FAMILY LAW

TOPIC- DIVORCE

SUBMITTED BY-

ASHANSH ROSHAN (58/20F)

KANWAR SINGH (59/20F)
MUSKAN (60/20F)
TANISHA BANSAL (61/20F)
MELISHA DUA (62/20F)
SAANCH (63/20F)

SUBMITTED TO- MRS. RAJNI VERMA

UNIVERSITY INSTITUTE OF LAWS,

PANJAB UNIVERSITY REGIONAL CENTRE
LUDHIANA
ACKNOWLEDGEMENT
We are really grateful because we managed to complete our
assignment ‘DIVORCE’ within the time given by our teacher.
This assignment cannot be completed without the effort and
co-operation from our group members. We also sincerely
thank our Prof. Mrs. Rajni Verma for the guidance and
encouragement in finishing this assignment and also for
teaching us in this course. Her patience, motivation,
enthusiasm and immense knowledge have helped us
immensely during our research.

REGARDS
Ashansh Roshan
Kanwar Singh
Muskan
Tanisha Bansal
Melisha Dua
Saanch
([Link])(SEMESTER-III)
TABLE OF CONTENTS
TOPICS PAGE NO.
INTRODUCTION 4
CONCEPT OF DIVORCE 5-9
DIFFERENT THEORIES OF 10
DIVORCE
GROUNDS OF DIVORCE AS PER 10-11
HMA,1955

ADULTERY 11-12
DESERTION 13-20
CRUELTY 20-25
INSANITY 26-31
LEPROSY 31-32
VENEREAL DISEASE 33-34
CONVERSION OR APOSTASY 34-36
PRESUMPTION OF DEATH 37-38
RENUNCIATION OF WORLD 38-39
WIFE’S FAULTY GROUNDS 40-53
RAPE,SODOMY,BESTIALITY 40-42
PRE-ACT POLYGAMOUS 42-43
MARRIAGE
NON-RESUMPTION OF 43-44
COHABITATION AFTER DECREE
OR ORDER OF MAINTAINENCE
REPUDIATION OF MARRIAGE 44-45
DIVORCE BY MUTUAL CONSENT 45-49
IRRETRIVIABLE BREAKDOWN OF 50-53
MARRIAGE
CONCLUSION 54
 INTRODUCTION
Hindus, Buddhists, Sikhs, and Jains in India are governed by
the Hindu Marriage Act, 1955; Christians by the Indian
Divorce Act, 1869; Parsis by the Parsi Marriage and Divorce
Act, 1936; and Muslims by the Dissolution of Muslim
Marriages Act, 1939, which provides the grounds on which
women can obtain a divorce, and the uncodified civil law. Civil
marriages and inter-community marriages and divorces are
governed by the Special Marriage Act, 1956 (See Arranged
Marriage, Matchmakers, and Dowries).

In Ancient times, the concept of divorce was not known to

anyone. They considered marriage as a sacred concept.
According to Manu, the husband and wife cannot be separated
from each other, their martial tie cannot be broken. Later the
concept of divorce came in the picture and established as a
custom to put the marriage to an end.

According to the Arthashastra, marriage can end if dissolved

by mutual consent and should be unapproved marriage. But
Manu does not believe in the concept of the dissolution.
According to Manu the only way to end the marriage is the
death of one of the spouses.

The provision related to the concept of divorce was introduced

by the Hindu Marriage Act, 1955. The Hindu Marriage Act
defines divorce as a dissolution of the marriage. For the interest
of the society, the marriage or the marital relationship needs to
be surrounded by every safeguard for the cause specified by
law. Divorce is permitted only for a grave reason otherwise
given other alternative.
CONCEPT OF DIVORCE
The word ‘divorce’ had not been defined under any statutory
provisions but it could be defined as a legal dissolution of
judicial ties established at marriages. Thus a divorce is also a
seven lettered word, which separates the united couple at their
own wish with their own consent. Thus divorce can be
considered a means to break marriage that happens not just
between two individuals but also between two families.

Divorce under Hindu Marriage Act, 1955

In the Hindu Marriage Act, there are some provisions given
regarding a valid divorce, i.e. when the spouse can get divorce
or appeal for dissolution of marriage in the court of law. For
the interest of the society, the marriage or the marital
relationship needs to be surrounded by every safeguard for the
cause specified by law. Divorce is permitted only for a grave
reason otherwise given other alternative.

The Hindu Marriage Act is based on the fault theory in which

any one of the aggrieved spouses (Section 13(1)) can approach
the court of law and seek the remedy of divorce. Section 13(2)
provides the grounds on which only the wife can approach the
court of law and seek the remedy of divorce.

Sec 13
(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 decree of
divorce on the ground that the other party-
(i) 1[has after the solemnized of the marriage, had voluntary
sexual inter course with any person other than his or her
spouse; or

(ia) has, after the solemnization of the marriage, treated the

petitioner with cruelty ;or

(ib) has deserted the petitioner for a continuous period of not

less than two years immediately preceding the presentation of
the petition; or,]

has ceased to be a Hindu by conversion to another religion; or

1[(iii) has been incurably of unsound mind, or has been

suffering continuously or intermittently from mental disorder
of such a kind and to such an extent that the petitioner cannot
reasonably be expected to live with the respondent.

Explanation: in this clause-

(a) the expression “mental disorder” means mental illness,

arrested or incomplete development of mind, psychopathic
disorder of any other disorder or disability of mind and
includes schizophrenia.

(b) the expression “psychopathic disorder” means a persistent

disorder of disability of mind (whether or not including sub-

normality of intelligence) which results in abnormally
aggressive or seriously irresponsible conduct on the part of the
other party, and whether or not it requires or is susceptible to
medical treatment or.;
has 2[*] been suffering from a virulent and incurable form of (v)
has 2[*] 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, 3[*]

1[Explanation : In this sub section, the expression “desertion”

means the desertion of the petitioner by the other party to the
marriage without reasonable cause and without the consent or
against the wish of such party and includes the wilful neglect
of the petitioner by the other party to the marriage, and its
grammatical variations and cognate expressions shall be
constructed accordingly.]

2[(1A) Either party to a marriage whether solemnized before or

after the commencement of this Act, may also present a petition
for the dissolution of the marriage by a decree of divorce on the
ground-

(i) that there has been no resumption of cohabitation as

between the parties to the marriage for a period of 3[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 3[one year] or upwards

after the passing of a decree for restitution of conjugal rights in
a proceeding to which they were parties.]
(2) A wife may also present a petition for the dissolution of her
marriage by a decree of divorce on the ground -

(i) in the case of any marriage solemnized before the

commencement of this Act, that the husband had married
again before such commencement or that any other wife of the
husband married before such commencement was alive at the
time of the solemnization of the marriage of the petitioner.

