Dr.

Ram Manohar Lohiya National Law University,

Lucknow

2015-2016

FAMILY LAW

GROUNDS OF DIVORCE UNDER HINDU LAW

Submitted to: Submitted by:

Mr. Mahendra Singh Paswan Nishant Kumar

Assistant Professor (law) Roll No. 83

Dr. RMLNLU 4th semester

Sec-B

1
 CONTENTS

Introduction.. 2
Divorce in Ancient India.. 3
Theories of Divorce.. 5
Divorce in Modern India7-24
Section 13 of Hindu Marriage Act 1955

- Grounds available to both husband and wife 7-19

Adultery...... 8
Cruelty 9
Desertion... 13
Conversion.... 15
Insanity.. 15
Leprosy.. 16
Venereal Disease... 16
Renunciation. 17
Presumption of Death (missing for 7yr).. 17
Renunciation of the World 17
Section 13(1-A). 17
- Additional grounds for wife only... 19
- Divorce by mutual consent..... 20
Conclusion ... 24
Bibliography..... 24

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 Introduction

Earlier divorce was unknown to general Hindu law as marriage was regarded as an indissoluble
union of the husband and wife. Manu declared that a wife cannot be released by her husband
either by sale or by abandonment, implying that the marital tie cannot be severed in anyway.
Although Hindu law does not contemplate divorce yet it has been held that where it is recognized
as an established custom it would have the force of law.

According to Kautilyas Arthashatra, marriage might be dissolved by mutual consent in the case
of the unapproved form of marriage. But, Manu does not believe in discontinuance of marriage.
He declares let mutual fidelity continue till death; this in brief may be understood to be the
highest dharma of the husband and wife.1 The duty of wife continues even after her death. She
can never have second husband.

Even the society has experienced a great amount of change in the grounds on which divorce is
granted. Initially it started as the guilt theory i.e. if any of the spouses has committed an act that
destroys the basic foundations of marriage like adultery and cruelty. Then came the guilt theory
according to which divorce could be granted if any of the spouse was suffering from venereal
disease, impotency insanity etc. these reasons cannot be classified as guilt since it is not a
mistake but it is the fault of that person.

However, this changed when divorce was introduced in the Hindu Marriage Act, 1955.

1
Hindu Law by R. K. Agarwala Pg 73

3
 Divorce in Ancient India

Divorce in the ancient India can be understood by ancient Indian Sanskrit texts known as the
Smritis; texts traditionally handed down from generation to generation, from teacher to pupil,
and committed to memory.

According to Manusmriti there was no concept of Divorce. There is no such thing as divorce.
Manu says that the woman who leaves her husband should be shunned by the society. No other
man ever marry her, those who wish to follow the Brahminical principles strictly, men or
women, they should no longer associate with that woman. A woman, who leaves her husband, in
Vedic culture, has no other place to turn.

Naradsmriti-According to him wife can seek the divorce on certain condition:

When husband lost & unheard for a period of 7 yr

When husband is dead
When husband has renounced the world
When husband has become impotent

According to Chanakya Divorce can be taken only in case of unapproved marriages.

Marriages were classified into 8 types

Brahmya When a father gives away his daughter in full consent.

Prajapatya The joint performance of sacred duties performed by the husband and the
wife without prior consent of the wifes father.
Aarsha A marriage performed and regularized by the groom when he gifts two cows to
the brides father in exchange of getting his wife.
Daiva The giving away of a daughter to the officiating priest.
Gandharva The man and woman marrying secretly without anyones permission or
knowledge (witness).
Asura The giving away of a daughter in exchange of price.

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 Rakshasha A marriage performed after the bride has been abducted and without her
consent.
Paisacha A marriage performed after the bride was poisoned/intoxicated or while she is
sleeping.

The first four types of marriages are considered lawful and sacred while the last four are
considered unlawful.

No Divorce can be claimed for marriages of the first four kinds. In the case of latter four
kinds, a divorce can be seeked on the basis of mutual hatred. A spouse cannot seek a
divorce on the basis of unilateral hatred so if one of them is not willing to end the
marriage, a divorce is ruled out.
If a husband seeks divorce from his wife on the basis of wifes misconduct, he shall
return to her all that he has received from her. However, if a wife seeks divorce from her
husband on the basis of Husbands misconduct, he may not return to her all that he has
received from her.
Under no conditions a marriage can be revoked if the girl has conceived a child from the
man.
A marriage can be revoked if a sexual defect (impotency, loss of virginity) is discovered
immediately after marriage.

