This article has been written by Oishika Banerji and has been subsequently updated by Jaanvi Jolly. This article attempts to provide  detailed analysis of Section 13 of the Hindu Marriage Act, 1955. It discusses the recent developments in the arena of divorce by mutual consent. It also provides the latest interpretations and case laws on the grounds of divorce. The brief history of the law on divorce along with a discussion of the changes brought about in the Hindu Marriage Act by the Uniform Civil Code enacted in the state of Uttarakhand.

Introduction 

The Chhattisgarh High Court in the recent case of Saroj Lata Rajak vs. Vikas Kumar Rajak (2022), made an apt comment, that, “The matrimonial Home cannot be built with bricks and stones but with love, respect and care between the spouses”. Where there are no roses left, but only thorns, It is imperative in the interest of justice that such marital bonds must be allowed to be dissolved. It has been acknowledged that in some cases divorce is not always a detestable step, rather it is a need of contemporary society. However, the acknowledgement of this reality did not exist earlier.

The Hindu Marriage Act, 1955 was considered a watershed legislation as it brought about a radical change in the institution of marriage by the introduction of the concept of divorce under Section 13. Herein, the marital remedy of divorce was introduced for the first time. The ground of adultery becomes available if the other spouse, after the solemnization of marriage, had sexual intercourse with a person other than his/her spouse. The ground of conversion is available if the respondent has converted to another religion. The dissolution of marriage can also be sought if the respondent has been suffering from unsoundness of mind or a mental disorder or has been suffering from venereal disease in a communicable form. Additionally, if there is no resumption of cohabitation for a period of 2 years or upwards after the decree of judicial separation is passed or in case there is a failure to comply with the decree of restitution of conjugal rights for a minimum period of 1 year, then either of the spouses may seek a divorce decree. All of the above-mentioned grounds are combined in the category of the fault-based grounds of divorce.  However, The ground of unsoundness of mind or suffering from an incurable form of leprosy or venereal disease has been unheard of for seven years. Although, the supervening circumstances are beyond the control of the party, nevertheless, they have the potential to frustrate the marital relationship. Therefore, the Law Commission of India has identified these events as valid grounds for divorce, symbolising them as grounds for frustration.

History of the law on divorce

Under the traditional Hindu law, marriage was a sacred union of the souls and therefore the provision for divorce was not provided. It was the first time under the Hindu Marriage Act, 1955, that the right to seek divorce on the grounds provided in the Act was conferred upon the parties.

The earliest evidence of divorce is found in Roman law, where both marriage and divorce were considered the private acts of the parties and they could get into a marriage or get out of one at their own will. There was the absence of any formalities or intervention by an authority. 

In England before 1857, an Act of the Parliament was required to dissolve a marriage. Therefore, after the demand by the masses, divorce was recognised under the Matrimonial Causes Act 1857. However, it only recognised adultery as the sole ground for divorce. This clarifies that in the beginning, the only grounds available to seek divorce were fault-based ground. Divorce as a legal option for separation was introduced in British India for the first time in the year 1869 which was majorly for the Christians seeking a divorce. 

The Special Marriage Act, 1954 was the first legislation that recognised the concept of divorce, followed by the Hindu Marriage Act, 1955, which was the first law, recognising divorce among the Hindus. These statutes provide the provisions for divorce, however, the term divorce is not expressly defined, It merely allows for the dissolution of a marriage, if any of the given grounds are satisfied. Before the coming up of these legislations, only the death of one of the partners was recognised to bring an end to a marital bond. Even now, the initiation of a divorce proceeding by either of the spouses is not just frowned upon, rather the spouses are labelled, and there exists a strong bias against divorced people. It is considered some sort of disability. During the British era, the Divorce Act of 1869 existed which was majorly applicable to the Christian population and had a very specific goal to provide a matrimonial remedy for the Britishers who had settled in India. Apart from this, there was an absence of any legislation dealing with the topic. 

Application of Hindu Marriage Act, 1955

As per Section 2 of the Hindu Marriage Act, its provisions are applicable –

1. To a person who is a Hindu by religion in any of its forms or developments;
2. To a person who is a Buddhist, Jain or Sikh religion;
3. To a person who is not a Muslim, Christian, Parsi, or Jew by religion and is domiciled in the territory to which this Act extends. Unless it is proved that he would not be governed by the traditional Hindu law or its customs. 

Types of marriages under Hindu Marriage Act, 1955

The Hindu Marriage Act,1955 envisages three types of marital bonds, that are, valid marriage, voidable marriage, and void marriage. 

Void marriages are discussed under Section 11. Any marriage solemnised in violation of Section 5 (i), (iv), and (v) is declared to be void ab initio and has no sanctity in law. Any marriage which is a bigamous marriage or is solemnised within prohibited relationships or within sapindas is void marriage. The parties may get a decree of nullity in such a case, however it is not necessary.

Voidable marriages are discussed under Section 12, wherein some infirmity exists in the marriage. For example, whether consent is obtained by fraud or force or by concealing a material fact or where the wife was pregnant at the time with the child of some other man and the petitioner was unaware of this. These marriages may be annulled by the parties by seeking a decree of nullity, thus the process of getting it annulled has to be performed by the parties. They have the discretion to take the matter to the court or not. If they do not file for annulment within the given period the marriage converts into a valid marriage and if they file for an annulment within the given time period the marriage becomes void ab initio. 

Valid marriages are the ones where all the conditions given under Section 5 etc are fulfilled. It is only in valid marriages that the parties can seek a divorce. Valid marriages also include voidable marriages that were not annulled by the parties in the period prescribed.

Theories of divorce found under Hindu Marriage Act, 1955

Under the Hindu Marriage Act, 1955, three theories have been accommodated, which can be divided into two categories, fault and no-fault theories. 

The Fault based theory 

According to this theory, any party could file a petition for divorce when the other spouse was guilty of a marital offence, for example, adultery, cruelty, desertion, etc. Under this theory, it is only the innocent party who gets a right to dissolve the marriage via a decree of divorce. The innocent part is considered as the victim and is therefore offered an option to dissolve their marriage.

The Irretrievable Breakdown Theory

According to this theory, the party filing for the divorce does not have to prove any fault on the part of the other spouse. Under this theory, if the spouses are of incompatible nature or have irreconcilable differences, that cannot be resolved or repaired they can seek dissolution of marriage. in India, the ground of irretrievable breakdown to seek divorce has not been recognised. However, we see the presence of this theory under Section 13 (1-A). Where even after the decree for judicial separation or for restitution of conjugal rights has been passed between the parties there has been no resumption of cohabitation for a minimum period of one year. 

The Consent Theory 

This theory allows both parties to the marriage to seek a dissolution via a joint motion. Where both parties agree that they do not wish to continue their marital bond. This theory was recognised by the 1976 Amendment to the Hindu Marriage Act 1955, which introduced Section 13B providing for divorce by mutual consent.

Section 13 of Hindu Marriage Act, 1955 

The Hindu Marriage Act, 1955 seeks to protect the sanctity of a marriage at every step. Section 9, which provides for restitution of conjugal rights, provides for an attempt to reinstate the spouses in the conjugal environment of each other and attempt to resurrect the performance of marital obligations. 

