Introduction
The Hindu Marriage Act, 1955 (HMA) was a revolutionary legislation that brought about a paradigm shift in the personal law relating to marriage amongst Hindus. Prior to the enactment of the said Act, Hindu marriage was regarded as an indissoluble, pious, and lifelong sacrament (sanskara) which could not be dissolved by any temporal authority. However, realizing the social realities of the marital institution and the need for flexibility in its dissolution, the legislature judicially mandated separation/ divorce by inserting copious provisions in the Act. The main law governing divorce and judicial separation is embodied in Section 13 of the Hindu Marriage Act, 1955. Over the years, especially after the amendments made in 1976, and the judicial interpretation, the laws relating to the ground for divorce have changed. They have outgrown the fault theory, and shifted towards a more liberal breakdown theory.
Fault Based Grounds for Divorce (As per Section 13(1))
Section 13(1) of the Hindu Marriage Act, 1955 lays down various statutory grounds upon which either of the spouses can approach the Court for getting a divorce.
The fault theory of divorce is based upon the ideology that one of the mates has committed a matrimonial offence, which makes it difficult for the petitioner to adjust with the respondent.
I. Adultery
It is given under Section 13(1)(i) of the act.As per the fault-based approach, if the petitioner can prove that after the date of marriage, the respondent, i.e., his legal spouse, has committed adultery, the petitioner can seek divorce on the basis of adultery. Prior to 1976, the petitioner has to prove that the respondent had ‘lived in adultery’, which means repeated sexual relationships outside the marriage bond. Since it might not always be possible to prove such allegations directly, the petitioner can prove indirect evidence of adultery in order to justify no reasonable doubts in any person’s mind as to the adultery of the respondent.
II. Cruelty
Cruelty, physical and mental is the second most common and litigated reason for filing divorce petitions. As per Section 13(1)(ia), a spouse can file a petition for divorce if he/she can prove that the respondent is subjected him/her to cruelty of such a nature that it would be a hardship to the petitioner to continue to live with the respondent. Physical cruelty is fairly straightforward and encompasses any physical assault by the respondent on the petitioner. Mental cruelty on the other hand can consist of any other wilful conduct by the respondent that has potential to cause mental anguish to the petitioner. It can also take the form of false allegations of infidelity, dowry harassment, demand for abstinence from sex, and degrading attitude by the respondent. A few of the case laws that have interpreted this section indicate that mental cruelty should not be interpreted in an absolute sense, but rather in the context of the social status, environment, and mindset of the petitioner.
III. Desertion
Desertion also constitutes a ground for petitioning for divorce on the fault basis. According to the section 13(1)(i b), desertion means that one of the spouses has permanently left the other without the consent of the latter with no reasonable cause and for a period of two years immediately preceding the date of filing a petition for divorce. In order to prove desertion as a ground for divorce, the petitioner must prove that (a) there was an actual physical separation, (b) that the respondent had an Animus deserendi, which means that the petitioner had a settled purpose to bring about an end to the marriage, (c) that the petitioner had not given his/her consent to the separation and (d) that the respondent did not give any reasonable grounds for the separation. It is pertinent to mention here that in some cases, the petitioner can also claim desertion by the respondent even if it is the petitioner who has left the respondent. This would especially be the case when the petitioner was forced to abandon the respondent due to harassment or cruelty on the part of the latter. The petitioner will then be considered to have committed constructive desertion by the respondent.
IV. Conversion
As per section 13(1)(ii),A Hindu who converts to Islam, Christianity, Judaism, Zoroastrianism etc., may be entitled to divorce by his Muslim, Christian, Jewish, or Zoroastrian spouse who may remain Hindu and thus conversion becomes a ground for divorce. However, if a person converts to Buddhism, Jainism or Sikhism, he/she cannot be divorced by his/her Hindu spouse as such a person will still be regarded as Hindu under the Hindu Marriage Act.
V. Unsoundness of Mind (as per section 13(1)(iii)
A petition for divorce can be filed on the ground of insanity of the respondent. A person is considered to be insane when he/she has become permanently insane or has been suffering intermittently from insanity so severe that it is not possible to live with them. As per the given section, the phrase insanity includes total insanity such as schizophrenia or insanity associated with mental retardation or psychopathic personality disorder. It is important to understand that odd behavior or eccentricities are not sufficient for the expression unsoundness of mind. There must be some disorder or disease that made it impossible for the petitioner to live with them.
