CHAPTER-IV

DIVORCE UNDER HINDU LAW

4.1 Introduction

Hindu religion finds the concept of divorce alien to Hinduism and as such does not
approve Divorce. The Ancient Hindu law was unknown to the concept of divorce
earlier and marriage was considered as indissoluble union of the spouses. According
to Hindu Philosophers, Marriage is a sacrament, a divine covenant and a pure
relationship. Marriage is meant for procreation and to continue family lineage and not
to fulfill sexual desires and pleasures. Under Hindu Law it is an obligation, which
once accepted, should be maintained by both the parties throughout their lives.
Marriage is, therefore, considered as a sacred bond, which cannot be terminated
through separation on some personal and selfish grounds. It has been acknowledged
in all jurisdictions that good morals, public policy and the interests of society demand
that matrimonial relation should be surrounded with every safeguard and its end be
allowed only in the manner and for the cause stated by the Law. Divorce is only
permitted for grave reasons and it is definitely not encouraged in Indian society. The
dissolution of marriage by a competent court means Divorce. Hindu law permits
divorce only on some particular grounds. Divorce is not generally favored or
encouraged by courts; it is permitted only for serious and grave reasons294.

4.2 Concept of Divorce

The concept of marriage and divorce directly deals with the lives of human beings,
i.e. husband and wife. The whole civilization of the world depends on the good
relationship between the spouses. Today the attitude towards marriage is changing.
Therefore, marriage and divorce are receiving increasing importance. Marriage no
doubt is union of a man and a woman for life. Still when the marriage has completely
broken down, the formal continuance of the union would be only a source of misery
for the parties. To live under the perpetual authority of a man whom you hate is itself
a state of slavery; but to be compelled to submit to his embrace, is a misfortune too

294 Smt. Mala v. Bal Krishna, 2016 AIR (Sikkim) 28; 1974 AIR (SC) 165.

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great for slavery itself. Accordingly divorce in some form or other is prescribed in
most systems of law. Divorce has been considered as a necessity, an unhappy by-
product of an ineffective marriage. There is no reason to assume that wherever it
exists, people have taken undue advantage of it, where otherwise they would be
content to be bound by the first marriage.The social aspect of divorce and the great
care with which it should be granted is illustrated by the judgment of the Privy
Council in an appeal from Canada.295Lord Blansburgh delivering the judgment of
their Lordships observed, “So long as divorce, in contrast with marriage, is not
permitted to be a matter of agreement between parties, but the public at large are
directly interested in them, affecting as they do, not only the status of the two
individuals immediately concerned but not remotely when taken in the mass, the
entire social structure and the preservation of a wholesome family life throughout the
community.”296 The idea or the concept of divorce is very old and its origin is not
traceable. According to Letourneau, "divorce as an institution is the final milestone in
the process of freeing the woman from the slavery of man in marital relationship". He
(Letourneau) states further about the pitiable condition of women in complete slavery.
With the advent of civilization the condition of women improved and man's control
gradually removed. He maintains that the process of emancipation began with the
man being prohibited from treating the wife as chattel with liberty to sell or kill her.
Later on, man was prevented from repudiating a validly married woman without a
concrete and reasonable cause.297 In the words of the Law dictionary divorce means,
“The legal separation of man and wife, effected, for cause, by the judgment of a court,
and either totally dissolving the marriage relation, or suspending its effects so far as
concerns the cohabitation of the parties.” It is a process which completely dissolves
and puts a final end to a lawful marriage. It is believed that there was no concept of
divorce under ancient Hindu law. Ancient Hindu law rested in a rule that “once a
marriage is always a marriage”, nobody can get out of the bond, not even the death

295 Mepherson v. Mepherson, 43 L.W. 469 (P.C.).

296 Ch II, “Divorce: conceptual analysis”, available at
http://shodhganga.inflibnet.ac.in/bitstream/ 10603/39005/10/10_chapter%202.pdf, (visited on
February 16, 2018).
297 Ch IX, “Marriage and Divorce: Conceptual Analysis”, available at
http://shodhganga.inflibnet.ac.in/ bitstream/10603/68585/9/09_chapter%202.pdf, (visited on
February 16,2018).

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of parties may separate them or dissolve the marriage. It is an old Hindu saying that
wife is a “half body” of husband i.e. “ardhangini”. The concept of divorce seems to
be introduced by Muslim Law in India as it has a liberal divorce regime. But some of
the modern writers oppose this view and have pointed out some “samrities” and
kutilya’s Arthshastra , where some of exceptional situations are provided on which a
Hindu woman can marry again but that does not dissolve her first marriage. In our
point of view, from wherever the concept of divorce has come in India, it is no way a
good idea to dissolve a marriage. The supreme court in Kollam Chandra Sekhar
v.kollam Padam Lata, was of the view that, “Marriage is highly revered in India and
we are nation that pride itself on the strong foundations of our marriages, come hell
or high water, rain or sunshine. Life is made up of good times and bad, and the bad
times may bring with it terrible illness and extreme hardships. The partners in a
marriage must whether these stroms and embrace the sunshine with equanimity.”

4.3 Divorce under Modern Hindu Law

The first law on divorce enacted in 1866 by the British rulers of India was the
Converts Marriage dissolution act, 1866. It was meant for the low caste of Indian who
was converting to the ruling religion. After that, the Divorce act, 1869, came into
existence, it was applicable to Christians and one of the marrying parties is Christian.
The Divorce act is still into existence. Among Hindus divorce was legalized after
independence in the former states of Bombay, Saurashtra and Madras in 1947, 1952,
1949, respectively. All the acts were then repealed by laying a new elaborate law of
Divorce through, the Hindu Marriage Act, 1955. Under modern Hindu law, all of the
three theories relating to divorce are recognized and one can obtain a decree of
divorce on the basis of any one of them. The Hindu marriage Act, 1955, is originally
based on fault theory of divorce and carries nine fault grounds under section 13(1) on
which either the husband or wife can claim for divorce, and there are two other fault
grounds under section 13(2) on which only wife could seek a decree of Divorce.
Section 13 of Hindu marriage Act, 1955, is one of the most revolutionary provisions.
To meet the changing needs of society it has been amended or for a couple of times
been liberalized, since its introduction in 1955. From the beginning when the decree
of Divorce was granted in exceptional circumstances to divorce by mutual consent,

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now we are heading towards the Breakdown Theory of divorce. It is all because of
changing nature of society as change is said to be the Law of Nature. The Supreme
Court and law commission time to time has recommended the central government to
insert irretrievable breakdown of marriage as a special ground of Divorce. The
subsequent amendments in Hindu Marriage Act have liberalized the divorce law
excessively. A Supreme Court Justice while hearing a case in 2008 has remarked that,
“the Hindu Marriage act has broken more homes than it has united”. The judicial
policy is to avoid divorce as far as possible. The courts are usually very strict in
demanding meticulous compliance with statutory provisions on divorce and the
applicable rules of evidence and judicial procedure.298 The grounds of Divorce are
provided under sec 13 of the Hindu Marriage Act, 1955, and it runs as under:

Section 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
(i-a) has, after the solemnization of the marriage, treated the petitioner
with cruelty; or
(i-b) 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 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 disorder or disability of mind and includes schizophrenia ;
(b) the expression “psychopathic disorder” means a persistent disorder or

298 Tahir Mahmood, PRINCIPLES OF HINDU LAW, 2014, p.138.

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 disability of mind (whether or not included sub-normality of intelligence)
which results in abornormally 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
(iv) has been suffering from a virulent and incurable form of leprosy; or
(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. 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 of or against the wish of such
party, and includes the willful neglect of the petitioner by the other party to
the marriage, and its grammatical variations and cognate expression shall
be construed accordingly.
(viii) (1)xxxx
(ix) (1-A) Either party to a marriage, whether solemnized before or after the
commencement of this Act, may also present a petition for 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 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

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 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 presentation of the petition;
or

(ii) that in a suit under section 18 of the Hindu Adoption and Maintenance
Act, 1956 (Act no.78 of 1956), or in a proceeding under section 125 of the
Criminal Procedure Code, 1973 (Act no.2 of 1974) or under the corresponding
section 488 of the Code of Criminal Procedure, 1898 (Act no.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 the 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 (Act no.68 of
1976).

Section 13-A. Alternate relief in divorce proceedings

In any proceedings under this Act, on a petition for dissolution of marriage by a

decree of divorce, except in so far as the petition is founded on the grounds mentioned
in clauses (ii), (vi) and (vii) of subsection (1) of section 13, the Court may, if it
considers it just so to do having regard to the circumstances of the case, pass instead a
decree of judicial separation.

Section 13-B Divorce by mutual consent

(1) Subject to the provisions of this Act, a petition for dissolution of marriage by a
decree of divorce may be presented to the district Court by both the parties to a
marriage together, whether such marriage was solemnized before or after the
commencement of the Marriage Laws (Amendment) Act, 1976 (Act no.68 of 1976),
on the ground that they have been living separately for a period of one year or more,

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that they have not been able to live together and that they have mutually agreed that
the marriage should be dissolved. (2) on the motion of both the parties has made not
earlier than six months after the date of presentation of the petition referred to in sub-
section (1) not later than eighteen months after the said date, if the petition is not
withdrawn in the meantime, the Court shall, on being satisfied, after hearing the
parties and after making such enquiry as it thinks fit, that a marriage has been
solemnized and that the averments of the petition are true, pass a decree of divorce
declaring the marriage to be dissolved with effect from the date of the decree.299

The Marriage Laws (Amendment) Bill, 2010 was introduced in the Rajya Sabha on
August 4, 2010. It seeks to amend the Hindu Marriage Act, 1955 and the Special
Marriage Act, 1954. The Standing Committee submitted its report on the Bill on
March 1, 2011. During the ongoing Monsoon Session, the government circulated
amendments to the 2010 Amendment Bill. The Rajya Sabha passed this Bill with
amendments on August 26, 2013.300 The Bill proposed the insertion of irretrievable
breakdown of marriage as a separate ground for Divorce. It states that, After section
13B of the Hindu Marriage Act, the following sections shall be inserted, namely:—
‘13C (1) A petition for the dissolution of marriage by a decree of divorce may be
presented to the district court by either party to a marriage [whether solemnized
before or after the commencement of the Marriage Laws (Amendment) Act, 2010], on
the ground that the marriage has broken down irretrievably.

(2) The court hearing a petition referred to in sub-section (1) shall not hold the
marriage to have broken down irretrievably unless it is satisfied that the parties to the
marriage have lived apart for a continuous period of not less than three years
immediately preceding the presentation of the petition.

299 The Hindu Marriage Act, 1955, available at

http://www.delhihighcourt.nic.in/library/acts_bills_rules_
regulations/The%20hindu%20marriage%20Act,%201955.pdf, (visited on February 17, 2018).
300 Jhalak Kakkar, “PRS Legislative Research”, available at:
http://www.prsindia.org/uploads/media/Marriage %20
Laws/marriage%20laws%20by%20RS.pdf, (visited on February 17, 2018).

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(3) If the court is satisfied, on the evidence, as to the fact mentioned in subsection (2),
then, unless it is satisfied on all the evidence that the marriage has not broken down
irretrievably, it shall, subject to the provisions of this Act, grant a decree of divorce.

(4) In considering, for the purpose of sub-section (2), whether the period for which the
parties to a marriage have lived apart has been continuous, no account shall be taken
of any one period (not exceeding three months’ in all) during which the parties
resumed living with each other, but no other period during which the parties lived
with each other shall count as part of the period for which the parties to the marriage
lived apart.

(5) For the purposes of sub-sections (2) and (4), a husband and wife shall be treated as
living apart unless they are living with each other in the same household, and
reference in this section to the parties to a marriage living with each other shall be
construed as reference to their living with each other in the same household.

13D. (1) Where the wife is the respondent to a petition for the dissolution of marriage
by a decree of divorce under section 13C, she may oppose the grant of a decree on the
ground that the dissolution of the marriage will result in grave financial hardship to
her and that it would in all the circumstances be wrong to dissolve the marriage.

(2) Where the grant of a decree is opposed by virtue of this section, then, (a) if the
court finds that the petitioner is entitled to rely on the ground set out in section 13C;
and (b) if, apart from this section, the court would grant a decree on the petition, the
court shall consider all the circumstances, including the conduct of the parties to the
marriage and the interests of those parties and of any children or other persons
concerned, and if, the court is of the opinion that the dissolution of the marriage shall
result in grave financial hardship to the respondent and that it would, in all the
circumstances, be wrong to dissolve the marriage, it shall dismiss the petition, or in an
appropriate case stay the proceedings until arrangements have been made to its
satisfaction to eliminate the hardship.

13E. The court shall not pass a decree of divorce under section 13C unless the court is
satisfied that adequate provision for the maintenance of children born out of the
marriage has been made consistently with the financial capacity of the parties to the

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marriage. Explanation.— In this section, the expression “children” means— (a) minor
children; (b) unmarried or widowed daughters who have not the financial resources to
support themselves; and Insertion of new sections 13C, 13D and 13E. Divorce on
ground of irretrievable breakdown of marriage. Wife’s right to oppose petition on
ground of hardship. Restriction on decree for divorce affecting children. 3 (c) children
who, because of special condition of their physical or mental health, need looking
after and do not have the financial resources to support themselves.’. 4. In section
21A of the Hindu Marriage Act, in sub-section (1), after the word and figures “section
13”, at both the places where they occur, the words, figures and letter “or section
13C” shall be inserted. 5. In section 23 of the Hindu Marriage Act, in sub-section (1),
in clause (a), after the word and figure “section 5”, the words, figures and letter “or in
cases where the petition is presented under section 13C” shall be inserted.301 Let us
discuss the Divorce provisions under Hindu law in detail:

4.4 Grounds of Divorce

The Grounds of divorce under Hindu Law are divided into four parts, viz;

1. The fault grounds or the grounds based on guilt theory of divorce.

(i) Grounds on which either of the parties may obtain the decree of
Divorce.
(ii) Grounds on behalf of which wife alone can claim divorce
2. Breakdown grounds of Divorce.
3. The Divorce by mutual consent.
4. Divorce under special laws and Customary Divorce.

Section 13 of Hindu Marriage Act, 1955, provides for nine fault grounds of Divorce.
Some of these grounds are typically based on guilt theory or are called fault grounds
of Divorce, like; Adultery, Desertion, Cruelty, Insanity, Leprosy, Venereal Disease,
and some of them are typically religion based grounds like conversion or renunciation
of world. To obtain a decree of Divorce either party has to prove at least one ground
of divorce provided by the statute. In Rajender v. Anita,302 the court has said that a

301 Ibid.
302 1993 Del. 135; A v. M, 1993 Bom. 70.

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matrimonial relation (marriage) cannot be put to an end or dissolved on a ground not
specified under Hindu Marriage Act, 1955.

4.4.1 Adultery

Adultery is a serious matrimonial lapse and even most liberal of societies view this as
extremely damaging to a harmonious marital relationship.303 The voluntary sexual
connection between a man and a woman, who are not married to each other , but at
least any one of them is married to a third person has been considered as Adultery.
Adultery has been considered as a ground for divorce under Hindu marriage act 1955,
under Indian Divorce Act 1869, under Parsi Marriage and Divorce Act, 1936 (
Amendment 1988). According to Black’s Law Dictionary,304 “Adultery is a voluntary
sexual intercourse of a married person with the person other than the offender’s
husband or wife or by a person with a person who is married to someone else”. In
ordinary sense, Adultery is voluntary sexual intercourse by a married person with a
person of opposite sex other than the spouse. Since it is a crime of secrecy and
darkness, direct proof of commission of sexual intercourse may not be possible.
Sometimes such direct proof creates suspicion. Adultery can be inferred from
circumstances. When a man or a woman stays at a hotel with another man or woman
who is not his/her wife or husband adultery may be inferred. As the maxim goes, they
do not sing their prayers.305 Adultery has many synonyms i.e. infidelity, disloyalty,
unfaithfulness, unchastity etc. and all these synonyms with respect to women points
toward the same legal definition of this word under law as having the voluntary sexual
intercourse between a married person that is a female spouse and a person who is not
her spouse and that too without the consent of husband. However, the same word has
been defined with different meanings in different countries and hence the legal
definition of adultery varies from country to country and statute to statute such as in
many countries adultery has been defined only as having voluntary sexual intercourse
with a man other than the husband but in many other countries in addition to this
definition the sentence “without the husband’s consent” is also used. In India, the
offence of adultery as defined under section 497 of IPC prescribes punishment for

303 Kusum, FAMILY LAW LECTURES, 4th edn. 2015, p. 112.

304 Black’s LAW DICTIONARY, 6th ed.
305 Mookerjee’s, MARRIAGE SEPARATION AND DIVORCE, 4th ed. 2008, p. 159.

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men only and not for women even when they act as abettors. Hence, 42nd report of
law commission of India, 2013 made under Malimath committee recommended to
amend section 497 of IPC to make women also punishable for adultery.306

1. Adultery as a principle ground of divorce in India

Section 13 (1) (i) of the Hindu Marriage Act, 1955 reads adultery as “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 has, ‘after the solemnization of the marriage’, had
‘voluntary sexual intercourse’ with any person other than his or her spouse.”

Adultery is extra marital sex. It is consensual sexual intercourse between a married

person and a person of opposite sex not being the other spouse, during the subsistence
of marriage. Adultery means nothing else than sexual relations unallowed by a
marriage307. While earlier, a single act of adultery was a valid ground for the relief of
judicial separation, for a decree of divorce to be granted, the other party had to be
‘living in adultery’. This changed with the 1976 amendment under the Marriage Laws
(Amendment) Act, 1976. Now, a single act of adultery is a valid cause for divorce.308
This Amendment was necessary because under the unamended act any cunning or
watchful spouse, living a continuous life in adultery, could on sensing the intention of
other party to file a petition under the act, discontinue the adulterous life temporarily
and thus frustrate the object of the act.309

After the solemnization of marriage- In clause (i) of sec 13 the words “after the
solemnization of marriage” has been inserted to make it clear that the pre marriage
unchastity or sexual relation of wife or husband with some other man or woman is not
a ground of divorce. Therefore, to constitute a ground for divorce the sexual

306 Arijit Narendra Srivastva, “Adultery as a ground of divorce in India”, available at

https://www.lawfarm.in/ blogs/adultery-as-a-ground-for-divorce-in-india, (Visited on:
February 17, 2018).
307 Mayank madhav, SINGHAL’S FAMILY LAW-I, 3rd ed. 2013, p. 134.
308 Naseem Akhtar, FAMILY LAW ON DIVORCE AND JUDICIAL SEPARATION, 2003,
p. 31.
309 RK Aggarwal, HINDU LAW, 25th ed. 2016, p. 89.

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intercourse complained must have taken place voluntarily after the solemnization of
marriage and not before marriage.

Voluntary sexual intercourse- Under sec 13 of Hindu Marriage Act it has been
clearly mentioned that the sexual intercourse between two married persons of
opposite sex not being husband and wife to each other must be a voluntary act to
constitute adultery. If the act is non-voluntary or without consent, which amounts to
rape than it will not be considered as adultery. The exchanging of love letters does not
constitute extra marital sex. The involuntary sexual intercourse cannot attract the
section. The act, if committed under intoxication or unconsciousness or by force or
fraud will not be considered as adultery. Also if a woman mistakenly thinks another
man to be her husband and willfully commits the act, she will not be guilty of
adultery.

