16 July 2018 03:28PM
· Fault theory,
· Mutual consent theory, &
· Irretrievable breakdown of marriage theory.
The Hindu Marriage Act, 1955 initially, based divorce in light of the fault theory, and revered nine fault grounds in Section 13(1) on which either the husband or wife could sue for separation. The section 13(2) portrays two fault grounds on which the wife alone could file for the divorce.
Section-13 of The Hindu Marriage Act,1955
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
i. has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or
a) has, after the solemnization of the marriage, treated the petitioner with cruelty; or
b) 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
iv. has been suffering from a virulent and incurable form of leprosy; or
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 willful 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 [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 [one year] or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.]
(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; or
iv. 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)*.] State Amendment Uttar Pradesh: In its application to Hindus domiciled in Uttar Pradesh and also when either party to the marriage was not at the time of marriage a Hindu domiciled in Uttar Pradesh, in section 13
i. in sub-section (1), after clause (i) insert (and shall be deemed always to have been inserted) the following clause, namely:(1a) 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 (viii) has not resumed cohabitation after the 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 other party; or
ii. for clause (viii) (since repealed in the principal Act) substitute (and shall be deemed to have been substituted) following clause, namely:
[Vide Uttar Pradesh Act 13 of 1962, sec. 2 (w.e.f. 7-11-1962)].
i. Cruelty which is a ground for dissolution of marriage may be defined as willful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger. The question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society, to which the parties belong, their social values, status, environment in which they live. Cruelty need not be physical. If from the conduct of the spouse it is established or an inference can be legitimately drawn that the treatment of the spouse is such that it causes apprehension in the mind of the other spouse, about his or her mental welfare then this conduct amounts to cruelty; Maya Devi vs. Jagdish Prasad, AIR 2007 SC 1426.
ii. Making false allegations against husband of having illicit relationship and extramarital affairs by wife in her written statement constitute mental cruelty of such nature that husband can, not be reasonably asked to live with wife. Husband is entitled to decree of divorce; Sadhana Srivastava vs. Arvind Kumar Srivastava, AIR 2006 All 7.
iii. The expression Cruelty as envisaged under section 13 of the Act clearly admits in its ambit and scope such acts which may even cause mental agony to aggrieved party. Intention to be cruel is not an essential element of cruelty as envisaged under section 13 (1) (ia) of the Act. It is sufficient that if the cruelty is of such type that it becomes impossible for spouses to live together; Neelu Kohli vs. Naveen Kohli, AIR 2004.
iv. The leveling of false allegation by one spouse about the other having alleged illicit relations with different persons outside wedlock amounted to mental cruelty; Jai Dayal vs. Shakuntala Devi, AIR 2004 Del 39.
v. Mental disorder for relief under section 13 (1) (iii) should be of such a degree that it is impossible to lead normal marital life or it is unreasonable to expect a person to put up with a spouse with such condition; B.N. Panduranga Shet vs. S.N. Vijayalaxmi, AIR 2003 Karn 357.
vi. Due to the criminal complaint filed by the wife, the husband remained in jail for 63 days and also his father and brother for 20 to 25 days. Therefore, even though the case of cruelty may not have been proved but as the facts emerging from the record clearly indicate that the living of the two as husband and wife would not only be difficult but impossible, the court has no alternative but to grant a decree of divorce; Poonam Gupta vs. Ghanshyam Gupta, AIR 2003 All 51.
vii. Unless the entire genesis of the quarrels in the course of which, one of the spouses holds out a threat to take his or her life is placed before the court, the very fact that some threat in the course of a quarrel is held out, cannot be viewed in isolation or construed as mental cruelty to the other spouse; Nalini Sunder vs. G.V. Sundar, AIR 2003 Kar 86.
viii. A husband cannot ask his wife that he does not like her company, but she can or should stay with other members of the family in matrimonial home. Such an attitude is cruelty in itself on the part of the husband; Yudhishter Singh vs. Sarita, AIR 2002 Raj 382.
ix. Removal of mangalsutra by wife at the instance of her husband does not amount to mental cruelty; S. Hanumantha Rao vs. S. Ramani, AIR 1999 SC 1318.
x. A threat to commit suicide by the wife amounts to infliction of mental cruelty on the husband but it should not be uttered in a domestic tiff; Pushpa Rani vs. Vijay Pal Singh, AIR 1994 All 220.
xi. Solitary instance of cruelty would not constitute cruelty so as to grant a decree for divorce rather the behavior of the other party has to be persistently and repeatedly treating the other spouse with such cruelty so as to cause a reasonable apprehension in the mind of the husband/wife that it will be harmful or injurious for him or her to live with the other party. The expression persistently means continue firmly or obstinately and the expression repeatedly means to say or do over again; Vimlesh vs. Prakash Chand Sharma, AIR 1992 All 261.
In 1964, by an amendment, certain provisions of Section 13(1) were amended as Section 13(1A), in this manner perceiving two grounds of breakdown of the marriage. The 1976 Amendment Act embedded two extra fault grounds of divorce for wife and another section 13(B) for divorce by mutual consent.
Section- 5 of the Hindu Marriage Act, 1955 states that neither the husband nor the wife should have a living spouse at the time of marriage.
