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Click here to go to the main page of this section (Know Your Law). There was a time when it was believed that the marriages were arranged in heaven, and it used to be a relation of flesh with flesh and bone with bone. And every Hindu Wife used to say that in the next "janama" if both got the same sex (female and male) they should marry again and again and always live as husband and wife. So the question of separation from each other was a far cry. But slowly and steadily this concept did not find favour with social reformers, who wanted that a woman must not be chained with a man who is completely devoid of all the virtues that a reasonable husband should have. The British Government frowned upon any effort to make radical changes in the provisions of Hindu Law, although Hindu reformers were agitating for such changes from time to time. The Hindu Marriage Act, 1955 came into existence, eight years after the independence of the country. Section 13 of the Hindu Marriage Act deals with the grounds on which the parties can seek a decree of divorce from a competent court having jurisdiction to entertain such petition. Divorce:
In the literal sense "divorce" means a legal separation of two persons of the opposite sex who desire to respect and honour each other. Shakespeare expresses the term in "The comedy of errors", "And from my false hand cut the wedding-ring, And break it with a deep divorcing vow?" Grounds for Divorce:
Following are the grounds under which either of the parties are entitled to seek a decree of divorce under the Hindu Marriage Act, 1955:
1. Adultery
2. Cruelty
3. Desertion
4. Conversion or Change of religion
5. Insanity
6. Leprosy
7. Venereal disease
8. Renunciation of World
9. Presumption of death
10. Non-resumption of cohabitation after passing a decree for judicial separation
11. Non-resumption of cohabitation after passing of a decree for restitution of conjugal rights. Adultery:
According to H. L. Mencheh, adultery in the literal sense means "an application of democracy to love". Adultery means the offence of incontinence by married persons. In Mahalingam Pillai Vs. Amravalli, it was held that one general intercourse after the solemnisation of marriage is sufficient to make a case. An attempt at general intercourse is not enough some penetration, however, brief, it may be, must be proved. Burden of Proof:
It is very difficult to produce direct evidence to prove an act of adultery. Adultery is a matrimonial offence as well as a criminal offence. The requirement of proof in a criminal case is stricter than the requirement in a matrimonial case. In the former case the act is to be proved beyond reasonable doubt, whereas in the latter the evidence is based on the inferences and possibilities. Thus the offence of adultery may be proved by:
1. Circumstantial evidence
2. By evidence as to non-access and birth of a child
3. By evidence of visits to brothels
4. By contracting venereal diseases
5. Confession and admission to parties; and
6. Preponderance of probability The Madhya Pradesh High Court in Hargovind Soni Vs. Ram Dulari, observed that it is no longer required that adultery must be proved beyond all reasonable doubts, it can be established by preponderance of probabilities. In next edition, let us know about Cruelty. to be continued....
Sandeep Shenoy Click here if you would like to Contribute or send a feedback.
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