Grounds Of Divorce Under The Hindu Marriage Act,1955

Introduction  

According to Hindu law, marriage can be defined as a holy union or a sacred tie between a  man and a woman which is performed by following several age-old customs or rituals.  “Saptapadi” which means seven steps, is one of the important rituals for Hindu marriage. The  couple takes seven steps around the holy fire and this symbolizes a promise of them being  together forever. Hindu marriage is a sacrament unlike Muslim marriage which is treated as a  contract. It was codified in the year 1955 and “The Hindu Marriage Act, 1955” became a law  on 18th May, 1955. The Act aimed to bring uniformity and legal recognition to marriages  while also providing provisions for separation or divorce. The codification reflected the  constitutional principles of equality and justice, particularly for women who belonged from a  historically disadvantaged position. Before this codification, there was no provision for  women who sought separation or divorce from their husband. 

In this article, we will explore the grounds of divorce available to both husband and wife,  special divorce provisions available only for the wife and judicial separation. “Divorce”  under Hindu Marriage Act can be defined as the legal dissolution of a marriage by a Court’s  order or decree. This can happen due to several reasons such as adultery, conversion to other  religion or desertion to name a few. Before opting for divorce the parties may pray for a  decree of “judicial separation” in which they will stop to co-habit with each other and live  separately. 

Judicial Separation 

“Judicial Separation” has been mentioned in Section 10 of The Hindu Marriage Act. This in  simpler terms means that a couple will pray for a Court’s order to live separately and  continue till further order is passed1. Grounds for filing a petition for judicial separation are mentioned in Section 13(1) and (2) of the Act, which is the same for a divorce petition.

When  an order of judicial separation is passed the couple can no longer co-habit with each other till  further order is passed by the Court or the current petition is dismissed.  Judicial separation is basically a chance given to the spouses to live apart and reflect on their  relationship before taking the final step of divorce. If during this period there is no chance of  reconciliation then they may opt for the final step i.e. divorce. In Hirachand Srinivas  Managaonkar v. Sunanda (2001), the Supreme Court of India stated that a decree of judicial  separation only suspends certain marital obligations without dissolving the matrimonial  bond2. 

Statutory Grounds for Divorce 

The parties may opt for a divorce if they do not reconcile during judicial separation.  “Divorce” under this Act means the dissolution of a marriage by a Court’s decree based on  several grounds such as adultery, mental disorder, renunciation of the world etc. However,  Section 14 states that a petition for divorce cannot be filed within one year of the marriage  except in exceptional situations. Let us now explore the various grounds for divorce. 

1. Adultery[Section 13(1)(i)] :- The act of voluntarily having sexual intercourse outside  the marriage is known as adultery. Section 13(1)(i) of the Act states that if any one of  the spouses voluntarily had sexual intercourse with a person other than their spouse after  the solemnization of the marriage, it constitutes a ground for divorce. The aggrieved  spouse can file a petition for divorce to dissolve the marriage. In Hirachand Srinivas  Managaonkar v. Sunanda (2001), the Supreme Court of India stated that the husband’s  continued adultery is an ongoing matrimonial offence and is not wiped out by a decree  of judicial separation
2. Cruelty[Section 13(i)(ia)] :- This particular provision deals with cruelty. If one of the  spouses treats the other with cruelty then divorce can be sought. In Samar Ghosh v. Jaya Ghosh (2007), the Supreme Court reversed the judgement of the High Court and  restored the Trial Court’s decree of divorce which was granted based on mental cruelty5.  This is a landmark precedent which made courts accept the mental aspect of cruelty. 
3. Desertion[Section 13(i)(ib)] :- If a spouse abandons the other for a period of more than  two years then the other spouse can file for divorce under this section. Mere temporary absence or a short quarrel does not constitute desertion and that there must be clear  evidence of sustained abandonment. 

4. Religious Conversion[Section 13(ii)] :- When one of the spouses ceases to be a hindu  i.e. converts to another religion then the other spouse can seek divorce under Section  13(ii) of the Act. The rationale behind this provision is that a change in religion often  leads to irreconcilable differences disrupting the shared religious, cultural and moral  framework of the marriage. 
5. Unsound Mind[Section 13(iii)] :- Mental disorder is a valid ground for divorce under  this Act. If a spouse is suffering from any mental illness continuously or intermittently  and it has become impossible for the two to live together, then the other spouse may file  for a petition of divorce. Section 13(iv) was omitted in 2019. 
6. Venereal Disease[Section 13(v)] :- If a spouse has been suffering from a venereal  disease in a communicable form, the other spouse may seek divorce. The motive is to  protect the health, safety and marital welfare of the non-infected spouse. However,  provisions regarding leprosy were removed as they were considered outdated. 
7. Renunciation of the World[Section 13(vi)] :- A person is said to renounce the world  when they abandon worldly pleasures, societal and marital ties and ultimately becomes an ascetic. In this scenario, the other spouse can seek divorce using this ground. This  provision protects the non-renouncing spouse from being forced to remain in a marriage  where the other spouse has clearly and permanently abandoned marital obligations. 
8. Missing for a period of seven years or more[Section 13(vii)] :- The law presumes a  missing person may be dead after 7 years of no communication. Section 108 of The  Indian Evidence Act, 1872 states that if a person has not been heard of for seven years,  the burden of proving they are alive rests on the person claiming so. This principle has  been strengthened by the precedent of Smt. Romila Chadha v. The State(Government of  Delhi) (2023) in which a District Court of Delhi granted death certificate of the  plaintiff’s father to her after her father had been missing for more than seven years6. This same principle is applicable in Hindu Marriage Act. If one of the spouses is  missing for more than 7 years then the other spouse can seek divorce. 

