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Important things to know about divorce under hindu marriage act, 1955.

Marriage is one of the most important institutions in our culture. However, marriage as one of the most intricate partnerships is hard to maintain; especially in today’s times where people have easily started seeking divorces. This is where the need for HMA–Hindu Marriage Act helps to save marriages and families from falling apart.

The Hindu Marriage Act came into force in the year 1955, it helps to form uniformity of laws among the Hindus. Whenever needed, the law helps people to file for a Divorce Under Hindu Marriage Act, as per the sections permitted by the law.

Marriages are one of the most complex and highly emotionally and financially invested relationships in the world. The purpose of this act is to safeguard the rights of the Marriage as per the Hindu marriage act for both, the bride, and the groom.

Application of Hindu Marriage Act—

(1) This Act applies—

• (a) to any person who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj,
• (b) to any person who is a Buddhist, Jaina or Sikh by religion, and
• (c) to any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed.

The following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as the case may be:

• (a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion;
• (b) any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jaina or Sikh by religion and who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged; and
• (c) any person who is a convert or re-convert to the Hindu, Buddhist, Jaina or Sikh religion (THE HINDU MARRIAGE ACT, 1955, n.d.)

A brief history of the act

Divorce, as a legal option for separation, was identified and practiced in British India in the year 1869 which was majorly for the Christians seeking divorce lawfully. In India, there was no legal framework that could formalize a divorce or allow for it. Later in the year 1955, the Hindu Marriage Act was formed, to enable people to file for a Divorce Under Hindu Marriage Act.

Importance of understanding the act

The Hindu Marriage Act is a very important law that needs to be understood by each individual before they get into a formal marriage setup. If not in detail, a brief knowledge about the law and its importance can help both, the bride and the groom to understand the seriousness and the consequences if they take things lightly. Hindu Marriage Act helps to establish some fundamentals and safeguard the rights of the both bride and the groom. It includes:

As per the Hindu Marriage Act, a man is not permitted to have multiple wives at the same time. A man needs to legally divorce his first or present wife in order to marry another woman. In case he does not he is liable to get penalized as per the sections 494 and 495 of the Indian penal code, 1860.

Marriage age

The appropriate age and the minimum age to get married is set by the legislation of India. it is a minimum 21 years for boys and 18 years for girls. If they get married before their marriage will not have any legal standing and the married couple might be liable for legal obligations.

Restitution of conjugal rights

This means that when either party withdraws from the marriage without any reasonable or legal excuse, their partner can reach out to the court for restitution of conjugal rights. This helps to safeguard the marriage and preserve its sanctity.

Mental stability

A marriage is considered null and void if anyone one or both the people get married being mentally unfit. In such cases, the couple must get legal consent before getting married. These are stated in sections 5(ii)(a),(b), and (c) of the Hindu marriage act.

Marriage ceremonies

In case a couple gets married using the customary rituals and rights, their marriage is considered legal and they are lawfully bound. Hence, any child born out of this kind of marriage is a legal responsibility and an obligation of the father (the groom) as it is considered legal.

Relevant provisions related to Divorce under the Hindu Marriage Act,1955

Recently, the Supreme Court announced that using the power listed under the Article 142 (gives Supreme Court the power to practice complete justice) they can declare any marriage as dissolved or grant a divorce decree if it has broken down irretrievably. This helps people to bypass the waiting period and approach the Supreme Court directly. Now, let’s look at various sections under the Hindu Marriage Act:

Section 10 of The Hindu marriage act talks about the judicial separation and explains the process for lawfully getting a divorce; it includes filing the petition in the family court. The ground for separation and sections (if required) can be mentioned in the petition as per sections 13 (i) and (ii) (different parts). Read on to know about this section also.

Section 5 of the Hindu Marriage Act underlines the conditions for a Hindu Marriage. It is noteworthy to understand that the conditions are discretionary and not mandatory, hence it is usually said that “the marriage ‘may’ be solemnized under the following conditions’. These conditions include:

• (i) Neither the groom nor the bride is married at the time of marriage.
• (ii) None of them is incapable of giving consent to the marriage or is incapable mentally to get married. Also, none of them has any issues like recurrent attacks of insanity or epilepsy;
• (iii) Both are of or have crossed the marriage age as underlined in the legislation of India, that is 21 years for the boy and 18 years for the girl.
• (iv) none of them falls under the category of prohibited relationship unless the custom or usage governing each of them permits them for marriage.
• (v) The parties are not sapindas unless their religion or custom allows for it.

Section 13 is a detailed section that contains several conditions for getting a Divorce Under the Hindu Marriage Act. There are different grounds defined under this section that can be permitted in the courts of law for divorce. It is important to know that Clause 1-A, introduced in the HMA 1955 provides grounds for divorce by either party, however, Clause 2 of Section 13 provides grounds to seek divorce only for the females.

• Section 13-1 includes grounds like (i) conversion-conversation of a Hindu to any other faith like Parsis, Christianity, Islam, or any other that are not part of Hinduism (Buddhism, Jainism, Sikhism,) (ii) Insanity-any mental illness for an indefinite period or any mental disease that is unreasonable under the eye of law for any human being to live with. (iii) Veneral disease, (iv) Presumption of death.
• Section 13-2 include grounds like Bigamy, Rape, sodomy or bestiality, Decree or order of maintenance (this is subject to issue under section 18 of HMA, or section 125 of the Penal Code-any of these two can help the wife to file a divorce petition), the wife has been living separately, marriage happened before the age of 15 (can file divorce before reaching the age of 18 years), and both the partners have been living separately for at least one year.

Section 14 for Divorce Under the Hindu Marriage Act, 1955 prohibits the dissolution of any marriage if the marriage has not elapsed one year since the date of marriage. However, exceptions can be there provided the sections and enough proof are provided while filing the petition. Indian Marriage Act supports that all marriages must be given a fair chance of reconsideration and reconciliation considering the mental, emotional, and financial investments and damages it can cause to both the parties and is considered seriously if any child (or children) are born out of that marriage.

Section 15 of the Hindu Marriage Act defines the rights of both the parties for marrying again once the divorce decree is granted. The period is defined based on any new or existing appeal against the decree. Until any appeal exists and is not dismissed in the court of law, against any party, the rights of marrying lawfully stand null and void.

Related Books:

“ hindu law of marriage and divorce ” by sukdev singh, “ indian law of marriage & divorce ” by kumud desai.

Why does divorce happen in society?

Marriage, as an institution has evolved in a lot of forms over the past few decades. some of the major and popular reasons for getting a divorce are physical and mental abuse, dowry, rape, and more. However, before getting on the sociological perspectives, it is important to know that the grounds under section 13-2 for Divorce Under the Hindu Marriage Act, 1955 are often abused by females nowadays. This is where it becomes difficult for the courts also to decide the result of the case. Nevertheless, divorce is a mutual decision and is made based on multiple reasons where the majority of the cases are filed by females ( almost 69%* ) as compared to men. Below are a few major reasons that result in divorce:

• Independence of Indian women: Most of the women working in metro cities seek freedom of speech and independence and considering that the Indian traditional values and cultures may often interfere with this demand, this is one of the major reasons for divorce today.
• The communication gap in marriages: Men and women both are raised in India in different ways and open communication is often misinterpreted. This is the second major reason for divorce in India.
• Cheating and Affairs: Infidelity is one of the major reasons that make it difficult for both the husband and the wife to continue living together as it makes a lot of emotional and psychological damage, resulting in divorce.
• Problems with In-laws: It may sound cliched, but problems with in-laws are not a new reason for divorce. However, with changing times women have been more outspoken about it and hence this is also one of the common and most popular reasons for divorce.
• Procreative problems in marriage: This includes two types of situations; having different opinions on having a child; and not being able to conceive that could be because of the wife or the husband.

Grounds of Divorce

• Adultery: having an extramarital affair or sexual relationship with someone outside of marriage.
• Cruelty: this includes unjustifiable behavior that harms physically, mentally, or emotionally.
• Desertion: abandonment of the partner by the other one, without consent of any reasonable cause.
• Conversion to Another Religion: As stated above, conversion from Hindu to any other religion that is not part of the Hindu religion.
• Mental Disorder: any mental illness that makes it practically, and emotionally impossible for two people to stay together.
• Communicable Disease: This includes STDs or any other type of disease that can be fatal for the other partner.
• Renunciation of the World: This is when either partner has gone out of the marriage leaving all material things to pursue any religion or any kind of faith, and abandoned their family in all forms.
• Presumption of Death: When a partner goes away, gets lost, or is not found or has any record in any form and is not found for 7 years or more, he/she is presumed dead and the petitioner can seek divorce Under the Hindu Marriage Act, 1955.
• Unsound Mind or Suffering from Continuous Insanity: Any mental disorder that has an indefinite period of cure, or doesn’t have a treatment; in this case, the petitioner has all valid and medical reasons for not staying with the partner and can file for a divorce.

Types of Divorce Petitions

Divorce with mutual consent.

This is when both parties agree to mutual divorce; they get the memorandum of understanding prepared with their respective lawyers based on which the final petition is created and filed in the court.

Divorce without mutual consent

This is where either party is not ready for divorce and the divorce decree is obtained when the petitioner files the petition in court and the decree is granted solely by the family court as per all the facts presented before them.

Divorce Notice

This is an official and legal document that is sent by the petitioner to their partner which indicates their intention and also works as a final warning where they can think and disease wisely, before getting into any legal battle.

Procedures of Divorce (Detailed study under the Hindu Marriage Act 1955)

• Step #1: Petition on behalf of both parties i.e., both the partners (husband and wife) is submitted in the family court by their respective lawyers. This petition contains all details pertaining to the separation of both parties, their terms, and pieces of evidence required for the divorce.
• Step #2: A specified date is given to both parties when they have to be present before the family court along with their respective counsels for scrutinizing every aspect of the petition, family backgrounds, properties owned, the reason for divorce, kids custody (if applicable), ID proofs, and more.
• Step #3: Before this, the courts may also send the parties for mediation–to explore chances of reconciliation as Hindu marriage is regarded as sacred and is a bond of Indissoluble nature or permanent bond. However, if both parties deny for reconciliation, the proceedings take place as per the family court.
• Step #4: After examining carefully and checking pieces of evidence and statements of both parties, the family court judge has full authority to add or get conditions modified as per the law in case there is any issue related to alimony or maintenance amount & agreement, or if any child custody or visitation rights involved. It is not limited to these conditions though. After this, the first motion is passed and parties are given a time for 6 months to reconsider their decision and try to reconcile if they still have any chances. This period can be extended to 18 months from the date of the petition in the family court.
• Step #5: During the waiting period, if both parties try to reconcile and want to stay together, they can appeal for cancellation of the divorce through their counsel. However, if either party disagrees to reconcile, their divorce is proceeded as per the order, and in the second motion (as per the given date by the family court), the final statements of each party are recorded before the family court.
• Step #6: Once the statement is recorded, the full and final agreement between the parties is signed by the spouses so that there are no conflicts and differences thereafter for any alimony, maintenance, or child custody.
• Step #7: Once the court is satisfied by each side and there is no chance for reconciliation in the final motion also, the court grants the divorce decree and the Marriage gets void and invalid.

Maintenance and Alimony

• Understanding Maintenance and Alimony: Maintenance and alimony in simple terms is the financial support that a person has to give to their spouse as per the order of the court, irrespective of their divorce status.
• Maintenance During the Divorce Proceedings: Interim maintenance is a decided amount of money that is given by one partner to another for fulfilling their needs during the proceedings. This also helps to ensure that the receiving party is not short of funds and is not weaker while contesting the case.
• Maintenance After the Divorce Proceedings: This is a decided amount that one partner has to give to their separated partner once the divorce is granted. In case the payer fails to give the maintenance after the divorce, the receiving party can again go the court to get legal support.
• Factors Considered When Deciding Maintenance and Alimony: While the court decides on maintenance and alimony, a lot of factors are taken into consideration such as future expenses, lifestyle expenses, costs of education in case of children/child, inflation, and medical expenses, and more. However, the amount is decided as per the financial ability of both parties and enough proof of their financial standings. It need not be unrealistic. However, once decided, the giver is bound to provide financial maintenance and alimony as decided and cannot shy away from their responsibility.

Seeking divorce Under the Hindu Marriage Act, of 1955 is a crucial step for any couple. It should be a thoughtful decision as it can drain you emotionally, psychologically, and financially. Understanding different sections helps make a wiser decision.

It is important to hire a lawyer for the proper filing of your case; they are well informed and understand the difficulties and nuances of divorce proceedings and can foresee any challenges better than a layman.

It is easier to ask for divorce than to contest for it and finally get it. It can take anywhere from 1 year to 10 years or more, for any couple to get a divorce decree depending on the nature of the case and the agreement of both parties.

LexisNexis®  Store is a perfect destination for all additional resources, bare acts, books on divorce, and the Hindu Marriage Act of 1995. The technology used by LexisNexis® helps readers to record their research work, access any resource while on the go and save the history for easy re-research.

Explore new Criminal Laws in this blog: New Criminal Laws in India

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Analysis of grounds of divorce under the hindu marriage act, 1955.

The Author, Vikas Chaudhary is a 2nd year student of B.A.LL.B(Hons.) in Dr. Ram Manohar Lohiya National Law University, Lucknow.

Introduction

In Ancient India, separation was obscure to general Hindu law as marriage was viewed as an insoluble association of the couple. Manu announced that a spouse can't be delivered by her significant other either by deal or by deserting, suggesting that the conjugal tie can't be cut off in any case. Albeit Hindu law doesn't mull over separation yet it has been held that where it is perceived as a built-up custom it would have the power of law.

As per Kautilya's Arthashatra, marriage may be broken up by common assent on account of the unapproved type of marriage. Be that as it may, Manu doesn't put stock in discontinuance of marriage. Yet Manu is not persuaded that marriage is discontinued. He declares that "reciprocal loyalty may continue until death; this, in short, may be understood as the highest dharma of the husband and wife. The obligation of a woman continues even after her death. She should never have a second husband.

