Hindu Marriage Act of

1956
Ms. Muskan Sharma
Application of HMA Section 1

Case Study
1. A, Hindu a male, domiciled from Haryana married to female who is Buddhist, and
female has domiciled from Sikkim. They are living in USA. Whether the HMA applies on
them.
2. A, Hindu, a male married to female who is Sikh, by religion and they both
domiciled in India and both are living in Canada.
Issue- Whether HMA applies on them?
3. A, Hindu, a male married to female who is Muslim, by religion and they both
domiciled in India and both are living in Canada. Now they want divorce from each
other. They had a Child, who grown up as Hindu.
Issue- Whether that child can claim property right in his father ancestral property?
4. A, a Hindu married a Sikh women in Canada as per the ritual of Hindu Marriage, if
the dispute arose in India, then they can file petition for divorce in India.
Who is Hindu?

The Act Provides a legal framework for regulating marriages among Hindus,
Buddhists, Jains, and Sikhs. According to the Hindu Marriage Act, a "Hindu" for the
purpose of the act includes:
1. Any person who is a Hindu by religion: Individuals who follow Hinduism, whether
they are born into Hindu families or have converted to Hinduism.

2. Any person who is a Buddhist, Jain, or Sikh: The act also extends to individuals
who follow Buddhism, Jainism, or Sikhism. These religions share cultural and
historical ties with Hinduism and are considered under the Hindu Marriage Act.

The definition of a "Hindu" under the Hindu Marriage Act is primarily for the
purpose of regulating marriages and related legal matters. It may not encompass
the entirety of the spiritual, philosophical, and cultural dimensions of these
religions
Case Law

 Sondur Gopal v. Sondur Rajini 2013

The SC held that HMA has extra-territorial application and applies to all Hindus,
living in India or abroad provided they are domiciled in India.
Case law

 Section 5 of the Hindu Marriage Act of 1955 specifies the prerequisites for a
lawful Hindu marriage, which provides that both parties must be Hindus. If
one of the parties to the marriage is a Christian or a Muslim, the marriage will
not be considered a genuine Hindu marriage under the Hindu Marriage Act of
1955. Therefore, under the Act of 1955, a lawful marriage cannot be
solemnised if both parties are not Hindus. In Yamunabai Anant Rao Adhav v.
Anant Rao Shivaram Adhav (1988), it was made clear that Section 5 of the Act
only permits marriages to be performed between two Hindus.
In Maneka Gandhi v. Indira Gandhi (1984), the Apex Court determined that
Sanjay Gandhi was a Hindu for the following reasons:
 His mother was a Hindu, one of the parents, and
 He was raised as a Hindu openly.
Case law

In Perumal v. Ponnuswami (1971),

Perumal married Christian women, married as Hindu religion and their conduct
also show them Hindu. After sometimes husband and wife separated.
Ponnuswami, a child’s custody goes to Christian mother, but upbringing of the
child and they both live as a Hindu.
Ponnuswami filed case against perumal (father) for his right in joint family
property. Perumal contested that his wife is Christian and due to this
ponnuswami also considered as Christian. Hence, no right in joint family
property.
Court: Mother’s conduct and living is like a Hindu and after the separation also
live as a Hindu. Hence, ponnuswami has a right in the joint family property.
Definitions

 Full Blood : Descendent of same parents e.g. when related with blood from same father and mother
(Same mother)

 Half Blood : Descended from a common ancestor but by different wives: step sister/brother (different
mother)

 Uterine Blood : Descended from a common ancestor but by different husbands : (same mother but
different father)

 Agnate : when relationship is through another male (chacha, tau, dada)

 Cognate : when relationship is through another female e.g Your father’s sister’s son would be a cognate of
you. (Mama, mama’s son, bua’s son)

 Spainda relationship

 Prohibited relationship
Concept of Marriage:-
 The concept of marriage under Hindu Law is a sacrament in name of God by
performing religious ceremonies in order to attain moksha by controlling artha and
kama by practicing dharma, which is consequence of Hindu philosophy of life and
marriage by doing ones social and religious duties.
 Accordingly rules and regulations were developed by ancient text writers and then
by state from time to time resulting in evolution of the concept of marriage due to
social change in society from Vedic mantras to religious duty and finally to
sacrament as well as a contract.
 The dimensions of Hindu marriage have been further changed by advent of
emerging varying relationships that are in the nature of marriage. The paper
elaborately analyses the concept of marriage under Hindu law in socio-legal
perspective. It seeks to delve upon how far the traditional concept of marriage has
changed among Hindus.
Conditions for a Valid Hindu Marriage:
Under Section 5 of the Act, a marriage is considered valid if the following conditions
are met:
 Monogamy: Neither party has a spouse living at the time of the marriage. (r/w
section 11) void marriage section 494 of IPC (bigamy not allowed)
 Mental Capacity: Both parties are capable of giving valid consent, meaning they are
not of unsound mind. (r/w section 12) (voidable marriage)
 Age: The bridegroom has completed the age of 21 years and the bride the age of 18
years at the time of the marriage. (r/w section 12) (Punishment section 18)
(voidable marriage) P. Venkataramana v. State 1977
 Prohibited Relationship: The parties are not within the degrees of prohibited
relationship unless the customs or usages governing each of them permits a marriage
between the two. (r/w section 11) (Punishment section 18) void marriage
 Sapinda Relationship: The parties are not sapindas of each other unless the custom
or usage governing each of them permits a marriage between the two. (r/w section
11) (Punishment section 18) void marriage
Free Consent

 In a Hindu marriage, a person must be able to give legally binding consent,

according to Section 5(ii)(a) of the Act of 1995. The other party has the option
to declare the marriage null and void if neither of the parties is competent to
offer legally binding consent to the union due to mental incapacity.
 According to Section 5(ii)(b) of the Act, a marriage may be dissolved at the
discretion of the other party if one of the parties, even though they are
capable of giving legal consent, has been experiencing a mental condition
that renders them unfit for marriage and for having children.
Age of Marriage

