Divorce under the Hindu Marriage Act

1. Grounds available to either spouse: section 13(1)

Either the husband or the wife may seek divorce on the ground that the other party:

• (i) Adultery. Has, after the marriage, had voluntary sexual intercourse with any person other than his or her spouse. Before 1976 the petitioner had to show the respondent was “living in adultery”; a single act is now enough.
• (ia) Cruelty. Has, after the solemnisation of the marriage, treated the petitioner with cruelty. Cruelty may be physical or mental. In N.G. Dastane v. S. Dastane, 1975 INSC 78, (1975) 2 SCC 326, the Court held that the test is whether the conduct causes a reasonable apprehension in the petitioner's mind that it is harmful or injurious to live with the respondent, that the standard of proof is the civil standard of preponderance of probabilities, and that condonation is a bar. In Naveen Kohli v. Neelu Kohli, 2006 INSC 157, (2006) 4 SCC 558, a stream of criminal complaints and litigation filed by the wife to harass the husband was held to be mental cruelty, and the Court recommended that irretrievable breakdown be made a ground of divorce.
• (ib) Desertion. Has deserted the petitioner for a continuous period of not less than two years immediately preceding the petition. Desertion requires the factum of separation and the animus deserendi (intention to end cohabitation permanently), without consent and without reasonable cause, on the part of the deserting spouse: Bipin Chander Jaisinghbhai Shah v. Prabhawati, 1956 INSC 56, AIR 1957 SC 176. The Explanation includes wilful neglect (constructive desertion).
• (ii) Conversion. Has ceased to be a Hindu by conversion to another religion.
• (iii) Mental disorder. 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.
• (iv) Leprosy. The Personal Laws (Amendment) Act, 2019 omits this ground. That Act comes into force on a date the Central Government notifies, so check whether it has been notified before writing that leprosy is no longer a ground.
• (v) Venereal disease. Has been suffering from venereal disease in a communicable form.
• (vi) Renunciation. Has renounced the world by entering any religious order.
• (vii) Presumed death. Has not been heard of as being alive for seven years or more by those who would naturally have heard of it had the party been alive.

Section 13(1A): breakdown grounds. Either party may seek divorce where (i) there has been no resumption of cohabitation for one year or more after a decree for judicial separation, or (ii) there has been no restitution of conjugal rights for one year or more after a decree for restitution. This sub-section was inserted in 1964 so that either party, including the one against whom the decree was passed, may file (Dharmendra Kumar v. Usha Kumar, 1977).

2. The wife's special grounds: section 13(2)

A wife may also seek divorce on the ground:

• (i) Pre-Act polygamy. In the case of a marriage solemnised before the Act, that the husband had another wife living at the time of the petitioner's marriage, provided the other wife is alive at the time of the petition.
• (ii) Rape, sodomy or bestiality. That the husband has, since the solemnisation of the marriage, been guilty of rape, sodomy or bestiality.
• (iii) Non-resumption after a maintenance order. That in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956, or a proceeding under section 125 of the Code of Criminal Procedure, 1973 (now section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023), a decree or order for maintenance has been passed against the husband, even though she was living apart, and cohabitation has not been resumed for one year or more since.
• (iv) Repudiation of child marriage. That her marriage was solemnised before she attained 15 years and she has repudiated it after attaining 15 but before 18, whether or not it was consummated.

Grounds (iii) and (iv) were added in 1976. The reason for special grounds is that the wrongs concerned either cannot be committed by a wife (as the law then stood) or arise from her weaker position in pre-Act marriages and child marriages.

3. Divorce by mutual consent: section 13B

A joint petition may be presented by both parties on the ground that they have been living separately for a period of one year or more, that they have not been able to live together, and that they have mutually agreed that the marriage should be dissolved (section 13B(1)). On a second motion made not earlier than six months and not later than eighteen months after the first, if the petition has not been withdrawn, the court, after hearing the parties and making such inquiry as it thinks fit, shall pass a decree of divorce (section 13B(2)).

