PROJECT WORK FOR HINDU

JURISPRUDENCE

Divorce under Hindu Law: A critical analysis

Under the supervision of MR. Enam Firdaus

Submitted by
LUBNA TANWEER
LLM- 1ST SEMESTER

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 ACKNOWLEDGEMENT
I have taken efforts in this project. However, it would not have been possible
without the kind support and help of many individuals. I would like to extend
my sincere thanks to all of them.

First of All, I would like to thank Almighty for blessing me with good health
throughout the completion of this project.

I am highly indebted to MR. ENAM FIRDAUS for his guidance and

supervision as well as for providing necessary information regarding the project
and also for his support in completing the project.

I would like to express my gratitude towards my parents for their

encouragement which helped me in completion of this project.

I would like to express my special gratitude and thanks to my classmates and

friends who have willingly helped me out with their abilities.

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 Table of contents
Introduction --------------------------------------------------Page 4
Theories of divorce-----------------------------------------Page 5
Grounds of divorce-----------------------------------------page 6
1) Adultery
2) Cruelty
3) Desertion
4) Conversion
5) Insanity
6) Leprosy
7) Venereal disease
8) Renunciation
9) Presumption of Death

Wife special grounds for divorce---------------------------page 10

Changes in the law of divorce under Hindu law----------page 14
Conclusion-------------------------------------------------page 20
Bibliography----------------------------------------------page 21

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 INTRODUCTION
The term ‘divorce’ comes from the Latin word ‘divortium’ which means ‘to
turn aside’, ‘to separate’. Divorce is the legal cessation of a matrimonial bond.
Divorce puts the marriage to an end, and the parties revert back to their
unmarried status and are once again free to marry. All rights and mutual
obligations of husband and wife ceases. In other words, after a decree of
dissolution of marriage, the marriage comes to an end and the parties cease to
be husband and wife, and are free to go their own ways. There remain no bonds
between them except in relation to Section 25 and Section 26 of Hindu
Marriage Act, 1955. Matrimonial causes (i.e., legal action in respect of
marriages) in their real sense did not exist in Hindu law before 1955, although
some reliefs in respect of marriage could be obtained under general law. Thus, a
suit for a declaration that a marriage is null and void could be filed under
Section 9 C.P.C. The modern matrimonial law in India has been greatly
influenced by and based upon English matrimonial law.

Section 13 of the Hindu Marriage Act, 1955 has introduced a revolutionary

amendment to the shastric Hindu law. It provides for the dissolution of
marriage. Under the Hindu law, divorce does not take place unless it has been
granted by a court. Before passing of the Marriage Laws (Amendment) Act,
1976, the grounds for judicial separation and divorce were different. The
Marriage Laws (Amendment) Act, 1976 makes the grounds of divorce and
judicial separation common. An aggrieved party may sue for divorce or judicial
separation.

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 THEORIES OF DIVORCE

There are basically three theories for divorce-fault theory, mutual consent
theory & irretrievable breakdown of marriage theory.

Under the Fault theory or the offences theory or the guilt theory, marriage can
be dissolved only when either party to the marriage has committed a
matrimonial offence. It is necessary to have a guilty and an innocent party, and
only innocent party can seek the remedy of divorce. However the most striking
feature and drawback is that if both parties have been at fault, there is no
remedy available.

Another theory of divorce is that of mutual consent. The underlying rationale is

that since two persons can marry by their free will, they should also be allowed
to move out of their relationship of their own free will. However critics of this
theory say that this approach will promote immorality as it will lead to hasty
divorces and parties would dissolve their marriage even if there were slight
incompatibility of temperament.

The third theory relates to the irretrievable breakdown of marriage. The

breakdown of marriage is defined as “such failure in the matrimonial
relationships or such circumstances adverse to that relation that no reasonable
probability remains for the spouses again living together as husband & wife.”
Such marriage should be dissolved with maximum fairness & minimum
bitterness, distress & humiliation.

Some of the grounds available under Hindu Marriage Act can be said to be
under the theory of frustration by reason of specified circumstances. These
include civil death, renouncement of the world etc.

