The word divorce is derived from the Latin term “divortium” which means “to separate”. In a legal sense, divorce means cessation of matrimonial bond. Decree of divorce is an end to the marital bond and the party no longer remains husband and wife.
In Indian society, where marriage is a journey for whole life, people don’t even think about dissolution of marriage. Divorce is a new concept, especially in rural areas, where women treat their husband like ‘god’. But today, the whole world is completely changed.
There are many factors which are responsible for change, like modern education, social environment, employment, awareness etc. We can say that the women don’t think about the dissolution of marriage because they don’t have any source of income, or we can say they are completely dependent upon their husband (who completes their all needs, rather small or big). I don’t say that this is wrong but women have to earn, not necessary for survival but for their self-respect.
We usually notice in our surroundings that some husbands treat their wife like a punching bag — when they are not in a good mood, they show their anger to their wife or just disrespect them, which is known as a toxic relationship in today’s generation.
According to an article of The Hindu, “an average of 140 women and girls were killed by their partner or relative per day in 2023,” it is said by two United Nation agencies. This is the data of one day, so why a woman should survive in such a bad marriage where she doesn’t get respect — and respect is the basic mutual thing in a marriage that everyone needs.
Legal Meaning
The term divorce is given in section 13(1) and 13(2) of the Hindu Marriage Act, 1955. This section doesn’t provide any certain definition of divorce. It provides grounds of divorce.
Section 13(1)
This section provides grounds of divorce for both husband and wife, it means any spouse can approach the court for dissolution of marriage.
The grounds available are:
- Adultery
- Cruelty
- Desertion
- Conversion
- Mental disorder
- Venereal disease
- Renunciation
- Presumed death
Section 13(2)
This section provides grounds of divorce which is available for only women. It means only women can approach the court for the dissolution of marriage.
The grounds available are:
- Husband married again (bigamy)
- Husband proven guilty of rape, sodomy or bestiality
- Maintenance
- Marriage solemnized when wife was under 15 and she repudiated the marriage before she was 18.
Adultery
The term adultery means sexual intercourse with any person other than his or her spouse. Even a single act of adultery is sufficient enough to attract the ground of divorce.
In simple terms, if any spouse has done sexual intercourse with anyone other than his/her spouse, then the other spouse can approach court for dissolution of marriage.
Example:
If A and B are in a legal marriage. A has an extramarital affair with C. Then if A had sexual intercourse with C, his wife B may approach the court for dissolution of marriage.
Without sexual intercourse, only on the fact that her husband has an extramarital affair, she can’t approach for dissolution of marriage.
Case Law
- Joseph Shine v/s Union of India (2018 SC 1676)
In this case, court held that adultery is not a crime but it is still a ground of divorce. - Yusuf Abdul Aziz v/s State of Bombay (AIR 1954 SC 321)
The Supreme Court upheld the constitutionality of Section 497, but this judgment was later overturned by Joseph Shine case.
Cruelty
The term cruelty was defined in Russell v/s Russell for the first time. According to this case, “cruelty is conduct of such character as to have caused danger to life, limb or bodily or mental, or give rise to a reasonable apprehension of such conduct.”
Case Law
- Shobha Rani v/s Madhukar Reddy (1988 AIR 121)
In this case, Supreme Court held that demand for dowry also constitutes cruelty. - Samar Ghosh v/s Jaya Ghosh (AIR Online 2007 SC 347)
In this case, Supreme Court held that cruelty in marriage includes both mental and physical acts, and that unilateral decisions by a spouse, such as refusing to have children, can constitute mental cruelty.
Desertion
The term desertion means withdrawing from marital obligation. It is intentional abandonment of one spouse by another without any reasonable cause.
In simple terms, desertion means when one spouse leaves the other spouse with the intention of abandonment.
Essentials of Desertion:
- There is to be a factum of separation.
- There must be an intention to end cohabitation.
- Such conduct must be without any reasonable cause.
- It must be without consent of the other party.
Case Law
Savitri Pandey v/s Prem Chandra Pandey (AIR 2002 SC 591)
The Supreme Court affirmed a divorce decree granted on the ground of desertion when husband had abandoned the wife.
Conversion
This provides that a petition for divorce may be presented by either party if the spouse has ceased to be Hindu by conversion to another religion.
It simply says that if a person converted from his own religion to another, then the other spouse may approach the court for dissolution of marriage.
Mental Disorder
The expression mental disorder means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind.
According to this section, if the disorder is severe and incurable or it is impossible for the other spouse to live with them, then it is a ground of divorce and the spouse can approach the court for dissolution of marriage.
Venereal Disease
Venereal disease means a disease which is communicated via sexual conduct.
This section provides that a petition for divorce may be presented by any spouse if the other party has been suffering from venereal disease.
The diseases like HIV, gonorrhea, human papillomavirus etc.
Renunciation
This ground provides that petition for divorce may be presented by either party if the other party has renounced the world by entering any religious order.
Renunciation of the world amounts to civil death and therefore it is included as a ground of divorce.
Renunciation simply means if a person decided to leave the human world and enter into a religious world, then it is known as renunciation.
Presumed Death
If the other party has not been heard of as alive for a period of 7 years or more, then the other party can file a petition for divorce.
Case Law:
R v/s Tolson (1889)
In this case, the accused (wife) waited for seven years for her husband. When her husband had no news for seven years, she got married to another man.
After this, her husband came and filed a suit against his wife. In this case, court said the wife hadn’t any intention to hurt her husband and wife is not liable because she waited for 7 years.
Author Name- Khushboo Kumari, a law student at Vinoba Bhave University,hazaribagh