Bigamy is an offence under section 494 of The Indian Penal Code (IPC) even if the second marriage is performed with the permission of the first wife and thus punishable with the imprisonment of not less than 7 years.
SECTION-13(A) OF THE HINDU MARRIAGE ACT,1955
(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
· That there has been no resumption of cohabitation as between the parties to the marriage for a period of [one year] or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or
· That there has been no restitution of conjugal rights as between the parties to the marriage for a period of [one year] or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.
SPECIAL MARRIAGE ACT,1954:
The special marriage act, 1954 replaced the old act III 1872. The new enactment has three major objectives-
· to provide a special form of marriage in certain cases,
· to provide for registration of marriage in certain cases,
· to provide for divorce.
The purpose of the act is to provide the people of India and all the Indian Nationals residing in foreign countries, irrespective of the caste, religion, or faith followed by either party.
PUNISHMENT FOR SECOND MARRIAGE PRIOR TO GIVING DIVORCE TO THE LIVING SPOUSE IN HINDU LAW:
A recent case for the same in Imphal:
The chief judicial magistrate, S. Imocha Singh also imposed a fine of Rs 10,000 on the accused, Kh Jaminikanta from the Nongmaibung Pung Makhong area of Imphal.
A criminal case was filed by the first wife of the accused. Both of them are government employees.
After holding a trial, the CJM court on Monday established the man guilty of bigamy under Section 494 of the Indian Penal Code, said advocate M. Ibotombi Sharma, who appeared on behalf of the aggrieved.
"According to the Hindu Marriage Act, it is illegal for a man to get married for the second time without divorcing his first wife," the lawyer said.
The woman married Jamini kanta on March 1, 2002. The accused then entered into a second marriage with another woman through kanya katpa' form of customary marriage at a house at Singjamei Oinam Thingel here on July 27, 2005, in the presence of 40/50 people with a priest chanting mantras.
There are several cases happened in India like this. If someone do not registered their marriage and marry under sec 7 of the Hindu marriage Act 1955, it is impossible to catch the criminal.
In its Monday verdict, the court ruled, "Since the prevailing custom of the Manipuri Hindus recognizes the kanya katpa' form of marriage, the sub-mission of the counsel for the accused person that solemnization of the alleged second marriage was not proved has fallen apart and is not accepted."
Section 17 in The Hindu Marriage Act, 1955 talks about the punishment of bigamy, which further says that:
Any marriage between two Hindus solemnized after this Act was commenced is void if at the date of such marriage, either party had a mate or spouse living; and the arrangements of sections 494 and 495 of the Indian Penal Code (45 of 1860), should apply likewise.
As per the Muslim law
Muslim Law in India signifies "that bit of Islamic Civil Law which is connected to Muslims as an individual law". It comprises of principles of Quran and has been additionally supplemented and adjusted by state Legislation and present day legal points of reference of the High Courts and the Supreme Court of India and also of the Privy Council.
Marriage/'Nikah' as indicated by Muslim Law is an agreement underlying a lasting relationship in light of mutual consent.
A Muslim marriage requires proposition (Ijab) from one party and acknowledgment (Qubul) from the other as is required for an agreement. Additionally there can be no marriage without free consent and such consent ought not be acquired by means of coercion, fraud or undue impact.
Similarly as in the case of agreement, entered by a guardian, on accomplishing majority, so can a marriage contract in Muslim Law, be put aside by a minor on achieving the period of puberty.
The parties to a Muslim marriage may go into any stake wedding or post marital understanding which is enforceable by law and given it is a sensible and not limited to the arrangement of Islam. Same is the situation with a contract.
The terms of a marriage contract may also be altered within legal limits to suit individual cases.
Although disheartened both by the heavenly Quran and Hadith, yet like some other contract, there is also plan for the breach of marriage contract.
The solemnization of marriage anticipates adherence particular structures and equations. They are known as the basics of a substantial marriage. In the event that any of these necessities isn't satisfied the marriage turns out to be either void or irregular, as the case may be. In this way the fundamentals are as per the following:
Proposal and Acceptance, Competent parties, No legal Disability.
Marriage like some other contract is constituted by ijab-o-qabool, that is by a statement of declartaion and acknowledgment. One party to the marriage must make an offer (Ijab) to the other party. The marriage winds up totally just when the other party has acknowledged the offer.
As indicated by Muslim Law it is completely vital that a man or somebody for his sake and the woman or somebody for her sake should consent to the marriage at one meeting and the understanding ought to be seen by two adult witnesses.
The other essential for a valid marriage is that the transaction must be completed at one meeting. A proposal made at one meeting and an acceptance at another meeting does not constitute a valid marriage.
There must be reciprocity between offer and acceptance. The acceptance must not be conditional It should be with one’s free will.
The suggestion and affirmation must be made in the presence of two males or one male and two female witnesses who are objectionably, adults and Muslim under Sunni Law whereas under Shia Law, witnesses are a bit during the time of marriage. They are required at the time of dissolution of marriage.
The parties contracting marriage must be acting under their free will and consent.
The Parties to a marriage must have the limit of going into a contract. They should be competent to marry. Muslim who is of sound mind and who has achieved puberty may go into an agreement of marriage. The parties must have the capacity to comprehend the idea of their act.
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