LEGAL LOCK JOURNAL

2583-0384

VOLUME 2 || ISSUE 2

2023

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ISSN: 2583-0384 LEGAL LOCK JOURNAL VOL.2 ISSUE 2

ANALYSIS OF GROUNDS OF DIVORCE UNDER THE HINDU

MARRIAGE ACT,1955
Pratibha Thakur1

Abstract -:
Divorce principally means the legal dissolution of a marriage by a court or other competent body.
In the processor of Divorce both the hubby and woman get relief from all types of nuptial scores.
It’s the complete breakdown of a marriage. All Hindu’s are governed under this Act. There are
some traits in a mate or circumstances due to which the divorce causes, which might force mates
to seek a divorce. You can no longer manage with your mate, and divorce is maybe the stylish
option. Divorce is a seven learned word, which separates the United couple at their own want with
their own concurrence. Therefore divorce is considered as a means to break marriage that happens
not just between two individualities but also between two families. According to Hindu law
marriage is an eternal union as it can noway be ended up but under Hindu Marriage Act, 1955 with
in contractual nature of marriage it can be ended up. As Hindu law believes that marriage is an
eternal union it isn’t veritably easy to take divorce under Hindu law. There are several grounds
which are handed in this Act for any kind of divorce processor to be fulfilled. A divorce is a legal
action between wedded couples who aren’t willing to live together. It’s the termination of the
marriage contract. Under Hindu law divorce can also be taken with the collective concurrence of
both of the parties, if both the parties had mutually agreed that they can’t take there marriage
further. In this composition we’re generally going to study the colorful grounds under whom
Divorce can be taken under Hindu law and critics about the differences between moment’s
condition and law. India with1.1 of divorce rate as Indian’s believe in the chastity of this holly
union. But someone the less quantum of divorce cases is also because of the lack of mindfulness,
dependence of women and orthodox thinking of society which needs to be changed. Commission
of women has initiated the dissolution of marriage in civic areas as financially educated women
are now open to the option of ending the relationship rather than to bear life-long abuses. The
juggernauts on gender equivalency are now giving rise to pride clashes between the hubby and
woman , especially if the woman too is the chuck winner of the family. As in ancient times their

1
The author is a student at Guru Nanak Dev University, Amritsar.

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was noway disaccord between hubby and woman because of the reliance of woman upon her
hubby, he used to treat her as he wanted, and woman noway used to raise any question about the
atrocity on her because of her situation and circumstances. According to lawyers & Mental Health
Experts, Pressures have Increased on the Domestic Front during the Epidemic.

Judicial separation-

Judicial separation is also an volition used for termination with the nuptial scores. Judicial
separation also known as a decree of judicial separation or an order for judicial separation, is a
legal document inked by a judge in India that declares the consorts to be separate and living
piecemeal. Judicial separation can be granted on the same as for divorce. As in India there's a great
taboo in the eyes of individualities that taking divorce is breaking up of a eternal union, Or holly
union. An existent who had took divorce is generally about making that person feel bad about what
decision they had made. So reducing degree of this belittle people frequently choose the way with
means of judicial separation. Judicial separation conception as mentioned in section 10 of the
Hindu Marriage Act, 1955 provides judicial separation for both the consorts, those who are married
under this Act. They can claim the relief by a solicitation and when the decree of separation is
passed by court also they no longer need to live together. principally in judicial separation the
decision of not living together by the parties can be abandoned but in the case of divorce decision
among the parties can’t be abandoned. So if after Judicial separation parties had changed their
minds also they can continue their nuptial scores. That’s why as per the society’s morals it's
considered as lower wrong. According to Law enterprises, there has been a 50- 60 %Increase in
Divorce Cases in the Last Year. Legal Practice Management Startup Legal Cart saw a nearly 25
%Increase in Separation & Divorce Questions between January & May this time compared to a 1
time ago

Fault Grounds for divorce -:

As under section 13 for Hindu Marriage Act ,1955 the grounds for taking divorce under Hindu law
are as following -:

