1.

Introduction
Meaning of Divorce:
The legal dissolution of a marriage by a court or other competent body. "her divorce from her
first husband"
A divorce is the legal termination of a marriage by a court in a legal proceeding, requiring a
petition or complaint for divorce (or dissolution in some states) by one party. There are two types
of divorce-- fault and no-fault. A fault divorce is a judicial termination of a marriage based on
marital misconduct or other statutory cause requiring proof in a court of law by the divorcing
party that the divorcee had done one of several enumerated things as sufficient grounds for the
divorce. All states now have adopted some form of no-fault divorce; although some such as New
York, restrict the availability of no-fault divorce and retain fault divorce generally. A no-fault
divorce is one in which neither party is required to prove fault, and one party must allege and
testify only that either irretrievable breakdown of the marriage or irreconcilable differences
between the parties makes termination of the marriage appropriate. Many states continue to offer
a separation agreement or decree, under which the right to cohabitation is terminated but the
marriage is not dissolved and the marital status of the parties is unaltered.
State law governs divorces1, so the petitioning or complaining party can only file in the state in
which he/she is and has been a resident for a certain period of time, which varies by state. The
most common issues in divorces are division of property, child custody and support, alimony
(spousal support), child visitation and attorney's fees. Only state courts have jurisdiction over
divorces, so the petitioning or complaining party can only file in the state in which he/she is and
has been a resident for a period of time. In most states, the legal process of the divorce
procedures take some time, to allow for a chance of reconciliation. The divorce decree is a court
order that states the rights and responsibilities of the divorced parties, including the basic
information regarding the divorce, case number, parties, date of divorce, and terms the parties
have agreed upon.

1 Modern Hindu law BY Paras Diwan 22nd Edition 2013 ,published by Allahabad law
agency (p.68)
1

Sexual relations with anyone other than your spouse is still a crime in many states, even if the
married couple is seeking a divorce. The judge has a great deal of discretion in custody cases and
in awarding or restricting visitation rights. Extramarital sexual relations before divorce may be
used as evidence of marital misconduct during the marriage. Also, cohabitation with another
person may be a factor in reducing support payments received.

2. NATURE OF DIVORCE:
i.

Divorce:
The legal separation of man and wife, accomplished by the judgment or decree of a court,
and either totally dissolving the marriage relation, or suspending its effects as it concerns

ii.

the cohabitation of the parties.

Divisible Divorce:
Decree of divorce may be divided as between provisions for support and alimony and
provisions dissolving the marriage. Doctrine applied in cases under Full Faith and Credit

iii.

Clause in connection with effect of foreign divorce on support provisions.

Ex Parte Divorce:
Divorce proceeding in which only one spouse participates or one in which the other spouse
does not appear. The validity of such divorce depends upon the nature of the notice given to

iv.

the absent spouse.

Migratory Divorce:
Term used to describe a divorce secured by a spouse or spouses who leave(s) his/their
domicile and move(s) to, or reside(s) temporarily in, another state or country for purpose of

v.

securing the divorce.

Divorce a mensa et thoro:
A divorce from table and bed, or from bed and board. A partial or qualified divorce, by
which the parties are separated and forbidden to live or cohabit together, without affecting

vi.

the marriage itself.

Divorce a vinculomatrimonii:
A divorce from the bond of marriage. A total, absolute divorce of husband and wife,
dissolving the marriage tie, and releasing the parties wholly from their matrimonial
obligations.

3. TYPES OF DIVORCE

Despite this, in some countries the courts will seldom apply principles of fault, but might
willingly hold a party liable for a breach of a fiduciary duty to his or her spouse (for example, see
Family Code Sections 720 and 1100 of the California Family Code). Grounds for divorce differs
from state to state in the U.S. Some states have no-fault divorce; some states require a
declaration of fault on the part of one partner2 or both; some state allow either method.
In most jurisdictions, a divorce must be certified (or ordered by a Judge) by a court of law to
come into effect. The terms of the divorce are usually determined by the courts, though they may
take into account prenuptial agreements or post-nuptial agreements, or simply ratify terms that
the spouses may have agreed to privately (this is not true in the United States, where agreements
related to the marriage typically have to be rendered in writing to be enforceable). In absence of
agreement, a contested divorce may be stressful to the spouses.
In some other countries,when the spouses agree to divorce and to the terms of the divorce, it can
be certified by a non-judiciary administrative entity. The effect of a divorce is that both parties
are free to marry again.

i.

