Grounds of divorce

The concept of Divorce as discussed earlier was unknown and non-existent in traditional Hindu Laws. This
was so because it was considered as an indissoluble tie. It is interesting to note here that although it was
not allowed according to the general Hindu Law, it was nonetheless recognised in certain castes of Hindu
community based upon custom.88 States such as Madras, Bombay and Saurashtra had their own state
laws where divorce was allowed on certain specified grounds before the Hindu Marriage Act came into
existence. While in all other states, there was no such provision for divorce.

The need for reforms in the Hindu law of marriage and divorce was felt even during the regime of the
British in India.90 The enlightened and progressive Hindu women clamoured that the laws of marriage
and divorce were quite stringent and caused great hardships.

A committee under the chairmanship of B.N. Rau was formed in 1941 to submit a report on the feasibility
of codifying Hindu law.92 The drafts report on marriage and divorce were also accompanied with the
report.93 Then, a Hindu code was referred to a select committee and after numerous changes and
suitable amendments, the Hindu code was finally adopted by the Parliament and the first Act which was
passed by the Parliament was the Hindu Marriage Act, 1955.

The Hindu Marriage Act, 1955 is a piece of central legislation which is uniformly applicable to all Hindus.
Section 13 of the said Act deals with the grounds on which Divorce can be sought by either parties of the
marriage.95 Following are the grounds under section 13 (1) on which either party to the marriage are
entitled to seek the decree of divorce:

Adultery: Section 13(1)(i) prescribes that a decree of divorce shall be sought on the ground that the
respondent after the solemnisation of marriage, had voluntary sexual intercourse with any person other
than his or her spouse.96 Initially a divorce could be granted only if such spouse was living in adultery,
but in the case of Veera Reddy v. Kista Amma97, it was held by the court that even a ‘single act’ of
adultery would be a sufficient ground for divorce.98 Subsequently, by the Marriage Laws Amendment
Act, 1976, the position under the Hindu Marriage Act changed on the lines of the above judgement and
now even a single act of adultery is considered as enough for the decree of divorce. 99 Thus, the vigour of
‘living in adultery has been reduced. The same was also held in Sanjukta Pradhan v. Lakshminarain
Pradhan

Burden of Proof: Adultery is a matrimonial offence as well as criminal one.101 The burden of proof in a
criminal case is stricter because the act is to be proved beyond reasonable doubt whereas in a
matrimonial offence, it is not so strict because the evidence in this case is based on inferences and
probabilities.102 In the case of Hargovind Soni v. Ram Dulari103 , the High Court observed that adultery
need not be proved beyond all reasonable doubts, instead, it can be established by preponderance of
probabilities.104 The same was held in Pramila Devi v. Amarjeet Singh105 wherein the court observed
that no ‘direct evidence’ is required to prove the matrimonial offence of adultery, the existence of
circumstantial evidence is sufficient.

Cruelty: It is a ground for divorce and judicial separation under section 13(1)(ia) and section 10(1) of the
Hindu Marriage Act respectively. Cruelty was defined in Dastane v. Dastane107 as “Conduct of such
character as to have caused danger to life, limb or health (bodily or mentally), or as to give rise to a
reasonable apprehension of such danger.”108 Cruelty is usually classified into two following categories:
a. Physical Cruelty- Physical violence is relatively easy to determine and the courts would have no
problem to arrive at a decision. Even a single act of physical violence is enough to come under the
purview of cruelty as held in Marry v. Raghavan.109 b. Mental Cruelty- An act of mental cruelty is far
more severe than a physical cruelty. 110 It is also comparatively difficult for the courts to ascertain
mental torture and harassment. In Pravin Mehta v. Inderjeet Mehta111, the court has defined mental
cruelty as ‘the state of mind

In Shobha Rani v. Madhukar Reddi112, the court observed that the question whether a particular act or
conduct would amount to cruelty or not would always depend on the facts of each case, the court further
held, the two elements which are required to be proved are the nature of the cruel treatment and its
effect on the aggrieved party.113 Some Instances of Cruelty are as follows:  false accusations of adultery
or unchastity  demand of dowry  refusal to have marital intercourse/children

impotency  birth of child  drunkenness  threat to commit suicide  wife’s writing false complaints to
employer of the husband  incompatibility of temperament  irretrievable breakdown of marriage

