Introduction
Marriage under Hindu law is a sacrament, but the Hindu Marriage Act, 1955 (HMA) recognizes divorce (तलाक) as a legal remedy when marriage breaks down irreparably.
Statutory Legal Provisions for Divorce
The Hindu Marriage Act provides divorce grounds under:
Section 13(1) — Grounds for Husband and Wife
Section 13(2) — Special Grounds for Wife
Section 13(1A) — Post-Decree Grounds
Section 13B — Mutual Consent Divorce
Grounds Available to Both Spouses — Section 13(1)
Adultery (व्यभिचार) — Section 13(1)(i)
Voluntary sexual intercourse with another person.
Supreme Court Cases:
- Subbaramma v. Saraswathi (1964)
- K. Srinivas Rao v. D.A. Deepa (2013)
Cruelty (क्रूरता) — Section 13(1)(i-a)
Includes both physical and mental cruelty.
Judgments:
- Naveen Kohli v. Neelu Kohli (2006)
- V. Bhagat v. D. Bhagat (1994)
- Samar Ghosh v. Jaya Ghosh (2007)
Desertion (परित्याग) — Section 13(1)(i-b)
Desertion for a continuous period of two years.
Judgments:
- Bipinchandra Shah v. Prabhavati (1956)
- Lachman Utamchand Kirpalani v. Meena (1964)
Conversion (धर्म परिवर्तन) — Section 13(1)(ii)
Conversion to a different religion without consent.
Unsoundness of Mind — Section 13(1)(iii)
A mental disorder must make marital life impossible.
Judgment: Sharda v. Dharmpal (2003)
Venereal Disease — Section 13(1)(v)
Communicable sexually transmitted disease.
Renunciation of the World — Section 13(1)(vi)
Entering a religious order and abandoning worldly life.
Not Heard Alive for 7 Years — Section 13(1)(vii)
Presumption of civil death.
Note- Ground of Leprosy deleted by the Personal Laws (Amendment) Act, 2019.
Exclusive Grounds for Wife — Section 13(2)-Grounds for Divorce under the Hindu Marriage Act
Husband’s Second Marriage — Bigamy
The wife may seek a divorce if the husband already has another living wife.
Husband Guilty of Rape, Sodomy, or Bestiality
Severe violation of marital dignity & bodily integrity.
Maintenance Order but No Cohabitation
Judgment: Krishna Bhattacharjee v. Sarathi Choudhury (2015 SC)
Repudiation of Marriage (Option of Puberty)
Marriage contracted before age 15 can be repudiated before 18.
Grounds After Judicial Separation / RCR — Section 13(1A)-Grounds for Divorce under the Hindu Marriage Act
If no resumption of marital relations after:
- Judicial Separation decree, or
- Restitution of Conjugal Rights decree
Judgment: Dharmendra Kumar v. Usha Kumar (1977)
Mutual Consent Divorce — Section 13B
Marriage broken beyond repair + free consent of both parties.
Cooling period may be waived.
Judgment: Amit Kumar v. Suman Beniwal (2021)
Irretrievable Breakdown of Marriage — Judicial Interpretation-Grounds for Divorce under the Hindu Marriage Act
Supreme Court Recognition under Article 142
Used in exceptional cases where marriage is dead emotionally & practically.
Judgment:
Shilpa Sailesh v. Varun Sreenivasan (2023 — Constitution Bench)
Present Situation of Family Courts in India-Grounds for Divorce under the Hindu Marriage Act
Mandatory Mediation & Counselling
Courts prioritize reconciliation.
Delay in Matrimonial Trials
- Contested cases: 3–7 years
- Mutual consent: 6–12 months
Expanded Scope of Electronic Evidence
WhatsApp, Email, CCTV — subject to Section 65B Evidence Act compliance.
Multiple Simultaneous Cases
Often involves:
- DV Act complaints
- Maintenance claims
- Child custody
- Criminal proceedings under Section 498A IPC
Focus on the Best Interest of Children
Visitation orders are increasingly structured.
Rights After Divorce-Grounds for Divorce under the Hindu Marriage Act
Right to Maintenance
- Section 125 CrPC (now Section 144 BNSS)
- Hindu Adoptions and Maintenance Act, 1956
Streedhan Rights
Property belonging to the wife cannot be taken away.
Judgment: Pratibha Rani v. Suraj Kumar (1985)
Custody and Visitation Rights
Under the Guardians and Wards Act, 1890
Right to Remarry
Only after the decree becomes final.
Common Misconceptions
Misconception
| Long separation grants divorce |
| Long separation grants a divorce |
| WhatsApp chats alone prove adultery |
| Post-divorce financial duties end |
Legal Reality
| Court decree mandatory |
| Grounds must be proven |
| Must fulfil Evidence Act requirements |
| Maintenance & child support continue |
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Conclusion
Law respects marriage, but also upholds dignity and personal liberty. When a marriage becomes emotionally dead and irretrievable, divorce is a just and lawful remedy.
Frequently Asked Questions (FAQ)
Q1. Which ground is most frequently used in India?
Cruelty under Section 13(1)(i-a).
Q2. What if the spouse avoids appearing in court?
The court may proceed ex parte.
Q3. Is electronic evidence acceptable in adultery cases?
Yes, with Section 65B certificate.
Q4. Can consent be withdrawn in a mutual consent divorce?
Yes, before the second motion.
Q5. When does the right to remarry arise?
After the decree attains finality and the appeal period ends.
Adv. Sanjay Sharma is a Practicing Advocate in India, handling matters relating to Civil Law, Criminal Law, Goods and Services Tax (GST), and Insolvency & Bankruptcy laws.
Through Samvidhan Se Samadhaan, he works towards enhancing public legal awareness by presenting legal principles, procedures, and judicial decisions in clear, structured, and easily understandable language, supported by authoritative Supreme Court judgments.
