Grounds for Divorce under Hindu Marriage Act: Complete Guide for Petitioners

There is an adage that goes, “Marriages are made in heaven and celebrated on Earth.” However, under the Hindu Marriage Act, spouses should know the specific grounds for divorce. Sometimes one spouse feels alienated in the marriage due to various reasons, which eventually ends it.

Women often suffer most when marriages break down. This is especially true if they are illiterate, unemployed, or financially dependent. Therefore, it is crucial for them to understand their rights, laws, and how to exercise these effectively. Today, I will explain the Hindu Marriage Act 1955 to help readers understand the legal provisions for divorce.

Navigating Marital Challenges

In India, personal laws depend on religion, such as Muslim law, Christian law, or Hindu law. Under the Hindu Marriage Act 1955, when couples face irreparable discord, they should consider separation. The process begins when either spouse files a petition for divorce in the family court.

As an advocate, I have seen many legal assistants mishandle such cases. Often, parties remain unaware of legal provisions and rely solely on their advocates, especially women petitioners.

A divorce legally dissolves a marriage. After divorce, couples no longer remain legally bound and regain their unmarried status, allowing them to marry again. Under section 13 of the Hindu Marriage Act 1955, either spouse can file a divorce petition based on specific grounds.

Grounds for Divorce under Section 13 (1)

The grounds for divorce under Hindu Marriage Act are divided into two categories.

• Section 13(1) allows either spouse to file for divorce.
• Section 13(2) allows only the wife to file on certain grounds.

Below are the grounds under section 13 (1).

(1)   Adultery: Adultery means engaging in voluntary sexual intercourse with anyone other than their spouse after marriage.

(2)  Cruelty: Section 13 (1) (ia) defines legal cruelty to justify judicial separation or divorce on grounds such as:

• Actual or threatened physical violence
• Verbal abuse or insults
• Excessive sexual demands
• Refusal of intercourse
• Neglect
• Communicating venereal diseases
• Drunkenness and drug abuse
• Forcing association with improper persons
• False charges of immorality
• Ill-treatment of children
• Suffering from a deadly disease

The Act does not define cruelty specifically, but courts require the behaviour to be so severe that cohabitation becomes impossible.

• Physical Cruelty: It constitutes violence fit to be legal cruelty, which will vary with the status of parties in each case.
• Mental Cruelty: It denotes a set of circumstances that qualify for cruelty.

It is to be noted that sporadic wilful and unjustifiable behaviour of either spouse will not culminate in legal cruelty. But persistent & repeated behaviour to cause reasonable apprehension in the mind of the husband or wife that is harmful or injurious for him/her to live with the other party.

(3)  Desertion: Section 13 (1) (ib) – the expression desertion means the abandoning of the petitioner by the other party to the marriage without reasonable cause, consent, or wish of such party, including willful neglect of the petitioner by the other party to the marriage.

Requisites of Desertion:

• The spouse must have parted or terminated all joint living.
• The spouse who left must agree to the separation.
• The desertion must have been without reasonable cause.
• This state of affairs must have continued for 2 years immediately preceding the presentation of the petition.

(4)  Conversion: Section 13 (1)  (ii)- the other party ceased to be a Hindu by conversion to another religion.

(5)  Insanity: Section 13 (1) (iii)- the other person in the marriage has been incurably of unsound mind or has been suffering continuously or intermittently from mental disorder of such kind and extent that petitioner cannot reasonably be expected to live with respondents.

Venereal Disease, Renunciation, and Presumed Death

(6)  Venereal Disease: Section 13 (I) (V)- Any party suffering from venereal disease in a communicable form.

(7) Renunciation of the world– Section 13 (I) (vi)- any spouse has renounced the world by entering any religious order.

(8)  Presumed Death: Section 13 (I) (vii) Any spouse has not been heard of as being alive for seven years or more by those persons who would naturally have heard of it, has that party being alive.

Judicial Separation and Restitution of Conjugal Rights

(9)  Decree of Judicial Separation: Section 13 (1A) (i)- There has been no resumption of cohabitation between parties to marriage for one year or more after the passing of the decree for judicial separation.

(10) Decree of Restitution of Conjugal Rights- Section 13 (1A) (ii)- that there has been no restitution of conjugal rights between parties to the marriage for one year or more after passing a decree for restitution of conjugal rights.

Irretrievable Breakdown of Marriage

(11) Irretrievable breakdown of Marriage: This theory has been recently propagated wherein it was noticed that the couple were irreconcilable and did not agree to live together, that their marriage is beyond salvation. This is often used as a no-fault ground where neither party is liable to prove the fault of the other party but at least one party can prove to the court that there is no reasonable chance of getting back together.

In the case of Shilpa Sailesh Vs Varun Sreenivasan, the Supreme Court ruled that it has the power to dissolve a marriage under Article 142 of the constitution of India enunciating an inherent power of the court if it is irretrievably broken down.

The irretrievable breakdown of Marriage is not yet a ground for divorce under the Hindu Marriage Act 1955 though the law commission has recommended its inclusion in the act in its 71st report in 1978.

Also, in the case of Amardeep Singh Vs Harveen Kaur, it was held by Honourable Supreme Court that if there are no chances of reunion and there are chances of fresh rehabilitation, the court should not be powerless in enabling the parties to have a better option.

Apart from general grounds for divorce under Hindu Marriage Act, there are exclusive provisions for wives.

Special Grounds for Wife: Divorce under Hindu Marriage Act Section 13 (2)

The grounds for divorce mentioned above are applicable to both the husband and wife. However, the following grounds are exclusive to the wife for filing a divorce under Section 13(2) of the Hindu Marriage Act 1955.

• Bigamy: A wife may present a petition for dissolution of marriage by a decree for divorce on the ground that the husband, before the commencement of this act had married again provided that the other wife is alive at the time of presentation of petition.
• Rape or Sodomy: That the husband has since the solemnization of marriage, been guilty of rape or sodomy. The commission of offenses must be proved De Novo.
• Non-resumption of Cohabitation after a decree or order of Maintenance: Where the decree or order has been passed against the husband awarding maintenance to the wife in a suit under section 18 of the Hindu Adoption and Maintenance Act 1956 or under section 125 of Criminal Procedure Code 1973 and after such decree or order, cohabitation between the parties has not been resumed for one year or beyond, the decree of divorce would be granted.
• Where the wife’s marriage was solemnized before she attained the age of 15 years and she repudiated the marriage after attaining that age but before attaining the age of 18 years.

Section 14 of the Hindu Marriage Act 1955, states no petition for divorce to be presented within one year of marriage.

Condonation and Exceptional Hardship: Legal Considerations

Courts can allow divorce within one year if the petitioner faces exceptional hardship or the respondent commits exceptional depravity. If the petition is based on misrepresentation or concealment, the court can dismiss it or delay the decree’s effect until the marriage completes one year.

Evidence and Advocacy: Key Factors in Divorce Proceedings

Petitioners must prove their allegations with strong evidence. Family members or close friends who know the petitioner’s ordeal often serve as effective witnesses.

Guidance for Petitioners: Choosing an Advocate and Crafting a Strong Case

Petitioners must ensure their petition contains all facts discussed with their advocate. Many cases fail due to poor drafting or lack of evidence. Choosing a knowledgeable and reputed advocate is crucial. A well-drafted petition lays the foundation for success. Understanding these grounds empowers both men and women to exercise their rights confidently and seek appropriate legal remedies.

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