Grounds For Divorce | 02
Grounds For Divorce | 02
Hi! My name is Pallavi Pratap and welcome to Law Simplified, from Motor Mouth Podcasts. The aim of this podcast is to simplify law for the common man, to know how the law can come to their rescue. Through this podcast, I intend to give you an understanding of the Basics Of Law in everyday life.
Today I discuss on the grounds for obtaining a divorce. Divorce in India is based on the fault theory. However, the other theories include mutual consent theory or irretrievable breakdown of marriage. Now a fault based theory means that if I apply for divorce then I have to show how my spouse is at fault. Therefore, when my spouse contests the divorce, he has to prove how he is blameless and would show that I am in fact taking advantage of my own wrong by filing a divorce petition. It is necessary to show a guilty party and an innocent one.
A mutual consent divorce is the one where parties agree that since they have married at their free will, they should be allowed to move out of their relationship of their own free will. The third is the irretrievable breakdown of marriage where it is recommended that marriage is dissolved with maximum fairness and minimum bitterness.
Let us examine the grounds on which you can get a divorce. Most marriages are dissolving as a result of adultery. Adultery is an offence against marriage. But it is important to establish that the act of adultery occurred while the marriage was subsisting. Even a single act of adultery is enough for the decree of divorce. However, the caveat here is that direct proof of adultery is very rare.
The second most important ground is that of cruelty. It is seen that cruelty is a changing concept which includes both mental and physical cruelty. While physical cruelty is easy to determine, mental cruelty is difficult to ascertain. Some instances of mental cruelty can be false accusations of adultery, demanding dowry, refusal to have marital intercourse or have children, gaslighting amongst others. Mental ccruelty is recognised as a form of cruelty and is developed more exhaustively in Prevention of Women from Domestic Violence Act.
Cruelty also includes economic abuse. Women suffer economic abuse because there is no way that their contribution as a home maker can be quantified. Even if a woman is earning her own money, she usually does not have full charge over her own finances. Typically a husband would park his money as savings and the wife’s money would be used to dole out expenses. Thereby the wife eventually loses all the finances once the marriage ends.
It goes without saying that cruelty is also inflicted by women and men too are required to protect themselves from both physical and mental violence. There have been many instances where a man is implicated in false charges of violence. However, the courts do give divorce to men on ground of cruelty if the allegations against them are found to be false. Sec. 498A and Sec. 406 IPC can be used by a woman to get justice and to arrive at a fair settlement however, it can also be used to harass the family of husband and family which then leads to extortionist settlement amounts.
The third ground is that of desertion. It primarily means that one party does not want to fulfil obligations of marriage, thereby abandoning the spouse without any cause. There is a statutory period of 2 years that must have run out before a petition can be filed on grounds of desertion. There are two aspects of desertion, Factum Deserendi i.e. the fact of desertion and animus deserendi i.e. the intention to desert. It is seen that many a times, people stay in abusive marriage because they think that deserting the other spouse will give the other ground for divorce. What is important to note here is thatif a spouse is forced out of house and marriage due to acts of cruelty, then it is not act of desertion.
The other grounds of divorce include leprosy, venereal disease, renunciation of world or presumption of death. What is of importance to note here is that typically the grounds in any divorce petition are boiler plate grounds – copy pasted and therefore, alike. My advise is that since no two marriages are alike, therefore, no two divorces are alike. Read the grounds carefully. You would certainly want to refrain from putting grounds which will not survive in your case.
There are some special grounds for divorce for wife. For instance non resumption of cohabitation despite decree or order of maintenance being passed u/s 125 Cr.P.C. 1973 and Sec. 18 of Hindu Adoption and Maintenance Act, 1956. The Courts have recommended that ‘irretrievable breakdown of marriage’ should be made a ground for divorce. However, it is still a long way to go.
Both the Hindu Marriage Act, 1956 and Special Marriage Act, 1954 protects persons from fraudulent marriages by requiring a disclosure that neither has a living spouse at the time of marriage. Should there in fact be a prior living spouse then there can be a legal declaration that their marriage is bigamous and thus, void.
Before I end today’s show, thank you for listening to this episode, do feel free to write in to me with specific queries and it will be my endeavour to sort your queries. Also,
I would like to reiterate, if your marriage is broken and you find it difficult to fix it, be mature and find a way to move-on instead of finding faults with the other. We are all victims in our stories but we are villain in the other person’s story. Most of my clients tell me that the person they are divorcing is not the same person they married. It is always possible to get an amicable divorce as long as ego does not come in between. With that note, until next time, this is Pallavi saying Good Bye and hoping to have you all in our next episode. Stay tuned.