Divorce means the dissolution of marriage by a competent court. This paper
discusses divorce under Hindu Law. It analyses how the concept was non-existent
under ancient law due to the sacramental nature of marriage but was introduced
under the Hindu Marriage Act, 1955. It studies the different theories of
divorce-fault, mutual consent and breakdown; and also describes the grounds for
divorce under this Act, with focus on adultery and cruelty, and how these
grounds were modified through amendments. It briefly dwells on the grounds that
are only available to a wife.
The paper addresses the pros and cons of the
addition of irretrievable breakdown as a ground for divorce amidst the growing
debate about its merits. Earlier divorce was unknown to general Hindu law as
marriage was regarded as an indissoluble union of the husband and wife. Manu
declared that a wife cannot be released by her husband either by sale or by
abandonment, implying that the marital tie cannot be severed in any way.
Although Hindu law does not contemplate divorce yet it has been held that where
it is recognized as an established custom it would have the force of law.
According to Kautaliya's Arthshastra
, marriage might be dissolved by mutual
consent in the case of the unapproved form of marriage. But, Manu does not
believe in the discontinuance of marriage. He declares let mutual fidelity
continue till death; this, in brief, may be understood to be the highest dharma
of the husband and wife. However, this changed when divorce was introduced in
the Hindu Marriage Act, 1955.
In Ancient times, the concept of divorce was not known to anyone. They
considered marriage as a sacred concept. According to Manu, the husband and wife
cannot be separated from each other, their martial tie cannot be broken. Later
the concept of divorce came in the picture and established as a custom to put
the marriage to an end.
According to the Arthashastra, marriage can end if dissolved by mutual consent
and should be unapproved marriage. But Manu does not believe in the concept of
the dissolution. According to Manu the only way to end the marriage is the death
of one of the spouses.
The provision related to the concept of divorce was introduced by the Hindu
Marriage Act, 1955. The Hindu Marriage Act defines divorce as a dissolution of
the marriage. For the interest of the society, the marriage or the marital
relationship needs to be surrounded by every safeguard for the cause specified
by law. Divorce is permitted only for a grave reason otherwise given other
Different Theories of Divorce
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. But many philosophers criticise this theory as this concept is immoral
and leads to hasty divorce.
According to this theory, the dissolution of marriage happens due to failure of
the matrimonial relationship. The divorce can be taken by the spouse as a last
resort i.e. when both of them are not able to live together again.
Divorce under Hindu Marriage Act, 1955
In the Hindu Marriage Act, there are some provisions given regarding a valid
divorce, i.e. when the spouse can get divorce or appeal for dissolution of
marriage in the court of law. For the interest of the society, the marriage or
the marital relationship needs to be surrounded by every safeguard for the cause
specified by law. Divorce is permitted only for a grave reason otherwise given
The Hindu Marriage Act is based on the fault theory in which any one of the
aggrieved spouses (Section 13(1)) can approach the court of law and seek the
remedy of divorce. Section 13(2) provides the grounds on which only the wife can
approach the court of law and seek the remedy of divorce.
Grounds of Divorce as per The Hindu Marriage Act
The concept of Adultery may not be considered as an offence in many countries.
But as per the Hindu Marriage Act, in the matrimonial offence, the adultery is
considered as one of the most important ground for seeking divorce. Adultery
means the consensual and voluntary intercourse between a married person with
another person, married or unmarried, of the opposite sex.
Even the intercourse
between the husband and his second wife i.e. if their marriage is considered
under bigamy, the person is liable for the Adultery.
The concept of Adultery was inserted under the Hindu Marriage Act by the
Marriage Laws Amendment Act, 1976.
In Swapna Ghose v. Sadanand Ghose
In this case, the wife found her husband with other girl lying on the same bed
and the neighbour also confirmed that the husband has committed an offence. Here
the wife gets the divorce.
In Sachindranath Chatterjee vs Sm. Nilima Chatterjee
In this case, the petitioner and the defendant were married. After marriage, the
husband leaves the wife in his home town so that she can complete her studies
and go to another city for work. He visited twice or thrice a month to meet her.
Later he found that his wife commits the adultery i.e. to involve in sexual
intercourse with his own nephew, watchman etc. The plaintiff approaches the
court to demand divorce on the ground of adultery and his petition was accepted
and the marriage gets dissolved.
Essentials of Adultery
- One of the spouses involved in the intercourse with another person,
married or unmarried, of the opposite sex
- Intercourse should be voluntary and consensual.
