Divorce under Hindu Marriage Act, 1955

DIVORCE UNDER HINDU MARRIAGE ACT, 1955

Introduction:

India being a country of diverse cultures and religions does not have any Uniform Civil Code. The religious personal laws are followed by the people of different religions. Similarly, the divorce laws also differ among the religions, such as the Hindu Marriage Act, 1955[1] governing the divorce of Hindus, Sikhs, Buddhists and Jains; Indian Divorce Act, 1869[2] governing the divorce among Christians; Parsi Marriage and Divorce Act, 1936[3] governing the divorce among Parsis; and the Muslim Personal Law (Shariat) Application Act, 1937[4] as well as the Dissolution of Muslim Marriages Act, 1939[5] for the divorce among Muslims. The religious personal laws on divorce also differ among different religions and have different set for grounds for dissolving the marriage.

The following article deals with the dissolution of marriage under the Hindu law.

Section 13 of Hindu Marriage Act, 1955:

Section 13 of the Hindu Marriage Act, 1955 (HMA, 1955) deals with the dissolution of marriage under the Hindu law. The section sets forth certain grounds under which divorce can be allowed to a spouse. Clause 1 of the Section deals with divorce brought forward by any of the spouse, whereas clause 2 of the Section gives the exclusive power to Hindu wives to file for divorce. However, the preliminary condition for seeking divorce under this section is that the marriage should be a valid one under the Hindu Marriage Act, 1955. The following are the grounds for divorce under Section 13 (1):

• 13 (1)(i)- Voluntary sexual intercourse with a person other than the spouse after the solemnization of marriage (Adultery)
• 13 1(ia)- Cruelty to the petitioner
• 13 1(ib)- Desertion of the petitioner for a continuous period of two years immediately preceding the presentation of the petition
• 13 (ii)- Conversion to another religion, thereby ceasing to be a Hindu
• 13 (iii)- Unsoundness of mind or continuous or intermittent mental disorder of such kind as makes it impossible for petitioner to live with the respondent.
• 13 (v)- Suffering from venereal disease of incurable form
• 13 (vi)- Renunciation of the world
• 13 (vii)- Not heard of as being alive for a period of seven years or more by those persons who would have naturally heard of the spouse being alive

The Section also lays down the conditions for divorce after a decree of judicial separation or restitution of conjugal rights under Section 13 1A. If there has been no resumption of cohabitation between the parties for a period of one year or more after the passing of a decree of judicial separation, then the parties can seek divorce [Section 13 1A (i)]. If there has been no restitution of conjugal rights between the parties for a period of one year or more after the passing of decree of restitution of conjugal rights [Section 13 1A (ii)].

Section 13 (2) allows a Hindu wife to file for divorce under certain grounds exclusively. (i) If the husband was married to another woman and had married the petitioner wife without dissolving the marriage with the previous marriage, or if the first wife was alive at the time of second marriage, then the petitioner wife can dissolve the marriage. (ii) If the husband has been guilty of rape, sodomy and bestiality after the solemnization of marriage, it is a ground for divorce. (iii) If under a suit under Section 18 of the Hindu Adoptions and Maintenance Act, 1956[6], or in a proceeding under Section 125 of the Code of Criminal Procedure,1973[7], a decree or order has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and cohabitation has not been resumed between the parties for one year or more. (iv) If the marriage (whether consummated or not) was solemnised before the wife attained the age of fifteen years and she had repudiated the marriage after attaining that age but before attaining the age of 18 years.

Grounds for Divorce [Section 13 (1)]:

1. Adultery [13 (1)(i)]

Adultery is defined in Britannica as “sexual relations between a married person and someone other than the spouse”[8]. Adultery as a ground for divorce is defined under Section 13(1) of the Hindu Marriage Act, 1955 as an act involving voluntary sexual intercourse with a person other than the spouse. Therefore, in a case of adultery it is essential for the petitioner to prove that he/she was married to the respondent and that the respondent has had voluntary sexual intercourse with a person other than the petitioner. The ground was added to Section 13 of the HMA, 1955 through the Marriage Laws Amendment Act, 1976.[9]

Essentials of adultery include-

• One of the spouses is involved in sexual intercourse with a person other than the spouse.
• The intercourse between the spouse and the other person should be voluntary and consensual.
• The marriage between the petitioner and the respondent should be subsisting at the time of filing the petition for adultery.
• There should be sufficient circumstantial evidence proving the act of adultery.

