Divorce under Indian Law
By Nimish Raja & Tathagat Yagnik
3rd year Students, National Law Institute University, Bhopal (M.P.)
How and to what extent Section 13 of Hindu Marriage Act, 1955 has affected the institution of marriage?
It is generally believed that marriage is a personal matter, which results in the expectation of negligible and if not so then minimum state interference in the private domain. Moreover, it is also believed regarding the sacra mentality of institution of Hindu Marriage that it is indissoluble. Over the years the, civilisation has undergone a sea change in every aspect. Novel concepts, lofty ideals of equality fraternity coupled with notions of individual freedom etc, have been conceived to be the hallmarks of the modern civilisation with far reaching implication on every aspect of human life, and marriage is no exception to it.
It is against this background that the concept of divorce as a matrimonial remedy has been recognised. Divorce means dissolution of marriage through judicial process. This was particularly necessary to ensure the realisation of individualistic notions of self-fulfilment and personal happiness. On the other hand, the social relevance of solidarity in the institution of marriage is felt to be at stake. Therefore law as an instrument of social control has to be carefully and cautiously applied, in order to strike a balance between the individual happiness and social objectives to be realised.
In this context the present project tries to understand that how far the courts have been able to strike this balance and how the remedy of divorce under section 13 of Hindu Marriage Act has affected the institution of marriage.
Applicability of the Section
Under the Hindu Marriage Act, 1955 any person who is a Hindu by birth or by religion (converts or reconverts) can file a petition. Where a Hindu male marries a Christian female both are held to be Hindus. Even where a Hindu person changes his religion after solemnisation of marriage, such person can file a petition under this Act, and likewise a petition can be filed against him. Under the act, if the father is a Hindu such of his offspring are held to be Hindu, irrespective of the caste/race to which the mother belongs, if the marriage has been performed according to the Hindu form, the act is not applicable to the tribal communities though they are Hindus.
Illegitimate children, wherein both parents are Hindus, and such children where the mother is Hindu and the children are brought up as Hindus, are also held to be Hindus, and the Act would apply in such cases.
Grounds for Divorce
Under the Hindu Marriage Act, a party may file a petition for divorce and the marriage may be dissolved by a decree of divorce on the following grounds:
In Mallika v. Rajendran, it was established that husband was guilty of adultery and desertion. The wife was granted a decree of divorce. While under the act husband can sue for divorce on the ground of wife’s adultery simpliciter, the wife has to prove that husband is guilty of more than adultery that is to say adultery should be incest, or coupled with cruelty, or coupled with desertion, without reasonable cause for two year or more coupled with bigamy etc. The burden of proof that the respondent committed adultery is on the petitioner who must prove it beyond reasonable doubt. ‘Proof beyond reasonable doubt’ means such proof as precludes every reasonable hypothesis except that which tends to support it.
Cruelty: It is an important ground for seeking divorce under all personal laws. Section 13 (1)(ia) of Hindu Marriage Act, states “ has, after the solemnisation of the marriage, treated the petitioner with cruelty.” Initially it was a ground only for judicial separation, but now it forms a ground for divorce, under the Amendment Act of 1976.
Of all the matrimonial offences cruelty is probably the most difficult to define. The legislature and judge deliberately avoided formulating any definition of cruelty, because acts of cruelty are infinitely variable, and no attempt at drawing a complete list as to what constitute cruelty can ever succeed. Further act of conduct, which may be regarded as cruel in one case, may not be regarded cruel in another. Thus no case may be a precedent for another.
However an effort has been made to understand the word in Neelu kohli v. Naveen Kohli. The expression ‘cruelty’ as envisaged under section 13 of the Act, clearly admits in its ambit and scope. Such acts which may even cause mental agony to the aggrieved party. Intention to be cruel is not an essential element of cruelty as envisaged under section 13 (1) (ia) of the Act. It is sufficient that if the cruelty is of such type that it becomes impossible for spouses to live together. While determining the question of cruelty, harm or injury to health, the reputation, the working career or the like are some considerations which are to be kept in view.
