HINDU DIVORCE LAWS: AN OVERVIEW

Abstract

This study offers a thorough examination of the dynamics, intricacies, and growth of
Hindu divorce laws in India. It goes into the sociocultural, legal, and historical factors
that have influenced the Hindu community's divorce laws. The paper begins by
tracing the historical roots of Hindu divorce laws, highlighting their inception during
the colonial period and subsequent codification in the Hindu Marriage Act of 1955. It
discusses the significance of these laws in the context of the diverse religious
landscape of India, encompassing not only Hindus but also Sikhs, Jains, and
Buddhists.

A critical examination of the grounds for divorce prescribed by the Hindu Marriage
Act is presented, elucidating the multifaceted nature of marital disputes and the legal
mechanisms available for dissolution. Special attention is given to the concept of
mutual consent divorce and its significance in modern marital relationships.
Furthermore, the research paper explores the complexities surrounding maintenance
and alimony, child custody, and property division during divorce proceedings. It
discusses the role of family courts in adjudicating these matters and ensuring the
welfare of children involved.

INTRODUCTION:

Divorce during ancient period was a concept unknown to Hindus. It was only after
the enactment of Hindu Marriage Act, 1955 that the concept of divorce among Hindu
laws came into existence.

Marriage among Hindus is considered both a bond and a sacrament. But sometimes,
such situations arise where it is not beneficial for both the parties to a marriage to
live together and stretching such relationships unnecessarily after certain time will
result in animosity and resentment among the spouses. Such ties can be terminated
by the process of divorce, it is a process through which marital ties between two
parties come to an end under the authority of a competent court.

STATUS OF DIVORCE LAWS IN ANCIENT INDIA:

Hindu marriage is considered as a bond of sacramental nature among both the
spouses which establishes ties among their families for the next seven generations.
Such sacred and pure knot cannot be called off at any cost, it should be preserved
till death. People in ancient India used to believe that dissolution of marriage in
Hindus is an act that breached the law of God.

During ancient period, there were no specific laws regarding divorce, texts and
scholars have presented various views in relation to the process of dissolution of
marriage. Kautilaya’s Arthshastra mentions that marriage can be dissolved by mutual
consent of the spouses if it falls in unapproved form of marriage such as asura,
Gandharva, etc. But Manu was strictly against the principle of divorce or breakdown
of marital ties. He believed that a wife cannot be released by the husband by any
method i.e., abandonment, sale, etc. he also declared that let the marital fidelity
continue till death, this is the highest dharma of the husband and the wife.

MEANING OF DIVORCE:

The word ‘Divorce’ comes from a Latin word ‘divortium’ which means ‘to separate’.
Divorce means putting an end to the sacred bond of marriage by dissolution under
the authority of a competent court. It is granted by the court of law. After divorce, the
spouses are no longer a party to the marriage and all the established between them
are broken down. The divorce settlement requires the parties to remarry as many
times as they want.

Hindu Marriage Act, 1955 provides for the provision of divorce among Hindus which
deals with various grounds of divorce, alternate remedies before granting divorce,
status of parties after divorce, etc.

THEORIES OF DIVORCE:

Mainly, there are three theories of divorces which are the fault theory, mutual consent
theory and the irretrievable breakdown of marriage theory.

1. Fault theory: under this theory, if a party to a marriage has committed any
matrimonial offence, then, the other party i.e. the innocent party can claim
divorce in the court of law. It is necessary for this theory to have an innocent
and a guilty party. The only drawback of this theory is that no remedy is
available in case both the parties are at fault.
 2. Mutual consent theory: the underlying principle here is that if two people can
marry according to their then, they should be allowed to dissolve it according
to their free will too. Spouses should be allowed to dissolve the marriage if
they wanted to for their own good. Although, the notion of marriage is to keep
the relationship alive till death but they should not be pressurised to continue
it if both the parties want to get out of it.
3. Irretrievable breakdown of marriage theory: there are certain circumstances
where parties are living separately from each other and it is highly unlikely for
them to get together as husband and wife. Such marriages should be
dissolved for the betterment of both the parties to a marriage.

GROUNDS OF DIVORCE UNDER HINDU MARRIAGE ACT, 1955:

Sec 13(1) and sec 13(1-A) provides for fault grounds for divorce. Under these
grounds, either husband or wife can claim divorce.

