Divorce by husband

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Circumstances under which the husband can file for a divorce

Divorce is the legal termination of the marital relationship between husband and wife. The provision of divorce has been found in Nepal since ancient times. Even though the ancient Nepalis believed in religion, but the National Act of 1910 B. S. had also provided in this regard. The said provision was also implemented in the new National Act 2020. Until 2074 BS, only women could apply for divorce directly in the court. After the implementation of the Civil Code in 2074 BS, even husband can file for divorce.  

When the husband files for divorce in the court, the court asks for numerous firm evidence. In the event of a lack of evidence, the court may not grant a divorce.

Legal provision for a husband to file for divorce.

According to the legal provisions stated by the Article 94 Civil Code 2074, the husband can file for divorce under the following conditions:

1. Separation after the legal division of the property

As per the sub-section Ka of the Civil Code 2074, if the wife had already filed for the property and had taken her share of the property and thereafter living separately. Then the husband can file for a divorce. However, even if the wife had taken her rightful property share and living separately but still she is striving for her family identity and fulfilling all her obligations toward her family. Then on such a condition, the husband can’t file for a divorce. Such a condition where wife though living separately still fulfilling her all family duties, then such condition cannot be categorized as separation after the legal division of the property. So husband can’t file for divorce. There are numerous such cases that had happened in the court of Nepal. Some such example is:

• One such example is the case that happened between Puran Shamsher Ja.Ba . Ra versus Kiran Rana under Ne. Ka. Pa. 2075 Ni. Na. 9999. In this case, wife Kiran Rana took her property share legally to take care of her children and her mother in law. But she stayed separately and retain her family identity however fulfilling all her duties and obligations. Therefore, divorce was not granted to the husband. 
• There was another divorce case between Krishna Sherchan and Padma Kumari Sherchan under Ne. Ka. Pa. 2067 Ni. Na. 8487. in this case, the wife Padma Kumari Sherchan not only took her rightful property share from her husband, but she has also transferred the property in her name. However, for 22 long years, she was staying in her paternal home as per her wish. But she was refusing for a divorce to retain her family identity. Under such conditions, the court grants the divorce to the husband. the court clearly stated that it is not rightful to say that the wife had fulfilled her obligations toward her husband’s family.

2. Separation without consent

There is a provision all over the world that if one of the spouses lives separately for three consecutive years or more, the relationship will be dissolved automatically. In India, the Marriage Act 1955 section 13 clause (ib) subsection (1) has been adopted that clearly states that if one of the spouses lives separately without any reasonable cause, without the consent of the other spouse or against the will of the other spouse, then the divorce will be granted to the other spouse. Halsbury law of England 3rd edition vol 12 page 243 defines in its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without other consent and without reasonable cause. Thus leaving the house without consent and staying away from home without any reason and not making a good attempt to return home is the legal ground for the husband to file for a divorce. 

In Nepal also, according to the Sub-section Ka of the Civil Code 2074, if the wife has been living apart for three consecutive years or more without the consent of the husband, the husband can apply for divorce. Nepalis now go abroad for employment. In the case of going abroad for employment, it cannot be said that she stayed outside or living separately without her husband’s consent. In this case, also, we can take the example that has been mentioned above. the case between Kiran Rana verses Puran Shamsher Ja Ba Ra is an example of such a case. In this case, the husband Puran Shamsher himself as per his wish left the home and living separately. While wife Kiran Rana was staying at her in-law’s house taking care of the family. therefore, in this case, it can’t be said that the wife was staying separately against the consent and will of her husband. However, if the husband leaves the house fleeing from all his responsibilities towards his family, then also husband can file for divorce against the consent of his wife.  

3. Forceful eviction from the home

          In Nepal, the husband has the legal and social obligation to look after the welfare of his wife. According to the principle of sustenance of Hindu rites and customs, the husband has to take care of his wife according to his status. This obligation is defined as an Imperative duty and a solemn obligation of the husband to maintain his wife. Since Nepal is a patriarchal country, the husband has to take care of his wife. If the husband is sick or disable and unable to earn money and take care of the family, and the wife is the sole earner of the house. And if the wife leaves the husband in a state of distress, destitution, and starvation, then the husband can file for divorce. 

4. Physical and mental torture

In all countries of the world, including Nepal, physical or mental suffering and torture have been taken as the main basis of divorce. The Civil Code 2074 does not clearly specify the type and degree of physical and mental suffering, injuries, and torture on the basis of which divorce can be filed. In this context, we have to look at foreign law. The United Kingdom’s La Brocq vs La Brocq (1964) 3 All ER 464 and the Supreme Court of India’s Distane vs Distane AIR 1975 SC 1534 and V Bhagat Vs D Bhagat AIR 1994 SC 710 clearly defined about mental distress. therefore, the court determines the degree and severity of the mental distress by following the example of the cases as mentioned in the United Kingdom and India. 

The high court of Karnataka of India had published Shreekant B. Manchand A. I. R. 1980 Karnataka 8 where it has been defined that the measure of mental distress is determined by a person’s social status as well. Thus, mental distress has to be measured on the basis of the norms of the society where the husband and wife lives, the status of both husband and wife, and their family environment. Whether the behavior that has been shown by the wife to the husband can be categorized as the source of mental stress and torture or the husband also depends on the character of the husband, his way of living his life, his status, his custom, and tradition. 

V Bhagat Vs D Bhagat has given a good explanation of the state of mental distress in the issue. The mental distress was broadly defined as conduct or mental sufferings as would make it not possible for the party to live with others. these are:

• Mental distress must be of such a nature that the involved party cannot reasonably be expected to live together.
• The situation must be such that the sufferer cant be reasonably asked to put up with such conduct and continue living with the source of the suffering.
• When arriving at such a conclusion, the social status, educational level, and the family environment of both the sufferer and the source of the sufferer should be taken into account.
• The judgment is done when the court is satisfied with the guilt of the source of the suffering beyond a reasonable doubt. 

When coming to the decision, there must be a situation where both husband and wife could not live together due to mental distress. In such a case, even the one who is causing the mental distress request to live together again as husband and wife, his or her request is denied. Before reaching a divorce decision, the court must consider their socio-educational status and their living environment. And the mental suffering should be the basis for the divorce. It doesn’t matter how many times one of the spouses has suffered from the hand of the other spouse. One time suffering becomes enough for filing a divorce. That is even if the husband has suffered the mental distress one time form the hand of his wife, he can file for the divorce. 

5. Adultery

Adultery was considered a crime in ancient times. Even in Nepal and other countries of the world, if the wife has sexual and physical relations with a person other than her husband, the husband can apply for divorce. In order for a divorce to take place, the wife must have had physical contact with another person on her own free will. the husband should be able to present the direct and circumstantial evidence against the wife in the court. The husband has every right to divorce his wife if he is capable of proving that his wife had an adulterous relationship with other men. 

Conclusion

In Nepal, there are few rights for the husband to file for a divorce. In such circumstances as we have mentioned above, he should be able to produce enough evidence in the court. If you are the genuine sufferer from the hands of your wife, then divorce Nepal can help you. We can guide you and assist you through the legal procedure s that you have to take and help you to avoid the more pain and emotional distress.