HINDU LAW: PRINCIPLES OF DIVORCE

 

HINDU LAW: PRINCIPLES OF DIVORCE

                                           Anil K Khaware

                                           Advocate

The Hindu Marriage is considered as a sacramental union and before 1955, when Hindu Marriage Act 1955 (In short “HMA” or “HMA 1955”) was codified, and became part of statute book, there was no substantive provisions for divorce. That life and its requisites or parameter changes in time and on the premise of such changes, need of overhaul in the existing system may always be felt, and if that is so, finding or devising way out is to be in place and that is how HMA 1955 was enacted. In fact, Special Marriage Act (SMA) 1954 relating to marriage between people of two religion was also codified around that time i.e  in 1954. However, the present article shall only revolve around the principles, mode and procedure of divorce, as per HMA 1955 and within its ambit shall have divorce as per Section 13 (1) and (2) of HMA, apart from some incidental issues relating to divorce, excluding divorce by mutual consent, since that aspect have already been delved in great detail in a separate topic.

Before analyzing the issue further, it should be worthwhile, to reproduce the contents of provisions of divorce as contained in various sections or clause in HMA, 1955. We do that as under:   

13. Divorce—(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party—

1 [(i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or

(ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or

(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or]

(ii) has ceased to be a Hindu by conversion to another religion; or

[(iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

Explanation.—In this clause,— (a) the expression “mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;

(b) the expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not including sub—normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment; or] 3 * * * * *

(iv)[****]

(v) has  * * * been suffering from venereal disease in a communicable form; or

(vi) has renounced the world by entering any religious order; or

(vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive; 

[Explanation.—In this sub-section, the expression “desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.]

[(1A) Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground—

(i)          that there has been no resumption of cohabitation as between the parties to the marriage for a period of 1 [one year] or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or

(ii)         that there has been no restitution of conjugal rights as between the parties to the marriage for a period of 1 [one year] or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.] 1. Subs. by Act 68 of 1976, s. 7, for clause (i) (w.e.f. 27-5-1976)

(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground,—

(i)  in the case of any marriage solemnized before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner: Provided that in either case the other wife is alive at the time of the presentation of the petition; or

(ii) that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or  [bestiality; or]

[(iii) that in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) (or under the corresponding section 488 of the Code of Criminal Procedure, 1898 (5 of 1898), a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding, that 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;

(iii)                that her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.

Explanation.—This clause applies whether the marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976).] 3 [13A.

The Section 13 of HMA 1955 has therefore been self contained and includes all plausible grounds for divorce. The Section 13 (1) (i), (ia), (ib), (ii), (iii), (iv), (v), (vi), (vii), (1 -A), (i) & (ii). Both the parties to marriage may initiate proceedings of divorce as per the clauses or sub-clauses as illustrated above.

Section 13 (2) of the 1955 Act, again relates to divorce, but, the grounds available to wife only to prefer the petition for divorce. Section 13 (2) (ai), (aii) (b-i)(b-ii) ,(b-iii) & (b-iv).

Uttar Pradesh Amendment in Section 13 (ia) in 1962 (w.e.f 7^th November 1962). The following is inserted:

(i-a) has persistently or repeatedly treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party, or, and  for repealed clause (viii) the following shall be read:

(viii) has not resumed cohabitation after passing of a decree for judicial separation against that party and-

(a) A period of two years has elapsed since the passing of such decree , or

(b) the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the other party;  

The bare perusal of the provisions reveals that there are various grounds available for divorce for both parties. The same may be culled out of above and are as under:

(i)          Adultery

(ii)        Cruelty

(iii)   Desertion

(iv) Conversion to other religion

(v)         Unsound mind

(vi)       Psychopathic disorder

(vii)     Suffering from venereal disease

(viii)    Not heard of for continuous period of Seven (7) years

(ix)       No resumption of cohabitation for One (1) year or upwards after decree of judicial separation

Ground available to Wife for seeking divorce as per Section 13 (2) of HMA 1955. The same is as under:

(i)          Bigamy- another wife was living at the time of marriage

(ii)        Since solemnization of marriage - guilty of rape, sodomy or  [bestiality;

(iii)       The order of maintenance is passed under HAMA ( Hindu Marriage & Maintenance Act and/or u/s 125 of Cr.P.C against the husband notwithstanding  that she was living apart and even after that cohabitation between the parties has not been resumed for one year or upwards;

(iv)       Marriage was solemnized before wife attained Fifteen (15) years and she repudiated it before attaining Eighteen 18 years of age.

