Introduction

In a literal sense, “divorce” refers to a legal dissolution of a marriage between two individuals. In ancient Hindu law texts, the concept of marriage was considered a sacred and permanent bond between two individuals. It was seen as indissoluble, which means that it cannot be broken. There were no legal provisions for divorce under the Hindu law until the enactment of the Hindu  Marriage Act,1955 ( HMA,1955). 

SECTION 13 OF THE HINDU MARRIAGE ACT 1955 INTRODUCED THE GROUNDS FOR DIVORCE. 

Origin 

The word “Divorce” has been derived from the Latin word “divortium”, which means separation. Thus, in simple terms, divorce means the legal ending of a marriage. Simply, we can say that when a husband and wife decide through the court that they no longer want to live as a married couple, the law officially ends their marriage. So, literally, divorce means the legal separation of husband and wife. 

Theories of Divorce 

Marriage is usually seen as a lifelong relationship, but sometimes problems arise, and the husband and wife cannot live properly and happily. In such cases, the law allows divorce, which means the legal ending of marriage. The concept theories of divorce explain the grounds on the basis of a marriage can be dissolved.

There were mainly three kinds of theories of divorce under the Hindu Marriage Act,1955.

• Guilt / Fault Theory 

• Mutual Consent Theory 

• Breakdown Theory   

Guilt or fault theory

The guilt or fault theory of divorce asserts that a marriage can be dissolved only when one spouse commits a matrimonial offence, which makes them guilty and the other innocent. The innocent party can file a divorce suit against the guilty spouse and claim a divorce. 

Grounds for divorce under the fault theory

Section 13 (1) of the Hindu Marriage Act, 1955 [HMA,1955] lists specific grounds based on the fault theory, such as adultery, cruelty, desertion, etc. The following grounds for divorce under the fault theory or guilt theory are given :

Section 13 (1)(i) Adultery 

The concept of Adultery defines that when one person has sexual intercourse with someone other than their spouse. 

CASE: SWAPNA GHOSE VERSUS SADANAND GHOSE 

In this case, the court found sufficient evidence of adultery when the wife found her husband and the adulteress lying together on the bed at night. 

Section 13(1)(ia) Cruelty

The concept of cruelty includes both physical and mental cruelty. It defines when one person treated the petitioner with cruelty. 

Section 13 (1)(ib) Desertion

The concept of desertion defines that when one spouse abandons the other without reasonable cause, against the wish of the other, without consent, and with wilful neglect for 2 years.

 Elements 

• Factum deserendi (fact of separation) -The physical act of one spouse withdrawing from the other, ending normal marital cohabitation.

• Animus deserendi (intention to desert)- The mental element is deliberate and permanent intention to end the marital relationship.

Section 13 (1)(ii) Conversion

The concept of conversion defines that when the other party has ceased to be Hindu by conversion to any other religion.

Section 13 (1)(iii) Unsoundness of mind 

The unsoundness of mind defines that if one spouse is incapable of leading a normal married life due to a mental disorder or suffering continuously from incurable unsoundness of mind, the other person can claim divorce. 

Section 13 (1)(iv) Virulent and incurable leprosy 

It defines that leprosy is granted as a remedy for divorce, and the obligation of proving this is on the petitioner.

It was removed by the 2019 amendment. 

Section 13 (1)(v) Venereal disease in communicable form 

It defines that if one spouse suffers from such a disease, HIV or AIDS, the other can seek divorce. 

Section 13(1)(vi) Renunciation of the world 

It defines that if one spouse has renounced worldly life and entered a religious order, e.g., sanyasi, the other can file for divorce.

Section 13 (1)(vii) Presumption of death 

It defines that if a spouse has not been heard alive for 7 years or more, the other may seek a divorce. 

Grounds for the wife 

Section 13 (2) of the Hindu Marriage Act, 1955 [HMA,1955] provides the following additional grounds on which a wife can seek divorce from her husband. These include:

Section 13 (2)(i) Bigamy 

It defines that if a husband has another wife alive at the time of marriage.

Section 13 (2)(ii) Rape , sodomy,bestiality

It defines that if a husband is guilty of rape, sodomy and bestiality.

Section 13 (2)(iii) Failure to obey order of maintenance 

It is a loss for a wife to file for divorce if her husband has failed to obey the order to pay her maintenance under the Hindu Marriage Act, and they have not resumed living together for 1 year or more after that order.

Section 13 (2)(iv) Option of puberty 

It gives the right to a girl who is married before 15, the right to repudiate her marriage before she turns 18, regardless of consummation. It is also known as the “option of puberty”.

Mutual consent theory 

Meaning

Divorce by mutual consent allows a married couple to end their marriage amicably, without assigning blame to either party. It is based on the no-fault principle, recognising that irreconcilable differences can make cohabitation impossible. The divorce by mutual consent is governed by Section 13B of the Hindu Marriage Act, 1955. It requires both spouses to jointly file a petition declaring they have lived separately for at least one year, cannot live together, and mutually agree to dissolve their marriage.

Divorce by mutual consent is a contentious process in which both spouses agree to end their marriage amicably and without assigning fault. This type of divorce is also known as “no-fault divorce”. 

