Divorce and Judicial Separation under Hindu Law

September 27, 2022
By Advocate JV Bhosale

All religious groups possess their own laws that govern divorces within their respective groups, and religious partnerships have their own set of norms as well. This Article discusses marital status relief of judicial separationand divorce grounds.

Divorce was not permitted under Shastric Hindu law unless it was permitted by tradition. This was due to the fact that a Hindu marriage constituted an unbreakable link between husband and wife. Divorce was not permitted under the old constitution, regardless of how difficult the occupation was. In some civilizations, such customs satisfied the requirements of a legal custom.

Divorce Under Hindu Law

The legal deadline for ending a marriage with the intervention of a judge is divorce. Divorce in India is the subject of this essay. Due to the sacramental nature of marriage, the phrase no longer exists according to historical criteria. The Indian Marriage Act of 1955, on the other hand, made it legal.

The abnormal divorce theory, in addition to the reasons for divorce under this law, also specifies criminality, mutual consent, and separation, as well as other abnormal divorce theories, in which adultery and cruelty are the future. And how these justifications have shifted as a result of these shifts. It investigates why women are the only ones who can gain the privilege to use.

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Divorce Theories

Guilt theory, mutual consent theory, and irreversible divorce theory are the three types of divorce theories. The concept of guilt, also known as the theory of crime or theory of guilt, argues that before a marriage can be dissolved, only one party must commit a crime by a spouse. There must be a sinful and innocent side, with the innocent side being the sole one.

Divorce is a legal option for you. However, the most obvious feature and negative is the lack of both sides being at blame, resulting in the filing of an appeal. Another alternative is to use the concept of mutual consent when divorcing. The third possibility is that the marriage has irreversibly broken down.

The term "marriage breakdown" refers to when "the marriage relationship is disrupted or conditions are unfavorable to this relationship, to the point where the couple has no reason to live together as a couple again; such a marriage should be broken up in the most just manner possible, with pain, discomfort, and humiliation minimized." The Indian Marriage Act of 1955 cites one of the causes of dissatisfaction with the situation as one of the causes of unhappiness. Internal injuries, world abandonment, and other possibilities are available.

Grounds for Seeking Divorce

Both jurisdictions agree that public policy, specific morals, and social interests require that the marriage partnership be enclosed to the greatest extent feasible and that its dissolution be permitted only in accordance with the procedures and for the purposes specified by laws. All three theories of divorce are recognized in modern Hindu law, and divorce can be acquired under each of them.

The fault concept was first enshrined in the Hindu Marriage Act of 1955, which included nine fault grounds in Section 13(1) for each husband or relative seeking divorce, as well as fault grounds in Section 13(2) for the relationsseeking a divorce.

Some sections of Section 13(1) were changed in 1964, resulting in Section 13(1A), which recognized two justifications for a marriage's dissolution. The 1976 amendment act added two additional fault grounds for divorce for spouses, as well as a new section 13-B for mutual consent divorcers seeking a divorce.

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Reasons for Obtaining Divorce

1. Adultery

Although adultery is not a criminal offense in all countries/regions, the crime of adultery or the reason for the crime of adultery is well-known in most countries/regions. A married man or woman must have a mutual or reciprocal sexual relationship with someone who is not a straight spouse in order to keep their marriage together (whether married or not).

Divorce used to be easier if one of the couples had committed adultery, but Indian marital rules now accept adultery as a valid reason for divorce. Because adultery is a couple's sin, it must be proven that the couple was married at the time of the adultery.

InSwapna Ghose v. Sadanand Ghose, the wife saw her husband and the adulteress sleeping in the same bed at night, and more proof from friends that the husband was living with the adulteress as husband and wife became ample proof of adultery. The truth is that unequivocal proof of infidelity is extremely rare.

Adultery can be proven in the following ways:

-Inferential proof

-Being infected with a venereal disease

2. Cruelty

Cruelty is a term that has evolved over time. Any mental or physical mistreatment is included in the current definition of cruelty. Cruelty is a manifestation of behavior as a result of a range of factors in the lives of spouses and those around them, and each case must be evaluated in its own context. Physical cruelty is obvious, but emotional cruelty is more difficult to detect. Perhaps intellectual cruelty is the result of a loss of marital goodness that causes so much and for so long. The amount of time it has a negative impact on the mental and physical well-being of the partner who has been exposed to it.In the case ofPravin Mehta vs. Inderjeet Mehta, the court referred to mental cruelty as a "state of mind."

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3. Desertion

Desertion is defined as one party's persistent rejection of the other without a justifiable reason and without the other party's agreement to all marital obligations. It also offers a total release from any marriage duties. InBipinchandra v. Prabhavati, the court held that if the defendant left his married family with the intention of escaping, he had the disposition to return and was in the applicant's possession.

