Matrimonial Remedies

Section 9 to 13

Restitution of Conjugal
Rights u/s 9
Conjugal Right is a matrimonial right
which husband and wife have to each
others society, comfort and
affection;
This is the express condition of the
law that each party to the marriage
is to become life associate of the
other and enjoy the pleasures and
consortium of each other

 Section 9 when either the husband or the

wife has, without reasonable excuse,
withdrawn from the society of the other, the
aggrieved party may apply, by petition to the
District Court, for restitution of conjugal rights
and the court, on being satisfied of the truth
of the statements made in such petition and
that there is no legal ground why the
application should not be granted may decree
restitution of conjugal rights accordingly.

Incidents of Sec 9
Where the wife or the husband as the case may be
Has withdrawn from the society of the other,
Without reasonable excuse,
The court is satisfied of the truth of the statements
made in the petition, and
There is no legal ground why the application should
not be granted
-u/s9(1) the husband or wife may get the decree of
restitution of conjugal rights
-the burden of proving the reasonable excuse shall be
on the person who has withdrawn from the society.

Subsistence of Marriage A prerequisite

The remedy under this section presupposes the
subsistence of a valid marriage;
Where the parties are not legally married or the
marriage was not subsisting at the time of the petition,
the question of remedy does not arise under this
section;
It is for the petitioner to prove the validity of the
marriage; respondent to prove the reasonable cause for
withdrawal;
In Smt. Ranjana Vinod Kumar Kejriwal v. Vinod Kumar
Kejriwal AIR 1997 Bom 380 husband was already
married, second marriage is not a valid marriage, hence
no remedy u/s 9

 In Malkiat Singh v. Shinderpal Kaur AIR 2003 P&H

283 it was observed by the court that the sole
essence of a decree of restitution conjugal rights
is that the husband desiring the company of his
wife makes an effort through the court for its
assistance in order to restore his wife back to him
so that they may be able to lead a conjugal life.
Where the parties do not honour the decree
passed u/s 9 for period of one year, the
respondent is entitled to divorce u/s 13(1-A) of
the Act.

Withdrawal from society

Withdrawal means withdrawing from the
company of the other spouse & from conjugal
relationship;
Parties may be living separately, could maintain
a frequent and regular social and sexual
relationship thereby treating the marriages as
still being in real existence;
There may be withdrawal from society whilst
the parties are living under the same roof;
Withdrawal from the society is a mental process
apart from physical separation.

Previous cohabitation not necessary

granting of this remedy does not
necessitate the parties to prove that
they have at some time cohabitated
with each other and then separated;
Agreement of separation an
agreement to live separately is void
and no respondent can take this as a
defence;

Reasonable and Just Cause

What is reasonable or just would be
decided in the context of facts and
circumstances of each case;
The reason for withdrawal from the society
must be grave and weighty and it is
different from matrimonial offence;
The circumstances surrounding the
respondents life must render him
practically impossible to continue
cohabitation with the petitioner;

 The grounds for residing separately is not discussed in sec

9; but by the judicial decisions the following are some of
the grounds where the parties residing separately is
considered as reasonable cause1. Refusal to perform marital obligations without sufficient
cause;
2. Imputing unchastity upon the wife;
3. Gravely indecent behavior;
4. False allegations against each other as to unnatural
offence and so on.
(Chapter XVI, Section 377 of theIPC1861, criminalizes
sexual activities "against the order of nature", arguably
includinghomosexual acts)

 In Tulsa v. Panna AIR 1963 SC 595 the husband

used to beat his wife as she did not get up early
morning to cook food, she did not wear clothes
according to the desires of the husband;
She left the house and refused to go back to his
house;
It was held that there was reasonable cause
within the meaning of sec 9
Where the husband files petition for conjugal
rights and the wife gets the ground of physical
and mental cruelty, she has to prove it.

 In Pramila Bala Barik v. Ravindra Nath

Barik AIT 1977 Orissa 132 where the
wife left the house because of the
continuous torture from the mother-in-law,
on the petition u/s 9 by the husband, the
court held that the wife cannot be
compelled to stay in her parents-in-laws
house against her wishes under adverse
circumstances amounting to cruelty

 In Smt Swaraj Garg v. K.M. Garg AIR 1978 Delhi 296

husband and wife were gainfully emplyoed in 2 different
places from days before marriage.
Question arose as to where the matrimonial home is to
be
Husband filed petition u/s 9 trial court dismissed the
petition.. Went in appeal before the single judge bench
which allowed the petition and granted restitution
Against that order matter was brought before the
division bench Mr. Desh Pande. Dismissing the petition
held that there is no warrant in Hindu Law to regard a
Hindu Wife as having no say in choosing the place of
matrimonial home

 Further referring to art 14 any law which would give

an exclusive right to the husband to decide upon the
place of the matrimonial home without considering
the merits of the claim of the wife would be contrary
to art 14 and unconstitutional for that reason
The learners in Hindu law viewed that the
constitutional provisions can not be brought with in
the frame work of personal law, because entire
matrimonial edifice is founded on mutual love,
sacrifice and devotion, to introduce the concept of
fundamental right in this relationship would be
hazardous.