The process involves two motions: the first to file the petition and the second after a statutory waiting period of six months ( which can be waived in certain cases). 

Section 13 B (1): Filing the first motion

To initiate the process under the Hindu Marriage Act, a joint petition must be filed by both spouses before a family court having jurisdiction. The petition must satisfy the following conditions:

• Living Separately for One Year or More: The parties must have lived separately for at least one year. Importantly, “living separately ” does not necessarily imply residing in different locations. It signifies a cessation of marital relations, as clarified by the Supreme Court in Sureshta Devi versus Om Prakash.

• Inability to live together: The petition must declare that the spouses are unable to live together due to irreconcilable differences.

• Mutual Agreement to Dissolve the Marriage: Both parties must mutually agree that the marriage should be dissolved.

Section 13 B (2): Filing the second motion 

After filing the first motion, a cooling-off period of six months is prescribed. During this time, the parties are encouraged to reconsider their decision. If reconciliation efforts fail, the second motion can be filed, subject to the following:

• Timeline: The second motion must be filed no earlier than six months and no later than eighteen months after the first motion.

• Conditions for decree: The court, after hearing the parties and ensuring the truthfulness of their statements, may pass a decree dissolving the marriage.

The cooling-off period: The cooling-off period of six months, prescribed under section 13 B(2), has been a subject of judicial scrutiny. While it intends to facilitate reconciliation, it often prolongs the agony of parties in irreparable marriages.  

Case :

• Amardeep Singh versus Harveen Kaur (2017): The Supreme Court held that the cooling-off period is directory, not mandatory. It can be waived under the following conditions:  

• The parties have already lived separately for over one year.

• Mediation and conciliation efforts have failed.

• All issues, such as alimony and Custody, have been settled.

• The waiting period would only exacerbate the patient’s suffering.

Irretrievable Breakdown Theory 

Meaning 

The term “irretrievable breakdown of marriage ” refers to a situation where the relationship between spouses has deteriorated to such an extent that there is no hope or possibility of reconciliation. This concept is often associated with “no-fault” divorce, where neither party is required to prove fault, such as adultery or cruelty, to dissolve the marriage. Instead, the focus lies on the mutual recognition that the relationship cannot continue.

Unlike other grounds for divorce, such as adultery, cruelty, or desertion, this ground focuses on the emotional and functional aspects of the marriage, emphasising the complete collapse of mutual understanding and affection.

Globally, this principle has gained traction as a humane approach to divorce, prioritising the mental health and well-being of the parties involved. In India, however, the Hindu Marriage Act,1955 [HMA], does not explicitly recognise irretrievable breakdown as a ground for divorce. Indian courts have often invoked the principle indirectly, using Article 142 of the Constitution, which grants the Supreme Court the power to ensure “ complete justice”.

Factors Considered by Courts To Determine Irretrievable Breakdown of Marriage 

In determining whether a marriage has irretrievably broken down, courts typically evaluate: 

1. Duration of separation: A long period of separation ( usually over 6 years )  is a strong indicator of irretrievable breakdown.

2. Last cohabitation: The time since the parties last lived together provides insight into the viability of reconciliation. 

3. Nature of allegations: Hostile and baseless allegations made against each other can signal the impossibility of continuing the marriage. 

4. Impact of legal proceedings: Past judgements and mediation efforts often reveal the irreparability of the relationship. 

5. Attempts at reconciliation: Evidence of failed reconciliation efforts, whether through mediation or counselling, supports the claim of breakdown. 

6. Economic and social status: Considerations include the financial independence of the parties, educational qualifications and arrangements for dependents.  

Case:

• Naveen Kohli versus Neelu Kohli (2006): The Supreme Court in Naveen Kohli versus Neelu Kohli recognised irretrievable breakdown as a ground for divorce, emphasising that prolonged conflict and allegations had rendered the marriage unsustainable.  The court recommended that the legislature amend the Hindu Marriage Act to incorporate the principle, highlighting the futility of forcing individuals to remain in a dead marriage.

Role of Article 142 

Article 142 of the Indian Constitution empowers the Supreme Court to grant a divorce in cases of irretrievable breakdown, overriding statutory limitations. However,  this discretionary power is exercised with caution to prevent misuse.

Key considerations under Article 142 include:

1. Ensuring complete justice: The court must balance equity, considering the circumstances of both parties. 

2. Bypassing procedural delays: The cooling-off period mandated by section 13-B of the Hindu Marriage Act can be waived if reconciliation is deemed impossible. 

3. Safeguarding vulnerable parties: Courts must ensure adequate alimony and financial arrangements before granting a divorce.

Conclusion 

Marriage is considered a sacred bond in Hindu culture. Before the Hindu Marriage Act of 1955, there was no allowance for divorce, as it was deemed too extreme for the Indian society of that era. Women were the unseen sufferers under the stringent system. The notion of divorce was not acknowledged,  and it was expected that a woman would adapt and compromise. However, with the introduction of the Hindu Marriage Act in 1955, the concept of divorce and corresponding provisions began to evolve to meet the needs of an ever-changing society. The Hindu Marriage Act of 1955 divided divorce into three categories, which are fault or guilt theory, mutual consent theory and irretrievable breakdown theory.

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