Contested divorce

Contested divorces mean that one of several issues are required to be heard by a judge at trial
levelthis is more expensive, and the parties will have to pay for a lawyer's time and
preparation. In such a divorce the spouses are not able to agree on issues for instance child
custody and division of marital assets. In such situations, the litigation process takes longer to
conclude.[23] The judge controls the outcome of the case. Less adversarial approaches to divorce
settlements have recently emerged, such as mediation and collaborative divorce settlement,
which negotiate mutually acceptable resolution to conflicts. This principle in the United States is
called 'Alternative Dispute Resolution' and has gained popularity.

2Kumud Desais Indian Law of Marriage and Divorce, 7th Edition 2008 (p.57)
3

ii.

At-fault divorce

Before the late 1960s, nearly all countries that permitted divorce required proof by one party that
the other party had committed an act incompatible to the marriage. This was termed "grounds"
for divorce (popularly called "fault") and was the only way to terminate a marriage. Most
jurisdictions around the world still require such proof of fault. In the United States, no-fault
divorce is available in all 50 states, as is the case with Australia, New Zealand, Canada and other
Western countries.
Fault-based divorces can be contested; evaluation of offenses may involve allegations
of collusion of the parties (working together to get the divorce), or condonation (approving the
offense), connivance (tricking someone into committing an offense), or provocation by the other
party. Contested fault divorces can be expensive, and not usually practical as eventually most
divorces are granted. Comparative rectitude is a doctrine used to determine which spouse is more
at fault when both spouses are guilty of breaches.
The grounds for a divorce which a party could raise and need to prove included 'desertion,'
'abandonment,' 'cruelty,' or 'adultery.' The requirement of proving a ground was revised (and
withdrawn) by the terms of 'no-fault' statutes, which became popular in many Western countries
in the late 1960s and early 1970s. In 'no-fault' jurisdictions divorce can be obtained either on a
simple allegation of 'irreconcilable differences,' 'irretrievable break-down', or 'incompatibility'
with respect to the marriage relationship, or on the ground of de facto separation.
SUMMARY DIVORCE
A summary (or simple) divorce, available in some jurisdictions, is used when spouses meet
certain eligibility requirements, or can agree on key issues beforehand.

iii.

No-fault divorce

Some Western jurisdictions have a no-fault divorce system, which requires no allegation or proof
of fault of either party.The barest of assertions suffice. For example, in countries that require
4

"irretrievable breakdown", the mere assertion that the marriage has broken down will satisfy the
judicial officer. In other jurisdictions requiring irreconcilable differences, the mere allegation that
the marriage has been irreparable by these differences is enough for granting a divorce. Courts
will not inquire into facts. A "yes" is enough, even if the other party vehemently says "no".
The application can be made by either party or by both parties jointly.
In jurisdictions adopting the 'no-fault' principle in divorce proceedings, some courts may still
take into account the behavior of the parties when dividing property, debts, evaluating custody,
and supportfacts that almost always have considerable weight in fault proceedings. In custody
cases, courts might consider factors that may appear like 'fault' based issues but are really related
to protection of the child or children. These may include but are not limited to one or both
parent's substance abuse, history of violence, cruelty, instability, neglect or endangerment.

Short marriage (less than 5 years)

No children (or, in some states, when the spouses have resolved custody and set child
support payments for children of the marriage)

Minimal or no real property (no mortgage)

Marital property is under a threshold (around $35,000 not including vehicles)

Each spouse's personal property is under a threshold (typically the same as marital
property)

iv.

Uncontested divorce

It is estimated that upwards of 95% of divorces in the U.S. are "uncontested", because the two
parties are able to come to an agreement (either with or without lawyers/mediators/collaborative
counsel) about the property, children, and support issues. When the parties can agree and present
the court with a fair and equitable agreement, approval of the divorce is almost guaranteed. If the
two parties cannot come to an agreement, they may ask the court to decide how to split property
5

and deal with the custody of their children. Though this may be necessary, the courts would
prefer parties come to an agreement prior to entering court.
Where the issues are not complex and the parties are cooperative, a settlement often can be
directly negotiated between them. In the majority of cases, forms are acquired from their
respective state websites and a filing fee is paid to the state. Most U.S. states charge between
$175 and $350 for a simple divorce filing. Collaborative divorce and mediated divorce are
considered uncontested divorces.
Because of additional requirements that must be met, most military divorces are typically
uncontested.
In the United States, many state court systems are experiencing an increasing proportion of pro
se (i.e., litigants represent themselves without a lawyer) in divorce cases. In San Diego, for
example, the number of divorce filings involving at least one self-representing litigant rose from
46% in 1992 to 77% in 2000, and in Florida from 66% in 1999 to 73% in 2001. Urban courts in
California report that approximately 80% of the new divorce filings are filed pro se.

v.