What constitutes adultery-As explained earlier, to constitute adultery there must be

an act of sexual intercourse between a man and a woman who are not husband and
wife but both are married to different persons.

There are different views about the question that what would constitute sexual
intercourse. In Locke v. Locke310, an Australian case, it was held that to constitute
adultery as a ground for divorce, some penetration of woman by the man must be
found to have taken place. It is not necessary that such penetration should constitute a
complete act of intercourse.311 In a Canadian case312, the court expressed its view in
following words, ‘in my judgment the essence of the offence of adultery consists, not
in the moral turpitude of the act of sexual intercourse, but in the voluntary surrender
to another person of the reproductive powers or faculties of the guilty person, and any
submission of those powers to the service or enjoyment of any person other than the
husband or the wife comes within the definition of adultery’. In this case the question
in front of the court was that whether artificial insemination by a wife can constitute
adultery and the answer of the court was in affirmative. But this definition is not
universally acceptable.

310 (1956) 95 CLR 165.

311 Kusum, FAMILY LAW LECTURES, FAMILY LAW-I, 4th ed. 2017, p. 56.
312 Oxford v. oxford, 58 DLR 251 (1921); 49 Ontario LR 15.

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In Changamunga v. Lianpuri313, it was held that mere intimacy between two
individuals does not imply adultery. Here comes the conclusion about the ingredients
defining adultery:

(i)Adultery is a voluntary act of the parties. A Forceful act cannot be

considered as Adultery.

(ii)Only a married person can indulge in Adultery. Sexual act done by a

married person cannot be taken as adultery.

(iii)The sexual act or intercourse should be done with a person other than the
adulterer’s spouse.

The elements that constitute adultery under sec. 497 of IPC are as under:-

1. To have sexual intercourse with a person.

2. The man committing the offence must know or must have reason to believe
that the concerned woman is a wife of some other person.
3. The person has committed sexual intercourse without the consent of the
husband of the woman.
4. Such sexual intercourse must not be amounting to rape that is the woman with
whom the act is committed must be above 16 years of age.
If such conditions are satisfied then only the person can be considered as guilty of the
offence of adultery.

Section 198 of the code of criminal procedure, 1973, says that in case of adulterous
act, the husband of the woman engaged in the act can prosecute the man with whom
his wife committed adultery. Therefore, neither the women can be prosecuted nor can
she prosecute anyone for adultery.

Nature and standard of proof: As discussed earlier, from its very nature adultery is a
secret act. Direct evidence as a proof of adultery is extremely difficult and rare. So the
circumstantial evidence is enough. The burden of proof as a general rule is on the
party who is blaming or raising the issue so here also the burden of proof of adultery

313 AIR 1988 Gau 53.

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is always on the person alleging it. The guilt of adultery may be proved by direct
evidence or circumstantial evidence leading to the conclusion of the act or by
confession of the party who is guilty, or in case of wife being guilty, by proof of birth
of the child to whom the petitioner could not be a father due to non-access. The
degree of proof does not need to be certain but must carry a high degree of
probability. The absence of wife or a married woman from her matrimonial house for
4 to 6 days at a stretch and has been seen with a total stranger many times is a fact that
leads to an irresistible conclusion that the woman is living in adultery314. Only
admission by the respondent at the time of cross examination is not enough to prove
adultery315. Conduct of the parties, association, opportunity, illicit affection, undue
familiarity and guilty attachments are some of the instances which creates an
inference upon which the court can act.316

The burden of proving adultery is always on the person alleging adultery, there being
a presumption of innocence. Adultery being a serious matrimonial offence, a high
standard proof is required to satisfy the court that the offence has been committed. It
is true that normally a matrimonial offence of adultery is expected to be established
by circumstantial evidence because direct fact of adultery may be difficult to be
proved except in very few cases317. Mere fact that a male relative wrote improper
letters to a married woman does not lead to the conclusion that there were illicit or
sexual relations between the man writing letters and the married woman receiving
them. The circumstantial evidence must be so solid that can make the court believe
the fact of commission of adultery. The DNA report proving a child does not belong
to the husband is enough to prove the commission of adultery by wife. Where the
husband for the sake of dignity of his family condones the adulterous act of his wife,
the petition of divorce by the husband cannot be maintained318. In some cases where
the birth if a child is assigned to adulterous relationships, the strict proof of husband’s

314 Tripat v. Vimla, AIR 1959 J&K 72.

315 Anandi v. Raja, AIR 1973 Raj. 94.
316 Agnes v.Ashley, AIR 1964 cal.28; Kusum, FAMILY LAW LECTURES, FAMILY LAW-I,
4th ed. 2017, pp. 62-81.
317 Ravindraprasad v. Sita Devi, AIR 1986 Pat. 128; Kusum, FAMILY LAW LECTURES,
FAMILY LAW-I, 4th ed. 2017, p. 65.
318 Virupakshi v. Smt. Sarojini, AIR 1991 Kant. 128.

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non-access is mandatory. In Dhedu Sheoram v. Mt. Malhanbai,319 the husband alleged
that there is a family custom that until and unless a particular ceremony, there can be
no sexual relationship, and in this case, since that ceremony was not performed when
the child could have been conceived; it was the evidence of non-access of the
husband. The court however rejected this argument and held that this is no proof of
non-access320. Where there is a contract made by a husband relating to bigamous
marriage after the commencement of this act his first wife has all rights to file a
petition of divorce under this section because second marriage of her husband is void
and its consummation amounts to adultery.321

The madras high court set aside an order of the lower court wherein on the allegation
of adultery of the wife divorce was sought. The court held that mere allegations by the
husband without details were not sufficient to prove adultery. The husband alleged
that on three occasions he saw his wife talking with other persons. No physical
contact was alleged and all this happened during the day time when all the three
grown up children of the petitioner were less treated as a member of that family. Even
the witnesses did not speak of living separately. Moreover husband permitted his two
grown up daughters to live with his wife. This itself belied the allegations of
adulterous life on the part of wife. Since the order of divorce, the High Court held,
was based on assumptions and surmises it was liable to be set aside.322

Condonation of adultery: Sec 23(1)(b) says that if the petitioner has been accessory
or connives or condones the guilt of erring spouse then the petition fails. Where a
husband (or wife) continues to live with other spouse alleged to have committed
adultery even after discovering the fact, then condonation is presumed. It would be
repugnant to decency and good sense to allow a husband to say that he had sexual
intercourse with his wife and yet did not forgive her because he did not intend to remit
the wrong done to him; he would be thereby approbating and reprobating the
marriage.323

319 AIR 1964 MP252.

320 Kusum, FAMILY LAW LECTURES, FAMILY LAW-I, 4th edn. 2017, p. 80.
321 Rajeev v.Bbaburao, AIR 1996 Mad. 262.
322 Mayank Madhav, SINGHAL’S FAMILY LAW-I, 3rd ed. 2013, p. 134.
323 Ibid.

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The petition of divorce filed by a husband cannot be accepted if he condones the
adulterous act of wife even for the sake of dignity of his family.324

Can Married women be punished for adultery?

The Hindu marriage act, 1955, says nothing about the third party sexual act with
whom will attract the application of this provision. Under sec. 497 of the Indian Penal
Code, 1860, “adultery means a man having sex with a married women for which he
alone (not the woman) can be prosecuted.” A recent Supreme Court judgment325 on
penal liability for cruelty to wives throws light on the liability of an ‘intruder’ guilty
of ‘alienation of affection’ between spouses.326 The Top Court bench of Sh. Dipak
mishra, C. J., A. M Khanwilkar and D.Y. Chandrachud, JJ.327, issued a notice on a
writ petition challenging the validity of section 497 of Indian Penal Code, 1860. It
stated that the section extends immunity to women from the prosecution for the
offence of adultery, even as an abettor. It was contented by the petitioner’s advocate
that the judgment in Yusuf Abdul Aziz ,s Case328 may not be deemed fit, as it states, “
Sex is a sound classification and although there can be no discrimination in general
on that ground, the constitution itself provides for special provisions in the case of
women and children. Article 14 and 15 read together validate the impugned clause in
section 497 Indian penal Code, exempting the woman from prosecution even as an
abettor.” He also referred to the judgment of the Apex Court, in Sowmithri visnu’s
case329, “we cannot accept that in defining the offence of adultery so as to restrict the
class of offenders to men, any constitutional provision is infringed. It is commonly
accepted that it is the man who is the seducer and not the woman”, calling it not
acceptable. Even the decision of Supreme Court330 in V. Revathi v. Union of India &
others, was also contended unacceptable. The learned counsel relied on the judgment
in W. Klayani v. State,331wherein it was observed that the provisions of section 497
IPC have come under criticism from various quarters for gender bias in so far as it

324 Virupkashi v. Smt. Sarojini, AIR 2002 Raj. 128

325 Pinakin Mahipatray Raval v. State of Gujrat, (2013) 10 SCC 48.
326 Tahir Mahmood, PRINCIPLES OF HINDU LAW, 2014, p.144.
327 Joseph Shine v. Union of India, (2018) 2 SCC 189.
328 AIR 1954 SC 321.
329 AIR 1985 SC 1618.
330 (1988) 2 SCC 72.
331 (2012) 1 SCC 358.

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provides that only man may be prosecuted for the offence of adultery and even an
adult women shall be exempted.332 The bench observed, “Prima facie, we find section
497 gives relief to the woman, though the offence of adultery is committed by both the
man and the woman. Only one party is held liable for the criminal offence. It remains
to be seen if the conferment of affirmative rights on the woman can go to the extent of
treating her as a victim to the peril of the husband.” The Bench in its order stated
that, “Prima facie, on a perusal of Section 497 of the Indian Penal Code, we find that
it grants relief to the wife by treating her as a victim. It is also worthy to note that
when an offence is committed by both of them, one is liable for the criminal offence
but the other is absolved. It seems to be based on a societal presumption. Ordinarily,
the criminal law proceeds on gender neutrality but in this provision, as we perceive,
the said concept is absent. That apart, it is to be seen when there is conferment of any
affirmative right on women, can it go to the extent of treating them as the victim, in all
circumstances, to the peril of the husband. Quite apart from that, it is perceivable
from the language employed in the Section that the fulcrum of the offence is destroyed
once the consent or the connivance of the husband is established. Viewed from the
said scenario, the provision really creates a dent on the individual independent
identity of a woman when the emphasis is laid on the connivance or the consent of the
husband. This tantamounts to subordination of a woman where the Constitution
confers equal status. A time has subordination of a woman where the Constitution
confers equal status. A time has come when the society must realise that a woman is
equal to a man in every field. This provision, prima facie, appears to be quite archaic.
When the society progresses and the rights are conferred, the new generation of
thoughts spring, and that is why, we are inclined to issue notice.”333The next order in
this case was passed and it states that there is a need of reconsideration of Law
relating to adultery by a larger bench. The order states as under:

“As indicated in our earlier order, we had noted that the provision
seems quite archaic and especially, when there is a societal progress.

332 Mehal Jain, “Statutory immunity to women from prosecution for adultery- SC Admits writ
petition challenging the vires of section 497 IPC”, available at
http://www.livelaw.in/statutory-immunity-women-prosecution-adultery-sc-admits-writ-
petition-challenging-vires-section-497ipc/, (visited on February 8, 2018 ).
333 Ibid.

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 Thus analyzed, we think it appropriate that the earlier judgments
required to be reconsidered regard being had to the social
progression, perceptual shift, gender equality and gender sensitivity.
That apart, there has to be a different kind of focus on the affirmative
right conferred on women under Article 15 of the Constitution. In view
of the aforesaid, we think it appropriate to refer the matter to a
Constitution Bench. Let the papers be placed before the learned Chief
Justice of India on the administrative side for constitution of the
appropriate larger Bench”.334 The court ordered reconsideration in
this matter.

4.4.2 Cruelty as a ground of Divorce

Matrimonial matters are delicate matters of human and emotional relationship.

Marriage is an institution which demands respect, love, affection, mutual
understanding and mutual trust with reasonable amount of adjustments with the
spouse. Social norms are also important in marriage. Cruelty has been considered as a
ground for matrimonial relief in India under all matrimonial law statutes. The legal
concept of cruelty kept changing from time to time and from society to society
according to the change in social and economic circumstances. Under early English
law the considerable essential element for cruelty was the Intention but it is not so
under Modern law. All the matrimonial statutes in India have given the concept of
cruelty a special place as a ground of matrimonial relief.

 Sec 13 of Hindu Marriage Act provides Divorce as a matrimonial relief on

some grounds and bears cruelty as an important ground.
 Out of 12 grounds of Divorce provided under Special Marriage Act, 1954,
Cruelty is the one.
 The dissolution of Muslim Marriage Act, 1939, has also considered cruelty as
one of the 8 grounds provided to a woman, married under Muslim law, to
obtain a decree of divorce.

334 Ibid.

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  Cruelty is one of the 11 grounds of Divorce under Sec 32 of Parsi Marriage
and Divorce Act, 1936.
 Adultery coupled with Cruelty is one of the 7 grounds provided for dissolution
of marriage of Christians under sec 10 of Indian divorce act, 1869.

None of these statutes, however, define cruelty. In fact it has not been defined
anywhere because it has been noticed that human nature and conduct are different. It
is likely to happen that what we consider cruelty today may not have been considered
earlier or may not be taken as such in future. It has been aptly remarked by the
Supreme Court in Ravi Kumar v. Julmi Devi,335 that cruelty has no definition and its
definition is not possible. As in matrimonial cases it can be of infinite variety. In other
words the concept of cruelty is very subjective. It may vary with place, time, social
and economic conditions of society and persons. This is the reason that legislature has
not defined cruelty in any of the statutes and has left it to the judgment of the
judiciary to define according to the particular conditions and circumstances of
particular persons. The Indian judiciary is in the starting stage of developing a steady
position on cruelty as a ground for divorce. The courts adopt smooth ways while
dealing with the issue of cruelty. At the same time, it is crucial to understand the
judicial approach to deciding whether the factual matrix merits a decree of judicial
separation or divorce. The evolution of cruelty as a ground for divorce encompasses
its varying definitions and prerequisites of proof of reasonable apprehension.336 In a
recent Judgement the Supreme Court said that, “A Hindu son can divorce his wife for
the cruelty of trying to pry him away from his “pious obligation” to live with his aged
parents and provide shelter to them”.337 The Supreme Court in Raj talreja v Kavita
talreja,338said about the definition of cruelty that Cruelty can never be defined
exactly. What amounts to cruelty will depend upon the facts and circumstances of
each case. Pankaj Mahajan v. Dimple @ Kajal,339it was held that, “giving repeated
threats to commit suicide amounts to cruelty”. The supreme Court in Vijaykumar

335 (2010) I DMC 411 SC.

336 Ananya Khanna, “Case Analysis Of Manisha Tyagi v Capt. Deepak Kumar”, available at
https://www. lawctopus.com/academike/case-analysis-of-manisha-tyagi-v-capt-deepak-
kumar/, (visited on Feb17, 2018).
337 Narendra v. K. Meena, 2016 SCC Online SC 1114.
338 AIR 2013 Raj. 148.
339 (2011) 12 SCC 1.

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Ramchandra Bhate v. Neela Vijaykumar Bhate,340 has held that, “The question that
requires to be answered first is as to whether the averments, accusations and
character assassination of the wife by the appellant husband in the written statement
constitutes mental cruelty for sustaining the claim for divorce under Section 13(1)(i-
a) of the Act. The position of law in this regard has come to be well settled and
declared that levelling disgusting accusations of unchastity and indecent familiarity
with a person outside wedlock and allegations of extramarital relationship is a grave
assault on the character, honour, reputation, status as well as the health of the wife.
Such aspersions of perfidiousness attributed to the wife, viewed in the context of an
educated Indian wife and judged by Indian conditions and standards would amount to
worst form of insult and cruelty, sufficient by itself to substantiate cruelty in law,
warranting the claim of the wife being allowed. That such allegations made in the
written statement or suggested in the course of examination and by way of cross-
examination satisfy the requirement of law has also come to be firmly laid down by
this Court. On going through the relevant portions of such allegations, we find that no
exception could be taken to the findings recorded by the Family Court as well as the
High Court. We find that they are of such quality, magnitude and consequence as to
cause mental pain, agony and suffering amounting to the reformulated concept of
cruelty in matrimonial law causing profound and lasting disruption and driving the
wife to feel deeply hurt and reasonably apprehend that it would be dangerous for her
to live with a husband who was taunting her like that and rendered the maintenance
of matrimonial home impossible.”

Definition of Cruelty

The legislature has never made an attempt to define cruelty as such. Indian as well as
English Courts has emphasized that in the backdrop of spousal relationship, acts or
conduct constituting cruelty are infinitely variable, and then in the ever changing and
variable social context with increasing complexities of modem life, no attempt at
defining cruelty is likely to succeed.

340 2003 (6) SCC 334.

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According to the Royal Commission report on Marriage and Divorce (1956), "We
consider that it is not proper to have a detailed definition, but to allow the concept of
cruelty to remain open to such adjustments as it is desirable to make through the
media of judicial decisions so as to accord with the changing social conditions.”

In Williams v. Williams341, Lord Peace observed: "It is impossible to give a

comprehensive definition of cruelty, but when reprehensible conduct or departure
from the normal standards of conjugal kindness causes injury to health or an
apprehension of it, it is, I think, cruelty if a reasonable person, after taking due
account of the temperament and all other particular circumstances would consider
that the conduct complained of is such that this spouse should not be called on to
endure it".

However, their Lordships made it clear that they were not holding that intention is
irrelevant, but merely that it is not an essential ingredient of cruelty.

Black’s Law Dictionary defines; "Cruelty" as the intentional and malicious infliction
of physical suffering upon living creatures particularly human beings or, as applied
to the latter, the wanton, malicious and unnecessary infliction of pain upon the body
or the feeling and emotions".

The accepted legal meaning of ‘cruelty’ both in England and as well as in India is the
expression as opined by Lopes and Lindley jj in Russell v. Russell,342 “Cruelty is
generally described as conduct of such a character as to have caused danger to life,
limb or health, bodily or mental, or as to give rise to a reasonable apprehension of
such danger”.

The case illustrated the definition of cruelty very well but did not give any specific
definition of it. Every matrimonial conduct, which may cause annoyance to the other,
may not amount to cruelty. Mere trivial irritations, quarrels between spouses, which
happen in day to day married life, may also not amount to cruelty. Cruelty in
matrimonial life may be of unfounded variety, which can be subtle or brutal. It may

341 (1964) AC 698.

342 (1897) AC 395.

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be words, gestures or by mere silence, violent or non-violent.343 It lays down
“Cruelty, as in the case of fraud, cannot be defined by exact definition, but statements
can be found as to the elements constituting it in a particular case. The Court is to
proceed on the principles and rules on which the Ecclesiastical Courts acted before
1857. The cases are not at all in accord, but they establish on the whole that it is not
possible to lay down an exhaustive definition, that the decision should be looked at as
illustrations each depending on its own facts. Some negative limitations may be
derived from the cases; that danger is the ground up on which the Court has
generally acted; that this danger may consist not merely of the apprehension that the
accused person may inflict bodily injury, but also that he may provoke the other
spouse to commit cruelty....The principle is that cruelty consists of the willful
infliction of bodily or mental pain344.