 The bride must be at least 18 years old and the husband must be at least 21
years old at the time of the marriage, per Section 5(iii) of the Act. Any
marriage that is performed in contravention of these standards shall neither
be null nor voidable. Additionally, anyone who solemnised such a marriage
could be prosecuted under Section 18 of this Act with a harsh sentence of up
to two years in jail, a fine of up to one lakh rupees, or both.
 A marriage solemnised in contravention of the age requirements under
Section 5(iii) was found to be neither void nor voidable in the case of P.
Venkataramana v. State (1977). However, Section 18 of the Hindu Marriage
Act of 1955 makes violating the terms illegal.
Sapinda Relationship

 A marriage between two people who are associated as Sapindas is void,

according to Section 5(v) of the 1955 Act, if it is solemnised. To put it another
way, the husband and wife shouldn’t share the same ancestry. According
to Section 3 (f) of the Hindu Marriage Act of 1955, a Sapinda relationship is
one in which a person extends as far as the third generation (inclusive) in the
line of descent through the mother and the fifth generation (inclusive) in the
line of descent through the father, the line in each case being traced upward
from the individual in question, who is to be counted as the first generation.
 Even though the marriage between the Sapindas is null, it may still be lawful
if there is a valid custom or usage that governs each of them and allows for
such a union. By virtue of Section 18 of the Act, a marriage solemnised
between two parties related to Sapindas is void and the parties are subject to
punishment, which may include both simple imprisonment for a month and a
fine of Rs. 1,000.
Prohibited degree 3(g)

Clause 1. linear descendant

Clause 2. linear ascendant or dependent's wife or husband
Clause 3. wife of : brother, father’s brother, mother brother, grandfather,
grandmother brother
Clause 4. brother-sister, uncle-niece, aunt-nephew, children of brother/sister
It include full blood, uterine blood, half blood, legitimate or illegitimate child,
blood/adoption.
Degree of prohibited relationships

 A marriage between two people is void if it falls within the parameters of a

banned relationship. However, marriage is legitimate if it is governed by a valid
custom or usage that applies to both parties. It is crucial that the usage or custom
being practised be certain, reasonable, and not in conflict with public policy.
Various traditions that validate marriage in the context of banned partnerships can
be found all over India. For instance, it’s usual practice in Kerala to marry off
siblings’ offspring.
 In the case of Balu Swami Reddiar v. Balakrishna (1956), the court determined
that it was improper and against public policy, for one to marry his daughter’s
daughter in accordance with a Reddiar custom that was well-known among them in
the state of Madras. A marriage solemnised between two persons that fall under
the definition of a forbidden relationship is void pursuant to Section 18 of the Act,
and the parties are subject to a fine of INR 1,000 or one month’s simple
imprisonment, or both, depending on the severity of the offence.
Case Law

 In Alka Sharma v. Chandra Sharma (1991), the woman felt extremely chilly,
anxious, and frigid on the first night of the marriage. She was unwilling to
participate in the sexual act. She did not attend to the family members’
requirements and was unable to explain why she had urinated on the
verandah in front of the whole family. Thus, the husband initiated legal action
to dissolve the union. The marriage was declared null by the court.
 It is also to be noted that, according to Section 5(ii)(c) of the Act, if one
partner has experienced repeated episodes of insanity, the other party may
choose to have the marriage annulled. The Marriage Laws (Amendment) Act,
1999 altered this clause of the Hindu Marriage Act of 1955, and the phrase
“epilepsy” has been removed. Because of this, in modern times, if a party to
a marriage experiences frequent seizures, the marriage is still legal and the
party cannot choose to annul it.
Ceremonies for Hindu Marriage Section 7

 (1) A Hindu marriage may be solemnized in accordance with the customary

rites and ceremonies of either party thereto.
 (2) Where such rites and ceremonies include the Saptapadi (that is, the taking
of seven steps by the bridegroom and the bride jointly before the sacred
fire), the marriage becomes complete and binding when the seventh step is
taken.
Piya Bala Ghosh v. Suresh Chandra Ghosh 2018 that Homa (sacred fire) and
Saptapadi are the two essential rites of marriage , if it is not proved or
performed then it is not consider as valid marriage.
In the case of Bibba v. Ramkall (1982), the court determined that performing
certain ceremonies merely with the goal of considering the couples married does
not constitute performing the legal rituals. Depending on each person’s customs,
the ceremonies may differ.
Cont.

 Is Hindu Marriage Act contract or Sacrament?

Sacrament is a symbolic religious ceremony. Marriage are considered as divine between Hindu. It
is religious bond between a man an women, but not completely a contract.
Hindu marriage is considered to be so sacred ,it is believed that once marriage is complete by
performing proper rites and ceremonies, the marriage can not be dissolved at any cost and even
after death their soul remains united. Husband and wife are considered to be one soul. For this
reason the gotra of the wife is merged with the status of husband. They can not dissolve their
marriage at their own will.
 The three main aspects of the sacramental nature of marriage:
 Once it is tied cannot be untied.
 It is a religious and holy union of the bride and the groom which is necessary to be performed
by religious ceremonies and rites.
 The bond between the husband and wife which is permanent and tied even after death and
they will remain together after the death.
Marriage under Muslim law is considered as a contract.
Cont.

 In the case Shivonandh v. Bhagawanthumma AIR (1962) Mad. 400, the court
observed that marriage was binding for life because a marriage performed by
saptapadi before the sacred fire was a religious tie which could never be united.
The three main characteristics:
 It is a permanent union
 It is an eternal union.
 It was a holy or sacrosanct union.
In the case of Manmohini v. Basant Kumar that Hindu marriage is more of a
sacrament than a contract. Delhi High court held that Hindu marriage is a sacrament
and not a contract that can be entered into by execution of deed.
In the case of Tikait v. Basant ILR 28 Cal. 758, it was held that marriage is a
sacrament and an a indissoluble union of flesh and blood which continues even after
death.
Marriage as Contract
 The Court in Muthusami v. Masilaman (33 Mad.342), held that a marriage is a contract entered into for
consideration, with co-relative rights and duties. In Purushottamdas v. Purushottamdas (21 Bom.23) , the
court held that the marriage of Hindu person is a contract made by their parents.
 In Bhagwati Saran Singh v. Parmeshwari Nardar Sing (1942 ILR All. 518), the court referred that Hindu
marriage was not only a sacrament but also a contract.
 Furthermore, the Calcutta High Court held in Anjana Dasi v. Ghose (6 Bengal Law Reporter, 243), that
lawsuits related to marriage concern what in the eyes of the law should be treated as a civil contract, and
important civil rights derive from that contract.
 Also, Kanyadan meets the requirement of a gift under Hindu law. Therefore, it is a contract. But Section 12
of the Hindu Marriage Act of 1955 states that when consent is not obtained, the marriage is considered void.
It shows that despite the absence of the bride’s consent, the marriage is valid and legal. The nature of modern
marriage is contractual. Therefore, it accepts the idea of ​equality and freedom. It has been adopted due to
western ideas. There must be a voluntary participation agreement by both parties. Therefore, Hindu marriage
is neither a contract nor a sacrament. But it can be said that it is a mixture of both.
Registration of Marriage Section 8