Theories of Divorce

There are basically three theories for divorce-fault theory, mutual consent theory & irretrievable
breakdown of marriage theory.

Under the Fault theory or the offences theory or the guilt theory, marriage can be dissolved only
when either party to the marriage has committed a matrimonial offence. 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.

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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.

The third theory relates to the irretrievable breakdown of marriage. The breakdown of marriage
is defined as such failure in the matrimonial relationships or such circumstances adverse to that
relation that no reasonable probability remains for the spouses again living together as husband
& wife.

The breakdown of relationship is presumed de facto. The fact that parties to marriage are living
separately for reasonably longer period of time (say two or three years), with any reasonable
cause (like cruelty, adultery, desertion) or even without any reasonable cause (which shows the
unwillingness of the parties or even of one of the party to live together) and all their attempts to
reunite failed, it will be presumed by law that relationship is dead now.

Recently the Supreme Court Naveen Kohli v. Neelu Kohli2 has recommended an amendment to
the Hindu Marriage Act, whereby either spouse can cite irretrievable breakdown of marriage as a
reason to seek divorce. Expressing the concern that divorce could not be granted in number of
cases where marriages were virtually dead due to the absence of the provision of irretrievable
breakdown, the court strongly advocated incorporating this concept in the law in view of the
change of circumstances.

The Court observed that public interest demands that the married status should, as far as
possible, as long as possible and whenever possible, be maintained. However, where a marriage
has been wrecked beyond any hope of being repaired, public interest requires the recognition of
the fact. The judgment notes that there is no acceptable way in which a spouse can be compelled
to resume life with the consort and that situations causing misery should not be allowed to
continue indefinitely as law has a responsibility to adequately respond to the needs of the society.
The profound reasoning is that in situations when there is absolutely no chance to live again

2
2006(3) SCALE 252

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jointly or when it is beyond repair, in such a case it would be futile to keep the marital tie alive.
Here the ground of irretrievable breakdown is really needed. But it should not be oblivious that
the ground, when introduced, needs to provide safeguards to ensure that no party is exploited.

Merits -Therefore to protect the sanctity of marriage, to reduce the number of unhappy
marriages and to prevent from getting wasted the precious years of life of the spouses, it is
necessary to dissolve such a marriage.

Demerits-The two main oppositions discussed in the report are as follows:

(i) It will make divorce easy. It will allow the spouses or even to any one of the spouses to
dissolve the marriage out of their own pleasure.

(ii) It will allow the guilty spouse to take the advantage of his own fault by getting separated and
dissolving the marriage.

Divorce in Modern India

Grounds for Divorce under Hindu Marriage Act (Section-13)

In the modern Hindu law, all the three theories of divorce are recognized & divorce can be
obtained on the basis of any one of them. The Hindu Marriage Act, 1955 originally, based
divorce on the fault theory, and enshrined nine fault grounds in Section 13(1) on which either the
husband or wife could sue for divorce, and two fault grounds in section 13(2) on which wife
alone could seek divorce. In 1964, by an amendment, certain clauses of Section 13(1) were
amended in the form of Section 13(1A), thus recognizing two grounds of breakdown of
marriage. The 1976 amendment Act inserted two additional fault grounds of divorce for wife & a
new section 13B for divorce by mutual consent.

Section 13 lays down four types of grounds for divorce, which may be classified as follows:

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 Nine grounds based on the fault-disability theory of divorce which only the aggrieved
spouse may avail. These are laid down in sub-Section (1).
Two grounds based on the Break down theory of divorce which either the aggrieved
or the guilty spouse may avail.
Four special grounds, which only a wife can avail. These are laid down in subsection (2).
Divorce by Mutual consent(13-B)

This Section has, since its initial enactment in 1955, been amended twice- first in 1964 and then,
drastically in 1976.

