This article deals with the Concept of Divorce under Hindu law and specifically, under the Hindu Marriage Act, 1955. Divorce is an official decree of a judicial body invalidating the marriage between two persons. The article will look into the meaning, types, and grounds of divorce in India. I. Background Divorce under Prehistoric Hindu laws is considered as… Read More »

This article deals with the Concept of Divorce under Hindu law and specifically, under the Hindu Marriage Act, 1955. Divorce is an official decree of a judicial body invalidating the marriage between two persons. The article will look into the meaning, types, and grounds of divorce in India. I. Background Divorce under Prehistoric Hindu laws is considered as immortal act and is not permissible in Hindu marriage as according to Prehistoric texts of Hindu religion, Marriage is divine and the...

This article deals with the Concept of Divorce under Hindu law and specifically, under the Hindu Marriage Act, 1955. Divorce is an official decree of a judicial body invalidating the marriage between two persons. The article will look into the meaning, types, and grounds of divorce in India.

I. Background

Divorce under Prehistoric Hindu laws is considered as immortal act and is not permissible in Hindu marriage as according to Prehistoric texts of Hindu religion, Marriage is divine and the bond continues even in the world after death. It was termed as the holy bond which is imperishable.

Indian Society still not considers divorce as the suitable remedy for the troubles in marriage and due to this reason Indian courts pass the decree of judicial separation at the beginning of the petition for divorce in which the couple is given time to analyze their decision individually and during this period any party to the marriage is not obliged to perform conjugal duties although the marriage is still not terminated. Divorce is provided only when the petitioner mentions and proves the significant and serious purpose that is in the eyes of law is sufficient to pass the order for Divorce in Marriage.

However, In prehistoric Hindu laws like Kautilya’s Arthashatra, termination of a Hindu marriage is mentioned when both the parties agreed and this is only permissible when the marriage is conducted through unapproved forms. It is the only text which allows termination of marriage as in Manu Hindu marriage can never end and it is a sacred bond that is everlasting.

II. Theories of Divorce

There are three types of concepts or theories regarding divorce namely:

  1. Faulty Theory
  2. Consent Theory
  3. Breakdown Theory

A. Faulty Theory

Under this theory, divorce is considered as penalizing the blameworthy party in marriage who commits a conjugal offense and recognize him/her as undeserving of such a sacred and holy union. Grounds should be the one mentioned such as Adultery, Desertion, cruelty, etc.

It was English law theory which was later dismissed. It was the first theory that was introduced in India in the Hindu Marriage Act, 1955. It is also called offense or guilt theory but Faulty gives it a broad view as under the Hindu Marriage Act, 1955 divorce can be granted not only on the crimes committed like adultery, cruelty but also on some other aspects like illness which cannot be curable (venereal disease), insanity, etc.

There it includes faults that are merely under the control of the respondent. In this theory, only one party should be blameworthy and the other should be blameless. If the party who is innocent accepts the other party then a decree of Divorce cannot be passed. The disadvantage of this theory is that the innocent party cannot claim any maintenance.

B. Consent Theory

In this concept of Divorce, wife, and husband with their common decision agree to terminate the marriage. The basic idea behind this theory is that if the party to marriage enter into this with free consent then the same must be allowed if the party wants to exit if the couple has some differences and unable to cohabitate with each other.

It was denounced as it makes divorce very frequent which disrupts the sacred bond of marriage and the decision taken in a hurry can be regretful in the future. If any party of marriage holds back his consent for the same then also the divorce cannot be granted.

C. Breakdown Theory

This theory defines the concept of divorce in modern terms. According to this theory, the main reason for granting divorce should be to safeguard the aggrieved party rather than penalizing the blameworthy[1]. It also condemned the Fault theory as it gives divorce on certain specified criteria.

In this theory, it was stated that if the marriage is not working form all the aspects and it is not in the parties’ interest to continue it then no question arises of not passing the divorce and looking for the grounds on which it should be granted. Therefore marriage which not serving any purpose it should be terminating with unbiased, less agony, and less resentment form[2].

In Yousuf v. Sowramma[3], the Hon’ble judge said:

While there is no rose which has no thorns but if what you hold are all thorn and no rose, better throw it away The ground for divorce is not conjugal guilt but the breakdown of the marriage.”

