conditions for Hindu Marriage

Marriage may be solemnized between any two Hindus if the below conditions are fulfilled:

  1. Both parties should not have a living spouse at the time of marriage.
  2. At the time of the marriage, neither party was capable of giving valid consent to it, was unfit for marriage and the procreation of children, or has been subject to recurrent attacks of insanity.
  3. The groom must be 21 years old, and the bride must be 18 years old at the time of the marriage.
  4. The parties are not within the degree of a prohibited relationship unless the custom or usage permits it.
  5. The parties are not spindles of each other unless custom or usage permits it.

Section 10: Judicial Separation

Section 10 of the Hindu Marriage Act is concerned with judicial separation and the steps required to get a divorce considered legal, such as applying in family court. As per sections 13 (i) and (ii), the petition can mention the cause for the separation and also other sections that may be necessary.

Section 13: Divorce

Section 13 of the Hindu Marriage Act is an entirely separate section, designated for divorce. Under this section are listed various grounds for divorce that are relevant in proceedings for a marriage dissolution. It is important to note that Section 13(2) permits a woman to file for divorce, and Section 13(1) permits both men and women to file for divorce.

Clause 1:

Any marriage can be dissolved by a decree of divorce on the ground that the other party—

  1. ADULTERY: has had sexual intercourse with any person other than his or her spouse after marriage
  2. CRUELTY: caused harm to the petitioner, either physically or emotionally.
  3. DESERTION: has abandoned the petitioner for a continuous period of 2 or more years before the filing of the petition.
  4. RELIGIOUS CONVERSION: has ceased to be a Hindu by conversion to another religion
  5. INCURABLE INSANITY: has been incurable of an unsound mind or has been suffering from a mental disorder
  6. VENEREAL DISEASE: has been suffering from venereal disease in a communicable form.
  7. SANYASA, or renunciation, has renounced the world by entering any religious order.
  8. PRESUMPTION OF DEATH: has not been heard of as being alive for seven years or more.
  9. RESTITUTION OF CONJUGAL RIGHT: if there has been no resumption of cohabitation between the parties for 1 year or more after the judicial separation or if there has been no restitution of conjugal rights.

Clause 2:

A wife may also present a petition for a decree of divorce because:

  1. The husband had either remarried or any of his previous wives were still alive at the time of the solemnization of the marriage.
  2. That the husband has been guilty of rape, sodomy (anal sexual intercource), or bestiality (sexual relations between a human being and an animal).
  3. That her marriage was solemnized before she turned fifteen years old, and she rejected the marriage after 15 years of age but before eighteen years of age.

Section 13B: Divorce by mutual consent

On the ground that they have been living apart for a year or more and have mutually decided that their marriage should be ended.

Section 14: No petition for divorce is to be presented within one year of marriage.

As per the Hindu Marriage Act of 1955, it is forbidden to dissolve a marriage if a year hasn’t passed since the marriage date. Nonetheless, if the sections and sufficient evidence are submitted with the petition, exceptions may be made. It also takes the birth of a child or children from a marriage very seriously.

Section 15: Divorced persons may marry again.

It is legal for either party to a divorce to remarry after the marriage has been dissolved by a decree of divorce if there is either no right of appeal against the decree, the deadline for appealing has passed without an appeal being filed, or an appeal has been filed but dismissed.

Section 25: Permanent alimony and maintenance

Either of the parties to a divorce may make an application to receive maintenance or support as a gross sum or periodical sum for the lifetime of the applicant, keeping in mind the income and other property of both the respondent and the applicant. If required, a charge on immovable property may also be created. Several factors, such as future expenses, lifestyle expenses, costs of education in the case of children, inflation, medical expenses, etc., may be considered while deciding on the sum.

The court may see this as a just order to secure such a payment through the

decree of divorce. Such an order may be modified or rescinded by the court if it observes a change in the circumstances of either party. The court may also modify or rescind the order if either party has remarried or has had sexual intercourse outside of marriage.

Section 26: Custody of children

This section talks about the powers of the court to decide upon custody.

guardianship, support, and education of children (under the age of 18) after the divorce while considering the interests and wishes of the children.

IMPORTANT CASES:

Samar Ghosh v. Jaya Ghosh (2007): In Samar Ghosh v. Jaya Ghosh (2007), the Supreme Court of India discussed the basis of divorce due to cruelty. The court came up with a list of actions that may be concretely categorized as mental cruelty, insisting that marriage dissolution should sometimes be allowed as it all depends on the particular cases and situations involved.

Naveen Kohli v. Neelu Kohli (2006) In Naveen Kohli v. Neelu Kohli (2006), the Supreme Court of India allowed the divorce on the grounds of an irreconcilable breakdown of the marriage, implying cruelty and incompatibility. The court reiterated the stand that long separation and incompatibility are reasons enough to part, suggesting the legislature exercise wise steps and introduce the cause of irretrievable breakdown as one of the grounds for divorce.

