It was only in 1955 that parliament passed the Hindu Marriage Act 1955 and provision related to the concept of divorce was introduced in the act. Divorce, the said term has not been defined in the act but it simply means, dissolution of marriage. Various grounds of divorce are mentioned under Section 13 of HMA 1955.

The term ‘Divorce‘ word comes from Latin word ‘divortium‘ which means to separate or to turn aside. it means putting an end to the marriage by dissolution of marital relations. The parties can no longer to be wife and husband.

Grounds of Divorce: Hindu Marriage Act Divorce provisions

Section 13 of the Hindu Marriage Act provides the grounds for divorce, and they are stated below.

1. Adultery: means voluntary sexual intercourse outside lawful wedlock. It is for the petitioner to prove that there was a lawful marriage and that the respondent had sexual intercourse with a person other than him/her. Marriage must be subsisting at the time of the act.

Essentials of Adultery:

a) One of the spouses involved in the intercourse with another person, married or unmarried, of the opposite sex.

b) Intercourse should be voluntary and consensual.

c) At the time of the act, the marriage was subsisting.

d) There must be sufficient circumstantial evidence to prove the liability of another spouse.

Supreme Court in Joseph Shine Vs Union of India 2018 SC 1676 ruled that adultery is not a crime and struck down section 497IPC. It was observed that two individuals may part if one cheats but to attach criminality to infidelity is going too far. Adultery is a personal matter and how a couple deals with it is a matter of privacy at its pinnacle. If they wish to, they can proceed with the divorce.

2. Cruelty – Section 13(1)(I-A)

Treating the petitioner with cruelty after the solemnization of marriage is a ground for divorce. Before 1976 amendment, cruelty was a ground for judicial separation only. Now, it is a ground for both judicial and divorce. “Cruelty” means such conduct as to cause physical violence of causing bodily hurt or danger to the person of the petitioner. Cruelty can be both physical and mental. Physical beating or causing bodily injury to the spouse amounts to physical cruelty. Physical cruelty is easy to determine but it is difficult to say what constitutes mental cruelty. Cruelty is also an offense under section 498A IPC.

In Russel Vs Russel (1897) A.C.395, It is defines as ” Conduct of such a character as to have caused danger to life, limb or health, bodily or mental, or as to give rise to reasonable apprehension of such danger.” The concept of cruelty varies from time to time and from society to society depending upon socio economic conditions.

Essentials-

a) The conduct complained of should be “grave and weighty”

b) The petitioner spouse cannot be reasonably expected to live with the other spouse

c) It must be something more serious than “ordinary wear and tear of married life”.

Some instances of mental cruelty-

a. False accusations of adultery

b. Demand for dowry

c. Alcoholic and abusive partner

d. Impotency of partner

e. Immoral life of the partner

f. Incompatibility

CaseLaw: Balram Prajapati vs Susheela Bai II (2003) DMC 708 In this case, the petitioner proved that his wife’s behaviour with him and his parents was aggressive and uncontrollable and many times she filed the false complaint against her husband. The court accepts the petition and grants the divorce on the ground of mental cruelty.

Sreepadachandra Vs Vasantha 1970 Mys. 232 court illustrated on mental cruelty. The act of wife in abusing and insulting the husband in public was held to be cruelty.

3. Desertion – Section 13(1)(I-B):

It can be simply understood to mean abandoning a spouse. As per section 10(1) of HMA, divorce can happen if the petitioner had been deserted for a continuous period of two years immediately after preceding the presentation of the petition.

Essentials:

a. Factum of separation

b. Animus Deserdendi i.e., intention to desert

c. Desertion without any reasonable cause

d. Desertion without consent of the other party

e. Statutory period of 1 years must have passed before a petition is presented In the case, Bipin Chander Jaisinghbhai Shah vs Prabhawati, 1957 AIR SC 176, The respondent leaves the house with the intention to abandon his wife. Later the wife approaches the court, but the defendant proved that even though he left the house with the intention to desert, he tried to come back and he was prevented from doing so by the petitioner. Here, the defendant cannot be held liable for desertion.

4. Conversion – SECTION 13(1)(II)

If one of the spouses converts his religion to any other religion without the consent of the other spouse, then the other spouse can approach the court for divorce.

Illustration:

A, a Hindu has a wife B and two children. One day A went to church and converted to Christianity without the consent of B, here B can approach the court and seek for divorce on the ground of conversion.