Desertion: It means desertion of the petitioner by the other party to the marriage without any reasonable cause and without the consent or against the wishes of such party and includes wilful neglect of the petitioner by the other party to the marriage and its grammatical variations and alike expressions. Traditionally, desertion has been defined as abandonment of the one spouse by the other without any reasonable cause and without the consent of the other. The desertion is withdrawal not from the place but from the state of things. In other words ‘desertion’ is a total repudiation of marital obligations. Though previously it was a ground for judicial separation, the Amendment Act of 1976, for divorce, added it. It includes: disrupt
A. Actual desertion: It means the fact of actual abandonment of matrimonial home. Mere intention to abandon without actual abandonment of matrimonial home is not enough. A person may go out on business, study etc. and may be stranded there for two years or more; it would not amount to the desertion. To constitute desertion the Factum (fact of desertion) and Animus Deserendi (intention to desert) must co-exist, and the moment they co-exist, it amounts to desertion. However it is not necessary that intention must precede factum. For instance, as was ruled in Venei v. Nirmala, when the spouse left the matrimonial home (for business, pleasure, trip etc.), he has all the intentions to return home, but subsequently if he forms the intention not to return, the moment such an intention is formed he becomes a deserter. If a spouse leaves the matrimonial home without any reason, he or she is a deserter.
B. Constructive desertion: The doctrine of constructive desertion state that it is not to be tested by merely ascertaining which party left the matrimonial home first. If one spouse is force by the conduct of the other to leave home, it may be that the spouse responsible for the driving out is guilty of desertion. There is no substantial difference between the case of a man who intends to cease cohabitation and leaves his wife, and the case of a man who compels his wife by his conduct, with the same intention, to leave him. In constructive desertion it is the behaviour of one party that makes him the deserter, though he continues to live in the matrimonial home.
C. Wilful Neglect: It means that the act was done deliberately and intentionally and not by accident or inadvertence, so that the mind of the person who does the act goes with it. In short it means omit to do something purposely. So far, before the Indian courts, no case has come where wilful neglect has been taken as ground for divorce, or judicial separation. Though in Laxman v. Meena Subha Rao J. Obitter observed that wilful neglect was designated to cover constructive desertion, and therefore should fulfil all the ingredients of desertion.
Conversion: In order to obtain a divorce on this ground it should be proved that such other party has converted to some other religion. The requirements of conversion under sec. 13 (1) (ii) of the HMA are two; (i) that the respondent has ceased to be a Hindu and (ii) the respondent have converted to another religion. Therefore what the law is, that a Hindu does not ceased to be Hindu on his declaration that he has no faith in Hinduism; mere renunciation of Hinduism does not make him ceased to be Hindu. He may not practice Hinduism, he may have no faith in it, he may not profess it but still he will not cease to be a Hindu. Thus Hindu will cease to be Hindu when he converts to another religion.
As the followers of the Hinduism, Jainism, Sikhism and Buddhism are included in Hindus, the inter-conversion among these faiths does not amount to conversion, under the meaning of the said clause. And therefore conversion should be to a non-Hindu faith such as Islam, Christianity etc.
What is necessary in respect of conversion is that it should be in accordance with the rites and ceremonies or formalities laid down by that religion to which conversion is sought. However sincerely practicing the new religion after the conversion of the respondent is totally immaterial.
Unsoundness of Mind: In order to seek divorce on the ground of unsoundness of mind, initially it was essential for a party to prove that his/her spouse was incurably of unsound mind for a continuous period of three years. However this duration has now been omitted. Now one has to prove only the unsoundness of mind of the respondent. No period has been specified for the purpose. And therefore the incurable unsoundness of mind may be of any (shorter or longer) duration. In order to obtain a decree, under this ground it has to be proved that spouse is affected to such an extent that the party seeking divorce cannot be reasonably expected to live with her/him.