• Adultery
• Cruelty

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• Desertion
• Conversion
• Unsoundness of mind
• Leprosy
• Venereal disease
• Presumption of death
• Renounced the world

On these nine grounds both the parties can claim divorce under Hindu Marriage Act,1955. So
further we will discuss deeply about all the grounds provided under Hindu law-:

1. Adultery – Adultery principally means consensual and voluntary intercourse between a

wedded person and any other person except their spouse. As according to Hindu Marriage
Act this act is considered as a pivotal aspect for relationship of husband and wife . The
burden of proving the act of adultery is upon the petitioner. As in the case Subbaramma
v. Saraswati , court held that one single act of adultery is enough for divorce or judicial
separation.
Now as we take view of various reports it set’s up that numerous cases of divorce are
because of the acts of adultery.
2. Cruelty – Cruelty is among the main grounds of taking divorce. It is the physical or mental
violence on the spouse. The description of cruelty is not clearly mentioned . As in any act
of cruelty the intention of the person doing cruelty doesn’t matters . If person does cruelty
without any intention of doing cruelty , he is still liable for his act. Cruelty is of two types
physical cruelty and mental cruelty. Physical cruelty is generally physical abuse but mental
cruelty is torturing a person mentally.
In case Bhagwat v. Bhagwat , the husband strangulated wife’s brother on one another and
her son on other occasion because of the insanity attacks . So it was held that wilful
intention to injure is not an essential element of cruelty.
• Physical cruelty – When one spouse does physical abuse or torture on another
person effecting the physical health of that spouse is known as physical cruelty. In
Jyotish Chandra v. Meera , in this case physical cruelty coupled was done with

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mental cruelty . So it was stated that , even one or two acts of physical violence are
sufficient to constitute cruelty ,but not in the case of isolated instance.
In case Ashok v. Santosh their was mere cruelty on the husband on the ground of
wife as she used to pull flaccid penis of her husband. So the court held that this
action of the wife is mere ground to cruelty, as these action result in intense pain .
• Mental cruelty -In Bhagat v. Bhagat Supreme court defined the concept of mental
cruelty . So basically mere cruelty with acts and instances by any spouse on the
other spouse which results in mental abuse of that spouse is known as mental
cruelty.
• In the case of Parveen Mehta v. Inderjeet Mehta ,court has defined mental cruelty
as a state of mind and feeling of a person.
• Om Prakash Bhagat vs Smt. Gauri Devi on 16 August, 2019
• Vishwanat vs Sau. Sarla Vishwanath Agarwal.
• U.Sree v. U. Srinivas

Some mental cruelty cases-:

*On the ground of false accusations of adultery or unchastity

*on the ground wife quarrelling with mother in law

*On the ground of demand of dowry by in laws or husband

*On the ground of Persistence refusal to have marital intercourse

*On the ground of drunkenness

*On false criminal charges

*On the ground of refusal to have children

These are the commonly found cases under cruelty.

Section 498A under Indian penal code -498A. Husband or relative of husband of a woman
subjecting her to cruelty.—Whoever, being the husband or the relative of the husband of a woman,
subjects such woman to cruelty shall be punished with imprisonment for a term which may extend
to three years and shall also be liable to fine.

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Ingredients of Section 498A-:

• The woman must be legally married to her husband.

• The woman must have been subjected to some sort of cruelty or marital abuse.
• Such cruelty must be done by her husband himself or the relatives of the husband and here
the terms relative only includes the husband’s parents, brothers and sisters and nobody
other than them, not even any close friend or any distant relatives.
• However, if the husband commits such cruelty he shall be liable for imprisonment which
may extend to three years with fine.

Section 354 in The Indian Penal Code-:

354. Assault or felonious force to woman with intent to Outrage her modesty. Whoever assaults
or uses Felonious force to any woman, intending to outrage or knowing it to be likely that he’ll
thereby outrage her modesty, shall be penalized with imprisonment of either description for a term
which may extend to two times, or with fine, or with both.

