DISSOLUTION OF

MARRIAGE: DIVORCE &

JUDICIAL SEPARATION

HAPPINESS IN MARRIAGE IS ENTIRELY A

MATTER OF CHANCE
JANE AUSTEN, PRIDE AND PREJUDICE

WHO IS AN IDEAL COUPLE?

FAMILY DISPUTES
RESOLUTION MECHANISMS
Special approach to family disputes litigation
Adversarial procedure: too technical, expensive, time consuming, creates

bitterness

45th LCI Report:

Preservation of Family as the main objective
Conventional procedure dominated by adversary system may not be appropriate

for family disputes

Order 32-A, CPC: Amicable settlements
Suits, proceedings for matrimonial relief, declaration of legitimacy of any

person, guardianship, custody, maintenance, adoption & inheritance in the

family

In-camera proceedings
ADR

WHAT IS JUDICIAL SEPARATION?

Lesser form of divorce/ Half-way house to divorce
Separation of husband and wife under orders of court which puts an end to

cohabitation but not to the marriage itself

It is a cause for divorce

Similar grounds as divorce
Alternate relief to divorce
Duncan Derrett:

the real purpose of judicial separation is to enable the spouses, now relieved of
their matrimonial duties towards each other, to reconsider their position, taste
single living againand attempt a less emotional and urgent atmosphere to
piece their lives & their futures together once again.
It is, frankly the remedy appropriate to couples who, after a fair trial of marriage
find each others society unbearable It may be that after the chief cause of the
trouble is over, the couple can see their way to coming together again & the
decree can rescinded.

JUDICIAL SEPARATION IN VARIOUS PERSONAL LAWS

HMA 1955

MUSLIM
LAW

IDA 1869

PMDA 1936

SMA 1954

Ss. 10, 13, 13A

No Provision

SS. 22-26

S. 34, 32, 32A

Ss. 23, 27

1 year limit

Iddat period

Non-resumption
of cohabitation
NOT a ground for
divorce

1 year limit

1 year limit

Adultery
Cruelty
Desertion for
min. 2 yrs.

Same grounds
as divorce

Same
grounds as
divorce

Same
grounds as
divorce

Intercourse by a man with his wife (without her consent)

during judicial separation is an offence u/s 376, IPC
Marital rape is legal in India

DIFFERENCE BETWEEN
DIVORCE & JUDICIAL
SEPARATION
Divorce

Judicial Separation

Ends the marriage

Doesnt end the marriage

Both parties are free to enter into a 2nd

marriage

No party can enter into a 2nd marriage, if

they do so, it will be void

If one party dies after divorce, his/her

property shall devolve upon his/her heirs
as per the personal law applicable to
him/her. The living party doesnt have
any say in this matter.

If during judicial separation, one of the

parties dies, one has a right to succeed to
the property of the deceased spouse.

Quick & deadly remedy which breaks the

marriage

Soft remedy

No chance of coming together except by

performing second marriage

Parties can rejoin as husband and wife

MANISHA TYAGI V. DEEPAK

KUMAR, AIR 2010 SC 1042
Husband asked for divorce on the ground of wifes

cruelty

Trial court: Both parties are at fault, hence no divorce

Appeal by husband to P&H HC, Single Judge Bench:

Decree of Judicial Separation

Appeal by wife to Division Bench: Divorce granted

Appeal by wife to SC: Decree of Divorce not to be

given when by judicial separation was still subsisting,

Divorce order quashed.

IS DIVORCE NECESSARY?
Cheshire, The International Validity of Divorces:

Divorce, since it disintegrates the family unity, is, of

course, a social evil in itself, but it is a necessary
evil. It is better to wreck the unity of the family
than to wreck the future happiness of the parties by
binding them to a companionship that has become
odious.

WHAT IS DIVORCE?
Latin divortium, to turn aside/ separate
Golden Key to the Legal Cage of Marriage
Permanent Legally Binding Termination of Marriage
Dissolution of a marriage contracted between a man and a woman by the

judgement of a court of competent jurisdiction, or by an Act of Legislature.

Zohara Khatoon v. Mohd. Ibrahim, (1981) 2 SCC 509:

Divorce is the termination of marriage otherwise than by death, normally

permitting each party to remarry
Emergency exit from an unbearable situation as a lesser necessary evil
No divorce for consideration

THEORIES OF DIVORCE
Fault Theory
1. Fault of one party entitles the other to seek divorce
2. One party is innocent, the other is at fault

Consent Theory
1. No fault on either side
2. As the parties are free to enter into the marriage bond, they should be free to

exit
Irretrievable Breakdown of Marriage
1. Incompatibility of temperament
2. Profound & lasting disruption

GENERAL GROUNDS FOR DIVORCE

(FAULT THEORY)
Adultery

GROUNDS FOR DIVORCE (FAULT THEORY)

HMA 1955

DMMA 1939

IDA 1869

PMDA
1936

SMA 1954

Adultery
(s. 497, IPC)

S. 13(1)(i)

S. 2(viii)(b)

Ss. 10(1)(i)

S. 32(d)
within 2 yrs

S. 27(1)(a)

Cruelty
(s. 498-A, IPC)