As per section 29(2) of HMA 1955 rights by custom is recognized notwithstanding the provisions in HMA 1955.

JURISDICTION OF COURTS

As per Section 19 of HMA 1955 (as amended in 1976) , every petition under the Act is to be presented to a District Court within the local limits of whose ordinary original civil jurisdiction the marriage was solemnized or the respondent resides at the time of presentation of petition or parties to the marriage last resided.

Right of wife to prefer petition where she resides currently

As per Marriage Laws (Amendment) Act 2003 (w.e.f 23.12.2003) clause (iii-a) was inserted u/s 19 of HMA and as per that, a wife can present a petition, where she is residing on the date of presentation of the petition.

The provisions of Code of Civil Procedure 1908 and High Court Rules as framed by respective High Courts shall apply. The appeal is provided for u/s 28 of HMA 1955 and as the courts of District Judge/ADJ shall be the courts for hearing the pleas of divorce, the appellate authorities shall be high court. The Family Courts Act 1984 contains details of procedure in preferring appeal. The appeal by the aggrieved parties can be preferred u/s 28 HMA 1955 and also under Section 19 Family Courts Act 1984. Since, the District Court is the authority prior to enactment of FCA 1984 and after the enactment of FCA 1984, the courts of District Court/Additional District Judges are the judge of Family Courts, therefore, the next ladder of appeal in any case is High Court.  

The limitation period for Appeal before High Court

Interplay of HMA 1955 and Family Courts Act 1984

The issue of limitation period has been quite vexed as regards preferring the appeal against the judgment / decree passed by ld ADJ/family Courts before the high court.

Whereas HMA 1955 u/s 28 contains the provision of appeal and as per section 28(4) inserted vide amendments w.e.f 23.12.2003, the limitation period is prescribed as Ninety (90) days from the date of judgment/decree as against thirty (30) days prescribed earlier. It is worthwhile to state that there is no provision of appeal against the interim order under section 28 of HMA and if a party is aggrieved of the interim order, then, plausibly, a writ petition under section 226-227 of Constitution of India could be preferred.

It is pertinent to refer, however, that, whereas, appeal is provided for u/s 28 of HMA 1955 against a judgment or decree, but under the Family Courts Act 1984 every judgment or order is made appealable and there has not been specific mention of decree in section 19 (1) of FCA 1984. Interestingly, the limitation as per FCA 1984 is Thirty (30) days in preferring appeal.

As may be perused from above whether the limitation period in preferring appeal against the order of Family Courts shall be Thirty (30) days or Ninety (90) days is a question, which is  still fluid. Some discussion is therefore imperative to settle the dust.

The amendment in 1993 was carried out in Section 28 of HMA 1955 and section 28(4) was added in 1993 vide amendment in view of observation of hon’ble Supreme Court in a matter reported as  Savitri Pandey Vs Prem Chandra Pandey (2002) 2 SCC 73, when the Supreme Court had observed that Thirty (30) days period for preferring appeal as per the trap of section 28 of HMA was inadequate. The view of high courts in this regards are a sunder