PROVIDED that in either case the other wife is alive at the time
of the presentation of the petition ; or

(ii) that the husband has, since the solemnization of the

marriage, been guilty of rape, sodomy or 4[bestiality; or].

5[(iii) that in a suit under section 18 of Hindu Adoptions and

Maintenance Act 1956 (78 of 1956), or in a proceeding under
section 125 of the Code of Criminal Procedure, 1973 (2 of
1974)(or under the corresponding section 488 of the Code of
Criminal Procedure, 1898 (5 of 1898), a decree or order, as the
case may be, has been passed against the husband awarding
maintenance to the wife notwithstanding that she was living
apart and that since the passing of such decree or order,
cohabitation between the parties has not been resumed for one
year or upwards;

(iv) that her marriage (whether consummated or not) was

solemnized before she attained the age of fifteen years and she
has repudiated the marriage after attaining that age but before
attaining the age of eighteen years.

Explanation: This clause applies whether the marriage was

solemnized before or after the commencement of the Marriage
Laws (Amendment)Act ,1976(68 of 1976).
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 insofar as the
petition is founded on the grounds mentioned in clauses(ii),
(vi)and(vii) of sub section (1) of section 13, the court may, if it
considers it just to do having regard to the circumstances of the
case, pass instead a decree for judicial separation.

[Link] by mutual consent

(1) Subject to the provision 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 Marriage Laws (Amendment) Act, 1976 (68
of 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.

(2) On the motion of both the parties made not earlier than six
months after the date of 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 divorce declaring the marriage to be
dissolved with effect from the date of the decree.
Different Theories of Divorce
1}Fault Theory: Under this theory, marriage can be ended
when one party to the marriage is responsible or liable for the
offence under matrimonial offences done against another
spouse. Only the innocent spouse can seek this remedy. The
only drawback of this theory is when both the spouse are at
fault, then no one can seek these remedy of divorce.

2}Mutual Consent: Under this theory, the marriage can be

dissolved by mutual consent. If both the spouse mutually gives
their consents to end the marriage, they can take the divorce.
But many philosophers criticise this theory as this concept is
immoral and leads to hasty divorce.

3}Irretrievable Breakdown: According to this theory, the

dissolution of marriage happens due to failure of the
matrimonial relationship. The divorce can be taken by the
spouse as a last resort i.e. when both of them are not able to live
together again.

Grounds of Divorce as per The

Hindu Marriage Act
1} Adultery

2}Insanity

3}Cruelty

4}Conversion
5}Presumption of death

6}Desertion

7}Renunciation

8}Venereal Disease

9}Leprosy

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.

The concept of Adultery was inserted under the Hindu

Marriage Act by the Marriage Laws Amendment Act, 1976.
Adultery had been defined under Section 13(1)(i). It states that
after solemnization of marriage if a married person with the
ties of marital bonds is having sexual intercourse with another
person who is not his or her spouse, is said to have committed
adultery. Adultery is a crime in India and also has its penal
provision under

Section 497 of the Indian Penal Code. Section 497 of the Indian
Penal Code defines as whoever has sexual intercourse with an
individual who is and whom he knows or has as reason to
accept to be the wife of another man, without the assent or
intrigue of husband, such sexual intercourse not adds up to the
offense of rape, but is blameworthy of the offense of adultery,
and will be punished with an imprisonment of either for a term
of five years, or with fine, or with both. In such a case, the wife
will not be culpable as an abettor. However, it also draws a link
with Section 198(2) of the Code of Criminal Procedure which
deals with this.

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.

Essentials of Adultery
1}One of the spouses involved in the intercourse with another
person, married or unmarried, of the opposite sex.

2}Intercourse should be voluntary and consensual. 3}At the

time of the act, the marriage was subsisting. 4}There must be
sufficient circumstantial evidence to prove the liability of
another spouse.
 DESERTION
Section 13 (ia) of Hindu Marriage Act- In explains the meaning
of 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 wilful neglect of the petitioner by
the other party to the marriage, and is grammatical variations
and cognate expressions shall be construed accordingly.
Marriage is considered a sacrament and preserved as a social
institution. In olden times, it was believed that this special
contract could be put to an end only when one of the spouses
was guilty of an act which undermined the importance of this
institution. This was the foundation of the fault-based theory of
marriage. In a bid to preserve this holy union, the society
reprimands the guilty spouse and provides no remedy of
divorce for him, thereby restricting the right to file for divorce
to the spouse with the clean hands. The ambiguity and
complexities of the law have been interpreted by the judiciary
which attempts to render justice to the innocent party. In spite
of this attempt, there is a scope for abuse and misuse of the law
by the guilt spouse.
 Concept and Elements of
Desertion
Section 13(1) (ib) of the Hindu Marriage Act, 1955 deals with
desertion as a ground for divorce and the explanation of the
same reads: “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 wilful neglect of the petitioner
by the other party to the marriage, and its grammatical
variations and cognate expressions shall be construed
accordingly”. There are mainly four basic elements which
are primarily to be satisfied to constitute desertion. The first
two are to be present in the deserting spouse.
1. The fact of separation (factum deserdendi)
2. The intention to desert ( animus deserdendi)
Desertion is a state which occurs only on the co-existence of
both of these elements. If either of these two ingredients is
absent, the petition for divorce on desertion fails.
The interesting phenomenon in desertion is that either of the
elements can precede the other; however, desertion will result
only when both coincide and form a union.
When a petition is filed, the first step is proving the fact of
separation and the intention separately while the second step is
to prove their union. It is fairly easy to prove the physical act of
separation either from the conductor from the state of minds.
The difficulty arises on proving the animus i.e., the intention
for desertion. This intention is required throughout the period
 of desertion. The petitioner is expected to prove intention
through conduct as a person’s mind cannot be read. In this
process, there are two ways in which the deserting spouse has
an opportunity to misuse the position of law:
There exist cases where the separation was consensual (like
when the husband is on a voyage) with no animus to desert.
While separated, one of the spouses may develop the intention
to bring an end to the cohabitation permanently on the expiry
of the consensual period. With the separation and the
consequent formation of intention, the act of desertion
commences which the deserted spouse is expected to prove.
The exact duration of supervening intention is difficult to prove
thereby giving an edge to the deserting spouse, and the
deserted spouse is in a worse off position as she had consented
to something she could not object (like a husband leaving for
a business trip).
The quality of permanence in intention to leave the
matrimonial home is one of the essential sub-elements in
desertion which differentiate it from wilful separation. If there
is just temporary separation without the intention to leave
permanently, there is no desertion.
In this law, if a person decides to return just before the expiry
of two years and claims to have no intention of permanent
separation, the so deserted spouse will have no recourse in law
Apart from these elements in the deserting spouse, there are
two other elements which have to be present in the deserted
spouse:
1. Absence of consent
2. The absence of conduct which led to the other spouse leaving
the matrimony.
The deserted spouse filing the petition is the one who must
sufficiently prove and provide evidence for his conduct
showing unmistakably that the desertion was against his will.
Courts have held that it is not enough for the petitioner to
show that he was unwilling that the respondent stays out
rather he must have expressly declared his wishes to the
deserting spouse or make it clear that the absence was against
his wish. With this burden on the deserted spouse, there arise
times when illiterate, and submissive women cannot expressly
convey their consent or rather lack it. This creates problems in
discharging their burden of proof providing for the deserting
spouse to take advantage of. If there is no proof of lack of
consent, the consensual separation is not a matrimonial offence
using volenti non fit injuria.
It is additionally important to note that for a matrimonial relief
on the ground of desertion, it is necessary to show the passage
of the statutory period of two years and the same must be
continuous. Therefore, it can be illustrated that a deserting
spouse has an opportunity to take advantage of the law
right from the fulfilment of basic elements of desertion.
 Desertion as a continuing
offence
The petition for divorce on the grounds of desertion can be
filed only after a period of two years from the commencement
of the co-existence of animus and the factum. Desertion is
known as continuing offence as the element of permanence
necessarily requires that the factum and animus must
continue during the entire statutory period preceding the
presentation. If the spouse returns before the expiry of two
years and then leaves again, the waiting period of two years
commences all over again from the time he left again. If such
period is interrupted, the broken periods may not be added
together so as to establish a summed period of two years. The
legislature provided this buffer period as a sort of cooling off
period so that couples can rethink and reconsider their decision
before ending the holy matrimony.
Desertion is known as an inchoate offence as it continues from
the day it commences to the day it is terminated by the conduct
of the deserting spouse or by the presentation of the petition.
It becomes a complete fault based matrimonial offence only
when the deserted spouse files for divorce.
Keeping the intent of the legislature in mind, providing a
period of two years is also problematic in a few ways. There
may be instances where the deserting spouse may return
within two years on reconsideration of his decision, but the law
provides for recommencement of the additional period of two
years on his departure again providing him with an
 opportunity to abuse the leeway provided for reconciliation.
The legislature overlooks the consequence on the deserted
spouse who is left without any support or maintenance. The
trauma of being deserted for a period just less than two years
might lead to the attitude of non-acceptance of the renewal of
the marriage by the deserted spouse. The legislature might
have good intentions in protecting the marriages, but it seems
to be working out the assumption that the deserted spouse
would always want the cohabitation to resume as soon as the
deserting spouse returns. This presumption by the legislature
provides the deserting spouse a chance to abuse the law.