S. 13(1)(i-a)

S. 2(viii)

S. 10(1)(x)

S. 32(dd)

S. 27(1)(d)

Desertion

S. 13(1)(i-b)
2 yrs

S. 2(iv)
3 yrs

S. 10(1)(ix)
2 yrs

S. 32(g)
2 yrs

S. 27(1)(b)
2 yrs

Incurably of Unsound Mind/

Intermittent or Continuous
Mental Disorder

S. 13(1)(iii)

S. 2(vi)
2 yrs

S. 10(1)(iii)
2yrs

S. 32(bb)
Within 3 yrs

S. 27(1)(e)

Venereal disease in a
communicable form

S. 13(1)(v)

S. 2(vi)

S. 10(v)
2 yrs

S. 32(e)
Within 2 yrs

S. 27(1)(f)

Conversion & Apostasy

S. 13(1)(ii)

S. 10(1)(ii)

S. 32(j)
within 2 yrs

Not a
Ground

Wife who was a non-Muslim before marriage

reconverting to her earlier faith: instant dissolution
Muslim wife renouncing Islam: Wife entitled to obtain
divorce u/s 2
Muslim husband renouncing Islam: instant dissolution

Virulent & incurable form of

leprosy

S. 13(1)(iv)

S. 2(vi)

S. 10(1)(iv)
2 yrs

Not a
Ground

S. 27(1)(g)

Disappearance (Civil Death)

S. 13(1)(vii)
7 yrs

S. 2(i)
4 yrs

S. 10(1)(vi)
7 yrs

S. 31
7 yrs

S. 27(1)(h)
7 yrs

Husband guilty of rape,

sodomy, bestiality

S. 13(2)(ii)

Not a Ground

S. 10(2)

S. 32(d)

S. 27(1-A)(i)

Non-compliance of RCR decree

S. 13(1-A)(i)

Not a Ground

S. 10(1)(viii)

S. 32-A(1)(ii)

S. 27(2)(ii)

Imprisonment

Not a
Ground

S. 2(iii)
7 yrs

Not a Ground

S. 32(f)
7 yrs(after

S. 27(1)(c)
7 yrs

GROUNDS FOR DIVORCE (FAULT

THEORY)
HMA 1955

DMMA
1939

IDA

PMDA
1936

SMA 1954

Repudiation of Marriage

S. 13(2)(iv)

S. 2(vii)

Not a
Ground

Not a
Ground

Not a Ground

No resumption of cohabitation after

decree of judicial separation

S. 13(1-A)(i)
1 yr

Not a
Ground

Not a
Ground

S. 32-A(1)(i)
1 yr

S. 27(2)(i)
1 yr

Wilful non-consummation of marriage

Not a
Ground

No Provision

S. 10(1)(vii)

S. 32(a)

Not a Ground

Bigamy

S. 13(2)(i)

Not a
Ground

Not a
Ground

S. 32(d)

Not a Ground

Unsoundness of Mind at the time of

marriage

Not a
Ground

No Provision

Not a
Ground

S. 32(b)

Not a Ground

Failure to Provide maintenance

Not a
Ground

S. 2(ii)

Not a
Ground

Not a
Ground

Not a Ground

Wife pregnant at the time of marriage

Not a
Ground

No Provision

No Provision

S. 32(c)

Not a Ground

Grievous Hurt

Not a
Ground

Not a
Ground

Not a
Ground

S. 32(e)
Within 2 yrs

Not a Ground

No marital intercourse for one year or

more

Not a
Ground

Not a
Ground

Not a
Ground

S. 32(h)

Not a Ground

ADULTERY
Voluntary sexual intercourse between a married person and a person of

opposite sex, the two person not being married to each other

Post-marriage lapse
Voluntary
Burden of Proof on the person alleging adultery
Direct/ circumstantial evidence leading to inferences / confession/ birth of a

child of which the husband couldnt have been the father due to nonaccess (strict proof needed)

Conduct of parties, association, opportunity, illicit affection, undue

familiarity, guilty attachments

N.G.Dastane v. S. Dastane, AIR 1975SC 1534:

All matrimonial offences can be proved by balance of probability. Degree

of proof should carry high degree of probability because of gravity of the
issue.
Mere gossip/ letters written will not prove adultery

FACTORS TAKEN INTO

CONSIDERATION BEFORE
GRANTING DIVORCE/JUDICIAL
SEPARATION ON THE GROUND OF
ADULTERY
Position & interest of children
Interest of the party with whom respondent is guilty
Prospect of future marriage
Possibility of reconciliation
Interest of the community at large

CRUELTY
Old English law: Husband could correct his wife by beating
Holmes v. Holmes, (1755) 2 Lee: 161 ER 283:
Husband used to abuse & assault his wife. He insisted upon sexual intercourse in

the presence of two men, & threatened that if she refused, the men would hold
her down. When she escaped through the window, the men followed her at the
instance of the husband and dragged her back by her hair. In spite of all this,
the wife was held not to be entitled to any relief on the ground of
cruelty.
Manu: Husband should beat his wife only with a rope/ split bamboo, so that

no bones are broken in the process.