S.N	Particulars	Remarks
1.	PATNA HIGH Court Bimal Kumar @ Bimal Mishra Vs Sunita Kumari in Misc Appeal No. 429 of 2015, DB	it is held that Family Courts act 1984 shall prevail over HMA and as per section 19 of FCA 1984, the limitation period prescribed is Thirty (30) days, hence the limitation period prescribed is to be construed only as Thirty (3) days  and section 28 of HMA 1955 to that extent shall have no applicability. It is further held that since FCA is complete Code in itself relating to procedure ,appeal etc and still further as section 20 of FCA 1984 clearly stipulates that FCA shall have overriding effect, thus, anything inconsistent shall not prevail. Moreover, the FCA 1984 is a later enactment, thus later Act shall prevail. The limitation period as per section 19(3) of FCA 1984 is Thirty (30) days, hence , only that will apply. It is also held that Supreme Court had no occasion to deal with FCA 1984 in Savitri Pandey (Supra) and therefore no finding is given by Supreme Court in this regard
2.	(i) AllAhabad High Court  Smt Gunjan Vs Praveen First Appeal No. 374/2016 (II) Rajsthan High Court Kuldeep yadav Vs Anita yadav SCC Online Raj 16 (III) Delhi High Court RRD Vs R.S SCC Online Del 7446 (IV) Jharkhand High Court Dr Pankaj Kr Vs Prema First Appeal No. 49/2019	The Allahabad High Court, Delhi High Court, Rajasthan High Court and Jharkhand High Court has taken a divergent view and did not concur with Patna High Court. The reasons were as under: (i)    FCA 1984 is procedural in nature whereas HMA 1955 is a substantive Act (ii)           (ii) The amendment in 1993 was made in HMA 1955 and section 28(4) was added whereby limitation period was prescribed as Ninety (90) days, replacing the existing Thirty (30) days. (iii)         (iii)  In Savitri Pandey (Supra) judgment the Supreme Court had recommended that and though that was in respect of HMA 1955 hence, as the period was prescribed as Ninety (90) days , then Thirty (30) days can no longer be treated as the limitation period. (iv)         Procedural law shall be subservient to substantive law and therefore section 28(4) of HMA shall prevail.

 

Though, hon’ble Supreme Court has not apparently dealt with Section 19(3) of FCA 1984, but, the overwhelming view is that the limitation period for preferring appeal against the judgment and decree relating to granting or not granting decree of divorce shall be Ninety (90) days for preferring appeal before high court.

CRUELTY

The cruelty as per section 13 (1)(ia) includes under its ambit mental cruelty as well. The physical harm therefore shall not be the only instance of cruelty. In fact, mental cruelty has been more pervasive and the judicial precedents as recognized mental cruelty as a serious cause of divorce and hence actionable. Cruelty, desertion and adultery is some time interconnected and one precedes other and still all of the ingredients may be found in a given case in broad canvas.

The mental cruelty may be defined as  conduct inflicted upon other spouse such mental pain and sufferings so as to render it impossible for the spouse in receiving end to  live together. The social strata, social status, educational level and, culture of the parties shall be relevant.    

The illustration of Mental cruelty could be as under:

(i)          Suffering of acute mental pain, agony and suffering  during matrimony

(ii)        On comprehensive analysis, if it is inferred that wronged party cannot reasonably be asked to put up with the conduct;

(iii)       The high degree of rudeness, indifference and neglect which may be intolerable;

(iv)       State of mind. Feeling of deep frustration, deep anguish and disappointment caused in one spouse by other spouse,

(v)         Sustained abusive language or humiliation aimed at continuous torturing so as to render life miserable;

(vi)       Sustained unjustified conduct affecting physical and mental health of other spouse. It must be very grave and  substantial;

(vii)     Sustained studied neglect, reprehensible conduct and total departure from normal standard of conjugal kindness causing injury to mental health;

The act of cruelty could be comprehended on the basis of a holistic analysis and isolated incident, trivial irritation, quarrel and normal wear and tear of married life cannot be perceived a cruelty.

Some of the judgments throwing light on the issues are as under:

(i)          Dr (Mrs) Malathi Ravi Vs Dr BV Ravi Civil Appeal No. 5862/2014

The petition relates to section 13 (1) (ib), allegation of ill treatment, torture and mental agony was also alleged subsequently.

The Supreme Court has held that Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other spouse for long time may lead to mental cruelty. Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty. In the above referred case, it is held as under:

“Though there has been settlement of Rs 3,00.000/-yet that was a different time and under different circumstances. The present appeal was pending. The duty of this court is to see that the young son born in the wedlock must get acceptable comfort as well as proper education. It is the duty of this court also to see that a minor Son should not live in discomfort or should be deprived of requisite modern education. We are conscious, appellant is earning, but that does not necessarily mean that father should be absolved of his liability. Regard being had to social status and strata  and the concept of effective availing of education we fix a sum of Rs 25,00,000/- (Rs Twenty Five Lakhs) excluding the amount already paid towards the maintenance and education of the son. The amount shall be deposited by the respondent within a period of Six month before the ld Principal family judge, Bangalore and the amount shall be kept in a fixed deposit of nationalized bank in the joint account of appellant and minor son so that she can draw quarterly interest and expend on her son. After the son attains majority the joint account shall continue and they would be at liberty to draw the amount for the education or any urgent need of the son”.

