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Introduction-

Hindu marriage refers to the change of status of a boy and a girl as a husband and wife by the performance of the marriage rites, whether prescribed by the sastras or by custom or by Hindu Marriage Act, 1955. According to ancient texts, there are various forms of marriage. In a traditional Hindu marriage, there are various ideas that express its significance. One such concept of wife is considered to be Ardhangini in Hindu marriage. The eternal man is made up of two halves i.e. male and female. In Hinduism, both halves are equal and one part is incomplete without the other. The ancient Hindu tradition states that a man’s life will never be complete without a woman i.e. Ardhangini or his better part. Section 2 of the Hindu Marriage Act, 1955 asserts that this act applies to any person, who is a Hindu by religion including Virashaiva, a Lingayat or followers of the Brahmo, Prarthana or Arya Samaj also to a person who belongs to a Buddhist, Jaina or Sikh by religion. There is some exception that Muslim, Christian, Parsi or Jew by religion is not considered under the limits of the Act. According to sections 5 and 7 it is clear that a Hindu marriage has both religious as well as secular aspects. Therefore it is to be treated both as a sacrament and as a contract. It is a sacrament because there is emphasis on the performance of the customary rites and ceremonies. It is contract because this section deals with the capacity of the spouses to enter into an alliance for a marriage. There are conditions in section 5 of the Act which is as, no one has a partner who lives during the marriage, both parties must give valid consent, no one will be suffering from any mental disorder, the bridegroom has completed the age of twenty-one years and the bride, the age of eighteen years at the time of marriage the parties are not within the degree of prohibited relationship and are not sapindas

Divorce-

The concept of divorce is given in section 13 of the Act, 1955. This section provides several grounds for obtaining divorce either party to the marriage whether solemnized before or after the commencement of this Act. The proceeding has to be started by filing a petition before the District Court which has jurisdiction under this Act. The grounds mention is sub-sections (1) and (1A) are available to both the husband and wife. Section 13, as it was originally enacted has undergone a substantial change by reason of subsequent amendments.

By the Marriage Laws (Amendment) Act (68 of 1976), the following changes were made in section 13(1)(i), the words “is living in adultery” were substituted by the words “has after solemnization of the marriage had voluntary sexual intercourse with any person other than his or her spouse”. Clause (ia) and (ib) were added to sub-section (1) where under cruelty and desertion were made grounds for obtaining divorce. Similarly there were other amendments made in section 13 of the Act, also section 13B was introduced providing for divorce by mutual consent subject to certain conditions. 

Grounds of Divorce-

There are grounds of divorce in Section 13(1) of the Hindu Marriage Act, 1955 on which either the husband or wife could sue for divorce.

• Adultery: An act of adultery is in its nature a secret act. Direct proof would not be available in all cases. It is extremely difficult to get direct evidence and if the courts insist on direct evidence in proof of adultery it may well amount to a denial of the legitimate protection of marital rights. Adultery or sexual intercourse with another can be presumed when there was no access for marital intercourse between the spouses for a reasonably long time but a child was born during that time. There is nothing in Evidence to prevent the spouses from giving evidence of non-access. It is sufficient to prove under the provision that the respondent had voluntarily sexual intercourse with any person other than the spouse. It need not be proved that the respondent has been living in adultery. 

• Cruelty: Under the clause (ia) of section 13(1), Act 1955, “cruelty” is a ground for divorce. The expression cruelty is not defined in the Act. In Russel v Russel Lopes, LJ, defining “cruelty” observed: “There must be danger to life, limb or health, bodily or mental or a reasonable apprehension of it to constitute cruelty”. Though physical violence is absent any conduct of the respondent which would render harmful for the petitioner to live with the respondent or is of such a nature so as to create a reasonable apprehension to that effect would amount to mental cruelty. Mental cruelty may consist of verbal abuses and insults by using foul and abusive language, disturbing mental piece. Sex is a binding force to keep two spouses together and the denial thereof by one spouse to the other would affect mental health amounting to mental cruelty especially in a case where the parties are young and have recently married.

• Desertion: Under the clause (ib) of section 13(1), Act 1955, “Desertion” for a period of two years as one of the grounds for divorce. In Bipinchandra v Prabhavathi the Supreme Court observed that to define ‘desertion’ as desertion without reasonable cause and without the consent is not very helpful while deciding what the word “desertion” really implies. Two important elements are essential to constitute desertion, firstly, the fact of separation, and secondly, the intention to bring cohabitation to an end permanently.

1. 1. Conversion: A Hindu marriage may be dissolved by a declaration of divorce when the defendant ceases to be a Hindu by converting to another religion. The same right is given to a person who converts to Christianity under the Native Convert’s Act Marriage Dissolution Act 1866.. There should be a voluntary resignation of the Hindu religion by the defendant and a formal conversion of religion to another religion in order to attract this provision for the purpose of divorce. 

• Insanity: A person’s mental illness is not the only reason for divorce, legally, if a person has a mental disorder of the type of person they do not want to live with, chasing can be allowed.

• Leprosy: Clause (iv) of section 13(1) provides a right for obtaining divorce if the other spouse is suffering from a virulent and incurable form of leprosy. The party shoud be suffering from disease for a period of not less than 3 years immediately preceding the presentation of the petition.

• Venereal Disease: Clause (v) of section 13(1)states that if the respondent has been suffering from venereal disease in a communicable form a decree of divorce can be granted.

1. Presumption of Death: A divorce can be granted on the basis that certain individuals who would naturally have heard of it had that party been alive, had the respondent not been heard of as being alive for a period of seven years or more. It is a valid death inference founded on English evidentiary law.

Mutual Consent-

Section 13B was added by Act 78 of 1976 and provides for divorce by mutual consent. In order to attract the provisions of this section, the spouses should have been living separately for a period of one year or more and must not have been able to live together and have mutually agreed that the marriage be dissolved. Where all the three ingredients of section 13B are proved by the parties, divorce cannot be refused.

Conclusion-

The Hindu Marriage Act, 1955 provides various provisions for divorce. The Hindu Act of Marriage defines “Divorce as a Decision of Marriage”. The three main ideas related to divorce are Fault Theory, Mutual Consent Concept, and an undeniable theory. In India, Fault theory works on divorce issues. Under this view, a marriage may be dissolved if one of the spouses is guilty or liable for the offense under marital disputes. An innocent mate might seek a divorce. Under the Hindu Marriage Act, the basic reasons why Hindu women can seek a divorce solution are Adultery, Desertion, Conversion, Leprosy, Cruelty, etc. But many philosophers criticize the idea of ​​divorce. Hindu married women can apply for maintenance under section 125 of the Criminal Procedure Code. So an innocent mate might go to court and seek a divorce.