Further Section 10 provides for judicial separation which is a preliminary step to divorce. Section 13A provides that where a petition for divorce has been filed, the court on the application of its judicial mind and with reference to the circumstances of the case is empowered to pass a decree for judicial separation instead of a decree for divorce if it feels that there is still scope for reconciliation between the parties.

 Section 13B, which provides for divorce by mutual consent also provides for sufficient time between the two motions to enable the parties to rethink their decision to separate and attempt reconciliation of their differences, if possible. Section 23(2) and (3) provide for the power of the court to attempt reconciliation between the parties, and for this purpose, the proceedings can be adjourned for a period not exceeding 15 days and the matter can be referred to a mediator to attempt reconciliation. 

Additionally, Section 9 of the Family Courts Act, 1984 provides that a Family Court shall in every proceeding in the first instance assist and persuade the parties to arrive at a settlement. In every case where the Family Court thinks that there is a possibility of settlement between the parties, it is empowered to adjourn the proceedings and make attempts to effect a settlement. Therefore, it is abundantly clear that the aim of every marriage-related legislation is to ensure the continuity of marital bonds.

The marriage cannot be forced on individuals and the court must not act as a hangman or as a counsellor to compel the parties to continue to live as husband and wife. A marriage, especially where the meeting of minds between them has irrevocably ended.

Section 13(1) of the Hindu Marriage Act, 1955 presents the general grounds of divorce that are available to both parties involved in a marriage. Clause 1-A was introduced in the Act of 1955 by the Hindu Marriage (Amendment) Act, 1964, which provides two further grounds for obtaining a divorce decree. Section 13(2) specifically provides four grounds that can be availed for getting a divorce only by the wife. The grounds for divorce can be viewed from two perspectives:

1. Marriage is an exclusive relationship, and if it is not, it is no longer considered marriage. Marriage also indicates that the parties would live in peace and trust with one another. Cruelty, or the threat of cruelty, undercuts this fundamental condition of marriage. The essential premise of marriage is that both parties will live together, however, if one party abandons the other, this premise is no longer valid. As a result, infidelity, abuse, and abandonment are all detrimental to a marriage’s basis.
2. From a different perspective, the above acts are marital offences committed by one of the marriage partners. There is a semblance of crime here. Divorce is viewed in this light as a means of punishing the partner who has proved himself or herself unworthy of association. The guilt or offence theory of divorce which states that the offence must be one that is recognised as a basis for divorce is the consequence of the discussed perception. 

General grounds for divorce 

There are seven general grounds as provided by Section 13(1) which can be availed by both parties in a marriage in order to dissolve the same. The grounds of cruelty and desertion, which were originally the grounds only to seek judicial separation were by the Amendment of 1976 added as the grounds to also seek divorce. Further, apart from these 7 grounds, Section 13(2) provides for four additional grounds only to the wife. Later on, by the 1976 Amendment Act, Section 13B  was also added, which provided for divorce by mutual consent.

Section 13(1)(i) : divorce on the ground of adultery

This Section deals with adultery as a ground for divorce that is available to both parties in a marriage. Adultery is defined as voluntary sexual activity outside of marriage with any person other than one’s spouse. It is the petitioner’s responsibility to show that there was a valid marriage and that the respondent had sexual relations with someone other than him or her. At the time of the act, the marriage must be intact. To seek divorce on the ground of adultery, even a single adulterous act is sufficient on the part of the respondent and there is no requirement to prove that he or she has been living in an adulterous relationship. The sexual act must be voluntary and such ground cannot be claimed in the case of rape. Such sexual acts must be committed during the continence of the marriage and the question of whether a party was sexually active prior to the marriage leading to premarital pregnancy or the man fathering a child would not be grounds to seek divorce claiming adultery.

As per Section 23(1)(b) of the Hindu Marriage Act, 1955, the Court is duty-bound to ensure that the petitioner must not have been an accessory to or had connived with or condoned the act of adultery complained of. In such a case, he would lose the right to seek divorce on the grounds of adultery. 

Further, the question of the interpretation of the term ‘any person’ in this section is open to interpretation and the position is not clear after the landmark cases of Navtej Singh Johar vs. Union of India, (2018) wherein the homosexual and queer relationships were given legal recognition and the case of National Legal Service Authority of India vs. Union of India, (2014) wherein the transgender community was given recognition as the third gender.

The question is open, whether a gay or a lesbian relationship or a sexual relationship with a transgender would also fall under the term ‘any person’. In other words, if a man, married to a woman, is involved in sexual activity with another man, would this be considered an adulterous act for Section 13? 

Before these judgements the only legally recognised relationship was between the heterosexual individual and therefore, adultery was only interpreted to mean the sexual act outside marriage with a person other than one’s spouse. In the case of a wife the term ‘any person’ was interpreted to be a man and in the case of a husband, a woman. Now after these landmark judgements, the term ‘any person’ needs to be expanded in its amplitude. 

If this is not done, the sexual relations of a wife with another woman would not give the aggrieved husband a ground to seek divorce, however, if such sexual act would have been committed by the wife with a man, the ground would have been available. This interpretation does not fulfil the purpose of the provision, which is to protect the sanctity of marriage. 

Judicial decisions discussing adultery as a ground for divorce

The Madras High Court had ruled in Subbarama Reddiar vs Saraswathi Ammal (1996), that a single act of adultery is sufficient grounds for divorce or judicial separation. The unwritten taboos and laws of social decency in this nation, particularly in village regions, must necessarily be taken into account. Unless an excuse is given that is consistent with an innocent interpretation, the only conclusion that the court of law can draw from the fact that an unknown person was found alone with a young woman past midnight in her apartment, in an actual physical juxtaposition, is that the two have committed an act of adultery together.

In Joseph Shine vs Union of India (2018), the Supreme Court declared that adultery is not a crime and repealed Section 497 of the Indian Penal Code, 1860. It has been noticed that two people may separate if one of them cheats, but attaching crime to infidelity is taking things too far. Also under the provision punishing adultery, the woman was considered to be the property of the husband as it was the husband who was given the right to prosecute the other man and not the wife. Further, the wife was not even considered as an abettor to the crime. Therefore, it was clear that the provision only sought to protect the proprietary rights of the husband over his wife. Adultery is a private problem, and how a couple handles it is a matter of extreme privacy. This lack of moral commitment in marriage, which damages the relationship, has been left to the couple’s discretion. They have the option to proceed with the divorce if they so want.

