Divorce Proceedings Under The Hindu Marriage Act of 1955

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Introduction

Marriage is a crucial relationship that shows a dedication that goes beyond friendship and binds two individuals as well as their families. Marriage has historically been seen as a spiritual and permanent link with ramifications that transcend lives in many nations, including Hindus. Hindu culture has always viewed marriage as nearly indestructible, which reflects views on the integrity of matrimonial promises and their relationship to social and religious harmony. Divorce is an uncommon occurrence because of the tremendous humiliation associated with this historical viewpoint. However, the Hindu Marriage Act of 1955 was introduced as a result of constant shifts in society as well as shifting requirements.

By creating an organized system for divorce and officially acknowledging the likelihood of divorce between both spouses through an agreement of divorce, the Act represented a fundamental shift. The Act was introduced to address marriage-related issues in current culture while honoring traditional practices and taking into account the ever-changing nature of law and social standards. To organize legal processes with contemporary societal requirements while attempting to walk the fine line between history and progress, the Act’s separation rules were an essential first step.

Section 13 is one of the Act’s most important clauses. Since it was first introduced in 1955, it has undergone several amendments and liberalizations to accommodate changing societal demands. Indian society is currently moving toward divorce based on a permanent collapse of the marriage, progressing from divorce under extreme conditions and mutual consent.

What is divorce?

The Latin term “divortium“, which means “to turn away” or “to separate,” is where the word “divorce” comes from. It relates to the formal dissolution of a marriage. Divorce can be viewed as a legal separation of the spousal connections created by marriage, even though it is not expressly specified in regulations. Each legal framework acknowledges that marriage should only be dissolved in the ways and for causes that are allowed by law, and that government policies, ethical values, and social goals demand that marital relationships be fully maintained. Therefore, divorce can be viewed as a way to end a marriage that occurs between two individuals. The following are some of the different divorce-related measures that occurred:

1. Divorce as per early Hindu laws

Hindu law, which was not established, did not recognize divorce law. Hindu marital law did not recognize separation in its original structure. The reason for this was that marriage was seen as an irreversible and everlasting union between two individuals. Many emphasized the idea that marriage was supposed to be permanent and invincible, believing that a wife couldn’t get divorced from her husband by sale or desertion. Hindus believe that marriage is a sacred partnership, meaning that it is unbreakable, unforgiving, and everlasting. While traditional divorce was accepted in certain Hindu communities and groups, the idea of divorce was outlawed under early Hindu law. According to Kautilya’s Arthashastra, divorce is possible if both parties agree and there is equal hostility.

2. Divorce as per the British regime

Rather than assisting people dissolve marriages, early British attempts to address recognized societal injustices and injustices among Hindus concentrated on enabling widows to get married again. The British realized it would prove risky to get involved with Hindu laws concerning marriage and divorce because of the bad reputation they already had. During British control, no divorce measures were implemented for Hindus since the British were hesitant to change the current laws for fear of possible popular opposition.

3. Divorce as in modern India

To preserve the feeling of modernization and advancement, the post-colonial wealthy Hindu individuals, who ultimately granted the new divorce legislation to all Hindus, were extremely worried. The establishment of legal separation for all Hindus via the Act became the main topic of conversation and writing regarding changes to Hindu divorce law. All Indian Hindus now have the legal right to get legally separated according to Section 13 of the Act. This has undergone numerous changes to add additional reasons for divorce. Because of this, Section 13 has demonstrated a significant and revolutionary shift in Hindu marital rules, creating particular circumstances in which divorce may be allowed.

What is a divorce notice?

A divorce notice is an authorized and legally binding document submitted by the person asking for relief to their spouse that reveals their purpose and serves as a final word of caution, allowing them to consider and act responsibly before engaging in any judicial dispute.
Theories of divorce

A few well-known and followed theories of divorce are explained below:

1. The theory of divorce without cause

This kind of philosophy believes that a person has the freedom to decide to get a divorce from their partner. Nevertheless, neither the Act nor Hindu law acknowledges this idea. Muslim law, on the other hand, recognizes this strategy and allows a husband to divorce his wife whenever he sees fit without seeking consent.

2. The theory of offense, regret, or blame

The offense theory or guilt concept are other names for the blame theory of divorce. It specifies that if one spouse performs a “matrimonial violation” against the other, who is presumed innocent, the marriage may be dissolved by divorce. According to offense theory, only the innocent individual is qualified to file for divorce, clearly differentiating both guilty and innocent individuals. According to this idea, neither the man nor the woman can ask for a remedy if both are to blame.

The following “matrimonial acts” are recognized by the Act:

1. Abandonment: Abandonment is the unwillingness to live together, which is the key element of marriage. It is not acceptable and provides grounds for relief from marriage. The abandoning or desertion of one spouse by another is the central theme of this theory. It is a complete rejection of the responsibilities that come with marriage. If the defendant has consistently abandoned the applicant for a minimum of two years before the petition’s appearance, a divorce order may be issued.

2. Abuse: According to matrimonial legislation, cruelty must be described as “serious and substantial” to determine that the applicant doesn’t have to live with the other partner. The “normal deterioration of wedded life” must not be the cause.

3. Sexual harassment: Sexual contact or other types of sexual assault performed by an individual without the permission of the victim is known as rape. It is considered a marital offense if the spouse has been proven guilty of this act.

4. Sodomy: The husband has engaged in sodomy ever since the marriage was formally finalized. The crime of forcing someone else to engage in sexual activities is known as sodomy.

5. Bestiality: It is a matrimonial offense if the husband is found guilty of bestiality. The crime of engaging in sexual contact with a lesser animal is known as bestiality.

6. Disregarding the court’s directive to give the wife alimony: Marriage between the two individuals has not been picked up for a year or more after a decree or order against the husband who was providing alimony to the wife was issued in a lawsuit under Section 18 of the Hindu Maintenance and Adoption Act, 1956, or in an investigation under Section 125 of the CrPc, 1973.

7. Getting married to a person who is not of legal marriageable age: Regardless of whether it was completed or not, if the wife’s wedding was consummated before she turned fifteen, and she renounced it after turning fifteen but before turning eighteen.

Personal harm to the marriage between couples must be obvious for it to be covered by this concept, as specified in the previously mentioned matrimonial offenses. A divorce cannot be obtained in a situation where the innocent party pardons the guilty spouse for their actions.

Vexation behind marriage theory

When one of the partners suffers from a medical condition, mental illness, or a change of spirituality, abandons the world, or hasn’t been identified for a long time, the marriage ceases to exist without any marital offense. In this situation, the other partner is entitled to file for divorce to dissolve the marriage. The Act has applied this approach in the following ways:

1. Forever unstable mind: Section 13 requires the person filing the petition to demonstrate that the respondent in question has an unstable mind or has suffered constantly from a mental illness of such type to the point that the petitioner is unable to be expected to reside with the responding party.

2. Transmissible disease: Venereal illness in a contagious form is covered under Section 13. A “transmissible disease” spreads from one individual to another by contact, sharing things, and close physical connections. To prevail on this issue, the person submitting the petition must prove, using medical proof, that the defendant’s venereal illness is infectious.

3. Renouncing the world by joining any religious group: If a spouse has abandoned the world, the husband or wife may be divorced under Section 13. In filing for separation under this article, the person submitting it must first prove that the other party has joined any religious organization and, second, that they have abandoned worldly habits.
Mutual consent

This divorce hypothesis differs from others. Divorce by consent of both parties differs from traditional divorces in which one spouse asks for a divorce and the other spouse opposes it. Both spouses submit a united application with a request for divorce. They intend to get separated from each other and separate peacefully for mutual benefit. If a divorce fails to occur, their lives will be significantly harmed, resulting in moral degeneration.

There are unverified challenges to this sort of separation, which alleges that the reluctant party’s assent was acquired via manipulation, deception, or another strategy, resulting in a divorce by mutual consent. While collusion requires approval, not all instances of agreement establish collusion. Collusion is a hidden agreement made by two or more people which ends in a false consequence. The hidden arrangement is made to achieve a legal aim via the use of trickery. Mutual consent is different from force. In a forced divorce, one person imposes a decision on another.

The Marriage Act of 1976 authorized divorce with mutual agreement. This change has resulted in a move away from the established standards of Hindu marriage as an indestructible connection, as described in the Smritis, and toward a more voluntary marriage under the Act. This hypothesis has been criticized for possibly encouraging unethical behavior, since it may lead to early separations. Others believe that separation by mutual agreement pushes individuals to quit their marriages for small problems.

How does the process of divorce work according to the Hindu Marriage Act of 1955?

Step 1: Lawyers for both spouses (husband and wife) file an application in family court on their respective part. The request comprises all of the data of both spouses’ isolation, as well as the requirements and proof necessary for the termination of their marriage.

Step 2: Both spouses are assigned a certain day when they must appear before the tribunal with their separate lawyers to scrutinize every detail of the request, including family history, assets possessed, the cause for separation, child custody (if applicable), ID verification, and other necessary documents.

Step 3: Before this, the legal system can invite both spouses for counseling to investigate the possibility of reunion, as Hindu marriage is considered holy and an irreversible or everlasting link. If both spouses refuse to come to terms, the processes will be conducted by the rules of the legal system.