III. Divorce Under Hindu Law

Divorce under the Hindu Marriage Act, 1955 was initially built as per the Offence theory and under section 13(1) of the act nine grounds are mentioned on which valid divorce can be granted by the court. Under this act, both the spouses of the Hindu Marriage can file for the Divorce.

Amendment was made in 1964 in section 13 of the Hindu Marriage Act, 1955 in which Section 13 (1A) was introduced in which the third theory of Breakdown is kept as a base. Then, another amendment was made by the parliament in 1976 in which Section 13(b) was added introducing common decisions in the Divorce of the Hindu Marriage.

Section 13(1A) of the Hindu Marriage Act

Two grounds are mentioned under this section which is based on the breakdown theory:

  1. The First Situation in which the parties of the Hindu Marriage can take divorce under this section is that if both parties are not cohabiting for 3 years or more before the order of judicial separation by the court. ( section 13(1A)(i)
  2. The second situation is in which the restitution of conjugal rights is missing even after the decree of the same granted by the court. (section 13 (1A)(ii))

Section 13(b) of the Hindu Marriage Act

Under this section of the act, consent theory was introduced, in this section, it was stated that if both the spouses of the Hindu Marriage with their common decision agreed to terminate such marriage due to the rational reasons can approach the district court and file the petition for the Divorce for Mutual consent under this section.

Court after hearing such a petition may grant the specified time for reconsideration which will be of 6 months and may extend up to 18 months and if within such period petition was not taken back by the parties then the district court after being assured of the purpose for such divorce is rational and valid, may grant the decree of Divorce which will terminate the marriage between the parties from the date of the Judgment.

In Kuljit Kaur v. Harjit Singh[4], the Hon’ble court held that if the case was filed under section 13 of the Hindu Marriage Act,1955 same can be converted in a case under section 13(B) of the same act by specifying ground for the divorce by mutual consent and signature of both the spouses for such agreement.

In Gautam Basu v. Nina Basu[5], the court observed that the Husband or wife has backed off from the plea under section 13(B) then such a case should be declared as dismissed.

IV. Grounds of Divorce

1. Adultery

It is mentioned in section 13(1)(i) of the Hindu Marriage act it means if any of the spouses after his/her marriage have physical relation with any other person with his/her free will then, in this case, the other party may file the plea of Divorce under this act. It must be noted that the wife can file such a petition in the court if her husband commits rape, buggery, intercourse with an animal.

In Swapna Ghose v. Sadanand Ghose[6], the wife filed a petition for divorce under the ground of adultery as it was proved by the family living next door that her husband and another woman were living together as a couple. The court granted the decree for divorce in the above case.

There can be two types of evidence under Adultery:

  • Incidental evidence in which it was clear at first sight for instance in the above-mentioned case.
  • Transfer of Communicable Disease

2. Cruelty

Cruelty means where the respondent is not dealing with the petitioner in a decent manner but in a cruel manner which is specified under section 13(1)(i-a) of the act. Cruelty can be Bodily of mental pressure by the respondent on the petitioner. It must be noted that the Hindu Marriage Act does not define cruelty but in other personal laws like Muslim law defined it clearly and through which wife can take divorce or file for judicial separation from her husband. Cruelty is also defined under section 498-A of the Indian Penal Code which is gender-biased and inclined towards women.

In Pravin Mehta v. Inderjeet Mehta[7], the Hon’ble court defined that Psychological cruelty as ‘Frame of Mind’. Psychological cruelty can be a false affirmation of any crime such as Adultery, denying physical relation, etc.

3. Desertion

It defined under section 13(1)(i-b), in which it is stated that if one spouse separated from the other spouse without any rational purpose i.e not cohabiting the aggrieved party can file a plea for Divorce if the same was in continuance for not less than 2 years. It must be noted that if the respondent is showing irresponsible behaviour towards the petitioner if the court satisfied then it will also amount to desertion.

Prerequisites to constitute Desertion

  1. Aim of the act is to desert
  2. Evidence of dissociation
  3. Unescorted with any rational purpose
  4. Desertion is unaccompanied with the discretion of the other spouse
  5. Desertion should be of 2 years or more.

