The Hindu Marriage Act, 1955, serves as the cornerstone of matrimonial laws for Hindus in India. It encompasses provisions for marriage, restitution of conjugal rights, judicial separation, and divorce, among others. Section 13 of the Act specifically governs divorce, enumerating the grounds on which a marriage can be dissolved. By incorporating provisions for divorce while maintaining mechanisms for reconciliation, the Act strikes a balance between preserving the sanctity of marriage and addressing irreconcilable differences.
Section 13 of the Hindu Marriage Act, 1955
A Decree ofdivorce has serious consequence for the parties to the marriage and for their childeren, hence before a decree of divorce can be passed under section 13 of the Hindu Marriage Act 1955 the Court must be fully satisfied on the basis of evidence which has been led by the petitioner that a ground for divorce indicate in Section 13 of the said Act
Section 13 lays down the grounds for divorce available to either party in a Hindu marriage. These grounds are rooted in the fault theory of divorce, which stipulates that a party must prove matrimonial misconduct or inability to fulfil marital obligations on the part of the other spouse. The section has been amended over the years to reflect evolving societal norms, including the addition of divorce by mutual consent under Section 13B and the expansion of special grounds available to women under Section 13(2).
Divorce among Hindus was not recognized until the Hindu marriage Act, 1955. Manu says that a marriage can end only with the death of one of the spouses. Any divorce taken otherwise was not only frowned upon but deeply stigmatized and prejudiced. Divorce was considered as a sin.
British India only had the Divorce Act, 1869[i] which provided for the divorce procedure in India for people professing the religion of Christianity. Other than that there was no enactment for the divorce process in India.
It was only in 1955 that parliament passed the Hindu Marriage Act 1955 and provision related to the concept of divorce was introduced in the act. Divorce, the said term has not been defined in the act but it simply means, dissolution of marriage. Various grounds of divorce are mentioned under section 13 of the Hindu Marriage Act[ii]
Grounds for Divorce Under Section 13
General Grounds (Section 13(1))
Section 13(1) of the Hindu Marriage Act, 1955, specifies general grounds for divorce that can be invoked by either spouse. These grounds address circumstances that render a marital relationship untenable, allowing for the dissolution of marriage. Below is a detailed discussion of these grounds, including their legal interpretations and practical applications.
1. ADULTERY- Section 13(1)(i)- Adultery means voluntary sexual intercourse outside lawful wedlock.
It is for the petitioner to prove that there was a lawful marriage and that the respondent had sexual intercourse with a person other than him/her. Marriage must be subsisting at the time of the act.
Key Requirements- For adultery to be established as a ground for divorce:
- The act must be consensual and voluntary.
- A valid marriage must exist at the time of the alleged adulterous act.
Given the private nature of adultery, direct evidence is rarely available. Courts often rely on circumstantial evidence, such as witness testimony, hotel records, or other corroborating facts, to establish its occurrence.
Case
Supreme Court in Joseph Shine Vs Union of India[iii] ruled that adultery is not a crime and struck down section 497IPC. It was observed that two individuals may part if one cheat but to attach criminality to infidelity is going too far. Adultery is a personal matter and how do couple deals with it is a matter of privacy at its pinnacle. This loss of moral commitment in marriage which creates a dent in the relationship has been left for the personal call of the couple. If they wish to, they can proceed with the divorce.
Subbarama Reddiar vs. Saraswathi Ammal (1996)
The Madras High Court held that even a single act of adultery is sufficient to grant a divorce. The ruling emphasised that circumstantial evidence, if convincing, can substantiate claims of adultery, highlighting the practical challenges in proving such allegations.
2. CRUELTY- Section 13(1)(ia)- Treating the petitioner with cruelty after the solemnization of marriage is a ground for divorce. Cruelty can be both physical and mental. Physical beating or causing bodily injury to the spouse amounts to physical cruelty. Physical cruelty is easy to determine. It is difficult to say what constitutes mental cruelty. Cruelty is also an offense under section 498A IPC[iv]
ESSENTIALS-
a) The conduct complained of should be “grave and weighty”
b) The petitioner spouse cannot be reasonably expected to live with the other spouse.
c) It must be something more serious than “ordinary wear and tear of married life”.
