This article is written by Shaivy Maheshwari, pursuing BA.LLB from Symbiosis Law School, Noida. This article deals with Additional Grounds of Divorce for wife under HMA, 1955.

Introduction 

Marriage

Marriage, the very foundation of a family, plays the important role of a root on which the subsequent ties add up to build a social structure, the very basis of society. Under this institution, individuals are tied up and are supposed to adhere to certain rules and responsibilities. These responsibilities vary from sharing space, sharing and maintaining their finances, healthcare, insurance, the responsibility of the children etc. Since marriage itself affects the life of a community, it is believed that it is the duty of the State to promote and protect the institution of marriage. Also, in the case of Chanmuniya v. Virendra Kumar Singh Kushwaha, [1] in which it was said that “Strong presumption arises in favour of wedlock, where the partners have lived together for a long spell as husband and wife”. 

Dissolution

When two persons are legally tied by the institution of marriage and through the consent of both of them, this tie is broken, then a dissolution is said to have occurred. After that, the process of child custody, alimony and division of property is looked upon by the court. Couples can opt for “no-fault” or “fault” divorce for the purpose of dissolution. While fault divorces are based on particular misconduct by any one party, no-fault dissolution is one when parties do not seek divorce on the basis of any kind of misconduct.

Realizing the above issues, the Parliament of India enacted the Hindu Marriage Act, in the year 1955. It gives certain rights and duties to both the parties and at the same time defined rules and regulations relating to concepts like Guardianship, Succession and Adoption. While marriage is a kind of personal and social alliance between the parties, it is necessary to understand that the individuals tied by the wedlock have their own individual life which is sometimes compromised due to this. When the efforts of one or both of the parties fail to comply with their obligations under marriage, the act gives the parties the freedom to dissolve the wedlock, if the conditions comply with those given or mentioned in the act. These conditions are given mutually to both of the parties and on separate grounds to the wife. This project specifically focuses on the privileges regarding the dissolution which are given to the wife.

1. What methods do courts apply to save a marriage before it finally gets dissolved?
2. Can the relationship of marriage be saved even if it is beyond repair?
3. Is individuality given a higher preference than reunion in a marriage?

If the understanding between both of the parties fails, then it is necessary to dissolve the marriage, since it no longer serves as a necessary institution required by the community. The relationship in such cases becomes a living misery for both of the parties, which is not what this institution intends. Also, the relationship requires the emotional will of both of the parties and the desire to live together. If that factor is missing, it neither serves its purpose socially nor personally, for the enrichment of the parties as explained in the case of K. Srinivas Rao v. D.A. Deepa, [2] in which the court explained “irretrievable breakdown of marriage” theory. In the words of the court, “if parties are not willing since marriage involves human sentiments and emotions and if they have dried up, there is hardly any chance of their springing back to life on account of artificial reunion created by court decree”. However, under the Hindu Marriage Act, it does not act as a valid ground for divorce, until now. The main intention in these cases is to mitigate the hardships of both the parties. The rising popularity of individualism has also escalated such consciousness.

There are certain steps through which a marriage gets finally dissolved. These are made in such a way that if there is any slightest possibility to save the marriage, it should be saved in such cases.

Section 9 (Restitution of Conjugal Rights)

After the successful completion of a marriage under the Hindu Law (Section 9), both the husband and the wife gain certain special rights known as the conjugal rights. The Hindu philosophy describes three objects of marriage: justice, procreation and pleasure. In order to attain a successful marriage, all of the objectives must be fulfilled while the spouses are under the marital union. Thus, the Hindu Law says that “each spouse is entitled to the society and comfort of the other and if any spouse, without any reasonable cause, leaves any spouse, the latter can move the court for the decree of restitution of conjugal rights”. Thus, if a husband leaves his wife citing no appropriate reasons, a wife can file a decree of restitution of conjugal rights. [3]

As pointed out in the case of Suman Singh v. Sanjay Singh, [4] “When there is evidence establishing that it was the respondent-husband who withdrew from appellant’s company without any reasonable cause, the appellant is entitled to a decree for restitution of conjugal rights”. Thus, in such cases, rather than directly moving onto divorce, the court ensures that if the valid marriage between two parties can be saved, it should be before such kind of necessity arises that both of the parties cannot live together anymore.

Section 10 (Judicial Separation)

In the case of a troubled marriage under Section 10, the court allows a kind of last resort which is available to the parties in order to save their marriage. After this, there is no obligation of the parties to live together or cohabit. There are seven grounds which are available to the parties over which they can claim the plea for judicial separation. In the case of Jeet Singh v. the State of U.P., [5] the court explained judicial separation as “There would be no obligation for either party to cohabit with the other. Mutual rights and obligations arising out of a marriage are suspended. The decree, however, does not sever or dissolve the marriage. It affords an opportunity for reconciliation and adjustment. Though judicial separation after a certain period may become a ground for divorce, it is not necessary and the parties are not bound to have recourse to that remedy and the parties can live keeping their status as wife and husband till their lifetime”.

Section 13 (Divorce)

Even after all these phases, if it becomes impossible for the parties to be bound by the institution of marriage, the court allows the parties to free themselves. For that, the parties have to fulfil certain conditions given under Section 13. These vary from voluntary sexual intercourse, cruelty, desertion to mental or psychopathic disorder and venereal disease. The party claiming divorce has to prove one or more of these grounds in order to claim for divorce.