The various grounds on which a decree of divorce can be obtained are as follows-

Fault grounds of divorce

Divorce available to wife and husband both

(i) Adultery

There is no clear definition of the matrimonial offence of adultery. In adultery there must be
voluntary or consensual sexual intercourse between a married person and another, whether
married or unmarried, of the opposite sex, not being the others spouse, during the subsistence of
marriage. Thus, intercourse with the former or latter wife of a polygamous marriage is not
adultery. But if the second marriage is void, then sexual intercourse with the second wife will
amount to adultery.

Though initially a divorce could be granted only if such spouse was living in adultery, by the
Marriage Laws Amendment Act, 1976, the present position under the Hindu Marriage Act is that
it considers even the single act of adultery enough for the decree of divorce..

Since adultery is an offence against marriage, it is necessary to establish that at the time of the
act of adultery the marriage was subsisting. Also, it follows that unless one willingly consents to
the act, there can be no adultery. If the wife can establish that the co-respondent raped her, then
the husband would not be entitled to divorce.

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In P. v P.,3 where the wife was seen in seminaked state in hotel with stranger, the court did not
consider it sufficient to conclude adulterous relations of wife with stranger. The court held that
so long the act of cohabitation is not proved beyond doubt; adultery cannot be concluded to be a
ground for matrimonial relief.

To constitute a ground for decree of divorce, the sexual intercourse complained must have taken
place after the solemnization of marriage with the petitioner. Pre-marriage unchastity of wife or
pre-marriage sexual relation of the husband with some other woman is not a ground of divorce.

In H.T. Veera Reddi v. Kistamma4, it was held that the birth of a child after four hundred and
two days of separation from the husband is a clear evidence of adultery, because no child can be
born of the lien of the husband after so long a separation.

The burden of proving adultery is always on the person alleging adultery, there being a
presumption of innocence. Adultery being a serious matrimonial offence, a high standard of
proof is required in order to satisfy the court that offence has been committed. It is true that
normally the matrimonial offence of adultery is expected to be established by circumstantial
evidence because direct fact of adultery may be difficult to be proved except in a very few
cases.5

The law relating to standard of proof is clear and simple. It is not necessary that the charge of
unchastity must be proved beyond all reasonable doubt. The court can act on the preponderance
of probabilities. The standard of proof is same as in civil cases.6

(i-a)Cruelty

The idea, the meaning and the concept of cruelty changes from time to time, varies from place to
place and differs from individual to individual. It is not the same for persons situated in different
economic conditions and status. Perhaps this is the reason why the Legislature has not, in any of
the Acts, defined as to what cruelty is and has left it to the best judgment of the Judiciary to

3
AIR 1982 Bom. 498
4
AIR 1969 Mad 235.
5
Ravindra Prasad v., Sita Desai, AIR 1986 Pat.,128
6
Mani Shankar v Radha Devi, AIR 1992 Raj. 33.

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decide as to what amounts to cruelty to a particular person in a particular set of circumstances.
Various Judges have, in numerous judgments, defined as to what amounts to cruelty, but once
again those definitions are not general but are related to the facts of those particular cases.

The question of cruelty is to be judged on the totality of the circumstances. In order to term a
conduct as cruel it should be so grave and weighty that staying together becomes impossible. A
conduct to be cruel must be more serious than the ordinary wear and tear of marriage.

Cruelty can be of both kinds: physical and mental. It is physical when the body is injured. It is
mental when feeling and sentiments are wounded. The petitioner may be meted with cruelty of
either or both types. However, cruelty has to be distinguished from the ordinary wear and tear of
family life. It cannot be decided on the basis of sensitivity of the petitioner and has to be
adjudged on the basis of the course of conduct which would, in general, be dangerous for a
spouse to live with the other.7 A few stray instances indicating a short tempered nature and
somewhat erratic behaviour are not sufficient to prove cruelty for the purpose of this Section.

In Shobha Rani v. Madhukar Reddi,8 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.

A husbands conduct of:

humiliating his wife,

calling her frigid or cold fish, making excessive sexual demands,
comparing her with the maid servant,

7
Savitri Pandey v. Premchandre Pandey AIR 2002 SC 591.
8
AIR 1988 SC 121.

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 taunting her for not having any child or giving birth to female children,
demanding dowry,
asking her to bring money or articles from her parents,
objecting to her visiting her parents, insulting her relatives when they visit her,
deliberately removing all servants and making her do all household work,
denying any medical treatment when she is ill.