Desertion: Under section 13(1)(ib), a decree of divorce can be obtained from the court on the ground that
the other party has deserted the petitioner for a continuous period of not less than two years
immediately preceding the presentation of the petition. An explanation after clause (vii) of (13)(1) was
inserted by the Amending Act of 1976 which is as follows: “Explanation- In this sub-section, the
expression "desertion" means the desertion of the petitioner by the other party to the marriage without
reasonable cause and without the consent or against the wish of such party, and includes the willful
neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate
expression shall be construed accordingly.” 114 Even before the amendment, in Bipin Chandra v.
Prabhavati115, the court had observed that so far as the deserting spouse is consent two essential
conditions must be met to constitute the offence of ‘desertion’ namely116:  Factum of separation, and 
The intention to bring cohabitation to an end (animus deserendi) Similarly, two elements are essential
which are required for the deserted spouse117:  The absence of consent, and  Absence of conduct
giving reasonable cause to the spouse leaving the matrimonial home to form necessary intention
aforesaid.

In the case of Lachman Utmamchand Kirpalani v. Meena118, the judgement in the above case was
reiterated stating that for desertion to be proved, the petitioner has to prove that he/she was
intentionally abandoned without reasonable cause; that there was no bona fide attempt by the
respondent to return; he/she did not provide the respondent a reasonable cause to stay away etc.119

Conversion or Change of Religion: under section 13(1)(ii), if one of the spouses adopts another religion,
he/she does ceases to be a Hindu. The marriage however would not stand dissolved merely because the
other spouse embraced another religion.120 Also, the spouse who did not change his/her religion is
entitled to file a petition for a decree of divorce on the ground that the other spouse has ceased to be a
Hindu by embracing another religion. 121 In the case of Lily Thomas v. Union of India122 , the husband of
the petitioner had converted for the sole purpose of marrying another woman without divorcing the
previous one.123 It was pleaded that since he had converted to Islam, he could keep up to four wives at a
time and thus could not be prosecuted for bigamy u/s 494 of the Indian Penal Code.124 It was further
contended that the marriage automatically stood dissolved u/s 13 of the Hindu Marriage Act because of
the conversion.125 The Supreme Court rejected the two contentions and held that conversion or
apostasy does not automatically dissolve a marriage already solemnised under the Hindu Marriage Act.
126 Section 13 of the act only provides the ground for divorce. Further, if a person marries a second time
during the lifetime of his wife, such marriage apart from being void u/s 11 and 17 of the Hindu Marriage
Act, would also constitute the offence of bigamy u/s 494 of IPC.127 V. Insanity: If it has been established
that the other spouse has been incurably of unsound mind or 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 him/her, a
decree of divorce can be granted by the court.128 The Hindu Marriage Act goes on to specify the
meaning of ‘mental disorder’ under explanation to the section, which appears as under: “the expression
"mental disorder" means mental illness, arrested or incomplete development of mind, psychopathic
disorder or any other disorder or disability of mind and include schizophrenia;” 129 In the case of Ram
Narain Gupta v. Rajeshwari Gupta130, the Supreme Court held that by merely branding the spouse as
schizophrenic is not sufficient to prove mental disorder for the purpose of divorce u/s 13(1)(iii). The said
disease should be such to justify the reasonable apprehension that it would not be possible or safe for
the petitioner to live the spouse.131 Further, in Nirmala Manohar Jagesha v. Manohar Shivram
Jagesha132, the court held that a few stray instances indicating a petulant behaviour does not amount to
mental disorder for the purpose of section 13(1 n 13(1)(iii) because such alleged mental disorder is not of
such a kind that the petitioner cannot be reasonably expected to live with the other spouse.133 Also, a
decree of divorce would not be granted u/s 13(1)(iii) of the Hindu Marriage Act where the spouse suffers
from curable epilepsy.134 The onus of proof that the respondent is of incurably unsound mind or that
he/she is suffering from a mental disorder lies on the petitioner.135 VI. Leprosy: if a spouse is suffering
from a ‘virulent and incurable form of leprosy’, it would constitute a ground for divorce.136 The
petitioner has to prove that his/her spouse has been suffering from such form of leprosy which is not only
‘virulent’ but also incurable.