Section 13(1)(i-a) : divorce on the ground of cruelty

“Cruelty is just one of the splinters of a collapsing structure where the substratum of the marriage has broken down in a way in which the structure cannot be preserved or rebuilt”

Cruelty was not a ground for divorce prior to 1976. It was only a ground to seek judicial separation. Cruelty was made a ground for seeking a divorce by the 1976 Amendment Act under Section 13(1)(i-a). According to the Oxford Dictionary, the term “cruelty” has been defined as the ‘ disposition to inflict suffering, it’s been used to describe human behaviour or conduct in general. In matters of matrimony, It is how you behave with the spouse and includes a person’s conduct towards the matrimonial obligation. It is a term that is subjective and can be interpreted as per the facts of each case. Cruelty can be mental or physical, and it can be purposeful or inadvertent. Cruelty can take many forms, including physical and emotional abuse. Physically abusing or injuring one’s spouse qualifies as physical cruelty. It is difficult to decide as to what constitutes mental cruelty. Cruelty is also an offence under Section 498A of the Indian Penal Code, 1860. 

Some of the essential elements that constitute cruelty have been presented hereunder: 

1. The alleged wrongdoing must be “grave and serious.”
2. It is unreasonable to expect the petitioner to live with the respondent.
3. It has to be more serious than the “normal wear and tear of married life.”

False charges of infidelity, dowry demands, alcoholic, wife’s incompetency, the partner’s immoral lifestyle, incompatibility, and violent partner are just a few examples of mental cruelty.

Mental cruelty is a state of mind. It is a feeling of deep anguish, disappointment, and frustration in one spouse caused by the conduct of the other for a long time.

Cruelty is subjective and what may be cruelty in one case may not be cruelty in another. It differs from person to person depending on the facts and circumstances of the case. Factors like- upbringing of either party, education level, social and cultural background, social and financial status, customs and traditions, religious beliefs, human values, etc. would play an important role with reference to the circumstances of the case.

Further, the concept of mentality cannot remain static. It is bound to change with the passage of time. What may be mental cruelty today may not be mental cruelty with the passage of time. Therefore, there cannot be a straight jacket formula to determine cruelty.

Under Section 23(1)(b) of the Hindu Marriage Act, 1955, the court is duty-bound to check that the petitioner has not in any manner condoned the cruelty meted out by the respondent. The condonation acts as a clean slate upon the cruelty in the relationship. However, if the acts of cruelty that were once condoned by the spouse are repeated, the divorce petition cannot be dismissed under Section 23(1)(b) as clarified by the Allahabad High Court in the case of Richa Mumgaie vs. Harendra Prasad (2024).

Judicial decisions discussing cruelty as a ground for divorce

Prior to 1976, cruelty was not a ground for divorce but to seek judicial separation. It is only by the 1976 amendment that it has been added as a ground for divorce. Under Section 10, cruelty had to be severe enough to make the plaintiff reasonably fear that living with the other party would be harmful or injurious. Previously, this had to be proven to seek judicial separation, but this requirement has now been removed by the 1976 Amendment to the Hindu Marriage Act. Resultantly, it is no longer necessary to prove such an existence of apprehension. Now, what is required is that it would be sufficient to show that the conduct of one spouse is so abnormal or below the accepted norm that the other spouse cannot reasonably be expected to live in such a marital bond. The conduct is no longer required to be so atrociously abominable, which would cause a reasonable apprehension that it is injurious or harmful to cohabit.

While deciding on the case of Savitri Pandey vs Prem Chandra Pandey (2002), the Supreme Court of India observed that cruelty has not been defined under the Hindu Marriage Act, 1955, but it is considered in marital problems as conduct that endangers the petitioner’s life with the respondent. Cruelty is defined as an act that endangers a person’s life, limb, or health. Cruelty, for the act, is that one spouse has handled the other and expressed such emotions against her or him as to have inflicted bodily damage, or to have created cheap anxiety of bodily injury, suffering, or to have wounded health. Cruelty may be both physical and emotional. Another spouse’s behaviour that creates mental agony or anxiety about the opposite spouse’s marital situation is referred to as mental cruelty. 

1. In the case of Smt. Nirmala Manohar Jagesha vs. Manohar Shivram Jagesha (1990), the Bombay High Court held that in a divorce case, “false, baseless, scandalous, malicious, and unproven allegations made in the written statement may amount to cruelty to the other party, and that party would be entitled to a divorce decree on that ground.”
2. In the case of Manisha Tyagi vs. Deepak Kumar (2010), it was held that to prove cruelty it is enough that the conduct of one spouse is so abnormal or below the accepted norm that other spouse cannot be reasonably be expected to put up with it. It is not necessary to establish any form of physical violence or even a reasonable apprehension of physical violence. Where there is continuous ill-treatment or cessation of marital intercourse or indifference between parties it may lead to cruelty.
3. In the case of Joydeep Majumdar vs. Bharti Jaiswal Majumdar (2021), the Apex Court observed that for dissolution of marriage at the instance of the party who alleged mental cruelty, the impact of such mental cruelty must be that it is not possible to continue the marital relationship. The wrong party cannot be expected to condone such conduct and continue to live with his or her spouse. The degree of tolerance required in every case would be different, depending from couple to couple with reference to their background, level of education, and the status of parties.
4. While deciding the case of Samar Ghosh vs Jaya Ghosh (2007), the Supreme Court of India opined that when cruelty takes the form of harmful reproaches, complaints, accusations, or taunts, the general rule is that the whole marriage connection must be evaluated. This rule is especially important when the cruelty takes the form of injurious reproaches, complaints, accusations, or taunts. It is undesirable to consider judicial pronouncements to create certain categories of acts or conduct as having or lacking the nature or quality that renders them capable or incapable of amounting to cruelty in all circumstances. After all, it is the effect of the conduct, not its nature, that is of paramount importance in assessing a cruelty complaint. 
5. In the case of XXX versus XXX 2021, the Kerela High Court discussed the question of whether ‘marital rape’ can be considered as a ground for divorce under mental cruelty. It was held that although IPC does not deal with marital rape, the same can be considered as a ground for divorce under cruelty. Marital rape occurs when the husband treats the body of his wife as something owing to him and commits a sexual act. The right to respect his or her mental integrity encompasses bodily integrity and therefore any disrespect or violation of bodily integrity is a violation of individual autonomy. Therefore, marital rape was held to be a good ground to claim divorce.
6. In the recent case of X vs. Y (2024), It has been observed that accusing a spouse of being in an extramarital relationship along with denying the paternity of the children would be considered mental cruelty. 
7. The Telangana High Court in the case of D. Narsimha vs. D Anita Vaishnavi (2024) held that the act of a spouse to damage the reputation, social, standing, or work prospects of another would be considered cruelty, Further depriving the spouse of being on social media websites like Facebook and Instagram may also amount to cruelty.

Whether one spouse has been cruel to the other is largely an issue of fact, and precedent cases are of little significance. The court should consider the parties’ physical and mental conditions, as well as their social status, and the impact of one spouse’s personality and conduct on the mind of the other, weighing all incidents and quarrels between the spouses from that perspective. Further, the alleged conduct must be examined in light of the complainant’s capacity for endurance and the extent to which that capacity is known to the other spouse.

Section 13(1)(i-b) : divorce on the ground of desertion

The Indian Parliament explains in Section 13(1)(i-b) of, the Hindu Marriage Act, 1955 that “the expression ‘desertion’ means the desertion of the petitioner by the other party to the marriage without reasonable cause and the consent or against the wish of such party and includes the willful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly”. In other words, desertion refers to one spouse’s permanent absence or forsaking of the other for no apparent cause and without the agreement of the other. Desertion is not merely a withdrawal from a place, rather it is also a withdrawal from the state of things. The law seeks to enforce the recognition and the discharge of common obligations of a marital state.