Ordinally, in Modern India Hindu Marriage Act, 1955, divorce was mainly based on fault theory. The theory of fault includes 9 grounds for divorce according to section 13(1), for both the husband and a wife to seek a divorce, and under section 13(2) two grounds of fault arise for women to seek divorce by themselves. They're also available other divorce ground such as Break down ground under section 13(1), viz clauses (viii) and (ix) which were renumbered as clause (i) and (ii) of section 13(1A), Divorce by mutual consent under section 13-B, and customary divorce and divorce under a special law.

However, divorce is different from judicial separation, in divorce all mutual obligation and rights of husband and wife cease except concerning sec.25 (maintenance and alimony) and sec.26 (custody, child education). On other hands, judicial separation merely suspends marital rights and obligation during the period of subsistence of the decree..

Concept Of Divorce

As we know that in ancient India there no such type of concept exists. Manu announced that a spouse can't be delivered by her significant other either by deal or by deserting, suggesting that the conjugal tie can't be cut off in any case.but in modern India concept of divorce exist, Divorce put the marriage to end, It ceases all the mutual obligation of husband and wife, they are free to go there on way. This leads to end all bonds between them except concerning section 25 (maintenance and alimony) and section 26 (custody, maintenance, and education of children). There is available much ground on which husband and wife could take divorce.

Grounds of Divorce

Under the Hindu Marriage Act,1955 there exists following grounds of divorce such as:-

• Fault Ground (section 13(1))
• Breakdown Ground (section 13(1A)(i), 13(1A)(ii))
• Divorce By Mutual Consent (section 13-B)
• Customary Divorce (section 29(2))

Fault Ground

Under the Hindu Marriage Act 1955, section 13(1), lays down nine fault ground of divorce. Some of there are Adultery, Desertion, Cruelty, Insanity, Leporacy, Verenal Disease, while others such as Conversion, Or Renunciation of words are typically Hindu grounds.

In explanation to sub-section (1) of Section 13, Hindu Marriage Act, 1955, Parliament has explained desertion: “ The expression ‘desertion’ means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the willful neglect of the petitioner by the other party to marriage, and its grammatical variations and cognate expressions shall be construed accordingly” [1] . In other word Desertion means permanent leave or forsaking of one spouse by the other without any sensible reason without the consent of the other.

For the offence of desertion so far as deserting spouse is concerned, two essential conditions must be there

• the reality of the split and
• the desire to finally put an end to cohabitation (animus deserendi).

Similarly, two elements are essential so far as the deserted spouse is concerned:

• the lack of consent, and
• the lack of a valid cause of action for the partner leaving the matrimonial home to render the required purpose referred to above.

In Savitri Pandey v. Prem Chand Pandey [2] court held that “ there can be no desertion without previous cohabitation by the parties”

In Case Bipin Chander Jaisinghbhai Shah vs Prabhawati [3] court held that “The offense of desertion is a path of behavior which exists independently of its duration, however as a ground for divorce it needs to exist for a duration of as a minimum 3 years at once previous the presentation of the petition or, in which the offense seems as a cross-charge, of the answer. Desertion as a ground of divorce differs from the statutory grounds of adultery and cruelty in that the offense founding the purpose of motion of desertion isn't always complete, however is inchoate, till the healthy is constituted. Desertion is persevering with the offense ”

Before 1976, Cruelty was not ground for divorce. It was ground for judicial separation. By the Amendament Act, Cruelty is made a ground for divorce. Oxford Dictionary defines The word “cruelty” has not been outlined and it's been utilized with respect to human conduct or human behavior. it's the conduct with respect to or in respect of marital status duties and obligations. it's a course of conduct and one that is adversely moving the opposite. The cruelty is also mental or physical, intentional, or unintentional [4] .

In Savitri Pandey vs Prem Chandra Pandey [5] court held that Cruelty has not been outlined underneath the Act however in respect to marital matters it's contemplated as the conduct of such sort that endangers the living of the petitioner with the respondent. Cruelty is an act that is dangerous to life, limb, or health. Cruelty for the aim of the Act suggests that wherever one spouse equivalent has therefore treated the opposite and manifested such feelings towards her or him on have inflicted bodily injury, or to own caused cheap apprehension of bodily injury, suffering, or to own bruised health. Cruelty could also be physical or mental. Mental cruelty is that the conduct of other spouse equivalents that causes mental suffering or worry about the marital life of the opposite. Cruelty "therefore postulates the petitioner's approach with such cruelty as to trigger an accessible apprehension that it may be detrimental or harmful to him .

In Smt. Nirmala Manohar Jagesha vs Manohar Shivram Jagesha [6] Court held that “case for divorce, false, baseless, scandalous, malicious and unproven allegations made in the written statement may amount to cruelty to the other party and that party would be entitled to get a decree of divorce on that ground”.

In Gurbux Singh vs Harminder Kaur [7] court held that Simple minor aggravations, squabbles, normal wear, and tear of married life which occurs in everyday life in all families would not be satisfactory for an award of separation on the ground of cruelty.

Reydon defines Adultery as “consensual sexual intercourse between a married person and a person of the opposite sex, not the other spouse, during the subsistence of marriage”.

In the case of a divorce petition, it is not appropriate, or sufficient, to show that the correspondent had information or reason to believe that the respondent was the petitioner's wife or husband. If the respondent had a partnership with the complete understand exactly-how co-respondent that he or she wasn't a wife or husband then that was appropriate.

In Subbaramma v. Saraswati Court [8] held that one single act of adultery is enough for divorce or judicial separation. In the same case court also held that “the unwritten taboos and rules of social morality in this country and particularly in village areas must necessarily be taken into account. If an unknown person is found alone with a young woman after midnight, in her apartment, in an actual physical juxtaposition, unless an excuse is given which is consistent with an innocent interpretation, the only conclusion that the Court of Justice can draw must be that the two have committed an act of adultery together”.

So we can conclude that in contest of Indian law actual penetration is not required for act of adultery.

Under The Marriage Laws (Amendment) Act, 1976, Section 13(iii) petitioner may get a decree of divorce or judicial separation if the respondent has been experiencing consistently or irregularly mental turmoil of such a sort and so much that the petitioner can't sensibly be required to live with the respondent.

In Ram Narayan v. Rameshwari [9] , Supreme Court held that in schizophrenic mental disorder, the petitioner should prove not merely the said mental disorder, but also establish that account the petitioner could not reasonably be expected to live with the respondent.

In Smt. Alka Sharma v. Abhinesh Chandra Sharma [10] , t was discovered that the spouse was so cold and sub-zero and apprehensive on the first evening of marriage as not to have the option to coordinate in a sexual act. She was discovered incapable to deal with homegrown machines. She fizzled to clarify the direction of peeing within the sight of all relatives. The court held that she was experiencing schizophrenia, and the spouse was held to be entitled to the nullity of marriage.

Section (1)(iv) in the Hindu Marriage Act, 1955, Leprosy is both ground for divorce and judicial separation.

But for divorce under Section (1)(iv) in Hindu Marriage Act, 1955, Leprosy must be in the form of

• Virulent and

a mild type of leprosy which is capable of treatment is neither ground for divorce nor for judicial separation [11] .

• Venereal Disease

Section 13(V) of the Hindu Marriage Act, 1955 provides ground for divorce against communicable Venereal Disease.

In Mr. X v. Hospital Z [12] Supreme court held that on the ground of venereal disease Either husband or wife can get a divorce, and a person who has suffered from the disease can not be said to have any right to marry even before marriage, as long as he is not completely cured of the disease.

 In Sm. Mita Gupta vs Prabir Kumar Gupta [13] court held that Venereal disease is a cause of divorce, but the partner may be denied relief even though the other partner suffers as much if the former is responsible for the contagion

Under the Hindu Marriage Act, Section (13)(1) clause (ii) divorce maybe obtain if the respondent converted from Hindu to other Religion and ceased to be a Hindu. Under the clause two conditions must be satisfied:

• Respondent has ceased to be a Hindu, and
• He has converted to another religion

Ceased to be Hindu means a person got converted to a non-Hindu faith such as Parsis, Islam, Christianity, or Zoroastrianism. A person not ceased to be Hindu if he converted into Jain, Buddhism, Sikhism because Sikh, Jain, Buddhist by religion is a Hindu.

In Teesta Chattoraj vs Union Of India   [14] court held that Conversion to another religion is a ground for divorce, but a spouse may be denied divorce even if the other spouse has embraced some other religion if the former goaded the latter to such conversion.

• Renunciation of World

Renounce the world" could imply "to withdraw from worldly pursuits as a way to lead a non-secular life." Reference is made to section 13(1)(vi) of the Hindu Marriage Act. The word "renouncing" means "making a formal resignation of a few rights or, in particular, believing in one's position as successor or trustee.".

To obtain a divorce under this clause two conditions must be satisfied:

• The respondent must have renounced the world, and
• He must have entered some other religious order

In Sital Das v. Sant Ram [15] it was held that someone is stated to have entered in a religious order whilst he undergoes a few ceremonies and rites prescribed via the faith. Now there are some other matters to observe here. For example, if one man or woman has entered into a religious order but comes home day by day and cohabits then it can not be taken as a floor for divorce because he has no longer renounced the world.

• Presumption of Death

Under the Indian Evidence Act, 1872, a person is presumed to death if he/she has no longer been heard of as being alive for a period of at least seven years. On this ground, the petitioner may obtain a divorce. But in ancient Indian Hindu Law, a presumption of death isn’t like presumption under modern law, there should lapse of twelve years to be presumed a person dies. This presumption underneath the availability of regulation isn't inflexible and death might also even be presumed before the lapse of 7 years from proof of special instances.

Irretrievable Breakdown Ground

Under Hindu Marriage Act 1955, section 13(1A) Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground

• that there has been no resumption of cohabitation as between the parties to the marriage for a period of 8 [one year] or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or
• that there has been no restitution of conjugal rights as between the parties to the marriage for a period of 8 [one year] or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.

In K. Srinivas Rao v. D.A. Deepa [16] court held that the irretrievable breakdown of a marriage is not a basis for divorce under the Hindu Marriage Act of 1955. However, where marriage is beyond repair due to the animosity induced by the actions of the husband or the wife or both, the courts have often treated the irretrievable dissolution of marriage as a rather severe situation, inter alia, causing marital separation. A marriage that is dissolved for all purposes can not be restored by the decision of the court if the parties are not able to do so.

In Vishnu Dutt Sharma vs Manju Sharma [17] court held that on bare reading section13, we have not found that legislature provides divorce on the ground of irretrievable breakdown of a marriage. However, in some cases, this court dissolves the marriage on the ground of irretrievable breakdown. In our opinion, this case should not be treated as a precedent.   

Divorce by Mutual Consent

Under Hindu Marriage act, sub-section (1) of section 13B of the Act required that the petition for divorce via mutual consent need to be provided before the court jointly among the events and that there had been 3 other requirements of sub-section (1) specifically

• they have been residing separately for a period of 365 days,
• they have not been capable of live together and
• they've together agreed that the marriage has to be dissolved [18]

Under Hindu Marriage Act, Section 13-B, it might be clear that both the parties are able to document a joint petition for divorce by means of mutual consent, provided they were living separately for a period of 365 days. moreover, it's far provided that at the motion made by means of each the events not earlier than 6 months after the date of presentation of the stated petition and no longer later than 18 months of the stated date, the court on being satisfied after hearing the events and after making such an inquiry as it thinks suit, pass a decree of divorce dissolving the wedding by way of mutual consent.

In Smt. Jayashree Ramesh Londhe vs Ramesh Bhikaji Londhe [19] court held that either party can withdraw the petition after thinking over the matter about divorce through mutual consent and that in this way a party can withdraw the earlier consent though not obtained by using fraud, undue influence, and coercion.

In Manish Goel v. Rohini Goel [20] court held that this court is competent to waive of the statutory period of six months in the exercise of its jurisdiction under Article 142 of the Constitution. the said statutory duration of six months for filing the second one petition under section 13-B(2) of the Act has been prescribed for offering an opportunity to events to reconcile and withdraw the petition for dissolution of marriage.

Customary Divorce

It is a fact that divorce was not known to the general Hindu rule, but however, in some cultures, divorce was accepted by custom and the courts followed the custom where it was not contrary to public policy. The scheme and the purpose of this Act are not to circumvent any of those customs which have been recognised as having divorce and effect by the saving found in this chapter. Under any other situation, it is not mandatory for the spouses to come before the Court to seek divorce on the grounds recognised by custom. [21]

Wife Special Ground of Divorce

Husband having more than one wife living

Under clause (i) of sub-clause (2) of section 13 of the Hindu Marriage Act, The wife was entitled to file a petition dissolving his marriage on the ground that at the time of the ceremony of a marriage between the appellency and the appellant the first wife of the appellant who was married to the appellant before the commencement of the Act was alive.

In Leela v. Anant Singh [22] court held that The wife of polygamous marriage can not be deprived of her right of divorce on the ground that, prior to the commencement of the act, she entered into a compromise with her husband to continue living with her; nor can the husband plea that her conduct or disability is a bar to her claim of divorce.

Rape, Sodomy or Bestiality

Under clause (ii) of sub-clause (2) of section 13 of the Hindu Marriage Act, the wife is entitled to divorce on the ground of rape, sodomy, or bestiality against her husband.

A man is guilty of rape if he induces an unwilling woman to participate in sexual intercourse, i.e. unwilling or unfiltered, or when his consent is gained by placing her in the fear of death or her consent, or by falsely believing that she is his wives when they are not, or if they are less than twelve years old. However, one can not be accused of raping his own wife unless she is less than 15 years old.

Sodomy or bestiality happens when one has a carnal relationship with another man, woman, or animal outside the order of nature. The matrimonial crime of sodomy under the scope of the clause would be if the man were to perform sodomy on his wife without their consent.

Non-resumption of cohabitation after a decree of maintenance

Under clause (ii) of sub-clause (2) of section 13 of the Hindu Marriage Act provided the woman with an alternative basis for a divorce. The purpose of incorporating the aforementioned provision was to grant the wife the right to pursue a divorce if her husband had ignored her or not sustained her after a maintenance order was passed in her favour.

Repudiation of Mrriage

Wife/applicant lodged an application for divorce from the respondent-husband on the basis that she was under 15 years of age when she was married, but that she had rejected her marriage before she was 18 years of age, and that she was thus given a divorce order under Section 13(2)(iv) of the Hindu Marriage Act, 1955.