Some instances of mental cruelty-
1. False accusations of adultery
2. Demand for dowry
3. Alcoholic and abusive partner
4. Impotency of wife
5. Immoral life of the partner
6. Incompatibility
Types of Cruelty
- Physical Cruelty
Physical cruelty involves acts of violence, threats, or intentional harm. Examples include physical assaults, withholding essential needs, or inflicting injuries. Such acts directly threaten the physical safety and well-being of the aggrieved spouse. - Mental Cruelty
Mental cruelty is broader, involving conduct that causes emotional or psychological distress. Common examples include:
- Verbal abuse and public humiliation.
- False allegations of infidelity or immoral behaviour.
- Persistent neglect or emotional indifference.
- Denying the paternity of children or making baseless accusations.
Case
Savitri Pandey vs. Prem Chandra Pandey (2002)
The Supreme Court defined cruelty as any behaviour that endangers a spouse’s life, health, or mental well-being. It emphasised that cruelty need not be physical; even mental agony, if severe, is sufficient to justify a divorce.
Kerala High Court (2021)
In a progressive ruling, the Kerala High Court recognised marital rape as an act of mental cruelty, setting a precedent for addressing spousal sexual violence within the framework of matrimonial law. This decision marked a significant shift in acknowledging the emotional trauma caused by non-consensual marital acts.
3. DESERTION- Section 13(1)(ib)- It can be simply understood to mean abandoning a spouse. As per section 10(1) of HMA, divorce can happen if the petitioner had been deserted for a continuous period of two years immediately after preceding the presentation of the petition.
Essentials–
a) Factum of separation
b) Animus Deserdendi i.e., intention to desert
c) Desertion without any reasonable cause
d) Desertion without consent of the other party
e) Statutory period of 2 years must have passed before a petition is presented
Case
Bipin Chander Jaisinghbhai Shah vs. Prabhawati (1956): The Supreme Court ruled that desertion is a continuing offence. It begins when one spouse leaves with the intent to desert and continues as long as the separation persists without any efforts at reconciliation. The case emphasised the need to prove both physical separation and intention to desert.
Debananda Tamuli vs. Kakumoni (2022): The Supreme Court acknowledged the concept of constructive desertion, wherein one spouse’s behaviour becomes intolerable, forcing the other to leave. In such cases, the spouse responsible for creating the intolerable conditions is deemed guilty of desertion.
4. CONVERSION- Section 13(1)(ii)- If any spouse ceases to be Hindu and converts into another religion without the consent of the other spouse, a divorce can be granted.
Legal Significance of ConversionConversion under this provision refers to adopting a non-Hindu religion, such as Christianity or Islam. It does not apply to conversions within the ambit of Hinduism, such as to Jainism, Buddhism, or Sikhism, as these are recognised as part of the broader Hindu fold under the Act.
Conversion to another religion reflects a personal choice that can impact the shared values and commitments in a marriage. This ground for divorce ensures that the non-converting spouse is not compelled to endure a marriage that conflicts with their religious beliefs.
Case
Suresh Babu vs. Leela (2006)
The Kerala High Court held that conversion to a non-Hindu religion without the consent of the other spouse justifies the non-converting spouse seeking divorce. The court recognised that conversion fundamentally alters the shared principles upon which a Hindu marriage is based.
5. INSANITY-Section 13(1)(iii)- There are two requirements of insanity as a ground of divorce-
a) The respondent has been of incurable unsound mind
b) Respondent suffering continuously or intermittently from mental disorder of such a kind or extent that it would not be reasonable for the petitioner to continue living with the respondent.
Case
harda vs. Dharampal (2003)
The Supreme Court ruled that courts could direct medical examinations to substantiate claims of mental illness, provided the petitioner offers prima facie evidence. The judgment underscored the importance of protecting the respondent’s privacy while ensuring justice.
Ram Narayan vs. Rameshwari (1988)
In cases involving schizophrenia, the court held that the petitioner must not only establish the existence of the disorder but also demonstrate that cohabitation with the respondent is unreasonable.
6. LEPROSY – Section 13(1)(iv) – Leprosy was previously recognised as a ground for divorce under Section 13(1)(iv) due to its social and health implications. The inclusion of this ground reflected societal stigma and the perceived challenges of living with an affected spouse.
Repeal of the Provision
The Personal Law Amendment Bill, 2019 removed leprosy as a ground for divorce. This legislative change was driven by efforts to eliminate discrimination and align personal laws with modern medical advancements and human rights principles. Leprosy, being a curable disease with early treatment, is no longer seen as a valid reason to dissolve a marriage.
The repeal marked a significant step toward promoting inclusivity and reducing stigma against individuals affected by leprosy.