Collaborative divorce

Collaborative divorce is a method for divorcing couples to come to agreement on divorce issues.
In a collaborative divorce, the parties negotiate an agreed resolution with the assistance
of attorneys who are trained in the collaborative divorce process and in mediation, and often with
the assistance of a neutral financial specialist and/or divorce coach(es). The parties are
empowered to make their own decisions based on their own needs and interests, but with
complete information and full professional support.
Once the collaborative divorce starts, the lawyers are disqualified from representing the parties in
a contested legal proceeding, should the collaborative law process end prematurely. Most
attorneys who practice collaborative divorce claim that it can be more cost-effective than other
divorce methods, e.g., going to court. Expense, they say, has to be looked at under the headings
of financial and emotional. Also, the experience of working collaboratively tends to improve
communication between the parties, particularly when collaborative coaches are involved, and
the possibility of going back to court post-separation or divorce is minimized. In the course of
6

the collaboration, should the parties not reach any agreements, any documents or information
exchanged during the collaborative process cannot be used in court except by agreement between
the parties.
Neither can any of the professional team retained in the course of the collaboration be brought to
court. Essentially, they have the same protections as in mediation. There are two exceptions: 1)
Any affidavit sworn in the course of the collaboration and vouching documentation attaching to
same and 2) any interim agreement made and signed off in the course of the collaboration or
correspondence relating thereto. The parties are in control of the time they are prepared to give
their collaboration. Some people need a lot of time to complete, whereas others will reach
solutions in a few meetings. Collaborative practitioners offer a tightly orchestrated model with
meetings scheduled in advance every two weeks, and the range of items to be discussed
apportioned in advance of signing up as well as the more open ended process, the clients decide.

vi.

Mediated divorce

Divorce mediation is an alternative to traditional divorce litigation. In a divorce mediation

session, a mediator facilitates the discussion between the two parties by assisting with
communication and providing information and suggestions to help resolve differences. At the
end of the mediation process, the separating parties have typically developed a tailored divorce
agreement that can be submitted to the court. Mediation sessions can include either party's
attorneys, a neutral attorney, or an attorney-mediator who can inform both parties of their legal
rights, but does not provide advice to either, or can be conducted with the assistance of a
facilitative or transformative mediator without attorneys present at all. Some mediation
companies, such as Devoice, also pair clients with counselors, financial planners and other
professionals to work through common mediation sticking points. Divorce mediators may be
attorneys who have experience in divorce cases, or they may be professional mediators who are
not attorneys, but who have training specifically in the area of family court matters. Divorce
mediation can be significantly less costly, both financially and emotionally, than litigation. The
adherence rate to mediated agreements is much higher than that of adherence to court orders.

4. THEORIES REGARDING DIVORCE

The provisions relating to divorce is contained in Sec 13 of Hindu Marriage Act, 1955.The Act
recognizes two theories of Divorce: the fault theory and divorce by mutual consent.
Under the fault theory, marriage can be dissolved only when either party to the marriage had
committed a matrimonial offence. Under this theory it is necessary to have a guilty and an
innocent party and only innocent party can seek the remedy of divorce. However the most
striking feature and drawback is that if both parties have been at fault, there is no remedy available
Another theory of divorce is that of mutual consent. The underlying rationale is that since two persons can marry
by their free will, they should also be allowed to move out of their relationship of their own free will.
However critics of this theory say that this approach will promote immorality as it will lead to
hasty divorces and parties would dissolve their marriage even if there were slight incompatibility of
temperament. Some of the grounds available under Hindu Marriage Act can be said to
be under the theory of frustration by reason of specified circumstances. These
include civil death ,renouncement of the world etc. In this article we shall see that how these
theories, owing to change in social circumstances and change in attitude towards the
institution of marriage had failed to provide full justice in matrimonial cases

5. DIVORCE IN INDIA:

On an all-India level, the Special Marriage Act was passed in 1954, is an inter-religious marriage
law permitting Indian nationals to marry and divorce irrespective of their religion or faith.
The Hindu Marriage Act, in 1955 which legally permitted divorce to Hindus and other
communities who chose to marry under these acts. The Indian Divorce Act 1869 is the law
relating to the divorce of person professing the Christian religion. Divorce can be sought by a
husband or wife on grounds including adultery, cruelty, desertion for two years, religious
conversion, mental abnormality, venereal disease, and leprosy. Divorce is also available based on
8

mutual consent of both the spouses, which can be filed after at least one year of separated living.
Mutual consent divorce can not be appealed, and the law 3mandates a minimum period of six
months (from the time divorce is applied for) for divorce to be granted. While a Muslim husband
can unilaterally bring an end to the marriage by pronouncing talaq, Muslim women must go to
court, claiming any of the grounds provided under the Dissolution of Muslim Marriage Act.
Official figures of divorce rates are not available, but it has been estimated that 1 in 100 or
another figure of 11 in 1,000 marriages in India end up in divorce.
Various communities are governed by specific marital legislation, distinct to Hindu Marriage
Act, and consequently have their own divorce laws:
i.

