Section 13 HMA: Divorce
Hindu Marriage Act, 1955
Section 13 HMA at a Glance
Section 13 HMA sets out the grounds on which a court may dissolve a marriage by a decree of divorce. Ten grounds are open to either spouse, while four additional grounds are open only to a wife.
Section 13 HMA Bare Act Text
13. Divorce.
(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party—
(i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or
(ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or
(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or
(ii) has ceased to be a Hindu by conversion to another religion; or
(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.
Explanation.—In this clause,—
(a) the expression “mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;
(b) the expression “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 on the part of the other party, and whether or not it requires or is susceptible to medical treatment; or
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(v) has *** been suffering from venereal disease in a communicable form; or
(vi) has renounced the world by entering any religious order; or
(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; ***
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Explanation.—In this sub-section, the expression “desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.
(1A) Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground—
(i) 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
(ii) 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.
(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground,—
(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; or
(ii) that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality; or
(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;
(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).
Amendments to this section
- Subs. by Act 68 of 1976, s. 7, for cl. (i) (w.e.f. 27-5-1976).
- Subs. by s. 7, ibid., for cl. (iii) (w.e.f. 27-5-1976).
- Cl. (iv) omitted by Act 6 of 2019, s. 5 (w.e.f. 1-3-2019).
- Certain words omitted by s. 7 (w.e.f. 27-5-1976).
- The word "or" omitted by Act 44 of 1964, s. 2 (w.e.f. 20-12-1964).
- Cls. (viii) and (ix) omitted by s. 2, ibid. (w.e.f. 20-12-1964).
- Ins. by Act 68 of 1976, s. 7 (w.e.f. 27-5-1976).
- Ins. by Act 44 of 1964, s. 2 (w.e.f. 20-12-1964).
- Subs. by Act 68 of 1976, s. 7, for "two years" (w.e.f. 27-5-1976).
- Subs. by Act 68 of 1976, s. 7, for "bestiality" (w.e.f. 27-5-1976).
- Ins. by s. 7, ibid. (w.e.f. 27-5-1976).
Section 13 HMA in Simple Words
Section 13 HMA sets out the grounds on which any marriage solemnized before or after the commencement of the Hindu Marriage Act, 1955 may be dissolved by a decree of divorce, which is a court order ending the marriage. Under Section 13(1) HMA, either the husband or the wife may present a petition on the ground that the other party, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than the spouse (clause (i)), or treated the petitioner, meaning the spouse filing the petition, with cruelty (clause (ia)). Either spouse may also petition where the other party deserted the petitioner for a continuous period of not less than 2 years immediately before the presentation of the petition (clause (ib)), or ceased to be a Hindu by conversion to another religion (clause (ii)).
Clause (iii) of Section 13(1) HMA covers cases where the respondent, meaning the other spouse, has been incurably of unsound mind, or has been suffering continuously or intermittently from a mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent. Its Explanation defines "mental disorder" as mental illness, arrested or incomplete development of mind, psychopathic disorder, or any other disorder or disability of mind, including schizophrenia, and defines "psychopathic disorder" as a persistent disorder or disability of mind (with or without sub-normality of intelligence) resulting in abnormally aggressive or seriously irresponsible conduct by the other party, whether or not it requires or is susceptible to medical treatment. Clause (iv) was omitted by Act 6 of 2019 from 1 March 2019. Further grounds under Section 13(1) HMA apply where the other party has been suffering from venereal disease in a communicable form (clause (v)), has renounced the world by entering any religious order (clause (vi)), or has not been heard of as being alive for 7 years or more by persons who would naturally have heard of that party if alive (clause (vii)), while clauses (viii) and (ix) were omitted by Act 44 of 1964 from 20 December 1964. The Explanation at the end of Section 13(1) HMA defines "desertion" as desertion of the petitioner by the other spouse without reasonable cause and without the consent or against the wish of the petitioner, including wilful neglect of the petitioner by the other spouse.
Under Section 13(1A) HMA, either party to a marriage solemnized before or after the commencement of the Act may also present a divorce petition after an earlier decree in a proceeding to which both spouses were parties. Divorce may be sought where there has been no resumption of cohabitation between the spouses for 1 year or upwards after the passing of a decree for judicial separation (clause (i)), or where there has been no restitution of conjugal rights between the spouses for 1 year or upwards after the passing of a decree for restitution of conjugal rights (clause (ii)).
Section 13(2) HMA provides four additional grounds on which a wife alone may present a divorce petition. Under Section 13(2)(i) HMA, for any marriage solemnized before the commencement of the Act, the wife may petition on the ground that the husband had married again before that commencement or that another wife married by the husband before that commencement was alive when the petitioner's marriage was solemnized, provided that the other wife is alive when the petition is presented. Under Section 13(2)(ii) HMA, the wife may petition on the ground that, since the solemnization of the marriage, the husband has been guilty of rape, sodomy, or bestiality.
