Divorce

In one minute

Divorce ends a valid marriage. The Hindu Marriage Act, 1955 allows it on fault grounds in section 13(1), on further grounds in section 13(1A), on special grounds for a wife in section 13(2) and by mutual consent under section 13B.

A petition cannot be filed within one year of marriage without leave (section 14). The petitioner must not take advantage of his or her own wrong, and must not have condoned or connived at the fault (section 23). Irretrievable breakdown is not a statutory ground, but the Supreme Court can grant divorce on it under Article 142.

Legal provision

• Section 13(1): grounds (i) adultery, (ia) cruelty, (ib) desertion for two years, (ii) conversion, (iii) incurable unsoundness of mind or mental disorder, (v) communicable venereal disease, (vi) renunciation of the world, (vii) not heard of as alive for seven years.
• Section 13(1A): either party may seek divorce if there has been no resumption of cohabitation for one year after a decree of judicial separation, or no restitution of conjugal rights for one year after a decree of restitution.
• Section 13(2): a wife may also seek divorce on four more grounds.
• Section 13B: divorce by mutual consent.
• Section 14: no petition within one year of marriage, except with leave for exceptional hardship or depravity.
• Section 15: remarriage after the appeal time.
• Section 23: conditions for relief and the duty to attempt reconciliation.

Meaning and definition

Divorce is the dissolution of a valid marriage by a court decree. The Act follows the fault theory, where one spouse proves the other's matrimonial wrong, and also allows divorce by mutual consent.

• Divorce
  • Fault groundsSection 13(1): adultery, cruelty, desertion, conversion, mental disorder, venereal disease, renunciation, presumed death.
  • Failed decreesSection 13(1A): no resumption after judicial separation or restitution.
  • Wife's groundsSection 13(2): four special grounds.
  • Mutual consentSection 13B: joint petition, two motions.

Detailed explanation

Step 1: adultery (13(1)(i))

The respondent has had voluntary sexual intercourse with a person other than the spouse after the marriage. A single act is enough. Direct proof is rare, so courts accept circumstances that lead to it.

Step 2: cruelty (13(1)(ia))

The respondent has treated the petitioner with cruelty after the marriage. The Act does not define cruelty. Courts accept physical and mental cruelty. In Dastane the Supreme Court held that cruelty is proved on a preponderance of probabilities. In Samar Ghosh v. Jaya Ghosh ((2007) 4 SCC 511) the Court listed illustrative instances of mental cruelty and said that no uniform standard can be laid down. Ordinary wear and tear of married life is not cruelty.

Step 3: desertion (13(1)(ib))

The respondent has deserted the petitioner for a continuous period of at least two years before the petition. The Explanation says that desertion is abandonment without reasonable cause, without the consent or against the wish of the petitioner, and includes wilful neglect. In Savitri Pandey the Court held that there can be no desertion without previous cohabitation.

Step 4: conversion, mental disorder, disease, renunciation and presumed death

• Conversion (ii): the respondent has ceased to be a Hindu by converting to another religion.
• Mental disorder (iii): the respondent is incurably of unsound mind, or suffers continuously or intermittently from mental disorder of such a kind and extent that the petitioner cannot reasonably be expected to live with him or her.
• Venereal disease (v): a communicable form.
• Renunciation (vi): entering a religious order and giving up the world.
• Presumed death (vii): not heard of as alive for seven years by those who would naturally have heard.

Step 5: failed decrees (13(1A))

If a year or more has passed without resumption of cohabitation after judicial separation, or without restitution after a restitution decree, either party can seek divorce. In Saroj Rani a husband succeeded on this ground.

Step 6: the wife's special grounds (13(2))

1. Pre-1955 polygamy: the husband married again before the Act, or another wife was alive when she married, and that wife is alive at the petition.
2. The husband has been guilty of rape, sodomy or bestiality.
3. A maintenance decree or order was passed against the husband, and there has been no cohabitation for one year since.
4. Her marriage was solemnized before she was fifteen, and she repudiated it after fifteen but before eighteen.

Step 7: divorce by mutual consent (section 13B)

Both parties present a petition on the ground that they have been living separately for one year or more, have not been able to live together and have mutually agreed to dissolve the marriage. After six months and within eighteen months from the petition, both parties make a second motion. If the petition is not withdrawn, the court must be satisfied that the marriage was solemnized and the averments are true, and then grants the decree.

• Sureshta Devi: consent must continue until the decree is passed. Either spouse can withdraw it before then.
• Amardeep Singh: the six-month period is directory, not mandatory. The court can waive it if the statutory conditions are met and the parties have settled their disputes.
• Shilpa Sailesh v. Varun Sreenivasan (2023): a Constitution Bench held that the six-month period can be waived on the Amardeep Singh conditions. It also held that the Supreme Court may dissolve a marriage under Article 142 on irretrievable breakdown, subject to public policy.