 In Hardeep Singh v. Dalip Kaur 1970 Punj 284

where the husband does not agree to live
separately from his parents and wifes
insistence for a separate house persists as a
result she chooses to be away from the
husband;
The court decreed the petition of restitution
conjugal rights filed by the husband holding
that there is no reasonable excuse for the wife
to live separately on the alleged grounds.

T. Saritha v. Venkata Subbaiah AIR

1983 AP 356
Single Judge bench of Andhra
Pradesh observed that the remedy
of restitution conjugal rights is a
savage and barbarous remedy
violating the right to privacy and
human dignity guaranteed by art 21
of the constitution, hence void.

 Examining the validity of S. 9 of the Act in the light of the above

discussion, it should be held, that a Court decree enforcing restitution
of conjugal right constitutes the starkest form of Government
invasion of personal identity and individual's zone of intimate
decisions.
The victim is stripped of its control over the various parts of its body
subjected to the humiliating sexual molestation accompanied by a
forcible loss of the precious right to decide when if at all her body
should be allowed to be used to give birth to another human being.
Clearly the victim loses its autonomy of control over intimacies of
personal identity. Above all, the decree for restitution of conjugal
rights makes the unwilling victim's body a soulless and a joyless
vehicle for bringing into existence another human being. In other
words, pregnancy would be foisted on her by the state and against
her will.

 Above all, the decree for restitution of conjugal

rights makes the unwilling victim's body a soulless
and a joyless vehicle for bringing into existence
another human being. In other words, pregnancy
would be foisted on her by the state and against
her will.
There can therefore be little doubt that such a law
violates the right to privacy and human dignity
guaranteed by and contained in Article 21 of our
Constitution. It is of constitutional significance to
note that the ancient Hindu society and its culture
never approved such a forcible marital intercourse.

 In this view I have taken of the constitutional validity

of section 9 of the Hindu Marriage Act, I declare that
section 9 is null and void.
As a corollary to that declaration, I hold that the case
on the file of subordinate Judge, cuddapah, filed by
venkata subbaiah for the relief of restitution of
conjugal rights with sareetha is legally incompetent.
Accordingly, I prohibit the Court of the subordinate
Judge, cuddapah from trying the petition.
The civil Revision petition is allowed, but without costs.
Revision allowed.

 In Smt. Harvinder Kaur v. Harmander AIR 1984 Del 66

The view in Sarithas case was dissented in this
decision;
It was observed that sec 9 was not violative of articles
14 & 21 of the Constitution; the leading idea of sec 9
was to preserve the marriage;
The object of restitution of conjugal rights decree was
to bring about cohabitation between the estranged
parties so that they could live together in the
matrimonial home in amity;
The remedy of restitution aimed at cohabitation and
consortium and not merely at sexual intercourse.

 In Saroj Rani v. Sudarshan Kumar AIR 1984

SC 1562 SC held that conjugal rights is
not merely creature of the statute, such a
right is inherent in the very institution of
marriage itself;
It serves a social purpose as an aid to the
prevention of break-up of marriage;
It can not be said that the sanction is
violative of articles 14 & 21 of the
Constitution.

Mode of Execution of decree for

restitution of conjugal rights
Order 21 rules 32 & 33 of the CPC provides
for the execution of a decree for restitution
of conjugal rights.
Where the party against whom a decree for
restitution of conjugal rights is passed, has
an opportunity of obeying the decree and
has wilfully failed to obey it
- The decree may be enforced by attachment
of his property or by his detention in civil
prison or by both

 Where the property is attached for a year

and if the party has not obeyed the decree
and the decree-holder has applied to sale
of the attached property so that out of the
proceeds of the sale, he/she could get
such compensation as the court deems fit;
A decree under this section is a stepping
stone for getting a decree of divorce u/s
13(1-A) of the act after the expiry of one
year from the date of order.

 Conclusion: according to Prof. Derrett

the practical utility of the remedy
is little in contemporary England, but
in India where spouses separate at
times due to misunderstanding,
failure of mutual communication, the
remedy of restitution is of
considerable value.

