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.
Divorce was formerly unheard of in general Hindu law because marriage was seen
as an indissoluble union of the husband and woman. Manu decreed that a wife
could not be released by her husband by sale or abandonment, meaning that the
marital bond could not be dissolved in any way. Although Hindu law does not
allow for divorce, it has been determined that if it is regarded as an
established tradition, it has the power of law.
Marriage may be dissolved by mutual consent in the case of an unapproved form of
marriage, according to Kautilya's Arthashatra. Manu, on the other hand, does not
believe in the end of marriage. He declares" let mutual fidelity continue till
death; this, in brief, may be understood to be the highest dharma of the husband
However, this changed when divorce was introduced in the Hindu Marriage Act,
Concept Of Divorce
The term "divorce" had not been defined by statute, but it may be defined as a
legal termination of judicial connections established during marriages. Hence,
divorce is a seven-letter term that separates a married pair of their own will
and with their own agreement. So, divorce can be viewed as a way to end a
marriage that occurs not just between two individuals but also between two
Theories Of Divorce
The theories of divorce are as follows:
- The Fault Theory
The Fault Theory of divorce is also known as the Offense Theory or Guilt
Theory. As a result, it emphasises the fact that a marriage can be dissolved
if any of the parties inside the matrimonial bond commits an offence against
the marriage's innocent partner. As a result, inside the married
connections, a guilty and an innocent partner are required. The innocent
party merely has the right to seek divorce redress. The most striking
element, however, is that if both parties are at fault, there is no recourse
accessible to them.
- Mutual Consent Theory
The argument behind this view is that since two individuals marry one other
of their own free will, they should also be allowed to divorce freely. In
any event, it has been heavily criticised that this practise will increase
immorality by causing hurried separations and parties breaking down their
marriage regardless of whether there was a tiny personality conflict.
- Irretrievable Breakdown of Marriage Theory
According to the irreversible breakdown of marriage theory, a failure in the
married partnership due to such severe conditions that no reasonable
prospect of the spouses remaining together remains. The husband and wife
will never be able to stay together as a result of such awful difficult
conditions and scenarios. Consequently, in such instances, there is a
stronger cause to live apart than the emotions of love, affection, and
devotion that should typically exist between the husband and the wife.
Therefore, the rationale behind this theory is that if a marriage is beyond
all possibilities of a repair then it should be brought to an end; when a
marriage is not able to last then there is no point in sharing rights and
obligations between the two parties.
Grounds For Divorce Under Hindu Marriage Act, 1955
All Jurisdictions agree that public policy, good morals, and the interests of
society demand that the marriage relationship be surrounded by every precaution
and that its severance be permitted only in the manner and for the cause
prescribed by law. Divorce is not favoured or promoted, and it is only tolerated
for serious reasons.
All three theories of divorce are acknowledged in modern Hindu law, and divorce
can be sought on the basis of any of them. The Hindu Marriage Act, 1955
originally, based divorce on the fault theory, and enshrined nine fault grounds
in Section 13(1) on which either the husband or wife could sue for divorce, and
two fault grounds in Section 13(2) on which wife alone could seek the divorce.
In 1964, by an amendment, certain clauses of Section 13(1) were amended in the
form of Section 13(1A), thus recognizing two grounds of the breakdown of the
marriage. The 1976 amendment Act inserted two additional fault grounds of
divorce for wife & a new section 13B for divorce by mutual consent.
The various grounds on which a decree of divorce can be obtained are as
Wife's Special Grounds for Divorce:
While adultery is not a criminal offence in all nations, the matrimonial
offence of adultery or the fault basis of adultery is recognised in the
Even in Shastric Hindu law, when divorce was not recognised, adultery was
categorically forbidden. There is no clear definition of adultery as a
During the subsistence of marriage, there must be voluntary or consenting
sexual intercourse between a married person and another, whether married or
unmarried, of the opposite sex who is not the other's spouse. Intercourse
with the previous or latter wife of a polygamous marriage is hence not
considered adultery. But, if the second marriage is null and void, sexual
relations with the second wife will be considered adultery.
Whilst initially a divorce could only be obtained if one spouse was living
in adultery, the Marriage Laws Amendment Act of 1976 changed that, and the
Hindu Marriage Act now considers even a single act of adultery sufficient
for a divorce decree.
Because adultery is a marital offence, it must be proven that the marriage
existed at the time of the act of adultery. It therefore implies that there
can be no adultery unless one actively consents to the act. If the woman can
prove that the co-respondent raped her, the husband will be denied a
In Swapna Ghose v. Sadanand Ghose, the wife found her husband and the
adulteress to be lying in the same bed at night and further evidence of the
neighbours that the husband was living with the adulteress as husband and
wife is sufficient evidence of adultery. The fact of the matter is that
direct proof of adultery is very rare.
The offence of adultery may be proved by:
- Circumstantial evidence
- Contracting venereal disease
Cruelty is an ever-changing concept. Cruelty in the modern sense encompasses
both mental and physical abuse. Cruel acts are behavioural manifestations
triggered by various causes in the lives of spouses and their surroundings, and
each case must be evaluated on the basis of its own set of facts. While physical
cruelty is easier to identify, mental cruelty is more difficult to define.
Possibly mental cruelty is a lack of such conjugal kindness, which inflicts
agony of such magnitude and duration that it negatively affects the mental or
physical health of the spouse on whom it is perpetrated.
In Pravin Mehta v. Inderjeet Mehta, the court has defined mental cruelty as 'the
state of mind.'
