IV WORKSHOP

KRISHNA DISTRICT

2nd - TOPIC

Divorce under Fault and No Fault Theory

S.No. Name & Designation of the Officer Page Number

1. A. Parthasarathy, IV Additional District Judge, Vijayawada

1-11

2. Sri N.Ramesh Babu, VIII Addl. District Judge, Vijayawada.

12-18

3. Sri B.Papi Reddy, XVI Addl. District Judge, Nandigama.

19-23

4. Sri G.Bhupal Reddy, Chief Metropolitan Magistrate, Vijayawada.

24-42

5. Smt. U.Indira Priya Darshini, IV Addl. Chief Metropolitan Magistrate, Vijayawada

43-47

6. Sri P.Govardhan, II Addl.Senior Civil Judge, Vijayawada.

48-51

7. Sri Kumar Vivek, Senior Civil Judge, Nandigama

52-57

8. Smt. D.Sony, Spl.JMFC for Trying P & E Offences, Machilipatnam.

58-65

9. Smt.Gogi.Kalarchana, II Add. Junior Civil Judge, Vijayawada

66-82

10. Sri P.Tirumala Rao III Metropolitan Magistrate, Vijayawada

83-89

11. Smt. B.Padma, Prl. Junior Civil Judge, Nuzvid.

90-94

12. Sri S.Srikanth, Junior Civil Judge, Vuyyuru.

95-113

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Paper Presented by :: A. Parthasarathy,

IV Additional District Judge,

Vijayawada

Socio Legal Psycho- Social Issues of Marital Disharmony.

Marital harmony involves cooperation, mutual understanding, sharing,

agreement, accord, coordination, accommodation and consensus between

spouses which lead to peace and tranquility. Disharmony is the result of non-

cooperation, misunderstandings, dominance, conflict between spouses which

lead to unrest, disturbance, violence and turmoil. Marriage leads to a family.

Family is a basic social unit. Units of family are individuals. It has legal basis.

In India its legal basis is personal law. Family has individuals as its units.

Individuals will have different personalities different outlooks different

temperaments and different psychological backgrounds. An Individual can be

considered from a psychological angle. But a group has to be considered from a

psycho-socio angle.

In 1969 California adopted the nation's first "no-fault" divorce law,

which permitted couples to obtain a divorce upon a finding of "irreconcilable

differences." Every state eventually followed suit by adding at least one no-fault

ground for divorce.

No-fault grounds Petition does not look to see who is at fault for marital

breakdown, but rather looks at whether the marriage is objectively dead. No-

fault grounds can also take the form of a mandatory period of separation,

which then provides a ground for divorce. This type of ground simply uses

living apart as an inference of marital breakdown.

With the advent and acceptance of no-fault ground for divorce, divorce

has become essentially available on demand. It is incredibly rare for a couple

seeking a divorce to be denied the relief.

While every state has at least one no-fault ground, two-thirds of them

have nevertheless retained fault grounds as an alternative. Plaintiffs seek fault-

based divorces, though more complex and messy, for different reasons.

In some states, a fault-based divorce can be obtained more quickly,

because there is no mandatory separation period. In others, an "innocent"

spouse fares better in terms of custody, property division, and financial

support than the one at "fault." In still other instances, a spouse will seek a

fault divorce because he or she simply wants public vindication of a wrong

done to him or her by a cheating or abusive spouse.

Not-So-Modern Divorce In New York

Traditionally the most conservative state with respect to divorce, New York did

eventually adopt a no-fault ground for divorce. But even its no-fault ground is

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stricter than most others: it requires a one-year period of separation pursuant

to a written, notarized separation agreement that has been filed with the court.

Moreover, in order to be valid, the separation agreement must privately resolve

all issues relating to property division and spousal support.

The New York statute also retains traditional fault grounds like adultery,

abandonment, cruelty, and imprisonment for a felony. Spouses who are unable

to reach an agreement between themselves must resort to the fault system.

Marriage merges and a divorce divides. Marriage creates a family or

restructures a family. Marriage in fact brings changes in two families. Marriage

unites two individuals. It unites two families. Marriage unites a network of

families. One on the bride-groom’s side and another on bride’s side. Marriage

and divorce are part of the personal law.

As divorce and marriage are part of the personal law in India there is no

unified law of law marriage and divorce in India. It depends on the religion of

the families or depends on the type of marriage, which was performed.

I most respectfully and humbly disagree that there are

compartmentalised theories as fault theory or no fault theory as the fault

liability or no fault liability under the Motor Vehicles Act. In my view no

marriage fails without any fault. There may be fault of the husband or fault of

the wife. The fault may be at the ratio of 50 : 50 or 10 : 90. It may be due to

maladjustment, emotional disturbance, psychological reasons or any other

reasons. Failing of a marriage itself indicates that there is some fault.

Among Divorce Laws the Divorce Act,1869 is the oldest. The Parsi

Marriage and Divroce Act 1836, followed by the Dissolution of Muslimm

Marriages Act, 1939 was subsently passed before passing the Special

Marriages Act, 1954 and The Hindu Marriage Act, 1955.

Initially the only ground available for a christian husband for seeking

divorce is that his wife is guilty of adultery Under Section 10 of Divorce Act. On

the other hand the wife would present petition on the grounds that her

husband converted to some other religion or gone through a farm of marriage

with another woman; or as guilty of incestuous adultery; bigamy with adultery;

marriage with another woman with adultery or of rape, sodomy and bestiality.

With the passage of Act 51 of 2001 with effect from 03-10-2001 the grounds

available for presenting a petition by a husband or a wife or made the same.

Section 10 has been substituted by a new section.

Now the grounds available either for the husband or the wife proffessing

christianity are as follows.

1. Adultery;

2. Conversion to another religion;

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3. Unsoundness of mind for a continuous period of two years;

4. Virulent and incurable form of leprocy for a period of two years ;

5. Suffering from venereal diseases in a communicable form for a period of two

years;

6. Not knowing the whereabouts for 7 years;

7. Non-consummation of marriage due to wilfull refusal;

8. Failure to comply for 2 years or more a decree for restitution of conjugal

rights;

9. Desertion for 2 years and

10. Cruelty.

Additionally wife got a right to seek divorce when the husband is guilty of

rape, sodomy and bestiality. This ground is also available to a Hindu Wife

under section 13 (2) (ii). The other grouonds available to a Hindu wife are that

the maintenance decree was passed in a petition filed under section 18 of

HAMA or under section 125 of CrPC and since passing of such decree or order,

co-habitation has not been resumed for one year or upwards. These ground are

also available for a wife who married under the Special Marriage Act U/Ss 27

(IA) (i) and (ii). If the marriage was solemnised before she attained the age of 15

years, she may repudiate after attaining 18 years under Hindu law and Islamic

law.

