Divorce: the Grounds under Section 13

Why it matters here. It is the only place cruelty is given usable content, and the last item is the bridge to the breakdown discussion below. Note the two words to write before reciting any of it: illustrative and not exhaustive. The Court refused to define cruelty and a student who presents the fourteen as a closed list has misread the case.

Constructive desertion and cruelty. MU asks about "constructive desertion" (June 2018 Q1.4), and it belongs beside cruelty. Desertion is not merely leaving; where one spouse by conduct makes it impossible for the other to remain, the spouse who drives the other out is the deserter, even though it was the other who physically departed. The same conduct will usually be cruelty as well.

(ib) Desertion

That the other party has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition.

The Explanation at the end of section 13(1) defines it: desertion means the desertion of the petitioner by the other party without reasonable cause and without the consent or against the wish of the petitioner, and includes the wilful neglect of the petitioner by the other party.

Take the elements from that Explanation and from the clause together:

• the fact of separation;
• the intention to desert, that is, to bring cohabitation permanently to an end;
• absence of reasonable cause;
• absence of the petitioner's consent; and
• continuity for two years or more immediately before the petition.

All five must run together for the whole two years. If the deserting spouse offers a genuine reconciliation and it is refused, or if the parties resume cohabitation, the desertion is interrupted and the clock restarts. The words "wilful neglect" are what let a spouse who never left the house still be a deserter.

(ii) Conversion

That the other party has ceased to be a Hindu by conversion to another religion.

Two things to hold. The ground belongs to the spouse who remains a Hindu, not to the convert. And the conversion does not by itself dissolve the marriage: it gives a ground, which somebody must come to court and use. That is the point Sarla Mudgal turns on, and it is dealt with in [Bigamy and the Punishments the Act Imposes].

(iii) Unsoundness of mind and mental disorder

That the other party 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.

The clause, substituted in 1976, carries its own Explanation. "Mental disorder" means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind, and includes schizophrenia. "Psychopathic disorder" means a persistent disorder or disability of mind, whether or not including sub-normality of intelligence, which results in abnormally aggressive or seriously irresponsible conduct, whether or not it requires or is susceptible to medical treatment.

The test is not the diagnosis but the effect: the disorder must be of such a kind and extent that the petitioner cannot reasonably be expected to live with the respondent. A named illness proves nothing by itself.

(iv) Omitted

Clause (iv) was the ground of leprosy, and it was omitted by Act 6 of 2019 with effect from 1 March 2019. It is no longer a ground of divorce, and a book or a lecture that still lists it is out of date. The number is left empty in the Act.

(v) Venereal disease

That the other party has been suffering from venereal disease in a communicable form. Words requiring a minimum period were omitted in 1976, so the ground now turns on the disease being communicable rather than on how long it has lasted.

(vi) Renunciation

That the other party has renounced the world by entering any religious order.

Both limbs are needed. A person who becomes devout, or withdraws from family life, has not renounced the world within the clause; there must be entry into a religious order by the recognised rites.

(vii) Presumed death

That the other party 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.

Note that this is a ground of divorce and not merely a presumption of death. The petitioner is expected to take a decree rather than remarry on the strength of the presumption alone, because if the missing spouse reappears a remarriage contracted without a decree would be bigamous.

Clauses (viii) and (ix) as originally enacted were omitted by Act 44 of 1964, which converted them into what is now section 13(1A).

Section 13(1A): the failed decree

Either party may petition for divorce on the ground:

(i) that there has been no resumption of cohabitation for one year or upwards after a decree for judicial separation in a proceeding to which they were parties; or

(ii) that there has been no restitution of conjugal rights for one year or upwards after a decree for restitution in a proceeding to which they were parties.

The period was reduced from two years to one in 1976.

This is not a fault ground, and that is what makes it important. Either party may use it, including the party who disobeyed the decree. That is precisely what happened in Saroj Rani, discussed in the previous chapter, where the husband consented to a restitution decree and then used its non-compliance to obtain a divorce. The only control is section 23(1)(a), the bar on a petitioner taking advantage of his own wrong, and the Supreme Court held there that mere non-compliance with the decree is not by itself such a "wrong".

Section 13(2): the wife's additional grounds

A wife may also present a petition on four further grounds.

(i) A pre-Act polygamous marriage. In the case of a marriage solemnized before the commencement of the Act, that the husband had married again before the commencement, or that any other wife married before the commencement was alive at the time of the petitioner's marriage; provided in either case that the other wife is alive at the time the petition is presented.

This is a transitional provision. Polygamous Hindu marriages before 1955 were valid, and this clause gave the wives of such marriages a way out.

(ii) Rape, sodomy or bestiality. That the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality. The word "bestiality" was substituted in 1976.

(iii) A maintenance order not followed by cohabitation. That in a suit under section 18 of the Hindu Adoptions and Maintenance Act 1956, or in a proceeding under section 125 of the Code of Criminal Procedure 1973 (or the corresponding section 488 of the 1898 Code), a decree or order has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart, and that since that decree or order cohabitation has not been resumed for one year or upwards.

(iv) Repudiation of a child marriage. 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. The Explanation provides that the clause applies whether the marriage was solemnized before or after the 1976 amendment.

This is the "option of puberty" in statutory form, and it is much narrower than the remedy in section 3 of the Prohibition of Child Marriage Act 2006, taken in [Child Marriage, and the Prohibition of Child Marriage Act 2006]. Both survive, and a well-advised petitioner uses the later Act.

Irretrievable breakdown: what the Act does not contain

MU sets this constantly and the answer has three steps.

It is not a ground. Section 13 is a fault-based section, and breakdown appears nowhere in it.

