GROUNDS OF DIVORCE

In Ancient times, the concept of divorce was not known to anyone. They considered marriage as
a sacred concept. According to Manu, the husband and wife cannot be separated from each other,
their martial tie cannot be broken. According to the Arthashastra, marriage can end if dissolved
by mutual consent. But Manu does not believe in the concept of the dissolution. According to
Manu the only way to end the marriage is the death of one of the spouses.

The provision related to the concept of divorce was introduced by the Hindu Marriage Act, 1955.
The Hindu Marriage Act defines divorce as a dissolution of the marriage. For the interest of the
society, the marriage or the marital relationship needs to be surrounded by every safeguard for
the cause specified by law. Divorce is permitted only for a grave reason.

Different Theories of Divorce

Fault Theory

Under this theory, marriage can be ended when one party to the marriage is responsible or liable
for the offence under matrimonial offences done against another spouse. Only the innocent
spouse can seek this remedy.

Mutual Consent

Under this theory, the marriage can be dissolved by mutual consent. If both the spouse mutually
gives their consents to end the marriage, they can take the divorce.

Irretrievable Breakdown

According to this theory, the dissolution of marriage happens due to failure of the matrimonial
relationship. The divorce can be taken by the spouse as a last resort i.e. when both of them are
not able to live together again.
Grounds of Divorce as per The Hindu Marriage Act, 1955.

The Hindu Marriage Act is based on the fault theory in which any one of the aggrieved spouses
(Section 13(1)) can approach the court of law and seek the remedy of divorce. Section 13(2)
provides the grounds on which only the wife can approach the court of law and seek the remedy
of divorce.

Section 13(1) - Any marriage solemnised, 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 been engaged in the following;

Adultery

The concept of Adultery may not be considered as an offence in many countries. But as per the
Hindu Marriage Act, in the matrimonial offence, the adultery is considered as one of the most
important ground for seeking divorce. Adultery means the consensual and voluntary intercourse
between a married person with another person, married or unmarried, of the opposite sex. Even
the intercourse between the husband and his second wife i.e. if their marriage is considered under
bigamy, the person is liable for the Adultery.

The concept of Adultery was inserted under the Hindu Marriage Act by the Marriage Laws
Amendment Act, 1976.

In Swapna Ghose v. Sadanand Ghose, AIR 1989 Cal 1

In this case, the wife found her husband with other girl lying on the same bed and the neighbour
also confirmed that the husband has committed an offence. Here the wife gets the divorce.

In Sachindranath Chatterjee vs Sm. Nilima Chatterjee

In this case, the petitioner and the defendant were married. After marriage, the husband leaves
the wife in his home town so that she can complete her studies and go to another city for work.
He visited twice or thrice a month to meet her. Later he found that his wife commits the adultery
i.e. to involve in sexual intercourse with his own nephew, watchman etc. The plaintiff
approaches the court to demand divorce on the ground of adultery and his petition was accepted
and the marriage gets dissolved.

Essentials of Adultery

 One of the spouses involved in the intercourse with another person, married or
unmarried, of the opposite sex.
 Intercourse should be voluntary and consensual.
 At the time of the act, the marriage was subsisting.
 There must be sufficient circumstantial evidence to prove the liability of another spouse.

Cruelty

The concept of cruelty includes mental as well as physical cruelty. The physical cruelty means
when one spouse beats or causes any bodily injury to the other spouse. But the concept of mental
cruelty was added as the spouse can also be mentally tortured by the other spouse. Mental
Cruelty is lack of kindness which adversely affects the health of the person. Well it is easy to
determine the nature of physical cruelty but difficult to say about mental cruelty.

What is considered as Mental Cruelty against Husband by wife:

 Humiliating the husband in front of his family and friends.

 Undertaking the termination of pregnancy without husband consent.
 Making false allegation against him.
 Denial for Martial Physical Relationship without a valid reason.
 Wife having affair.
 Wife living an immoral life.
 The constant demand for money.
 Aggressive and uncontrollable behaviour of Wife.
 Ill-treatment to the husband parents and family.
In Balram Prajapati vs Susheela Bai

In this case, the petitioner filed the divorce petition against his wife on the ground of mental
cruelty. He proved that his wife that 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 cruelty.

