12. DIVORCE (D1ssoLUTION or Marriace)(Sec. 13) Generally, by custom, divorce is not favoured, and it is only & statutory right permitted for grave reasons. ; ither party to the marriage, may present a petition for Face to the Court under the grounds mentioned, and the Court shall pass a. decree of divorce to dissolve the marriage. A petition for divorce shall not be entertained within one year of marriage. This is with a view to provide the parties with adequate time and opportunity for reconciliation and adjustment. I. GROUNDS FOR EITHER PaRTY: [Sec. 13(1)] 1. After marriage, has voluntary sexual intercourse with any other person than his/her spouse (Adultery) Standard of proof required to prove adultery. Generally, there is a presumption of innocence in a charge of adultery against a spouse. The burden of dispelling the presumption lies on the party charging adultery. Mere suspicion and opinion cannot be considered as proof and there must be evidence to show |. Rot only opportunity to commit the adultery, but also | desire or inclination to commit it. | Since it is not possible to lay down a rule of thumb defining the circumstances to establish adultery, the90 Bel circumstances must be such as would lead to a reasonable and just man to that conclusion. Direct proof however is not an imperative. Circumstantial evidence is taken into consideration for proof of adultery. ‘The birth of a child to the wife when there was no access to her by the husband during the possible period of conception may show the adultery of the wife. Also, contracting of venereal disease, any decree or admissions made in previous proceedings, correspondence between the individuals charged with adultery, confessions and admissions of the parties in the absence of corroborated evidence are taken a8 evidences in such cases. Testimony of disinterested witnesses is also strong evidence. Kamlesh Kumari v. Balbir Singh Bedi, 1973: A child was born after a gap of 11 months and 20 days after final’ parting from the husband. It was a clear proof to’ establish adultery on the wife’s patt- Tribhat Singh v. Vimla Devi The wife had been frequently absenting nesself from her house and was found in company with a 1! stranger and she could not give any clear explanatio? when she was found in the stranger’s company at sev places. It was held that these facts would be consistent with a finding that she had been living in adultery with that man.91 4 qreating the other party cruelly; There is no definition for the concept of cruelty and the degree of cruelty necessary to claim divorce. prom the decided case laws, it is derived that cruelty Is a conduct of such character as to have caused danger to life, limb or health (bodily or mental) or as to give rise toa reasonable apprehension of such danger. Previously, physical harm or fear of physical harm was considered as ‘cruelty’ but, the modern view is that mental cruelty is more-dangerous than physical cruelty. In order to claim divorce under this clause, the offending spouse must have treated the other spouse with cruelty. - Complaints that the spouse is moody, inconsiderate and lacks affection, shows disapproval of love, expression of hatred, selfishness, etc., cannot be considered as cruelty. Drunkenness alone does not amount to cruelty, but drunkenness coupled with inflicting pain and injury on the spouse amounts to cruelty. Shoba Rani Vs. Madhukar Reddy: In this case, it was held that demand for dowry by parents of husband with support of the husband can amount to cruelty within the meaning given in this Section. It is considered as if the husband treated her92 Dastane Vs. Dastane: ‘The husband filed a petition for judicial separatiog on the ground of cruelty. The allegation was that th wife was continuously threatening to put an end to hey own life or set fire to the house. She was also abu the husband and his parents. The Supreme Court held that this amounted to cruelty as per the definition that “cruelty is reasonable apprehension that it is harmful or injurious for one} spouse to live with the other”. Further cruelty now means that it is “conduct of such type that the petitioner cannot} reasonably be expected to live with the respondent’. In this case, the tests amounting to legal cruety were laid down: a. The facts constituting cruelty should be proved ' according to the law of Evidence. b. Such conduct should have created apprehension % fear of real injury in the petitioner’s mind. c. Such fear should be reasonable considerin8 a psycho-physical and socio-economic condition parties. 