Decree of Divorce: Under the Hindu Marriage Act, 1955

Author: Er. Kabir Khan B.E.(Civil Engg.) LLB, LLM

Introduction:

The Hindu Marriage Act, 1955, is a key law that governs judicial separation and decree of  divorce for Hindus. This Act outlines several reasons for divorce. It allows either the husband or wife to file a petition in court.

The Act provides both spouses with the right to end their marriage. This is possible if there are serious issues. These issues include disputes, fraud, cruelty, or desertion.

To get a decree of divorce and judicial separation, there must be valid reasons for ending the marriage. Section 13 and section 10 of the Act defines the reasons that can justify a divorce. These include marital infidelity, abusive behavior, and desertion.

The process involves filing a divorce petition. It also includes presenting evidence in court. Both parties must be heard during the proceedings.

This article will explore the legal grounds for obtaining a judicial separation and decree of divorce . It will also cover the procedures required under the Hindu Marriage Act, 1955.

For Students:

1.  Discuss the grounds for obtaining a decree of divorce. On what special grounds a Hindu wife can claim a decree of divorce against her husband under the provision of the Hindu Marriage Act 1955 ?

तलाक की डिक्री प्राप्त करने के आधारों पर चर्चा करें। हिंदू विवाह अधिनियम 1955 के प्रावधान के तहत एक हिंदू पत्नी अपने पति के खिलाफ तलाक की डिक्री का दावा किन विशेष आधारों पर कर सकती है?

or

Enumerate the various grounds upon which a party to a marriage may present a petition for a decree for judicial separation. Explain whether the court has power to award a decree of judicial separation on the petition for divorce presented by the petitioner ? 

उन विभिन्न आधारों को सूचीबद्ध करें जिन पर विवाह का कोई पक्ष न्यायिक पृथक्करण के लिए डिक्री हेतु याचिका प्रस्तुत कर सकता है। स्पष्ट करें कि क्या न्यायालय को याचिकाकर्ता द्वारा प्रस्तुत तलाक की याचिका पर न्यायिक पृथक्करण की डिक्री देने का अधिकार है?

तलाक का आदेश प्राप्त करने के आधार: हिन्दू शादी एक्ट 1955 के

Grounds for Obtaining a Divorce Decree: Under the Hindu Marriage Act, 1955

Judicial separation and divorce are two key legal remedies for resolving marital issues. Either the husband or wife can apply to the court for either remedy.

Section 10 of the Hindu Marriage Act, 1955 addresses the provisions for judicial separation. Section 13 deals with divorce.

Originally, the grounds for judicial separation and divorce were different. The Hindu Marriage Act (Amendment) Act, 1976 modified this.

Now, the grounds for both judicial separation and divorce are the same. This means the legal reasons for both are identical.

Section 10: Judicial Separation under the Hindu Marriage Act, 1955

Section 10 deals with judicial separation. Its purpose is to allow husband and wife to live separately without completely ending the marriage.

Judicial separation means that the couple is legally recognized as living apart, but the marriage itself is not completely terminated.

Either spouse can file a petition for judicial separation in court. Even after judicial separation, the marriage remains valid, but the couple can live apart.

During judicial separation, both spouses can claim their individual rights.

Section 13: Legal Provisions for Divorce

Section 13 provides the legal grounds for decree of divorce. Under this section:

• A divorce petition must be filed in court by either spouse, detailing the reasons for seeking the divorce.

• Divorce can only be granted on valid legal grounds.
• After a divorce, the marriage is completely dissolved, and both parties are legally separated.
• Both parties can remarry after the divorce.

For legal action and decisions under these sections, presenting evidence in court and following legal procedures is necessary.

Hindu Marriage (Amendment) Act, 1976: Unified Grounds for Divorce and Judicial Separation

The Hindu Marriage (Amendment) Act, 1976 unified the grounds for judicial separation and divorce set forth in Sections 10 and 13.

Section 10 deals with judicial separation. This means that the husband and wife can live apart, but the marriage is not fully dissolved. Section 13 deals with divorce, which involves completely ending the marriage.

The main grounds for both judicial separation and divorce are:

• Cruelty
• Adultery
• Desertion
• Mental illness

General Grounds for Decree of Divorce: Under the Hindu Marriage Act, 1955

Section 13(1) of the Hindu Marriage Act, 1955 outlines seven common grounds for divorce that can be used by either spouse. Certain grounds, such as cruelty and desertion, were formerly limited to judicial separation. However, the 1976 amendment included them as grounds for divorce as well.

Additionally, Section 13(2) provides four specific grounds for divorce that only the wife can use. The 1976 amendment also introduced Section 13B, which allows for divorce by mutual consent.

These sections clarify the different grounds for divorce and provide various legal pathways to end a marriage.

