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. In the event of husband’s second marriage before the enforcement of the Act, 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. 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, although the petition might fail on the ground of inordinate delay. 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. If after the said petition the husband divorced his other wife, the maintainability of that petition would not be affected so as to merit its rejection.
Clause (ii)—Rape, Sodomy of Bestiality:
This clause is analogous to the provision in Section 1 of the English Matrimonial Clauses Act, 1950, and it lays down that a wife may present a petition for divorce if the husband is, after the solemnisation of their marriage, guilty of rape, sodomy or bestiality. 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 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. Under this sub-clause right has been given only to wife to obtain a decree of divorce if in a suit under Section 18 of the Hindu Adoption and Maintenance Act, 1956, or in a proceeding under Section 125 of the Criminal Procedure Code, 1973, a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree order, cohabitation between the parties has not been resumed for one year or upwards. The essential conditions for moving divorce petition under the above sub-clause are: (i) the petitioner should be wife, (ii) 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, (iii) 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. In Bathula llahi v.
Bathula Devamma, 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 anymore. 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.