Grounds of divorce under section 13 of Hindu marriage act 1955
Earlier divorce was unknown to general Hindu law as marriage was seen as an indissoluble union between the husband and wife. Due to the ancient literature of Hindus – The Manu; the wife cannot be abandoned, released by sale nor any martial ties can be severed. Hindu law does not contemplate divorce due to the long lying custom, nevertheless is enforced by law. Also in modern relationships, Chanakya he pronounced in his writings that marriage can be dissolved if it is illegitimate.
Nevertheless, the above concept was reversed when the Legislature introduced the Hindu Marriage Act, 1955.
Before the discussion of the grounds on which the divorce can be filed under Section 13 of the Hindu Marriage Act 1955, there is a need to understand the various theories for filing the divorce.
Theories of divorce
There are 3 theories on divorce –
- Fault Theory
- Mutual Consent Theory
- Irretrievable Breakdown Of Marriage Theory
The fault theory of divorce suggests that divorce can be attained due to any matrimonial offence committed by either of the spouses. For instance – A wife can file a divorce because her husband has committed rape. It is essential that one spouse needs to be innocent and aggrieved, while the other must be guilty. If both the parties are guilty, there is no remedy provided for the same.
Mutual Consent Theory:
The mutual consent theory of divorce suggests that divorce can be attained by mutual decision of the parties to separate. The rationale behind this theory is that if two people can enter into this nuptial bond on free will, they should also be allowed to leave / or dissolve it on their own free will. The only criticism of this theory is that this theory might serve a platform for hasty divorces without giving a second chance to reconsider the relationship.
Irretrievable breakdown of marriage theory:
The irretrievable breakdown of marriage theory suggests that due to frustration in performing the rights and obligations as a spouse of one another being in the marriage that there is no chance of the individuals living as a husband or wife due to underlying bitterness in a relationship, divorce is granted with maximum fairness.
Grounds of Divorce under section 13 of HMA
Since marriage is an institution made to adhere to living in a society with at most harmony and good morals to safeguard the interest of the people. Divorce is neither encouraged nor favoured, but; is granted only in cases of grave instances.
In the codified of Hindus, the Hindu Marriage Act 1955 recognises all the three theories laid down in case of divorce. The divorce can be filed on any of the 3 theories but granted based on only one. The Hindu Marriage Act recognises the Fault theory and grants 9 grounds on which divorce can be filed by a wife (section 13 (1)) and also 2 grounds wherein the wife alone can sue the husband (section 13 (2)). The 1976 amendment Act inserted two additional fault grounds of divorce for the 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-
- Conversion to any religion
- Venereal Disease
- Renunciation from world
- Presumption of Death
When there is a voluntary or consensual sexual intercourse between one’s spouses with someone either married or unmarried of the opposite gender during the subsistence of the marriage, it is adultery. It also follows that since adultery is a matrimonial offence, it must be committed when the marriage exists. And adultery is deemed to be called only if the intercourse was consensual. In Swapna Ghose v. Sadanand Ghose, the wife found her husband and the adulteress to be lying in the same bed at night and further evidence which was recorded of the neighbours 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.
Cruelty includes both physical and mental manifestations. Since it is easier to establish physical cruelty by pieces of evidence and proofs; similarly, it is difficult to establish the instance of mental cruelty. Yet in the case of Pravin Mehta v. Inderjeet Mehta, the court has defined mental cruelty as ‘The state of mind.’ Cruelty includes-
- False accusations of adultery or unchastity.
- The demand for dowry.
- Refusal to have marital intercourse/children.
- Birth of a child.
- The threat to commit suicide. Wife’s writing false complaints to the employer of the husband.
- Incompatibility of temperament.
- Irretrievable breakdown of the marriage.
When either of the spouses leaves the marital home or the companionship of the spouse to the desert, without the consent of the parties and also without the reasonable cause; this is known as desertion. When this ceases of companionship is continuously for a period of 2 years, is deemed to be desertion. In Bipinchandra v. Prabhavati 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 either of the spouses ceases to be a Hindu in and during the existence of marriage converts himself/ herself to be a Muslim, Christian or any other than that of being a Hindu; finds himself to be guilty of which the other spouse can file a divorce on the grounds of conversion.
When either of spouse suffers from constant bouts of insanity occasionally or constantly, the other spouse can file this as a ground of divorce as it can truly affect their marital life.
The contagious nature of leprosy earns a leper avoidance and shun from society. This is a psychological as well as a physical hazard to the spouse. However, the onus lies completely on the petition to prove this beyond the vicinity of doubt.
This serves as a ground for divorce if one of the spouses is seen to be suffering from a contagious disease. However, it is not necessary that it is communicated to the petitioner but the chances from it being communicated are seen sufficient.
Renunciation from the world:
This serves as a ground for divorce only under the |Hindu law. If either of the spouses has renounced the world, that is, has become an ascetic than the other spouse can file a divorce. But this renunciation should be absolute and unambiguous.
Presumption of death:
If either of the spouses is not heard for a continuous and brief period of 7 years then he/ she will be presumed to be dead. 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. The decree of divorce granted even if the spouse was alive but unheard remains valid.
Grounds Provided To The Wife for Divorce:
Besides the grounds mentioned 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
- Rape, Sodomy, Bestiality
- Non-Resumption Of Cohabitation After A Decree/Order Of Maintenance
- Repudiation Of Marriage
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. Patil 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 in both the marriages are valid marriages & the other wife (2nd wife) should be present at the time of filing of the petition.
Rape, Sodomy, Bestiality-
If the husband is charged with any of the following stated, the wife is granted a divorce.
- Rape is when the petitioner’s husband engages into any kind of forceful penetration, sexual intercourse etc. with any other woman, girl; it is served as a ground for divorce.
- Sodomy is when the husband of the petitioner engages in penetration or sexual activity with a minor; it serves as a ground of divorce.
- Bestiality is when the petitioner’s husband engages in any kind of vulgar sexual activity with an animal; it serves as a ground of divorce.
Non-Resumption of Cohabitation after A Decree/Order of Maintenance:
If a wife has obtained an order of maintenance in proceedings & 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 is a ground for divorce when the marriage was solemnized before the wife attained fifteen years of age and she has refused to accept the marriage before turning eighteen. Such rejection may be explicit (written or spoken words) or maybe implicit from the conduct of the wife (left husband & refused to come back).
Finally, in my view, divorce was never considered to be a solution or a gateway from a troubled marriage. Over the period this stigma was broken, people spoke about their problems openly. I think where marriage is considered to be a union of two individuals with free consent, divorce should be seen as debarkation from a relationship with the consent of two individuals who chose to be in this sacred union called marriage.
Author: Ayushree Mehta,
NMIMS Bengaluru/ 1st year student