IN COMPLIANCE TO PARTIAL FULFILLMENT OF THE MARKING SCHEME

GEETA INSTITUTE OF LAW

AFFILIATED TO KURUKSHETRA UNIVERSITY

Assignment on “Breaking down the grounds of divorce and bars on

remarriage after Divorce”

SUBMITTED TO: SUBMITTED BY:

Mr. Anil Vats Nitin Verma

(ASSISTANT PROFESSOR) B.A.LLB (Hons.)

5th Semester
Contents

1. Introduction
2. Theoretical Aspects of Divorce
 Fault Theory
 Mutual Consent Theory
 Irretrievable Breakdown Theory

3. Grounds for Divorce as Per Hindu Marriage Act 1995

 Adultery
 Cruelty
 Desertion
 Conversion
 Insanity
 Leprosy
 Renunciation
 Presumption of Death
4. Wife Special Grounds for Divorce
5. No Petition for Divorce within One Year
6. Remarriage of Divorced Person

7. Conclusion
Introduction
In ancient times people don’t even think of separation from their life partner and if anyone does
it is considered to be crime. According to Hindu Dharma marriage means the partners promised
to live together for seven lives (Saat Janam), for which they took seven vows known as Saat
vachan.

Manu, a political thinker states that the relationship between a husband and wife will be broken
only when one of them is dead.

“Life is marriage of the elements; death is divorce of the same”

-Manu

But later on, Arth-shastra came with the idea of dissolution of marriage with mutual consent of
both husband and wife, this idea establishes a custom to put marriages to an end. The term
divorce was introduced in Hindu marriage Act, 1995. After some years of this provision
divorces in the country increases and this provision helps to give strength to women
empowerment. Hindu Marriage Act defines divorce as a dissolution of marriage. When any one
of the spouses do not agree to live together at any cost due to some grave reasons this provision
provides them the right to leave his/her partner.

Theoretical Aspects of Divorce

Fault Theory
This theory suggests that marriages can be suspended only when anyone party has performed
any matrimonial offence against another partner. According to this theory it is essential to have
an offender party and the innocent as well, and the innocent party only can appeal for divorce.
The major drawback of this theory is that no remedy is offered when both the parties performed
offence against each other.

The court will grant divorce to the appellant only when the offence against him performed by
the respondent is recognized under section 13(1) of Hindu Marriage Act 1995.

Mutual Consent Theory

The basis of this theory is that if two major persons are free to marry by their free will then they
should also have the right to end their relationship with their free consent. According to this
theory if both the partners agree to end their marriage, they can file divorce without proving the
other's marital fault. This is the reason why this theory is also called free divorce theory.

The criticism of this approach is that it will promote wickedness as it will lead to an increase in
number of divorces. The couples will appeal for divorce even for a slight incompatibility of
temperament. This theory harms the concept of marriage in the view of Hindu Dharma.
Irretrievable Breakdown Theory
This theory states that suspension of marriages happens due to an adverse circumstance in a
relationship where there is no probability for spouses to leave together as life partners.

“While there is no rose which has thorns but if what you hold is all thorn and no rose, better
throw it away” [1].

Grounds for Divorce as Per Hindu Marriage Act 1995

Hindu Marriage Act depends on theoretical approach of fault theory. In this act, some
provisions are provided regarding a lawful divorce. Section 13(1) defines the grounds on which
any victimized spouse can claim for divorce. Section 13(2) offers bases under which only a
wife can appeal for divorce from the court of law.

Adultery
The consensual or voluntary intercourse between a married person with another married or
unmarried person of opposite sex is adultery. Adultery is considered as the most important
ground for seeking divorce. In case of Adultery the burden of proof is on petitioner.

Essentials:

1. Anyone of the spouse must be involved in intercourse outside the legal marriage.

2. Intercourse should be with free consent of both the parties without any force.

3. Marriage should subsist at the time of act.

In Sachindranath Chatterjee vs Smt. Nilima Chatterjee [2] the petitioner and defendant were
married. After marriage, the husband leaves the wife in his hometown so that she can complete
her studies and go to another city to work. Later he found that his wife committed adultery. She
was involved in sexual intercourse with his own nephew, watchman. The plaintiff demands
divorce on the ground of adultery. The court accepts his appeal and the marriage gets
suspended.

