Under the Hindu Marriage Act, 1955, divorce can be granted by a decree of the competent court, in most of the case, the family court having jurisdiction either on the petition filed by one party against the other or by a joint petition filed by both the parties for mutual divorce.
The provisions for grant of a divorce under the Hindu Marriage Act are contained in Section-13 of the Hindu Marriage Act, 1955 which reads as under :
| Section-13 Divorce (1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party– [(i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or (ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or (ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or (ii) has ceased to be a Hindu by conversion to another religion; or (iii) has been incurably of unsound mind, or 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. Explanation.–In this clause,– (a) the expression mental disorder means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia; (b) the expression psychopathic disorder means a persistent disorder or disability of mind (whether or not including subnormality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment; or (iv) *******Deleted **** (v) has * * * been suffering from venereal disease in a communicable form; or (vi) has renounced the world by entering any religious order; or (vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive; Explanation.In this sub-section, the expression desertion means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly. (1A) Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground (i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of [one year] or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or (ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of [one year] or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.] (2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground,– (i) in the case of any marriage solemnized before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner: Provided that in either case the other wife is alive at the time of the presentation of the petition; or (ii) that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality; or (iii) that in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) (or under the corresponding section 488 of the Code of Criminal Procedure, 1898 (5 of 1898), a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards; (iv) that her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years. Explanation.This clause applies whether the marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976).] |
A plain reading of the provisions contained in Section-13 clearly reveals the following grounds on which a decree of divorce can be obtained by both, husband or wife as below:
Section 13(1)(i) provides that in case a husband or wife, as the case may be, is found to have voluntary sexual intercourse with a person other than his/her spouse, during the subsistence of his/her marriage, then the aggrieved person can file a suit for divorce in the court of law.
More details can be found in a separate blog “Adultery as a ground for divorce”
The most common ground for seeking a divorce is cruelty by the spouse. Section 13(1) (ia) provides that a party to the marriage can file a suit for divorce if he/she has been treated with cruelty by the other party. Cruelty can be physical or mental or both.
“More details can be found in a separate blog “Cruelty as a ground for divorce”
3. Desertion
Desertion means leaving the consort of husband or wife without any reasonable cause. According to Section 13(1)(ib), a person can file for divorce if the other party to the marriage has deserted him/her for a continuous period of two years or more.
More details can be found in a separate blog “Desertion as a ground for divorce”
4. Conversion of Religion
Section 13(1)(ii) of the Act provides that if a person ceases to be a Hindu by converting to another religion, then the other party to the marriage can file for a suit for divorce.
More details can be found in a separate blog “Conversion as a ground for divorce”
5. Mental Disorder
Section 13(1)(iii) of the Act provides that if a party to the marriage is of unsound mind and/ or has been suffering continuously or temporarily from a mental disorder of such a kind and to such an extent, that it is not practically possible for the other person to live with him/her peacefully, then in such a situation , the aggrieved spouse has a right to seek divorce.
More details can be found in a separate blog “Mental disorders as a ground for divorce”
6. Veneral Disease
Section 13(1)(v) of this Act lays down that if any of the parties to the marriage are suffering from a communicable form of venereal disease which may pose a risk to the life of the other party, then the other party has a right to seek divorce.
7. Renunciation of the Worldly Affairs
Section 13(1)(vi) of this Act provides that if a party to the marriage renounces the world and enters a religious order, then the other party gets a right to seek divorce.
8. Presumed Dead
Section 13(1)(vii), provides that if a party to the marriage, goes missing and is not heard of being alive for a period of seven years or more, then the other party accrues a right for divorce under this provision.
9. Non resumption of cohabitation for one year or more:
Section 13(1A)(i), provides that if there has been no resumption of cohabitation between the parties for a period of one year or more after passing the decree for judicial separation, this will become a ground for seeking divorce.
10. Non-compliance of decree of Restitution of Conjugal Rights:
Section 13(1A)(ii), provides that if there has been no compliance of the decree of restitution of conjugal rights for a period of one year or more after the date of the decree, then it becomes a ground for seeking divorce.
While the above grounds for seeking divorce are available to both the parties to the marriage, there are certain grounds which are exclusively available to wife, apart from the aforementioned common grounds. These are :
11. Bigamy
Section 13(2)(i), provides that if the husband, marries again or had any other previous wife alive at the time of solemnization of the marriage of the second marriage, the wife may seek a divorce on account of bigamy by the husband.
12. Husband guilty of Rape or Sodomy
Section 13(2)(ii), provides that if the husband has at any time after the marriage, has been guilty of rape, sodomy, or bestiality, the wife can seek divorce on this ground.
Apart from the above Section 13-B of the Hindu Marriage Act, 1976, provides grounds for divorce on the basis of mutual consent.