Gurdev Kaur v. Sarwan Singh, AIR 1959 Punj 162:

Cruelty has to be defined w.r.t. social conditions as they exist in the present day,

& not acc. To rigid tenets of Manu & other law givers of bygone ages.

S. 498A, IPC
Any wilful conduct of such nature as is likely to drive a woman to suicide /or

to cause grave injury or danger to life, limb or health (physical/mental)

Harassment of the woman, where such harassment is with a view to

coercing her/ any person related to her, to meet any unlawful demand for
any property/ valuable security

WHAT CONSTITUTES CRUELTY?

Social & cultural backgrounds of the parties
Mental & physical conditions
Quality & length of their married life
Physical/mental, direct/indirect, intended/unintended
Must be more serious than ordinary wear & tear of marriage
Divorce on the ground that the womans in-laws forced her to wear

a sari! rejected
Wife making her grievance in a loud voice not amounting to

cruelty
Husband complained of cruelty from wife: removing mangalsutra

& kumkum, throwing bangles; despite this, he lived with her for
four years and had two children. No cruelty

RAJIV SURESH GADKARI V.

NILANGI, AIR 2010 (NOC)
538 (BOM)
Husband was in USA

Used to force wife to adopt American lifestyle, asking her to wear particular

type of clothes, drink wine, mix with his friends, against her wishes, & on
days when she used to observe religious fasts, he used to bring home
chicken, beef & pork & force her to eat them.

Held - cruelty

WIFES CRUELTY TOWARDS HUSBAND

Utter indifference towards the health of the spouse would amount to

cruelty

Wife levelling unsubstantiated allegations of adultery against husband, not

looking after him when he was hospitalised due to accident, subjecting him
to insults & threats even when he was in injured state cruelty

Parihar v. Parihar, AIR 1978 Raj 140:

Wifes close connection with another man, her adamant behaviour & suicidal
tendencies
Wife left her husband leaving behind a 2-month old baby, refused to either

return or keep the child with her, child died soon after her leaving

Mayadevi v. Jagdish Prasad, AIR 2007 SC 1426:

Husband suffering harassment from wife, quarrelsome nature, abusive language,

threats to implicate in false criminal cases & merciless beating of children. When
she was pregnant with 4th child, she pushed her 3 children in the well & jumped
after them. while she could be rescued, the children died.

EXAMPLES OF CRUELTY
Removing of mangalsutra when husband still alive is cruelty Do you agree?
Wife refused to prepare tea for her husbands friends + lodged false report on

non-bailable offences against him & his relatives + got rid of her pregnancy:
Cruelty

Forcing a partner to a sexless life damages the physical & mental health of that

partner cruelty

Impotency is cruelty
Husband in his letter to his wife uses vulgar & undesirable language like

prostitute, whore, fallen woman, etc cruelty

Wife comparing husband to barking dog, filing cases against him, allegations of

sodomy against him, molestation against father-in-law: cruelty

False allegation of second marriage

Second marriage in itself is cruelty
Alleging cruelty when theres no cruelty in itself is cruelty!
Declining the spouse the pleasure of parenthood is cruelty

EXAMPLES FOR CRUELTY

V. Bhagat v. D. Bhagat, AIR 1994 SC 710:

Allegations of the wife that the husband, who was a practising advocate, was a
lunatic & that there was a streak of insanity running throughout his family: mental
cruelty
G. V. N. Kameswara Rao v. Jabili, AIR 2002 SC 575:

Husband, highly qualified person with 2 doctorates, wife a lecturer, litigating for 15
years: wife quarrelling, behaving in an insulting manner, humiliating the husband
in the presence of outsiders & creating scenes, not doing any household work,
refusing to share bed, etc., filing criminal complaints that she was badly beaten by
husband & his mother
Levelling disgusting accusations of unchastity against the wife by the

husband in his W.S. to wifes divorce petition grave assault on character,

honor, reputation, status as well as health of the wife.

SAMAR GHOSH V. JAYA

GHOSH, (2007) 4 SCC 511
Both husband & wife were IAS officers.
The wife refused to cohabit with him, they used to sleep in different rooms,

she refused to take care of him, she humiliated him in front of her father.

Wife guilty of mental cruelty

BHAGAT V. BHAGAT, (1994)

1 SCC 337
Husband was a lawyer, filed divorce petition on the ground of adultery by

wife

Wife alleged that husband is a lunatic

Case went on for 8 years
Divorce granted

ITWARI V. ASGHARI, AIR

1960 ALL 684
Polygamy by Muslim man
Ill treating his wives is cruelty

CRUELTY
Intensity, gravity & stigmatic impact of cruelty when meted out even once & the deleterious

effect of cruelty on the mental attitude, necessary for maintaining a conducive matrimonial
home are taken into consideration while granting divorce/ JS

No time limit to establish cruelty

Unsubstantiated allegations by petitioner in the petition: cruelty
Dowry demand is cruelty
A spouse who supports, acquiesces, or stands as a mute witness to objectionable and

undesirable behaviour of his/her parents or other relatives towards the other spouse, cannot
be completely absolved of the charge of cruelty.

Wife being a victim of gang-rape is NOT cruelty towards husband (Rajesh Kumar Singh v.

