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Adultery Divorce Hindu Marriage Act 1955

Indian Divorce Act 1869 Indian Penal Code 1860

Section 13 of Hindu
Marriage Act, 1955
August 2, 2024  16972  0

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This article has been written by Oishika

Banerji and has been subsequently updated
by Jaanvi Jolly. This article attempts to
provide detailed analysis of Section 13 of the
Hindu Marriage Act, 1955. It discusses the
recent developments in the arena of divorce
by mutual consent. It also provides the latest
interpretations and case laws on the grounds
of divorce. The brief history of the law on
divorce along with a discussion of the changes
brought about in the Hindu Marriage Act by
the Uniform Civil Code enacted in the state of
Uttarakhand.

Table of Contents

1. Introduction
2. History of the law on divorce
3. Application of Hindu Marriage Act, 1955
4. Types of marriages under Hindu Marriage
Act, 1955
5. Theories of divorce found under Hindu
Marriage Act, 1955
5.1. The Fault based theory
5.2. The Irretrievable Breakdown Theory
5.3. The Consent Theory
6. Section 13 of Hindu Marriage Act, 1955
7. General grounds for divorce
7.1. Section 13(1)(i) : divorce on the ground
of adultery
7.1.1. Judicial decisions discussing adultery as a
ground for divorce
7.2. Section 13(1)(i-a) : divorce on the
ground of cruelty
7.2.1. Judicial decisions discussing cruelty as a
ground for divorce
7.3. Section 13(1)(i-b) : divorce on the
ground of desertion
7.3.1. Judicial decisions discussing desertion as
a ground for divorce
7.4. Section 13(1)(ii) : divorce on the ground
of Conversion
7.4.1. Judicial decisions recognizing conversion
as a ground for divorce
7.5. Section 13(1)(iii) : divorce on the ground
of unsoundness of mind
7.5.1. Judicial decisions discussing divorce on
the ground of unsoundness of mind
7.6. Section 13(1)(iv) : divorce on the ground
of leprosy
7.7. Section 13(1)(v) : divorce on the ground
of respondent suffering from venereal
disease of communicable form
7.7.1. Judicial decisions on the grounds of
venereal disease
7.8. Section 13(1)(vi) : divorce on the ground
of renunciation of the world by entering a
religious order
7.9. Section 13(1)(vii) : divorce on the
ground of presumption of death
7.9.1. Judicial decisions on the ground of
presumption of death as a ground of
divorce
8. Section 13(1A) of Hindu Marriage Act,
1955
8.1. Judicial decisions explaining Section
13(1A) of the Act of 1955
9. Section 13(2) : special grounds for
divorce available only to the wife
9.1. Section 13(2)(i) : polygamous marriage
solemnised prior to the HMA, 1955
9.2. Section 13(2)(ii) : husband guilty of
committing rape, sodomy or bestiality
9.3. Section 13(2)(iii) : decree or order of
maintenance
9.4. Section 13(2)(iv) : the option of puberty
10. Section 13A : alternate relief in divorce
proceedings
11. Section 13B : divorce by mutual consent
11.1. Tracing the development in the law
relating to divorce by mutual consent
under Section 13B
11.1.1. Sureshta Devi vs. Om Prakash (1991)
11.1.2. Anil Kumar Jain vs. Maya Jain (2009)
11.1.3. Hitesh Bhatnagar vs. Deepa Bhatnagar
(2011)
11.1.4. Amardeep Singh vs. Harveen Kaur
(2017)
11.1.5. Rajat Gupta vs. Rupali Gupta (2018)
11.1.6. Shilpa Sailesh vs. Varun Sreenivasan
(2023)
12. Conclusion
13. Frequently Asked Questions (FAQs)
13.1. What changes were brought about in
the law of divorce under the HMA, 1955
by the 1976 Amendment?
13.2. What changes were brought about in
the Law of divorce under the Uniform
Civil Code in Uttrakhand?
14. What other provisions are related to
divorce under the Hindu Marriage Act,
1955?
15. References

Introduction
The Chhattisgarh High Court in the recent
case of Saroj Lata Rajak vs. Vikas Kumar
Rajak (2022), made an apt comment, that,
“The matrimonial Home cannot be built with
bricks and stones but with love, respect and
care between the spouses”. Where there are
no roses left, but only thorns, It is imperative
in the interest of justice that such marital
bonds must be allowed to be dissolved. It has
been acknowledged that in some cases
divorce is not always a detestable step, rather
it is a need of contemporary society.
However, the acknowledgement of this reality
did not exist earlier.

The Hindu Marriage Act, 1955 was considered

a watershed legislation as it brought about a
radical change in the institution of marriage
by the introduction of the concept of divorce
under Section 13. Herein, the marital remedy
of divorce was introduced for the first time.
The ground of adultery becomes available if
the other spouse, after the solemnization of
marriage, had sexual intercourse with a
person other than his/her spouse. The ground
of conversion is available if the respondent
has converted to another religion. The
dissolution of marriage can also be sought if
the respondent has been suffering from
unsoundness of mind or a mental disorder or
has been suffering from venereal disease in a
communicable form. Additionally, if there is
no resumption of cohabitation for a period of
2 years or upwards after the decree of judicial
separation is passed or in case there is a
failure to comply with the decree of restitution
of conjugal rights for a minimum period of 1
year, then either of the spouses may seek a
divorce decree. All of the above-mentioned
grounds are combined in the category of the
fault-based grounds of divorce. However, The
ground of unsoundness of mind or suffering
from an incurable form of leprosy or venereal
disease has been unheard of for seven years.
Although, the supervening circumstances are
beyond the control of the party, nevertheless,
they have the potential to frustrate the
marital relationship. Therefore, the Law
Commission of India has identified these
events as valid grounds for divorce,
symbolising them as grounds for frustration.

History of the law on

divorce
Under the traditional Hindu law, marriage was
a sacred union of the souls and therefore the
provision for divorce was not provided. It was
the first time under the Hindu Marriage Act,
1955, that the right to seek divorce on the
grounds provided in the Act was conferred
upon the parties.

The earliest evidence of divorce is found in

Roman law, where both marriage and divorce
were considered the private acts of the
parties and they could get into a marriage or
get out of one at their own will. There was the
absence of any formalities or intervention by
an authority.

In England before 1857, an Act of the

Parliament was required to dissolve a
marriage. Therefore, after the demand by the
masses, divorce was recognised under the
Matrimonial Causes Act 1857. However, it
only recognised adultery as the sole ground
for divorce. This clarifies that in the
beginning, the only grounds available to seek
divorce were fault-based ground. Divorce as a
legal option for separation was introduced in
British India for the first time in the year 1869
which was majorly for the Christians seeking
a divorce.

The Special Marriage Act, 1954 was the first

legislation that recognised the concept of
divorce, followed by the Hindu Marriage Act,
1955, which was the first law, recognising
divorce among the Hindus. These statutes
provide the provisions for divorce, however,
the term divorce is not expressly defined, It
merely allows for the dissolution of a
marriage, if any of the given grounds are
satisfied. Before the coming up of these
legislations, only the death of one of the
partners was recognised to bring an end to a
marital bond. Even now, the initiation of a
divorce proceeding by either of the spouses is
not just frowned upon, rather the spouses are
labelled, and there exists a strong bias
against divorced people. It is considered some
sort of disability. During the British era, the
Divorce Act of 1869 existed which was
majorly applicable to the Christian population
and had a very specific goal to provide a
matrimonial remedy for the Britishers who
had settled in India. Apart from this, there
was an absence of any legislation dealing with
the topic.

Application of Hindu
Marriage Act, 1955
As per Section 2 of the Hindu Marriage Act, its
provisions are applicable –

1. To a person who is a Hindu by religion in

any of its forms or developments;

2. To a person who is a Buddhist, Jain or Sikh

religion;

3. To a person who is not a Muslim, Christian,

Parsi, or Jew by religion and is domiciled in
the territory to which this Act extends.
Unless it is proved that he would not be
governed by the traditional Hindu law or its
customs.