(ii)   Pravin Mehta vs inderjeet Mehta AIR 2002 SC 2528

The hon’ble Supreme Court has held that the acts of the wife amounted to cruelty, as right from the beginning the matrimonial relationship between the parties was not normal; the spouses stayed together at the matrimonial home for a short period of about six months; the wife and her parents did not agree to go for proper medical treatment to improve her health so as to lead a normal sexual life and refused to undergo medical test as advised by Doctor. The husband was deprived of her company. The likely feel of or sense of anguish and frustration in being deprived of normal cohabitation that every married person expects is evident The wife also approached the police with a complaining against her husband and his parents. The advice of judicial officer was not accepted and she raised false plea. The cumulative effect of all these  according to hon’ble Supreme Court amounted to mental cruelty as the stubborn attitude and inexplicably unreasonable conduct of the wife could not have been fathomed in the circumstances.

(ii)         Mukesh Kumar Gupta v Smt Kamini Gupta, AIR 1984 Delhi 368

Unfounded accusation of adultery amounts to cruelty. It was held by Delhi High Court and on the premise of wrong and malicious accusation of adultery it was held that this amounts to cruelty and marriage was dissolved.

WHAT CONSTITUTES MENTAL CRUELTY THROUGH JUDICIAL WINDOW

S.N	Judicial Precedents	Remark
1.	(2006) 3 SCC 778- Vinit Saxena Vs Pankaj Pandit	Mental cruelty can cause even more serious injury then physical harm. It should be a willful treatment thereby causing suffering in body and mind either as an actual fact or by way of apprehension so as to render living together harmful or injurious.
2.	(2007)4 SCC 5- Samar Ghosh Vs Jaya Ghosh	Mental agony are illustrated as: (i)    Actual mental pain, agony & suffering rendering living together impossible. (ii)  Wronged party cannot reasonably be asked to put up with such conduct & continues to live together. (iii) State of mind. Feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other spouse for long time. (iv) Sustained reprehensible conduct, studied neglect, indifference or total departure from normal standard of conjugal kindness. (v)          Persistent ill conduct for a fairly lengthy period leading to deteriorating relationship. (vi) Long period of continued separation & when marriage becomes a fiction though supported by a legal tie.
3.	Vidhya Viswanathan vs Kartik Balakrishnan (2014) 15 SCC 21	The cruelty may be mental or physical, intentional, or unintentional
4.	In Gurbux Singh vs Harminder Kaur (2010) 14 SCC 301	Simple or minor aggravations or squabbles may be construed as  normal wear, and tear of married and may not be enough for order of separation on the ground of cruelty.
4.	Smt. Nirmala Manohar Jagesha vs Manohar Shivram Jagesha AIR 1991 Bom 259	False, baseless, scandalous or malicious allegations made in the written statement may amount to cruelty to the other party entitling him/her  to get a decree of divorce.
5.	Vishwanath Agrawal vs Sarla vishwanath Agrawal (2012) 7 SCC 288	The expression mental cruelty has an incurable n4exus with human condition or human behavior. It is always dependent upon social strata or the milieu to which the parties belong.
6.	U Sree Vs U Srinivas (2013) SCC 114	The wife had not shown the slightest concern for the public image of her husband on many a situation and put him in a situation of embarrassment leading to humiliation. Wild and unfounded allegation about dowry with no iota of evidence shall amount to cruelty.

 

In paragraph no. 100 in a matter reported as (2007)4 SCC 5 Samar Ghosh Vs Jaya Ghosh, the hon’ble Supreme Court has held:

“apart from this, the concept of mental cruelty can’t remain static. It is bound to change with the passage of time, impact of modern culture through print and electronic media and value system etc What may be mental cruelty now , may not remain a mental cruelty after passage of time or vice versa. There can never be any straitjacket formula or fixed parameter for determining mental cruelty in matrimonial matters. The prudent and appropriate way to adjudicate the case would be the evaluate it on its peculiar facts & circumstances.”

