Section 13 of the Hindu Marriage Act, 1955

Section 13 of The Hindu Marriage Act, 1955

Provision

Section 13 of the Hindu Marriage Act,1955 talks about divorce as a legal action between the married people to terminate their marriage by abandoning the legal duties and responsibilities of the marriage. A divorce is a legal decree that ends a marriage before the death of either of the spouses. It is the legal dissolution of marriage by a court or any other competent body. In India, divorce is granted by the court when the petition is filed either by the husband or wife. indiankanoon

Judicial Analysis

A divorce is a strong legal binding and puts responsibility at large upon the husband and wife. It is the purpose for ending a marriage and it does suspend the marriage forever and there can be no reconciliation of the parties after the divorce and once the divorce is granted the parties are free to remarry,But divorce should not be overlapped with the concept of judicial separation as it is a state of marriage authorised by the court where a husband and a wife doesn’t live like a married couple. The court passes the decree of the judicial separation when the parties do not want a divorce or do not have enough grounds for divorce and the marriage is suspended for the time being and the parties do not have the right to remarry.

Grounds of divorce

Section 13 of the Hindu Marriage Act,1955 lays down the grounds for the divorce upon which one of the spouses can file a divorce against the other spouse.

Adultery

Adultery means the consensual and voluntary intercourse between a married person with another person whether married or unmarried,of the opposite sex. The concept of adultery was inserted under the Hindu Marriage Act by the marriage laws amendment act,1976.

Essentials of Adultery

1. One of the spouse involved in the sexual intercourse with another person married or unmarried of the opposite sex.
2. The marriage should be subsisting during the time of intercourse.
3. Intercourse must be voluntary and consensual.
4. There must be proper evidence to prove the spouse as guilty.

Adultery

Adultery means the consensual and voluntary intercourse between a married person with another person whether married or unmarried,of the opposite sex. The concept of adultery was inserted under the Hindu Marriage Act by the marriage laws amendment act,1976.

Cruelty

Cruelty is one of the grounds of divorce where one of the spouses causes cruelty against the innocent which can be either physical cruelty or mental cruelty.The physical cruelty includes bodily injuries caused to the innocent and the mental cruelty includes the lack of kindness which adversely causes harm to the health of the innocent. It is very easy to determine the physical cruelty but it is difficult to determine the mental cruelty.

Some examples of cruelty are as follows

1. Demand of dowry
2. Refusal to have intercourse
3. Drunkenness
4. Threats to commit suicide
5. Incompatibility of temperament
6. Wife having an affair
7. Humiliating the husband in front of his family and friends
8. False accusations of adultery
9. Impotency

Desertion

Desertion means total refusal of marital obligations. It means permanent abandonment of one spouse by the other without any reasonable justification and without his consent.

Essentials of desertion

1. There should be no reasonable cause for desertion.
2. The consent of the other spouse is absent.
3. There must be an intention to desert.
4. There must be a desertion of 2 years before a petition is filed.

Insanity

One of the spouses can file a petition for divorce against the other spouse who is of unsound mind.

Essentials of insanity

1. The spouse has been continuously suffering from mental disorder to such an extent that it is not possible to live with him by any means.
2. The respondent has been incurably of an unsound mind.

Renunciation

The person can approach the court when one of the spouses decides to renounce the world and walk on the path of the god and that person is considered as civilly dead. (This ground is only available in the hindu law)

Presumption of death

A person is presumed to be dead, if s/he has not been heard of being alive for more than 7 years and the spouse can file a petition for divorce. A decree of divorce granted under this clause is valid and effective even when it is found that such a person was alive when the decree was passed.

Impotency, Leprosy, Conversion, Venereal Disease are other grounds of divorce.

by mutual consent

Section 13(b) of the Hindu Marriage Act,1955 talks about divorce by mutual consent through which both the parties mutually decide to end the marriage relationship so as to get rid of all the matrimonial duties and responsibilities.

Essentials of divorce by mutual consent

1. Parties should be living separately for one year or more.
2. Parties are not able to live together.
3. They have mutually agreed that the marriage should be dissolved.

Case laws

Sachindranath Chatterjee v. Sm. Nilima Chatterjee

In this case,both the petitioner and the defendant were lawfully wedded and after the marriage,the husband left his wife in his hometown so that she could complete her studies and go to another city for a job during which he used to visit and meet her twice or thrice. Later he found that his wife was committing adultery with his own nephew, his watchman etc. The plaintiff approaches the court and seeks divorce on the ground of adultery upon which his petition is accepted and marriage gets dissolved.

Amardeep Singh v. Harveen Kaur

In this case, the parties were living separately since 2008, and in 2017 the parties arrived at a settlement and applied for divorce by mutual consent and the parties pleaded to waive off the period of 6 months prescribed in the law on the ground that they have been living separately for the last 8 years and there was no possibility of their reunion. Then the apex court alleged that the cooling off period of 6-18 months under section 13(2) of Hindu Marriage Act,1955 is not mandatory but a directory provision and can be waived off under certain circumstances.

Bipin Chander v. Prabhawati

In this case the respondent leaves the house with the intention to abandon, in reply to which the wife approaches the court for seeking divorce but the defendant proved that even though he left with such intention but he tried to come back and he was prevented from doing so by the petitioner. After listening to all the facts, the apex court alleged that the defendant cannot be held liable for desertion in this case.

Suresh babu v. Leela

In this case,the husband converts himself into Muslim and marries another woman. His ex wife Leela,files a case of divorce on the grounds of conversion without his consent and for cruelty.

Swarajya Lakshmi v. G. G Padma Rao

In this case,the husband filed the case of divorce on the grounds of leprosy claiming that his wife was suffering from incurable leprosy and he proved it with expert’s reports upon which he was granted with the decision in his favour.

Conclusion

The Hindu Marriage Act provides various grounds of divorce upon which one of the spouses can file for divorce and even both the parties can mutually file a divorce and get separated. The act defines divorce as dissolution of marriage. In India,the fault theory acts as a principle for divorce where the marriage can be ended when one of the spouses is responsible or liable for some offence mentioned in the act. Hindu’s consider marriage as a sacred bond and the term divorce was too revolutionary in the earlier times. Then the time changed and so did the situations. Now the law provides a way to get out of an unpleasant marriage and the women no longer have to suffer silently and endure harassment caused to them by their husbands. The judiciary should deal with this subject of divorce in a very cautious manner after considering all the relatable facts and circumstances of the case.