Types of marriages under

Hindu Marriage Act, 1955
The Hindu Marriage Act,1955 envisages three
types of marital bonds, that are, valid
marriage, voidable marriage, and void
marriage.

Void marriages are discussed under Section

11. Any marriage solemnised in violation of
Section 5 (i), (iv), and (v) is declared to be
void ab initio and has no sanctity in law. Any
marriage which is a bigamous marriage or is
solemnised within prohibited relationships or
within sapindas is void marriage. The parties
may get a decree of nullity in such a case,
however it is not necessary.

Voidable marriages are discussed under

Section 12, wherein some infirmity exists in
the marriage. For example, whether consent
is obtained by fraud or force or by concealing
a material fact or where the wife was
pregnant at the time with the child of some
other man and the petitioner was unaware of
this. These marriages may be annulled by the
parties by seeking a decree of nullity, thus the
process of getting it annulled has to be
performed by the parties. They have the
discretion to take the matter to the court or
not. If they do not file for annulment within
the given period the marriage converts into a
valid marriage and if they file for an
annulment within the given time period the
marriage becomes void ab initio.

Valid marriages are the ones where all the

conditions given under Section 5 etc are
fulfilled. It is only in valid marriages that the
parties can seek a divorce. Valid marriages
also include voidable marriages that were not
annulled by the parties in the period
prescribed.

Theories of divorce found

under Hindu Marriage Act,
1955
Under the Hindu Marriage Act, 1955, three
theories have been accommodated, which can
be divided into two categories, fault and no-
fault theories.

The Fault based theory

According to this theory, any party could file a
petition for divorce when the other spouse
was guilty of a marital offence, for example,
adultery, cruelty, desertion, etc. Under this
theory, it is only the innocent party who gets
a right to dissolve the marriage via a decree
of divorce. The innocent part is considered as
the victim and is therefore offered an option
to dissolve their marriage.

The Irretrievable Breakdown

Theory
According to this theory, the party filing for
the divorce does not have to prove any fault
on the part of the other spouse. Under this
theory, if the spouses are of incompatible
nature or have irreconcilable differences, that
cannot be resolved or repaired they can seek
dissolution of marriage. in India, the ground
of irretrievable breakdown to seek divorce has
not been recognised. However, we see the
presence of this theory under Section 13 (1-
A). Where even after the decree for judicial
separation or for restitution of conjugal rights
has been passed between the parties there
has been no resumption of cohabitation for a
minimum period of one year.

The Consent Theory

This theory allows both parties to the
marriage to seek a dissolution via a joint
motion. Where both parties agree that they
do not wish to continue their marital bond.
This theory was recognised by the 1976
Amendment to the Hindu Marriage Act 1955,
which introduced Section 13B providing for
divorce by mutual consent.

Section 13 of Hindu
Marriage Act, 1955
The Hindu Marriage Act, 1955 seeks to
protect the sanctity of a marriage at every
step. Section 9, which provides for restitution
of conjugal rights, provides for an attempt to
reinstate the spouses in the conjugal
environment of each other and attempt to
resurrect the performance of marital
obligations.

Further Section 10 provides for judicial

separation which is a preliminary step to
divorce. Section 13A provides that where a
petition for divorce has been filed, the court
on the application of its judicial mind and with
reference to the circumstances of the case is
empowered to pass a decree for judicial
separation instead of a decree for divorce if it
feels that there is still scope for reconciliation
between the parties.

Section 13B, which provides for divorce by

mutual consent also provides for sufficient
time between the two motions to enable the
parties to rethink their decision to separate
and attempt reconciliation of their differences,
if possible. Section 23(2) and (3) provide for
the power of the court to attempt
reconciliation between the parties, and for
this purpose, the proceedings can be
adjourned for a period not exceeding 15 days
and the matter can be referred to a mediator
to attempt reconciliation.

Additionally, Section 9 of the Family Courts

Act, 1984 provides that a Family Court shall in
every proceeding in the first instance assist
and persuade the parties to arrive at a
settlement. In every case where the Family
Court thinks that there is a possibility of
settlement between the parties, it is
empowered to adjourn the proceedings and
make attempts to effect a settlement.
Therefore, it is abundantly clear that the aim
of every marriage-related legislation is to
ensure the continuity of marital bonds.

The marriage cannot be forced on individuals

and the court must not act as a hangman or
as a counsellor to compel the parties to
continue to live as husband and wife. A
marriage, especially where the meeting of
minds between them has irrevocably ended.

Section 13(1) of the Hindu Marriage Act, 1955

presents the general grounds of divorce that
are available to both parties involved in a
marriage. Clause 1-A was introduced in the
Act of 1955 by the Hindu Marriage
(Amendment) Act, 1964, which provides two
further grounds for obtaining a divorce
decree. Section 13(2) specifically provides
four grounds that can be availed for getting a
divorce only by the wife. The grounds for
divorce can be viewed from two perspectives:

1. Marriage is an exclusive relationship, and if

it is not, it is no longer considered
marriage. Marriage also indicates that the
parties would live in peace and trust with
one another. Cruelty, or the threat of
cruelty, undercuts this fundamental
condition of marriage. The essential
premise of marriage is that both parties
will live together, however, if one party
abandons the other, this premise is no
longer valid. As a result, infidelity, abuse,
and abandonment are all detrimental to a
marriage’s basis.

2. From a different perspective, the above

acts are marital offences committed by one
of the marriage partners. There is a
semblance of crime here. Divorce is viewed
in this light as a means of punishing the
partner who has proved himself or herself
unworthy of association. The guilt or
offence theory of divorce which states that
the offence must be one that is recognised
as a basis for divorce is the consequence of
the discussed perception.

General grounds for

divorce
There are seven general grounds as provided
by Section 13(1) which can be availed by both
parties in a marriage in order to dissolve the
same. The grounds of cruelty and desertion,
which were originally the grounds only to seek
judicial separation were by the Amendment of
1976 added as the grounds to also seek
divorce. Further, apart from these 7 grounds,
Section 13(2) provides for four additional
grounds only to the wife. Later on, by the
1976 Amendment Act, Section 13B was also
added, which provided for divorce by mutual
consent.

Section 13(1)(i) : divorce on

the ground of adultery
This Section deals with adultery as a ground
for divorce that is available to both parties in
a marriage. Adultery is defined as voluntary
sexual activity outside of marriage with any
person other than one’s spouse. It is the
petitioner’s responsibility to show that there
was a valid marriage and that the respondent
had sexual relations with someone other than
him or her. At the time of the act, the
marriage must be intact. To seek divorce on
the ground of adultery, even a single
adulterous act is sufficient on the part of the
respondent and there is no requirement to
prove that he or she has been living in an
adulterous relationship. The sexual act must
be voluntary and such ground cannot be
claimed in the case of rape. Such sexual acts
must be committed during the continence of
the marriage and the question of whether a
party was sexually active prior to the
marriage leading to premarital pregnancy or
the man fathering a child would not be
grounds to seek divorce claiming adultery.

As per Section 23(1)(b) of the Hindu Marriage

Act, 1955, the Court is duty-bound to ensure
that the petitioner must not have been an
accessory to or had connived with or
condoned the act of adultery complained of.
In such a case, he would lose the right to
seek divorce on the grounds of adultery.

Further, the question of the interpretation of

the term ‘any person’ in this section is open
to interpretation and the position is not clear
after the landmark cases of Navtej Singh
Johar vs. Union of India, (2018) wherein the
homosexual and queer relationships were
given legal recognition and the case of
National Legal Service Authority of India vs.
Union of India, (2014) wherein the
transgender community was given recognition
as the third gender.

The question is open, whether a gay or a

lesbian relationship or a sexual relationship
with a transgender would also fall under the
term ‘any person’. In other words, if a man,
married to a woman, is involved in sexual
activity with another man, would this be
considered an adulterous act for Section 13?