Akanksha vs. Anupam Mathur (2018) In this case, the Supreme Court remarked that the couple made the choice of a voluntary divorce, and the divorce should not be delayed for six months. Consequently, the court ruled out the six months, and the marriage came to an end.

Sureshta Devi v. Om Prakash (1991): In the case of Sureshta Devi v. Om Prakash, the Supreme Court ruled that mutual consent for divorce under Section 13B of the Hindu Marriage Act must be continuous until the decree. Due to consent withdrawn by any party even before the decree, the application will not be eligible for the petition.

PROCEDURE:

  1. The husband and wife file a petition in family court, as represented by their respective counsel. This petition comprises all the information about the parties’ separation, their terms, and the pieces of evidence essential for the divorce.
  2. The parties are given a date on which they must appear in person before the family court with their respective counsel to go over all the details of the petition, including family histories, properties possessed, the reason for the divorce, child custody (if applicable), identification documentation, and more.
  3. Because Hindu marriage is considered sacred and viewed as an indissoluble or permanent relationship, the court may also send both parties to mediation before this to see if there is any possibility of reconciliation. However, the family court’s procedures are followed if both parties reject any chance of reconciliation.
  4. The family court has complete power to add or modify conditions following the law if there is any dispute regarding alimony or maintenance amount and agreement, or if there are issues about child custody or visitation rights, after carefully reviewing and verifying all available evidence and statements from both parties.
  5. Following this, the first motion is approved, and the parties are given six months to change their minds and see if there is still a possibility to get back together. The time frame may be extended to 18 months from the family court petition date.
  6. If both parties attempt to get back together and wish to stay together, they can file an appeal for the divorce to be canceled through legal counsel at this time. If both parties refuse to work things out, the divorce will proceed according to the order, and the parties’ final declarations will be recorded in the second motion.
  7. Following the recording of the statement, the spouses sign the entire and final agreement to ensure that there are no future disputes or problems regarding child custody, alimony, or maintenance.
  8. The court issues a decree of divorce and declares the marriage null and void once it is satisfied with the arguments made by both parties and determines that there is no possibility of reconciliation in the final motion.

SUGGESTIONS:

In the Hindu Marriage Act, of 1955, there are more grounds for divorce, for example, adultery, cruelty, desertion, conversion, unsoundness of mind, leprosy, venereal disease, renunciation, and presumption of death. These bases are comprehensive; however, they can be put in a new, clearer form with more contemporary problems like emotional abuse and digital infidelity. Even though the Act is silent on the point of “irretrievable breakdown of marriage,” it is increasingly admitted by the courts. A change proposal to put up this cause for divorce would make it easier, and the waiting period for definite proof of such marriages would likely reduce.

Although the Act is written in a more gender-neutral way, its application is sometimes gender-biased. It is so important that everyone, women as well as men, be protected by the law. The Autonomous Board supports mediation and conciliation before you proceed with a divorce to help you solve conflicts calmly. Reassessing and boosting the role of the alternative dispute resolution thingies can make it less likely that the divorce trials will lead to an antagonistic situation and will positively affect family reunion efforts.

There are many people in the dark as to their rights and responsibilities under the Hindu Marriage Act. An increase in public legal awareness and the provision of easy access to legal support can be major ways to rebuild a person’s understanding of matrimonial disputes.

CONCLUSION:

Since previous generations, divorce has been considered a bad notion. There can be several reasons for a couple to get divorced. In India, these problems have a separate dimension. The culture of India is such that a male or female is considered to be a possession of the foster parents as they nurture the child. Such treatments can be pleasing, but they are also one of the main reasons for the increased number of divorces in India.

The other reason may be the communication gap in marriages. Where there is no proper communication, misunderstandings are bound to happen. Both males and females are separate entities in marriage, having their own rights. But some of the rights have to be common for better communication and a successful marriage. Divorces can also happen due to undue influences without the knowledge of both parties, which may take different turns after marriage. Misappropriation at the time of marriage, or hiding the true identity and gender, can also be a reason for the breakdown of the machinery of marriage.

REFERENCES:

Websites referred:

  1. https://www.lexisnexis.in/blogs/divorce-under-hindu-marriage-act/
  2. https://blog.ipleaders.in/divorce-under-hindu-marriage-act-1955/
  3. https://districts.ecourts.gov.in/
  4. https://lawfoyer.in/divorce/

Statutes referred:

  1. Hindu Marriage Act, 1955

Cases referred:

  1. Samar Ghosh v. Jaya Ghosh (2007)
  2. Naveen Kohli v. Neelu Kohli (2006)
  3. Akanksha vs. Anupam Mathur (2018)
  4. Sureshta Devi v. Om Prakash (1991)