ALIGARH MUSLIM UNIVERSITY

Malappuram centre,kerala

Project Report
In The Course Of Hindu Law
TOPIC- Grounds Of Divorce Under Hindu Marriage
Act ,1955

Submitted to- Submitted By-

Mrs. Naseema PK Vaibhav Teotia

Asst Prof. Roll No. 18Ballb03

Dept. Of Law. En. No GJ 3957

Contents-

S.No. Particulars. P.No

1 Acknowledgement 3

2 Introduction 3

3 Theories of divorce 3

4 Grounds of divorce 2

5 Adultery 4

6 Cruelty 5

7 Desertion 5

8 Conversion 5

9 Insanity 6

10 Leprosy 7

11 Veneral disease 8

12 Renunciation 9

13 Presumption of death 10

14 Grounds available to wife only 11

15 Conclusion 11

16 Bibliography 12

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Acknowledgement

First of all , I would like to express my gratitude To almighty

to enabling me to complete this report On this topic“
Grounds of Divorce under Hindu Marriage-Act,1955”

Then thanks to academic supervisor Mrs. Naseema PK

(Assisstant Professor ,Department of law, Aligarh Muslim
University). She gave me certain guidance how to Write and
research.

Last, but not least I would like to thank my family and

friends who helped me while making this report by
providing assistance.

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Introduction

Earlier divorce was unknown to general Hindu law as marriage was regarded as an indissoluble
union of the husband and wife. Manu declared that a wife cannot be released by her husband
either by sale or by abandonment, implying that the marital tie cannot be severed in any way.
Although Hindu law does not contemplate divorce yet it has been held that where it is recognized
as an established custom it would have the force of law.

According to Kautilya’s Arthashatra, marriage might be dissolved by mutual consent in the case
of the unapproved form of marriage. But, Manu does not believe in the discontinuance of
marriage. He declares” let mutual fidelity continue till death; this, in brief, may be understood
to be the highest dharma of the husband and wife.”

However, this changed when divorce was introduced in the Hindu Marriage Act, 1955.

Theories Of Divorce1

There are basically three theories for divorce-fault theory, mutual consent theory & irretrievable
breakdown of marriage theory.

Fault Theory

Under the Fault theory or the offences theory or the guilt theory, marriage can be dissolved only
when either party to the marriage has committed a matrimonial offence. It is necessary to have
a guilty and an innocent party, and the only innocent party can seek the remedy of divorce.
However, the most striking feature and the drawback is that if both parties have been at fault,
there is no remedy available.

Mutual consent theory

Another theory of divorce is that of mutual consent. The underlying rationale is that since two
persons can marry by their free will, they should also be allowed to move out of the relationship
of their own free will. However, critics of this theory say that this approach will promote
immorality as it will lead to hasty divorces and parties would dissolve their marriage even if
there were slight incompatibility of temperament.

1 Dr Ashok Jain (Ascent publication) , 128, ( Second edition)

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Breakdown theory

The third theory relates to the irretrievable breakdown of the marriage. The breakdown of
marriage is defined as “such failure in the matrimonial relationships or such circumstances
adverse to that relationship that no reasonable probability remains for the spouses again living
together as husband & wife.” Such marriage should be dissolved with maximum fairness &
minimum bitterness, distress & humiliation.

Some of the grounds available under the Hindu Marriage Act can be said to be under the theory
of frustration by reason of specified circumstances. These include civil death, renouncement of
the world etc.

Grounds For Divorce Under Hindu Marriage Act

It is conceded in all jurisdictions that public policy, good morals & the interests of society require
that marital relationship should be surrounded with every safeguard and its severance be allowed
only in the manner and for the cause specified by law. Divorce is not favored or encouraged and
is permitted only for grave reasons.

In modern Hindu law, all the three theories of divorce are recognized & divorce can be obtained
on the basis of any one of them. The Hindu Marriage Act, 1955 originally, based divorce on the
fault theory, and enshrined nine fault grounds in Section 13(1) on which either the husband or
wife could sue for divorce, and two fault grounds in Section 13(2) on which wife alone could
seek the divorce.

In 1964, by an amendment, certain clauses of Section 13(1) were amended in the form of Section
13(1A), thus recognizing two grounds of the breakdown of the marriage. The 1976 amendment
Act inserted two additional fault grounds of divorce for wife & a new section 13B for divorce
by mutual consent.

The various grounds on which a decree of divorce can be obtained

are –

1- Adultery- [ section 13 (1) (I)]-

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While adultery may not have been recognized as a criminal offence in all countries, the
matrimonial offence of adultery or the fault ground of adultery is recognized in most. Even under
the Shastric Hindu law, where divorce had not been recognized, adultery was condemned in the
most unequivocal terms. There is no clear definition of the matrimonial offence of adultery.

In adultery there must be voluntary or consensual sexual intercourse between a married person
and another, whether married or unmarried, of the opposite sex, not being the other’s spouse,
during the subsistence of marriage. Thus, intercourse with the former or latter wife of a
polygamous marriage is not adultery. But if the second marriage is void, then sexual intercourse
with the second wife will amount to adultery.2

Though initially a divorce could be granted only if such spouse was living in adultery, by the
Marriage Laws Amendment Act, 1976, the present position under the Hindu Marriage Act is that
it considers even the single act of adultery enough for the decree of divorce[iii].