 State govt. makes rule regarding registration of marriage

 Non- registration does not make a marriage invalid or void.
 Registration acts as an extra proof of marriage.
Gullipilli Sowria Raj v. Bhandaru Pavani 2009
Christan Man and Hindu women-Marriage
Marriage is not valid even after registration under HMA. Registration under HMA
does not make a marriage between Hindu and non-Hindu valid. This particular
marriage can register under Special Marriage Act
MATRIMONIAL REMEDIES

 Restitution of Conjugal Rights- Sec.9

 Judicial Separation- Sec. 10

 Grounds of Divorce- Section 13

 Divorce by Mutual Consent Section 13B

Restitution of conjugal right. Section 9

Restitution Meaning: An Act of restoring to the rightful owner which has been taken away or
lost or surrendered or restoration to previous position.

Meaning of Conjugal rights: Matrimonial rights

 This section provides a legal remedy for situations where either the husband or the wife has,
without reasonable excuse, withdrawn from the society of the other spouse.
 The aggrieved party can seek restitution of conjugal rights by filing a petition in the district
court. If the court is satisfied with the truth of the statements in the petition and finds no
legal ground to deny the application, it may decree restitution of conjugal rights.
Requisites for Section 9:
1. The spouses must not be residing together
2. The withdrawal of one party from the other should lack a reasonable ground.
3. The aggrieved party must actively apply for restitution of conjugal rights.
Cont.

There are a few reasons why such a petition could be rejected, and they are as
follows:
 Cruelty
 Adultery, and
 any other type of marital wrongdoing
The petitioner's request for the restoration of conjugal rights will be unsuccessful if
any of the aforementioned charges against him are upheld.

The respondent wife in Mohammad Rustam Ali v. Husaini Begam (1907) ILR 29 All 222
claimed she was the victim of mistreatment and did not want to return living with her
husband because she thought her safety would be at risk. It was deemed a viable
defence against Section 9 of the Hindu Marriage Act, 1955 by the Hon'ble Allahabad
High Court.
Cont.

 In Hamid Husain v. Kubra Begum (1918) ILR 40 All 332, the wife refused to resume
cohabitation on the grounds of cruelty despite the husband filing a suit for the restoration of
conjugal rights. The husband's request for the restoration of conjugal rights was denied in
this instance.
 The constitutional validity of the provision was put to question in the case of T. Sareetha v.
T. Venkatasubbaiah before the Hon'ble Andhra Pradesh High Court. In this case, the plaintiff
challenged Section 9 of the Hindu Marriage Act6 on the grounds that it violates fundamental
rights guaranteed under Article 14 and Article 21 of the Constitution. The Court was of the
opinion that this provision is barbarous and hostile especially against women. Due to such
forced cohabitation, her right over her own body is compromised and she loses her free right
over her sexual autonomy. As a result, her right to privacy guaranteed under Article 21 will
be violated by a decree of restitution of conjugal rights. Accordingly, the said provision was
first declared unconstitutional by the Court in 1983 stating that matters such as sexual
cohabitation are intimate decisions of the husband or the wife, and the state should not
interfere with the same.
Cont.

 The Delhi High Court in the case of Harvinder Kaur v. Harmander Singh
Chaudhary adopted a different approach. Section 9 was upheld by the Court as a
provision to preserve the sanctity of marriage. It distinguished sexual relations
from the concept of consortium or cohabitation concerning marriages. And Section
9 merely imposes cohabitation upon spouses and does not compel sexual relations
in a marriage. Thus, this judgment narrowed down the scope of the right to
privacy by holding that courts have no authority to enforce this fundamental right
in the private space of individuals.
 The landmark case of K.S. Puttaswamy v. Union of India conclusively laid down
that right to privacy also includes a person's right to exercise autonomy over their
own body. Hence, it is highly unfair to put an individual at the risk of losing
his/her autonomy over their own body, freedom integral to the fundamental right
to live with dignity guaranteed under Article 21 of the Constitution. Thus, it can
be fairly concluded that restitution of conjugal rights is an encroachment upon the
personal liberties and fundamental rights of an individual.
 Judicial Separation Section 10 r/w
section 13A
A situation where either due to the fault of one party or compatibility issues, the relationship
deteriorates to an extent that it becomes difficult to live with each other. The parties do not
want dissolution of marriage but want to reside separately.
Termination of marital obligation by Court.
Objective- To preserve the bond of marriage
Section 13A. Alternate relief in divorce proceedings.—In any proceeding 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) Conversion, (vi) Renouncement and (vii)
Presumed death of sub-section (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 for judicial separation.
Section 13(1A) (ii) Either party to a marriage, whether solemnized before or after the
commencement of this Act, may also present a petition for the dissolution of the marriage by a
decree of divorce on the ground— (i) that there has been no resumption of cohabitation as
between the parties to the marriage for a period of 8 [one year] or upwards after the passing of a
decree for judicial separation in a proceeding to which they were parties
Effect of Judicial Separation

 Parties not bound to live together and cohabit each other (free from marital
obligation)
 Marriage still subsist
 Parties free to resume cohabitation and live together
 If cohabitation not resumed for 1 year or more and ground for divorce under
section 13(1A)(i)
 If the decree is passed and husband forced her wife for Cohabitation then he
will be liable under section 376B of IPC (section 67 of BNS).
Rescission of decree of Judicial separation: Under section 10(2) Court on
application of either of party rescind the decree of judicial separation.
Cont.