Before these judgements the only legally

recognised relationship was between the
heterosexual individual and therefore,
adultery was only interpreted to mean the
sexual act outside marriage with a person
other than one’s spouse. In the case of a wife
the term ‘any person’ was interpreted to be a
man and in the case of a husband, a woman.
Now after these landmark judgements, the
term ‘any person’ needs to be expanded in its
amplitude.

If this is not done, the sexual relations of a

wife with another woman would not give the
aggrieved husband a ground to seek divorce,
however, if such sexual act would have been
committed by the wife with a man, the
ground would have been available. This
interpretation does not fulfil the purpose of
the provision, which is to protect the sanctity
of marriage.

Judicial decisions discussing

adultery as a ground for divorce
The Madras High Court had ruled in
Subbarama Reddiar vs Saraswathi Ammal
(1996), that a single act of adultery is
sufficient grounds for divorce or judicial
separation. The unwritten taboos and laws of
social decency in this nation, particularly in
village regions, must necessarily be taken into
account. Unless an excuse is given that is
consistent with an innocent interpretation, the
only conclusion that the court of law can draw
from the fact that an unknown person was
found alone with a young woman past
midnight in her apartment, in an actual
physical juxtaposition, is that the two have
committed an act of adultery together.

In Joseph Shine vs Union of India (2018), the

Supreme Court declared that adultery is not a
crime and repealed Section 497 of the Indian
Penal Code, 1860. It has been noticed that
two people may separate if one of them
cheats, but attaching crime to infidelity is
taking things too far. Also under the provision
punishing adultery, the woman was
considered to be the property of the husband
as it was the husband who was given the
right to prosecute the other man and not the
wife. Further, the wife was not even
considered as an abettor to the crime.
Therefore, it was clear that the provision only
sought to protect the proprietary rights of the
husband over his wife. Adultery is a private
problem, and how a couple handles it is a
matter of extreme privacy. This lack of moral
commitment in marriage, which damages the
relationship, has been left to the couple’s
discretion. They have the option to proceed
with the divorce if they so want.

Section 13(1)(i-a) : divorce

on the ground of cruelty
“Cruelty is just one of the splinters of a
collapsing structure where the substratum of
the marriage has broken down in a way in
which the structure cannot be preserved or
rebuilt”

Cruelty was not a ground for divorce prior to

1976. It was only a ground to seek judicial
separation. Cruelty was made a ground for
seeking a divorce by the 1976 Amendment
Act under Section 13(1)(i-a). According to the
Oxford Dictionary, the term “cruelty” has
been defined as the ‘ disposition to inflict
suffering, it’s been used to describe human
behaviour or conduct in general. In matters of
matrimony, It is how you behave with the
spouse and includes a person’s conduct
towards the matrimonial obligation. It is a
term that is subjective and can be interpreted
as per the facts of each case. Cruelty can be
mental or physical, and it can be purposeful
or inadvertent. Cruelty can take many forms,
including physical and emotional abuse.
Physically abusing or injuring one’s spouse
qualifies as physical cruelty. It is difficult to
decide as to what constitutes mental cruelty.
Cruelty is also an offence under Section 498A
of the Indian Penal Code, 1860.

Some of the essential elements that

constitute cruelty have been presented
hereunder:

1. The alleged wrongdoing must be “grave

and serious.”

2. It is unreasonable to expect the petitioner

to live with the respondent.

3. It has to be more serious than the “normal

wear and tear of married life.”

False charges of infidelity, dowry demands,

alcoholic, wife’s incompetency, the partner’s
immoral lifestyle, incompatibility, and violent
partner are just a few examples of mental
cruelty.

Mental cruelty is a state of mind. It is a

feeling of deep anguish, disappointment, and
frustration in one spouse caused by the
conduct of the other for a long time.

Cruelty is subjective and what may be cruelty

in one case may not be cruelty in another. It
differs from person to person depending on
the facts and circumstances of the case.
Factors like- upbringing of either party,
education level, social and cultural
background, social and financial status,
customs and traditions, religious beliefs,
human values, etc. would play an important
role with reference to the circumstances of
the case.

Further, the concept of mentality cannot

remain static. It is bound to change with the
passage of time. What may be mental cruelty
today may not be mental cruelty with the
passage of time. Therefore, there cannot be a
straight jacket formula to determine cruelty.

Under Section 23(1)(b) of the Hindu Marriage

Act, 1955, the court is duty-bound to check
that the petitioner has not in any manner
condoned the cruelty meted out by the
respondent. The condonation acts as a clean
slate upon the cruelty in the relationship.
However, if the acts of cruelty that were once
condoned by the spouse are repeated, the
divorce petition cannot be dismissed under
Section 23(1)(b) as clarified by the Allahabad
High Court in the case of Richa Mumgaie vs.
Harendra Prasad (2024).

Judicial decisions discussing cruelty

as a ground for divorce
Prior to 1976, cruelty was not a ground for
divorce but to seek judicial separation. It is
only by the 1976 amendment that it has been
added as a ground for divorce. Under Section
10, cruelty had to be severe enough to make
the plaintiff reasonably fear that living with
the other party would be harmful or injurious.
Previously, this had to be proven to seek
judicial separation, but this requirement has
now been removed by the 1976 Amendment
to the Hindu Marriage Act. Resultantly, it is no
longer necessary to prove such an existence
of apprehension. Now, what is required is that
it would be sufficient to show that the conduct
of one spouse is so abnormal or below the
accepted norm that the other spouse cannot
reasonably be expected to live in such a
marital bond. The conduct is no longer
required to be so atrociously abominable,
which would cause a reasonable apprehension
that it is injurious or harmful to cohabit.

While deciding on the case of Savitri Pandey

vs Prem Chandra Pandey (2002), the
Supreme Court of India observed that cruelty
has not been defined under the Hindu
Marriage Act, 1955, but it is considered in
marital problems as conduct that endangers
the petitioner’s life with the respondent.
Cruelty is defined as an act that endangers a
person’s life, limb, or health. Cruelty, for the
act, is that one spouse has handled the other
and expressed such emotions against her or
him as to have inflicted bodily damage, or to
have created cheap anxiety of bodily injury,
suffering, or to have wounded health. Cruelty
may be both physical and emotional. Another
spouse’s behaviour that creates mental agony
or anxiety about the opposite spouse’s marital
situation is referred to as mental cruelty.

1. In the case of Smt. Nirmala Manohar

Jagesha vs. Manohar Shivram Jagesha
(1990), the Bombay High Court held that
in a divorce case, “false, baseless,
scandalous, malicious, and unproven
allegations made in the written statement
may amount to cruelty to the other party,
and that party would be entitled to a
divorce decree on that ground.”

2. In the case of Manisha Tyagi vs. Deepak

Kumar (2010), it was held that to prove
cruelty it is enough that the conduct of one
spouse is so abnormal or below the
accepted norm that other spouse cannot be
reasonably be expected to put up with it. It
is not necessary to establish any form of
physical violence or even a reasonable
apprehension of physical violence. Where
there is continuous ill-treatment or
cessation of marital intercourse or
indifference between parties it may lead to
cruelty.

3. In the case of Joydeep Majumdar vs. Bharti

Jaiswal Majumdar (2021), the Apex Court
observed that for dissolution of marriage at
the instance of the party who alleged
mental cruelty, the impact of such mental
cruelty must be that it is not possible to
continue the marital relationship. The
wrong party cannot be expected to
condone such conduct and continue to live
with his or her spouse. The degree of
tolerance required in every case would be
different, depending from couple to couple
with reference to their background, level of
education, and the status of parties.

4. While deciding the case of Samar Ghosh vs

Jaya Ghosh (2007), the Supreme Court of
India opined that when cruelty takes the
form of harmful reproaches, complaints,
accusations, or taunts, the general rule is
that the whole marriage connection must
be evaluated. This rule is especially
important when the cruelty takes the form
of injurious reproaches, complaints,
accusations, or taunts. It is undesirable to
consider judicial pronouncements to create
certain categories of acts or conduct as
having or lacking the nature or quality that
renders them capable or incapable of
amounting to cruelty in all circumstances.
After all, it is the effect of the conduct, not
its nature, that is of paramount importance
in assessing a cruelty complaint.