Rekha Singh, AIR 2005 All 16.)

Wifes refusal to quit her job, per se, is not cruelty

Wife wanting to live separately with husband and children (on justifiable grounds) not cruelty

CRUELTY - CONCLUSION
Bidyut Kumar Saha v. Tapa Saha, AIR 2007 Gau 1:

Husband filed petition for divorce on ground of cruelty with allegations such as wife
singing hindi cinema songs, spending long time in the bathroom, talking over
telephone with somebody unknown to husband, having tumour on head, offensive
smell coming from mouth, weak memory, etc. NOT cruelty
Sanjay Yadav v. Anita Yadav, AIR 2007 P&H 136:

Husband discovered that his wife was one-and-a-half years older than him filed
for divorce Rejected
Cruelty is a defence in a suit for RCR.
Cruelty is a reasonable ground for wife to seek separate residence and

maintenance

DESERTION
Total repudiation of the obligation of the marriage
Factum of Desertion
Intention to bring cohabitation permanently to an end (animus deserendi)
Absence of Consent
Absence of conduct giving reasonable cause to the spouse leaving the

matrimonial house

Matter of inference to be drawn from the facts & circumstances of each

case

If a spouse abandons the other in a state of temporary passion, like anger

or disgust without intending to permanently cease cohabitation, it is not

desertion.

INGREDIENTS OF
DESERTION:
Factum of Desertion
Animus deserendi
Absence of Consent
Absence of conduct reasonably causing the spouse to desert
Should be there for the min. statutory period prescribed
Desertion may be put to an end by resuming cohabitation, before divorce.
Plaintiff to prove desertion
Constructive desertion: party creating an environment for the other party

to leave

Desertion is not separate living; couple living under the same roof might

have deserted each other

SAVITRI PANDEY V.
PREMCHAND PANDEY,
(2002) 2 SCC 73
Desertion for the purpose of seeking divorce under the Act means the

intentional permanent forsaking and abandonment of one spouse by the

other without that others consent and without reasonable cause. In other
words, it is a total repudiation of the obligations of marriage. Desertion is
not the withdrawal from a place, but from a state of things Desertion is
not a single act complete in itself, it is a continuous course of conduct to be
determined under the facts & circumstances of each case.

In cases of desertion, previous cohabitation between the parties must be

established, except in cases of mental or physical incapacity. There can be

no desertion without previous cohabitation.

 Where wife has to leave the matrimonial home because of persistent

harassment for dowry, it was held that it is not the wife but the husband
who is guilty of desertion.

The cause to leave the spouse must be sufficiently grave & weighty so as

to justify living away.

Mere living away from a spouse (for whatever duration) without intention to

repudiate marital obligations does not constitute desertion.

If one party impels, by his/her conduct, the other to leave the home, it

would be that spouse who would be guilty of desertion.

Gajendra v. Madhumati, AIR 2001 MP 299:

Abandonment & non-performance of marital obligations by a wife with intention to

pressurise the husband to live in her fathers house as ghar jamai.

GEETA MANGTANI V.
JAGDISH MANGTANI, AIR
2005 SC 3508

Wife was a school teacher working at Gandhidham earning about Rs. 8000

p.m. and the husband was working in Mumbai earning Rs. 1400 p.m.

Wife left the matrimonial home 7 months after marriage for delivery &

never returned

She insisted that unless & until the husband starts earning more & removes

the financial insecurity, she is not prepared to return to him.

Husband filed for divorce on the ground of desertion

Divorce granted

KRISHNABAI V.
PUNAMCHAND, AIR 1967 MP
200
Wife had problems with her sister-in-law, she was prepared to live with the
husband only if he lived separate from his parents. This was construed as
unreasonable and the wife was held to be in desertion.

KARABI DAS V. PARITOSH

DAS, AIR 2003 CAL 61
Indeed if the initial going away of the wife from the matrimonial home was
permissible and right, as here, then in that event, she can neither be
divorced for going away, nor can there be a decree forcing her to come back
when she went away properly in the first place.

CONVERSION
After conversion, the convert will be governed by a different personal law
Conversion could mean a radical change in the personality of the convert
Its a ground for divorce in all personal laws, for the non-convert spouse
Only among Muslims it will result in automatic dissolution of marriage

VILAYAT RAJ V. SUNITA, AIR

1983 DEL 351
Whether a marriage performed under the Hindu law can be

dissolved under HMA 1955 by a spouse who ceases to be a Hindu

by conversion to another religion

Parties were Hindus at the time of marriage in 1978

They separated in 1980 & in 1981, the husband filed a petition for divorce

on the ground of cruelty. In the petition, he set out his religion as Muslim at
the time of filing the same.

Wife challenged his right to file for divorce under HMA

Held Religion at the time of marriage is taken into account. Hence,

husband has a right.

Even after conversion, the converted party can get divorce on any other

ground, than conversion

READING OF RELEVANT
GROUNDS OF DIVORCE IN
THE BARE ACTS

AS A LAWYER, HOW WILL YOU DECIDE WHETHER TO ASK FOR

ANNULMENT, JUDICIAL SEPARATION OR DIVORCE FOR YOUR
CLIENT?