The Supreme Court has asked Parliament to add it. In Naveen Kohli, AIR 2006 SC 1675, decided on 21 March 2006, the Court held that irretrievable breakdown is not a ground under the Act, that whether to add it is for the Legislature, and recorded its considered opinion that the Legislature must consider irretrievable breakdown as a ground for divorce under the Act. It set out at length the recommendation of the 71st Report of the Law Commission of India, submitted to the Government on 7 April 1978, which had examined the fault theory against the breakdown theory. Parliament has not acted.

What the Supreme Court does instead. In Shilpa Sailesh, decided on 1 May 2023, a Constitution Bench held that the Supreme Court may, under Article 142(1) of the Constitution, dissolve a marriage on the ground of complete and irretrievable breakdown, even where the other spouse opposes. That is a constitutional power belonging to one court, not a statutory ground available to any court. It is set out in the next chapter.

Written in that order, the answer is complete and consistent.

A worked example

Latika has been married ten years. Her husband has been cruel and, after three years apart, has now converted to Islam and taken a second wife. She has an order of maintenance in her favour, and they have not cohabited since.

Which grounds are open to her? Cruelty, section 13(1)(ia); desertion for a continuous period of not less than two years, section 13(1)(ib); and conversion, that he has ceased to be a Hindu by conversion to another religion, section 13(1)(ii).

What is cruelty? Samar Ghosh v. Jaya Ghosh refuses to define it and gives fourteen illustrative instances, so an answer states that it is not exhaustively defined and gives some of them.

And his second marriage? It does not dissolve the first: on Sarla Mudgal the conversion gives her a ground of divorce and makes his second marriage void and bigamous, taken in [Bigamy and the Punishments the Act Imposes].

Has she any additional ground as a wife? Section 13(2)(iii): that in a suit or proceeding a decree or order awarding maintenance has been passed against the husband, and that since then cohabitation has not been resumed for one year or upwards.

And the maintenance order alone? Not enough by itself; the year without cohabitation must have passed.

Suppose there had been a decree of judicial separation three years ago. Section 13(1A)(i): either party may petition where there has been no resumption of cohabitation for one year or upwards after such a decree, whether or not either was at fault.

And if he had simply disappeared? Section 13(1)(vii): that he has not been heard of as being alive for seven years or more by those who would naturally have heard of him.

What about irretrievable breakdown? It is not a statutory ground. Only the Supreme Court may dissolve on that footing, under Article 142, on Shilpa Sailesh, taken in [Divorce by Mutual Consent, Alternate Relief and Remarriage].

What it does NOT mean

Adultery is not a course of conduct. A single voluntary act of sexual intercourse with any person other than the spouse is enough under section 13(1)(i).

Cruelty is not defined. Samar Ghosh gives illustrations and expressly declines to define it exhaustively.

Desertion is not merely living apart. It is desertion for a continuous period of not less than two years immediately preceding the petition, and the Explanation includes wilful neglect.

Conversion does not dissolve the marriage. It gives the other spouse a ground, on Sarla Mudgal.

Mental disorder is not a ground by its label. The test is whether it is of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

Clause (iv) is empty. The leprosy ground was omitted with effect from 1 March 2019.

Section 13(1A) is not confined to the innocent party. Either party may use it.

Irretrievable breakdown is not in the Act. The Law Commission has recommended it; Parliament has not enacted it.

Quick revision

• s.13(1), grounds open to either spouse: (i) adultery, a single voluntary act; (ia) cruelty; (ib) desertion for not less than two years; (ii) conversion; (iii) mental disorder of a kind and extent such that the petitioner cannot reasonably be expected to live with the respondent; (iv) omitted with effect from 1 March 2019; (v) venereal disease in a communicable form; (vi) renunciation of the world by entering a religious order; (vii) not heard of as alive for seven years.
• Samar Ghosh: fourteen illustrative instances of mental cruelty, and a refusal to define it exhaustively.
• s.13(1A): either party may petition where there has been no resumption of cohabitation for one year after a decree of judicial separation, or no restitution for one year after a decree under s.9.
• s.13(2), the wife's additional grounds: a pre-Act second marriage of the husband, the other wife being alive; the husband guilty of rape, sodomy or bestiality; a decree or order of maintenance followed by no cohabitation for a year; and repudiation of a marriage contracted before she was fifteen, exercised before she is eighteen.
• Irretrievable breakdown: not a statutory ground.

Test yourself

1. State the grounds of divorce available to either spouse. Adultery; cruelty; desertion for a continuous period of not less than two years immediately preceding the presentation of the petition; ceasing to be a Hindu by conversion to another religion; incurable unsoundness of mind or continuous or intermittent mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent; venereal disease in a communicable form; and renunciation of the world by entering a religious order; and that the respondent has not been heard of as being alive for seven years or more.

2. What are the grounds available to a wife alone? That the husband had married again before the commencement of the Act, or that any other wife of his married before that commencement was alive at the time of the petitioner's marriage, that wife being alive at the presentation of the petition; that the husband has since the marriage been guilty of rape, sodomy or bestiality; that a decree or order awarding maintenance has been passed against him and cohabitation has not been resumed for one year or upwards since; and that her marriage was solemnized before she attained fifteen and she repudiated it after attaining fifteen but before eighteen.

3. What is the effect of section 13(1A)? Either party to a marriage may present a petition for divorce on the ground that there has been no resumption of cohabitation for one year or upwards after the passing of a decree of judicial separation, or no restitution of conjugal rights for one year or upwards after a decree for restitution. The party who disobeyed the decree may also apply.

4. Is cruelty defined by the Act? No. In Samar Ghosh v. Jaya Ghosh the Supreme Court set out fourteen illustrative instances of mental cruelty and expressly declined to give an exhaustive definition, holding that no uniform standard can be laid down and that each case turns on its own facts.