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Adultery, cruelty,desertion,conversion as the grounds of divorce

Adultery

The concept of Adultery may not be considered as an offence in many countries. But as
per the Hindu Marriage Act, in the matrimonial offence, the adultery is considered as one
of the most important ground for seeking divorce. Adultery means the consensual and
voluntary intercourse between a married person with another person, married or
unmarried, of the opposite sex. Even the intercourse between the husband and his
second wife i.e. if their marriage is considered under bigamy, the person is liable for the
Adultery.

The concept of Adultery was inserted under the Hindu Marriage Act by the Marriage Laws
Amendment Act, 1976.

In Swapna Ghose v. Sadanand Ghose

In this case, the wife found her husband with other girl lying on the same bed and the
neighbour also confirmed that the husband has committed an offence. Here the wife gets
the divorce.

The Madhya Pradesh High Court in the case of Samuel Bahadur Singh v. Smt. Roshini
Singh (1960), rightly pointed out that in India, if a male and female are living together
under the same roof without any connections or relations, it is not considered normal, and
so adultery can be inferred from the following circumstances:

• A male and female lived together in the same house for a long time.
• They are not related to each other by way of marriage or any other relationship.
• They refused to return to their spouse.
• Both the parties cannot deny adultery because of circumstantial evidence.
• They had the opportunity to commit adultery.
In the case of Chetan Dass v. Kamla Devi (2001), appellant and respondent were married
to each other according to Hindu ceremonies. After marriage, the appellant had an
extramarital affair with one of the nurses in the hospital where he was working, and so his
wife left him. He appealed, claiming that the allegations made by the respondent and her
act of deserting him without any reasonable cause amount to mental torture. The Hon’ble
Supreme Court observed that a man cannot take advantage of his own wrong. However,
the decree for divorce was not passed because the wife, or respondent in this case, was
ready to continue her marriage and live with him only on the condition that he must leave
the other woman and end his adulterous relationship.

Essentials of Adultery

1. One of the spouses involved in the intercourse with another person, married or
unmarried, of the opposite sex.
2. Intercourse should be voluntary and consensual.
3. At the time of the act, the marriage was subsisting.
4. There must be sufficient circumstantial evidence to prove the liability of another
spouse.

Cruelty

The concept of cruelty includes mental as well as physical cruelty. The physical cruelty
means when one spouse beats or causes any bodily injury to the other spouse. But the
concept of mental cruelty was added as the spouse can also be mentally tortured by the
other spouse. Mental Cruelty is lack of kindness which adversely affects the health of the
person. Well it is easy to determine the nature of physical cruelty but difficult to say about
mental cruelty

1. What is considered as Mental Cruelty against Husband by wife:

2. Humiliating the husband in front of his family and friends.
3. Undertaking the termination of pregnancy without husband consent.
4. Making false allegation against him.
5. Denial for Martial Physical Relationship without a valid reason.
6. Wife having affair.
7. Wife living an immoral life.
8. The constant demand for money.
9. Aggressive and uncontrollable behaviour of Wife.
10. Ill-treatment to the husband parents and family.
In Balram Prajapati vs Susheela Bai
In this case, the petitioner filed the divorce petition against his wife on the ground of
mental cruelty. He proved that his wife that behaviour with him and his parents was
Aggressive and uncontrollable and many times she filed the false complaint against her
husband. The court accepts the petition and grants the divorce on the ground of cruelty.

What considered as Mental Cruelty against wife by Husband

1. False accusation of adultery.

2. The demand for dowry.
3. Impotency of Husband.
4. Force to abort the child.
5. The problem of drunkenness of husband.
6. Husband having affairs.
7. The husband lives an immoral life.
8. Aggressive and uncontrollable behaviour of the husband.
Humiliating the wife in front of family and friends

Desertion

Desertion means the permanent abandonment of one spouse by the other spouse without
any reasonable justification and without his consent. In General, the rejection of the
obligations of marriage by one party.

Before the 1976 Amendment, desertion was only a ground for judicial separation and not
divorce. But now, desertion of any of the spouses by the other for a continuous period of
two years immediately before filing the petition is a valid ground to seek divorce as well
as judicial separation. Desertion as the ground of divorce is mentioned under Section
13(1)(i)(ib) of the Act. In the case of Malathi Ravi v. B.V. Ravi (2014), the Supreme Court
held that if there is no evidence to prove that the wife had an intention to end the marriage
or whether she deserted her husband, then the court will not pass a decree of divorce.
This means that the intention to end marriage is one of the essentials of desertion,
i.e., animus deserendi must exist. Also, if there was no desertion for a continuous period
of two years immediately before the presentation of the petition or if the party assumed it,
no divorce can be granted.
Essentials

1. Permanent abandonment of the other spouse.

2. Rejection of the obligation of marriage.
3. Without any reasonable justification.
4. No consent of another spouse.
In Bipin Chander Jaisinghbhai Shah vs Prabhawati

In this case, the respondent leaves the house with the intention to abandon his wife. Later
the wife approaches the court, but the defendant proved that even though he left the
house with the intention to desert, but he tried to come back and he was prevented from
doing so by the petitioner. Here, the defendant cannot be held liable for desertion.