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 GROUNDS OF DIVORCE

It is conceded in all jurisdictions that public policy, good morals & the interests
of society require that marital relation should be surrounded with every
safeguard and its severance be allowed only in the manner and for the cause
specified by law. Divorce is not favoured or encouraged, and is permitted only
for grave reasons.

In the modern Hindu law, all the three theories of divorce are recognized &
divorce can be obtained on the basis of any one of them1. The Hindu Marriage
Act, 1955 originally, based divorce on the fault theory, and enshrined nine fault
grounds in Section 13(1) on which either the husband or wife could sue for
divorce, and two fault grounds in section 13(2) on which wife alone could seek
2
divorce. In 1964, by an amendment, certain clauses of Section 13(1) were
amended in the form of Section 13(1A), thus recognizing two grounds of
breakdown of marriage. The 1976 amendment Act inserted two additional fault
grounds of divorce for wife & a new section 13B for divorce by mutual
consent.3
The various grounds on which a decree of divorce can be obtained are as
follows-

Adultery

While adultery may not have been recognized as a criminal offence in all
countries, the matrimonial offence of adultery or the fault ground of adultery is
recognized in most. Even under the Shastric Hindu law, where divorce had not
been recognized, adultery was condemned in the most unequivocal terms. There
is no clear definition of the matrimonial offence of adultery4. In adultery there
must be voluntary or consensual sexual intercourse between a married person
and another, whether married or unmarried, of the opposite sex, not being the

1
B.M. Gandhi- Hindu Law, 3rd edn. 2008, p.297, Eastern Book Company, Lucknow. 2 . Sankaralingam v. Suan,

2
. Sankaralingam v. Suan, 1894 ILR Mad 479; Premanbai v. Channoolal AIR 1963 MP 57; Shivalingaiah v.
Chowdamma AIR 1956 Mys 17; cf: R.C. Nagpal- Modern Hindu Law, p. 62
3
Dr. Paras Diwan- Modern Hindu Law, 18th edn. 2007, p.128, Allahabad Law Agency, Faridabad (Haryana)

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other’s spouse, during the subsistence of marriage. Thus, intercourse with the
former or latter wife of a polygamous marriage is not adultery. But if the second
marriage is void, then sexual intercourse with the second wife will amount to
adultery.

Though initially a divorce could be granted only if such spouse was living in
adultery, by the Marriage Laws Amendment Act, 1976, the present position
under the Hindu Marriage Act is that it considers even the single act of adultery
enough for the decree of divorce.

Since adultery is an offence against marriage, it is necessary to establish that at

the time of the act of adultery the marriage was subsisting. Also, it follows that
unless one willingly consents to the act, there can be no adultery. If the wife can
establish that the co-respondent raped her, then the husband would not be
entitled to divorce.

In Swapna Ghose v. Sadanand Ghose the wife found her husband and the
adulteress to be lying in the same bed at night and further evidence of the
neighbours that the husband was living with the adulteress as husband and wife
is sufficient evidence of adultery. The fact of the matter is that direct proof of
adultery is very rare.

The offence of adultery may be proved by:

 Circumstantial evidence

 Contracting venereal disease

Cruelty

The concept of cruelty is a changing concept. The modern concept of cruelty

includes both mental and physical cruelty. Acts of cruelty are behavioural
manifestations stimulated by different factors in the life of spouses, and their
surroundings and therefore; each case has to be decided on the basis of its own
set of facts5. While physical cruelty is easy to determine, it is difficult to say
what mental cruelty consists of. Perhaps, mental cruelty is lack of such conjugal
kindness, which inflicts pain of such a degree and duration that it adversely
affects the health, mental or bodily, of the spouse on whom it is inflicted.

5
Permanent alimony and maintenance.

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In Pravin Mehta v. Inderjeet Mehta, the court has defined mental cruelty as ‘the
state of mind6.’

Some Instances of Cruelty are as follows–

 false accusations of adultery or unchastity

 demand of dowry

 refusal to have marital intercourse/children

 impotency

 birth of child

 drunkenness

 threat to commit suicide

 wife’s writing false complaints to employer of the husband

 incompatibility of temperament

 irretrievable breakdown of marriage

The following do not amount to cruelty-

 ordinary wear & tear of married life

 wife’s refusal to resign her job

 desertion per se

 Outbursts of temper without rancor.