All of these acts are of mental cruelty by the husband upon the wife.

9
In Rajiv Dinesh Gadkari v. Smt. Nilangi Rajiv Gadkari, 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.

A wifes conduct of:

humiliating her husband in the presence of family members and friends,

taunting her husband on his physical incapabilities,
denying him access to physical relationship,
neglect,
coldness and insult,
deliberately wearing clothes which her husband dislikes,
purposely cooking food which her husband is not fond of,
visiting her parents family off and on against her husbands wishes,
undergoing an abortion despite her husband asking her not to do so,
threatening to commit suicide,
refusing to do household work,
keeping husband outside the door of house,
complaining to husbands employer,
disobedience.

9
AIR 2010 (1) Bom R 45

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All these are not acts of physical violence but yet it has an effect on the husbands mind and due
to this, the husbands health suffers and therefore these acts can be termed as cruel.

In Shankar Prasad Chaudhary v Madhvi Pal Chaudhary10 court held that wife refusing to have
sexual intercourse without any reasonable justification amount to cruelty and husband would be
entitled to matrimonial relief.

In Harbhajan Singh v. Amrjeet Kaur,11 the M.P. High Court considered various situations
which amounted to cruelty. Where wife used to give treat to commit suicide, slapped the
husband, used to refuse to do house hold work, keep husband outside the door on a return from
office for half an hour, used to ask him to clean the dining table the court held them as incidents
of cruelty and hence decreed the petition of husband for divorce.

In Kamma Damodar Rao v. Kamma Anuradha,12 a divorce petition was filed under Section 13
(1) (i-a) on the ground of mental cruelty by husband. Husband was addicted to vices like
alcoholism and drugs and in said mental and physical state, he was abusing his wife in filthy
language and was beating her rudely. He was moving with people of low class in state of
drunkenness and was staying in hotel, causing nuisance to inmates of hotel. It was held that, facts
of husband spending time in hotels without paying bills would prove disrespect of husband to
family and wife. It amounts to causing mental agony, which can be treated as mental cruelty and
the wife was entitled to decree of divorce.

Cases wherein there was no cruelty:

Persuading and pressing on unwilling wife to accompany the husband to his place.
Solitary and or occasional beating of the wife by the husband.
Petty quarrels and troubles.
Beating of the child and quarrel between the couple.
Refusal to give treatment and diet as prescribed by a doctor, because that was beyond the
means of the husband.

10
AIR 1982 Cal. 474
11
AIR 1986 MP 41
12
AIR 2011 Andhra Pradesh 23

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 Mere consumption of alcohol by the husband unaccompanied by abuses, insults and
violence.
Mere filing of an FIR. u/S. 498-A, I.P.C. by wife against the husband.
To live with a wife who is a victim of gang rape.
Initiation of legal proceedings u/S. 498-A, and 323 IPC94. Against the husband, which
failed.
Wife going to her parents house without husbands permission.
Husband negligent about wifes health, not visiting her even after she gave birth to a
child.

In order to find out whether a particular act is cruel or not, one has to look upon the effect which
is caused by that act. If the effect is that by a particular act harm has been caused to the body or
mind of the other, the said act is an act of cruelty.

(i-b)Desertion

Desertion means withdrawing from the matrimonial obligation, i.e., not permitting or allowing
and facilitating the cohabitation between the parties. It 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.13

The deserting spouse should be proved that there is-

1. factum of separation; i.e., living apart and away from the deserted spouse, and

2. animus deserendi; i.e., an intention to bring cohabitation to an end permanently. Further, it

should be proved that on the part of the deserted spouse, there was.

absence of consent to the separation, and

absence of conduct giving reasonable cause to the spouse to leave the matrimonial home.

13
R.K. Agarwala- Hindu Law, 21st edn. 2003, p.86, Central Law Agency, Allahabad

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In matrimonial law, desertion means continual absence from cohabitation contrary to the will or
without the consent of the party charging it, and without reasonable cause. Desertion is not to be
tested by merely ascertaining which party left the matrimonial home first. The party who intends
to bring the cohabitation to an end and whose conduct in reality caused its termination commits
the act of desertion.

