India being a multiracial country, allows each citizen to be governed under
personal laws relevant to religious views. This extend to personal laws among
other things, in the matter of marriage and divorce. Therefore, the Hindu
Marriage Act, was enacted by parliament in 1955 to amend and to codify marriage
laws among Hindus.
Based on Hindu law, the marriage is a sacred tie and also a holy union, that can
never be broken. According to Manu, husband and wife bond is indissoluble, they
cannot be separated from each other and the only way to end the marriage is the
death of one of the spouses.
But, according to Artha Sastra, marriage can end if dissolved by mutual consent
and should be unapproved marriage. The personal laws of Hindus do not recognize
divorce due to sacramental nature of marriage, but later the concept of divorce
came in the picture and established as a custom and came into force as a law.
The Hindu Marriage Act, 1955 brought radical changes in the concept of marriage,
it introduced the provisions related to the divorce. This act defines divorce
as, the dissolution of marriage (To legally dissolve one's marriage). Divorce
can be taken from spouse only based on the reasons specified in the law and if
both husband and wife mutually consent to it. Thus, divorce is permitted only
for a solemn reason or else given other alternatives.
Theory Of Divorce Under Modern Hindu Law
There are three theories for divorce:
- Fault Theory:
Under the fault theory or guilt theory, marriage can be dissolved only when
either party to the marriage has committed a matrimonial offence. It is
necessary to have a guilty and an innocent party, and the only innocent
party can seek the remedy.
- Mutual Consent Theory:
This theory is defined in section 13 (b) of Hindu Marriage Act,1955. When
both the husband and wife agree amicably amongst themselves that they cannot
live together anymore and the only solution is to get divorce , without
putting forth any allegation on each other, in the court of law, then such a
divorce presented jointly before the honourable court, is known as mutual
- Irretrievable Breakdown of marriage Theory:
The irretrievable breakdown of marriage is defined as "such failure in the
matrimonial relationships or such circumstances adverse to that relationship
that no reasonable probability remains for the spouses again living together
as husband and wife". Such marriage should be dissolved with maximum
fairness and minimum bitterness.
Circumstances Which Extent To The Right Of Divorce
Section 13: Any marriage solemnized, whether before or after the commencement of
the 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 party:
- Has, after the solemnization of the marriage had voluntary sexual
intercourse with Any person other than his or her spouse: or
- Has, after the solemnization of the marriage, treated the petitioner with
- Has deserted the petitioner for a continuous period of not less than two
Immediately preceding the presentation of the petition; or
- Has ceased to be Hindu by conversion to another religion.
- Has been incurably of unsound mind,or has suffering continuously
From mental disorder of such a kind and to such an extent that the petitioner
cannot reasonably be expected to live with the respondent.
Grounds Of Divorce, Under Hindu Marriage Act
Section 13(1): Introduces the ground on which husband or wife could sue for
divorce, various ground on which a decree of divorce can be obtained under this
section are as follows:
This provision was added in Hindu Marriage Act by the Marriage Laws
amendment Act, 1976.
Adultery is a sexual intercourse between a married person and a person who is
not their spouse. Adultery is no more a criminal offence but it is a strong
ground to seek divorce.
In the case of Swapna Ghose V. Sadanand Ghose (1989), the wife found
her husband with other girl lying on the same bed and the neighbour also
confirmed that the husband has committed and offence. Here wife has sued for
In the case of Sachindra Nath Chatterjee V. SM. Nilima Chatterjee (1970),
The husband gone to another city for work, his wife was living in his
hometown to complete her studies, he visits her twice or thrice in a month.
Later he founds that his wife was involve in sexual intercourse with his own
nephew i.e she commits adultery. Husband approaches the court to demand
divorce on the ground of adultery and his petition was not accepted as he
was not able to prove adultery against his wife and divorce petition got
It is a behaviour which causes physical or mental harm to another,
especially a spouse, whether in intentionally or not.
Cruelty includes denial of food, perverse sexual acts, the constant demand for
money or dowry, continuous ill treatment.