1. Adultery: it can be defined as any extra marital affair wherein either party to a
marriage has established sexual relationship with some other person not
being his/her spouse during the subsistence of marriage. Before the Marriage
laws Amendments Act 1976, if a spouse is living in adultery, then, only it is
considered as a ground for divorce but after the amendment, even a single
act of adultery is sufficient for the decree of divorce.
1
The Hon’ble Supreme Court in the case of Joseph Shine v UOI
decriminalised the offence of adultery. It is no longer a criminal offence but
divorce can still be granted on this ground.
Essentials of Adultery:
 One of the spouses is indulged in sexual relations outside the marriage
with a person of opposite sex.
 Sexual intercourse was voluntary and consensual
 Marriage of the parties was subsisting at the time of commission of
offence.
 There shall be sufficient circumstantial evidence to prove the liability of
another spouse.

1
(2019) 3 SCC 39
 2. Cruelty: both mental and physical cruelty are a part of this ground. Physical
cruelty can be defined as causing harm in such a way which leads to bodily
injury to the other spouse. While mental cruelty includes acts which affects the
mental health of the other spouse. It is the lack of compassion and kindness
on the part of one spouse which psychologically affect the other spouse. It is
easy to define physical cruelty but mental cruelty is more subjective and not
very easy to define.
In Gurbux Singh v. Harminder Kaur2, the hon’ble SC held that normal wear
and tear of married life and minor aggravations does not amount to mental
cruelty.
3. Desertion: the abandonment of one party by the other party without any
reasonable cause for a continuous period of two years.
Essentials of Desertion:
 Factum of separation
 Intention to desert
 Desertion without any reasonable cause and consent of the other
party
 A statutory period of two years has passed before filing a petition.

The hon’ble SC in the case of Bipinchandra v. Prabhavati 3 held that if one

spouse leaves the house with an intention to desert but is willing to come back
and the other spouse is not allowing him to do so then, it will not be a ground of
divorce.

If there is reasonable cause for desertion then, decree of divorce will not be
granted.

4. Conversion: if one of the spouses converts to any other religion without the
consent of the other spouse then, a decree of divorce can be granted in such
case.
Suresh Babu v. Leela4, in this case, husband converts and marries a Muslim
woman. Wife draws a case seeking divorce on ground of conversion of
husband.

2
(2010) 14 SCC 301
3
AIR 1957 SC 176
4
2006 (3) KLT 891
 5. Insanity: it is a condition of unsoundness of mind. It has 2 requirements:
 The respondent is incurably of unsound mind.
 The respondent is suffering from such mental illness that at this point, it
is not expected out of the applicant to stay with him/her.

In the case of Vinita Saxena v. Pankaj Pandit 5, the respondent was suffering
from Schizophrenia (a mental disorder), petitioner filed a case for divorce on
this ground. The court granted the decree of divorce.

6. Veneral Disease: if one spouse is suffering from a veneral disease i.e., which
is in communicable form and can be transferred easily to the other spouse.
This is considered as a valid ground for divorce.
7. Renunciation: when either party to a marriage renounces the world
completely and decides to follow the path of God, then, the innocent party
may demand for a decree of divorce. In such a situation, the person who has
renounced the world is considered as civilly dead.
8. Presumption of Death: A person is presumed to be dead if his family or friends
have not heard about him for at least seven years. This is a valid ground to
seek divorce. The burden of proof for the presumption of death lies on the
plaintiff only.

DIVORCE BY MUTUAL CONSENT:

Section 13B of the Hindu Marriage Act, 1955 provides for divorce by mutual consent.
A person can file a petition for divorce by mutual consent of both the parties. For
dissolving the marriage by mutual consent, the parties need to wait for one year from
the date of marriage. They will have to show that they are living separately for one or
more year and are not able to live together. After filing the petition under mutual
consent, the Court will not proceed with it for the next 6 months to give time to the
parties so that they can rethink of their decision.

This provision of divorce by mutual consent was added by the amendment of 1976 6
and it has a retrospective effect that is, it is applicable to marriages solemnised
before the amendment.

5
(2006) 3 SCC 78
6
Pg no. 4, The Marriage Laws (amendment) Bill, 1976
Essentials of divorce by mutual consent-

 The petition must be filed jointly by both husband and wife.

 They have mutually agreed to end the marriage.
 They must be living separately for a period of at least one year.
 There is no possibility of presumption of marriage between the two.

The hon’ble Supreme Court in the case of Smt. Surestha Deve vs. Omprakash 7, held
that a party to a petition for divorce by mutual consent may unilaterally withdraw
his/her consent at any time before the decree has been passed. It is irrevocable in
nature.