Under the Hindu Marriage Act the spouses may present a petition on

these grounds mentioned in section 10 (1) of Divorce Act as per section 13 (1)

of Hindu Marriage Act. The said grounds are also available under section 27 to

a couple married under the Special Marriage Act, 1954. One additional ground

that is available to the Hindus is that his or her spouse has renouonced the

world by entering any religious order under clause (vi).

The grounds for obtaining divorce to a Hindu wife by the Marriage Laws

Amendment Act 68 of 1976 are expanded.

The grouonds available to a Christian or Hindu individual are also

available for those who marry under the Special Marriage Act. An additional

ground under the Special Marriage Act and Parsi Marriage and Divorce Act and

a Muslim woman under Dissolussion of Muslim Marriages Act 1936 is that the

husband has been sentenced to imprisonment for a period of 7 years or more.

Additional grounds for a Muslim woman are that the whereabouts of

husband are not known for a period of 4 years. He failed to pay maintenance

for 2 years. He failed to perform marital obligations for 3 years. He was

impotent at the time of marriage when the impotency continues. If he obstructs

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her in the observance of her religious profession or practice it amounts to

cruelty. If he has more wives than one and he does not treat her equitably in

accordance with injunctions of Quran the same will be considered as cruelty

and is ground for obtaining divorce.

A Christian spouse U/s.26 of Divorce Act and a Muslim Husband U/s.2

Proviso V of Act 1939 may seek to set aside an Exparte order by filing a petition

under these sections instead of filing a petition under Or-9 R-13 of CPC.

An additional ground available to a Parsi spouse U/s 32 (e) is that the

defendant as since the marriage voluntarily caused grevious hurt to the

plaintiff. A Parsi woman may seek divorce if her husband compels her to

submit herself to prostitution. The said ground is also available to a Christian

or Hindu or Muslim woman under the caption cruelty.

The dissolution of marriage by mutual consent is introduced by Act 51 of

2001 under Divorce Act by introducing Section 10-A. It is introduced in Hindu

Marriage Act and in Special Marrige Act by Act 68 of 1976 by inserting Section

13-B and by substituting Section 28 of Special Marrige Act and by inserting

sections 32-B of PM & D Act.

The proceedings of divorce have to be held in-camera u/ss.11 r/w R-11

(g) of F.C.Act, Section 22 of H.M.Act, Section 53 of Divorce Act, Section 43 of

PM & D Act. Section 16 of Protection of Woman from Domestic Violence Act

also has similar provision under section 16.

Among the various grounds for seeking divorce, grounds of cruelty,

desertion and adultery are frequent in that order.

In the D of MMAct 1939 Section 2 (viii) says that a married woman is

entitled to obtain a divorce on the ground that the husband treats her with

cruelty, that is to say

a) habitually assaults her or makes her life miserable by cruelty of conduct

even if such conduct does not amount to physical ill treatment, or

b) associates with women of evil repute or leads an infamous life, or

c) attempts to force her to lead an immoral life, or

d) disposes of her property or prevents her exercising her legal rights over it, or

e) obstructs her in observance of a religious profession of practice, or

f) if he has more wives than one, does not treat her equitably in accordance

with the injuctions of the Quran.

The cruelty that is required to be shown under section 10 (1) (x) of D.Act

is that the respondent has treated the petitioner with such cruelty as to cause

a reasonable apprehension in the mind of the petitioner that it would be

harmful or injurious for the petitioner to live with the respondent. The cruelty

is neither explained nor defined in others Acts.

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Frequently invoked ground for seeking divorce is ground of cruelty. It

may be pertinent to note that, prior to the 1976 amendment in the Hindu

Marriage Act, 1955 cruelty was not a ground for claiming divorce under the

Hindu Marriage Act. It was only a ground for claiming judicial separation under

Section 10 of the Act. By 1976 Amendment, the Cruelty was made ground for

divorce.

In such cases, the cruelty will be established if the conduct itself is

proved or admitted. In Sobha Rani v. Madhukar Reddi (1988) 1 SCC 105 their

Lordships of the Supreme Court observed that to constitute cruelty, the

conduct complained of should be "grave and weighty" so as to come to the

conclusion that the petitioner spouse cannot be reasonably expected to live

with the other spouse. It must be something more serious than "ordinary wear

and tear of married life". The conduct taking into consideration the

circumstances and background has to be examined to reach the conclusion

whether the conduct complained of amounts to cruelty in the matrimonial law.

Conduct has to be considered, as noted above, in the background of several

factors such as social status of parties, their education, physical and mental

conditions, customs and traditions. It is difficult to lay down a precise

definition or to give exhaustive description of the circumstances, which would

constitute cruelty.

In the case of V. Bhagat v. D. Bagath reported in (1994) 1 SCC 337,

Honorable Supreme Court had occasion to examine the concept of 'mental

cruelty'. Their Lordships observed :

"16. Mental cruelty in Section 13 (1) (ia) can broadly be defined as that

conduct which inflicts upon the other party such mental pain and suffering as

would make it not possible for that party to live with the other. In other words,

mental cruelty must be of such a nature that the parties cannot reasonably be

expected to live together. The situation must be such that the wronged party

cannot reasonably be asked to put up with such conduct and continue to live

with the other party. It is not necessary to prove that the mental cruelty is such

as to cause injury to the health of the petitioner. While arriving at such

conclusion, regard must be had to the social status, educational level of the

parties, the society they move in, the possibility or otherwise of the parties ever

living together in case they are already living apart and all other relevant facts

and circumstances which it is neither possible nor desirable to set out

exhaustively. What is cruelty in one case may not amount to cruelty in another

case. It is a matter to be decided in each case having regard to the facts and

circumstances of that case. If it is a case of accusations and allegations, regard

must also be had to the context in which they were made."

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Honorable Apex Court, in the case of Praveen Mehta v. Inderjit Mehta

reported in (2002) 5 SCC 706, defined cruelty as under:

"Cruelty for the purpose of Section 13 (1) (ia) is to be taken as a behaviour by

one spouse towards the other, which causes reasonable apprehension in the

mind of the latter that it is not safe for him or her to continue the matrimonial

relationship with the other. Mental cruelty is a state of mind and feeling with

one of the spouses due to the behaviour or behavioural pattern by the other.

Unlike the case of physical cruelty, mental cruelty is difficult to establish by

direct evidence. It is necessarily a matter of inference to be drawn from the

facts and circumstances of the case. A feeling of anguish, disappointment and

frustration in one spouse caused by the conduct of the other can only be

appreciated on assessing the attending facts and circumstances in which the

two partners of matrimonial life have been living. The inference has to be

drawn from the attending facts and circumstances taken cumulatively. In case

of mental cruelty it will not be a correct approach to take an instance of

misbehaviour in isolation and then pose the question whether such behaviour

is sufficient by itself to cause mental cruelty.

In Sobha Rani v. Madhukar Reddi, (1988) 1 SCC 105). To constitute

cruelty, the conduct complained of should be "grave and weighty" so as to come

to the conclusion that the petitioner spouse cannot be reasonably expected to

live with the other spouse. It must be something more serious than "ordinary

wear and tear of married life". The conduct taking into consideration the

circumstances and background has to be examined to reach the conclusion

whether the conduct complained of amounts to cruelty in the matrimonial law.