Cruelty
The definition of cruelty is unpredictable as it changes time to time. Cruelty may not be the
same for people living in different economic conditions or status. Cruelty is when one of the
spouses performs unjustifiable behavior against his/her partner which leads to danger to life or
health. Cruelty may be physical or mental, the physical torture can be identified easily as one
spouse beats the other and the marks on the body can be a great evidence to appeal for divorce.
On the other hand, it is difficult to recognize the mental cruelty.

Some acts which justify the mental cruelty against husband by wife:

1. Embarrassing Husband in front of his family and friends.

2. Abortion without husband consent.

3. Falsely accusing him for the offence he doesn’t commit.

4. Regularly demanding for money.

5. Wife performing adultery.

6. Cruelty against husband’s family members.

Mental cruelty against wife by husband:

1. Humiliating wife in front of his friends and family.

2. Forcing for abortion.

3. Demanding dowry.

4. Performing adultery.

5. Violent behavior of husband against wife.

6. Falsely accusing his wife of having an extra marital affair.

Balram Prajapati vs Susheela Bai [3]

In this case, the husband proved in front of the court that his wife always misbehaves with
his parents and many times she filed false complaints against him. The court accepts his
petition and grants him divorce on the grounds of mental cruelty.

Desertion
The term desertion means intentionally leaving one partner permanently without any
justification against the consent of the partner. In simple words abandoning the duties of
marriage. A 2-year period is given to the spouses to rethink and come back to run smoothly
their marriage.

Essentials of Desertion:

1. Permanent desertion of the other spouse.

2. Refusing to carry out obligations of marriage.

3. Without any explanation.

4. Desertion should be without the consent of another party.

Bipin Chander Jaisingh bhai shah vs Prabhawati [4]

In this case the husband leaves the house with the intention of desertion. Appellant files a
petition for divorce in court of law. But the respondent succeeded in proving that he tries to
come back in between 2 years but was unsuccessful because of his wife. Therefore, the
defendant cannot be held liable for the offence.

Conversion
If any one of the partners converted his religion without the consent of another spouse, then the
other spouse can appeal for divorce in the court on the ground of conversion.
Essentials:

1. The conversion should take place after marriage.

2. The conversion should be against the consent of the other spouse.

Suresh Babu vs. Leela [5]

In this case the respondent converts his religion to Muslim after marriage without the consent of
appellant to marry another woman. The appellant filed a petition for divorce under the grounds
of conversion and cruelty in court of law.

Insanity
Insanity as ground of divorce in fault theory is when one of the spouses is of unsound mind.
Unsound mind means mental illness or incomplete development of mind, psychopathic disorder
or any other disability of mind.

Essentials:

1. The accused should suffer from incurable mental illness.

2. The mental disorder should be of such an extent that the petitioner cannot expect to live
with the respondent.

Vinita Saxena vs Pankaj Pandit [6]

In this case the wife appeals for divorce with her husband as he is suffering from a mental
illness known as Paranoid Schizophrenia. She came to know this after marriage hence, court
grants her divorce on the ground of Insanity of her husband.

Leprosy
Leprosy is an infectious disease and transmitted from person to person, it is the disease of skin,
nervous system, etc. Hence, it is considered as a valid ground of Divorce.

Swarajya Lakshmi vs G.G. Padma Rao [7]

In this case the husband files a petition for divorce on the ground of Leprosy. He states that his
wife is suffering from leprosy disease with an expert’s reports. Court decided to grant him
divorce.

Venereal Disease
Venereal Disease are contagious diseases that are mostly acquired in sexual intercourse. As this
is a contagious disease it gives rise to danger of health to another spouse. So, this is considered
as valid grounds for divorce.