Since adultery is an offense against marriage, it is necessary to establish that at the time of the
act of adultery the marriage was subsisting. Also, it follows that unless one willingly consents
to the act, there can be no adultery. If the wife can establish that the co-respondent raped her,
then the husband would not be entitled to a divorce.

In Swapna Ghose v. Sadanand Ghose the wife found her husband and the adulteress to be
lying in the same bed at night and further evidence of the neighbors that the husband was living
with the adulteress as husband and wife is sufficient evidence of adultery. The fact of the matter
is that direct proof of adultery is very rare.

The offence of adultery may be proved by:

➢ Circumstantial evidence
➢ Contracting venereal disease

2- Cruelty – [ section 13 (1) (1-a)]3

The concept of cruelty is a changing concept. The modern concept of cruelty includes both
mental and physical cruelty. Acts of cruelty are behavioral manifestations stimulated by different
factors in the life of spouses, and their surroundings and therefore; each case has to be decided
on the basis of its own set of facts. While physical cruelty is easy to determine, it is difficult to
2 RK Agrawal , 89 (CLA, 26th edition 2019)
3 Rahul singh , divorce under Hindu law, 6 , Scribd 2018

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say what mental cruelty consists of. Perhaps, mental cruelty is lack of such conjugal kindness,
which inflicts the pain of such a degree and duration that it adversely affects the health, mental
or bodily, of the spouse on whom it is inflicted. In Pravin Mehta v. Inderjeet Mehta, the
court has defined mental cruelty as ‘the state of mind.’

Some Instances of Cruelty are as follows–

➢ false accusations of adultery or unchastity

➢ demand of dowry
➢ refusal to have marital intercourse/children
➢ impotency
➢ birth of child
➢ drunkenness
➢ threat to commit suicide
➢ wife’s writing false complaints to employer of the husband
➢ incompatibility of temperament
➢ irretrievable breakdown of marriage

The following do not amount to cruelty-

➢ ordinary wear & tear of married life

➢ wife’s refusal to resign her job
➢ desertion per se
➢ outbursts of temper without rancor.

In Balram Prajapati vs Susheela Bai

In this case, the petitioner filed the divorce petition against his wife on the ground of mental
cruelty. He proved that his wife that behavior with him and his parents was Aggressive and
uncontrollable and many times she filed the false complaint against her husband. The court
accepts the petition and grants the divorce on the ground of cruelty.

3- Desertion [ section 13 (1) (1-b)]

Desertion means the rejection by one party of all the obligations of marriage- the permanent
forsaking or abandonment of one spouse by the other without any reasonable cause and without
the consent of the other. It means a total repudiation of marital obligation.

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The following 5 conditions must be present to constitute desertion; they must co-exist to present
a ground for divorce:

➢ the factum of separation

➢ animus deserdendi (intention to desert)
➢ desertion without any reasonable cause
➢ desertion without consent of other party
➢ statutory period of two years must have run out before a petition is presented.

In Bipinchandra v. Prabhavati, the Supreme Court held that where the respondent leaves
the matrimonial home with an intention to desert, he will not be guilty of desertion if
subsequently he shows an inclination to return & is prevented from doing so by the petitioner.

4- Conversion [ section 13 (1) ( ii )]4

When the other party has ceased to be Hindu by conversion to any other religion for e.g. Islam,
Christianity, Judaism, Zoroastrianism, a divorce can be granted.

Illustration-

A, a Hindu has a wife B and two children. One day A went to church and converted to
Christianity without the consent of B, here B can approach the court and seek for divorce on the
ground of conversion.

In Suresh Babu vs Leela5

In this case, the husband converts himself into Muslim and marries another woman. Here the
wife Leela filed a case and demanded the divorce on the ground of conversion without her
consent and cruelty.

5- Insanity-section 13 (1) ( iii )]-

Insanity as a ground of divorce has the following two requirements-

I - The respondent has been incurably of unsound mind

II- The respondent 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.

In Vinita Saxena vs Pankaj Pandit6

4 RK Agrawal , 106 , (CLA, 26th edition 2019)
5 2006 (3) KLT 891
6 2006 (3) SCC 778

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In this case, the petitioner filed a case to get the divorce from the respondent on the ground that
the respondent was suffering from Paranoid Schizophrenia which means mental disorder. She
came to know these after her marriage. Here, the court grants the divorce on the ground of
insanity of husband.

6- Leprosy [ section 13 (1) ( iv)]-

Contagiousness of leprosy and repulsive outward manifestations are responsible for creating
psychology where man not only shuns the company of lepers but looks at them scornfully. Thus,
it provided as a ground for divorce. The onus of proving this is on the petitioner.

7- Venereal Disease [ section 13 (1) (v)]-

At present, it is a ground for divorce if it is communicable by nature irrespective of the period

for which the respondent has suffered from it. The ground is made out if it is shown that the
disease is in communicable form & it is not necessary that it should have been communicated to
the petitioner (even if done innocently).