Now as are has given relief to women against whom these pivotal acts of atrocity have been
performed. As women in India aren’t important educated and independent so they can raise voice
against their hubby. Domestic violence was veritably common among Indians. On average, nearly
20 people per nanosecond are physically abused by an intimate mate in the United States. During
one time, this equates to further than 10 million women and men.

So these vittles are really helpful for vulnerable women who are facing these kind of practices on
them. But with these certain pros there are cons too.

As it’s a big relief for women but certain fake cases are also set up in the same manner. When any
women has made her mindset that she does n’t wants to live with her hubby but she does n’t have
any ground under which she can apply for divorce and her hubby is also not agreed for divorce by
collective concurrence also the most generally ground used is of atrocity and demand of dowry by
in laws.

Indian people have mindset that courts processors are veritably top paining as they want to settle
down effects mutually. Utmost of the time during the hail to settle down case mutually women
demand compensation from there hubby’s families and to settle the matter substantially people

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fulfil their demand. Knowhow numerous relives are given under these kind of cases when there
are fame allegations by other party but still these kind of practices are prevailing in our society.

→ Mukesh Bansal VS State Of UP & Another on 13 June, 2022

→ Arnesh Kumar VS State Of Bihar & Anr on 2 July, 2014

3. Desertion – (dereliction )“ The expression dereliction means reasonable cause and without
the concurrence or against the want of similar party, and includes the wilful neglect of the
supplicant by the other party to the marriage, and it’s grammatical variations and connate
expressions shall be demonstrated consequently. ” So principally dereliction means when
partner lefts the company of the other consorts not only from the place but from a state of
effects. dereliction can distributed in to following-
•( factual dereliction)
•( Formative dereliction,)
Actual desertion (factual dereliction) - factual dereliction principally means the situation
in which the partner has both the intention i.e.( enmity deserdendi) and has actually
abandoned his/ her nuptial home. In case the partner has intention to leave his nuptial home
but noway takes a step to leave it in reality this does not fall under the condition of factual
dereliction.
→ Lachman v. Meena
→ jagannath v. Krishna
→ Rohini v. Narendra Singh
Now, concluding along with these two conditions there are three pointers more which are
that dereliction shouldn't be without the concurrence of the other party, there should be
reasonable cause for dereliction, the solicitation for the ground of dereliction can only be
filled if there's completion of statutory period of two times. In case the partner return one
day before the completion of the period of two times, vacated partner concurrence to
dereliction also it would n’t be a valid ground for dereliction.
Constructive desertion (Formative dereliction)- “ dereliction isn't pullout from a place but
from the state of effects ” Now then state of effects may relate to nuptial scores or
cohabitation. When the situation of dereliction on formative base it's called formative
dereliction. For case a hubby beaten up his woman , treated her severely and used to keep

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her in a separate room and now he's claiming for divorce under ground of dereliction. So
would it be valid?
In colorful cases court considered it as formative dereliction.
→ Lang v. Lang
→ Anil Kumar v. Sefali
→ Shyam Chand v. Janki
→ Jyotish Chandra v. Meera
Termination of desertion – So if the conditions valid for dereliction being a ground for
divorce aren't fulfilled, dereliction comes to an end. For case When resumption of
cohabitation between the consorts, there resumption of intercourse between the consorts or
there's offer of conciliation from the partner. The burden of proving the ground of
dereliction is on the vacated person.
Conversion- If a person ceases to be a Hindu and has converted into another religion, also
the partner of that person can file for divorce under the ground of conversion.
Illness of mind/ Insanity – This ground for divorce can be executed when the partner has
been suffering continuously or intermittently from internal complaint of such a kind and to
such an extent that the supplicant can not nicely be anticipated to live with the replier. So
if the decree of insanity of that partner so high that it's insolvable for the partner to live
with that person in such a case relief can be claimed under this group of divorce. “The
expression desertion means reasonable cause and without the consent or against the wish
of such party , and includes the wilful neglect of the petitioner by the other party to the
marriage ,and it’s grammatical variations and cognate expressions shall be construed
accordingly .” So basically desertion means when spouse lefts the company of the other
spouses not only from the place but from a state of things.
4. Leprosy – Malignant or venomous leprosy is called virulent leprosy. When the condition
of leprosy in a person is incurable then it can be used as a ground for divorce but in cases
when leprosy is mild it can’t be used as a ground for divorce. Leprosy is also virulent from
which ulcerous and unsightly symptoms appear or when social intercourse becomes almost
impossible.