Mr. X vs. Hospital Z [8]

In this Case the supreme court held that Venereal disease can be a valid ground for divorce.
And a person who is suffering from the disease cannot marry another woman until he is cured
completely.
Renunciation
If anyone of the partners renunciates the world by taking sannyasa and walking on to the path of
God. Sannyasa follow the religious orders which prohibit them to carry on relation to the world
and their family. The sannyasa is considered to be civilly dead. The other spouse can appeal for
divorce on the ground of Renunciation.

Essentials:

1. The Respondent must renounce the world.

2. He must follow some other religious orders.

Sital Das Vs. Sant Ram [9]

In this case the Supreme court stated that if someone is undergone to follow religious order and
renounce the world but comes home day by day and cohabits then the other spouse cannot ask
for divorce because now the respondent is no longer renounced the world.

Presumption of Death
In this case the person is assumed to be dead if his relatives, friends and families don’t get the
news that the person is alive or dead for seven years. It is a valid reason for divorce, but the
burden of proof is on the petitioner.

Wife Special Grounds for Divorce:

Other than the above grounds under section 13(2) grounds are provided under which only
women can approach the court of law and seek divorce.

1. Bigamy: According to section 13(2)(i) of Hindu Marriage Act 1995 the appellant can
demand divorce if the respondent’s first wife is alive during marriage. That means if husband is
performing bigamy.

2. Rape, Sodomy or Bestiality: If a person rapes a female who is not his companion then he is
guilty of rape and his wife is having right to prosecute him for divorce.

Whether a husband performs sodomy on another female or male, or whether he commits it on

his own wife without her consent the ground will be available to the wife.

Bestiality is carnal intercourse with an animal. Once it is recognized, the wife is authorized to
divorce.

3. Section 13(2)(ii) of Hindu Marriage Act 1995 states that a woman has the right to pursue a
divorce if her husband unnoticed her or not continued her after a maintenance order was passed
in her favor.

4. Repudiation of Marriage: Section 13(2)(iv) of Hindu Marriage Act gives right to women to
appeal for divorce on the basis that she was under 15 years of age and she had rejected her
marriage before she attained 18.
No Petition for Divorce within one year of Marriage
According to section 14 of Hindu Marriage Act 1995, no petition can be filed by anyone to
dissolve their marriages within one year of marriage. But there is some exception, if the
matter is related to bigamy or the consent of the partner was acquired by fraud, threat to life,
misrepresentation etc. the court can start the trail.

Remarriage of Divorced Person

As per Section 15 of this Act, when a marriage has been dissolved by a decree of divorce
and either there is no right of appeal against the decree or, if there is such a right of appeal,
the time for appealing has expired without an appeal having been presented, or an appeal
has been presented but has been dismissed, it shall be lawful for either party to the marriage
to marry again. [10]

Conclusion
Hindu Marriages are full of customs and rituals, people believe that once both spouses tie in
relation they will be together for seven janams. Divorce is such a heart-breaking decision
for both the partners. But sometimes it is good to leave someone to live on their own rules.

Divorce has both the positive and a negative scope. On the positive side divorce strengthens
the women and let them know their rights. On a negative side some folks in society misuse
it and destroy the scope of marriage according to the Hindu Dharma.

“Divorce isn’t such a tragedy’s staying in an unhappy marriage, teaching

your children the wrong things about love. Nobody ever died of Divorce”
- Jennifer Weiner

[1] Yousuf Rowther vs Sowr Amma (June 24, 1970)

[2] Sachindranath Chatterjee vs. Sm. Nilima Chatterjee AIR 1970 Cal 38, 74 CWN 168

[3] Balram Prajapati vs Susheela Bai II (2003) DMC 708

[4] Bipin Chander Jaisingh bhai shah vs Prabhawati 1957 AIR 176, 1956 SCR 838

[5] Suresh Babu vs. Leela 2006(3) KLT 891

[6] Vinita Saxena vs Pankaj Pandit 21 march 2006; Appeal civil 1687 of 2006

[7] Swarajya Lakshmi vs G.G. Padma Rao

[8] Mr. X vs. Hospital Z AIR 2003 Sc 664

[9] Sital Das vs. Sant Ram 1954 SC 606

[10] Section 15 of Hindu marriage Act. (Indiankanoon.org)