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Section 13 of HMA

The document discusses various theories and grounds for divorce under Indian law. It covers fault-based theories, mutual consent divorce, and irretrievable breakdown. Specific grounds covered include adultery, cruelty, desertion, conversion, insanity, leprosy, renunciation, presumption of death. Essentials and examples are provided for many of the grounds.

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140 views11 pages

Section 13 of HMA

The document discusses various theories and grounds for divorce under Indian law. It covers fault-based theories, mutual consent divorce, and irretrievable breakdown. Specific grounds covered include adultery, cruelty, desertion, conversion, insanity, leprosy, renunciation, presumption of death. Essentials and examples are provided for many of the grounds.

Uploaded by

ria rajeev
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© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Divorce under Section 13 of HMA

• Any Marriage
• Before and after commencement
• Either party – husband or wife
• Dissolved by decree of divorce
• May file petition (Section 29-2)
Theories of 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. Only the innocent spouse can
seek this remedy. The only drawback of this theory is when both the
spouse are at fault, then no one can seek these remedy of divorce.
Mutual Consent
Under this theory, the marriage can be dissolved by mutual consent.
If both the spouse mutually gives their consents to end the marriage,
they can take the divorce. But many philosophers criticise this theory
as this concept is immoral and leads to hasty divorce.
Irretrievable Breakdown
According to this theory, the dissolution of marriage happens due to
failure of the matrimonial relationship. The divorce can be taken by
the spouse as a last resort i.e. when both of them are not able to live
together again.
Divorce Section 13- based on fault
theory

Section 13 (1)
Section 13 (2)
Grounds available to both i.
Grounds only to wife
e. Husband and wife
Essentials of Adultery
One of the spouses involved in the intercourse with another
person, married or unmarried, of the opposite sex.

Intercourse should be voluntary and consensual.

At the time of the act, the marriage was subsisting.


There must be sufficient circumstantial evidence to prove the
liability of another spouse.
Cruelty
The concept of cruelty includes mental as well as physical cruelty.
The physical cruelty means when one spouse beats or causes any bodily
injury to the other spouse.

But the concept of mental cruelty was added as the spouse can also be
mentally tortured by the other spouse. Mental Cruelty is lack of kindness
which adversely affects the health of the person. Well it is easy to determine
the nature of physical cruelty but difficult to say about mental cruelty

What is considered as Mental Cruelty against Husband by wife:


Humiliating the husband in front of his family and friends.
Undertaking the termination of pregnancy without husband consent.
Making false allegation against him.
Denial for Martial Physical Relationship without a valid reason.
Wife having affair.
Wife living an immoral life.
The constant demand for money.
Aggressive and uncontrollable behaviour of Wife.
Ill-treatment to the husband parents and family.
Desertion
Desertion means the permanent abandonment of one spouse by the other
spouse without any reasonable justification and without his consent. In
General, the rejection of the obligations of marriage by one party.

Essentials
Permanent abandonment of the other spouse.

Rejection of the obligation of marriage.

Without any reasonable justification.


No consent of another spouse.
Conversion

If one of the spouses converts his religion to any other religion without the consent of
the other spouse, then the other spouse can approach the court and seek the remedy
of divorce.

Illustration
A, a Hindu has a wife B and two children. One day A went to church and converted to
Christianity without the consent of B, here B can approach the court and seek for
divorce on the ground of conversion.
Insanity

Insanity means when the person is of unsound mind. Insanity as a


ground of divorce has the following two requirements-
The respondent has been incurably of unsound mind.
The respondent 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.
Leprosy
Leprosy is an infectious disease of the skin, mucous membranes, nervous system etc.
this disease is transmitted from one person to another. Thus it is considered as the
valid ground for divorce.

Illustration
A and B married on 9 September 2011. Later A suffered from a venereal disease and
it is incurable. There’s also a chance that B can also get infected by that disease if she
lives with A. Here, B can approach the court for dissolution of marriage
Renunciation
It means when one of the spouses decide to
renunciate the world and walk on the path of the God,
then the other spouse can approach the court and
demand the divorce. In this concept the party who
renunciates the world is considered as civilly dead. It is
a typical Hindu practice and considered as a valid
ground for divorce.
Illustration
A and B got married and lives a happy life. One day A
decides to renunciate the world. Here, B has a right to
approach the court and seek the remedy of divorce.
Presumption of Death
In this case, the person is presumed to have died, if
the family or the friends of that person does not hear
any news about the person alive or dead for seven
years. It is considered as the valid ground for divorce,
but the burden of proof is on the person who demands
the divorce.
Illustration
A was missing from the last seven years and his wife B
does not get any news about him of being alive or
dead. Here B can approach the court and ask for the
divorce.

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