 Rohini Kumari v. Narendra Singh (1971):

 The SC has held that in case where a spouse (here, the husband) deserts his
partner, the aggrieved party may file a suit of judicial separation if she does not
want to live with him. It was also held in this case that in case of judicial
separation the wife becomes entitled to seek maintenance from her husband under
both HMA.
In the case of Narasimha Reddy v. Basamma (1975), it was held that if any spouse
carried out a marriage during this period of separation before divorce, it would
amount to bigamy.
 JUDICIAL SEPARATION DIVORCE

Application for judicial separation can be filed Application for divorce under Section 13 of HMA
under Section 10 of HMA 1955 any time after 1955 can be filed only after at least 1 year of
marriage. marriage.

Judicial separation under HMA is a temporary Divorce is the permanent end of the institution of
suspension of marriage. marriage.

The parties can remarry once the divorce is

The parties are not allowed to remarry upon
granted and the time for appeal elapses or the
passing of the decree of Judicial Separation.
appeal is dismissed.

Decree of judicial separation can be rescinded

Decree of divorce cannot be rescinded but can be
through application by either party if court is
appealed against.
satisfied.
NULLITY OF MARRIAGE AND DIVORCE
Section 11 & 12
 Nullity decree makes marriage void with retrospective effect and is treated as
if it never happened
 The parties revert to unmarried states and children become illegitimate
 Under dissolution the marriage exists till the date of dissolution, is
recognized, it existed but now over
 The legitimacy of children is not affected.
 Valid Marriage : fulfills the conditions laid down in HMA
 Section 12: Voidable marriage : a voidable marriage is one that is flawed in
its validity but continues to exist until a Nullity of Marriage Order is
pronounced.
 Section 11: Void marriage : A void marriage is a marriage that is invalid as
they are considered to be unlawful.
Void marriage:-
Section 11 of Hindu Marriage Act, 1955 is dealing with the void marriages this Section says,
any marriage solemnised after the commencement of this Act shall be null and void and may,
on a petition presented by either party thereto [against the other party], be so declared by a
decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v)
of Section 5.[1]
 No Legal Status: A void marriage has no legal status and is considered non-existent from
the beginning. It does not create any marital rights or obligations between the parties.
 Remedies Available: Parties to a void marriage can seek legal remedies for issues like
custody of children, maintenance, and other related matters.
 Rights of Children: Despite the marriage being void, children born from such a marriage
are considered legitimate under Section 16 of the Act. They have the same rights as children
born from valid marriages concerning inheritance and maintenance.
 No Decree of Nullity Required: Since the marriage is void ab initio (from the beginning),
no formal decree of nullity is required to declare it invalid. However, parties can still seek a
judicial declaration to affirm the nullity of the marriage for official records.
Case laws:-

 In Lily Thomas v. Union of India (2000), Supreme Court, held that when a
Hindu spouse converts his religion to remarry with no intention to practice
such religion, but to only achieve an ulterior motive, then the second
marriage will be declared void. It is violation of Article 21 of the Indian
Constitution as well.
 In Smt. Yamunabai v. Anant Rao (1988), Supreme Court, held that wife of
second marriage cannot be considered a wife because such marriage is void
ab initio and she cannot claim maintenance under section 125 of Code of
Criminal Procedure.
VOIDABLE MARRIAGE:
Voidable marriages (Section 12) are those which are void at the option of the
aggrieved party. Such marriages can be annulled by a decree of nullity on any of the
following grounds:-
 That the marriage has not been consummated owing to the impotence of the
Respondent.
 That the marriage is been performed with a person of unsound mind or having a
mental disorder or suffering from recurrent attacks of epilepsy.
 That the consent of the Petitioner or its Guardian was obtained by force or by
fraud as to the nature of the ceremony or as to any material fact or circumstances
concerning the Respondent.
 To succeed on this ground, it is necessary that the Petition must be presented in
the Court within one year after the force has ceased to operate or the fraud has
been discovered. It is also necessary that after the force has ceased or fraud
discovered, the Petitioner has not, with consent, lived with the other side.
 That the Respondent was at the time of marriage pregnant by some person other
than the Petitioner.
Exception to void and voidable marriage:-

 Section 5(iii) of the HMA, 1955, states that at the time of the marriage, the age of the
groom should be 21 years and the age of the bride should be 18 years. This provision is
neither void nor voidable. Section 18 deals with the punishment in the case of
contravention of Section 5(iii) with imprisonment of up to two years or with a fine
which may extend to one lakh rupees, or both.
 In the case of Sh. Jitender Kumar Sharma v. State & Another (2010), the Delhi High
Court held that marriages performed in violation of the age prescribed in Section 5(iii)
of the HMA are not void or voidable but are punishable under Section 18 of the HMA
along with the provisions of the Child Marriage Restraint Act,1929.
 In the case of Yogesh Kumar v. Priya (2021), the Punjab-Haryana High Court held that
a child marriage becomes a valid marriage if no petition is filed for an annulment and
the child doesn’t declare it void before attaining the age of 18.
 No. Void Marriage Voidable marriage
1. Meaning: A void marriage is no marriage at all. It does Meaning: A voidable marriage is one which can be avoided at
not exist from the very beginning. the option of one of the parties to the marriage. It remains
valid for all practical purposes until and unless its validity is
questioned.

2 Section: Section 11 of the Hindu marriage Act, 1955 Section: Section 12 of the Hindu marriage Act, 1955 deals with
deals with void marriage. voidable marriage.

3 Marriage does not exist in the eye of law. Marriage exists and continues to be valid unless it is challenged.

4 The court simply passes the decree of nullity since the The court passes the decree after taking into account necessary
marriage has no existence at all. conditions.

5 Parties can remarry without decree of nullity from the Parties cannot do so.
court.
6 Wife cannot claim maintenance under Section 125 of Wife can claim maintenance.
Cr.P.C
7 Void marriage is void ab initio A voidable marriage is regarded as valid until the competent
court annuls it.
8 Parties to a void marriage are criminally liable. Parties to voidable marriage are not laid down with penalty.

