Introduction
Divorce is a legal dissolution of marriage between two individuals, which ends their marital relationship and frees them from all the legal obligations that come with it. In India, divorce is governed by different laws depending on the religion of the individuals. For Hindus, the Hindu Marriage Act, 1955, provides the framework for divorce proceedings. The present article aims to present before the readers all the grounds for divorce available to Hindus under Section 13 of the Hindu Marriage Act, 1955.
Hindu Marriage Act Applicability
The Hindu Marriage Act was enacted to regulate and codify the laws relating to marriage and divorce among Hindus. It applies to all Hindus, including Buddhists, Jains, and Sikhs. The Act defines Hindu as any person who is a Hindu by religion, including those who are not originally Hindus but have converted to Hinduism.
Grounds for Divorce under Hindu Marriage Act
According to Section 13 of the Hindu Marriage Act, there are several grounds for divorce that can be invoked by either party to the marriage. These grounds can be broadly classified into four categories – fault-based, irretrievable breakdown, grounds available to wife and consent theory.
1. Fault-based Grounds: (Section 13(1))
a) Adultery: Adultery is defined as voluntary sexual intercourse between a married person and someone other than their spouse. If a spouse commits adultery, the other spouse can file for divorce on this ground.
b) Cruelty: Section 13(1)(ia) of the Hindu Marriage Act provides cruelty as a ground for divorce. Cruelty can be physical or mental, and it must be of such a nature that it makes it impossible for the other spouse to live with the guilty party.
c) Desertion: If one spouse abandons the other without any reasonable cause and without the consent or against the wish of the other spouse, it amounts to desertion. The deserted spouse can file for divorce on this ground.
d) Conversion: If one spouse converts to another religion, it can be a ground for divorce if the other spouse does not want to live with the converted spouse.
e) Mental Disorder: If one spouse is suffering from a mental disorder, and the other spouse cannot reasonably be expected to live with the mentally disordered spouse, it can be a ground for divorce.
f) Leprosy: If one spouse is suffering from a virulent and incurable form of leprosy, it can be a ground for divorce.
g) Venereal Disease: If one spouse is suffering from a communicable venereal disease, and the other spouse is not aware of it at the time of marriage, it can be a ground for divorce.
h) Renunciation of the World: If one spouse renounces the world by entering into a religious order, it can be a ground for divorce.
i) Not Heard Alive: If one spouse has not been heard of as being alive for a period of seven years or more, it can be a ground for divorce.
2. Grounds on Irretrievable breakdown theory
According to Section 13 (1A) of the Hindu Marriage Act, 1955 the divorced may be sought on the following grounds by either party.
- That there is no resumption of cohabitation as between the parties to the marriage for a period of one year after the passing of the degree of judicial separation.
- That there has been no restitution of conjugal rights for a period of one year after the passing of the degree of conjugal rights.
3. Grounds available to wife:
A wife may seek divorce under Section 13(2) of the Hindu Marriage Act on the following grounds-
- That the husband had married again or any other wife of the husband was alive at the time of solemnization of marriage and such wife is alive at the time of presentation of petition.
- That the husband has been guilty of rape, sodomy, bestiality since the solemnization of marriage.
- That in a proceeding under Section 18 of the Hindu Adoption and Maintenance Act, 1956 or in a proceeding under Section 125 of the Code of Criminal Procedure, a decree has been passed against the husband for maintenance and cohabitation has not been resumed for a period of one year or more.
- That her marriage was solemnized before she attained the age of 15 years and she has repudiated marriage after attaining that age but before attaining the age of 18 years.
4. Mutual Consent:
Section 13B of the Hindu Marriage Act provides for divorce by mutual consent. If both parties to the marriage agree to end their marriage, they can file for divorce by mutual consent. However, they must be living separately for at least one year before filing for divorce.
The Court shall decree divorce considering the following circumstances-
- On the motion of both the parties presented to the Court within a period of 6 to 18 months after the presentation of petition of divorce.
- Averments in the petition are true or not
- Hearing the parties and making sufficient inquiry
Supreme Court Judgments on Divorce under Hindu Marriage Act
- Sureshta Devi v. Om Prakash (1991): In this case, the Supreme Court held that desertion must not only be without reasonable cause but also without the consent or against the wish of the other spouse. The court also clarified that desertion is a continuous process, and it does not require physical absence.
- Samar Ghosh v. Jaya Ghosh (2007): In this case, the Supreme Court laid down guidelines for determining mental cruelty as a ground for divorce. The court held that the mental cruelty must be of such a nature that it makes it impossible for the other spouse to live with the guilty party.
- K. Srinivas Rao v. D.A. Deepa (2013): In this case, the Supreme Court held that conversion to another religion is not a ground for divorce if both parties have consented to the conversion and are living together as husband and wife.
- Harvinder Kaur v. Harmander Singh Choudhry (1983): In this case, the Supreme Court held that if one spouse is suffering from a communicable venereal disease, and the other spouse is aware of it at the time of marriage, it cannot be a ground for divorce.
- Shilpa Shailesh v. Varun Sreenivasan (2023): The Supreme Court in this case, by using its inherent power under Article 142 of the Constitution, exempted the statutory requirement of observing or waiting for a period of six months for the presentation of the divorce petition envisaged under Section 13B of the Hindi Marriage Act, 1955. The Court ruled that when the marriage is beyond repair and has completely broken down, it is not required to adhere to the requirement of Section 13B.
Conclusion
Divorce under the Hindu Marriage Act provides a legal way out for individuals who are unable to continue their marital relationship due to various reasons. However, divorce should always be considered as a last resort, and efforts should be made to reconcile and save the marriage.