DESERTION

Prior to the 1976 amendment, Desertion was not a ground for divorce under HMA 1955 and it was only a ground for judicial separation. In Savitri Pandey Vs Prem Chandra Pandey (2002) 2 SCC 73, the hon’ble Supreme Court had occasion to deal with the issue of desertion and it was held that the desertion shall be intentional permanent forsaking and abandonment of one spouse by other without other’s consent & without reasonable cause. In other words it mans withdrawal from matrimonial obligation. Abandoning spouse in a state of temporary passion of anger or disgust without intending permanently to cease cohabitation, shall not be construed as desertion (ref: Bipinchandra Jaisinghbhai shah Vs Prabhavati AIR 1964 SC 40.

The  expression ‘desertion’ means the desertion of one spouse by the other spouse to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the willful neglect of the spouse by the other spouse. This implies s permanent leave or forsaking of one spouse by the other without any substantive reason and without the consent of other spouse. The requisites of desertion shall include:

(i)               the fact that the split has taken place; and

(ii)              the intention to permanently end cohabitation.

The lack of consent, and lack of a valid reason while leaving the matrimonial home shall render the act of desertion actionable as per law and divorce can be granted on that premise, if proved.

 

Mangayakarasi M. Yuvaraj CIVIL APPEAL NOS.  1912­1913 OF 2020   

It is held in the above case, that, the decision to dissolve the marriage apart from the grounds, will have to be taken on case to case basis and there cannot be a strait jacket formula. The power under Article 142 of the Constitution of India in appropriate cases also may be exercised to do substantive justice. It was observed that the parties hail from a conservative background where divorce is considered a taboo and the couple also had female child aged about 13 years. The differences between the parties were also of no such magnitude and it was in the nature of the usual wear and tear of married life. Considering the future of the child and her marital prospects the  dissolution of marriage was not approved, merely on the premise that they were  residing separately for quite some time. The restitution of conjugal rights was also being considered simultaneously. 

If analysed further, The following Five (5) conditions must be present to constitute desertion; they must co-exist to present a ground for divorce:

(i)           the fact of separation of one spouse

(ii)         animus deserdendi (intention to desert)

(iii)        desertion without consent of other spouse

(iv)        desertion without any reasonable cause  

(v)          statutory period of two years must have expired before a petition on that premise is presented.

DESERTION FROM LEGAL PRISM

S.N	Judicial Precedents	Remark
1.	2005 (2) SCC 22-A jayachandra Vs Aneel kaur	Subsequent conduct after filing of petition is also relevant
2.	(2009) 1 SCC 422-Suman Kapur Vs Sudhir Kapur	Subsequent conduct are relevant

 

ADULTERY

The adultery finds mention as a ground in section 13 (i) of HMA 1955. It reads as under:

(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party—

1 [(i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse;

The reference of law laid down may be necessary to arrive at the applicable principles:

(i)           Swapna Ghose Vs Sadanand Ghose AIR1979 Cal 1

The proof of adultery may not be direct and circumstantial evidence may be enough, provided credence could be based on that as per the yardtisck of reasonable assumption. Of course, the prior onus is on the party alleging it. In this case the circumstances were quite pervasive and hence allegation of adultery passed muster.   

Some Instances of Cruelty are as follows

(i)          false accusations of adultery or un-chastity

(ii)         demand of dowry

(iii)        refusal to have marital intercourse/children

(iv)       impotency

(v)         drunkenness

(vi)       Threat to commit suicide

(vii)      wife’s writing false complaints to employer of the husband

(viii)     incompatibility of temperament

In Subbaramma v. Saraswati Court(1966) 2 MLJ 263  it is held that one single act of adultery may be enough for divorce or judicial separation.

irretrievable breakdown of marriage

Though, no such ground is available as per the provisions u/s 13 (1) (2) or anywhere else in HMA 1955. The hon’ble Supreme Court has nevertheless granted divorce on that premise in some cases. The Supreme Court has plenary power in terms of Article 142 of Constitution of India, and that power no other court has. The Supreme Court has thus invoked that power in some cases and granted divorce, while noting that no such ground otherwise existed. This was done with a view to do substantive justice. As no such power is available to any other court hence, on this premise, probably, no decree of divorce can be granted. Though, there has been instances, whereunder, the high court has followed the ratio of supreme court on equity.

