Marriage, in the Hindu society, is much more than a simple ritual, it is sacramental in nature because of which it cannot be compared to a marriage like that of the Muslim society which is contractual. Because of being a religious sacrament in the ancient Vedic times there was no concept for dissolution of marriage but with the changing time and with changes in the overall structure of the Indian society dissolution of marriage by way, divorce became a part of the Hindu Family Law. This law on Divorce got codified with the creation of the Hindu Marriage Act, 1955 and with some minor amendments it still subsists as a part of family laws.
What is Divorce and by what laws in India are they governed by?
The Hindu Marriage Act defines divorce as “a dissolution of the marriage”.[i] As per the Merriam Webster Dictionary divorce means “to legally dissolve one’s marriage”.[ii] Simply put when a marriage entered into as per the Hindu Marriage Act, 1955, gets dissolved and the spouses are free to end their ties with one another, results into the dissolution of marriage which is termed as a divorce.
India being home to multifarious communities has no uniform law on divorce. Ordinarily divorce laws as per the Hindu Marriage Act, 1955 are applicable on Hindus, Sikhs, Buddhists and Jains. For Christians, divorce is governed by the Indian Divorce Act of 1869. Dissolution of Parsi Marriage is regulated by the Parsi Marriage and Divorce Act, 1936. Similarly, Muslims have two sources of laws to govern the dissolution of their marriages which are the uncodified laws (Sharia) and the Dissolution of Muslim Marriages Act, 1939.
Similarly, there are also differences in the grounds on which a divorce could be sought for depending upon the different laws, like for instance under Hindu Law divorce can be sought for on the grounds of Adultery, Cruelty, Desertion etc. while on the other hand under Muslim law, there are only 6 grounds (Impotency, Cruelty, Irregular Marriage (Bassid), Non-Performance of Matrimonial Obligations, Outcaste, Arrangement of marriage by a guardian who is not the biological father).
Thus, there is a great difference in divorce laws in different communities with major variances in the grounds on which they could be sought. It is observable that out of all the codified or uncodified laws the grounds specified for divorce are most exhaustive in the Hindu Law and therefore grant a greater remedy to the petitioner spouse.
Divorce under Hindu Marriage Act, 1955
Provision for Divorce under the Hindu Marriage Act, 1955 is given under S. 13 which gives an exhaustive list of grounds under which a spouse can seek a divorce.
Section 13 of the Hindu Marriage Act, 1955 gives power to both the spouses (S. 13(1)) and to the wife alone (S.13(2)) to move before a court and seek the remedy of divorce. Grounds of Divorce as per the Hindu Marriage Act are as follows:
Section 13(1) –
1. That the spouse had voluntary sexual intercourse with any other person after the marriage
2. That the spouse had treated the petitioner spouse with Cruelty
3. That the spouse has deserted the petitioner spouse for not less than two years (continuously) preceding the filing of the suit for divorce,
4. That the spouse has converted to another religion and has ceased to be a Hindu
5. That the spouse has an incurable unsound mind such that the petitioner spouse cannot live with him/her,
6. That the spouse has been suffering from virulent and incurable leprosy,
7. That the spouse has been suffering from a contagious venereal disease
8. That the spouse has renounced the world and has joined the spiritual world
9. That the spouse has been unheard for a period of seven years or more by persons who would have naturally heard of it, had that party been alive.
Other than these there are also two additional grounds added to this list under Section 13 (1A) by which a divorce can be sought for on the grounds of non-cohabitation for a period not less than 1 year after the passing of a decree for judicial separation and non- restitution of conjugal rights for a period not less than 1 year after the passing of a decree for restitution of conjugal rights in a proceeding.
Section 13(2) – These grounds are reserved only for the wife
1. That the marriage was solemnized before the commencement of the Act, and the husband had remarried before such commencement or already had a wife who is living before such commencement at the time of the marriage.
2. That the husband after the marriage has been charged with rape, sodomy or bestiality.
3. That the bride’s marriage was solemnized before she attained the age of 15 years and she has repudiated the marriage after attaining that age but before attaining the age of 18 years.
Grounds for Divorce under Hindu Law
Insanity and Leprosy
The Hindu Marriage Act emphasises on the sanity of parties at the time of marriage. Up until 1976, for grounds like mental illness, leprosy and contagious venereal disease the respondent spouse must have been suffering from it for a period of three years such that it could become a ground of divorce. The Marriage Laws (Amendment.) Act, 1976 has greatly modified the Act, by removing the time stretch and by enlarging the varieties of “mental illnesses” to be covered for a reason of divorce.
