DIVORCE UNDER HINDU MARRIAGE ACT

“Vivāhaḥ saṁskāro nāma”- Marriage is a sacred sacrament as per the hindu rites and rituals. Manu, a great commentator of the Ancient Hindu philosophy stated that marriage is a divine union and can never be broken except in the cases where either of the spouse becomes deceased. However, with the modern era and the shift in attitude towards marraige and relationships with a greater emphasis on personal fulfilment and mutual respect, divorce is no longer a myth for the Hindu society.  Great Jurists like Kautilya in his Arthashastra enumerated the view of the concept of Divorce. He opined that if the marriage is a type of unapproved marriage as such Asura, Gandharva, Rakshasa, and Paisacha, then such a marriage can be dissolved. Furthermore, he also recognised desertion, cruelty, apostasy, impotency and mutual consent as grounds of divorce.

 In view of the Naradasmriti along with Parashasmriti, a woman can dissolve her marriage and re-marry under the following conditions:

• Where the husband has been found dead.
• Where the husband is unheard and is lost for seven years.
• Where the husband has renounced the world.
• Where the husband has become impotent.
• Where the husband has been expelled from the community or caste.

Till the mid of 1950s there existed no codified statutory recognition for Divorce. Divorce in India was only allowed on the basis of certain customs. However, with the codification of the Hindu Marriage Act, 1955, Divorce as a statutory regulation got recognised.

As per Section 02 of the Act, it specifically applies to any person who is a Hindu, Buddhists, Jains or Sikhs by religion.

STATUTORY PROVISION FOR DIVORCE

Section 13 of the Hindu Marraige Act, 1955 deals with the provision for divorce and lays further grounds.

Either of the spouse may file for Divorce under the following grounds:

• Sexual intercourse with any other person than the spouse.
• Treated the Petitioner with cruelty.
• Deserted the Petitioner for not less than 2 years.
• Ceased to be a Hindu.
• Unsound mind or suffering from a mental disorder that the Petitioner cannot reasonably be expected to live with the Respondent.
• Suffering from venereal disease.
• Renunciation of world by entering any religious order.
• Where the person has been missing since 7 years and is declared civil dead.
• No resumption of cohabitation as between the parties to the marriage for a period of one year after the decree of Judicial Separation.
• No Restitution of Conjugal Rights after the passing of a decree for Restitution of Conjugal Rights for a period of one year.

A wife may file for a Divorce petition under following grounds:

• Husband has been guilty of Pre-Act polygamous marriage.
• Husband has been guilty of Rape, Sodomy, or Bestiality.
• After the decree of maintenance under Section 18 of the Act or under Section 144 of the Bharatiya Nagarik Suraksha Sanhita, there exists no cohabitation between the parties for a year or more.
• The marriage was solemnised before the age of 15 years and after attaining the legal age of marriage i.e. 18 years, the Petitioner has repudiated the marriage.
• The Marriage Laws Amendment Act of 1976 laid down a provision for divorce by mutual consent under Section 13B of the Hindu Marriage Act. Section 13B states that the parties to the marriage by mutual consensus may file a divorce in a case where they have been living separately for more than a year.

 Section 14 of the Act states a Divorce Petition cannot be presented in the court until one year has elapsed since. The date of marriage. Only under exceptional circumstances where there exists exceptional hardship to the petitioner or exceptional depravity to the respondent such a divorce petition is allowed before the elapse of a year.

Section 15 of the Act gives provision for re-marriage after a Divorce. Decree where no such right of appeal lies.

THEORIES OF DIVORCE

The Concept of Divorce is backed by various theories.These theories provide the underlying justifications for the breakdown or termination of marriages.

There are mainly three theories of Divorce under Hindu Marriage Act, 1955:

• Guilt Theory.
• Mutual Consent Theory.
• Irretrievable breakdown of marriage.

Guilt Theory:

As per the guilt theory of divorce, a marriage can only be dissolved if one spouse is found to have committed a matrimonial wrong. This approach requires the identification of a guilty party and an innocent one, with the right to seek divorce reserved solely for the innocent spouse. There must exists a personal injury to the marital status of the parties. In accordance to the Guilt Theory, one of the party should be guilty of the offence and the other should be completely innocent of any marital offence. If in case both the parties are guilty of marital offences then the guilt theory of divorce will not be applicable to them.

Under the Hindu Marriage Act, 1955, Guilt Theory of Divorce lays down nine grounds:

• Adultery
• Cruelty
• Desertion
• Insanity or mental disorder
• Conversion
• Venereal communicable disease
• Leprosy
• Renunciation
• Presumption of death.

Mutual Consent Theory:

According to the Mutual Consent Theory, the parties to the marriage mutually and amicably dissolve their marriage. Mutual Consent Theory is a no-fault theory where neither the parties needs to prove the guilt of another party. Section 13B of the Hindu Marriage Act, 1955 governs the theory of Mutual Consent.