5. In the case of XXX versus XXX 2021, the

Kerela High Court discussed the question of
whether ‘marital rape’ can be considered as
a ground for divorce under mental cruelty.
It was held that although IPC does not deal
with marital rape, the same can be
considered as a ground for divorce under
cruelty. Marital rape occurs when the
husband treats the body of his wife as
something owing to him and commits a
sexual act. The right to respect his or her
mental integrity encompasses bodily
integrity and therefore any disrespect or
violation of bodily integrity is a violation of
individual autonomy. Therefore, marital
rape was held to be a good ground to claim
divorce.

6. In the recent case of X vs. Y (2024), It has

been observed that accusing a spouse of
being in an extramarital relationship along
with denying the paternity of the children
would be considered mental cruelty.

7. The Telangana High Court in the case of D.

Narsimha vs. D Anita Vaishnavi (2024)
held that the act of a spouse to damage
the reputation, social, standing, or work
prospects of another would be considered
cruelty, Further depriving the spouse of
being on social media websites like
Facebook and Instagram may also amount
to cruelty.

Whether one spouse has been cruel to the

other is largely an issue of fact, and
precedent cases are of little significance. The
court should consider the parties’ physical and
mental conditions, as well as their social
status, and the impact of one spouse’s
personality and conduct on the mind of the
other, weighing all incidents and quarrels
between the spouses from that perspective.
Further, the alleged conduct must be
examined in light of the complainant’s
capacity for endurance and the extent to
which that capacity is known to the other
spouse.

Section 13(1)(i-b) : divorce

on the ground of desertion
The Indian Parliament explains in Section
13(1)(i-b) of, the Hindu Marriage Act, 1955
that “the expression ‘desertion’ means the
desertion of the petitioner by the other party
to the marriage without reasonable cause and
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
expressions shall be construed accordingly”.
In other words, desertion refers to one
spouse’s permanent absence or forsaking of
the other for no apparent cause and without
the agreement of the other. Desertion is not
merely a withdrawal from a place, rather it is
also a withdrawal from the state of things.
The law seeks to enforce the recognition and
the discharge of common obligations of a
marital state.

This desertion must be for a continuous

period of not less than two years immediately
preceding the presentation of a petition
seeking a divorce.

Justices R.P. Sethi and Y.K. Sabharwal of the

Supreme Court of India while deciding on the
case of Savitri Pandey vs Prem Chandra
Pandey (2002) had viewed that there can be
no desertion without previous cohabitation by
the parties.

Two key requirements must exist for the

offence of desertion in the case of a deserting
spouse:

1. The fact of separation, meaning that the

petitioner and the respondent should be
either physically or mentally apart from
each other (Factum Deserdendi); and

2. The intention to desert the petitioner for a

permanent period (animus deserendi).

Similarly, in the case of the deserted spouse,

two components are required, namely,

1. The absence of consent or against the will;

and

2. The lack of a reasonable cause for the

partner leaving the matrimonial house.

Further, desertion can be of two types, actual

and constructive. In actual desertion, the
respondent is the one who leaves the
matrimonial house, thereby deserting the
petitioner. In virtual assertion, the behaviour
of the respondent is such, it gives the
petitioner reasonable cause to leave the
matrimonial house. In the latter case,
although it is the petitioner who has moved
away from the household, it is the respondent
who is held guilty of desertion due to his
conduct. The burden of proof to prove
desertion is upon the petitioner up to the limit
of ‘preponderance of probabilities’. This
means that the person filing for divorce on
the grounds of desertion must prove their
case to the extent that the court is convinced
that the “existence of the fact is more
probable than its non-existence

Judicial decisions discussing

desertion as a ground for divorce
1. In the case of Baker vs. Baker, (1952), the
court observed that there may be a
desertion, although the spouses are living
in the same dwelling. The key factor is that
one spouse has forsaken and abandoned
the other. The Court explained that the
couple, although sharing a dwelling, have
effectively become two separate
households.

2. The Supreme Court of India, while dealing

with the case of Bipin Chander Jaisinghbhai
Shah vs Prabhawati (1956), had observed
that the offence of desertion is a path of
behaviour that exists independently of its
duration. However, as a ground for
divorce, it must have existed for at least 2
years before the presentation of the
petition or, in the case of a cross-charge,
of the answer. Desertion as a basis for
divorce varies from the statutory grounds
of adultery and cruelty in that the act that
leads to desertion isn’t necessarily full, but
rather inchoate. Desertion is a continuing
offence until there is a presumption of
cohabitation. It was also further held that
the petitioner bears the burden of proving
the elements required in the Section in
respect of both spouses. It is only when
the fact of separation and the animus
deserendi coexist that the offence of
desertion commences.

3. In the case of Mrs.Saraswathi Palaniappan

vs. Vinod Kumar Subbiah (2013), Justice T
Raja of the Madras High Court had
observed that when a wife has miserably
abandoned the matrimonial house, she
cannot sue for restitution of conjugal
rights, especially after a seven-year
absence and having been found guilty of
cruelty in the husband’s favour.

4. In the case of Debananda Tamuli vs

Kakumoni (2022), the Apex Court observed
that a deserted spouse must prove factors
of separation and intention on the part of
the deserting spouse to bring the
cohabitation to a permanent end. The fact
that the deserting spouse visited the
matrimonial house on the death of her
mother-in-law and stayed for 1 day, it
cannot be said that she came to the
matrimonial house to resume cohabitation,
as in such case, the intention on the part of
such spouse is not established.

5. The Allahabad High Court in the case of

Vipin Kumar Agarwal vs. Manisha Agarwal,
(2024) LiveLaw (AB) 426 held that a mere
allegation that the wife forced the husband
out of the matrimonial house would not be
sufficient to establish desertion. Rather the
husband must show that he made honest
efforts to return back to the house but was
not accepted by the wife.

Section 13(1)(ii) : divorce on

the ground of Conversion
Section 13(1)(ii) of the Hindu Marriage Act,
1955 provides that a divorce can be granted if
one spouse ceases to be Hindu and converts
to another faith without the consent of the
other. A person’s conversion to a non-Hindu
faith, such as Parsis, Islam, Christianity, or
Zoroastrianism, is known as ‘ceasing to be
Hindu’. If a person converts to Jainism,
Buddhism, or Sikhism, he remains a Hindu
since Sikhs, Jains, and Buddhists are Hindus
by faith and are covered within the ambit of
the Hindu Marriage Act, 1955.

Judicial decisions recognizing

conversion as a ground for divorce
1. In light of the case of Suresh Babu vs Leela
(2006), the Kerala High Court had
observed that the Hindu Marriage Act,
1955 does not grant any rights to a Hindu
spouse who converted to another religion.
He or she, on the other hand, exposes
himself or herself to a divorce suit by the
other spouse based on such conversion.
Under Section 13(1)(ii) of the Hindu
Marriage Act, 1955, the spouse who is still
a Hindu has the right to seek dissolution of
the marriage with the partner who has
converted to another faith since the
marriage. The right of a non-converting
spouse to remain married is unassailable.
The Act makes no provision for the non-
converting spouse’s right to convert. The
Hindu Marriage Act, 1955 also does not
mention that the conversion must be done
without the permission of the other spouse
for that spouse to file for divorce. If the
other spouse consents, a conversion does
not cease to be a conversion within the
meaning of Section 13(1)(ii).

2. The Delhi High Court had observed in the

case of Teesta Chattoraj vs. Union Of India
(2012) that while conversion to another
religion is a ground for divorce, a spouse
may be denied divorce even if the other
spouse has embraced some other religion if
the former provoked the latter to such
conversion.