It further says “There is no legal limitation to the character of the cruelty but the
Courts will consider as an important element of the conduct in question whether it is
likely to produce injury to health; or whether it is calculated to make the discharge of
matrimonial duties practically impossible or unendurable.”345

So here court has clearly stated that the consequences that occur after the infliction of
cruelty, i.e. injury to health either bodily or mentally. To constitute cruelty there needs
to be an element of conduct and the conduct complained of must be grave and
weighty in nature so that one may come to conclusion that the petitioner cannot be
reasonably expected to live with his/her spouse. In Simpson v. Simpson346, the court
observed that: “when the legal conception of cruelty is described as being conduct of
such a character as to cause danger to life, limb or health, bodily or mental, or to give
rise to a reasonable apprehension of such danger, it is vital to bear in mind that it
comprises two distinct elements: first, the ill treatment complained of, and secondly,
the resultant danger or the apprehension thereof. Thus, it is inaccurate, and liable to

343 Law Articles, “Cruelty as a ground for Divorce”, available at

http://www.legalservicesindia.com/article/article /cruelty-as-a-ground-for-divorce-1900-
1.html, (visited on March 25, 2018).
344 (1897) A.C- 395,401.
345 Russel v. Russel (1897) AC 305.
346 (1951) 1 ALL ER 955.

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lead to confusion, if the word cruelty is used as descriptive only of the conduct
complained of, apart from its affect on victim.

It has been universally felt and accepted that ‘cruelty’ should not be defined; as any
attempt on it may lead to auto-limitation and restrictive operation of the concept. It is
true that, as the modern society becomes more complex, so emerges the techniques
and ways of inflicting strains and hardships in matrimonial life; and, therefore, any
attempt of putting the concept into a tight compartment would frustrate the
matrimonial remedy based on it. The universal thinking is that the concept should be
left free and unrestricted so that any act may be interpreted as amounting to cruelty.
This has, however, led to unpredictability and speculation. If the established definition
is accepted, it will mean that legislative wisdom in our country is either incapable or
unimaginative in providing a definition of the term.

A workable definition may accordingly be suggested as under.

Cruelty shall mean and include: (a) any mental pain sufficient to cause or which
causes ;

(i) hurt to the sentiments; or

(ii) fear, agony and harassment; or

(iii) shock and surprise; or

(iv) any disease relating to gastro or/and nervous system; or

(v) depression, listlessness, insomnia or high/low blood pressure; or

(vi) any disease relating to heart, mind, or skin; or

(vii ) divulging a family or matrimonial secret; or

(viii) calling names or hurling abuses; or

(b) any physical pain or infliction sufficient to cause or which causes ;

(i)grievous hurt; or

(ii) beating or use of force of any kind; or

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 (iii) restrictions on movements sufficient to cause wrongful restraint or
wrongful confinement; or (iv) restrictions on association amounting to denial
of fundamental rights; or

(v) denial of food, shelter or other physical facilities; or

(vi) beating or causing physical pain or denial of food, shelter and other
physical facilities to the near and dear ones; or

(c) moral injury sufficient to cause or which causes :

(i) attack and/or loss of reputation; or

(ii) denigration or scandal; or

(iii) suspicion against character; or

(iv) false charge of habitual drinking or use o f any intoxicant sufficient to

cause annoyance or danger to the petitioner; or

(v) false charge of keeping concubine or paramour or moving or associating

with women or men of ill-repute and bad character without reasonable excuse
thereof; or

(vi) aspertions on or the unwarranted accusations of the personality and

achievements; or

(vii) tarnishing of the image; or

(viii) false allegations against the virtues, acts and conduct; or (ix) false
accusation of leading an immoral life; or

(d) social harm and /or degradation by:

(i) creating or propagating contempt in the society; or

(ii) making false accusations to the master, the employer, or the guardian with
intention to harm the petitioner; or

(iii) defamation;

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 (iv) encouraging or inciting people for the social boycott of the petitioner; or

(v) calling the petitioner names, in the public; or

(vi) obstructing or attempting to obstruct either himself/herself or in

association with others the petitioner from the Use of family, community or
public home, eating houses, parks, wells, places of worship and entertainment;
or

(vii) encouraging, propagating or inciting castism, regionalism, linguism,

clannisiipess and untouchability; or

(e) ignoring, obstructing or attempting to obstruct family traditions, practices and

culture; or

(f) causing annoyance, irrtiation and pin-pricks by words, acts or conduct

sufficient to call upon the mental and physical health; or

(g) insults in private or in public by words, acts or conduct; or

(h) unreasonable or excessive demands on the economy of the family or misuse or

abuse of the family income or property; or

(i) refusal to normal intercourse; or

(j) nagging; or

(k) political incompatability; or

(l) indifference to nationalism and/or apathy towards the national good; or

(m) making the marriage impossible to be endured and rendering life almost
unbearable.

The Courts on cruelty:

There are various grounds for claim on basis of cruelty, which are defined by the
courts in their various judgments, and the courts provide a legal backup for the
sufferer in this sense. They have given following explanation within the scope of
cruelty under section 13(1)(ia);

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  It is sufficient that if the cruelty is of such type that it becomes impossible for
spouses to live together.
 The leveling of false allegation by one spouse about the other having alleged
illicit relations with different persons outside wedlock amounted to mental
cruelty.
 A husband does not ask his wife that he does not like her company, but she
can or should stay with other members of family in matrimonial home. Such
an attitude is cruelty itself on the part of husband.
 Social torture by anyone of the spouse to other, found to be as mental torture
and cruelty.
 If the intention to harm, harass or hurt could be inferred by the nature of the
conduct or brutal act complained of, cruelty could be easily established. But
the absence of intention should not make any difference in the case. The cruel
treatment may also result from the cultural conflict between the parties.
 A party can cause mental cruelty when the other spouse levels an allegation
that the petitioner is a mental patient, or that he requires expert psychological
treatment to restore his mental health.347
The courts have shown their intention regarding cruelty in many case laws
which will be discussed further.

Types of cruelty:

There are legally two types of cruelty (i) Physical cruelty and (ii) Mental cruelty. Both
mental and physical cruelties are included as cruelty in modern times. While physical
cruelty is easy to determine, it is difficult to say what mental cruelty consists of.
Perhaps, mental cruelty is lack of such conjugal kindness, which inflicts pain of such
a degree and duration that it adversely affects the health, mental or bodily, of the
spouse on whom it is inflicted.

Physical Cruelty -All the acts of violence against another spouse resulting in injury to
body, limb or health or causing a reasonable apprehension thereto, have been

347 A Law student, “Cruelty as a ground for Divorce”, available at

http://www.legalservicesindia.com/article/ article/cruelty-as-a-ground-for-divorce-1900-
1.html, (visited on January 21, 2018).

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traditionally considered as physical cruelty348. Thus, where bodily injury is inflicted, it
is easy to conclude that cruelty has taken place. The Courts do not find any difficulty
in determining physical cruelty. A single act of physical violence may amount to
cruelty.349 The Court in the case of Laloo v. Bachil350 had laid down that in order to
constitute physical violence; one or two acts are more than sufficient. Thus, even a
single act of violence may be so grave and weighty, that it could satisfy the test of
cruelty but problem would arise in the cases where minor acts of physical violence are
alleged by the party. Even in these cases there is no problem. It can be determined by
keeping in view number of factors such as age, environment, physical and mental
condition, status, education etc. It is a well settled principle, that in order to determine
cruelty whole of the matrimonial relations must be taken into consideration. The facts
which are alleged by the parties must not be taken in isolation but cumulatively. Thus,
ill-treatment, beating, causing bruises on the body etc. are all instances of physical
cruelty.

In Britt, v. Britt351, the husband had left his home and whenever he used to meet his
wife, he used to hit her. It was a case coming under cruelty. In Chander Kanta v. Dial
Chand352 the husband dragged his wife forcibly to accompany him. Thus, it is a case
coming under physical cruelty. In Ram Pal v. Chand Ram, the wife was severely
beaten by the husband and she had reported the matter in the police. When a suit was
filed, these things were corroborated by daily dairy maintained by the police and by
medical evidence. It was a case of physical cruelty353.

In Savitri Pandey v. Prem Chandra Pandey354 the court while observing the question
regarding cruelty said that, ‘’Treating the petitioner with cruelty is a ground for
divorce under sec 13(1) (ia) of the Act. Cruelty has not been defined under the Act but
in relation to matrimonial matters it is contemplated as a conduct of such type which
endangers the living of the petitioner with the respondent. Cruelty consists of acts

348 Russel v. Russel (1897) AC 305.

349 Mary v. Raghvan AIR 1979 M.P.40.
350 AIR 1986 Raj. 49.
351 (1953) 3 A11ER 769.
352 1968 Cur LJ 442.
353 1980 HLR65.
354 (2002) 2 SCC 73.

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which are dangerous to life, limb or health. Cruelty for the purpose of the Act means
where one spouse has so treated the other and manifested such feelings towards her
or him as to have inflicted bodily injury, or to have caused reasonable apprehension
of bodily injury, suffering or to have injured health. Cruelty may be physical or
mental. Mental cruelty is the conduct of other spouse which causes mental suffering
or fear to the matrimonial life of the other. "Cruelty", therefore, postulates a
treatment of the petitioner with such cruelty as to cause a reasonable apprehension in
his or her mind that it would be harmful or injurious for the petitioner to live with the
other party. Cruelty, however, has to be distinguished from the ordinary wear and
tear of family life. It cannot be decided on the basis of the sensitivity of the petitioner
and has to be adjudged on the basis of the course of conduct which would, in general,
be dangerous for a spouse to live with the other. In the instant case both the trial
court as well as the High Court have found on facts that the wife had failed to prove
the allegations of cruelty attributed to the respondent. Concurrent findings of fact
arrived at by the courts cannot be disturbed by this Court in exercise of powers
under Article 136 of the Constitution of India. Otherwise also the averments made in
the petition and the evidence led in support thereof clearly shows that the allegations,
even if held to have been proved, would only show the sensitivity of the appellant with
respect to the conduct of the respondent which cannot be termed more than ordinary
wear and tear of the family life”.

Mental cruelty-The Hindu marriage act has not exhaustively defined mental cruelty.
As enacted originally, Under the Hindu Marriage Act, 1955, cruelty was one of the
grounds for obtaining judicial separation, but it was not a ground for obtaining
divorce. After the amendment of Hindu Marriage Act, The cruelty was made a ground
for both divorce and judicial separation.

Under clause 13(1)(a) of Hindu marriage Act,1955, only cruelty has been mentioned
and it is not specified whether it is mental or physical cruelty. The courts have
interpreted it in a broader prospective and said that it includes both physical as well as
mental cruelty.

It is not possible to define mental cruelty exhaustively. Prior to the amendment, the
Supreme Court examined this concept in the landmark case named Dastane v.

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Dastane355. Here in it was observed that the conduct of the respondent should be such
to cause reasonable apprehension in the mind of the petitioner to live with the
respondent. It was also pointed out that unlike in England, here it is not necessary to
prove that the respondent has treated the petitioner with cruelty and reasonable
apprehension in the mind of the plaintiff shall suffice.

After the amendment, the courts were flooded with applications of divorce on the
grounds of mental cruelty and the courts were to do the tedious task of defining
cruelty.

As observed from Lord Pearce356 “It is impossible to give a comprehensive definition

of cruelty, but when reprehensible conduct or departure from the normal standards of
conjugal kindness causes injury to health or an apprehension of it, it is, I think,
cruelty if a reasonable person, after taking due account of the temperament and all
the other particular circumstances would consider that the conduct complained of is
such that this spouse should not be called on to endure it.”

The Supreme Court in Samar Ghosh v. Jaya Ghosh357 tried to enumerate instances
that constituted mental cruelty. These instances were only illustrated and not
exhaustive.

They said:

“(i) On consideration of complete matrimonial life of the parties, acute mental

pain, agony and suffering as would not make possible for the parties to live
with each other could come within the broad parameters of mental cruelty.

(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it

becomes abundantly clear that situation is such that the wronged party cannot
reasonably be asked to put up with such conduct and continue to live with
other party.

355 AIR 1975 SC 1534.

356 695; All ER p. 992.
357 2007(4) SCC 511.

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(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent
rudeness of language, petulance of manner, indifference and neglect may
reach such a degree that it makes the married life for the other spouse
absolutely intolerable.

(iv) Mental cruelty is a state of mind. The feeling of deep anguish,

disappointment, frustration in one spouse caused by the conduct of other for a
long time may lead to mental cruelty.

(v) A sustained course of abusive and humiliating treatment calculated to

torture, discommode or render miserable life of the spouse.

(vi) Sustained unjustifiable conduct and behaviour of one spouse actually

affecting physical and mental health of the other spouse. The treatment
complained of and the resultant danger or apprehension must be very grave,
substantial and weighty.

(vii) Sustained reprehensible conduct, studied neglect, indifference or total

departure from the normal standard of conjugal kindness causing injury to
mental health or deriving sadistic pleasure can also amount to mental cruelty.

(viii) The conduct must be much more than jealousy, selfishness,

possessiveness, which causes unhappiness and dissatisfaction and emotional
upset may not be a ground for grant of divorce on the ground of mental
cruelty.

(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life
which happens in day to day life would not be adequate for grant of divorce
on the ground of mental cruelty.

(x) The married life should be reviewed as a whole and a few isolated
instances over a period of years will not amount to cruelty. The ill-conduct
must be persistent for a fairly lengthy period, where the relationship has
deteriorated to an extent that because of the acts and behaviour of a spouse,
the wronged party finds it extremely difficult to live with the other party any
longer, may amount to mental cruelty.

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 (xi) If a husband submits himself for an operation of sterilization without
medical reasons and without the consent or knowledge of his wife and
similarly if the wife undergoes vasectomy or abortion without medical reason
or without the consent or knowledge of her husband, such an act of the spouse
may lead to mental cruelty.

(xii) Unilateral decision of refusal to have intercourse for considerable period

without there being any physical incapacity or valid reason may amount to
mental cruelty.

(xiii) Unilateral decision of either husband or wife after marriage not to have
child from the marriage may amount to cruelty.

(xiv) Where there has been a long period of continuous separation, it may
fairly be concluded that the matrimonial bond is beyond repair. The marriage
becomes a fiction though supported by a legal tie. By refusing to sever that tie,
the law in such cases, does not serve the sanctity of marriage; on the contrary,
it shows scant regard for the feelings and emotions of the parties. In such like
situations, it may lead to mental cruelty”. 358

As they are only for illustrative purposes only, hence the courts have to interpret
whether there has been any mental cruelty or it is mere wear and tear of marital life.
Only grave and weighty acts on the part of the respondent constitute mental cruelty.

Following are some conducts which have been held to constitute mental cruelty.
Demand for dowry by the husband and his family is mental cruelty. Wife abusing her
husband and using foul language is mental cruelty. Not visiting husband who was
seriously ill constituted mental cruelty. Abstaining from making any sexual relation
without any probable cause constitutes cruelty.

In a case, the wife cooked food only for herself but not for her husband and the apex
court held it to constitute mental cruelty on the husband.359

358 Ibid.
359 2007(4) SCC 511.

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The serious allegations and counter allegations without proof thereof have been held
to have constituted cruelty360, as it was found that the marriage after such allegations
could not in any circumstance be continued any further361.

Thus Lord Denning has very well said in Sheldon v. Sheldon362 “The categories of
cruelty are not closed’. Each case may be different. We deal with the conduct of
human beings who are not generally similar. Among the human beings there is no
limit to the kind of conduct which may constitute cruelty. New type of cruelty may
crop up in any case depending upon the human behavior, capacity or incapability to
tolerate the conduct complained of. Such is the wonderful realm of cruelty”

The important things to be understood regarding cruelty are363 -

(a) Whether the intention is an essential element to constitute cruelty? In P.L. Sayal
v. Sarla Rani 364 Case the parties who married and had two children, but it turned out
to be an unhappy marriage. The wife consulted a fakir who gave her some love-potion
to be administered to the husband. She administered the same to the husband which
made him seriously ill. The husband had to be admitted to the hospital. After
discharging from the hospital, the husband petitioned for judicial separation on the
ground of wife’s cruelty. The court granted the decree saying that the husband could
not be expected to live in the constant fear that it may happen again and the intention
of the wife was not important. The Court did not considered intention to be cruel as an
essential element of cruelty as a ground for divorce.

(b) Whether act or conduct constituting cruelty is aimed at the petitioner? The
courts are of the view that cruelty should be aimed at the petitioner. In Trimbak
Narayan Bhagwat v. Kumudevi Trimbak Bhagwat365 , the husband lost his mental
balance and had to be sent to a mental home. On his release from the home, he stayed
at the matrimonial home though he had not regained his mental balance completely.

360 Chanderkala Trivedi v. Dr. S.P. Trivedi, JT 1993 (4) SC 644.

361 V. Bhagat v. Mrs.D. Bhagat, AIR 1994 SC 710.
362 Sheldon v. Sheldon, 1966 (2) All.E.R. p. 257.
363 Law Teacher, “Family Law Research Paper Common Grounds For Divorce”, available at
https://www. lawteacher.net/free-law-essays/family-law/family-law-research-paper-divorce-
law-essays.php, (visited on January 21, 2018).
364 AIR 1961 Punj 125.
365 AIR 1957 Bom 80.

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One day, he attempted to strangulate the wife’s brother and the next day, one of his
own children. The wife filed for judicial separation on the grounds of cruelty. It was
held that in mental cruelty, it was not important whether the act or conduct was aimed
at the petitioner or some near and dear ones of the petitioner.

(c) Whether the act or conduct constituting cruelty emanates from the
respondent?-In India, most couples live in joint families, and the in-laws subject
many times wives to ill treatment. In Shyamsunder v. Santadevi366 , the wife, soon
after the marriage was severely ill treated by her in-laws, while the husband stood
idly, taking no steps to protect his wife. The court held that the intentional omission to
protect his wife amounts to cruelty on the husband’s part.

Emerging Trends

There has been a heap of Supreme Court decisions on the issue of cruelty. The Apex
Court has time to time delivered apt and relevant judgments on cruelty as a ground of
Divorce. As it has been discussed earlier, that, the cruelty cannot be defined and the
answer to the question that what amounts to cruelty may vary case to case. The
Supreme court in V Bhagat v. D Bhagat,367 said that, “What is cruelty in one case may
not amount to cruelty in another case and it has to be determined in each case
keeping in the view the facts and circumstances of the case. That apart, the
accusations and allegations have to be scrutinized in the context in which they are
made.” The court is of the view that assessment of cruelty must be made on the basis
of educational background, social norms and social values of the parties.368 The
decision of court must be based on the “intensity, gravity and stigmatic impact of the
allegedly cruel behavior”.369

In Vishwanath Agarwal v Sarla Agarwal,370 the Supreme Court on the question that
who could be produced in the court as a witness, stated that, “In a matrimonial
dispute it would be inappropriate to expect outsiders to come and depose. The family
members and sometimes the relatives, friends and neighbours are the most natural

366 AIR 1962 Ori 50.

367 AIR 1994 SC 710.
368 GVN Kameswara Rao v. G Jabili, AIR 2002 SC 476.
369 Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate, AIR 2003SC 2462.
370 AIR 2012 SC 2586.

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witnesses. The veracity of the testimony is to be tested on objective parameters and
not to be thrown overboard on the ground that the witnesses are related to either of
the spouses.”