DIVORCE BY MUTUAL CONSENT (CONSENT THEORY)

HMA 1955

MUSLIM LAW

IDA

PMDA 1936

SMA 1954

S. 13-B
S. 23(1)(bb)
S. 14

Talaq by Mutual Consent:

1) Khula (initiated by wife +
consideration)
2) Mubarat (mutual consent)

S. 10-A

S. 32-B

S. 28

Minimum
separate
living for
1 year
2 motions
with a gap
of 6-18
months

Talaq by Husband:
Separation
1) Talaq-al-Sunnat:
for 2 yrs
a) Talaq Ahasan (during tuhr)
b) Talaq Hasan (3 months)
2) Talaq-ul-Biddat (triple talaq)
3) Ila (vow of celibacy for 4 months)
4) Zihar (unjust comparison)

1 yr separation
period
No need of 2
motions with
time gap

Same as HMA

Voluntary
Free consent

Talaq by Wife:
1) Talaq-e-tafwid (delegated
divorce)

Same as HMA

Petition of
fault ground
can be

Talaq by Judicial Process:

1) Lian (accusation of adultery)
2) Faskh (judicial dissolution)

Same as HMA

MITEN V. UOI, (2009) 1 DMC

93 (BOM-DB)
Constitutionality of s. 13B, HMA was challenged
Period of 1 yr separation is unconstitutional, arbitrary & tantamounts to

artificial classification which is impermissible & such condition is contrary

to the object of s. 13B

No nexus between the object sought to be achieved & the pre-condition of

1 yr separate living as contemplated by s.13B, & that it is unreasonable,

causing a lot of hardship, interfering with fundamental freedom guaranteed
under Constitution

Held no provision for instant divorce

SAUMYA ANN THOMAS V.

UOI, (2010) II DMC 526
(KER-DB)

Constitutional validity of s.10A(1), IDA 1869 was challenged

2 yrs mandatory separation period to file divorce based on mutual consent

was challenged as arbitrary, & ultra vires Arts. 14 & 21, Constitution of
India

Separation period under other personal laws is 1 yr, hence infringes Right

to Equality

Held Principle of Severability 2 yrs read down to 1 yr.

SURESHTA DEVI V. OM
PRAKASH, AIR 1992 SC 1904
WHETHER CONSENT CAN BE UNILATERALLY WITHDRAWN?
YES. Consent not irrevocable. It can be revoked before the 2 nd motion
Petitioner married respondent in 1968. They split after 6-7 months. From

1984-85, they started living together due to court orders, after which they
applied for divorce by mutual consent.

After this, wife alleged that her consent was taken fraudulently, due to

which the divorce application was cancelled.

HC Consent is irrevocable
SC Consent can be revoked.

SOME POINTS ABOUT

DIVORCE BY MUTUAL
CONSENT

Absence from multiple proceedings would be inferred as consent, rather

than withdrawal

No ex parte decree on presumption of continuation of consent

Consent cannot be withdrawn after final hearing
Consent can be unilaterally withdrawn before 18 months of presenting the

1st motion (HMA)

Waiting period between 2 motions is not mandatory (S.14,HMA)

Consent has to be free from force, fraud, misrepresentation, undue

influence, etc.

NON-JUDICIAL DIVORCE UNDER MUSLIM LAW

Talaq = Arabic, undoing/untying of the knot
Unilateral Power of the Husband to divorce the wife, without court intervention, without assigning any

reason for his action, literally at his whim, even in a jest, or under compulsion, or to please someone,
or in a state of voluntary intoxication, even when no one is present (Sunnis)

Sound mind, should have attained puberty

Wifes desires or feelings are of no account in talaq
Kinds of Unilateral Talaq by Husband:
Express Talaq

Talaq-al-sunna (approved divorce): revocable

i.
Ahasan
ii.
Hasan
B. Talaq-ul-biddat (unapproved divorce): irrevocable not recognized by Shias
i.
Triple talaq
ii.
One irrevocable pronouncement
A.

Implied/Contingent Talaq (not recognized by Shias)

Delegated Divorce (talaq-i-tafweez)
Constructive Divorce
.Ila
.Zihar

Divorce by Mutual Consent:

Khula & Mubarat

ZUBEIDA BEGUM CASE, AIR

1948 LAH 810
Whether it is possible for a human being to treat 2 wives with

perfect equality as far as love is concerned

A Muslim man had 2 wives, A & B.

He went to Africa, and while he was providing A with a home &

maintenance, he made no arrangements for the maintenance of B for more

than 2 years.

He wrote to B from Africa asking her to come to Africa, but he didnt send

any money for the passage.

It was held that the husband had neglected/ had failed to provide

maintenance to B for a period of 2 years, within the meaning of S. 2(ii),

DMMA

Therefore, it could not be said that he had treated her equitably in

accordance with the injunctions of the Koran within the meaning of S.2(viii)
(f), DMMA

CONDITIONS FOR A VALID

TALAQ
Capacity: Both husband & wife should be major and of sound mind
Free consent: Applicable only to Shias; Among Sunnis, talaq given under

threat, coercion, compulsion, or voluntary intoxication is valid.

