A Hindu marriage can be dissolved on fault grounds under Section 13 of the Hindu Marriage Act 1955. Cruelty and desertion are the two grounds pleaded most often in family courts, and each carries its own ingredients that must be both pleaded and proved. This page sets out what the two grounds mean, the evidence that works, and how the fault route differs from a mutual consent petition under Section 13B.
When this applies
Section 13 governs marriages solemnised under the Hindu Marriage Act, that is where both parties are Hindu, Buddhist, Jain or Sikh. Either spouse may present the petition. The fault route suits a person who wants the marriage dissolved whether or not the other side agrees. Where both spouses have already agreed on separation, division of assets and custody, a joint petition under Section 13B is usually faster and less bitter, and the grounds need not be proved at all.
Two threshold points apply to every fault petition. Section 14 bars a petition within one year of the marriage unless the court grants leave on the ground of exceptional hardship or exceptional depravity. Section 23 requires the court to be satisfied that the petitioner is not taking advantage of their own wrong and that there has been no unnecessary or improper delay.
Step by step: the grounds and what each requires
Section 13 lists the fault grounds a spouse may rely on. The main ones are:
- Adultery - voluntary sexual intercourse with a person other than the spouse. It is almost never proved by direct evidence and is established through circumstances that make the inference inevitable.
- Cruelty - conduct that causes physical harm or mental suffering to the petitioner.
- Desertion - the other spouse has deserted the petitioner for a continuous period of not less than two years immediately preceding the petition.
- Conversion - the other spouse has ceased to be a Hindu by conversion to another religion.
- Mental disorder - unsoundness of mind or a mental disorder of such a kind and extent that the petitioner cannot reasonably be expected to live with that spouse.
- Renunciation - the other spouse has renounced the world by entering a religious order.
- Presumed death - the other spouse has not been heard of as alive for seven years or more.
Cruelty
Cruelty is not defined in the Act; the courts have built the meaning case by case. It covers physical violence, threats, and also mental cruelty - sustained humiliation, false accusations, abusive language, refusal of conjugal relations, insistence on dowry, and conduct that makes it impossible for one spouse to live with the other. A single incident may amount to cruelty if grave enough; a course of lesser conduct may amount to cruelty because it is relentless. The standard is objective: the court asks whether the conduct, judged as a whole, is such that the petitioner cannot reasonably be expected to live with the respondent. A one-off quarrel or the ordinary wear and tear of married life is not cruelty.
Desertion
Desertion has four ingredients, all of which must be proved:
- Factum of separation - the spouses are actually living apart.
- Animus deserendi - the deserting spouse intends to bring cohabitation permanently to an end.
- Absence of consent - the separation is not by agreement of the petitioner.
- No reasonable cause - the deserting spouse had no justifiable reason to leave.
Desertion is a continuing state of affairs, not a single act. The two-year period must run continuously and immediately before the petition is filed. Where a spouse withdraws from the matrimonial home but offers to return in good faith, and the offer is refused, desertion may not be made out.
Documents and evidence to preserve
- Marriage proof - the marriage certificate, invitation card, or photographs and the priest's or registrar's record.
- Proof of separation - rent agreements, utility bills, employer records, or a clear affidavit showing the date of separation.
- Evidence of cruelty - medical records of injuries, prescriptions, complaints made to police, WhatsApp and SMS messages, lawfully obtained recordings, and diary entries made at the time.
- Witnesses - relatives, neighbours or colleagues who saw the conduct or the separation.
- Financial details - salary slips, bank statements and tax records for the maintenance and alimony claim that usually accompanies a divorce petition.
For desertion, the most valuable single document is often a dated notice or written record showing when the spouse left and that they were asked to return.
Timelines, limitation and condonation
There is no fixed period within which a fault petition must be filed, but Section 23 requires the court to refuse relief where the petitioner has delayed without reasonable cause. Practically, the longer the gap between the conduct and the petition, the harder the case. Condonation is a live defence: if the petitioner, with full knowledge of adultery or cruelty, forgave it and resumed cohabitation, the court will not grant a decree on that ground. Similarly, connivance or collusion in adultery, and being an accessory to it, bar relief. A fault petition is contested far more often than a mutual consent petition, so it takes longer - often months of evidence and arguments.
Common mistakes
- Pleading cruelty generally without giving dates, incidents and instances; a vague petition invites dismissal.
- Relying on a single old incident that has been condoned by years of continued cohabitation.
- Filing within one year of the marriage without seeking leave under Section 14.
- Ignoring the maintenance and custody claims that should be made in the same petition.
- Producing recordings or messages obtained unlawfully, which the court may exclude.
Common questions
Do I have to prove adultery to get a divorce?
No. Adultery is only one of several grounds. If the marriage has broken down and the other side will not consent, cruelty or desertion is usually easier to establish, and you need prove only the ground you plead.
What is the difference from a Section 13B mutual consent petition?
Under Section 13B both spouses jointly state that the marriage cannot be reconciled and agree on maintenance, custody and property. The court does not investigate fault. It has two motion stages, and no ground needs to be proved, which is why it is often quicker and cheaper.
Can desertion be cured by a late offer to return?
An offer to resume cohabitation made after the two-year period has already run, and not in good faith, does not defeat the ground. But a genuine, timely offer that the petitioner refuses may itself support the other side.
Does condonation apply to desertion?
Condonation in the technical sense applies to adultery and cruelty. For desertion, what matters is whether the spouses resumed living together, which breaks the continuity that the ground requires.
Because cruelty and desertion turn on evidence and pleading, the petition should be drafted carefully from the start. See our divorce lawyer and family law services, download the ready formats from family law formats, or contact us to discuss your case.
FileX Advocates & Legal Consultants, Kolkata, drafts and files these matters before the Calcutta High Court, City Civil and Sessions courts, magistrate, family, consumer and tribunal forums. Call +91 7439811422 or WhatsApp us for a free first consultation.