Some Instances of Cruelty are as follows:
Grounds for Cruelty:
- false accusations of adultery or unchastity
- demand of dowry
- refusal to have marital intercourse/children
- birth of child
- threat to commit suicide
- wife's writing false complaints to employer of the husband
- incompatibility of temperament
- irretrievable breakdown of marriage
Not Considered Cruelty:
- ordinary wear & tear of married life
- wife's refusal to resign her job
- desertion per se
- outbursts of temper without rancor
Desertion means the rejection by one party of all the obligations of marriage-
the permanent forsaking or abandonment of one spouse by the other without any
reasonable cause and without the consent of the other. It means a total
repudiation of marital obligation.
The following 5 conditions must be present to constitute desertion; they must
co-exist to present a ground for divorce:
In Bipinchandra v. Prabhavati, the Supreme Court held that where the respondent
leaves the matrimonial home with an intention to desert, he will not be guilty
of desertion if subsequently he shows an inclination to return & is prevented
from doing so by the petitioner.
- the factum of separation
- animus deserdendi (intention to desert)
- desertion without any reasonable cause
- desertion without consent of other party
- statutory period of two years must have run out before a petition is presented.
If one of the spouses converts his religion to any other religion without the
consent of the other spouse, then the other spouse can approach the court and
seek the remedy of divorce.
A, a Hindu has a wife B and two children. One day A went to church and converted
to Christianity without the consent of B, here B can approach the court and seek
for divorce on the ground of conversion.
In Suresh Babu v. Leela, the husband converts himself into Muslim and marries
another woman. Here the wife Leela filed a case and demanded the divorce on the
ground of conversion without her consent and cruelty.
Insanity means when the person is of unsound mind. Insanity as a ground of
divorce has the following two requirements-
The respondent has been incurably of unsound mind.
The respondent has been suffering continuously or intermittently from mental
disorder of such a kind and to such an extent that the petitioner cannot
reasonably be expected to live with the respondent.
In Vinita Saxena v. Pankaj Pandit, the petitioner filed a case to get the
divorce from the respondent on the ground that the respondent was suffering from
Paranoid Schizophrenia which means mental disorder. She came to know these after
her marriage. Here, the court grants the divorce on the ground of insanity of
- Venereal Illness:
It is now a cause for divorce if it is infectious by nature, regardless of how
long the respondent has suffered from it. The ground is established if it is
demonstrated that the sickness is infectious and that it was not communicated to
the petitioner (even if done innocently).
A and B married on 9 September 2011. Later A suffered from a venereal disease
and it is incurable. There's also a chance that B can also get infected by that
disease if she lives with A. Here, B can approach the court for dissolution of
Only in Hindu law is "renunciation of the world" a reason for divorce, as
renunciation of the world is a common Hindu concept. According to modern
codified Hindu law, a spouse may seek divorce if the other partner has renounced
the world and entered a holy order. A person who accomplishes this is declared
legally dead. Such renunciation must be explicit and absolute by joining a
- Presumption of Death:
In this case, the person is presumed to have died, if the family or the friends
of that person does not hear any news about the person alive or dead for seven
years. It is considered as the valid ground for divorce, but the burden of proof
is on the person who demands the divorce.
A was missing from the last seven years and his wife B does not get any news
about him of being alive or dead. Here B can approach the court and ask for the
Besides the grounds enumerated above, a wife has been provided four additional
grounds of divorce under Section 13(2) of the Hindu Marriage Act, 1955.
are as follows:
- Pre-Act Polygamous Marriage:
This clause defines the grounds for divorce as
"that the husband has another wife from before the start of the Act who is alive
at the time of the petitioner's marriage."
For example, the case of Venkatame v. Patil, where a man
had two wives, one of whom sued for divorce, and while the petition was pending,
he divorced the second wife. He then averred that since he was left only with
one wife, and the petition should be dismissed. The Court rejected the plea.
Such a ground is available if both the marriages are valid marriages & the other
wife (2nd wife) should be present at the time of filing of the petition.
However, today this ground is no more of practical importance.
Rape, Sodomy or Bestiality:
Under this clause, a divorce petition can be
presented if the husband has, since the solemnization of the marriage, been
guilty of rape, sodomy or bestiality.
- Non-Resumption of Cohabitation After a Decree/Order Of Maintenance:
If a wife has obtained an order of maintenance in proceedings under Section 125,
Cr.P.C., 1973 or a decree under Section 18, Hindu Adoption and Maintenance Act,
1956 and cohabitation has not been resumed between parties after one year or
upwards, then this is a valid ground for suing for divorce.
- Repudiation Of Marriage:
This provision allows the wife to divorce if the
marriage was solemnised before she reached the age of fifteen and she renounced
the marriage before reaching the age of eighteen. Such rejection can be
expressed verbally or in writing, or it can be inferred from the wife's actions
(leaving husband and refusing to return). Furthermore, this right (added by the
1976 amendment) has only a retroactive impact, which means that it can be used
regardless of whether the marriage was solemnised before or after such
Marriage is regarded as a holy tie among Hindus. There was no provision for
divorce prior to the Hindu Marriage Act of 1955. Divorce was considered too
radical in Indian society at the time. The women were the unnoticed victims of
such a strict regime.
Yet, times have changed, situations have altered, and the social ladder has
shifted. Now, the law allows you to get out of a bad marriage by filing for
divorce in a court of law. Women who no longer have to face harassment or
unfairness at the hands of their spouses are the true beneficiaries of such a
But, it is anticipated that the way the judiciary is dealing with the topic of
irreversible marriage breakdown will utterly halt the marriage system.
Every theory has both negative and positive aspects. Their applicability varies
according on the situation. As a result, it is critical that our country's
parliamentarians approach the matter with caution after carefully examining its