Supreme Court guidelines on 498A Indian Penal Code on cruelty

Under section 498A of Indian penal code 1860, cruelty to a wife by her husband or
his relatives is an offence punishable with imprisonment up to three years and fine.
The provision is supplemented by sec 113 A of Indian Evidence Act, 1872, which
says that a wife’s death within seven years of marriage coupled with allegations of
cruelty against her husband or his relatives would raise presumption of abetment for
suicide on their part.371 The Supreme Court found that there are more cases abusing
provisions of section 498A of IPC then using it according to the reports of National
Crime Record Bureau, while deciding, Rajesh Sharma & others v. State of U.p.&
another372, the court said that, “according to Reports of National Crime Record
Bureau in 2005, for a total 58,319 cases reported under Section 498A IPC, a total of
1,27,560 people were arrested, and 6,141 cases were declared false on account of
mistake of fact or law. While in 2009 for a total 89,546 cases reported, a total of
1,74,395 people were arrested and 8,352 cases were declared false on account of
mistake of fact or law.

That according to Report of Crime in India, 2012 Statistics, National Crime Records
Bureau, Ministry of Home Affairs showed that for the year of 2012, a total of 197,762
people all across India were arrested under Section 498A, Indian Penal Code. The
Report further shows that approximately a quarter of those arrested were women that
is 47,951 of the total were perhaps mother or sisters of the husband. However 6 most
surprisingly the rate of charge-sheet filing for the year 2012, under Section 498A IPC
was at an exponential height of 93.6% while the conviction rate was at a staggering
low at 14.4% only. The Report stated that as many as 3, 72,706 cases were pending
trial of which 3,17,000 were projected to be acquitted. 11. That according to Report
of Crime in India, 2013, the National Crime Records Bureau further pointed out that
of 4, 66,079 cases that were pending in the start of 2013, only 7,258 were convicted

371 Tahir Mahmood, PRINCIPLES OF HINDU LAW, 2014, p.151.

372 Cr A No. 1265 of 2017.

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while 38,165 were acquitted and 8,218 were withdrawn. The conviction rate of cases
registered under Section 498A IPC was also a staggering low at 15.6%.”373

Referring to Sushil Kumar Sharma v. Union of India374, Preeti Gupta v. State of

Jharkhand375, Ramgopal v. State of Madhya Pradesh376, Savitri Devi v. Ramesh
Chand377, it was submitted that misuse of the provision is judicially acknowledged
and there is need to adopt measures to prevent such misuse. The Madras High
Court378 directed issuance of following guidelines:

“It must also be borne in mind that the object behind the enactment of
Section 498-A IPC and the Dowry Prohibition Act is to check and curb
the menace of dowry and at the same time, to save the matrimonial
homes from destruction. Our experience shows that, apart from the
husband, all family members are implicated and dragged to the police
stations. Though arrest of those persons is not at all necessary, in a
number of cases, such harassment is made simply to satisfy the ego
and anger of the complainant. By suitably dealing with such matters,
the injury to innocents could be avoided to a considerable extent by the
Magistrates, but, if the Magistrates themselves accede to the bare
requests of the police without examining the actual state of affairs, it
would create negative effects thereby, the very purpose of the
legislation would be defeated and the doors of conciliation would be
closed forever. The husband and his family members may have
difference of opinion in the dispute, for which, arrest and judicial
remand are not the answers. The ultimate object of every legal system
is to punish the guilty and protect the innocents.” 379

373 Reports of National Crime Record Bureau, available at:

http://www.supremecourtofindia.nic.in/supremecourt/ 2017/6593/6593_2017_Order_27-Jul-
2017.pdf, (visited on February 17, 2018).
374 (2005) 6 SCC 281
375 (2010) 7 SCC 667.
376 (2010) 13 SCC 540.
377 ILR (2003) I Delhi 484.
378 M.P. No.1 of 2008 Cr. O.P. No.1089 of 2008, August 4, 2008.
379 Harshika Jain, “The Supreme Court in Rajesh Sharma v. State of U.p. – justice to the accused,
or chilling effect?”, available at http://www.sociolegalreview.com/the-supreme-court-in-
rajesh-sharma-v-state-of-u-p-justice-to-the-accused-or-chilling-effect/#_ftn10, (visited on
February 17, 2018).

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The Court identifies two problems in need of remedy, in the context of the use of S.
498-A

“i) Uncalled for implication of husband and his relatives and their arrest;
ii) Continuation of proceedings in spite of settlement between the parties since
the offence is non-compoundable, and uncalled for hardship to parties on that
account.”380

Problem i) is strictly an issue of improper, and illegal exercise of the power of arrest
by the police officers signifying a possible failure of criminal procedure that is
supposed to circumscribe substantive criminal law. A graver problem of ‘misuse’
through illegal, or improper arrests is also reported under S. 377, IPC.381 However, it
would be fallacious to address the general issue of abuse of arrest powers by the
police through an attack on ‘misuse’ of S. 498-A by the victims of domestic violence.
While the problem is one of procedure and general law enforcement, the Court’s
solution is one that victimizes the perpetrator of the violence, in place of the victim,
producing a chilling effect on criminal proceedings against such violence. The
rhetoric of ‘misuse’, created due to superficial analyses of conviction statistics,
creates a legal system a priori adverse to the victim at every step. It is this legal
system that manifests in the present guidelines.

This general narrative of improper arrests has also led to its conflation with ‘false
FIRs’ or harassment of the husband’s kin by the victim (as opposed to harassment
through arrest by the police). This has led to judgments like Chander
382
Bhan v. State being cited (with implicit approval, or at least no clear objection) in
the present case. Among other things, Chander Bhan held that registration
of FIRs must not be done in a routine manner in S. 498-A cases. This dangerous
conflation has been most aptly called out by the Supreme Court itself in Lalita
Kumari v. State of U.P.383 The Court held that mere arbitrary arrest cannot be a
ground for allowing the police to conduct a preliminary enquiry before filing an FIR,

380 Rajesh Sharma & others v. State of U.P. Cr . A No. 1265 of 2017.
381 Alok Gupta, “S. 377 and the Dignity of Indian Homosexuals, Socio-economic Bias in the
Judiciary”, 41(46) Economic and Political Weekly 4815, 4819 (2006).
382 (2008) 151 DLT 691.
383 (2014) 2 SCC 1.

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as there exist separate safeguards against arrest after the FIR stage. Before discussing
the guidelines given by the Supreme Court on sec498A of Indian Penal Code, Let us
discuss the legal provisions under section 498 A Indian Penal code, 1860, it reads as
under:

“Husband or relative of husband of a woman subjecting her to cruelty.—Whoever,

being the husband or the relative of the husband of a woman, subjects such woman to
cruelty shall be punished with imprisonment for a term which may extend to three
years and shall also be liable to fine.

Explanation.—For the purpose of this section, “cruelty” means—

(a) any willful conduct which is of such a nature as is likely to drive the
woman to commit suicide or to cause grave injury or danger to life, limb or
health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to

coercing her or any person related to her to meet any unlawful demand for any
property or valuable security or is on account of failure by her or any person
related to her to meet such demand.”384 The Supreme Court’s directions to
prevent the misuse of Sec 498 A of The Indian Penal Code, 1860,385

(i) (a) In every district one or more Family Welfare Committees be constituted by the
District Legal Services Authorities preferably comprising of three members.
The constitution and working of such committees may be reviewed from time
to time and

(b) The Committees may be constituted out of para legal volunteers/social

workers/retired persons/wives of working officers/other citizens who
may be found suitable and willing.

(c) The Committee members will not be called as witnesses.

384 Section 498A,The Indian penal Code, 1860.

385 Rashid, “Breaking: Supreme Court Issues New Guidelines To Prevent Misuse Of S.498A
IPC”, available at
http://www.livelaw.in/breaking-misuse-of-s-498a-sc-directs-to-form-family-welfare-
committees-to-examine-each-cases-no-arrests-before-committees-report-read-new-guidelines/,
(visited on February17, 2018).

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 (d) Every complaint under Section 498A received by the police or the
Magistrate be referred to and looked into by such committee. Such
committee may have interaction with the parties personally or by
means of telephone or any other mode of communication.

(e) Report of such committee be given to the Authority by whom the

complaint is referred to it latest within one month from the date of
receipt of complaint.

(f) The committee may give its brief report about the factual aspects and
its opinion in the matter.

(g) Till report of the committee is received, no arrest should normally be

effected.

(h) The report may be then considered by the Investigating Officer or the
Magistrate on its own merit.

(i) Members of the committee may be given such basic minimum training
as may be considered necessary by the Legal Services Authority from
time to time.

(j) The Members of the committee may be given such honorarium as may
be considered viable

(k) It will be open to the District and Sessions Judge to utilize the cost
fund wherever considered necessary and proper.

(ii) Complaints under Section 498A and other connected offences may be
investigated only by a designated Investigating Officer of the area. Such
designations may be made within one month from today. Such designated
officer may be required to undergo training for such duration (not less than
one week) as may be considered appropriate. The training may be completed
within four months from today;

(iii) In cases where a settlement is reached, it will be open to the District and
Sessions Judge or any other senior Judicial Officer nominated by him in the

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 district to dispose of the proceedings including closing of the criminal case if
dispute primarily relates to matrimonial discord;

(iv) If a bail application is filed with at least one clear day’s notice to the Public
Prosecutor/complainant, the same may be decided as far as possible on the
same day. Recovery of disputed dowry items may not by itself be a ground for
denial of bail if maintenance or other rights of wife/minor children can
otherwise be protected. Needless to say that in dealing with bail matters,
individual roles, prima facie truth of the allegations, requirement of further
arrest/ custody and interest of justice must be carefully weighed;

(v) In respect of persons ordinarily residing out of India impounding of passports

or issuance of Red Corner Notice should not be a routine

(vi) It will be open to the District Judge or a designated senior judicial officer
nominated by the District Judge to club all connected cases between the
parties arising out of matrimonial disputes so that a holistic view is taken by
the Court to who m all such cases are entrusted; and

(vii) Personal appearance of all family members and particularly outstation

members may not be required and the trial court ought to grant exemption
from personal appearance or permit appearance by video conferencing without
adversely affecting progress of the trial.

(viii) These directions will not apply to the offences involving tangible physical
injuries or death.

The judgment, however, was subjected to be diluted in November 2017 by the three
judges bench of Supreme Court, namely, Dipak Misra , CJ, and A.M. Khanwilkar and
D.Y. Chandrachud , the bench said that verdict was not needed as it amounted to
creating an extra jurisdiction by appointing Family Welfare Committees that were not
provided under the Indian Penal Code. In the words of Hon’ble bench, "Investigations
in such cases cannot be handed over to the committee. How can court frame
guidelines for penal provision of Section 498A. It has to be guided as per the Indian
Penal Code and the Code of Criminal Procedure," The court agreed to examine the
issue after it was told that the police were not registering FIRs following the apex

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court verdict.386The court further said, “We cannot write law. We can only interpret
the law.”

4.4.3 Desertion as a ground for divorce

Meaning - In explanation to sub-section (1) of Section 13, Hindu Marriage Act, 1955,
387
Parliament has explained desertion: “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
willful neglect of the petitioner by the other party to marriage, and its grammatical
388
variations and cognate expressions shall be construed accordingly.” According to
Raydon, “Desertion is the separation of one spouse from the other, with an intention
on the part of the deserting spouse from the other, with an intention without
reasonable cause and without the consent of the other spouse; but the physical act of
departure by one spouse does not necessarily makes that spouse the deserting
party”389. In its essence desertion means the intentional permanent forsaking and
abandonment of one spouse by the other without that other’s consent and reasonable
cause. It is a total repudiation on the obligations of the marriage.390 In Savitri Pandey
391
v. Prem Chandra Pandey , after referring to judgments in Bipin Chander and
Lachman Utamchand, the Apex Court held that :"Desertion, for the purpose of
seeking divorce under the Act, means the intentional permanent forsaking and
abandonment of one spouse by the other without that other's consent and without
reasonable cause. In other words it is a total repudiation of the obligations of
marriage. Desertion is not the withdrawal from a place but from a state of things.
Desertion, therefore, means withdrawing from the matrimonial obligations, i.e., not
permitting of allowing and facilitating the cohabitation between the parties. The proof
desertion has to be considered by taking into consideration the concept of marriage

386 Amit Anand Chaudhry, “Dowry harassment cases: SC to re-examine its verdict on no
immediate arrest”, available at https://timesofindia.indiatimes.com/india/dowry-harassment-
cases-sc-to-re-examine-its-verdict-on-no-immediate-arrest/articleshow/61852629.cms, (visited
on February 26, 2018).
387 Reinta Aneja, “Desertion under Hindu Marriage Act, 1955”, available at http://indian-
laws.blogspot.in, (visited on January 21, 2018).
388 Paras Diwan, MODERN HINDU LAW, 18th ed. 2007, p. 106.
389 Raydon, RAYDON ON DIVORCE, 6th ed. 1950, p. 128.
390 Lachman Utamchand Kripalani v Meena, AIR 1964 SC 40.
391 (2002) 2 SCC 73.

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which in law legalizes the sexual relationship between man and woman in the society
for the perpetuation of race, permitting lawful indulgence in passion to prevent
licentiousness and procreation of children. Desertion is not a single act complete in
itself; it is a continuous course of conduct to be determined under the facts and
circumstances of each case”.

There are two essential conditions required on the part of the deserting spouse for the
offence of desertion:

(1) the Factum of Separation, and

(2) the intention to bring cohabitation permanently to an end (Animus Deserendi)

There are two types of desertion-

(i) Actual desertion – It is necessary to prove that the respondent have abandoned the
matrimonial home. If a spouse while he goes to bed every day resolves to abandon the
matrimonial home the next day but he continues to stay there, there is an intention but
it has not been translated to action. So, he cannot be said to have deserted the other
spouse.392

On the other hand, if a spouse leaves the matrimonial home for studies or business
and goes to another place for some period, with the clear intention that, after
completion of studies or work he would return home but is not able to return because
of illness or other work. In this case the factum of separation is there but, but his
intention to desert is lacking, therefore this will not constitute desertion.

Similarly, two elements are essential so far as the deserted spouse in concerned: (1)
the absence of the consent, and (2) absence of conduct giving reasonable cause to the
spouse leaving the matrimonial home to form the necessary intention . If one party
leaves the matrimonial home with the consent of the other party, he or she is not
guilty of desertion. For instance, if husband leaves his wife to her parent’s house, it is
not desertion as husband’s consent is present. Again, a pregnant wife who goes to her
father’s place for delivery without the consent of the husband cannot be treated in

392 Ramesh v Premlata, 1979 MP 15.

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desertion.393 Desertion is a matter of inference to be drawn from the facts and
circumstances of each case.394 The offence of desertion commences when the fact of
separation and the animus deserendi co-exist. But it is not necessary that both should
commence at the same time. The de facto separation may have commenced without
the necessary animus or it may be that the separation and the animus deserendi
coincide in point of time. However it is not necessary that the intention must precede
the factum. For instance, a husband goes abroad for studies, initially he is contact with
wife but slowly he ceases that contact. He develops attachment with another woman
and decides not to return. From this time onwards both factum and animus co-exist
and he becomes a deserter. A mere separation without necessary animus does not
constitute desertion.395 Both factum of physical separation and animus deserendi must
be proved.396 It is also necessary that there must be a determination to an end to
marital relation and cohabitation. There is nothing like mutual desertion under the
Act. One party has to be guilty.

Desertion will amount- The husband left his wife at her parent’s house for 7 to 8
years and never tried to take her back such of his conduct amounted to desertion.397

 Where husband keeps a concubine or marries another woman.

 Where husband has immoral relation with his brother’s wife.
 Unreasonable attitude of the spouse resulting in separation is guilty of
desertion.398
 The act of the wife amounts to desertion where she leaves the matrimonial
home for paucity of accommodation and the husband refuses to live
separately from the members of his family due to meager income.399
 Wife not intending or does not want to live with husband on any condition.
400

 Wife did not take any step to disprove the charge of desertion. 401

393 Indira Devi v. Kumarian, 1982 Ker 78.

394 Bipinchandra Shah v Prabhavati AIR 1957 SC 176.
395 Rohini Kumari v Narendra Singh AIR 1972 SC 459.
396 Biswasnath Das v Maya Das AIR 1994 NOC 364.
397 1969 Cur LJ 319.
398 (1967)69 Punj LJ 566.
399 Indu v. Rajeshwar Pershad AIR 1982 Del 458.
400 Kulwinder Kaur v. Harsi Singh 1997(3) Civ LJ 247 (P&H).

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  A situation where the Husband files application for restitution of conjugal
rights and wife files an application for judicial separation on the ground of
cruelty constitutes desertion.402 The desertion commences from the date of
notice where wife issues it to the husband expressing her intention not to
return to the matrimonial home. In this case, the wife became a Brahma
Kumari and refuses to perform her matrimonial obligation.403

May not amount Desertion -Where the wife leaves husband’s home due to husband’s
allegation of the wife’s impurity or unchastity.404

 Where the husband himself takes his wife to her mother’s place for
confinement, there is no case of desertion.
 Continued separation without intention to willfully neglect is not
desertion.405
 An annoyed husband or wife cannot be said to be in desertion.406
 After abortion of pregnancy through the husband, the wife was staying with
her parents for better treatment, there was no adverse inference that the wife
intended to remain separate and she did not want to come back to her
husband’s place.407
 The wife was living separately in a room provided by the husband under
compromising in the proceeding under S. 488, Cr PC (old) and the husband
had another wife living with him. Separation does not amount to
desertion.408
 Where the husband was guilty of cruelty to wife and of openly keeping a
mistress in the house so that the wife was compelled to leave her husband’s
house, it was held that the wife did not desert the husband without
reasonable cause.409

401 Shimla devi v. Kuldeep Sharma AIR 1991 Raj 181.

402 AIR 2004 Mad 43.
403 Pramod v. Vasundhara AIR 1989 Bom 75.
404 Lachman Utamchand Kripalani v. Meena AIR 1964 SC 40.
405 S. Kripal Singh v. Smt. Harbans Kaur AIR 1967 Del 19.
406 Devi Singh v. Sushila Devi AIR 1972 Raj 303.
407 Kamini v. Balaji AIR 1988 Ori 93.
408 Bhagwanti v. Sadhu Ram AIR 1961 Punj 181.
409 AIR 1961 Mad 391.

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  Wife leaves the matrimonial house due to unpalatable atmosphere does not
amount to desertion.410
 Wife was sent out of her matrimonial home forcibly by her husband and he
never tried to bring her back. She was absolutely not in desertion.411
 Wife left her matrimonial home and was going to the house of her parents
on the false allegation of her immorality by husband.412
 Where the Wife spends more of her time with her mother that doesn’t
amount to desertion.413

Burden of proof- It is a general rule that the burden of proof always lies on the party
blaming and desertion is no exception to it. In case of desertion also, the burden of
proof lies upon the petitioner.414 The petitioner is required to prove the four essential
conditions namely, (1) the factum of separation; (2) animus deserendi; (3) absence of
his or her consent (4) absence of his/her conduct giving reasonable cause to the
deserting spouse to leave the matrimonial home. The offence of desertion must be
proved must be proved beyond any reasonable doubt and a rule of prudence the
evidence of the petitioner shall be corroborated.415 In short the proof required in a
matrimonial case is to be equated to that in a criminal case.