4, The petitioner should not have taken aavanitaé® 4 his position, j €. orn of cruelty should not have bee? cond t petitioner by his/her conduct.93 the other party for 2 years continuously 3. pefore presentation of the Petition. (Desertion- separation - Animus deserendi) It is the permanent forsaking and abandonment of gne spouse by the other without Teasonable cause and qithout the consent or against the wish of the other. The (i) fact of separation and (ii) the intention of the deserting spouse to Permanently put an end to cohabitation with the spouse and (iii) absence of consent of the deserted spouse and (iv) lack of reason for desertion, are essential ingredients to seek matrimonial relief under this ground. The desertion should be continuous for two years and the deserting spouse should have had the chance to come back to live with the deserted Spouse. Wilful neglect of one spouse to maintain the other also amounts to desertion. If there are reasonable causes for withdrawal from cohabitation, ‘such as adultery or cruelty, it is not considered to be desertion. Bipin Chandra Vs. Prabhavati: In this case, the wife left her husband’s house fearing that she would be punished for writing a letter ‘oan alleged lover. The husband was also not willing to _Teceive her back. So, it was held that the husband could fTeat the separate living of his wife as desertion on Part.that for establishing the 94 it was evolved points, should be proved; n, the following g apart form the deserted In this case, fact of desertio a. The fact of separation (living spouse). b. Intention to pring cohabitation to an end permanently (animus deserendi) c. The deserted spouse should not have consented for separation. id not be any reasonable cause for the ave the matrimonial home. mself/hersell d. There shoul: spouse to le 4, Ceased to bea Hindu by converting hi: to any other religion. Apostacy of Husband: husband embraced another religion leavin’ sue for divorce under 8¢ ver she cannot dissolved by the If the Hinduism then the wife may of the Hindu Marriage Act. Howe any other person till the marriage is Apostacy of wife: : If the wife converts to another religion seo f Hinduism then the husband can sue for divorce é Sec.13 Hindu Marriage Act. Even at the time of a if the parties to the marriage belong to different rob ie then the Special Marriage Act will a) ly an : Hindu Marriage Act. ae d 0° 08 | \ ‘ it : & \ \ ty ' t ‘ ‘95 garla Mudgal, President, Kalyant & Ors. Vs. in of india (1996 AIR 1831) In this case, the accused Jitender Prasad, a Hindu, ried one Meena Mathur, a Hindu lady as per the er customs. After the marriage, the accused Hi erted to Islam and adopted Muslim religion. After a conversion to Islam, Jitender Prasad married 2 fohammedan lady namely Sunita Narula alias Fathima. Meena Mathur, the first wife, filed a complaint against Jitender Prasad for having committed the offence of bigamy u/s. 494, IPC. According to her, the conversion of her husband to Islam was only for the purpose of marrying Sunita and circumventing the provisions of Section 494, IPC. However, the accused Jitender Mathur contented that having embraced Islam, he can have four wives irrespective of the fact that his first wife continued to be a Hindu. : The Legal questions to be answered are- a. Whether a Hindu husband, married under Hindu law, by embracing Islam, can solemnize a second Marriage? (i) Under the Hindu Marriage Act, 1955, a Hindu marriage continued to subsist even after one of the Spouses converted to Islam. There is no automatic | dissolution of the first marriage:96 (ii) The Court observed that the second i (iii) The Court further observed — ‘Assuming that a Hingy @ (ii) A marriage solemnised, whether before Muslim law of a convert husband would be in viene of the rules of equity, justice and good Conscie; as also those of natural justice. 7 husband has a right to embrace Islam as his religion, he has no right under the Act to marry again without getting his marriage under the Hindu Marriage Aq dissolved. The second marriage after conversion to Islam would, thus, be in violation of the rules of natural justice and as such would be void’. Whether such a marriage without having the first marriage dissolved under the law, would be @ valid marriage when the first wife who continued to be# Hindu? The Court held that a Hindu marriage cannot, unde! any circumstances, be dissolved unless by ad of divorce obtained under the grounds enumer™ in the Act. The Act has an overriding effect 09 the customs’ or usage prevalent before commencement of the act. or aster y commencement of the Act, can only be diss a decree of