If the respondent is suffering from mental disorder continuously or intermittently, the mental disorder should be of a quality that the petitioner is not reasonably expected to live with the respondent. It would always be a question of fact as to whether the mental disorder is ‘of such a kind and such an extent’ that the petitioner is not reasonably expected to live with the respondent. The term ‘mental disorder’ means mental sickness, arrested or partial growth of mind or psychopathic disorder of mind or any other disorder or disability of mind and also includes schizophrenia. Defence of insanity is not available on that the offending spouse is not capable of knowing what he is doing if the conduct is held to be cruelty, regardless of motive or intention to be cruel. Insanity, therefore should not bar the relief claimed by the wife; as was rule in Trimabak Narayan Bhawat v. Kumudani T. Bhagwat.
Virulent and Incurable Leprosy: Leprosy has been considered as loathsome disease. It is a ground for divorce and judicial separation under Sec. 13 (1) (iv) of HMA. Under the Act, a leprosy must be (a) virulent and; (b) incurable. Leprosy is virulent when ulcerous and unsightly symptoms appear or when social intercourse becomes almost impossible. Malignant and venomous leprosy are virulent forms of leprosy. A mild form of leprosy, which is curable, is not virulent. Lepromatous leprosy, which is malignant and contagious and in which prognosis is usually grave, is virulent leprosy. Sometimes its spread can be arrested by along period of treatment but relapses are frequent.
Venereal diseases in communicable form: Under Hindu Marriage Act, venereal disease to be a ground for divorce or judicial separation should be in a communicable form. It comprises a number of contagious diseases that are most commonly acquired at the time of sexual intercourse. The most common form of venereal disease is Syphilis and Gonorrhoea. It is immaterial that the disease is curable or was contracted innocently. It is submitted that a virulent venereal disease has to be the one, which is communicable.
In Mr. X v. Hospital Z divorce was granted to wife when husband was discovered to be HIV positive. It was observed by the court that since venereal disease is a ground for divorce, it implies that a person suffering from venereal disease prior to marriage must be injuncted from entering into marriage. The duration of the disease is not mentioned in the statute; it may therefore be of any duration.
The HMA does not say that the disease should not have been contracted from the petitioner. If the disease is contracted from the petitioner under sec. 23 (1)(a), the decree of divorce cannot be passed, as it would amount to taking advantage of one’s own wrong.
Renunciation of world: Renunciation of world is a ground for divorce only under Hindu law. According to the religious belief of Hindus, every Hindu is required to enter into the Sanyasa Ashrama (a Hindu’s life is organised into four ashramas of which sanyasa is the last ashrama). Since this is the last ashrama entered into the old age, it amounts to the civil death. In fact one of the essential rites for entering into this ashrama is the performance of the one’s own funeral rites. The entering into this ashrama means not merely renunciation of the world or worldly things, but it is also an end of one’s world life. Entering into this ashrama is part of Hindu religion. A person may become sanyasi even at a young age, and it is considered meritorious. Looked at from the point of view of the non-sanyasi spouse, it may mean worst deprivation. It brings consortium to a dead end, and thus, in matrimonial law, it is nothing but desertion. But if we would call it desertion, it is going to hurt religious feelings. Therefore, with a view to ameliorating the hardship of sanyasi’s spouse, it has been made specifically a ground for divorce and judicial separation. The requirements of this ground are two:
(a) Renunciation of world by the respondent, and
(b) Entering into a holy order by him.
A person may renounce the world, such as when he does not take any interest in the worldly affairs or retires to a single room, withdraws from cohabitation, or takes a vow of celibacy, or becomes a mauni, yet he may not join a holy order. Such a spouse will not be covered under this clause, though his conduct may amount to desertion or cruelty. Un less the second condition is also fulfilled, the other spouse cannot sue for divorce or judicial separation under this clause.