This desertion must be for a continuous period of not less than two years immediately preceding the presentation of a petition seeking a divorce.

Justices R.P. Sethi and Y.K. Sabharwal of the Supreme Court of India while deciding on the case of Savitri Pandey vs Prem Chandra Pandey (2002) had viewed that there can be no desertion without previous cohabitation by the parties. 

Two key requirements must exist for the offence of desertion in the case of a deserting spouse:

1. The fact of separation, meaning that the petitioner and the respondent should be either physically or mentally apart from each other (Factum Deserdendi);  and 
2. The intention to desert the petitioner for a permanent period (animus deserendi).

Similarly, in the case of the deserted spouse, two components are required, namely,

1. The absence of consent or against the will; and
2. The lack of a reasonable cause for the partner leaving the matrimonial house.

Further, desertion can be of two types, actual and constructive. In actual desertion, the respondent is the one who leaves the matrimonial house, thereby deserting the petitioner. In virtual assertion, the behaviour of the respondent is such, it gives the petitioner reasonable cause to leave the matrimonial house. In the latter case, although it is the petitioner who has moved away from the household, it is the respondent who is held guilty of desertion due to his conduct. The burden of proof to prove desertion is upon the petitioner up to the limit of ‘preponderance of probabilities’. This means that the person filing for divorce on the grounds of desertion must prove their case to the extent that the court is convinced that the “existence of the fact is more probable than its non-existence

Judicial decisions discussing desertion as  a ground for divorce

1. In the case of Baker vs. Baker, (1952), the court observed that there may be a desertion, although the spouses are living in the same dwelling. The key factor is that one spouse has forsaken and abandoned the other. The Court explained that the couple, although sharing a dwelling, have effectively become two separate households.
2. The Supreme Court of India, while dealing with the case of Bipin Chander Jaisinghbhai Shah vs Prabhawati (1956), had observed that the offence of desertion is a path of behaviour that exists independently of its duration. However, as a ground for divorce, it must have existed for at least 2 years before the presentation of the petition or, in the case of a cross-charge, of the answer. Desertion as a basis for divorce varies from the statutory grounds of adultery and cruelty in that the act that leads to desertion isn’t necessarily full, but rather inchoate. Desertion is a continuing offence until there is a presumption of cohabitation. It was also further held that the petitioner bears the burden of proving the elements required in the Section in respect of both spouses. It is only when the fact of separation and the animus deserendi coexist that the offence of desertion commences.
3. In the case of Mrs.Saraswathi Palaniappan vs. Vinod Kumar Subbiah (2013), Justice T Raja of the Madras High Court had observed that when a wife has miserably abandoned the matrimonial house, she cannot sue for restitution of conjugal rights, especially after a seven-year absence and having been found guilty of cruelty in the husband’s favour.
4. In the case of Debananda Tamuli vs Kakumoni (2022), the Apex Court observed that a deserted spouse must prove factors of separation and intention on the part of the deserting spouse to bring the cohabitation to a permanent end. The fact that the deserting spouse visited the matrimonial house on the death of her mother-in-law and stayed for 1 day, it cannot be said that she came to the matrimonial house to resume cohabitation, as in such case, the intention on the part of such spouse is not established.
5. The Allahabad High Court in the case of Vipin Kumar Agarwal vs. Manisha Agarwal, (2024) LiveLaw (AB) 426 held that a mere allegation that the wife forced the husband out of the matrimonial house would not be sufficient to establish desertion. Rather the husband must show that he made honest efforts to return back to the house but was not accepted by the wife.

Section 13(1)(ii) : divorce on the ground of Conversion

Section 13(1)(ii) of the Hindu Marriage Act, 1955 provides that a divorce can be granted if one spouse ceases to be Hindu and converts to another faith without the consent of the other. A person’s conversion to a non-Hindu faith, such as Parsis, Islam, Christianity, or Zoroastrianism, is known as ‘ceasing to be Hindu’. If a person converts to Jainism, Buddhism, or Sikhism, he remains a Hindu since Sikhs, Jains, and Buddhists are Hindus by faith and are covered within the ambit of the Hindu Marriage Act, 1955.

Judicial decisions recognizing conversion as a ground for divorce

1. In light of the case of Suresh Babu vs Leela (2006), the Kerala High Court had observed that the Hindu Marriage Act, 1955 does not grant any rights to a Hindu spouse who converted to another religion. He or she, on the other hand, exposes himself or herself to a divorce suit by the other spouse based on such conversion. Under Section 13(1)(ii) of the Hindu Marriage Act, 1955, the spouse who is still a Hindu has the right to seek dissolution of the marriage with the partner who has converted to another faith since the marriage. The right of a non-converting spouse to remain married is unassailable. The Act makes no provision for the non-converting spouse’s right to convert. The Hindu Marriage Act, 1955 also does not mention that the conversion must be done without the permission of the other spouse for that spouse to file for divorce. If the other spouse consents, a conversion does not cease to be a conversion within the meaning of Section 13(1)(ii).
2. The Delhi High Court had observed in the case of Teesta Chattoraj vs. Union Of India (2012) that while conversion to another religion is a ground for divorce, a spouse may be denied divorce even if the other spouse has embraced some other religion if the former provoked the latter to such conversion. 

Section 13(1)(iii) : divorce on the ground of unsoundness of mind 

Section 13(1)(iii) of the Hindu Marriage Act, 1955, allows a petitioner to get a divorce on the ground of unsoundness of mind. To seek a divorce on such a ground, the respondent must be either incurably of unsound mind or should be suffering continuously or intermittently from a mental disorder of a kind that the petitioner cannot be reasonably expected to live with the respondent. This unsoundness of mind or mental disorder is a post-marriage situation and need not necessarily be present at the time of the marriage. A mental disorder existing at the time of the marriage can be a ground for annulment of marriage under Section 12(1)(b).

The mental disorder should be such that it militates against the continuance of marriage. The test to see the degree of unsoundness of mind was given in the case of Whysall vs. Whysall (1959). Wherein it was stated that the practical test is found in the phrase ‘incapable of managing himself and his affairs, including the problems of married life. The burden of proof to prove the unsoundness of mind of the respondent and also that such unsoundness is incurable is upon the petitioner. 

Unsoundness of mind  as  a basis for divorce has two requirements:

1. The respondent was mentally ill for an indefinite period, which means that it is incurable,
2. The respondent is suffering from a mental disease of such a nature or severity that it would be unreasonable for the petitioner to continue living with him or her.