Step 8: bars to relief (section 23)

Relief is refused if the petitioner took advantage of his or her own wrong, or was accessory to, connived at or condoned adultery. Condonation of cruelty also bars relief. Collusion, unnecessary delay, or consent got by force, fraud or undue influence also bar relief. The court must try for reconciliation first, except on conversion, mental disorder, venereal disease, renunciation and presumed death.

Exceptions and special rules

• One-year bar (section 14): leave to file earlier needs exceptional hardship or depravity. If leave was obtained by misrepresentation or concealment, the court may make the decree effective only after one year from the marriage, or may dismiss the petition.
• Alternative relief (section 13A): the court may grant judicial separation instead, except on grounds (ii), (vi) and (vii).
• Counter-claim (section 23A): the respondent may claim relief on the petitioner's adultery, cruelty or desertion.
• Remarriage (section 15): allowed after the appeal time ends or an appeal is dismissed.
• Ancillary orders: maintenance, custody and property under sections 24 to 27.

Don't confuse: fault divorce and mutual consent

Point	Fault divorce (13(1))	Mutual consent (13B)
Who petitions	One spouse against the other	Both together
Needs a wrong by the other	Yes	No
Separation required	Only for desertion (two years)	One year or more
Waiting period	Trial	Six to eighteen months between the motions, waivable
Withdrawal	Petitioner may withdraw	Either spouse until the decree

Common mistakes

• Listing leprosy or "incurable" venereal disease. The present text omits clause (iv), and clause (v) speaks only of communicable venereal disease.
• Saying the six months of section 13B is always mandatory. It is directory.
• Forgetting that a spouse can withdraw consent before the decree.
• Treating irretrievable breakdown as a statutory ground. It is not.
• Forgetting the section 23 bars and the one-year bar of section 14.

Apply it

Problem

Madhavi and Suresh of Nellore filed a joint petition under section 13B in January. In March Madhavi says her consent was given under pressure and withdraws it. Suresh asks the court to grant the divorce in August. Decide.

Issue

Can the court grant divorce when one spouse withdraws consent before the decree?

Rule

Mutual consent must continue until the decree. Either spouse may withdraw it before then (Sureshta Devi).

Application

Madhavi withdrew her consent before the second motion. The consent required by section 13B no longer exists.

Conclusion

The court cannot grant a decree under section 13B. Suresh may proceed on a fault ground, if he has one.

Leading case laws

• Dastane v. Dastane

  Facts. A husband sought annulment, divorce or judicial separation. Only judicial separation for cruelty reached the Supreme Court.

  Principle. Cruelty is proved on a preponderance of probabilities. The wife was cruel, but the husband condoned it and it was not revived.

  Why it matters. It fixes the standard of proof for cruelty and shows how condonation bars relief.

• Savitri Pandey v. Prem Chandra Pandey

  Facts. The parties lived together only from 6 May to 21 June 1987. The wife alleged cruelty and desertion.

  Principle. Neither was proved. There can be no desertion without previous cohabitation, and a spouse cannot take advantage of his or her own wrong.

  Why it matters. It states the elements of desertion. A Constitution Bench in Shilpa Sailesh (2023) read this case down on the Supreme Court's power under Article 142.

• Sureshta Devi v. Om Prakash

  Facts. A couple filed a joint petition under section 13B. The wife withdrew her consent before the second motion, saying it was got under pressure.

  Principle. Mutual consent must continue up to the decree. Either spouse may withdraw it before then, and the court cannot decree divorce on the other spouse's wish alone.

  Why it matters. It is the leading case on withdrawal of consent.

• Amardeep Singh v. Harveen Kaur

  Facts. A couple married in 1994 had lived apart since 2008. They settled all disputes and asked to waive the six months.

  Principle. The period under section 13B(2) is directory. The court can waive it on four conditions.

  Why it matters. It makes the waiting period flexible. The 2023 Constitution Bench in Shilpa Sailesh confirmed the approach.

• Saroj Rani v. Sudarshan Kumar Chadha

  Facts. A husband sought divorce under section 13(1A)(ii) after no cohabitation for a year following a restitution decree.

  Principle. The Supreme Court affirmed the divorce. A consent decree is not collusive, and the husband was not taking advantage of his own wrong.

  Why it matters. It shows how a failed restitution decree leads to divorce.

How to write this answer in the exam

Key points to remember

• Section 13(1): adultery, cruelty, desertion (two years), conversion, mental disorder, venereal disease, renunciation, presumed death.
• Section 13(1A): no cohabitation or restitution for one year after the earlier decree.
• Section 13(2): four grounds for a wife.
• Section 13B: one year apart, two motions, six to eighteen months; waivable; consent must continue.
• Section 14: one-year bar. Section 23: bars and reconciliation.

Quick self-test

Related topics

• Judicial separation
• Maintenance pendente lite
• importance of conciliation