Grounds of Divorce as per The Hindu

Marriage Act
Section 13(1) provides grounds on which divorce can be sought by either of
the partners in a marriage. After the amendment of 1976, grounds for divorce
specified under Section 13 of the Act and judicial separation under Section 10
are similar. The parties also have the option of judicial separation instead of
divorce, where they can rethink their decision. The objective is to save the
sacred institution of marriage and make efforts for reconciliation. In the case
of Ishwar Singh v. Smt. Hukam Kaur (1965), the Allahabad High Court
held that if the husband permitted his wife to marry someone else of her choice
because of his ill health, it does not amount to divorce because no such petition
or application had been filed in the court and so the second marriage
solemnised is illegal as the first marriage still subsists. It was also observed
that a marriage subsists until a decree of divorce has been passed by the
court.

Further, in the case of Niru Sarmah v. Jatin Chandra Sarmah (2014), the
Gauhati High Court observed that if a marriage is broken to the extent that it
is irretrievable and there are no possibilities that the bond can be recovered
and the marriage can be saved in near future, decree of divorce can be passed
by the court.

Adultery
The concept of Adultery may not be considered as an offence in many
countries. But as per the Hindu Marriage Act, in the matrimonial offence, the
adultery is considered as one of the most important ground for seeking
divorce. Adultery means the consensual and voluntary intercourse between a
married person with another person, married or unmarried, of the opposite
sex. Even the intercourse between the husband and his second wife i.e. if their
marriage is considered under bigamy, the person is liable for the Adultery.

The concept of Adultery was inserted under the Hindu Marriage Act by the
Marriage Laws Amendment Act, 1976.

In Swapna Ghose v. Sadanand Ghose:

In this case, the wife found her husband with other girl lying on the same bed
and the neighbour also confirmed that the husband has committed an offence.
Here the wife gets the divorce.

In Sachindranath Chatterjee vs Sm. Nilima Chatterjee:

In this case, the petitioner and the defendant were married. After marriage,
the husband leaves the wife in his home town so that she can complete her
studies and go to another city for work. He visited twice or thrice a month to
meet her. Later he found that his wife commits the adultery i.e. to involve in
sexual intercourse with his own nephew, watchman etc. The plaintiff
approaches the court to demand divorce on the ground of adultery and his
petition was accepted and the marriage gets dissolved.

Prior to the 1976 amendment, in order to seek divorce on the ground of

adultery, a person had to prove that, on the date of the petition, his/her spouse
was living in an adulterous relationship. However, after the amendment, even
a single voluntary sexual intercourse with a person other than the spouse is a
valid ground for divorce. It is given under Section 13(1)(i) of the Act. The
burden to prove that the spouse committed the offence of adultery is on the
person who made such allegations, and the standard of proof is by
preponderance of probabilities and not proof beyond reasonable doubt.

It is correct that there can be no direct evidence to prove the act of adultery,
so circumstantial evidence plays an important role. The Madhya Pradesh High
Court in the case of Samuel Bahadur Singh v. Smt. Roshini Singh (1960),
rightly pointed out that in India, if a male and female are living together under
the same roof without any connections or relations, it is not considered normal,
and so adultery can be inferred from the following circumstances:

• A male and female lived together in the same house for a long
time.
• They are not related to each other by way of marriage or any other
relationship.
• They refused to return to their spouse.
• Both the parties cannot deny adultery because of circumstantial
evidence.
• They had the opportunity to commit adultery.
In the case of Chetan Dass v. Kamla Devi (2001), appellant and respondent
were married to each other according to Hindu ceremonies. After marriage,
the appellant had an extramarital affair with one of the nurses in the hospital
where he was working, and so his wife left him. He appealed, claiming that the
allegations made by the respondent and her act of deserting him without any
reasonable cause amount to mental torture. The Hon’ble Supreme Court
observed that a man cannot take advantage of his own wrong. However, the
decree for divorce was not passed because the wife, or respondent in this case,
was ready to continue her marriage and live with him only on the condition
that he must leave the other woman and end his adulterous relationship.

