ADDITIONAL GROUNDS OF DIVORCE IN FAVOUR OF WIFE. (S. 13(2).—)
This sub-section lays down some additional grounds on which a wife may present a petition for dissolution of marriage by a decree of divorce.
The sub-section has been amended by Marriage Laws (Amendment) Act, 1976, and two additional grounds mentioned in Section 13(2) clauses (iii) and (iv) have been added.
CLAUSE (I)—HUSBAND'S BIGAMY.—
Following points should be kept in mind with regard to this clause:
1. That the marriage was solemnized before the commencement of this Act, i.e., 18th May, 1955
2. That before such commencement the husband had married again or that any other wife of the husband married before such commencement was alive at the time of solemnization of the marriage of the petitioner.
3. That in either case the other wife is alive at the time of the presentation of the petition.
4. Under this section either of the wives married prior to the enforcement of the Act could move a petition for divorce subject to only one condition that the other wife was alive at the time of its presentation.
5. Where a petition for divorce is presented on the ground that the husband had remarried, the fact that the husband after the presentation of the said petition had divorced his other wife would not stand in the way of granting divorce.
6. If the first wife enters a compromise with her husband to live with him, it would not take away her right to present a petition for divorce.
7. If the wife already knew that her husband had married another woman, even that fact would not stand in the way of obtaining a decree of divorce.
CLAUSE (ii)—RAPE, SODOMY OR BESTIALITY
For the application of clause (ii), it is necessary that the husband is guilty of rape, sodomy or bestiality after the solemnisation of the marriage. Where the husband was guilty of any of the offences, prior to the petitioner's marriage, the petitioner cannot claim a divorce.
The offence of rape, sodomy or bestiality must be subsequent to the petitioner's marriage with the respondent.
The terms rape, sodomy and bestiality have not been defined under the Hindu Marriage Act. Rape is defined in Section 375 of the Indian Penal Code. The word 'rape' literally means a forcible seizure and ravishment of a woman without her consent.
The words 'sodomy' and 'bestiality' are usually known as unnatural offences. The term 'sodomy' as it is understood in the courts, is non-coital corral copulation with a member of same sex or opposite sex e.g., per anus. A person may indulge in sodomy even with his own wife.
Bestiality means sexual union by a human being against the order of nature with an animal. Sodomy and bestiality have been defined in Section 377 of the Indian Penal Code.
An attempt to commit rape, sodomy or bestiality is not a ground for obtaining the decree of divorce.
It is not required of the wife to prove that the husband had actually been punished for such offences. Mere proof of such a misconduct on his part is sufficient to enable the wife to get a decree of divorce.
Clause (iii)—non-resumption of cohabitation for one year or upwards after the passing of maintenance order under Section 18 of the Hindu Adoptions and Maintenance Act, 1956, or under Section 125 of the Code of Criminal
PROCEDURE.—
This sub-clause has been inserted by Marriage Laws (Amendments) Act, 1976.
The essential conditions for moving divorce petition under the above sub-clause are:
1. The petitioner should be wife,
2. There should be a decree or order of maintenance either in a suit under Section 18 of the Hindu Adoptions and Maintenance Act, 1956 or in a proceeding under Section 125 of the Code of Criminal Procedure,
3. There had been no resumption of cohabitation between the spouses for a period of one year or more since the passing of such decree or order of maintenance.
CLAUSE (IV)—REPUDIATION OF MARRIAGE.—
This clause has been added by the Marriage Laws (Amendment) Act of 1976.
Under this clause a wife whose marriage was solemnised before she attained the age of 15 years, can repudiate the marriage after attaining the age of 15 years but before attaining the age of 18 years. It is immaterial whether the marriage was consummated or not.
This clause applies whether the marriage was solemnised before or after the commencement of the Marriage laws (Amendment) Act, 1976.
BATHULA LLAHI V. BATHULA DEVAMMA
In above case the court granted the decree after the wife had attained the age of 18 years. The wife in this case had repudiated the marriage before attaining the age of 15 years because after living with the husband for some time she realised that it would be dangerous to live with him any more.