Step 4: After diligently reviewing and verifying both spouses’ proof and declarations, the family court judge has every right to include or modify circumstances as required by the legislation in cases involving maintenance or support amount and acceptance, as well as custody of children or rights to visitation. It is not confined to these situations, however. Following this, the first petition is passed, and the spouses are given a period of six months to contemplate their choice and try to get back together if they possess any opportunities. This term might be prolonged for a maximum of 18 months from the start of the family court application.

Step 5: If both spouses try to come to terms and choose to remain married during the waiting time, they may file a motion to invalidate the separation through their attorney. However, if either spouse refuses to come to terms the separation is conducted as ordered, and in the subsequent motion (as specified by the family court), each spouse’s oral statements will be digitally recorded in front of the tribunal in the family court.

Step 6: After the declaration has been recorded, the spouses accept the entire and final contract between them, ensuring that there will be no future issues or disagreements about alimony, support, or parental rights for children.

Step 7: Once the judge has been pleased by both spouses and there is no hope of reunion in the final proceeding, the judge approves the separation judgment and declares the marriage to be invalid and null.

Various maintenance stages throughout the divorce process

1. Defining Maintenance and Support: In basic terms, upkeep and alimony are the monetary support that an individual must provide to their partner as ordered by the judge, regardless of their divorce situation.

2. Maintenance During the Divorce Process: Interim support is an established sum of money granted by one spouse to another to meet their requirements throughout the process. This also ensures that the one who receives does not run out of cash or become disadvantaged while challenging the matter.

3. Maintenance After Divorce Processes: This is an established sum that one party must pay to their divorced spouse if the separation is finalized. If the person who pays fails to make payments for alimony after the divorce, the party who is supposed to receive it may seek legal representation again in judgment.

4. Criteria Considered When Deciding Maintenance and Alimony: When a judge decides on support and alimony, several criteria are taken into account, including future spending, living costs, educational costs for children, price inflation, and healthcare costs, among others. However, the sum is determined based on the financial capacity of both spouses and sufficient documentation of their current financial health. It doesn’t need to be unreasonable. However, once chosen, the provider is obligated to offer financial support and compensation as agreed and cannot avoid their responsibilities.

The irreversible collapse of marriage

Marriage, as previously said, is a lifetime link between a couple. Yet, there are occasions when the connection deteriorates to an extent where divorce is necessary. The hypothesis of a permanent breakdown of marriages emerges when the romantic connection between both partners has ended due to factors that make reunion difficult. At this moment, both spouses are unable to reside together. When a relationship has disintegrated to the point where it cannot be repaired, it should be ended without investigating the origins of what caused it or laying blame on one or both sides.

In many cases, having to divorce outweighs the usual qualities of affection, love, and devotion that must exist between couples. The permanent dissolution theory of a relationship holds that if one person no longer chooses to continue in the marriage, it should be divorced. The goal is to end the connection as fairly as possible while minimizing anger, sorrow, and shame. In the case of A. Yousuf Rawther vs. Sowramma, the High Court of Kerala ruled in the light of this principle that “there is no rose without thorns, but if what you possess is all spikes and no rose, best toss it away.” The reason for separation is not marital guilt, but the dissolution of the relationship.”

In certain nations, more reasons like “difference of personality” and “significant and persistent disturbance” have been adopted to defend separation claims according to the collapse hypothesis. The court is responsible for determining whether the relationship has fallen or not. Some situations include the legislation establishing particular standards for determining the ending of a marriage. If the court determines that those requirements are satisfied, a divorce may be granted. For example, Section 13 of the Act requires the person filing the petition to demonstrate that they have been residing apart from the responding party for at least a year following a judgment for separation from court or restoration of spouse rights in a case involving both individuals.

Benefits of irreversible disintegration of Marriage Theory

If the persons involved in the married relationship believe that the marriage fails to function well, they can decide together to allow both of them to live their lives independently and peacefully without any interference from either party. As there is no plausible chance of staying together, it allows both individuals to begin living their lives as they see fit, both financially and mentally.

• A permanent breakup of marriage could turn into a justification for married couples to believe that little disagreements are unjustified, and as a result, they have no chance of being together. As a result, they won’t believe that the divorce procedure based on the inaccessible collapse of marital ideas is justifiable.
• It may also be the outcome of rash, random, and unjustified judgments.
• It might occur as a result of unexpected feelings such as rage, shame, and so on, which two individuals may experience during a disagreement.
• It promotes insufficient interaction between both individuals.
• It is not only the disintegration of marriage but also the disintegration of two unified households at the moment of the wedding.
• If kids are born from that marriage while both parents believe there is no chance of remaining together, such split families may cause anxiety for the kids as well.

Forms of divorce that are recognized by the Divorce Act

Statutory Divorce

The aforementioned divorce concepts are accepted in current Hindu law, and divorce can be filed for any of the reasons. At first, the Act created divorce on the foundation of the principle of blame, requiring nine causes for either husband under Section 13 and two extra reasons for the wife under Section 13 for the separation to occur. Section 13 (1A) was amended in 1964 to include two more reasons for separation. The 1976 revision increased the reasons by adding two new fault-based causes for spouses and adopting Section 13B, which introduced divorce by mutual agreement.

Under the 1955 Act, the justifications for divorce were cheating, brutality, abandonment, converting to another religion, insane behavior, infectious illness, giving up, and the likelihood of dying. For wives, other reasons were the husband’s previous relationships or if he committed sexual assault, sodomy, or bestiality after marriage. Particularly, on August 5, 2021, the Hon’ble High Court of Kerala, in the case of XXX vs. XXX (2021), acknowledged domestic violence as a valid reason for separation, even though it is not illegal in India.

Both spouses must mutually submit an application to the Family Law Court in the event that the couple decides to get a mandatory divorce with consent from one another. The request must specify that they have both amicably decided to end their marriage or have been residing apart for a minimum of twelve months. The court will then examine the request and verify the accompanying documentation. Additionally, a judge may try to mediate a settlement between the couple. If attempts at reunion fail, the court will promptly proceed with the separation procedure.

The first request gets approved after the court reviews the request and records the couple’s remarks under swearing. Following the date of the original divorce request, the couple has six months to submit the second request, with an aggregate submission term of 18 months. Hearings can start as soon as both sides are ready. The Honorable Supreme Court ruled in Amardeep Singh v. Harveen Kaur that the six months for filing for divorce by mutual agreement is not required. As long as they have a common understanding before finalizing the divorce, both spouses usually come to a decision on issues like assets, custody of kids, and separation agreements in situations involving divorce by mutual agreement.

Customary Divorce

First of all, the idea of divorce was not recognized by Hindu law historically. Courts recognized these conventions as long they were constitutional and did not conflict with the interests of the public, although it was only approved by tradition in a few areas. Customs that are supported by the terms of the Act are not intended to be abolished. Due to established standard reasons, it is often acceptable for both partners to file for divorce without appearing in court.

Customary divorce is protected under Section 29 of the Act, which states that the terms of the Act have no impact on the privileges provided by personalized or other special legislation dealing with the termination of a Hindu marriage. The Hon’ble Supreme Court of India ruled in Sanjana Kumari vs. Vijay Kumar that a Hindu marriage may be ended by a typical divorce judgment if the traditional right to do so is established in a court of law. The court must be provided with a particular allegation about the presence of such a traditional right, backed up by adequate and relevant proof.

Hindus were able to obtain a divorce before the Act of 1955 only if a community-specific tradition permitted it. The mentioned Act recognized conventional separations and clarified that they are independent of its restrictions. Normal separations are exempt from the following Act regulations:

Void marriages: Known as void ab initio, a void marriage is deemed illegal or unlawful from the start. In essence, a declaration of an invalid marriage is a court recognition of a fact. Section 11 of the Act states that if a marriage violates the terms specified in Sections 5(i), (iv), and (v) of the Act, then it will be declared ineffective and void by a declaration of invalidity.

Remarriage of a separated individual: Section 15 of the legislation deals with divorced people getting married again. It states that when a divorce order is finalized, either after the filing deadline has passed or after the challenge has been denied, the recipient may be married again.

Decision in hearings: According to Section 23 of the Act, unless it can be demonstrated that the agreement was gained by fraud, coercion, or improper influence, a marriage cannot be considered invalid or unenforceable for any problems in the agreement. Alternatively, a marriage is deemed lawful and cannot be questioned based on any permission-related flaws provided that both individuals agreed to provide their permission.

Temporary Maintenance and Procedural Costs: Section 24 of the Act deals with giving the dependent spouse short-term financial assistance while a court action is pending. Stated differently, it guarantees the wife or husband the help with money and expenses for living they require while their lawsuit is pending. During the proceedings, this assistance is meant to assist the reliant partner in fulfilling their fundamental necessities.

Lifelong alimony and support: The court may grant either spouse lifelong maintenance under Section 25 of the Act. The payment of compensation or maintenance may be decided by the court at any point after the decision is issued.

Kid custody: In cases including the children’s parents, Section 26 of the Act gives the court the power to make decisions or establish agreements pertaining to the custody, support, and schooling of children, either during the current procedures or following the issuance of a judgment. Only the Guardian Boards can make these determinations in situations where no such procedures are occurring.