9 In void marriages, not only first wife but a third party In voidable marriages, only the parties have right to apply for
who is affected can bring a suit in Civil Court for annulment of marriage.
declaring such marriage void.
Their Future Today Copyright 35
Divorce

 Section 13(1): Grounds for husband and wife both

a. Adultery
b. Cruelty
c. Desertion
d. Conversion
e. Unsoundness of mind
f. Venereal Disease
g. Renunciation
h. Presumed Death
 Section 13(1A)
a. Non resumption of cohabitation for 1 year or more after Judicial separation
b. No resumption of conjugal rights
Section 13(2): Grounds for wife
a. Pre Act bigamy
b. Rape, Sodomy or bestiality
c. Non resumption of cohabitation after section 125
d. Repudiation of marriage
Adultery
 The concept of Adultery may not be considered as an offence in many countries. But as per
the Hindu Marriage Act, in the matrimonial offence, the adultery is considered as one of the
most important ground for seeking divorce. Adultery means the consensual and voluntary
intercourse between a married person with another person, married or unmarried, of the
opposite sex. Even the intercourse between the husband and his second wife i.e. if their
marriage is considered under bigamy, the person is liable for the Adultery.
Essentials of Adultery
 One of the spouses involved in the intercourse with another person, married or unmarried, of
the opposite sex.
 Intercourse should be voluntary and consensual.
 At the time of the act, the marriage was subsisting.
 There must be sufficient circumstantial evidence to prove the liability of another spouse.
 In Swapna Ghose v. Sadanand Ghose: In this case, the wife found her husband with other girl
lying on the same bed and the neighbour also confirmed that the husband has committed an
offence. Here the wife gets the divorce.
 in the case of Joseph Shine v. Union of India (2018), SC held that Adultery is a ground of
divorce under the Hindu Marriage Act, 1955, which means that if a person commits adultery,
he/she would not be punished but the spouse can seek divorce. But it is not considered as
crime under Indian Penal Code.
 Case Law
 In Sachindranath Chatterjee vs Sm. Nilima Chatterjee: In this case, the petitioner and the defendant were married.
After marriage, the husband leaves the wife in his home town so that she can complete her studies and go to
another city for work. He visited twice or thrice a month to meet her. Later he found that his wife commits the
adultery i.e. to involve in sexual intercourse with his own nephew, watchman etc. The plaintiff approaches the
court to demand divorce on the ground of adultery and his petition was accepted and the marriage gets dissolved.
 Prior to the 1976 amendment, in order to seek divorce on the ground of adultery, a person had to prove that, on the
date of the petition, his/her spouse was living in an adulterous relationship. However, after the amendment, even a
single voluntary sexual intercourse with a person other than the spouse is a valid ground for divorce. It is given
under Section 13(1)(i) of the Act. The burden to prove that the spouse committed the offence of adultery is on the
person who made such allegations, and the standard of proof is by preponderance of probabilities and not proof
beyond reasonable doubt.
 The Madhya Pradesh High Court in the case of Samuel Bahadur Singh v. Smt. Roshini Singh (1960), rightly
pointed out that in India, if a male and female are living together under the same roof without any connections or
relations, it is not considered normal, and so adultery can be inferred from the following circumstances:
 A male and female lived together in the same house for a long time.
 They are not related to each other by way of marriage or any other relationship.
 They refused to return to their spouse.
 Both the parties cannot deny adultery because of circumstantial evidence.
 They had the opportunity to commit adultery.
Cont.

 In the case of Chetan Dass v. Kamla Devi (2001), appellant and respondent
were married to each other according to Hindu ceremonies. After marriage,
the appellant had an extramarital affair with one of the nurses in the hospital
where he was working, and so his wife left him. He appealed, claiming that
the allegations made by the respondent and her act of deserting him without
any reasonable cause amount to mental torture. The Hon’ble Supreme Court
observed that a man cannot take advantage of his own wrong. However, the
decree for divorce was not passed because the wife, or respondent in this
case, was ready to continue her marriage and live with him only on the
condition that he must leave the other woman and end his adulterous
relationship.
Cruelty

 The Hindu Marriage Act, 1955 allows either the husband or wife to seek divorce on the ground of cruelty.
Cruelty is broadly defined as any conduct that would cause reasonable apprehension in the mind of the
petitioner that it is harmful or injurious to live with the respondent. It can be physical or mental,
intentional or unintentional, and is a subjective concept that varies in each case depending on the facts
and circumstances.
 Cruelty is defined as conduct that causes such mental suffering or physical pain that it endangers the life,
limb, or health of the petitioner or makes it impossible for the petitioner to carry on living with the
respondent.
 Physical Cruelty: Physical cruelty refers to any act or conduct that causes bodily harm or poses a threat
to the life, limb, or health of one spouse by the other spouse. It includes physical violence, assault, or any
other form of harmful behavior that endangers the physical well-being of the victim. In cases of physical
cruelty, a spouse can file for divorce or seek legal protection
 Mental cruelty refers to the infliction of emotional or psychological distress on one spouse by the other
spouse. It includes behavior or conduct that is of such a nature that it makes it impossible for the victim
spouse to live with the other spouse. Mental cruelty can take various forms, such as constant humiliation,
verbal abuse, harassment, neglect, threats, or persistent indifference towards the well- being of the other
spouse.
Mental Cruelty
 The concept of mental cruelty is subjective and depends on the facts and circumstances of each case. There is no exhaustive list
of acts or behaviors that constitute mental cruelty, as it can vary based on individual experiences and cultural contexts.
However, some common examples of mental cruelty recognized in Hindu matrimonial law include:
1. Verbal abuse and humiliation: Persistent use of derogatory language, insults, or constant berating of the spouse.
2. Threats and intimidation: Regularly subjecting the spouse to threats of physical harm, emotional blackmail, or other forms of
intimidation.
3. Emotional abandonment: Neglecting the emotional needs of the spouse, showing complete indifference, or engaging in
emotional detachment.
4. Harassment and stalking: Stalking, monitoring, or excessive surveillance of the spouse, causing fear and distress.
5. Constant criticism and ridicule: Regularly belittling or mocking the spouse's abilities, appearance, or character.
6. Social isolation: Deliberately isolating the spouse from family, friends, or social support networks, leading to feelings of
loneliness and exclusion.
7. Unreasonable demands and control: Exerting excessive control over the spouse's actions, decisions, or freedom, leading to a
loss of individuality and autonomy.
8. Denial of basic rights and amenities: Withholding financial support, denying access to basic amenities, or intentionally
causing living conditions that are detrimental to the spouse's well-being
CASE LAWS

