Dissolution of Hindu Marriage

Divorce
Section 13 (1) At fault Grounds
i. Adultery
Voluntary intercourse with third person. It does not include rape.
Vira Reddy vs Kistamma 1! - One single act of adultery is enough for divorce or
judicial separation.
Burden of proof is on the petitioner. Earlier it had to be proved beyond doubt but now only
high probability is required.
Circustantial evidence is sufficient.
ii" #ruelty
!egal concept of cruelty has varied fro tie to tie" place to place" and situation to
situation. In early law" intention was considered an essential eleent of cruelty but in
odern law it is not so. #he intention of the law is to protect the innocent party fro any
har -physical or ental. $colding or nagging have also been considered as cruelty.
Definition of #ruelty
#here is no precise definition of cruelty because the ter is so wide. $everal situations and
cases over past %&& years have shown that cruelty can be ental or physical. In the case
of Dastane vs Dastane 1$% &om" it was held that cruelty could be through words"
gestures" or even by ere silence.
' general e(planation of cruelty can be found in the case of Russel vs Russel 1'$" in
which it was held that any conduct that poses a danger to life" lib" or health - physical or
ental" or causes reasonable apprehension of such danger" is cruelty.
Earlier" the petitioner had to show that the act of the respondent caused reasonable
apprehension of danger. #hus" in the case of Sayal vs Sarla 1!1 (un)a*" when wife
adinistered love-potion to the husband" causing his hospitali)ation" it was held to be
cruelty even though she did not ean to hurt her husband because it caused reasonable
apprehension of danger. *owever" now it is not required. #he clause erely says" +if the
respondent has treated the petitioner with cruelty+. In the case of GV+ Kames,-ara Rao
vs G .alili /%%/" $C held that it is not necessary that the act has caused a reasonable
apprehension in the ind of petitioner. #he ephasis will be on the act or conduct
constituting cruelty. It further held that social status of the parties" their education ust be
considered while deterining whether the act constitutes cruelty or not. #hus" what
aounts to cruelty in one case ay not aount to cruelty in another.
0ntention to *e cruel is not material
Earlier intention was necessary but now it is not so. In the case of .amieson vs .amieson
11/" *ouse of !ords observed that unintentional acts ay also aount to cruelty.
In 2illiams vs 2illiams 1!3 Alla,*ad" the necessity of intention in cruelty was finally
rejected in India. In this case husband was insane and constantly accused the wife of
adultery. #his was cruelty without intention.
#hus" in the case of &,ag-at vs &,ag-at 1$! &om" when husband tried to strangulate
wife,s brother and he younger son in a fit of insanity" he was held to be cruel. #eporary
insanity or schi)ophrenia cannot be a defense against the plea of cruelty.
#ruelty need not only *e against t,e 3etitioner
In &,ag-at vs &,ag-at4 cruelty against his step daughter was held as cruelty against wife.
5,e act or omission need not only *e of t,e res3ondent
$ince ost woen have to live in husband,s joint faily" they have to put up with their
actions also. In the case of S,yam Sundar vs Santa Devi 1!/" the wife was ill treated by
the in-laws and husband stood their idly without caring for wife. #his was held as cruelty.
*owever" in the case of Go3al vs Mit,iles, 1$ Alla,*ad" husband,s stand of neutrality
regarding wife and other and his inaction about his other,s nagging of his wife was not
considered cruelty because it is noral wear and tear of a arried life.
5y3es of cruelty 6 (,ysical and Mental
(,ysical #ruelty
Injury to body" lib" or health" or apprehension of the sae. In the case of Kaus,alya vs
2isa7,iram 1!1 (un)" husband beat his wife so uch so that she had to lodge police
coplaint even though injury was not serious. It was held that serious injury is not
required.
Mental #ruelty
In &,agat vs &,agat 18 S# held that a conduct that causes such a ental pain and
suffering that a-es it ipossible to live with that person is ental cruelty. .ental cruelty
ust be such that it cannot reasonably be e(pected to live together. #his has to be judged on
the circustances of the case.
In the case of + Sree3adc,anda vs Vasant,a 1$% Mysore" wife hurled abuses at the
husband and quarreled over trivial atters so uch so that he becae a laughing stoc- in
the locality. #his was held to be ental cruelty against the wife.
In Sa3tami vs .agdis, 1$% #alcutta" false accusations of adultery were held to be ental
cruelty.
9as,oda*ai vs Kris,namurt,i 1/ - .ere doestic quarrels with other in law is not
cruelty.