It must be noted that adultery as an offence has been decriminalised by the

Hon’ble Supreme Court in the case of Joseph Shine v. Union of India
(2018). However, it is still a ground of divorce under the Hindu Marriage
Act, 1955, which means that if a person commits adultery, he/she would not
be punished but the spouse can seek divorce.

Essentials of Adultery
1. One of the spouses involved in the intercourse with another person,
married or unmarried, of the opposite sex.
2. Intercourse should be voluntary and consensual.
3. At the time of the act, the marriage was subsisting.
4. There must be sufficient circumstantial evidence to prove the liability
of another spouse.

Cruelty
The concept of cruelty includes mental as well as physical cruelty. The physical
cruelty means when one spouse beats or causes any bodily injury to the other
spouse. But the concept of mental cruelty was added as the spouse can also
be mentally tortured by the other spouse. Mental Cruelty is lack of kindness
which adversely affects the health of the person. Well it is easy to determine
the nature of physical cruelty but difficult to say about mental cruelty

1. What is considered as Mental Cruelty against Husband by wife:

2. Humiliating the husband in front of his family and friends.
3. Undertaking the termination of pregnancy without husband consent.
4. Making false allegation against him.
5. Denial for Martial Physical Relationship without a valid reason.
6. Wife having affair.
7. Wife living an immoral life.
8. The constant demand for money.
9. Aggressive and uncontrollable behaviour of Wife.
10. Ill-treatment to the husband parents and family.
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 behaviour 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.

What considered as Mental Cruelty against wife by Husband

 1. False accusation of adultery.
2. The demand for dowry.
3. Impotency of Husband.
4. Force to abort the child.
5. The problem of drunkenness of husband.
6. Husband having affairs.
7. The husband lives an immoral life.
8. Aggressive and uncontrollable behaviour of the husband.
Humiliating the wife in front of family and friends

Desertion
Desertion means the permanent abandonment of one spouse by the other
spouse without any reasonable justification and without his consent. In
General, the rejection of the obligations of marriage by one party.

Before the 1976 Amendment, desertion was only a ground for judicial
separation and not divorce. But now, desertion of any of the spouses by the
other for a continuous period of two years immediately before filing the petition
is a valid ground to seek divorce as well as judicial separation. Desertion as
the ground of divorce is mentioned under Section 13(1)(i)(ib) of the Act. In
the case of Malathi Ravi v. B.V. Ravi (2014), the Supreme Court held that
if there is no evidence to prove that the wife had an intention to end the
marriage or whether she deserted her husband, then the court will not pass a
decree of divorce. This means that the intention to end marriage is one of the
essentials of desertion, i.e., animus deserendi must exist. Also, if there was no
desertion for a continuous period of two years immediately before the
presentation of the petition or if the party assumed it, no divorce can be
granted.

In the case of Ranjeet Kaur v. Surendra Singh Gill (2012), the Madhya
Pradesh High Court gave the meaning of desertion as the intention of parties
to permanently abandon the spouse without their consent and reasonable
cause, which means that for the ground of desertion, the fact of separation
and animus deserendi must co-exist. In the present case, the wife denied the
allegations of cruelty and desertion made by her husband and requested that
the court dismiss his petition. In the case of Om Wati v. Kishan Chand
(1983), the Delhi High Court opined that desertion does not mean withdrawal
but is a state of things. It is a question of fact. In the case of J. Shyamala v.
P. Sundar Kumar (1990), the Madras High Court held that if a wife starts
living with her parents rather than her husband because he made false
allegations against her regarding her character and unchastity, it would not
amount to desertion. It must be noted that the desertion of a spouse must be
without reasonable cause. The burden of proof, in this case, lies on the
petitioner, and it must be proved that the said desertion occurred without any
sufficient and probable cause and did last for two years.