Difference between Divorce and Judicial Separation

Under Section 13, Hindu Marriage Act,1955, There are available much grounds of divorce on which both husband and wife can file a divorce petition. Under sub-clause (1) of section 13 of the Act, there are available 9 fault ground on which divorce can be taken. These grounds are such as desertion, adultery, cruelty, venereal disease, leprosy, insanity, and conversion. Under sub-clause (2) of section 13 of the Act, there are available four ground on which the wife alone can file a divorce petition. These grounds are such as husband having more than one wife living, rape or sodomy or bestiality, non-resumption of cohabitation after a decree of maintenance, repudiation of marriage. Under sub-clause (1A) of section 13 of the Act, Irretrievable Breakdown Ground also available for both husband and wife. Under sub-clause (2) of section 29 of the Act, the husband and wife can take divorce based on a custom prevailing in society. Divorce may be initiated at the end of 1 year of marriage. Two judgment procedures are required for divorce. One is when the petition is filed and the second is after a post of 6 months.

References:

[1] Paras Diwan, MODERN HINDU LAW, 24th ed. 2019, p. 134

[2] 2002 SC 591

[3] 1957 SC 176

[4] Vidhya Viswanathan vs Kartik Balakrishnan (2014) 15 SCC 21.

[5] 2002 SC 591

[6] AIR 1991 Bom 259

[7] (2010) 14 SCC 301

[8] (1966) 2 MLJ 263

[9] 1988 AIR 2260

[10] 1991 (0) MPLJ 625

[11] Paras Diwan, MODERN HINDU LAW, 24th ed. 2019, p. 169

[12] AIR 2003 SC 664

[13] AIR 1989 Cal 248

[14] 188(2012) DLT 507

[15] 1954 SC 606

[16] (2013) 5 SCC 226

[17] (2009) 6 SCC 379)

[18] Smt. Sureshta Devi vs Om Prakash, 1991 SCR (1) 274

[19] AIR 1984 Bom 302

[20] (2010) 4 SCC 393

[21] P. Mariammal vs Padmanabhan, AIR 2001 Mad 350

[22] AIR 1963 Raj 178

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13 Marriage and Divorce under Hindu law

Learning Aims:

After this module, participants should be able to:

• Understand the difference between Personal Laws and Secular Laws
• Contextualize The Hindu Marriage Act 1955 within its legislative and political history
• Analyse the body of the Hindu Law that is applicable to the marriage and divorce of Hindus
• Understand the elements of a valid Hindu marriage
• Recognize the difference between void and voidable Hindu marriages
• Recognize the grounds for divorce under Hindu Law
• Understand the difference between divorce and judicial separation

Personal Laws and Secular Laws:

India is a diverse, pluralistic country and home to people of different faiths. The Constitution of India recognizes the right to one’s religion and right to preserve one’s culture as some of the fundamental rights of Indian citizens. India’s plurality and diversity have manifested itself in its laws as well. Marriages and divorce in India, as well as other practises such as inheritance, are governed either by personal religious laws or by secular laws.

Personal religious laws may be defined as the body of laws which apply to a person solely on the ground of that person belonging to a particular religion. Secular laws are basically legislations enacted by the Parliament on marriage and divorce which are not specific to any religion and can be made applicable to a citizen irrespective of her/his religion.

Personal religious laws apply to persons by default and may be codified or uncodified. Most of Hindu Personal Laws are codified, and the law governing marriages and divorces for Hindus is The Hindu Marriage Act 1955.

Secular legislations do not apply by default and to be governed by secular law, persons have to opt for it at the time of their marriage by registering their marriage under the equivalent secular law. For example, Hindus can opt out of the personal law of The Hindu Marriage Act 1955 by registering their marriage under the secular law of The Special Marriages Act 1954. Secular laws are of course of particular importance for couples who choose to marry when the individuals belong to different faiths.

Remember that personal laws apply based on a person’s religion and secular laws apply based on a citizen’s choice to opt out of personal laws. 

The Legislative History of The Hindu Marriage Act 1955:

Dr B. R. Ambedkar, who had a dominant role in drafting the Indian Constitution, became the first Law Minister of India with Jawaharlal Nehru as the first Prime Minister of India. Under the Nehru led government, a committee was formed with Dr B. R. Ambedkar as its chairperson and was tasked with the responsibility to codify Hindu personal laws. This committee formulated and drafted legislative bills which were called “The Hindu Code Bill” that aimed at codifying Hindu personal laws governing matters of marriage, divorce, adoption, maintenance and custody.

The Hindu Code Bill received great opposition from the then President of India, Dr Rajendra Prasad and several congressmen. Many people saw The Hindu Code Bill as an intrusion into their religion. Some radical Hindus thought the Hindu Code Bill would drastically reform Hindu Personal Laws. While some Hindu Dalits did not consider themselves as Hindus. Due the impending elections, the Nehru Government decided to defer their agenda for The Hindu Code Bill. Due to such opposition and deferment, Dr B. R. Ambedkar resigned in protest in 1951, and The Hindu Code Bill lapsed due to re-elections.

In 1952, the then Law Minister C. C. Biswas moved the Parliament for passing of The Hindu Code Bill. The members of the Parliament realized that it was an impossible task to pass and enact The Hindu Code Bill as a whole and thus segregated it into three bills: (1) The Hindu Marriage and Divorce Bill, (2) The Hindu Adoption and Maintenance Bill, (3) The Hindu Succession Bill.

The Hindu Code Bill was finally enacted in 1955 – 1956. The Hindu Marriage Act 1955, that earlier formed part of The Hindu Code Bill, was enacted to amend and codify marriage and divorce laws between Hindus, thus hoping to make them consistent across the country.

Applicability and Overriding effect of The Hindu Marriage Act 1955:

As mentioned earlier The Hindu Marriage Act 1955, being a codification of Hindu personal law, was made applicable and is applicable, not to all citizens of India but only to Hindu citizens. The applicability of The Hindu Marriage Act 1955 is wider than it appears as it also applies to all Indic religions including Sikhs, Jains and Buddhists. Section 2 of The Hindu Marriage Act 1955 explicitly makes The Hindu Marriage Act 1955 applicable to Sikhs, Jains and Buddhists.

Though there were objections raised in Parliament against such wide applicability of The Hindu Marriage Act 1955, the law when passed continued to carry Section 2. Till date, many authors and citizens from the communities of Sikhs, Jains and Buddhists criticise Section 2 of The Hindu Marriage Act 1955 for its applicability to minority religions and see this law as an intrusion into the religious affairs of minority religions.

It is important to note that The Hindu Marriage Act 1955 is also applicable to a person who has converted or re-converted to be a Hindu, Buddhist, Jain or Sikh. The Hindu Marriage Act 1955 is also applicable to legitimate and illegitimate children, where either both or one of the parents are Hindus, Buddhists, Jains or Sikhs by religion, or one of whose parents is a Hindu, Buddhist Jain or Sikh by religion and who is brought up as a member of tribe, community, group or family to which such parents belongs or belonged.

By virtue of Section 4 of The Hindu Marriage Act 1955, this codified piece of Hindu personal law overrides any un-codified Hindu personal laws that run contrary to its codified provisions. The Hindu Marriage Act 1955 forms the sole source of Hindu personal law on marriages and divorces.

Marriage under The Hindu Marriage Act 1955: Conditions of a valid marriage, void and voidable marriages, registration of marriages

C ONDITIONS OF A VALID MARRIAGE

Section 5 of The Hindu Marriage Act 1955 specifies the conditions that must be met for a valid Hindu marriage.

A marriage between two Hindus is considered as valid if the following conditions are met:

• Neither party has a spouse living at the time of the marriage (bigamy is prohibited and under Section 17 of The Hindu Marriage Act 1955; bigamy is a punishable under provisions of Sections 494 and 495 of the Indian Penal Code 1860),
• Is incapable of giving a valid consent to it in consequence of unsoundness of mind; or
• Though capable of giving a valid consent has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or
• Has been subject to recurrent attacks of insanity or epilepsy;
• The bridegroom has completed the age of twenty-one years and the bride the age of eighteen years at the time of the marriage,
• The parties are not within the degrees of prohibited relationship (e.g., a close blood relation) unless the custom or usage governing each of them permits of a marriage between the two,
• The parties are not sapindas of each other unless the custom or usage governing each of them permits of a marriage between the two.

Section 7 of The Hindu Marriage Act 1955 states that a Hindu marriage is solemnized when undertaken in accordance with the customary rites and ceremonies of either party thereto. The majority of the Hindu marriages require seven steps by the couple jointly around a sacred fire (the saptapadi ) for the marriage to be solemnized.

Under Section 18 of The Hindu Marriage Act 1955 failure to meet certain conditions to marriage prescribed under Section 5 of The Hindu Marriage Act, 1955 may lead to punishment in the form of simple imprisonment which may extend to one month, or with fine which may extend to one thousand rupees, or with both.

V OID AND V OIDABLE MARRIAGES

If conditions mentioned under Section 5 are not met, the marriage is either void or voidable under Sections 11, 12 and 17 of The Hindu Marriage Act 1955. A void marriage is a marriage that has no legal status from the commencement, and a voidable marriage is a marriage that has a legal status until the time the court of law passes a decree of annulment.

If conditions (1), (4) and (5) as listed above are not met, then the marriage will be void.  If condition (2) is not met the marriage will be voidable. Further, if the bride is pregnant with a child of another man or the marriage is not consummated due to impotency, then the marriage is voidable.

R EGISTRATION OF MARRIAGES

Section 8 The Hindu Marriage Act 1955 provides for registration of marriages but such registration is not mandatory, and failure to register does not make the marriage invalid.

Registration of marriage leads to an entry of the particulars of the marriage in the Hindu Marriage Register maintained by State authorities. This registration serves as evidence of marriage. Some State Legislatures have amended Section 8 The Hindu Marriage Act 1955 and made rules for registration.

The Supreme Court of India and the High Courts have recommended that registration of marriages shall be made compulsory.

Divorce under The Hindu Marriage Act 1955: Who can divorce; when and where can they file for divorce; grounds for divorce; and remarriage

W HO CAN DIVORCE , AND WHEN AND WHERE CAN THEY FILE FOR DIVORCE

The Hindu Marriage Act 1955 entitles both the husband and the wife to file a petition before the courts of law for divorce. A divorce petition can only be filed in a court of law after one year since the date of the marriage has elapsed. The reason behind this is that marriages in Hinduism are considered to sacred, and it is believed that the couple should attempt to make the marriage work. In exceptional circumstances, courts of law may admit a petition before the completion of one year of marriage.

A petition for divorce shall be presented to the District Court within the local limits of whose ordinary original civil jurisdiction:

• The marriage was solemnized, or
• The respondent, at the time of the presentation of the petition, resides, or
• The couple to the marriage last resided together, or
• The petitioner is residing at the time of the presentation of the petition, in a case where the respondent is at that time, residing outside the territories to which The Hindu Marriage Act 1955 extends, or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he were alive.

Further, Section 23 of The Hindu Marriage Act 1955 mandates the courts of law to, before granting any relief under this Act, endeavour to bring about a reconciliation between the parties and refer the matter for reconciliation to be undertaken within a reasonable stipulated time period. However, this duty of the courts of law is not applicable if relief is sought on any of the grounds specified in Section 13(1) clause (ii-vii). These grounds include: conversion into another religion, unsound mind, husband missing for 7 years, incurable disease, and renouncement of the world.

G ROUNDS FOR DIVORCE

A Hindu may petition for divorce on the following grounds as prescribed under Section 13 clauses (1), (1A) and (2) of The Hindu Marriage Act 1955:

• Adultery – the husband/wife has had voluntary sexual intercourse with another man or another
• Cruelty – the husband/wife, has suffered from physically or mentally abuse.
• Desertion – the husband/wife, has been deserted for a continuous period of not less than two
• Conversion to another religion – the husband/wife, has ceased to be a Hindu and has adopted another religion.
• Unsound mind – the husband/wife has been diagnosed since the marriage ceremony as being unsound of mind to such an extent that normal married life is not possible.
• Disease – the husband/wife, has been diagnosed with an incurable form of leprosy or has the venereal disease in a communicable form.
• Presumption of death – the husband/wife, has not been seen alive for seven years or more.
• No resumption of cohabitation between the husband/wife after a decree of judicial separation for a period of at least one year.

Further, a wife may seek a divorce also under Section 13 (2) on the grounds that:

• Another wife of the husband was alive at the time of the marriage ceremony.
• The husband has been convicted of rape, sodomy or bestiality .
• Co-habitation has not been resumed within a year after an order for maintenance under Section 125 of the Criminal Procedure Code 1973 or alternatively, under the Hindu Adoptions & Maintenance Act 1956.
• The wife was not a major when she married and wishes to repudiate the marriage before attaining the age of 18 years.

Pursuant to Section 13-B of The Hindu Marriage Act 1955, both husband and wife together can claim divorce on grounds of mutual consent.

The Supreme Court in 2006 case recommended to the Union of India to amend The Hindu Marriage Act 1955 to incorporate another ground for divorce in the following words:

“Before we part with this case, on the consideration of the totality of facts, this Court would like to recommend the Union of India to seriously consider bringing an amendment to the Hindu Marriage Act, 1955 to incorporate irretrievable breakdown of marriage as a ground for the grant of divorce. A copy of this judgment is sent to the Secretary, Ministry of Law & Justice, Department of Legal Affairs, Government of India for taking appropriate steps.”

The Law Commission of India has explained “irretrievable breakdown of marriage” as follows: “a ground which the Court can examine and if the Court, on the facts of the case, comes to the conclusion that the marriage cannot be repaired/saved, divorce can be granted. The grant of divorce is not dependent on the volition of the parties but on the Court coming to a conclusion, on the facts pleaded, that the marriage has irretrievably broken down.”

Irretrievable breakdown of marriage is a recognized ground for divorce in countries like New Zealand and England.