Conduct has to be considered, as noted above, in the background of several

factors such as social status of parties, their education, physical and mental

conditions, customs and traditions.

With regard to the ground of Desertion following the decision in

Bipinchandra Jaisinghbai Shah v. Prabhavati, AIR 1957 SC 176 Honorable

Supreme Court reiterated the legal position in Lachman Uttamchand

Kirpalani v. Meena, AIR 1964 SC 40 by holding that in its essence desertion

means the intentional permanent forsaking and abandonment of one spouse by

the other without that other's consent, and without reasonable cause. For the

offence of desertion so far as the deserting spouse is concerned, two essential

conditions must be there (1) the factum of separation, and (2) the intention to

bring cohabitation permanently to an end (animus deserendi). Similarly two

elements are essential so far as the deserted spouse is concerned: (1) the

absence of consent, and (2) absence of conduct giving reasonable cause to the

spouse leaving the matrimonial home to form the necessary intention aforesaid.

For holding desertion as proved the inference may be drawn from certain facts

which may not in another case be capable of leading to the same inference;

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that is to say the facts have to be viewed as to the purpose which is revealed by

those acts or by conduct and expression of intention, both anterior and

subsequent to the actual acts of separation."

In Naveen Kohli v. Neelu Kohli, (2006) 4 SCC 558, their Lordships of

the Honorable Supreme Court held:

A law of divorce based mainly on fault is inadequate to deal with a broken

marriage. Under the fault theory, guilt has to be proved; divorce courts are

presented with concrete instances of human behaviour as to bring the

institution of marriage into disrepute.

We have been principally impressed by the consideration that once the

marriage has broken down beyond repair, it would be unrealistic for the law

not to take notice of that fact, and it would be harmful to society and injurious

to the interests of the parties. Where there has been a long period of

continuous separation, it may fairly be surmised that the matrimonial bond is

beyond repair. The marriage becomes a fiction, though supported by a legal tie.

By refusing to sever that tie the law in such cases do not serve the sanctity of

marriage; on the contrary, it shows scant regard for the feelings and 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.

Since there is no acceptable way in which a spouse can be compelled to

resume life with the consort, nothing is gained by trying to keep the parties tied

for ever to a marriage that in fact has ceased to exist.

Some jurists have also expressed their apprehension for introduction of

irretrievable breakdown of marriage as a ground for grant of the decree of

divorce. In their opinion, such an amendment in the Act would put human

ingenuity at a premium and throw wide open the doors to litigation, and will

create more problems that are sought to be solved.

The other majority view, which is shared by most jurists, according to

the Law Commission Report, is that human life has a short span and

situations causing misery cannot be allowed to continue indefinitely. A halt has

to be called at some stage. Law cannot turn a blind eye to such situations, nor

can it decline to give adequate response to the necessities arising therefrom.

When we carefully evaluate the judgment of the High Court and

scrutinize its findings in the background of the facts and circumstances of this

case, then it becomes obvious that the approach adopted by the High Court in

deciding this matter is far from satisfactory.

A catena of cases including Savitri Pandey v. Prem Chandra Pandey,

2002 (1) AWC 4729 (SC). Chetan Das v. Kamala Devi, AIR 2001 SC 1709,

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Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42, Shyam Sunder Kohli v.

Sushma Kohli, AIR 2004 SC 5111, Anil Kumar Jain v. Maya Jain (2009) 10

SCC 415 and V. Bhagat v. Mrs D. Bhagat, AIR 1994 SC 710, referred to

demonstrate that irretrievable breakdown of marriage is unavailable as a

ground by itself to dissolve it. It is submitted that cruelty is based on fault

theory that has to be established.

Patna High Court Manisha Sahay vs Sanjay Kumar Sinha on 31 August,

2012 Law is clearly laid down in Section 13A of the Hindu Marriage Act that

alternative relief in a divorce proceeding can be granted on some of the grounds

mentioned in Sub-section (1) of Section 13 provided it is found just to do so

instead of granting the relief claimed in a divorce proceeding. This power has to

be exercised sparingly and rarely only to advance cause of justice, such as

when from the circumstances the court finds that the marriage has not broken

down irretrievably and needs to be given a chance. This is one of the

illustrations where the court may exercise power under Section 13A and

instead of granting a decree of divorce as asked for, may decide to grant

alternative relief by way of decree for judicial separation. It would be unjust

and contrary to Section 13 (1) to grant a decree of judicial separation in a case

where the applicant has failed to make out any ground for grant of divorce. It is

always to be kept in mind that decree of judicial separation relieves the

beneficiary of such decree from the ordinary obligation to cohabit with the

spouse. Such decree has great significance because under Section 13 (1A) of

the Hindu Marriage Act either of the party to a marriage is entitled to seek

divorce on the ground that there has been no resumption of cohabitation

between the parties for a period of one year or upwards after the passing of a

decree for judicial separation. Patna High Court MA No.687 of 2009 dt.31-08-

2012 12/ 13 Hence, grant of a decree for judicial separation requires serious

deliberations because its implications are serious.

Chetan Dass Appellant vs Kamla Devi Respondent

Matrimonial matters are matters of delicate human and emotional

relationship. It demands mutual trust, regard, respect, love and affection with

sufficient play for reasonable adjustments with the spouse. The relationship

has to conform to the social norms as well. The matrimonial conduct has now

come to be governed by Statute framed, keeping in view such norms and

changed social order. It is sought to be controlled in the interest of the

individuals as well as in broader perspective, for regulating matrimonial norms

for making of a well knit, healthy and not a disturbed and porous society.

Institution of marriage occupies an important place and role to play in the

society, in general. Therefore, it would not be appropriate to apply any

submission of irretrievably broken marriage as a straight jacket formula for

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grant of relief of divorce. This aspect has to be considered in the background of

the other facts and circumstances of the case.

Learned counsel for the respondent submits that in certain situations,

relief would be denied to the petitioner where it is found that he is taking

advantage of his own wrong for the purposes of making out a case to obtain the

decree. He has drawn our attention to Section 23(1) Clauses

(a), (b) and (e) of the Hindu Marriage Act which are quoted below:-

23. Decree in proceedings.- (1) In any proceeding under this Act, whether

defended or not, if the Court is satisfied that

(a) any of the grounds for granting relief exists and the petitioner except in

cases where the relief is sought by him on the ground specified in sub-clause

(a), sub-clause

(b) or sub-clause (c) of clause (ii) of Section 5 any way taking advantage of his

or her own wrong or disability for purpose of such relief, and

(b) where the ground of the petition is the ground specified in clause (i) of sub-

section (1) of Section 13, the petitioner has not in any manner been accessory

to or connived at or condoned the act or acts complained of or where the

ground of the petition is cruelty the petitioner has not in any manner condoned

the cruelty, and

(c)

(d)

(e) there is no other legal ground why relief should not be granted, then, and in

such a case, but not otherwise, the Court shall decree such relief accordingly.