Some of the cases where hon’ble Supreme Court invoked Article 142 of Constitution of India for granting divorce are as under:

  

(i)          K. Srinivas Rao v. D.A. Deepa(2013) 5 SCC 226 

(ii)           Vishnu Dutt Sharma vs Manju Sharma(2009) 6 SCC 379) 

(iii)      G.V.N kameswar Rao Vs G. Jabilli (2002) 2 SCC 296

(iv)       Pawan Mehta Vs Inderjit Mehta (2002) 5 SCC 706

(v)  Vijaykumar R Bhate Vs Neela Vijaykumar Bhate (2003) 6 SCC 334

(vi)       D.P Tripathi Vs Arundhatui Tripathi (2005) 7 SCC 353

(vii)     Naveen Kohli Vs Neeru Kohli- (2006) 4 SCC 558

(viii)   Naveen Kohli vs Neeru Kohli 2006(3) SCALE 252

It is held that the marriage appeared to have irretrievably broken down and decree of divorce should be passed.

Insanity

Under The Marriage Laws (Amendment) Act, 1976, Section 13(iii) petitioner may get a decree of divorce or judicial separation if the respondent has been experiencing consistently or irregularly mental turmoil of such a sort and so much that the petitioner can't sensibly be required to live with the respondent.

In Ram Narayan v. Rameshwari 1988 AIR 2260, Supreme Court has held that in order to prove schizophrenic mental disorder, the alleging party has to prove mental disorder and also to establish that consequently it could not reasonably be expected of a spouse to continue to live with other spouse

Leprosy & Venereal Disease

Section (1)(iv) in the Hindu Marriage Act, 1955, Leprosy is a ground for divorce and judicial separation. The leprosy should be Virulent and Incurable to make it a ground of divorce. Similarly, Section 13(V) contains the ground for divorce if the venereal disease is communicable

In order to attract the provision for seeking divorce, the partner who is responsible for it is to be proved, but if the other partner is responsible for it, then no relief can be granted.   (Ref:Sm. Mita Gupta vs Prabir Kumar Gupta AIR 1989 Cal 248)

Conversion

As regards conversion to other religion as per the provisions of Hindu Marriage Act, 1955 i.e Section (13)(1) clause (ii), the following conditions must be satisfied:

1.   The other spouse ceased to be a Hindu, and

2.   The said spouse has converted to another religion

It means if a Hindu is converted to a non-Hindu faith such as Islam, Christianity, Zoroastrianism etc However, conversion into Jain, Buddhism, Sikhism because Sikh, Jain, Buddhist are not treated as conversion within the meaning of the HMA.

 

In Teesta Chattoraj vs Union Of India 188(2012) DLT 507 The Delhi High Court has held that Conversion to another religion is a ground for divorce, unless, the act conversion is attributed to the conduct of other spouse.

 

REMARK

The Hindu Marriage Act 1955 is the first codified law relating to marriage and divorce. It is no gainsaying that the basic recognized object of the marriage is lasting union. Hindu Marriage, in any case, is construed as a sacramental union to associate it with inherent sanctity ad togetherness is its avowed objective. Any welfare society, however, cannot remain opaque and therefore, when realizations descended that outlet in law shall be necessary, in case the marriage is not workable, for various reasons. The HMA 1955 was thus enacted. The HMA 1955 have also undergone various changes by virtue of several amendments. The major amendments were made in 1976. Though, there has been amendments in the HMA 1955 in 1962, 1964, 2003 and afterwards to redress the issues that cropped up in the midst. A comprehensive Act in the name & style of Family Courts Act 1984 is also enacted containing various provisions in the ambit of matrimonial issues. The gaping holes, if and when faced is sought to be plugged vide judicial dicta. In this context, it may be worthwhile to state that when in Savitri Pandey (Supra) , the Supreme Court had observed that the limitation period of Thirty (30) days as prescribed in section 28 of HMA 1955 is inadequate, the amendments were made instantly and vide section 28(4) in HMA 1955, limitation period for preferring appeal was prescribed as Ninety (90) days. No law, at the time of its inception can claim infallible, given the pace of life which is unbridled and uncontrolled. The more substantive changes like desertion/cruelty as a ground of divorce finds mention in HMA as 13 (1) (ia) & (ib) ever since , rather than, grounds of judicial separation.

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