Termination of desertion
As seen above, desertion as a ground for relief differs from
other such as adultery or cruelty as in that offence the cause of
action of desertion is not complete until the petition seeking
relief is filed. This means that through an act or conduct of the
deserting spouse, the desertion can be put to an end. Desertion
can come to an end in the following ways:
1. Resumption of co habitation
2. Resumption of marital intercourse
3. Supervening animus revertendi or offer of reconciliation.
Resumption of cohabitation and marital intercourse should be
with the intention of permanency. The deserting spouse may
return just before the completion of the statutory period or
engage in intercourse with the deserted spouse only to leave
again. In both these cases, the offence of desertion is terminated
although the deserter has no real intention to resume
cohabitation but merely seeks to forestall or defeat impending
judicial proceedings. When the offer of reconciliation is
made, there lies an opportunity for misuse. Courts have said
that unjustified refusal of the offer of reconciliation would not
only terminate desertion but also reverse the process and “put
the boot on the other leg “making the innocent spouse guilty of
desertion now. This can be used by the deserting spouse for
defence even when he has no intention of actual reconciliation.
Recognizing this loophole, the Courts have sought to restrict
such abuse of this provision by laying down stipulations such
as casual acts of intercourse are not to be considered as proof of
resumption of the marital relationship. Additionally, the offer
of reconciliation must be genuine and in good faith. There may
be instances where the deserting spouse has given just cause
for leaving the matrimonial home. In these instances, the
deserted spouse cannot possibly be expected to subject herself
to a risk of recurrence and should be allowed to refuse
reconciliation. Under the Matrimonial Clauses Act, 1973, if
parties resume cohabitation during the period of desertion with
a view to effect reconciliation, but the same does not come
about, desertion will not be terminated but the period during
which parties lived together will be deducted. This should also
be accepted by the Indian courts. They must do so by taking
into account the facts and circumstances both prior and
subsequent to the desertion and also determine whether the
deserting spouse can be reasonably said to be ready and
willing to resume the marital relationship.
 It can be said that desertion might be considered a fault-based
ground for divorce, but there are ways that the guilty spouse
can manoeuvre around the law and deny justice to the deserted
spouse. There are two probable solutions to this problem:
either to adopt a new legislation which tackles these
opportunities of misuse or move towards the concept of
irretrievable breakdown of marriage to provide no necessity for
the deserting spouse to abuse the legal provision of desertion

CRUELTY
Section 13(1) (ia) Hindu Marriage Act- The legal concept of
cruelty has varied from time to time and from society to society
with the change in social and economic conditions. In early
English law, intention was considered to be an essential
element of cruelty; in modern law it is no longer so. The
modern law takes the view that the objective is to accord
protection to the innocent party. Nagging and scolding and
even incompatibility of temperament has been held to be
included in cruelty, despite Denning, L. J’s warning that "if the
doors of cruelty were opened too wide, we should soon find
ourselves granting divorce for incompatibility of
temperament". The learned judge warned that "the temptation
must be resisted lest we slip into a state of affairs where the
institution of marriage itself is imperilled"'

Meaning of Cruelty
Cruelty generally means the matrimonial act which causes pain
and distress of any kind such as physical, mental, economical
to others. The concept of cruelty is subjective which always
 depends on time, place or person, facts and circumstances of
the case. So, what we consider cruelty today was not so
considered cruelty a few years back or what we do not consider
today might become cruelty after some time. So, for this reason,
under The Hindu Marriage Act, 1955, the legislature
deliberately didn’t give any definition to the word ‘cruelty’ and
it has been left to the Court to decide it.

Evolution of cruelty
 Before The Marriage Laws (Amendment) Act 1976, cruelty was
the only ground of judicial separation. Under this provision,
the word ‘cruelty’ is used in a very restricted sense that ‘if any
party treats the other with such cruelty which causes
reasonable apprehension in the mind of the other that it is
injurious and harmful for him/her to live with the other, then it
becomes the valid ground for judicial separation’. But after the
amendment in 1976, the wordings of this section “as to cause a
reasonable apprehension in the mind of others that it is
harmful and injurious for him to live with another party” was
changed. Later, cruelty became the ground of divorce too.
These changes were upheld after the landmark judgment
of Narayan Ganesh Dastane v. Sucheta Dastane.