Desertion was a ground only for judicial separation under Hindu Marriage Act, 1955. However,
after passing of the Act of 1976, this is a ground for both divorce as well as judicial separation
under Section 13 (1) (i-b).

Desertion may be actual or constructive. Constructive desertion may contain the characteristics
of cruelty. In actual desertion, there is forsaking of the matrimonial home while in constructive
desertion, there is forsaking of the matrimonial relationship.

If the wife leaves her matrimonial home and lives apart this would be desertion by her. But if she
shows that there was cruelty on the part of the husband and so she had quit the matrimonial
home, there would be no legal desertion by her. On the contrary, it would be treated a desertion
by the husband who had driven here out. So the question of legal desertion cannot be established
merely by showing who left the matrimonial home. Thus desertion has to be inferred from the
state of things. This is known as constructive desertion.

To constitute a ground for judicial separation or divorce, desertion must be for a continuous
period of two years preceding the date of presentation of the petition.

Termination of desertion:

Desertion is a continuing offence. It is possible to bring the state of desertion to an end by some
act or conduct on the part of deserting spouse. It may come to an end in the following ways:

Resumption of cohabitation.
Resumption of marital intercourse.
Supervening animus revertendi, or offer of reconciliation

14
In Gagandeep Gupta v. Dr. Sonika Gupta,14 husband filed a petition for divorce on the ground
of desertion by wife. There was no cohabitation between the parties since they separated. Wife
continued to remain in matrimonial home by asserting her right of residence in spite of
matrimonial discord. Wife had deserted husband without any reasonable cause for more than two
years preceding presentation of petition. The court held that the husband would be entitled to
decree of divorce.

In Smt.Rajna Choudhary v. Sh. Raghubir Singh,15 divorce petition was filed on the grounds of
desertion and cruelty by wife. Wife made allegations against husband that he was having illicit
relationship with his brothers wife in complaint lodged to Deputy Commissioner. The said
allegation proved to be false. Leveling such false allegations amounts to cruelty. Wife also did
not allow husband to have sexual access. Wife left matrimonial home on her own. The court held
that the husband was entitled to divorce on grounds of desertion and cruelty.

(ii)Conversion

Under section 10 which provides for judicial separation, conversion to other religion is now a
ground for a decree for judicial separation after the Act was amended by Marriage Laws
(Amendment) Act 1976. Change of religion does not dissolve the marriage performed under the
Hindu marriage Act between Two Hindus. Apostasy does not bring to an end the civil
obligations or matrimonial bond, but apostasy is aground for judicial separation under section 10
of Hindu marriage act. A decree for divorce can be obtained by a petitioner where the opposite
party has ceased to be Hindu by conversion to another religion e.g. Islam, Christianity, Judasim
or Zorostrianism.

(iii)Insanity

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

14
AIR 2010 (NOC) 543 (P&H).
15
AIR 2011 HP 27.

15
i) Insanity (whether curable or incurable) - lasting for not less than two years ending with the
filing of the petition was a ground for judicial separation;16

ii) Incurable insanity- lasting for at least three years immediately preceding the filing of the
petition was a ground for divorce.17

In 1974, the law commission recommended abolition of the duration for the purpose of treating it
as a ground for divorce

After passing of the Marriage Laws (Amendment) Act 1976, Insanity has the following two
requirements-

1. i) The respondent has been incurably of unsound mind

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

In Harmanjit Kaur v. Bhupinder Singh Gill,18 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.

(iv)Leprosy

Here the spouse presenting the petition has to show that the other spouse has been suffering from
a virulent and incurable form of leprosy. The onus of proving this is on the petitioner.

In Swarajya Laxmi v. Dr. G.G. Padma Rao,19 the Supreme Court held that Lepromatous leprosy
is virulent. This type of leprosy is malignant and contiguous. It is also an incurable form of
leprosy and entitles the other spouse to a decree for divorce. The petitioner brought the divorce
petition against the respondent on the ground of lepromatous leprosy and it was decreed.