The Parsi Marriage and Divorce Act, 1936

ii.

The Dissolution of Muslim Marriage act, 1939

iii.

The Foreign Marriage Act, 1969

An amendment to the marriage laws to allow divorce based on "irretrievable breakdown of
marriage" (as alleged by one of the spouses) is under consideration in India. In June 2010,
the Union Cabinet of India approved the Marriage Laws (Amendment) Bill 2010, which, if
cleared by Parliament, would establish "irretrievable breakdown" as a new ground for
divorce.

6. HINDU MARRIAGE ACT, 1955

Section-13: Divorce(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a
petition presented by either the husband or the wife, be dissolved by a decree of divorce on the
ground that the other party
3Mulla Hindu Law Vol II, 20th Edition Reprint 2010, (p.85)
9

(i) has, after the solemnization of the marriage, had voluntary sexual intercourse 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
(ii) has ceased to be a Hindu by conversion to another religion; or
(iii) has been incurably of unsound mind, or has been suffering continuously or intermittently
from mental disorder of such 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 or any other disorder or disability of mind and includes
schizophrenia;
(b) the expression psychopathic disorder means a 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; or
(iv) has been suffering from a virulent and incurable form of leprosy; or
(v) has been suffering from venereal disease in a communicable form; or
(vi) has renounced the world by entering any religious order; or
(vi) 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;

10

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 willful neglect of the petitioner by the other party
to the marriage, and its grammatical variations and cognate expressions shall be construed
accordingly.
(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 [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.]
(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[bestiality; or]
(iii) that in a suit under section 18 of the 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)
11

[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; or
(iv) that her marriage (whether consummated or not) was solemnized before she attained the age
of fifteen years and she has repudiated the marriage after attaining that age but before attaining
the age of eighteen years.
Explanation. This clause applies whether the marriage was solemnized before or after the
commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976)*.]
State Amendment

Uttar Pradesh:
In its application to Hindus domiciled in Uttar Pradesh and also when either party to the marriage
was not at the time of marriage a Hindu domiciled in Uttar Pradesh, in section 13
(i) in sub-section (1), after clause (i) insert (and shall be deemed always to have been inserted)
the following clause, namely:
(1a) has persistently or repeatedly treated the petitioner with such cruelty as to cause a
reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the
petitioner to live with the other party; or, and
(ii) for clause (viii) (since repealed in the principal Act) substitute (and shall be deemed to have
been substituted) following clause, namely:
(viii) has not resumed cohabitation after the passing of a decree for judicial separation against
that party and
(a) a period of two years has elapsed since the passing of such decree, or
12

(b) the case is one of exceptional hardship to the petitioner or of exceptional depravity on the
part of other party; or

7. GROUNDS FOR DIVORCE

a. Adultery
Adultery is extra-marital sex. It is consensual sexual intercourse between a married person and a
person of the opposite sex not being the other spouse, during the subsistence of the formers
marriage. Where the other party has, after the solemnization of the marriage, had voluntary
sexual intercourse with any person other than his or her spouse, a divorce petition can be filed.
Section 497 of the Indian Penal Code defines adultery: Whoever has sexual intercourse with a
person who is and whom he knows or has reason to believe to be the wife of another man
without the consent or connivance of that man such intercourse not amounting to the offence of
rape is guilty of the offence of adultery.
In Subbaramma v. Saraswati4, the Madras High Court held that the unwritten taboos and rules
of social morality in this country and particularly in village areas must necessarily be taken into
account. If an unrelated person is found alone with a young wife after midnight, in her bedroom
in an actual physical juxtaposition, unless there is some explanation forthcoming for this which
is compatible with an innocent interpretation, the only interpretation that a court of law can draw
must be that two were committing an act of adultery together.

