Section 13 of the Hindu Marriage Act specifically deals with the provisions for divorce, allowing a spouse to seek dissolution of marriage on certain legally recognized grounds. The introduction of divorce under Section 13 reflects a balance between the sanctity of marriage and the right to live with dignity and freedom. It provides equal grounds for both spouses while also offering additional protections for women.
Grounds for divorce under Section 13 include:
Grounds under Section 13(1):
(i)Adultery: Engaging in voluntary sexual intercourse with someone other than the spouse. Proof of such conduct can serve as a basis for divorce.
- (i-a)Cruelty: Inflicting physical or mental harm, making cohabitation unsafe or intolerable. This encompasses both physical violence and emotional abuse.
- (i-b) Desertion: Abandonment by a spouse without reasonable cause for a continuous period of at least two years prior to filing for divorce.
(ii) Conversion: If a spouse converts to another religion, the other spouse may seek divorce on this ground.
(iii) Mental Disorder: If a spouse has been incurably of unsound mind or suffers from a mental disorder to such an extent that it is unreasonable to expect the other spouse to live with them.
(iv) Leprosy (omitted)
(v) Venereal Disease: If a spouse is suffering from a communicable venereal disease.
(vi) Renunciation: If a spouse has renounced the world by entering a religious order, the other spouse can file for divorce.
(vii) Presumption of Death: If a spouse has not been heard of as being alive for a period of seven years or more, the other spouse may petition for divorce.
Section 13-(1A) of Hindu Marriage Act
Section 13(1A) of the Hindu Marriage Act, 1955 allows a spouse to file for divorce if they have been living separately from the other spouse for at least one year. This section is about divorce due to separation, and you do not need to prove any fault, like cruelty or adultery.
No Resumption of Cohabitation After Judicial Separation (1 year or more):
If the couple has been judicially separated (i.e., the court has declared them legally separated) and has not resumed living together for one year or more, either spouse can file for divorce.
No Restitution of Conjugal Rights After Decree (1 year or more):
If the court had earlier ordered the couple to resume living together (restitution of conjugal rights), but they have not followed this order and have been living separately for one year or more, either spouse can apply for divorce.
Additional Grounds for Divorce Available to Women:
Additionally, the Act provides specific grounds under Section 13(2) where a wife can seek divorce:
(i) Bigamy: If the husband has another wife living at the time of the marriage, or the marriage is void under Section 11.
(ii) Rape, Sodomy, or Bestiality: If the husband has been guilty of these offences after the marriage.
(iii) Non-Resumption of Cohabitation: If a decree or order for maintenance has been passed against the husband, and there has been no cohabitation between the parties for one year or more.
(iv) If the wife was married before the age of 15 years and repudiated the marriage after attaining 15 but before turning 18.
Divorce by Mutual Consent 13(B):
Divorce by Mutual Consent is a provision under Section 13B of the Hindu Marriage Act, 1955 that allows a married couple to seek divorce without needing to prove any fault or ground for dissolution of marriage, provided both spouses agree to the decision.
The couple must have been married for at least one year before filing for divorce by mutual consent. This period ensures that the couple has had enough time to reflect on the decision.
Cooling-Off Period: After the initial filing, the court may grant a cooling-off period of six months, allowing the couple to reconsider their decision. This period can be waived if the court feels that reconciliation is impossible or there is no chance for the marriage to be saved.
Case Laws Under Section 13
- Naveen Kohli v. Neelu Kohli (2006):
- The Supreme Court emphasized the need to include irretrievable breakdown of marriage as a ground for divorce.
- Bipinchandra Jaisinghbhai Shah v. Prabhavati (1957):
- Defined “desertion” as both the fact of separation and the intention to desert.
- Shobha Rani v. Madhukar Reddi (1988):
- Clarified cruelty includes both physical and mental cruelty.
Case Laws Under Section 13(1A):
- Suresh Kumar v. Leela Devi (2003):
- The court emphasized that Section 13(1A) applies in cases where spouses have lived separately for a year, even if the separation was by mutual consent. This highlights the importance of continuous separation for one year as a valid ground for divorce.
Key Points to Remember
- Section 13 provides for a judicial remedy for terminating a marriage based on specified grounds.
- Divorce under Section 13 is not automatic; it requires proof of the grounds claimed.
- The provision aims to balance the rights of both spouses, ensuring justice while protecting the sanctity of marriage.