7. VENEREAL DISEASE –Section 13(1)(v)- A sexually transmitted disease that is incurable and transmittable forms a ground of divorce, if either of the spouses is suffering from any such disease. A disease like AIDS is called venereal disease.
Case
P. Ravikumar vs. Malarvizhi (2013)
The Madras High Court ruled that HIV, though not explicitly mentioned in the Act of 1955, falls within the ambit of venereal diseases due to its communicable nature. This judgment highlighted the evolving understanding of health risks and public health concerns in matrimonial disputes.
8.Renunciation of the World (Section 13(1)(vi))–Renunciation of worldly life by entering a religious order provides a ground for divorce under Section 13(1)(vi) of the Hindu Marriage Act, 1955. When a spouse renounces the world and fully dedicates themselves to a religious life, it severs the marital bond both legally and socially. This provision treats renunciation as equivalent to civil death, absolving the remaining spouse of their marital obligations.
Case
Sital Das vs. Sant Ram (1954)
The Supreme Court emphasised that renunciation must be absolute, involving complete participation in religious rites and ceremonies. Temporary or symbolic acts, such as attending occasional spiritual gatherings, do not constitute valid grounds under this section.
Renunciation is not merely a personal choice but a fundamental shift that effectively ends the shared life of the spouses. By recognising it as a ground for divorce, the law acknowledges the impact of such decisions on the marital relationship, allowing the remaining spouse to seek legal relief.
9. PRESUMPTION OF DEATH- Section 13(1)(vii) –Under Section 13(1)(vii), a spouse who has not been heard from for at least seven years by individuals who would naturally know of their whereabouts is presumed dead. This legal presumption enables the surviving spouse to dissolve the marriage and move forward with their life.
Case
Nirmoo vs. Nikkaram (1968)
The Delhi High Court ruled that if the presumed dead spouse reappears, they may challenge the validity of a second marriage contracted during their absence. However, such challenges do not retroactively invalidate the second marriage, as it was entered into under the lawful presumption of death.
Special Grounds for Wives (Section 13(2))
Section 13(2) grants additional grounds to wives:
- Bigamy (Sec. 13(2)(i)): A wife can seek divorce if the husband has another living wife from a marriage solemnised before 1955.
- Rape, Sodomy, or Bestiality (Sec. 13(2)(ii)): Conviction for these acts post-marriage enables the wife to file for divorce.
- Maintenance Orders (Sec. 13(2)(iii)): If cohabitation does not resume for one year after a maintenance decree.
- Option of Puberty (Sec. 13(2)(iv)): A child bride may repudiate the marriage before turning 18 if it was solemnised before she turned 15
Divorce by Mutual Consent (Section 13B)
Divorce by mutual consent under Section 13B of the Hindu Marriage Act, 1955, was introduced through the Marriage Laws (Amendment) Act, 1976. It allows both parties to a marriage to seek divorce amicably, without attributing fault to one another. This provision ensures that marriages which have irretrievably broken down can be dissolved without prolonged litigation.
Conditions for Divorce by Mutual Consent
For divorce under Section 13B, the following conditions must be satisfied:
- Living Separately for at Least One Year The spouses must have lived separately for at least one year before filing the petition. The term “living separately” does not necessarily mean residing in different places but rather signifies the cessation of marital obligations, including cohabitation and mutual duties.
- Mutual Agreement to Dissolve the Marriage Both parties must willingly agree to end the marriage. The petition must be filed jointly, indicating a shared understanding that the marital relationship cannot continue.
- Cooling-Off Period A cooling-off period of six months from the date of filing the petition is mandated to allow the parties to reconsider their decision. This period can extend up to 18 months, providing adequate time for reconciliation if possible.
Section 13A: Alternative Relief in Divorce Proceedings
Section 13A empowers courts to grant a decree of judicial separation instead of divorce if it believe there is a chance of reconciliation between the parties. This provision reflects the law’s intention to preserve the marital bond wherever possible. Courts may invoke this discretion during divorce proceedings, allowing the couple an opportunity to reassess their relationship. Judicial separation offers a formal acknowledgement of marital discord without severing the marriage entirely, thus providing a legal mechanism to encourage reconciliation.
However, certain grounds, such as conversion, renunciation of the world, or presumed death, are exceptions where judicial separation cannot be substituted for divorce. This limitation recognises that some grounds reflect irreparable breakdowns, leaving no scope for reconciliation.