Despite there being no law on irretrievable breakdown of marriage, in another 2006 case, the Supreme Court of India while granting a divorce ruled as follows:

“We are fully convinced that the marriage between the parties has irretrievably broken down because of incompatibility of temperament. In fact, there has been the total disappearance of emotional substratum in the marriage. The matrimonial bond between the parties beyond repair and that the marriage has been wrecked beyond the hope of salvage and therefore public interest and interest of all concerned lies in the of the recognition of the fact and to declare defunct de jure what is already defunct de facto.”

Even as far back as in 1996, the Supreme Court of India in the absence of a law on irretrievable breakdown of marriage, ruled that: “…the marriage between the appellant and the respondent has irretrievably broken down and that there was no possibility of reconciliation, we in the exercise of our powers under Art. 142 of the Constitution of India hereby direct that the marriage between the appellant and the respondent shall stand dissolved by a decree of divorce.”

In 2013, A Marriage Laws (Amendment) Bill was introduced and passed in the Rajya Sabha to amend the Hindu Marriage Act 1955 and incorporate irretrievable breakdown of marriage as a ground for seeking a divorce. This Bill was not taken up by the Lok Sabha and thus did not become law.

R EMARRIAGE AFTER D IVORCE

A Hindu who has been divorced can marry again once the divorce has been finalized, that is once the period of filing an appeal against the divorce has expired or the appeal having been filed has been dismissed.

Judicial Separation:

The courts of law can using their discretion, treat a petition for divorce as one for judicial separation. Judicial Separation means that a couple is living separately pursuant to a court order being passed but are still married. Such a court order can be procured by the husband/wife by filing a petition praying for a decree for judicial separation on any of the grounds specified in Section 13(1) and (2).

Appeal and Enforcement of Court decrees relating to marriage, divorce or judicial separation:

Under Section 28 of The Hindu Marriage Act 1955, court decrees granting or refusing divorce are appealable by both husband and wife, whoever is unsatisfied with the court decree within 30 days from the date of the court decree. It is important to note that a court decree is not automatically enforceable. Pursuant to Section 28A of The Hindu Marriage Act 1955, all court decrees and orders in marriage or divorce proceedings, shall be enforced in the like manner as the court decrees and orders made in the exercise of its original civil jurisdiction for the time being enforced.

Conclusion:

So as the position stands today, Hindu Personal Laws are in codified form. There exists enacted legislations on matters of Hindu marriage, divorce, adoption, succession, and maintenance. The advantage of having Hindu Personal Laws codified is that chances of misuse of Hindu Personal Laws are relatively lower as the codified legislations are explicit and clear in language. Also, divorce is a court driven process, prevents divorce being given on grounds other than those that are reasonable.

• A.M Bhattacharjee, Matrimonial Laws and the Constitution, 2ed., Eastern Law House (2017)
• Law Commission of India, 59th Report on The Hindu Marriage Act, 1995
• Law Commission of India, 71st Report on The Hindu Marriage Act, 1955
• Law Commission of India, 217th Report on Irretrievable Breakdown of Marriage Make Registration of Marriage & Divorce a Must: The Law Commission, The Hindu
• Aim Should Be Uniformity of Rights, Not a Uniform Law: Flavia Agnes on a UCC, The Wire
• For more on the Hindu Code Bill see ABP News Pradhanmantri – Episode 5: Hindu Code Bill

Divorce Under Hindu Law

By Simran, CNLU, Patna

Editor’s Note: Divorce means the dissolution of marriage by a competent court. This paper discusses divorce under Hindu Law. It analyses how the concept was non-existent under ancient law due to the sacramental nature of marriage but was introduced under the Hindu Marriage Act, 1955. It studies the different theories of divorce- fault, mutual consent, breakdown; and also describes the grounds for divorce under this Act, with focus on adultery and cruelty, and how these grounds were modified through amendments. It briefly dwells on the grounds that are only available to a wife. The paper addresses the pros and cons of the addition of irretrievable breakdown as a ground for divorce amidst the growing debate about its merits.

Introduction

Earlier divorce was unknown to general Hindu law as marriage was regarded as an indissoluble union of the husband and wife. Manu declared that a wife cannot be released by her husband either by sale or by abandonment, implying that the marital tie cannot be severed in any way. Although Hindu law does not contemplate divorce yet it has been held that where it is recognized as an established custom it would have the force of law.

According to Kautilya’s Arthashatra, marriage might be dissolved by mutual consent in the case of the unapproved form of marriage. But, Manu does not believe in the discontinuance of marriage. He declares” let mutual fidelity continue till death; this, in brief, may be understood to be the highest dharma of the husband and wife [i] .”

However, this changed when divorce was introduced in the Hindu Marriage Act, 1955.

Theories of Divorce

There are basically three theories for divorce-fault theory, mutual consent theory & irretrievable breakdown of marriage theory.

Under the Fault theory or the offences theory or the guilt theory, marriage can be dissolved only when either party to the marriage has committed a matrimonial offence. It is necessary to have a guilty and an innocent party, and the only innocent party can seek the remedy of divorce. However, the most striking feature and the drawback is that if both parties have been at fault, there is no remedy available.

Another theory of divorce is that of mutual consent . The underlying rationale is that since two persons can marry by their free will, they should also be allowed to move out of the relationship of their own free will. However, critics of this theory say that this approach will promote immorality as it will lead to hasty divorces and parties would dissolve their marriage even if there were slight incompatibility of temperament.

The third theory relates to the irretrievable breakdown of the marriage. The breakdown of marriage is defined as “such failure in the matrimonial relationships or such circumstances adverse to that relationship that no reasonable probability remains for the spouses again living together as husband & wife.” Such marriage should be dissolved with maximum fairness & minimum bitterness, distress & humiliation.

Some of the grounds available under the Hindu Marriage Act can be said to be under the theory of frustration by reason of specified circumstances. These include civil death, renouncement of the world etc. [ii]

Grounds for Divorce Under Hindu Marriage Act

It is conceded in all jurisdictions that public policy, good morals & the interests of society require that marital relationship should be surrounded with every safeguard and its severance be allowed only in the manner and for the cause specified by law. Divorce is not favored or encouraged and is permitted only for grave reasons.

In modern Hindu law, all the three theories of divorce are recognized & divorce can be obtained on the basis of any one of them. The Hindu Marriage Act, 1955 originally, based divorce on the fault theory, and enshrined nine fault grounds in Section 13(1) on which either the husband or wife could sue for divorce, and two fault grounds in Section 13(2) on which wife alone could seek the divorce.

In 1964, by an amendment, certain clauses of Section 13(1) were amended in the form of Section 13(1A), thus recognizing two grounds of the breakdown of the marriage. The 1976 amendment Act inserted two additional fault grounds of divorce for wife & a new section 13B for divorce by mutual consent.

The various grounds on which a decree of divorce can be obtained are as follows-

While adultery may not have been recognized as a criminal offence in all countries, the matrimonial offence of adultery or the fault ground of adultery is recognized in most. Even under the  Shastric  Hindu law, where divorce had not been recognized, adultery was condemned in the most unequivocal terms. There is no clear definition of the matrimonial offence of adultery.

In adultery there must be voluntary or consensual sexual intercourse between a married person and another, whether married or unmarried, of the opposite sex, not being the other’s spouse, during the subsistence of marriage. Thus, intercourse with the former or latter wife of a polygamous marriage is not adultery. But if the second marriage is void, then sexual intercourse with the second wife will amount to adultery.

Though initially a divorce could be granted only if such spouse was living in adultery, by the Marriage Laws Amendment Act, 1976, the present position under the Hindu Marriage Act is that it considers even the single act of adultery enough for the decree of divorce [iii] .

Since adultery is an offense against marriage, it is necessary to establish that at the time of the act of adultery the marriage was subsisting. Also, it follows that unless one willingly consents to the act, there can be no adultery. If the wife can establish that the co-respondent raped her, then the husband would not be entitled to a divorce.

In  Swapna Ghose  v.  Sadanand Ghose [iv] the wife found her husband and the adulteress to be lying in the same bed at night and further evidence of the neighbors that the husband was living with the adulteress as husband and wife is sufficient evidence of adultery. The fact of the matter is that direct proof of adultery is very rare.

The offence of adultery may be proved by:

• Circumstantial evidence
• Contracting venereal disease

The concept of cruelty is a changing concept. The modern concept of cruelty includes both mental and physical cruelty. Acts of cruelty are behavioral manifestations stimulated by different factors in the life of spouses, and their surroundings and therefore; each case has to be decided on the basis of its own set of facts. While physical cruelty is easy to determine, it is difficult to say what mental cruelty consists of. Perhaps, mental cruelty is lack of such conjugal kindness, which inflicts the pain of such a degree and duration that it adversely affects the health, mental or bodily, of the spouse on whom it is inflicted. In Pravin Mehta  v. Inderjeet Mehta , [v]   the court has defined mental cruelty as ‘the state of mind.’

Some Instances of Cruelty are as follows [vi] –

• false accusations of adultery or unchastity
• demand of dowry
• refusal to have marital intercourse/children
• birth of child
• drunkenness
• threat to commit suicide
• wife’s writing false complaints to employer of the husband
• incompatibility of temperament
• irretrievable breakdown of marriage

The following do not amount to cruelty-

• ordinary wear & tear of married life
• wife’s refusal to resign her job
• desertion per se
• outbursts of temper without rancor.

Desertion means the rejection by one party of all the obligations of marriage- the permanent forsaking or abandonment of one spouse by the other without any reasonable cause and without the consent of the other. It means a total repudiation of marital obligation.

The following 5 conditions must be present to constitute desertion; they must co-exist to present a ground for divorce:

• the factum of separation
• animus deserdendi (intention to desert)
• desertion without any reasonable cause
• desertion without consent of other party
• statutory period of two years must have run out before a petition is presented.

In Bipinchandra v. Prabhavati [vii] the Supreme Court held that where the respondent leaves the matrimonial home with an intention to desert, he will not be guilty of desertion if subsequently he shows an inclination to return & is prevented from doing so by the petitioner.

When the other party has ceased to be Hindu by conversion to any other religion for e.g. Islam, Christianity, Judaism, Zoroastrianism, a divorce can be granted.

Insanity as a ground of divorce has the following two requirements-

• i) The respondent has been incurably of unsound mind
• ii) The respondent has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

Contagiousness of leprosy and repulsive outward manifestations are responsible for creating psychology where man not only shuns the company of lepers but looks at them scornfully. Thus, it is provided as a ground for divorce. The onus of proving this is on the petitioner.

Venereal Disease

At present, it is a ground for divorce if it is communicable by nature­ irrespective of the period for which the respondent has suffered from it. The ground is made out if it is shown that the disease is in communicable form & it is not necessary that it should have been communicated to the petitioner (even if done innocently).

Renunciation

“Renunciation of the world” is a ground for divorce only under Hindu law, as the renunciation of the world is a typical Hindu notion. Modern codified Hindu law lays down that a spouse may seek divorce if the other party has renounced the world and has entered a holy order. A person who does this is considered as civilly dead. Such renunciation by entering into a religious order must be unequivocal & absolute.

Presumption Of Death

Under the Act, a person is presumed to be dead, if he/she has not been heard of as being alive for a period of at least seven years. The burden of proof that the whereabouts of the respondent is not known for the requisite period is on the petitioner under all the matrimonial laws. This is a presumption of universal acceptance as it aids proof in cases where it would be extremely difficult if not impossible to prove that fact [viii] . A decree of divorce granted under this clause is valid & effective even if it subsequently transpires that the respondent was, in fact, alive at the time when the decree was passed.

Wife’s Special Grounds For Divorce

Besides the grounds enumerated above, a wife has been provided four additional grounds of divorce under Section 13(2) of the Hindu Marriage Act, 1955. These are as follows-

Pre-Act Polygamous Marriage

This clause states the ground for divorce as, “That the husband has another wife from before the commencement of the Act, alive at the time of the solemnization of the marriage of the petitioner. For example, the case of Venkatame v. Pati l [ix] where a man had two wives, one of whom sued for divorce, and while the petition was pending, he divorced the second wife. He then averred that since he was left only with one wife, and the petition should be dismissed. The Court rejected the plea.

Such a ground is available if both the marriages are valid marriages & the other wife (2nd wife) should be present at the time of filing of the petition. However, today this ground is no more of practical importance.

Rape, Sodomy Or Bestiality

Under this clause, a divorce petition can be presented if the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality.

Non-Resumption Of Cohabitation After A Decree/Order Of Maintenance

If a wife has obtained an order of maintenance in proceedings under Section 125, Cr.P.C., 1973 or a decree under Section 18, Hindu Adoption & Maintenance Act, 1956 & cohabitation has not been resumed between parties after one year or upwards, then this is a valid ground for suing for divorce.

Repudiation Of Marriage

This provision provides a ground for divorce to the wife when the marriage was solemnized before she attained the age of fifteen years, and she has repudiated the marriage, but before the age of eighteen. Such repudiation may be express (written or spoken words) or may be implied from the conduct of the wife (left husband & refused to come back). Moreover, this right (added by the 1976 amendment) has only a retrospective effect i.e. it can be invoked irrespective of the fact that the marriage was solemnized before or after such amendment.

Irretrievable Breakdown Of Marriage

Irrespective of the three remedies available to parties that is: restitution of conjugal rights, judicial separation, and divorce, the judiciary in India is demanding irretrievable breakdown of marriage as a special ground for divorce, as sometimes courts face some difficulties in granting the decree of divorce due to some of the technical loopholes in the existing theories of divorce.

Both the Supreme Court and Law Committee consider the implementation of such a theory as a boon to parties who for one or the other reasons are unable to seek the decree of divorce. Therefore in the opinion of the Supreme Court and Law Commission of India, it is very essential to make it a special and separate ground mission that introduction of irretrievable breakdown of marriage, as a special ground will do any public good.

Under the Hindu Marriage Act, 1955 primarily there are three theories under which divorce is granted:

(i) Guilt theory or Fault theory,

(ii) Consent theory,

(iii) Supervening circumstances theory.

The Irretrievable breakdown theory of divorce is the fourth and the most controversial theory in legal jurisprudence, based on the principle that marriage is a union of two persons based on love affection and respect for each other. If any of these is hampered due to any reason and if the matrimonial relation between the spouses reaches to such an extent from where it becomes completely irreparable, that is a point where neither of the spouses can live peacefully with each other and acquire the benefits of a matrimonial relations, than it is better to dissolve the marriage as now there is no point of stretching such a dead relationship, which exist only in name and not in reality [x] .