Case Law – 1. In case of Pankaj Mahajan v. Dimple[iii]– In this case the appellant husband brought an evidence to show that the respondent wife was suffering from schizophrenia and asked for a divorce. The Hon’ble Supreme Court while discussing about insanity as a ground of divorce held that the husband should be granted a decree of divorce on this ground.
2. In Swarajya Lakshmi v. G.G. Padma Rao[iv] the Hon’ble Supreme Court while discussing about leprosy as a ground of divorce observed that in case of an incurable and virulent form of leprosy decree of divorce can be granted and based upon this reasoning granted a decree of divorce.
Under the Hindu Marriage Act, a spouse can ask for a divorce when his/her partner is suffering from a contagious venereal disease which could spread due to mutual cohabitation.
Case Law – 1. In the case of Mr. X v. Hospital Z[v], a doctor informed the fiancé about her soon to be husband’s communicable venereal disease because of which she refused to marry him. In a suit filed before the Hon’ble Supreme Court it was held that this act of the doctor didn’t violate Mr. X’s privacy and was for a greater good. It was also held that in cases like this a divorce is permissible.
Desertion without a reasonable cause lasting for two years is a ground for divorce under the Hindu Marriage Act. In the past desertion (of two years’ duration) constituted a ground for judicial separation. However, after the 1976 amendment, the grounds for judicial separation and divorce have been merged under that Act. The civil marriage law and the Hindu law are, thus, now identical in respect of desertion as a ground for divorce but under the Indian Divorce Act, desertion lasting for two years without excuse is ground only for judicial separation and not divorce.
If a spouse is missing for a long period, the other spouse gets a ground for divorce under all the laws except the divorce law of Christians. The minimum duration of disappearance which will create such right is seven years under the Hindu Marriage Act.
Case Law – 1. In case of Adhyatma Bhattar Alwar v. AdhyatmaBhattar Sri Devi[vi], Hon’ble Supreme Court while discussing desertion as a ground of divorce observed that desertion has two different essentials and once both of them are fulfilled the spouse can claim a divorce. The burden of proof is on both the spouses on their parts.
Cruelty is a ground for divorce under the Hindu Marriage Act (as amended in 1976) and the Dissolution of Muslim Marriages Act, 1939. But under the Hindu law the concept, of cruelty is left undefined, whereas in Muslim law cruelty is specified to be in a form of habitual assault, notorious lifestyle, association with ill-reputed women, immoral life, interference with personal property and obstruction in religious practices.
Case Law–1. In the case of Darshan Gupta v. Radhika Gupta[vii], the Supreme Court while discussing about the concept of Divorce observed that divorce in cases where ground is that of cruelty can only be decreed if the other party is at no fault. Based upon this reasoning the suit for divorce by the husband was set aside.
Extra-marital sex (Adultery)
Extra marital sex is a ground of divorce under Hindu Law. A wife can also apply for a divorce if her husband has committed rape, sodomy or bestiality. Ordinarily, adultery is, under the Act, is a ground for judicial separation available to both spouses.
Under Section 10 of the Indian Divorce Act, a wife may present a petition for the dissolution of her marriage on the ground that “the husband has been guilty of rape, sodomy or bestiality”. A similar provision is also given under Section 13(2)(ii) of the Hindu Marriage Act with improvised to make it clear that such lapses must have taken place “since the solemnisation of marriage” and not before.
Case Law – 1. In Ballabhdas v. Sushila Bai[viii], Hon’ble Supreme Court observed that in case where ground of divorce is adultery the party making the condemnation should prove beyond reasonable doubt that the other party has indeed been adulterous and only then a court can decree for a divorce.
Wife living separate
The Marriage Laws (Amendment) Act, 1976 has added to the Hindu Marriage Act a new ground for divorce under Section 13 (1A) which says that non-cohabitation for one year or more or non-restitution of conjugal rights following a decree or order entitles either of the parties to the marriage to proceed for divorce. This does not lead to a divorce directly but leads to an order of judicial separation.
Conversion to another religion is a ground for divorce in the Hindu Law. In Hindu law, there is no conversion so long as a person remains a Hindu, Buddhist, Sikh or Jain. For divorce, under this, there is no recourse of a judicial separation because a valid marriage cannot be presumed between the Hindu spouse and the “converted” spouse. The Act is, however, silent regarding the effect of the wife’s conversion.