These above mentioned provisions are available to both the husband and wife maintaining  equality and mutual protection under The Hindu Marriage Act, 1955. However the  provisions mentioned later is available only to the wife reflecting special protection granted  to the wife. 

Special Provisions of Divorce available only for the Wife Till now the provisions available to both husband and wife has been discussed. However,  since women were historically in a disadvantageous position in society, The Hindu  Marriage Act, 1955 provides certain special provisions for divorce exclusively available to  the wife, aimed at protecting her rights, security and welfare within the marriage. Let us  now explore the grounds for divorce available only to the wife. 

1. Pre-Act Marriages and Bigamy[Section 13(2)(i)] :- Bigamy is prohibited under  Section 10 of The Hindu Marriage Act. Section 13(2)(i) states that if a woman  married a man before this Act came into force and that man was already married i.e. he  has a living spouse, then she can challenge the validity of her marriage under this Act. This provision ensures that a woman is protected from being forced into a marriage  that is legally invalid due to the husband’s prior existing marriage. 

2. Husband’s Sexual Offences[Section 13(2)(ii)] :- This particular section states that if a  husband has been found guilty of rape(sexual intercourse or assault without consent),  sodomy(unnatural sexual acts) or bestiality(sexual activity between human and an  animal) after the solemnization of the marriage, then the wife can seek divorce using  this as a ground. In V. Ganesh v. Maya Sundari, although the Kerala High Court  reversed the initial divorce decree passed by a Trial Court, it acknowledged the gravity  of the sexual offense bestiality8. This particular provision is to protect dignity, bodily  integrity and overall well-being of the wife ensuring that she is not looked down upon  by society. 
3. Divorce through maintenance decree[Section 13(2)(iii)] :- If a wife gets a  maintenance order in her favor under Section 18 of The Hindu Adoptions and  Maintenance Act, 1956 or Section 125 of CrPC, 1973 and continues to live apart for  one year after that i.e. there is no co-habitation between them then she can ask for  divorce. 

4. Right to annul underage marriage[Section 13(2)(iv)] :- This section states that the  wife has the right to seek divorce if the marriage, whether consummated or not, was  solemnized before she turned fifteen years and after attaining this age she has rejected  the validity of the marriage. However, this needs to be done before she attains eighteen  years of age. 

The special provisions for divorce exclusively available to the wife are aimed at protecting  her rights, dignity and overall well-being. It ensures that she is not stigmatized by the  society and her marital rights and overall interests are duly protected. 

Divorce by Mutual Consent 

A couple can seek divorce mutually i.e. both husband and wife together can present a  petition to the district court for divorce. This provision for mutual divorce is provided in  Section 13B of the Act. However, there lie certain conditions. First, both the parties must  be living separately for at least one year. Second, they both agree that they cannot live  together anymore and they have mutual consent to the dissolution of the marriage. 

After the petition has been filed the couple must wait for six months before the Court can  grant them divorce. The petition must be finalized within eighteen months else it will  lapse. Meanwhile, during this period either party can withdraw consent if they change  their mind. 

The Court will ensure that their marriage was legally solemnized and their statements in  the petition are given voluntarily and are genuine. If the Court is satisfied with its findings,  then it may grant a decree of divorce. 

Difference between Judicial Separation and Divorce Though judicial separation can be sought based on the grounds for divorce, it is totally  different from divorce. Judicial separation is a decree that allows the couple to live  separately without dissolving the marriage i.e. they are still legally married and cannot  marry anybody else. Marital duties and cohabitation gets suspended during this period.  Court can end decree of judicial separation if reconciliation occurs and they start co habiting. Judicial separation is basically an alternative relief to divorce. The only  similarity between judicial separation and divorce is that judicial separation can be sought  based on the grounds available for divorce.

On the other hand, divorce is an ultimate decree that dissolves a marriage completely. The  parties are free to remarry somebody else since their marriage is dissolved. Both the  parties are discharged from their marital duties and responsibilities and they cannot  reconcile unless they remarry each other.  

In short, it can be said that judicial separation is a temporary separation between the  spouses without ending the marriage and divorce is the complete dissolution of a marriage.  Both judicial separation and divorce happens only after a Court’s order. 

Conclusion 

In conclusion, The Hindu Marriage Act, 1955 clearly lays down the grounds on which a  marriage can be dissolved, the most significant provision being adultery. The recognition  of adultery as a ground of divorce along with other provisions is meant to protect the  dignity and rights of the spouses within the marital relationship. 

Certain special provisions meant only for the wife are mentioned under Section 13(2) such  as pre-act marriages and bigamy of the husband, husband’s sexual offences etc. These  special provisions meant only for the wife is aimed at protecting her dignity and to prevent  her from getting stigmatized by the society. 

On the other hand, judicial separation mentioned under Section 10 provides an opportunity  for reconciliation before the final step i.e. divorce. Though judicial separation can be  sought based on the grounds for divorce, it totally different from divorce. Divorce  completely dissolves a marriage whereas judicial separation is a period of temporary  separation. After divorce the spouses can remarry but during judicial separation they  cannot.