16
Section 10 (1) (e) - repealed in 1976
17
Section 13 (1) (iii) as it stood before the 1976 amendment.
18
(2003) 2 HLR 661 (P&H)
19
AIR 1974 SC 165

16
(v)Venereal Disease

At present, it is a ground for divorce if it is communicable by nature irrespective of the period for
which the respondent has suffered from it. The ground is made out if it is shown that the disease
is in communicable form & it is not necessary that it should have been communicated to the
petitioner (even if done innocently).

(vi)Renunciation

Renunciation of the world is a ground for divorce only under Hindu law, as renunciation of the
world is a typical Hindu notion. Modern codified Hindu law lay down that a spouse may seek
divorce if the other party has renounced the world and has entered a holy order. A person who
does this is considered as civilly dead. Such renunciation by entering into a religious order must
be unequivocal & absolute. He or she must perform some ceremonies necessary for entering the
class of Sanyasi; without such ceremonies he cannot be regarded as dead for worldly purpose.

(vii)Presumption of Death

Under the Act, a person is presumed to be dead, if he/she has not been heard of as being alive for
a period of at least seven years. The burden of proof that the whereabouts of the respondent are
not known for the requisite period is on the petitioner under all the matrimonial laws. This is a
presumption of universal acceptance as it aids proof in cases where it would be extremely
difficult if not impossible to prove that fact.

Thus the aggrieved party may marry again and have legitimate children. If the second marriage is
performed on basis of presumption of death without getting a decree of divorce, no person other
than the missing spouse can question the validity of second marriage.20

2-Section 13 (1-A)

In 1964, Section 13 (1-A) was inserted which contains second type of divorce based on the
Break down theory. Thus the two grounds mentioned in sub-Section (1-A) are available to

20
Nirmo v. Nikkaram, AIR 1968 Del. 260

17
both the husband and wife. The two clauses under which, non resumption of cohabitation for
two years or upwards after the decree of judicial separation or restitution of conjugal rights
was made a ground of divorce. This is a modification of clauses (viii) and (ix) of Section 13 (1)
of the Hindu Marriage Act, 1955. By the Marriage Laws (Amendment) Act, 1976 the period of
two years is reduced to one year. Section 13 (1-A) introduced an element of Break-down theory
in the Hindu Marriage Act, 1955.

The two clauses under Section 13 (1-A) are: [1-A. 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) (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.]

Prior to the amendments the petition for divorce could be filed on the grounds of non-resumption
of cohabitation after the decree of judicial separation and restitution of conjugal rights only by
the petitioner. After the amendments, either party to the marriage can prefer such petitions.
However, this is not applicable to in the cases where the decrees of judicial separation and
restitution of conjugal rights were obtained prior to the passing of the Hindu Marriage
(Amendment) Act 1964. If the decrees are obtained after 1964, the respondent also can take
advantage of the new Section.

In Kharak Singh Dhapola v. Mrs. Sarojini Dhapola,21 husband filed a petition for divorce on
the ground of desertion by wife. In this case, husband disallowed wife to live with him. Wife
started living in separate room in the same house. They are living separately for many years. She
was living in father-inlaws house. Held, wife cannot be said to have deserted her husband.
Decree of divorce cannot be granted on the ground of irretrievable breakdown of marriage.

21
AIR 2009 (NOC) 2157

18
In Tajinder Kaur v. Nirmaljeet Singh,22 wife filed a petition for divorce under Section 13 (1-A)
(ii). Decree of restitution of conjugal rights was not executed. The parties had not cohabited for a
period of one year after passing of decree. It was held that the wife was entitled to a decree of
divorce.