Formalities:
Oral divorce under Sunni law: Audience is necessary even if it be of just one

person
No need of talaq nama
The utterance of the word should be clear & specific
Wife neednt be informed immediately
Shias require 2 witnesses while giving talaq

SARABAI V. RABIYABAI, ILR

(1906) 30 BOM 537
Husband went to Qazi and uttered words depicting talaq to wife. He also

prepared talaqnama and signed thereon.

Wife was unaware of this.

Held Talaq was legal & it becomes effective from the date on which it was

prepared, irrespective of the wifes knowledge or otherwise.

Even after uttering talaq, wifes right to maintenance continues till she

comes to know about talaq.

TALAQ-A-HASAN: BEST
FORM OF TALAQ
Affords the husband sufficient opportunity to reconsider his decision & to

revoke it if he had hastily decided upon divorce.

If marriage consummated: Pronounced during tuhr (period between 2

menstrual cycles)

If marriage not consummated: Can pronounce even when wife is undergoing

menstruation

Has to abstain from sexual intercourse till iddat gets over

Marriage gets terminated only if sexual relations are NOT resumed till the

completion of iddat period

If consummation is resumed, talaq is said to have been revoked

Presence of wife not required, but her name has to be said; Oral/Writing
Shias do not recognize talaq by writing; they require 2 competent witnesses

TALAQ HASAN
Husband has to utter the word talaq once every month, for 3 consecutive

months, during tuhr

Has to avoid sexual relations till the last pronouncement

Becomes final & irrevocable after the third pronouncement
Not necessary to wait till iddat gets over
Remarriage of the wife to the husband can take place only after nikah-

halala

TALAQ-UL-BIDDAT (WORST
FORM OF DIVORCE)
Most arbitrary & unfair method of divorce in Muslim law
Not recognised by Shias; Hanafis recognize it
Biddat = sinful
2 main conditions of pronouncing during tuhr, and abstaining from sexual

intercourse need NOT be followed

I divorce you thrice

I divorce you, I divorce you, I divorce you
Final & irrevocable
Prohibited in Iran, Iraq, Turkey, Saudi Arabia, Kuwait, Egypt
Allowed in India

SHAMIM ARA V. STATE OF

U.P., (2002) 7 SCC 518
Shamim Ara had married A in 1968
In 1979, she applied for maintenance to herself and her 2 children, on the grounds of

cruelty and desertion.

As a reply to this, husband made vile accusations against the wife, and tired of the court

procedure, and to avoid giving her maintenance, he divorced her in 1987, without
informing her.

Against this wife appealed to High Court, and she got to know that she has been divorced

only in 1990. HC ordered maintenance from 1988-1990, at the rate of Rs. 200 p.m.

Husband appealed to SC. SC held that since he hadnt adduced evidence to prove the

pronouncement of talaq, marriage subsists, & hes liable to lay maintenance.

Correct law of talaq, as ordained by the Holy Quran is that:

1.

Talaq must be for a reasonable cause

2.

Be preceded by attempts at reconciliation between the husband and the wife by 2

arbiters one from the wifes family and the other from the husbands and if the
attempts fail, the talaq may be effected.

SOME OBSERVATIONS ON
TALAQ
A Muslim male can give talaq by his one sided ex parte decision
Court has no role to play here and it cannot interfere
Wifes consent is not required at all
Even if the wife doesnt desire/ doesnt consent, talaq remains valid
It is the extra-judicial power of the husband to give talaq to his wife even if

it has not been mentioned in the nikah nama.

TALAQ UNDER
COERCION/INTOXICATION
Sunni law: If the words uttering talaq are express & clear, the talaq is valid,

even though the same are declared by the husband under

pressure/coercion of somebody or they are uttered by him under a state of
intoxication or to please his father or somebody else.

. Rashid Ahmed v. Anisa Khatoon, (1932) 34 Bom LR 475 (PC)

Shia law: Such talaq is unlawful

IMPLIED/CONTINGENT
DIVORCE:
Not recognized by Shias
Meaning of the words used in talaq not clear
I give up all relations with you and shall have no connection of any sort

with you

I have released thee from being my wife

Divorce will be implied if intention to divorce is clearly expressed
Talaq to be effective on the happening of a future event = contingent

divorce

Repudiation cannot be qualified by an option

HAMAD ALI V. IMTIAZAN, ILR

(1873) 2 ALL 73.
Wife insisted on going to her fathers house
Husband told her Thou art my cousin, my paternal uncles daughter, if thou

goest

Implied divorce (zihar), based on the contingency of wife going to her fathers

house

Amounted to divorce

ILA (VOW OF CELIBACY)

Muslim male utters a solemn promise of celibacy & thereafter for 4 months,

he abstains from sexual intercourse with his wife

Husband can cancel his vow & start his married life again

ZIHAR (UNJUST
COMPARISON)
Husband compares his wife to his mother or with any woman coming within

his prohibited degrees.

If after making such comparison, the husband wants to cancel his

declaration, he has to pay some amount or fast for some days as a

penance.

After declaration of Zihar, sexual relations have to stop and the husband

can file a suit for divorce.

