Divorce Under the Hindu Marriage Act | Legal Reasoning for CLAT PDF Download

Introduction

Divorce, a legal termination of marital bonds, finds its procedural foundation in the Hindu Marriage Act within the Indian context. Section 13 of the Act delineates the grounds on which either partner can initiate divorce, ensuring equitable and just proceedings for both parties. Moreover, the Act acknowledges the possibility of divorce by mutual consent, providing an avenue for amicable separation agreed upon by both spouses.

Grounds for Divorce – Equally Accessible to Both Partners

1. Adultery: Breach of Marital Trust

   • Extramarital affairs of either spouse can constitute grounds for divorce, as adultery is perceived as a violation of marital trust, potentially leading to the dissolution of the union.

2. Cruelty: Protection Against Physical or Mental Harm

   • Any form of physical or mental cruelty inflicted upon a spouse can be a valid reason for divorce. Acts of cruelty may result in emotional trauma, jeopardizing the well-being of the affected party.

3. Desertion (2 years): Prolonged Abandonment

   • If one spouse abandons the other without reasonable cause for a continuous period of two years or more, the deserted spouse may seek divorce.

4. Conversion: Recognition of Religious Compatibility

   • Conversion to another religion by either spouse, leading to a departure from Hinduism, can be a legitimate ground for divorce. The Act underscores the significance of religious compatibility in Hindu marriages.

5. Incurable Unsound Mind or Mental Disorder: Protection of Well-being

   • Severe and incurable mental disorders suffered by a spouse can warrant divorce to safeguard the well-being of the other partner.

6. Virulent and Incurable Form of Leprosy: Preventing Contagion and Suffering

   • Contagious and incurable forms of leprosy in a spouse can be a valid ground for divorce, aiming to prevent transmission and suffering.

7. Venereal Disease of a Communicable Form: Protection of Health

   • A spouse suffering from a communicable venereal disease can constitute grounds for divorce, prioritizing the health protection of the other spouse.

8. Renounced the World (By Entering into a Religious Order): Incompatibility with Marriage

   • If a spouse renounces worldly life and enters a religious order, it can be a legitimate ground for divorce, as such a decision may be incompatible with the institution of marriage.

9. Not Been Heard of as Being Alive for 7 Years or More: Prolonged Absence

   • If one spouse is absent and not heard of for seven years or more, the other spouse may seek divorce due to prolonged separation.

Grounds Available Exclusively to the Wife

1. Husband Found Guilty of Sodomy, Rape, or Bestiality: Seeking Divorce Following Conviction

   • In cases where the husband is convicted of engaging in acts of sodomy, rape, or bestiality, the wife has the right to seek divorce.

2. Other Technical Grounds: Addressing Specificities

   • Technical grounds for divorce include the non-resumption of cohabitation by the parties after one year of a decree of judicial separation or other issues related to maintenance.

Divorce by Mutual Consent: A Harmonious Resolution

Section 13B of the Hindu Marriage Act introduces the provision for divorce by mutual consent. This allows both spouses to terminate their marriage without specifying grounds. The process involves a joint application for divorce, expressing mutual consent for an amicable separation. A consistent approach is maintained for couples from different backgrounds through the inclusion of this provision in Parsi law and the Special Marriage Act.