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Grounds For Divorce in India & Procedure

Grounds For Divorce Under Hindu Marriage Act, 1955, And The Related Procedures.

As per the Hindu Marriage Act, 1955, the concept of divorce is based on the fault theory. There are nine grounds enshrined in Section 13(1) of the Act on which the spouses can file for divorce, and there are two special grounds under Section 13(2) on which wife can file for the divorce Grounds For Divorce in India & Procedure

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

The various grounds in the Act on which a decree of divorce can be obtained are as follows-

13(1) (i) Adultery As Ground For Divorce in India

As per the Hindu Marriage Act, adultery is one of the most important grounds for seeking a divorce. It refers to consensual and voluntary intercourse between a married person with another, married or unmarried, of the opposite sex; not being the other’s spouse. The intercourse between the husband and his second wife; marriage is considered under bigamy; the person is liable for the adultery. Grounds For Divorce in India & Procedure

(Click Here To Know About Kind Marriage under Hindi Marriage Act)

This was incorporated in the Hindu Marriage Act by the Marriage Laws Amendment Act, 1976.

In Swapna Ghose v. Sadanand Ghose AIR 1989 Cal 1, The wife found her husband with another girl together in the bed and it was also confirmed that; thus, the wife’s claims succeeded for divorce.

In Sachindranath Chatterjee vs Sm. Nilima Chatterjee AIR 1970 Cal 38; The petitioner and the defendant were married and then-husband left the wife in his home town for her to complete her studies and went to another city for work. He visited twice or thrice a month to meet her and later found his wife was living in adultery. The plaintiff approached the court to demand a divorce on the ground of adultery and his petition was accepted.

Since adultery is an offense against marriage, it is compulsory to establish that at the time of the act, the marriage was subsisting in reality. The offense can be proved by both: Grounds For Divorce in India & Procedure

  • Circumstantial evidence
  • Contracting venereal disease

In a unanimous judgment, the five-member bench in Supreme Court struck down adultery to be a criminal offense by the penal law of India in the case of Joseph Shine vs Union Of India WRIT PETITION (CRIMINAL) NO. 194 OF 2017. 

Cruelty As Ground For Divorce in India

The modern concept of cruelty includes both mental and physical cruelty. Some instances of Cruelty can be –

  • false accusations of adultery or unchastity
  • demand of dowry
  • refusal to have marital intercourse/children
  • impotency
  • birth of child
  • drunkenness
  • the threat to commit suicide
  • wife’s writing false complaints to the employer of the husband
  • incompatibility of temperament
  • irretrievable breakdown of the marriage
The following do not amount to cruelty-
  • ordinary wear & tear of married life
  • wife’s refusal to resign her job.
Grounds For Divorce in India & Procedure

In Shushila Bai vs. The State Of Madhya Pradesh, Writ Petition 6117/2015 In this case, the petitioner filed the divorce petition against his wife on the ground of mental cruelty. He had proved that his wife had committed acts of cruelty with him and his parents and was aggressive and uncontrollable and also lodged false complaints against her husband. The court accepted the petition and granted divorce on the ground of cruelty. 

Desertion As Ground For Divorce in India

Desertion means a total repudiation of marital obligation. The following constitutes desertion; and should co-exist to qualify as a ground for divorce:

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

In the case of Bipinchandra v. Prabhavati,1957 AIR 176; the Supreme Court held that in a case where the respondent leaves the matrimonial home with an intention to the desert, he cannot be guilty of desertion provided he shows an intention to return and is prevented from doing so by the petitioner itself.

Conversion As Ground For Divorce in India

When the respondent has ceased to be Hindu by conversion to any other religion and is no more a Hindu, i.e. Islam, Christianity, Judaism, Zoroastrianism, a divorce can be granted.

In the case of  Suresh Babu vs Leela 2006 (3) KLT 891, the husband had converted himself into a Muslim and married another woman. Here the wife Leela filed a case and demanded the divorce on the ground of conversion without her consent and cruelty. Grounds For Divorce in India & Procedure

Insanity As Ground For Divorce in India

Insanity has the following requirements-

  • Incurable unsound state of mind and
  • Suffering from continuous or intermittent mental disorder to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

In the case of Vinita Saxena vs Pankaj Pandit Appeal (civil) 1687 of 2006, the petitioner had filed a case to obtain a divorce from the respondent because he was suffering from Paranoia Schizophrenia which is a mental disorder. She got aware of these after the marriage took place. The court herein granted the divorce. 

Leprosy As Ground For Divorce in India

Contagiousness of leprosy along with repulsive outward manifestations makes it ground to obtain a divorce. The onus of proof lies on the petitioner.

In the case of Swarajya Lakshmi vs G. G. Padma Rao, 1974 AIR 165, the husband filed the case and claimed that his wife is suffering from incurable leprosy with the expert’s reports; and he was successful in obtaining the same.

Venereal Disease As Ground For Divorce in India

If the disease is communicable by nature­ irrespective of the amount of period in which the respondent has suffered from it; it becomes a ground for divorce. It is not necessary that it to have been transferred to the petitioner (even if done innocently).

Renunciation As Ground For Divorce in India

“Renunciation of the world” is a ground for divorce only under Hindu law and lays down that a spouse may seek divorce if the respondent has renounced univocally their world and has entered into a holy space and can be considered to be socially dead.

Presumption of Death As Ground For Divorce in India

A person is presumed to be dead, if not been heard for a period of at least seven years. The burden of proof lies on the petitioner. This is a presumption of universal acceptance and is also coded in the Indian Evidence Act.

Author: This article was written by Richaa Mukhopadhyay, B.A. LLB(Hons), CS(executive), ALSK, ICSI, student of Amity Law School, Amity University, Kolkata.

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