Section 13(1)(iii) : divorce on

the ground of unsoundness
of mind
Section 13(1)(iii) of the Hindu Marriage Act,
1955, allows a petitioner to get a divorce on
the ground of unsoundness of mind. To seek a
divorce on such a ground, the respondent
must be either incurably of unsound mind or
should be suffering continuously or
intermittently from a mental disorder of a
kind that the petitioner cannot be reasonably
expected to live with the respondent. This
unsoundness of mind or mental disorder is a
post-marriage situation and need not
necessarily be present at the time of the
marriage. A mental disorder existing at the
time of the marriage can be a ground for
annulment of marriage under Section 12(1)
(b).

The mental disorder should be such that it

militates against the continuance of marriage.
The test to see the degree of unsoundness of
mind was given in the case of Whysall vs.
Whysall (1959). Wherein it was stated that
the practical test is found in the phrase
‘incapable of managing himself and his affairs,
including the problems of married life. The
burden of proof to prove the unsoundness of
mind of the respondent and also that such
unsoundness is incurable is upon the
petitioner.

Unsoundness of mind as a basis for divorce

has two requirements:

1. The respondent was mentally ill for an

indefinite period, which means that it is
incurable,

2. The respondent is suffering from a mental

disease of such a nature or severity that it
would be unreasonable for the petitioner to
continue living with him or her.

Judicial decisions discussing

divorce on the ground of
unsoundness of mind
1. In the landmark case of Sharda vs.
Dharampal (2003), the question arose can
the Family Court direct a party to undergo
a medical examination in order to prove
the unsoundness of mind and would such
an order violate Article 21? The court said
that for the purpose of grant of decree of
divorce, the plaintiff must establish that
the respondent is suffering from an
unsound mind that is incurable or a mental
disorder of such a nature that the plaintiff
cannot be reasonably expected to live with
him. The medical testimony would be of
considerable assistance to the court.
However, the Hindu Marriage Act or any
other law does not contain any provision
that empowers the court to issue the
direction to a party in a matrimonial
proceeding to compel the respondent to
submit himself to a medical examination.
However, that does not preclude the court
from passing such an order. Further, it held
that in a case for divorce based on the
ground of unsoundness of mind or
impotency, the petitioner would always
insist upon the medical examination of the
respondent and if the court allows the
respondent to take the plea under Article
21, then it may become impossible for the
court to arrive at the conclusion and may
render these grounds of divorce, useless.
Therefore, the family court has the power
to order the person to undergo a medical
test and such an order would not be a
violation of the right to personal liberty and
privacy under Article 21. However, such an
order must be passed if the petitioner has
a strong prima facie case. The court cannot
force the respondent to undergo such an
examination. However, if he refuses to
submit himself to such an examination, the
court is entitled to draw adverse inferences
against him.

2. The Supreme Court of India had declared

in Ram Narayan vs. Rameshwari (1988)
that in cases of schizophrenia mental
condition, the petitioner must prove not
only the mental disorder but also the fact
that the petitioner could not fairly be
expected to live with the respondent.

3. The Madhya Pradesh High Court had

decided in the case of Smt. Alka Sharma
vs. Abhinesh Chandra Sharma (1991), that
as the wife was rigid and nervous on the
first evening of marriage and was found to
be unable to work with domestic
equipment it was ruled that she was
suffering from schizophrenia and that her
spouse was entitled to a divorce.

Section 13(1)(iv) : divorce on

the ground of leprosy
In its findings, the Law Commission of India
suggested that any legislation that
discriminated against leprosy patients be
repealed. India is also a signatory to a United
Nations resolution that advocates for the
abolition of discrimination against leprosy
patients. Section 13(iv) which had the
provision of leprosy contained in it as a
ground for divorce, has now been omitted by
the Indian Parliament on 13th February 2019
with the passage of the Personal Law
Amendment bill.

Section 13(1)(v) : divorce on

the ground of respondent
suffering from venereal
disease of communicable
form
Section 13(1)(v) of the Hindu Marriage Act of
1995 establishes a reason for divorce in cases
of infectious venereal disease. If one of the
spouses has a sexually transmitted disease
that is both incurable and transmissible, it
might be used as a basis for divorce. The
term “venereal illness” refers to a condition
such as AIDS.

Judicial decisions on the grounds of

venereal disease
1. In Smt. Mita Gupta vs. Prabir Kumar Gupta
(1988), the Calcutta High Court had opined
that while the venereal disease is a cause
of divorce, the partner who is responsible
for the contagion may be denied relief even
if the other partner suffers as much.

2. The Supreme Court had ruled in Mr X vs.

Hospital Z (1998) that either husband or
wife might divorce on the grounds of
venereal illness and that a person who has
suffered from the disease cannot be
claimed to have any right to marry even
before marriage, as long as he is not
healed of the condition.

3. The Madras High Court had viewed in the

case of P. Ravikumar: vs Malarvizhi @
S.Kokila (2013) that any contagious
infection caused by sexual intercourse is
defined as a venereal disease under
Section 13(v) of the Hindu Marriage Act,
1955. HIV is a sexually transmitted illness.
As HIV had not been discovered in 1955, it
was not included in the Act. However,
because venereal disease in a
communicable form is one of the grounds
for divorce, any disease being venereal in a
communicable form will also fall under the
provisions of Section 13(v) of the Hindu
Marriage Act, 1955, and thus it cannot be
claimed that a petition cannot be filed on
the basis that HIV positive is not included
in Section 13(v) and thus divorce cannot
be granted. It can very well be granted.

Section 13(1)(vi) : divorce on

the ground of renunciation of
the world by entering a
religious order
When one of the spouses decides to enter a
holy order and renounces the world, the other
spouse has the right to submit a divorce
petition under Section 13(1)(vi) of the Hindu
Marriage Act, 1955. Renouncement of the
world by entering any religious order must be
absolute. It is the equivalent of civil death,
and it prevents a person from inheriting or
exercising their right to divide.

In the case of Sital Das vs. Sant Ram (1954),

it was decided by the Supreme Court of India
that someone is considered to have entered a
religious order if they participate in a few of
the faith’s ceremonies and rites. For example,
if a man or woman joins a religious order but
returns home on the same day itself and
cohabits, it cannot be used as a basis for
divorce since he has not forsaken the world.

Section 13(1)(vii) : divorce on

the ground of presumption of
death
According to Section 13(1)(vii) of the Hindu
Marriage Act, 1955, if a person has not been
heard of as being alive for at least seven
years by people who would naturally have
known of it if that party had been living, that
person is presumed to have died. According
to Section 108 of the Indian Evidence Act of
1872, if a person has not been heard from in
at least seven years, he or she is presumed to
be dead, it is also known as judicial death.
This is a presumption of fact. The petitioner
may be granted a divorce on this basis.
However, under ancient Indian Hindu law, a
presumption of death is not the same as in
contemporary law; twelve years must pass
before a person is deemed to have died. The
presumption of death under the Act of 1955
can be rebutted if a person has been missing
for the last seven years owing to unusual
circumstances, such as fleeing a murder
accusation. This is based on the presumption
which states that the fact that for seven years
or more, the respondent has been absent
from the life of the petitioner. In normal
circumstances this is treated as evidence of
the death of the respondent and the marriage
may be dissolved on the petition of the
petitioner. The object of the rule of
presumption is not to establish whether, at a
point of fact, the respondent was dead or
alive. Rather it presumes that on the date of
the petition, the fact was known as to justify
the action of the court in granting a divorce
under this provision. Therefore, the decree of
divorce granted would be valid and effective
even if subsequently the respondent is found
to be alive.

Judicial decisions on the ground of

presumption of death as a ground
of divorce
1. It was established by the Delhi High Court,
in the case of Nirmoo vs. Nikkaram (1968),
that if a person presumes his or her
spouse’s death and marries another person
without getting a divorce order, the spouse
might contest the validity of the second
marriage after his return.

