GROUNDS FOR DIVORCE UNDER HINDU

MARRIAGE ACT, 1955.

A research paper submitted in fulfillment of the course Family Law- I for obtaining
the degree B.B.A., LL.B. (Hons.) during the academic session: 2019-20

Submitted by:

Pragya, Roll: 2029

Submitted to:

Ms. Pooja Shrivastava

Assistant Professor of Law

September, 2019

Chanakya National Law University,

Nyaya Nagar, Mithapur, Patna-800001, Bihar

Pragya

B.B.A., LL.B. (Hons.)

Roll No. – 2029

3rd Semester

I
 ACKNOWLEDGMENTS

First and foremost, I would like to thanks my Faculty of Family Law- I, Ms. Pooja Shrivastava.,
for giving the opportunity to work on this project named – ‘Grounds for Divorce under Hindu
Marriage Act’. Her guidance and support has been instrumental while making my project on this
topic.

I would like to all authors, writers and columnists whose ideas and works have been made use in
my Project. My heartfelt gratitude also goes to all staff and administration of CNLU for the
infrastructure in the form of library that was a great source of help in completion of this Project.

I also thank my friends for their precious inputs which have been very useful in the completion
of this Project. I would also like to thank my parents, my seniors, dear colleagues, and friends in
the University, who have helped me with ideas about this work.

I hope you will appreciate my true work which is indeed a hard work and a result of my true
research and work.

Pragya

B.B.A. LL.B. (Hons.)

Roll No. – 2029

3rd Semester

II
 TABLE OF CONTENTS

DECLARATION………………………...………………………………………………………. I
ACKNOWLEDGMENT………………………………………………………………………… II

1. ABSTRACT ............................................................................................................................ 1

2. INTRODUCTION ................................................................................................................... 2

3. GUILT THEORY/ FAULT THEORY .................................................................................... 4

2.1. DEFENCES ......................................................................................................................... 6

4. SUPERVENING CIRCUMSTANCES THEORY .................................................................. 7

5. IRRETRIEVABLE BREAKDOWN THEORY OF DIVORCE ............................................. 8

6. CONSENT THEORY............................................................................................................ 10

7. CONCLUSION AND SUGGESTIONS ............................................................................... 12

1. ABSTRACT

The author has done a detailed study on the grounds for divorce available under Hindu Marriage
act, 1955. There are various theories behind these grounds and the defences which are available
i.e., the Fault theory, the Supervening Circumstances theory, the Irretrievable Breakdown of
Marriage theory and the Mutual Consent theory, also discussed in details. This paper do include
various case laws case laws which explains the meaning and reason behind all these theories and
provide guidelines for the same.

Objective: The paper attempts to decode the reason and rationale the need for Divorce, various
grounds for divorce under Hindu Marriage Act, 1955, the alternative measures for divorce which
are available.

Hypothesis: The Researcher had made following Hypothesis:

1. There exists no discrimination for either husband and wife as both of them are having
common grounds for divorce Under Hindu Marriage Act, 1955.
2. The concept of divorce is there because there exist no resumption of co-habitation.

Research Methodology: The author has adopted the analytical approach for the research
asanalytical approach stands applicable in all stages of research, right from the articulation to the
formulation of arguments on the issues mentioned in the research. This paper is the outcome of a
secondary data related to family law with special reference to Indian context. It is a conceptual,
qualitative research that the author has employed in writing this paper. In the later part of the
paper, the author concludes that dependant on proximity.

Area of Limitations: Every study has own limitation due to the Limited time, lack of sufficient
financial resources and limited area of survey/study of the subject matter. This study also has its
own limitations as the research is restricted to certain books and case laws only and data
regarding this topic has been conducted.

Sources of data: This research includes both primary as well as secondary sources of data.