4Subbaramma v. Saraswati
13

In Dr. Ashok Kumar Aggarwal v. Smt. AnjuRaje5, the court held that, mere suspicion of husband
cannot be a proof of adultery, especially when husband had not seen wife in company of any
male member, nor he could name any one, he was not entitled to divorce.

b. Cruelty
(i) Cruelty which is a ground for dissolution of marriage may be defined as wilful and
unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or
mental, or as to give rise to a reasonable apprehension of such a danger. The question of mental
cruelty has to be considered in the light of the norms of marital ties of the particular society, to
which the parties belong, their social values, status, environment in which they live. Cruelty need
not be physical. If from the conduct of the spouse it is established or an inference can be
legitimately drawn that the treatment of the spouse is such that it causes apprehension in the
mind of the other spouse, about his or her mental welfare then this conduct amounts to cruelty;
Maya Devi v. Jagdish Prasad , AIR 2007 SC 14266.
(ii) Making false allegations against husband of having illicit relationship and extramarital affairs
by wife in her written statement constitute mental cruelty of such nature that husband cannot be
reasonably asked to live with wife. Husband is entitled to decree of divorce; Sadhana Srivastava
v. Arvind Kumar Srivastava , AIR 2006 All 7.
(iii) The expression Cruelty as envisaged under section 13 of the Act clearly admits in its ambit
and scope such acts which may even cause mental agony to aggrieved party. Intention to be cruel
is not an essential element of cruelty as envisaged under section 13 (1) (ia) of the Act. It is
sufficient that if the cruelty is of such type that it becomes impossible for spouses to live
together; NeeluKohli v. Naveen Kohli , AIR 2004 All 17.
5Dr. Ashok Kumar Aggarwal v. Smt. AnjuRaje
6Maya Devi v. Jagdish Prasad , AIR 2007 SC 1426
7NeeluKohli v. Naveen Kohli , AIR 2004 All 1
14

(iv) The levelling of false allegation by one spouse about the other having alleged illicit relations
with different persons outside wedlock amounted to mental cruelty; Jai Dayal v. Shakuntala Devi
, AIR 2004 Del 39.
(v) Mental disorder for relief under section 13 (1) (iii) should be of such a degree that it is
impossible to lead normal marital life or it is unreasonable to expect a person to put up with a
spouse with such condition; B.N. PandurangaShet v. S.N. Vijayalaxmi , AIR 2003 Karn 357
(vi) Due to the criminal complaint filed by the wife, the husband remained in jail for 63 days and
also his father and brother for 20 to 25 days. Therefore, even though the case of cruelty may not
have been proved but as the facts emerging from the record clearly indicate that the living of the
two as husband and wife would not only be difficult but impossible, the court has no alternative
but to grant a decree of divorce; Poonam Gupta v. Ghanshyam Gupta , AIR 2003 All 518.
(vii) Unless the entire genesis of the quarrels in the course of which, one of the spouses holds out
a threat to take his or her life is placed before the court, the very fact that some threat in the
course of a quarrel is held out, cannot be viewed in isolation or construed as mental cruelty to the
other spouse; Nalini Sunder v. G.V. Sundar , AIR 2003 Kar 86.
(viii) A husband cannot ask his wife that he does not like her company, but she can or should stay
with other members of the family in matrimonial home. Such an attitude is cruelty in itself on the
part of the husband; Yudhishter Singh v. Sarita , AIR 2002 Raj 382.
(ix) Removal of mangalsutra by wife at the instance of her husband does not amount to mental
cruelty; S. Hanumantha Rao v. S. Ramani , AIR 1999 SC 1318.
(x) A threat to commit suicide by the wife amounts to infliction of mental cruelty on the husband
but it should not be uttered in a domestic tiff; Pushpa Rani v. Vijay Pal Singh , AIR 1994 All 220.
(xi) Solitary instance of cruelty would not constitute cruelty so as to grant a decree for divorce
rather the behavior of the other party has to be persistently and repeatedly treating the other
spouse with such cruelty so as to cause a reasonable apprehension in the mind of the
8Poonam Gupta v. Ghanshyam Gupta , AIR 2003 All 51
15