2. The aforementioned law also overrides any

existing custom that allows for remarriage
after less than seven years, as in the case
of Parmeshwari vs. Parkash Chander
(1989), where it was argued that the
Karewa marriage customs allow for
remarriage after the husband has not been
heard from for two and a half years. The
Punjab and Haryana High Court concluded
that while the spouse cannot be deemed to
be deceased until the issue is brought
before the competent court, the seven-
year timeframe under Section 108 of the
Indian Evidence Act, 1872 cannot be
reduced to merely 2-3 years.

Section 13(1A) of Hindu

Marriage Act, 1955

This provision was added by the Hindu

Marriage Amendment Act, 1964. It provides
the right to a spouse to file a petition for
dissolution of marriage by divorce if there has
been no resumption of cohabitation between
the spouses even after one year has elapsed
from the date of passing of the decree for
judicial separation. The term “resumption of
cohabitation” does not simply refer to two
people living together in the same household,
rather it means that the parties have decided
to fulfil their obligations which are required in
a harmonious relationship.

If there is no other legal ground justifying the

denial of the relief of divorce as provided in
Section 23 of the Hindu Marriage Act, 1955
the court will grant a divorce order under
Section 13(1A).

The second round to seek a divorce is

provided to the parties, in case there has
been no restitution of conjugal rights between
the parties even after one year of the passing
of the decree for restitution of conjugal rights
under Section 9. Restoring conjugal rights
entails resuming marital obligations. If there
has been no restoration of conjugal rights for
one year following the issuance of a decree
under Section 9 of the Act, either spouse may
file for divorce. Before awarding a divorce
order, for this reason, the Court must be
convinced that the petition does not suffer
from any infirmity as per Section 23 of the
Hindu Marriage Act, 1955.

In a recent case X vs. Y (2024), the court

reiterated that once the decree for restitution
of conjugal rights had been passed and still
the defaulting spouse had not resumed
cohabitation, this grants either of the parties
the right to seek divorce under Section 13
(1A)(ii). Further, this can be considered as
desertion by the respondent of the petitioner
without any reasonable cause.

Judicial decisions explaining

Section 13(1A) of the Act of
1955
In Saroj Rani vs. Sudarshan Kumar (1984), it
was held by the top court that, when a
husband obtained a decree for restitution of
conjugal rights only to seek a divorce under
Section 13(1A)(ii) of the Act and prevented
the wife from performing her conjugal duties
by driving her away from the house, it will
constitute misconduct under Section 23(1)(a)
of the Act. This is because the husband was
taking advantage of his wrongs and thus he
was not entitled to any relief.

In Vishnu Dutt Sharma vs. Manju Sharma

(2009), the Apex Court decided that based on
a cursory reading of Section 13 of the Act of
1955, the law does not provide for divorce on
the grounds of irreversible dissolution of a
marriage. In rare situations, however, the
court will grant a divorce to the marriage due
to irreversible collapse.

Section 13(2) : special

grounds for divorce
available only to the wife
Section 13(2) of the Hindu Marriage Act, 1955
provides four grounds for the wife to seek
divorce from her husband. These grounds are
explained hereunder.

Section 13(2)(i) :
polygamous marriage
solemnised prior to the HMA,
1955
Prior to the commencement of the Hindu
Marriage Act, 1955, the practice of
monogamy was absent under Hindu law. A
man was allowed to have any number of
wives. However, this rule underwent a major
change with the introduction of the concept of
monogamy under the Hindu Marriage Act,
1955.

Therefore, under Section 13(2)(i) if more than

one wife exists due to a polygamous
marriage, which was solemnised prior to
18/05/1955 and is thereby a valid marriage.
The wife of such a marriage has been given
the right to seek a divorce.

The following conditions must be satisfied

prior to the grant of the decree of divorce on
this ground :

1. Both marriages must have been

solemnised prior to the commencement of
the Hindu Marriage Act 1955;

2. Either the husband of the petitioner had

married again before the commencement
of the Hindu Marriage Act, 1955 or any
other wife of the husband was alive at the
time of the solemnisation of marriage of
the plaintiff before 18/05/1955;

3. The wife is alive when the petition for

divorce on this ground has been presented
by the petitioner. It is immaterial, if, during
the proceedings under the Section, the
other wife dies or obtains the degree for
divorce. It is immaterial whether, during
the proceedings under this Section, the
other wife dies or seeks for the decree of
divorce. in order to seek divorce under
this ground, it is material that the other
wife is present at the time the petition was
filled.

For instance, H married W on 1/1/1920, he

subsequently married W1 on 1/1/1930 and
married W2 on 1/1/1940. Since all of these
marriages were solemnised prior to the
commencement of the HMA, 1955 all the
wives would have the right to seek dissolution
of their marriage under this ground. The sole
stipulation is that the divorce petition would
be granted if the other wife was still alive
when the petition was presented.

In the case of Venkataramma vs.

Venkataswamy (1962) Karnataka High Court
held that all the wives may present a petition
for divorce and may obtain a decree of
divorce as the requirement is that at the time
of presentation of a petition, one or more
wives must be alive.

Section 13(2)(ii) : husband

guilty of committing rape,
sodomy or bestiality
Under this Section, a wife can seek divorce
from her husband, if the latter has been guilty
of committing rape, sodomy, or bestiality
since the marriage was solemnised. It is only
after the charges are proved and the husband
is finally convicted and no more appeals lie,
that this ground would be available. Mere
accusations or allegations of such acts would
not suffice.

Section 375 of the Indian Penal Code, 1860

makes rape a criminal offence. A person who
has carnal copulation with an individual of the
same sex or an animal, or non-coital carnal
copulation with an individual of the opposite
sex, is said to have committed sodomy.
Bestiality refers to a human’s sexual union
with an animal that is contrary to nature’s
order.

Section 13(2)(iii) : decree or

order of maintenance
This Section provides the wife the right to
seek divorce when a decree of maintenance
has been issued under Section 18 of the
Hindu Adoptions and Maintenance Act, 1956,
or when an order of maintenance has been
issued against the husband under Section 125
of the Code of Criminal Procedure, 1973, (
Now under Section 147 of the Bhartiya Nagrik
Suraksha Sanhita 2023) and if the following
two requirements are fulfilled, in that case the
wife has the option of filing a divorce petition
against her husband:

a) The fact that she was living separately, and

b) She and her spouse have not cohabitated

for at least one year following the issuance of
the decree.

In the case of Satinder Singh vs. Bhupinder

Kaur (2010), the Delhi High Court stated that
it was by the recommendation of the Law
Commission in its 59th report that this clause
was added. It was aimed at providing the wife
a right to seek divorce in case the husband
has continued to neglect her ever after an
order granting maintenance in her favour has
been passed. The absence of cohabitation for
a period of a minimum of 1 year clearly
establishes that the husband has ceased to
value the society of the wife and the need for
her company has ended. Only the wife has
been granted the right to seek divorce on this
ground as, an erring husband who refuses to
pay his wife the maintenance despite the
order of the court cannot be allowed to
contend that since the order has not been
complied with, the ground for divorce is
available to him. If such ground is made
available to him, it would create an easy way
for erring husbands to seek divorce.

Section 13(2)(iv) : the option

of puberty
India is infamous for the prevalence of child
marriages, especially in the states of
Rajasthan, Haryana, West Bengal, etc. After
acknowledging this reality, this ground was
included within the HMA, 1955.

Under Section 5, the age requirement has

been stipulated as 18 years for the bride and
21 years for the bridegroom. However, no
consequence has been expressly stated in
case this condition is violated. This has the
effect of treating a child marriage as a valid
marriage. This notion is further strengthened
by Section 13(2)(iv) which declares it as a
ground for divorce, and we must understand
that a divorce is only provided in a valid
marriage.

It enables the wife to seek a divorce if her

marriage was solemnised before she reached
the age of 15. She has been given the option
of seeking a divorce after she turns 15, but
before turning 18. When a child bride reaches
puberty, she has the option of seeking a
divorce, this is to safeguard females who may
have been pressured into marriage.