To consider a certain act to be adultery, it is not necessary that penetration has to take place. Divorce cases for adultery are dealt with on a case to case basis and are decided on the evidence provided and on the merits of the case. Any conduct of the parties which gives reasonable conclusion that they have been committing adultery together is also considered adultery.

The burden of proof in adultery lies on the party alleging adultery by the other party.[10]

2. Cruelty [13 1 (ia)]:

Cruelty was not a ground for divorce before 1976 but was later on added to Section 13 as a ground for divorce through the Marriage Laws Amendment Act, 1976.[11] The word “cruelty” is used in Section 13(1)(ia) of the Hindu Marriage Act, 1955 in the context of human conduct or behaviour in relation to or in respect of matrimonial duties or obligations. It consists of physical cruelty, mental cruelty and emotional cruelty. Physical cruelty consists of the physical pain and torture to a spouse, whereas mental and emotional cruelty consist of such conducts of pain and torture which cause a lot of trauma to the spouse, both emotionally and mentally.

Mental cruelty was defined in V. Bhagat v. D. Bhagat (Mrs.)[12], where the SC had held that mental cruelty in Section 13(1)(i-a) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering, such that it makes it impossible for the party to cohabit with the other. In Dastane v Dastane (1975), Justice YV Chandrachud in his judgement had observed that the inquiry of cruelty should involve as to whether the conduct charged as cruelty is based on the nature of the conduct. If the conduct is such that it causes a reasonable apprehension in the petitioner’s mind that it would be injurious to cohabit with the respondent, then the conduct amounts to cruelty.

Considering the evidence for mental cruelty, the Supreme Court in the case of  Praveen Mehta v. Inderjit Mehta[13] held that mental cruelty cannot be established by direct evidence and it is necessarily a matter of inference to be drawn from the facts and circumstances of the case. In Smt. Nirmala Manohar Jagesha vs Manohar Shivram Jagesha[14] the Court held that if any form of false, baseless and scandalous statements is made against the spouse, then it is considered to be cruelty and the aggrieved spouse is allowed to obtain a decree of divorce.

However, petty household quarrels do not amount to cruelty as was held in Gurbux Singh vs Harminder Kaur[15] where the court had held that simple minor aggravations and squabbles occurring in everyday life of couples are not a sufficient ground to obtain divorce.

3. Desertion [13 (1) (ib):

The expression ‘desertion’ means the leaving of the petitioner’s society by the other party to the marriage without any reasonable cause and consent of such party, and includes the wilful neglect of the petitioner by the other party to marriage.[16]

The essential grounds to consider desertion are: factum of separation and the intention to permanently end cohabitation (for the deserting spouse), and the lack of consent and absence of any conduct which forces the party to desert (for the deserted spouse).[17] Only after these conditions are fulfilled can the Court allow the decree for divorce.

“Desertion is not to be concluded by ascertaining which party first left the matrimonial home. If one spouse is forced by the conduct of the other to leave, the desertion could be by such conduct of other spouse and compelled to live separately,” observed the division bench comprising Justice Pradeep Nandrajog and Justice Yogesh Khanna in Mrs. Nisha Rani v. Sh. Sohan Singh Nehra[18]. In the following case, the Trial Court had refused to accept the allegations of the husband against the wife but had granted divorce observing that she left the matrimonial home without any cause and since had failed to join the company of her husband, despite his repeated requests, thereby committing cruelty upon him by denying him the matrimonial bliss. The Court then observed that the wife had never wished to be bringing marital bond to an end and therefore concluded that desertion does not involve the withdrawal from a place but also from the obligations of the marriage.

4. Conversion [13 (ii)]:

If one of the spouses converts to another religion and ceases to be a Hindu, then the other spouse can file for divorce. Conversion in this Section means that the spouse has voluntarily relinquished their religion and has adopted another religion through a formal ceremony.

The spouse converting to other religion cannot file for divorce under this Act, but only the other (non-converting) spouse has the exclusive right to file for divorce under this Act.[19] Conversion through a formal ceremony does not only account for conversion, but has to be complied on a factual basis.[20]

In Sarla Mudgal v. Union of India[21], it was held that if a Hindu husband converts to another religion and marries another woman without divorcing the first wife, then it is violative of justice, equity and good conscience and such marriages shall be declared void as well as bigamous and therefore shall be punishable under Section 494 of the Indian Penal Code, 1860[22].