5. Insanity (unsound mind) -SECTION 13(1)(III)

Insanity means when the person is of an unsound mind. Insanity as a ground of divorce has the following two requirements-

a) The respondent has been incurably of unsound mind.

b) The respondent has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

In the case, Vinita Saxena vs Pankaj Pandit  (2006)3 SCC 778 The petitioner filed a case to get the divorce from the respondent on the ground that the respondent was suffering from Paranoid Schizophrenia which means mental disorder. She came to know these after her marriage. Here, the court grants the divorce on the ground of insanity of husband.

6. Leprosy – SECTION 13(1)(IV) (OMITTED)

Leprosy was earlier one of the grounds of divorce is now omitted. The Law Commission in its report had recommended repeal of any provision which were discriminatory against leprosy- affected people. India is also a signatory to a UN Resolution which calls for the elimination of discrimination against persons suffering from leprosy. Parliament on 13th February 2019 passed, Personal Law Amendment bill removing leprosy as a ground for divorce under five personal laws including the Hindu Marriage Act.

In the case of Swarajya Lakshmi vs G. G. Padma Rao 1974 AIR 165 , the husband proved in court with the help of experts’ reports that his wife was suffering from incurable leprosy. The divorce was granted. It is to be noted, divorce is granted only in cases where the nature of the disease is incurable

7. Venereal Disease –Section 13(1)(V)

A venereal disease that is incurable and transmittable forms a ground of divorce, if either of the spouses is suffering from any such disease. A disease like AIDS is called venereal disease.

8. Renunciation -Section 13(1)(VI)

When one of the spouses decides to renunciate the world and enters a holy order, then the other spouse can file a divorce petition. Renouncement of the world by entering any religious order must be absolute. It amounts to civil death and has the effect of excluding a person from inheritance and the right to partition.

9. Presumption Of Death- Section 13(1)(VII)

In this case, the person is presumed to have died, if the family or the friends of that person does not hear any news about the person alive or dead for seven years. It is considered as the valid ground for divorce, but the burden of proof is on the person who demands the divorce. This presumption may be rebutted if a person has not been heard of for the last 7 years due to special circumstances such as absconding on a charge of murder.

10. Non-Compliance With Decree Of Judicial Separation – Section 13(1A)(I)

If there has not been any resumption of cohabitation between the couple even after one year has elapsed since the passing of the decree for judicial separation, a spouse can present a divorce petition.

11. Non-Compliance With Decree Of Restitution Of Conjugal Rights – Section 13(1A)(II)

Restitution of conjugal rights means restoration of marital obligations. If there has not been any resumption of conjugal rights for one year after the passing of a decree under section 9 of the act, then either of the spouses may present a divorce petition.

Special Grounds Of Divorce For Wife:

The wife has been given special grounds to seek divorce as follows:

1. BIGAMY – SECTION 13(2)(I)

If a husband already has a wife before the commencement of the act and after the commencement of the act he gets married to another woman, either of the two wives may apply for divorce. The only rider is that the divorce petition would be successful if the other wife was alive at the time of the presentation of the petition.

2. Rape, Sodomy Or Bestiality – Section 13(2)(II)

A wife can file a divorce petition if her husband has been guilty of Rape, sodomy, or bestiality since the solemnization of marriage.

3. Decree or Order Of Maintenance – Section 13(2)(III)

When a decree for maintenance of wife under section 18 of Hindu Adoptions and Maintenance Act, 1956 or an order of maintenance has been passed under section 125.Cr.P.C against the husband, the wife has the option to present a petition for divorce if 2 conditions are satisfied-

a. That she was living apart

b. There has been no cohabitation between her and her husband for at least one year after the passing of such decree.

4. Marriage Before Attainment Of Age Of Fifteen Years – Section 13(2)(IV)

A wife may present a petition for divorce if marriage was solemnized before her attaining the age of 15 years. Such a child bride can opt-out of marriage on the attainment of puberty and can ask the court for repudiation of the marriage after attainment of 15 years of age but before completing 18 years of age.

Conclusion:

According to Hindu law, marriage is a sacred union between two people. In Hindu scriptures, a wife is referred to as a “Ardhangini,” which means “one who is half of a soul and body,” with the husband constituting the other half. Married partners are karmic mates. As a result, the courts are reluctant to award divorce at the first sign of trouble. The last option, which preserves the integrity of marriage while also ensuring that two individuals who are dissatisfied with one other are not shackled together, is judicial separation and divorce.