Essentials
1. Permanent abandonment of the other spouse.
2. Rejection of the obligation of marriage.
3. Without any reasonable justification.
4. No consent of another spouse.
In Bipin Chander Jaisinghbhai Shah vs Prabhawati

In this case, the respondent leaves the house with the intention to abandon
his wife. Later the wife approaches the court, but the defendant proved that
even though he left the house with the intention to desert, but he tried to come
back and he was prevented from doing so by the petitioner. Here, the
defendant cannot be held liable for desertion.

Conversion
If one of the spouses converts his religion to any other religion without the
consent of the other spouse, then the other spouse can approach the court
and seek the remedy of divorce.

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 Leela:

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.

Unsoundness of mind
Insanity means when the person is of unsound mind. Insanity as a ground of
divorce has the following two requirements-
 1. The respondent has been incurably of unsound mind.
2. 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 Pandit 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.

If one of the parties, i.e., either husband or wife, is of unsound mind, then it
is a valid ground for divorce. It is given under Section 13(1)(iii) of the Act. The
unsoundness may be continuous or intermittent and incurable to the extent
that it is not possible for the petitioner to continue married life with the
respondent. This was also mentioned in the Amendment Act of 1976. In the
case of Smt. Alka v. Abhinesh Chandra Sharma (1991), the Madhya
Pradesh High Court found that the wife was suffering from schizophrenia
because she was cold and frigid on the first night of marriage and could not
cooperate with the husband. Also, she was not able to handle domestic
appliances, so the husband was entitled to nullity of marriage in this case. It
was also observed that the facts pertaining to the mental illness of the wife
and her medical treatment were not disclosed to either the husband or his
mother and grandmother, who negotiated the marriage on his behalf. The
counsel representing the wife also argued that breaking the marriage just after
19 days of marriage would bring upon her great tragedy. However, the appeal
made by the wife was dismissed.

In the case of Suvarnalata v. Mohan Anandrao Deshmukh and Anr.

(2010), husband filed for divorce on the ground that his wife was suffering
from schizophrenia, but the Supreme Court did not accept and agree with the
allegations made by the husband that his wife was suffering from mental
disorder and desisted itself from giving any observations in this regard because
of the effect that it would have on the minor child. Further, the Calcutta High
Court in the case of Pramatha Kumar Maity v. Ashima Maity (1991) held
that in order to obtain a decree for divorce on the ground of unsoundness of
mind, it must be proved that unsoundness exists to the extent that it is
impossible for the petitioner to cohabit and live with the respondent.

Leprosy
Leprosy is an infectious disease of the skin, mucous membranes, nervous
system etc. this disease is transmitted from one person to another. Thus it is
considered as the valid ground for divorce.
In Swarajya Lakshmi vs G. G. Padma Rao, the husband filed the case for
granting the divorce on the ground of leprosy. He claimed that his wife is
suffering from incurable leprosy with the expert’s reports. Here he succeeds in
getting the divorce on the ground of leprosy.

In the case of Mr. ‘X’ v. Hospital ‘Z’ (1998), a marriage was called off as
the appellant was found out to be HIV+ which is a venereal disease. Further,
in the case of P. Ravi Kumar v. Malarvizhi @ S. Kokila (2013), husband
filed for divorce on the ground that the wife is suffering from HIV, which is a
communicable sexually transmitted disease. The wife, on the other hand,
argued that she is afflicted by the disease only through her husband. The
medical reports proved that the husband was not suffering from HIV. On the
basis of facts and circumstances, the husband was entitled to the decree of
divorce.

Venereal Disease
Under this concept, if the disease is in communicable form and it can be
transmitted to the other spouse, then this can be considered as the valid
ground for divorce.

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 the
dissolution of the marriage

Renunciation
It means when one of the spouses decides to renunciate the world and walk
on the path of the God, then the other spouse can approach the court and
demand the divorce. In this concept the party who renunciates the world is
considered as civilly dead. It is a typical Hindu practice and is considered as a
valid ground for divorce.

