Marriage in Hinduism is a sacred bond, according to our ancestors. Laws for Hindu marriage were laid down under the Hindu Marriage Act in 1955. In this Act, the rules were given according to the Hindus. There is a certain condition for a valid marriage. In ancient times and even today, marriage is considered to be one of the purest religious sacraments for Hindus.
But as the world changes, certain things change in society, for example, marriages and the number of divorce cases. For Hindus, it is still a big deal to get divorced, but the number of divorces is increasing day by day.
The causes of the matrimonial disputes are-
Controlling nature:
if either of the spouses is controlling and the other spouse is not able to tolerate such control. This will be a matter of dispute among the spouses.
Trust is the foundation of any relationship:
Without trust, a relationship can't work properly. Trust issues are common among couples these days, and if there is a lack of trust, disputes and gaps will arise among the couple.
Intimacy:
These days, many couples are facing the problem of intimacy. Intimacy plays a role in a marital relationship, and it is without a doubt an important part of the marriage; lack of intimacy is another source of marital conflict.
Many problems arise among the couple. If the issue is big and cannot be resolved, then the option of matrimonial remedies was introduced, which are mentioned in sections 9 to 13 under the Hindu Marriage Act 1955.
Section 9 of the Hindu Marriage Act talks about restitution of conjugal rights, which states that if any of the spouses withdraws from the other spouse without any valid and reasonable reason, the spouse can file a petition against the other spouse under the rights of conjugal rights. The spouse has to reply to the petition and inform the reason for leaving the spouse's society. There are certain requirements that have to be fulfilled before the petition under the restitution of conjugal rights can be filed.
Leaves the spouse's society
Without a valid reason,
Any spouse can file a petition only when the provisions are fulfilled. Both the spouses have to go through the proceedings of the court for 4 months. After the court proceeding, the court will issue the grant of restitution rights or not. If, in between the proceedings, the spouse files for a divorce, the petition of restitution of conjugal rights will be nullified, or if the petition would not be passed if the spouse had a valid and reasonable reason to leave the society of the spouse.
In the case of Harvinder Kaur v. Harmander Singh, it was said that section 9 of the Hindu Marriage Act 1955 violates articles 14 and 21 of the constitution. But the court, in the answer to this, said that the remedy of the restitution of conjugal rights talks about cohabitation, not just intimacy.
Section 10 talks about judicial separation. In this section, either of the spouses can file a petition of judicial separation after the action against the other spouse mentioned in sections 13 (1) and 13 (2) of the Hindu Marriage Act 1955. Divorce is not the only option in Indian society, which is why judicial separation is sometimes granted to make the couple realize.
Section 13 of the Hindu Marriage Act 1955 talks about matrimonial remedies.
There are certain theories regarding divorces, such as:
Fault theory says that if both the parties are at fault, then none of them can go file for divorce, as divorce is filed when one of the spouses is at fault.
The mutual consent theory is criticised by many jurists and thinkers as being just that: if both spouses agree mutually to end their marriage, they can do so.
Irretrivialble theory suggests that marital problems arise due to marital relationships, and the couple would keep divorce as their last option when they are not able to live with each other again.
Now there are certain grounds for divorce, which means they are the reason a spouse can apply for a divorce, and these are also the grounds for filing a judicial separation.
Section 13 (i) Adultery: Adultery is also known as extra-marital. Even if the husband marries another lady and has a sexual affair with her, this will also have amounted to adultery. Any spouse who has had sexual relations with someone of the opposite gender, whether married or single, is guilty of adultery.
Section 13(a) Cruelty: One of the most common reasons for filing a divorce is cruel behaviour towards the other spouse. Cruelty can be physical or emotional. Insulting the spouse, immoral behaviour or drinking problems, and mental or physical torture are all examples of cruelty.
In the case of Balram Prajpati v. Sushila Bai, the case was about the cruelty of the wife. The husband filed a petition for divorce as she was cruel to the husband and his parents. The court accepted the petition and granted divorce on this basis.
Section 13 (ib) Desertion: leaving the company of the spouse without the consent or any justification is considered desertion. There is some provision that needs to be fulfilled to file a petition based on desertion. Those are-
Leaving the company/society of the spouse without justification
Without consent
Not performing the obligations of marriage
Section 13 (ii) Conversion: If a spouse or any of the spouses converts himself or herself to another religion, the other spouse can file a divorce.
Section 13 (iii) insanity: the spouse is of unsound mind is a provision for filing a divorce, but the mental disorder should be incurable and should the disease be continuous or intermittent and the spouse is not able to live with the spouse anymore,
Section 13 (iv) leprosy: this section, though, is not in the act now.
Section 13 (v): Venerable disease—the communicable disease is known as venerable disease.
Section 13 (vi) Renunciation: if a spouse renunciates from the world. It is a practise among Hindus and the other spouse has every right to approach the court to demand a divorce.
Section 13 (vii) presumption of death: if any spouse for 7 years has been presumed to have disappeared, any family member or friend has not seen the person. He or she is presumed to be dead. The other spouse can apply for a divorce in such a case.
Section 13B covers the provision of divorce by mutual consent. If both spouses agree to live together, they can do so. They have to show the court that they have not been living with each other for the past year.
There are some special provisions based on which a wife can file for divorce from the husband. They are mentioned in section 13(2).
Section 13 (i) talks about bigamy if a husband marries another woman after being married to a wife already. The wife should be alive then only till would be considered bigamy. In such a situation, either of the wives can file for a divorce.
Section 13 (2) (ii) Rape, sodomy, or bestiality: If the husband commits any of the rape, sodomy, or bestiality crimes listed in section 375 of the IPC, the wife may file for divorce.
Section 13 (2)(iii) Decree or order of maintenance: if any order of maintenance or support has been ordered, the wife can file for divorce under these conditions.
She was living separately.
She and her spouse have not cohabitated for at least one year following the issuance of the decree.
Section 13(2) (IV): Marriage before attainment of the age of fifteen years: If a girl is married before attaining the age of 15 years and attains the age of 15, the wife can leave the marriage and file for divorce.
Section 13B covers the provision of divorce by mutual consent. If both spouses agree to live together, they can do so. They have to show the court that they have not been living with each other for the past year.
In the recent case of Amit Kumar v. Suman Beniwal,
It was said that section 13B was not inserted to damage or harm the institution of marriage but as a resolution to the spouse to step out of a collusive marriage, as divorce procedures are a lengthy process and if the couple has decided to end the marriage, they could save themselves from long litigation processes.
It was also said that with the insertion of section 13B (2), a cooling period would be granted to the couple only after which the petition would be looked into after 6 months, when the court would decide whether to grant a divorce or not.
Conclusion
Marriages are sacred for Hindus, but sometimes the circumstances come when divorces are filed. With the changing needs of society, there is a need for the mindset to be changed regarding divorce.
This article is written by Kriti Joshi of Trinity institute of professional studies.