Further, there exists a cooling of period of 6 months between the first decree and final decree of divorce. The cooling off period is provided to the parties to reconsider their decision for the Divorce Petition, in case there is no reconciliation between the parties, the divorce decree is finalised, hence leading to the mutual breakdown off marriage.

Irretrievable Breakdown Theory:

Irretrievable Breakdown of marriage states that even after various endeavours there exists no chance of reconciliation between the parties to the marriage. This theory is de-facto breakdown of marriage. The parties to the marriage do not need to prove any fault or guilt done by the other party. This theory is based on the principle , where dissolution of a marriage results to a better lifestyle for both the parties rather than continuing a rancorous marriage.

The landmark case of Naveen Kohli v. Neelu Kohli, emphasised the need to recognise the Irretrievable Breakdown of Marriage as a valid ground for Divorce. Irretrievable Breakdown of Marriage was discussed under the 71st Report submitted by the Law Commission of India.

At present, only the Supreme Court of India has the authority to grant a divorce based on the principle of irretrievable breakdown of the marriage.

PROCEDURE OF DIVORCE

To file a Divorce petition, a party needs to go through a series of procedures:

1. Petition- Petition for divorce to be submitted by both the parties containing details pertaining to both the parties, reason for divorce, terms and evidences in front of the Family Court of proper jurisdiction.
2. Mediation- Court may send the parties for mediation to reconcile their marriage as under Hindu marriage is considered a sacrament.
3. Date for Appearance- In case no reconciliation is formulated then date is provided to both the parties for their appearances in-front of the court with their respective Counsels. On the particular date proceedings are conducted in relation to every aspect of the petition as such properties, custody of children, maintenance and more.
4. Cooling off period- after the examination of the evidences provided by the parties and changes in the terms and conditions of the parties; the court passes a first motion. The first motion is passed and the parties are given a cooling off period of 6 months which can be extended upto the period of 18 months for the parties to reconsider their decisions.
5. Second Motion- After the cooling off period the parties can either seek to cancel the divorce petition or proceed further with the second motion where the final statement of parties are recorded.
6. Divorce Decree- After the recording of the final statement of the parties and is hereby signed for no future conflicts, the court when satisfied passes the Decree for Divorce and hence concludes the marriage as void.

CHALLENGES IN DIVORCE

Despite being a statutory regulation, Divorce has its own positive and negative aspects in the society.On a Positive perspective, Divorce allows a person to evacuate themselves from an unhealthy relationship, discover themselves and re-grow into a better individual.

However, divorce in a negative perspective holds various challenges:

• Societal Stigma- Divorced persons are often seen isolated from social gatherings and are a victim of societal stigma.
• Cultural and Religious aspects- Personal Laws as such the Hindu Marriage Act, 1955 views marraige as a sacrament hence the dissolution of a marriage depicts the break down of a religious sacrament and sanctity.
• Lengthy Legal Procedure- Judicial proceedings. Are often delayed due to the backlogs and procedural obstacles.
• Financial disputes- Divorce leads to further financial disputes in relation to property division, alimony and maintenance to be provided.
• Child Custody- Divorce leads to disputes over a child’s custody which often leads to emotional and mental exhaustion.
• Emotional breakage- Divorce proceedings often drains the parties emotionally which may lead to mental health issues as such anxiety, depression, trauma etc.
• False Allegations- Divorce petitions are often contested with allegations such as domestic violence, adultery etc. which causes the accused party to suffer from societal stigma.

LANDMARK CASES IN RELATION TO DIVORCE

Narayan Ganesh Dastane v. Sucheta Narayan Dastane (1975)

The Supreme Court ruled that cruelty need not be physical; even mental cruelty could be grounds for divorce. In matrimonial cases, the court emphasised the preponderance of probability rather than beyond a reasonable doubt.

1. Bhagat v. D. Bhagat (1994)

The court noted that even though irretrievable collapse is not a statutory basis, the marriage had irretrievably broken down. A change toward a more liberal reading was evident when it allowed divorce on the grounds of mental cruelty.

Amardeep Singh v. Harveen Kaur (2017)

The Supreme Court ruled that the six-month waiting time required by Section 13B(2) is merely a guideline. If all requirements for mutual consent are met and there is no possibility of reconciliation, the courts may waive it.

CONCLUSION

The Hindu Marriage Act of 1955 governs divorce through provisions such as Section 13 (grounds for divorce) and Section 13B (mutual consent). It is founded on three fundamental theories: fault, mutual consent, and irretrievable breakdown (judicially acknowledged but not yet codified). The divorce process consists of submitting a petition, court appearances, reconciliation attempts, and a final decree. Despite legislative safeguards, issues such as delayed proceedings and societal shame remain. In India, there is an increasing need to define irretrievable breakdown and implement more effective, accessible, and equitable mechanisms for resolving marital conflicts.