1
 GROUNDS FOR DIVORCE UNDER HINDU MARRIAGE ACT, 1955

2. INTRODUCTION

Divorce was unknown to general Hindu Law as marriage was regarded as an indissoluble union
of the husband and wife. Manu has declared that a wife cannot be released from her husband
either by sale or by abandonment, implying that the marital tie cannot be severed in any way. It,
therefore, follows, that the textual Hindu Law does not recognise a divorce. Although Hindu
Law does not contemplate divorce yet it has been held that where it is recognised as an
established custom it would have the force of law. In the absence of a custom to the contrary,
there can be no divorce between a Hindu husband his wife, who by their marriage had entered
into a sacred and indissoluble union, and neither conversion, nor degradation nor loss of caste.
Nor the violation of an agreement against polygamy dissolved the marriage tie. Manu does not
believe in discontinuance of the marriage relationship. He declares, “Let mutual fidelity continue
till death; this in brief may be understood to be the highest dharma of husband and wife”. The
duty of a wife continues even after his death. She can never have a second husband.

In early Roman law marriage and divorce were essentially private acts of parties. Whenever two
persons wanted to marry they could do so, and whenever they wanted to put their marriage
asunder they were equally free to do so. No formalities or intervention of an agency was
necessary for either. In England before 1857, a marriage could be dissolved only by an Act of
Parliament. After a considerable pressure, divorce was recognised under the Matrimonial Causes
Act, 1857, but only on one ground i.e. adultery.1 This continues to be position in India in respect
of the Christian marriage. Later on insanity was added as a ground of divorce.

However, marriage is also regarded as a social institution and not merely a transaction between
two individuals, and therefore, it was argued that there was a social interest in prevention and
protection of the institution of marriage was hedged with legal protection. The inevitable
consequence of this philosophy was that marriage came to be regarded as a special contract
which cannot be put to an end like an ordinary contract. A marriage can be dissolved only if one
of the spouses is found guilty of such an act and conducts which undermined the very foundation
of marriage. This led to the emergence of the offence or guilt theory of divorce. Marriage as an

1
The Matrimonial Causes Act of 1857, 1923, 1937.
2
 GROUNDS FOR DIVORCE UNDER HINDU MARRIAGE ACT, 1955

eternal union was not altogether immune to rejection. Divorce or tyaga was not alien to Indian
society; it was devoid of any formal recognition as a tool of self-emancipation by the marriage
partners. During the pre-Vedic era, despite separation of marriage partners, the marriage was not
null and void. Women had never used their rights to disown men. However, two ancient smriti
writers, Narada and Parasara laid down few grounds on which women could remarry. Impotency,
she was allowed to take second husband if the first one was missing or dead, or had taken to
asceticism, or degraded in caste. However, earlier there was no systematic code to regulate
divorce in specific.

Under the Hindu Marriage Act, 1955 both the husband and the wife have been given a right to
get their marriage dissolved by a decree of divorce on more than one grounds specifically
enumerated in Section 13. Some of the grounds initially inserted were substituted and some more
grounds came to be added. There are various theories of divorce such as fault theory, on the basis
of which most of the grounds of judicial separation and divorce are formulated in section 13(1)
of the Hindu Marriage Amendment Act, 1976. There are also modern theories of divorce such as
Mutual Consent on the basis of which a new ground of divorce; divorce by mutual consent has
been incorporated. Yet there is one more theory called breakdown theory which is reflected in
some grounds such as failure to resume cohabitation within one year getting the degree of
restitution of conjugal rights and failure to resume cohabitation within one year after getting the
degree of judicial separation.

Under Hindu Marriage Act, 1955 primarily there are four theories under which divorce is
granted:

(i) Guilt Theory or Fault Theory;

3
 GROUNDS FOR DIVORCE UNDER HINDU MARRIAGE ACT, 1955

3. GUILT THEORY/ FAULT THEORY

According to this theory, if a party commits a matrimonial offence the aggrieved party may seek
divorce form the delinquent spouse. It is only the matrimonial offence which is a ground of
divorce. No criminal offence, howsoever heinous, is a ground for divorce. Traditionally,
adultery, desertion and cruelty are considered as matrimonial offences. But this should be treated
only as an illustrative list. Rapes, sodomy, bestiality, refusal to obey the order of a court to pay
maintenance to the wife, marring an underage person, are also examples of matrimonial offences.
If the respondent is not guilty of any of these offences, divorce cannot be granted against him
even if he has committed the offence of murder, dacoity, cheating, theft, treason, smuggling,
black marketing or bribery etc. hence what matters for divorce is the person injury to the marital
relations of the other spouse and not the injury done to any other person(s) in the society.2