A person enters into holy or religious order when he undergoes the ceremonies and rites prescribed by the order, which he has entered. Becoming a chela of a guru does not by itself mean entering a holy order may not always amount to renunciation of the world. Thus, when a Sikh becomes a granthi or a Hindu becomes a pujari is allowed to lead a family life. It is also submitted that the clause will not apply to those cases where a mahant or saint is allowed to lead married life.
Presumption of Death: Under HMA, a person is presumed to be dead, if his near and dear ones have not heard him of as being alive for a period of at least seven years,
Consequences from a divorce petition: The result from the filing of a divorce petition is that the matrimonial tie between the parties is broken and parties are discharged from their respective obligations. The clause is actually based upon the principle that one who seeks equity must come with clean hands would apply. This provision has come down to Indian matrimonial statute from the English law. The presumption of death is also been mentioned in section 108 of the Indian Evidence Act. Applying the presumption of death, no spouse can presume himself as widower or widow and remarry. If he does so, and the missing spouse reappears, he would be guilty of bigamy and second marriage will be void. This seems to be a basis for making ‘presumption of death’ as a ground for divorce. Once a marriage is dissolved, the spouse is free to remarry, and even if the missing spouse reappears the next day he can do nothing.
Divorce Under Section 13(2) : Additional grounds on which wife alone can sue for divorces are given under this clause. These are exclusively available to a Hindu married woman:
(a) Pre-act polygamous marriage: Any wife of the polygamous married husband (all marriages of the husband should have taken place before the commencement of HMA) may file a petition for divorce, provided at the time of filing the petition for divorce, at least one more wife is alive. Since the ground relates to the policy of monogamy, the husband will not be allowed to plead any conduct or disability on the part of the wife-petitioner so as to bar relief. Thus any compromise which first wife might have entered with the husband at the time of second marriage or any of her conduct or disability, or any plea of estoppels cannot be pleaded in defence of her petition for divorce.
(b) Rape, Sodomy and Bestiality: Rape, sodomy and bestiality are specials grounds on which wife alone can sue for divorce under the HMA. Rape is a criminal offence under section 375, Indian Penal Code. Sodomy and bestiality are listed as unnatural offences under section 377, Indian Penal Code. A man is guilty of rape when he forces sexual intercourse on an unwilling woman, i.e., against her will or without her consent, or while her consent is obtained by putting her in fear of death or hurt, or when she gives consent under a mistaken belief that she is his wife or with or without her consent when she is under twelve years of age. A man is not guilty of raping his own wife unless she is under the age of fifteen years.
Under all the three statutes if the husband is guilty of rape, sodomy or bestiality, the wife may sue for divorce. In a wife’s suit for divorce on this ground, it is not necessary for her to show that the husband was prosecuted and convicted for the offence. Even if the husband is discharged on the charge of rape, sodomy or bestiality, she can sue for divorce. In either case (whether the husband is convicted of the charge or discharged) the burden of proof for establishing the ground is on the wife. If a man commits sodomy, on his own wife without her consent, he is guilty of the offence, and wife may sue for divorce.
(c) Non-resumption of cohabitation after a decree or order of maintenance: When a wife obtains a decree for her maintenance against her husband and resumption of cohabitation does not take place even after the lapse of one year from the decree, then the wife can sue her husband for divorce.
(d) Repudiation of marriage: This ground has been enacted in Hindu Marriage Act in 1976. Under this ground a wife may present a petition for dissolution of her marriage by a decree of divorce on the ground that her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she repudiated the marriage after attaining that age but before attaining the age of eighteen years. However the suit for divorce may be filed after the attainment of the age of eighteen years, but repudiation of marriage must be made before the attainment of the age of eighteen years. One important point to be noted here is that the consummation of marriage is no bar for divorce. This ground is available to the wife irrespective of the fact whether the marriage was solemnized before or after the commencement of Marriage Laws (Amendment) Act, 1976.
