In India, marriages are solemnised under Hindu customs and are governed by the Hindu Marriage Act, 1955. It contains all the essentials to give a Hindu marriage a legal status and provides remedies to either of the parties to free themselves from the marriage subject to reasonable justifications. This remedy is called divorce. The Hindu Marriage Act, 1955, for the first time, introduced divorce among the Hindus. Divorce is a remedy whereby the marriage is dissolved, and the marital tie is broken forever. Divorce finishes all legal obligations of a husband and wife towards each other as a married couple. It provides an opportunity to both the parties to claim such gross sum or periodical payments of money as is necessary for the support and maintenance. In this article, we will have a broad look at these provisions and how lawyers can procure the most amount of benefit for their clients.
Essentials of a valid marriage
To claim a decree of divorce or an order of maintenance, the marriage between the concerned parties must be solemnised according to the provisions of a valid marriage given in the Hindu Marriage Act, 1955. Section 5 of the Hindu marriage act contains the essentials of a valid Hindu marriage, which are-
● Neither of the parties has a spouse living at the time of marriage.
● Both parties are capable and have an equal opportunity to give their consent to the marriage.
● The bridegroom should have completed the age of 21 years, and the bride should have attained the age of 18 years at the time of marriage.
● The parties should not be in a prohibited relationship unless the custom or usage governing them permits marriage between the two.
● The parties should not be sapindas of each other unless the custom or usage governing each of them permits marriage between the two.
Provisions and Grounds for Divorce
A marriage can be dissolved after a decree of divorce is granted by a competent court. Provisions and grounds on which divorce can be attained are given in Section 13 of the Hindu Marriage Act, 1955. The primary grounds on which either party can procure a decree of divorce are:
● Either of the spouse has indulged in a sexual act with a person other than their partner after the solemnisation of marriage, or has been subjected to cruelty, or has deserted the partner for a continuous period of not less than two years.
● Either of the spouses, by way of conversion to any other religion, has ceased to be a Hindu.
● Both spouses are incurably of unsound mind or have been suffering continuously or intermittently from any 'mental disorder' to the extent that the petitioner cannot reasonably be expected to live with the respondent.
● Any of the spouses suffer from a virulent or incurable form of leprosy or any venerable disease of infectious nature.
● Either of them is missing and have not been heard of as being alive for seven years or more.
Apart from these, parties can also claim divorce on numerous other grounds, such as divorce by mutual consent as given under Section-13B. Both parties agree mutually to end their marriage by showing that they have been living apart for not less than one year and are not compatible. The section demands three requirements for this remedy.
● The parties must have been living separately for more than a year immediately before the petition for divorce by mutual consent.
● The parties are not able to live together.
● They have voluntarily agreed to a mutual divorce. There should be no force or fraud by one upon the other or by others in the act of granting consent to a divorce.
Apart from these formal requirements, no specific ground is necessary. If there is some ground for their mutual discomfort, they may not resort to it and instead adopt the frictionless method of consent divorce. Their intention of mutual consent agreement must become evident to the Court by their joint petition. This purpose cannot be served by one of them just filing a copy of the agreement individually.
The Court will not consider the petition for six months. After the expiry of six months, the Court cannot proceed with Suo Motu. The parties must approach the Court for consideration of their petition; if they do not, up to 18 months from the date of the petition, their petition will lapse. This form of divorce is the most common and efficient as they do not throw allegations on a single person for a failed marriage and saves the time of the Court by reducing the burden of proving any allegations. Further, either party to a marriage, whether solemnised before or after the commencement of the Hindu Marriage Act, may also present a petition for dissolution of the marriage by a decree of divorce on any of the following additional grounds:
● There has been no resumption of cohabitation between the parties to the marriage for one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties.
● There has been no restitution of conjugal rights between the parties to the marriage for one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.
Under Section 13(2), a wife may present a petition for the dissolution of her marriage by a decree of divorce on grounds:
● In a marriage solemnised before the commencement of this Act, the husband had married again before such commencement. Any other wife of the husband married before such commencement was alive at the time of solemnisation of the petitioner's marriage. Provided that, in either case, the other wife is alive at the time of the presentation of the petition.