Since they saw marriage as a ritual rather than a fundamental fact, many lower-clan Hindus traditionally practiced divorce by tradition. Nonetheless, there isn’t a single Hindu divorce custom. Instead, customs fluctuate depending on the clan and location. It must be demonstrated that both individuals must comply with the tradition to get a conventional divorce. Before the Act of 1955, traditional divorces may still be obtained by agreements between individuals, clan councils, village councils, or declarations in writing such as a tyaga-patra. If it is judged to be irrational and against the interests of society, a custom that permits one spouse to suddenly divorce the other is void. The ordinary divorce rules do not apply to conventional divorce. However, it must be supported and demonstrated. Different types of divorce are recognized by customs. They can be granted with approval from both parties or, in some situations, for dubious grounds by one of them. Many different and intricate forms of separation are recognized.

The Hon’ble Supreme Court held in Yamanji H. Jadhav vs. Nirmala that traditional separation is only lawful if it is permitted by the applicable convention or if the divorce is an accepted procedure within the framework of that custom. The couple may file a declaration lawsuit in court to confirm that the separation document is acceptable, legal, and legitimate if there is proof that such a tradition has been established.

Why do people get a divorce?

In Indian civilization, the divorce ratio has significantly increased. Divorce can occur for several reasons, and the world’s changing attitudes towards these stereotypes of Indian culture are also obvious. The following are the primary causes of divorce:

Freedom of Indian women

For the sake of “family dignity and social standing in the society,” women used to lower their heads in front of the public to comply with the rules of the society without questioning. However, as advancement, industry, and urbanization increased, women began to receive an education and became more conscious of societal events. Women began to make ends meet and, as a result, grew independent after realizing the necessity of advocating for themselves. They began to live peacefully independently after speaking up against the wrongdoings of their spouses and in-laws. Because of this, the ladies were not scared to stand up for themselves and file for divorce from their abusive spouses. As a result, divorce rates continued to rise.

Lack of communication

Effective interpersonal interaction is crucial in marriages. Inconsistencies and arguments are therefore inevitable when there is insufficient interaction between the spouses. As a result, ineffective communication can occasionally be regarded as a cause of separation.

Cheating

Once the faith has been shattered, it cannot be rebuilt. As a result, divorce is inevitable when a cheating spouse betrays the faithful partner’s confidence, which cannot be rebuilt. An extramarital relationship and adultery may ruin and damage the connection that would have developed between the two spouses. Even cheating on a partner is punishable by law in India.

Trouble with in-laws

A girl who moves away from home and joins a new family and later discovers that her in-laws aren’t assisting, tormenting her, and making her life miserable finds it extremely tough. Thus, Section 498A of the Indian Penal Code has a legislative provision that addresses “husbands or relatives of the husband of a woman exposing her to mistreatment.” The wife is frequently forced to bring cash from her parent’s house, and when she refuses or is incapable of providing such large sums of cash, the in-laws torment her until she dies. The criminal penalties of Section 304B, which include deaths involving dowry, are also applicable in this case.

It should be noted that there are several examples of Section 498A being misused; thus, in two of these genuine cases, where there is true torment and legal abuse, divorce is unavoidable.

Having a child

Indian civilizations are structured in a manner that not only heavily affects and convinces a couple, but also determines when spouses must become parents. This causes a great deal of tension and might lead to separation if the couples are unable to resolve the issue of having a child.

What is the law of divorce?

Divorce was not accepted in the old Indian tradition. As culture has changed, the goal of separation has changed to include both protecting the faithful or innocent partner in the relationship and punishing the guilty partner. Establishing an understanding and encouraging relationship between two spouses is the real goal of getting married. Maintaining an emotional connection is pointless if the idea of marriage is unable to achieve this goal. As a result, the idea of separation evolved to allow people who used to be restricted by marriage to live happy and distinct lives.

Crucial laws regarding the Act of 1955

The Act formalized the idea of separation to coincide with the development of Indian culture. As a result, the previously mentioned Act has procedures for divorce in several sections, including:
Important conditions for a Hindu marriage
Section 5 of the Act specifies the legal requirements for a marriage between any two Hindus to be formally performed. Therefore, it might also be argued that if one of these criteria is not met, it may also serve as a basis for separation. The following are the criteria that apply.
Neither spouse should already have a living spouse at the time of the marriage ceremony.
When the couple got married, neither of them:

• They are unable to give informed permission because they are mentally ill.
• Has a mental disease that makes marriage and having children completely impractical even if they are able to grant permission.
• Has gone through many phases of psychosis.
• The bride and groom couple must be at least 18 and 21 years old, respectively, at the point of the wedding.
• The parties cannot be in any kind of banned relationship unless their marriage is permitted by a tradition or practice that applies to both of them.
• Unless the wedding is permitted by an oral tradition or ritual that is applicable to both, the parties shall not be fiances of one another.
  Restoration of conjugal privileges
• The privilege of each partner to maintain intimate relationships and connection with the other is known as “conjugal liberties.” In contrast, “restoration of conjugal liberties” refers to the return of the privileges that both individuals formerly had. One’s entitlement to intimacy inside a marriage is specifically recognized under Section 9 of the Act. The party who suffered harm may get a court order for the restoration of marital rights if one partner divorces the other without a valid basis. This clause was modified from the English legal system. Since the other treatments might jeopardize or disturb the relationship, it is the sole positive solution permitted by the Act. The following requirements must be met to restore conjugal privileges:
• The applicant is no longer living with the defendant.
• The person who responded left without providing a good reason.
• The applicant’s allegations have been considered legitimate by the court.
• The demand for the restoration of conjugal privileges cannot be denied for any legitimate reason.

Section 9 states that the person being accused carries the duty of demonstrating a valid cause or plausible explanation for the withdrawal. According to this clause, the withdrawn partner must provide a plausible explanation for their conduct once the applicant’s dismissal has been confirmed.

Judicial Separation

A legal procedure known as “judicial separation” allows married individuals to remain legally wedded despite their formal divorce. Section 10 of the Act explains this idea. Either husband may apply for a judicial separation on any of the justifications stated in subsection (1) of Section 13 and, or the woman, on any of the reasons provided in subsection (2) of Section 13, regardless of whether the union took place prior to or after the Act’s inception.

According to Section 10(2), the applicant will no longer be required to remain with the defendant if the judge grants a judicial divorce ruling. However, if the court determines that dismissing or withdrawing the decision is fair and reasonable after examining the applicant’s request and confirming the declarations, it has the power to do so.

Concept of divorce

The legal dissolution of a marriage is called a divorce. One way to get a divorce is to approach a court with the necessary authority. The reasons for separation are listed in Section 13 of the Act and apply to both partners. Divorce is unavoidable when these requirements are met. Until the court issues a divorce decision, the marriage continues to be lawful, and until the divorce order is issued, neither spouse may be married again. Weddings performed prior to the Act’s enactment are likewise covered by Section 13. One of the reasons listed below may be used by either spouse to sue for divorce.

Reasons

1. Cheating: The Act’s Section 13 defines infidelity. It states that it is regarded as adultery for a married individual to have sex with an individual other than their partner after having a marital connection. In the past, Section 497 of the Indian Penal Code, made adultery a crime in India. This clause made it illegal to have sex with somebody who is married when one knows or has a reasonable suspicion of another individual’s spouse without the partner’s permission. The wife was not considered a partner, and the punishment for this offense was a fine, up to five years in jail, or both. The charge of marriage-related offenses was also covered under Section 198 of the CrPc, 1973. However, the Honorable Supreme Court of India ruled in Joseph Shine vs. Union of India (2018) that Section 198(2) of the Code of Criminal Procedure and Section 497 of the IPC were unlawful and invalidated them.

2. Cruelty: Simply put, cruelty is when someone is subjected to unjustified brutality or torture. According to Section 13(1) of the Act of 1955, cruelty toward the petitioner may still constitute grounds for separation even after the marriage has been formally completed. There are legal measures for violence, which is also an unlawful offense. The Bharatiya Nyaya Sanhita, 2023, has sections 85 and 86 that discuss cruelty committed against a wife by her partner or his family. Anyone found guilty of cruelty faces a maximum sentence of three years in prison, an administrative penalty, or both. According to the Bharatiya Nyaya Sanhita, 2023’s interpretation of Section 85, cruelty is defined as any premeditated conduct that has the potential to cause a woman to take her own life. It also defines cruelty as:

• Any purposeful act is likely to induce a woman to commit suicide or cause serious injury or threat to her life, physical health, or mental well-being.
• Mistreatment of a woman that is intended to force her or her family members into complying with illegal requests for wealth or valuable possessions, or that arises as an outcome of the refusal of such pressures.

The Honorable Supreme Court pointed out in the pivotal case of Madhukar Reddi v. Shobha Rani (1988) that the word “cruelty” cannot be defined explicitly in any section of the legislation. It was used to characterize actions or demeanors associated with marital commitments. The Marriage Regulations Act of 1976 established cruelty as a basis for separation. Except in the State of Uttar Pradesh, cruelty was the sole basis for judicial separation prior to this modification. According to Section 13(1), cruelty must have an effect on the spouse’s bodily or psychological well-being. Depending on the specifics of every situation, the courts have the authority to judge if the behavior qualifies as brutality.