Judicial Separation u/s 10

The remedy of Judicial Separation was not known
to the Shastric Hindu Law;
British Indian Courts permitted in certain cases
maintenance to wife and also separate residence
from her husband;
Hindu Married Womens Right to Separate
Maintenance and Residence Act, 1946 gave
statutory right to Hindu Married Woman to claim
separation and Maintenance from her husband;
This act has resemblance in Judicial separation
u/s 10 of HMA 1955.

 Section 10 deals with judicial separation

and consequences that flow from it;
The decree of Judicial separation does not
terminate the marriage but it puts the
obligation of conjugal duties an end;
After the decree neither the spouse is under
an obligation to cohabit each other;
This section is also applicable to such
marriages which were solemnized before
the HMA;

 The Marriage Laws (Amendment) Act, 1976, u/s 10(1)

has enabled either party to a marriage to move for a
decree of judicial separation on any one of the
grounds specified in sec 13(1) and
in the case of wife also on any of the grounds
specified in sub-section (2) thereof, as grounds on
which a petition for divorce might have been
presented;
The grounds on which Judicial separation and divorce
can be sought are identical;
Sec 10(2) preserves the right of the court to rescind
the decree of Judicial separation, on satisfaction.

Characteristics of judicial separation

1. Puts the obligation to cohabit to an end, although
it does not affect the marital relationship;
2. As soon as the decree of JS is passed the parties
to marriage are relieved of the duty to live
together and cohabit;
3. Any act of cohabitation between the two would
neutralize the effect of decree and their normal
marital life is restored;
4. During the operation of the decree, parties to
marriage cannot remarry;
5. Remarriage amount to bigamous act

Grounds
1. u/s 10(1)(a) - Extra-marital voluntary sexual intercourse
where either party to marriage wilfully had sexual intercourse
with another person after marriage, the other party to marriage
could obtain the decree of judicial separation.
To decide cases one has to depend on ancillary facts which may
bea) Circumstantial evidence;
b) Birth of a child to the wife when there is no evidence of contact
with her;
c) Contracting of a venereal disease;
d) Admission on the part of the respondent in some other
proceedings or a clear confession by him/her;
e) Discovery of letters which might contain such contents which
suggest sexual relationship between the two.

Other features for the

remedy
A solitary proof of extra-marital intercourse is sufficient for
getting a decree of judicial separation;
Circumstantial evidence should be such that it might rule
out the possibility of his innocence;
Pre marital illicit intercourse cannot be a ground to the
relief of judicial separation;
Eye witness has very little chance of credibility;
Circumstantial evidence should be such which might
appear reasonable to a man of common prudence;
At the time of presentation of the petition the respondent
was living in adultery;
Single act of extra marital relation is enough to prefer the
suit u/s 10 & 13

 In Suvrai v. Saraswathi AIR 1967 Mad 85 the court held

that - in most cases the evidence is circumstantial and
the circumstances under which the act is alleged to have
been done must be determinative and
In every probability must lead to a conclusion of illicit
cohabitation;
Entering the bed room, waiting for the family members to
go out and entering the house when one of the spouse is
alone;
If a stranger to the family is found in the bedroom of wife
at mid-night in absence of an acceptable explanation, it
would normally be concluded that illicit intercourse must
have taken effect.

 In Chandra Mohini v. Avinash Srivastava, AIR 1967 SC 581

the SC observed that love letters, written to wife by a
certain person, howsoever objectionable contents they
might contain or might they be leading to an inference of
adulterous contents they might contain; or Might they be
leading to an adulterous relations
could not establish the adultery between the two in absence
of proof of similar letters being dispatched by the wife to
him;
Husbands petition on the ground of adultery is rejected
because he could not produce a single letter which were
sent by her in response to those letters which were sent to
her; Where no direct evidence of illicit intercourse is
available, the court has to depend on indirect evidence.