 Samar Ghosh vs. Jaya Ghosh (2007) 4 SCC 511

The Hon’ble Supreme Court held that, cruelty can be physical as well as mental:-
If it is physical, it is a question of fact and degree. If it is mental, the enquiry
must begin as to the nature of the cruel treatment and then as to the impact
of such treatment on the mind of the spouse.
Whether caused reasonable apprehension that it would be harmful or injurious to
live with the other, ultimately, is a matter of inference to be drawn by taking
into account the nature of the conduct and its effect on the complaining spouse.
 Shobha Rani vs Madhukar Reddi (1988) 1 SCC 105
In this case, the Hon’ble Supreme Court held that the test for cruelty is whether the conduct of the
respondent is of such a nature that the petitioner cannot reasonably be expected to live with the
respondent. It noted that the concept of cruelty is ever-changing and cannot be defined with precision.
V Bhagat vs. D Bhagat (1994) 1 SCC 337 : The Hon’ble Supreme Court held that the mental cruelty
may be caused by a number of factors, including false accusations of adultery or unchastity,
unjustified denial of sexual intercourse, unjustified refusal to have children, and excessive demands for
dowry
Naveen Kohli vs Neelu Kohli AIR (2006) SCC 1675 In this case, the Hon’ble Supreme Court held
that false allegations of adultery, mental illness, and impotence can amount to mental cruelty. It
also noted that in cases of mental cruelty, it's not necessary to prove physical injury or danger to life.
K. Srinivas Rao vs. D. A. Deepa (2013) 5 SCC 226 In this case, the Hon’ble Supreme Court held that
the petitioner must show a consistent pattern of behavior by the respondent to prove cruelty. It
noted that occasional outbursts of anger or quarrels do not necessarily amount to cruelty.
Case Law

 Vijay Kumar Ramchandra Bhate v. Neela Vijay Kumar Bhate (2003) 6 SCC 334
The Hon’ble Supreme Court 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 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 leveling disgusting accusations of unchastity and indecent
familiarity with a person outside wedlock and allegations of extra marital relationship is a
grave assault on the character, honor, reputation, status as well as the health of the wife.
 Jayachandra v. Aneel Kaur 2005 SCC 22
The Hon’ble Supreme Court held that, To constitute cruelty, the conduct
complained of should be "grave and weighty" so as to come to the conclusion that
the petitioner spouse cannot be reasonably expected to live with the other spouse.
It must be something more serious than "ordinary wear and tear of married
life. The conduct, taking into consideration the circumstances and background has
to be examined to reach the conclusion whether the conduct complained of
amounts to cruelty in the matrimonial law.
Conduct has to be considered, in the background of several factors such as social
status of parties, their education, physical and mental conditions, customs and
traditions. It is difficult to lay down a precise definition or to give exhaustive
description of the circumstances, which would constitute cruelty.
 It must be of the type as to satisfy the conscience of the Court that the relationship
between the parties had deteriorated to such an extent due to the conduct of the other
spouse that it would be impossible for them to live together without mental agony,
torture or distress, to entitle the complaining spouse to secure divorce. Physical
violence is not absolutely essential to constitute cruelty and a consistent course of
conduct inflicting immeasurable mental agony and torture may well constitute cruelty
within the meaning of Section 10 of the Act. Mental cruelty may consist of verbal
abuses and insults by using filthy and abusive language leading to constant disturbance
of mental peace of the other party.
Case Laws

 Dastane v. Dastane, AIR 1975 SC 1534 (Landmark Judgement on Creulty)

The Hon’ble Supreme Court held that, the foundation of a sound marriage is
tolerance, adjustment and respecting one another. Tolerance to each other's fault
to a certain bearable extent has to be inherent in every marriage. Petty
quibbles, trifling differences should not be exaggerated and magnified to destroy
what is said to have been made in heaven. All quarrels must be weighed from that
point of view in determining what constitutes cruelty in each particular case.
Read this case from Book
Desertion

 Desertion means the permanent abandonment of one spouse by the other spouse without any
reasonable justification and without his consent. In General, the rejection of the obligations
of marriage by one party.
Essentials of Desertion
 Permanent abandonment of the other spouse.
 Rejection of the obligation of marriage.
 Without any reasonable justification.
 No consent of another spouse.
 In the case of Malathi Ravi v. B.V. Ravi (2014), the Supreme Court held that if there is no
evidence to prove that the wife had an intention to end the marriage or whether she deserted
her husband, then the court will not pass a decree of divorce. This means that the intention to
end marriage is one of the essentials of desertion, i.e., animus deserendi must exist. Also, if
there was no desertion for a continuous period of two years immediately before the
presentation of the petition or if the party assumed it, no divorce can be granted.
 In the case of Ranjeet Kaur v. Surendra Singh Gill (2012), the Madhya Pradesh High
Court gave the meaning of desertion as the intention of parties to permanently abandon
the spouse without their consent and reasonable cause, which means that for the ground
of desertion, the fact of separation and animus deserendi must co-exist. In the present
case, the wife denied the allegations of cruelty and desertion made by her husband and
requested that the court dismiss his petition.
 In Bipin Chander Jaisinghbhai Shah vs Prabhawati: In this case, the respondent leaves
the house with the intention to abandon his wife. Later the wife approaches the court,
but the defendant proved that even though he left the house with the intention to desert,
but he tried to come back and he was prevented from doing so by the petitioner. Here,
the defendant cannot be held liable for desertion
 Refer word document for case laws
Conversion

