Grounds for Divorce under the Hindu Marriage Act

Traditionally India has one of the lowest divorce rates in the world. Being a society largely based on a traditional value system, divorce was seen here as a last option for couples and especially by women who preferred to pull along with unequal marriages rather than opt out. However socio-economic changes complemented by legal reforms in the last half a century have made getting a divorce slightly easier than the past. So if you are have been married under the Hindu Marriage Act and are looking to get a divorce, here are the grounds you can look at.

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Hindu Marriage Act

A landmark in the history of Indian law and society was the passing of Hindu Marriage Act by the Parliament in 1955. this was part of the Hindu Code Bills which were also passed during this time as a way of modernizing civil and family laws in India and these included the Hindu Succession Act (1956), the Hindu Minority and Guardianship Act (1956), and the Hindu Adoptions and Maintenance Act (1956).  All Hindus as well as Buddhists, Sikhs and Jains could henceforth seek marriage and divorce under the Hindu Marriage Act 1955.  Its purpose was to regulate personal life among Hindus, especially their institution of marriage, its validity, conditions for invalidity, and applicability.

Grounds for divorce:

Under the Hindu Marriage Act, there are nine major grounds on which the marriage may be dissolved by a decree of divorce1.

  • The first of these is marital infidelity in which case the petitioner can seek divorce on the basis that his/her spouse who is the respondent had voluntary sexual intercourse with any person other than the spouse after the marriage.
     
  • The second important ground for divorce is infliction of cruelty. In case the petitioner can show that the respondent has treated him/her with cruelty, divorce can be granted to the petitioner.
     
  • Long period of desertion is another valid ground for divorce under which divorce can be granted if the respondent has deserted the petitioner for a continuous period of not less than two years.
     
  • Another variation of the above ground is long term disappearance. If the respondent has not been not heard of as being alive for a period of seven years or more, then the petitioner has just cause for seeking a divorce.
     
  • Conditions where the mental and physical illness of a spouse are significantly hampering the well-being of the petitioner or that of the marriage are also justifiable grounds for seeking divorce under the Hindu Marriage Act. One of these is that a situation where the respondent has been incurably of unsound mind and in such a case, a decree of divorce may be granted to the petitioner.
     
  • Sixthly, if the respondent has been suffering from virulent and incurable form of leprosy, the petitioner may again be granted divorce.
     
  • Since sexual relations are an essential part of marriage, a divorce may be granted to the petitioner if it can be proved that the respondent has been suffering from venereal disease in a communicable form.
     
  • Again because a marriage implies conjugal responsibility on both parties, a petitioner can be granted a divorce if respondent has renounced the world by entering any religious order.
     
  • Lastly, a petitioner can also seek a divorce if the respondent has ceased to be a Hindu.


In case of separation

Apart from the major nine grounds, the Hindu Marriage Act lays down certain conditions for separated couples in which either party may obtain divorce. this can be possible firstly On the ground that there was no resumption of cohabitation for period of one year or more after decree of judicial separation and secondly, on the basis that there has been no restitution of conjugal rights for a period of one year or more after decree for restitution of conjugal rights.

Grounds of divorce for women petitioners

With a long history of patriarchy, many aspects of marriage and divorce in Indian society have been emphatically biased against women. The Hindu Marriage Act attempted to right some of these wrongs by allowing a Wife to seek divorce on the following grounds:

  • In case of marriage before 1955 act, if the husband had married again before such commencement or that any other wife of the husband was alive at the time of solemnization of marriage of petitioner.
     
  • The husband, after marriage, has been guilty of rape, sodomy or bestiality.
     
  • Co-habitation not resumed for one year or more since passing of decree/order for maintenance against husband under Section 125 Cr.P.C or under Hindu Adoptions & Maintenance Act, 1956.
     
  • If the Marriage was solemnized when petitioner was below fifteen years of age and she has repudiated the marriage, after attaining the age of fifteen years, and before attaining the age of eighteen years.


Divorce under customary law

Divorce under customary law is recognized under Section 29 of Hindu Marriage Act. Such custom and usage should have been continuously observed for a long time, having obtained the force of law among Hindus in any local area, Tribe, Community, groups or family. Also such rules governing customary law under which divorce may be granted should be certain and not opposed to public policy.

Divorce by mutual consent

In this case, estranged spouses can mutually agree to a settlement and file for a “no-fault divorce” under Section 13B of the Hindu Marriage Act 1955. All marriages which have been solemnized before or after the Marriage Laws (Amendment) Act 1976 are entitled to make use of the provision of divorce by mutual consent. However for filing a divorce on this ground, it is necessary for the husband and wife to have lived separately for at least a year.

When to file the petition for divorce

Under the Hindu Marriage Act, a petition for divorce can only be filed after one year of the marriage. In case of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent, a petition however may be allowed to be presented before one year but judging the merit of the petition will largely depend upon the discretion of the judge.

Where to file the petition for divorce

The petition for divorce is to be filed before the District Court either where the marriage was solemnized, where respondent resides, where the parties to the marriage last resided together or In case the wife is the petitioner, where she is residing on the date of presentation of petition.

Reference:

  1. Haryana State Legal Services Authority – The Hindu Marrage Act [.pdf]