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Grounds for Divorce in Hindu Marriages

Updated: Feb 20, 2022

Written by: Swati Kunchikorve

Since ancient India, Hindus' belief system is that marriage is a Sanskara, religious rite, or sacrament.

Let us perceive the grounds of divorce for Hindus. To understand this, we need to understand who can be recognized as a Hindu? According to section 2 of the Hindu Marriage Act,1955, any person domiciled in the territories of India and who is not proved to be a Muslim, Christian, Parsi or Jew by religion, is Hindu.[1]

‘Hindu’ Underneath Hindu Marriage Act, 1955[2]

a) Any person who is a Hindu by religion in any of its form or development, including a virashava, a lingayat or follower of Brahmo prathna or Arya Samaj.

b) person belonging to Buddhist, Jain, Sikh.

c) Any other person domiciled in India, who is not a Muslim, Christian, Parse or Jew by Religion.

d) Hindus domiciled in the territories to which the Act extend, but who are outside such territories

e) Following person also considered to be Hindus, Buddhist, or Jains by religion, as the case may be,

i) Any child, legitimate or illegitimate parents (both mother and father) are Hindu, Buddhist, Jain or Sikhs.

ii) Any child legitimate or illegitimate one of whose parent is a Hindu, Buddhist, Jain or Sikh provided such child brought up as a member.

iii) Being converted or re-converted to the Hindu, Buddhist, Jain or Sikh.

Hindu underneath the uncodified law-

1) Hindus by Birth.

2) Hindus by Religion, Convert to Hinduism.

3) Illegitimate children where both parents were Hindus.

4) Illegitimate children of a Christian father and Hindu Mother provided that children were brought up as Hindus.

5) Jain, Buddhist, Sikhs.

6) Hindus by Birth, who had renounced Hinduism, but reverted back to Hindu.

7) Person belongs to Brahmo and Arya Samaj.

Valid conditions for Marriage:

We need to understand valid conditions for Marriage before understanding the grounds for divorce. According to section 5 of the Hindu Marriage Act, 1955, Conditions for Hindu marriage are as follows:

A marriage may be solemnized between any two Hindus, if the following conditions[3] are fulfilled, namely:—

(i) none has a spouse living at the time of the wedding;

(ii) at the time of the wedding, no party—

(a) is unsound mind; or

(b) being suffer from mental disorder to an extent as to not fit for wedding and the procreation of children and to give sound consent for wedding; or

(c) suffering from attacks of insanity

(iii) the bridegroom has completed the age of 21 years and the bride age of 18 at the time of the marriage;

(iv) the parties should not come under the degree of prohibited relationship except their custom permits this wedding;

(v) they are not sapindas of each other, unless their custom or usage permits them;

Now let us understand what is marriage under the Hindu Marriage Act, 1955? The Hindu Marriage Act, 1955 was intended to secure the rights of marriage for the bride and groom who are Hindus and are bound under the sacred bond of marriage under any ceremonies and rituals of both the party or either anyone.[4]

Grounds for divorce:

Section 13 of the Hindu Marriage Act, 1955 explained all the grounds for divorce which can be used by either of the parties and also it explained some grounds which can be only used by the wife.

Section- 13 (1) of the Hindu Marriage Act, 1955 lays down grounds for divorce either by wife or husband on the below points.

1) Adultery: Adultery means made a choice of sexual intercourse between a married person and someone other than that person's present husband/wife. It is a valid ground for divorce.[5]

2) Desertion: husband or wife, any one of them deserted for a continuous period of at least 2 years.[6]

3) Cruelty: Cruelty which is a ground for divorce may be defined as wilful and unjustifiable conduct of such a manner as to cause danger to life, limb or health, bodily or mentally, or as to give rise to a reasonable apprehension of such a danger. Cruelty need not be physical.[7]

4) Insanity: Insanity is term that describes a spectrum of individual and group behaviors that are characterized by certain abnormal mental or behavioral patterns[8]. In simple words "Insanity means madness"[9]

5) Conversion: if any of the party converted to any religion other than Hindu.

6) Virulent diseases: virulent disease is one that's infectious, spreading, and can put the life of spouse in danger.

7) Renunciation of the world by either into religious

8) Not known for seven years: one of the spouses is not in contact for 7 years or they are lost and couldn't find even after taking all the good efforts to search him/her.

9) Leprosy: It is no longer a ground for divorce since 2019.[10]

Section 13 (2) Special grounds on which wife alone could seek divorce as follows:

1) Bigamy: having another wife at the same time.

2) Rape, Sodomy & bestiality: We should refer to section 375 of the Indian Penal Code to understand the word "Rape". Rape means sexual intercourse with a wife against her will, without her consent, by coercion.[11]

Sodomy means the crime of forcing a wife to perform oral or anal sex.[12]

Bestiality means having sexual intercourse with an animal.

3) In a suit under section-18. Hindu adoptions and maintenance Act 1956 or under section – 125 of Cr.p.c. a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife and that since order passed cohabitation between the parties did not resume one year or more than that period.

4) The marriage of the petitioner wife was done before she attained the age of 15 yrs. And she had declined the marriage after attending the age of 15 yrs but before attaining the age of 18 yrs.

Petition for divorce can be presented when-

At least one year should have elapsed between the date of marriage and the presentation of a divorce petition. This provision is enacted for the dual purpose of not encouraging divorce and also for providing adequate time for the spouses to make up their differences. It is also provided in special leave allow a petition to be presented even before one year after the marriage, on the ground that the case is one of extraordinary hardship to the plaintiff or of uncanny abnormality on the part of the respondent.

[1] The Hindu Marriage Act, 1955 (Act No. 25 of 1955), S. 2 [2] The Hindu Marriage Act, 1955 (Act No. 25 of 1955), S. 2 [3] The Hindu Marriage Act, (Act No. 25 of 1955), S. 5 [4] The Hindu Marriage Act (Act No. 25 of 1955), S. 7 [5] The Hindu Marriage Act, 1955 (Act No. 25 of 1955), S. 13 (1) (i) [6] Bipin Chander Jaisinghbhai Shah v. Prabhavati, 1956 SCR 838 [7] Smt. Mayadevi v. Jagdish Prasad, AIR 2007 SC 1426 [8] Om Prakash Gupta vs Puspa Kumari, ILR 1969 Delhi 953 [9] The Hindu Marriage Act, 1955 (Act No. 25 of 1955), S. 5 (ii) (c) [10] Personal Laws(Amendment) Act 2019 (Act No. 6 of 2019) [11] The Indian Penal Code, 1860 (Act No. 45 of 1860), S. 375 [12] The Hindu Marriage Act (Act No. 25 of 1955) S. 13 (2) (ii)

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