Conversion

If one of the spouses converts his religion to any other religion without the consent of the
other spouse, then the other spouse can approach the court and seek the remedy of
divorce.

Illustration

A, a Hindu has a wife B and two children. One day A went to church and converted to
Christianity without the consent of B, here B can approach the court and seek for divorce
on the ground of conversion.

In Suresh Babu vs Leela

In this case, the husband converts himself into Muslim and marries another woman. Here
the wife Leela filed a case and demanded the divorce on the ground of conversion without
her consent and cruelty.

What are Special Grounds of Divorce for Wife?

▪ If the husband has more than one wife, then she can exhibit an appeal for divorce
under clause. (I) of sub-sec. (2) of s. 13 of the Hindu Marriage Act 1955.
▪ If the husband committed any Rape, Sodomy or Bestiality, then wife can dissolve
the marriage under section 13(2)(ii) of the Hindu Marriage Act 1955.
▪ When a wife secures maintenance order under Section 125 of the Criminal
Procedure Code, 1973, or a decree under Section 18 of the Hindu Adoption and
 Maintenance Act, 1956, and the couple has not resumed cohabitation for a year or
more, thus they are eligible to file a divorce.
▪ If the marriage took place before the wife turned fifteen, thus she can renounce the
marriage before she turned eighteen.
Differences Between Judicial Separation and Divorce
Time for Filing a Petition
One of the fundamental differences between judicial separation and divorce lies in the
timeline for filing a petition. A petition for judicial separation can be filed at any time after
marriage, providing couples with a more immediate option for addressing their issues.
On the other hand, a petition for divorce can only be filed after one year of marriage,
which is intended to encourage couples to exhaust all possible avenues for reconciliation
before ending the marriage legally.
Stages of Granting a Decree
The process of obtaining a legal decree also differs significantly between judicial
separation and divorce. In the case of judicial separation, there is only one stage of
judgment. If the grounds for seeking separation are satisfied, a decree is granted without
any further attempts at reconciliation. In contrast, divorce proceedings involve a two-step
process.
The first step is often focused on reconciliation, mediation, or counselling to encourage
couples to resolve their differences. If reconciliation efforts fail, a divorce decree is
granted, effectively terminating the marriage

Effect
The most profound difference between judicial separation and divorce is the effect it has
on the marital relationship. A decree of judicial separation results in a temporary
suspension of the marriage. This means that while legally separated, the couple is not
officially divorced and they may still be considered married in some legal and social
contexts.
A divorce decree, however, brings the marriage to an end, freeing both parties from the
legal obligations and restrictions associated with marriage.
Remarriage
Remarriage is another area where judicial separation and divorce diverge. After a decree
of judicial separation, the parties involved cannot remarry, as their marital status remains
intact, albeit in a suspended state. In contrast, following a divorce decree, the parties are
free to remarry, as their previous marriage is legally dissolved.
Grounds for Divorce
One critical distinction is that judicial separation is often a precursor to divorce, as it serves
as one of the grounds for seeking divorce. In jurisdictions that allow no-fault divorce, a
period of judicial separation can be a prerequisite before a divorce can be granted. In
contrast, divorce does not serve as grounds for judicial separation, as it is a separate and
distinct legal process.
Basis for Granting the Decree
The basis for granting a decree of judicial separation and divorce also differs. A single
instance of adultery is sufficient to obtain a judicial separation decree. However, a divorce
decree, typically requires living in an adulterous relationship or satisfying specific grounds
outlined in legislation, which can vary depending on the jurisdiction. These grounds may
include cruelty, desertion, or irreconcilable differences.
Reconciliation

The possibility of reconciliation is another key difference between judicial separation and
divorce. Judicial separation allows for the potential reconciliation of the couple.
It provides an opportunity for the parties to address their issues and potentially repair the
marriage, while still maintaining their legal separation. In contrast, divorce is a final and
irreversible step, with no possibility of reconciliation being built into the process.
Right to Inheritance
The right to inheritance is another aspect where judicial separation and divorce diverge.
Under a decree of judicial separation, the right to inheritance remains in force. The couple
is still legally married, albeit separated and retains their respective inheritance rights.
In contrast, a divorce decree terminates the right to inheritance associated with the former
spouse, as the legal relationship is entirely severed.