The breakdown of the relationship is presumed de facto . The fact that parties to marriage are living separately for reasonably longer period of time (say two or three years), with any reasonable cause (like cruelty, adultery, desertion) or even without any reasonable cause (which shows the unwillingness of the parties or even of one of the party to live together) and all their attempts to reunite failed, it will be presumed by law that relationship is dead now.

Recently the Supreme Court Naveen Kohli v. Neelu Kohli [xi] has recommended an amendment to the Hindu Marriage Act, whereby either spouse can cite irretrievable breakdown of marriage as a reason to seek the divorce. Expressing the concern that divorce could not be granted in a number of cases where marriages were virtually dead due to the absence of the provision of irretrievable breakdown, the court strongly advocated incorporating this concept in the law in view of the change of circumstances.

The Court observed that public interest demands that the married status should, as far as possible, as long as possible and whenever possible, be maintained. However, where a marriage has been wrecked beyond any hope of being repaired, the public interest requires the recognition of the fact. The judgment notes that there is no acceptable way in which a spouse can be compelled to resume life with the consort and that situations causing misery should not be allowed to continue indefinitely as the law has a responsibility to adequately respond to the needs of the society. The profound reasoning is that in situations when there is absolutely no chance to live again jointly or when it is beyond repair, in such a case it would be futile to keep the marital tie alive. Here the ground of irretrievable breakdown is really needed. But it should not be oblivious that the ground, when introduced, needs to provide safeguards to ensure that no party is exploited.

The only merit of the theory as has been propounded by the jurists is that a marriage, which in practice is considered to be a sacramental institution, should be based on grounds on which a sound marriage is built- that is tolerance, adjustment and respecting each other. If any of the party to the marriage is not ready to live with the other party the relationship will not be a happy relationship. Stretching such a relationship will do no good, rather will develop hatred and frustration among the parties for each other. Therefore to protect the sanctity of marriage, to reduce the number of unhappy marriages and to prevent from getting wasted the precious years of the life of the spouses, it is necessary to dissolve such a marriage.

The Law Commission Of India in Chapter 4 of the 71st report has dealt in detail the demerits of the irretrievable breakdown theory. The two main oppositions discussed in the report are as follows:

(i) It will make divorce easy. It will allow the spouses or even to any one of the spouses to dissolve the marriage out of their own pleasure.

(ii) It will allow the guilty spouse to take advantage of his own fault by getting separated and dissolving the marriage.

Hindus consider marriage to be a sacred bond. Prior to the Hindu Marriage Act of 1955, there was no provision for divorce. The concept of getting divorced was too radical for the Indian society then. The wives were the silent victims of such a rigid system. However, the time has changed; situations have changed; the social ladder has turned. Now the law provides for a way to get out of an unpleasant marriage by seeking divorce in a court of law. The actual benefactors of such a provision are women who no longer have to silently endure the harassment or injustice caused to them by their husbands.

But the manner in which the judiciary is dealing with the subject of irretrievable break down of marriage, it is feared that it will completely pause the system of marriages. Every theory has its negative and positive traits. Their applicability differs from situation to situation. Therefore it is very essential that the lawmakers of our country should deal with the subject in a very cautious manner after considering in detail its future implications.

Formatted on March 21st, 2019.

REFERENCES:

[i] Agarwal, R.K, Hindu law ,Central law agency, Print 2014.

[ii] http://legaldesire.com/divorce-under-the-hindu-marriage-act-1955-the-law-decodified/ .

[iii] Vira Reddy  v.  Kistamma , 1969 Mad. 235;  Subbarma  v.  Saraswathi , (1966) 2 MLJ 263.

[iv] AIR 1979 Cal 1.

[v] AIR 2002 SC 2528.

[vi] http://www.legalserviceindia.com/articles/irrbdom.htm.

[vii] AIR 1957 SC 176.

[viii] http://www.indg.in/social-sector/socialwelfare-faqs/13._divorce.pdf .

[ix] AIR 1963 Mys 118.

[x] http://www.legalservicesindia.com/article/article/irretrievable-breakdown-of-marriage-676-1.html.

[xi] 2006(3) SCALE 252.

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4 thoughts on “Divorce Under Hindu Law”

plz give me right reply of my question. recently i was reading in newspaper that if marriage was not registered and husband or wife want divorce because of mentally harassment and fully torched it is possible ??? because i read in newspaper that if not registered than advocate argue this topic and tell at that time he or she marriage in parents presser and marriage is not registered than get divorce easily. plz give me right reply because my friend and his very little kid r leave very very difficult life. i am from Gujarat and my cell number is 07405536627 i am waiting your reply plz be needful and save 2 life…

No. It is not a ground to get a decree of divorce that they didn’t get it registered. You can notice that there were no marriage registrations of parents or persons approximately 18-20 years ago except just for a couple’s abroad visit or may be for Visa purpose. So many couples you can find around who haven’t marriage registrations. Although advocate will definitely argue with all possible reasons or hidden secrets. They don’t make any difference. It is their routine to satisfy his clients. Initially a period of 6 months is always granted to the parties after filling the application/case in divorce, for making them to realise again about their future, relation, family etc etc. There is also an option of alternative dispute redressal that works like a Panchayat. After 6 months it depends on the court whether to extend the time or to grant a decree of divorce.

Married for almost 18 years with two kids aged 16 and 10..our marriage was not a registered one ..is it possible to apply for divorce on mental harassment grounds like forced to follow some spiritual thing with utmost pressure and creating chaos in house on daily basis for this by my husband..hampering kids studies and my mental peace very badly.and what will be system of alimony after divorce..plz guide as I need it very very much

If a Hindu girl married a Christian boy under Hindu rites , the boy applied for divorce as per Hindu Marriage Act and place, tell me the citations with regard.

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• mutual consent 

Divorce by mutual consent

This article has been written by Sushant Biswakarma from Symbiosis Law School, NOIDA; and Diksha Paliwal , a student of LLM (Constitutional Law). It talks about the concept of divorce by mutual consent under the Hindu Marriage Act, 1955, its essentials and procedure for the same. Difference between judicial separation and divorce has also been discussed, followed by judicial pronouncements and some FAQs.

It has been published by Rachit Garg.

Table of Contents

Introduction 

Marriage forms the basis of the most important institution of a civilised society, i.e., the family.  Family is considered to be an indivisible part of a civilised society, be it the evolution of human culture or preserving morality. A happy and stable family forms the foundation of a strong and sound community. The importance of the institution of family to form a civilised society is non-debatable. However, the foundation of family is formed on the institution of sacramental value, namely, marriage.

The institution of marriage is considered to be of sacramental value and is thus treated as an inseparable bond. However, with the changing social conditions and the evolution of society, this idea of the inseparable bond between husband and wife has also evolved.

Marriage has always been considered as a holy relationship in every religion around the world. It is said that relationships are made in heaven and couples just meet each other on earth. It is not just a relationship between two people, but a relationship between two different families. Two different people from two different families come together to get married and start a new family. Anyhow, marriage is still an agreement and like all other forms of agreements, it can also be brought to an end.

There are multiple legislations in India regarding marriage such as The Indian Christian Marriage Act, 1872; Muslim Marriage Act, Special Marriage Act, and Hindu Marriage Act.  In this article, we are going to deal only with the Hindu Marriage Act, specifically how to end a marriage by mutual consent as per the Act.

Divorce under old Hindu Law 

In the early ages, the concept of divorce was alien to the laws of Dharamshastra, since marriage was a holy union of two people, and hence, the bond was unbreakable. Marriage was contemplated as being an indissoluble union of the wife and husband. The people back then were of the opinion that the marital tie between a couple could not be severed under any circumstances. Manu was expressly against the concept of marriage and hence stated that the union of husband and wife should be continued till death. Not only this, it even stated that the duty of a wife does not end after the death of her husband, and thus, she is not allowed to have a second husband. 

From the above discussion, it is pretty clear that the old Hindu law did not follow divorce, however, some people say that the concept of divorce did find a place in the customs of certain communities, for example, shudras. In the 1940s, there existed certain laws which recognised the concept of divorce, like the Bombay Hindu Divorce Act, 1947, and the Madras Hindu Bigamy Prevention and Divorce Act , 1949. All these legislations were repealed after the enactment of Hindu Marriage Act, 1955.

Dissolution of marriage under the Hindu Marriage Act, 1955

The concept of divorce in the early ages was non-existent as the marriage between two people was considered to be an inseparable bond. However, with the changing times, the concept of divorce was given due consideration by the legislature in order to cope with the changing scenarios of the society. Divorce is basically the termination of marriage by legal means. By way of divorce, the spouses seek separation from each other, when they are not in a situation to live together as a married couple. The legislations brought upon by the Indian Legislature have come out as some of the most important radical changes in the then existing laws pertaining to marriage and divorce. 

If marriage solemnized under the Hindu Marriage Act is valid, and there is a reason to end it – it can be ended by way of either Judicial Separation under Section 10 or Divorce under Section 13 and Section 13B . Section 13A provides alternate reliefs in divorce proceedings.

Judicial Separation – ( Section 10 of Hindu Marriage Act, 1955 )

In the earlier period, i.e., in Shastric Hindu Law, the notion of judicial separation was not known, or at least not practised. However, the courts established by the British, up to a certain extent, permitted providing the wife with maintenance along with a separate residence from her husband. The wife could seek separate residence and maintenance if the husband was suffering from some loathsome disease, or if the husband treated her with cruelty, or if the husband had a concubine living with him in the house, or some other justifiable reason as the courts at that time deemed fit.  The provision of judicial separation as corroborated under Section 10 of the Hindu Marriage Act, 1955, is similar to that provided under the earlier repealed Hindu Married Women’s Right to Separate Maintenance and Residence Act, 1946. This Act gave a statutory right to married Hindu women to claim maintenance and separation from their husbands. 

Judicial separation is an alternative to divorce; however, it does not put the marriage to an end. The parties do not cohabit, but other obligations of marriage still exist. The parties still remain husband and wife, even though they might live separately and do not have a sexual relationship. One cannot remarry in the case of judicial separation. This Section even applies to Hindu marriages that have been solemnised before the commencement of this Act. To put it simply, the remedy of judicial separation puts an end to the conjugal duties of both spouses and allows them to live separately.

Even though the parties remain spouses, sexual intercourse must be with consent, even in the case of marriage. Section 376B of the IPC states that if a man tries to have sexual intercourse with his wife without her consent during judicial separation, he may face a prison sentence of up to 2 years and/or fine.

Section 10 of the Act mentions that the grounds for judicial separation are the same as the grounds for divorce provided under Section 13(1) of the Act. No separate grounds are enunciated in the HMA, 1955, and hence the Act provides that Section 10 of the Act has to be read with Section 13 and Section 13-A, which provide for grounds of divorce and the court’s power to grant judicial separation where divorce is prayed by the parties. Also, as per sub-section (2) of Section 10, the court can rescind the decree of judicial separation if it is satisfied to do so, on the petition of either of the parties. 

After the amendment made in 1976, by which the grounds of divorce and judicial separation were made identical, it has been observed that the petitions for judicial separation have become comparatively less frequent. The reason being that no couple would prefer judicial separation if they could rather opt for divorce on the same grounds. Since divorce will release the couple from the marital tie entirely, judicial separation won’t.

With the grounds of judicial separation and divorce being similar, the question that arises is, whether judicial separation can be granted by the court at its discretion where the petitioner has instead sought divorce. The Delhi High Court dealt with this question in the case of Vinay Khurana v. Shweta Khurana (2022) . The Court, while dealing with the matter, stated that it is not at the court’s discretion what relief is to be granted. The court cannot substitute the relief prayed for by the petitioner. It further emphasised the fact that the concepts of judicial separation and divorce are entirely different. In the present case, the family court, while adjudicating the matter, granted the decree of judicial separation when a decree of divorce was sought by the petitioner. The High Court further stated that the family court has not been conferred with the power to substitute the reliefs prayed.

Divorce – ( Section 13 of Hindu Marriage Act, 1955 )

Etymologically, the term “divorce” which is derived from the Latin word “dovortium” is a mixture of two words, namely, “dis” which means “apart” and “vertere ” which means “to turn.” The term “divorce” denotes the separation of the parties to the marriage, i.e., husband and wife. It is the dissolution of the marital relationship. By breaking the marital ties, the husband and wife are released from the responsibilities and obligations that they would otherwise be bound to perform together.

In the case of divorce, the marriage is brought to a permanent end. All marital obligations are lifted, and the parties are free to remarry. The parties no longer remain husband and wife.

The parties are free to choose whether they want a decree of judicial separation or divorce, and the court may grant the decree if satisfied.

The Hindu Marriage Act, 1955, was the first legislation that granted a divorce under Hindu law, as the same concept found no place in Hindu Shastric Law. Section 13 of the Hindu Marriage Act, 1955, provides for the circumstances in which either of the spouses can opt for divorce. It is important to note that, as enumerated in Section 14 , parties cannot file a petition for divorce within one year of their marriage. However, Section 14(1) states that parties can seek divorce within one year if the petitioner faces exceptional hardships or otherwise if it becomes a case of exceptional depravity on the part of the respondent. The court, under the same sub-section, also has the power to dismiss such a petition of divorce presented before a period of one year if it finds out that the petition was filed under any misrepresentation or if there is any concealment of facts by the petitioner. Presently, the term “exceptional depravity” is not defined under any Indian Act, however, the same in layman’s language can be termed as a situation when a person is deprived of something that he or she extremely desires, or in a normal situation, cannot be expected to live without or suffer. 

Clause (2) of the Section mandates that the court while dismissing a petition due to the non-completion of a period of one year, shall try all possible efforts of reconciliation when a similar petition is filed after the expiry of one year, looking into the interests of children, if any, or if there exists any probability of reconciliation in marriage. 

The concept of divorce as enshrined under the HMA, 1955, is based on the “fault theory,” which means that the Act provides the grant of divorce to the parties, based on the faults or sins that one of the parties has committed. These fault grounds on which a party can seek a decree of divorce or judicial separation are mentioned in Section 13 of the Act. 

