NEW LAW COLLEGE

Name: Karishma Nilesh Shah

Class: F.Y.LLB ‘D’

Roll No.: 349

Subject: Family Law

Grounds Of Divorce Under Indian Divorce Act

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Table of contents

Topics Page Number

Introduction 3
Different theories of Divorce 3
Divorce under Hindu Marriage Act, 1955 3
Grounds of Divorce as per The Hindu Marriage Act, 1955 4
Concept of Divorce with Mutual Consent 7
No petition for Divorce within one year of Marriage 7
Remarriage of Divorced Person 7
Conclusion 8
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1. Introduction
In Ancient times, the concept of divorce was not known to anyone. They considered marriage as a sacred
concept. According to Manu, the husband and wife cannot be separated from each other, their martial tie
cannot be broken. Later the concept of divorce came in the picture and established as a custom to put the
marriage to an end.

According to the Arthashastra, marriage can end if dissolved by mutual consent and should be unapproved
marriage. But Manu does not believe in the concept of the dissolution. According to Manu the only way to
end the marriage is the death of one of the spouses.

The provision related to the concept of divorce was introduced by the Hindu Marriage Act, 1955. The Hindu
Marriage Act defines divorce as a dissolution of the marriage. For the interest of the society, the marriage or
the marital relationship needs to be surrounded by every safeguard for the cause specified by law. Divorce is
permitted only for a grave reason otherwise given another alternative.

2. Different Theories of Divorce

2.1 Fault Theory:

Under this theory, marriage can be ended when one party to the marriage is responsible or liable for the
offence under matrimonial offences done against another spouse. Only the innocent spouse can seek this
remedy. The only drawback of this theory is when both the spouse are at fault, then no one can seek these
remedy of divorce.

2.2 Mutual Consent:

Under this theory, the marriage can be dissolved by mutual consent. If both the spouse mutually gives their
consents to end the marriage, they can take the divorce. But many philosophers criticise this theory as this
concept is immoral and leads to hasty divorce.

2.3 Irretrievable Breakdown:

According to this theory, the dissolution of marriage happens due to failure of the matrimonial relationship.
The divorce can be taken by the spouse as a last resort i.e. when both of them are not able to live together
again.

3. Divorce under the Hindu Marriage Act, 1955

In the Hindu Marriage Act, there are some provisions given regarding a valid divorce, i.e. when the spouse
can get divorce or appeal for dissolution of marriage in the court of law. For the interest of the society, the
marriage or the marital relationship needs to be surrounded by every safeguard for the cause specified by
law. Divorce is permitted only for a grave reason otherwise given another alternative.

The Hindu Marriage Act is based on the fault theory in which any one of the aggrieved spouses (Section
13(1)) can approach the court of law and seek the remedy of divorce. Section 13(2) provides the grounds on
which only the wife can approach the court of law and seek the remedy of divorce.
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4. Grounds of Divorce as per the Hindu Marriage Act

4.1 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 hometown 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.

 Essential of Adultery

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

4.2 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

- What is considered as Mental Cruelty against Husband by wife:

- Humiliating the husband in front of his family and friends.
- Undertaking the termination of pregnancy without husband consent.
- Making false allegation against him.
- Denial for Martial Physical Relationship without a valid reason.
- Wife having affair.
- Wife living an immoral life.
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- The constant demand for money.

- Aggressive and uncontrollable behaviour of Wife.
- 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

- False accusation of adultery.

- The demand for dowry.
- Impotency of Husband.
- Force to abort the child.
- The problem of drunkenness of husband.
- Husband having affairs.
- The husband lives an immoral life.
- Aggressive and uncontrollable behaviour of the husband.
- Humiliating the wife in front of family and friends

4.3 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.

 Essentials

- Permanent abandonment of the other spouse.

- Rejection of the obligation of marriage.
- Without any reasonable justification.
- 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.

4.4 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.
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 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.

4.5 Insanity

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

4.6 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

In this case, 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.

4.7 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 dissolution of marriage
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4.8 Renunciation

 It means when one of the spouses decide 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 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.

4.9 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.

 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.

5. 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.

6. No petition for Divorce within one year of Marriage

As per Section 14, no Court will entertain the petition of divorce within the one year of the marriage. But
can be entertained if the matter is related to bigamy, and where the consent of the spouse was taken through
misrepresentation, fraud, undue influence etc.

7. Remarriage of Divorce Person

As per Section 15, after the marriage gets dissolved and no further petition was filed by any of the spouses
against the order of the court and the time for appeal has expired. At that time, it is assumed that both the
spouse is satisfied. Then only the divorced person can marry again.
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8. Conclusion
The Hindu Marriage Act, 1955 provides various provision regarding divorce. The Hindu Marriage Act
defines “Divorce as a Dissolution of Marriage”. The main three theories related to divorce are Fault Theory,
Mutual Consent Concept, and irretrievable theory. In India, the Fault theory works in the matter of the
divorce. Under this theory, marriage can be ended when one of the spouses is responsible or liable for the
offence under matrimonial offences. The innocent spouse can seek the remedy of divorce. Under the Hindu
Marriage Act, the basic grounds on which the Hindu women can seek the remedy of divorce are Adultery,
Desertion, Conversion, Leprosy, Cruelty etc. But many philosophers criticise the concept of Divorce. The
Hindu married women can also apply for the maintenance under section 125 of the Criminal procedure code.
So, the spouse who is innocent can approach the court and can seek the remedy of divorce.