The offence theory stipulates for two things: (i) a guilty party, i.e., the party who has committed
one of the specified matrimonial offences, and (ii) an innocent party, who has been outraged and
who has played no role in the criminality or the matrimonial offence of the other party. If the
purpose of the divorce law was the punishment of the guilty party, then it was natural to lay
down that the other party should have no complicity in the guilt of the offending party. If
petitioner’s hands are not clean, he cannot seek relief.3

This principle was taken very far in English law; so much so that if both the parties,
independently of each other, committed matrimonial offence the marriage could not be
dissolved. For instance, if a petition is presented on the ground of respondent„s adultery and it is
established that the petitioner is also guilty of adultery, then the petitioner cannot be allowed
divorce. This is known as the doctrine of recrimination.4

2
Ramesh Chandra Nagpal, ―Modern Hindu Law, 2nd Edn., Eastern Book Co.
3
Divorce Reform Act, 1969; See also, Section 23 of the Hindu Marriage Act, 1955.
4
‘Grounds for divorce’, available at http://www.legalservicesindia.com/article/676/Irretrievable-Breakdown-of-
Marriage.html.
4
 GROUNDS FOR DIVORCE UNDER HINDU MARRIAGE ACT, 1955

Recently, the Supreme Court in Darshan Gupta v. Radhika Gupta,5 held that:

“the petitioner must approach court with clean hands. Grounds of divorce under Section 13(1)
of Hindu Marriage Act, 1955 are based on matrimonial offence or fault theory. It is only
commission of matrimonial offence by one spouse that entitles the other spouse to seek divorce.
Hence, if the petitioner himself/herself is guilty or at fault, he/she would be disentitled to seek
divorce.”

Again, in Badshah v. Sou. Urmila Badshah Godse,6 the Court held that:

“where a man marriages second time by keeping that lady in dark about the first surviving
marriage, such lady will be treated to be a legally wedded wife of the man for the purpose of
claiming maintenance as if this interpretation is not accepted, it would amount to giving a
premium to the husband for defrauding the wife.”

Since the guilt theory requires that the petitioner should be innocent, the English law evolved the
doctrine of matrimonial bars, discretionary bars and absolute bars. This means that even if a
petitioner is able to establish a ground of divorce to the satisfaction of the court, he may not get
divorce if one of the matrimonial bars7 is proved against him.

FAULTS

This type of divorce can be based on any of the following fault:

(1) Adultery8

(2) Cruelty9

(3) Desertion10

(4) Bigamy11

5
Darshan Gupta v. Radhika Gupta, (2013) 9 SCC 1 (Civil Appeals Nos. 6332-33 of 2009, decided on July 1, 2013).
6
Badshah v. Sou. Urmila Badshah Godse, Criminal Misc. Petition No.19530/2013, decided on October 18, 2013.
7
Section 23, the Hindu Marriage Act, 1955.
8
See Section 13(1) (i) of the Hindu Marriage Act, 1955.
9
See Section 13(1) (ia) of the Hindu Marriage Act, 1955.
10
0 See Section 13(1) (ib) of the Hindu Marriage Act, 1955.
5
 GROUNDS FOR DIVORCE UNDER HINDU MARRIAGE ACT, 1955

(5) Rape, Sodomy or Bestiality.12

(6) Refusal to obey court‟s order to pay maintenance to wife13

(7) Marrying an underage person.14

2.1. DEFENCES

There are also defences which can be raised by the other spouse in a fault divorce proceedings:

Recrimination - It is the defence wherein the accused spouse in an action for divorce makes a
similar accusation against the complainant spouse. In the context of a marriage where the marital
relationship has collapsed to the point that both spouses are openly committing adultery, the
assertion by either spouse of this defense would prevent a divorce even though the family unit is
clearly no longer capable of functioning.

Condonation - Which usually takes the form of implied or express forgiveness of a spouse's
marital wrong and, therefore, weakens the accused‟s case.

Connivance - Which is the act of knowingly and wrongly overlooking or assenting without
placing any opposition to a spouse's marital misconduct, especially to adultery. If the other
spouse has forgiven the the one who has committed such an act with a promise that he will not
commit the same in the future, the divorce can be avoided.15

Reconciliation - Where the spouses voluntarily resume marital relation by cohabiting as spouses
prior to a divorce becoming final with mutual intention of remaining together and re-establishing
a harmonious relationship.