In the present case, the allegations of adulterous conduct of the appellant have

been found to be correct and the courts below have recorded a finding to the

same effect. In such circumstances, in our view, the provisions contained

under Section 23 of the Hindu Marriage Act would be attracted and the

appellant would not be allowed to take advantage of his own wrong. Let the

things be not misunderstood nor any permissiveness under the law be inferred,

allowing an erring party who has been found to be so by recording of a finding

of fact in judicial proceedings, that it would be quite easy to push and drive the

spouse to corner and then brazenly take a plea of desertion on the part of the

party suffering so long at the hands of the wrong-doer and walk away out of the

matrimonial alliance on the ground that marriage has broken down. Lest the

institution of marriage and the matrimonial bonds get fragile easily to be

broken which may serve the purpose most welcome to the wrong-doer who, by

heart, wished such an outcome by passing on the burden of his wrong-doing to

the other party alleging her to be the deserter leading to the breaking point.

In Samar Ghosh vs Jaya Ghosh, (2007) 4 SCC 511 heir Lordships of

the Apex Court laid down instances of cruelty as follows:

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Apart from this, the concept of mental cruelty cannot remain static; it is

bound to change with the passage of time, impact of modern culture through

print and electronic media and value system etc. etc. What may be mental

cruelty now may not remain a mental cruelty after a passage of time or vice

versa. There can never be any strait-jacket formula or fixed parameters for

determining mental cruelty in matrimonial matters. The prudent and

appropriate way to adjudicate the case would be to evaluate it on its peculiar

facts and circumstances while taking aforementioned factors in consideration.

No uniform standard can ever be laid down for guidance, yet we deem it

appropriate to enumerate some instances of human behaviour which may be

relevant in dealing with the cases of 'mental cruelty'. The instances indicated in

the succeeding paragraphs are only illustrative and not exhaustive.

(i) On consideration of complete matrimonial life of the parties, acute mental

pain, agony and suffering as would not make possible for the parties to live

with each other could come within the broad parameters of mental cruelty.

(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it

becomes abundantly clear that situation is such that the wronged party cannot

reasonably be asked to put up with such conduct and continue to live with

other party.

(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent

rudeness of language, petulance of manner, indifference and neglect may reach

such a degree that it makes the married life for the other spouse absolutely

intolerable.

(iv) Mental cruelty is a state of mind. The feeling of deep anguish,

disappointment, frustration in one spouse caused by the conduct of other for a

long time may lead to mental cruelty.

(v) A sustained course of abusive and humiliating treatment calculated to

torture, discommode or render miserable life of the spouse.

(vi) Sustained unjustifiable conduct and behaviour of one spouse actually

affecting physical and mental health of the other spouse. The treatment

complained of and the resultant danger or apprehension must be very grave,

substantial and weighty.

(vii) Sustained reprehensible conduct, studied neglect, indifference or total

departure from the normal standard of conjugal kindness causing injury to

mental health or deriving sadistic pleasure can also amount to mental cruelty.

(viii) The conduct must be much more than jealousy, selfishness,

possessiveness, which causes unhappiness and dissatisfaction and emotional

upset may not be a ground for grant of divorce on the ground of mental cruelty.

(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life

which happens in day to day life would not be adequate for grant of divorce on

the ground of mental cruelty.

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(x) The married life should be reviewed as a whole and a few isolated instances

over a period of years will not amount to cruelty. The ill-conduct must be

persistent for a fairly lengthy period, where the relationship has deteriorated to

an extent that because of the acts and behaviour of a spouse, the wronged

party finds it extremely difficult to live with the other party any longer, may

amount to mental cruelty.

(xi) If a husband submits himself for an operation of sterilization without

medical reasons and without the consent or knowledge of his wife and similarly

if the wife undergoes vasectomy or abortion without medical reason or without

the consent or knowledge of her husband, such an act of the spouse may lead

to mental cruelty.

(xii) Unilateral decision of refusal to have intercourse for considerable period

without there being any physical incapacity or valid reason may amount to

mental cruelty.

(xiii) Unilateral decision of either husband or wife after marriage not to have

child from the marriage may amount to cruelty.

(xiv) Where there has been a long period of continuous separation, it may fairly

be concluded that the matrimonial bond is beyond repair. The marriage

becomes a fiction though supported by a legal tie. By refusing to sever that tie,

the law in such cases, does not serve the sanctity of marriage; on the contrary,

it shows scant regard for the feelings and emotions of the parties. In such like

situations, it may lead to mental cruelty.

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Paper Presented by :: Sri N.Ramesh Babu,

VIII Addl. District Judge,

Vijayawada.

No Fault Divorce

A no fault divorce refers to a type of divorce in which the spouse that is filing for

divorce does not have to prove any fault on the part of the other spouse. All a

spouse has to do is give any reason that the state honors for the divorce. The

most commonly given reason is "irreconcilable differences" or an "irreparable

breakdown of the marriage." These are just fancy ways of saying that the

couple does not get along and that the marital relationship cannot be repaired.

A spouse cannot object to another's petition for no fault divorce, as that

objection itself is viewed by the court as an irreconcilable difference.

No-Fault Divorce is a divorce in which the dissolution of a marriage does

not require a showing a wrongdoing by either party. Laws providing for no-

fault divorce allow a family court to grant divorce in response to a petition by

either party of the marriage without requiring the petitioner to provide evidence

that the defendant has committed a breach of the marital contract.

Sec.13 B of the Hindu Marriage Act 1955 deals with divorce under No-

Fault theory. It reads as under :

13-B Divorce by mutual consent:- 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 (68 of 1976), on the ground that they have been

living separately for 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 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 decree.

2.A joint petition by both the parties is necessary for obtaining divorce by

mutual consent. If all the ingredients of Sec.13 B are made out and satisfied,

the court has no other option except to accept the prayer for dissolution of

marriage by a decree of divorce. All other temporary actions or activities in the

court hall are immaterial and alien for consideration. The same was observed

in K.S.Subramaniyan Vs V. Vasanthi Devi reported in 2002(2) CCC 153

(Madaras).]

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In Hitesh Narendra Doshi Vs J.Sal Hitesh reported in 2000(2) ALT 609 it

has been observed that the minimum of six months period wait from the date

of presentation of petition is mandatory and not directory and that the court

has no power to relax the said compulsory time wait.

But in Arvind Sarma Vs Dara Sarma reported in 1998 (1) CCC page 22

(Delhi) it has been observed that the statutory period of six months can be

waived even though the provision is mandatory in form but it is directory in

substance.

In Rupa Ashok Hurra Vs Ashok G Hurra reported in 1997(4) CCC page

243 (Gujarath) it has been observed that either party is entitled to withdraw

the consent at any time before the decree is passed and it need not be during

interregnum of six months to 18 months and that the dissolution of marriage is

effective from the date of decree but not from the date of application.