Divorce by Mutual Consent: The requirements for the presentation of the petition by mutual consent are the following:
(1) That the spouse have been living separately for a period of one year,
(2) That they have not been able to live together, and
(3) That they have mutually agreed that there marriage should be dissolved.
Thus under Hindu Law, if the parties agree mutually to dissolve the marriage, then can together file a petition under section 13B.of HMA, for a decree for the same, provided they have been living separately for a period of one year or more; they have not been able to live together. The period of living separately for one year must be immediately preceding the presentation of petition the expression ‘living separately’ connotes not living like husband and wife. The parties may live under the same roof and yet may not be living as husband and wife. The party should have no desire to perform marital obligation.
Other Provisions Relating to Divorce Under Section 13
Ø Competent court for dealing with divorce petition: The District Court is the competent court for the purpose. In cities where there is a City Civil Court, that court is vested with this jurisdiction.
Ø Duty of the court to preserve the institution of marriage: The court is under a duty to preserve the institution of marriage under sec. 23(2) of HMA. According to this section “ before proceeding to grant any relief under this Act, it shall be the duty of the court in the first instance, in every case where it is possible to do consistently with the nature and circumstances of the case, to make every endeavour to bring about a reconciliation between the parties.”
Ø Place of filing Divorce Petition: Every petition for divorce under this Act for the divorce can be presented to the District Court within the local limits of whose ordinary Civil Jurisdiction:
1) The marriage was solemnised, or
2) The respondent at the time of the presentation resides or last resided together, or
3) If the opposition party is residing outside India or has not been heard for seven years, the petition party can file the petition in the District court within the local jurisdiction where the petitioner resides.
Ø Can Divorced person remarry? They can remarry, after the period of appeal against the decree has already been filed, the party cannot remarry until the appeal is disposed off (Tajjinder Singh v. Gurmeet Singh).
Ø Can there be an appeal against the decree of the divorce: Against the decree of divorce, judicial separation, nullity of marriage, restitution of conjugal rights, passed by the District court an appeal can be filed before the High Court. There can be a further appeal to the Supreme Court against the order of the High Court. For this the High Court must have certified that the case involves substantial question of law, which needs to be decided by the Supreme Court. Supreme court can grant special leave to appeal in appropriate cases.
Section 13 is not a luxury it has been intended to preserve the meaning of life. Ancient Hindu laws confer a certain degree of sanctity to the institution of marriage. But in the present age, because of the introduction of divorce into the Hindu Personal laws, the institution of marriage as a sacrament has suffered a serious jolt. At the same time, complete absence of such a remedy is also not desirable. Thus the need of the hour is a judicious use of this remedy, so that it is not overused or misused.
Institution of marriage occupies an important place and role to play in the society in general; therefore it would not be appropriate to apply any submission of irretrievably broken marriage as a straight jacket formula for grant of relief or divorce. This aspect has to be considered on the ground and the other facts and circumstance of the case.
 Sapsford v. Sapsford (1954) P 394.
 AIR 1995 Mad. 100
 Bipin V. Prabha AIR 1957 SC176; White v. White AIR 1958 SC 441
 Sachindranath v. Nilima AIR 1970 cal. 38
 Sukumar v Tripathi, AIR 1992 Pat. 32
 AIR 2004 All. 1
 AIR  Del. 79
 Halsbury’s Laws of England, 3rd Ed. Vol. 12 pg. 246
 AIR  SC 40
 Chandrashekhar v. Kunananndaivelu, AIR  SC 185
 AIR  Bom. 80
 Annapurna v. Nabakishore, AIR  SC 72
 Nirma v Nikkaswami AIR  Del. 260.
 Section 13 (2)(ii)
 Exception to Section 375
 Bamption v. Bamption  2 All E R 766
 Section 13(2)(iv)
 Rajkumar v. Anjana AIR  P&H 18.
 Samistha v. Om prakash AIR  SC 1909.
 Sureshta Devi v Om Prakash AIR 1992 SC 1904
 1998 (2) SCC 90