What considered as Mental Cruelty against wife by Husband

 False accusation of adultery.

 The demand for dowry.
 Impotency of Husband.
 Force to abort the child.
 The problem of drunkenness of husband.
 Husband having affairs.
 The husband lives an immoral life.
 Aggressive and uncontrollable behaviour of the husband.
 Humiliating the wife in front of family and friends.

Desertion

Desertion means the permanent abandonment of one spouse by the other spouse without any
reasonable justification and without his consent. In General, the rejection of the obligations of
marriage by one party. Under HMA, 1955 desertion means deserting the petitioner for a
continuous period of not less than two years immediately preceding the presentation of the
petition.

Essentials

 Permanent abandonment of the other spouse.

 Rejection of the obligation of marriage.
 Without any reasonable justification.
  No consent of another spouse.

In Bipin Chander Jaisinghbhai Shah vs Prabhawati, AIR1957 SC 176

In this case, 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, but he tried to come back and he was prevented from doing so by the
petitioner. Here, the defendant cannot be held liable for desertion.

Conversion

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 and seek the remedy of 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.

In Suresh Babu vs Leela, 2006 (3) KLT 891

In this case, the husband converts himself into Muslim and marries another woman. Here the
wife Leela filed a case and demanded the divorce on the ground of conversion without her
consent and cruelty.

Insanity

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

 The respondent has been incurably of unsound mind.

  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 Vinita Saxena vs Pankaj Pandit, 17 (2003) DLT 44

In this case, 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.

Leprosy

Leprosy is an infectious disease of the skin, mucous membranes, nervous system etc. this disease
is transmitted from one person to another. Thus it is considered as the valid ground for divorce.

In Swarajya Lakshmi vs G. G. Padma Rao, AIR 1970 AP 300

In this case, the husband filed the case for granting the divorce on the ground of leprosy. He
claimed that his wife is suffering from incurable leprosy with the expert’s reports. Here he
succeeds in getting the divorce on the ground of leprosy.

The Personal Laws (Amendment) Bill, 2018 seeks to remove leprosy as a ground for divorce in
five personal laws — Hindu Marriage Act, Dissolution of Muslim Marriages Act, Divorce Act
(for Christians), Special Marriage Act and the Hindu Adoptions and Maintenance Act and
Parliament has also passed the Bill in the year 2019. The Law Commission in its report had
recommended repeal of laws and provisions which were discriminatory against leprosy affected
people. Besides, India is a signatory to a UN Resolution which calls for elimination of
discrimination against persons suffering from leprosy.

In 2014, the Supreme Court had also asked the Centre and the state governments to take steps for
rehabilitation and integration of leprosy affected people into the mainstream.
Venereal Disease

Under this concept, if the disease is in communicable form and it can be transmitted to the other
spouse, then this can be considered as the valid ground for divorce.

Illustration

A and B married on 9 September 2011. Later A suffered from a venereal disease and it is
incurable. There’s also a chance that B can also get infected by that disease if she lives with A.
Here, B can approach the court for dissolution of marriage

Renunciation

It means when one of the spouses decide to renunciate the world and walk on the path of the
God, then the other spouse can approach the court and demand the divorce. In this concept the
party who renunciates the world is considered as civilly dead. It is a typical Hindu practice and
considered as a valid ground for divorce.

Illustration

A and B got married and lives a happy life. One day A decides to renunciate the world. Here, B
has a right to approach the court and seek the remedy of divorce.

Presumption of Death

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.

Illustration

A was missing from the last seven years and his wife B does not get any news about him of
being alive or dead. Here B can approach the court and ask for the divorce.
Section 13(1A) in The Hindu Marriage Act, 1955

(1A) Either party to a marriage, whether solemnised before or after the commencement of this
Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the
ground:

(i) that there has been no resumption of cohabitation as between the parties to the marriage for a
period of one year or upwards after the passing of a decree for judicial separation in a proceeding
to which they were parties; or

(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for
a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a
proceeding to which they were parties.