KINDS OF CRUELTY
Cruelty is generally considered as two types: -
1)Physical cruelty
 When one spouse does an act of violence of such kind which
causes injuries to the body, limbs, health of the other spouse,
then it is considered as an act of physical cruelty. This type of
cruelty is very easy to carry out. In the case of Swati v. Arvind
Mudgal, 2015 the Court held that “In order to constitute
physical cruelty one or two acts are more than sufficient even if
the single act may be so grave and weighty that it could be
satisfied the test of cruelty amounts to physical cruelty”.
2) Mental cruelty
This type of cruelty is not mentioned anywhere. It is always left
at the discretion of the Courts which depend on the facts and
circumstances of every case. But at the time of judgment, the
Court has to consider various factors: social values,
community, culture, status, thinking process, and surroundings
of the party to the case.

What amounts to cruelty?

There are no definite parameters available according to which
we can determine cruelty. It always depends on the facts and
circumstances of each case. There is certain conduct that is
generally seen as cruelty.
 Unsoundness of mind
If any party to the marriage is suffering from an incurable
mental disease and if this fact gives rise to a reasonable
apprehension in the mind of the other party that it will be
injurious and harmful to live with that party, then it is
generally considered as a sufficient ground of cruelty. In the
 case of Smt. Uma Wanti v Arjan Dev AIR 1995 P&H 312, it has
been held that “although the wife is not an unsound person but
her peculiar way of behaviour towards him is sufficient to
constitute legal cruelty”.
 Attempt to commit suicide
It has been considered that several attempts to commit suicide
or even threat of it is sufficient to cause considerable mental
pressure on the other party. In the case of Harbhajan Singh
Monga v. Amarjeet Kaur, the Madhya Pradesh High Court
held that “threats of committing suicide by one spouse
constitutes cruelty to others thus it is valid legal ground to seek
divorce”.
 Making false allegation
Making false allegations about the character of the other party
proves to be personal grounds for seeking a divorce. In the case
of Jay Dayal v. Shakuntala Devi, the Court has said that
“making a false allegation of physical and mental torture
against husband amounts to mental cruelty”.
 Refusal to have sexual intercourse
Sexual intercourse plays a very important role in a happy and
harmonious marital relationship. In the case of Anil Bharadwaj
v. Nirmlesh Bharadwaj AIR 1987, the Court decided that if any
party to the marriage having a healthy physical condition
refuses to have sexual intercourse without any reason and
especially when the parties are young and newly married, it
would amount to cruelty and would entitle the other party to a
decree of divorce.
 Defamation
Regularly disrupting and insulting the spouse in front of
society which causes pain and mental agony to the other would
amount to mental cruelty. In the case of Vishwanath S/o Sm
Agrawal v. Sitaraau. Sarla Vishwanath Agrawal, 2012, the
Court held that “the motive was to demonise the reputation of
the husband in the society by naming him as a drunk
womaniser and man of bad habit. This constitutes mental
cruelty and this conduct of the wife has frozen the emotion and
snuffed out the bright candle of feeling of the husband thus it is
clear that with this mental agony, pain, and suffering the
husband would not be able to live with the wife, therefore
entitled to decree of divorce”.

Exceptions to Cruelty
1)Section 23 (1) Condonation by the victim party
According to this Section, if any party after filing the petition of
divorce, does any act which amounts to condonation of cruelty,
then this may become sufficient ground for any Court to cancel
his petition for divorce.
For example, Mr. A is a victim of cruelty by his wife and files a
petition of divorce in the Court. But after hearing the news of
the accident, he goes to her and helps her to recover. This act of
the husband would be considered as condoning cruelty
towards the respondent therefore the Court will cancel his
petition of divorce.
2)Section 23 (1)(b) Effect of Condonation of Cruelty
In any proceeding whether defended or not, if any party to the
case has condemned the cruelty, then the Court would cancel
his/her petition of the divorce.
3)Section 23(2) The fountain of love and affection
This Section simply casts a duty on the Court to check or test
whether the fountain of love and affection between the parties
is totally dried up or not before granting any decree of divorce.
If it is not, then the Court makes every effort to bring the
parties to reconciliation. However, it is difficult to know the
same.

Landmark cases:
1) Dr. Narayan Ganesh Dastane v. Sucheta Narayan Dastane
(AIR 1975 SC 1534)
2) Smt. Maya Devi V. Jagdish Prasad (AIR 2007 SC 1426)
3) Shobha Rani v. Madhukar Reddi (AIR 1998 SC 121)
The cruelty of any kind whether physical or mental, either by
husband or wife should not be accepted in any condition
because it violates the basic right of dignity or liberty given
under the Constitution of India. So, at last, we can conclude
that anybody can reach the Court on the grounds of cruelty but
each case is decided upon its facts, so the relief granted is not
always the same in every case; the Court decides it according to
its own interpretation within the boundary of the law.
 INSANITY
Insanity is a ground both for judicial separation and divorce.
The Marriage Laws (amendment) Act, 1976, has changed the
language of clause (iii) of Section 13 (1) completely. The clause
now lays down that a petitioner may get a decree of divorce if
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”. Explanation to the clause defines
‘mental disorder or illness’, arrested or incomplete
development of mind, psychopathic disorder or any other
disorder or disability of mind and includes schizophrenia. The
expression is defined “persistent disorder or ability of mind
which results in abnormally aggressive or seriously
irresponsible conduct on the part of the other party and
whether or not it requires or is susceptible to medical
treatment”.

Meaning of Insanity
The term ‘insanity ’refers to lunacy or unsound mind, mental
abnormality, disease of mind etc. It is the state of mind wherein
a person behaves irrationally out of mental derangement. An
insane person cannot think and act as a normal human being.
His capacity to know things is perverted. It is called ‘non
compos mentis.’ i.e., possessed of a sound mind.
Legal Status of an insane person as per the judicial system has
been as a person who is in a state of incapability of
differentiating between right or wrong and who is not able to
interpret the consequences of his acts and omissions. A person
who is insane is considered to be suffering from certain mental
ailment which makes one lose reasoning to the point that their
actions can barely be anticipated by others.

