DIVORCE UNDER HINDU LAW

Introduction

Divorce is the dissolution of wedlock by a competent authority. In this blog, we will be analyzing divorce under Hindu Laws. Divorce did not exist in ancient times because a Hindu marriage is sacrosanct. Divorce in Hindu Law was implemented through The Hindu Marriage Act, 1955 (“Act”). Under section 13(1) of the Act, “Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party has: 

  1. after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse;
  2. or has, after the solemnization of the marriage, treated the petitioner with cruelty; 
  3. or has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; 
  4. or has ceased to be a Hindu by conversion to another religion; 
  5. or has been incurably of unsound mind, or 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.

Either of the aggrieved spouses can approach a court of law and seek divorce. Section 13(2) of the Act contains grounds on which only the wife can approach the court for divorce.

Grounds of Divorce under Hindu Marriage Act, 1955

The marital relationship of individuals should be safeguarded, and its severance can only be allowed for a cause specified under law. A person can seek divorce under Hindu Law under any ground. Some of the valid grounds of divorce under the Act are as follows;

  • Adultery – Adultery as a ground for divorce is recognized in India. Adultery can simply be defined as a voluntary or consensual sexual intercourse between a married person with another person outside the marriage, who may himself or herself be married or unmarried. It is necessary to establish that at the time of adultery the marriage was subsisting. 
  • Cruelty – Cruelty includes both physical and mental cruelty. The acts of cruelty are dynamic and differ from case to case. In the case of State of West Bengal v Orilal Jaiswal and Anr (AIR 1991 SC 1226) the court observed that the ambit of cruelty is not only restricted to physical harm or dowry related harassment, but also extends to mental torture.  
  • Conversion  It can be a valid ground for divorce when one of the parties to the marriage has ceased to be Hindu by conversion to any other religion. It must be noted that Buddhism, Jainism and Sikhism are defined as being a part of Hinduism, so conversion to these religions may not be a valid ground for divorce.
  • Desertion  Desertion includes rejection/abandonment of all the obligations of the marriage by any one spouse on unreasonable grounds and without the consent of the other spouse. There are few conditions that needs to be satisfied to constitute desertion as a ground of divorce, viz the factum of separation, intention of the spouse to desert, lack of a reasonable cause, lack of consent of the other spouse, and a statutory period of two years. The Supreme Court in Bipinchandra v Prabhavati (AIR 1957 SC 176) held that in showing an inclination to return subsequently, but being prevented from returning is not tantamount to desertion.
  • Insanity  Insanity can be considered as a valid ground of divorce by fulfillment of the following two requirements viz, the person has been incurably of an unsound mind, and has been suffering continuously or intermittently from a mental disorder of such a kind and to such an extent that the spouse cannot reasonably be expected to live with the person. 
  • Renunciation  Renunciation of the world is a valid ground for divorce under the Act. A spouse may seek divorce if the other party has renounced the world and has entered a holy order. 

Irretrievable Breakdown of Marriage 

Irretrievable Breakdown of Marriage as a special ground for is based on the premise that it is better to dissolve a marriage that reaches the extent of becoming completely irreparable. In Naveen Kohli v Neelu Kohli (2006 (3) SCALE 252) the Supreme Court observed that either of the spouses can cite irretrievable breakdown of marriage as a reason to seek divorce. The Supreme Court also observed that where a marriage has been wrecked beyond any hope of repair, the fact of breakdown must be recognised. Either party may present a petition for divorce on the grounds that:

  1. there has been no cohabitation between the couple for more than one year after the passing of a decree for judicial separation in a proceeding to which they were parties; or
  2. there has been no restitution of conjugal rights as between the parties to the marriage for a period of more than a year after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties. 

Divorce by Mutual Consent

Parties may also mutually consent to divorce by filing a petition that satisfies the following conditions under section 13B of the Act:

  1. they have been residing separately for 365 days
  2. they have not been capable to live together

they’ve mutually arrived at a decision of dissolution of marriage 

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