Divorce – Hindu Marriage Act
Sec. 13 of the Hindu Marriage Act permits either of the spouses to seek divorce on the following grounds:-
- adultery (or the respondent has after the solemnization of the marriage had voluntary sexual intercourse with any person other than the spouse);
- cruelty;
- desertion for a continuous period of two years or more immediately before the presentation of the petition;
- apostasy (conversion to any other religion); or
- incurable unsoundness of mind, whether continuous or intermittent, of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with him/her;
- virulent and incurable form of leprosy;
- venereal disease in communicable form;
- renouncing the world (by entering any religious order);
- has not been heard of as being alive for seven or more years; and
- non-resumption of cohabitation for one year or more after a decree for judicial separation or restitution of conjugal rights was passed.
Besides, the wife may claim divorce on some added grounds-
- that the husband married more that one wife before the Hindu marriage Act came into operation (May 18,1955) and in that event any of the co-wives could claim divorce on this ground alone.
- It is based on the principle that all Hindu wives should have equal remedy against bigamy. Understandably, the second or subsequent marriage after this statute would be void ab initio if the previous marriage or marriages continued.
- Compromise, if any, between the petitioner-wife and the respondent husband does not take away the wife’s right to claim estoppel-Nirmoo v Nikkaram AIR 1968 Delhi 260].
- that the husband has since solemnization of the marriage been guilty of rape, sodomy or bestiality;
- that a decree or order awarding separate maintenance to the wife under the Hindu Adoption and Maintenance Act, 1956or the Cr. P.C. (which are treated on the same footing for a decree for judicial separation) was passed and that even then there was no resumption of cohabitation for one year or more after such decree;
- that the marriage (whether consummated or not) was solemnized before the wife attained the age of fifteen and that she has repudiated the marriage after attaining fifteen but before eighteen.
[This provision seems to have borrowed from Islamic law-option of puberty.
Divorce by Mutual consent ( Under Hindu Marriage Act).
S. 13B, inserted by 1976 amendment but given retrospective effect, provides for divorce by joint consent of both the spouses. They may present a petition to the court on the grounds–
- that they have been living separately for one year or more;
- that they have not been able to live together; and
- that they have mutually agreed that the marriage should be dissolved.
The court does not dispose of the proceeding immediately after presentation. It waits until after six months but before eighteen months thereof. If within such period both the parties make a motion pressing the petition, the court hears the parties, makes such inquiry as it thinks fit, and passes a decree for dissolution of the marriage after satisfying itself-
- that the marriage has been solemnized; and
- that the averments in the petition are true.
On the matter of satisfaction of the court, the provisions of s. 23 have to be looked into. One specific point may be highlighted-
s. 23 (1) (bb) – The court satisfies itself that consent has not been obtained by force, fraud or undue influence.