In Hindu Law sanyas i.e. renunciation of material life for spiritual and religious life, is a ground for divorce. This is exclusively for the Hindus and has no place either under the Special Marriage Act or any other personal law operating in India.
Case Law 1. In Suresh Babu v. Leela[ix], it was held that conversion to a non-hindu religion does not automatically dissolved the marital bond but only provides the aggrieved spouse to move towards a court for a decree of divorce and in this relation the court admitted the decree of divorce.
Option of Puberty
This concept has been introduced, into the Hindu Marriage Act, 1955 in 1976. Adopted from the Muslim law of Khayyar a Bulugh i.e. Option of Puberty and implemented under Section 13(2)(iv), a Hindu wife may petition for divorce on the ground that her marriage was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining the age of 15, but before attaining 18 years of age.
When can a person file a suit for divorce?
By virtue of Section 14 of the Hindu Marriage Act, as a general rule, post The Marriage Laws (Amendment) Act of 1976 the period, to move before court for divorce has been reduced to one year from the earlier period of two years, therefore, a Hindu person cannot ask for a divorce till the expiry of one year from the date of marriage. There are exceptions to this general rule which says that in case of “exceptional hardship”, the High Court is empowered to grant leave to file a suit for divorce before the expiry of one year. This period is only for these two particular acts and does not apply to marriages governed by any other codified or uncodified personal laws.
Can a spouse remarry after a divorce?
Till 1976, the Hindu Marriage Act did not permit the parties to a marriage dissolved by divorce to remarry until the expiry of one year from the date on which the divorce was confirmed. But now subject to the provisions of the 1976 Amendment under Section 15 of the Act, when no further petitions are filed by any of the spouses against the order of divorce and the time for appeal has expired then the divorced person can marry again.
This was all about the Hindu Law governing divorce. Some key points that could be noted here are that much of our present law is a reminiscence of the law of the past. Our laws are much influenced by our culture and this is much seen by the very fact that a step like a divorce is taken only as a last resort. There are still certain lacunas which the present law suffers with but with the advancement of our judicial scrutiny they would surely be ousted and someday we would have a Hindu Law so perfect in itself that it would become an ideal type for future laws to come.
Frequently Asked Questions
What is a divorce?
It is a way by which a husband and wife can legally end their relation and can dissolve their marriage.
What law governs it?
In India there are various laws that govern divorce of different religions, for Hindus the provisions for divorce is given under Section 13 of the Hindu Marriage Act. The Indian Divorce Act is a religion neutral statute that governs divorce of all the communities in India.
When can a person file a suit for divorce?
Under Hindu Marriage Act, a spouse can file a suit for divorce only after 1 year of marriage but in exceptional cases of “extreme hardship” the High Court can give relief to the aggrieve spouse.
Can parties after a divorce marry?
Though earlier the answer to this was in negative but after the 1976 amendments the spouses can marry after a period of 1 year from the date of decree of the divorce and no other party files a suit against the decree.
Can a wife seek maintenance after a divorce?
It is a general rule that after the divorce the Husband has to provide maintenance to the wife if she cannot sustain herself on her own and therefore a wife can seek maintenance from her husband under Section 25 of the Hindu Marriage Act. She also has remedies under Hindu Adoption and Maintenance Act and therefore can take its aid as well.
Edited by Shikhar Shrivastava
Approved & Published – Sakshi Raje
[i]Ipleaders, Grounds for Divorce under Hindu Marriage Act, 1955, https://blog.ipleaders.in/grounds-divorce-the-hindu-marriage-act/ (last visited Jan. 17, 2020, 8.30 PM).
[ii]https://www.merriam-webster.com/dictionary/divorce (last visited Jan. 17, 2020, 8.30 PM).
[iii]Pankaj Mahajan v. Dimple, (2011) 12 SCC 1.
[iv]Swarajya Lakshmi v. G.G. Padma Rao, (1974) 1 SCC 58.
[v]Mr. X v. Hospital Z, (1998) 8 SCC 296.
[vi]AdhyatmaBhattar Alwar v. AdhyatmaBhattar Sri Devi, (2002) 1 SCC 308.
[vii]Darshan Gupta v. Radhika Gupta, (2013) 9 SCC 1.
[viii]Ballabhdas v. Sushila Bai, 1988 Supp SCC 720.
[ix]Suresh Babu v. Leela, 2006 (3) KLT 891.