S,o*,a vs Mad,u7ar Reddy 1'' S# - Constant deand for dowry is cruelty.
In the case of .yotis,c,andra vs Meera 1$%" husband was not interested in wife" he was
cold" indifferent" se(ually abnoral and perverse. It was physical as well as ental cruelty.
iii" Desertion
#hree #ypes - 'ctual /esertion" Constructive /esertion" 0illful neglect.
Actual Desertion - factu of desertion" anius deserdendi" 0ithout reasonable cause"
without consent" 1 yrs ust have passed.
:ac,man vs Meena 6 1!8 - 0ife was fro rich faily. $he was required to live in joint
faily of husband. $he went bac- to parents. 2ept a-ing fa-e proises of return but
never did. *eld desertion.
.agannat, vs Kris,na - 0ife becae braha -uari and refused to perfor arital
obligations. *eld desertion.
&i3inc,andra vs (ra*,avati S# 11$ - *usband went to England. *usband,s friend cae
to house in India. *usband cae bac-. 'lleged affair" which was refuted by wife. 0ife
went to her parents for attending arriage. 3revented her fro coing bac-. *eld no
desertion by wife.
Sunil Kumar vs ;s,a 18 - 0ife left due to unpalatable atosphere of torture in
husband,s house. *eld not desertion.
#onstructive Desertion - If a spouse creates an environent that forces the other spouse to
leave" the spouse who created such an environent is considered deserter.
.yotis,c,andra vs Meera 1$% - *usband was not interested in wife" he was cold"
indifferent" se(ually abnoral and perverse. 0ent to England. #hen cae bac- and sent
wife to England for 3h/. 0hen wife cae bac-" did not treat her well. 'bused her and his
inlaws physically. 0ife was forced to live separately. *eld desertion by husband.
-illful +eglect - If a spouse intentionally neglects the other spouse without physically
deserting" it is still desertion.
&ali,ar vs D,ir Das 1$ - 4efusing to perfor basic arital obligations such as denial of
copany or intercourse or denial to provide aintenance is willful neglect.
Reasona*le #ause
%. If there is a ground for atrionial relief. 5ground for void" voidable arriage or
grounds for aintenance under sec %6 of *'.'7.
1. If spouse is guilty of a atrionial isconduct that is not enough for atrionial relief
but still weighty and grave.
8. If a spouse is guilty of an act" oission" or conduct due to which it is not possible to live
with that spouse.
#,andra vs Saro) 1$1 - 9orcing a brahin wife to eat eat.
2it,out #onsent
&,ag-ati vs Sad,u Ram 1!1 - 0ife was living separately under a aintenance
agreeent. *eld not desertion.
<t,er Grounds (9ou add=see details)
iv" #onversion
$ection %8 5ii7: ceased to be a *indu.
v" ;nsound mind
$ection %8 5iii7 unsound ind- includes ental disorders such a incoplete developent of
brain or psychopathic disorder or schi)ophrenia
vi" :e3rosy
$ection %8 5iv7 virulent and and incurable !eprosy
vii" Venereal disease
$ection %8 5v7 counicable venereal disease
viii" Renunciation of t,e -orld
$ection %8 5vi7 renounced the world
i>" (resumed deat,
$ection %8 5vii7 presued death - not heard of in preceding ; years.
Section 13 (16A) &rea7do-n 5,eory
5i7 <o cohabitation for % yr after passing the decree of judicial separation.
5ii7 <o cohabitation for % yr after passing the decree of restitution of conjugal rights.
Effected by provisions in section 18.
Section 13(/) Additional grounds for -ife
5i7 'nother wife of the husband is alive.
5ii7 4ape" $odoy" Bestiality.
5iii7 0ife was awarded aintenance under section %6 of the *'." %=>? or under $ection
%1> of Cr3C and no cohabitation has occurred for % yr after the award.
5iv7 If wife was under %> at the tie of arriage and if she repudiates the arriage before
%6.
Section 136A Alternate relief in divorce 3roceedings - If the judge feels that sufficient
grounds do not e(ist for divorce" he can grant judicial separation.
Section 136& Divorce *y Mutual #onsent (+o ?ault t,eory of Divorce)
(rocedure of Mutual Divorce
.utual /ivorce is to be filed by the couple only after they have lived apart for at least a
year. ' petition supported with affidavits for divorce should be filed in the district court by
the both the spouses. #he husband and the wife should jointly state to the court that they are
unable to live together as they are facing iense difficulties in adjustent.
