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Earlier divorce was unknown to general Hindu law as marriage was regarded as an
indissoluble union of the husband and wife. Manu declared that a wife cannot be released by
her husband either by sale or by abandonment, implying that the marital tie cannot be severed
in any way. Although Hindu law does not contemplate divorce yet it has been held that where
it is recognized as an established custom it would have the force of law.

According to Kautilya’s Arthashatra, marriage might be dissolved by mutual consent in the

case of the unapproved form of marriage. But Manu does not believe in the discontinuance of
marriage. He declares” let mutual fidelity continue till death; this, in brief, may be
understood to be the highest dharma of the husband and wife1

However, this changed when divorce was introduced in the Hindu Marriage Act, 1955. There
are basically three theories for divorce: -

 Fault theory.
 Mutual consent theory.
 Irretrievable breakdown of marriage theory.

Under the Fault theory or the offences theory or the guilt theory, marriage can be dissolved
only when either party to the marriage has committed a matrimonial offence. It is necessary
to have a guilty and an innocent party, and the only innocent party can seek the remedy of
divorce.

Another theory of divorce is mutual consent. The underlying rationale is that since two
persons can marry by their free will, they should also be allowed to move out of the
relationship of their own free will.

The third theory is the irretrievable breakdown of the marriage. The breakdown of a marriage
is defined as “such failure in the matrimonial relationships or such circumstances adverse to
that relationship that no reasonable probability remains for the spouses again living together
as husband & wife.” Such marriage should be dissolved with maximum fairness & minimum
bitterness, distress & humiliation. Some of the grounds available under the Hindu Marriage
Act can be said to be under the theory of frustration by reason of specified circumstances.

1
Agarwal, R.K, Hindu law, Central law agency, Print 2014.
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What are the grounds for getting a divorce?

It is conceded in all jurisdictions that public policy, good morals & the interests of society
require that marital relationship should be surrounded with every safeguard and its severance
be allowed only in the manner and for the cause specified by law. Divorce is not favoured or
encouraged and is permitted only for grave reasons.

In modern Hindu law, all the three theories of divorce are recognized & divorce can be
obtained on the basis of any one of them. The Hindu Marriage Act, 1955 originally, based
divorce on the fault theory, and enshrined nine fault grounds in Section 13(1) on which either
the husband or wife could sue for divorce, and two fault grounds in Section 13(2) on which
wife alone could seek the divorce.

In 1964, by an amendment, certain clauses of Section 13(1) were amended in the form of
Section 13(1A), thus recognizing two grounds of the breakdown of the marriage. The 1976
amendment Act inserted two additional fault grounds of divorce for wife & a new section
13B for divorce by mutual consent.

The various grounds on which a decree of divorce can be obtained are as follows-

Adultery

While adultery may not have been recognized as a criminal offence in all countries, the
matrimonial offence of adultery or the fault ground of adultery is recognized in most. Even
under the Shastric Hindu law, where divorce had not been recognized, adultery was
condemned in the most unequivocal terms. There is no clear definition of the matrimonial
offence of adultery.

Cruelty
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The concept of cruelty is a changing concept. The modern concept of cruelty includes both
mental and physical cruelty. Acts of cruelty are behavioural manifestations stimulated by
different factors in the life of spouses, and their surroundings and therefore; each case has to
be decided on the basis of its own set of facts. While physical cruelty is easy to determine, it
is difficult to say what mental cruelty consists of. Perhaps,

Desertion

Desertion means the rejection by one party of all the obligations of marriage- the permanent
forsaking or abandonment of one spouse by the other without any reasonable cause and
without the consent of the other. It means a total repudiation of marital obligation.]

Conversion

When the other party has ceased to be Hindu by conversion to any other religion for e.g.
Islam, Christianity, Judaism, Zoroastrianism, a divorce can be granted.

Insanity
Insanity as a ground of divorce has the following two requirements-

i) The respondent has been incurably of unsound mind

ii) 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.2

2
https://www.lawyered.in/legal-disrupt/articles/divorce-under-hindu-marriage-act-1955-pratik-harsh/
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Insanity as a ground for divorce

The Hindu Marriage Act, 1955, lays down the law for divorce, which applies to Hindus,
Buddhists, Jains, and Sikhs.

Under Section 13 of the Act, the grounds for divorce include: “voluntary sexual intercourse
with any person other than his or her spouse”; “cruelty”; desertion “for a continuous period
of not less than two years immediately preceding the presentation of the petition”; “cease(in)
to be a Hindu by conversion to another religion”; and being “incurably of unsound mind”.

In addition, Section 13B provides for “divorce by mutual consent”.

Section 27 of The Special Marriage Act, 1954 provides the grounds for grant of divorce in
the case of marriages solemnised under that Act.

 A husband or a wife is entitled to divorce if either spouse is found to be mentally unsound

or indulges in cruelty, the Supreme Court has held.

 A bench of justices P Sathasivam and BS Chauhan in a judgement said under Section 13

of the Hindu Marriages Act, either of the spouse can seek divorce, provided sufficient
evidence is placed to justify the claim.
 The apex court upheld the appeal of Pankaj Mahajan, challenging the Punjab and
Haryana High Court`s refusal to grant him divorce despite producing medical and other
evidence to prove that his wife Dimple suffered from schizophrenia and subjected him to
humiliation, assaults and threatened suicide.

 The high court had refused to grant him divorce and quashed the decree of divorce
granted to him by a matrimonial court in Ropar district.