1. Section 13(1): Grounds for divorce for both husband and wife to obtain a decree of divorce.

1. Adultery [Section 13(1)(i)]

Description: If either spouse has had sexual relations with someone else during the marriage, a divorce petition can be filed. The petitioner must prove that their spouse engaged in physical relations with someone other than their partner after marriage.

2. Cruelty [Section 13(1)(i-a)]

Description: If a spouse has inflicted mental or physical cruelty on the other, it can be grounds for divorce. This includes physical violence, mental harassment, abusive behavior, or any form of mistreatment that makes married life unbearable.

3. Desertion [Section 13(1)(i-b)]

Description: If a spouse has left the other for a year or more without a valid reason, a divorce petition can be filed. Desertion refers to one partner leaving their spouse without a valid reason.

4. Conversion [Section 13(1)(ii)]

Description: If a spouse changes their religion during the marriage, it is grounds for obtaining a divorce. This ground applies if the conversion makes it impossible to continue the marital relationship.

5. Unsoundness of Mind [Section 13(1)(iii)]

Description: If a spouse suffers from a mental illness that cannot be treated, a divorce petition can be filed. The petitioner must prove that the mental condition is affecting the married life adversely.

6. Leprosy [Section 13(1)(iv)]

Description: If a spouse is suffering from leprosy, a divorce can be obtained. Leprosy is a serious and contagious disease that can negatively affect married life.

Note: Adverse means that the person’s health is worsening or negatively affecting their well-being.

7. Venereal Disease of Communicable Form [Section 13(1)(v)]

Description: If a spouse has a contagious sexually transmitted infection (STI), it is possible to file for divorce. This ground applies when the disease is so contagious that it disrupts married life.

8. Renunciation of the World by Entering a Religious Order [Section 13(1)(vi)]

Description: If a spouse has entered a religious order and renounced the world, a divorce can be obtained. This means the person has fully committed to a religious life, making married life impossible.

9. Presumption of Death [Section 13(1)(vii)]

Description: If a spouse is presumed dead due to prolonged absence with no trace, a divorce petition can be filed. This means that the spouse has been absent for a long time, leading to the assumption of their death, and divorce proceedings can be initiated on this basis.

Important Cases Regarding Decree of Divorce Orders

1. Navin Kohli vs. Neelu Kohli (2006)

Key Points:

1. In this case, the Supreme Court recognized cruelty as a valid ground for divorce. The court stated that both mental and physical cruelty can be sufficient grounds for divorce.

2. The decision clarifies that if one party subjects the other to mental or physical cruelty, the other party can seek a divorce.

3. The court acknowledged that continuous insulting behavior, neglect, and emotional abuse also fall under the category of cruelty.

2. Savitri Devi vs. Krishna Mohan (1996)

Key Points:

1. In this case, desertion was accepted as a ground for divorce. The court said that if one spouse deliberately leaves the other and does not return for at least two years, it constitutes a valid ground for divorce.

2. It must be demonstrated that the spouse who left did so without any valid reason and does not intend to return.

3. Sarla Mudgal vs. Union of India (1995)

Key Points:

1. In this case, changing one’s religion was deemed a valid reason for seeking a divorce. The court ruled that if one spouse converts to a different religion, the other spouse can file for divorce.

2. In this case, the husband had converted to Islam and married again, while the first marriage was under Hindu law. The court stated that even after conversion, the Hindu marriage law remains applicable, and conversion can be a valid ground for divorce.

These three cases have clearly defined the grounds for divorce under Section 13(1). Cruelty, desertion, and conversion have been established as valid grounds for divorce, and the court has elaborated on these aspects through these decisions.

2. Section 13(2): Special Divorce Grounds Only for Wives

Polygamy Prior to the Hindu Marriage Act, 1955 : Section 13(2)(i)

A wife can file for divorce on this ground if her husband had multiple marriages before the Hindu Marriage Act, 1955 came into effect. If the husband married someone else before marrying her, the wife can ask for a divorce. This law is specifically for cases where the husband had more than one wife, and this harmed the wife’s marital life.

Husband Accused of Rape, Sodomy, or Bestiality: Section 13(2)(ii)

If the husband has committed rape, the wife can file for divorce. Sodomy (unnatural sexual acts) is also a valid reason for divorce. If the husband has engaged in bestiality, which involves sexual acts with animals, the wife can also ask for a divorce. This law protects the wife from severe sexual crimes that can make married life unbearable. The wife must prove that her husband committed any of these crimes to get the divorce.

Maintenance Order or Decree : Section 13(2)(iii)

If a court has already granted maintenance (financial support) to the wife, she can file for divorce if her husband fails to comply with the order. This implies that if the husband fails to provide the mandated maintenance or is unable to support her, the wife is entitled to seek a divorce. This law helps in cases where the husband ignores the court’s order for maintenance.

