INTRODUCTION
The word ‘divorce’ comes from the Latin word ‘divortium’, which means ‘to separate’. In legal terms, divorce means the end of a marital union. A decree of divorce ends the marital union and dissolves the relationship between husband and wife. Divorce did not exist in ancient Hindu law. Marriage was considered an unbreakable bond. The Hindu Marriage Act 1955 introduced the concept of divorce. The provisions relating to divorce are mentioned in sections 13, 13[1A], 13A, 13B, 14 and 15 of the Hindu Marriage Act.[1]
GROUNDS FOR DIVORCE
Section 13(1):[2]
- Mental Disorder.
- Venereal Disease.
- Missing for a period of seven years or more.
Section 13(2):[3]
- Husband married again (Bigamy).
- Husband proven guilty of Rape, Bestiality or Sodomy
- Maintenance Decree passed under section 144 of the BNSS[4] or Section 18 of the Hindu Marriage Act, 1955, and no Cohabitation for 1 year or more.
- Marriage solemnised when the wife was U-15, and she repudiated the Marriage before she was 18.
Section 13-B:[5] Living separately for a period of one year or more, not being able to live together, and that they have mutually agreed that the marriage should be dissolved.
GROUNDS AVAILABLE TO BOTH HUSBAND AND WIFE – SECTION 13(1)
Adultery [Section 13(1)(i)]: Adultery is the act of voluntarily engaging in sexual intercourse outside of marriage. Section 13(1)(i) of the Act states that if, after the consummation of a marriage, either spouse voluntarily engages in sexual intercourse with a person other than his or her spouse, it is grounds for divorce. The aggrieved spouse may file a divorce petition to dissolve the marriage.
Cruelty [Section 13(1)(IA)]: It provides that the divorce petition may be presented by either of the parties. Can be made if, after the marriage has been solemnised, the other party has filed a petition alleging that the other party has been cruel to the other. The term cruelty was defined for the first time in Russell v Russell.[6]
In Dastane v Dastane[7], the court established a criterion to determine whether a case amounted to cruelty. The criteria for determining whether a conduct amounted to statutory cruelty are as follows:
- An alleged act of cruelty must be proved in accordance with the law of evidence.
- Such conduct is likely to cause actual injury or loss in the mind of the petitioner; there should be apprehension.
- The apprehension must be reasonable considering the position of the parties. The petitioner should not have taken advantage of his position.
- Petitioner should not have condoned cruelty’s actions.
In the Shobha Rani vs Madhukar Reddy[8] In this case, the Supreme Court ruled that the demand for dowry also amounts to cruelty.
Desertion [Section 13(1)(IB)]: This can be done if the other party has deserted the petitioner for a continuous period of at least two years immediately before the submission of the slip. The term desertion is not defined in the Act, but it means withdrawal from marital duties. It is a deliberate abandonment by one spouse. It involves abandoning another without justifiable cause and without the other’s consent.
Conversion [Section 13(1)(ii)][9]: It provides that either party can file a petition for divorce if the other party has converted to another religion and is no longer a Hindu. Conversion of religion does not in itself constitute a ground for divorce; the converting husband or the wife will not have the right to divorce on the ground of religious conversion, as it is her own. It would be like taking advantage of wrongdoing.
Unsound Mind [Section 13(1)(iii)][10]: This section provides that a divorce petition may be presented by either party if the respondent is incurably mentally unsound, or is suffering from such a mental disorder, whether continuously or intermittently, that the petitioner cannot reasonably be expected to live with the respondent. The term mental disorder refers to mental illness, an arrest or incomplete development of the brain, psychosis, or any other disorder or disability of the brain, and includes schizophrenia.
The Supreme Court in Ram Naraian Gupta v Smt Rameshwari Gupta[11]. In this case, it was held that the severity of the mental disorder must be such that the spouse seeking relief cannot reasonably be expected to live with the other.
Venereal Disease [Section 13(1)(v)]:[12] Sexually transmitted diseases refer to diseases that spread through sexual contact. This section provides that a divorce petition may be filed by either party if the other party is suffering from a sexually transmitted disease.
Renunciation of the World [Section 13(1)(vi)]:[13] It provides that if the other party renounces the world by entering a religious sect, a divorce petition can be filed by either party. Renunciation of the world is equivalent to civil death, and hence it is considered a ground for divorce.