Wife’s Special Grounds for Divorce

Besides the grounds enumerated above, a wife has been provided four additional grounds of
divorce under Section 13(2) of the Hindu Marriage Act, 1955. These are as follows-

Pre-Act Polygamous Marriage

This clause states the ground for divorce as, “That the husband has another wife from before the
commencement of the Act, alive at the time of the solemnization of the marriage of the
petitioner. For example, the case of Venkatame v. Patil where a man had two wives, one of
whom sued for divorce, and while the petition was pending, he divorced the second wife. He
then averred that since he was left only with one wife, and the petition should be dismissed. The
Court rejected the plea.

Such a ground is available if both the marriages are valid marriages & the other wife (2nd wife)
should be present at the time of filing of the petition.
Rape, Sodomy or Bestiality

Under this clause, a divorce petition can be presented if the husband has, since the solemnization
of the marriage, been guilty of rape, sodomy or bestiality.

Non-Resumption of Cohabitation After A Decree/Order Of Maintenance

If a wife has obtained an order of maintenance in proceedings under Section 125, Cr.P.C.,
1973 or a decree under Section 18, Hindu Adoption & Maintenance Act, 1956 & cohabitation
has not been resumed between parties after one year or upwards, then this is a valid ground for
suing for divorce.

Repudiation of Marriage

This provision provides a ground for divorce to the wife when the marriage was solemnized
before she attained the age of fifteen years, and she has repudiated the marriage, but before the
age of eighteen. Such repudiation may be express (written or spoken words) or may be implied
from the conduct of the wife (left husband & refused to come back). Moreover, this right (added
by the 1976 amendment) has only a retrospective effect i.e. it can be invoked irrespective of the
fact that the marriage was solemnized before or after such amendment.

13-A. Alternate relief in divorce proceedings. - In any proceeding under this Act, on a
petition for dissolution of marriage by a decree of divorce, except in so far as the petition is
founded on the grounds mentioned in clauses (ii), (vi) and (vii) of sub section (1) of section 13,
the court may, if it considers it just so to do having regard to the circumstances of the case, pass
instead a decree for judicial separation.]

Concept of Divorce with Mutual Consent

As per Section 13B, the person can file the petition for divorce by mutual consent of both the
parties.
If the parties want to dissolve their marriage as a mutual consent are required to wait for one year
from date of marriage. They have to show that they are living separately for one or more year
and not able to live with one another.

No petition for Divorce within one year of Marriage

As per Section 14, no Court will entertain the petition of divorce within the one year of the
marriage. But can be entertained if the matter is related to bigamy, and where the consent of the
spouse was taken through misrepresentation, fraud, undue influence etc.

Remarriage of Divorced Person

As per Section 15, after the marriage gets dissolved and no further petition was filed by any of
the spouses against the order of the court and the time for appeal has expired. At that time it is
assumed that both the spouse are satisfied. Then only the divorced person can marry again.

Conclusion

The Hindu Marriage Act, 1955 provides various provision regarding divorce. The Hindu
Marriage Act defines “Divorce as a Dissolution of Marriage”. The main three theories related to
divorce are Fault Theory, Mutual Consent Concept, and irretrievable theory. In India, the Fault
theory works in the matter of the divorce. Under this theory, marriage can be ended when one of
the spouses is responsible or liable for the offence under matrimonial offences. The innocent
spouse can seek the remedy of divorce. Under the Hindu Marriage Act, the basic grounds on
which the Hindu women can seek the remedy of divorce are Adultery, Desertion, Conversion,
Leprosy, Cruelty etc. But many philosophers criticise the concept of Divorce. The Hindu married
women can also apply for the maintenance under section 125 of the Criminal procedure code. So
the spouse who is innocent can approach the court and can seek the remedy of divorce.

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