In the 1999 case of S. Ramani vs. S. Hanumath Rao, the wife’s actions toward her spouse and in their marital residence were not pleasant. In this case, the Honorable Supreme Court ruled that psychological abuse occurs when one spouse creates psychological agony, pain, or stress to the point that it breaks the couple’s relationship and makes it difficult for them to reside together. The Honorable High Court Of Bombay has ruled in Mr. Lazarus Peter Menezes vs. Christine Lazarus Menezes (2017) that bringing false charges under Section 498A of the IPC, 1860, is harsh and may result in separation. The incident’s specifics are outlined below:

• The applicant’s spouse contested the Family Tribunal’s ruling approving the defendant’s divorce petition. The honorable Bombay High Court dismissed the petition for review and decided not to revoke the separation decision on the basis of “cruelty,” upholding the Family Tribunal’s decision.
• The court noted that throughout the trial, the woman vowed to file a formal complaint against her spouse under Sections 498A and 406 of the IPC (Indian Penal Code), 1860, at the Kherwadi Police Station in Bombay. Additionally, she acknowledged that she had attempted to demand her spouse to return to their marital residence by filing the criminal report;
• In light of these circumstances, the judge stated that it would be considered cruelty on the part of the wife to her spouse if the criminal accusation she submitted was false and only aimed to force him back into their house, leading to his detention and a week-long jail sentence.

The Bharatiya Sakshya Adhiniyam, Section 117, also contains prohibitions pertaining to maltreatment. According to this, if it is proven that a woman’s spouse or his family members assisted her in taking her life and she committed self-harm within the first seven years of marriage after experiencing abuse from them, the judicial system may, after taking into account all relevant circumstances, determine that they were responsible for her death.

3. Abandonment: The act of leaving someone behind is specifically referred to as desertion. The basic idea behind this is that one partner has abandoned the other, demonstrating a total disregard for matrimonial responsibilities and acting against the wishes of the deserted partner. Abandonment may only be accused if, following the wedding ceremony, both parties accept and carry out their shared responsibilities, which essentially involve living together to legalize the marriage. A legitimate marriage requires living together, and if there has never been cohabitation between both spouses, the deserted spouse cannot claim abandonment accusation. There are numerous exemptions in circumstances regarding either mental or psychological disabilities or other particular circumstances.

Under Section 13(1) of the Act, desertion is now a basis for separation as well, as before it was just a basis for court separation. It states that a divorce is only permitted if the defendant has continuously abandoned the applicant for the two years prior to the application. The Karnataka High Court held in P.N. Pratap Kumar Rai vs. Jyothi Pai (1987) that the complainant has the responsibility of demonstrating desertion without an acceptable explanation. In the same way, the Orissa High Court ruled in Permananda Sahu vs. Kanchan Sahu (1999) that a husband who had a mistress living in the marital residence could not be accused of abandonment by his spouse.

4. Conversion: Section 13(1) of the Act defines conversion or blasphemy as a basis for divorce. After the official marriage rituals, it happens when one partner consciously rejects their faith and chooses to follow a new, alternative one. Embracing a significant faith other than Hinduism is considered conversion under this legislation. To make use of this justification for separation, the person requesting it must prove the following:

• The other partner stopped practicing Hinduism.
• Changed their faith to another religion.

Only the partner who remains unconverted may use this as a basis for divorce. According to Section 23(1) of the Act, permitting the newly converted partner to file for separation on the grounds of their transformation would be equivalent to profiting from their misconduct or mistake. Accordingly, the non-converting partner retains their entitlement under Section 13(1), and they have the option of keeping their marriage or divorcing the newly converted partner. As another option, the wife may request separate housing and living expenses under Section 18 of the Hindu Maintenance and Adoption Act, 1956, if she is the non-converting partner. If the wife declines to reside with him, the husband cannot effectively demand a renewal of their marriage privileges. Additionally, the husband will be faced with criminal penalties if he gets married again after changing to a different faith, such as Islam, and his new marriage would not impact his current Hindu spouse’s legal entitlements.

The husband in the proceeding of Union of India vs. Sarla Mudgal (1995) converted to Islam, found a new woman and married her. In this instance, the question was whether the husband was responsible for the crime of injustice and if the previous marriage was void or canceled by conversion. The initial marriage would continue, according to the Honorable Supreme Court, and the husband would be held accountable for the crime of injustice. In the matter of Union of India vs. Lily Thomas (2000), the husband filed a lawsuit, which was jointly decided. Sushmita Ghosh, the person who filed the petition, claimed in her plea to the Honorable Supreme Court that she was legally married to Mr. M.C. Ghosh since 1984 in accordance with Hindu law.

Mr. Ghosh, however, requested a divorce by mutual agreement in 1992, claiming that he had converted to Islam to wed Ms. Vinita Gupta, who was divorced and had two kids. Given that prejudice and second marriages are prohibited under the Hindu Marriage Act, Mr. Ghosh produced an acknowledgment certifying his conversion to Islam. The evidence points to Mr. Ghosh’s transformation as being motivated more by his desire to be married again than by a sincere desire to embrace the new religion. According to Section 494 of the IPC, 1860 (currently Section 82 of the Bharatiya Nyaya Sanhita, 2023), the Honorable Supreme Court noted that a partner would be accused of prejudice if they entered into a second marriage while their former marriage was still going strong.

A person is not considered suitable enough to get into marriage ties if they are unable to distinguish between correct and incorrect actions or give or withhold permission about circumstances that occur around them. Section 13 defines an unstable mentality as a basis for divorce. Prior to the 1976 modification, “Insanity of mind” was a reason for legal divorce for a year and for separation for a duration of three years. No previous interval is now required following the previously mentioned modification. “Insanity of mind” involves a wide range of psychological conditions, including irregularity and sub-normality. The person submitting the petition must demonstrate the following to be granted justice under this provision:

• The defendant’s mental state has been unstable.
• The same thing is irreversible.
• It is unreasonable to think that the petitioner might live together with the defendant due to the seriousness of the mental illness.

This provision’s justification includes the following:

1. The term “mental sickness” includes schizophrenia and suggests abnormal conduct, delayed or inadequate brain development, pathological disorientation, or any other problem or inability of the brain.

2. In a comparable manner, the term “psychopathic chaos” suggests a persistent problem or inability of the brain (whether or not it involves sub-typicality of understanding) that results in unusually aggressive or truly reckless behavior toward another individual, and whether or not it needs or is suitable for medical attention. Therefore, a person who has such an unpredictable psychological disorder is unable to fulfill their obligations and duties in a marriage. Additionally, it is among the most significant reasons for divorce.

In the proceeding of Bai Vasumati vs. Ajitrai Shivprasad Mehta (1969), the Honorable Gujarat High Court decided that to fully satisfy the court’s requirements, it must be established without any uncertainties that the petitioner is mentally ill.

The husband attempted to murder the wife’s brother and, on another day, assaulted her youngest kid in front of her during a period of craziness in the 1967 case of Kumudini Trimbak Bhagwat vs. Trimbak Narayan Bhagwa. Even though the spouse did not intentionally want to be uncivilized, the Honorable Bombay High Court noted that his conduct qualified for brutality. Similarly, the Honorable Supreme Court rejected the husband’s appeal in Mrs. S. Dastane vs. Dr. N.G. Dastane (1975) because he could not discover any proof of his insanity. The responder had completely healed by the marriage, although having some psychological problems before getting married.

5. Venereal disease: A venereal illness, sometimes referred to as a disease transmitted through sexual contact, maybe a reason for divorce under Section 13. One partner may seek separation if the other partner has a severe, transferable, and irreversible illness. This clause applies to illnesses that have been specifically categorized as venereal, like AIDS. For this basis to be successful, the person submitting the petition has to prove by medical proof that the defendant’s venereal illness is infectious. In the instance of Hemlata Biswas vs. Birendra Kumar (1921), the husband secured a divorce order due to the wife’s premarital, terminal syphilis, which she didn’t reveal to him. Furthermore, even if there was a slim possibility of treatment, the Calcutta High Court decided that divorce would be granted because there were no kids in the couple.

6. Renunciation: A person may file for divorce under Section 13 if a partner adopts an ideological viewpoint or other religion and gives up material possessions. According to Maslow, the person who gives up materialistic goals achieves self-actualization. Another legitimate reason for separation is when an individual decides not to fulfill the obligations of marriage, connections, and families. It must be shown that the individual responding has joined an organization of faith. For example, by relocating to a hermitage with the goal of residing there forever, in the event that a request for divorce is filed under this provision.

A person does not become a monk just by dressing like one, acting like one in a hermitage, carrying out the responsibilities of one, or meditating in a temple. As a result, they do not fit the requirements of the stated subsection. In Sant Ram vs. Sital Das (1954), the Honorable Supreme Court held that, in accordance with Hindu law, giving up material possessions and entering an order of religion typically equates to legal mortality. It’s also critical to present credible proof that all rituals required to join the religious group or cult have been correctly performed.