Insane person under the Hindu

Marriage Act, 1955
Marriage with Insane person is Voidable-At one time, a view
was expressed that marriage with lunatic or idiotic person was
valid under Hindu law. Originally, the Hindu Marriage Act,
section 5(ii) laid down that neither party to marriage should be
an idiot or lunatic at the time of marriage.
But now according to Section 12(1)(b) of Hindu Marriage Act,
1955-Any marriage solemnised, whether before or after the
commencement of this Act, shall be voidable and may be
annulled by a decree of nullity if the marriage is in
contravention of the condition specified in clause (ii) of section
5
According to Section 5(ii)-At the time of the marriage, neither
party—
(a) is incapable of giving a valid consent to it in consequence of
unsoundness of mind; or
(b) though capable of giving a valid consent, has been suffering
from mental disorder of such a kind or to such an extent as to
be unfit for marriage and the procreation of children; or
(c) has been subject to recurrent attacks of insanity
These three clauses of Section 5(ii) are independent of each
other. If a case is converted under any of these clauses, the
marriage can be annulled. Under clause (a) every kind of
“unsoundness of mind” is not covered. The unsoundness of
mind should be such which incapacitates a person from giving
a valid consent to marriage. It need not be persistent or
continuous “unsoundness of mind”. It may exist just before
marriage.
Under clause (b), the words “has been suffering” requires that
“mental disorder” should be of some duration. Of precisely
“what duration” would differ from case to case and no hard
and fast rule can be laid down. It is not every mental disorder
which renders the marriage voidable, but should satisfy two
conditions: (i) it renders the person unfit for marriage, and (ii)
of procreation of children.
According to Section 5(ii)(c), recurrent attacks of insanity make
a person unfit for marriage. The word insanity is not qualified
as “incurable”. Thus, if attacks of insanity are recurrent that is
enough.
The mental conditions specified in clauses of Section 5 relate to
pre-marriage conditions and not the post-marriage mental
conditions though for post marriage mental disability, divorce
or judicial separation may be availed.
Thus, on combine reading of both Section 12(1)(b) and Section
5(ii), it can be said that a marriage between an insane person
and a sane person or marriage between two insane persons is
perfectly valid till the party to marriage exercise the option to
void the marriage given under Section 12(1)(b) of Hindu
Marriage Act, 1955.

Insanity is a ground for Divorce and

Judicial Separation
Insanity is a ground of both judicial separation and divorce.
The Marriage Laws (Amendment) Act, 19766 has changed the
language of clause (iii) of Section 13(1) completely.
The clause (iii) now lays down that now a petitioner may get a
decree of divorce or judicial separation if the respondent “has
been suffering continuously or intermittently from mental
disorder of such a kind and to such an extent that the petitioner
cannot be reasonably expected to live with the respondent”.
Explanation (a) to clause defines the “mental disorder” as
“mental illness”, arrested or incomplete development of mind
psychopathic disorder or any other disorder or disability of
mind and includes schizophrenia.[3] Explanation (b) to Section
13(1)(iii) defines the term “psychopathic disorder” as “
persistent disorder or disability of mind (whether or not
including sub-normality of intelligence) which results in
abnormally aggressive or seriously irresponsible conduct on
the part of the other party, and whether or not it requires or is
susceptible to medical treatment. This provision has been
borrowed from English law.
The petitioner only has to prove that as a reasonable person it
is not possible for him/her to live with the respondent because
of the mental illness.
 In Ram Narayan v. Rameshwari, the Supreme Court has held
that in schizophrenic mental disorder, the petitioner should
prove not merely the said mental disorder, but should also
establish that on that account the petitioner cannot be
reasonably expected to live with the respondent.

Insane Person under the Hindu

Adoptions and Maintenance Act, 1956.
Adoption
The law of adoption and rules related to it are contained under
Chapter II of the Hindu Adoptions and Maintenance Act,
[Link] to Section 5(1) of the Hindu Adoptions and
Maintenance Act, 1956:
No adoption shall be made after the commencement of this Act by or
to a Hindu except in accordance with the provisions contained in this
chapter, and any additions made in contravention of the said
provisions shall be void.
Thus, every adoption made in contravention to the provisions
contained in this chapter shall be void. According to Section 6
of the Hindu Adoptions and Maintenance Act, 1956:No person
shall be valid unless: -
1. The person adopting had the capacity, and the right, to take in
addition;
A. The person giving in adoption has the capacity to do so;
B. The person speed is capable of being taken into adoption; and
C. The adoption is made in compliance with the other conditions
mentioned in this chapter.
Thus, by looking at the first three provisions of Section 6, it is
clear that the person who gives in adoption, the person who is
being adopted, and the person who adopts, all must have the
required capacity to do so.

LEPROSY
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 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 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 and venomous)

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
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.
Malignant and venomous leprosy are virulent forms of leprosy.
A mild form of leprosy which is curable is not virulent.
Lepromatous leprosy, which is malignant and contagious and
is prognosis is usually grave, is virulent leprosy.1 Sometimes its
spread can be arrested by a long period of treatment but
relapses are frequent.2
 VENEREAL DISEASES
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.

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.”
In Mr. X v. Hospital Z , divorce was granted to wife when
husband was discovered to be HIV positive. It was observed by
the court 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 duration.
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 wrong. 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.

Conversion or Apostasy
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
relief.
Meaning- 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.
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.
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 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 IPC
 Legal effects of conversion on
marriage-
Following may be the legal effects 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) that he has converted to another religion
 Presumption of Death
In England, since 1937, the law provides that a spouse may
obtain a decree of dissolution of marriage on the basis of
presumption of death.

Under the Hindu marriage act where it is a ground for divorce

as well as judicial separation. The ground runs: that
respondent has not been heard of as being alive for a period of
seven years or more by those person who would naturally have
heard of it, had that party been alive. 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.

Illustration- A was missing from the last seven years and his
wife B does not get any news about him of being alive or dead.
Here B can approach the court and ask for the divorce.

Under the Evidence act, a person is presumed to be dead if he is

not heard as a life for seven years or more of those person who
would naturally have heard of him had he been alive. This
seems to be the basis of the ground.

Applying the presumption of death, no spouse can presume

himself as widower or widow and remarry. If it does so and
the missing spouse reappears, he would be guilty of by
bigamy, and the second marriage will be void. This seems to be
the basis for making presumption of death as a ground for
divorce. Once the marriage is dissolved, the spouse is free to
remarry, and even if the missing spouse appears the next day,
he can do nothing. However if the second marriage is
performed on the basis of presumption of death without
getting the marriage dissolved, no person other than the
missing spouse can challenge it.

In Nirmoo v. Nikkaram, 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.