#he filing of divorce petition by both the husband and the wife is legally -nown as
the @5,e ?irst Motion (etition for Mutual #onsent Divorce@. @5,e Second Motion
(etition for Mutual #onsent Divorce@ entioned in the sub-section 517 of $ection %8 B is
filed when the couple reappears to the court for the second tie after a period of si(
onths. If the judge is satisfied after a hearing fro both the husband and wife" the court
announces a utual divorce decree.
If the couple fails to appear in the court after si( onths and not later than eighteen onths
fro the date of first otion" the divorce petition becoes null and void. Either of the
couple can withdraw his@her petition within the si( onths ter.
' judgent for utual divorce is passed out only if all the necessary agreeents required
for a utual divorce in India are strictly aintained. #he husband and the wife should coe
to ters of settleent regarding the following issues.
Custody of Child
4eturn of /owry 'rticles @ Istridhan of 0ife
!up $u .aintenance 'ount of 0ife
!itigation E(penses
2it,dra-al of consent
9or pursuing divorce by utual consent" it is iperative that utual consent should
continue till the decree is granted by the court. In case" even if one of the parties to
arriage withdraws his or her consent initially given" the court instantly loses the
jurisdiction to proceed further and grant relief under $ection %8-B of the 'ct. In this
respect" the $upree Court in the *itesh Bhatnagar case reaffired its earlier decision in
$ureshta /evi v. O 3ra-ash 5%==%7" which overruled the view of the *igh Courts of
Bobay and /elhi that proceeded on the preise that the crucial tie for giving utual
consent for divorce is the tie of filing petition and not the tie when they subsequently
ove for a divorce decree.
#he statutory e(pression Athey have not been able to live togetherB under $ection %8-B5%7
of the 'ct" is to be construed not just as a trite stateent of pure volition. It bears a deeper
connotation. It indicates" as the ape( court has e(pounded" Athe concept of bro-en down
arriageBC iplying thereby that reconciliation between the is not possible. In this
respect" the court is duty bound to satisfy itself Aafter hearing the parties and after a-ing
such inquiry as it thin-s fitB about the bona fides and the consent of the parties" and then
and then alone the court shall consider the grant of divorce decree.
#he purpose of the period of %6 onths fro the date of presentation of the joint petition
under $ection %8-B 517 of the 'ct is for re-thin- and reconciliation. If the consent is
withdrawn by either party to arriage" the petition becoes instantly ineffective and is
liable to be disissed at the threshold on this very count.
In view of the long separation of ore than a decade fro his wife" the husband" as a last
resort" urged the ape( court to dissolve his arriage by e(ercising its special jurisdiction
under 'rticle %D1 of the Constitution. #o buttress his clai he specifically cited a pro(iate
decision of the $upree Court itself E 'nil 2uar Fain v. .aya Fain 51&&=7 E wherein
though the consent was withdrawn by the wife" yet the court found the arriage to have
irretrievably bro-en down and granted a decree of divorce by e(ercising its special
constitutional power.
S3ecial 3o-er
*owever" in the instant case the ape( court refused to invo-e its special power in favour of
the husband ainly for two reasons. One" the special power is to be used very sparingly in
cases which cannot be effectively and appropriately tac-led by the e(isting provisions of
law or when the e(isting provisions cannot bring about coplete justice between the
parties.
Generally such a power is e(ercised neither in contravention of statutory provisions nor
erely on grounds of sypathy. #wo" the sanctity of the institution of arriage cannot
allowed to be underined erely at the whis of one of the annoying spouses" ore
specially in the situation and circustances" as in the present case" wherein the wife has
stated that she wants this arriage to continue Ato secure the future of their inor
daughterB.
Invariably it is found that a petition for divorce on fault grounds under section %8 is
replaced by the reedy of dissolution of arriage by utual consent under section %8-B of
the 'ct. #his is advisedly done as if the purpose of the latter provision is to facilitate
divorce by effecting coproise between the parties in respect of ancillary atters. #his in
our view is perhaps the ost erroneous construction of the provisions of section %8-B of the
'ct. #he purpose of the reedy of utual consent" we repeat" is not to facilitate the
dissolution of arriage" inasuch as even the provisions of section %8-B are subject to the
other provisions of the 'ct.
#hus" to save arriage and not to hasten its dissolution should be the core concern of the
court. $pouses ay thin- of dissolving their arriage if they so fancy provided the court is
satisfied that any of the grounds for granting relief e(ists" and that in courtCs view it is not
possible to a-e the reconciled.
0t is suggested to go t,roug, t,e class notes also"