7. Leprosy: Leprosy is a viral medical condition that affects the layers of skin, intestinal tract, and neurological function. This illness spreads from one individual to another. As a result, it is regarded as an appropriate cause for separation. In the proceeding of G. G. Padma Rao vs. Swarajya Lakshmi, the husband moved for separation on the grounds of leprosy. He stated that his wife has terminal leprosy, referencing professional evaluations. Here, he obtained a divorce on the grounds of this medical condition.

In the case of ‘X’ vs. ‘Y’ (1998), a marriage was thrown off because the respondent tested positive for HIV, a sexual illness. Furthermore, in the case of Malarvizhi vs. Ravi Kumar (2013), the husband submitted a petition for divorce blaming the wife’s HIV. The wife claimed that she was only infected by the sickness through her husband. The doctor’s findings revealed that the spouse did not have HIV. Based on the evidence and factors, the husband was able to obtain a divorce judgment.

8. Assuming dead: According to Section 13 of the Act, a person is considered officially deceased if any communication hasn’t been received from them for seven consecutive years by individuals who would typically know where they are. This assumption depends on the idea that the individual would have probably been in touch with relatives or close friends if they were still breathing. The person is considered to be deceased and the requester may be provided a divorce judgment if relatives of the deceased certify that they haven’t heard from the deceased individual in the past seven years. According to Section 111 of the Bharatiya Sakshya Adhiniyam, 2023, the person making the claim has the responsibility of demonstrating the person’s survival if it can be demonstrated that nobody who would typically be aware of them has interacted with them for the past seven years.

When close relatives offer official evidence that an individual has been absent for a period of seven years, that person is presumed dead, and the court can grant the person requesting a divorce order. According to Section 111 of the Bharatiya Sakshya Adhiniyam, 2023, if it is shown that no one who should have known the person has heard from them in the past seven years, the burden of establishing the individual’s presence falls on the spouse declaring their existence.

It is crucial to note that divorce applications submitted under clauses (vi) and (vii) of sub-section (1) of Section 13 of the legislation do not need the responding party to make an appearance in court. In certain circumstances, the judge publishes announcements in journals at the petitioner’s cost and gives the responding party a fair time for a response.
Irreversible disintegration reasons for marriage

1. Non-resumption of marriage following the court divorce order

Section 13 (1A) of the Act of 1955 states that if residence between both spouses has not been restored for a year or more after the court’s divorce decision is issued, any party may seek separation. Living together involves living together as a couple. Going to temples or friends’ houses sometimes is not considered marriage. In exchange for the petitioner’s request for a divorce order, the court may have issued a ruling of judicial divorce under Section 13 (1A).

2. Failure to follow the court order for recovery of marriage privileges

Section 13 (1A) of the Act states that if there continues to be no restoration of marriage rights for at least twelve months after the ruling of restoration of marriage rights is issued, either party may file a request for separation on this basis. The restoration of marital rights requires both spouses to start living together. Both spouses should behave as a couple towards one another. A commitment to enter a married relationship without really entering due to a false justification is considered a non-restoration of married rights. Sexual activity can be a substantial or convincing indicator of getting along. Yet, there might be coexistence even when no sexual activity occurs for some reason.

Sections 13(1A)(i) and (ii) of the legislation define “delivering an order” as the issuing of a judgment, not just the official publication of the decision. In the instance of Singh Raj S/O Dasondhi Ram vs. Smt. Bimla Devi D/O Bakhtawar Singh, Honorable Punjab, and Haryana Supreme Court ruled that if a lawsuit is filed against another court’s decision issued under Section 9 of the legislation and the decision’s implementation is not continued, a period of one year is taken into consideration from the date the order was issued. The one-year duration is unaffected by the pending request. Section 13 does not provide a fundamental privilege, but is dependent on the limits outlined in Section 23 of the legislation. Its objective is to increase one’s ability to file for separation, not to ensure that the request for divorce will be approved merely on the basis of a lack of partnership or reconciliation for the essential duration.

Special reasons for separation for women

Section 13 of the Marriage Act of 1955 offers a further four extra causes of divorce, which are solely applicable to a woman, as well as to the existing reasons provided under Sections 13(1) and (1A).

Prior to the legislation of 1955, Hindu law did not limit the number of spouses a man might have at any given point in time. Bigamy is now illegal under Sections 5 and 18 of the legislation. According to Section 13(2) of the Act, a man’s multiple spouses can seek separation if:

• Both got married before the legislation was introduced.
• Both are alive when the petition is filed.
• If both marriages are legally valid at the same time.

This provision requires solid proof of the past marriage, since just living together as a couple is inadequate. The responsibility of evidence is on the woman to show the legitimacy of the prior marriage.
Sexual assault, sodomy, or bestiality
According to Section 13(2) of the legislation, a wife may seek separation if her spouse has committed sexual assault, sodomy, or bestiality since their marriage. These offenses are also criminalized under the Bharatiya Nyaya Sanhita, 2023, which imposes fines. The husband does not have to be found guilty of these offenses in an administrative court. The most important condition is that the offense must’ve happened after the petitioner’s marriage. The three marital offenses are described as follows:

1. Sexual Assault: Rape is nonconsensual sexual activity between a man and a woman. Exception 2 to Section 63 of the Bharatiya Nyaya Sanhita, 2023 states that a man might be penalized for sexually assaulting his wife if she is under the age of eighteen. In such circumstances of conjugal rape, the woman may seek separation on the basis of assault.

2. Sodomy: Sodomy is described as a sexual relationship between a husband and his wife, another woman, or another male. The victim’s permission or age are not significant standards to be utilized in these circumstances to punish the offender.

3. Bestiality: Bestiality is defined as having sexual activity with an animal and is considered an abnormal crime.
Not living together after maintenance has been decided.
Section 13(2) of the Act of 1955 establishes that if a court order or agreement has been issued ordering the husband to pay maintenance amount to the wife, and:

• She has been residing individually for at least one year.
• If joint residing has not been re-established for an entire year or longer following the agreement or decision, the wife may seek separation on these bases.

A decree or order of independent habitation and support may be sought under Section 18 of the Hindu Maintenance and Adoption Act of 1956, and Section 144 of the Bharatiya Nagrik Suraksha Sanhita, 2023. As a result, if a wife receives an agreement, she has an obligation to apply for separation if her spouse fails to continue living together within twelve months of the decision’s date.

When a decision under Section 18 of the Hindu Maintenance and Adoption Act of 1956, or a decision under Section 144 of the Bharatiya Nagrik Suraksha Sanhita, 2023, is issued in favor of the wife, it is the obligation of the husband to pay support to her and to establish living with her within a period of twelve months. If the spouse refuses to do so, the wife may seek separation. If the husband proposes living together and the wife fails to reply, she is within her privileges. Forcing her to react would violate the legislative requirements which enable her to live apart without jeopardizing support.

Invalidation of marriage (alternative for adolescents)

Section 13(2) of the previously mentioned law grants females who get married before the age of 15 the right to divorce. The official conclusion of the marriage is irrelevant there. This section allows a woman to be separated if:

• She was under the age of 15 when she got married.
• She later renounced the marriage prior to becoming 18.

This clause of the Act provides no provisions for marital rejection. Thus, the woman must show the fact of disapproval. This section merely provides a right of rejection, as stated within it, however, she can file an application for termination of marriage for this reason once she turns 18. This clause was included in the Marriage Law legislation. There was no such privilege prior to the change. Thus, if she has used this choice to abandon her marriage, she can sue for separation on this basis. The Act indirectly recognizes that the marriage of a minor is not invalid (but illegal) since, if it were, the issue of permitting a separation would not exist.

Alternate solution in divorce lawsuits

Sections 13(1)(ii), (vi), and (vii) of the Act allow the person filing the petition to seek either legal divorce or annulment of marriage. If the applicant decides to seek separation based on these reasons, the judge must allow it after confirming the assertions with adequate proof. The court could look into offering judicial segregation as a possible solution if the defendant has not changed to another faith, joined a community of religious believers, or has not been seen by anyone for seven years or longer.

The reasons for separation and mutual agreement are essentially identical. As a result, even if the divorce action had been commenced under Section 13(A) of the legislation they might use their choice by not issuing a divorce decision immediately. Instead, a judge may issue a judgment establishing a separate judiciary. As a result, the law constantly holds out optimism and makes one final attempt at reconciling both spouses by resolving their differences. However, if the separation procedures are being filed on the grounds of conversion, abandonment, or the notion that the other party is deceased because the other person has not contacted in seven years, the court cannot provide any substitute remedy or effort on the side of the spouses.

In the case of Harjeet Kaur vs. Balveer Singh (2017), the High Court of Uttarakhand ruled that the concept of the supremacy of the law is not applicable to future proceedings brought under Section 13 of the legislation. The case’s specifics are as follows:

• The applicant filed an application for separation under Section 13A of the Act of 1955, seeking a termination of marriage. The major question before the High Court was whether the application would be barred by Section 11 of the CrPc of 1908, given that the procedures under Section 9 of the Act of 1955 (for restitution of marital rights) had previously been handled. Section 11 of the CrPc of 1908, states that no court shall hear any claim or subject that has previously been entirely and directly settled in any prior litigation.

The High Court underlined the following reasons when considering this matter:

1. Section 9 of the legislation has a distinct function. It handles circumstances when both spouses are unfairly retreating from performing marital responsibilities, and the relief offered is meant to promote reunion and continuation of spousal responsibilities.