3-Additional Grounds Available To Wife Only

With a long history of patriarchy, many aspects of marriage and divorce in Indian society have
been emphatically biased against women. The Hindu Marriage Act attempted to right some of
these wrongs by allowing a Wife to seek divorce. Besides the grounds enumerated above, a wife
has been provided four additional grounds of divorce under Section 13(2) of the Hindu
Marriage Act, 1955. These are as follows-

i. BIGAMAY- In case of marriage before 1955 act, if the husband had married again
before such commencement or that any other wife of the husband was alive at the time of
solemnization of marriage of petitioner.

ii. The husband, after marriage, has been guilty of Rape, Sodomy or Bestiality. The
expression rape or sodomy has been defined in sections 375 and 377 of India Penal
Code. Section 375 defines rape while section 377 unnatural offences.
o It should be noted that only proof of conviction, in these criminal offences will
not be sufficient for a decree of divorce.23 The commission of offence should be
prove de novo.
iii. Co-habitation not resumed for one year or more since passing of decree/order for
maintenance against husband under Section 125 Cr.P.C or under Hindu Adoptions &
Maintenance Act, 1956. Decree of divorce would be granted.
iv. Option of Puberty-If the Marriage was solemnized when petitioner was below fifteen
years of age and she has repudiated the marriage, after attaining the age of fifteen years,
and before attaining the age of eighteen years. Decree of divorce would be granted.

22
AIR 2010 (NOC) 545 (P&H).
23
Virgo v. Virgo, 69 LT 490

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 o In Bathula Ilahi v. Bathula Devamma,24the court granted the decree after wife
had attained the age of 18 years. The court held that even if she has presented the
petition after attaining the age of 18 yr it would be allowed in wake of reasonable
explanation for the delay. Moreover, this right (added by the 1976 amendment)
has a retrospective effect i.e. it can be invoked irrespective of the fact that the
marriage was solemnized before or after such amendment.

4-Divorce by Mutual Consent

Section 13-B of the Hindu Marriage Act, 1955 and Section 28 of the Special Marriage Act, 1954
deals with the provision of divorce on grounds of mutual consent.

Section 13-B of the Hindu Marriage Act, 1955:

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

Section 28 of the Special Marriage Act, 1954 which also deals with divorce on grounds of
mutual consent is pari materia to the above section.

24
AIR 1981AP 74

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As the name itself suggests, divorce by mutual consent means a decree of divorce obtained when
both parties to the marriage, i.e., both husband and wife, agree for divorce in an amicable
manner, with no party opposing it. A joint petition is filed together by both parties.

Following conditions must be satisfied for making a joint petition for divorce by mutual consent:

1. That husband and wife have been living separately for a period of one year or more.
2. That they have not been able to live together.
3. That both husband and wife have mutually agreed that the marriage should be
dissolved.

Living Separately

The Supreme Court of India in the case of Sureshta Devi v Om Prakash25 has ruled out that the
expression living separately connotes not living like husband and wife. It has no reference to the
place of living. The parties may live under same roof by way of circumstances, and yet they may
not be living as husband and wife. What seems to be important is that they have no desire to
perform marital obligations and with that they have been living separately for a period of one
year immediately preceding the presentation of the petition. It has been ruled out by Supreme
Court in various cases that the expression have been living separately does not necessarily
means physical separation or living separately and apart what is material is that no marital
obligations are performed between the spouses and they are not living together as husband and
wife.

Parties have not been able to live together

After establishing the first requirement that the parties were living separately for one year or
more, the second point that has to be established is that the parties have not been able to live
together.

25
AIR (1992) S.C. 1904.

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In Sureshta Devi v Om Prakash26, the Supreme Court observed that expression have not been
able to live together seems to indicate the concept of broken down marriage so much so that
there is no possibility of any reconciliation. The parties need not establish the fact that they have
not been able to live together. The very fact that they have presented a petition by mutual
consent is indicative of this fact that they have not been able to live together. However, it is very
imperative to determine whether consent given by both the parties is free and not obtained by
any kind of force, fraud or undue influence.

After satisfying the above two requirements and filing a joint petition for divorce by mutual
consent, the parties must wait for at least six months, usually termed as the cooling period.
After the end of this period, if the initial petition is not withdrawn by either of the parties or
jointly, both the parties may move court by way of joint motion within the stipulated period of 18
months from the initial date of the filing of the joint petition. This period is given to parties to re-
think their decision.

Whether consent can be unilaterally withdrawn

There have been contrasting judgments on this issue. The controversy is that since under this
section both parties have to file a joint petition for divorce how can one party unilaterally
withdraw from it. Also, one of the purposes of giving a time period of six months is to allow
parties to re-think their decision and if one of the party decides to withdraw from it, why should
it not be allowed to do so.