In the case of Balram Prajapati V. Susheela Bai (2003), the petitioner filed the
divorce petition against his wife on the ground of mental cruelty. He proved
that his wife's behaviour with him and his parents was aggressive and
uncontrollable and many times she filed the false complaints against her
husband. The court accepted the petition and grants the divorce on the ground of
Wilful abandonment of one's spouse without consent and in breach of
obligation. Divorce can be filed only after two years of abandonment.
In the case of Bipin Chander Jaisingh Bhai Shah V. Prabhawati (1956), the
respondent left the house with the intention to abandon his wife. Wife
approached the court, but the defendant proved that even though he left the
house with the same intention, but he tried to come back and he was prevented
from doing so by the petitioner. Here, defendant was not held liable for
It is the state of being seriously mentally ill; unsound mind.
In the case of Vinita Saxena V. Pankaj Pandit (2006), the petitioner filed a case
to get the divorce from the respondent on the ground of insanity (respondent was
suffering from paranoid schizophrenia). She came to know this after her marriage
hence, the court granted the divorce on the ground of insanity.
- Venereal Disease:
A disease typically contracted by sexual intercourse with a
person already infected; sexually transmitted disease like AIDS.
It is an infectious disease of skin and nervous system; it can be
transmitted from one person to another.
In the case of Swarajya Lakshmi V. G. G. Padma Rao (1974), the husband filed the
case for granting the divorce on the ground of leprosy. He claimed that his wife
is suffering from leprosy with the expert's report and succeeded in getting
- Presumption of death:
Spouse is presumed to be dead if he/ she is not seen or
heard alive for the continuous period of 7 years.
When one of the spouses decide to Renunciate the world and walk
on the path of the god, then other spouse can approach the court and demand for
Grounds Of Divorce For Wife
Section 13(2): A wife can file a petition to obtain a decree of divorce under
section 13 (2) if her husband is guilty of following sexual offences:
No petition of Divorce to be presented within one year of marriage
- Rape, sodomy, bestiality,
- Repudiation of marriage,
- Non resumption of cohabitation for one-year post passing of the decree.
Section 14: No petition of divorce can be presented within one year of marriage
as no court
Will entertain the petition of divorce before the expiration of a period of one
The section also provides that the court could entertain a petition even before
the expiry of one year in cases of exceptional hardship to the petitioner or
exceptional depravity of the respondent. The court has also been given the
discretion to dismiss the main petition or to postpone the operation of the
decree for the one year from the date of marriage if it transpires that the
leave has been obtained by misrepresentations or concealment of the fact.
Section 14(2): this section says that the interests of the children born of the
marriage and the chances of reconciliation between the parties are also be kept
in view by the court while deciding an application under this section.
Divorced person when may marry again
Section 15: This section lays down that when a marriage has been dissolved by a
decree of divorce and either there is no right of appeal against the decree or,
if there is such a right of appeal, the time for appealing has expired without
an appeal having been presented, or an appeal has been presented but has been
dismissed, it shall be lawful for either party to marry again.
Thus, according to section, the parties to the marriage, may marry again, if
the following conditions are satisfied:
- When the marriage has been dissolved and there is no right of appeal
against the decree of court, or
- If there is a right of appeal but the time has expired without filing an
- An appeal has been filed but has been dismissed.
In Hindus marriage is a sacred and indissoluble bond, in ancient times there was
no provision of Divorce. The main purpose of each marriage is to stay together
and to support each other throughout the journey of life but this does not
always remain the case in each marriage and hence, the concept of separation i.e
divorce came into force by virtue of which, the parties have the matrimonial
remedy to dissolve the marriage.
Hindu Marriage Act of 1955, introduces with the provisions of divorce which
provides for a way to get out of an unhappy marriage by seeking divorce in a
court. And this law has proven a better way for women to get out of a toxic
relationship. But judiciary and the lawmakers of our country should work on the
subject of irretrievable breakdown of marriage and also deal with a subject in a
very vigilant manner.