She came to learn later on about the passing of Marriage Laws (Amendment) Act, 1976, which entitled her to bring present petition.
The Court held that even though the petition has been presented after passing of the age of 18 years it would be allowed still in the wake of reasonable explanation for the delay.
Where the wife was married before attaining the age of fifteen years but she repudiated the marriage after attaining the age of fifteen years but before attaining the age of 18 years and all this happened before the Amendment Act of 1976 came into force, the court held that even after 1976 that episode can be taken into consideration and divorce can be granted to the wife.
(1) ADULTERY.—
Prior to the Amendment Act of 1976, Section 10(1) recognized adultery as a ground of judicial separation. Even a solitary instance of adultery could be a basis of judicial separation. But for divorce, it was required to establish that, at the time of presentation of petition, the respondent was living in adultery, or the other spouse must be guilty of a course of adulterous conduct as distinguished from solitary incident.
Prior to the Amendment Act of 1976, 'living in adultery' was required to be proved for divorce. A clever respondent could defeat the very basis of this ground of divorce by indulging into acts of adultery for some time and then discontinuing it for a certain period. The past life of adultery led by the respondent could not afford a ground of divorce.
With the amendment in Section 13 of the Hindu Marriage Act, by the Marriage Laws (Amendment) Act, 1976 a single act of voluntary sexual intercourse with any person other than his or her spouse has been made a ground for divorce.
The term 'living in adultery' has been replaced by the expression voluntary sexual intercourse. It is no more necessary to prove a continuous course of adulterous life for divorce. Now only petitioner is required to establish that the respondent has willfully indulged into sexual intercourse with a person other than his or her spouse.
The act of intercourse to constitute adultery must be voluntary but if it is involuntary for example, rape and on account of misrepresentation, there can be no adultery within the meaning of this section.
The burden of proving adultery in a matrimonial case is on the person who made the allegation. The standard of proof is as in a civil case and not as in a criminal case, i.e. by preponderance of probabilities and not by proving it beyond reasonable doubt.
In Chander Prakash v. Sudesh Kumari AIR 1971 Del. 208, the court held that it is a presumption in law that the respondent charged with adultery is innocent and the burden to prove adultery lies on the party who has alleged it.
No direct evidence of adultery is expected as no such evidence is generally available and so depending on circumstantial evidence the necessary inference could be drawn.
Where the person having illicit relations with the wife of the petitioner does not disown the letters written to her and adultery is suggested by the recital of those letters, the court is justified in concluding the wife's adulterous relations and granting a decree of divorce to the petitioner.
In another case of Sanjukta Pradhan v. Laxmi Narayan Pradhan a charge was levelled against the wife, that she went away with some other person one evening from her husband's home and was seen moving with him on a motorcycle, after which at 1 a.m. in the night they were again seen returning together on a motorcycle from a lonely place. In this way she was away from her parental home and when her father-in-law went to call her back, she bolted herself inside in a room and visited her marital home no further. The Court, under the circumstance, found sufficient circumstantial evidence for adultery and granted the decree for divorce.
In the case of Veera Reddi v. Kistamma Dr.Veera Reddi the wife brought to an end her every relations with the husband on 17/11/1957 and started living with her parents. After 17/11/1957 there was no meeting between them. On 23/12/1958 after 402 days of the cessation of marital ties the wife delivered a child. The Madras High Court held the wife guilty of adultery and observed that in absence of her meeting with the husband, wife's delivery this way to a child, was suggestive of adultery of the wife.
Non-access of the husband to his wife and delivery of a child by her will be sufficient to prove adultery on her part and it will entitle the husband to get a decree of divorce.
Where the wife often remained away from home in company of strangers and had been found with them at several places and in their rooms without any explanation for all these acts, it was held by the court that the contention of the husband about the adulterous conduct of the wife will be accepted and decree of divorce would be granted to him.
