Section 13 Hindu Marriage Act 1955: Divorce and Grounds of Divorce

Section 13 of the Hindu Marriage Act, 1955 provides the principal statutory grounds on which a Hindu marriage may be dissolved by a decree of divorce. Most grounds are available to either spouse, while Section 13(2) gives a wife certain additional grounds.

What does Section 13 of the Hindu Marriage Act provide?

Section 13 permits a marriage solemnized before or after the commencement of the Hindu Marriage Act to be dissolved by a decree of divorce when a statutory ground is proved. A petition may be presented by either the husband or the wife on the grounds in Section 13(1). Section 13(1A) provides two further post-decree grounds, and Section 13(2) provides additional grounds available to a wife.

A decree of divorce is not automatic merely because a petition is filed. The petitioner must plead and establish the applicable statutory ground, and the court must be satisfied that relief can be granted under the Act.

Grounds of divorce available to either husband or wife under Section 13(1)

1. Adultery - Section 13(1)(i): After solemnization of the marriage, the other spouse has had voluntary sexual intercourse with a person other than his or her spouse.
2. Cruelty - Section 13(1)(ia): After solemnization of the marriage, the other spouse has treated the petitioner with cruelty. The Act does not exhaustively define cruelty; whether conduct amounts to cruelty depends on the pleaded and proved facts and the governing judicial principles.
3. Desertion - Section 13(1)(ib): The other spouse has deserted the petitioner for a continuous period of at least two years immediately before presentation of the divorce petition.
4. Conversion - Section 13(1)(ii): The other spouse has ceased to be a Hindu by conversion to another religion.
5. Mental disorder - Section 13(1)(iii): The statutory test concerns incurable unsoundness of mind or continuous or intermittent mental disorder of such a kind and extent that the petitioner cannot reasonably be expected to live with the respondent. The section also defines the expressions "mental disorder" and "psychopathic disorder" for this purpose.
6. Venereal disease - Section 13(1)(v): The other spouse has been suffering from venereal disease in a communicable form.
7. Renunciation - Section 13(1)(vi): The other spouse has renounced the world by entering a religious order.
8. Not heard of as alive - Section 13(1)(vii): The other spouse has not been heard of as alive for seven years or more by persons who would naturally have heard of that spouse if he or she were alive.

Meaning of desertion

For Section 13(1), "desertion" includes desertion of the petitioner by the other spouse without reasonable cause and without the petitioner's consent or against the petitioner's wish. It also includes wilful neglect. The statutory requirement of a continuous period of at least two years immediately preceding the petition must be satisfied.

Mental disorder under Section 13(1)(iii)

The provision is not framed so that a diagnosis alone automatically results in divorce. The statutory language requires the condition to satisfy the nature-and-extent test stated in Section 13(1)(iii). The provision defines "mental disorder" broadly and separately defines "psychopathic disorder".

Divorce after judicial separation or restitution decree - Section 13(1A)

Either spouse may also seek divorce where:

1. there has been no resumption of cohabitation for one year or more after a decree for judicial separation in a proceeding between the parties; or
2. there has been no restitution of conjugal rights for one year or more after a decree for restitution of conjugal rights in a proceeding between the parties.

These grounds operate after the relevant earlier matrimonial decree and are distinct from the grounds listed in Section 13(1).

Additional grounds of divorce available to a wife - Section 13(2)

In addition to the general grounds, a wife may petition for divorce on the additional grounds specified in Section 13(2), including:

1. Certain pre-Act marriages involving another wife: the limited historical ground stated in Section 13(2)(i), subject to its statutory conditions.
2. Rape, sodomy or bestiality: where the husband has, since solemnization of the marriage, been guilty of conduct falling within Section 13(2)(ii).
3. Maintenance order followed by no resumed cohabitation: where the conditions in Section 13(2)(iii) are met, including the required maintenance decree or order and absence of resumed cohabitation for one year or more.
4. Repudiation of child marriage: where the marriage, whether consummated or not, was solemnized before the wife attained fifteen years and she repudiated it after attaining fifteen but before attaining eighteen years, as provided in Section 13(2)(iv).

When and where can a divorce petition be filed?

Section 14: As a general rule, a divorce petition cannot be presented before one year has elapsed from the date of marriage. The proviso empowers the court to permit an earlier petition in cases of exceptional hardship to the petitioner or exceptional depravity on the part of the respondent, subject to the statutory conditions.

Section 19: Territorial jurisdiction is governed by Section 19 of the Hindu Marriage Act. Depending on the facts, jurisdiction may be connected with the place where the marriage was solemnized, where the respondent resides, where the parties last resided together, and other situations expressly covered by the section. In areas where a Family Court has been established, matrimonial jurisdiction is ordinarily exercised by the Family Court in accordance with the Family Courts Act, 1984.

Section 20: A petition under the Act must state the material facts on which the claim to relief is founded and be verified in the manner required by law.

Section 13 and divorce by mutual consent are different

Section 13 concerns contested statutory grounds for divorce. Divorce by mutual consent is separately governed by Section 13B of the Hindu Marriage Act. A person considering divorce should identify whether the case is based on a contested ground under Section 13 or a joint petition under Section 13B.

Related Hindu Marriage Act provisions

Before filing, the provisions on restitution of conjugal rights and judicial separation, alternate relief and mutual-consent divorce, the one-year restriction under Section 14, jurisdiction under Section 19, maintenance and permanent alimony, and child custody under Section 26 may also be relevant.