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5. Venerable Disease –Any person can claim divorce under this ground if his spouse for a
period of not less than three years immediately preceding the presentation of the petition,
been suffering from venereal disease in a communicable form.
6. Presumption of death – If a person is lost from more than 7 years and there is no idea or
proof of him being alive that person is presumed to be dead . The spouse of such a person
can claim divorce under this ground. Without applying for dissolution of marriage if such
spouse remarries and that person reappears after some time , not only the marriage can be
declared void but also he can plead for bigamy . So such person before remarrying should
first apply for dissolution of marriage . Once the marriage is dissolved such a perfect is free
to marry any person.
7. Renunciation of world – If a person according to religious order or factors renounces the
world , a petition can be filled by the spouse. Such spouse can file for divorce under this
ground. If a person ceases himself from social interactions without entering into any
religious order it would not be considered as a valid ground for divorce.
• Wife’s special grounds of divorce –
According to section 13(2) of the Hindu Marriage Act,1955 there are certain special
grounds given to the wife for divorce, these are-:
# Bigamy: If the husband has another wife from before the commencement of the act, alive
at the time of the solemnization of the marriage of the petitioner. In this case the wife can
apply for a marriage stating the bigamy and proving their innocence in the matter. It
provides relief to the wife from polygamous marriage.
# Unnatural offenses -: If the husband is convicted for any Unnatural offenses lie rape ,
sodomy ,or bestiality then the wife has the right to claim divorce from such person under
this ground.

# Separation-: Non-resumption of cohabitation for one year after an order of maintenance.

When there is no resumption of cohabitation between the spouses after passing the decree
of maintenance then the wife can claim divorce from her husband.

# Underage-: The wife has right to claim divorce from her husband if her marriage was
solemnized before she had attained the age of fifteen years, and she has refused to be in the
marriage after attaining that age, but before the age of eighteen. After attaining the age of

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eighteen years she has repudiated her marriage. There are necessary two conditions that
she was married to that person before she had attained the age of fifteen years and secondly
she repudiates her marriage after she attains her age of eighteen years.

• Conclusion –

The issue of increasing divorce rate in India just seems unsolvable because of the non faithful
relationships. As per the above data we can see that 27% of divorce rate is just because of Infidelity
as in these relationships people are not really ready for marriage. They just make it happen because
of family pressure and societies pressure, which leads to acts of adultery. Increasing rates of
divorce has its own positive and negative aspects. In past years women were not educated so that
they can raise their voice against the cruelty happening on them but in present time women are
well educated so they are well awared about there rights. On opposite side it has negative aspect.
Women are so educated that they know they can live there life independently due to which the
adjustment factors which used to prevail in marriages are ending now. Which are leading to
increase in the divorce rates. The misuse of ground of cruelty is just because of the incompatibility
of the spouses. Usually one of them don’t want to be in that relationship but because of the lack of
clear ground for taking them Divorce, they misuse the ground of cruelty by using false allegations
of cruelty and dowry. The most disheartening fact is that these grounds are mostly suggested by
lawyers to the spouses. It shows that Hindu divorce system needs to be more liberal so that if there
is situation that one don’t want live with other in any condition then there is no meaning of
restricting them because marriage is a relation ship where there should be consent of both of the
parties. So if after marriage one has such mental state so that they don’t want to be in that
relationship then they should be set free.

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