5. Mental Disorder [13 (iii)]:

Mental disorder was included under Section 13 through the Marriage Laws (Amendment) Act, 1976[23].According to Section 13 of HMA, 1955, if one of the spouses is of incurable form of unsound minded or has been suffering from mental disorder continuously or intermittently as of such a kind as makes it impossible for the other spouse to live with that spouse. The expression ‘mental disorder’ implies mental illness, incomplete development of mind, psychopathic behaviour or any other mental disorder, including schizophrenia. The term ‘psychopathic disorder’ implies a persistent disorder of mind resulting in abnormal aggressive behaviour or a grievous irresponsible conduct, irrespective of whether it requires medical treatment or not. Therefore, it is not only essential to prove that the spouse is suffering from mental disorder, but it is also necessary to prove that cohabitation with the spouse is impossible.[24]

The divorce cases under this sub clause have to considered on a case to case basis[25]. Even though medical evidences are essential under these cases, but the evidences are not considered to be conclusive and have to be decided on the basis of the facts and circumstances of the case.

7. Venereal Disease [13 (v)]:

A spouse can seek divorce under the HMA, 1955 if the other spouse is suffering from a venereal disease which is of communicable form and can spread through cohabitation. In Mr. X v. Hospital Z[26], the Court had held that if a person is suffering is suffering from venereal disease of communicable form, then the person should marry only after getting completely cured of the disease, and if such person marries without being cured, then the other spouse can seek divorce under the HMA, 1955.

8. Renunciation of the World [13 (vi)]:

Renunciation of the world means the giving up of the worldly pursuits and choosing to walk on the path of God and leading a non-secular life. Renunciation of the world by one spouse gives the right to the other spouse to file for divorce under the HMA, 1955. The party renouncing the world is considered to be a dead person civilly and therefore it is a valid ground for divorce.

Two conditions need to be fulfilled to obtain a decree of divorce under this clause:

1. Renunciation of the world by the respondent;
2. The respondent must have entered into some other kind of religious order.

A person is said t haver renounced the world only after he/she enters into a religious order by undergoing certain rites and ceremonies prescribed under the religion.[27] But, if a person enters into such religious ceremonies and rites but still cohabits with the other spouse, then it is not considered as renunciation of the world.

9. Presumption of Death [13 (vii)]:

In both the Indian law[28] and the English law[29] it is considered that if a person is not heard of as being alive for a period of seven years or more, then that person is presumed to be dead.

In such cases, the petitioner has the burden to actually prove that the respondent must be alive but has not being heard of for seven years or more. However, a spouse can neither claim himself/herself to be a widow or a widower nor can the spouse remarry without getting divorce merely based on this evidence.[30]

The difference between desertion and presumption of death stands that under desertion there is an intention to end the marital relationship by a spouse, whereas in the presumption of death there is no conveyance of express intention and the absence creates a presumption of the death and is therefore not a fault ground for divorce as desertion.

There is an absolute provision for a minimum period of 7 years of absence and no custom allowing divorce for absence for any lesser period of time is valid.[31] In case if a person marries another without obtaining a decree of divorce under Section 13 (1)(vii) and the first spouse returns back, then the second marriage is  considered invalid under Section 11 of the HMA, 1955 and the person can even be sued for bigamy under Section 494 of the IPC, 1860.[32]

Section 13 (2):

Section 13 (2) provides exclusive rights to Hindu women to file for divorce. The grounds are:

1. Bigamy [13 (2) (i)]:

Under this clause of Section 13, if a man and woman marry and later the wife comes to know that his first wife was alive before the commencement of this Act, then the second wife can file for divorce under this clause.

In the case of Leela v. Anant Singh[33] it was held by the Court that the wife of a polygamous marriage should not be deprived of her right to file for divorce merely on the ground that before the commencement of the Act, the wife had entered into a compromise with the husband to live with him continuously, nor can the husband claim that the wife’s conduct disqualifies her from seeking divorce under this Act.