In the case of Shaveta Garg vs. Rajat Goyal 8, it was held that the waiting period of 6
months can be waived off by the consent of both the parties.

GROUNDS OF DIVORCE AVAILABLE ONLY TO WIFE:

The Hindu Marriage Act, 1955 provides for certain grounds which are available only
to the wife. These are given under section 13(2) which are as follows-

 Bigamy by husband
 Act of rape, sodomy and bestiality committed by husband
 No cohabitation between husband and wife for one or more year after the
decree of maintenance has been passed.
 If the marriage was solemnised before attaining the age of 15 years, then,
wife can repudiate the marriage at the age of 18 years.
1. Bigamy:
Wife can seek the remedy of divorce on the ground of commission of the
offence of bigamy under sec 13(2)(i).
In the case of Lily Thomas vs. UOI 9, the husband converted into another
religion and married another woman, even though his first marriage is still
subsisting. A complaint was filed by the wife on the grounds of bigamy. The
Supreme Court held that though he converted into another religion but he has
still not divorced his first wife thus, he is liable for the offence of bigamy. The

7
AIR 1992 SC 1904
8
AIR 2009 (NOC) 1640 (P&H)
9
(2000) 6 SCC 224
 court also observed that religion is not a commodity and it must be exploited
for one’s own gains and benefits.
2. Rape, Sodomy or Bestiality by husband:
If the husband has committed any of these acts, then, wife is entitled for
divorce under sec 13(2)(ii) of the act. Sec 375 of the Indian Penal Code
defines rape as an offence whereas sodomy or bestiality are considered as
unnatural offences. Sec 377 of the IPC defines unnatural offences as those
where a person engages in an unnatural carnal(sodomy) or anal(bestiality)
intercourse against the rule of nature with any animal.
3. No cohabitation between husband and wife for one or more year after the
decree of maintenance has been passed.
The Amendment Act of 1976 provided another ground to the wife to seek
divorce. According to Sec 13(2)(iii) of the Act, if a decree or order of
maintenance has been passed under section 18 of the Hindu Marriage Act,
1955, or section 125 of the CrPC, 1973 against the husband, directing him to
give maintenance to the wife despite whether she was living apart, and there
was no cohabitation between both for a year or more after the passing of such
a decree or order, the wife can claim divorce.
4. Repudiation of marriage:
HMA, 1955 provides the wife with a right to repudiate the marriage if it was
solemnised before she attained the age of 15 years. She can do so only after
attaining the majority i.e., 18 years. This was added to the act by the
amendment act of 1976.
IRRETRIVABLE BREAKDOWN OF MARRIAGE:
The concept of "irretrievable breakdown" theory for divorce is a legal doctrine that
allows for the dissolution of a marriage when it is deemed to have broken down
irreparably, irrespective of fault or specific grounds traditionally required for divorce.
This theory recognizes that in some cases, marriages may become so dysfunctional,
strained, or unworkable that continuing the marital relationship is no longer in the
best interests of the parties involved.
In conclusion, the irretrievable breakdown theory for divorce represents a shift
towards more flexible and humane divorce laws, recognizing that some marriages
reach a point where they are no longer viable. It aims to balance individual autonomy
and the need for efficient legal processes with the broader social implications of
divorce.
The hon’ble Supreme Court in the case of Naveen Kohli vs. Neelu Kohli 10 suggested
the government for the inclusion of “irretrievable breakdown of marriage” as a ground
for divorce.

CONCLUSION:
The Hindu divorce laws are a complex and multifaceted aspect of the Indian legal
system that have evolved over time to address the changing social dynamics and
needs of the Hindu community. This research paper has explored various
dimensions of these laws, shedding light on their historical development,
contemporary relevance, and the challenges they face.

It is evident that Hindu divorce laws have a rich historical background, rooted in
ancient texts and customs. Over the years, they have undergone significant reform
to accommodate modern societal norms and changing perspectives on marriage and
divorce. The enactment of the Hindu Marriage Act in 1955 marked a pivotal moment
in the codification of these laws, providing a comprehensive framework for Hindu
marriages and divorces.

Furthermore, the research has delved into the recent legal developments, such as
the Supreme Court's recognition of the irretrievable breakdown of marriage as a
ground for divorce, which has provided greater flexibility and relief to individuals
seeking divorce. While progress has been made in addressing some of the
shortcomings, there is still room for improvement, particularly in ensuring timely and
equitable access to divorce for all individuals, regardless of gender or socio-
economic status.

10
AIR 2006 SC 1675