(ii)Constructive desertion-Desertion cannot always be equated with separate living by

the parties to the marriage. It can be proved while living under the same roof or in the
same house. If a spouse intentionally neglects the other spouse, then also he is guilty
of desertion even though both are living in the same house.416 Where a situation or
circumstances are created either by actual use of force or by the conduct of one
spouse that the other spouse is compelled to leave the matrimonial home, it constitutes
constructive desertion of the creator of the situation or circumstances. It is not
necessary for the husband in order to desert his wife to actually turn his wife out of

410 Sunil Kumar v. Usha 1994 MP 1.

411 Anil Kumar v. Sefali 1997 Cal 6.
412 J. Shyamala v. P. Sunder Kumar AIR 1991 NOC 29.
413 Palwinder v. Saroj, (2004) I CLT 323 (P&H).
414 Lachman Kripalani v. Meena AIR 1964 SC 40.
415 Bipinchandra Shah v. Prabhavati AIR 1957 SC 176.
416 Mayank Madhav, SINGHAL’S FAMILY LAW-I, 3rd ed. 2013, p. 169.

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doors; it is sufficient if by his conduct he compelled her to leave the house.417 It is
now well settled that the matrimonial court has to look at the entire conspectus of the
family life and if one side by his or her words or conduct compels the other side to
leave the matrimonial home, the former would be guilty of desertion, though it is the
latter that is seemingly separated from the other.418 But where the husband does not
take any steps to effect reconciliation, he is not guilty of constructive desertion.419

The elements of both type of desertion i.e. actual and constructive desertion are the
same: of the elements, factum and animus must co-exist, in former there is actual
abandonment and in the latter, there is expulsive conduct. Under constructive
desertion, the deserting spouse may continue to stay in the matrimonial home under
the same roof or even in the same bedroom. In our country, in many homes husband
would be guilty of expulsive conduct towards his wife to the extent of completely
neglecting her, denying her all marital rights, but still the wife because of social and
economic conditions, may continue to live in the same house.420

Constructive Desertion may amount-

 The husband always asks the wife to go away and accuses the wife constantly
of her immorality.421
 Willful and unjustifiable refusal of sexual intercourse by the respondent.422
 The husband’s adultery. 423
 The husband used sexual malpractices on the wife. 424
 Husband’s intention was to divorce wife with a view to remarry and he forced
wife to leave matrimonial home.425
 The spouse who by his conduct compels the other spouse to matrimonial
home, the former would be guilty of desertion.426

417 Jones v. Jones [1952]2 TLR 225(CA).

418 Ashok Kumar v. Shabnam AIR 1989 Del 121.
419 Bharat Lal v. Ram Kali Devi AIR 1984 All 274.
420 Lachman Kripalani v. Meena AIR 1964 SC 40.
421 Marsden v. Marsden [1967]1 All ER 967.
422 Hutchimson v. Hutchimson [1963]1 WLR 180.
423 Roe v. Roe [1956]1 WLR 1380.
424 D.B. v. W.B. [1935] P 80.
425 Baljit Singh v. Harjit Kaur 1997(1) Civ LJ 177 (P&H).
426 Lang v. Lang, 1955 AC 402.

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  Husband asked for judicial separation on the ground of wife’s desertion, the
wife stated that she was maltreated, beaten up and turned out of house by
husband. The wife’s averments were proved.427

Willful neglect-It connotes a degree of neglect, which is shown by an abstention from

an obvious duty, attended by knowledge of the likely result of the abstention.
However, failure to discharge, or omission to discharge, every material obligation will
not amount to willful neglect. Failure to fulfill basic marital obligations, such as
denial of company or denial of marital intercourse, or denial to prove maintenance
will amount to willful neglect.428

Without the consent-If one party leaves the matrimonial home with the consent of the
other party, he or she is not guilty of desertion. When the parties are living apart from
each other under a separation agreement, or by mutual consent, it is a clear consent of
living away with the consent of the other.429 Wife when living away from the
husband, husband sends a telegram ‘must not send wife’ to wife’s father expressed his
wish to live separate.430

Desertion must be for a continuous period of two years-To constitute a ground for
judicial separation or divorce, desertion must be for the entire statutory period of two
years,431 preceding the date of presentation of the petition.432 Desertion is an
continuing offence; it is an inchoate offence. This means that once desertion begins it
continues day after day till it is brought to an end by the act or the conduct of the
deserting party. It is not complete even if the period of two years is complete. It
becomes complete only when the deserted spouse files a petition for a matrimonial
relief. Wife’s act of withdrawing jewellary from the locker and remaining away from
her husband for two years clearly proved her desertion. 433

427 Balidhar v. Dhir Das, 1979 P&H 162.

428 Vadranama v Krishnama, (1970) 1 AWR 13.
429 Ibid.
430 Bipinchandra Shah v. Prabhavati, AIR 1957 SC 176.
431 Shakuntala v. Om Prakash, 1981 Del 53.
432 Amarjit v. Kiran, 1985 P&H 356.
433 Suresh Bala v. Gurmodinder Singh, 1983 Del 230.

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Offer to return-If a deserting party spouse genuinely desires to return to his or her
partner, that partner cannot in law refuse to reinstate him or her.434 An offer to resume
cohabitation must be genuine or bona fide for which two elements must be present.
First, an offer to return permanently, if accepted, must be implemented; secondly, it
must contain an assurance as to the termination of the conduct by the deserting party
which caused the separation.435 A refusal to such an offer would convert the deserted
party to the deserting party. The offer to return to resume married life by the deserting
spouse before the expiry of the statutory period of desertion must not be stratagem.
The deserting spouse must be ready and anxious to resume married life.436

Defences to desertion-The following are the main defences to desertion:-

 Agreement to separation does not amount to separation. But such agreement

may be changed to desertion without resumption of cohabitation. Separation
in such cases loses its consensual element.437
 There may be animus deserendi without a separation.
 Physical inability to end desertion, such as imprisonment.
 Absence of just and reasonable cause of separation.
 Absence of animus deserendi.

Termination of desertion-Desertion is a continuing offence. This character and

quality of desertion makes it possible to bring the state of desertion to an end by some
act or conduct on the part of deserting spouse. It may be emphasized that the state of
desertion may be put to an end not merely before the statutory period has run out, but
also at any time, before the presentation of the petition.

Desertion may come to an end by the following ways:

(a) Resumption of cohabitation.

(b) Resumption of marital intercourse.

434 Perry v. Perry [1952] 1 All ER 1076.

435 Gaskell v. Gaskell [1963] 1 All ER 1052.
436 Pratt v. Pratt [1939] 3 All ER 437 (HL).
437 Gallagher v. Gallagher [1965] 2 All ER 967.

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(c) Supervening animus revertendi, or offer of reconciliation.

Resumption of cohabitation – if parties resume cohabitation, at any time before the

presentation of the petition, the desertion comes to an end. Resumption of
cohabitation must be by mutual consent of both parties and it should imply complete
reconciliation. The desertion ends only when the deserting parties goes to the
matrimonial home mentally prepared to end the cohabitation. It is necessary to prove
that marital intercourse was also resumed.

Resumption of marital intercourse – Resumption of marital intercourse is an

important aspect of resumption of cohabitation. Sometimes resumption of marital
intercourse may terminate desertion. If resumption of marital intercourse was a step
towards the resumption of cohabitation, it will terminate desertion even if the deserted
spouse backs out.

Supervening animus revertendi – when a party in desertion shows his/her intention to

return back, it would amount to end of desertion. Animus revertendi means an
intention to return. A deserting spouse may bring desertion to an end by a genuine and
bonafide offer of reconciliation. It should not be just to forestall or defeat the
impending judicial proceedings.

Maintenance to Deserting wife

The Law says that the wife who is deserting the husband without any reasonable
cause cannot claim maintenance. To claim maintenance wife needs to give a cause for
deserting her husband. The remarriage of the husband is a sufficient cause for
438
the wife's refusal to live with him. The Apex Court in Manoj Kumar v. Champa
439
devi, , has upheld a High Court’s order where it directed a husband to grant
maintenance to his wife who is a deserter in this case and whom he had divorced,
from the date when the divorce was decreed.

438 Maiki v. Hemraj, AIR 1954 All 30.

439 2017(2) RCR (Cri.).

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4.4.4 Conversion as a ground of Divorce

Religion is a very sensitive and personal aspect of individual’s life and the
constitution of India under articles 25 to 28, guarantees the freedom of conscience and
religion to people of all denominations. Thus, a person is free to profess any faith or
relinquish his faith of birth and convert to any religion. But the diversity in the
personal laws of our nation the conversion of a spouse gives the non convert spouse a
ground for matrimonial relief440.

Meaning of conversion

When one of the spouses voluntarily relinquishes one’s religion and adopts another
distinctive religion after formal ceremonies it is called conversion on his part. Under
Hindu Marriage Act, 1955, conversion implies that one has adopted some other major
religion which cannot be regarded as a Hindu religion.441 Under section 13(1)(ii), if
one of the spouses adopts another religion, he/she does ceases to be a Hindu. If the
spouse changes to such a religion whose followers are not governed by Hindu Law, it
is considered as a matrimonial offence. In case either of the spouse converts into
Sikhism or Jainism then this provision will not apply because both of these religions
are covered under Hindu Law, but if he/she converts to Islam or Christianity, then it
will attract the provisions of section 13 (1) (ii) of Hindu Marriage act, 1955, and shall
be regarded as matrimonial wrong. The marriage however would not stand dissolved
merely because the other spouse embraced another religion. Also, the spouse who did
not change his/her religion is entitled to file a petition for a decree of divorce on the
ground that the other spouse has ceased to be a Hindu by embracing another religion.
442
In the case of Lily Thomas v. Union of India , the husband of the petitioner had
converted for the sole purpose of marrying another woman without divorcing the
previous one. It was pleaded that since he had converted to Islam, he could keep up to
four wives at a time and thus could not be prosecuted for bigamy u/s 494 of the Indian
Penal Code. It was further contended that the marriage automatically stood dissolved
u/s 13 of the Hindu Marriage Act because of the conversion. The Supreme Court

440 Kusum, FAMILY LAW LECTURES FAMILY LAW-I, 4th ed.2015, pp. 97-98.
441 Mayank Madhav, SINGHALS FAMILY LAW-I, 3rd ed. 2013, p. 149.
442 AIR 2000 SC 1650.

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rejected the two contentions and held that conversion or apostasy does not
automatically dissolve a marriage already solemnized under the Hindu Marriage Act.
Section 13 of the act only provides the ground for divorce. Further, if a person marries
a second time during the lifetime of his wife, such marriage apart from being void u/s
11 and 17 of the Hindu Marriage Act, would also constitute the offence of bigamy u/s
494 of IPC443.

Before enforcement of Hindu Marriage Act, 1955

444
In Re: Ram Kumari, where a Hindu wife converted to the Muslim faith and then
married a Mohammedan, it was held that her earlier marriage with a Hindu husband
was not dissolved by her conversion. She was charged and convicted of bigamy under
S.494 of Indian Penal Code, 1860.

In In Re: Ram Kumari, 445 a Hindu wife was fraudulently taken away of the accused a
Mohammedan who married her according to Muslim law after converting her to
Islam. It was held that the conversion of the Hindu wife to Mohammedan faith did
not ipso facto, dissolve the marriage and she could not during the life time of her
former husband enter into a valid contract of marriage. Accordingly, the accused was
convicted for adultery under Section 497 of Indian Penal Code, 1860.

After enforcement of Hindu Marriage Act, 1955

A marriage solemnised, whether before or after the commencement of the Act, can
only be dissolved by a decree of divorce on any of the grounds enumerated in S.13 of
the Act. One of the grounds under S.13 (1) (ii) is that “the other party has ceased to
be a Hindu by conversion to another religion”. A marriage performed under the Act
cannot be dissolved except on the ground available under S.13 of the Act. In that
situation parties who have solemnised the marriage under the Act remain married
even when the spouse embraces Islam in pursuit of other. A second marriage by an
apostate under the shelter of conversion to Islam would nevertheless be a marriage in

443 Trisha, “Divorce under Hindu Marriage Act and Need for Unification of Divorce Laws”,
available at http://jcil.lsyndicate.com/wp-content/uploads/2017/06/Tisha-Divorce.pdf, (visited
on March 11, 2018).
444 1891 Calcutta 246.
445 1891 Calcutta 246.

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violation of the provisions of the Act by which he would be continuing to be governed
so far as his first marriage under the Act is concerned despite his conversion to Islam.
The second marriage of an apostate would, therefore, be illegal marriage qua his wife
who married him under the Act and continues to be Hindu. Between the apostate and
his Hindu wife the second marriage is in violation of the provisions of the Act and as
such would be non est.446 This ground for divorce has been included in the Hindu
Marriage Act only for the purpose of circumventing the provision of S.494 of Indian
Penal Code, 1860. Conversion to Islam by a Hindu spouse per se does not lead to
divorce, but it only give a right to the other spouse to file a petition for divorce under
Section13(1)(ii)447.

Legal affects of conversion on marriage

Following may be the legal affects of conversion on a Hindu Marriage:

(i) The marriage gets dissolved automatically.

(ii) The conversion of a spouse makes the non-convert to apply for divorce, in
other words, it becomes a ground of divorce on the instance of non-convert.

(iii)A convert may also apply for divorce on conversion making it a ground of
divorce.

Section 13(1) (ii) of the Hindu Marriage Act, 1955, runs as under:
“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 has ceased to be a Hindu by
conversion to another religion”. Section 13(1) (ii) provides two conditions for the
application of the rule, namely, (i) that the respondent has ceased to be a Hindu (ii)
448
that he has converted to another religion .In Vilayat v. Sunila, , the question has

446 Conversion, “Indian Divorce laws”, available at

https://sites.google.com/site/indiandivorcelaws/grounds-of-divorce-under-hindu-marriage-act-
1955/conversion, (visited on March 11, 2018).
447 Vishakha Gupta, “Conversion as a ground for Divorce, under the Hindu Act”, available at
https://www.vskills. in/certification/blog/conversion-as-a-ground-for-divorce-under-the-
hindu-act/#_ftn3, (visited on March11, 2018).
448 AIR 1983 Delhi 351.

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arisen whether a Hindu husband, who has embraced Islam subsequent to the marriage,
can file a petition for divorce under the Hindu Marriage Act. It was held by Leila
Seth. J., that he could do so for under s. 13 “at the time of presentation of the petition,
the parties need not be Hindus”. In this view the personal law according to which the
marriage took place will govern the rights of the parties as to the dissolution of the
marriage. Suppose both the parties to the marriage embrace Islam. The view of Leila
Seth. J., would still subject the parties to the remedies available under the Hindu Law
in regard to the dissolution of the marriage. But such a view is opposed to the rule laid
449
down in Khambatta v. Khambatta, , where in such a situation divorce by Talaq
under the Mohomedan Law was upheld. Thus the view of Leila Seth cannot be
pressed to its logical conclusion. It should be restricted to the facts of that case. If one
of the parties to a Hindu marriage becomes a convert to another religion, he is not
according to this view, disabled from filing a petition under s. 13 of the Hindu
Marriage Act, 1955450.The principles of Hindu Law do not prohibit a Hindu marrying
a non Hindu. Hindu Law also does not prohibit Continuance of marital relationship
even if one of the spouses ceases to be a Hindu by conversion to another, religion, so
long as the non converting spouse does not initiate proceeding under the Hindu
Marriage Act for divorce.451 In Sarla Mudgal, President, Kalyani and Ors. v. Union of
India and Ors.452 , the Supreme Court considered the question whether a Hindu
husband by embracing Islam can contract a second marriage during the subsistence of
the first marriage and whether the husband would be guilty of the offence
under Section 494 of the Indian Penal Code. It was held that, “It is, thus, obvious from
the catena of case law that a marriage celebrated under a particular personal law
cannot be dissolved by the application of another personal law to which one of the
spouses converts and the other refuses to do so. Where a marriage takes place under
Hindu Law the parties acquire a status and certain rights by the marriage itself under
the law governing the Hindu Marriage and if one of the parties is allowed to dissolve

449 1934 (36) Bom. LR 1021.

450 B.Niranjan, “What are the Effects of Conversion from One Religion to Another under Hindu
Law?”, available at http://www.shareyouressays.com/knowledge/what-are-the-effects-of-
conversion-from-one-religion-to-another-under-hindu-law/117386, (visited on March 11,
2018).
451 Suresh Babu v. Leela, 2006 (3) KLT 891.
452 1995 SCC (3) 635.

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the marriage by adopting and enforcing a new personal law, it would tantamount to
destroying the existing rights of the other spouse who continues to be Hindu. We,
therefore, hold that under the Hindu Personal Law as it existed prior to its
codification in 1955, a Hindu marriage continued to subsist even after one of the
spouses converted to Islam. There was no automatic dissolution of the marriage”. If
the non-convert chooses to continue the marital relation with the convert spouse then
he or she can live in the relationship.

4.4.5 Insanity as a ground of Divorce

Before passing of the Marriage Laws (Amendment) Act, 1976 the position of insanity
as ground of divorce or judicial separation was as follows: 453

(i) Insanity (whether curable or incurable) - lasting for not less than two
years ending with the filing of the petition was a ground for judicial
separation;454

(ii) Incurable insanity- lasting for at least three years immediately preceding
the filing of the petition was a ground for divorce.455

In 1974, the law commission recommended abolition of the duration for the purpose
of treating it as a ground for divorce.456 In 1976, while unifying the grounds for
judicial separation and divorce, the legislature not only accepted the said
recommendation, it also went further to explain and expand the concept of insanity
under Section 13. This was done in the light of the commission’s general observations
regarding insanity.457

Now the Act refers to two distinct mental conditions, namely:

(i) Unsoundness of mind, and

453 Ch. V, “The Changes in the Law of Divorce-under Hindu Law”, available at
http://shodhganga.inflibnet. ac.in/bitstream/10603/8109/12/12_chapter%205.pdf , (visited on
February12, 2018).
454 Hindu Marriage act, 1955, Section 10 (1) (e), repealed in 1976.
455 Hindu Marriage act, 1955, Section 13 (1) (iii) , before the 1976 amendment.
456 Law Commission of India, “Hindu Marriage Act, 1955 and Special Marriage Act, 1954
(March 1974)”59th Report 1974, p. 110.
457 Ibid. pp. 42-50.

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 (ii) Mental disorder.