Desertion

Desertion means the rejection by one party of all the obligations of marriage-
the permanent forsaking or abandonment of one spouse by the other without any
reasonable cause and without the consent of the other. It means a total
repudiation of marital obligation.7

6
Custody, maintenance and education of minor children
7
Dr. Paras Diwan- Family Law, 6th edn. 2001, p.124, Allahabad Law Agency, Faridabad (Haryana

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The following 5 conditions must be present to constitute a desertion; they must
co-exist to present a ground for divorce:

 the factum of separation

 animus deserendi (intention to desert)

 desertion without any reasonable cause

 desertion without consent of other party

 Statutory period of two years must have run out before a petition is
presented.

In Bipinchandra v. Prabhavati the Supreme Court held that where the

respondent leaves the matrimonial home with an intention to desert, he will not
be guilty of desertion if subsequently he shows an inclination to return & is
prevented from doing so by the petitioner.8

Conversion

When the other party has ceased to be Hindu by conversion to any other religion
for e.g. Islam, Christianity, Judaism, Zoroastrianism, a divorce can be granted.

Insanity

Insanity as a ground of divorce has the following two requirements-

1. i) The respondent has been incurably of unsound mind

2. ii) The respondent has been suffering continuously or intermittently from

mental disorder of such a kind and to such an extent that the petitioner
cannot reasonably be expected to live with the respondent.

Leprosy

Contagiousness of leprosy and repulsive outward manifestations are responsible

for creating a psychology where man not only shuns the company of lepers but
looks at them scornfully. Thus, it is provided as a ground for divorce. The onus
of proving this is on the petitioner.9

Venereal Disease

8
Dr. Paras Diwan- Family Law, 6th edn. 2001, p.124, Allahabad Law Agency, Faridabad (Haryana).
9
Bombay Hindu Divorce Act, 1947; Madras Hindu (Bigamy Prevention and Divorce) Act, 1949

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At present, it is a ground for divorce if it is communicable by nature irrespective
of the period for which the respondent has suffered from it. The ground is made
out if it is shown that the disease is in communicable form & it is not necessary
that it should have been communicated to the petitioner (even if done
innocently).10

Renunciation

“Renunciation of the world” is a ground for divorce only under Hindu law, as
renunciation of the world is a typical Hindu notion. Modern codified Hindu law
lays down that a spouse may seek divorce if the other party has renounced the
world and has entered a holy order. A person who does this is considered as
civilly dead. Such renunciation by entering into a religious order must be
unequivocal & absolute.11

Presumption of Death

Under the Act, a person is presumed to be dead, if he/she has not been heard of
as being alive for a period of at least seven years. The burden of proof that the
whereabouts of the respondent are not known for the requisite period is on the
petitioner under all the matrimonial laws. This is a presumption of universal
acceptance as it aids proof in cases where it would be extremely difficult if not
impossible to prove that fact. A decree of divorce granted under this clause is
valid & effective even if it subsequently transpires that the respondent was in
fact alive at the time when the decree was passed.

Wife’s Special Grounds for Divorce

Besides the grounds enumerated above, a wife has been provided four
additional grounds of divorce under Section 13(2) of the Hindu Marriage Act,
1955. These are as follows-

Pre-Act Polygamous Marriage

This clause states the ground for divorce as, “That 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. For example, the case
of Venkatame v. Patil where a man had two wives, one of whom sued for
divorce, and whiles the petition was pending, he divorced the second wife. He

10
Prof. G.C.V. Subba Rao- Family Law in India, 8th edn. 2005, p.205, S. Gogia & Company, Hyderabad
11
. See grounds of divorce under Section 13

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then averred that since he was left only with one wife, and the petition should be
dismissed. The Court rejected the plea.

Such a ground is available if both the marriages are valid marriages & the other
wife (2nd wife) should be present at the time of filing of the petition. However,
today this ground is no more of practical importance.

Rape, Sodomy or Bestiality

Under this clause, a divorce petition can be presented if the husband has, since
the solemnization of the marriage, been guilty of rape, sodomy or bestiality.