Judicial decisions  discussing divorce on the ground of  unsoundness of mind 

1. In the landmark case of Sharda vs. Dharampal (2003), the question arose can the Family Court direct a party to undergo a medical examination in order to prove the unsoundness of mind and would such an order violate Article 21? The court said that for the purpose of grant of decree of divorce, the plaintiff must establish that the respondent is suffering from an unsound mind that is incurable or a mental disorder of such a nature that the plaintiff cannot be reasonably expected to live with him. The medical testimony would be of considerable assistance to the court. However, the Hindu Marriage Act or any other law does not contain any provision that empowers the court to issue the direction to a party in a matrimonial proceeding to compel the respondent to submit himself to a medical examination. However, that does not preclude the court from passing such an order. Further, it held that in a case for divorce based on the ground of unsoundness of mind or impotency, the petitioner would always insist upon the medical examination of the respondent and if the court allows the respondent to take the plea under Article 21, then it may become impossible for the court to arrive at the conclusion and may render these grounds of divorce, useless. Therefore, the family court has the power to order the person to undergo a medical test and such an order would not be a violation of the right to personal liberty and privacy under Article 21. However, such an order must be passed if the petitioner has a strong prima facie case. The court cannot force the respondent to undergo such an examination. However, if he refuses to submit himself to such an examination, the court is entitled to draw adverse inferences against him.
2. The Supreme Court of India had declared in Ram Narayan vs. Rameshwari (1988) that in cases of schizophrenia mental condition, the petitioner must prove not only the mental disorder but also the fact that the petitioner could not fairly be expected to live with the respondent.
3. The Madhya Pradesh High Court had decided in the case of Smt. Alka Sharma vs. Abhinesh Chandra Sharma (1991), that as the wife was rigid and nervous on the first evening of marriage and was found to be unable to work with domestic equipment it was ruled that she was suffering from schizophrenia and that her spouse was entitled to a divorce.

Section 13(1)(iv) : divorce on the ground of leprosy

In its findings, the Law Commission of India suggested that any legislation that discriminated against leprosy patients be repealed. India is also a signatory to a United Nations resolution that advocates for the abolition of discrimination against leprosy patients. Section 13(iv) which had the provision of leprosy contained in it as a ground for divorce, has now been omitted by the Indian Parliament on 13th February 2019 with the passage of the Personal Law Amendment bill.

Section 13(1)(v) : divorce on the ground of respondent suffering from venereal disease of communicable form

Section 13(1)(v) of the Hindu Marriage Act of 1995 establishes a reason for divorce in cases of infectious venereal disease. If one of the spouses has a sexually transmitted disease that is both incurable and transmissible, it might be used as a basis for divorce. The term “venereal illness” refers to a condition such as AIDS. 

Judicial decisions on the grounds of venereal disease

1. In Smt. Mita Gupta vs. Prabir Kumar Gupta (1988), the Calcutta High Court had opined that while the venereal disease is a cause of divorce, the partner who is responsible for the contagion may be denied relief even if the other partner suffers as much.
2. The Supreme Court had ruled in Mr X vs. Hospital Z (1998) that either husband or wife might divorce on the grounds of venereal illness and that a person who has suffered from the disease cannot be claimed to have any right to marry even before marriage, as long as he is not healed of the condition. 
3. The Madras High Court had viewed in the case of P. Ravikumar: vs Malarvizhi @ S.Kokila (2013) that any contagious infection caused by sexual intercourse is defined as a venereal disease under Section 13(v) of the Hindu Marriage Act, 1955. HIV is a sexually transmitted illness. As HIV had not been discovered in 1955, it was not included in the Act. However, because venereal disease in a communicable form is one of the grounds for divorce, any disease being venereal in a communicable form will also fall under the provisions of Section 13(v) of the Hindu Marriage Act, 1955, and thus it cannot be claimed that a petition cannot be filed on the basis that HIV positive is not included in Section 13(v) and thus divorce cannot be granted. It can very well be granted. 

Section 13(1)(vi) : divorce on the ground of renunciation of the world by entering a religious order

When one of the spouses decides to enter a holy order and renounces the world, the other spouse has the right to submit a divorce petition under Section 13(1)(vi) of the Hindu Marriage Act, 1955. Renouncement of the world by entering any religious order must be absolute. It is the equivalent of civil death, and it prevents a person from inheriting or exercising their right to divide.

In the case of Sital Das vs. Sant Ram (1954), it was decided by the Supreme Court of India that someone is considered to have entered a religious order if they participate in a few of the faith’s ceremonies and rites. For example, if a man or woman joins a religious order but returns home on the same day itself and cohabits, it cannot be used as a basis for divorce since he has not forsaken the world. 

Section 13(1)(vii) : divorce on the ground of presumption of death

According to Section 13(1)(vii) of the Hindu Marriage Act, 1955, if a person has not been heard of as being alive for at least seven years by people who would naturally have known of it if that party had been living, that person is presumed to have died. According to Section 108 of the  Indian Evidence Act of 1872, if a person has not been heard from in at least seven years, he or she is presumed to be dead, it is also known as judicial death. This is a presumption of fact. The petitioner may be granted a divorce on this basis. However, under ancient Indian Hindu law, a presumption of death is not the same as in contemporary law; twelve years must pass before a person is deemed to have died. The presumption of death under the Act of 1955 can be rebutted if a person has been missing for the last seven years owing to unusual circumstances, such as fleeing a murder accusation. This is based on the presumption which states that the fact that for seven years or more, the respondent has been absent from the life of the petitioner. In normal circumstances this is treated as evidence of the death of the respondent and the marriage may be dissolved on the petition of the petitioner. The object of the rule of presumption is not to establish whether, at a point of fact, the respondent was dead or alive. Rather it presumes that on the date of the petition, the fact was known as to justify the action of the court in granting a divorce under this provision. Therefore, the decree of divorce granted would be valid and effective even if subsequently the respondent is found to be alive.

Judicial decisions on the ground of presumption of death as a ground of divorce 

1. It was established by the Delhi High Court, in the case of Nirmoo vs. Nikkaram (1968), that if a person presumes his or her spouse’s death and marries another person without getting a divorce order, the spouse might contest the validity of the second marriage after his return. 
2. The aforementioned law also overrides any existing custom that allows for remarriage after less than seven years, as in the case of Parmeshwari vs. Parkash Chander  (1989), where it was argued that the Karewa marriage customs allow for remarriage after the husband has not been heard from for two and a half years. The Punjab and Haryana High Court concluded that while the spouse cannot be deemed to be deceased until the issue is brought before the competent court, the seven-year timeframe under Section 108 of the Indian Evidence Act, 1872 cannot be reduced to merely 2-3 years.

Section 13(1A) of Hindu Marriage Act, 1955

This provision was added by the Hindu Marriage Amendment Act, 1964. It provides the right to a spouse to file a petition for dissolution of marriage by divorce if there has been no resumption of cohabitation between the spouses even after one year has elapsed from the date of passing of the decree for judicial separation. The term “resumption of cohabitation” does not simply refer to two people living together in the same household, rather it means that the parties have decided to fulfil their obligations which are required in a harmonious relationship.

If there is no other legal ground justifying the denial of the relief of divorce as provided in Section 23 of the Hindu Marriage Act, 1955 the court will grant a divorce order under Section 13(1A). 