- At the time of the act, the marriage was subsisting.
- There must be sufficient circumstantial evidence to prove the liability
of another spouse.
The concept of cruelty includes mental as well as physical cruelty. The physical
cruelty means when one spouse beats or causes any bodily injury to the other
spouse. But the concept of mental cruelty was added as the spouse can also be
mentally tortured by the other spouse. Mental Cruelty is lack of kindness which
adversely affects the health of the person. Well it is easy to determine the
nature of physical cruelty but difficult to say about mental cruelty:
- What is considered as Mental Cruelty against Husband by wife:
- Humiliating the husband in front of his family and friends.
- Undertaking the termination of pregnancy without husband consent.
- Making false allegation against him.
- Denial for Martial Physical Relationship without a valid reason.
- Wife having affair.
- Wife living an immoral life.
- The constant demand for money.
- Aggressive and uncontrollable behavior of Wife.
- Ill-treatment to the husband parents and family.
In this case, the petitioner filed the divorce petition against his wife on the
ground of mental cruelty. He proved that his wife that behavior with him and his
parents was Aggressive and uncontrollable and many times she filed the false
complaint against her husband. The court accepts the petition and grants the
divorce on the ground of cruelty.
What considered as Mental Cruelty against wife by Husband
- False accusation of adultery
- The demand for dowry.
- Impotency of Husband.
- Force to abort the child.
- The problem of drunkenness of husband.
- Husband having affairs.
- The husband lives an immoral life.
- Aggressive and uncontrollable behavior of the husband.
- Humiliating the wife in front of family and friends
Desertion means the permanent abandonment of one spouse by the other spouse
without any reasonable justification and without his consent. In General, the
rejection of the obligations of marriage by one party.
In Bipin Chander Jaisingh bhai Shah vs. Prabhawati
- Permanent abandonment of the other spouse
- Rejection of the obligation of marriage.
- Without any reasonable justification.
- No consent of another spouse.
In this case, the respondent leaves the house with the intention to abandon his
wife. Later the wife approaches the court, but the defendant proved that even
though he left the house with the intention to desert, but he tried to come back
and he was prevented from doing so by the petitioner. Here, the defendant cannot
be held liable for desertion.
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 vs Leela
In this case, 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 vs Pankaj Pandit
In this case, 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 husband.
Leprosy is an infectious disease of the skin, mucous membranes, nervous system
etc. this disease is transmitted from one person to another. Thus it is
considered as the valid ground for divorce.
In Swarajya Lakshmi vs G. G. Padma Rao
In this case, the husband filed the case for granting the divorce on the ground
of leprosy. He claimed that his wife is suffering from incurable leprosy with
the expert's reports. Here he succeeds in getting the divorce on the ground of
Under this concept, if the disease is in communicable form and it can be
transmitted to the other spouse, then this can be considered as the valid ground
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
It means when one of the spouses decide to renunciate the world and walk on the
path of the God, then the other spouse can approach the court and demand the
divorce. In this concept the party who renunciates the world is considered as
civilly dead. It is a typical Hindu practice and considered as a valid ground
A and B got married and lives a happy life. One day A decides to renunciate the
world. Here, B has a right to approach the court and seek the remedy of divorce.
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
Concept of Divorce with Mutual Consent
As per Section 13B, the person can file the petition for divorce by mutual
consent of both the parties. If the parties want to dissolve their marriage as a
mutual consent are required to wait for one year from date of marriage. They
have to show that they are living separately for one or more year and not able
to live with one another.
No petition for Divorce within one year of Marriage
As per Section 14, no Court will entertain the petition of divorce within the
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.
The Hindu Marriage Act, 1955 provides various provision regarding divorce. The
Hindu Marriage Act defines Divorce as a Dissolution of Marriage. The main
three theories related to divorce are Fault Theory, Mutual Consent Concept, and
irretrievable theory. In India, the Fault theory works in the matter of the
divorce. Under this theory, marriage can be ended when one of the spouses is
responsible or liable for the offence under matrimonial offences.
The innocent spouse can seek the remedy of divorce. Under the Hindu Marriage
Act, the basic grounds on which the Hindu women can seek the remedy of divorce
are Adultery, Desertion, Conversion, Leprosy, Cruelty etc. But many philosophers
criticize the concept of Divorce. The Hindu married women can also apply for the
maintenance under section 125 of the Criminal procedure code. So the spouse who
is innocent can approach the court and can seek the remedy of divorce.