The conditions attached to each of these two are:

(3) Unsoundness of mind must be incurable; and

(4) Mental disorder (whether continuous or intermittent) must be ‘of such a kind
and to such an extent that the petitioner cannot reasonably be expected to live
with the respondent’.458

After passing of the Marriage Laws (Amendment) Act 1976, incurable unsoundness
of mind or continuous or intermittent mental disorder of such a nature as to disable
the petitioner to live reasonably with the respondent makes the petitioner eligible to
get a decree of divorce. The term “mental disorder” has been widely interpreted so as
to include mental illness, arrested or incomplete development of mind, psychopathic
disorder or any other disorder or disability of mind and includes schizophrenia.459 The
amended clause includes even occasional fits of schizophrenia, epilepsy, mental
retardation, or any other disability of mind which would result in an abnormally
aggressive or seriously irresponsible conduct on the part of spouse as a valid ground
for getting divorce. It would be seen that the scope and ambit of this clause has been
enlarged to include every conceivable cause of mental disorder which may either be a
continuous one or if intermittent, it should be of such a kind or to such an extent that
the petitioner cannot reasonably be expected to live with the respondant.460
“Psychopathic disorder” has been explained in Dastane v. Dastane,461 “to include
persistent disorder or disability of mind which results in abnormally aggressive or
seriously irresponsible conduct on the part of other party”. Woman suffering from
incurable epilepsy and unable to manage herself to her affairs as an ordinary
reasonable person, fall within the expression “incurably of unsound mind”.462

458 Section 13(1) (iii), Hindu Marriage Act, 1955.

459 R.K. Agarwala, HINDU LAW, 21st ed. 2003, p. 91.
460 Mayank Madhav, SINGHAL’S FAMILY LAW-I, 3rd ed. 2013, p. 151.
461 AIR 1970 Bom. 312.
462 Bani Devi v. H.K Banerji, AIR 1972Delhi53: R.K. Agarwala, HINDU LAW, 21st ed. 2003, p.
107.

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In Smt. Alka Sharma v. Abhinesh Chandra Sharma,463 it was found that the wife was
so cold and frigid and nervous on first night of marriage as not to be able to co-
operate in sexual act. She was found unable to handle domestic appliances. She failed
to explain the conduct of urinating in the presence of all family members. The court
held that she was suffering from schizophrenia, and the husband was held to be
entitled for nullity of marriage. Schizophrenia is a mental disease wherein the
patient’s personality appears to be divided and this personality disintegration which
characterizes schizophrenia may be of varying degrees.464An adverse inference would
be drawn against husband if he does not submit medical examination on the petition
of divorce by wife, alleging that husband is suffering from unsoundness of mind.465

In Harmanjit Kaur v. Bhupinder Singh Gill,466 the appellant was suffering from
mental disorder (Schizophrenia) since before her marriage; that this fact was not
disclosed to the respondent; that according to the medical advice the disease is
incurable and she might become a danger to the husband and also to the child.
Therefore the court granted decree of divorce.

In Sona v. Karambir,467 a board of doctors gave the opinion that the wife suffered
from moderate range of mental retardation; that her mental unsoundness was
incurable; she could not discharge her marital obligations; she gave totally incorrect
and irrational answers to the questions posed to her. It was held that her case fell
under Section 13 (1) (iii) of the Hindu Marriage Act, 1955.

4.4.6 Leprosy as a Ground for Divorce

Meaning of Leprosy468- Leprosy is an infectious disease, chronic, contagious,

resulted in disfigurement, one of the causes of permanent disability in the world and is
primarily a disease of the poor. The stigma against the disease due to its disfiguring

463 AIR 1991 MP 205.

464 B.M. Gandhi, HINDU LAW,3rd ed. 2008, p. 329.
465 Shanti Devi v. Ram Nath, AIR 1972 P&H 271: R.K. Agarwala, HINDU LAW, 21st ed. 2003,
p. 107.
466 (2003) 2 HLR 661 (P&H); Ramesh Chandra Nagpal, MODERN HINDU LAW, 2nd ed. 2008,
p. 223.
467 Ibid. p. 224.
468 Amit Kashyap, “LEPROSY- a ground for divorce: Medical Jurisprudence”, available at
https://judgements incriminallaw.wordpress.com/2016/12/29/leprosy-a-ground-for-divorce-
medical-jurisprudence/, (visited on March20, 2018).

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effects causes its victims to be isolated and shunned. The disease is now readily
treatable with multi-drug therapy and can be used in the early stages of infection,
disability and disfigurement can be avoided. Here, one fact can be noted that
India continues to record the highest number of new leprosy cases in the world
followed by Brazil and Indonesia.

Legal concept-Leprosy is apchronic, infectious disease caused by Mycobacterium

leprae. Leprosy has been considered as loathsome disease. It is virulent when ulcerous
and an unsightly symptom appears or when social intercourse becomes almost
impossible. Leprosy is a ground for divorce and judicial separation under most of the
matrimonial laws of the Indian communities. Under the Hindu marriage act, the
ground runs: respondent “has been suffering from virulent and incurable form of
leprosy.”And also under the act where leprosy is a ground for divorce of judicial
separation, the duration of leprosy is not specified. According to the Hindu Marriage
Act, 1955 if one of the spouses is suffering from leprosy that is ‘virulent and
incurable’, the other can file a petition for divorce based on this ground.

Under the Hindu Marriage Act, leprosy to be a ground for divorce or judicial
separation must be:

(a) Incurable, and

(b) Virulent.(Highly poisonous, malignant type, venomous and acrimonous).

At present, leprosy in its early stages is curable. But it seems that some period must
elapse (what time should be elapse will vary from case to case depending upon the
type of leprosy with which the respondent is suffering) before leprosy becomes
469
incurable. In Peddigari Annapurnamma v. Peddigiri Appa Rathat , the respondent
wife opposed the petitioner’s petition for restitution of conjugal rights on the ground
that he was suffering from leprosy which she had discovered immediately after her
marriage, the high court held that the leprosy is in its mild form according to medical
evidence and is not virulent so it granted the relief to the petitioner.

469 AIR 1963 AP 312.

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Important Amendments In 1976

The most important amendment in sexually transmitted diseases was done in 1976. It
was done under the Hindu Marriage Act, 1955 in the diseases like leprosy or venereal
disease of husband. The situation prior and after the amendment is as follows:

Under the Hindu Marriage Acts, 1955 Prior to 1976 Amendment grounds for
Divorce.

Formerly, Leprosy in virulent and incurable form was a ground for judicial separation
if had been persisting for at least one year or a ground for divorce if it had been
persisting for at least three years prior to the date of petition, while venereal disease
should be in communicable form was a ground for divorce (or judicial separation) but
the petitioner had to show that such disease had been afflicting the respondent for at
least three years preceding the filing of the petition. Further, formerly if the petitioner
had caused the infection to the respondent, the relief which he could claim was only
divorce while the other party could have sought either divorce or the lesser relief of
judicial separation. In Swarajya Lakshmi v. GG Padma Rao470, the Supreme Court
observed that the ground has reflected law makers concern about the contagious
nature of leprosy which would be hazardous for the healthy spouse and the couple’s
children. A mild form of leprosy capable of being arrested though not fully curable
may have to be endured.

Under the Hindu Marriage Act, 1955 as amended in 1976, Grounds for divorce.

Now the time limit of Virulent and incurable leprosy has been omitted. Incurable and
virulent form of leprosy is a ground for divorce (or judicial separation) and it is not
necessary for the petitioner to show that it had been affecting the respondent for three
years (or 1 year as), the case may be, preceding the petition for matrimonial relief s.
13 (1) (iv). And also the Venereal disease in a communicable form come with
refinement and the question as to whether or not the petitioner had communicated the
disease to the respondent is now immaterial. s. 13 (1) (v). Here is one thing to note
which is that the time duration of the disease has been removed by the 1976

470 AIR 1974 SC 165: Tahir Mahmood, PRINCIPLES OF HINDU LAW, ed. 2014, p. 144.

195
legislation. To save the other persons from the incurable form of disease the law has
taking an active participation to save the other partner or the spouse. The amendment
done in 1976 shows that how the government of India is active by taking the account
of the fact that it may be dangerous to the life of other spouse. The reason why they
have added this clause was the danger to the life of either of the spouses by way of
contracting the disease. And also there is no cure of this disease, which means that no
medicine or drug has been invented yet, but now in some progress of medicine, they
have cured some form of leprosy and there is a need to amend the clause of the
current act.471

4.4.7 Venereal Disease in communicable form

Meaning- Venereal Diseases are illnesses that have a significant probability of

transmission between humans by means of human sexual behaviour, including
vaginal intercourse, oral sex, and anal sex. A communicable disease is one that passes
from one person to another through touch, using each other’s objects, utensils and
also through intimate physical relationship. In order to succeed on this ground, the
petitioner must establish upon medical evidence, that the venereal disease which the
respondent is suffering form is communicable.472

Legal concept:

Venereal Disease is a ground for divorce and judicial separation under the
matrimonial laws of most Indian communities and under the Hindu marriage act, the
ground is worded in identical language. It comprises a number of contagious diseases
that are most commonly acquired at the time of sexual intercourse. The ground runs:
the respondent “has been suffering from venereal disease in a communicable form.”
Congenital syphilis is not included within the expression “virulent venereal disease”
or “venereal disease in a communicable form.” but syphilis and gonorrhoea are the
most common form of venereal disease. In a decided case473, Divorce was granted to
wife when husband was discovered to be HIV positive. It was observed by the court

471 MCO legals, ‘Sexually Transmitted Disease: Ground of Divorce in Hindu Marriage Act,
1955’, Available at http://www.mcolegals.in/gp/sexual.pdf, (visited on March 20, 2018).
472 Mayank Madhav, SINGHAL’S FAMILY LAW-I, 3rd ed. 2013, p. 152.
473 AIR 1999 SC 495.

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that since venereal disease is a ground for divorce, it implies that a person suffering
from venereal disease prior to marriage must be injuncted from entering into
marriage. It is immaterial that the disease is curable or was contracted innocently. The
duration of the disease is not mentioned in any of these statutes, it may, therefore, be
of any duration474. Also the Hindu Marriage Act does not say that the disease should
not have been contracted from the petitioner. If the disease is contracted from the
petitioner, under section 23(1) (a), the decree of divorce cannot be passed as it would
be amount taking advantage of one’s own wrong475. It is essential for the petitioner to
prove that his or her spouse is suffering from such a disease which is also
communicable in form. Congenital syphills is excluded. The facts like the disease is
curable or contracted innocently are immaterial. In P.Ravikumar v. Malarvizhi @
S.Kokila476, The husband filed an application for divorce on the ground that the wife
is afflicted with HIV positive and the blood samples of both the parties were taken
and his blood sample was not reactive to HIV positive and the wife's blood sample
was reactive to HIV positive and therefore, she would not have acquired that disease
from him. In the counter, the respondent admitted that her blood sample was taken
and alleged that the Doctor was a relative of her husband and in collusion with the
Doctor, the medical report has been fabricated and even assuming that the
respondent/wife is having HIV positive, she must have acquired the same from her
husband only as she never had any sexual relationship with anybody, except her
husband and the husband is a driver going to various places and therefore, he might
have acquired the disease and the appellant/husband has to prove that he was not
having HIV positive and also agreed to send her blood sample for analysis through
court and stated in para 9 of the counter that she is prepared to file a petition for
analyzing her blood sample through court and that would give a quietus to the
allegations made against her. Nevertheless, she has not come forward to give her
blood sample. Therefore, the trial court granted divorce on the based of the
certificates Ex.P2 to P4. The Punjab and Haryana high court has ruled that a person
suffering from hepatitis B, which could be passed on to others by sexual activity,

474 Paras Diwan, FAMILY LAW, 18th ed. 2008, p. 183.

475 MCO legals, “Sexually Transmitted Disease: Ground of Divorce in Hindu Marriage Act,
1955”, available at http://www.mcolegals.in/gp/sexual.pdf,(visited on March 20, 2018).
476 M.P.No.1 of 2010.

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could not be a ground for divorce. The court passed these orders while rejecting the
plea of a man seeking directions for medical examination of his wife on the grounds
that she was suffering from hepatitis B, which was transmissible by exposure to
infectious blood or semen and vaginal fluids. "Cruelty must be a voluntary act of
person who visits cruelty on the other. If a woman refuses sexual access, there are
authorities to the effect that such a voluntary refusal would itself constitute a cruelty
and afford a ground for divorce. This is not a case where the woman is complained of
as having denied sexual access to the husband. On the other hand, the apprehension
of the petitioner is that if he has access to the wife, he will get infected with hepatitis
B. I am afraid this argument is not sound, for every communicable disease does not
afford a spouse a ground for divorce," observed K Kannan,j., in the November 4
orders. The judge was of the view that there are the only two instances of diseases,
apart from mental illness, which afford a ground for a spouse to seek for divorce
under the existing laws. These include where a person has been suffering from a
virulent and incurable form of leprosy and a person has been suffering from venereal
disease in communicable form.477

4.4.8 Renunciation of world as a ground for divorce

“Renunciation of the world" is a ground for divorce only under Hindu law, as
renunciation of the world is a typical Hindu notion. The life of a Hindu is said to be
governed by the dharma varnashrama system. The ashramas are stages in a man’s
life on the way to his final liberation. The Sanyasa ashrama is the last stage in a
man’s life, where he leads a life of total renunciation. Though a part of Hindu
religion, it has still been made a ground for divorce, as the following of one’s faith
should not amount to hardships for one’s spouse.478According to Hindu religion ,
every Hindu is required to enter the last ashrama in his old age;entering into this
ashrama amounts to civil death of the person concerned. The person performs his own

477 Ajay Sural, “Sexually transmitted disease no ground for divorce: H.C”, available at
https://timesofindia. indiatimes.com/city/chandigarh/Sexually-transmitted-disease-no-ground-
for-divorceHC/articleshow/ 50120645.cms, (visited on March 20, 2018).
478 Law Teacher, “Family Law Research Paper Common grounds for divorce” available at
https://www.law teacher.net/free-law-essays/family-law/family-law-research-paper-divorce-
law-essays.php#ftn68, (visited on March 20, 2018).

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funeral rites while entering into this ashram through a ceremony. The person
renouncing the world not only renounces his name but also all his relations from birth
to grihasth ashram. Although a Hindu is supposed to enter into sanyasa ashram in his
old age but if any person wants to renounce in a younger age Hinduism accepts it too.
Now, the question arises that, if Hinduism accepts the renunciation of world in young
age then why it has been made a ground for Divorce? The reason behind this is that, if
a person is married and suddenly decides to renounce the world or renounces the
world, it brings hardship to his/her spouse. Every person has a right to follow any
religion but renouncing the world at younger age may amount to a ground of divorce
because you cannot leave your spouse like this. There is another angle for this too.
Like if one becomes a sanyasi and leaves the spouse, it amounts to an extreme form
of desertion as other spouse sees no chance for him/her to come back and start a
normal life. Therefore it has been taken as a valid ground for divorce under Hindu
law.

Section 13(1)(vi) lays down that if one spouse has renounced the world by entering
into a religious order, the other spouse may file a petition seeking divorce. Following
two conditions must be satisfied for seeking divorce on this ground:

1. The respondent must have renounced the world (Sanyasa),

2. He must have entered some religious order.

The person must actually have renounced the world, as if he has become
479
follower or Chela of someone that does not mean he has renounced the
world. In Sital Das v. sant Ram480, it was held that a person is said to have
entered in a religious order when he undergoes some ceremonies and rites
prescribed by the religion. Now there are some other things to notice here. For
example if one person has entered into a religious order but comes home daily
and cohabits then it cannot be taken as a ground for divorce because he has not
renounced the world. Therefore, the abovementioned two conditions must be
satisfied to claim it as a ground of Divorce. In the same order if a Sikh

479 Govind v. Kuldeep, 1971 Del.151.

480 1954 SC 606; Satyanarayan v. Hindu Religious Endowment Board, 1957 AP 824.

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 becomes a Granthi or a Hindu becomes a Pujari then it does not amount to
renunciation of world. A simple declaration of renunciation of world is not
enough, formal entry into a religious order is must.

4.4.9 Presumption of Death

Under the Act, a person is presumed to be dead, if he/she has not been heard of as
being alive for a period of at least seven years. The burden of proof that the
whereabouts of the respondent are not known for the requisite period is on the
petitioner under all the matrimonial laws. This is a presumtion of universal acceptance
as it aids proof in cases where it would be extremely difficult if not impossible to
prove that fact. A decree of divorce granted under this clause is valid & effective even
if it subsequently transpires that the respondent was, in fact, alive at the time when the
decree was passed.481This provision is based on the presumption of death principle
under sections 107-108 of the Indian Evidence Act, 1872. As discussed in last ground
that a person who has renounced the world is considered as civil dead, so a person
who is not heard alive by his relatives and the people who should know his
whereabouts, for at least a period of seven years is deemed to be legally dead. If such
a person was married then his/her spouse may seek a decree of Divorce. In such cases
the respondents do not need to appear in the court, the court publishes in newspapers
and give sufficient time for response by the other party. If the respondent does not
response in prescribed period of time then court grants the decree of divorce. Once the
marriage is dissolved the petitioner is free to marry again and even if the missing
spouse returns the other day of passing of the decree or much before the second
marriage, he can do nothing. In Nirmoo v. Nikkaram482, it was held that if a person
presumes the death of his/her spouse and marries someone else without getting a
decree of divorce, and then the spouse may after return question the validity of second
marriage.

These were the nine important grounds of divorce provided under section 13(1).
Hindus consider marriage to be a sacred bond. Prior to the Hindu Marriage Act of

481 Anirudh Aggarwal, “Dissolution of Marriage under Hindu Law”, available

athttp://youngarenalitigators. blogspot.in/2017/01/dissolution-of-marriage-under-hindu-
law.html, (visited on March 20, 2018).
482 1968 Delhi 260.

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1955, there was no provision for divorce. The concept of getting divorced was too
radical for the Indian society then. The wives were the silent victims of such a rigid
system. However, time has changed; situations have changed; social ladder has
turned. Now the law provides for a way to get out of an unpleasant marriage by
seeking divorce in a court of law. The actual benefactors of such a provision are
women who no longer have to silently endure the harassment or injustice caused to
them by their husbands. 483

Non-resumption of cohabitation after decree of separation or restitution {Section

13(1A)}

(Irretrievable breakdown of marriage as a ground for Divorce)

It is notable that despite the recommendations of Law commission of India and

Supreme Court of India irretrievable breakdown has not been made a separate ground
for divorce so far. Section 13(1A) was introduced through an amendment in Hindu
Marriage Act in 1964, and is just a symbol that we are going to recognize divorce on
the ground of irretrievable breakdown of marriage soon. The marriage Law
(Amendment) Bill, 2010 has proposed “Irretrievable breakdown of marriage” as
aground for divorce under section 3. Before the amendment of 1964 under Clauses
(viii) and (ix) of section 13(1), a petition for divorce could be filed only by a party
who had obtained a decree for judicial separation or restitution and the period of non-
cohabitation or non-compliance after which the decree holder became so entitled was
two years. However, after the amendment, the right to seek a divorce was extended to
the judgment debtor also; thus even a spouse against whom a decree of separation and
restitution has been passed was given right to seek divorce. The period was reduced to
one year.484

483 Simran, “Divorce under Hindu Law”, available at

https://www.lawctopus.com/academike/divorce-under-hindu-law/, (visited on March 20,
2018).
484 Mayank Madhav, SINGHAL’S FAMILY LAW-I, 3rd ed. 2013, p. 153.

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Section 13(1A) in The Hindu Marriage Act, 1955 reads as follows:

(1A) Either party to a marriage, whether solemnised 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.

