WIFE’S RIGHT TO DIVORCE
Whether a woman have right under Hindu Marriage Act, 1955, to take a divorce from her husband and if yes , then discuss the grounds on which a woman can take a divorce from her husband?
Every law which is enacted by the Government of India is based upon the principle of equality and Article- 14 of the Constitution of India deals with the fundamental right of equality. According to this article, both men and women are equal and all laws whether public or personal should be applicable upon them equally without any discrimination on the basis of sex.
That is why, section 13 of Hindu Marriage Act, 1955, which deals with the provisions of divorce gives equal rights to both men and women. According to the section both husband and wife are entitled to get a divorce from their spouse. The grounds which are mentioned in section 13(1) of Hindu Marriage Act, 1955, are equally applicable upon both husband and wife.
According to section 13(1), if a husband:-
• lives in adultery and commits sexual intercourse with another woman, or
• treats the wife with cruelty, or
• has deserted the wife without any reasonable ground and without her consent, or
• has ceased to be a Hindu by conversion into another religion, or
• is of unsound mind and it is impossible for wife to live with him, or
• has been suffering from venereal disease(sexual) in a communicable form, or
• has renounced the world by entering any religious order, or
• has not been heard of as being alive for a period of seven years or more
then on basis of any of the abovesaid grounds, a wife can take a divorce from her husband. On the basis of these grounds a husband can also take a divorce from the wife.
But section 13(2) provides some grounds of divorce which are available to the wife only. On the basis of these grounds, only wife is entitled to file a petition for dissolution of marriage. Under section- 13(2) a husband cannot file a petition for dissolution of marriage.
According to section- 13(2) of Hindu Marriage Act, 1955, if before the commencement of Hindu Marriage Act, 1955, a husband was married and he again solemnized the second marriage, then any of the wife has a right to file a petition for dissolution of marriage under this act. But, the petitioner can file a petition for divorce only if the another wife is alive. It is immaterial whether she lives with the husband or separately at the time of commencement of this Act.
According to this section, the ground of divorce is available only if both the marriage are valid. This clause tries to bring the monogamy but in the present situation, this clause has no practical importance.
Moreover, according to this section- 13(2) of Hindu Marriage Act, 1955, if a husband after solemnizing a marriage commits the offence of Rape, Sodomy or bestiality then the wife has a right to file a petition for divorce on this ground. To get a divorce, it is necessary for a wife to prove the commission of an offence.
An attempt to commit these offences is not covered under this section 13(2). According to this section, it is not necessary that the husband should be punished for the commission of an offence. A wife can file a petition even if husband has been discharged.
According to section 13(2) of Hindu Marriage Act, 1955, if a wife file an application of maintenance under section- 125 of Code of Criminal Procedure, 1973 or under section 18 of Hindu Adoption and Maintenance Act, 1956 and court grants the application and directs the husband to pay maintenance to wife whether she is living apart from him and after this order also the cohabitation between husband and wife has not resumed for one year or more, then a wife is entitled to file a petition for dissolution of marriage.
Moreover, according to section 13(2) of Hindu Marriage Act, 1955, if the marriage of a girl child is solemnized before attaining the age of 15 years but she repudiates the marriage after attaining 15 years but before completing the age of 18 years, then she can file a petition for dissolution of marriage under this section. According to this section, it is immaterial whether the marriage has been consummated or not between the girl child or her husband.
Here, the word repudiation of marriage and filing a petition for dissolution of marriage are different things. Repudiation of marriage means renouncing the marriage or refuses to acknowledge the boy as husband. Repudiation of marriage may be formal or informal. Formal means expressly (by words either written or spoken) but informal means by conduct.
On the other hand, dissolution of marriage means breaking the ties of husband and wife. The wife can get the decree of divorce only because the marriage is a valid marriage. This section does not render the marriage void or voidable. The child marriage is a valid marriage under Hindu Marriage Act, 1955. According to this section, after repudiating the marriage, the wife can file a petition at any time even after attaining the age of 18 years.
The main aim of this provision is to protect the physical and mental growth of a girl. Marriage arises many matrimonial obligations and to fulfil these obligations, maturity is very essential and a girl who is less then 15 years or 18 years cannot attain the enough maturity and if she would not have a right to get such marriage dissolved and if she will have to perform these obligations then it will affect the physical and mental growth of girl child. That is why this right has been given to them.
Hence, it can be said that women have equal rights even more rights then men and they are also entitled to get the marriage dissolved if they do not want to live with their husbands.