11
See Section 13(2) (i) of the Hindu Marriage Act, 1955.
12
See Section 13(2) (ii) of the Hindu Marriage Act, 1955.
13
3 See Section 13(2) (iii) of the Hindu Marriage Act, 1955
14
See Section 13(2) (iv) of the Hindu Marriage Act, 1955.
15
‘Divorce under Hindu law’, available at https://www.lawctopus.com/academike/divorce-under-hindu-law/.
6
 GROUNDS FOR DIVORCE UNDER HINDU MARRIAGE ACT, 1955

4. SUPERVENING CIRCUMSTANCES THEORY

This theory is governed by Section 13 (1) (ii)- (vii) of the Hindu Marriage Act, 195516 provides
that without there being any marital offence and marriage is frustrated when one of the spouses
has changed his religion,17 or incurably of unsound mind,18 or suffering from any physical
ailment,19 or venereal disease,20 or has renounced the world21 or has disappeared for a very long
period.22 In such a case the other spouse should be free to put an end to the marriage by getting
divorce.

16
Sir Dinshaw Fardunji Mulla, Mulla Hindu Law, Lexis Nexis 22nd ed.
17
See Section 13(1) (ii) of the Hindu Marriage Act, 1955.
18
See Section 13(1) (iii) of the Hindu Marriage Act, 1955.
19
See Section 13(1) (iv) of the Hindu Marriage Act, 1955.
20
See Section 13(1) (v) of the Hindu Marriage Act, 1955.
21
See Section 13(1) (vi) of the Hindu Marriage Act, 1955.
22
See Section 13(1) (vii) of the Hindu Marriage Act, 1955.
7
 GROUNDS FOR DIVORCE UNDER HINDU MARRIAGE ACT, 1955

5. IRRETRIEVABLE BREAKDOWN THEORY OF DIVORCE

The irretrievable breakdown theory of divorce is the most controversial theory in legal
jurisprudence based on the principle that marriage is a union of two persons based on love
affection and respect for each other. If any of these is hampered due to any of the reason and if
the matrimonial relation between the spouses reach to such an extent from where it becomes
completely irreparable that is a point where neither of the spouse can live peacefully with each
other and acquire the benefits of a matrimonial relation, then it is better to dissolve the marriage
as now there is no point of stretching such a dead relationship, which exists only in name and not
in reality. The breakdown of relationship is presumed de- facto. The fact that parties to marriage
are living separately for reasonably longer period of time, with any reasonable cause or even
without any reasonable cause and all their attempts to reunite failed, it will be presumed by law
that relationship is dead now. There is an outgoing debate about whether divorce should be
granted solely on the basis of the “fault of the party”, or whether it should be based on the
breakdown of marriage. The judicial trend seemed to be moving towards an acceptance of
“irretrievable breakdown” as ground of divorce.

In the context of a Muslim case, V.R. Krishna Iyer, J. said: ―

“daily, trivial differences get dissolved in the course of time and may be treated as the teething
troubles of early matrimonial adjustment. While the stream of life, lived in married mutuality,
may wash away smaller pebbles, what is to happen if intransigent incompatibility of minds
breaks up the flow of the stream? In such a situation, we have a breakdown of the marriage itself
and the only course left open is far law to recognize what is a fact and accord a divorce.”23

In Hindu law the breakdown principle in the third form of divorce was introduced in 1964. This
was done by amending the last two clauses of divorce of the two statutes. The new Section
13(1A) of the Hindu Marriage Act, 1955,24 laid down that if parties have not resumed
cohabitation for a period of two years or more after a decree of judicial separation, or if a decree

23
Abubacker Haji v. Mamu Koya, 1971 KLT 663.
24
Section 13(1A) of the Hindu Marriage Act, 1955.
8
 GROUNDS FOR DIVORCE UNDER HINDU MARRIAGE ACT, 1955

of restitution of conjugal rights has not been complied with for a period of two years or more,
then either party may sue for divorce.