In Thankam Vs Rajan reported in 1999(3) ALT 3.2 (DN OHC) it has been

observed that a wife continuous to be the wife till the marital time is broken by

a decree of divorce and that the wife is entitled to inherit the properties of her

husband inspite of death of a husband during the pendency of a petition for

divorce by mutual consent.

All states recognize no fault divorces, but some states require that the

spouses live separately for a designate period of time before either of them can

file for a divorce.

Fault Divorce:

Fault divorces are not as common, and in fact, most states no longer even

recognize them. In the states that do recognize them, one of the spouses

requests that a divorce be granted based on some fault of the other spouse.

Although all states have no-fault grounds, some spouses will file based on

3

specific fault grounds. They may do so because they may not have met the

period of separation required for no-fault grounds or because they derive some

other benefit from it. The spouse alleging fault grounds is responsible for

proving it to the court. Fault grounds are based on state law and defined there.

However some common fault-based grounds for divorce include: Cruel and

Inhuman Treatment.

This term is defined under state law. However, it usually requires more

than simple misconduct or incompatibility. Instead, the conduct must usually

be to such an extreme that continued cohabitation threatens the other

spouse’s physical or mental health. Ongoing physical or emotional abuse may

be proof of this ground.

Adultery:

Adultery is a common fault-based ground for divorce. However, state law may

vary on what is considered adultery. For example, some states specify that

14

adultery involves the physical act of sexual intercourse in order to qualify as

such. Adultery is often proven with circumstantial evidence, such as showing

that a spouse and a third party were romantically attached and had the

opportunity to commit adultery. Judges must often decide whether or not

adultery has occurred by the totality of the circumstances. There are specific

defenses to adultery, such as being guilty of the same conduct or forgiving the

conduct and resuming sexual relations with the adulterous spouse.

Incarceration:

The state statute may allow for fault-based divorce if a spouse is incarcerated

for a specific amount of time, such as over one year.

Insanity:

If a spouse is confined for mental illness for a certain period of time in

accordance with state law, this may be grounds for divorce.

Abandonment

Another fault-based ground that may be recognized by the state is

abandonment or desertion. The statute regarding this ground usually specifies

the amount of time that has lapsed since the spouse abandoned the other,

usually for a year or more.

Abandonment occurs when one spouse voluntarily leaves the other with

the intent to desert him or her. The clock on the required timeframe begins

once the

4.

spouse has abandoned the other. Reconciling and then parting ways again may

or may not defeat this ground, depending on state law. Substance Abuse

Some states allow for fault grounds based on habitual drunkenness or drug

addiction

Impotence

If one or both partners are not able to perform sexually, the state may allow

this reason for divorce. Benefit of Proving Fault

In some states, proving fault can impact the financial outcome of a divorce. For

example, if a judge finds that a spouse commit adultery and used marital

assets to supplement a lover’s lifestyle, he or she may consider this fact when

determining how to distribute property or how much alimony to award. In

some states, a spouse is ineligible for alimony if he or she committed adultery

or was proven to be abusive in the relationship.

Defenses to a Fault Divorce

Unlike a no fault divorce, a spouse can object to a fault divorce by

disproving or presenting a defense to the fault complained of. The following is a

list of common fault divorce defenses:

Connivance is an absolute defense to adultery. Connivance alleges that

the complaining spouse agreed to and even participated in the infidelity. It

15

makes sense that a couple who voluntarily participates in group sex cannot

then go and complain of adultery. Similarly, a spouse who prostitutes the other

or who facilitates the other's infidelity cannot thereafter claim adultery as

grounds for divorce.

Condonation is a claim that the other spouse knew about the complained

of conduct, forgave such conduct, and resumed the marital relationship. This

is typically used to defend an adultery accusation.

Recrimination is when the complaining spouse is equally at fault or

engaged in similar conduct. For example, if both spouses had affairs, neither

one would be able to use adultery as grounds for a fault divorce.

Provocation is where one spouse is enticed by the other spouse to act in

a certain way. For example, where one spouse abuses the other spouse, which

forces that other spouse to leave the marital home, the abusive spouse

5

would not be able to then use abandonment as grounds for divorce, since

it was his or her abuse that caused the other spouse to leave.

Collusion refers to an agreement between both of the spouses to fabricate

the grounds for divorce. If one of the spouses changes his or her mind,

collusion could be raised to lessen the original grounds for the fault divorce.

Proving any of these defenses can be costly, timely, and often involves the use

of witnesses. Furthermore, courts have an interest in not forcing people to stay

married who don't want to be married, and so usually grant divorces to people

who ask, despite defenses given by the other spouse. These reasons typically

defer people from attempting defenses.

No state requires the spouses seeking a fault divorce to live apart for a

specific period of time, unlike a no fault divorce. Proving fault also often

provides the spouse without fault with a larger portion of the marital property or

support. These two characteristics make a fault divorce more attractive to some

people.

Comparative Rectitude

When both spouses seek a fault divorce and can both prove the other

spouse is at fault, the court decides which one is least at fault. That party will

be granted the divorce. This is called "comparative rectitude." This doctrine was

created to address the problem of courts granting neither party a divorce if they

were both at fault. Courts have a public policy interest in not forcing two

people to stay married if they don't want to be.

Divorce Orders of One State, Valid in All States

Courts of all states like to honor decisions made by courts of other states,

because courts want the same respect paid to their decisions. Therefore, going

back to the preceding example, if your spouse files in Illinois, this divorce and

all of the court orders related to it, apply to you in your Missouri home.

16

However, the court may not have personal jurisdiction over the nonresident spouse

at the time of the divorce proceeding, rendering certain court decisions invalid.

A lack of personal jurisdiction means that although the divorce decree is valid,

other related decisions, such as child custody, support, and property division,

may be invalid. The concepts of a no fault divorce and a fault divorce are state-

specific and can also be confusing

6

Sec.13 of The Hindu Marriage Act, 1955 deals with the divorce under Fault

theory.

Sec.13 Divorce: Any marriage solemnized, whether before or after the

commencement of this Act, on a petition presented by either the husband or

the wife, be dissolved by a decree of divorce on the ground that the other

party:-

(I) has, after the solemnization of the marriage, had voluntary sexual

intercourse with any other person other than his or her spouse; or

(ia) has after solemnization of the marriage, treated the petitioner

with cruelty, or

(ib) has deserted the petitioner for a continuous period of not less

than two years immediately preceding the presentation of the petition; or

(ii) has ceased to be a Hindu by conversion to another religion; or

(iii) has been incurably of unsound mind, or has been suffering continuously or

intermittently from mental disorder of such a kind and to such an extent that

the petitioner cannot reasonably be expected to live with the respondent.