 In Smt. Swaryam Prabha v. A.S. Chandra

Sekar AIR 1982 Ker. 295 where a person has
married within prohibited degrees of
relationship and later on, on discovering the
marriage is void;
he married another person, then the
intercourse with the wife of previous marriage
would also amount to illicit intercourse; and
on that basis the wife of valid marriage can
obtain the decree of JS

 In Sanjukta Pradhan v. Laxmi Narayan Pradhan

AIR 1991 Ori. 39 a charge was levelled against
the wife that she went away with some other
person one evening from her husbands home
and was seen moving with him on a motor cycle,
after 1am in the night;
They were seen returning from a lonely place;
She was away from her parental home and
matrimonial home;
When father-in-law went to call her, she bolted
herself in a room & never visited them;

 Court granting the decree of divorce, made the

following observations in India, it is not for a
young man and woman to live together in a
house when they are neither related to each
other; society being very much conservative here
than elsewhere; it will be reasonable to infer
adultery from the facts
1. That only the respondent and co-respondent
stayed in one house together for a long time;
2. That respondent refused to go back to
matrimonial home;
3. Both had no courage to come to witness box to
deny the charge of adultery;
4. They had ample opportunity to commit adultery
by being alone in the house and their stay
together cannot be accounted for any other

 In P v. P&R AIR 1982 Bom, 498 the Bombay HC held that

there can be no direct evidence of adultery;
It is difficult produce evidence of the party being found in actual
compromising position;
The finding of adultery must necessarily rest on circumstantial
evidence;
To bring under this section the actual cohabitation must have
taken place;
The circumstantial evidence will consist of
(a)two offending parties being found together in unusual
circumstances or being together alone in scheduled places at
scheduled time;
(b)The social conditions of the parties and the manner in which
parties are accustomed to live.

 In Chandra Prakash v. Sudesh Kumari

AIR 1971 Delhi 208 the court held
that ,it is a presumption in law that
the respondent charged with
adultery is innocent and the burden
to prove adultery lies on the party
who has alleged it.

 In Chetan Dass v. Kamala Devi AIR 2001 SC 1709

the appellant and the respondent were married in the
year 1976, according to Hindu rites and rituals;
Appellant was working as compounder in the Medical
Health Department in the State of Rajasthan;
After marriage appellant had been carrying on
illegitimate relationship with a lady who was nurse in
the same hospital;
Wife deserted him;
Petition was u/s 9 was filed earlier, later application
was moved u/o 6 R 17 of CPC for amendment, which
was allowed;

 Amendment was to convert petition u/s 13

from sec 9;
Apex court held that the relief of divorce
cannot be granted merely on the ground that
marriage was irretrievably broken down; and
The husband who committed wrong and was
leading adulterous life could not be given
advantage of his own wrong and cannot be
granted divorce on the desertion on the part
of his wife.

Cruelty
The expression cruelty is not defined in the act
The judicial decisions have made it distinct that
cruelty in the legal sense not necessarily be
physical violence;
A course of conduct or treatment which tends to
undermine the health of the spouse/ affects the
reasonable happiness of the life and ill-treatment
both physical and mental would constitute cruelty;
There is mental as well physical cruelty;
Motive or intention to be cruel is not necessary if
conduct otherwise can be held to be cruel

 In Russel v. Russel AIR 1995 Del. 315 it was

held that cruelty which is a ground for
dissolution of marriage may be defined as
wilful and unjustifiable conduct of such a
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 same view was observed by House of
Lords in England while defining the term
cruelty

 Legal cruelty- any conduct of the husband which

causes disgrace to the wife or subjects her to a
course of annoyance or indignity amounts to legal
cruelty;
The harm apprehended may be mental suffering as
distinct from bodily harm, for, pain of mind may be
even more severe than bodily pain;
The legal concept of cruelty has varied from time to
time according to social and economic conditions
changes, may be not in theory but in application;
Sec 10(1)(b) covers both mental and physical cruelty

To establish Legal cruelty

Not necessary that physical violence should be used;
Continuous ill-treatment, cessation of marital
intercourse;
studied neglect and indifference on the part of the
husband;
Habitual insulting, unkindness so as to impair her
health;
Mental agony which will tend to undermine the
health of that spouse;
Mere trivial incidents which are wear and tear of
married life do not constitute cruelty

 Prof. Ragavacharya in his book Hindu Law,

considering the judgments of courts, writes
where one of the spouse (husband) though
living under the same roof refuses to speak
to the other for a considerable long time and
on that ground the other spouse becomes
wretched and worried, such a conduct of the
husband amounts to legal cruelty;
Cruelty may be words, by talk, or by conduct
of silence.

 In Shreepadachar v. Vasantha Bai AIR 1970 Mys 232 the

court held that,
abusing husband in public,
in a bus and catching hold of his collar,
asking the husband to cook food, when he served throwing
plate at him,
insisting on asking forgiveness,
threatening to burn herself and give a false complaint to
the police,
stopping him from going to office holding his neck in front
of his friend, amounts to cruelty inflicted by the respondent
Petitioner was granted the order of Divorce

 In Jiya Lal Abrol v. Sarala Devi AIR 1978 J&K 69

petitioner husband complained that the wife
was suffering from a disease in nose because
of which she was continuously emitting such
awful smell as made it unbearable for him
either to sit by her side or enjoy her company
or to have cohabitation with her;
Court held that it does not amount to cruelty
and no remedy can be granted u/this sec and
dismissed the petition.

