There has been an increased rate of divorce as compared to earlier times as couples these days explore that they are not anymore compatible with each other and that the relationship might not as well “work out”. As more and more number of couples today resort to divorce queries, it is important to have knowledge about the legalities of the same. In India, every religion offers its own personal laws concerning to marriage. The Hindus, Buddhists, Sikhs and Jains are governed under the Hindu Marriage Act, 1955; the Muslims are governed under the Muslim Marriage Act, 1954; the Christians are governed under the Indian Divorce Act, 1869. However, every personal law has the same definition for divorce I.e., “Divorce is the dissolution of marriage.”
Jurisdiction of the Court
For the matters that are concerned with the Family suits and proceedings, Order XXIII A of the Code of Civil Procedure, 1908 is applied to them. Every petition that is filed under the aforementioned act, shall be heard in the District Court, or the Family Court within their local limits I.e., where marriage is solemnized; where both the parties to the marriage reside together at the time of filing the petition; and where the parties to the marriage last resided together. However, section 19 of the Hindu Marriage Act gives a benefit to both the parties to the marriage to file a petition as per their convenience. The Courts of Law have the jurisdiction to hear the case where the marriage is solemnized and at a place of its municipal limits and the party resides at that very place, and that case cannot be transferred to the District Court on account of the husband’s residence being at a different municipal limit.
Grounds for Divorce
The Grounds for Divorce is obviously different in different Personal Laws according to their culture, tradition and belief, however, this article has focused on Section 13 of the Hindu Marriage Act, I.e., grounds for divorce in the marriages of the Hindus, Sikhs, Jains and Buddhists. They are as follows:
The concept of Adultery recently got decriminalized, however, it is surely a ground for divorce. By putting it simply, adultery refers to the sexual intercourse with someone outside the marriage. It is irrelevant to note if the other person is married or not. For example, A and B are married. If A commits adultery with C, it is irrelevant to note whether C is married or not.
Cruelty has been defined u/s 498A of the Indian Penal Code which simply states that if the husband or the relative of the husband causes the other to suffer may it be mentally or physically, is caused to commit Cruelty against the other. Threat to commit suicide or provoking to commit suicide, demand for dowry, impotency and all such incidents also comes under Cruelty.
Conversion refers to the situation where if one party to the marriage converts his or her religion to anything other than Hindu I.e, Christian, Islam, Parsi etc. In the case of Suresh Babu v. V.P. Leela, the wife filed a divorce petition on the ground of conversion as the husband converted himself to the Islamic religion. The Honorable Court accorded the same and contended that conversion of religion for matrimonial purposes is hampering the dignity of a woman and is a strong ground for divorce.
Desertion is stated to be the declination of all the duties and obligations that are expressed and implied in a marriage to the other spouse without any reasonable cause as such and without the consent of the other spouse. In the case of Bipin Chandra v. Prabhavati, the appellant filed a divorce petition in the Honorable Court of law after having discovered that while he was out to England for four years in order to handle certain business matters, his wife had liaison with other males for over four years. The Court was kind enough to accord desertion as a ground for divorce in the said case.
In order to allege divorce on the ground of Insanity, there are two conditions that are to be proved prior to that, I.e., the respondent is of unsound mind and the respondent is suffering from steady mental disorder to such an extent that the petitioner finds it next to impossible to live with them.
Presumption of Death
A person is primarily assumed to be dead if he/ she has not been heard of being alive for the last seven years. The burden of proof lays on the petitioner that the respondent is not known or found for the last seven years under a matrimonial bond. For example, A and B are married. B being the wife of A goes missing for about 10 years and A have not heard from her since then. Here, A may file a divorce petition under Presumption of Death.
Renunciation is nothing but taking the path of Monks, in common language. If one of the spouses renounces or repudiates the world behind and chooses the path of god, the other spouse may file for divorce under Renunciation. It is to be noted that, a person who renounces, is declared to be civilly dead.
The Hindu Marriage Act offers a venereal or an obsolete disease like HIV/AIDS/ STDs, Hepatitis, Herpes and many more to be a ground for divorce.
Grounds for Divorce as per the Muslim Marriage Act
As per Section 2 of the Muslim Marriage Act, a woman married under the Muslim Law shall be authorized to obtain a decree for the dissolution of marriage when-
- The whereabouts of the other spouse is not known for seven years.
- Her husband has refrained from providing her maintenance for a period of more than two years.
- The husband has been imprisoned for seven years or more.
- The husband has failed to perform the marital obligations and duties for seven years.
- The husband was impotent at the time of marriage.
- The husband has been insane for a period of two years.
- The husband was suffering from a venereal disease.
- The husband commits cruelty.
The Concept of Triple Talaq was contended to be constitutionally invalid under Article 14 read with Article 13 (1) in the case of Shayara Banu v. Union of India and Others. Otherwise, more or less, the grounds provided in the Muslim Marriage Act are similar to that of the Hindu Marriage Act.
Grounds for Divorce in Christianity
No matter how different the traditions, cultures and religions are, the personal laws are somewhere or the other connected to a certain extent. According to Section 10 of the Indian Divorce Act, a Christian may get a divorce in two ways-
A mutual divorce is a divorce where both the husband and a wife are living separately for the last two years and may file a divorce petition before the Court of Law.
A contested divorce may be filed for the grounds of adultery, an unsound mind for the last two years, conversion, cruelty, desertion for the last two years and presumption of death.
The concept of divorce might not be loved by either of the spouses but a need-of-the-hour thing to do. It has been incorporated to shield the rights of spouses and refrain from any violation suffered during the course of their marriage. The primary objective in a divorce case is to safeguard the union of marriage irrespective of under which personal law, the marriage comes under, hence a limitation period is provided with the hope of mending things up.
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