Non-Resumption of Cohabitation after a Decree/Order of Maintenance

If a wife has obtained an order of maintenance in proceedings under Section

125, Cr.pc, 1973 or a decree under Section 18, Hindu Adoption & Maintenance
Act, 1956 & cohabitation has not been resumed between parties after one year
or upwards, then this is a valid ground for suing for divorce.12

Repudiation of Marriage

This provision provides a ground for divorce to the wife when the marriage was
solemnized before she attained the age of fifteen years, and she has repudiated
the marriage, but before the age of eighteen. Such repudiation may be express
(written or spoken words) or may be implied from the conduct of the wife (left
husband & refused to come back). Moreover, this right (added by the 1976
amendment) has only a retrospective effect i.e. it can be invoked irrespective of
the fact that the marriage was solemnized before or after such amendment.

Irretrievable Breakdown of Marriage

Irrespective of the three remedies available to parties that is: restitution of

conjugal rights, judicial separation and divorce, the judiciary in India is
demanding irretrievable breakdown of marriage as a special ground for divorce,
as sometimes courts face some difficulties in granting the decree of divorce due
to some of the technical loopholes in the existing theories of divorce. Both the
Supreme Court and Law Committee consider the implementation of such a
theory as a boon to parties who for one or the other reasons are unable to seek

12
R.K. Agarwala- Hindu Law, 21st edn. 2003, p.59, Central Law Agency, Allahabad

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the decree of divorce.13 Therefore in the opinion of the Supreme Court and Law
Commission of India, it is very essential to make it a special and separate
ground mission that introduction of irretrievable breakdown of marriage, as a
special ground will do any public good.

Under Hindu Marriage Act, 1955 primarily there are three theories under which
divorce is granted:

(i) Guilt theory or Fault theory,

(ii) Consent theory,

(iii) Supervening circumstances theory.

The Irretrievable breakdown theory of divorce is the fourth and the most
14
controversial theory in legal jurisprudence, based on the principle that
marriage is a union of two persons based on love affection and respect for each
other.15 If any of these is hampered due to any reason and if the matrimonial
relation between the spouses reaches to such an extent from where it becomes
completely irreparable, that is a point where neither of the spouse can live
peacefully with each other and acquire the benefits of a matrimonial relations,
than it is better to dissolve the marriage as now there is no point of stretching
such a dead relationship, which exist only in name and not in reality.16

The breakdown of relationship is presumed de facto. The fact that parties to

marriage are living separately for reasonably longer period of time (say two or
three years), with any reasonable cause (like cruelty, adultery, desertion) or
even without any reasonable cause (which shows the unwillingness of the
parties or even of one of the party to live together) and all their attempts to
reunite failed, it will be presumed by law that relationship is dead now.

Recently the Supreme Court Naveen Kohli v. Neelu Kohli has recommended an
amendment to the Hindu Marriage Act, whereby either spouse can cite
irretrievable breakdown of marriage as a reason to seek divorce. Expressing the
concern that divorce could not be granted in number of cases where marriages
were virtually dead due to the absence of the provision of irretrievable

13
R.K. Agarwala- Hindu Law, 21st edn. 2003, p.58, Central Law Agency, Allahabad.
14
15
See grounds of divorce under Section 13.
16
Bombay Hindu Divorce Act, 1947 and the Madras Hindu (Bigamy Prevention and Divorce) Act 1949, and the
Saurashtra Hindu Divorce Act, 1952. All these Acts have been repealed by the Hindu Marriage Act, 1955

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breakdown, the court strongly advocated incorporating this concept in the law in
view of the change of circumstances.

The Court observed that public interest demands that the married status should,
as far as possible, as long as possible and whenever possible, be maintained.
However, where a marriage has been wrecked beyond any hope of being
repaired, public interest requires the recognition of the fact. The judgment notes
that there is no acceptable way in which a spouse can be compelled to resume
life with the consort and that situations causing misery should not be allowed to
continue indefinitely as law has a responsibility to adequately respond to the
needs of the society. The profound reasoning is that in situations when there is
absolutely no chance to live again jointly or when it is beyond repair, in such a
case it would be futile to keep the marital tie alive. Here the ground of
irretrievable breakdown is really needed. But it should not be oblivious that the
ground, when introduced, needs to provide safeguards to ensure that no party is
exploited.17