In Jayashree Ramesh Londhe v Ramesh Bhikaji,27 the court held that once a joint petition by
mutual consent was filed, no party could withdraw from it without the consent of both the
parties. Likewise, in Nachhattar Singh v Harcharan Kaur,28 it was held that- If both the
parties had voluntarily consented to file the petition for dissolving the marriage by mutual
consent and all other conditions mentioned in sub-section (1) of section 13-B of the Act are
fulfilled, it will not be open to a party to withdraw the consent.

26
id
27
AIR 1984 Bom 302
28
AIR 1986 P&H

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On the other hand, in Sureshta devi v Om Prakash29, the Court has held that petition of divorce
can be withdrawn unilaterally. It was held in this case that if one of the parties withdraws its
consent the Court cannot pass a decree of divorce by mutual consent. The Court held that if the
decree is solely based on the initial petition it negates the whole idea of mutuality and consent
for divorce. Mutual consent to divorce is sine qua non for passing a decree for divorce under
Section 13-B. Mutual consent should continue till the divorce decree is passed.30

In Indramal v. Radhey Raman,31 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 to pass a
decree by mutual consent

However, in a recent judgment of Supreme Court in the case of Anil Kumar Jain v Maya
Jain32 it was held that- Under the existing laws, the consent given by the parties at the time of
filing of the joint petition for divorce by mutual consent has to subsist till the second stage when
the petition comes up for orders and a decree for divorce is finally passed and it is only the
Supreme Court, which, in exercise of its extraordinary powers under Article 142 of the
Constitution, can pass orders to do complete justice to the parties. The Supreme Court however
clearly expressed that only use the power under Article 142 only in special circumstances, in
normal circumstances the provisions of the statute have to be given effect to.

The law as explained in the Sushreta Devis case still holds good that is the parties can
withdraw consent unilaterally. But Supreme Court using its power as provided under Article 142
of the Constitution can grant divorce even if the wife or husband withdraws its consent during
the proceedings in the lower court and prior to the passing of the decree.

Different high courts have adopted different yardsticks in the interpretation of the Section 13-B.
Some High Courts have held that the waiting period of six months is mandatory as per the
section whereas some High Courts have adopted the spirit of law more than the technical words
29
AIR 1992 S.C. 1904.
30
id
31
AIR 1981 All 152.
32
AIR 2009 SC

23
of the section and have ruled out that the period is directory if there is no chance of reconciliation
between the parties. However, Supreme Court using its extraordinary powers under Article 142
of Constitution can pass the decree of divorce without waiting for a period of 6 months. Also,
Supreme Court in the case of Sushreta Devi has ruled out that the petition of divorce can be
withdrawn unilaterally. On the third issue the courts have ruled out that silence or not appearing
for hearings will not amount to withdrawal of consent.

CONCLUSION

Hindus consider marriage to be a sacred bond. Prior to the Hindu Marriage Act of 1955, there
was no provision for divorce. The concept of getting divorced was too radical for the Indian
society then. The wives were the silent victims of such a rigid system. However, time has
changed; situations have changed; social ladder has turned. Now the law provides for a way to
get out of an unpleasant marriage by seeking divorce in a court of law. The actual benefactors of
such a provision are women who no longer have to silently endure the harassment or injustice
caused to them by their husbands. 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 pause the
system of marriages. Every theory has its negative and positive traits. There applicability differs
from situation to situation. . Earlier there was divorce only in the extreme cases of adultery or
cruelty. In the present era the grounds have changed dramatically according to the need and
condition of society. Now a divorce is possible even for the reason that the spouses do not like
each other even though there is no fault or guilt.

BIBLIOGRAPHY

R.K. Agarwala- Hindu Law, 24th edition 2013, Central Law Agency, Allahabad.
Paras Diwan- Family Law: Law of Marriage and Divorce, 10th edition 2013, Allahabad
Law Agency, Faridabad.
Konala Malathi Reddy- New Dimensions in Hindu Law of Divorce, 1st edition 2013,
Regal Publication, New Delhi.
Ramesh Chandra Nagpal- Modern Hindu Law, 2nd edition, 2008, Eastern Book Company,
Lucknow.

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