Indian Legal System > Civil Laws > Family Laws > The Hindu Marriage Act, 1955 > Divorce
A Hindu marriage is considered a sacrament. It is an irrevocable relationship between husband and wife established through rituals and customs. In case of a failed marriage, they had to continue with the marriage and couldn’t break the marriage. The Hindu Marriage Act, 1955 provide that in case of a failed marriage, the parties do not need to suffer in the marriage and can easily break their matrimonial alliance through Judicial Separation (Section 10) or by a decree of Divorce (section 13). It is upon the parties to choose between the two methods of dissolution.
Prior to enactment of the Hindu Marriage Act, 1955, it was practiced that in the absence of a custom to the contrary, there can be no divorce between a Hindu husband and his wife, who by their marriage, had entered into a sacred and indissoluble union and neither conversion nor degradation nor loss of caste nor the violation of an agreement against polygamy dissolves the marriage tie.
In Keshav v. Gandhi 39 Bom 588 case, the Bombay High Court condemned a custom allowing divorce as a matter of course on payment of a fine fixed by the caste.
In Thangammal v. Gangayammal (1945)1 MLJ 229 case, the Madras High Court holds a custom valid which enables either spouse to divorce the other with the latter’s consent.
Provisions of Section 13 of the Hindu Marriage Act, 1955:
Either party to the marriage, whether solemnized before or after the commencement of the Hindu Marriage Act, 1955 can under Section 13 of the Act file a petition for divorce. This petition can be filed only after completion of one year of marriage. It is a permanent end of marital rights between the spouses. Thus in divorce, the marriage ends. The relief of divorce may be obtained in respect of any marriage whether solemnized before or after the commencement of this Act. Thus, Section 13 is retrospective as well as prospective operation.
Grounds for Divorce Section 13(1) and 13(2):
The grounds for divorce as given under Section 13(1) of the Act. Either party to the marriage, whether solemnized before or after commencement of the Hindu Marriage Act, 1955 can under Section 10 of the Act file a petition for judicial separation on any one ground as prescribed in Section 13(1) and in case of wife also on any of the grounds specified in Section 13(2) of the Act.
- Adultery: If other spouse after the solemnization of the marriage had voluntary sexual intercourse with any person other than his or her spouse after solemnization of marriage.
- Cruelty: If after solemnization of marriage, one of the spouses treats the other with cruelty. Cruelty can be of both kinds: physical and mental. It is physical when the body is injured. It is mental when feeling and sentiments are wounded. The petitioner may be meted with the cruelty of either or both types.
- Desertion: Desertion means withdrawing from the matrimonial obligation, i.e., not permitting or allowing and facilitating the cohabitation between the parties. If the other party has deserted the spouse without the consent or against the wish of such party and includes the willful neglect of the petitioner by the other party to the marriage for a continuous period of 2 years without any reasonable ground immediately preceding the presentation of the petition.
- Conversion: If one of the spouses has ceased to be a Hindu. When one spouse voluntarily relinquishes one’s religion and adopts another distinctive religion after formal ceremonies, it is conversion on his part.
- Insanity: If the other party is of unsound mind or has been suffering continuously from mental disorder of such a kind and to such an extent that the petitioner cannot live with the other party.
- Leprosy: If the other party has been suffering from a virulent and incurable form of leprosy.
- Venereal disease: If the other party has been suffering from venereal disease in a communicable form.
- Renounced the world: If the other spouse has renounced the world by entering any religious order. Entering into the sanyasa ashrama in the old age is in accordance with Hindu religion. A person may enter into a holy order even at a young age and it is not contrary to the Hindu religion. But it becomes a ground for judicial separation.
- Presumption of death: Nothing has been heard about the spouse’s aliveness for seven years.
All these grounds shall be discussed in detail in upcoming Articles.
In addition to the above-mentioned grounds, Sub- Section (2) of Section 13 of the Hindu Marriage Act, 1955 provides four additional grounds to the women for obtaining a divorce from her husband. Thus, a wife may file a petition for divorce on any one of the following four grounds:
- Husband has more than one wife living: If the husband had married before the commencement of the Act and after the commencement of the Act has again remarried either of the wives can present a suit for judicial separation provided the other wife is alive at the time of presentation of the petition;
- Rape, Sodomy, or Bestiality: If a Husband is guilty of an offense like rape, sodomy, or bestiality, the wife can present a petition for judicial separation;
- A Criminal Suit Against HusbandNon-Resumption of Cohabitation after a Decree/Order Of Maintenance: If in a suit under Section 18 of the Hindu Adoptions and Maintenance Act, 1956 or in a proceeding under Section 125 of the Code of Criminal Procedure, 1973, (or under the corresponding Section 488 of the Code of Criminal Procedure 1898, a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards;
- Repudiation of Marriage: If the marriage of women was solemnized before attaining 15 years of age, on her attainment of 15 years she could repudiate it but before attaining the age of 18 years.
Section 13 lays down three types of grounds for divorce, which may be classified as follows:
- Nine grounds based on the “fault-disability” theory of divorce which only the ‘aggrieved spouse’ may avail. These are laid down in sub-Section (1).
- Two grounds based on the “Break down” theory of divorce which either the ‘aggrieved’ or the ‘guilty’ spouse may avail.
- Four special grounds, which only a wife can avail. These are laid down in subSection (2).
In all, there are 15 grounds for divorce.
Amendments in Section 13 of the Hindu Marriage Act, 1955:
This Section has, since its initial enactment in 1955, been amended twice- first in 1964 and then, drastically in 1976.
The Hindu Marriage Act, 1955 originally based divorce on the fault theory and enshrined 9 fault grounds in Section 13 (1) on which, either the husband or the wife could sue for divorce. Section 13 has undergone a substantial change by reason of subsequent amendments. The grounds mentioned in sub-Section (1) and (1-A) are available to both the husband and wife; while the grounds mentioned under sub-Section (2) are available only to the wife.
In 1964, Section 13 (1-A) has been inserted containing two clauses under which, non-resumption of cohabitation for two years or upwards after the decree of judicial separation or restitution of conjugal rights was made a ground of divorce. This is a modification of clauses (viii) and (ix) of Section 13 of the Hindu Marriage Act, 1955. By the Marriage Laws (Amendment) Act 1976, the period of two years is reduced to one year. Section 13 (1-A) introduced an element of Break-down theory in the Hindu Marriage Act 1955.
The Hindu Marriage Act, 1955 originally contained two fault grounds in Section 13 (2) on which, a Hindu wife alone could sue for divorce. The Marriage Laws (Amendment) Act 1976 has inserted two additional fault grounds of divorce for wife and a new Section 13-B under which, divorce by mutual consent has been made available as a matrimonial relief. Thus, in the modern Hindu law, the position is that all the three theories of divorce are recognized and divorce can be obtained on the basis of any one of them. Further, the customary mode of divorce is also retained.