Marriages might be made in heaven but divorces are finalised on earth and have to follow the legal framework decided for it. In case the husband and wife are not happy with each other, they file for divorce. But what if only one of either of the parties wants separation and the other spouse is not willing to split? We aim to discuss the legal implications of one-sided divorce in India through this article today.
Section 13 of the Hindu Marriage Act
In the case of a marriage without mutual consent, Section 13 of The Hindu Marriage Act, 1955 states certain conditions. In presence of any of these conditions, any of the party can present a petition for divorce and the marriage can be dissolved.
Grounds for one-sided divorce
- If either of the spouses has sexual intercourse outside marriage voluntarily.
- If either of the spouses has treated the other with cruelty.
- If either of the spouses abandoned the other for a period not less than two years.
- If either of the spouses has converted to another religion.
- If either of the spouses has an unsound mind and the other partner cannot be expected to stay with them. Mental disorder comprises of mental illness, any psychopathic disorder, incomplete development of brain etc.
- If either of the spouses is suffering from a virulent or incurable form of leprosy.
- If either of the spouses has a venereal disease which is in a communicable form.
- If either of the spouses has entered in some religious order and renounced the world.
- If there is no news of the spouse being alive for more than seven years or more.
- There is no resumption or cohabitation between the spouses.
- There is no restitution of conjugal rights between the spouses for a period of one year or upwards.
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The wife has a special right to file for divorce on following grounds:
- The wife also can file a petition for divorce in case the husband already has a wife before the solemnization of marriage with the petitioner.
- The wife can file for divorce if the husband is guilty of rape, sodomy or bestiality.
- A decree or order has been passed against the husband awarding maintenance to the wife and since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards.
- The marriage of the petitioner was solemnized before she attained the age of 15 years and she has repudiated the marriage after attaining that age nut before attaining the age of 18 years. Â
Section 14 of the Hindu Marriage Act
There is an interesting provision in the Hindu Marriage Act which states that no divorce application shall be entertained by the court within the first year of marriage. However, the High Court may exercise its power if it's the case of extreme hardship or depravity. If the court notices any misrepresentations of the fact and false evidence, it may revoke the decision of divorce granted for the cases within one year.
Judicial Precedents
In case of Savitri Pandey v. Prem Chand Pandey, the Hon'ble Supreme Court declared that cohabitation is a must before desertion and hence if cohabitation is not established there can be no desertion.
As in the case of A Jaychandra v. Aneel Kaur, the Supreme Court declared that the cruel conduct which is the base of complaint should be grave and weighty in order to be a cause for separation.
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