Adultery, Insanity and Desertion as Grounds of Divorce

Adultery, Insanity and Desertion as Grounds of Divorce

Adultery, cruelty, two years of desertion, conversion to a religion other than Hinduism, incurable insanity or mental disorder, virulent and incurable leprosy, venereal disease in a communicable form, taking sanyasa (renunciation of the world by entering a holy order), and presumed death are the seven fault grounds of divorce outlined in the Hindu Marriage Act, 1955.

Explanation of Adultery, Insanity and Desertion as Grounds of Divorce under HMA:

Marriage is one of the oldest institutions of Humankind and it is a foundational pillar to the success of any civilization. The popular societal arrangements of the past include monogamy, polygamy, polyamory, polyandry, and polygyny. Most of the developed cultures and countries have adopted monogamy as a preferred way of marriage barring a few exceptions.

The marriage among Hindus can be dissolved by a decree of divorce on any of the grounds enumerated in Section 13 of the Hindu Marriage Act (HMA), 1955. Section 12 & 13 of HMA expound void and voidable marriages. This article has briefly explained Adultery, Insanity and Desertion as grounds of divorce under Hindu Law. The grounds for divorce available to both husband and wife are listed in Section 13 of the HMA are:

1) Voluntary sexual intercourse with anybody other than one’s spouse: The close reading to various provisions of Hindu Law will reveal that it enforces monogamy in the institution of marriage for the larger interest of the Society. Adultery under Section 494, IPC has been declared unconstitutional by the Hon’ble Supreme Court, but it is still ground of divorce under Section 13 (1), HMA. It must be proven by the one-party (husband or wife) that the other party (husband or wife) had voluntary sexual intercourse with anybody other than one’s spouse. Adultery must be proved under Civil Law by applying the principles of the Indian Evidence Act. Section 23(B), HMA makes it clear that if adultery is condoned, it becomes an absolute bar to take divorce on this ground.

2) Desertion: by either spouse for a term of two years. One of the key characteristics that distinguish desertion from willful separation is the aspect of permanency. It is not desertion if a spouse abandons the other spouse in a moment of temporary passion, such as wrath or disgust, without intending to permanently discontinue cohabitation. For the purposes of this section, to reflect that desertion was committed against the deserting spouse, two conditions must be met: (1) the factum of separation, and (2) the intention to discontinue cohabitation permanently (animus deserendi). Similarly, in the case of the deserted spouse, two factors are required: (1) the absence of permission, and (2) the absence of conduct affording sufficient cause for the spouse leaving the married house to form the aforementioned requisite intention. The burden of proof falls on the divorce petitioner to establish such qualities in both spouses.

3) The spouse has seized to be a Hindu: The right to get a divorce under this section is given to a party who is a Hindu but the wife/husband ceased to be Hindu. This is not a ground given to a person who deliberately converted to religion to break the association of marriage.

4) Insanity: The irrationality must be incurable. The mere existence of the mental disease of whatever degree does not warrant the dissolution of a marriage under this clause. The spouse who bases the claim on those facts bears the burden of evidence of the existence of the required degree of mental impairment. The context in which the ideas of ‘mental disorder’ and ‘unsoundness of mind’ appear in the section as grounds for divorce necessitates a determination of the severity of the ‘mental disorder’. Its severity must be such that the spouse seeking relief will be unable to live with the other. All mental disorders are not considered grounds for granting a decree. For example Scnizophrenia may be described as a challenging mental illness. It has a subtle onset and a familial predisposition element. Each Schizophrenia case must be evaluated on its own merits and simply labeling someone as Schizophrenic will not suffice. Schizophrenia is what Schizophrenia does for the purposes of Sec. 13(1) (iii) i.e. the severity of the disease. The severity may not the same for all Schzophrenics, therefore, it has to be demonstrated that the degree of Schizophrenia is such that insanity can be proved and cohabitation is not possible.

Grounds of divorce under the Hindu Marriage Act available to wife:

1) Prior to the inception of HMA, the husband had been married twice;

2) The husband had been convicted of rape, sodomy, or bestiality;

3) No resumption of cohabitation for a period of one year following the issuance of the order u/s 125, CrPC, or Section 18, Hindu Adoption and Maintenance Act;

4) The marriage (whether consummated or not) was solemnised before the girl reached the age of fifteen years, and she repudiated the marriage after reaching that age, but before reaching the age of eighteen years.

How can a lawyer help you?

The couples involved in a divorce are do not understand the nuances related to grounds of divorce and it is always advised couples to seek legal advice from the competent matrimonial lawyers. The best divorce lawyers can provide you with expert guidance on the different aspects related to grounds of divorce that can help you to take a correct legal recourse. You can seek a legal advice from our divorce lawyers at The Law Codes.

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