Marriage is legally or formally recognized union of two people as partners in a personal relationship and hence it forms basis of a family. But sometimes it happens that the union of two different individual does not work properly which makes it very difficult for the two people to stay together. For this reason the concept of divorce arises. There are different theories under which divorce can be granted.
THEORIES OF DIVORCE
This theory is also known as offence theory or guilt theory. Under this theory dissolution of marriage is granted due to the fault of either party to the marriage.one of the condition under this theory is that there must be a guilty party and an innocent party. if both the party is at fault then no remedy is available under this theory.
Under this theory a mutual consent is given to divorce each other. One of the conditions under this theory is that both the parties are staying apart for a specified period of time. At the time of dissolution of marriage maintenance to the wife, distribution of property and custody of children is to be decided by the parties themselves.
No fault theory
Under this theory, dissolution of marriage happens because of the temperament of the spouses are not compatible and for this reason even after their best effort , they are not able to live together.
Irretrievable Breakdown of marriage
It is the modern view of divorce. Under this the dissolution of marriage happens due to failure of the matrimonial relationship. The divorce can be taken by the spouse as a last resort i.e. when both of them are not able to live together again.
GROUNDS OF DIVORCE
The Hindu Marriage Act is based on the fault theory in which any one of the aggrieved spouses (Section 13(1)) can approach the court of law and seek the remedy of divorce. Section 13(2) provides the grounds on which only the wife can approach the court of law and seek the remedy of divorce.
Various grounds of divorce are:
In adultery there must be voluntary or consensual sexual intercourse between a married person and another, whether married or unmarried, of the opposite sex, not being the other’s spouse, during the subsistence of marriage. Thus, intercourse with the former or latter wife of a polygamous marriage is not adultery. But if the second marriage is void, then sexual intercourse with the second wife will amount to adultery. Though initially a divorce could be granted only if such spouse was living in adultery, by the Marriage Laws Amendment Act, 1976, the present position under the Hindu Marriage Act is that it considers even the single act of adultery enough for the decree of divorce.
The concept of cruelty is a changing concept. The modern concept of cruelty includes both mental and physical cruelty. Acts of cruelty are behavioral manifestations stimulated by different factors in the life of spouses, and their surroundings and therefore; each case has to be decided on the basis of its own set of facts. While physical cruelty is easy to determine, it is difficult to say what mental cruelty consists of. Perhaps, mental cruelty is lack of such conjugal kindness, which inflicts the pain of such a degree and duration that it adversely affects the health, mental or bodily, of the spouse on whom it is inflicted.
Desertion means the rejection by one party of all the obligations of marriage- the permanent forsaking or abandonment of one spouse by the other without any reasonable cause and without the consent of the other. It means a total repudiation of marital obligation. The following 5 conditions must be present to constitute desertion; they must co-exist to present a ground for divorce:
The factum of separation;
Animus deserdendi (intention to desert);
Desertion without any reasonable cause;
Desertion without consent of other parties;
The statutory period of two years must have run out before a petition is presented.
When the other party has ceased to be Hindu by conversion to any other religion for e.g. Islam, Christianity, Judaism, Zoroastrianism, it is a valid ground for divorce.
Insanity as a ground of divorce has the following two requirements-
- i) The respondent has been incurably of unsound mind;
- ii) The respondent has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.
At present, it is a ground for divorce if it is communicable by nature irrespective of the period for which the respondent has been suffering from it. The ground is made out, if it is shown that the disease is in communicable form & it is not necessary that it should have been communicated to the petitioner (even if done innocently).
“Renunciation of the world” is a ground for divorce only under Hindu law, as the renunciation of the world is a typical Hindu notion. Modern codified Hindu law lays down that a spouse may seek divorce if the other party has renounced the world and has entered a holy order. A person who does this is considered as civilly dead. Such renunciation by entering into a religious order must be unequivocal & absolute.
Presumption of Death
Under the Act, a person is presumed to be dead, if he/she has not been heard of as being alive for a period of at least seven years. The burden of proof that the whereabouts of the respondent is not known for the requisite period is on the petitioner under all the matrimonial laws. This is a presumption of universal acceptance as it aids proof in cases where it would be extremely difficult if not impossible to prove that fact. A decree of divorce granted under this clause is valid & effective even if it subsequently transpires that the respondent was, in fact, alive at the time when the decree was passed.
GROUND OF DIVORCE FOR WIFE
Section 13(2) provides ground of divorce to wife and these are:
Hindu marriage act prohibits marriages more than one and if a person commits bigamy then wife can ask for divorce.
GUILTY OF RAPE, SODOMY AND BESTIALITY
If a person is guilty of rape, sodomy and bestiality then the wife of that person can ask for divorce.
NON-RESUMPTION OF COHABITATION AFTER A DECREE/ORDER OF MAINTENANCE
If a wife has obtained an order of maintenance in proceedings under Section 125, Cr.P.C., 1973 or a decree under Section 18, Hindu Adoption & Maintenance Act, 1956 & cohabitation has not been resumed between parties after one year or upwards, then this is a valid ground for suing for divorce.
A divorce happens after a husband and wife decide not to live together anymore and that they no longer want to be married to each other. under Hindu Marriage act any one of the aggrieved spouses (Section 13(1)) can approach the court of law and seek the remedy of divorce. Section 13(2) provides the grounds on which only the wife can approach the court of law and seek the remedy of divorce.