RENUNCIATION OF
WORLD
Renunciation of world is a ground for divorce only under
Hindu law. The ground runs: respondent has renounced the
world by entering into any religious order. It could imply to
withdraw from worldly pursuits as a way to lead a non-secular
life.
According to religious beliefs of Hindus, every Hindu is
required to enter into a Sanyasa Ashram- it means not merely
renunciation of world or wordly things but it is also an end of
one’s worldly life. Entering into this Ashram is a part of Hindu
religion. A person can become Sanyasa even at a young age
and it is considered meritorious. It brings consortium to a dead
end, and thus, in matrimonial law, it is nothing but desertion.
Therefore, it has been made specially a ground for divorce and
judicial separation.
 The requirements of this ground are:
1) renunciation of the world by the respondent,
2) Entering into a holy order by him.

 A person may renounce the world such as when he does not

take any interest in the worldly affairs or retires to a single
room, withdraws from cohabitation, or take a vow of celibacy,
or becomes the mauni, yet he may not join a holy order. Such a
spouse will not be covered under this clause, though his
conduct may amount to desertion or cruelty. Unless the second
condition is also fulfilled, the other spouse cannot sue for the
divorce or judicial separation under this clause.
 A person enters into holy or religious order when he undergoes
the ceremonies and rites prescribed by the order which he has
entered becoming a chela of a guru, does not by itself means
entering into a holy order. Entering into a holy order may not
always amount renunciation of the world. Thus, when a Sikh
becomes a Granthi or Hindu becomes a Pujari, there is a no
renunciation of the world as is allowed to lead a family life. It is
submitted that this clause will also not apply to those cases
where a mahant or saint is allowed to lead a married life.
Illustration-A and B got married and lives a happy life. One day
A decides to renunciate the world. Here, B has a right to
approach the court and seek the remedy of divorce.

In Sital Das v. Sani Ram,(AIR 1954)it was held

that someone is stated to have entered in
a religious order whilst he undergoes a few ceremonies and
rites prescribed via the faith.
 WIFE’S FAULT GROUNDS OF
DIVORCE
We have discussed all the grounds on which either spouse may
suit for divorce. The Hindu marriage act ,1955 lays down
certain grounds under SECTION 13 (2) on which a wife alone
can sue for the divorce. These are false grounds of divorce
where wife has been provided four additional grounds. These
are as follows-
1) Rape, sodomy and bestiality
2) Pre-act polygamous marriage
3) Non-resumption of cohabitation after a decree or order of
maintenance
4) Reputation of marriage

RAPE, SODOMY AND

BESTIALITY
Rape, sodomy and bestiality are special grounds on which wife
alone can sue for divorce under the Hindu Marriage Act, the
Special Marriage Act, and the Divorce Act. The grounds under
the Hindu Marriage Act and the Special Marriage Act run thus
"that the husband has, since the solemnization of marriage,
been guilty of rape, sodomy or bestiality. Almost the similar
language has been used under the Divorce Act.

Rape is a criminal offence under Section 375, Indian Penal

Code: Sodomy and bestiality are listed as unnatural offences
under Section 377, Indian Penal Code. A man is guilty of rape
when he forces sexual intercourse on an unwilling woman, i.e.,
against her will or without her consent, or while her consent is
obtained by putting her in fear of death or hurt, or when she
gives consent under a mistaken belief that she is his wife or
with or without her consent when she is under twelve years of
age. A man is not guilty of raping his own wife unless she is
under the age of fifteen years." A person who is guilty of rape
"shall be punished with imprisonment for life of either
description or for a term which may extend to ten years and
shall also be liable to fine. A person who is guilty of raping his
own wife below 12 years "shall be punished with imprisonment
of either description for a term which may extend to two years,
or with fine, or with both." Section 377, IPC, relates to
unnatural offences. That section runs:
Whoever voluntarily has carnal intercourse against the
order of nature with any man, woman or animal, shall be
punished with imprisonment for a term of which may extend
to ten years, and shall also be liable to fine.

Explanation to the section lays down that "penetration is

sufficient to constitute the carnal intercourse." The same rule
applies to rape, i.e... "penetration is sufficient the sexual
intercourse necessary for the offence of rape

Under all the three statutes, if the husband is guilty of rape,

sodomy or bestiality, the wife may sue for divorce. In a wife's
suit for divorce on this ground, it is not necessary for her to
show that the husband was prosecuted and convicted for the
offence. Even if the husband is discharged on the charge of
rape, sodomy or bestiality, she can sue for divorce. In either
case (whether the husband is convicted of the charge or
discharged) the burden of proof for establishing the ground is
on the wife. If a man commits sodomy on his own wife without
her consent, he is guilty of the offence, and wife may sue for
divorce.

PRE-ACT POLYGAMOUS
MARRIAGE UNDER HINDU
LAW
This ground under the Hindu Marriage Act is the natural
corollary to the introduction of monogamy. The ground runs :
A wife may sue for divorce on the ground, in the case of any
marriage solemnized before the was alive at the time of
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."

Under this clause, any wife of the polygamous married

husband may sue provided at the time of the filing of the
petition, at least, one more wife is alive. It is obvious that the
ground will be available if both the marriages are valid. Under
this clause, both the wives may sue for divorce, since"
requirement is that at the time of the presentation of the
petition, the other wife should be alive."

Since the ground relates to the policy of monogamy, the

husband will not be allowed to plead any conduct or disability
on the part of the wife-petitioner so as to bar relief.' Thus, any
compromise which first wife might have entered with the
husband at the time of second marriage or any of her conduct
or disability, or any plea of estoppel² cannot be pleaded in
defence of her petition for divorce. It appears that no bar under
Section 23, Hindu Marriage Act, can be pleaded against her
petition. However, it has been held that petition may be
defeated on the ground of improper delay.
After about more than 50 years of the coming into force of the
Hindu Marriage Act and introduction of monogamy, this
ground is no longer of any practical importance.
In the case of Leela v. Anant Singh it was held by the Court
that the wife of a polygamous marriage should not be deprived
of her right to file for divorce merely on the ground that before
the commencement of the Act, the wife had entered into a
compromise with the husband to live with him continuously,
nor can the husband claim that the wife’s conduct disqualifies
her from seeking divorce under this Act

NON-RESUMPTION OF
COHABITATION AFTER A
DECREE OR ORDER OF
MAINTENANCE

This is a new ground added to the Hindu Marriage Act and the
Special Marriage Act by the Marriage Laws (Amendment) Act,
1976. Under this sub-clause right has been given only to wife to
obtain a decree of divorce if in a suit under Section 18 of the
Hindu Adoption and Maintenance Act, 1956, or in a
proceeding under Section 125 of the Criminal Procedure Code,
1973, 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 order, cohabitation between the parties
has not been resumed for one year or upwards.

