Nitish Banka Advocate Supreme court. Grounds of divorce for women petitioners With a long history of patriarchy, many aspects of marriage and divorce in Indian society have been emphatically biased against women. This was an amendment that increased the minimum age requirement for marriage in order to prevent child marriages. The provisions are meant to preserve the meaning of life. This section therefore applies to Hindus by religion in any of its forms and Hindus within the extended meaning i. Perhaps, mental cruelty is lack of such conjugal kindness, which inflicts pain of such a degree and duration that it adversely affects the health, mental or bodily, of the spouse on whom it is inflicted. Some of the grounds available under Hindu Marriage Act can be said to be under the theory of frustration by reason of specified circumstances.
Desertion, therefore, means withdrawing from the matrimonial obligations, i. In the case of Bhargav Kumar Pranshankar Shukla v. To brand the wife as unfit for marriage and procreation of children on account of the mental disorder, it needs to be established that the ailment suffered by her is of such a kind or such an extent that it is impossible for her to lead a normal married life; R. In this process, there are two ways in which the deserting spouse has an opportunity to misuse the position of law: There exist cases where the separation was consensual like when the husband is on a voyage with no animus to desert. By the Repealing and Amending Act, 1960 58 of 1960 , sec.
Similarly two elements are essential so far as the deserted spouse is concerned: 1 the absence of consent, and 2 absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. Why is it only for the Hindus? Cruelty, however, has to be distinguished from the ordinary wear and tear of family life. It is a total repudiation on the obligations of the marriage. To counter such inequalities among spouses and to protect the sacramental aspect of marriage, Hindu Marriage Act, 1955 was enacted which provided certain matrimonial remedies. For holding desertion proved the inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation. The torturous martial sorrows and displeasures can be cut off or mitigated in a shorter span on the time under the altered law. In the light of the submissions made by the learned counsel, we have opted to examine this aspect of the matter despite the fact that there was no specific issue framed or insisted to be framed.
For example, the case of Venkatame v. Thus Lord Denning has very well said in Sheldon v. The following are the grounds for divorce in India on which a petition can be filed only by the wife. When a petition is filed, the first step is proving the fact of separation and the intention separately while the second step is to prove their union. In conclusion, it can be said that desertion might be considered a fault-based ground for divorce, but there are ways that the guilty spouse can maneuver around the law and deny justice to the deserted spouse.
Here in it was observed that the conduct of the respondent should be such to cause reasonable apprehension in the mind of the petitioner to live with the respondent. If one spouse by his or her words compels the other side to leave the matrimonial home or stay away therefrom, without reasonable cause, the former would be guilty of desertion, though it is the latter who is seemingly separated from the other. At this stage we would like to observe that the period of limitation prescribed for filing the appeal under Section 28 4 is apparently inadequate which facilitates the frustration of the marriages by the unscrupulous litigant spouses. In the original Act, the age of valid marriage was fixed at 18 for the boys and 15 for the girls, however this age requirement was later raised to 21 and 18 respectively for the boys and the girls through the Child Marriage Restraint Amendment Act 1978. Keeping the intent of the legislature in mind, providing a period of two years is also problematic in a few ways.
Such custom and usage should have been continuously observed for a long time, having obtained the force of law among Hindus in any local area, Tribe, Community, groups or family. Supreme Court of India Savitri Pandey vs Prem Chandra Pandey Author: Sethi Bench: R. Irretrievable Breakdown Of Marriage Irrespective of the three remedies available to parties that is: restitution of conjugal rights, judicial separation and divorce, the judiciary in India is demanding irretrievable breakdown of marriage as a special ground for divorce, as sometimes courts face some difficulties in granting the decree of divorce due to some of the technical loopholes in the existing theories of divorce. But the manner in which the judiciary is dealing with the subject of irretrievable break down of marriage, it is feared that it will completely pause the system of marriages. The deserted spouse filing the petition is the one who must sufficiently prove and provide evidence for his conduct showing unmistakably that the desertion was against his will.
Desertion is not the withdrawal from a place but from a state of things. In short the proof required in a matrimonial case is to be equated to that in a criminal case. Desertion, therefore, means withdrawing from the matrimonial obligations, i. The persons would regain the unmarried status. The incident at Surat clearly compelled the respondent to leave and stay away from the matrimonial home.
Prior to the Hindu Marriage Act of 1955, there was no provision for divorce. Therefore, it can be illustrated that a deserting spouse has an opportunity to take advantage of the law right from the fulfillment of basic elements of desertion. The legislature might have good intentions in protecting the marriages, but it seems to be working out the assumption that the deserted spouse would always want the cohabitation to resume as soon as the deserting spouse returns. Besides amending and codifying , it introduced separation and divorce, which did not exist in Sastrik Law. However, if it fulfills the conditions like saptpadi and a few more rituals mentioned in Hindu Marriage Act. She threw him out of the very house, which he had rented for her to live in, and threatened him with dire consequences if he dared to enter.