divorce on any of the grounds es unt) in Section 13 of the Act. One of the gfOUN" og w Section 13 (i) (ii) is that “if one of the spew ott ceased to be a Hindu by conversion uA ¢ oy religion, it is a ground for divorce for pws spouse”, The second marriage of the conve would, therefore, be illegal marriage:97 ether the convert husband is gyi : " a 494 of the IPGs Builty of the offence A Hindu marriage solemnized under the Act can dissolved on an only be ; ly of the ground; ; under the Act. Till the time a IS specified. dissolved under the Act, none contract @ second marriage. Hindu marriage is of the Spouses can Conversion to Islam and marrying again would not, by itself, dissolve the Hindu marriage under the Act. The second marriage by a convert would therefore be in violation of the Act and as such void and punishable u/s. 494 IPC.5, 5, Has been suffering from incurable unsoundness of mind, continuous or intermittent mental disorder, making it impossible for the petitioner to live with the party. (Mental disorder means mental illness, incomplete development of mind, psychopathic disorder, disability of mind like schizophrenia,etc.) 6. Has been suffering from a virulent and incurable form of leprosy, 7. Has been suffering from venereal disease in a communicable form. 8. Has renounced the world and entered any religious order, or . Has not been heard of as being alive for 7 years or More, op98 sumption of cohabitation 10.If there is no res the parties even after one year of Passing of decree for judicial separation. a tution of conjugal rights eye, | the passing of a decree fq 11.If there is n0 resti . after one year after restitution of conjugal rights. II. Grounps ror Wire: [Sec. 13(2)] has married again after marrying he, 1. If the husband ime of marriage or already has a living spouse at the ti 2. Ifthe husband is guilty of rape, sodomy or bestiality 3. Ifa suit is passed under Sec.18 of the Hindu Adoptiot and Maintenance Act 1956 or in proceeding unde Sec.125 of the Code of Criminal Procedure °F sey | 488 of the Criminal Procedure Code, order has been passed against t awarding maintenance of the wife though she" living apart and since the passing of the 44 cohabitation has not been continued for more one year. 4, If the wife was married before the age of 15 aot repudiated it at the age of 15 to 18. It is i” : whether the marriage was consummate or 70" si 11, Avrernate rewiey in DIVORCE, proce? (Bec, 13-A)) , ~ ‘ i! The Court may grant an interim relief i? . if of judicial separation during the procee ; , \ ye fo99 considers just, according to the circumstances of the case: But it shall not be granted if the divorce is sought on the grounds like: 1. Conversion to another religion 2. Has renounced the world by entering any religious order 3. Has not been heard of as being alive for a period of 7 years or more. IV. Divorce BY Murua. Consent in Hinpu Law: (Sec. 13-B) Both the parties to the marriage shall dissolve the marriage by presenting a petition to the District Court on the grounds that they have been living separately for more than one year. The Court shall hear both the parties, make necessary inquiry, and pass a decree dissolving the marriage after 6 months of presenting the petition but within 18 months. The divorce shall take effect from the date of such decree. V. BREAK DOWN OF MARRIAGE RESULTING IN DIVORCE: (Sec.13-C): If the marriage has broken down irretrievably, either party of the marriage may present an application for divorce in the District Court. The Court may hear the Parties, etc, and shall grant a decree of divorce if it is _ Satisfied that the parties have lived separately for 3 years iramediately preceding the presentation of the petition.efi oe oe 2a 100 ; But, if by granting the decree of divorce Under Sec. 13 C, the wife shall face financial hardship, it dismiss the petition or stay the proceedings unti _ arrangements are made to eliminate the hardship. The Court shall pass a decree of divorce under Sec. 13 C only after making adequate provision for maintenance of children born out of the marriage. Children means minor children, unmarried or widowed daughters unable to support themselves, and children who need physical and mental care. VI. No Perrrion FoR DIVORCE TO BE PRESENTED WITHIN ONE YEAR OF marmace: (Sec. 14) Ifon_ the date of the presentation of the petition one year has not elapsed since the date of the marriag® then it is not competent for any court to entertain a" petition for dissolution of a marriage by a decree of divorce. However, the Court may, upon application made to it in accordance