The second round to seek a divorce is provided to the parties, in case there has been no restitution of conjugal rights between the parties even after one year of the passing of the decree for restitution of conjugal rights under Section 9. Restoring conjugal rights entails resuming marital obligations. If there has been no restoration of conjugal rights for one year following the issuance of a decree under Section 9 of the Act, either spouse may file for divorce. Before awarding a divorce order, for this reason, the Court must be convinced that the petition does not suffer from any infirmity as per Section 23 of the Hindu Marriage Act, 1955. 

In a recent case X vs. Y (2024), the court reiterated that once the decree for restitution of conjugal rights had been passed and still the defaulting spouse had not resumed cohabitation, this grants either of the parties the right to seek divorce under Section 13 (1A)(ii). Further, this can be considered as desertion by the respondent of the petitioner without any reasonable cause.

Judicial decisions explaining Section 13(1A) of the Act of 1955

In Saroj Rani vs. Sudarshan Kumar (1984), it was held by the top court that, when a husband obtained a decree for restitution of conjugal rights only to seek a divorce under Section 13(1A)(ii) of the Act and prevented the wife from performing her conjugal duties by driving her away from the house, it will constitute misconduct under Section 23(1)(a) of the Act. This is because the husband was taking advantage of his wrongs and thus he was not entitled to any relief. 

In Vishnu Dutt Sharma vs. Manju Sharma (2009), the Apex Court decided that based on a cursory reading of Section 13 of the Act of 1955, the law does not provide for divorce on the grounds of irreversible dissolution of a marriage. In rare situations, however, the court will grant a divorce to the marriage due to irreversible collapse. 

Section 13(2) : special grounds for divorce available only to the wife

Section 13(2) of the Hindu Marriage Act, 1955 provides four grounds for the wife to seek divorce from her husband. These grounds are explained hereunder. 

Section 13(2)(i) : polygamous marriage solemnised prior to the HMA, 1955

Prior to the commencement of the Hindu Marriage Act, 1955, the practice of monogamy was absent under Hindu law. A man was allowed to have any number of wives. However, this rule underwent a major change with the introduction of the concept of monogamy under the Hindu Marriage Act, 1955.

Therefore, under Section 13(2)(i) if more than one wife exists due to a polygamous marriage, which was solemnised prior to 18/05/1955 and is thereby a valid marriage. The wife of such a marriage has been given the right to seek a divorce. 

The following conditions must be satisfied prior to the grant of the decree of divorce on this ground :

1. Both marriages must have been solemnised prior to the commencement of the Hindu Marriage Act 1955;
2. Either the husband of the petitioner had married again before the commencement of the Hindu Marriage Act, 1955 or any other wife of the husband was alive at the time of the solemnisation of marriage of the plaintiff before 18/05/1955; 
3. The wife is alive when the petition for divorce on this ground has been presented by the petitioner. It is immaterial, if, during the proceedings under the Section, the other wife dies or obtains the degree for divorce. It is immaterial whether, during the proceedings under this Section, the other wife dies or seeks for the decree of divorce.  in order to seek divorce under this ground, it is material that the other wife is present at the time the petition was filled.

For instance, H married W on 1/1/1920, he subsequently married W1 on 1/1/1930 and married W2 on 1/1/1940. Since all of these marriages were solemnised prior to the commencement of the HMA, 1955 all the wives would have the right to seek dissolution of their marriage under this ground. The sole stipulation is that the divorce petition would be granted if the other wife was still alive when the petition was presented.

In the case of Venkataramma vs. Venkataswamy (1962) Karnataka High Court held that all the wives may present a petition for divorce and may obtain a decree of divorce as the requirement is that at the time of presentation of a petition, one or more wives must be alive.

Section 13(2)(ii) : husband guilty of committing rape, sodomy or bestiality 

Under this Section, a wife can seek divorce from her husband, if the latter has been guilty of committing rape, sodomy, or bestiality since the marriage was solemnised. It is only after the charges are proved and the husband is finally convicted and no more appeals lie, that this ground would be available. Mere accusations or allegations of such acts would not suffice.

Section 375 of the Indian Penal Code, 1860 makes rape a criminal offence. A person who has carnal copulation with an individual of the same sex or an animal, or non-coital carnal copulation with an individual of the opposite sex, is said to have committed sodomy. Bestiality refers to a human’s sexual union with an animal that is contrary to nature’s order.

Section 13(2)(iii) : decree or order of maintenance

This Section provides the wife the right to seek divorce when a decree of maintenance has been issued under Section 18 of the Hindu Adoptions and Maintenance Act, 1956, or when an order of maintenance has been issued against the husband under Section 125 of the Code of Criminal Procedure, 1973, ( Now under Section 147 of the Bhartiya Nagrik Suraksha Sanhita 2023) and if the following two requirements are fulfilled, in that case the wife has the option of filing a divorce petition against her husband:

a) The fact that she was living separately, and

b) She and her spouse have not cohabitated for at least one year following the issuance of the decree.

In the case of Satinder Singh vs. Bhupinder Kaur (2010), the Delhi High Court stated that it was by the recommendation of the Law Commission in its 59th report that this clause was added. It was aimed at providing the wife a right to seek divorce in case the husband has continued to neglect her ever after an order granting maintenance in her favour has been passed. The absence of cohabitation for a period of a minimum of 1 year clearly establishes that the husband has ceased to value the society of the wife and the need for her company has ended. Only the wife has been granted the right to seek divorce on this ground as, an erring husband who refuses to pay his wife the maintenance despite the order of the court cannot be allowed to contend that since the order has not been complied with, the ground for divorce is available to him. If such ground is made available to him, it would create an easy way for erring husbands to seek divorce.

Section 13(2)(iv) : the option of puberty

India is infamous for the prevalence of child marriages, especially in the states of Rajasthan, Haryana, West Bengal, etc. After acknowledging this reality, this ground was included within the HMA, 1955.

Under Section 5, the age requirement has been stipulated as 18 years for the bride and 21 years for the bridegroom. However, no consequence has been expressly stated in case this condition is violated. This has the effect of treating a child marriage as a valid marriage. This notion is further strengthened by Section 13(2)(iv) which declares it as a ground for divorce, and we must understand that a divorce is only provided in a valid marriage.

It enables the wife to seek a divorce if her marriage was solemnised before she reached the age of 15. She has been given the option of seeking a divorce after she turns 15, but before turning 18. When a child bride reaches puberty, she has the option of seeking a divorce, this is to safeguard females who may have been pressured into marriage. 

This ground must be read with the Prohibition of Child Marriage Act 2005. Under this Act, a marriage of a child, which includes a male below the age of 21 and a female below the age of 18, has been declared voidable. A marriage can be declared voidable by a decree of nullity and a divorce decree is not required in such a case. Further, under the Act, the right to get such marriage annulled is available for a period of three years after attaining the age of majority, which is 18 years for females and 21 years for males. 

Therefore, while the Hindu Marriage Act, considers such marriage as a valid marriage and provides the option of puberty to seek divorce in such case, the Prohibition of Child Marriage Act, expressly declares it to be voidable, which can be annulled by a degree of nullity. 

