Divorce means putting an end to the marriage by the dissolution of marital relations. It is the legal dissolution of a marriage by a court or any competent court. After divorce parties can no longer be husband and wife.
Divorce was formerly unheard of in general Hindu law because marriage was seen as an indissoluble union of the husband and woman. Manu decreed that a wife could not be released by her husband by sale or abandonment, meaning that the marital bond could not be dissolved in any way. Although Hindu law does not allow for divorce, it has been determined that if it is regarded as an established tradition, it has the power of law.
Marriage may be dissolved by mutual consent in the case of an unapproved form of marriage, according to Kautilya's Arthashatra. Manu, on the other hand, does not believe in the end of marriage. He declares" let mutual fidelity continue till death; this, in brief, may be understood to be the highest dharma of the husband and wife."
However, this changed when divorce was introduced in the Hindu Marriage Act, 1955.
The term "divorce" had not been defined by statute, but it may be defined as a legal termination of judicial connections established during marriages. Hence, divorce is a seven-letter term that separates a married pair of their own will and with their own agreement. So, divorce can be viewed as a way to end a marriage that occurs not just between two individuals but also between two families.
All Jurisdictions agree that public policy, good morals, and the interests of society demand that the marriage relationship be surrounded by every precaution and that its severance be permitted only in the manner and for the cause prescribed by law. Divorce is not favoured or promoted, and it is only tolerated for serious reasons.
All three theories of divorce are acknowledged in modern Hindu law, and divorce can be sought on the basis of any of them. The Hindu Marriage Act, 1955 originally, based divorce on the fault theory, and enshrined nine fault grounds in Section 13(1) on which either the husband or wife could sue for divorce, and two fault grounds in Section 13(2) on which wife alone could seek the divorce. In 1964, by an amendment, certain clauses of Section 13(1) were amended in the form of Section 13(1A), thus recognizing two grounds of the breakdown of the marriage. The 1976 amendment Act inserted two additional fault grounds of divorce for wife & a new section 13B for divorce by mutual consent.
Even in Shastric Hindu law, when divorce was not recognised, adultery was categorically forbidden. There is no clear definition of adultery as a marriage offence.
During the subsistence of marriage, there must be voluntary or consenting sexual intercourse between a married person and another, whether married or unmarried, of the opposite sex who is not the other's spouse. Intercourse with the previous or latter wife of a polygamous marriage is hence not considered adultery. But, if the second marriage is null and void, sexual relations with the second wife will be considered adultery.
Whilst initially a divorce could only be obtained if one spouse was living in adultery, the Marriage Laws Amendment Act of 1976 changed that, and the Hindu Marriage Act now considers even a single act of adultery sufficient for a divorce decree.
Because adultery is a marital offence, it must be proven that the marriage existed at the time of the act of adultery. It therefore implies that there can be no adultery unless one actively consents to the act. If the woman can prove that the co-respondent raped her, the husband will be denied a divorce.
In Swapna Ghose v. Sadanand Ghose, the wife found her husband and the adulteress to be lying in the same bed at night and further evidence of the neighbours that the husband was living with the adulteress as husband and wife is sufficient evidence of adultery. The fact of the matter is that direct proof of adultery is very rare.
Possibly mental cruelty is a lack of such conjugal kindness, which inflicts agony of such magnitude and duration that it negatively affects the mental or physical health of the spouse on whom it is perpetrated.
In Pravin Mehta v. Inderjeet Mehta, the court has defined mental cruelty as 'the state of mind.'
Some Instances of Cruelty are as follows:
Illustration:
A, a Hindu has a wife B and two children. One day A went to church and converted to Christianity without the consent of B, here B can approach the court and seek for divorce on the ground of conversion.
The respondent has been incurably of unsound mind.
The respondent 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.
For example, the case of Venkatame v. Patil, where a man
had two wives, one of whom sued for divorce, and while the petition was pending, he divorced the second wife. He then averred that since he was left only with one wife, and the petition should be dismissed. The Court rejected the plea. Such a ground is available if both the marriages are valid marriages & the other wife (2nd wife) should be present at the time of filing of the petition. However, today this ground is no more of practical importance.
Yet, times have changed, situations have altered, and the social ladder has shifted. Now, the law allows you to get out of a bad marriage by filing for divorce in a court of law. Women who no longer have to face harassment or unfairness at the hands of their spouses are the true beneficiaries of such a law.
But, it is anticipated that the way the judiciary is dealing with the topic of irreversible marriage breakdown will utterly halt the marriage system.
Every theory has both negative and positive aspects. Their applicability varies according on the situation. As a result, it is critical that our country's parliamentarians approach the matter with caution after carefully examining its long-term repercussions.