Explanation:- in this clause

(a) the expression “mental disorder” means mental illness, arrested or

incomplete development of mind, psycholpathic disorder or any other disorder

or disability of mind and includes schizophrenia;

(b) the expression “physhopathic disorder” means a persistent disorder or

disability of mind whether or not including sub-normality of intelligence) which

results in abnormally aggressive or seriously irresponsible conduct on the part

of the other party, and whether or not, it requires or is susceptible to medical

treatment; or)

(iv) has been suffering from virulent and incurable form of leprosy; or

(v) has been suffering from veneral disease in a communicable form; or

(vi) has renounced the world by entering any religious order; or

(vii) has not been heard of as being alive for a period of seven years or more by

those persons who would naturally have heard of it, had that party been alive.

Explanation:- In this sub-section, the expression “desertion” means the

desertion of the petitioner by the other party to the marriage without

reasonable cause and without the consent or against the wish of such party,

and includes the willful neglect of the petitioner by the other party of the

17

marriage, and its grammatical variations and cognate expressions shall be

constructed accordingly

7

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) 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 proceedings to which they were

parties.

2. A wife may also present a petition for the dissolution of her marriage by a

decree of divorce on the ground:-

(I) in the case of any marriage solemnized before the commencement of this Act,

that the husband had married again before such commencement or that any

other wife of the husband married before such commencement was alive at the

time of the solemnization of the marriage of the petitioner:

Provided that in either case the other wife is alive at the time of the

presentation of the petition; or

(ii) that the husband has, since the solemnization of the marriage, been guilty

or rape, sodomy or (bestiality; or)

(iii) that in a suit under Section 18 of the Hindu Adoptions and Maintenance

Act, 1956 (78 of 1956) or in a proceeding under Section 125 of the Code of

Criminal Procedure, 1973 (2 of 1974) or under the corresponding Section 488

of the code of criminal procedure, 1898 (5 of 1898) a decree or order, as the

case may be has been passed against the husband awarding maintenance to

the wife notwithstanding that she was living apart and that since the passing of

such the decree or order, co-habitation between the parties has not been

resumed for one year or upwards; or

(iv) that her marriage (whether consummated or not) was solemnized before she

attained the age of fifteen years and she has repudiated the marriage after

marriage after attaining that age before attaining the age of eighteen years.

Explanation:- This clause applied whether the marriage was solemnized before

or after the commencement of the Marriage Laws (Amendment) Act,1976 (68 of

1976).

In Navin Kohili Vs Neelu Kohili reported in 2006 (3) SCJ Page 673 it has been

observed that in Physical cruelty there can be tangible and direct evidence but

in case of mental cruelty, there may not be direct evidence and so the courts

are

18

8

required to probe into mental process and mental effect of incidents that are

brought out in evidence and that in order to constitute cruelty, the conduct

complained of should be grave and weighty so as to come to conclusion that

the petitioner spouse cannot be reasonably expected to live with other spouse

and that it must be something more serious than ordinary ware and tare of

married life.

In Nelam Kumar Vs Dayarani reported in 2010(5) SCJ Page 567 it has been

observed that irretrievable brake down of marriage is not a ground for divorce

as it is not contemplated under Section 13 the Hindu Marriage Act 1956.

In Smt. Sangamitra Singh Vs Kilash Candra Singh reported in AIR 2001 Orrisa

page 151 it has been observed that desertion is not withdrawal from the place

of abode but from the state of things. An intention to snap the tie of

sacrosanct marriage for all times to come has to be apparent from the conduct

and that if a spouse abandoned the other for a temporary period under certain

circumstances without intending to cease the cohabitation permanently, it

would not amount to dissertation.

In Mrs. Imartha Devi Vs Deepchand reported in 2000(1) CCC page 157

(Rajasthan) it has been observed that in order to prove the adultery by wife it is

not necessary for the husband to prove with whom his earring wife had illicit

relations and that it is enough for him to prove that she was leading an

adulterous life.

19

Paper Presented by :: Sri B.Papi Reddy,

XVI Addl. District Judge,

Nandigama.

Divorce means the dissolution of a valid marriage in law, it is an extreme

step and an end to a marital bond, after divorce the parties are free to remarry

either immediately or after a certain period of time. The system of divorce

introduced in India in the 19th century. It was introduced for Hindus in 1955 in

the form of the Hindu Marriage Act 1955, prior to this enactment there were

Acts in some of the States providing for divorce in certain circumstances,viz.,

the Bombay Hindu Divorce Act, the Madras Hindu (Bigamy,Prevention and

Divorce) Act, the Saurashtra Hindu Divorce Act but all these Acts were

repealed by Section 30 of the Hindu Marriage Act 1955. Under the Hindu

Marriage Act 1955 initially adultery, cruelty, and desertion were not made

grounds of divorce. These grounds were based on the fault theory of divorce. At

present, ‘Divorce’ is governed by different Acts among different communities in

India

The divorce under fault theory means the party who seeks the divorce

has to prove the fault of the opposite party, divorce under mutual consent

where no party has required to prove the fault of anybody is considered as

divorce under no fault theory, The Hindu Marriage Act, 1955 as amended by

the Marriage Laws (Amendment) Act, 1976 lays down nine grounds based on

guilt theory of divorce, those are adultery, cruelty, desertion for a continuous

period of not less than two years immediately preceeding the filing of the

petition, conversion to a non-Hindu religion; incurable insanity or mental

disorder, virulent and incurable leprosy, venereal disease in communicable

form, renounced the world by entering into any religious order and

presumption of death. Apart from this there are four additional grounds on

which wife alone can file petition for divorce on fault theory.

The Special Marriage Act, 1954 as amended by the Marriage Laws

(Amendment) Act, 1976 specified eight grounds based on fault theory on which

either party may seek divorce and two additional grounds on which wife alone

may seek divorce, i.e rape, sodomy or bestiality of the husband. The eight

grounds are adultery, desertion for at least three years, respondent

undergoing a sentence of imprisonment for seven years or more for an offence

under the Indian Penal Code, 1860, cruelty, venereal disease in a

communicable form, leprosy, incurable insanity or continuous or intermittent

mental disorder of such a kind and to such an extent that the petitioner cannot

reasonably be expected to live with the respondent, and presumption of death

(respondent not been heard of as alive for a period of seven years or more as

mentioned in section 107 of Indian Evidence Act).

20

As per Hindu law marriage is a sacred bond, that in olden days divorce

was considered as an evil, as devil‘s mischief, but due to change in the society

as joint family system was broken the divorce menace developed for one reason

or the other. Now according to this fault theory, if a party commits a

matrimonial offence the aggrieved party may file petition and seek divorce from

the delinquent spouse. It is only the matrimonial offence which is a ground of

divorce. No criminal offence, howsoever heinous is a ground for divorce.