Clause (i) of section 13(1A) says that any of the parties to divorce may file a petition
of divorce on the ground that after passing of decree of judicial separation there has
been no resumption of cohabitation between the parties for a period of one year. In
other words, a party may file for divorce if a decree of judicial separation where both
of them were parties has already been passed and the other party has not resumed the
cohabitation for a period of one year. Where a party has made a petition of divorce
after two years of the decree of judicial separation obtained by other party, the court
passed the decree.485

Meaning of Cohabitation

Cohabitation means two persons live together as husband and wife. It consists of the
husband acting as a husband towards the wife and the wife acting as a wife towards
the husband, the wife rendering house wifely duties to the husband and husband
supporting his wife as a husband should. It does not necessarily depend upon whether
there is sexual intercourse between husband and wife. If there is sexual intercourse
between them then it is strong evidence and it may be conclusive evidence of
486
cohabitation. It must mean that husband and wife have begun acting as such and

485 Ganja Devi (Smt.) v. Purushottam Giri, AIR 1977 Del. 178.
486 R.K. Agarwala, HINDU LAW, 21st ed. 2003, p. 108.

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have resumed their status and position as husband and wife.487 The case where,
husband and wife start living together and enjoy their relationship as husband and
wife is called Cohabitation.

Here it is evident that this ground is available to both the parties and not merely to
innocent party and the other party cannot deny the divorce, the amendment of 1964
soughed to give up the guilt theory and introduced a new theory i.e. irretrievable
breakdown theory. Non-compliance with a decree for restitution of conjugal rights
and non resumption of cohabitation after a decree of judicial separation for a period of
one year is treated as a conclusive evidence of breakdown of marriage. As per the
statement of Objects and Reasons, the right to seek divorce on any one of grounds
should be available to both husband and wife as in such case it is clear that the
marriage has proved a complete failure. There is, therefore, no justification for
making the right available only to the party who has obtained the decree in each case.
In such a case, Parliament felt that no useful purpose will be served by maintaining a
union which has ceased to exist but in name and further no useful purpose will be
served in determining at whose fault marriage has broken down- may be one of the
parties was at fault, may be no one was at fault, may be both were at fault, may be no
one was at fault, may be it has broken down by incompatibility. Interestingly, in Sneh
Prabha v. Ravinder Kumar488, the Supreme Court granted divorce after reaching to
the conclusion that marriage had irretrievably broken down and appeal against an
order confirming decree of Restitution and after making much effort at reconciliation.
However under both the statutes, irretrievable breakdown of marriage is not per se a
ground of divorce.489 It is only one version of irretrievable breakdown which
constitutes a ground, i.e. non-compliance with decree of restitution or non-resumption
after a decree of judicial separation for a period of one year. While introducing these
breakdown grounds, it seems that Parliament overlooked the provision of section
23(1)(a) of the Hindu Marriage Act, 1955, which lays down that relief will not be
granted to a petitioner who is shown to be taking advantage of his or her own wrong
or disability. With the result, the “taking advantage” of his or her own wrong principle

487 Harichand Sriniwas Mangaonkar v. Sunanda, AIR 2001 SC 1285.

488 AIR 1995 SC 2170.
489 Ashok Kumar v. Shabnam, AIR 1989 Del 121.

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has been applied by the court to the breakdown ground also. When the Hindu
Marriage Act, 1955 was amended, no amendment was made in this regard, though its
application was excluded when marriage is sought to be annulled on the ground of
insanity. In cases coming after 1976490, the High Courts have taken the view that the
post- decree conduct of the petitioner is material and in case it would be found that in
seeking divorce on the ground of non-resumption of cohabitation after a decree of
judicial separation or non-compliance with the decree of restitution of conjugal rights,
the petitioner is taking advantage of his own wrong, he would not be allowed relief.
Thus where the husband obtained a decree of restitution but did not allow the wife to
comply with it and when later on he sued for divorce on the ground of compliance of
the decree for the statutory period, the courts refused to grant him divorce, as they felt
that it would amount to giving him advantage of his wrong- his not allowing the wife
to comply with the decree was such a wrong. In some more cases also this view had
been expressed.491

Section 13(1A) clause (ii) says that if after passing the decree of restitution of
conjugal rights by competent court, the conjugal rights have not been restored for a
period of one year or more either of the parties may file a petition for divorce as it is a
valid ground for divorce. The delhi high court in Harvinder kaur v. Harmander
kaur492, was of the view that a time limit should be prescribed in every case, failing of
which may dissolve the marriage. The Supreme Court given a very logical and
sensible verdict in two different cases493 that a party seeking and obtaining a decree of
restitution of conjugal rights but later ignoring it despite the other party’s willingness
to re-unite would still not be ineligible to seek divorce on the ground of non-
compliance with the decree. In Pandit Dattaraya Kulkarni v. Laxmi Pandit
Kulkarni494, it was held that, if a wife does not comply with the decree of restitution
of conjugal rights obtained by husband against her, on the account of bigamy indulged

490 Geeta v. Sarveshwara, AIR 1983 AP 111.

491 Mubashshir Sarshar, “Non Resumption of Cohabatation as a fault ground of divorce under the
Hindu Marriage Act”, available at
http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.870.1774&rep= rep1&type=pdf,
(visited on March 21, 2018).
492 AIR 1984 Del. 66.
493 Dharmendra kumar v. Usha Kumar AIR 1977 SC 2218; Saroj Rani v. Sudarshan Kumar
Chadha AIR 1984 SC 1562.
494 (2001) 1 Femi-Juris CC 47 (Bom).

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him by later and after some time seeks a maintenance order too, it will be a legal
ground for refusing relief. In Jayanti Mondal v. Sri Tushar Kanti Mondal,495 it was
found that the wife was living in husband’s village from four months but no
cohabitation took place between them during this period. The decree for divorce was
passed.

Both the situations provided under section 13(1A), aim at maintaining a balance
between respect for the binding sanctity of marriage on the one hand and the public
policy of unfettering persons whose union has utterly broken down. Where the
marriage has become an unbearable yoke to the spouses, it is quite just and proper to
facilitate them to free themselves from marital fetters and seek their happiness either
by living singly or marrying elsewhere.496 The 71st report of law commission in 1978
had recommended that irretrievable breakdown of marriage should itself be
recognized as a separate ground for divorce and a Marriage Law (Amendment) Bill,
1981 was introduced basing on this, which proposed the insertion of three new
sections after sec 13B to recognize irretrievable breakdown as a ground for divorce.
But due to various reasons bill could not become a law. Law commission once again
made an attempt to incorporate irretrievable breakdown of marriage as a ground in
2009 through its 217th report. A bill named Marriage Law (Amendment) Bill, 2010
has been passed by Rajya Sabha relating to this provision but has not become a law so
far.

4.5 Wife’s Special grounds for Divorce

With a long history of patriarchy, many aspects of marriage and divorce in Indian
society have been emphatically biased against women497. The Hindu Marriage Act,
1955, attempted to raise women’s social standard by introducing this provision. Apart
from the grounds available to both husband and wife, a wife has been given some
additional grounds under Hindu Marriage Act, 1955, for divorce or judicial
separation. Section 13(2) of Hindu marriage act, 1955, originally provided two special

495 (2005) 1 HLR 112 (Cal DB).

496 Mayank Madhav, SINGHAL’S FAMILY LAW-I, 3rd ed. 2013, p. 154.
497 Kalyani, “Grounds of Divorce under Hindu Law”, available at
http://www.futurescopes.com/divorce/getting-divorce/3692/grounds-divorce-under-hindu-
marriage-act, (visited on March 21, 2018).

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grounds to wife to seek divorce. The Marriage Laws (Amendment) Act, 1976 added
two more fault grounds available to wife. Therefore, there are total four special
grounds for divorce available to a Hindu wife only.

Section 13(2) runs as under-

A wife may also present a petition for the dissolution of her marriage by a decree of
divorce on the following grounds:

(i) in the case of any marriage solemnized before the commencement of this
Act, that the husband had married again before the 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;

(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, (78 of 1956), or in a proceeding under Section 125 of the Code of
Criminal Procedure, 1973, (Act 2 of 1974) or under corresponding Section
488 of the Code of Criminal Procedure, (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;or

(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 Law (Amendment) Act, 1976.

After going through the statutory language we can divide these grounds and elaborate
one by one to understand the true intention of legislature. So according to the Hindu

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Marriage act, 1955, these are the four special grounds available to wife for obtaining a
decree of divorce:

1. Pre-Act Polygamous Marriage,

2. Rape, Sodomy or Bestiality,
3. Non-Resumption of Cohabitation after a Decree/Order of Maintenance, and
4. Repudiation of Marriage.

4.5.1 Pre-Act Polygamous marriage-

Clause (i) to section 13(2) states that, “That the husband has another wife from before
the commencement of the Act, alive at the time of the solemnization of the marriage
of the petitioner. For example, the case of Venkatame v. Patil498, where a man had two
wives, one of whom sued for divorce, and while the petition was pending, he divorced
the second wife. He then averred that since he was left only with one wife, and the
petition should be dismissed. The Court rejected the plea. Such a ground is available
if both the marriages are valid marriages & the other wife should be present at the
time of filing of the petition. However, today this ground is no more of practical
importance.499 In the case of a marriage solemnized before the commencement of the
Act, the husband has married again before such commencement, or that any other
wife of the husband, married before such commencement, was alive at the time of the
Petitioner’s marriage. This ground can obviously exist only in the case of a marriage
solemnized before the Act came into force. As regard marriages solemnized after the
Act, under Ss. 5 and 11, such marriages would be bigamous and void ab initio, and
there would naturally be no question of divorce in such cases. It is also necessary
under this clause that the other wife should be alive at the time when the Petition is
presented to the Court. It will be seen that this remedy is available to a wife,
irrespective of the fact that the other marriage had taken place before or after the
marriage of the petitioner wife with him. Thus, the remedy is available to the first as

498 AIR 1963 Mys. 118.

499 Legal Bites, “Concept and grounds of divorce”, available at https://www.legalbites.in/law-
notes-hindu-law-concept-and-grounds-of-divorce/, (visited on March 21, 2018).

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well as the subsequent wives.500 The Hindu marriage act, 1955, has considered
Bigamy as an offence under section 5501. The wife seeking divorce under this clause
has to prove :

(i) that both the wives were married to him before the commencement of the Act,

(ii) that both of them are alive at the time of filing of petition for divorce,

(iii) that both the marriages legally exist at the said time.

The wife has to prove the marriage of her husband with other woman, mere fact of
living together as husband and wife is not sufficient to constitute the ground for
divorce. The wife claiming the second marriage of her husband as a ground of divorce
has to bear the burden of proving the second marriage. if the wife could not discharge
the burden then she cannot seek the divorce on this ground, however, she can seek
divorce on the ground of adultery available under section 13(1)(i). Ram Singh v.
502
Susilabai, the court said that mere tying of a holy string in the hand of a woman
does not make the husband married with that woman. But the law here pays attention
only to formalities of rites. Therefore the court, it is submitted, must take notice of the
intention of the parties in the observance of whatever ceremonies they went through at
the time of bigamous marriage. That is, this should be a relevant consideration in
judging the charge of bigamy.503

The provision under clause (i) of section 13(2) clearly shows the intention of
legislature to enforce monogamy and abolish bigamy or polygamy so as to make
women acquire a good status in the society. The social standard of women has
definitely risen by the introduction of such provision in Law by Legislature.

500 Darshan Kadu, “Grounds of Divorce Available Only to the Wife under Hindu Marriage Act”,
available at: http://www.shareyouressays.com/knowledge/grounds-of-divorce-available-only-
to-the-wife-under-hindu-marriage-act/117232, (visited on March 21, 2018).
501 Section 5(i) neither party has a spouse living at the time of the marriage, The Hindu Marriage
Act, 1955.
502 AIR 1970 Mys 20.
503 Mayank Madhav, SINGHAL’S FAMILY LAW-I, 3rd ed. 2013, p. 161.

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4.5.2 Rape, Sodomy or Bestiality

A husband provides a right to wife to file for divorce by committing the offence of
Rape, Sodomy, and Bestiality. All are considered as grounds of Divorce under section
13 (2) (ii) of Hindu Marriage Act, 1955, and also punishable criminal offences under
section 375 and 377 of Indian Penal Code, 1860. It is not necessary that the husband
should have been convicted for any of above mentioned offences in any criminal
proceedings. The offence should have taken place subsequent to the marriage of
petitioner. An attempt to commit rape, sodomy or bestiality is not a ground for
obtaining the decree of divorce. It is not required of the wife to prove that the husband
had actually been punished for such offences. Mere proof of such misconduct on his
part is sufficient to enable the wife to get a decree of divorce.504

A man is said to commit "rape" if he505

(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a
woman or makes her to do so with him or any other person; or

(b) inserts, to any extent, any object or a part of the body, not being the penis, into
the vagina, the urethra or anus of a woman or makes her to do so with him or
any other person; or

(c) manipulates any part of the body of a woman so as to cause penetration into
the vagina, urethra, anus or any part of body of such woman or makes her to
do so with him or any other person; or

(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do
so with him or any other person, under the circumstances falling under any of
the following seven descriptions:—

Firstly, against her will.

Secondly, without her consent.

504 Akshay Koundal, “Grounds of Divorce in Favour of Wife under Hindu Law”, available at
http://www.shareyouressays.com/knowledge/grounds-of-divorce-in-favour-of-wife-under-
hindu-law/117839, (visited on March 21.2018).
505 Section 375, Indian Penal Code, 1860.

209
 Thirdly, with her consent, when her consent has been obtained by putting her
or any person in whom she is interested, in fear of death or of hurt.

Fourthly, with her consent, when the man knows that he is not her husband
and that her consent is given because she believes that he is another man to
whom she is or believes herself to be lawfully married.

Fifthly, with her consent when, at the time of giving such consent, by reason
of unsoundness of mind or intoxication or the administration by him
personally or through another of any stupefying or unwholesome Substance,
she is unable to understand the nature and consequences of that to which she
gives consent.

Sixthly, with or without her consent, when she is under eighteen years of age.

Seventhly, when she is unable to communicate consent.

Explanation 1, for the purposes of this section, "vagina" shall also include labia
majora.

Explanation 2, consent means an unequivocal voluntary agreement when the woman

by words, gestures or any form of verbal or non-verbal communication,
communicates willingness to participate in the specific sexual act:

Provided that a woman who does not physically resist to the act of penetration shall
not by the reason only of that fact, be regarded as consenting to the sexual activity.

Exception 1, A medical procedure or intervention shall not constitute rape.

Exception 2, Sexual intercourse or sexual acts by a man with his own wife, the wife
not being under fifteen years of age, is not rape.'

A man is guilty of rape if he forces a woman for sexual intercourse against her will or
without her consent, or by obtaining her consent by putting her to fear of death, or
with her consent under mistaken belief that she is his wife when actually she is not, or
with or without her consent when she is below 12 years of age.

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Unnatural offences506- “Whoever voluntarily has carnal intercourse against the order
of nature with any man, woman or animal, shall be punished with imprisonment for
life, or with imprisonment of either description for a term which may extend to ten
years, and shall also be liable to fine.”

Explanation- Penetration is sufficient to constitute the carnal intercourse necessary

to the offence described in this section.

A carnal intercourse against the order of nature with any man, woman or animal
amounts to Sodomy or Bestiality. Sodomy committed to his own wife by a man is
considered as a matrimonial offence and is a valid ground for wife to claim decree of
divorce.507

4.5.3 Non-Resumption of Cohabitation after a Decree/Order of

Maintenance

Where a decree for maintenance of wife under 18 of the Hindu Adoptions and
Maintenance Act 1956, or an order for maintenance of wife under section 125 of Cr
PC 1973, has been passed against the husband, the wife is entitled to present a
petition for divorce provided two conditions are satisfied:

(i) she was living apart, and

(ii) since the passing of such decree or order cohabitation between her and her
husband has not been resumed for at least one year or upwards,

decree of divorce would be granted.508

Decree or order of separate residence and maintenance can be obtained, it should be

noted, under section 18 of Hindu Adoptions and Maintenance Act, 1956, and under
section 125 of Cr.P.C, 1973. And the policy of Law is not to prolong such situations.
The Law therefore gives such a wife, who obtains such a decree or order, a right to
seek divorce if her husband does not resume cohabitation within one year from the

506 Section 377, Indian Penal Code, 1860.

507 Sawarna Kumari v. M.B. Chaudry, 1996 MP 104.
508 Sumit Kumar Suman, “No Fault Theory of Divorce” available at
https://www.lawctopus.com/academike/fault-theory-divorce/, (visited on March21, 2018).

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date of the decree or order509. When wife gets a decree of maintenance or cohabitation
it becomes the duty of husband to pay her maintenance or resume the cohabitation
within a period of one year and if he fails in doing so a wife may claim a decree of
divorce.

4.5.4 Repudiation of Marriage (Option of Puberty)

This clause talks about the right of repudiation of marriage of a girl who has attained
the age of 15. ‘Option of puberty’ means the right of a girl to repudiation of the
marriage if the marriage was solemnized before she attains the age of fifteen years.
After attaining the age of fifteen years but before reaching eighteen years she can
exercise this right. This is a principle of Muslim law now incorporated in the Hindu
Marriage Act. Whether the marriage is consummated or not she can exercise this right
in Hindu law. The consummation of marriage is not necessary here. A wife can file a
petition of divorce under this clause if:

(i) at the time of solemnization of marriage she was below 15 years of age,

(ii) after attaining the age of 15 years and before 18 years of age she has opt for
repudiation of such marriage.

Here, the law provides for repudiation of marriage after attaining the age of 15
years, and does not provides for procedure of divorce. The wife can file for the
decree of divorce only after attaining the age of majority i.e. 18 years510.The
petition filed by wife at the age of 13 is premature.511 Originally, Hindu Marriage
Act, 1955, did not provide for such provision, it was only amendment of 1976
which introduced this ground for wives only. In 1976, when the lowest age of
girls’ marriage was still 15, it was provided in the act that a girl married before
that age can repudiate the marriage (even if consummated) during age 15-18 and
seek divorce on that ground. The 1978 amendment of the Act which raised the
marriage age for girls to 18 should have suitably amended this provision but it
remains intact and was not touched also by the prohibition of child marriage act,

509 Mayank Madhav, SINGHAL’S FAMILY LAW-I, 3rd ed. 2013, p.162.
510 Bathula v. Bathula,1981 AP 74.
511 Ramesh Kumar v. Sunita Devi, 2005 P&H 13.

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2006, under which such a girl’s marriage remains voidable at her option until she
attains the age of 20 years.512

4.6 Divorce by mutual consent (section 13B)

Marriages are considered as sacred alliance for life, it is not just a union between two
persons but between two families. Nonetheless, it is a relation between two people
and since no human is perfect it is highly probable that two people do not feel
compatible with each other so as to live together a whole life. Therefore, it can be
seen that the cases of divorce are fast rising even in countries like India where
marriages are considered to be made in heaven. In these circumstances, it is always
better that couple take divorce by mutual consent so as to avoid further disputes, time
and money.513 The ground of divorce by mutual consent was inserted in the Hindu
Marriage Act 1955 by an amendment in 1976, by adding Section 13B. Section 13B of
the Hindu Marriage Act, 1955 runs:

 Subject to the provisions of this Act a petition for dissolution of marriage by a

decree of divorce may be presented to the district court by both the parties to a
marriage together, whether such marriage was solemnised before or after the
commencement of the Marriage Laws (Amendment) Act, 1976, on the ground
that they have been living separately for a period of one year or more, that
they have not been able to live together and that they have mutually agreed
that the marriage should be dissolved.