17
R.K. Agarwala- Hindu Law, 21st edn. 2003, p.73, Central Law Agency, Allahabad.

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 CHANGES IN THE LAW OF DIVORCE UNDER
HINDU LAW

The modern matrimonial law in India has been greatly influenced by and based
upon English matrimonial law. In England, the Matrimonial Causes Act, 1857
for the first time permitted divorce by judicial process. Before 1857, divorce
could be obtained only by a private Act of parliament and only very rich could
afford this luxury. Under the Act, the husband could file a petition for divorce
on the ground of wife’s adultery (single act was enough), but a wife had to
prove adultery coupled with either incest, bigamy, cruelty or two years
desertion or alternatively, rape or any other unnatural offence. This was the
typical mid Victorian attitude to sexual morality.18 The Indian matrimonial law
has closely followed the development in English law. The Converts Marriage
Dissolution Act, 1866 was passed to provide facility of divorce to those native
converts to Christianity whose spouses refused to cohabit with them on account
of their conversion. But the first divorce statute was passed in 1869.

Section 13 of the Hindu Marriage Act, 1955 has introduced a revolutionary

amendment to the shastric Hindu law. It provides for the dissolution of
marriage. Under the Hindu law, divorce does not take place unless it has been
granted by a court. Before passing of the Marriage Laws (Amendment) Act,
1976, the grounds for judicial separation and divorce were different. The
Marriage Laws (Amendment) Act, 1976 makes the grounds of divorce and

18
Dr. Paras Diwan- Family Law, 6th edn. 2001, p.124, Allahabad Law Agency, Faridabad (Haryana)

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judicial separation common. An aggrieved party may sue for divorce or judicial
separation.

In 1964, Section 13 (1-A) has been inserted containing 2 clauses under which,
non-resumption of cohabitation for 2 years or upwards after the decree of
judicial separation or restitution of conjugal rights was made a ground of
divorce. This is a modification of clauses (viii) and (ix) of Section 13 of the
Hindu Marriage Act, 1955. After the amendment, either party to the marriage
can prefer such petitions. However, this facility is not available to the cases
where the decrees of judicial separation and restitution of conjugal rights were
obtained prior to the passing of the Amendment of 1964. The Marriage Laws
(Amendment) Act, 1976 reduced the time limits form two years to one
year.19Section 13 (1-A) introduced Break-down theory in the Hindu Marriage
Act, 1955.

The provisions regarding divorce have been twice amended since the passing of
the Hindu Marriage Act, 1955, by the Hindu Marriage (Amendment) Act, 1964
and ii) by the Marriage Laws (Amendment) Act, 1976.20The original provisions
of the Hindu Marriage Act regarding divorce have been liberalized by the
Marriage Laws (Amendment) Act, 1976. It also added a new ground namely

19
Prof. G.C.V. Subba Rao- Family Law in India, 8th edn. 2005, p.205, S. Gogia & Company, Hyderabad.
20
Ramesh Chandra Nagpal- Modern Hindu Law, 1st edn. 1983, p.144, Eastern Book Company, Lucknow.

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divorce by mutual consent of the parties has been made available as a
matrimonial relief under the Hindu Marriage Act, 1955.

RELIEF UNDER JUDICIAL SEPARATION:

Section 10 provides that either party to marriage may present a petition praying
for a decree of judicial separation on any of the grounds specified in sub Section
(1) of Section 13 and in case of wife also on any of the grounds specified in sub-
Section (2) thereof, as grounds on which a petition for divorce might have been
presented.

Before passing of the Marriage Laws (Amendment) Act, 1976, the grounds for
divorce are more serious than those for judicial separation. After the amendment
of 1976, Section 10 has been completely recast. The various grounds for judicial
separation mentioned in the old Section 10 have been omitted. It is provide that
the petitioner may apply for judicial separation on precisely the same grounds
that can support a petition for divorce.21 The Marriage Laws (Amendment) Act,
1976 has inserted a new Section 13-A in the Hindu Marriage Act, 1955 to give
statutory recognition to the judiciary evolved law. Section 13-A runs as under:
“In any proceedings under this Act, on a petition for dissolution of marriage by
a decree of divorce, except in so far as the petition is founded on the grounds
mentioned in clauses (ii), (vi) and (vii) of sub-Section (1) of Section 1322, the
court may, if it considers it just so to do having regard to the circumstances of
the case, pass instead a decree for judicial separation.” Hence if a petition for
divorce is filed on the ground of change of religion, renunciation of the world or
presumption of death, the court has no power to pass a decree of judicial
separation in place of decree for divorce. Under Section 14, no petition for
divorce can be presented within one year of marriage. For the lesser remedy of
judicial separation, there is no such restriction.