 Option of Puberty: Section 13(2)(iv)

Under this section, the wife can file for divorce if she was married during her childhood and, after reaching puberty, no longer wishes to remain in the marriage. If the wife married when she was too young to understand fully, she can now ask for a divorce. This rule protects girls who were married before they were old enough to make informed decisions.

Important Court Decisions on Divorce

1. Chandrama v. Kamla (AIR 1965 SC 364)

In this case, the court granted divorce to the wife under Section 13(2)(i) because the husband had married another woman while still married to his first wife. The court clarified that if a man had two wives before the Hindu Marriage Act, 1955, the first wife has the right to ask for a divorce. The court declared the second marriage illegal and allowed the divorce.

2. Sharda v. Dharmpal (2003 AIR SC 3450)

In this case, the wife filed for divorce under Section 13(2)(ii) after accusing her husband of rape and sexual violence. The court stated that if such a crime is proven, it is a valid ground for divorce. The court made it clear that divorce is justified when the husband’s actions violate the wife’s dignity and safety.

3. Renu v. Radheshyam (AIR 1991 Raj 156)

In this case, the wife sought a divorce under Section 13(2)(iii) because her husband failed to take her back home even after a maintenance order was issued. The court ruled that if a husband does not follow a court’s order to support his wife, it is a valid reason for divorce. This decision set an important example for protecting wives’ economic and social rights.

These significant cases emphasize the unique divorce rights provided to wives under Section 13(2). The law gives women the right to seek divorce on grounds like bigamy, sexual violence, and failure to provide maintenance, ensuring their safety, dignity, and financial security.

2. Section 13B: Mutual Consent for Decree of Divorce

Section 13B was added to the Hindu Marriage Act, 1955, through an amendment in 1976. Under this section, both the husband and wife can jointly file a petition in court to end their marriage. Here is a detailed explanation of the process and conditions for obtaining a divorce under Section 13B:

Details of Section 13B:

1. Process of Divorce by Mutual Consent:

Need for Agreement:

Under this section, both the husband and wife must fully agree that they want to end their marriage. They need to file a joint petition where they clearly state their decision to divorce.

Filing the Petition:

The husband and wife submit a petition together, confirming that they want to separate and are in agreement to end the marriage.

2. Requirement of Time:

Six Months from Filing Date:

After the petition is filed, the court gives the couple at least six months to reconsider their decision and ensure they are firm on getting divorced.

Cooling-off Period:

During these six months, if the couple changes their mind and wishes to live together again, they can request the court to withdraw the petition.

3. Final Order:

Interim Order:

If, after six months, there is no conflict between the husband and wife, and they are still firm in their decision, the court grants an interim divorce order.

Final Divorce Order:

Once the final order is issued by the court, the marriage is officially ended, and both parties are legally free.

Main Benefits of Section 13B:

Based on Agreement:

This section allows the husband and wife to get a divorce with mutual consent, reducing conflicts and legal disputes.

Cooling-off Period:

The six-month period gives the couple time to reconsider their decision, helping them clarify their situation.

Simpler Process:

The process is more straightforward and less controversial since it is based on mutual agreement.

1. Thus, Section 13B provides a more peaceful and agreement-based way of getting a divorce, promoting harmony and understanding between both parties.

Important Cases Related to Obtaining a Decree of Divorce:

I. Sanjay Agarwal vs Neetu Agarwal (2006)

1. In this case, after filing for mutual consent divorce, the husband withdrew his consent after six months.

2. The court ruled that under Section 13B(2), both parties’ consent must remain until the final order.

3. The court made it clear that if either party withdraws consent after the six-month waiting period, the divorce process cannot continue.

II. Surekha vs Deepak (2007)

1. In this case, the couple filed for mutual consent divorce, but after reconsidering, they decided to live together again.

2. The Supreme Court ruled that if both parties withdraw their consent during the divorce process, the marriage cannot be dissolved.

3. This decision highlighted the importance of mutual consent and its stability in divorce cases.

III. Amit Kumar vs Suman Kumari (2011)

1. In this case, the husband and wife filed for mutual consent divorce, but the husband wanted the divorce so he could remarry.

2. The court ruled that using hidden motives for divorce through mutual consent is unfair.

3. The court clarified that the purpose of divorce should be based on honesty and transparency, not personal gain.

These cases make it clear that in mutual consent divorce cases, both parties’ consent must last until the final order. If any party revokes their consent, the divorce will not be approved. Transparency and honesty are essential throughout the divorce process.