Illustration

A and B married on 9 September 2011. Later A suffered from a venereal disease and it is
incurable. There’s also a chance that B can also get infected by that disease if she lives with A.
Here, B can approach the court for dissolution of marriage

8- Renunciation [ section 13 (1) (vi)]-

“Renunciation of the world” is a ground for divorce only under Hindu law, as the renunciation
of the world is a typical Hindu notion. Modern codified Hindu law lays down that a spouse may
seek divorce if the other party has renounced the world and has entered a holy order. A person
who does this is considered as civilly dead. Such renunciation by entering into a religious order
must be unequivocal & absolute.

9- Presumption Of Death [ section 13 (1) (vii)]-

Under the Act, a person is presumed to be dead, if he/she has not been heard of as being alive
for a period of at least seven years. The burden of proof that the whereabouts of the respondent
is not known for the requisite period is on the petitioner under all the matrimonial laws. This is
a presumption of universal acceptance as it aids proof in cases where it would be extremely
difficult if not impossible to prove that fact. A decree of divorce granted under this clause is
valid & effective even if it subsequently transpires that the respondent was, in fact, alive at the
time when the decree was passed.

Wife’s Special Grounds For Divorce

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Besides the grounds enumerated above, a wife has been provided four additional grounds of
divorce under Section 13(2) of the Hindu Marriage Act, 1955. These are as follows-

1-Pre-Act Polygamous Marriage- [ section 13 (2) (i)]-

This clause states the ground for divorce as, “That the husband has another wife from before the
commencement of the Act, alive at the time of the solemnization of the marriage of the petitioner.
For example, the case of Venkatame v. Patil a man had two wives, one of whom sued for
divorce, and while the petition was pending, he divorced the second wife. He then averred that
since he was left only with one wife, and the petition should be dismissed. The Court rejected
the plea.7
Such a ground is available if both the marriages are valid marriages & the other wife (2nd wife)
should be present at the time of filing of the petition. However, today this ground is no more of
practical importance.

2-Rape, Sodomy Or Bestiality [ section 13 (2) (ii)]-

Under this clause, a divorce petition can be presented if the husband has, since the solemnization
of the marriage, been guilty of rape, sodomy or bestiality.

3-Non-Resumption Of Cohabitation After A Decree/Order Of

Maintenance [ section 13 (2) (iii)]-

If a wife has obtained an order of maintenance in proceedings under Section 125, Cr.P.C.,
1973 or a decree under Section 18, Hindu Adoption & Maintenance Act, 1956 & cohabitation
has not been resumed between parties after one year or upwards, then this is a valid ground for
suing for divorce.8

4-Repudiation Of Marriage- [ section 13 (2) (iv)]-

This provision provides a ground for divorce to the wife when the marriage was solemnized
before she attained the age of fifteen years, and she has repudiated the marriage, but before the
age of eighteen. Such repudiation may be express (written or spoken words) or may be implied
from the conduct of the wife (left husband & refused to come back). Moreover, this right (added
by the 1976 amendment) has only a retrospective effect i.e. it can be invoked irrespective of the
fact that the marriage was solemnized before or after such amendment.

Irretrievable Breakdown Of Marriage

Irrespective of the three remedies available to parties that is: restitution of conjugal rights,
judicial separation, and divorce, the judiciary in India is demanding irretrievable breakdown of

7 Dr. Ashok k Jain , 156 ( Ascent publication)

8 RK Agrawal , 110 ( CLA, 26th edi. 2019)

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marriage as a special ground for divorce, as sometimes courts face some difficulties in granting
the decree of divorce due to some of the technical loopholes in the existing theories of divorce.

Both the Supreme Court and Law Committee consider the implementation of such a theory as a
boon to parties who for one or the other reasons are unable to seek the decree of divorce.
Therefore in the opinion of the Supreme Court and Law Commission of India, it is very essential
to make it a special and separate ground mission that introduction of irretrievable breakdown of
marriage, as a special ground will do any public good.

Conclusion

Hindus consider marriage to be a sacred bond. Prior to the Hindu Marriage Act of 1955, there
was no provision for divorce. The concept of getting divorced was too radical for the Indian
society then. The wives were the silent victims of such a rigid system. However, the time has
changed; situations have changed; the social ladder has turned. Now the law provides for a way
to get out of an unpleasant marriage by seeking divorce in a court of law. The actual benefactors
of such a provision are women who no longer have to silently endure the harassment or injustice
caused to them by their husbands.

But the manner in which the judiciary is dealing with the subject of irretrievable break down of
marriage, it is feared that it will completely pause the system of marriages. Every theory has its
negative and positive traits. Their applicability differs from situation to situation. Therefore it is
very essential that the lawmakers of our country should deal with the subject in a very cautious
manner after considering in detail its future implications.

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Bibliography-
Books-
1. Rk Agrawal- Hindu Law (CLA) ,26th edi. 2019
2. Dr. Ashok K Jain ( Ascent publication)
Website-
1. WWW. Scribd.com

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