This ground must be read with the Prohibition

of Child Marriage Act 2005. Under this Act, a
marriage of a child, which includes a male
below the age of 21 and a female below the
age of 18, has been declared voidable. A
marriage can be declared voidable by a
decree of nullity and a divorce decree is not
required in such a case. Further, under the
Act, the right to get such marriage annulled is
available for a period of three years after
attaining the age of majority, which is 18
years for females and 21 years for males.

Therefore, while the Hindu Marriage Act,

considers such marriage as a valid marriage
and provides the option of puberty to seek
divorce in such case, the Prohibition of Child
Marriage Act, expressly declares it to be
voidable, which can be annulled by a degree
of nullity.

Section 13A : alternate

relief in divorce
proceedings
It is evident that the Hindu Marriage Act 1955
attempts at every step to preserve the marital
bond between the parties and to reconcile the
differences amicably wherever possible. On
the same lines, this provision was added by
the Marriage Laws Amendment Act, 1976. It
empowers the court to which a petition for
divorce has been filed to grant a decree of
judicial separation instead If the
circumstances justify such a course of action.
Where the court is of the opinion that there is
still a scope for reconciliation between the
parties, it may grant a decree for judicial
separation instead of a divorce decree. This
course of action is not allowed in case a
petition for divorce is filed on the grounds of
conversion by the respondent (Section 13(1)
(ii)) or renunciation of the world by the
respondent (Section 13(1)(vi)) or if the
spouse has been missing for seven years or
more (Section 13(1)(vii)).

Section 13B : divorce by

mutual consent
The Fifty-ninth Law Commission report
suggested the inclusion of the provision
providing for divorce by mutual consent. This
recommendation was also supported by the
committee on the status of women in India.
As a result, this was included in the Hindu
Marriage Act, 1955 by the Marriage Laws
(Amendment) Act, 1976.

Section 13B of the Hindu Marriage Act, 1955

provides for divorce by mutual consent of the
parties to a marriage. The parties may file a
petition for dissolution of marriage by a
decree of mutual consent under Section
13B(1) of the Hindu Marriage Act, 1955 if the
marriage is dissolved with effect from the
date of the decree. Section 13B(1) of the
Hindu Marriage Act read with Section 13B(2)
envisages a total waiting period of 18 months
from the date of separation to move the
motion for a decree of divorce.

The requisites for the presentation of the first

petition under Section 13(1) are as follows-

1. Both parties must present the petition

together;

2. The parties must have been living

separately for a period of a minimum of
one year; and

3. The parties have not been able to live

together and have mutually agreed to
dissolve the marriage.

The requisites for presentation of the second

petition under Section 13(2) are as follows-

1. The motion must be made by both parties;

2. This motion must be made at least six

months from the first petition but not later
than 18 months from the date of the first
petition;

3. After the second motion, the Court will

conduct enquiry to examine the
truthfulness of the averments of the
petition and on being satisfied that the
consent is not obtained by fraud, force,
etciIt will subsequently pass a divorce
decree.

Justice Indira Banerjee while deciding the

recent case of Amit Kumar vs. Suman Beniwal
(2021) has made the following observations
concerning Section 13B of the Hindu Marriage
Act, 1955, which provides for divorce by
mutual consent and took effect on 27.5.1976,
is not designed to damage the institution of
marriage. Where a marriage has irretrievably
broken down and both spouses have amicably
chosen to separate, Section 13B allows the
parties to avoid and/or abbreviate needless
confrontational litigation.

Tracing the development in

the law relating to divorce by
mutual consent under
Section 13B

Sureshta Devi vs. Om Prakash

(1991)
In this case, the Apex Court interpreted the
meaning of ‘living separately for one year or
more’ under Section 13B. The term living
separately connotes the state of things, they
must not be living as husband and wife, nor
fulfilling their marital obligations. It has no
reference to the place of living.

Anil Kumar Jain vs. Maya Jain

(2009)
In this case, the Apex Court discussed the
issue of whether the statutory waiting period
prescribed under Section 13B(2) before the
filing of the first and the second motion can
be waived by the Apex Court under Article
142 of the Constitution. Prior to this
judgement, all the courts were waiving this
period.

The court categorically stated that it is only

the Apex Court that can grant relief to the
parties without waiting for the statutorily
prescribed waiting period of six months by
using its powers under Article 142. Other
courts cannot exercise such powers as they
are not competent to do so. Therefore,
neither the Civil Court nor the High Court can
pass orders before the expiry of such period.
Further, the Supreme Court can in special
circumstances pass appropriate orders to do
justice and waive the period, but in normal
circumstances, the provisions of the statute
must be given effect.

Hitesh Bhatnagar vs. Deepa

Bhatnagar (2011)
The question that was decided in the present
case was can the consent be withdrawn at
any stage by the parties under Section 13B?

The court held that the decree for divorce by

mutual consent can be passed only if the
following conditions must be fulfilled-

1. The second motion as required under

Section 13B (2) has to be made not before
six months from the date of filing of the
first motion under Section 13B(1) and not
later than 18 months from the date of the
first motion.

2. After hearing the parties to the petition and

making an inquiry, if the court is satisfied
with the truthfulness of the averments in
the petition.

3. The petition is not withdrawn by either

party at any time before the passing of the
decree.

Therefore, it is clear that the consent in such

a petition can be withdrawn at any time
before the decree. The most essential element
in the divorce by mutual consent is the
presence of free consent of both parties,
existing till the decree is passed. The court
further noted that non-withdrawal of mutual
consent before the expiry of 18 months is
immaterial, if the consent is subsequently
withdrawn.

Amardeep Singh vs. Harveen Kaur

(2017)
In this landmark case, the question before the
Apex Court was, whether the waiting period of
6 months is mandatory or can be waived off
under exceptional circumstances.

The court stated that the period was provided

by the legislature to enable the parties to
rethink and try to reconcile their differences.
However, in cases where the court believes
that there is no scope for any reconciliation
and a case to waive the statutory period has
been made out, it may do so. The Apex Court
has provided a list of conditions to be
considered to decide whether the case to
waive the six-month statutory period has
been made out or not :

1. Where the statutory period of six months in

addition to the one-year period in Section
13B(1) of separation has already been
undergone before the first motion itself.

2. Efforts for mediation and reconciliation

have failed and the chances of
reconciliation are nil.

3. The parties have settled all incidental

matters like alimony, custody, etc.

4. The court is of the opinion that the waiting

period will prolong the agony.

In such cases, any court where the petition is

pending and not just the Supreme Court can
waive the waiting period. The waiver
application can be filed 1 week after the
petition for the first motion has been filed,
after giving the requisite reasons for the
waiver. The final discretion lies with the court
on the analysis of the facts and
circumstances.

Rajat Gupta vs. Rupali Gupta

(2018)
In this case, two questions arose before the
Delhi High Court. Firstly, where the parties
filed the first motion, but one of them does
not come to file the second motion can
contempt proceedings be initiated against
such a party, and secondly can the court force
the party to provide his consent?

The court held that the main feature of

Section 13 B is that it recognises the
unqualified right of a party to the marriage to
withdraw its consent. This right exists,
notwithstanding any undertaking which the
party may have given before. The element of
mutual consent should commence from the
stage of filing of the first motion and should
continue till the time the decree is passed.
However, the defaulting party who does not
come to file the second motion or withdraw its
consent can be liable for civil contempt, if the
aggrieved party is able to show that it is due
to the wilful breach of the defaulting party
that the former has been placed in a
disadvantageous position.

Shilpa Sailesh vs. Varun

Sreenivasan (2023)
The issue considered in this case was,
whether the Apex Court while hearing a
transfer petition or other proceeding exercised
powers under Article 142 in view of the
settlement between parties and granted a
divorce by mutual consent, dispensing with
the period and proceedings prescribed under
Section 13B.