husband/wife that it will be harmful or injurious for him or her to live with the other party. The
expression persistently means continue firmly or obstinately and the expression repeatedly
means to say or do over again; Vimlesh v. Prakash Chand Sharma, AIR 1992 All 261.
In Shobha Rani v. MadhukarReddi9,71 the Supreme Court held that the word cruelty used in
Section 13 (1) (i-a) of the Act is with reference to human conduct or behaviour in relation to or in
respect of matrimonial duties or obligations. It is a course of conduct of one which is adversely
affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is
physical, it is a question of fact and degree. If it is mental, the inquiry 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. In
this Case, the Supreme Court considerably enlarged the concept of cruelty and held that the
demand for dowry, which is prohibited under law, amounts to cruelty entitling the wife to get a
decree for dissolution of marriage.
In Madan Lal v. SudeshKumari10,73 it was held that where the wife gave birth to an illegitimate
child, the child being born only six months after the marriage with the full development, it has
been held to be cruelty to the husband and entitled to divorce notwithstanding that on same facts,
he could have availed remedy of decree of nullity under Section 12 (1) (d)74 of the Hindu
Marriage Act, 1955.
In Smt. AratiMondal v. Bhupati Mondal,75 the Calcutta High Court held cruelty need not be
intentional. Act of deprivation of conjugal right on the part of the wife toward her husband is
worst form of cruelty.
In Smt. MamataDubey v. Rajesh Dubey,76 the court held that, constantly accusing the husband
of having adulterous relationship with others which proved later to be false and sending the
family members to jail under Section 498-A of I.P.C. amounts to cruelty.

9Shobha Rani v. MadhukarReddi

10Madan Lal v. SudeshKumari
16

In Rajiv Dinesh Gadkari v. Smt. Nilangi Rajiv Gadkari 11,77 husband residing in U.S.A. and
forcing his wife to adopt American life. The court held that asking the wife to wear particular
type of dress or compelling her to drink wine or alcohol amounts to cruelty and entitle to divorce.

c. Desertion
Without any reason, simply for the love and affection towards the father, no married daughter
would stay with her father abandoning her husband. The theory of abnormal relationship has not
been established by the petitioner and it is totally false. Therefore, there is no desertion by the
wife; P. Kalyanasundaram v. K. Paquialatchamy , AIR 2004 Mad 43.
In DurgaPrasannaTripathy v. Arundhati Tripathy,106 the wife had deserted the husband after
seven months of marriage and the parties were living separate since a period of fourteen years.
Wife was not willing to live with husband in spite of all efforts. Better part of their lives was
wasted in litigation and the parties disliked each other. There was irretrievable breakdown of
marriage. Therefore, to put an end to litigation and to put an end to the bitterness between the
parties, divorce on the ground of desertion can be granted.
In Smt. Sunita v. Ramesh Kumar12,110 a petition was filed on the grounds of desertion and
cruelty by wife. In this case, after marriage, the parties lived together only for about a week.
Wife thereafter joined the company of husband nearly after six months and stayed there for about
five days only. She involved husband and his family members in number of criminal as well as
civil cases. Though Panchayat had settled matter of separation, no effort was made by wife to
join matrimonial home. In most of criminal cases, she was not ale to substantiate claim made by
her. The court held that, in such cases, grant of divorce on ground of desertion and cruelty would
be proper

d. Insanity

11Rajiv Dinesh Gadkari v. Smt. Nilangi Rajiv Gadkari

12Smt. Sunita v. Ramesh Kumar
17

Defense of insanity is not available on that the offending spouse is not capable of knowing what
he is doing if the conduct is held to be cruelty regardless of motive or intention to be cruel.
Insanity, therefore, should not bar the relief claimed by the wife; Trimabak Narayan Bhagwat v.
Kumudini T. Bhagwat , AIR 1967 Bom 8013.
In Harmanjit Kaur v. Bhupinder Singh Gill,126 the appellant was suffering from mental disorder
(Schizophrenia) since before her marriage; that this fact was not disclosed to the respondent; that
according to the medical advice the disease is incurable and she might become a danger to the
husband and also to the child. Therefore the court granted divorce.
In Sona v. Karambir, a board of doctors gave the opinion that the wife suffered from moderate
range of mental retardation; that her mental unsoundness was incurable; she could not discharge
her marital obligations; she gave totally incorrect and irrational answers to the questions posed to
her. It was held that her case fell under Section 13 (1) (iii) of the Hindu Marriage Act, 1955.
Intention to bring cohabitation permanently to an end
Where there is a breakdown of the marriage, this in itself should be a cause for which divorce
should be available under law. It would then be immaterial to inquire as to which of the two
parties is at fault; Swaraj Garg v. K.M. Garg , AIR 1978 Del 296.