with such rules as may be made PY the High Court in that behalf, allow a petition t? ve presented before one year has elapsed since the date ® the marriage on the ground that the case is 09° exceptional hardship to the petitioner or of exceP4™ depravity on the part of the respondent. In disposing of the above application for leave Ff present a petition for divorce before the expiratiO” iy one year from the date of the marriage, the Court one have regard to the interests of any children of101 arriage and to the question whether there i reasonable probability of a Teconciliation bas ae arties before the expiration of the said ne yearisec:14(2)]. He VII. PENDENTE LITE AND ALIMony (Sec, 24 & 25) pendente Lite (Sec. 24): If the wife or husband has no independent income sufficient to support her or him and to meet the expense of the proceedings, the husband or wife can ask for maintenance. The Court. may award the maintenance amount to the suffering party either in monthly jnstallments or in lump till the proceedings are cancelled. This is called Pendente lite meaning “amount ordered to be paid” to meet the expenses of the proceedings. Maintenance granted under this Section is not a bar for granting maintenance under Sec. 125 of Cr.P.C. Permanent Alimony and Maintenance (Sec. 25): - Alimony is the permanent maintenance amount ordered to be paid to the suffering party after divorce or nullity of marriage or any other decree regarding marriage disputes. The suffering party must be unable to support himself or herself with the income.The maintenance amount may be paid in gross sum or monthly or in Periodical payments .102 However, if suffering party enters into Marriage with another person, the maintenance amount Tay be ordered to be stopped forthwith. Maintenance shall be granted only where divorce is granted and it shall not be granted if divorce petition is dismissed. If the Court is satisfied that there is change in the sources of income of either party then it may modify or rescind the maintenance amount. In the same way, if the wife leads an immoral life after such decree of the Court, the Court may order the rescission of the maintenance amount to her. Similarly if the husband leads an immoral life by having sexual intercourse with any woman outside the conjugal relationship, the Court may order the rescission of the maintenance amount to him. Regarding the custody of their children, their maintenance and education, it is the discretionary power of the Court to hand them over to the husband or wife: This discretionary power is guided by just and proper grounds. The wishes of the children are also considered- Regarding the disposal of the property which belo" jointly to both the husband and wife, the Court has a discretionary power guided by just and proper groun' eo It takes into consideration the presentations given to the at the time of marriage. eo Right of appeal is available from any decree OF on passed by the Court having jurisdiction, within a pe™ days from the decree or order.the court, 1) if there is no appeal against the decree or | 9) if there is right of appeal and the time for appeal has expired without Presentation of petition for appeal, i or 3) when appeal was presented and was dismissed, Either party to the marriage are legally entitled to marry again. IX. Lecrrmmacy OF CHILDREN BORN OUT OF VOID AND VOIDABLE MARRIAGES (Sec. 16): Under the old law, before the amendment of 1976, the illegitimate issue out of void and voidable marriages under Sec. 11 and Sec. 12 could claim a right of inheritance under Sec. 16 only if the decree for nullity of the marriage was passed. But, under the new amended Act, whether a decree of nullity is passed or not, and whether the Marriage is held to be void or not, the child of such Marriage is legitimate. Such children out of the void or Voidable marriage can claim inheritance to the separate Property of the father.102-B They cannot claim any right in the coparcenay property. They cannot also claim inheritance from othe relations. Thus, though a decree for nullity of marriages passed , such issue would be treated as legitimate, for te limited purposes of inheriting the property of the paren's UNIVERSITY QUESTIONS FOR REVIEW: } Discuss the grounds on which a Hindu can seek divorce. ~ 2. What are the grounds open to Hindu female toMy seek divorce from her marital. relationship? h 4. Short Notes on : a) Divorce by Mutual Consent. i, b) Break down of marriage. \, under the Hindu Marriage Act 1955. When ca! | divorced person marry again? kkk | | | 5. Discuss the various grounds for divorce avait |