9
 GROUNDS FOR DIVORCE UNDER HINDU MARRIAGE ACT, 1955

6. CONSENT THEORY

It may construe that two parties who have entered into a marriage with free consent, later on,
realize that they made a mistake, and for one reason or another, are finding it difficult to pull on
together smoothly and to live together harmoniously. It is not because they are wicked, bad or
malicious people. They are just ordinary average human beings, but it has just happened that
their marriage has turned out to be a bad bargain, and they find it impossible to continue to live
together. They should have a right to correct that error, it is not merely their physical life, it is
also their entire family life, including moral life, which is affected. If from this situation they
have no way out, they are likely to go astray, willy-nilly, one is forced to commit a matrimonial
offence. Thus, it is argued, that freedom of marriage implies freedom of divorce, then and then
only can mutual fidelity continue, can real monogamy exist.25 India has recognised this theory as
it has been clearly stated under Section 13B of the Hindu Marriages Act, 1955.26

Consent essentially means free consent. Where the consent of a party is obtained by a
malpractice, the affected party can ever refuse so in the court and the ground for divorce will
automatically vanish. It is also argued against this theory that this is in a way divorce by
collusion. This objection is based on a misunderstanding of the difference between consent and
collusion. Every collusion is, no doubt, by consent between the parties but every consent
between them does not mean collusion.27 The supporters of this theory hold that the freedom of
divorce will bring about more happy marriages, and reduce the number of unhappy one. Since
there is freedom of divorce, both man and woman are forced to take a very serious and sincere
attitude towards marriage.28

The criticism of the consent theory is two-fold: (i) it makes divorce very easy, and (ii) it makes
divorce very difficult. It has been said that divorce by mutual consent offers a great temptation to
hasty and ill considered divorces. More often than not, parties unnecessarily magnify their
differences, discomforts and other difficulties, which are nothing but problems of mutual
adjustments, and rush to divorce court leading to irrevocable consequences to the whole family.

25
Dr. Paras Diwan, Modern Hindu Law, 23rd Edition, 2016.
26
Section 13B of the Hindu Marriage Act, 1955
27
Syal v. Syal, AIR 1968 P&H 439.
28
See supra note 14.
10
 GROUNDS FOR DIVORCE UNDER HINDU MARRIAGE ACT, 1955

This criticism has been met by the law of India which recognize divorce by mutual consent by
providing safeguard through Section 14 of the Hindu Marriage Act, 1955.29 The other criticism
of the theory is that it makes divorce very difficult. Since divorce by mutual consent requires the
consent of both the parties so it may happen that one of the parties to marriage may not give his
or her consent for divorce on account of a belief in the indissolubility of marriage, or on account
of sheer malice, bigotry or avarice, then divorce can never be obtained.

29
See Section 14 of the Hindu Marriage Act, 1955.
11
 GROUNDS FOR DIVORCE UNDER HINDU MARRIAGE ACT, 1955

7. CONCLUSION AND SUGGESTIONS

The Hindus consider marriage to be a sacred bond. Prior to the Hindu Marriage Act of
1955, there was no provision for divorce. The concept of getting divorced was too radical
for the Indian society then. The wives were the silent victims of such a rigid system. Now the
law provides for a way to get out of an unpleasant marriage by seeking divorce in a court of law.
The actual benefactors of such a provision are women who no longer have
to silently endure the harassment or injustice caused to them by their husbands.

However, to prevent hasty divorces, the law lays down certain restrictions and grounds for
obtaining a divorce. Before obtaining divorce, the parties may first obtain a
decree for judicial separation after which divorce may be obtained.

12
 BIBLIOGRAPHY

BOOKS REFERRED

 Dr. Paras Diwan, Modern Hindu Law, 23rd Edition, 2016.

CASES REFERRED

 Syal v. Syal.
 Abubacker Haji v. Mamu Koya.

 Darshan Gupta v. Radhika Gupta.

 Badshah v. Sou. Urmila Badshah Godse.

ONLINE SOURCES

 www.manupatra.com
 http://www.legalservicesindia.com/article/676/Irretrievable-Breakdown-of-Marriage.html
 http://legalexpress.co.in.
 https://indiankanoon.org/doc/18314230/
 https://www.kanoonirai.com/guilt-theory-of-divorce/