The following four additional grounds are available only in those cases where the wife applies for a divorce:
Four Grounds Available Only to the Wife:
(1) Bigamy
(2) Rape, sodomy or bestiality
ADVERTISEMENTS:
(3) Maintenance decreed to the wife, and no cohabitation for one year after the decree
(4) Wife was under 15 when she was married, and had repudiated the marriage before she is 18.
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(1) BIGAMY, namely, that in the case of a marriage solemnised before the commencement of the Act, the husband has married again before such commencement, or that any other wife of the husband, married before such commencement, was alive at the time of the Petitioner’s marriage.
ADVERTISEMENTS:
This ground can obviously exist only in the case of a marriage solemnised before the Act came into force. As regard marriages solemnised after the Act, under Ss. 5 and 11, such marriages would be bigamous and void ab initio, and there would naturally be no question of divorce in such cases.
It is also necessary under this clause that the other wife should be alive at the time when the Petition is presented to the Court.
It will be seen that this remedy is available to a wife, irrespective of the fact that the other marriage had taken place before or after the marriage of the petitioner wife with him. Thus, the remedy is available to the first as well as the subsequent wives.
(2) RAPE, SODOMY OR BESTIALITY, namely, that the husband has been guilty of rape, sodomy or bestiality after the solemnisation of the marriage.
ADVERTISEMENTS:
Rape refers to the ravishing of a woman, whereas sodomy and bestiality refer to carnal intercourse by a man against the order of nature with another man or with an animal, respectively. Although these are also offences under the Indian Penal Code, a divorce would be granted even if the husband has not been convicted of any of these offences in any criminal proceedings.
(3) DECREE OR ORDER AWARDING MAINTENANCE, namely, that in a suit under S. 18 of the Hindu Adoptions and Maintenance Act, 1956, or in a proceeding under S. 125 of the Criminal Procedure Code, 1973, a decree or order 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 or order, cohabitation between the parties has not been resumed for one year or more.
(4) REPUDIATION OF THE MARRIAGE, namely, that the marriage was solemnised before the wife attained the age of fifteen years, and that she has repudiated the marriage after attaining that age, but before attaining the age of eighteen years.
For the purposes of this ground of divorce, it is immaterial whether the marriage was consummated or not.
When the Hindu Marriage Act came into force, one of the essential conditions of a valid Hindu marriage was that the bride should be at least fifteen years old. This age was raised to eighteen in 1978. However, in case of a marriage before the 1978 Amendment, even if the bride was under fifteen, such a marriage was not void or voidable; only the parties to such a marriage were liable to imprisonment, or fine, or both. This provision now enables a wife in such a case to obtain a divorce, provided that she has repudiated the marriage before she becomes eighteen years old.