The essential conditions for moving divorce petition under the

above sub-clause are:

(i) the petitioner should be wife,

(ii) there should be a decree or order of maintenance either in a

suit under Section 18 of the Hindu Adoptions and Maintenance
Act, 1956 or in a proceeding under Section 125 of the Code of
Criminal Procedure,

(iii) there had been no resumption of cohabitation between the

spouses for a period of one year or more since the passing of
such decree or order of maintenance.

REPUDIATION OF
MARRIAGE
This ground has been enacted in the Hindu Marriage Act by
the Marriage Laws Amendment Act,1976. The ground in the
Hindu Marriage Act runs as under-
A wife may also present a petition for the dissolution of her
marriage by a decree of divorce on the ground:
that her marriage whether consummated or not, was
solemnized before she attained the age of fifteen years and she
repudiated the marriage after attaining that age but before
attaining the age of 18 years Section 13(2)(iv).
This ground is available to a wife irrespective of the fact
whether her marriage was solemnized before or after the
commencement of the Marriage Laws Amendment Act,1976.
Despite the fact that the Child Marriage Restraints Act, 1929-
1978 have raised the age of marriage of girls to 18 years and of
boys to 21 years, child marriages continue to be performed
among the Hindus as well as the Muslims. Such marriages are
neither void nor voidable under Hindu Law. Under Hindu
Law, consummation of marriage is no bar to divorce. The suit
for divorce may be filed after the attainment of the age of 18
years but repudiation of marriage must be made before the
attainment of the age of 18 years as was in Baithula Iylaiah v.
Baithula Devamma AIR 1981. Divorce by arbitration- no
divorce matter can be decided by arbitration.

DIVORCE BY MUTUAL
CONSENT
Section 13-B, Hindu Marriage Act, runs as under:
(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 (Under Divorce Act, these words
are under Indian Divorce (Amendment) Act, 2001] 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.
(2) 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 withdrawn in
the meanwhile, 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
divorce declaring the marriage to be dissolved with effect
from the date of the decree.
In Hindu law, this provision was introduced by the Marriage
Law(Amendment) Act, 1976.
The requirements for the presentation of the petition by mutual
consent are given in Samistha v. Om Prakash AIR 1992,-
1) that spouses have been living separately for a period of 1
year
2) that they have not been able to live together
3) that they have mutually agreed that their marriage should
be dissolved.