Section 13A : alternate relief in divorce proceedings

It is evident that the Hindu Marriage Act 1955 attempts at every step to preserve the marital bond between the parties and to reconcile the differences amicably wherever possible. On the same lines, this provision was added by the Marriage Laws Amendment Act, 1976. It empowers the court to which a petition for divorce has been filed to grant a decree of judicial separation instead If the circumstances justify such a course of action. Where the court is of the opinion that there is still a scope for reconciliation between the parties, it may grant a decree for judicial separation instead of a divorce decree. This course of action is not allowed in case a petition for divorce is filed on the grounds of conversion by the respondent (Section 13(1)(ii)) or renunciation of the world by the respondent (Section 13(1)(vi)) or if the spouse has been missing for seven years or more (Section 13(1)(vii)). 

Section 13B : divorce by mutual consent

The Fifty-ninth Law Commission report suggested the inclusion of the provision providing for divorce by mutual consent. This recommendation was also supported by the committee on the status of women in India. As a result, this was included in the Hindu Marriage Act, 1955 by the Marriage Laws (Amendment) Act, 1976. 

Section 13B of the Hindu Marriage Act, 1955 provides for divorce by mutual consent of the parties to a marriage. The parties may file a petition for dissolution of marriage by a decree of mutual consent under Section 13B(1) of the Hindu Marriage Act, 1955 if the marriage is dissolved with effect from the date of the decree. Section 13B(1) of the Hindu Marriage Act read with Section 13B(2) envisages a total waiting period of 18 months from the date of separation to move the motion for a decree of divorce.

The requisites for the presentation of the first petition under Section 13(1) are as follows-

1. Both parties must present the petition together;
2. The parties must have been living separately for a period of a minimum of one year; and 
3. The parties have not been able to live together and have mutually agreed to dissolve the marriage.

The requisites for presentation of the second petition under Section 13(2) are as follows-

1. The motion must be made by both parties;
2. This motion must be made at least six months from the first petition but not later than 18 months from the date of the first petition;
3. After the second motion, the Court will conduct enquiry to examine the truthfulness of the averments of the petition and on being satisfied that the consent is not obtained by fraud, force, etciIt will subsequently pass a divorce decree.

Justice Indira Banerjee while deciding the recent case of Amit Kumar vs. Suman Beniwal (2021) has made the following observations concerning Section 13B of the Hindu Marriage Act, 1955, which provides for divorce by mutual consent and took effect on 27.5.1976, is not designed to damage the institution of marriage. Where a marriage has irretrievably broken down and both spouses have amicably chosen to separate, Section 13B allows the parties to avoid and/or abbreviate needless confrontational litigation.

Tracing the development in the law relating to divorce by mutual consent under Section 13B  

Sureshta Devi vs. Om Prakash (1991)

In this case, the Apex Court interpreted the meaning of ‘living separately for one year or more’ under Section 13B. The term living separately connotes the state of things, they must not be living as husband and wife, nor fulfilling their marital obligations. It has no reference to the place of living.

Anil Kumar Jain vs. Maya Jain (2009) 

In this case, the Apex Court discussed the issue of whether the statutory waiting period prescribed under Section 13B(2) before the filing of the first and the second motion can be waived by the Apex Court under Article 142 of the Constitution. Prior to this judgement, all the courts were waiving this period.

The court categorically stated that it is only the Apex Court that can grant relief to the parties without waiting for the statutorily prescribed waiting period of six months by using its powers under Article 142. Other courts cannot exercise such powers as they are not competent to do so. Therefore, neither the Civil Court nor the High Court can pass orders before the expiry of such period. Further, the Supreme Court can in special circumstances pass appropriate orders to do justice and waive the period, but in normal circumstances, the provisions of the statute must be given effect.  

Hitesh Bhatnagar vs. Deepa Bhatnagar (2011) 

The question that was decided in the present case was can the consent be withdrawn at any stage by the parties under Section 13B? 

The court held that the decree for divorce by mutual consent can be passed only if the following conditions must be fulfilled-

1. The second motion as required under Section 13B (2) has to be made not before six months from the date of filing of the first motion under Section 13B(1) and not later than 18 months from the date of the first motion.
2. After hearing the parties to the petition and making an inquiry, if the court is satisfied with the truthfulness of the averments in the petition.
3. The petition is not withdrawn by either party at any time before the passing of the decree.

Therefore, it is clear that the consent in such a petition can be withdrawn at any time before the decree. The most essential element in the divorce by mutual consent is the presence of free consent of both parties, existing till the decree is passed. The court further noted that non-withdrawal of mutual consent before the expiry of 18 months is immaterial, if the consent is subsequently withdrawn.

Amardeep Singh vs. Harveen Kaur (2017) 

In this landmark case, the question before the Apex Court was, whether the waiting period of 6 months is mandatory or can be waived off under exceptional circumstances.

The court stated that the period was provided by the legislature to enable the parties to rethink and try to reconcile their differences. However, in cases where the court believes that there is no scope for any reconciliation and a case to waive the statutory period has been made out, it may do so. The Apex Court has provided a list of conditions to  be considered to decide whether the case to waive the six-month statutory period has been made out or not :

1. Where the statutory period of six months in addition to the one-year period in Section 13B(1) of separation has already been undergone before the first motion itself.
2. Efforts for mediation and reconciliation have failed and the chances of reconciliation are nil.
3. The parties have settled all incidental matters like alimony, custody, etc.
4. The court is of the opinion that the waiting period will prolong the agony. 

In such cases, any court where the petition is pending and not just the Supreme Court can waive the waiting period. The waiver application can be filed 1 week after the petition for the first motion has been filed, after giving the requisite reasons for the waiver. The final discretion lies with the court on the analysis of the facts and circumstances. 

Rajat Gupta vs. Rupali Gupta (2018)

In this case, two questions arose before the Delhi High Court. Firstly, where the parties filed the first motion, but one of them does not come to file the second motion can contempt proceedings be initiated against such a party, and secondly can the court force the party to provide his consent?

The court held that the main feature of Section 13 B is that it recognises the unqualified right of a party to the marriage to withdraw its consent. This right exists, notwithstanding any undertaking which the party may have given before. The element of mutual consent should commence from the stage of filing of the first motion and should continue till the time the decree is passed. However, the defaulting party who does not come to file the second motion or withdraw its consent can be liable for civil contempt, if the aggrieved party is able to show that it is due to the wilful breach of the defaulting party that the former has been placed in a disadvantageous position. 

Shilpa Sailesh vs. Varun Sreenivasan (2023)

The issue considered in this case was, whether the Apex Court while hearing a transfer petition or other proceeding exercised powers under Article 142 in view of the settlement between parties and granted a divorce by mutual consent, dispensing with the period and proceedings prescribed under Section 13B. 

The legislative intent behind the incorporation of Section 13B (2) was to give the couples time to introspect before they decide to separate. There are situations of exceptional hardship on account of reconcilable differences. Allegations are made against each other and the respective families and multiple litigations, including criminal cases, are instituted. In such cases, the divorce is inevitable and the cooling of a period of six months breeds misery and pain to the parties. 

