Mangal sutra todd diya toh shadi khatam……marriage certificate phat gaya toh shadi khatam….aisa kabhi hota hai kya? Ye koi Hindi Daily soap serial hai kya? Yahan ulte phere lene ka koi provision hi nahi hai Madam!! Divorce is not a cake walk……not at all. Lucky are those who succeed in getting divorce by mutual consent, especially Hindus. For people who have to contest, they need to prove one or more of the grounds of divorce under Hindu Marriage Act, 1955.
Mutual Divorce v. Contested Divorce
First understanding the convenient way out, Section 13B of HMA allows for mutual divorce initiated by a petition by both the parties. It is based on the ground that the husband and wife were living separately for 1 year or more and mutually agreed to dissolve the marriage. The root is that both the spouses knew they could no longer stay together and amicably settle for mutually dissolving their marriage. However, when one of the spouses wants to end the marriage, while the other one sticks against a divorce, the first one has to prove one of the divorce grounds under the Hindu Marriage Act, and convince the Court to grant divorce.
Also read – Is Hindu Marriage legal without registration? – Let’s find out
Grounds for Divorce under Hindu Marriage Act, 1955
Hereunder, we have compiled and simplified the various grounds of divorce under the HMA. The parties may invoke one or more grounds for a contested divorce.
Divorce Grounds available to Husband and Wife
1. Adultery
Is extra-marital affair legal in India? As per HMA Section 13(1)(i), if a married man or woman has had voluntary sexual intercourse with anyone outside the marriage, it can be a ground for divorce. The aggrieved spouse has to prove adultery, which becomes a difficult task in practice. The reason behind such difficulty is that people do not act openly in such matters, and it becomes a task to bring evidence from behind the closed doors where adultery takes place.
2. Cruelty as ground for divorce
The Section 13(1)(ia) of the Act states that a spouse who has been treated with cruelty by the other spouse after solemnization of their marriage can initiate divorce. Courts have time and again given wider explanation of what constitutes cruelty, and every case has to be taken on its own facts.
3. Desertion
Marriage under the Hindu law means the husband and wife get the right to live in each other’s company. That is why there is provision for restitution of conjugal rights in case one spouse leaves the other. Section 13(1)(ib) provides for desertion as a ground for divorce under Hindu Marriage Act if a spouse left the other for 2 years or more.
4. Ceased to be Hindu
Since the Act talks about religious marriage, Section 13(1)(ii) of HMA provides the right to divorce against a spouse who has ceased to be a Hindu by converting to another religion.
5. Unsound mind
If one of the spouse has been incurably of unsound mind, or suffering from mental disorder on a continuous or intermittent basis, making it impossible for the spouse to live with him/her, Section 13(1)(iii) makes it a ground for divorce under HMA.
6. Venereal disease
If a spouse is suffering from venereal (sexually transmitted) disease in communicable form, Section 13(1)(v) provides for the right to divorce.
7. Renounced the world
As per Section 13(1)(vi) of Hindu Marriage Act, if a spouse has renounced the world by entering any religious order, the husband or wife so left behind can seek divorce.
8. Not heard of being alive
If the whereabouts of a spouse have been unknown for 7 years or more by persons who would naturally have heard from him/her, Section 13(1)(vii) allows the other spouse to seek divorce.
9. No resumption of cohabitation
If the parties have not cohabited with each other for the past 1 year or more after a decree was passed for judicial separation, Section 13(1A)(i) allows the aggrieved spouse to proceed with an application for divorce.
10. No Restitution of Conjugal Rights
In case of a decree passed for restitution of conjugal rights, while there was no restitution for a year or more, Section 13(1A)(ii) gives the other spouse a right to proceed with an application for divorce.
Divorce Grounds exclusive to Hindu Wife
1. Bigamy/Husband married again
A wife whose marriage got solemnized before the Act came into force in 1955, if the husband got married before the Act came in force or had another wife alive, such wife could seek divorce under Section 13(2)(i) of HMA.
Also read – Bigamy and Cheating by Wife – Supreme Court discusses summoning order in complaint case
2. Husband guilty of rape/sodomy/bestiality
The Section 13(2)(ii) lays ground for divorce under HMA in case of a husband who was found guilty of committing rape/sodomy/bestiality. For ease of understanding, rape means having sexual intercourse with a woman without her consent, sodomy means unnatural sexual intercourse, and bestiality means sexual intercourse with an animal.
3. Maintenance decree
If a decree is passed for maintenance to wife under the Hindu Adoption and Maintenance Act, 1956 or the Criminal Procedure Code, 1973, notwithstanding that the wife was living apart since the orders passed and there was no cohabitation between the parties for 1 year or more, Section 13(2)(iii) makes the same as a ground for divorce.
4. Repudiation
If the marriage was solemnized when the wife had not attained the age of 15 years, the wife has repudiated such marriage before attaining the age of 18 years, then the marriage can be dissolved. Section 13(2)(iv) provides the same as one of the grounds for divorce under Hindu Marriage Act.
Important: Supreme Court says registration mere proof; Hindu marriage invalid without ceremonies
Wind-Up
Contesting dissolution of marriage and proving one of the grounds for divorce under Hindu Marriage Act may sound like a tough nut to crack. But, when marriage becomes even a tougher nut, one needs to have faith and go with the flow, while his/her lawyer takes charge of the legal battle. Being informed helps choose the right path.