"Without proper discussion and adequate reasons, the high court rejected the evidence of the
appellant-husband as PW-4. A perusal of his evidence clearly shows the agony and treatment
meted out immediately after the marriage due to mental disorder, unsound mind of the
respondent-wife.

As Justice Sathasivam, writing the judgement, said.

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“From the materials placed on record, we are satisfied that the appellant-husband has brought
cogent materials on record to show that the respondent-wife is suffering from mental
disorder, i.e., schizophrenia. From the side of the appellant husband, various doctors and
other witnesses were examined to prove that the respondent-wife was suffering from mental
disorder”.

INSANITY as a ground for nullity of marriage

Section 12 (i)(b)

There is provision in the HMA (Section 12 (i)(b)) for nullity of marriage on the ground that
the marriage is in contravention of the conditions specified in Section 5 (ii).

Section 5 (ii) states that:

 Is unable to give a valid consent to it in consequence of unsoundness of mind, or

 Has been suffering from a mental disorder, of such a kind or of such an extent, as to be
unfit for marriage and the procreation of children
 Has been subject to recurrent attacks of insanity.

Section 5 (ii)(a) has two components:

(1) Ability to give valid consent, and

(2) soundness of mind.

Consent is an act of reason and deliberation. A person who possesses and exercises sufficient
mental capacity to make an intelligent decision demonstrates consent by performing an act
recommended by another. Consent assumes power to act and a reflective, determined, and
unencumbered exertion of this power. It is an act unaffected by fraud, duress, or sometimes
even mistake when these factors are not the reason for the consent. Consent is implied in
every agreement.

For a valid consent soundness of mind is implied. The expression “unsoundness of mind”
has to be understood as the lack of a state of mind or capacity to understand one's affairs or
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marital obligations. The phrase “in consequence of unsoundness of mind” narrows down the
concept of consent. If the emphasis of the Act is to move from sacramental nature to the
contractual nature of the marriage, consent is essential. Then it is better to remove the phrase
which leads to unnecessary litigations.

Every person with mental disorder need not be assumed to lack mental capacity to understand
the nature and consequences of the issue on hand. Many persons with mental disorder exhibit
the capacity to give consent to their treatment, and testamentary capacity. Specific mention of
“unsoundness” invites unwarranted litigations.

 The Supreme Court held in Narayan and Santi that to brand a wife as unfit for marriage
and procreation of children on account of a mental disorder, it needs to be established that
the ailment suffered by her is of such a kind or to such an extent that it is impossible for
her to lead a normal married life. The unfitness for marriage and procreation of children
contemplated here is one arising from mental disorder only, and not on account of any
other disorder. Infertility or sterility as such is not a ground for annulment of marriage
under Section 12 or for divorce under Section 13. In this case, the respondent was at the
time of marriage suffering from schizophrenia.3

 In most of the arranged marriages, the fact of mental illness is often not disclosed or
discussed with the family of the spouse. This is largely due to the fear that disclosure will
not only lead to rejection of the alliance by the party, but also to the canvassing of the fact
in the marriage market. This will prevent her from getting a suitable match. Also, in most
of the cases the woman has recovered fully from a past episode or reasonably from the
present one, because of which the other party has consented for marriage.

 The State has always showed a positive attitude towards the preservation of the family.
Family Court Act, 1984 is an example, which indicates a commitment to protect and
preserve the institution of marriage and the intention of the lawmakers to prevent the
fracture of families.4

3
Narayan RL v. Narayan RL v. Santi. 2001, 4 SCC 688
4
https://www.lwazlaw.com/blog/2017/11/4-things-you-should-know-about-mental-illness-and-divorce/
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 If a party is unfit for marriage, but fit for procreation of children, or vice versa, the clause
would not, it seems, apply. Marriage assumes fitness for it including ability for
procreation of children. Disorders of procreation of children is a complex subject which
involves not only some psychological disorders, but also gynaecological, andrological,
endocrinal, neurological disorders inter alia. When the contribution for this unfitness by
mental disorders is only a fraction, why should there be discrimination by their inclusion
and by omission of physical illnesses. The persons with mental disorder of such severe
extent would in all probability not get married through natural selection or rejection.
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CONCLUSION

Laws which permit nullification or judicial separation on grounds of unsoundness of mind

predominantly emphasize on incurable nature of the illness or such manifestations with
which one cannot be reasonably expected to live with the spouse. The social stigma of mental
illness is the main deciding factor in the inclusion of the restricted list. Mental illnesses are
strongly discriminated against physical illnesses. Many physical illnesses are very serious
and disabling, but they are not included in the restrictive conditions of marriage. In present
times effective treatments are available for mental illnesses and most mental disorders have
good prognosis. Patients with mental illness have a right to marry and live a life of dignity.
Depriving mental patients, the right to marry would be a human rights violation. Besides,
many patients with mental illnesses perform better than those without mental illnesses. In the
same line it may be said that if patients with epilepsy can marry, those with mental illness
should also have the right to marry. It is to be noted that the real problem is the negative
attitude or stigma towards mental illness, not mental illness per se.
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BIBLIOGRAPHY

 Agarwal, R.K, Hindu law, Central law agency, Print 2014.

 Narayan RL v. Narayan RL v. Santi. 2001, 4 SCC 688
 https://www.lawyered.in/legal-disrupt/articles/divorce-under-hindu-marriage-act-
1955-pratik-harsh/
 https://www.lwazlaw.com/blog/2017/11/4-things-you-should-know-about-mental-
illness-and-divorce/