8. SCOPE OF SECTION 13 OF HINDU MARRIAGE ACT, 1955

Section 13 does not envisage luxury. The provisions are meant to preserve the meaning of life.
Personal laws may be different from laws of equity nonetheless they are based on equitable
judicious perception for appreciation of facts and circumstances in their light; Ram Lakhan v.
PremKumari , AIR 2003 Raj 115.
Solitary ground for divorce
13Trimabak Narayan Bhagwat v. Kumudini T. Bhagwat , AIR 1967 Bom 80

18

Frivolous and vexatious litigation instituted and fought under the pressure of some family
members cannot be used as a ground to contend that the marriage has irretrievably broken down
and the marriage is, for all practical purposes, dead. Acceptance of such argument will mean, that
in all matters wherever matrimonial litigation went on for five to ten years, the divorce must
follow. The marriage cannot be dissolved on this solitary ground; Neeta Kirit Desai v. Bino
Samuel George , AIR 2003
Section-13A Alternate relief in divorce proceedings

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), (vi) and (vii) 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.

Breakdown theory It would not be very reasonable to think that the relief which is available to
the spouse against whom a decree for restitution has been passed, should be denied to the one
who does not insist on compliance with the decree passed in his or her favour. In order to be a
wrong within the meaning of section 23(1)(a) the conduct alleged has to be something more
than a mere disinclination to agree to an offer of reunion, it must be misconduct serious enough
to justify denial of the relief to which the husband or the wife is otherwise entitled; Dharmendra
Kumar v. Usha Kumar , AIR 1977 SC 221814.
Section-13B Divorce by mutual consent 13B. Divorce by mutual consent. (1) Subject to the provisions of this Act

14Dharmendra Kumar v. UshaKumar , AIR 1977 SC 2218.

19

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 (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 the
presentation of the petition referred to in sub-section (1) and not later than eighteen months after
the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied,
after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been
solemnized and that the averments in the petition are true, pass a decree of divorce declaring the
marriage to be dissolved with effect from the date of the decree.
Period of six months not mandatory
As provided in sub-section (2) of section 13B the period of six months cannot be taken as
mandatory, because if it is mandatory the very purpose of liberalised concept of divorce by
mutual consent will be frustrated, especially when the parties have live separately and there was
no chance of reunion; K. Thiruvengadam v. Nil , AIR 2008 Mad 76.
Transitional period
(i) The period of 6 to 18 months provided in section 13B is a period of interregnum which is
intended to give time and opportunity to the parties to reflect on their move.
In this transitional period the parties or either of them may have second thoughts; Suman v.
Surendra Kumar, AIR 2003 Raj 155.
(ii) The period of living separately for one year must be immediately preceding the presentation
of petition. The expression living separately connotes not living like husband and wife. It has
no reference to the place of living. The parties may live under the same roof and yet they may

20

not be living as husband and wife. The parties should have no desire to perform marital
obligations; Sureshta Devi v. Om Prakash, AIR 1992 SC 190415.
(iii) The period of six to eighteen months time is given in divorce by mutual consent as to give
time and opportunity to the parties to reflect on their move and seek advice from relations and
friends. Mutual consent should continue till the divorce decree is passed. The court should be
satisfied about the bona fides and consent of the parties. If there is no consent at the time of
enquiry the court gets no jurisdiction to make a decree for divorce. If the court is held to have the
power to make a decree solely based on the initial petition, it negates the whole idea of
mutuality. There can be unilateral withdrawal of consent. Held, that since consent of the wife
was obtained by fraud and wife was not willing to consent, there could be unilateral withdrawal,
of consent; Sureshta Devi v. Om Prakash, AIR 1992 SC 1904.
In KiritbhaiGirdharbhai Patel v. PrafulabenKiritbhai Patel,191 the Gujarat High Court held that,
the expression have been living separately under Sub-Section (1) of Section 13-B of the Act
does not necessarily mean that the spouses has to live in different places. What the expression
would seem to require is that they must be living apart, viz., not living with each other as
husband and wife. Merely going abroad jointly and staying under one roof is not living as
husband and wife. It can not be ground to refuse divorce when marriage has not been
consummated for more than one year.
In Indramal v. Radhey Raman,196 the Allahabad High Court held that the parties are not
required to prove any grounds of dissolution of marriage, but the courts have to simply find out
that the mutual consent is not the result of any conspiracy between them. Once it is proved that
they want it voluntarily without any ground of divorce being present, the court would be obliged
In Smt. Suman v. Ashok Chhajer,198 in a petition for divorce under Section-13-B, both parties
appearing in person and stating that it was not possible for them to live together. To secure ends
of justice for peace of life of both parties, divorce by mutual consent granted. to pass a decree by
mutual consent.