Illustration

A and B got married and lives a happy life. One day A decides to renunciate
the world. Here, B has a right to approach the court and seek the remedy of
divorce.
Presumption of Death
In this case, the person is presumed to have died, if the family or the friends
of that person does not hear any news about the person alive or dead for seven
years. It is considered as the valid ground for divorce, but the burden of proof
is on the person who demands the divorce.

In the case of LIC of India v. Anuradha (2004), the Supreme Court held
that the death of a person can be presumed only after the lapse of seven years.
However, it does not include the time of death. In the case of Prakash
Chander v. Parmeshwari (1987), a woman was asked to enter into
a karewa marriage with her brother-in-law for the procreation of children
because her husband became a lunatic and was discharged from the Army. He
was not heard of after his discharge and was presumed to be dead. The
customs of karewa marriage allowed a second marriage if the spouse was not
heard of for 2-3 years, which means that they presumed the death of the
spouse within this period. However, when she was ill-treated by her brother-
in-law and thrown out of the house, she filed for divorce, but all the allegations
were denied by the opposite party. The court in this case observed that such
a custom is not judicially recognised and that the karewa marriage between
the woman and her brother-in-law does not itself dissolve the first marriage
between her and her husband.

Illustration

A was missing from the last seven years and his wife B does not get any news
about him of being alive or dead. Here B can approach the court and ask for
the divorce.

Concept of Divorce with Mutual Consent

As per Section 13B, the person can file the petition for divorce by mutual
consent of both the parties. If the parties want to dissolve their marriage as a
mutual consent are required to wait for one year from date of marriage. They
have to show that they are living separately for one or more year and not able
to live with one another.

There was no provision related to divorce by mutual consent till 1976. It was
in the 1976 Amendment that the provisions for divorce by mutual consent was
added. It is given under Section 13B of the Act and is retrospective in nature,
which means that it is applicable to marriages solemnised before the
commencement of the 1976 Amendment Act. According to the Section, both
the parties can jointly file a petition for divorce by mutual consent on the
grounds that they have been living separately for a year or more and cannot
live together and resume their married life. They must also provide that they
both have mutually decided to end their married life.
The Section also provides that when the petition has been filed, parties would
have to wait for six months, after which they can bring the motion again in the
court for dissolution of marriage. If the parties do not come to court after six
months and within eighteen months from the date the petition was filed, it
would be presumed that they have withdrawn the petition. If the petition is
not withdrawn, the court would hear the parties and after necessary inquiry
presume that the averments made are true and pass a decree of

Essentials
The ingredients, or essential conditions, to seek divorce by mutual consent
are:

• The petition must be filed jointly by the husband and wife.

• They must be living separately for a year or more.
• They have mutually agreed to bring their married life to an end.
• There is no possibility of resuming married life.
In the case of Laxmibai Ward v. Pramod (2009), the wife challenged the
decree of divorce by mutual consent on the ground that her signatures were
obtained falsely and there was no separation for a year or more. The Bombay
High Court held that subordinate courts, before passing a decree of divorce by
mutual consent, must be satisfied of the fact that the consent was not obtained
by force, coercion, undue influence, or fraud.

Further, in the case of Rajesh R. Nair v. Meera Babu (2014), the Kerala
High Court observed that parties can withdraw the application for divorce by
mutual consent even at the stage of enquiry and if any of them withdraws their
consent, then the court is not entitled to pass the decree. The court in the case
of Anil Kumar Jain v. Maya Jain (2009) held that the consent to mutually
dissolve the marriage must subsist till the second stage, where the petition
comes before the court. With respect to the waiting period of six months, the
Court in the case of Anjana Kishore v. Puneet Kishore (2001) observed
that in exceptional circumstances it can be waived. Further, in the case
of Amardeep Singh v. Harveen Kaur (2017), the Supreme Court held that
the period mentioned under Section 13B(2) is not mandatory but directory.

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