 If one of the spouses converts his religion to any other religion without the consent of the
other spouse, then the other spouse can approach the court and seek the remedy of divorce.
 In light of the case of Suresh Babu vs Leela (2006), the Kerala High Court had observed that
the Hindu Marriage Act, 1955 does not grant any rights to a Hindu spouse who converted to
another religion. He or she, on the other hand, exposes himself or herself to a divorce suit by
the other spouse based on such conversion. Under Section 13(1)(ii) of the Hindu Marriage
Act, 1955, the spouse who is still a Hindu has the right to seek dissolution of the marriage
with the partner who has converted to another faith since the marriage. The right of a non-
converting spouse to remain married is unassailable. The Act makes no provision for the
non-converting spouse’s right to convert. The Hindu Marriage Act, 1955 also does not
mention that the conversion must be done without the permission of the other spouse for that
spouse to file for divorce. If the other spouse consents, a conversion does not cease to be a
conversion within the meaning of Section 13(1)(ii).
 The Delhi High Court had observed in the case of Teesta Chattoraj vs. Union Of India
(2012) that while conversion to another religion is a ground for divorce, a spouse may be
denied divorce even if the other spouse has embraced some other religion if the former
provoked the latter to such conversion
Unsoundness of mind
 Insanity means when the person is of unsound mind. Insanity as a ground of divorce has the following
two requirements-
❑ The respondent has been incurably of unsound mind.
❑ The respondent has been suffering continuously or intermittently from mental disorder of such a kind
and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.
 In the case of Smt. Alka v. Abhinesh Chandra Sharma (1991), the Madhya Pradesh High Court found
that the wife was suffering from schizophrenia because she was cold and frigid on the first night of
marriage and could not cooperate with the husband. Also, she was not able to handle domestic
appliances, so the husband was entitled to nullity of marriage in this case. It was also observed that the
facts pertaining to the mental illness of the wife and her medical treatment were not disclosed to either
the husband or his mother and grandmother, who negotiated the marriage on his behalf. The counsel
representing the wife also argued that breaking the marriage just after 19 days of marriage would bring
upon her great tragedy. However, the appeal made by the wife was dismissed.
 The mental disorder should be such that it militates against the continuance of marriage. The test to see
the degree of unsoundness of mind was given in the case of Whysall vs. Whysall (1959). Wherein it was
stated that the practical test is found in the phrase ‘incapable of managing himself and his affairs,
including the problems of married life. The burden of proof to prove the unsoundness of mind of the
respondent and also that such unsoundness is incurable is upon the petitioner.
The expression “mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic disorder
or any other disorder or disability of mind and includes schizophrenia;
Schizophrenia symptoms
 lack of personal hygiene.
 disorganized thoughts or jumbled speech.
 social isolation.
 socially inappropriate behavior or social responses.
 vacant facial expressions (flat affect)
 social withdrawal or self-isolation.
 sudden extreme sensitivity to light and noise
psychopathic disorder” means a persistent disorder or disability of mind which results in abnormally aggressive or
seriously irresponsible conduct on the part of the other party.
Person must be suffering continuously or intermittently and unable to discharge the matrimonial obligations impossible.
Examination by a psychiatric specialist
Sheela v. Baldev Singh AIR 2010, (wife would beat husband and son, cry in the night and try to commit suicide.. Husband
was granted divorce)
 In the landmark case of Sharda vs. Dharampal AIR 2003 SC 3450, the question arose can the
Family Court direct a party to undergo a medical examination in order to prove the unsoundness
of mind and would such an order violate Article 21? The court said that for the purpose of grant
of decree of divorce, the plaintiff must establish that the respondent is suffering from an unsound
mind that is incurable or a mental disorder of such a nature that the plaintiff cannot be reasonably
expected to live with him. The medical testimony would be of considerable assistance to the
court. However, the Hindu Marriage Act or any other law does not contain any provision
that empowers the court to issue the direction to a party in a matrimonial proceeding to
compel the respondent to submit himself to a medical examination. However, that does not
preclude the court from passing such an order.
 Further, it held that in a case for divorce based on the ground of unsoundness of mind or
impotency, the petitioner would always insist upon the medical examination of the respondent
and if the court allows the respondent to take the plea under Article 21, then it may become
impossible for the court to arrive at the conclusion and may render these grounds of
divorce, useless. Therefore, the family court has the power to order the person to undergo a
medical test and such an order would not be a violation of the right to personal liberty and
privacy under Article 21. However, such an order must be passed if the petitioner has a strong
prima facie case. The court cannot force the respondent to undergo such an examination.
However, if he refuses to submit himself to such an examination, the court is entitled to draw
Cases on Cruelty

 In the case of Suvarnalata v. Mohan Anandrao Deshmukh and Anr. (2010), husband
filed for divorce on the ground that his wife was suffering from schizophrenia, but the
Supreme Court did not accept and agree with the allegations made by the husband that
his wife was suffering from mental disorder and desisted itself from giving any
observations in this regard because of the effect that it would have on the minor child.
Further, the Calcutta High Court in the case of Pramatha Kumar Maity v. Ashima Maity
(1991) held that in order to obtain a decree for divorce on the ground of unsoundness of
mind, it must be proved that unsoundness exists to the extent that it is impossible for the
petitioner to cohabit and live with the respondent.
 Vinita Saxena vs Pankaj Pandit: In this case, the petitioner filed a case to get the
divorce from the respondent on the ground that the respondent was suffering from
Paranoid Schizophrenia which means mental disorder. She came to know these after her
marriage. Here, the court grants the divorce on the ground of insanity of husband.
 The Supreme Court of India had declared in Ram Narayan vs.
Rameshwari (1988) that in cases of schizophrenia mental
condition, the petitioner must prove not only the mental
disorder but also the fact that the petitioner could not fairly
be expected to live with the respondent.
venereal disease

 Under this concept, if the disease is in communicable form and it can be

transmitted to the other spouse, then this can be considered as the valid
ground for divorce.
 Living a healthy life with infected person may not be feasible.
 Living together or remedy of separation is the option available with the
healthy person
 In Smt. Mita Gupta vs. Prabir Kumar Gupta (1988), the Calcutta High Court had opined that
while the venereal disease is a cause of divorce, the partner who is responsible for the contagion
may be denied relief even if the other partner suffers as much.
 The Supreme Court had ruled in Mr X vs. Hospital Z (1998) that either husband or wife might
divorce on the grounds of venereal illness and that a person who has suffered from the disease
cannot be claimed to have any right to marry even before marriage, as long as he is not
healed of the condition.
 The Madras High Court had viewed in the case of P. Ravikumar: vs Malarvizhi @
S.Kokila (2013) that any contagious infection caused by sexual intercourse is defined as a
venereal disease under Section 13(v) of the Hindu Marriage Act, 1955. HIV is a sexually
transmitted illness. As HIV had not been discovered in 1955, it was not included in the Act.
However, because venereal disease is a communicable form is one of the grounds for divorce, any
disease being venereal in a communicable form will also fall under the provisions of Section
13(v) of the Hindu Marriage Act, 1955, and thus it cannot be claimed that a petition cannot be
filed on the basis that HIV positive is not included in Section 13(v) and thus divorce cannot be
granted. It can very well be granted
Renunciation