Under Section 13(2)(iii) HMA, the wife may petition where a decree or order awarding maintenance to the wife (despite the wife living apart) has been passed against the husband 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 corresponding Section 488 of the Code of Criminal Procedure, 1898), and cohabitation between the spouses has not resumed for 1 year or upwards since that decree or order. The Act still refers to the Code of Criminal Procedure, 1973, which the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) replaced from 1 July 2024; the maintenance provision is now Section 144 BNSS. Under Section 13(2)(iv) HMA and its Explanation, whether the marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976, and whether consummated or not, the wife may petition if the marriage was solemnized before the wife attained 15 years of age and the wife repudiated (rejected) the marriage after attaining 15 years but before attaining 18 years of age.
When Section 13 HMA Applies
- A marriage governed by the Hindu Marriage Act, 1955, solemnized either before or after the commencement of the Act.
- A petition for dissolution of marriage presented to the court by either spouse under Section 13(1) or Section 13(1A) HMA, or by the wife under Section 13(2) HMA.
- Under Section 13(1) HMA, proof of at least one specified ground against the other party, such as voluntary sexual intercourse outside marriage after marriage, cruelty, continuous desertion for not less than 2 years, conversion from Hinduism, qualifying unsoundness of mind or mental disorder, communicable venereal disease, renunciation into a religious order, or absence unheard of for 7 years or more.
- Alternatively under Section 13(1A) HMA, proof that cohabitation or restitution of conjugal rights has not resumed for 1 year or upwards after a decree for judicial separation or restitution of conjugal rights in a proceeding between the spouses.
- Alternatively on a wife's petition under Section 13(2) HMA, proof of a qualifying pre-commencement marriage of the husband with the other wife still alive, rape, sodomy, or bestiality by the husband since marriage, 1 year or upwards without cohabitation after a specified maintenance decree or order, or repudiation between ages 15 and 18 of a marriage solemnized before age 15.
Example of Section 13 HMA
When Section 13 HMA Does Not Apply
- Under the proviso to Section 13(2)(i) HMA, a wife cannot petition on the ground of another marriage of the husband solemnized before the commencement of the Act if the other wife is not alive when the petition is presented.
- Under Section 13(1)(ib) HMA and the Explanation to Section 13(1) HMA, desertion does not apply if the continuous period immediately preceding the petition is less than 2 years, or if the separation had reasonable cause or the petitioner's consent.
- Under Section 13(1A) HMA, a divorce petition following a decree for judicial separation or restitution of conjugal rights does not lie if less than 1 year has passed since the decree or if cohabitation or conjugal rights resumed.
- Under Section 13(2)(iv) HMA, repudiation of marriage applies only where the wife's marriage was solemnized before attaining 15 years of age and the wife repudiated the marriage after attaining 15 years but before attaining 18 years.
FAQs on Section 13 HMA
What is Section 13 HMA?▼
Section 13 HMA is the provision of the Hindu Marriage Act, 1955 that sets out the grounds on which a court may dissolve a marriage by a decree of divorce. Section 13 HMA lists grounds open to either spouse under sub-sections (1) and (1A), along with four additional grounds open only to a wife under sub-section (2).
How long must desertion last before a spouse can seek divorce under Section 13(1)(ib) HMA?▼
2 years or more. Section 13(1)(ib) HMA requires desertion for a continuous period of not less than 2 years immediately preceding the presentation of the petition. Under the Explanation to Section 13(1) HMA, the desertion must be without reasonable cause and without the consent or against the wish of the petitioner, and includes wilful neglect.
Does Section 13 HMA apply to marriages solemnized before the Hindu Marriage Act, 1955 came into force?▼
Yes. Both Section 13(1) HMA and Section 13(1A) HMA apply whether the marriage was solemnized before or after the commencement of the Act. In addition, Section 13(2)(i) HMA gives a wife a specific divorce ground for a marriage solemnized before the commencement of the Act if another wife married by the husband before that commencement is still alive when the petition is presented.
What divorce grounds are available only to a wife under Section 13(2) HMA?▼
Four grounds are available only to a wife under Section 13(2) HMA. These cover another living wife from a marriage of the husband before the Act commenced, the husband being guilty of rape, sodomy, or bestiality since marriage, non-resumption of cohabitation for 1 year or upwards after a maintenance decree or order under Section 18 of the Hindu Adoptions and Maintenance Act, 1956 or Section 125 of the Code of Criminal Procedure, 1973, and repudiation between ages 15 and 18 of a marriage solemnized before age 15.
How many years must a missing spouse remain unheard of for divorce under Section 13(1)(vii) HMA?▼
7 years or more. Under Section 13(1)(vii) HMA, either spouse may petition for divorce if the other party has not been heard of as being alive for 7 years or more by persons who would naturally have heard of that party if alive.
Can a spouse file for divorce under Section 13(1A) HMA if cohabitation does not resume after judicial separation?▼
Yes. Under Section 13(1A)(i) HMA, either spouse may present a divorce petition if cohabitation between the parties has not resumed for 1 year or upwards after the passing of a decree for judicial separation in a proceeding to which both spouses were parties. Under Section 13A HMA, a court hearing most divorce petitions under Section 13 HMA may also pass a decree for judicial separation instead of divorce.
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Sources: Bare Act Text, Hindu Marriage Act, 1955 ·