Section 13(1)(b) of this Act, provide for certain special grounds over which the wife can claim a divorce. These grounds are:

1. If the husband marries any other female when his original wife has been living, in such cases, the wife can invoke this as a valid ground for divorce. The only condition in such a case is that the first wife must be alive during the petition for divorce. In order to prove that the first wife was alive at the time of marriage, direct evidence need not be established.
2. If the husband has been guilty of rape, sodomy or bestiality [6] to which the wife has been the victim, she can use this as a valid ground for divorce. In order to prove, it is sufficient to show by evidence that there was penetration for sexual intercourse. Sodomy and Bestiality are other forms of sex constituting criminal offences.
3. If the marriage has been before the female attained the age of fifteen years. [7] This ground does not take into consideration whether the marriage has been consummated or not. However, it is necessary that the wife invokes this ground for repudiation before attaining the age of eighteen years.

Dismissal Of Petition by Courts

In these cases, even if the petition is filed by parties wanting to get divorced, the court may dismiss their petition. These grounds are:

1. In a case, where the parties fail to provide evidence to the court, which is necessary for the claim and hence, they cannot satisfy their claim. The claim made by the petitioner fails to be proved.
2. If it cannot be proved before the court that the adultery has been committed to real and the party disregards the fact that adultery has taken place. If the court finds out that the claimant has himself overlooked the kind of marriage that has been complained of.
3. If it is found out that the petition has been claimed in collaboration with either of the respondents. In such a case, the court will disregard the request of dissolution of marriage by the party/parties.

Decision of the Court to dissolve the marriage 

If the court is satisfied by the claim of the parties for the purpose of dissolution of marriage, then it will pass an order to dissolve the marriage. The marriage is said to be dissolved on the day when a given court declares a decree on the same issue. In case, the issue is settled between the parties, all the terms of the settlement, are provided by the judgment. The document of judgment provides the detail of every issue dealt with. A marriage is said to be finally dissolved on the same day when the judge signs the decree of the divorce of the parties. The certificate for the same is provided by the State, which acts as proof that the marriage has been officially ended. However, in certain cases, the courts have the power to deny the request. These cases are:

1. If it comes to the knowledge of the court that the claimant has himself committed adultery, then it has the right to disallow the parties.
2. If it is observed by the court that there has been an unnecessary delay on the part of the claimant in proving his case or bringing charges for the prosecution of the case against the other party.
3. If the party fails to give any reasonable excuse for separating or deserting his/her spouse before the commission of adultery by the other party.
4. In case, the party commits any discomfort or willful neglect towards the other party.

Conclusion

While it is necessary to protect the important institutions such as that of marriage since the health of our community depends on it. Sometimes, it may happen that this very institution becomes the cause of individual exploitation. This becomes the cause of tarnishing of individual happiness and individual rights get violated while maintaining such a tie.

The State believes that it is its duty to protect such kind of rupture to an important relationship. The proof of it can be clearly sought in the case of Reema Aggarwal v. Anupam [8] in which the court clearly maintained that “Where a man and woman have been proved to have lived together as husband and wife, the law will presume until the contrary is clearly proved, that they were living together in consequence of a valid marriage and not in a state of concubinage.” In addition to this, there must be a mutual sound understanding between both the parties with each other as well as the responsibilities that they are required to carry out. Living under such kind of obligation is not an easy task since a whole lot of responsibilities rest on an individual’s shoulder. Under such circumstances, every day tensions are bound to occur. But, the law believes that sudden shortcomings or misunderstandings should not be the reason for a sudden breakage of the sacred tie of marriage. Hence, it provides certain steps before the marriage gets finally dissolved.

Section 9 of the Hindu Marriage Act provides restitution of conjugal rights. Hence, if a spouse leaves the other one citing no reason and the other one feels that his conjugal rights have not been fulfilled, then he can move to the court for the fulfilment of his/her rights. Restitution of conjugal rights is a way which allows a party, who has been temporarily deserted, to enjoy his/her conjugal rights granted by the solemnization of a marriage. The court, in such a case, has its own procedure ensuring that the spouse enjoys his/her rights granted to him under the institution of marriage.

Another ground is ‘judicial separation’ under which the parties are henceforth under no obligation to live together. This can be achieved by fulfilling certain grounds after which the court allows both of the parties to live separately. When the marriage of two parties become such that it cannot be repaired and none of its many purposes is served, it becomes dead and fails to be revived. Under such cases, it becomes necessary to dissolve the marriage or else the individual identities of both parties would be at stake. Thus, the court grants certain conditions, which if fulfilled, could act as valid grounds for the grant of divorce. Women, in these cases, have been given special rights/conditions, under which, they can satisfy the dissolution of the marriage.

These include the marriage of the husband with another, rape or sodomy or if the marriage has been solemnized before the attainment of the age of fifteen years.

References 

• Agarwala, R. (1970). RESTITUTION OF CONJUGAL RIGHTS UNDER HINDU LAW: A PLEA FOR THE ABOLITION OF THE REMEDY.
• Agrawala, R. (1972). CHANGING BASIS OF DIVORCE AND THE HINDU LAW. Journal of the Indian Law Institute, 14(3), 431-442. 
• Diwan, P. (1957). The Hindu Marriage Act, 1955. The International and Comparative Law Quarterly, 6(2), 263-272.
• V.S., J. (2006). IRRETRIEVABLE BREAKDOWN OF MARRIAGE AS AN ADDITIONAL GROUND FOR DIVORCE. Journal of the Indian Law Institute, 48(3), 439-444.

Endnotes 

[1] Chanmuniya v. Virendra Kumar Singh Kushwaha (2011) 1 SC 141.

[2] K. Srinivas Rao v. D.A. Deepa(2013) 5 SCC 226.

[3] Section 9 of the Hindu Marriage Act, 1955.

[4] Suman Singh v. Sanjay Singh(2004) SCC 85.

[5] Jeet Singh v. the State of U.P.(1993) 1 SCC 325

[6] Section 13 (2)(ii)

[7] Section 13 (2)(iii)

[8] Reema Aggarwal vs. Anupam (2004) 3 SC 199.