Introduction: Contested Divorce
The next category of divorce is the contested divorce. In this type of divorce, the party who wants to nullify the marriage brings a suit of divorce in action in front of the Court. Section 13 of the Hindu Marriage Act, 1955 deals with the concept of divorce. It specifies the grounds of divorce on which divorce can be granted & Find Best Divorce Lawyer in Gurgaon
Grounds for Divorce
Realizing the futility of retaining a bond legally which has become bondage and source of agony, the law-makers have provided a way out by enabling the parties to the marriage to seek dissolution of marriage on certain specified grounds. The grounds are being categorized into three categories:
- Subsection (1) of Section 13 states the nine grounds for divorce. These are based on the “fault-liability theory” and only the party aggrieved may avail them. These can be assisted when:
- After the solemnization of marriage, the other party has voluntary sexual intercourse with any other person other than his or her spouse.
- After the solemnization of marriage, the other party has treated the petitioner with cruelty.
- Before the presentation of the petition, the petitioner must be deserted for a continuous period of not less than two years.
- There is a conversion of religion and the other party ceased to be a Hindu.
- The respondent is suffering continuously or intermittently from a mental disorder and has been incurable of unsound mind.
- The other party has been suffering from a persistent form of leprosy.
- The respondent has been suffering from a venereal disease in a communicable form.
- The other party has renounced the world by entering any religious order.
- The respondent has not been heard of as being alive for 7 years or more by those persons who naturally would have heard of it.
- Subsection (1A) of Section 13 states two grounds of divorce. They may be availed by any party to the marriage who is aggrieved or who is guilty. These can be taken into consideration when:
- There has been no cohabitation between the parties to the marriage for one year or upwards after the passing of the decree for judicial separation.
- There has been no restitution of conjugal rights as between the parties to the marriage for one year or upwards after the passing of a decree for restitution of conjugal rights.
- Subsection (2) of Section 13 states the grounds for divorce which can only be availed by the wife, in addition to the general grounds. These are:
- Bigamy before Hindu Marriage Act
Before the HMA, Hindu Law admitted of no limit to the number of wives a man could have at a time. The HMA has made bigamy an offense (Section 5 and Section 18). Section 13(2)(i) says that either of the co-wives of a man can seek divorce provided that:
- Both the wives are alive when a petition for divorce is filed.
- Both the wives were married to him before the commencement of the Act.
- Both the above said marriages legally exist at the said time.
- Since the solemnization of marriage, the husband is been guilty of rape, sodomy, or bestiality.
- Non-cohabitation after Maintenance Order
A wife may present a petition for the dissolution of her marriage by a decree of divorce, where a decree or order has been passed against the husband awarding maintenance to the wife and even though she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards.
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Repudiation of Marriage (Option of Puberty)
This clause confers on girls who have been married before attaining the age of 15 years, a right of repudiation. Consummation of marriage is immaterial here. As per this clause, a wife can get a divorce if:
- At the time of her marriage, she was below the age of 15 years.
- After that, but before attaining the age of 18 years, she has repudiated the marriage.
The term ‘divorce’ comes from the Latin word Divortium which means to turn aside, to separate. It is the legal cessation of a matrimonial bond. It is conceded in all Jurisprudence that public policy, good morals, and the interests of society require that the marriage relationship should be surrounded with every safeguard, and its severance allowed only in the manner and for the cause specified by law. Divorce is not favored or encouraged and is permitted only for grave reasons.
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