Dissolution of Hindu Marriage

Grounds for Divorce availed by both spouses

Section 13 of the Hindu Marriage Act, 1955 of divorce, a decree passed by court which announces absolute dissolution of a marriage. There are several grounds for divorce, some available to both husband and wife under Section 13(1), while some can only be availed by the wife under Section 13(2). These grounds are discussed below

• Adultery [Section 13(1)(i)]– it comes under the fault theory of divorce. It is considered a greatly important ground. Adultery is the consensual intercourse of a married person with another who is not his/her spouse. The aggrieved party or the victim may seek divorce on account of their spouse’s adultery. However there are certain essentials to adultery. The intercourse of a married person with someone other than their spouse has to be voluntary, that they must have done it on their own volition. The marriage has to be valid and subsisting at the time of the commission of the act. There has to be enough circumstantial evidence The aggrieved  spouse can file a petition for divorce to dissolve the marriage. In Hirachand Srinivas  Managaonkar v. Sunanda (2001), the Supreme Court of India stated that the husband’s  continued adultery is an ongoing matrimonial offence and is not wiped out by a decree  of judicial separation. 
• Cruelty [Section 13(i)(ia)]– Cruelty can be either physical in the form of physical violence meted out to one party in the marriage by the other, or mental, in the form of unprecedented behaviour, insults in front of friends and family, mental pressure to undergo abortion etc. Signs of physical cruelty can be observed easily. However, mental cruelty is harder to prove in a court of law. In Samar Ghosh v. Jaya Ghosh (2007), the Supreme Court reversed the judgement of the High Court and  restored the Trial Court’s decree of divorce which was granted based on mental cruelty5.  This is a landmark precedent which made courts accept the mental aspect of cruelty.
• Desertion [Section 13(i)(ib)]– Without any reasonable cause, when one spouse, against the consent of the other, voluntarily leaves unexplained, and does not come back for a continuous period of two or more years, the spouse who is left behind may obtain divorce on the ground of desertion. It connotes one spouse renouncing the marital obligations and leaving permanently. 
• Conversion [Section 13(ii)]– When a party to marriage converts to any other religion against the wishes of their spouse, under the Hindu Marriage Act, the aggrieved party can ask for divorce on the ground of conversion. 
• Insanity [Section 13(iii)]– To appeal for divorce, under the ground of insanity, that is a spouse is of unsound mind, certain requirements need to be fulfilled. The unsoundness of mind of the respondent has to be incurable, and it has to be going on continuously or intermittently in such a way that the petitioner cannot be reasonably expected to live with them.
• Venereal Diseases [Section 13(v)]– A venereal disease like Chlamydia, HIV, Syphilis is sexually transmitted. It forms a ground for divorce of a person if their spouse has a venereal disease.
• Renunciation [Section 13(vi)]– Renunciation of the world is different from renunciation of marital duties that come under desertion. It is an old Hindu practice where a person renunciates the world and decides to walk on the path of god, as an ascetic. They are henceforth said to have no earthly attachments, marital or otherwise. Such a person is considered civilly dead. The spouse they leave behind can apply for divorce on this ground. However it is to be noted that it is different from desertion, where a person doesn’t give up all their earthly attachments, they only give up their marriage with the spouse.
• Presumption of death [Section 13(vii)]– If a person is missing for a period of seven or more years, in a way that neither his family nor friends have any word about him, that person may be presumed to be dead. In such circumstance, their spouse may apply for divorce.This principle has  been strengthened by the precedent of Smt. Romila Chadha v. The State(Government of  Delhi) (2023) in which a District Court of Delhi granted death certificate of the  plaintiff’s father to her after her father had been missing for more than seven years6. This same principle is applicable in Hindu Marriage Act. If one of the spouses is  missing for more than 7 years then the other spouse can seek divorce. 
• Divorce by mutual consent- As per Section 13B, a petition can be filed for divorce by mutual consent of both the parties. The parties are required to wait for one year from date of marriage. They have to show that they are living separately for one or more year and not able to live with one another.

Grounds for divorce available only to wife

The Court and legislature, with the aim to protect and redress women’s grievances made certain grounds for divorce which are available only to the wife.

Husband’s Sexual Offences[Section 13(2)(ii)] :- This particular section states that if a  husband has been found guilty of rape(sexual intercourse or assault without consent),  sodomy(unnatural sexual acts) or bestiality(sexual activity between human and an  animal) after the solemnization of the marriage, then the wife can seek divorce using  this as a ground. In V. Ganesh v. Maya Sundari, although the Kerala High Court  reversed the initial divorce decree passed by a Trial Court, it acknowledged the gravity  of the sexual offense bestiality8. This particular provision is to protect dignity, bodily  integrity and overall well-being of the wife ensuring that she is not looked down upon  by society. 

Divorce through maintenance decree[Section 13(2)(iii)] :- If a wife gets a  maintenance order in her favor under Section 18 of The Hindu Adoptions and  Maintenance Act, 1956 or Section 125 of CrPC, 1973 and continues to live apart for  one year after that i.e. there is no co-habitation between them then she can ask for  divorce.

Pre-Act Marriages and Bigamy[Section 13(2)(i)] :- Bigamy is prohibited under  Section 10 of The Hindu Marriage Act. Section 13(2)(i) states that if a woman  married a man before this Act came into force and that man was already married i.e. he  has a living spouse, then she can challenge the validity of her marriage under this Act. This provision ensures that a woman is protected from being forced into a marriage  that is legally invalid due to the husband’s prior existing marriage. 

Right to annul underage marriage[Section 13(2)(iv)] :- This section states that the  wife has the right to seek divorce if the marriage, whether consummated or not, was  solemnized before she turned fifteen years and after attaining this age she has rejected  the validity of the marriage. However, this needs to be done before she attains eighteen  years of age.

Difference between Judicial Separation and Divorce 

Though judicial separation can be sought based on the grounds for divorce, it is totally  different from divorce. Judicial separation is a decree that allows the couple to live  separately without dissolving the marriage i.e. they are still legally married and cannot  marry anybody else. Marital duties and cohabitation gets suspended during this period.  Court can end decree of judicial separation if reconciliation occurs and they start co habiting. Judicial separation is basically an alternative relief to divorce. The only  similarity between judicial separation and divorce is that judicial separation can be sought  based on the grounds available for divorce.

On the other hand, divorce is an ultimate decree that dissolves a marriage completely. The  parties are free to remarry somebody else since their marriage is dissolved. Both the  parties are discharged from their marital duties and responsibilities and they cannot  reconcile unless they remarry each other. 

By Advocate Shruti Goyal
Advocate in Jaipur