2. Sections 9 and 13 of the legislation address distinct conditions. Section 9 seeks to repair marital ties, whereas Section 13 addresses the formal termination of marriage.

3. The High Court determined that Section 11 of the Code of Civil Procedure does not prohibit the bringing of a future complaint under either Section 9 or Section 13 of the legislation.

4. If Section 9 procedures get thrown out or brushed aside, a party may still file an application for termination of marriage under Section 13 of the legislation afterward.

Divorce by mutual agreement

Section 13B of the legislation is comparable to Section 28 of the Special Marriage Law of 1954. This clause was added by the Marriage Law legislation of 1976. It has been both effective and futuristic since it was first established. As a result, spouses to a marriage, whether authorized before or after the modifying Act, can make use of this clause. The purpose of this clause is to allow spouses to dissolve their marriage by mutual agreement if it has permanently collapsed, as well as to help people recover through several choices. The modification was based on the belief that constraining reluctant partners to stay married provides nothing beneficial. The cooling-off interval was designed to avoid making rapid choices when there was still time for healing. Its goal was not to impose a fruitless marriage or to prolong the couples’ misery when reunion was not feasible. Although attempts should be taken to save a marriage, if reunion appears difficult and there are new prospects for recovery, the court shouldn’t feel helpless in offering the spouses a better choice.

Section 13B requires both spouses to submit an application for separation with mutual agreement. Comparably, Section 13B requires both spouses of the lawsuits to submit joint requests that the court schedule an appearance date for the petition for separation. Additionally, the following standards must be fulfilled:

• Both spouses must have resided apart for a minimum of twelve months.
• They must have proven unwilling to come to terms and live together.
• They must have voluntarily consented to end their marriage.
• A minimum of six months must have ended since the date of submitting the request for separation.
• They must jointly seek that the legal system issue a ruling within eighteen months of submitting the divorce application.
• The divorce must be obtained with the mutual agreement of both spouses in the litigation. It must be devoid of force, deception, and inappropriate impact.

The basis is established on three principles.

Section 13B of the Act states that an application for the termination of marriage by an order of separation can be filed simultaneously by both spouses in the local court on any of the reasons listed below:

1. Living apart for a year or more: Both spouses had been “living apart” for a minimum of twelve months prior to the petition’s submission. If they resided separated for more than a year at some point in their lives but not shortly before the petition was filed, this basis is not established. The parties must have lived apart shortly prior to submitting the request. In this usage, “living apart” denotes “not living together as a couple”. The main issue is a lack of desire to carry out marital commitments, and their breakup represents this psychological approach. Finally, their mutual views on one other decide whether they live jointly or apart as spouses.

2. Not being able to live with each other: The difficulty in living jointly might be due to a personal or external factor. It’s possible that they don’t like each other, or that one or both of them enjoy another individual or people. Perhaps their view of existence, socioeconomic opinions, routines and methods of living, and so on are inconsistent with one another, or perhaps they are reluctant to stay in matrimony due to their physical inability to fully embrace their married existence or their many concerns. The content of this problem is that their marriage has fallen down and they are unable to come to terms.

3. Mutual decision to get a divorce: Both spouses have mutually decided to terminate their marriage. Section 23 of the relevant Act states that mutual authorization for this purpose cannot be gained via force, deception, or inappropriate influence. The same can happen from a single individual to another, or from an outside source to both spouses.

Why is divorce becoming common in today’s society?

Marriage has developed into many different forms over the last few decades. Physical and emotional abuse, dowry, sexual assault, and other issues are among the leading causes of separation. However, before delving into the sociological aspects, it is necessary to note that the basis for divorce under many sections of the Hindu Marriage Act is frequently misused by some spouses these days. This is when it gets challenging for the legal system to decide the outcome of the proceedings. Nonetheless, divorce is a joint agreement made for several reasons, with women filing the majority of petitions (almost 70%) compared to men. The following are a few main factors that end up in divorce:

1. Individuality of Indian women: The majority of women employed in urban areas desire liberty of expression and autonomy, and given that Indian cultural norms and principles sometimes conflict with this need, this is one of the leading causes of separation today.

2. The lack of communication in relationships: In India, men and women are raised differently, and open conversation is sometimes misunderstood. This is the next leading cause of divorce in India.

3. Cheating and Affairs: Unfaithfulness is one of the primary explanations that both partners find challenging to continue being with one another since it causes significant mental as well as emotional harm, ultimately leading to separation.

4. Problems with in-laws: It might seem familiar, but issues with in-laws are not an uncommon cause for separation. However, as things have changed, women have become more open regarding it, and as a result, it is now one of the most prevalent and common causes of divorce.

5. Procreative troubles in marriage: This reason has two opposing views on raising a child and being unable to conceive, which might be due to the wife or the husband.

The time frame for appeal approval

The legislation of 1955’s Section 13B states that the court will not consider such a plea for a period of six months. This clause is mandatory. This is to give both sides time to reconsider taking this extreme measure. A joint request must be made by the spouses no sooner than six months and no later than 18 months from the date following the filing of the petition for separation. With this appeal, the court can go on with the matter to confirm the assertion made by the petitioner and make sure that authorization was not acquired by unlawful means, coercion, or improper influence. To confirm the veracity of the applicant’s claims, the judge may carry out investigations, including meetings and each spouse’s assessments. The judge is required to issue a divorce ruling if it believes that the agreement was given voluntarily and that both spouses have jointly decided to end their marriage.

Unless both spouses voluntarily request that the judge proceed further, the court is unlikely to act on the request beyond a period of six months. The shared character of the agreement for divorce may seem doubtful if only one spouse files the petition, but both spouses must file it simultaneously.

In the 2017 lawsuit of Harveen Kaur vs. Amardeep Singh, the Constitutional Division of the Honorable Supreme Court of India decided that it could use its extraordinary authority under Article 142 of the Indian Constitution to skip the six to eighteen-month waiting time that is typically necessary for the separation by mutual agreement under Section 13B of the legislation.

Legal considerations govern the decision to skip the requirement to wait, particularly in situations where reunion appears impossible to achieve, the spouses have been living apart for a long amount of time, or the dispute has lasted longer than the allotted time under Section

13B. The following elements must be taken into account by the courtroom:

• How long did the marriage last?
• The amount of time that the lawsuit has been ongoing.
• The length of time that the spouses have been living apart.
• Whether the spouses are involved in any additional procedures.
• Whether both spouses have tried negotiating or reconciling.
• If maintenance, child support, or any additional remaining problems have been resolved through an agreement between the spouses.

According to the legislature, to eliminate the waiting time frame, it must be verified that both spouses who are married have been residing apart for an additional amount of time than the legal time frame, that all efforts at negotiation and reunion have been made, and that peacemaking is no more possible. The presiding judge must also determine that prolonging the waiting time frame will only make both spouses’ hardship worse.
Divorce procedure under mutual agreement

Step 1: The request for a divorce must be submitted

The spouses usually file a joint application for mutual separation in family court. According to the request, they were either unwilling to live together and voluntarily chose to break their marriage, or they had been residing separately for at least a year. The application needs to be approved by both spouses.

Step 2: Show up in court and have the paperwork examined

Both spouses are required to appear in family court following the submission of the application. Their lawyers defend them. The court will thoroughly review the request and materials. If the spouses are unable to reach an agreement, the court will carry out the separation procedures and may take whatever action it deems necessary.

Step 3: Determine the sequence in which the sworn declarations will be recorded

After the administrative tribunal examines the petition for review, both spouses’ oral testimonies are taken under affidavit.

Step 4: Once the initial petition gets approved, an additional six months of waiting must be followed before the subsequent move can be submitted

Once both spouses’ comments have been documented, the judge orders the initial petition. Following that, both spouses are granted a six-month period to remain apart before filing their second petition. The maximum period of time for submitting the following motion is eighteen months from the day when the divorce petition was initially submitted in the Family Court.

Step 5: Second Petition and Final Session

Once the spouses have chosen to move forward and present for the following motion, the final proceedings can begin. This includes spouses attending and documenting justifications and comments in Family Court. Recently, the Court of Appeals ruled that the 6-month interval provided to the spouses can be waived at the discretion of the tribunal. As a result, spouses who have truly resolved their differences, such as divorce agreements, child support, or any other outstanding issues between them, typically put off this waiting time. Even if the tribunal believes that the time frame of six months will enhance the pain they are experiencing, it may dismiss it.

Step 6: Divorce judgment

In a mutual separation, the two spouses are far more likely to agree and there will be no disagreements about the divorce agreement, custody of kids, support, assets, and so on. Along with these principles, the spouses should have full comprehension before making a formal decision to end their marriage.

Section 14 of the Act

Section 14 of the Act specifies that no separation petitions may be submitted within the initial year of marriage. The law specifies a twelve-month time frame for solving, sorting, understanding, and communicating concerns with one another. No court will be qualified to hear an application for divorce till the initial year has expired.

After receiving a request that complies with the High Court’s norms, the court may allow the request to be submitted before the end of the first year in circumstances of extreme difficulty for the applicant. If the court finds any deception or hiding of facts during the proceedings, the request may be dismissed without delay.