 On the motion of both the parties made not earlier than six months after the
date of the presentation of the petition referred to in sub section (1) and not
later than eighteen months after the said date, if the petition is not withdrawn
in the meantime, the court shall, on being satisfied, after hearing the parties
and after making such inquiry as it thinks fit, that a marriage has been
solemnized and that the averments in the petition are true, pass a decree of

512 Tahir mahmood, PRINCIPLES OF HINDU LAW, ed.2014, pp. 154-155.

513 Neerja Gurnani, “Divorce by Mutual Consent”, available at
https://www.lawctopus.com/academike/divorce-by-mutual-consent/, (visited on March 21,
2018).

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 divorce declaring the marriage to be dissolved with effect from the date of the
decree.514

Compromise by itself does not dissolve the marriage- where the parties to divorce
has decided to apart they need to go through a proper procedure in a civilized manner
and ask the court to grant them the decree of Divorce. The parties are not allowed to
decide themselves to live apart. For a legal divorce they need to knock the doors of
court. Even proceedings before the Panchayat do not effect divorce.

The essential conditions of divorce by mutual consent

Section 13 B (1) says that the petition for divorce must be jointly presented by the
parties seeking divorce before the court. Similarly section 13 B (2) talks about the
presentation of motion of hearing must also be made by both the parties. Other
important requirements are as under:

1. The parties to divorce must have been living separately for a period of one
year.

2. They must not have been able to live together.

3. There should be a mutual agreement of dissolving the marriage between them.

4. They wait for a period of six months from the date they present the petition.

5. The motion to court should be made by both of them before the expiry of 18
months from the date of filing of petition.

6. The consent for mutual consent divorce must not be obtained by force, fraud
or undue influence.

In Leela Mahadeo v. Mahadeo Sita Ram515, the Bombay high court held that if
all the ingredients of section 13 B are proved, the divorce cannot be denied.

514 Section 13 B, Hindu Marriage Act, 1955.

515 AIR 1991 Bom. 105.

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It is to be noted that a petition for divorce under section 13 of Hindu Marriage Act,
1955, can be converted into one for Divorce by mutual consent under section 13 B of
the said Act. The court can allow the parties to divorce to amend a petition for relief
under sec 13 or any other section to be converted into a petition for divorce by mutual
consent, even at the appellate stage. Cases like Padmini v. Hemant Singh516 and
Dhiraj kumar v. State of Punjab517, are the examples of such conversion of petition of
divorce under section 13 into divorce by mutual consent under section 13B. In the
case of Kiran v. Sharad Dutt,518 the parties lived separately for many years, with
eleven years of litigation. When the matter went up to the Supreme Court by Special
Leave Petition, the parties agreed to amend the original petition to a petition for
dissolution of marriage on mutual consent. Under provisions of Art. 142 of the
Constitution of India, the Apex Court allowed the prayer. Divorce petition was
amended accordingly, marriage was dissolved by mutual consent, and the agreement
between the parties regarding payment of alimony and monthly maintenance was
directed to be made part of the decree.

A document labelled as talaqnama created by the husband to divorce his wife, guided
by the Hindu Marriage Act, is of no value. It cannot even operate as a document of
living separately by mutual consent.146 In the case of Arun Chawla v. Reena,519 held
that once an earlier application for dissolution of marriage on some other ground is
sought to be converted into one for dissolution on mutual consent (and if such prayer
is allowed), the period of six months would be reckoned from the original date of
filing of the application. In the case of Apurba Mohan Ghosh v. Manashi Ghosh,520 it
has been clearly held that grant of a decree for divorce cannot be founded on
compromise. However, the Apex Court has clearly held that when the Court comes to
the conclusion that the marriage has irretrievably broken down and that there is no
possibility of reunion or reconciliation between the parties and that the consent is free

516 (1994) 2 HLR 666 (MP).

517 2004 1 HLR 472(P&H).
518 (2000) 10 SCC 243.
519 1(1999) DMC 18 (P&H-DB); Surestha Devi v. Om Prakash AIR 1992 SC 1904; Krishna v.
Attar Singh, 1 (1992) DMC 211 (Del); Padmini v. Hemant Singh, 1 (1994) DMC 465 (MP);
Hari Prakash Mishra v. Shakuntala Mishra, II (1995) DMC 202; Neeranjan Kumar v. Veena
Rani 1995 (2) Pun LR 200.
520 AIR 1989 Cal 115: 93 CWN 79: I (1990) DMC145: (1988) 2 CHN 449.

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consent not having been obtained by fraud, force or undue influence, the court shall
have to pass a decree for dissolution of marriage by mutual consent as the very
legislative intent behind enacting such provision would be rendered meaningless if it
would render the provision to lead to a position of perpetuation or procrastination of
agonies and miseries of the separated spouses despite the realization that re-
conciliation was possible. The three important ingredients of section 13 B are
discussed in detail as under:

a) Living separately for a period of one year

The Supreme Court of India in the case of Sureshta Devi v Om Prakash521 has ruled
out “that the expression living separately connotes not living like husband and wife. It
has no reference to the place of living. The parties may live under same roof by way
of circumstances, and yet they may not be living as husband and wife. What seems to
be important is that they have no desire to perform marital obligations and with that
they have been living separately for a period of one year immediately preceding the
presentation of the petition.” It has been ruled out by Supreme Court in various cases
that the expression “have been living separately’ does not necessarily means physical
separation or living separately and apart what is material is that no marital obligations
are performed between the spouses and they are not living together as husband and
wife. In Kirtibhai Girdharbhai Patel v. Prafulaben Kiritbhai Patel522, a joint petition
filed by both the parties. It was a common contention that on account of broken
marriage, the spouses have been residing separately and their relation, as husband and
wife, has not been consummated since 1986. However, the trial court dismissed the
petition holding that one of the conditions that spouses must have been living
separately for one year or more was not satisfied as the spouses stayed together.
However, the High Court did not agree and held that this condition has been living
separately for a period of one year will be fulfilled even if they have been living under
one roof, but the marriage has not been consummated.

521 (1992) AIR SC 1904; Neerja Gurnani, “Divorce by Mutual Consent”, available at
https://www.lawctopus .com/academike/divorce-by-mutual-consent/, (visited on March 21,
2018).
522 AIR 1993 Guj 111.

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b) The parties have not been able to live together-

After establishing the first requirement that the parties were living separately for one
year or more, the second point that has to be established is that the parties have not
been able to live together. In Sureshta Devi v Om Prakash,523 the Supreme Court
observed that expression “have not been able to live together” seems to indicate the
concept of broken down marriage so much so that there is no possibility of any
reconciliation. The parties need not establish the fact that they have not been able to
live together. The very fact that they have presented a petition by mutual consent is
indicative of this fact that they have not been able to live together.524 However, it is
very imperative to determine whether consent given by both the parties is free and not
obtained by any kind of force, fraud or undue influence. Here the word ‘able’ does not
mean inclined. When the spouses cannot live together such condition may be due to
some external or internal reason. There may be a case that spouses no longer like each
other or they like some other persons respectively. It is possible that their thoughts do
not match or their philosophy of life may be different or there may be disagreement
between them relating to the socio-political views, or habits may be different etc. The
substance is that their marriage has been broken down and reconciliation is not
possible.

c) Mutually agreed to Dissolve the marriage

The parties to divorce by mutual consent have to satisfy the court that they mutually
agree to dissolve the marriage and their consent has not been obtained by fraud, force
or undue influence. Section 23 (1) (bb) of Hindu Marriage Act, 1955, talks about the
provision.525

523 (1992) AIR SC 1904; Neerja Gurnani, “Divorce by Mutual Consent”, available at
https://www.lawctopus .com/academike/divorce-by-mutual-consent/, (visited on March 21,
2018).
524 Paras Diwan, LAW OF MARRIAGE & DIVORCE, 5th ed., 2008, p. 529.
525 Sec. 23 (1) (bb) when a divorce is sought on the ground of mutual consent, such consent has
not been obtained by force, fraud or undue influence.

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Sec 13 B (2) Waiting period for consideration of petition

Under section 13 B (2) the parties has to make a joint motion not earlier than six
months and not after 18 months of the said date. The motion enables the court to
proceed with the case and satisfy itself about the genuineness of the averments in
petition and also know about the fact that whether the consent was a free consent or
obtained by fraud, force or undue influence. There have been conflicting judgments
on this regard that whether the courts should mandatorily wait for a period of six
months as given in the sub section(2) of Section 13B. In the Grandhi Venkata Chitti
Abbai526 case, the court observed that, “If Section 13-B (2) is read as mandatory, the
very purpose of liberalizing the policy of decree of divorce by mutual consent will be
frustrated more so when the parties started living separately for a considerable time.
Thus s 13-B (2) though is mandatory in form is directory in substance.” Likewise, in
the case of Dinesh Kumar Shukla v Neeta,527 it was held that the waiting period is
directory in nature and it can be brought down from 6 months( provided the
mandatory requirements of s 13-B (1) are fulfilled) when all efforts at reconciliation
failed. But, in the case of Hitesh Narendra Doshi v. Jesal Hitesh Joshi,528 it was held
that “the provision has a definite purpose and object, i.e. giving time to the parties for
introsp ection and reconciliation. That purpose and object stares at us so clearly by
the language expressed in s 13-B (2) of the Act robbing away the right of the court
from considering the petition earlier than six months.”In the case of Ashok Hurra v
Rupa Ashok,529 it was held that “in exercise of its extraordinary powers under Article
142 of the Constitution, the Supreme Court can grant relief to the parties without even
waiting for the statutory period of six months stipulated in s. 13-B of the Act. This
doctrine of irretrievable break-down of marriage is not available even to the High
Courts which do not have powers similar to those exercised by the Supreme Court
under Article 142 of the Constitution.” Therefore, the courts have been inclined more
towards waiving off this period if the circumstance of the case demands so and where
there is no chance of reconciliation between the parties. Also, Supreme Court by way

526 AIR 1999 AP 91.

527 AIR 2005 MP 106.
528 AIR 2000 AP 364.
529 AIR 1997 SC 452.

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of its extraordinary powers as provided under Article 142 of the Indian Constitution
can grant divorce without waiting for 6 months if it is satisfied that the marriage is
irretrievably broken down. However, this power is restricted only to Supreme Court.
There is still uncertainty whether High Courts and Family Courts have to mandatorily
wait for a period of 6 months. But as it is evident from many cases where there is no
possibility of reconciliation between the parties and the marriage has been broken
down irretrievably, the courts should follow the spirit of law more than the formal
requirements of the section.530

In the recent case of Amardeep Singh v. Harveen Kaur531, it has been held by the
Supreme Court that the period of 6 months, as mentioned in Section 13B (2) is not
mandatory but directory, it will be open to the court to exercise its discretion in the
facts and circumstances of each case where there is no possibility of parties resuming
cohabitation and there are chances of alternative rehabilitation. The question which
came up for consideration before the Hon'ble Supreme Court was whether exercise of
power under Article 142 of the Constitution to waive the period under Section 13B(2)
of the Hindu Marriage Act was mandatory or directory. While determining this point
the Hon'ble Supreme Court referred the decision in the case of Manish Goel vs.
Rohini Goel 532, wherein the bench of two Hon'ble Judges of this Court held that
jurisdiction of this court under Article 142 could not be used to waive the statutory
period of six months for the second motion under Section 13B, as doing so will be
passing an order in contravention of a statutory provision.

The court further held that "after considering the above decisions, we are of the view
that since Manish Goel (supra) holds the field, in absence of contrary decisions by a
larger Bench, power under Article 142 of the Constitution cannot be exercised
contrary to the statutory provisions, especially when no proceedings are pending
before this Court and this Court is approached only for the purpose of waiver of the
statute."

530 Neerja Gurnani, “Divorce by Mutual Consent”, available at

https://www.lawctopus.com/academike/divorce-by-mutual-consent/, (visited on March 21,
2018).
531 CA NO, 11158 OF 2017.
532 (2010) 4 SCC 393.

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In this regard the Hon'ble Court held that in determining the question whether
provision is mandatory or directory, language alone is not always decisive. The Court
was of the view that where the Court dealing with a matter is satisfied that a case is
made out to waive the statutory period under Section 13B(2), it can do so after
considering the following :

(i) The statutory period of six months specified in Section 13B(2), in addition to
the statutory period of one year under Section 13B(1) of separation of parties
is already over before the first motion itself;

(ii) All efforts for mediation/conciliation including efforts in terms of Order

XXXIIA Rule 3 CPC/Section 23(2) of the Act/Section 9 of the Family Courts
Act to reunite the parties have failed and there is no likelihood of success in
that direction by any further efforts;

(iii) The parties have genuinely settled their differences including alimony, custody
of child or any other pending issues between the parties;

(iv) The waiting period will only prolong their agony;

(v) The waiver Application can be filed one week after the first motion giving
reasons for the prayer for waiver.

If the above conditions are satisfied, the waiver of the waiting period for the second
motion will be at the discretion of the Court. The court concluded that the provision of
section 13 B (2) of the HMA is not mandatory but is directive. The court went on to
hold that, "Since we are of the view that the period mentioned in Section 13B(2) is not
mandatory but directory, it will be open to the Court to exercise its discretion in the
facts and circumstances of each case where there is no possibility of parties resuming
cohabitation and there are chances of alternative rehabilitation. The parties are now
at liberty to move the concerned court for fresh consideration in the light of this
order. The appeal is disposed of accordingly." The Court was of the opinion that in
conducting such proceedings, the court can also use the medium of video
conferencing and also permit genuine representation of the parties through close

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relations, where the parties are unable to appear in person for any just and valid
reason as may satisfy the court.533

Unilateral withdrawal of consent

The question arises before the courts in many cases that whether the consent may be
withdrawn for divorce by a party? For pursuing divorce by mutual consent, it is
imperative that mutual consent should continue till the decree is granted by the court.
In case, even if one of the parties to marriage withdraws his or her consent initially
given, the court instantly loses the jurisdiction to proceed further and grant relief
under section 13-B of the Act. 534While going through this problem in Sureshtha Devi
v. Om Prakash535, the Supreme Court held that the purpose of putting the divorce
petition on hold for the period of six months is that the party may reconsider their
move and change their mind about taking divorce. It is not necessary to be in mind of
both the parties to divorce, only one party may change its mind. The mutuality of
consent should keep on continuing till the decree of divorce by mutual consent is
passed. But courts vary in decisions as in Jayashree Ramesh Londhe v Ramesh
Bhikaji,536 the court held that once a joint petition by mutual consent was filed, no
party could withdraw from it without the consent of both the parties. Likewise, in
Nachhattar Singh v Harcharan Kaur,537 it was held that, “If both the parties had
voluntarily consented to file the petition for dissolving the marriage by mutual
consent and all other conditions mentioned in sub-section (1) of section 13-B of the
Act are fulfilled, it will not be open to a party to withdraw the consent.” In Anil

533 Lucy Rana, “Six Months Waiting Period Section 13B (2) Of Hindu Marriage Act For Divorce
By Mutual Consent Not Mandatory: Supreme Court”, available at
http://www.mondaq.com/india/x/631090/wills+
intestacy+estate+planning/Six+Months+Waiting+Period+Section+13B+2+Of+Hindu+Marria
ge+Act+For+Divorce+By+Mutual+Consent+Not+Mandatory+Supreme+Court, (visited on
March 21, 2018).
534 Vijrendra Kumar, “Divorce by Mutual Consent”, available at:
https://indialawyers.wordpress.com/2011/06/25/ divorce-by-mutual-consent/, (visited on
March 21, 2018).
535 (1992) AIR SC 1904.
536 AIR 1984 Bom 302.
537 AIR 1986 P&H.

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Kumar Jain v Maya Jain538 it was held that, “Under the existing laws, the consent
given by the parties at the time of filing of the joint petition for divorce by mutual
consent has to subsist till the second stage when the petition comes up for orders and
a decree for divorce is finally passed and it is only the Supreme Court, which, in
exercise of its extraordinary powers under Article 142 of the Constitution, can pass
orders to do complete justice to the parties.” The Supreme Court however clearly
expressed that only use the power under Article 142 only in special circumstances, in
normal circumstances the provisions of the statute have to be given effect to.539 In
Hitesh Bhatnagar v. Deepa Bhatnagar540, it is held as follows; “The court is bound to
pass a decree of divorce declaring the marriage of the parties before it to be dissolved
with effect from the date of the decree, if the following conditions are met:

(a) A second motion of both the parties is made not before 6 months from the date
of filing of the petition as required under sub-section (1) and

(b) After hearing the parties and making such inquiry as it thinks fit, the court is
satisfied that the averments in the petition are true; and

(c) The petition is not withdrawn by either party at any time before passing the
decree.

In other words, if the second motion is not made within the period of 18 months, then
the court is not bound to pass a decree of divorce by mutual consent.

Besides, from the language of the section, as well as the settled law, it is clear that one
of the parties may withdraw their consent at any time before the passing of the decree.
The most important requirement for a grant of a divorce by mutual consent is free
consent of both the parties. In other words, unless there is a complete agreement
between husband and wife for the dissolution of the marriage and unless the court is

538 AIR 2009 SC 222.

539 Neerja Gurnani, “Divorce by Mutual Consent”, available at
https://www.lawctopus.com/academike/divorce-by-mutual-consent/, (visited on March21,
2018).
540 (2011) 5 SCC 234.

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completely satisfied, it cannot grant a decree for divorce by mutual consent.
Otherwise, in our view, the expression “divorce by mutual consent” would be otiose.

4.7 Conclusion

As discussed earlier that prior to the introduction of Hindu Marriage Act, 1955, there
was no provision relating to divorce in India, especially under Hinduism, because the
concept of divorce was too radical as the marriage then was considered as a sacrament
and taken as a divine bond. But due to increase in harassment to the spouse, there was
a need of action against the other spouse. Also, the force relationships were resulting
in large number of suicide cases and ill health. To bring the proper end to marriage
relationships, concept of divorce came into action under Hindu Marriage Act 1955.
The court made the provisions of judicial separation, where both spouse can live apart
from each other and think and decide whether they actually need to get divorced or
not. Also to reduce the harassment over women and give them more freedom, the
court has set some exclusive grounds under which wife can obtain the decree of
divorce541. In ancient time marriages, wives were the only victims and they were used
to always be at the mercy of their husbands and other members of his family and were
not supposed to raise their voice and revolt against it. But as we all know that there
are always pros and cons of every law. So the legislature of our nation has a great role
to perform to see the future implications and act in a heedful manner. The laws
relating to divorce are being liberalized continuously to meet the needs of changing
conditions of society and providing liberation to spouses living in a dead relationship
of marriage. Although mutual consent divorce is a major step in this area but not often
when the marriage has broken badly and one of the spouses withhold the consent. The
courts have found themselves helpless in the condition when they can see that
marriage under consideration has been broken down irretrievably and have no chance
of repair but technical evidence are not enough to prove a matrimonial fault ground.
Noting such problem the Supreme Court and law commission of India have

541 Sarvagya Mishra, “Hindu Law - Divorce and Laws relating to Matrimonial Separations”,
available at: https://www.linkedin.com/pulse/hindu-law-divorce-laws-relating-matrimonial-
sarvagya-mishra, (visited on March 21, 2018).

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recommended making irretrievable breakdown of marriage as a ground for divorce.
But if the ground will be introduced as a separate ground for divorce ten there will be
a need of providing safeguards to make sure that it is not misused and none of the
parties is exploited.

****

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