In the case of Amardeep Kaur vs Harveen Kaur (2017) as mentioned above, the Apex Court enlisted several questions that the court would ask before passing any order. However, the present judgement proceeds on the interpretation of Section 13 B(2) and does not examine if the Supreme Court can record a settlement agreement and grant a divorce on mutual consent under Section 13 B in the exercise of power under Article 142 of the constitution.

Section 13B of the Hindu Marriage Act, 1955 does not impose any fetters on the powers of the court to grant a degree of divorce by mutual consent on a joint application when the pre-conditions of the Section are fulfilled and the Supreme Court is of the opinion that a decree should be granted. Further, the court on the basis of settlement between the parties while passing a decree of divorce by mutual consent, can set aside and quash other proceedings, including criminal cases to ensure amicable resolution of matrimonial matters. After ensuring that the settlement between the parties is achieved with free consent.

Conclusion 

The Hindu Marriage Act, 1955 Has provided various grounds to dissolve a marriage in case the continuance is no longer conducive. At the same time, it is abundantly clear that every attempt has been made by the legislature to protect the sacred bond of matrimony. In addition, the courts are also duty-bound to endeavour to help the parties reach an amicable resolution wherever the circumstances allow. In light of the constitutional principles of human dignity and individual autonomy, the provision for dissolution of marriage has been provided. 

Frequently Asked Questions (FAQs)

What changes were brought about in the law of divorce under the HMA, 1955 by the 1976 Amendment?

The 1976 Amendment was brought about to liberalise the provisions relating to divorce to enable expeditious disposal of proceedings under the Act and to remove certain anomalies and handicaps that had come into light after the Act was passed.

The following were the major changes brought about by the Amendment-

1. Hindu Marriage Amendment Act, 1976 has inserted impotency as a ground to declare a marriage voidable under Section 12(1)(a).
2. Adultery, cruelty, and desertion were inserted as grounds of divorce under Section 13(1) (i), (ii), and (iii) by the Hindu Marriage Amendment Act, 1976. 
3. Section 5 of the Hindu Marriage Act provides the conditions of marriage, Section 5(ii) (a), (b), (c) were inserted by the Hindu Marriage Amendment Act, 1976.
4. The wife can now claim divorce under  Section 13(2)(iii) on the ground that a decree or order has been passed against the husband and in favour of the wife, awarding maintenance to her, notwithstanding the fact that the spouses were living separately. Even after one year of the passing of the decree or order, the cohabitation between the parties has not resumed.
5. The provision for alternate relief in divorce proceedings under Section 13A and divorce by mutual consent under Section 13B was also inserted by the Hindu Marriage Amendment Act,1976.
6. Special provisions relating to the trial and disposal of the petitions under the Hindu Marriage Act specified under Section 21B were also inserted by the Amendment Act,1976.

What changes were brought about in the Law of divorce under the Uniform Civil Code in Uttrakhand? 

The Uniform Civil Code of Uttrakhand 2024 (hereinafter UCC) is intended to govern and regulate laws relating to marriage and divorce, succession, live-in relationships, and related matters.

1. Under the UCC introduced in the state, the registration of marriages as well as divorces has been made compulsory. Therefore, now to make a divorce fully legalised in addition to the decree of a court, the registration of such divorce is also to be sought. Further, the Act also sets a timeline for the parties who have already been granted divorce to register such divorces. The omission to register is stipulated to be met with penal provisions. It is a known fact that the registration of any document in India is not an easy task due to the red tapism and corruption found in the department. While the benefit of registration of marriages does fulfil a purpose The rationale behind registration of divorce is still unknown as the decree of a court is a public document and is accessible to all.
2. In the provisions dealing with marriage and divorce the legislature of the state has omitted to provide any law relating to settlement in a matrimonial relationship, which divides the resources of the spouses equally which were either purchased jointly or separately after marriage. It is a known fact that where ever divorce decree is passed, the courts often do not make specific provisions for permanent alimony and this right has to be claimed independently by separate suits. 
3. The Uniform Civil Code has set out new rules for consensual sexual relationships outside marriage, which are also known as live-in relationships. The party is duty-bound to notify the registrar within a month of entering into such a relationship and further, even the termination of such a relationship has to be notified to the police. This compels the people in such relationships to disclose the fact of them living together and act in negation of the very idea of privacy. As per the opinion of a section of society, the provision requiring the registration is arbitrary and irrational. They contend that such a move is intrusive upon the privacy of individuals is susceptible to be constitutionally challenged. If two consenting adults decide not to marry, but only live together and start living together are also to be registered. It is in a way making public what they intend to keep private.

What other provisions are related to divorce under the Hindu Marriage Act, 1955?

The following are some of the provisions related to divorce under the Hindu Marriage Act, 1955 :

1. Section 14 provides that any party to the marriage cannot file a petition for divorce before the expiry of one year from the marriage. However, as per the proviso in case of exceptional depravity or exceptional hardship, the court waive off the time period of one year. This Section acknowledges the time period required after the marriage for some adjustment and therefore ensures that the party spent at least one year, attempting to adjust to the new change circumstances and not take any action in haste. In a recent case of X vs.Y (2024) LiveLaw (PH) 08, the Punjab and Haryana High Court has ruled that Section 14 also applies to divorce sought under Section 13B, and therefore, couples can seek relaxation to file for mutual divorce within one year of marriage.
2. Section 28 provides for the limitation period to present an appeal against a decree passed. A period of 90 days has been stipulated to present an appeal. Therefore in cases where an appeal lies, It would only be lawful for the spouses to remarry after the period to prefer an appeal has elapsed or where the appeal was filed it has been finally disposed of. This provision has been provided to protect the rights of the spouse who is aggrieved by the decree.
3. Section 15 provides the time limit when a divorced person may be married after a divorce decree has been passed. It is clearly provided that in case where there is no right of appeal or where the appeal is provided for, however, the time has elapsed to present an appeal or where the appeal has been presented and is dismissed, then the parties can lawfully marry. The fate of a subsequent marriage solemnised in violation of this provision has not been expressly dealt with in the Act. This marriage is neither boiled nor voidable but can be termed unlawful or illegal as it has been performed in violation of the law. The Apex Court in the case of Anurag Mittal vs. Shaily Mishra Mittal (2018), stated that the restriction provided under Section 15 is merely for the protection of the party who is contesting the appeal and would not apply in cases where the parties have mutually settled and decided not to pursue an appeal.
4. Section 23(2) and (3) clearly reflect the legislative intent of protecting marriages as far as possible and declares that before any relief is granted under the Act, the court must attempt to make an endeavour to bring about reconciliation between the parties. To facilitate amicable settlement and reconciliation, the court can adjourn the proceedings and refer the dispute to a mediator.

References 

1. https://www.scconline.com/blog/post/tag/Section-13-of-hindu-marriage-Act/
2. https://frontline.thehindu.com/politics/uttarakhand-ucc-bill-law-implications-for-uniform-civil-code-in-india-women-marriage-relations/article67899026.ece#
3. https://ucc.uk.gov.in/

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