15Sureshta Devi v. Om Prakash, AIR 1992 SC 1904

21

Section 14 No petition for divorce to be presented within three years of marriage (1) Notwithstanding anything contained in this Act, it shall not be competent for any court to
entertain any petition for dissolution of a marriage by a decree of divorce, [unless at the date of
the presentation of the petition one year has elapsed] since the date of the marriage:
Provided that the court may, upon application made to it in accordance with such rules as may be
made by the High Court in that behalf, allow a petition to be presented [before one year has
elapsed] since the date of the marriage on the ground that the case is one of exceptional hardship
to the petitioner or of exceptional depravity on the part of the respondent, but if it appears to the
court at the hearing of the petition that the petitioner obtained leave to present the petition by any
misrepresentation or concealment of the nature of the case, the court may, if it pronounces a
decree, do so subject to the condition that the decree shall not have effect until after the [expiry
of one year] from the date of the marriage or may dismiss the petition without prejudice to any
petition which may be brought after the 4[expiration of the said one year] upon the same or
substantially the same facts as those alleged in support of the petition so dismissed.
(2) In disposing of any application under this section for leave to present a petition for divorce
before the [expiration of one year] from the date of the marriage, the court shall have regard to
the interests of any children of the marriage and to the question whether there is a reasonable
probability of a reconciliation between the parties before the expiration of the marriage.

22

9. Whats the difference between a divorce, a legal separation, and

an Annulment?
Divorce:
Dissolution of marriage is Connecticuts legal term for a divorce. It happens when two people
have been legally married, and one or both of them goes through the court process to have the
marriage ended. Orders about alimony, division of property, name changes, and child custody,
visitation, and support can all be made in a divorce.

Legal Separation:
A legal separation is a court order between married people and is similar to a divorce in that the
court can make orders about finances and children. But after the court orders are put in place, the
people remain married. This is usually done for religious reasons, when people cannot stay
together but do not feel right about divorcing.
Sometimes when people say they want a legal separation, they really mean they want to get court
orders and start living separately, and decide at a later date if they want to file for a divorce. In
this case, it is often better to file for dissolution of marriage (divorce) rather than a legal
separation. Or, you may file a case that asks for both, and decide later which will be the final
order. If one party wants a legal separation and the other asks the court for a divorce, the court
will order a divorce.

23

Annulment:
An annulment is a court order that says that a marriage never existed in the first place. Many
people are under the mistaken impression that they can ask for an annulment because they have
been married for a very short time. An annulment is usually only possible when the marriage was
not legal in the first place (for example, if one of the people was underage or already married).
Some churches have a separate "annulment" process, which is the name they give for granting
religious permission to end a marriage. That is not connected in any way to the state laws or
processes about marriage.

10.

CONCLUSION

In India, as per Hindu culture, tradition, customs and practices, marriage are considered to be
made in heaven. Therefore marriages in India are considered to be the highest form of social
relationship. It gives the person who is to live with us for whole life, to share our good and bad
times, give us support any time we need and helps in developing our family. We need to respect
not only the person but the institution of marriage as well.
But the manner in which the judiciary is dealing with the subject of irretrievable break down of
marriage, it is feared that it will completely break the system of marriages. Every theory has their
own negative and positive traits. There applicability differs from situation to situation. Therefore
it is very essential that the law makers of our country should deal with the subject in a very
cautious manner after considering in detail its future implications.

24

11.
i.
ii.
iii.
iv.
v.
vi.
vii.
viii.

LIST OF CASES:

12.

BIBLIOGRAPHY:

Subbaramma v. Saraswati
Dr. Ashok Kumar Aggarwal v. Smt. AnjuRaje
Maya Devi v. Jagdish Prasad , AIR 2007 SC 1426
NeeluKohli v. Naveen Kohli , AIR 2004 All 1
Poonam Gupta v. Ghanshyam Gupta , AIR 2003 All 51
Shobha Rani v. MadhukarReddi
Madan Lal v. SudeshKumari
Rajiv Dinesh Gadkari v. Smt. Nilangi Rajiv Gadkari

25

References

Statutes referred
Hindu Marriage Act, 1955

Books referred

i.
ii.
iii.
iv.
v.

Dr. Diwan Paras, Modern Hindu Law.

Kumud Desais Indian Law of Marriage and Divorce, 7th Edition 2008
MullaHinduLaw Vol II, 20th Edition Reprint 2010.
Poonam Pradhan Saxena Family Law Lectures: Family Law II, 2nd Edition 2007 Reprint
2010
U.P.D Kesari, Modern Hindu Law.

Webiliography:
i.

http://www.justice.govt.nz/family-justice/separation/divorcing

ii.

http://articles.latimes.com/1987-07-12/news/mn-3473_1_divorce-law

26