 In P.L.Sayal v. Sarla 1961 Punjab 125 too much love

of wife towards husband, she was crazy to get more
and more love and affection of her husband;
She met a fakir to whom she expressed her will;
he gave her some love potion and told her to mixing
it with some food articles and make him eat by which
he love her more;
She administered the same to husband;
He became ill with slow fever, giddiness and
ultimately he got nervous breakdown, loss of weight,
abdominal burning, backache and various other
complications;

 He was admitted to hospital and she took

care of him in the hospital and told him the
entire story and the reason for his ill health;
On discharge from the hospital he filed a
petition for JS and contended that the wife
has caused a reasonable apprehension in him
and he is worried to eat anything at home;
Considering his state of mind on the ground
of cruelty decree was passed under this
section

Other facts on which decree is

granted
Actual or threatened physical injury
Verbal abuse or insults
Excessive cohabitation
Refusal to cohabit
Neglect to take care
Communication of venereal disease
Drunkenness and use of drugs
Refusal to speak
Forcing association with improper persons (Lalitha Devi v.
Radha Mohan 1976 Raj 1)
False charge of immorality on the wife
ill treatment of children or refusal to have children

Dastane v. Dastane AIR 1975 SC

1534
This is a leading case on judicial separation on the
ground of cruelty, annulment of marriage on the ground
of fraud, divorce on the ground of unsoundness of
mind.
The petition was dismissed in the District and HC,
hence the petitioner preferred appeal before the apex
court.
Facts it was alleged by the husband that the wife
used to threaten him by saying that she will put an end
to her own life, she will set the house on fire, she will
make him lose his job, tearing mangalsutra, locking out
the husband while he is back from the office,

 Beating child mercilessly, pouring cold water

when the child is suffering from high fever,
switching on the fan with high speed and make
the child under the fan
Switching the light during the night and sitting
next to husband not allowing him to go to sleep;
The court held that all these acts tend to
destroy the legitimate ends and objects of
matrimony
amounts to cruelty.

Desertion as ground for JS

It is the act of forsaking or abandoning or the
act of quitting without leave with an intention
not to return;
To cause desertion there must be cessation of
cohabitation without cause thereof and consent
thereto; it is total repudiation of the
obligations;
A mere severance of the relation is not
sufficient, because there may be separation
without desertion and desertion without
separation;

 Continued separation of husband and wife which

may be consistent with no intention to wilfully
desert, is not desertion within the meaning of the
statute;
Desertion implies the factum of separation and
animus deserendi i.e., the intention to bring
cohabitation permanently to an end.
The husband may well live in the place but make it
absolutely impossible for the wife to live there and
in that stage if she leaves him, it can legitimately
be held that the husband has deserted her.

To constitute desertion the following

facts must be established
1. The spouse must have parted or terminated
joint living;
2. The deserting spouse must have the
intention to desert the other spouse;
3. The deserted spouse must not have agreed
to the separation;
4. The desertion must have been without
cause, and
5. This state of affairs must have continued
for the requisite period, i.e., two years

For the offence of desertion

- As far as the deserting spouse is concerned
2 essential conditions must be there
(1)The factum of separation, and
(2)The intention to bring cohabitation
permanently to an end (animus deserendi)
(-)As far as the deserted spouse is concerned:
(1)The absence of consent, and
(2)The absence of reasonable cause

 If the deserting spouse decides to come back to the

deserted spouse by a bona fide offer or resuming the
matrimonial home, desertion comes to an end;
- In Bipin Chandra v. Prabhawati AIR 1957 SC 173
husband left to England for a few months, wife
established intimacy with husbands friend, there were
exchanges of letters indicating adulterous act,
compromises were attempted, she refused join, later
her mother telegrammed to take the daughter, husband
refused, filed divorce on the ground of desertion;
- Held desertion comes to an end on attempting to join
the other spouse.

 Where the wife deserts the husband on a reasonable

excuse, it would not amount to desertion;
Where the husband goes on accusing his wife with
unchastity and loose morals which compels her to
leave matrimonial home, she cannot be held guilty of
desertion;
In Sarla Sikrodia v. Krishna Lal AIR 1982 Raj 220
husband left the wife to a particular place for
treatment, later started saying that she is unchaste,
he filed petition for Restitution of Conjugal Rights and
later for divorce, court held that her staying separate
is justifiable.

