In an earlier article in February 2021, we had discussed on the valid requirements of a Hindu Marriage in India and as a part of our series on Hindu Marriage, we outline in this article, grounds that could be relied upon by parties to a proceeding, when it comes to divorce and separation under the relevant law.
The option to divorce under the Hindu Law are available to couples who have moved abroad after their marriage in India. However, the divorce proceedings under the Hindu Marriage Laws can only be initiated in an Indian Court. The cause of action for the divorce may arise in a foreign jurisdiction and the Indian courts do not shy away from recognizing foreign evidence if they are backed up by necessary documentary proof.
Grounds for Divorce under the Hindu Marriage Act, 1955
Section 13 of the Hindu Marriage Act 1955 lays down the lawful grounds under which an application for divorce can be made.
- Adultery– According to Section 13(i) of the 1955 Act, “voluntary sexual intercourse with any other person other than his or her spouse” post solemnization of marriage is a ground for divorce.
- Cruelty– Cruelty encompasses mental and physical torture which proves to be a danger to life, health and limbs. It is pertinent to mention that filing false criminal claims against a spouse is considered to be cruelty too.
- Desertion– In the event that the spouse has for a continuous period of “not less than two year immediately preceding the presentation of the petition” voluntarily deserts the spouse.
- Conversion– When either of the spouse converts to another religion from Hinduism.
- Mental Disorder – If a spouse has been “has been incurably of unsound mind, or 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.”
- Venereal Disease– Divorce may also be filed in the event where the spouse suffers from a serious venereal (sexual) disease that is communicable in nature including but not limited to AIDS.
- Renunciation– In the event where either of the spouse joins a religious order by renouncing the world.
- Presumption of Death– If a spouse is normally unheard for period of more than 7 years.
- No Resumption of Co-Habitation – If the parties to a marriage have not resumed co-habiting for a period over one year or upwards since the court had passed a decree of separation between the parties, then either party may file for divorce under Section 13 (IA)(i) of the 1955 Act.
- No Restitution of Conjugal Rights– According to Section 13(IA)(ii) of the Hindu Marriage Act, if there has been no restitution of conjugal rights, post the court’s decree for restitution concerning the two individuals in question, either party may submit an application for divorce.
In addition to the provisions discussed above, the Hindu Marriage Act lays down additional grounds for divorce that may be relied on solely by women in a marriage.
Section 13(2) of the Act lays down that an application for dissolution of marriage by virtue of a decree of divorce may be filed only by a wife on the following grounds-
- The husband enters into a marriage with another woman before the solemnization of this Act, whilst the first wife is still alive; or
- The husband partook in acts of sodomy, bestiality or rape; or
- In the event that the wife had entered into the marriage while she was under the age of fifteen and had renounced the marriage before the age of eighteen years; or
- If the husband in spite of an order of Court fails to pay maintenance and allowances to the wife.
Divorce may also be filed by mutual consent between the parties. Section 13 B of the 1955 Act discusses that both parties may file a petition for dissolution of marriage together in the event where they have been living away from one another for a period of one year or more.
Navigating through divorce laws especially between to jurisdictions can be a confusing and overwhelming experience. We have a specialist team of lawyers who are dual qualified both in India, England and Wales, who have dealt with matrimonial matters in both jurisdictions.
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