Grounds of divorce under section 13 of Hindu Marriage Act 1955
Introduction:-
Hindus conceived of their marriage a sacramental union between two people. Hindus did not consider marriage as a contract but as a tie which once tied cannot be untied. Under Hindu law, divorce has been recognized. Now the question arises what is divorce? – Divorce is a dissolution of a marriage. It is more permanent than separation and involves a legal process.[1] Divorce under Hindu Marriage Act, 1955 based on the fault theory of divorce.
Grounds of Divorce :–
A Hindu husband or wife can appeal for a divorce if they want to end the marriage. As per Section 13(1) of the Hindu Marriage Act, 1955, either party to the marriage, after the solemnization of the marriage, can file a petition before the civil court of the district praying for dissolution of the Hindu marriage on any of the following grounds that –
Cruelty
cruelty is defined under section 13(1)(ia) of the Hindu Marriage Act 1955. The concept of cruelty has differed from era to era with the change in social and financial circumstances. Cruelty has been recognized as a significant ground of divorce as well as judicial separation. It is a conduct of such a character as to give rise to danger of life, limb or health, mental or physical or as to give rise to adequate suspicion of such danger.
Cruelty is two types – Mental and physical.
Mental Cruelty – Mental Cruelty is more than physical cruelty. It is a bunch of conditions that can harm someone internally. It can be a malicious false accusation, forcing the wife to prostitution, compelling to terminate the pregnancy, refusing to have a child etc.
Physical Cruelty – physical cruelty has certainly constituted chaos to a specific degree. It can be a danger of life, health. It is easy to understand that physical cruelty has taken place.
Case Law– in the case of A. Jaya Chandra V. Aneel Kaur (2005 2 SCC 22), the Supreme Court held that the cruelty has been used with human behavior to composing cruelty. The conduct complained of should be a shrine and heavy for arriving a decision that respondent cannot be relatively expected to live with the other partner.
Conversion
Conversion is defined under section 13(1)(ii) of the Hindu Marriage Act, 1955. If any of the parties to the Hindu marriage has ceased to be a Hindu by conversion to another religion such as Muslim, Christian, Parsi or jew the opposite party can appeal for a divorce.
Case Law– In the case of Madanam Seetha Ramulu V. Madanam Vimla (AIR 2014 NOC AP 412), the Andhra Pradesh High Court observed that the respondent was converted from Hindu to Christian. So the petitioner filed for divorce against his wife and the court granted him the decree of divorce.
Adultery
The term adultery has not been defined under the Hindu Marriage Act, 1955. Adultery is voluntary sexual intercourse between a man and a woman, one of whom is married to a third party. Direct evidence of adultery is generally looked upon by the courts as rather sceptical, as it is very incredible that adultery would be committed in the presence of witnesses. In most cases, the apex courts have to look upon conditional evidence, evidence as to the opportunity, inclination and conduct, evidence of the birth of a child during non-access, evidence of a visit to a brothel etc.
Case Law– In the case of Swapna Ghose v. Sadanand Ghose (AIR 1989 Cal 1, 93 CWN 231), the Calcutta High Court observed that the petitioner found the respondent committed adultery with the neighbour and the court granted him the decree of divorce.
Desertion
Section 13(1)(ia) of the Hindu Marriage Act, 1955 deals with desertion. Desertion simply means durable defection of one partner by the other without any adequate cause and the consent of the other. It is a total contradiction of commitments of marriage. Under the Hindu Marriage, Act desertion has been divided into three-part:
- Actual desertion,
- Constructive desertion, and
- Willful neglect. [2]
Few elements of desertion are as follow:
- The factum of separation,
- animus deserdendi,
- Desertion should be without any sufficient purpose and the consent of the other party, and
- At least 2 years statuary period before a petition was presented.
Case Law- In the case of Sunil Kumar V. Usha (AIR 1994 MP 1, 1994 (0) MPLJ 201), the Madhya Pradesh High Court held that the respondent had left her matrimonial house due to objectionable atmosphere in the in-law house and reign of terror existing there drove her out. The respondent was not guilty of desertion.
Venereal Disease
The term venereal disease has not been defined under the Hindu Marriage Act 1955. It is a ground of divorce as well as judicial separation. The respondent has for not less than 2 years immediately preceding the presentation of the petition, been suffering from venereal diseases in a communicable aspect. The sexual transmitted disease like HIV is a venereal disease.
Case Law- In the case of Sm. Mita Gupta V. Prabir Kumar Gupta ( AIR 1989 Cal 248), the apex court stated that Venereal disease is a factor of divorce, but the party may be withheld relief even though the other party suffers as much if the former is liable for the contagion.
Leprosy
After the Marriage Laws Act, 1976 leprosy has been made a ground of divorce as well as judicial separation. The respondent has, for not less than 2 years immediately preceding the presentation of the petition, been suffering from leprosy. Two conditions are essential for leprosy, they are – virulent and incurable.
Case Law- In the case of Annapurna Devi v. Nabakishor Singh (AIR 1965 Ori 72), the Odisha High Court stated that the respondent is suffering from leprosy for 3 years immediately before the divorce appeal, the liability lies on to the petitioner to ascertain that leprosy is virulent and incurable leprosy.
Insanity
Insanity or unsound mind is ground both for divorce and judicial separation. The respondent has been incurable of unsound mind for a continuous period of not less than 2 years immediately preceding the declaration of the petition.
Case Law- In the case of K Jasmine V. Balasundarm ( 1995 Mad 105), the apex court observed that the petitioner goes through the medical test at the instance of the husband. The medical test and unsound of mind went against the husband. The petitioner could not be ordered to withstand another medical test. Mental Disorder and not psychological depression is a ground of divorce.
Renunciation of World
Section 13(1)(vi) deals with renunciation of the world. The petitioner can ask for a divorce if the two conditions are satisfied under this clause, they are:
- The respondent must have renounced the world, and
- He or she must have entered any religious order.
Case Law- In the case of Sital Das V. Sant Ram (1954 SC 606), the apex court held that a person joins a religious order when he undergoes the rites prescribed by the order which he or she enters. Unless these rite are undergone, it would not amount to entering into a religious aorder.
Not Heard as alive
Section 13(1)(vii) of the Hindu Marriage Act, 1955 deals with presumption of death. The petitioner can file a petition in the ground of that the respondent has not been heard of as being alive for seven years or more, by those persons who would naturally have heard of the respondent if had he been alive.
Willful refusal to consummate and failure to comply with the restitution of conjugal rights are the grounds of divorce mentioned in the Hindu Marriage Act 1955.
Conclusion :-
Divorce is an official way to dissolve a marriage. The parties to the Hindu marriage can appeal for the divorce mentioned on the above grounds.
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References-
[1] https://www.vocabulary.com/dictionary/divorce
[2] Modern Hindu Law, Dr. Paras Diwan, Pg No-133.
Author: Shreeparna Goswami,
2nd year B.A.LL.B of Shyambazar Law College