Adultery, desertion and cruelty are considered as matrimonial offences. If the

respondent is not guilty of any of these offences divorce cannot be granted

against him even if he has committed the offence of murder, dacoity, cheating,

theft, treason, smuggling, black marketing or bribery-etc. A fault divorce is

usually taken by a spouse who wishes to be cleared the marriage bong by

proving the other's fault. The fault/offence theory stipulates two things those

are:

(i) A guilty party, i.e., the party who has committed one of the specified

matrimonial offences, and

(ii) an innocent party, who has been outraged and who has played no role in

the criminality or the matrimonial offence of the other party.

That as stated above in the fault theory one hand requires a guilty party,

i.e., commission of matrimonial offence on the part of one party to the

marriage, and, on the other hand, it implies that the other party is innocent,

i.e., in no way a party to, or responsible for, the offence of the guilty party. This

principle was taken very far in English law, that if both the parties

independently of each other committed matrimonial offence the marriage could

not be dissolved. For example if a petition is presented for divorce on the

ground of respondent‘s adultery and it is established that the petitioner is also

guilty of adultery, then the petitioner cannot be allowed divorce, this is known

as the doctrine of recrimination.

The Hon’ble Apex court in a decision reported in 2013 (9) SCC 1 between

DARSHAN GUPTA V/S RADHIKA GUPTA examined the divorce on fault theory

meticulously and held as under”

“[35] Despite our aforesaid conclusions, it is necessary to examine the instant

controversy from another point of view. As noticed herein above, it was the

vehement contention of the learned counsel for the respondent-wife, based on

the pleadings filed by Radhika Gupta, as also, the evidence produced by her,

that it was the husband Darshan Gupta alone, who was blameworthy of the

medical condition of the respondent. It was submitted, that Darshan Gupta

desires to encash on his own fault, by seeking dissolution of marriage, for a

consequence, of which he himself was blameworthy. The instant submission,

though not canvassed in that manner, can be based on a legal premise. A

perusal of the grounds on which divorce can be sought under Section 13(1) of

21

the Hindu Marriage Act, 1955, would reveal, that the same are grounds based

on the 'fault' of the party against whom dissolution of marriage is sought.

In matrimonial jurisprudence, such provisions are founded on the 'matrimonial

offence theory' or the 'fault theory'. Under this jurisprudential principle, it is

only on the ground of an opponent's fault, that a party may approach a

Court for seeking annulment of his/her matrimonial alliance. In other words, if

either of the parties is guilty of committing a matrimonial offence, the aggrieved

party alone is entitled to divorce. The party seeking divorce under the

"matrimonial offence theory" / the "fault theory" must be innocent. A

party suffering "guilt" or "fault" disentitles himself/herself from

consideration. Illustratively, desertion for a specified continuous period, is one

of the grounds for annulment of marriage. But the aforesaid ground for

annulment is available only, if the desertion is on account of the fault of the

opposite party, and not fault of the party which has approached the Court.

Therefore, if a husband's act of cruelty, compels a wife to leave her matrimonial

home, whereupon, she remains away from the husband for the stipulated

duration, it would not be open to a husband to seek dissolution of marriage, on

the ground of desertion. The reason being, that it is the husband himself who

was at fault, and not the wife”

That our Hon’ble High court while discussing the above decision

including other relevant case laws well explained the fault theory of divorce in a

case between SULOCHANA,D/O B ANANTA RAMULU V/S M RAMACHARI, S/O

LATE M NARSAIAH, Citation: 2017 LawSuit(Hyd) 181, Date of Decision: 09

March 2017 as under:

“[23] If we apply the aforementioned legal principles to the facts of the present

case, we have no hesitation to hold that in the absence of the respondent

proving cruelty against the appellant, the Court below has committed a serious

error in granting decree of divorce only on the ground of the parties living

separately for a long time and that by such separation, the marriage has

irretrievably broken down. In our opinion, though this ground may be

supplementary to any other substantive grounds mentioned under Section 13

of the Act, the same cannot be a stand alone ground. Otherwise, as observed

by the Supreme Court in Neela kumar (1 supra) and Darshan Gupta (3 supra),

an unscrupulous husband may be benefited by the grant of divorce based on

his own deeds and it encourages such unscrupulous husbands to drive away

their wives and secure divorce by pleading that the marriage has irretrievably

broken down. Though the respondent has made bald allegations against the

appellant of her leading colourful life and subjecting him to cruelty, he failed to

let in any evidence in support of his allegations. As observed herein before,

even the Family Court has not held anything against the appellant. On the

contrary, it has given a specific finding that the appellant has made out a

22

reasonable ground to live separately from the respondent. In the light of these

facts, we are of the opinion that the Family Court has committed a serious

error in dissolving the marriage on the ground of irretrievable breaking down of

the marriage between the parties. The respondent, having accepted the fact

that he has been living with one Laxmi thereby admitting his misdeed, cannot

be allowed to walk away with the advantage of securing dissolution of marriage

with the appellant, his legally wedded wife. In view of the same, the decree in

O.P.No.124 of 2006 cannot be sustained and the same is, accordingly, set

aside”.

That by the above decisions it is clear that to get a divorce on the fault

theory the party who seeks the relief must be innocent and the other party

must be at fault, the party who is at fault cannot seek any relief under this

theory but as per no fault theory neither of the parties required to prove the

guilt of the other, but as per section 13B of The Hindu Marriage Act,1955 both

parties have to submit divorce petition on the ground that they have been

living separately for a period of one year and they have not been able to live

together and they have mutually agreed for dissolution of marriage, further

they have to wait certain period as prescribed under section 13B but either of

the case no petition for divorce is maintainable within one year of the marriage

as per section 14 of the Act.

Some of the case laws

In a case between VISNU DUTT SHARMA V/S MANJU SHARMA reported

in 2009 AIR(SC) 2254 it was held as under:

“[11] On a bare reading of Section 13 of the Act, reproduced above, it is crystal

clear that no such ground of irretrievable breakdown of the marriage is

provided by the legislature for granting a decree of divorce. This Court cannot

add such a ground to Section 13 of the Act as that would be amending the Act,

which is a function of the legislature.

[12] Learned Counsel for the appellant has stated that this Court in some

cases has dissolved a marriage on the ground of irretrievable breakdown. In

our opinion, those cases have not taken into consideration the legal position

which we have mentioned above, and hence they are not precedents.A mere

direction of the Court without considering the legal position is not a precedent.

If we grant divorce on the ground of irretrievable breakdown, then we shall by

judicial verdict be adding a clause to Section 13 of the Act to the effect that

irretrievable breakdown of the marriage is also a ground for divorce. In our

opinion, this can only be done by the legislature and not by the Court. It is for

the Parliament to enact or amend the law and not for the Courts. Hence, we do

not find force in the submission of the learned Counsel for the appellant”.

23

In Chetan Dass v. Kamla Devi, 2001 4 SCC 250, the Hon’ble Apex Court had

observed as under:-

"Matrimonial matters are matters of delicate human and emotional relationship.