Living separate- the expression living separate 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
houses.
Not able to live together- the expression not able to live
together means that marriage had broken down irretrievably.
After the presentation of the petition, the parties are required to
wait for a period of 6 months but not for 18 months or more.
After the expiry of the period of six months, the parties should
move a motion in the court that a decree of divorce dissolving
their marriage be passed. The parties are also free to withdraw
their petition. In case no motion is made within the period of 18
months after the presentation of petition for divorce, the
petition shall stand dismissed. In Roopa v. Prabhakar, 1994 the
requirement of filing petition after six months or not beyond 18
months is not mandatory.
On motion being moved by the parties that their marriage be
dissolved, the court shall on being satisfied after hearing the
parties and after making such enquiry as it thinks fit pass a
decree. The court must in every case be satisfied that consent of
neither party has not been obtained by force, fraud or undue
influence as laid in Section 23(1)(a a). They can make statement
through attorney.
Trend is to waive the waiting period of six months considering
the facts and circumstances of the case but, Punjab and
Haryana High Court has held that this period cannot be
waived.
In Davinder Singh Narula v. Meenakshi Nangia, AIR 2012,the
Supreme Court waved of the waiting period of six months as
the circumstances of the case adequately showed that there was
no marital ties left between the parties.
In Linish P Mathew v. Mridula Matthew AIR 2013,it was held
that this is not necessary to pass degree nisi under this section
as passing degree nisi after 6 months from the date of filing of
petition and thereafter asking parties to wait for another 6
months defeats the purpose of this section 10 A. The bars to
matrimonial relief also apply to a petition for divorce by
mutual consent. In a petition for divorce by mutual consent, no
other ground for divorce can be taken Ravi v. Sharda AIR
1978.
Conversion of fault ground petition to petition by mutual
consent- In Indrawal [Link] Raman AIR 1981, husband’s
petition on the grounds of wife’s adultery and dissertion was
decreed and the wife appealed. At the appellate stage, the court
asked the wife what she wanted and she said that she did not
want to live with her husband and she would agree for a
compromise decree of divorce if the husband withdrew the
charges. The husband agreed provided the wife also withdrew
the counter charge of adultery. Both the parties agreed
accordingly and court found that there was no collusion
between the two. It is possible now to dissolve a marriage by
agreement between the parties although none of the grounds
on which marriage may be dissolved by the court be found to
exist.
In Santhosh v. Virendra AIR 1980,a petition for divorce on the
ground of cruelty and dissertion was allowed to be converted
into the petition of divorce by mutual consent.
Unilateral withdrawal of consent by one party-Once consent is
given, one of the parties to petition cannot withdraw the
consent but, Bombay, Punjab and Haryana and Kerala high
courts have expressed the view that the spouse is free to
withdraw his or her consent unilaterally at anytime as was held
in Harcharan Kaur v. Nachhatar Singh AIR 1988. The Supreme
Court had once held that a party can withdraw his or her
consent unilaterally but later in Ashok Hurra v. Rupa, the
Supreme Court left the question open whether mutual concern
should continue till divorce decree is passed even though
divorce petition has been withdrawn by either of the parties
within the said period of 18 months. Divorce was granted even
though the wife had unilaterally withdrawn the consent as the
marriage was found to be irretrievably broken down. I
n Akhil Kumar Jain v. Maya Jain AIR 2017, the Supreme
Court held that mutual concern should subsist till passing of
final decree. If no motion is moved within 18 months, the
petition shall stand dismissed. The period of 18 months is an
upper limit for withdrawal of petition but court has power to
grant divorce even after expiry of that time or even before the
expiry of six months if other conditions are fulfilled.
Divorce on the basis of mutual compromise-Raymond v.
Union of India AIR 1982, was a petition for divorce by mutual
consent under the Divorce Act. The Supreme Court said that
such a petition could not be granted as under the divorce act,
there is no provision for divorce by mutual consent. But, after
the amendment of the said act this provision is now available
by virtue of section 10.
In Joginder v. Puspa AIR 1969, petition for divorce on the basis
of compromise was allowed. But, Calcutta High Court has
dissented from the view. A decree under this prevision is not a
consent decree as per order 23 rule 3 of CPC. If such a decree is
passed in violation of law or vitiated by fraud or deception, it is
appealable. Where decree was obtained by playing fraud or
court by producing an imposter there were two versions of
proceedings. In one, the wife had participated and in another
she had not. The appellant was given a chance to move
application within 45 days of the said order to avail protective
umbrella Rashmita Vishikeshan Patel v. Vivekanand Patel
AIR 2020.
 IRRETRIEVABLE
BREAKDOWN OF
MARRIAGE-
Irretrievable breakdown of marriage as the basis of divorce is
recognised under the Hindu Marriage Act. Section 13(1A) of
Hindu Marriage Act lays down that either party to the
marriage may present a petition for dissolution of 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.
Whereas Section 10(1)(viii) of the Indian Divorce (Amendment)
Act, 2001 has provided only one case, i.e., the respondent has
failed to comply with a decree of restitution of conjugal rights
for a period of two years or upwards after the passing of the
decree against the respondent.
Non resumption of cohabitation in the former case and non-
compliance with the decree in the latter case for a period of 1
year constitute the evidence of irretrievable breakdown. Right
to apply for divorce on anyone of these grounds should be
available to both the husband and wife as in such a case it is
clear that the marriage has proved a complete failure. There is
no justification for making the right available only to the party
who has obtained the decree in each case. The Hindu Marriage
Act in its clause (a) of Section 23(1) lays down that no decree of
divorce will be passed if the court comes to the finding the
other petitioner is taking advantage of his own wrong or
disability. Aspect of fault theory that the other is innocent has
been retained in respect of Section 13(1A).
In Chamanlal v Mohinder Devi AIR 1968,the wife obtained a
degree for restitution of conjugal rights on January 16, 1963. On
July 7,1965 the husband filed petition for divorce under section
13(1A)(ii) on facts it was established that the husband did not
make any effort whatever to comply with the degree rather he
refused to keep the wife with him. The trial court relying on
Section 23(1A) of the Hindu Marriage Act said that the
husband was not entitled to the decree as to grant him the
degree of divorce would amount to giving him advantage of
his own wrong. On appeal counsel for husband argued that
under Section 13(1A) (ii) mere existence of an unsatisfied
degree for restitution of conjugal rights for a period of 2 years
or more (now has been reduced to one year) was sufficient for
the court to grant a degree of divorce and that the petition
cannot be dismissed on the ground that the husband did not
make any attempt add complying with it. Agreeing that under
Section 13 (1A)(ii) either party can seek divorce but was of the
view that under Section 23(1)(a) of the act the court before
granting the relief to the petitioner had to be satisfied that he
was not in any way taking advantage of his own wrongs for the
purpose of obtaining the relief. The moment the court felt that
he was taking advantage of his own wrongs the petition had to
be dismissed. High courts took the view that Section 23 should
be applied to Section 13(1a) as to any other provision of Section
13 wedded as they are to mechanical jurisprudence. Supreme
Court has categorically laid down that Section 23 is very much
applicable on section 13 (1a). Whenever a petitioner obtains a
decree of judicial separation under section 10 the Hindu
Marriage Act 1955 the basis is some fault ground and therefore
if the respondent after the expiry of the period of one year or
more files add petition for divorce in the Section 13(1 A) (i) it
could as well be said that since he is in the wrong, decree of
divorce cannot be passed.
In Madhukar Bhaskar Sheorey v. Saral Madhukar Sheorey
AIR 1973 under section 23(1a), the court is concerned with the
conduct of the petitioner after passing of the decree. Nai, J. was
quick to realise that this subsection incorporates irretrievable
breakdown principle. A document of section 13 (1)(A) in 1964
is a legislative recognition of the principle that in the interest of
society if there has been a breakdown of the marriage there is
no purpose in keeping the parties tied down to each other. The
judge rightly said that it was not incumbent on the part of
either party to a degree of judicial separation to make any effort
towards resumption of cohabitation.
In Bimala v. Bakhtavar AIR 1977, the court held at mere non
compliance with the decree of restitution or a mere disclination
to agree do an offer or reunion does not amount to be wrong
within the meaning of section 23(1)(a).
The Supreme Court in Dharmendra v. Usha AIR 1977 where
after a little over two years of passing of decree of restitution of
conjugal rights in her favour, the wife petitioned for divorce
under section 13 (1)(A)(ii)Hindu Marriage Act and the husband
in his return statement averred that the wife refusee to receive
or reply to letter written by him and did not respond to his
offer to live with him. The court said that even if the husband
of averments are true, these do not disentitle the wife to the
decree. The court observed in order to be wrong within the
meaning of section 23(1)(a) it must be misconduct serious
enough to justify denial of the relief to which the husband or
the wife is otherwise entitled to.
It has been held by the Supreme Court in Hera Chand Srinivas
v. Sunanda AIR 2001 that section would apply to section 13(1)
(A) and court is not bound to ground divorce on mere proof of
non cohabitation for the stipulated period and that further
section 10(2) does not vest right to get decree for divorce in the
spouse. The marriage is in fact irretrievably broken down and
by refusing the decree what the court is retaining is an empty
shell. The continuation of the same wrong such as adultery on
the basis of which degree for judicial separation was passed is
not a wrong inhibiting the relief under section 13 (1A). Nor is it
essential that the petitioner should have made efforts at
restitution. Petition under section 13(1) (i) may also succeed
when an ex parte decree for judicial separation has been made
in favour of the petitioner.
Period of one year- A divorce petition may be filed after one
year of the degree of restitution of judicial separation. A
petition filed a day after the completion of a year from the date
of decree of judicial separation was not premature, in
Balbhadra v. Sundari AIR 1995.
 CONCLUSION-
Under Section 13, Hindu Marriage Act,1955, There are
available much grounds of divorce on which both husband and
wife can file a divorce petition. Under sub-clause (1) of section
13 of the Act, there are available 9 fault ground on which
divorce can be taken. These grounds are such as desertion,
adultery, cruelty, venereal disease, leprosy, insanity, and
conversion. Under sub-clause (2) of section 13 of the Act, there
are available four ground on which the wife alone can file a
divorce petition. These grounds are such as husband having
more than one wife living, rape or sodomy or bestiality, non-
resumption of cohabitation after a decree of maintenance,
repudiation of marriage. Under sub-clause (1A) of section 13 of
the Act, Irretrievable Breakdown Ground also available for
both husband and wife. Under sub-clause (2) of section 29 of
the Act, the husband and wife can take divorce based on a
custom prevailing in society. Divorce may be initiated at the
end of 1 year of marriage. Two judgment procedures are
required for divorce. One is when the petition is filed and the
second is after a post of 6 months.
 BIBLIOGRAPHY
1. Dr. Paras Diwan, Family Law, 12 ed., 2021
2. Dr. Paras Diwan, Modern Hindu Law, 24 ed. 2019
3. [Link]
marriage-act/
4. [Link]
of-divorce-under-the-hindu-marriage-act-1955
5. [Link]
divorce-with-mutual-consent-under-hindu-marriage-act-
[Link]
6. [Link]
act-1955