 It means when one of the spouses decides to renunciate the world and walk
on the path of the God, then the other spouse can approach the court and
demand the divorce. In this concept the party who renunciates the world is
considered as civilly dead. It is a typical Hindu practice and is considered as a
valid ground for divorce.
 In the case of Sital Das vs. Sant Ram (1954), it was decided by the Supreme
Court of India that someone is considered to have entered a religious order if
they participate in a few of the faith’s ceremonies and rites. For example, if
a man or woman joins a religious order but returns home on the same day
itself and cohabits, it cannot be used as a basis for divorce since he has not
forsaken the world.
presumption of death

 In this case, the person is presumed to have died, if the family or the friends
of that person does not hear any news about the person alive or dead for
seven years. It is considered as the valid ground for divorce, but the burden
of proof is on the person who demands the divorce.
 According to Section 108 of the Indian Evidence Act of 1872, if a person has
not been heard from in at least seven years, he or she is presumed to be
dead, it is also known as judicial death. This is a presumption of fact. The
petitioner may be granted a divorce on this basis.
 It was established by the Delhi High Court, in the case of Nirmoo vs. Nikkaram (1968),
that if a person presumes his or her spouse’s death and marries another person without
getting a divorce order, the spouse might contest the validity of the second marriage
after his return. The aforementioned law also overrides any existing custom that allows
for remarriage after less than seven years
Grounds for divorce available only to
wife
Bigamy: A wife can seek divorce if the husband has committed the offence of bigamy according
to Section 13(2)(i) of the Act. Section 17 of the Act further punishes bigamy.
The conditions for the offence are:
 Marriage is solemnized after the commencement or enforcement of the Act.
 The party has a spouse living on the date of second marriage.
In the case of Priya Bala Ghosh vs Suresh Chandra Ghosh, the nuances of the offence were
discussed. All the proper ceremonies need to be performed for the second marriage for it to be
an efficient complaint of bigamy.
In the case of Venkatame v. Patil, 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 (2nd wife) should be
present at the time of filing of the petition. However, today this ground is no more of practical
importance.
In the case of Lily Thomas v. Union of India (2000), the wife filed a complaint against the husband,
claiming that he converted to another religion and married another woman of that religion, even though the
first marriage is still subsisting. The court held that even though he converted to another religion, he had not
divorced his first wife. He would be liable for the offence of bigamy, and his second marriage would be void.
The Supreme Court also observed that religion is not a commodity and must not be exploited for worldly gain or
benefits.
(ii) Husband guilty of Rape, Sodomy, or Bestiality
(iii) No cohabitation between the parties resumed for 1 year or upwards
 The Amendment Act of 1976 provided another ground to the wife to seek divorce. According to Section 13(2)(iii) of the
Act, if a decree or order of maintenance has been passed under Section 18 of the Hindu Marriage Act, 1955, or Section
125 of the Code of Criminal Procedure, 1973 against the husband, directing him to give maintenance to the wife in spite
of whether she was living apart, and there was no cohabitation between both of them for a year or more after the passing
of such a decree or order, the wife can claim divorce.
 The essentials conditions to obtain divorce under this ground are:
 Petition must be filed by the wife.
 A decree of maintenance must be passed against the husband.
 There must be no cohabitation between husband and wife for a year or more after passing of decree.
(iv) Marriage was solemnized before the bride was 15 years of age: Repudiation of Marriage
Divorce by Mutual Consent (Section
13B)
Essential for Mutual Divorce
1. That spouse have been living separately for the period for one year
2. That they have not been able to live together
3. That they have mutually agreed that their marriage should be dissolved.
In Samisstha v. Om Prakash 1992: The expression “living separately” means that parties are not living as
husband and wife , irrespective of the fact that they are living in the same house or in different house.
In the case of Gandhi Venkata Chitti Abbai v. Unknown (1988), the Allahabad High Court held that the
waiting period was mandatory. However, in the case of Dinesh Kumar Shukla v. Neeta (2005), the Madhya
Pradesh High Court held that the period prescribed under Section 13B is directory in nature and can be
brought down below 6 months if the circumstances of the case demand so.
Davinder Singh Narula V. Meenakshi Nangia 2012: The SC waived of the waiting period of 6 months as
the circumstance of the case adequately showed that there were no marital ties left between the parties.
Santosh v. Virendra 1980 : A petition for divorce on the ground of cruelty and desertion was allowed to be
converted into the petition of divorce by mutual consent.
 In the case of Hitesh Bhatnagar vs Deepa Bhatnagar (2011), initially a divorce petition
under Section 13 B of the Hindu Marriage Act was filed before the District Court, Gurgaon.
The parties in the aforesaid case got married in 1994 and were thereafter blessed with a girl
in 1995. However, due to certain differences, they started living separately, and since then
they have been living separately, owing to which they filed for divorce under Section 13 B in
the year 2001. Later on, when the case was in second motion, the wife withdrew her consent,
although the husband still insisted on the grant of a decree of divorce. Due to a withdrawal
of consent by one of the parties, the petition was dismissed by the Learned Additional
Districts Judge, Gurgaon. The appellant husband, aggrieved by the order of the Learned
Additional Districts Judge, Gurgaon, filed an appeal before the Punjab and Haryana High
Court, which was again dismissed. Thereafter, the husband moved to the Supreme Court.
 The Apex Court dismissed the appeal filed by the husband, stating that the courts only grant
the decree of divorce when they are convinced beyond a doubt that the marriage is
irreversibly broken down.
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