 The SC in Lakshman v. Meena AIR 1964 SC 30

reaffirmed that the factum of separation and
animus deserendi are the 2 esssential
constituents of the offence of desertion;
Facts- the petitioner, although educated belonged
to an orthodox family, respondent wife hailed from
a rich family and held modern sophisticated views;
- Lived with husband some time in Bombay and
later moved to Singapore where her parents stay,
without the consent, against the will of the
husband.

- once she came to Bombay, stayed

fortnight with a relative but she did not
meet Lakshman and 7 year old son also;
- When husband called her, she took her
health as a reason, not permitting her
to leave Singapore;
- It was the clear case on desertion,
hence the decree of JS was granted in
favour of husband

 In Rohini Kumari v. Narendra Kumar AIR 1972 SC

459 it was held that;
- Desertion does not merely connote separate
residence and separate living, it includes strong
will to an end marital relations and cohabitation
for ever;
- in absence of such intention there cannot be
desertion u/s10 of the act
- Facts: parties married in 1945, lived smooth
marital life till 1947, then the wife left to her
maternal home;

 Later the husband called her to join him and resume

marital relation, which she did not do;
Meanwhile the husband married a second wife just one
day before the HMA 1955 came into force;
The husband brought a petition of judicial separation on
the ground of desertion, which was opposed by the wife
by alleging that the husband ill treated her and had
second wife;
She was unable to prove ill treatment, 2 nd marriage is not
punishable, as the provision for bigamy under HMA is not
retrospective in nature;
The application filed by her got dismissed and the suit of
the husband on the ground of desertion was decreed.

 In Smt. Santosh Devi v. Prem Chand AIR 2007 Raj. 121

parties married as per Hindu rituals and rites, out of
said wedlock a male child is born;
The wife forced the husband to live separately from his
parents, who were old and not keeping good health;
She used to go to her parents house even without
informing him, and her behaviour towards husband
was not justifiable;
Finally she left the matrimonial house and never
returned
Court observed that the wife has deserted the
husband and JS was granted.

 Desertion vs. separation:Desertion is not the

same as separation.In separation both spouses
consent to living apart. Desertion only occurs when
one spouse does not consent to the separation.
Actual desertion & constructive desertion
In actual desertion the deserting spouse leaves the
home. Constructive desertion occurs when the
deserted spouse leaves due to unbearable
conditions at home caused by the other spouse.
Combined with the above elements of desertion,
depending on the state.

 Constructive desertion involves actions or

conduct resulting in the other spouses
forced separation.
To prove constructive desertion, the spouse
leaving the home must prove that the
misconduct by the spouse remaining in the
home constitutes grounds for divorce.
- this spouse must show that the remaining
spouse conducted himself/herself in such a
manner as to provoke the leaving.

 In Tarachand v. Smt. Narain Devi AIR

`975 P&H 300 the court held that
where the appellant had himself
created a situation under which the
respondent was compelled to leave
and live separately,
The appellant could not raise the
plea of desertion against the
respondent and file a petition for
judicial separation

 In Jyotish chandra v. Meera AIR 1970 Cal. 266

the wife had gone to her parental home
with the consent of her husband and later the
husband imputed against her that she had
illicit relations with her sisters husband,
Under these conditions of imputation, the
wife showed no willingness to return to her
husband;
Court held husband is guilty of constructive
desertion.

 In Dr. Srikant Rangacharya v. Smt.

Anuradha AIR 1980 Kar 8 the court
observed that the wilful neglect by one
spouse to the other would come within the
meaning of constructive desertion;
Desertion includes the wilful neglect of the
petitioner, wilful means on purpose,
intentional,
Desertion is inferred from the state of
affairs and not from place.

Conversion as a ground (Sec 10(1)

(d)
Prior to Hindu Marriage Laws
(amendment) Act, 1976 conversion
was a ground of decree of divorce
and now it has also been made a
ground for judicial separation;
Ceasing to be a Hindu by conversion
on the part of the other party to the
marriage, forms a ground for a
decree of judicial separation and of
divorce;

Unsoundness of mind 10(1)(e)

Incurable unsoundness of mind of either party to marriage
is a ground of judicial separation and also divorce.
By the amendment act 1976, it is no longer required to
establish that the other party has been continuously of
unsound mind for a period not less than two years
immediately prior to the presentation of petition;
The petitioner has to establish that the respondent has
been
1. Incurably of unsound mind
2. Which is continuous or intermittently from mental disorder
3. Of such kind and to such an extent that the petitioner
cannot be expected to live with the respondent.