The concepts of “extreme suffering” and “extreme intensity” are not explained in the Act of 1955. These phrases cover a wide range of topics, including rare and remarkable scenarios. If the person petitioning can show that the challenges have made their existence unpleasant, or if the defendant has done a heinous moral violation that has made the circumstances unbearable, the court may award the divorce judgment without waiting for the one-year term to conclude.

Section 14 states that when ruling on a request under this provision, the court must take into account the health of any kids born from the marriage as well as the potential of reunion between the spouses. The court considers the probable possibility of a reunion between the couple. These concerns are unrelated to the assessment of extreme suffering or insanity. In each scenario, the likelihood of peace has been prioritized. Even if the relationship between the spouses has become difficult and there is no imminent hope of peacemaking, the best interests of the kid(s) must be prioritized.

Section 15 of the Act

Section 15 of the legislation specifies the criteria under which a separated individual can get married again. It states that if a marriage is terminated by a divorce decision, and whether there is no remedy for reunion, or, if the hearing term has expired without a challenge being submitted, or an argument was made but disregarded, both spouses are lawfully free to get married again.
Legal procedures of divorce (As explained in the Hindu Marriage Act Of 1955)
Section 19 of the legislation specifies which court the divorce application shall be brought. It also emphasizes the reality that every complaint intended to be brought under this legislation must be submitted to the court of the district within the local boundaries of the usual original civil authority. The request can be submitted in:

1. The location where the wedding ceremony took place.

2. The responding spouse’s residence at the time the request is filed.

3. The location where the pair last lived united.

4. The location where the applicant’s wife last lived.

5. If the defendant is located in a location outside of the borders of the territory covered by the act or has not been heard from in 7 years, the person seeking relief may file an application based on where he or she is currently living.

Section 20 of the legislation specifies the subject matter and validation of the request for relief.

• Sub-section 1 of Section 20 stipulates that every application brought under the Act should be thoroughly evaluated based on the circumstances and contents of the scenario, and the request for relief will be considered accordingly.
• Sub-section 2 of Section 20 specifies that the declaration included in every application filed under this Act should be examined by the person who submitted it or any other responsible person in accordance with the law, and it can additionally serve as proof during the proceedings.

Section 21A of the legislation has been added to avoid several procedures and hassles that would occur during the married relationship. Both provisions in Subsection 1 of Section 21A express that:

• Clause (a) indicates that one of the partners may file an application with an administrative court with sufficient authority, demanding either a judgment of legal separation under Section 10 or an order of separation under Section 13.
• Clause (b) says that the other partner has since filed an application under this Act, seeking a decision of legal separation under Section 10 or a judgment of separation under Section 13, for any reason. The application may be submitted in the same administrative court or in an alternate court in the same or different state.

These requests will be treated in accordance with the guidelines provided in subsection (2).

Subsection 2 of Section 21A specifies that in cases where subsection (1) is applicable:

• If both applications are submitted in the same administrative court, they will be combined and processed together.
• If they are submitted in separate districts, the later-filed request will be moved to the administrative court where the first one was submitted. Both applications will then be merged and decided jointly in the administrative court where the original petition was submitted.

Sub-section 3 of Section 21 indicates that if condition (b) of sub-section (2) exists, the tribunal or the government, which is usually independent under the CrPc of 1908, to move a lawsuit or legal proceeding from the administrative court where the next demand has been submitted to the administrative court where the first request remains in progress, will use its authority to pass on the additional request as if it was originally encouraged to do so according to the previously stated clauses.

Section 21B of the legislation declares that it seeks to accelerate the examination of an application filed under the provisions of the Act. It explains what is described below:

1. First of all, sub-section (1) mandates that an application for a hearing under this legislation must, to the greatest extent possible while maintaining fairness, continue every day until it is over. Nonetheless, if the tribunal determines that it is essential, it may postpone the hearing past the next day, explaining the explanations for the postponement.

2. Second, sub-section (2) stipulates that all petitions under this legislation must be handled as quickly as possible, with the goal of wrapping up the trial within the first six months of the responding party receiving notification of the request for relief.

3. Sub-section (3) stipulates that all appeals under this legislation must be handled as quickly as possible, with an attempt taken to wrap up the proceedings within the first three months of the responding party receiving information of the decision to appeal.

The use of documentation is allowed under Section 21C of the legislation. It declares that no record should be excluded as proof in any procedure during the hearing of an application under this law just because it is not properly stamped or registered, regardless of any enactment’s provisions to the alternative.

According to Section 22 of the legislation, any hearing under this legislation must take place on a recording device, and it is illegal for anybody to print or broadcast any of them. On the other hand, if someone violates the preceding law, they will also be subject to a fine of up to one thousand rupees. The phrase “camera procedure” in this portion refers to the requirement that all actions take place in front of the tribunal, the two spouses’ interested lawyers, and the applicant and responder themselves. As a result, one cannot be permitted in an open courtroom.

The legislation’s Section 23 prohibits relief from marriage. It describes the circumstances in which divorce relief cannot be granted by the presiding judge. The following are the circumstances:

1. The petitioner must demonstrate that they are not abusing their own rights, according to clause (a) of sub-section (1) of Section 23. The court must be satisfied that there are good reasons to provide remedy and that the person requesting it is not using their mistakes or incapacity to obtain it, with the exception of situations in which remedy is requested on the basis specified in subsections (a), (b), or (c) of clause (ii) of Section 5. For instance, if the responding spouse had been unkind to the applicant and the applicant was mistreating the defendant continuously, the applicant cannot claim brutality remedy against the defendant because the petitioner initiated the act of mistreating and taunting the respondent. Therefore, in this context, the court upholds the fairness concept that one seeking justice must do so with pure intentions.

2. A petition based on infidelity has never in any manner assisted in conspiring to commit or approving the crimes accused of, according to clause (b) of sub-section 1 of Section 23. Therefore, in this context, “accessory” refers to supporting, helping, or actively engaging in the offense that is being charged. The tribunal would not provide any redress if the applicant’s involvement was proven to be valid. In the same way, “connivance” denotes a willful acceptance of a marital offense. Therefore, the legal system cannot grant remedy if a partner is knowingly, willfully, or carelessly permitting the marital offense. Finally, acceptance is the act of forgiving. Therefore, no remedy would be granted if the spouse who committed the marriage offense has been forgiven since the tribunal will determine that there are opportunities for reconciliation and a harmonious relationship.

3. Clause (b) of Subsection 1 of Section 23 states that a relationship would likewise be ineligible for any kind of remedy if the separation was granted based on a mutual agreement that was not obtained via deception, intimidation, or improper pressure.

4. Section 23’s paragraph 1 discusses collaboration in clause (c). Therefore, it maintains that remedy would not be granted in such cases if two spouses in a marriage had agreed to get divorced but had deceived the tribunal to obtain remedy.

5. Remedy cannot be granted if there is an unjustifiable or unlawful postponement of seeking a legal separation judgment, according to clause (d) of sub-section 1 of Section 23.

6. According to Section 23(2), the judge has an obligation to consider the circumstances and specifics of the dispute and make every effort to mediate a settlement between the spouses. Nevertheless, procedures where relief is requested on the justifications listed in clauses (ii), (iii), (iv), (v), (vi), or (vii) of paragraph (1) of Section 13 are exempt from the provisions of this section.

7. According to Section 23(3), the magistrate can postpone the hearings for a maximum of fifteen days to foster unity. If the spouses are unable to choose a representative by themselves, the judge may refer the dispute to a third party. This individual will determine if reunion can be achieved and has been accomplished, and the presiding judge will take this determination into account when concluding the legal process.

8. According to Section 23(4), an official copy of the court’s separation decision must be provided to both spouses at no cost if the marriage has been ended by one of the spouses.
Court decisions regarding divorce proceedings under this act

Om Prakash vs. Smt. Sureshta Devi (1991)

In this instance, the Honorable Supreme Court was asked to rule whether or not either spouse might change their mind about the request for divorce before the final order was published. The Supreme Court ruled that Section 13B(2) of the legislation requires the tribunal to hear both sides, despite the fact that multiple High Courts had multiple views on the matter. The court cannot issue a separation order by mutual agreement if any party subsequently changes their mind or indicates that they do not want to move forward with the separation. Mutual agreement would be compromised if a ruling was issued based only on the original application. For a judge to pass an order under Section 13B, mutual agreement is essential, and it has to be maintained at all times. For the judge to issue a legal separation, both parties must continue to provide authorization to do so.

Roshan Mark Pinto vs. Nirajani Roshan (2013)

In this instance, the party who appealed, the initial respondent and wife, filed an application for a declaration of invalidity of marriage under Section 11 of the Marriage Act of 1955, as well as a separation based on mistreatment under Section 13 against her spouse. The pair got married on January 13, 1999, following Hindu wedding traditions. They resumed their different religious practices soon after their wedding. The wife claimed that the marriage was unlawful as it breached a crucial condition of Section 5 of the Hindu Marriage Act, which states that both parties must be Hindus at the moment of the wedding. The Honorable Family Court rejected the application under Order 7 Rule 11 of the CrPc of 1908, because it didn’t have an adequate basis of behavior, and so denied her motion to dismiss.

