Grounds for Divorce Under the Hindu Marriage Act, 1955

Introduction

In Hinduism, marriage is traditionally regarded as a sacred, unbreakable bond between husband and wife. However, with evolving societal norms, the concept of divorce has emerged, allowing individuals in marriage to seek a permanent separation under specific circumstances. The Hindu Marriage Act of 1955 outlines the grounds for divorce, including several conditions exclusively available to women. This article examines the grounds for divorce under this Act, changes in customs that led to contemporary Hindu marriage laws, the concept of irretrievable breakdown of marriage, and the jurisdiction of courts in handling divorce cases. Relevant case laws are also provided to deepen understanding.

Applicability of the Hindu Marriage Act, 1955

According to Section 2(1) of the Hindu Marriage Act, 1955, the Act applies to:

• Practitioners of Hinduism, Buddhism, Jainism, or Sikhism.
• Members of specific sects or faiths within Hinduism, such as Virashaiva, Lingayat, Brahmo, Prarthana, or Arya Samaj.
• Residents of regions where the Act is enforced, excluding those practicing Islam, Christianity, Parsi, or Judaism.
• Children born to Hindu, Buddhist, Jain, or Sikh parents, regardless of legitimacy or upbringing.
• Individuals who have converted or reverted to Hinduism, Buddhism, Jainism, or Sikhism.

Theories of Divorce

1. Fault Theory

• Under this theory, divorce is granted when one spouse is responsible for a matrimonial offense. Only the innocent party can file for divorce. A limitation of this theory is that if both spouses are at fault, neither can file for divorce.

2. Mutual Consent

• Here, both parties mutually agree to dissolve the marriage. Critics argue that this theory encourages premature divorce, undermining the sanctity of marriage.

3. Irretrievable Breakdown

• This theory suggests that divorce is granted when the marriage has irretrievably broken down, meaning the spouses cannot reconcile and live together. This theory provides a final option for separation when reconciliation is impossible.

Grounds for Divorce under the Hindu Marriage Act, 1955

The Hindu Marriage Act provides a framework for legal divorce, primarily based on the principle of blame. Section 13(1) specifies grounds on which either spouse may file for divorce, while Section 13(2) lists grounds exclusive to wives. Grounds for judicial separation are similar to those for divorce, allowing spouses time to reconsider before choosing divorce.

Grounds of Divorce Under Section 13(1)

1. Adultery

   • Adultery, defined as consensual sexual relations between a married person and another person, is a ground for divorce. The concept was added by the Marriage Laws Amendment Act of 1976. In Ghose v. Swapna and Sadanand Ghose, a wife was granted a divorce after witnessing her husband in bed with another woman.

2. Cruelty

   • Both physical and mental cruelty are recognized as grounds for divorce. Physical cruelty involves physical harm, while mental cruelty includes behavior that negatively impacts the other spouse's well-being, such as insults or unfounded accusations.

3. Desertion

   • Desertion involves one spouse abandoning the other without consent or valid reason. Essential elements include total abandonment, rejection of marital obligations, and the absence of a valid reason for leaving. In Prabhawati v. Bipin Chander Jaisinghbhai Shah, a spouse could not be held liable for desertion after being prevented from returning by the petitioner.

4. Conversion

   • If one spouse converts to another religion without the other's consent, it constitutes grounds for divorce. In Leela v. Suresh Babu, a woman obtained a divorce after her husband converted to Islam without her permission and remarried.

5. Mental Disorder

   • A spouse may file for divorce if the other is of unsound mind, making it unreasonable to expect them to cohabit. In Pankaj Pandit vs. Vinita Saxena, the petitioner obtained a divorce due to the respondent's mental illness, which was revealed post-marriage.

6. Leprosy

   • Leprosy is a recognized ground for divorce due to its contagious nature. In Swarajya Lakshmi v. G. G. Padma Rao, a man obtained a divorce based on his wife's leprosy, backed by expert testimony.

7. Venereal Disease

   • Contagious venereal diseases provide grounds for divorce, as the disease could be transmitted to the healthy spouse.

8. Renunciation

   • If one spouse renounces the world to follow a religious path, it is considered grounds for divorce, as the person is legally considered deceased.

9. Presumption of Death

   • If a spouse has been missing for seven years or more, the other spouse may seek divorce on the presumption of death. The burden of proof lies on the petitioner.

Divorce with Mutual Consent

Under Section 13B, spouses can file for divorce by mutual consent. Conditions include:

• Joint filing by both spouses.
• Proof of one-year separation.
• Assurance of irreconcilable differences.

In Laxmibai Ward v. Pramod, the Bombay High Court emphasized that consent must be free of fraud or undue influence.

Grounds Exclusive to Wives (Section 13(2))

Women may seek divorce on additional grounds, including:

• Husband's bigamy.
• Husband's commission of rape, sodomy, or bestiality.
• No cohabitation for a year or more post-maintenance decree.
• Renunciation of marriage by the wife if it occurred before she was fifteen.

Irretrievable Breakdown of Marriage

The Law Commission of India, in its 71st Report, recommended irretrievable breakdown as a ground for divorce, citing the lengthy and adversarial process of fault-based divorce. The N.G. Dastane v. S. Dastane case highlighted the traumatic effects of prolonged separation on both spouses and children, supporting the need for a simplified approach to divorce.

Conclusion

Marriage in Hinduism is traditionally considered a sacred and lifelong bond. The concept of divorce was introduced to address irreconcilable differences, with divorce by consent becoming more widely accepted following the 1976 Amendment. Despite these changes, the institution of marriage remains rooted in religious sanctity, and courts continue to emphasize reconciliation over dissolution wherever possible.

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Article Compiled by:-

Prerna Yadav

(LegalMantra.net Team)

Disclaimer: Every effort has been made to avoid errors or omissions in this material in spite of this, errors may creep in. Any mistake, error or discrepancy noted may be brought to our notice which shall be taken care of in the next edition In no event the author shall be liable for any direct indirect, special or incidental damage resulting from or arising out of or in connection with the use of this information Many sources have been considered including Newspapers, Journals, Bare Acts, Case Materials , Charted Secretary, Research Papers etc.