• Consent must continue until the decree. Either party may withdraw consent before the second motion is decided, and the court then cannot pass a decree: Sureshta Devi v. Om Prakash, 1991 INSC 28, (1991) 2 SCC 25.
• The six months can be waived. In Amardeep Singh v. Harveen Kaur, 2017 INSC 896, (2017) 8 SCC 746, the Court held that the period in section 13B(2) is directory, not mandatory. The family court may waive it where (i) the statutory period of six months, plus the one year of separation under section 13B(1), has already passed before the first motion; (ii) all efforts at mediation and reconciliation have failed; (iii) the parties have genuinely settled their differences, including alimony and custody; and (iv) waiting would only prolong their agony. The application for waiver can be filed one week after the first motion.

4. Irretrievable breakdown: Shilpa Sailesh

Irretrievable breakdown of marriage is not a statutory ground under the Hindu Marriage Act, although the Law Commission recommended it in its 71st Report (1978) and 217th Report (2009). In Shilpa Sailesh v. Varun Sreenivasan, 2023 INSC 468, a Constitution Bench held:

• the Supreme Court, in exercise of its power to do complete justice under Article 142(1), may dissolve a marriage on the ground of irretrievable breakdown, even if one spouse opposes;
• it may also dispense with the six-month period under section 13B(2) in a fit case, applying the Amardeep Singh factors;
• the power is discretionary, to be used with care, considering the length of cohabitation, the period of separation, the nature of allegations, the litigation between the parties, attempts at settlement, and the position of the wife and children;
• parties cannot file a writ petition under Article 32 directly seeking such a divorce; the power is exercised in proceedings already before the Court.

The power belongs to the Supreme Court alone. A family court or High Court still cannot grant divorce on irretrievable breakdown.

5. The one-year bar: section 14

No petition for divorce may be presented within one year of the date of the marriage, unless the court grants leave on the ground that the case is one of exceptional hardship to the petitioner or exceptional depravity on the part of the respondent. If leave was obtained by misrepresentation, the court may dismiss the petition or direct that the decree take effect only after one year from the marriage. The court must consider the interests of the children and the chance of reconciliation. The period was three years before 1976.

6. What the Marriage Laws (Amendment) Act, 1976 changed

• Cruelty and desertion made grounds of divorce (section 13(1)(ia) and (ib)); earlier they supported only judicial separation.
• Adultery reduced from “living in adultery” to a single act of voluntary sexual intercourse.
• Divorce by mutual consent introduced (section 13B).
• Section 13(1A) periods of non-resumption reduced from two years to one.
• Wife's grounds (iii) and (iv) added to section 13(2).
• Judicial separation made available on all the divorce grounds (section 10).
• Section 13A lets the court grant judicial separation instead of divorce.
• Section 14 bar reduced from three years to one.
• Section 16 rewritten so that children of void and voidable marriages are legitimate.
• Nullity grounds in section 12 revised; the burden of reasonable excuse in section 9 placed on the withdrawing spouse; procedural changes for transfer of petitions (sections 21A to 21C) and reconciliation (section 23(2)).

7. Problem

W obtained an order for maintenance against H under section 125 CrPC in 2022. They have lived apart since and never resumed cohabitation. In 2024 W files for divorce. H says he has committed no matrimonial offence. Decide.

Issue. Whether W can obtain divorce on the ground in section 13(2)(iii).

Law. Section 13(2)(iii) gives the wife a ground where a maintenance order has been passed against the husband under section 18 HAMA or section 125 CrPC (now section 144 BNSS), and cohabitation has not been resumed for one year or more since the order.

Application. The order was made in 2022 and the parties have not lived together for more than a year since. The ground does not require any fault in the husband after the order; it is a breakdown ground available to the wife alone.

Conclusion. W is entitled to a decree of divorce.

How this is examined

Recent KSLU papers have asked for the wife's special grounds for divorce and for the changes made by the 1976 amendment to Hindu marriage law, both as 10-mark questions. A general “grounds of divorce under the Hindu Marriage Act” essay should run section 13(1), 13(1A), 13(2), 13B with the two cases, section 14, and end with Shilpa Sailesh. Short notes: “Divorce by mutual consent”, “Cruelty as a ground of divorce”, “Desertion”.