VI. Venereal Disease in a (in pursuant to Section 13(1)(v))
In case of a person suffering from any form of venereal disease which is infectious or contagious in nature, an allegation against the respondent in this regard can also be a ground for filing a petition for divorce. However, it must be noted that total or permanent cure of the disease is not a decisive point for filing a divorce petition on this ground.
VII. Renunciation of the World by Either Party (as per Section 13(1)(vi))
A petition for divorce can be filed on the grounds of renunciation of the world by either party if the latter has given up married life totally or permanently. However, for this ground to be applicable, regular and formal ceremonies that are peculiar to that world must have been performed by the spouse who has renounced the world. Hence, Mere declaration is not sufficient for renunciation of the world.
VIII. Presumption of Death of Spouse (as per Section 13(1)(vii))
A spouse can file a petition on the ground of the death of the other spouse if seven years or more had passed since they were last heard of as deceased by persons likely to have received information from them if they were still alive. By virtue of such a condition being fulfilled, the provision of Section 108 of the Indian Evidence Act, which talks about circumstances amounting to a presumption of death, will be applicable.
No-fault and Breakdown Grounds (Section 13(1A))
The breakdown approach to divorce was introduced by an amendment Act in 1976 adding 13(1A) to The Hindu Marriage Act, 1955. As per the new section, any of the parties to a marriage is eligible to file a petition for divorce if the following grounds are proved:
• No resumption of co-habitation: When there was a decree of judicial separation between the parties for a period of one year or more.
• No restitution of conjugal rights: When the decree of restitution of conjugal rights was passed between the parties and they failed for a period of one year or more to resume the co-habitation.
Grounds for divorce exclusive to the Wives as per Section 13(2)
The section 13(2) of Hindu Marriage Act, 1955 lays down certain grounds of divorce which are peculiar to the wife considering her subordinate position; hence there are four specific grounds under section 13(2).
i. Bigamy
If the husband had married any other woman before the commencement of the said Act and at the time of marriage, and still the other wife is living.
ii. Serious Criminal Offenses
If at any time after the marriage the husband has been convicted for Rape, Sodomy or Bestiality.
iii. Non-resumption of Wife after Maintenance Decree
If there is a decree or order for maintenance of wife against the husband under the Sec 125 of Cr.P.C or Sec 18 of Hindu Adoptions and Maintenance Act, 1956 and they have been living separately without co-habitation for a period of 12 months or more.
iv. Repudiation by the Wife
If at the time of marriage the wife was below 15 years but attained the age of 15 years, she can repudiate the marriage before attaining the 18 years. This ground will apply irrespective of consummation of marriage .
Divorce by Mutual Consent (as per section 13B)
Divorce by mutual consent offers the married couple an opportunity to come to terms that their marriage has irretrievably broken down and that they seek judicial dissolution of the marriage.
As per 13B of HMA, for filing a petition regarding divorce by mutual consent, these grounds must be fulfilled;
• The parties to the marriage have been living separately for at least one year;
• The parties to the marriage have agreed that they cannot live together;
• The parties to the marriage have agreed to seek judicial dissolution of the marriage.
Judicial update: Waiver of cooling off period by courts
As per Section 13B(2) of Hindu Marriage Act, 1955 there must be a mandatory waiting period of six months between the First Motion and Second Motion for granting of divorce by mutual consent so that the parties can think over their decision for reconciliation of their marriage. But according to the Hon’ble Supreme Court in Amardeep Singh v. Harveen Kaur (2017), six months cooling off period is directory and not mandatory. If there is an absolute breakdown of marriage which cannot be reconciled by the court, and if the court finds that the parties have amicably settled the permanent alimony and/or child custody, the Court can waive off this mandatory waiting period so that the anguish of the parties is not prolonged unnecessarily.
Irretrievable Breakdown of Marriage (IBM)
Irretrievable breakdown of marriage is not a ground for seeking divorce as such under Hindu Marriage Act, 1955 but as a ray of hope for the married couples who have been through a lot and cannot stand living together anymore, a constitutional update has taken place in this regard in May 2023. In Shilpa Sailesh v. Varun Sreenivasan case, The Court held that although the lower courts cannot grant divorce on the ground of IBM since this power is not bestowed on them by the statute, but the Apex Court can grant divorce to the parties seeking the same by exercising its plenary power under Article 142 of the Constitution.
Conclusion
The grounds for divorce under the Hindu Marriage Act, 1955 have undergone tremendous changes since their inception and have come a long way from being an indissoluble sacrament. Although the fault theory still prevails in a large number of divorce filings, primarily under the heads of cruelty and desertion, the divorce-by-consent mechanism has given a much-needed relief to the parties to a marriage whose relationship has irretrievably broken down.
