What Section Of The Hindu Marriage Act Supports Divorce ?

The Hindu Marriage Act, 1955 came into effect  in the year 1955 and the divorce provisions were added in it. “Divorce” has not been  defined in the statute per se, but is referred to as termination of Marriage.

Section 13 of the Act of 1955 provides certain grounds on which one can apply for divorce, these have been explained below. Clause 1 of the Section mentions the general grounds of divorce provided to both parties, while clause 2 of Section 13 provides four grounds which could be availed by the wife only to initiate divorce proceedings.

General grounds for Divorce-

Mentioned  under Section 13(1) of the Act, seven grounds have been provided based on which both parties to a marriage can file for divorce. These are- 

  • Adultery-

A divorce could be filed by a party in case his/her spouse is having sexual relationship with a third person when the marriage is still intact. Decided by the Madras High Court in  Subbarama Reddiar v Saraswathi Amma (1996), a single act of adultery would be sufficient grounds for applying for divorce or judicial separation.

  • Cruelty- 

Before the year 1976, cruelty was not included as a valid reason to file for divorce, but a reason for judicial separation only. Cruelty is the human behaviour or conduct explaining as to how you act around or carry about the responsibilities of marriage. Some of the essential elements to consider if an act of cruelty  has been committed are-

  1. The act of cruelty committed should be “grave and serious”
  2. It will not be reasonable for the petitioner to continue living with the spouse. 
  3. The act of cruelty mentioned must be more serious than the normal “wear and tears" of married life.

Falsely accusing of Infidelity, making dowry demands, an alcoholic, incompetency of the partner, immoral lifestyle of the spouse, incompatibility or violent behaviour of the partner are some of the few examples of cruelty. 

  • Desertion-

Desertion can be understood as one spouse's permanent absence or forsaking the other spouse permanently for no apparent reason, without the agreement of the other. When deciding the case of Savitri Pandey v Prem Chandra pandey (2002), it was held by the presiding justices R.P. Sethi and Y.K. Sabharwal of the Supreme Court that a previous cohabitation of the parties before desertion is a must. Key elements for the commission of desertion are- 

  1. The relationship should be broken actually
  2. The deserting party must have decided to stop cohabitation
  3. Absence of agreement by the spouse when the other partner is deserting
  4. The desertion must be without providing any reasonable ground. 
  • Conversion- 

As has been mentioned under Section 13(1)(ii) of the HMA, divorce can be granted when the spouse ceases to be Hindu and has converted to another faith. 

  • Insanity-

Provided under Section 13(1)(iii) of the Act, divorce or judicial separation will be granted to the petitioner when the respondent has been going through mental anguish of such nature that it is not possible for the petitioner to live with the respondent. To apply for divorce based on the grounds of insanity conditions mentioned below are necessary to be fulfilled-

  1. The spouse of the petitioner has been mentally ill for an indefinite period of time.
  2. Mental insanity mentioned above shall be of such nature that it will be

unreasonable to expect the petitioner to continue living with the respondent.

  • Venereal Disease-

Provided under Section 13(v) of the Hindu marriage Act of 1955,  divorce could be filed when the defendant has been suffering from an infectious venereal disease. If one of the spouses is suffering from an incurable sexually transmitted disease (STD), it can be a basis for applying for divorce.

  • Presumption of Death-

According to Section 13(1)(vii) of the Act, if a person has not been heard of as alive or dead for a period of at least seven years by such person who would naturally have heard from him, the said person would be presumed to be dead  as per the provisions of the Indian Evidence Act, 1872, based on which the petitioner can be granted divorce. 

  • Renunciation- 

If either of the spouses renounces the world or has entered a holy order, the other spouse has the right to file for divorce under Section 13(1)(vi) of the Hindu Marriage Act, 1955. The condition is that such renouncement must be absolute. 

Divorce provided under Section 13(1A) of the Hindu Marriage Act, 1955-

  • Divorce could be applied for when there is no resumption of cohabitation even after one year has passed from the day the decree for judicial separation was passed. If there is not any restriction as mentioned under the Section 23 of the HMA, a divorce decree would be granted by the Supreme Court of India.  

Grounds of divorce under Section 13(2) of the Act-

  • Bigamy- 

When  the husband has already been married before the Act of 1955 came into being and marries another woman after the Act of 1955 was passed, either of the two wives could file for divorce on the ground of bigamy. 

  • Rape, sodomy or bestiality- 

Wife has the option to apply for divorce in case when the husband has committed an act of rape, sodomy or bestiality. 

  • Decree of Order of Maintenance- 

When an order for maintenance has been issued in the favour of the wife has been by the Court under Section 18 of the Hindu Adoptions and Maintenance Act, 1956, or as per the provision of Section 125 of the Code Of Criminal procedure Code, 1973, wife in such situation has a right to apply for divorce when following conditions are met-

  1. She has been living separately from her husband.
  2. The couple is not living in cohabitation for at least one year after the decree of maintenance was passed.

Conclusion

Discussed above are some of the grounds mentioned under the Act of 1955, based on which a couple can file for a contested divorce. Other options such as divorce by mutual consent has been provided as well.

For further information over the subject, you are advised to seek legal guidance from an experienced divorce lawyers in Faridabad or experienced divorce lawyers in Ghaziabad.

Lead India offers you a team of divorce lawyers in gurgaon as well as in other countries, who could help you through the various legal options available to you in case you are thinking of filing for a divorce. Hence, if you wish to talk to a lawyer or seek free legal advice online, you may contact us.

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