• Section 13(1) of the Act provides that either of the parties can seek divorce by way of filing a petition on the following grounds, namely, sexual intercourse with any person other than spouse, cruelty, desertation, conversion of religion, unsound mind or mental disorder, either of the party is suffering from leprosy or venereal disease in a communicable form, if one of the spouse has renounced the world by entering into any religious order, or if any one of the spouse has not been heard alive for a period of 7 years or more. The petitioner can seek a decree of divorce on any of the above mentioned grounds. The Section further provides for the explanation of terms “mental disorder”, “psychopathic disorder” and “desertation”.
• Section 13(1A) of the Act further talks about two additional grounds, which were inserted after an amendment made in 1976. These two additional grounds are; 
• If the parties have not cohabited for two years or more after the passing of decree of judicial separation, or 
• If there has been no restitution of conjugal rights for a period of one year or more after the passing of decree for the restitution of conjugal rights. 
• Clause (2) of the Section mentions additional grounds on which the wife can seek a decree of divorce. The additional grounds are: 
• Section 13(2)(i)) – when the husband already had a wife at the time of his marriage; or 
• Section 13(2)(ii) – A wife can seek a decree of judicial separation or divorce if the husband is found guilty of rape, sodomy, or bestiality; or 
• Section 13(2)(iv) – The third additional ground provided to the wife is that if she was married before the age of puberty (15 years), she can apply for divorce or judicial separation after attaining majority. 

In the case of Dharmendra Kumar v. Usha Kuma (1977) , the Apex Court, while dealing with a petition for divorce on the grounds mentioned in Section 13(1A)(ii) of the Act, granted divorce to the wife. In this case, the wife applied for the grant of a divorce decree after around two years of a decree of restitution of conjugal rights in her favour. In reply to the petition, the husband contended that the wife refused to entertain, receive, or reply to any of his letters wherein a request was made by him to live with her. The Court stated that even if the above allegations are true, this does not disentitle the wife to ask for a divorce decree. 

In the case of Sirajmohmedkhan Janmohamadkhan v. Hafizunnisa Yasin Khan (1981) , the wife (respondent in present case) filed an application for grant of maintenance under Section 125 of the Code of Criminal Procedure, 1973 , stating that her husband is unable to fulfil his obligations under a marriage, and is guilty of wilful neglect. It was contended by the wife that her husband was incapable of carrying on a physical relationship, and that even her husband accepted the said fact. She also said that her husband treated her cruelly, and that she was driven out of her husband’s house. The learned lower court, stating that mere impotency cannot be a ground for maintenance, dismissed the petition of the wife. Being aggrieved by the decision, the wife filed an appeal against the judgement before the High Court of Gujarat, wherein her appeal was allowed. Thereafter, the appellant-husband filed an appeal seeking special leave before the Hon’ble Supreme Court. The Apex Court after looking into the facts and circumstances of the case, held that if the husband is impotent and is not able to discharge his marital obligations, and the same has been proved to the Court, then this would amount to both mental and legal cruelty, as contemplated under Section 13. The Court further stated that this would be a just ground to seek maintenance and for the wife’s refusal to live with her husband. 

In the case of Durga Prasanna Tripathy v. Arundhati Tripathy (2005) , the wife deserted the husband after seven months of marriage, and both of them had been living separately for the past 14 years. Since the wife was not ready to lead a conjugal life with her husband and all the efforts of reconciliation went in vain, the Court granted the decree of divorce under Section 13(1) of the Hindu Marriage Act, 1955, on the ground of cruelty and desertion.

Grounds for judicial separation and divorce – Section 13(1)

Adultery: If the spouse has sexual intercourse with any person other than their spouse, then the other party can seek divorce or judicial separation by way of filing a petition before the concerned family court. Adultery as a ground for judicial separation or divorce occurs when either of the spouse engages in sexual intercourse with another person, in such a condition the other party can file a petition and seek divorce or judicial separation, as the case may be. It is important to note that for a party to establish adultery before the court, he or she has to rely mainly on the ancillary facts, for instance;

• Circumstantial evidence; or
• When no evidence of contact between the parties has happened and the wife is pregnant; or
• A clear confession by the other party who was involved in extramarital intercourse, or a confession of the same in some other parallel proceedings; or
• Any letters or other proof of a conversation between the parties involved in the affair which suggest any sexual relationship between the two.

In the case of Mrs. Pragati Varghese v. Cyril George Varghese (1997) , it was held that in order to prove adultery, circumstantial evidence can be used by the plaintiff, however, it shall be such that it entirely wipes out the possibility of innocence of the respondent. It is to be noted that illicit intercourse that happened before the marriage cannot be a ground for seeking a judicial decree. 

Wherein a person has married within the prohibited degrees of relationship as provided under  Hindu law, and after some time when he realises that the marriage is invalid as per law and hence remarries, intercourse with the previous wife would amount to adultery. The wife in such a case can obtain a decree of judicial separation or divorce.  

Cruelty: In a simple language, cruelty connotes a situation when the spouse treats the other spouse with cruel behaviour. Section 13(1)(i)(ia) of the Hindu Marriage Act deals with cruelty. The Act does not provide for any specific definition of the term “cruelty”, however, after looking into various judicial pronouncements, it can be said to include, physical violence, mental agony, affairs, toxic behaviour, etc. There is no specific scope or ambit of the definition, it is on the courts to determine, after looking into the facts and circumstances of the case, whether a particular conduct amounts to cruelty or not. The term is not restricted to the english doctrine of danger, nor limited to any particular definition or scope under the statutory limits.

In the case of A. Jayachandra v. Aneel Kaur (2005) , the Supreme Court held that the term “cruelty”, as a ground of divorce and judicial separation, is used in relation to human conduct and/or human behaviour. Also, the Court stated that the conduct that has been complained about should be grave and weighty so as to lead to the conclusion that the spouse can no longer reside together with the other spouse. In the present case, the respondent wife used to ask her husband to do certain things, casting doubt on her husband’s reputation, character, and fidelity. The Court, looking into the facts and circumstances, held that what the wife used to ask her husband amounts to cruelty, as against the contentions of the respondent’s wife, who stated that those things were just simple advice. It was further stated that, though irreversible breakdown of marriage is not a specified ground of divorce under the HMA, 1955, under certain circumstances to shorten the agony of the parties and in the interest of justice, a court can grant the decree of divorce. 

Desertion: Section 13(1)(i)(ib) of the HMA, 1955 deals with the provision of desertion, meaning that the spouse has left the other spouse for a period of at least two years without any reasonable grounds. The term “desertion” basically means the act of leaving or quitting without an intention to return back to live with the spouse. Put simply, it is an act of forsaking or abandoning. It is important to note that to seek divorce on the ground of desertion it is essential that the parties have not cohabited and that the party has wilfully left the house. In various instances, it happens that there may be separation without desertion, and desertion without separation, hence, mere severance of a relationship is not a sufficient and a valid ground for divorce. It is the wilful abandonment of one spouse by the other with any relevant or reasonable cause. In such a case, the consent of the affected party is not there. It is the total denial of the obligations of marriage.

In the case of Usharani Pradhan v. Brajkishore Pradhan (2005 ), the Orissa High Court held that the conduct of the respondent-wife of leaving her husband and children for such a prolonged time (7 years) to pursue her so-called ambition amounts to desertion. While upholding the divorce decree granted by the learned Family Court’s judge, the Court, while commenting on the respondent wife’s act, stated that “this case depicts the sordid episode of the life of a woman who spoiled her homely environment and family relationships running after the politics and politicians forgetting her solemn duties and responsibilities of a matrimonial life and neglecting her husband and children.”

In the case of Santosh Singh v. Sumita Singh (2022), the Chhattisgarh High Court granted divorce to the petitioner husband in a case where the wife did not return to her matrimonial house while waiting for shubh muhurat for almost 10 years. The Court stated that this act by the wife amounts to desertion under Section 13(1)(i)(ib) of the HMA, 1955. 

Conversion: If one of the spouses has converted to some other religion. By virtue of Section 13(1)(ii) of the Hindu Marriage Act, 1955, if any of the spouse ceases to be a hindu by conversion, then the other spouse can ask for the decree of divorce or judicial separation. Prior to the Amendment Act of 1976, conversion was only the ground for seeking divorce, but after the amendment it is a ground for judicial separation too. However, the petitioner himself or herself cannot seek a decree of judicial separation or divorce on the ground of his or her conversion. 

In the case of Madanam Seetha Ramulu v. Madanam Vimala (2014) , the wife was Hindu by birth, however, later on, she got herself converted to Christianity after the solemnization of her marriage. The husband filed a petition seeking divorce on the grounds of his wife’s conversion to another religion. The Andhra Pradesh High Court held that the husband is entitled to get divorce on the ground of his wife’s conversion to another religion. This Section does not cover marriages that are solemnised under special statutes, and thus they cannot be dissolved under this section. 

Insanity: An incurable unsoundness of mind or mental disorder in either of the parties to the marriage is a valid ground for seeking divorce or judicial separation under Section 13(1)(iii) the Hindu Marriage Act suffers from any mental disorder. Incurable unsoundness of either of the spouses is a reasonable ground for seeking a decree of divorce or judicial separation. After the Amendment made in the year 1976, it is no longer essential to establish the unsoundness of the other party for a period of not less than two years immediately before filing of the petition of divorce or judicial separation. The petitioner is required to establish that the respondent has been suffering from such a kind of mental disorder or unsoundness of mind continuously or intermittently that it is not possible for the petitioner to live with him or her. The meaning and scope of the terms “mental disorder” and “psychopathic disorder” have been provided in the explanation clause of Section 13.

In the case of Utpal Hazari v. Maya Hazari (2018) , the Jharkhand High Court held that marriage cannot be dissolved on the ground of mental disorder, which was caused by the sudden death of a sixteen-year-old son of the wife. In the present case, the wife lost her 16-year-old son, which traumatised and broke her, resulting in various mental disorders and unusual behaviour. The High Court stated that the learned lower court erred in looking into the facts and, especially, the circumstances of the case and that this is not the case of incurable unsoundness or insanity. 

Leprosy: It is a kind of bacterial infection, which is a contagious disease. Prior to the amendment made in the year 2019, Section 13(1)(iv) of the Hindu Marriage Act provided leprosy as a ground of divorce and judicial separation. The Personal Laws (Amendment) Act, 2019, removed the disease of leprosy, as a ground for seeking decree of divorce. Before the passing of this amendment, the 20th Law Commission of India in its 256th Report titled as “Eliminating Discrimination Against Persons Affected by Leprosy”, recommended the removal of leprosy as a ground of divorce. The Law Commission Report stated that, since there have been a great advancement in the medical facilities, and medicinal treatment, such diseases have now up to a large extent have become curable. Thus, to still have such provisions in the various personal laws will be discriminatory to the person suffering from the disease. 

The Apex Court in the case Pankaj Sinha v. Union of India (2018) , issued similar guidelines. In the case of Pankaj Sinha, a writ petition was filed under Article 32 of the Indian Constitution, in which it was prayed that the Union of India and other respondents be issued directions to conduct regular national surveys in determining the cases of leprosy, and to bring the reports in the public domain. It was also sought by the petitioner that regular awareness camps be conducted to raise awareness and curb the fear of such diseases. In light of the relief sought by the petitioners, the Apex Court released certain guidelines to formulate and adopt measures to eradicate leprosy. 

To get a decree of judicial separation or divorce (when this ground is available), the petitioner has to establish that the respondent has been suffering from leprosy for a period that is not less than a year immediately before the filing of the petition. However, after the amendment made in 1976 the statutory period of one has been deleted, and the term “incurable” has been inserted. The petitioner is now required to establish that the other spouse is suffering from a virulent and incurable form of leprosy. 

Venereal disease: The petitioner can file a petition seeking a decree of divorce or judicial separation on the ground that the other spouse is suffering from venereal disease (a disease that can be transmitted through sexual intercourse) in a communicable form. Prior to the amendment, the suffering of the spouse from a venereal disease for at least three years was an essential requirement. In the case of Prasanna Krishanji Musale v. Mrs. Neelam Prasanna Musale (2022) , the Bombay High Court while dismissing the husband’s appeal against the judgement of the trial court for grant of divorce under Section 13(1)(ia), 13(1)(ib), and 13(v) of the HMA, 1955, wherein he falsely accused his wife of having HIV Positive, and had refused to cohabit with her.

Renunciation of the world: Section 13(1)(vi) of the HMA, 1955, lays down that if any of the party to the marriage has renounced the world to unite with God or for the search of the truth, the other spouse can seek divorce or judicial separation. Renunciation from the world was the ground available only for getting a decree of divorce and not judicial separation before the amendment done in the year 1976. In the case of Shital Das v. Sitaram (1954) , the Supreme Court held that, the renunciation announced by the spouse infers to a religious order, which works or implies civil death, and this is the reason why the other party has been provided with the right to seek decree of divorce or judicial separation. It is important that the petitioner establishes the fact that the other spouse has joined some religious order contrary to the concept of marriage. A mere declaration that the other spouse has renounced the world does not prove to be a sufficient ground.

Presumptive death: Under Section 13(1)(vii) of the HMA, 1955, if one party to the marriage has not been heard alive for seven years, then the other spouse can seek divorce or judicial separation on the ground of presumptive death. Presumption of death of the other spouse, if the person has not heard of being alive for a period of seven years or more, is a ground available to seek divorce or judicial separation. In order to prove this ground, it is required that the petitioner establishes that no person who would have naturally heard from the respondent knows about him or her being alive. In the case of Nirmoo v. Nikka Ram (1968) , the Delhi High Court held that, if the spouse presumes the death of the other spouse, and without getting a divorce in such a case, remarries to the other person, then, the person that has returned after the span of seven years or more can contest the validity of the second marriage.

Divorce by mutual consent – ( Section 13B of Hindu Marriage Act, 1955 )

In a case where none of the aforementioned grounds is available but the parties decide they do not want to remain married to each other or cannot live with one another, they can seek divorce by mutual consent under Section 13B of the Hindu Marriage Act.

The Hindu Marriage Act, 1955 enshrines the right to divorce by way of mutual consent under Section 13B. The spouses can jointly file a petition seeking divorce under Section 13B before the family court, which possesses the jurisdiction to pass such a decree of divorce under Section 13B. The Section expressly mentions the conditions under which the spouses can file a petition for the grant of divorce by mutual consent.