TALAQ-I-TAFWEEZ
(DELEGATED DIVORCE)
Husband delegating the power to give talaq to his wife or to any third party
Contract for this purpose a must
Transfer of authority by one person to another to act for himself
Maharam Ali v. Ayesha Khatun, (1914-15) 19 CWN 1226:

Husband contracted with his wife that if he takes another wife, she would given him divorce. Contract
held to be valid.
In case of differences between the husband and wife, condition that husband will pay

maintenance to wife, and if doesnt give this, wife will divorce him.

In case husband doesnt pay prompt mehr, or if he misbehaves, or takes another wife can

use delegated divorce.

Power exercised within a definite time

Power used within one sitting
Power used as & when wife pleases.

TALAQ BY JUDICIAL
PROCESS
Lian: (Accusation of Adultery)
If husband accuses wife of adultery, wife gets a right to divorce him.
He will have to prove her adultery, otherwise, he will have to release his wife

from the bond of marriage.

If he wants to withdraw, he has to admit that his was a false accusation and
withdraw before court grants divorce.
Marriage doesnt come to an end merely due to the accusation. Parties have to
go to the court to get the divorce decree.

TALAQ BY COURT PROCESS

Faskh: (Judicial Dissolution)
When a woman applies to the court for divorce, it is known as Faskh.
S. 2, DMMA
If the husband forms some prejudice against his wife, it is better to end

that marriage than to force them to live together with those prejudices.

TALAQ BY MUTUAL
CONSENT: KHULA &
MUBARAT
When divorce is initiated by the wife and husband consents to

it, it is known as Khula

When husband & wife mutually consent to divorce, it is

mubarat. It may be initiated by either of the spouses.

In Khula, wife gives some consideration to obtain the consent

of her husband (usually her dower) Divorce by purchase

KHULA
Laying down by a husband of his right and authority over his wife for an exchange.

Buzz-sul-Raheem v. Lutefunnissa, (1861) 8 MIA 397:

Divorce by Khula is divorce with the consent, and at the instance of the wife, in which she
gives/agrees to give consideration to the husband for her release from the marriage tie. In
such a case, the terms of bargain are a matter of arrangement between the husband and
wife, and the wife may as a consideration, release her mahr and other rights, or make any
other agreement for the benefit of the husband.
Sunni law: Guardian of minor wife has power to enter into Khula on her behalf & he

will be liable to pay consideration. Khula obtained under compulsion also is valid.

Shia law: No such power to guardian.

Khula may be unconditional/ conditional.
Unconditional Khula is irrevocable.

MUBARAT (MUTUAL
CONSENT)
Fayzee:

In case of Khula, the wife begs to be released and the husband agrees for a
consideration, which is usually a part of the whole of dower while in Mubarat,
apparently both are happy at the prospect of being rid of each other
Some compensation is given by the wife to the husband
Kazi merely declares that marriage has ended
In both Khula & Mubarat observance of iddat period is mandatory

LEGAL EFFECTS OF TALAQ

Sexual intercourse between the parties would be illegal
Right to Remarry
Right to receive Dower
Right to retain Gifts given by relatives
In case of revocable talaq, if husband/wife die during iddat period, the

living spouse can inherit the property of the deceased

No inheritance rights if it is irrevocable talaq

Right to maintenance during iddat period
Birth of a child during iddat period establishes the childs legitimacy

IRRETRIEVABLE BREAKDOWN
OF MARRIAGE
Borrowed from English law
Purpose of law of divorce: NOT to punish the guilty party, but to protect the

innocent party

How can finding fault be insisted by law, (how will it help) when at no cost

the marriage can be set right?

No reasonable probability remains to the spouses remaining together as

husband and wife for mutual comfort and support.

No use retaining an empty shell

Some cases where SC has granted divorce on this ground: Jayachandra v.

Aneel Kaur, Samar Ghosh v. Jaya Ghosh, Bhagat v. Bhagat, Manish Goel v.
Rohini Goel, Sanghamitra Ghosh v. Kajal Kumar Ghosh

Art. 142 Extraordinary powers of SC

NAVEEN KOHLI V. NEELU

KOHLI, (2006) 4 SCC 558
When parties have separated for a considerably long time, first step is to

try to bring them together

If this doesnt happen, if the marriage has broken down beyond repair, it is

better to grant them divorce

When marriages are broken down beyond repair, marriage becomes legal

fiction, supported by a legal tie.

By refusing to sever the tie, the law does not preserve the sanctity of

marriage, on the contrary, it shows scant disregard for the feelings &
emotions of the parties.

Public interest demands not only that the married status should, as far as

possible, as long as possible, and whenever possible, be maintained, but

where a marriage has been wrecked beyond the hope of salvage, public
interest lies in the recognition of that fact.

EVOLUTION OF THEORIES
OF DIVORCE
Divorce under
exceptional
circumstances

Divorce on
demand

Divorce on
grounds of
irretrievable
breakdown of
marriage

ELEMENTS OF BREAKDOWN
OF MARRIAGE AS GROUNDS
OF DIVORCE
Disappearance (Civil Death)

Applying for Divorce when there is non-resumption of cohabitation after JS/

RCR either D.H. or J.D. can apply

Ex: s. 13(1A), HMA 1955 breakdown of marriage; s. 2(ix), DMMA 1939,

Khula, Mubarat

Divorce by mutual consent not in all cases of broken marriages mutual

consent is possible.