The legislative intent behind the incorporation

of Section 13B (2) was to give the couples
time to introspect before they decide to
separate. There are situations of exceptional
hardship on account of reconcilable
differences. Allegations are made against
each other and the respective families and
multiple litigations, including criminal cases,
are instituted. In such cases, the divorce is
inevitable and the cooling of a period of six
months breeds misery and pain to the
parties.

In the case of Amardeep Kaur vs Harveen

Kaur (2017) as mentioned above, the Apex
Court enlisted several questions that the court
would ask before passing any order. However,
the present judgement proceeds on the
interpretation of Section 13 B(2) and does not
examine if the Supreme Court can record a
settlement agreement and grant a divorce on
mutual consent under Section 13 B in the
exercise of power under Article 142 of the
constitution.

Section 13B of the Hindu Marriage Act, 1955

does not impose any fetters on the powers of
the court to grant a degree of divorce by
mutual consent on a joint application when
the pre-conditions of the Section are fulfilled
and the Supreme Court is of the opinion that
a decree should be granted. Further, the court
on the basis of settlement between the
parties while passing a decree of divorce by
mutual consent, can set aside and quash
other proceedings, including criminal cases to
ensure amicable resolution of matrimonial
matters. After ensuring that the settlement
between the parties is achieved with free
consent.

Conclusion
The Hindu Marriage Act, 1955 Has provided
various grounds to dissolve a marriage in case
the continuance is no longer conducive. At the
same time, it is abundantly clear that every
attempt has been made by the legislature to
protect the sacred bond of matrimony. In
addition, the courts are also duty-bound to
endeavour to help the parties reach an
amicable resolution wherever the
circumstances allow. In light of the
constitutional principles of human dignity and
individual autonomy, the provision for
dissolution of marriage has been provided.

Frequently Asked
Questions (FAQs)

What changes were brought

about in the law of divorce
under the HMA, 1955 by the
1976 Amendment?
The 1976 Amendment was brought about to
liberalise the provisions relating to divorce to
enable expeditious disposal of proceedings
under the Act and to remove certain
anomalies and handicaps that had come into
light after the Act was passed.

The following were the major changes

brought about by the Amendment-

1. Hindu Marriage Amendment Act, 1976 has

inserted impotency as a ground to declare
a marriage voidable under Section 12(1)
(a).

2. Adultery, cruelty, and desertion were

inserted as grounds of divorce under
Section 13(1) (i), (ii), and (iii) by the Hindu
Marriage Amendment Act, 1976.

3. Section 5 of the Hindu Marriage Act

provides the conditions of marriage,
Section 5(ii) (a), (b), (c) were inserted by
the Hindu Marriage Amendment Act, 1976.

4. The wife can now claim divorce under

Section 13(2)(iii) on the ground that a
decree or order has been passed against
the husband and in favour of the wife,
awarding maintenance to her,
notwithstanding the fact that the spouses
were living separately. Even after one year
of the passing of the decree or order, the
cohabitation between the parties has not
resumed.

5. The provision for alternate relief in divorce

proceedings under Section 13A and divorce
by mutual consent under Section 13B was
also inserted by the Hindu Marriage
Amendment Act,1976.

6. Special provisions relating to the trial and

disposal of the petitions under the Hindu
Marriage Act specified under Section 21B
were also inserted by the Amendment
Act,1976.

What changes were brought

about in the Law of divorce
under the Uniform Civil Code
in Uttrakhand?
The Uniform Civil Code of Uttrakhand 2024
(hereinafter UCC) is intended to govern and
regulate laws relating to marriage and
divorce, succession, live-in relationships, and
related matters.

1. Under the UCC introduced in the state, the

registration of marriages as well as
divorces has been made compulsory.
Therefore, now to make a divorce fully
legalised in addition to the decree of a
court, the registration of such divorce is
also to be sought. Further, the Act also
sets a timeline for the parties who have
already been granted divorce to register
such divorces. The omission to register is
stipulated to be met with penal provisions.
It is a known fact that the registration of
any document in India is not an easy task
due to the red tapism and corruption found
in the department. While the benefit of
registration of marriages does fulfil a
purpose The rationale behind registration
of divorce is still unknown as the decree of
a court is a public document and is
accessible to all.

2. In the provisions dealing with marriage and

divorce the legislature of the state has
omitted to provide any law relating to
settlement in a matrimonial relationship,
which divides the resources of the spouses
equally which were either purchased jointly
or separately after marriage. It is a known
fact that where ever divorce decree is
passed, the courts often do not make
specific provisions for permanent alimony
and this right has to be claimed
independently by separate suits.

3. The Uniform Civil Code has set out new

rules for consensual sexual relationships
outside marriage, which are also known as
live-in relationships. The party is duty-
bound to notify the registrar within a
month of entering into such a relationship
and further, even the termination of such a
relationship has to be notified to the police.
This compels the people in such
relationships to disclose the fact of them
living together and act in negation of the
very idea of privacy. As per the opinion of
a section of society, the provision requiring
the registration is arbitrary and irrational.
They contend that such a move is intrusive
upon the privacy of individuals is
susceptible to be constitutionally
challenged. If two consenting adults decide
not to marry, but only live together and
start living together are also to be
registered. It is in a way making public
what they intend to keep private.

What other provisions are

related to divorce under
the Hindu Marriage Act,
1955?
The following are some of the provisions
related to divorce under the Hindu Marriage
Act, 1955 :

1. Section 14 provides that any party to the

marriage cannot file a petition for divorce
before the expiry of one year from the
marriage. However, as per the proviso in
case of exceptional depravity or
exceptional hardship, the court waive off
the time period of one year. This Section
acknowledges the time period required
after the marriage for some adjustment
and therefore ensures that the party spent
at least one year, attempting to adjust to
the new change circumstances and not
take any action in haste. In a recent case
of X vs.Y (2024) LiveLaw (PH) 08, the
Punjab and Haryana High Court has ruled
that Section 14 also applies to divorce
sought under Section 13B, and therefore,
couples can seek relaxation to file for
mutual divorce within one year of
marriage.

2. Section 28 provides for the limitation

period to present an appeal against a
decree passed. A period of 90 days has
been stipulated to present an appeal.
Therefore in cases where an appeal lies, It
would only be lawful for the spouses to
remarry after the period to prefer an
appeal has elapsed or where the appeal
was filed it has been finally disposed of.
This provision has been provided to protect
the rights of the spouse who is aggrieved
by the decree.

3. Section 15 provides the time limit when a

divorced person may be married after a
divorce decree has been passed. It is
clearly provided that in case where there is
no right of appeal or where the appeal is
provided for, however, the time has
elapsed to present an appeal or where the
appeal has been presented and is
dismissed, then the parties can lawfully
marry. The fate of a subsequent marriage
solemnised in violation of this provision has
not been expressly dealt with in the Act.
This marriage is neither boiled nor voidable
but can be termed unlawful or illegal as it
has been performed in violation of the law.
The Apex Court in the case of Anurag Mittal
vs. Shaily Mishra Mittal (2018), stated that
the restriction provided under Section 15 is
merely for the protection of the party who
is contesting the appeal and would not
apply in cases where the parties have
mutually settled and decided not to pursue
an appeal.

4. Section 23(2) and (3) clearly reflect the

legislative intent of protecting marriages as
far as possible and declares that before any
relief is granted under the Act, the court
must attempt to make an endeavour to
bring about reconciliation between the
parties. To facilitate amicable settlement
and reconciliation, the court can adjourn
the proceedings and refer the dispute to a
mediator.

References
1. https://www.scconline.com/blog/post/tag/Sect
13-of-hindu-marriage-Act/

2. https://frontline.thehindu.com/politics/uttarak
ucc-bill-law-implications-for-uniform-civil-
code-in-india-women-marriage-
relations/article67899026.ece#

3. https://ucc.uk.gov.in/

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TAGS Adultery bigamy Conversion Divorce

Hindu Marriage Act of 1955 Indian Divorce Act 1869

Indian Evidence Act Indian Penal Code 1860

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