2. Rape, Sodomy, or Bestiality [Section 13 (2) (ii)]:

A man is held to be guilty of rape if he forces an unwilling to participate in sexual activities, when he causes a woman to have sex by causing her the fear of death, if he falsely makes the woman believe to be his wife, or if the he has sexual intercourse with a woman below 12 years of age.

Sodomy or bestiality occur when an individual has carnal intercourse with a man, woman or an animal, against the order of nature.

However, marital rape is still not considered to be a ground for divorce under this Act and a man cannot be held guilty for raping his wife, unless the wife is below 15 years of age.

3. Non-resumption of Cohabitation after the decree of Maintenance [Section 13 (2) (iii)]:

Under this clause, a Hindu wife has the right to file for divorce if even after the passing of a decree of Court directing the husband to provide maintenance to the wife, the husband has continued to neglect his duties towards the wife and has failed to maintain her.

4. Repudiation of Marriage [Section 13 (2) (iv)]:

Under this clause of Section 13, a Hindu wife can seek divorce if she was married before attaining the age of fifteen years and she had repudiated the marriage (consummated or not) after the attainment of age of fifteen years but before attaining the age of eighteen years. Therefore, if she repudiates the marriage after attaining eighteen years of age, then the wife cannot claim divorce under this clause.

Conclusion:

Therefore, after analysing the grounds for divorce enshrined under the Hindu Marriage Act, 1955, it can be fairly concluded that every individual has a right to live his/her life happily and have a blissful marital life. These specific clauses provide assistance to those couples to dissolve their marriage whose marriage gets flawed eventually either due to the fault of the other party or due to the circumstances. Marital bons is a sacred bond and cannot be allowed to be mishandled by petty issues and therefore certain conditions are laid down for every ground of divorce and only after fulfilling those conditions can a person obtain a decree of divorce under this Act.

[1] Act No. 25 of 1955.

[2] Act No. 4 of 1869.

[3] Act No. 3 of 1936.

[4] Act No. 26 of 1937.

[5] Act No. 8 of 1939.

[6] Act No. 78 of 1956.

[7] Act No. 2 of 1974.

[8] Britannica, The Editors of Encyclopaedia. “Adultery”. Encyclopaedia Britannica, 9 Feb. 2009, https://www.britannica.com/topic/adultery. Accessed 2 March 2021.

[9] Act No. 68 of 1976.

[10] Ballabhdas v. Sushila Bai, 1988 Supp SCC 720.

[11] Ibid at 9.

[12] V. Bhagat v. D. Bhagat (Mrs.) II (1993) DMC 568 (SC) 1993 (SLT SOFT) 358 (1994) 1 SCC 337.

[13]Praveen Mehta v. Inderjit Mehta (2002) 5 SCC 706.

[14] Smt. Nirmala Manohar Jagesha vs Manohar Shivram Jagesha AIR 1991 Bom 259.

[15] Gurbux Singh vs Harminder Kaur (2010) 14 SCC 301.

[16] Paras Diwan, MODERN HINDU LAW, 24th ed. 2019, p. 134.

[17] Bipin Chander Jaisingbhai Shah v. Prabhawati, 1956 SCR 838.

[18] Mrs. Nisha Rani v. Sh. Sohan Singh Nehra 2017 SCC OnLine Del 6404.

[19] Rasna v Arun 1997 (2) HLR 596 (MP).

[20] Durga Prasad Rao v Sudarshan Swammi, ILR 1940 Mad 653.

[21] Sarla Mudgal v. Union of India (1995) 3 SCC 635.

[22] Act No. 45 of 1860.

[23] Supra at 9.

[24] Ram Narayan v. Rameshwari, 1988 AIR 2260.

[25] Sharda v. Dharmapaul, (2003) 4 SCC 493.

[26] Mr. X v. Hospital Z AIR 2003 SC 664.

[27] Sital Das v. Sant Ram, 1954 SC 606.

[28] Indian Evidence Act, 1872, Section 108.

[29] Presumption of Death Act [2013 (UK), Section 1(1)(b)].

[30] Paras Diwan, Law of Marriage and Divorce, 1^stEdn. (1988).

[31] Parkash Chander v. Parmeshwari, AIR 1987 P&H 37.

[32] Nirmoo v. Nikkaram, AIR 1968 Del 260.

[33] Leela v. Anant Singh AIR 1963 Raj 178.

Author: Priyanjali Priyadarshini,
Tamil Nadu National Law University, 2nd Year