In order to seek divorce on the grounds of mutual consent, the parties must have been living separately for a period of at least one year. The term living separately connotes that the parties must not live together as husband and wife, however, it does not say that the parties cannot live under the same roof if they are filing a petition for divorce by mutual consent.  The important factor that is to be addressed is that there is no possibility of them living together as husband and wife. Another essential ingredient is that the parties are not able to live together and have mutually agreed that their marriage has no chance of reconciliation and that in no way can the dispute between the parties be resolved.

The judiciary has conflicting opinions regarding the waiting period that is prescribed in the provision of Section 13B. There have been clashes while considering the period of waiting as directory or mandatory. In the case of Gandhi Venkata Chitti Abbai v. Unknown (1988) , the Allahabad High Court held that the waiting period was mandatory. However, in the case of Dinesh Kumar Shukla v. Neeta (2005) , the Madhya Pradesh High Court held that the period prescribed under Section 13B is directory in nature and can be brought down below 6 months if the circumstances of the case demand so. Putting an end to this question, the Apex Court, as discussed in the later part of the article, has held that the waiting period under Section 13 B can be waived if the circumstances demand it. 

The parties at the time of filing the petition for divorce must mutually agree on the same, however, the consent can be withdrawn unilaterally if one of the spouses in the waiting period is of the opinion that he or she does not want a divorce. It is pertinent to note that the decree for divorce by mutual consent cannot be passed ex parte, i.e., both parties must be present at the time of the passing of the final decree.

Essentials of divorce by mutual consent

Parties should be living separately.

Section 13(B) of the Act prescribes that in order to mutually dissolve a marriage, the spouses should be living separately for a period of at least 1 year before filing the petition.

This period of one year where the parties have lived separately must be immediately before the filing of the petition. “Living Separately” in the context of Section 13B does not necessarily mean physically living in different places. The parties could be living in the same house, sharing the same roof but there can still be a distance between the two.

If that is the case then they are not considered to be living as husband and wife, which qualifies as living separately.

The same was held by the Hon’ble Supreme Court in the case of Sureshta Devi v. Om Prakash . Wherein it was made clear that living separately does not necessarily mean living in different places. The parties can be living together but not as spouses.

Parties have not been able to live together

It is said that relationships are made in heaven, however sometimes the holy relationships do not work for long on Earth. These days divorce is taken very lightly and people go for it as a first resort whereas the intention behind the law of divorce was to make it a last resort. Many times, in a marriage it so happens that the spouses can’t stand each other and can no longer live together happily. That is when they opt for divorce by mutual consent.

Sadly enough, it often happens that the parties are not able to live together even after trying mediation and reconciliation and putting multiple efforts, before filing a divorce petition by mutual consent.

In Pradeep Pant & anr v. Govt of NCT Delhi , the parties were married and had a daughter from their wedlock. However, due to temperamental differences between them, they were not able to live together and decided to live separately. Despite putting their best efforts they were unable to reconcile their marriage and could not see themselves living together as husband and wife ever again. A divorce petition was jointly filed and issues such as maintenance and custody of their child were decided and agreed upon by both.

The wife would get custody of their daughter and the husband would reserve visitation rights, it was mutually agreed upon by both of them. Both parties gave their free consent without any undue influence. The court observed that there was no scope of reconciliation and granted a decree of divorce.

After filing a petition for divorce by mutual consent, the parties are given a waiting period of  6 months, also known as a cooling period and it may extend up to 18 months. During this time the parties must introspect and think about their decision.

If the parties are still not able to live together after the cooling period, then the divorce petition shall be passed by the district judge.

They have mutually agreed that marriage should be resolved

In some situations – the parties may choose to give their marriage another chance and mutually resolve their marriage. During the waiting period, the parties may sometimes be able to reconcile and make their relationship work.

After the first motion has been passed, the parties have a total of 18 months to file for second motion and if they fail to do so within those 18 months, both parties are deemed to have withdrawn their consent mutually.

Procedure for getting a decree of divorce by mutual consent

Step 1: jointly filing a petition.

A divorce petition in the form of an affidavit is to be signed by both parties and filed before a family court in their region.

Jurisdiction of the court should not be a major issue in filing for divorce as the petition can be filed within the local limits of the ordinary civil jurisdiction of where the marriage was solemnized or where either of the parties currently resides.

As mentioned earlier, the parties to a marriage must be living separately for at least one year before filing the petition.

Step 2: First motion

After filing the petition the parties shall appear before the court and give their statements. If the court is satisfied and the statements are recorded then the first motion is said to have been passed, following which a waiting period of 6 months will be given to the parties before they are able to file the second motion.

This waiting period as statutorily prescribed under Section 13B(2 ) of the Act is for the parties to introspect and think about their decision. It is a time given for them to reconcile and give their marriage another chance, just in case they decide to change their mind.

Anyhow, sometimes the court may be convinced that the marriage has reached the point of no return and the waiting period will only expand their misery. In that case, this period can be waived off by the court. This period if not waived off can extend up to 18 months. If the parties still want to get divorced they may now file for second motion. The second motion can be filed only after the waiting period of 6 months and before 18 months has elapsed.

Step 3: Second motion

This is when final hearings take place and statements are recorded again. If the issues of alimony and child custody (if any) are mutually agreed upon the decree of divorce is passed after this step. The  marriage has finally ended by now and divorce by mutual consent has been granted.

Is the six month waiting period mandatory for getting a divorce by mutual consent

Getting a divorce is a very serious matter, it can destroy and separate families. But, on the other hand, the parties get to exercise their right to choose and pursue their happiness as there is no point to continue being in a matrimonial relationship if the spouses are not happy. For couples who go for filing divorce by mutual consent are given time to try and make their marriage work. They are advised to go for mediation and reconciliation to sort their issues out.

However, many times these efforts don’t work and people actually go through with the divorce.

While filing for divorce by mutual consent the parties have already lived separately for a period of over one year per the statutory requirement. So, there is very little to no chance that they can make the marriage work again. 

In the case of Amardeep Singh v. Harveen Kaur , it was observed that the couple had internal disputes and their married life was not the best one. The disputes escalated really bad and many civil and criminal proceedings were followed.

They mutually decided to resolve all the disputes and file for divorce by mutual consent. The custody of their children would be with the husband, and permanent alimony was paid to the wife.

After all these issues were mutually sorted by the parties they just wanted a quick divorce and sought to waive off the waiting period. The parties could no longer be with each other and the waiting period would only prolong their agony.

Keeping this in view, Hon’ble Supreme Court laid down the waiting period of six months can be waived off if the court is satisfied that the spouses have lived separately for more than the statutorily prescribed time of at least one year and have settled the issues of alimony and custody of children(if any).

Hon’ble Supreme Court also observed that the waiting period will do nothing but merely prolong the misery and sufferings of the parties unable to live together anymore. 

In another case of K. Omprakash v. K. Nalini , the parties were not happy with their marriage anymore and were allegedly having extramarital relationships. It was the contention of the petitioner that they were living apart without ever visiting each other for more than a year and so, there was no scope of reconciliation between them.

They blamed each other for their suffering and unhappiness. Both alleged each other to be involved in a series of illicit relationships but denied ever being involved in such relationships themselves.

There was no other option left but only to file for divorce by mutual consent. The marriage had suffered irretrievable damage and had reached a point of no return.

Both parties prayed for an instant divorce and a waiver of the waiting period. Observing that the parties had lived separately for long enough and there was no scope of getting the marriage to work again. 

The High Court of Andhra Pradesh held that Section 13B(2) of the Hindu Marriage Act should be read not as a statutory mandate, but only as a directory.

Hence, the waiting period which was once mandatory in nature now remains discretionary.

Whether consent can be unilaterally withdrawn for divorce by mutual consent

After the first motion, if the parties are provided with the waiting period they may sometimes decide to change their mind. Not all cases of divorce are irreparable and some may still have some scope of reconciliation and the parties may choose to withdraw their consent and give their marriage a second chance. 

The waiting period proves to be very useful for some cases as the parties get to go for mediation which may change their mind. The consent of the parties is also deemed to be withdrawn after the expiry of the waiting period of 18 months, wherein a decree of divorce shall not be granted.

The phrase “Divorce by Mutual Consent” is self-explanatory, it simply means that the consent of both parties is required in order for the court to grant the decree of divorce. In Sureshta Devi v. Om Prakash , the wife’s consent was fraudulently obtained by the husband for filing a divorce. The wife was unwilling to give her consent for divorce and therefore she did unilaterally revoked her consent. 

Upon reading the judgement of the Supreme Court we can conclude that a party can unilaterally withdraw their consent if the same has not been freely given.

After the first motion has been passed the parties will have agreed to settle on various issues such as alimony, custody of children and other marital expenses. Now, If one of the parties unilaterally withdraws their consent the other party may suffer prejudice that could be irreversible.

In Rajat Gupta v. Rupali Gupta , the court says that the agreement between the parties to settle their issues and opt for divorce by mutual consent is a binding agreement and a form of undertaking. If a party now unilaterally withdraws their consent, they would be in breach of their undertaking made before the court of law, resulting in civil contempt of court by wilfully disobeying an undertaking. If the consent has to be withdrawn unilaterally, it must be done so on a just and reasonable ground and the other party must not suffer prejudice.

Therefore, consent can be unilaterally withdrawn only in exceptional cases on reasonable grounds.

Supreme Court on the unilateral withdrawal of consent for divorce by mutual consent

In the case of Hitesh Bhatnagar v. Deepa Bhatnagar (2011) , initially a divorce petition under Section 13 B of the Hindu Marriage Act was filed before the District Court, Gurgaon. The parties in the aforesaid case got married in 1994 and were thereafter blessed with a girl in 1995. However, due to certain differences, they started living separately, and since then they have been living separately, owing to which they filed for divorce under Section 13 B in the year 2001. Later on, when the case was in second motion, the wife withdrew her consent, although the husband still insisted on the grant of a decree of divorce. Due to a withdrawal of consent by one of the parties, the petition was dismissed by the Learned Additional Districts Judge, Gurgaon. The appellant husband, aggrieved by the order of the Learned Additional Districts Judge, Gurgaon, filed an appeal before the Punjab and Haryana High Court, which was again dismissed. Thereafter, the husband moved to the Supreme Court. 

The issue before the Supreme Court was whether consent can be withdrawn by one of the parties after filing a divorce petition under Section 13 B after the expiration of more than 18 months. The second issue before the court was whether divorce under Section 13 B can be granted after the withdrawal of consent by one of the spouses. The circumstances under which divorce was to be granted in spite of the withdrawal of consent by one of the parties were also to be laid down by the Apex Court.

The Apex Court dismissed the appeal filed by the husband, stating that the courts only grant the decree of divorce when they are convinced beyond a doubt that the marriage is irreversibly broken down. However, in the present case, the wife is firm on her stand that for the future of her daughter, she is willing to put all the bitterness that exists between the parties behind her and is ready to live with her husband. In such a case, where there is still a chance that the marriage can work, granting divorce will not be appropriate. As far as the period of 18 months is considered, the court stated that this period is provided for speedy disposal of cases and is in no way a direction that specifies the period of withdrawal of consent. It was further stated by the Hon’ble Court that if the second motion in the divorce case does not begin within the period of 18 months, then the Court is not bound to pass a decree of divorce by mutual consent. It is to be noted that a second motion by both parties is not made prior to the completion of a period of 6 months from the date on which the case was filed. 

Difference between judicial separation and divorce

Judicial pronouncements

Anil kumar jain v. maya jain (2009), facts of the case.

In the present case, the appellant husband filed the appeal before the Apex Court, seeking divorce under Section 13B and asking the court to invoke the extraordinary powers enunciated under Article 142 of the Constitution of India . The husband and wife, owing to the differences between them, filed a joint petition under Section 13 B seeking divorce by way of mutual consent. After the filing of the divorce petition, the learned lower court fixed a date for the further proceedings after asking the parties to wait for the six months statutory period. At the next date, the wife stated that, though she acknowledges the differences, she does not wish to dissolve the marital ties. On the other hand, the husband reiterated his stand. Based on the withdrawal of consent by the wife, the lower court dismissed the petition for divorce by mutual consent. 

Being aggrieved by the order passed by the lower court, the husband filed an appeal before the Madhya Pradesh High Court. However, since the wife was firm with her stand that she does not want dissolution of their marriage despite the differences between the two, and hence the appeal filed by the husband was dismissed by the High Court. It further stated that the husband is free to file an appeal before the Apex Court. The Court said so, because the High Court does not have any such extraordinary powers, to grant divorce in such a situation when one of the parties has withdrawn their consent. Hence, present appeal was preferred by the husband before the Hon’ble Supreme Court. 

Issue involved in the case

Whether the court under Article 142 can grant the decree of divorce under Section 13B in the present case or not?

Judgement of the Court

The Apex Court opined that normally it is necessary that the consent of both parties subsist till the end of the divorce proceedings under Section 13B, and that withdrawal of consent by one of the parties leads to the dismissal of the petition. However, the Apex Court stated that when the proceedings under such circumstances move to the Supreme Court and the Court is satisfied that a divorce decree can be granted looking into the facts and circumstances of the case, it can invoke the power under Article 142 of the Constitution and grant the decree of divorce. 

Devendar Singh Narula v. Meenakshi Nangia (2012)

In the present case , the marital ties between the parties subsisted merely on a superficial basis, and both parties had been living separately since their marriage. Three months after the marriage took place, the appellant filed a petition under Section 12 of the HMA, 1955. The matter went to mediation, and the parties decided to divorce by mutual consent. The learned family court fixed the next date owing to the statutory waiting period. In the meantime, parties approached the Supreme Court to invoke Article 142. 

Whether divorce under Section 13B can be granted before the statutory waiting period provided under the Act or not?

The Apex Court, looking into the facts and circumstances of the case and finding that there were no marital ties between the parties  at all and that the marriage only existed in name, granted divorce to the parties before the completion of the six months statutory period. 