Missing for a Period of Seven Years or More [Section 13(vii)]:[14] It provides that if the information about the other party being alive is given to those persons after 7 years, or if the marriage has not been solemnised for a period longer than the period of time for which the marriage would have been known if the marriage had been actually alive, the divorce petition filed by either party cannot be entertained. [Evidence Section 108 of the Act)
Section 13(1-A) [Dissolution Doctrine]:[15] Cohabitation cannot be resumed for a period of one year or more after a judicial separation order. Restitution of conjugal rights will not take place until one year or more after the sale has passed. In Naveen Kohli v. Neelu Kohli, the Supreme Court held that continuous humiliation, false allegations, and mental torture constituted cruelty.[16]
Grounds Available only to Wife Section 13(2) –
- Husband remarried (Bigamy): When a husband remarries during the life of his legally wedded wife, it amounts to bigamy.
- The husband was found guilty of rape, bestiality, and unnatural sex.
- Maintenance order passed under section 125 of the Code of Criminal Procedure[17] and section 18 of the Hama, and not having sexual intercourse for a year or more.
- The marriage was solemnised when the wife was under 15 years of age, and she repudiated the marriage before she attained the age of 18 years.[18]
Section 13b – Divorce by Mutual Consent [Principle of Mutual Consent]: Section 13B[19] was added by the Marriage Laws (Amendment) Act, 1976[20], which provides for divorce by mutual consent. The parties involved in the marriage ceremony, whether before or after the Amendment Act, can avail themselves of the benefit of this provision.
ESSENTIAL ELEMENTS FOR DIVORCE BY MUTUAL CONSENT
Both parties must have lived separately for a period of one year or more.
- The two sides have been unable to coexist.
- Both parties have decided to dissolve the marriage by mutual consent.
- Both parties have filed a joint petition for divorce by mutual consent.
In Amardeep Singh v Harleen Kaur,[21] the Supreme Court held that the six-month period specified in Section 13B(2) is not mandatory but rather prescriptive. Where there is no possibility of the parties’ resuming cohabitation after exhausting all efforts at mediation and conciliation, the court may exercise its discretion based on the facts and circumstances of each case. Section 14 of the Hindu Marriage Act provides that parties can file a divorce petition only after one year has passed from the date of marriage.[22]
CONCLUSION
Marriage is considered a sacred bond in Hindu culture. Before the Hindu Marriage Act of 1955, there was no allowance for divorce, because it was considered very harsh for the Indian society of the time. Women were considered to be in this rigid system. Indirectly, she was a victim of divorce. Under section 13 of the Hindu Marriage Act 1955, the grounds for divorce are given. However, the Hindu Marriage Act, 1955, with the coming into force of the concept and its related provisions in a changing society Began to evolve according to the needs of an ever-changing society.
Author: Rishu Pandey
References:
[1] Hindu Marriage Act 1955, ss 13, 13(1A), 13A, 13B, 14 and 15
[2] Ibid s 13(1)
[3] Ibid s 13(2)
[4] Bharatiya Nyaya Sanhita 2023
[5] Hindu Marriage Act 1955, s 13B
[6] Russell v Russell [1924] AC 687
[7] Dr N G Dastane v Mrs S Dastane (1975) 2 SCC 326
[8] Shobha Rani v Madhukar Reddy (1988) 1 SCC 105
[9] Hindu Marriage Act 1955, s 13(1)(ib)
[10] Ibid s 13(1)(iii)
[11] Ram Naraian Gupta v Smt Rameshwari Gupta (1988) 4 SCC 247
[12] Hindu Marriage Act 1955, s 13(1)(v)
[13] Ibid s 13(1)(vi)
[14] Ibid s 13(1)(vii)
[15] Ibid s 13(1A)
[16] Naveen Kohli v Neelu Kohli (2006) 4 SCC 558
[17] Criminal Procedure Code 1973, s 125
[18] Hindu Marriage Act 1955, s 13(2)
[19] Hindu Marriage Act 1955, s 13B
[20] Marriage Laws (Amendment) Act 1976
[21] Amardeep Singh v Harleen Kaur (2017) 8 SCC 746
[22] Hindu Marriage Act 1955, s 14