Ground is of help when evidence on record doesnt prove fault.

Helps in cases of stalemate when parties can neither be united, nor be

separated (for want of proof)

LEGAL POSITION W.R.T.

IRRETRIEVABLE
BREAKDOWN

Marriage Laws (Amendment) Bill, 2001: intends to add irretrievable

breakdown as a ground for divorce in HMA & SMA: due to

recommendations in Naveen Kohli case

71st & 271st LCI Reports: recommended adding this as a ground for divorce

+ suggested safeguards to check unbridled divorces.

Change in judicial attitude in light of changing times

DIVORCE CASES IN REALITY

Fault theory

Mutual
Consent

Irretrievable
Breakdown

EXAMPLES
Mental & physical cruelty by wife towards her husband + separate living

for 16 years = breakdown

Desertion for 14 years, failed attempts at reconciliation = breakdown

Accusation of adultery by husband on wife leading to separate living no

sight of reconciliation = breakdown

Mere fact of long separation doesnt mean marriage is irretrievably broken

down

Nor is lengthy litigation per se, considered as an irretrievable breakdown

Remarriage while first marriage is subsisting = breakdown
Mental illness affecting marital relations = breakdown

To live with a man [or woman] you hate is a slavery,

but to be compelled to submit to his [or her] embrace
is a misfortune too great even for slavery itself.

BARS TO MATRIMONIAL
RELIEFS: DIVORCE, JS, RCR
Doctrine of Strict Proof: Preponderance of Probabilities vs. Beyond

Reasonable Doubt

Accessory (Active participation in crime)

Connivance
Condonation
Collusion
Taking advantage of ones own wrong
Improper or unnecessary delay
One year bar

DOCTRINE OF STRICT
PROOF
if the court is satisfied
Preponderance of Probabilities
This loosening of quality of evidence may act as a hurdle in getting a

matrimonial relief

ACCESSORY
Active participation in the crime
S. 23(1)(b), HMA: accessory to adultery
S. 12, IDA: accessory to adultery
S. 35(c), PMDA: general accessory
S. 34(b), SMA

CONNIVANCE
Knowledge of & active or passive consent to the wrong doing
Connivance means where a person knows that a wrongful act is being done

or is to be done, or where the person is under duty to interfere, does not

interfere or prevent it, in that case, it is said that the person has connived.

K.J. v. K., AIR 1952 Nag 395.

Difference between accessory and connivance: ACTIVE PARTICIPATION
Same sections as Accessory

CONDONATION
Inglis v. Inglis and Baxter, (1967) 2 WLR 488:

Reinstatement of a spouse who has committed a matrimonial offence in his/her

former matrimonial position, in knowledge of all the material facts of that offence
with the intention of remitting it, that is to say, with the intention of not enforcing
the rights which accrue to the wronged spouse in consequence of the offence.
2 important elements: Forgiveness & Reinstatement
After full knowledge of ALL material facts
HMA, SMA: adultery, cruelty
IDA: adultery
PMDA: general bar

COLLUSION
One party bribes the other asking them not to oppose their petition
Agreement/ understanding between the parties to present a petition:
1. to put forward true facts in support of a false case, or
2. false facts in support of a true case, or
3. to suppress facts which would prevent the court from granting a divorce

S. 23(1)(c), HMA except for nullity petition u/s 11, HMA

S. 47, IDA nullity, divorce, JS
S. 35(b), PMDA nullity, divorce
S. 34(b), SMA all reliefs

TAKING ADVANTAGE OF
ONES OWN WRONG
One who comes to the court should come with clean hands
S. 23(1)(a), HMA
Doctrine of Sincerity
T. Srinivasan v. T. Varalaxmi, (1998) 3 SCC 112:

Husband obtained a decree of RCR, but he didnt allow his wife to join him, by
driving her away from the matrimonial home. His petition for divorce on the ground
of absence of RCR for more than a year after passing of the decree was denied by
the court.

IMPROPER/UNNECESSARY
DELAY

Law can serve only those who are vigilant about their rights and not those

who sleep over them

Limitation Act 1963 doesnt apply to matrimonial cases

Within reasonable time
Equitable doctrine of Laches: any delay which can be reasonably/properly

explained, is not a bar to matrimonial relief.

Burden of proof of no delay, is on petitioner

Socio-cultural backgrounds taken into consideration: poverty, reconciliation

efforts, illness, ignorance of law, patience, etc.

S. 23(1)(d), HMA doesnt apply to petitions u/s 11, HMA

S. 14, IDA only divorce
S. 35(d), PMDA all reliefs
S. 34(1)(e), SMA all reliefs

ONE YEAR BAR

A petition for divorce within one year of marriage is barred.
Exceptions:
Exceptional hardship
Exceptional depravity

RESIDUARY CLAUSE/OTHER
LEGAL GROUNDS
S. 23(1)(e), HMA
S. 35(e), PMDA
S. 34(1)(f), SMA
No provision in IDA