Section 13 of the Hindu Marriage Act, 1955 deals with grounds on which party can file a petition for divorce.
Fault Theory: Under this theory marriage can be ended when one party to the marriage is responsible or liable for the offence under matrimonial offences done against another spouse.
Section 13(1):- The said section lays down 9 grounds on which a party can file Divorce Petition
- Adultery: Section 13(1)(i)
1 [(i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse;
Adultery use to be a criminal offence under Section 497 of IPC which later on was struck down by Supreme Court in Joseph Shine vs. Union of India (Judgment dated 27.09.2018). [Exception – Armed/Defence forces]
- Cruelty: Section 13(1)(ia)
(ia) has, after the solemnization of the marriage, treated the petitioner with cruelty
- Desertion: Section 13(1)(ib)
(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition
- Conversion to a Non-Hindu Religion: Section 13(1)(ii)
(ii) has ceased to be a Hindu by conversion to another religion
- Incurable Insanity/Mental Disorder: Section 13(1)(iii)
iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.
Clause (iv) has been omitted by Amendment of 2019
- Venereal Disease in a communicable: Section 13(1)(v)
(v) has been suffering from venereal disease in a communicable form;
- Taking Sanyasa: Section 13(1)(vi)
(vi) has renounced the world by entering any religious order
- Presumption or Belief of Death: Section 13(1)(vii)
(vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive.
Section 13(1A) came into the act by way of Amendment, 1964, the said clause have two more grounds for decree of divorce.
- that there has been no resumption of cohabitation as between the parties to the marriage for a period of [one year] or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or
- that there has been no restitution of conjugal rights as between the parties to the marriage for a period of [one year] or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.
The said sub-clause deals with four additional grounds that are only for the wife. A wife alone may also present a petition for the dissolution of her marriage.
- Pre-Act Polygamous Marriage: Section 13(2)(i)
(i) in the case of any marriage solemnized before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner: Provided that in either case the other wife is alive at the time of the presentation of the petition
- Rape, Sodomy or Bestiality: Section 13(2)(ii)
- ii) that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality;
- Non- resumption of cohabitation after a decree/order of Maintenance: Section 13(2)(iii)
(iii) that in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) (or under the corresponding section 488 of the Code of Criminal Procedure, 1898 (5 of 1898), a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards
- Repudiation of Marriage: Section 13(2)(iv)
(iv)that her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.
Explanation – This clause applies whether the marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976).]
Section 13A. Alternate relief in divorce proceedings
In any proceeding under this Act, on a petition for dissolution of marriage by a decree of divorce, except in so far as the petition is founded on the grounds mentioned in clauses (ii), (vi) and (vii) of sub-section (1) of section 13, the court may, if it considers it just so to do having regard to the circumstances of the case, pass instead a decree for judicial separation.
No Fault Theory: Under the said theory the Petitioner doesn’t have to prove any fault, in such cases marriages may fail not because of the fault or guilt of one of the spouses but because the spouses are not compatible in their temperament. All the Petitioner has to do is give any reason that is sufficient in the eyes of law for the divorce. The most frequently given reason is “irreconcilable differences” or an “irretrievable breakdown”. Under this theory, divorce can be obtained by the mutual consent of the parties to marriage under the marriage laws (Amendment) Act, 1976.
Under Section 13B(1) of the Act, a petition is required is to be moved mutually by both the spouses on the ground that they have been living separately for a period of not less than one year or more and they do not want to live together and also that they have mutually agreed that marriage should be dissolved.