 The expression mental disorder has also been

defined by the act as persistent disorder or
disability of mind which results in abnormally
aggressive or seriously irresponsible conduct
on the part of the other party
To succeed in the divorce cases, the petitioner
has to produce the evidence and prove it
beyond reasonable doubt that the mental
disorder of respondent was of such a kind
and to such an extent that the petitioner cant
live safely with the respondent

 In Smt. Suvarna Lata v. Mohan Anand Rao

Deshmukh & ors, AIR 2010 SC 1586 husband filed
a suit for divorce on the ground that wife is a patient
of Schizophrenia;
- a long-term mental disorder of a type involving a
breakdown in the relation between thought,
emotion, and behaviour,
- leading to faulty perception, inappropriate actions
and feelings,
- withdrawal from reality and personal relationships
into fantasy and delusion, and a sense of mental
fragmentation.

 Decree of divorce was passed in

favour of husband by the subordinate
court;
On appeal SC observed that the
finding of schizophrenia in divorce
proceeding is found incorrect in
custody proceedings;
The order of the HC would have ill
effect on her child so that decree of
divorce is to be set aside.

 In Smt. Alka v. Abhinesh AIR 1991 MP 205 it

was found that the wife was so cold and frigid
and nervous on 1st night of marriage, resulting
in no cohabitation;
She was found unable to handle domestic
appliances;
She used to urinate in presence of family
members;
It was held that she is suffering from
schizophrenia, husband was held to entitled for
nullity of marriage.

Leprosy
Where the respondent is a victim of serious
leprosy in its incurable and virulent form, a
decree of divorce will be passed in favour
of petitioner;
Virulent means the disease is considered
to be extremely poisonous;
No person can be forced to undergo a
medical examination but if he or she
refuses to do so, it raises a presumption
against that person.

Venereal disease
Where the respondent has been suffering from
venereal disease in a communicable form, a
decree of divorce will be granted in favour of
petitioner;
The period of duration is dispensed with by
Marriage Laws (amendment) Act, 1976;
The section requires that the disease must be
in a communicable form;
Venereal diseases are only such diseases which
are communicated by sexual intercourse.

Renunciation of the world

The remedy is available on the ground that the
other spouse has renounced the world by
entering any religious order;
By performing the requisite ceremonies and
formalities of the particular religious order;
The renunciation of the world means,
relinquishment of all property and worldly affairs;
Where a person has left the world but did not
enter into any religious order he can be held
guilty of desertion or neglect and a decree can
be obtained on that ground.

Presumptive death
Where there are reasonable grounds for supposing the
other party to marriage to be dead, the petitioner may
seek divorce on this ground.
This supposition could be drawn where the other party
has not been heard of as being alive for a period of 7
years or more by persons who would naturally have
heard of him/her had that party been alive.
On the court being satisfied that sufficient enquiries
have been made as to the existence of the respondent
and has no reason to think that he/she is alive, pass the
decree of divorce on this ground;
If the respondent returns the marriage will not get
restored.

Non resumption of cohabitation after

decree of JS
It is obligatory on the court to pass a decree for
divorce when cohabitation has not been restored
within 1 year of the passing of the decree for JS;
Prior to 1974, failure to resume cohabitation for a
period of 2 years, provided a ground only to the
party who had obtained such decree to seek
divorce;
By amendment act 1974, sec 13 (viii) & (ix) were
omitted and inserted (1A), which provided that
either party could seek divorce on non-resumption
of cohabitation or non-restitution of conjugal rights
for a period of 2 years or more after the decree.

 In 1976, the Hindu Marriage Act was again

amended and liberalized the ground for divorce,
by reducing the period prescribed to 1 year from
2 years;
In Bimla Devi v. Singh Raj, the P&H HC observed;
the question is no longer who obtained the
decree for RC rights or JS, the question is have
the parties been able to come together after the
decree was passed, if they have not been able to
come together, either party may seek divorce,
irrespective of whose fault it is.

Failure to comply with the decree of

restitution of conjugal rights
Either spouse to marriage would be
entitled to a decree of divorce when
decree of conjugal rights is not
complied with within 1 year from the
date of decree;
u/s 13 (1-A)(ii) either party can apply
for dissolution of marriage by a
decree of divorce if it is able to show
that there has been no compliance
with the order

 In O.P.Mehta v. Saroj Mehta AIR 1984 Del 159 the decree

for conjugal rights is passed in favour of husband, after 41/2 months, the husband brought another petition of
divorce on the ground of adultery of the wife;
Later on after a year he brought another petition of divorce
on the ground that the wife has not complied with the
decree of restitution of rights with the period of 1 year;
The wife resisted the petition on the ground that the
husband deliberately brought a petition after 4-1/2 months,
falsely imputing adultery and made it impossible for her to
join him and comply the decree;
Court held that non-compliance is justified and the suit
stands dismissed.