Section 13(1A): Hindu Marriage Act, 1955

Section 13(1A) of the Hindu Marriage Act, 1955, allows a husband or wife to file for divorce if they have not lived together for a year, despite a court order for judicial separation or restitution of conjugal rights. This means that if the court has issued an order for judicial separation or to restore marital rights, and the couple still does not live together for one year, either party can apply for divorce.

Important Judgments Related to Decree of  Divorce :

Here are some key cases that explain Section 13(1A):

1. Dhanvallabh vs Govindbai (1979)

1. In this case, the court clarified the right to divorce under Section 13(1A).

2. The court stated that if a judicial separation order is passed and the couple does not live together for one year, either party can file for divorce, regardless of who was at fault.

3. This decision is important because it shows that fault or blame is not considered under this section when seeking divorce.

2. Krishna vs Bhim Singh (1980)

1. In this judgment, the court ruled that if the couple stays apart for one year after the judicial separation order, it is a valid ground for divorce.

2. The court also said that this section gives both the husband and wife time to reconsider during the separation. If they cannot live together, they can file for divorce.

3. This ruling makes it easier to obtain a divorce, even without mutual consent.

3. Suresh vs Vimla (1982)

1. In this case, the court confirmed that the right to divorce under Section 13(1A) arises after one year of judicial separation or restitution of conjugal rights.

2.The court explained that if the couple cannot live together despite the court order, ending the marriage may be in their best interest.

3. This decision views Section 13(1A) as a way to improve peace and stability in marital life.

Section 13(1A) gives the right to file for divorce when the couple has not lived together for one year after a judicial separation or restitution of conjugal rights order. This provision ensures that if the marriage cannot be saved, both parties have the opportunity to end it.

Section 13A: Alternative Relief in Divorce Proceedings

Section 13A of the Hindu Marriage Act, 1955, includes a crucial provision. It grants the court the power to offer alternative relief during a divorce petition. If the court finds that judicial separation is more appropriate than divorce, it can grant that.

Key Points About the Court’s Power to Provide Alternative Relief:

1. Provision for Alternative Relief:

Section 13A aims to give the court a chance to offer another opportunity for the marital relationship during divorce proceedings. Under this section, the court can choose to order judicial separation instead of granting a divorce.

2. Judicial Discretion:

This section gives the court the freedom to evaluate the situation. The court can decide if judicial separation might be a better option than divorce, giving the couple a chance to improve their relationship.

3. Exercise of the Power:

When a divorce petition is submitted, the court reviews the complete context. If the court determines that judicial separation might be a more suitable resolution than divorce, it can reject the divorce petition and issue an order for judicial separation instead.

Section 13A provides an alternative relief option, allowing the court to order judicial separation if it believes that this might improve the marital relationship. The main goal is to ensure that every possible effort is made to improve the marriage before considering the harsh step of divorce.

Important Decisions Related to Decree of Divorce:

Here are three significant judicial decisions that clarify the use and importance of Section 13A:

1. Kailashwati vs Ayodhya Prasad (1977)

1. In this case, the husband filed for divorce, but the court found that ending the marriage was not necessary.

2. The Supreme Court ordered judicial separation instead of divorce, giving both parties another chance to mend their relationship.

3. This decision shows that the court can opt for judicial separation if there is a chance to improve the marriage.

2. Roshan Lal vs Vimla Devi (1980)

1. In this case, the husband filed for divorce, but the court decided on judicial separation instead.

2. The court emphasized that Section 13A aims to give a chance to improve the marriage before deciding on divorce.

3. The court preferred judicial separation, allowing both parties time to reconsider their relationship.

3. Suresh Kumar vs Maya Devi (1990)

1. In this decision, the court acknowledged that the couple had serious disagreements. However, it also noted that their marriage was not entirely unsuccessful.

2. The court dismissed the divorce petition and ordered judicial separation, giving both parties an opportunity to improve their marital life.

3. This case illustrates that judicial separation might be a more effective alternative to divorce for enhancing the marital relationship.

These decisions clarify that Section 13A allows the court to offer alternative relief during divorce proceedings. The court can order judicial separation instead of divorce, giving the couple a chance to work on their relationship.

Conclusion:

The Hindu Marriage Act, 1955, specifies various legal reasons for obtaining a divorce. Section 13(1) describes the general grounds for both spouses. Section 13(2) lists specific grounds that apply to wives. Additionally, Section 13B allows for divorce by mutual consent.

The court carefully reviews every detail and factor involved in the divorce case. It considers every possible effort to improve the marital relationship. Before granting a divorce, the court ensures that all attempts to save the marriage have been made. If the court finds that continuing the marriage is not feasible, it will issue a divorce decree.

The goal is to ensure a fair resolution for both parties. It also aims to safeguard their rights and interests. Divorce proceedings can be complex. Thus, obtaining appropriate legal counsel is essential. This advice will help you make well-informed decisions. It will also help you fully understand your legal rights.