The issue at hand was whether the request for an order of invalidity or divorce was viable. The Honorable Bombay High Court found that the request did not offer a genuine cause of behavior and that the court’s power was limited by the Act of 1955. The requester claimed that her agreement to the marriage was gained via deception since the defendant disguised his Christian background. As a result, the applicant claimed that she had a right to an invalidity order based on deception caused by the defendant’s concealing of his Christian status. The court of appeals dismissed the appeal brought by the wife with no judgment and upheld the Honorable Family Court’s ruling as valid.

X vs. Y (2024)

In this particular instance, the spouses got married on March 25, 1999. On December 17, 2008, the spouse petitioned for recovery of marriage privileges due to matrimonial conflict. On May 15, 2013, the court imposed a restitution ruling, requiring the woman to continue living with her husband within a period of three months. As the wife refused to keep up with the ruling, the husband petitioned for separation in Family Court on August 23, 2013. In 2015, the Supreme Court dismissed the wife’s hearing, upholding the compensation decision. The Family Court approved the husband’s separation suit in 2016, but the High Court reversed it in 2019 because the allegations of abandonment were not supported.

The applicant subsequently petitioned the Honorable Supreme Court, where his motion for review was granted. A two-judge panel found that the defendant did not continue living together after May 15, 2013, until the initiation of the separation lawsuit. She has made no allegation that anything happened after the decision for the return of marital rights was handed down that could have prohibited her from reuniting with the party who appealed. The appellant’s abandonment continued without justifiable explanation from at least 2008 until the divorce complaint was filed in 2013. An order of divorce determined by abandonment under Section 13(1)(ib) must have been issued. The justices decided that the High Court should have maintained the separation order due to the marriage’s full disintegration during the previous 16 years or longer.

Mrs. Paramjit Kaur Panesar vs. Dr. Nirmal Singh Panesar (2023)

In this instance, Paramjit Kaur Panesar, an 82-year-old lady, refused to relocate to Chennai with her spouse after being sent there by the Indian Air Force in 1984. Therefore, in 1996, her spouse, Nirmal, filed for separation, alleging cruelty and abandonment under Sections 13(1)(i(a)) and 13(1)(i(b)) of the legislation. Although the local court approved the divorce in 2000, Paramjit challenged it, and the verdict was reversed. Mrs. Paramjit Kaur Panesar, the defendant, indicated a desire to provide care for her 89-year-old spouse, Dr. Panesar, and was extremely concerned about being known as a “divorcee.” The couple has three kids. Given the defendant’s mental state, the Punjab and Haryana High Court rejected the District Judge’s decision, determining that a separation caused by irreversible disintegration would not be a reasonable solution. The primary argument was whether it had been essential to use the authority granted by Article 142 of the Indian Constitution for dissolving a permanently shattered marriage, even if this dissolution had not been officially accepted as a reason for separation under the Act of 1955.

The appellant filed an appeal with the Supreme Court of India, challenging the verdict of the High Court of Punjab and Haryana. The Appellate Tribunal, citing the Varun Sreenivasa vs. Shilpa Sailesh (2023) proceeding, concluded that the freedom of choice under Article 142 of the Constitution might be used to terminate a marriage on the basis of unrecoverable collapse to guarantee “complete fairness,” even if a partner opposes the divorce. It further said that the judicial system has the right to deviate from administrative and fundamental law and use judgment to settle the marriage by weighing the strength of each of the arguments. However, this decision should be handled with considerable diligence. It must be done since marriage is still considered a holy, mystical, and deeply personal tie between both partners. It is governed not just by regulations, but also by cultural norms. Many other ties among individuals are based on marriage bonds. Applying “an irreversible breakdown of marriage” as a strict requirement for obtaining separation under Article 142 of the Indian Constitution may be inappropriate. Therefore, the lawsuit was denied.

Mr. I. Calvin Jones vs. Mr. R. Nalliyappan (2023)

In this particular instance, the person requesting relief is the wife and the defendant is her husband. Initially, the husband filed for separation from the wife on the grounds of mistreatment. At the same time, the applicant submitted a plea for the restoration of marriage equality. The Family Court approved the request and denied the divorce complaint. The Appellate Court reversed the verdict, allowing the separation while dismissing the plea for return of marital privileges. The applicant then submitted an additional appeal, forcing the High Court to reverse the Appellate Court’s ruling and reject the motion to divorce while restoring the request for restoration of marriage rights.

In 2018, the defendant filed a fresh petition for divorce presenting an additional cause to proceed on multiple grounds, including abandonment and continuous mistreatment relating to later incidents. While the application was ongoing, the person who filed it attempted to have it rejected under Section 11 of the Civil Procedure Code of 1908, citing the law of res judicata. The court of appeals denied the motion, causing the complainant to submit the present Civil Amendment Motion. The respondent’s lawyer contended that after the denial of the prior divorce request, the petitioner filed numerous applications under the Domestic Violence Prevention Act of 2005 and filed accusations against the defendant and his relatives. As an outcome of the petitioner’s continuing intimidation, the respondent filed a second request for divorce alleging chronic mistreatment and extended abandonment. As a result, the presiding judge appropriately denied the rejection motion, and lawyers recommended that this application similarly be denied. The applicant’s primary claim is that the subsequent petition for divorce is precluded by the law of res judicata since the respondent had already filed a request to dissolve the marriage, which was rejected.

However, after studying the separation request, the Honorable Madras High Court determined that the ground for proceeding was distinct from the prior version. As a result, the present request for divorce is legal, and the rule of the supremacy of the law is not applicable. It noted that the reasons for dismissing marriage issues are frequently ongoing or frequent in personality traits. A request for separation caused by brutality, abandonment, or cheating may be submitted repeatedly for similar reasons as long as fresh facts are presented. A reason for proceeding is a series of circumstances that a spouse must establish to receive remedy from the judicial system. The evidence behind charges of brutality, abandonment, or cheating might vary, giving rise to distinct grounds of action based on the circumstances of each instance. When the reason to claim is continuous and recurring, the presumption of innocence is not an obstacle to filing a new request for separation for identical grounds, even if the preceding appeal was rejected.

Conclusion

The word “Incredible India” is in fact genuine to nature. Each culture, belief system, individual law, and established law entertains the community and its development. The transformation in Hindu society, as well as embracing the shift in its vibrant society, gives happiness and gratitude to be an Indian. Previously, the notion of separation was not acceptable, and a girl was expected to accommodate and reconcile. However, as the Act evolved, the notion of divorce and, as a result, the essential provisions to meet the demands of modern society emerged. As a result, being in a marriage that is violent implies a violation of core basic rights such as the ability to live in peace, liberty of expression, and communication, among others. Finally, it is anticipated that individuals do not abuse the authority granted to them by the constitution, but rather maintain the rules and human impulses of love, respect, confidence, and compassion.

Seeking divorce under the Hindu Marriage Act of 1955 is a critical step for every couple who chooses to get divorced. It must be a carefully considered option because it may exhaust you mentally, emotionally, and economically. Understanding the various aspects allows for more informed decision-making. It is critical to employ an attorney to properly file your petition, as they are knowledgeable, know the complexities and subtleties of separation processes, and can anticipate any issues better than a normal person. It is simpler to present a request for separation than to fight for it and eventually win it. It may require anything from a year to a decade or more for any marriage to obtain a separation agreement, depending on the particulars of the situation and the spouses’ consent.

Frequently Asked Questions (FAQs)

1. What is the Hindu Marriage Act of 1955?

The Hindu Marriage Act of 1955 is an Indian legislation that controls the process of marriage and divorce among people who follow the Hindu religion. It establishes a constitutional basis for the ceremony, legitimacy, and termination of marriages in the Hindu population.

2. Who is protected under the Hindu Marriage Act of 1955?

The Act covers Hindus, including those who practice Buddhism, Jains, and Sikhs. It also extends to those who are not Muslim, Christian, Parsi, or Jewish.

3. What differentiates a contentious divorce from an uncontested divorce?

A contentious separation happens when the spouses are unable to compromise on their conditions or reasons for separation, forcing legal proceedings. An uncontested separation occurs when both spouses decide on the divorce’s conditions and requirements.

4. What is the family court’s function in separation processes?

The family court is in charge of overseeing divorce proceedings, promoting settlement between spouses, and making sure all required criteria are completed. In addition, the court makes decisions on maintenance, custody of kids, and asset partition.

About the Author – Advocate Priya Narayan

Advocate Priya Narayan is a seasoned divorce and family law attorney based in Bangalore, with over 12 years of courtroom experience. She has represented 500+ clients across a wide range of matrimonial cases — including divorce, child custody, alimony, domestic violence, and mutual consent petitions under Hindu, Muslim, Christian, and Special Marriage Acts.

Her deep understanding of personal laws, combined with real courtroom insights, helps clients navigate complex legal situations with clarity and confidence. Advocate Priya is known for her strategic litigation skills, empathetic client approach, and a strong track record in achieving favorable settlements both inside and outside the courtroom.

Office located in: Indiranagar, Bangalore
Email: contact@bestdivorcelawyerinbangalore.com
Phone: +91-9361722724

This article is based on her legal understanding and practical experience in Indian family courts.

Need guidance on your case? Schedule a confidential consultation with Advocate Priya Narayan.