Q.6 Discuss the various grounds of Divorce under the HMA 1955.
Ans:
Under HMA, originally, divorce was only based on the fault theory. Section 13 clause 1
provides nine faults as grounds for divorce which are available to both the husband and the wife to be claimed against the other while two fault grounds as mentioned in clause 2, which only the wife could claim to seek a divorce
The various grounds on which a decree of divorce can be obtained are as follows-
- Adultery: Though adultery may not have been recognized as a criminal offence in all countries, according to HMA adultery, is a valid ground for divorce. In adultery, there must be voluntary or consensual sexual intercourse between a married person and another, whether married or unmarried, of the opposite sex, not being the other’s spouse, during the subsistence of the marriage.
- Cruelty: The concept of cruelty is a changing concept. The modern concept of cruelty includes both mental and physical cruelty. Acts of cruelty are behavioural manifestations stimulated by different factors in the life of spouses and their surroundings. Therefore, each case has to be decided on the basis of its own set of facts.
| Source : Book:NIOS: Chapter 15 : Page Number 69: PDF Link |
| Extra Info : The additional grounds provided to the wife under clause 2 of Section 13 are as follows: Pre-Act Polygamous Marriage: This clause states the ground for divorce as “That the husband has another wife, alive at the time of the solemnization of the marriage of the petitioner.”Rape, Sodomy or Bestiality: Under this clause, a divorce petition can be presented if the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality. Non-Resumption of Cohabitation after a Decree/Order of Maintenance: If a wife has obtained an order of maintenance in proceedings under Section 125 of the Code of Criminal Procedure, 1973 or a decree under Section 18, Hindu Adoption & Maintenance Act, 1956 and cohabitation has not been resumed between parties after one year or upwards, then this is a valid ground for suing for divorce.Repudiation of Marriage: This provision provides a ground for divorce to the wife when the marriage was solemnized before she attained the age of fifteen years, and she has repudiated the marriage but before the age of eighteen. Such repudiation may be expressed (written or spoken words) or may be implied from the conduct of the wife (left her husband & refused to come back). Moreover, this right (added by the 1976 amendment) has only a retrospective effect, i.e. it can be invoked irrespective of the fact that the marriage was solemnized before or after such amendment |