REMEDY FOR DIVORCE:

The Hindu Marriage Act, 1955 originally based divorce on the fault theory and
enshrined 9 fault grounds in Section 13 (1) on which, either the husband or the
wife could sue for divorce. Section 13 has undergone a substantial change by

21
Narasimha Reddy and others v. M. Boosamma AIR 1976 AP 77.
22
The custom of divorce existed among the lower castes such as Sudras among the Hindus of Manipur Divorce
at the pleasure of either party was permissive

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reason of subsequent amendments. The grounds mentioned in sub-Section (1)
and (1-A) are available to both the husband and wife; while the grounds
mentioned under sub-Section (2) are available only to the wife.23 In 1964,
Section 13 (1-A) has been inserted containing two clauses under which, non
resumption of cohabitation for two years or upwards after the decree of judicial
separation or restitution of conjugal rights was made a ground of divorce. This
is a modification of clauses (viii) and (ix) 32 of Section 13 of the Hindu
Marriage Act, 1955. By the Marriage Laws (Amendment) Act 1976, the period
of two years is reduced to one year. Section 13 (1-A) introduced an element of
Break-down theory in the Hindu Marriage Act 1955.24 The Hindu Marriage Act,
1955 originally contained two fault grounds in Section 13 (2) on which, a Hindu
wife alone could sue for divorce. The Marriage Laws (Amendment) Act 1976
has inserted two additional fault grounds of divorce for wife25 and a new
Section 13-B under which, divorce by mutual consent has been made available
as a matrimonial relief. Thus, in the modern Hindu law, the position is that all
the three theories of divorce are recognized and divorce can be obtained on the
basis of any one of them.26 Further, the customary mode of divorce is also
retained.

FAULT GROUNDS OF DIVORCE:

ADULTERY: Before passing of the Marriage Laws (Amendment) Act 1976, in

order to obtain divorce on this ground, the petitioner had to prove that the other
party was living in adultery which would cover more or less continuous and
habitual course of action. An isolated act of immorality was not sufficient. But
after the passing of the Act of 1976, even a single and isolated act of infidelity
would be a sufficient ground to obtain divorce.27

Veena Kalia v. Jatinder Nath Kalia28, the husband after marriage went abroad
for studies leaving his two minor daughters and his wife in India. He did not try

23
Mayne’s -Hindu Law & Usage, 13th edn. 1995, p.218, Bharat Law House, New Delhi.
24
Prof. G.C.V. Subba Rao- Family Law in India, 8th edn. 2005, p.205, S. Gogia & Company, Hyderabad
25
Section 13 (2) (iii) and (iv).
26
Dr. Paras Diwan- Modern Hindu Law, 18th edn. 2007, p.129, Allahabad Law Agency, Faridabad (Haryana)
27
B.M. Gandhi- Hindu Law, 3rd edn. 2008, p. 300, Eastern Book Company, Lucknow
28
AIR 1996 Del 54

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to take his wife with him and left her. For twenty three years, they lived apart
and the husband contracted a second marriage there. He had three children out
of the second marriage. He was thus, guilty of cruelty, desertion and adultery.
The wife got divorce on these grounds and the husband was ordered to pay her
maintenance of Rs. 10,000 per month. The court also ordered him to deposit Rs.
10 lacs in the court towards the expenses of his daughters’ marriages.

CRUELTY:

Before passing of the Marriage Laws (Amendment) Act 1976, cruelty was a
ground only for judicial separation29 and the petitioner was required to prove
that the respondent had treated him or her with such cruelty as to cause a
reasonable apprehension in his or her mind that it would be harmful or injurious
for the petitioner to live with the other party.