Shri Uttam Kumar Bose v. State of West Bengal (2023)

In the present case , the petitioner is a lawfully wedded husband, however, the married life of the petitioner and the respondent wife was not peaceful. The reason contended by the petitioner is the extremely hostile, adamant, and inimical attitude of the respondent’s wife towards the petitioner and his family members. The respondent’s wife developed various medical conditions and disorders that caused her infertility, thereby making her unable to conceive. The respondent wife used to blame her husband for the diseases she suffered and used to torture him for that reason. Being agitated by this, the petitioner served legal notice to the respondent’s wife, thereby asking her to grant a divorce by mutual consent. In reply to the aforesaid legal notice, the respondent’s wife lodged a complaint against the present petitioner and his family members. The learned lower court allowed the criminal proceedings against the husband, and being aggrieved by this, the present petitioner for quashing of the impugned proceedings knocked on the doors of the Calcutta High Court. 

Issues involved in the 

• Whether the learned lower court erred in allowing the criminal proceedings or not. 
• Whether the present situation of the infertility of the wife is a valid ground for divorce?

The Calcutta High Court held that the infertility of the wife is not a valid ground for divorce. The Court further opined that there are several ways in which the parties can become parents, and the husband has to be sensitive in such matters where the wife is already suffering mentally, as in the present case due to her being unable to conceive. The Court dismissed the revision plea filed by the husband against the quashing of criminal proceedings.

Divorce is a serious issue and must be used only as a last resort, however, these days people do not think twice before getting divorced. It splits families and the child of the separating couple has to go through serious trauma growing up with separated parents. 

Having said all that, countries having higher divorce rates have higher standards of women empowerment. People get to exercise their right to choose to end the marriage if they are not happy.

Divorce by mutual consent is the best way of divorce as the parties do not have to bad mouth each other in the courtroom and both parties can mutually settle on all issues and end their marriage.

The legislature has set numerous grounds for the legal termination of marriage, but the decorous way of seeking a divorce that is beneficial for both parties is by way of mutual consent.

Frequently asked questions (FAQs)

Is it possible to obtain a decree of divorce precisely on the same grounds on which a decree of judicial separation is obtained.

In the absence of a fresh matrimonial offence, the petitioner cannot apply for a decree of divorce, on the same grounds as those taken in obtaining a decree of judicial separation. It is crucial to understand that the scope and ambit of both judicial separation and divorce are qualitatively different.  

What are the two additional grounds on which a wife can seek a decree of judicial separation, other than the ones which are common grounds for both spouses?

A wife can seek a decree of judicial separation on the ground of bigamy (Section 13(2)(i)) , i.e., when the husband already had a wife at the time of his marriage. Another ground provided under Hindu law is rape, sodomy, or bestiality (Section 13(2)(ii)) . The third additional ground provided to the wife is that if she was married before the age of puberty (15 years), she can seek a decree of judicial separation after attaining a majority (Section 13(2)(iv)) .

What documents are required for filing for divorce?

Whether the parties opt for divorce under Section 13 or Section 13 B of the Hindu Marriage Act, 1995, the petitioner while filing the petition is required to file proof of their marriage (the marriage certificate), proof of the ground that he or she has taken for seeking the decree of divorce, and respective identity proof of the parties to the marriage. Also, the divorce petition must be filed along with an affidavit. 

What is the 71st recommendation report? 

The 71st Law Commission Report (1978) pertains to the concept of irrevertible breakdown of marriage. The aforesaid report firmly recommended the addition of “irrevertible breakdown of marriage” as a separate ground for divorce. After the law commission’s report, the bill was introduced in the Lok Sabh;, however, it did notgett the majority. The bill was also introduced in the year 2013 as  the Marriage Laws (Amendment) Act, 2013 , which inserted Section 13 C, HMA, 1955, and Section 28 A, Special Marriage Act, 1954, both pertaining to irrevertible breakdown of marriage as a ground for divorce. However, the bill has not been cleared by the lower house yet. 

• The Hindu Marriage Act, 1955 
• Stey by step procedure to file for a Mutual Divorce
• Divorce: Costs, documents needed and steps involved
• Divorce by Mutual Consent

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11 11 Divorce

• Published: June 2009
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This chapter discusses divorce in Hindu law. It begins by examining all the conflicting evidence about the nature of divorce in ancient Hindu law, inspects the rather meagre reformist efforts during the colonial period, and concentrates on the modernist reforms of Hindu divorce law in the Hindu Marriage Act of 1955 and its subsequent amendments. It also looks at the traditional Hindu concepts of divorce, reforms during the British rule and in independent India, and postmodern divorce law.

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Charchit Pathak

Grounds For Divorce Under Hindu Law

KEY TAKEAWAYS

• Hindu law recognises both non-fault-based (mutual consent, irretrievable breakdown, protracted separation) and fault-based (cruelty, adultery, desertion, conversion) grounds for divorce.
• Divorce in Hindu Law is governed by the Hindu Marriage Act, 1955, which specifies the grounds, processes, and effects of divorce on connected topics.
• Indian divorce laws have developed as a result of legal precedents, cultural developments, and a more pragmatic view of marriage under Hindu Law.

INTRODUCTION

Divorce is a legal procedure that breaks the marriage's link and gives people the opportunity to live separate lives. Hindu Law, which governs marriages among Hindus, recognises divorce as a way to dissolve a marriage that has irretrievably broken down. For those thinking about or going through the divorce process, it is essential to understand the legal reasons for divorce under Hindu law. Hindu Law includes a number of legal rules and precepts that specify the criteria for a Hindu couple to file for divorce. These grounds—both fault-based and non-fault-based—offer a legal framework for dealing with circumstances in which the marriage has irreparably broken down or in which there are particular factors that support the dissolution of the matrimonial partnership.

People must be aware of the legal reasons for divorce under Hindu law in order to make wise choices regarding their marriage and, if required, to investigate their legal alternatives. Individuals may evaluate the strength of their case, obtain the necessary evidence, and approach the legal procedure with clarity and confidence if they are aware of the grounds for divorce.

DIVORCE IN HINDU LAW: EXPLANATION OF LEGAL AND HISTORICAL CONTEXT

Hindu law governs divorce through a system of laws that have evolved and changed significantly through time. The historical background and development of divorce laws in India show the intricate interplay between legislative enactments, personal laws, and religious practises. Hindu law has historically drawn its concepts and regulations from the Vedas, Smritis, and Dharmashastras, among other early Hindu writings. These writings reinforced the sacramental essence of marriage and discouraged divorce by establishing it as a sacred and permanent bond. The dissolution of marriage was therefore seen as a rare and unfavourable event, and divorce was not recognised as a legal remedy.

But as society changed as a result of things like industrialisation, urbanisation, and greater exposure to other cultures, there was an increasing acceptance of the necessity for divorce as a valid legal option. In response, the Indian legal system introduced statutory regulations to control divorce and give people a legal framework within which to seek the dissolution of their marriages.

The enactment of the Hindu Marriage Act in 1955 was the most important turning point in the development of divorce laws in India. With the introduction of this legislation, the traditional idea of marriage as a sacrament for life was challenged, and a contemporary legal system that recognised divorce as a valid way to end an irretrievably broken marriage was established. The Hindu Marriage Act and its later revisions codified a number of divorce-related rules, including the reasons for divorce, the procedure for filing for divorce, and how divorce affects matters like child custody, alimony payments, and property split. There are two main types of reasons for divorce under the Hindu Marriage Act: fault-based and non-fault-based. Cruelty, adultery, desert, and conversion to a different faith are examples of fault-based justifications. According to these reasons, the petitioner must demonstrate that their spouse's actions caused the marriage to end irretrievably.

FAULT-BASED GROUNDS FOR DIVORCE

Fault-Based Grounds for Divorce are causes or behaviours that, in accordance with Hindu Law, can be used as justification for requesting a divorce. Cruelty, infidelity, deserting one's spouse, and conversion to a different faith are some of these grounds. These actions or behaviours are regarded as serious breaches of the marriage contract that cause an irreparable breakdown and support the dissolution of the marriage.

• Cruelty : Section 13(1)(ia) of the Hindu Marriage Act of 1955, according to this clause, a divorce can be requested if one spouse has cruelly treated the other. Cruelty is defined as any action that causes a victim bodily or mental anguish to the point that it is untenable for the victimised spouse to maintain the marriage. Physical, verbal, and emotional abuse, harassment, ongoing humiliation, and threats against the spouse's life or well-being are a few examples of cruelty.
• Adultery : Section 13(1)(i) of the Act, permits divorce in the event that one spouse has an extramarital affair. Adultery is defined as one spouse willingly participating in a sexual relationship outside of marriage without the other spouse's agreement or knowledge. By betraying trust, creating emotional suffering, and undermining the faithfulness anticipated within the marriage, adultery can have an adverse effect on a marriage.
• Desertion : Section 13(1)(ib) of the Act, allows for a divorce if one spouse has abandoned the other for a continuous period of at least two years. Desertion is defined as when one spouse leaves the other without a good reason or with the goal of coming back, which causes the marriage to end. Desertion needs evidence of the spouse's desire to desert as well as the absence of permission or a plausible defence.
• Conversion to Another Religion : Section 13(1)(ii) of the Act, permits divorce in cases where one spouse has converted to a different faith and has ceased to be a Hindu. Without the other spouse's permission, changing one's faith is seen as a major modification to the marriage, which is a ground for divorce.

NON-FAULT-BASED GROUNDS FOR DIVORCE

Non-Fault-Based Grounds for Divorce are situations when a divorce is requested without assigning blame or fault to either spouse. These grounds centre on the parties' mutual agreement to dissolve their marriage and the realisation that the marriage has irretrievably broken down.

• Mutual Consent : Section 13B of the Hindu Marriage Act of 1955: This clause permits divorce by permission of both parties. The voluntarily decision by both spouses to end their marriage and the marital tie is referred to as mutual consent. To dissolve the marriage, both parties must sign a joint petition with the family court indicating their common desire to divorce. If the court is convinced that the consent is sincere and that there was no compulsion or undue influence, it will approve the divorce.
• Irretrievable Breakdown of Marriage : The Hindu Marriage Act does not contain any provisions that specifically address the irretrievable breakup of a marriage, but the Supreme Court of India has recognised it as a legal basis for divorce. Marriage that has irrevocably broken down to the point that reconciliation is impossible is referred to as having an irretrievable breakdown. Courts may take into account the overall situation, protracted marital strife, a lack of emotional intimacy, and the incapacity to carry out marital responsibilities as signs of an irretrievable collapse of marriage.
• Long Separation Period : According to Section 13(1)(ib) of the Hindu Marriage Act of 1955, divorce is possible if the couple has been apart for a continuous period of at least two years. A lengthy period of separation is when partners live apart for a protracted period of time without any hope of reunion. Both spouses must have lived apart voluntarily for a continuous length of time without cohabiting or picking up their marriage again.

CASE LAWS: GROUNDS FOR DIVORCE UNDER HINDU LAW

• Prem Chandra Pandey v. Savitri Pandey, (2002) 2 SCC 73:

In this instance, the woman requested a divorce on the grounds that her husband had treated her cruelly. According to the court, the husband's cruelty-filled actions, which included both physical and emotional abuse, caused the marriage to end irreparably. This important decision widened the definition of cruelty as a justification for divorce and established a standard for instances involving comparable situations in the future.

• V. Bhagat v. D. Bhagat, (1994) AIR 720:

In this instance, the husband requested a divorce on the grounds that his wife had committed adultery. The husband's effective proof of the wife's extramarital affair, which constituted adultery and supported the breakup of the marriage, was upheld by the court. This decision confirmed the importance of faithfulness within the framework of the marriage institution and established adultery as a legal basis for divorce.

• Neelu Kohli v. Naveen Kohli, AIR 2006 SC 1675:

In this instance, the husband requested a divorce on the grounds that his wife had deserted him. The court emphasised that desertion indicates a long-term determination to dissolve the marriage without justification or consent. The decision underlined the significance of showing the spouse's desire to end the marriage and defined the legal standards for proving desertion.

• Sarla Mudgal v. Union of India, AIR 1995 SC 1531:

This major decision focused on the question of religious conversion as a basis for divorce. The court determined that converting to a different faith without the other spouse's agreement may be viewed as a fundamental modification of the marriage, which would support divorce. The significance of mutual consent and respect for one another's religious convictions in a marriage was highlighted by this case.

Challenges and Controversies:

Due to differing interpretations, cultural expectations, and changing views towards marriage, issues and controversies concerning the grounds for divorce under Hindu law have surfaced. One of the issues is how reasons like cruelty and adultery are defined and used because various courts may have different criteria for establishing these grounds. The need of establishing responsibility or misconduct can sometimes result in protracted and contentious legal disputes, placing financial and emotional hardship on the parties concerned. Another difficulty is that under current legislation, some problems like emotional abuse or irretrievable disintegration of a marriage are not recognised as explicit grounds for divorce. Couples who want to get a divorce on these reasons may find it challenging because of this.

Furthermore, the shame attached to divorce in society might deter people from obtaining legal aid, trapping them in unpleasant or abusive relationships. There have been efforts made to address these issues, such as the adoption of alternate conflict resolution procedures and the legal precedents that recognise irretrievable dissolution of marriage as a basis for divorce. To establish a fair and effective legal system that serves the various needs and situations of people seeking divorce under Hindu Law, more changes and clarifications are necessary.

In conclusion, both fault-based and non-fault-based grounds for divorce are recognised by Hindu Law, ranging from cruelty and adultery to mutual consent and irretrievable breakup of the marriage. These reasons serve as a reflection of the legal framework created by the Hindu Marriage Act, 1955, but they also provide difficulties and disagreements in terms of how they should be interpreted and applied. It is essential to assess the current rules governing divorce under Hindu Law and maybe alter them in light of the changing dynamics of society. This would include revising and broadening the grounds to take into account newer concerns such emotional abuse and the acceptance of irretrievable collapse of marriage as a separate basis. 

People may handle the divorce process more effectively by looking at alternative conflict resolution techniques and raising awareness about how crucial it is to seek legal remedies in troubled marriages. To guarantee that those seeking divorce under Hindu Law have access to a just and compassionate procedure that takes into consideration their particular circumstances and supports their well-being, it is ultimately crucial to match the legal system with shifting society factors.

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