In Bipinchandra v. Prabhavati[8], it was observed by the hon’ble supreme court that if the spouse dissociate him/herself from the conjugal House and he/she is signaling his/her homecoming or he/she is averted by the other spouse such is not desertion.

4. Conversion

Under Section 13(1)(ii) states another ground on which a Divorce plea can be filed it provides that if any spouse in Hindu marriage changes its religion from Hindu to any other religion then, another spouse can file the divorce petition. It must be noted that if a person becomes a hermit then also the spouse can claim a divorce.

In Suresh Babu v. Leela[9], Court observed that changing religion will not alone give the other spouse ground for divorce but it gives the hurt spouse option for approaching the court for the order of the same and then if the conditions given are satisfied then the court may grant the divorce.

5. Leprosy and Venereal Disease

In the Hindu marriage Act, 1955 it is mentioned that if any person in Hindu marriage is having a disease like Leprosy then under section 13(1)(iv) other spouses can file for either divorce. Along with this if the spouse is having an untreatable illness then the other spouse can file a plea for Divorce under section 13(1)(v).

6. Insanity

If any person in a Hindu marriage Husband or Wife is combating with mental illness which poses danger for the other person in marriage due to his/her acts or behaviour then the Hurt person can apply for Divorce on the ground of Insanity under section 13(1)(iii).

In Pankaj Mahajan v. Dimple[10], the petitioner proved with corroboration that his wife is having a disorder i.e schizophrenia, and therefore based on this proof court ordered the divorce of the parties.

7. Presumed Death

Under section 13(1)(vii) it was given that if any spouse of Hindu Marriage is missing for 7 years and even his/her kinsmen do not know h about him/her then such person in the eyes of law will be presumed to be dead and it is one of the grounds for Divorce.

V. Exclusive Grounds Only for Wife to file a Plea for Divorce

  1. Bigamy: If the Husband was married twice then the wife can apply for divorce such ground mentioned in section 13(2)(i).
  2. Age: under section 13(2)iv if the damsel is under the age of 15 years at the moment of Hindu marriage then she can apply for Divorce and Judicial separation.
  3. Other reliefs are: in case of Rape, buggery, Bestiality by the Husband. (explained above).

VI. Conclusion

Prehistoric Laws in Hindu Religion merely mentioned about Divorce as a remedy in the Hindu Marriage. But nowadays as society is evolving the laws are also evolving to meet the requirements of the present era, therefore now Divorce under Hindu law can be taken by either party Husband or wife under the Hindu Marriage Act,1955. It could be noted from the history that in marriage women were the victims of their oppressive husbands because of this reason it was special provisions are made for the women under divorce in the Hindu marriage act.

Provision of maintenance is also provided by the courts under section 125 of the Criminal Procedure Code for the Women seeking divorce under this act. In the above-mentioned section divorce is under section 13 and in the article also discussed the three theories of the concept of divorce based on which amendments were made to introduce the further section under section 13 which fits these three theories as the society is getting familiar with these theories.

One of the theories is the breakdown theory in which marriage can be terminated if the same is already on the verge from where resolving issues is not an alternative. This theory is new at seems to be suitable as it is not always possible to look for the rational purpose mentioned in the law for divorce. But law commission in its 71st report also mentioned the negative impact that it will make divorce as an easy out way for the blameworthy person in marriage. Therefore it is on the part of the courts to apply the laws in divorce after considering every aspect as each case has a different situation.

[1] William v. William (1963) 2 All ER 994

[2] Law Commission of, 71st Report, Reforms of the Grounds for Divorce

[3] AIR 1971 Ker 261

[4] 1989 (2)HLR 72

[5] 1990(2) HLR 496

[6] AIR 1979 Cal 1

[7] AIR 2002 SC 2528

[8] AIR 1957 SC 176

[9] 2006 (3) KLT 891

[10] (2011) 12 SCC 1

  1. Hindu Laws; Notes, Case Laws And Study Material
  2. Divorce by Mutual Consent | Step-by-Step Guide
Updated On 14 Sep 2020 12:33 AM GMT
Aakriti Vikas

Aakriti Vikas

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