Hindu Marriage Act 1955

Dissolution of Marriage by Decree of Divorce

Grounds of divorce

Section 13(1) : Available to both husband and wife

Available in respect of all marriages, whether

solemnized before or after the Act

Nine grounds :

(i) Voluntary sexual intercourse with another person

(ia) Cruelty to spouse

(ib) Desertion for a continuous period of 2 years or more

(ii) Conversion to another religion

(iii) Unsound mind or mental disorder

(iv) Virulent and incurable form of leprosy

(v) Communicable venereal disease

(vi) Renouncing the world by entering a religious order

(vii) Not heard of for 7 years

Section 13 (1A): Available to both husband and wife

Available in respect of all marriages, whether

solemnized before or after the Act

Two grounds

(i) No resumption of cohabitation for 1 year or more after a

decree for judicial separation

(ii) No restitution of conjugal rights for 1 year or more after a

decree for restitution of conjugal rights

Section 13(2): Available only to the wife

Four grounds

(i) For marriages solemnized before the Act : Husband having a

living second wife

(ii) Husband guilty of rape, sodomy or bestiality after marriage

(iii) A decree or order against the husband for maintenance

under HAMA or CrPC and

no cohabitation between the parties for 1 year or more

(iv) Marriage solemnized before wife was 15 years of age and

she repudiates the marriage when she is between 15 to 18
years of age [The Option of Puberty]

Divorce by Mutual Consent

Section 13B : Essential ingredients:

(i) Petition for divorce to be presented by both husband and

wife together

(ii) Husband and wife have been living separately for a period of
1 year or more

(iii) They have not been able to live together

 (iv) They have mutually agreed to dissolve the marriage

(v) Motion to be made by both parties between 6 to 18 months

from the date of petition

(vi) Petition is not withdrawn in the meantime

(vii) Court to be satisfied that a marriage was solemnized

(viii) Court to be satisfied that the averments in the petition are

true

Q 1: What is Cruelty in terms of Section 13(1)(ia)?

Cruelty consists of acts which are dangerous to life, limb or health.

Cruelty maybe physical or mental.

Mental cruelty is the conduct of the other spouse which causes

mental suffering or fear to the other.

Cruelty is a conduct which endangers the living of the petitioner

with the respondent.

Cruelty has to be distinguished from the ordinary wear and tear of

family life.

Q 2: What is Desertion in terms of Section 13(1)(ib)?

Ans: Desertion means intentional permanent abandonment

of one spouse by the other

without that others consent and

without reasonable cause.

Desertion is not the withdrawal from a place but from a state of

things.
 Desertion is not a single act complete in itself; it is a continuous
course of conduct.

Important case law on Cruelty and Desertion

Savitri Pandey v. Premchandra Pandey 2002 SC

Essential conditions to be satisfied for the offence of desertion:

For the deserting spouse:

(i) Factum of separation

(ii) Animus Deserendi: Intention to bring cohabitation

permanently to an end

For the deserted spouse

(i) Absence of consent

(ii) Absence of conduct giving reasonable cause to the deserting

spouse

Landmark Case Law on Mutual Consent

Sureshta Devi v. Omprakash 1992 SC

Facts

Petition u/s 13B filed by husband and wife together

Wife withdrew her consent subsequently

Decision: Ratio Decidendi:

(i) Living separately connotes not living like husband and wife. It
has no reference to the place of living. The parties may live
under the same roof and yet they may not be living as husband
and wife.
 (ii) Have not been able to live together indicates the concept of
broken down marriage.

(iii) Mere filing of the petition does not authorize the Court to make
a decree for divorce. The waiting period of 6 to 18 months is
intended to give time and opportunity to the parties to reflect
upon their move and seek advice from relations and friends.

(iv) In this period one of the parties may have a second thought
and change the mind not to proceed with the petition.

(v) Mutual consent should continue till the decree of divorce is

passed.

Irretrievable breakdown of marriage

The Supreme Court has held in V.Bhagat v. D.Bhagat, (1994) that

irretrievable breakdown of marriage is not a ground by itself to dissolve
the marriage.