Venereal Disease: Venereal disease, if in a communicable form, constitutes a ground for obtaining a
decree of divorce under section 13(1)(v) of the Hindu Marriage Act.138 Thus, the respondent must not
only be suffering from a venereal disease, like syphilis, gonorrhoea etc., but also the disease should be
such as to infect others who come in contact with the infected.139 VIII. Renunciation of the world:
Section 13(1)(vi) makes the ‘renouncement of world by entering any religious order’ a ground for divorce.
Modern codified Hindu law lays down that a spouse may seek divorce if the other party has renounced
the world and has entered a holy order.140 A person who does this is considered as civilly dead. Such
renunciation by entering into a religious order must be unequivocal & absolute. Supreme Court in Sita
Das v. Sant Ram141 held that the renunciation must be complete and final and must be effected with the
ceremonies and rites prescribed by the order which he enters.142 IX. Presumption of Death: Under the
Act, a person is presumed to be dead, if he/she has not been heard of as being alive for a period of at
least seven years. The burden of proof that the whereabouts of the respondent are not known for the
requisite period is on the petitioner under all the matrimonial laws. 143 In view of section 108 of the
Indian Evidence Act, 1872, the burden to prove that a person has not been heard of for more than seven
years, is still on the person who affirms it.144 X. Unavoidable Judicial Separation: Section 13(1A)(i)
provides that either of the parties to a marriage may seek dissolution of marriage on the ground “that
there has been no resumption of cohabitation as between the parties to the marriage for a period of one
year or upwards after the passing of a decree for judicial separation in a proceeding to which they were
parties;” 145 However, while availing the ground of divorce provided under this clause, provisions of
section 23(1)(a) have also to be kept in mind, which requires that “the petitioner should not in any way
take advantage of his/her own wrong or disability for the purpose of such relief”.146 Thus, to justify the
decree of divorce under the provisions of 13(1) and 13(1-A) and 23(1) the essentials are147: i. A decree of
judicial separation between the petitioner and the respondent, whosoever might be the decree holder; ii.
Non-resumption of cohabitation between the parties for a period of one year or upwards iii. The
petitioner should not be in any way taking advantage of his or her wrong or disability iv. Non-existent of
any other legal ground warranting refusal of relief prayed. This clause enables even a defaulting party and
not merely an aggrieved party to obtain a decree for dissolution of marriage.

Non-resumption of cohabitation after passing of a decree for restitution of conjugal rights: For a period of
one year or upwards after the passing of a decree for restitution of conjugal rights there has been no
restitution of conjugal rights between the parties also constitutes a ground for divorce under of the Act.
Under this clause also, the court would have to consider under section 23(1) whether the petitioner is
taking advantage of his/her wrong in the pleading that there has been no restitution of conjugal rights
after the passing of a decree for that purpose, and thus, the provisions of section 13(1-A)(ii) are subject to
the provisions of section 23(1)(a). Grounds which are available only to the wife are as follows: Besides the
grounds enumerated above, a wife has been provided four additional grounds of divorce under Section
13(2) of the Hindu Marriage Act, 1955. These are as followsA. Pre-Act Polygamous Marriage: This clause
states the ground for divorce as, “That the husband has another wife from before the commencement of
the Act, alive at the time of the solemnization of the marriage of the petitioner. In the case of Venkatame
v. Patil148 where a man had two wives, one of whom sued for divorce, and while the petition was
pending, he divorced the second wife.149 Consequently, he then averred that since he was left only with
one wife, and the petition should be dismissed. The Court out rightly rejected this plea.150 Such a ground
is available if both the marriages are valid marriages & the other wife (2nd wife) should be present at the
time of filing of the petition. However, today this ground is no more of practical importance.151 B. Rape,
Sodomy or Bestiality: Under this clause, a divorce petition can be presented if the husband has, since the
solemnization of the marriage, been guilty of rape, sodomy or bestiality.152 C. Non-Resumption of
Cohabitation After a Decree/Order Of Maintenance: If a wife has obtained an order of maintenance in
proceedings under Section 125, Cr.P.C., 1973 or a decree under Section 18, Hindu Adoption &
Maintenance Act, 1956 & cohabitation has not been resumed between parties after one year or upwards,
then this is a valid ground for suing for divorce.153 D. Repudiation of Marriage: This provision provides a
ground for divorce to the wife when the marriage was solemnized before she attained the age of fifteen
years, and she has repudiated the marriage, but before the age of eighteen. Such repudiation may be
express (written or spoken words) or may be implied from the conduct of the wife (left husband &
refused to come back). Moreover, this right (added by the 1976 amendment) has only a retrospective
effect i.e. it can be invoked irrespective of the fact that the marriage was solemnized before or after such
amendment.