Additional grounds to wife u/s 13(2)

This sub section has been amended by
Marriage Laws(Amendment) Act, 1976, and
two additional grounds mentioned in 13(2)(iii)
& (iv) were added.
Clause (i) Husbands Bigamy a wife may
present a petition for the dissolution of
marriage by a decree of divorce on the ground
that at the time of presenting the petition
there is already living wife for the respondent;

 In Mandol Nagamma v. laxmibai 1966 AP 82

The court held that, where a petition for divorce is
presented on the ground that the husband had
remarried,
the fact that the husband after the presentation of the
said petition had divorced his other wife not stand in
the way of granting divorce.
Smt. Nirma v. Nikkar AIR 1968 Del 260 in the
event if the first wife enters a compromise with her
husband to live with him on husbands second
marriage, would not stand in the way of obtaining a
decree of divorce.

 If the wife already knew that her

husband had married another
woman, even that fact would not
stand in the way of obtaining a
decree of divorce;
The petitions may fail on the ground
of inordinate delay not on the above
said grounds.

Rape, Sodomy or bestiality

u/c (ii)
A wife may present a petition for divorce if the
husband is, after the solemnization of their
marriage is guilty of rape, sodomy or bestiality;
Where the husband was guilty of any of the
offences, prior to the petitioners marriage, the
petitioner cannot claim a divorce;
These offences must be subsequent to marriage;
These terms are not defined in HMA but u/s 375
the word rape is defined;
u/s 377 sodomy and bestiality is defined as
unnatural offences;

 An attempt to commit rape, sodomy

or bestiality is not a good ground for
obtaining the decree of divorce;
There may not be direct evidence for
these offences, mere proof of such a
misconduct on his part is sufficient to
enable the wife to get a decree of
divorce.

Non resumption of cohabitation for 1

year or upwards (iii)
After the passing of maintenance order u/s 18 of the
Hindu Adoptions and Maintenance Act, 1956, or u/s 125
of Cr.p.c This sub clause is inserted by amd 1976
The conditions for moving divorce petition under this sub
clause are
a) The petitioner should be wife;
b) There should be a decree or order for maintenance
either u/s 18 HA&M or 125 of Cr.PC
c) There had been no resumption of cohabitation between
the spouses for a period of 1 year or more since the
passing of such decree or order of maintenance.

Repudiation of Marriage u/c

(iv)
By marriage amendment act 1976;
Wife whose marriage was solemnized before she
attained the age of 15 years, can repudiate the
marriage after she attaining the age of 15 years
but before attaining the age of 18 years.
It is immaterial whether the marriage was
consummated or not;
This clause is applicable whether the marriage
was solemnized before or after the
commencement of the marriage laws (amd) act,
1976.

 Bathula llahi v. Bathula Devamma AIR 1981 AP

74 the court granted the decree after the wife
had attained the age of 18 years;
She had repudiated the marriage before
attaining 15 years because it was impossible for
her to live with husband;
Filed the petition after repudiating the marriage
by herself;
Court heard the matter and the reasons for
delay in filing the petition, on being satisfied the
repudiation decree was passed.

Alternative remedies in Divorce

proceedings
Sec 13-A, has been inserted to
provide that under certain
circumstances the courts may, while
dealing with the petition for divorce,
have a discretion to grant a decree
for JS instead.
This discretion is not enjoyed for the
petitions on conversion, renouncing
the world, not heard.

Court may rescind the decree u/s

10(2)
1. The decree has been obtained ex parte, by
showing reasonable excuse for his/her
absence,
2. The parties cohabited with each other after the
decree was passed or they have resumed living
together,
3. The opposite party has condoned the offence,
4. The opposite party has satisfied the court
he/she is willing to live as husband & wife & is
not going to do any such thing in future on
which judicial separation was granted

Effects of judicial separation

1. Marriage is not annulled or dissolved; mutual rights are
suspended;
2. Husband & wife continue to have the same status but
they are not bound by any obligations;
3. Does not prevent the parties from subsequently resuming
cohabitation and living together;
4. If either spouse marries during the period of judicial
separation, liable for punishment for 2nd marriage;
5. The petitioner, who may be wife or husband, may claim
alimony from the other;
6. The wife shall be considered as feme sole independent
women with respect to the property of every description;