● Since the marriage's solemnisation, the husband has been guilty of rape, sodomy, or bestiality.
● After a decree for maintenance to the wife, notwithstanding that she was living apart, cohabitation has not been resumed for one year or upwards.
● The marriage (whether consummated or not) was solemnised before she attained fifteen years. She has rescinded the marriage after attaining that age but before attaining the age of eighteen years.
Divorce is granted only when reconciliation is not possible and where spouses have reached a point of no possible return. The remedy of divorce is, therefore, more severe in effect. It is generally not favoured or encouraged, and it is only allowed for grave reasons.
Maintenance to the spouses
Maintenance and monetary benefits are given to the respondent due to deciding a divorce petition, judicial separation or restitution of conjugal rights are of two types:
● Maintenance pendente lite and expense of proceedings
● Permanent alimony and maintenance
Maintenance pendente lite and expenses of proceedings as described in Section 24 of the Act can be claimed by either the husband or the wife to show that he or she has no independent income sufficient for his or her support and the necessary expenses of the Act proceedings. On an application, the Court may order the respondent to pay the petitioner the expenses of the proceedings. Regarding the petitioner's income and the respondent's income, as may seem to the Court to be reasonable. The term pendente lite means 'pending litigation.' The relief under Section 24 is of an incidental and consequential nature. It can be invoked only when the party has claimed some substantive relief under the Act. The object of the provision is to ensure that the parties to the proceedings do not suffer during the pendency of substantive proceedings because of their poverty.
The word 'permanent alimony' is derived from English law, where alimony is monetary support given by a husband to her wife after the decree of judicial separation. When a divorce decree dissolved a marriage, allowance payment was termed as 'permanent maintenance'. The payment of the allowance under Section 25 is thus available in both cases, whether it relates to judicial separation or divorce. It would also be available where marriage is declared null and void under Section 11 or Section 12 of the Act. The term maintenance has not been defined in the Hindu Marriage Act, 1955 but has been defined in Section 3(b) of the Hindu Adoptions and Maintenance Act, 1956, which defines maintenance as-
● In all cases, provision for food, clothing, residence, education and medical attendance and treatment;
● In the case of an unmarried daughter, also the reasonable expenses of an event of her marriage.
Under Section 25 of the Act, the application for maintenance can be moved at the time of institution of proceedings under the Act relating to restitution of conjugal rights, judicial separation, divorce or nullity of void and voidable marriages.
The Court has broad discretionary powers under this section for granting permanent alimony, but the discretion has to be exercised judicially, not arbitrarily. It should be based on established principles of law and an unbiased view of all the circumstances of the case conduct of the parties, their property, and income. The Court can direct the respondent to pay the amount of maintenance either in the gross payment or such monthly or periodical payments for a period not exceeding the applicant's life.
Section 25(2) says, if the Court is satisfied that there is a change in the circumstances of either party, it may, at the instance of either party, vary, modify or rescind any such order in such manner as the Court may deem fit. Section 25(3) says if the Court is satisfied that the party in whose favour an order has been made under this section has remarried or, the wife has not remained chaste, or the husband had sexual intercourse with any woman outside wedlock, it may at the instance of the other party vary, modify or rescind any such order. The main idea behind these clauses is that no party should take any undue advantage of the maintenance claim and that the courts take various factors as regards to conducting of the parties before granting any order of maintenance.
There is no denying that the Hindu Marriage Act, 1955 provides equal footing to the husband and the wife when any marital disputes arise between them. It thrives on procuring mental and physical peace among the parties by providing remedies to break the wedlock legally when things do not go well. However, it also empowers the courts to not resort to only permanent separation remedies unless there is no other way to save a marital bond.
It provides both parties with equal opportunity to change their minds and prevent harsh steps by providing them enough time to adapt or make things work. It establishes broader discretion of the courts to give decisions keeping the principles of justice and morality in mind.