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Divorce Under Hindu Marriage Act, 1955

Marriage is both a sacrament and a contract. It is a contract because it is based on offer and acceptance and is akin to an agreement to live together. Sacrament because of its religious ties. A sound marriage is built on tolerance, adjustment, and respecting each other. If any of the party to the marriage is not ready to live with the other party the relationship will not be happy.

Stretching such a relationship will do no good, rather will develop hatred and frustration among the spouses. Therefore to protect the sanctity of marriage, to reduce the number of unhappy marriages, and to prevent from getting wasted the precious years of the life of the spouses, it is necessary to dissolve such marriage. From ancient times itself, the Hindu Marriage was considered as a sacramental union between the husband and wife that lasts till death or a sacred tie that can never be broken. Once created this sacred tie cannot be untied. Hindus considered the separation of spouses as an act that break's God's law.

Therefore they didn't recognize separation, but after the enactment of the Hindu Marriage Act, 1955 it has laid down provisions regarding divorce. Sections 13, 13(1A), 13A, 13B, 14, and 15 deal with divorce and related things associated with it. According to Kautilya in Arthashatra, marriage can be dissolved by mutual consent in an unapproved form of marriage. On the other hand, Manu believed that marriage being a sacrament cannot be discontinued and the fidelity between the husband and the wife should be carried till their last breaths. However, the conditions changed after the divorce was introduced under Hindu Marriage Act, 1955.

Divorce means putting an end to the marriage by the dissolution of marital relations. It is the legal dissolution of a marriage by a court or any competent court. After divorce parties can no longer be husband and wife. The decree of divorce allows each of the parties to have fresh marriages as they like. In the modern days, divorce is allowed for the spouses if they cannot live in compromise to each other. In Hindu law, divorce is governed by Hindu Marriage Act, 1955.

Divorce Theories:

  1. Fault Theory

    This theory is based on the 19th-century concept where the society considered divorce as an evil concept. If one of the parties has committed a sin or a matrimonial offence such as adultery, cruelty, rape, desertion, bestiality, refusal to obey the court order for maintenance, marrying an underage person then that marriage can be dissolved based on these grounds. The major drawback of this theory is that if both the parties are at fault no divorce can be granted and also if the innocent party forgives the act of guilty party no divorce will be granted. When the right to divorce or the right to dissolve the marital bond was first introduced into matrimonial law, it was based on the guilty theory. Only if a spouse was guilty of a matrimonial offence, or in other words, had violated the terms or conditions of the marriage contract, then the other spouse had the right to dissolve the marriage. Most of the grounds for judicial separation and divorce which are contained in the Hindu Marriage Act, 1955 are based on this theory. The various grounds for divorce based on this theory are Adultery, Cruelty, Desertion, Rape, Bestiality, AND Maintenance to wife.
  2. Frustration Theory

    In this theory, the concept of divorce is a relief from frustration. Frustration can occur to the spouses due to various reasons. The feeling of deep anguish, disappointment, and frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty. According to this theory either of the spouse can put an end to the marriage on the basis of mental disorder, any physical ailment, conversion of religion, renunciation of world, and unheard for a very long period. Only these factors remains as the ground for divorce and any type of marital offenses will not include in this theory. If a person prefers divorce on the above-mentioned causes it is considered as a valid ground under this theory. The Hindu Marriage Act 1955, considers Apostasy(conversion of religion), Unsoundness of mind, Renunciation of world as valid ground for divorce.
  3. Mutual Consent Theory:

    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. The Hindu marriage act now permits divorce by mutual consent under section 13B .one may well say that from an unbreakable bondage under the smritis, a hindu marriage act into a consensual union between one man and one woman. everything static must drop and die and ideas of marriage and divorce are no exception.
  4. Irretrivable Theory:

    This theory relates to the irretrievable breakdown of the marriage.
    The 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 & wife.
    • Such marriage should be dissolved with maximum fairness.
The Law Commission Of India in Chapter 4 of the 71st report has dealt in detail with the demerits of the irretrievable breakdown theory.

The two main oppositions discussed in the report are as follows:
  1. It will make divorce easy. It will allow the spouses or even any one of the spouses to dissolve the marriage out of their own pleasure.
  2. It will allow the guilty spouse to take advantage of his own fault by getting separated and dissolving the marriage.

Criticism by the Govt:
The Government of India, Ministry of Education, Department of Social Welfare, has expressed the review that making irretrievable breakdown of marriage a ground for grant of a decree of divorce is redundant in the light of the fact that sufficient grounds covering:
  • Irretrievable breakdown of marriage
  • Exist in the Hindu Marriage Act and the Marriage Laws Amendment Act, 1976, for the purpose of seeking divorce

Grounds For Divorce:

The Hindu Marriage Act,1955 originally recognized the fault grounds for obtaining the decree of divorce. For this purpose nine fault grounds were mentioned in the Act. Sec. 13(1) lays, on which either the husband or wife could sue for divorce which is as follows:

  1. Adultery:
    One of the spouses having voluntary sexual intercourse with any person other than his or her spouse.
  2. Cruelty:
    One spouse treating the other spouse with cruelty.
  3. Desertion:
    One spouse deserts the other spouse for a continuous period not less than two years immediately preceding the presentation of the petition.
  4. Conversion:
    One of the spouses ceased to be a Hindu by conversion to another religion.
  5. Insanity:
    One of the spouses has been incurable of unsound mind, or has been suffering continuously or intermittently from mental disorder to such an extent that the petitioner cannot reasonably be expected to live with such spouse.
  6. Leprosy:
    a virulent and incurable form of leprosy.
  7. Veneral disease:
    In a communicable form
  8. Renunciation:
    One of the spouses has renounced the world by entering any religious order
  9. Presumption of death:
    has not been heard of as being alive for a period of seven years.
Besides the grounds enumerated above, a wife has been provided four additional grounds under section 13(2) of the Hindu Marriage Act, they are:

  1. Pre-Act polygamous marriage:
    • That the husband has another wife from before the commencement of the Act, alive at the time of solemnization of the marriage of the petitioner. The other wife should be alive at the time of presentation of the petition as well.
  2. Rape, Sodomy, or Bestiality:
    • that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy, or bestiality.
  3. Non-resumption of cohabitation after a decree/order of Maintenance:
    • Where in a suit u/s 18 of Hindu Adoptions & Maintenance Act,1956 (maintenance of wife) or in a proceeding u/s 125 Crpc, a decree or order has been passed against husband awarding maintenance to the wife, cohabitation between the parties has not been resumed for one year or upwards.
  4. 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.
    • No petition for Divorce within one year of Marriage As per Section 14, no Court will entertain the petition of divorce within 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.


  • familycourtskl.pdf

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