4. Conversion

If the other partner has converted to a different faith, such as Islam, Christianity, Judaism, or Zoroastrianism, a divorce can be granted.

5. Insanity

The following two conditions apply to psychopathy as a ground for divorce:

-The respondent has been mentally ill for a long time.

-The respondent has been afflicted by a medical specialist illness of such nature and severity that the litigant cannot reasonably expect to measure with the respondent on a regular or consistent basis.

6. Leprosy

The contagiousness of leprosy and its unsightly bodily appearances are to blame for cultivating a mindset in which man now not only avoids but scorns lepers' enterprise. As a result, it's made to be used as a divorce foundation. The burden of proof is on the applicant.

7. Venereal Disease

It is currently a reason for divorce if it is communicable by default, regardless of how long the respondent has been affected. The inspiration is supplied if it is demonstrated that the illness is contagious and was not communicated to the complainant (even if done innocently).

8. Abandonment

Only Hindu law recognizes "renunciation of the earth" as a ground for divorce because renunciation of the sector is now a common Hindu notion. According to current Hindu law, a partner can seek divorce if the other birthday celebration has abandoned the sector and accepted a holy order. When everyone does a few things like this, it's possible that they'll be deemed courteously dead. Renunciation made through the process of becoming a member of a religious organization should be complete and clear.

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Judicial Separation

Judicial separation is the time between divorces. Before the divorce proceedings can begin, the court will impose a period of separation. The judicial separation period is one year under all personal laws. The separation of the judiciary takes two years and allows for introspection as well as the resolution of marital disagreements and misunderstandings.

In accordance with Section eleven of the Hindu Marriage Act, 1995, a marriage is void if clauses (i), (vi), and (v) of Section five are not met. According to Section 12 of the Hindu Marriage Act, any marriage is voidable if the following conditions are met:

-Either party is fruitless or inappropriate

-If the union was not concurred with and under pressure by the bride or his father or guardian.

-If anyone other than the bride was pregnant before the ceremony.

-In clause (ii) of Section 5, the following provisions are laid down:

  • Where all parties agree to the union in the form of insanity.

  • Willing to have valid consent and thus inappropriate in cases of mental illness for the infant's procreation.

  • Any person regularly suffers from a psychiatric disorder.

Special grounds for divorce for a wife

In addition to the ones listed above, a woman has four additional grounds for divorce under Section 13(2) of the Hindu Marriage Act, 1955. Some instances are as follows:

  1. Pre-Act Polygamous Marriage - According to this provision, the petitioner's husband has another wife who was living at the time of the solemnization of the petitioner's marriage before the Act's enactment.

  2. If the husband was convicted of rape, sodomy, or bestiality before the marriage was solemnized, a divorce petition might be filed under this provision.

  3. A valid reason for filing for divorce is if a woman has received a maintenance order under Section 125 of the Cr.P.C., 1973, or a decree under Section 18 of the Hindu Adoption and Maintenance Act, 1956, and they have not lived together for more than one year.

  4. If a wedding was solemnized before she was 15 and the wedding was repudiated before she was 18, this provision gives the lady grounds for divorce. Such refusals can be expressed or implied (written or spoken words) (by the wife's behavior) (left husband & refused to return back). Furthermore, this right (introduced by the 1976 amendment) is retroactive, which means it can be used regardless of whether the marriage was solemnized before or after the amendment.

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Filling out a Judicial Separation Petition

According to Section 10 of the Hindu Marriage Act of 1955, there is a civil distinction between the two married spouses. This ensures that they can seek legal recourse through a petition and that they are not obligated to remain together until the petition is approved.

Section 10 of the Hindu Marriage Law

In addition, under Section 10 of the Hindu Marriage Law of 1955, each party affected by the other has the right to file a judicial separation petition with the District Court. To this goal, it is necessary to fulfill the following criteria:

-The husband and wife's relationship is duly celebrated in line with the Hindu Marriage Act of 1955.

-The petitioner must settle an issue in the jurisdiction of the court where the petition was filed.

-Prior to the submission of the above request, the husband and wife would have served together for a period of time.


Marriage is regarded as a sacred connection among Hindus. Until the Hindu Marriage Act of 1955, there was no provision for divorce. The term "divorce" was too radical for Indian society at the time. Women were the silent victims of such a patriarchal system. Things changed as circumstances changed, and the social order moved.

The social order of things had transformed. You will now file for divorce in a court of law to end an undesirable relationship. Women benefit more because they are no longer constrained to remain silent owing to their spouses' violence or injustice.Despite this, the judiciary's approach to the irreversible break-up of a marriage is feared to entirely maintain the marriage.

Despite this, the judiciary's approach to dealing with irreversible marital dissolution is thought to entirely maintain the marriage framework. Each principle has both positive and negative aspects. Their applicability varies depending on the circumstances. It's also critical that our country's legislators approach the matter with caution, based on a thorough examination of the long-term repercussions.


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