The Marriage Laws (Amendment) Act, 1976 which makes cruelty also a ground
for divorce, has changed the wording of the clause thus: “respondent has treated
the petitioner with cruelty”.30 The change in the definition of cruelty will signify
that an act or omission or conduct which constitutes cruelty is a ground for
judicial separation or divorce. Even if it causes no apprehension of any sort in
the mind of the petitioner.

A new dimension has been given to the concept of cruelty. Explanation to

Section 498-A of I.P.C. 1860 provides that any willful conduct which is of such
a nature as is likely to drive a woman to commit suicide would constitute
cruelty. Such willful conduct which is likely to cause grave injury or danger to

29
Section 10 (1) (b) of Hindu Marriage Act, 1955. Judicial separation is a lesser remedy when compared to
divorce. Where a decree for judicial separation has been passed, it shall no longer be obligatory for the parties
to cohabit with each other. Mutual obligations and rights are not available to the parties. Nonetheless
marriage subsists. At any time they can resume cohabitation. If the cohabitation is not resumed for a period of
one year or more after the passing of judicial separation, any party may apply for divorce under Section 13 (1-
A) (i) of the Hindu Marriage Act, 1955
30
Section 13 (1) (i-a) of the Hindu Marriage Act, 1955.

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life, limb or health (whether mental or physical of the woman) would also
amount to cruelty. Harassment of the woman with a view to coercing her or any
person related to her to meet any unlawful demand for any property or valuable
security would also constitute cruelty.

DESERTION:

Desertion was a ground only for judicial separation under Hindu Marriage Act,
1955.31 However, after passing of the Act of 1976, this is a ground for both
divorce as well as judicial separation under Section 13 (1) (i-b).

CONVERSION:

Under Section 13 (1) (ii) of the Hindu Marriage Act, 1955 if the spouse has
ceased to be a Hindu by conversion to another religion, divorce may be
obtained. Originally, this ground was not available for judicial separation in
Section 10 of the Hindu Marriage Act, 1955. By an Amendment of Section 10
in 1964, it was made a ground for judicial separation. Subsequently in 1976, the
grounds for judicial separation were omitted in Section 10 and were
incorporated with slight modifications in Section 13, and are therefore a ground
for divorce under Section 13 (1) (ii).32

LEPROSY:

Before passing of the Marriage Laws (Amendment) Act, 1976 the position of
ground of leprosy for divorce was as follows: “the other party has for a period
of not less than one year immediately preceding the presentation of the petition,
been suffering from a virulent form of leprosy”33, it was a ground for judicial
separation.

31
Sec. 10 (1) (a) of the Hindu Marriage Act, 1955
32
Mayne’s- Hindu Law & Usage, 13th edn. 1995, p.246, Bharat Law House, New Delhi
33
Dr. Paras Diwan on Hindu Law- 2 nd edn. 2005, p.869, Orient Publishing Co., Allahabad.

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 CONCLUSION

Hindus consider marriage to be a sacred bond. Prior to the Hindu Marriage Act
of 1955, there was no provision for divorce. The concept of getting divorced
was too radical for the Indian society then. The wives were the silent victims of
such a rigid system. However, time has changed; situations have changed;
social ladder has turned. Now the law provides for a way to get out of an
unpleasant marriage by seeking divorce in a court of law. The actual
benefactors of such a provision are women who no longer have to silently
endure the harassment or injustice caused to them by their husbands. But the
manner in which the judiciary is dealing with the subject of irretrievable break
down of marriage, it is feared that it will completely pause the system of
marriages. Every theory has its negative and positive traits. There applicability
differs from situation to situation. Therefore it is very essential that the
lawmakers of our country should deal with the subject in a very cautious
manner after considering in detail its future implications.

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 Bibliography
Books:
Dr. Paras Diwan- Modern Hindu Law, 18th edn. 2007, Allahabad Law Agency,
Faridabad (Haryana)

Prof. G.C.V. Subba Rao- Family Law in India, 8th edn. 2005, S. Gogia &
Company, Hyderabad

R.K. Agarwala- Hindu Law, 21st edn. 2003, p.73, Central Law Agency,
Allahabad

Mayne’s- Hindu Law & Usage, 13th edn. 1995, p.246, Bharat Law House, New
Delhi

Websites:
www.shodhganga.com

www.legalservices.com

www.academike.com

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