A Petition For Divorce On The Ground Of Cruelty (us 13 (l)(ia) Of The Hindu Marriage Act 1955) 1107 - Legal Draft

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A PETITION FOR DIVORCE ON THE GROUND OF CRUELTY (US 13 (l)(ia) OF THE HINDU MARRIAGE ACT 1955)

HIGHLIGHTS

GROUNDS FOR DIVORCE: (i) ADULTERY:
1. Judicial separation is one step less than divorce. When it becomes impossible to live together as husband and wife due certain reasons, law allows separation. The marriage continues, but spouses need not live together.
2. Adultery is a voluntary sexual intercourse of a married person, whether a man or a woman, with a person who is not a spouse. The act must be voluntary. So, rape or intercourse manipulated through fraud will not be adultery. One single act of adultery by either party is reason enough for divorce. Sexual relations between a girl and a boy before marriage is not adultery. It is not necessary that the sexual intercourse should be complete. Mere suspicion or opportunity for adultery is not enough to prove adultery. Adultery must be proved clearly, convincingly and beyond reasonable doubt. It is also not necessary to bring eye witness or direct evidence to prove
adultery. It has to be proved with specific instances. The wife receiving love letters from a man does not prove her guilt.
(ii) CRUELTY :
3. For more than a century, courts had recognised cruelty as a ground for judicial separation and divorce. Law does not explain what cruelty is. "Cruelty is conduct of such character as to have caused danger to life, limb or health (bodily or mental) or as to give rise to a reasonable apprehension of such danger." The general conduct of a man towards his wife may amount to cruelty though there is no actual violence or intention to be cruel. If the behaviour of the husband affects the wife's health, causing depression, nervousness or melancholia, it would be cruelty. Long and continuous denial of sex by one party to the other would amount to mental cruelty. Law makes no distinction, whether it is a man or a woman, who denies sex to the other. Impotence is not cruelty. Charging a wife with adultery and immorality amounts to cruelty. Making false reports to police and attempt to commit suicide were held to be cruelty. Mere drunkenness is not cruelty, but if it is with violence and habitual accusation, it would amount to cruelty. Pressing the wife to come to the husband's home is not cruel,
(iii) DESERTION:

4. Desertion is deliberate withdrawal of the company or abandonment of one spouse by the other without the other's consent. The spouse who deserts the other must put an end to all marital relations. The person must have intended to do so. The deserted spouse has not given consents to the other, and not given provocation to leave. Wilful neglect amounts to desertion. It is not necessary that the husband and wife should live together every day in the same house. On account of business or nature of duties, they may be separate, but it does not amount to desertion. However, the husband and wife living together and under the same roof but avoiding their company and bed will certainly amount to desertion,
(iv) OTHER GROUNDS FOR DIVORCE :

(a)Second Marriage by a Spouse.
(b)Impotency.
(c)Unsound Mind or Insanity - Mental Disorder.
(d)Leprosy.
(e)Venereal Disease - VD should be in a communicable
form. VD spreads only through sexual contact.
(f)Presumption of Death - Seven Years.
(g) One Year's Separation,

(v) SPECIAL MARRIAGE ACT:
(1) Under civil marriage, there is an additional ground for divorce, i.e. seven years' imprisonment for a criminal offence. This provision is not found in Hindu Law.
(2) Only for Hindus - Renunciation of world - becoming a sanyasi.
A person does not become a sanyasi by a declaration or donning of robes. There must be performance of proper ceremonies. According to Hindu Law, a person "dies" in law and is not entitled to inheritance, and his property passes on immediately to the heirs. Conversion of religion from Hindu to Muslim. Marriage does not dissolve automatically. Only Hindu wife can seek dissolution.