It demands mutual trust, regard, respect, love and affection with sufficient play

for reasonable adjustments with the spouse. The relationship has to conform to

the social norms as well. "

In Kohli Vs. Neelu Kohli reported in 2006 4 SCC 558 it is held as under:

"We have been principally impressed by the consideration that once the

marriage had broken down beyond, repair, it would be unrealistic for the law

not to take notice of the fact, and it would be harmful to society and injurious

to the interests of the parties. Where there has been a long period of

continuous separation, it may fairly be surmised that the matrimonial bond is

beyond repair. The marriage becomes a fiction, though supported by a legal tie.

By refusing to sever that tie, the law in such cases does not serve the sanctity

of marriage; on the contrary, it shows scant regard for the feelings and

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.

Since there is no acceptable way in which a spouse can be compelled to resume

life with the consort, nothing is gained by trying to keep the parties tied for ever

to a marriage that in fact has ceased to exist.

Some jurists have also expressed their apprehension for introduction of

irretrievable breakdown of marriage as a ground for grant of the decree of

divorce. In their opinion, such an amendment in the Act would put human

ingenuity at a premium and throw wide open the doors to litigation, and will

create more problems than are sought to be solved.

The other majority view, which is shared by most jurists, acceding to the Law

Commission Report, is that human life has a short span and situations

causing misery cannot be allowed to continue indefinitely. A halt has to be

called at some stage. Law cannot turn a blind eye to such situations, nor can it

decline to give adequate response to the necessities arising there from”.

24

Paper Presented by :: Sri G.Bhupal Reddy,

Chief Metropolitan Magistrate,

Vijayawada.

Introduction Divorce means dissolution of marriage by a competent court. The concept

of divorce is one that has become increasingly pertinent to today’s society.

People are bombarded by statistics about its rise and facts about the

decreasing stability of the nuclear family. Rate of divorce has increased so

rapidly over the past few decades.

Hindu Marriage is considered to be sacred one and the concept of

Divorce was unknown to our ancestry. Hindu marriage was once regarded as

an indissoluble union of the husband and wife. According to Manu smrithi a

wife cannot be released by her husband either by sale or by abandonment,

implying that the marital tie cannot be severed in anyway. 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.

But, according to Kautilya’s Arthashatra, marriage might be dissolved by

mutual consent in the case of the unapproved form of marriage. Therefore, the

concept of mututal consent for dissolving a marriage is not a new one as it was

recognized earlier which is evident from Kautilya’s Arthashatra. But, there is

no legal recognisation for dissolution of Hindu marriage till introduction of

Hindu Marriage Act, 1955.

When a spouse petitions for divorce, he or she usually has two options.

He or she can either ask for a divorce based on fault grounds or on no-fault

grounds.

Theories of Divorce There are certain theories for divorce which are known as fault theory, no

fault theory & irretrievable breakdown of marriage theory.

There are three following important enactments in India which deals

matrimonial disputes:

1. Hindu Marriage Act, 1955 2. The Special Marriage Act, 1954 3. Indian Divorce Act, 1869 Under the no-fault theory 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. The critics also say it leads to hasty

divorces and parties would dissolve their marriage even if there are slight

incompatibility of temperament.

25

Based on no fault theory, Section 13-B of Hindu Marriage Act was

introduced by way of amendment in 1976. This provision gives opportunity to

the spouses to file a petition for divorce on mututal consent. On the question of

how to ascertain continuing consent in a proceeding under Section 13B of the

Hindu Marriage Act, 1955, the decision of Supreme Court in Smt. Sureshta

Devi Vs. Om Prakash (1991) 2 SCC 25, gives considerable guidance. There are

three other requirements in sub-section;

(i) They have been living separately for a period of one year. (ii) They have not been able to live together, and (iii) They have mutually agreed that marriage should be dissolved. When using this ground for divorce, the spouses do not have to testify in

Court as to why their marriage has failed. They have to prove that they filed a

petition on mutual consent without any collusion and that they complied with

all the legal requirments as per Section 13-B of Hindu Marriage Act. The same

opportunity was given to spouses under Sec.28 of the Special Marriage Act,

1954 i.e., for divorce on mutual consent on fulfillment of the same

requirements.

Some of the grounds available under Hindu Marriage Act can be said to

be under the theory of frustration by reason of specified circumstances. These

include civil death, renouncement of the world etc.

Another theory of divorce is that of fault theory. Under this a marriage

can be dissolved only when either of the spouses committs a matrimonial

wrong. 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 is that if both parties have been at fault, there is no remedy available.

Under the Hindu Marriage Act, 1955 both the husband and the wife have

been given a right to get their marriage dissolved by a decree of divorce on more

than one grounds specifically enumerated in Section 13. Some of the grounds

initially inserted were substituted and some more grounds came to be added. It

was in the year 1964 that sub-section (1-A) was inserted by which either party

to the marriage was also given a right to apply for dissolution of marriage by a

decree of divorce either where there has been no resumption of cohabitation for

the period specified therein, after the passing of the decree for judicial

separation; or where there has been no restitution of conjugal rights for the

period specified therein, after the passing of the decree for judicial separation;

or where there has been no restitution of conjugal rights for the period

specified therein after the passing of a decree for restitution of conjugal rights.

Under Muslim law divorce is known as Talaq and it is an Arbic word and

it means ‘to set free’.

It is only in unavoidable circumstances that Talaq is permitted in Islam

as a lawful method to bring marriage contract to end.

26

The Shariah takes a very reasonable and realistic view of such a sad

situation where marriage becomes impossible to continue and all means fail to

bring the couple together, by permitting divorce as a last resort.

The Hindu Marriage Act originally recognized the fault grounds for

obtaining the decree of divorce. For this purpose nine fault grounds were

mentioned in the Act. Sec. 13(1) lays down these fault grounds, on which either

the husband or wife could sue for divorce. Two fault grounds have been dealt

with in the sec. 13(2), on which wife alone could seek the decree of divorce.

Section 13 of Hindu Marriage Act enumarates the following grounds to

seek divorce by either of the spouses.

Adultery– Whether the other party has, after the solemnization of the marriage

had voluntary sexual intercourse with any person other than his or her spouse;

The Hon’ble High Court of Delhi in Smt. Linda Constance Edwards vs Shri

William Edwards & Anr. 91 (2001) DLT 355, I (2001) DMC 746, defined the adultery as,

“according to divorce laws, adultery is voluntary sexual intercourse of a

married person with a person other than his or her spouse. Rayden defines it

as "Consensual sexual intercourse between a married person and a person of

the opposite sex not the other spouse, during the subsistence of marriage. It is

no more necessary that a person should continue living in adultery. Single act

of intercourse constitutes 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, 1955 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 get divorce.

The offence of adultery may be proved by: Circumstantial evidence Contracting venereal disease In Prateek Vohra vs Gautam Jana And Anr 2006 (5) ALT 226, the Hon’ble High

Court of Andhra Pradesh held as “Be that as it may, the petitioner filed O.P. No.

309 of 2004, seeking divorce. He attributed infidelity to the 2nd respondent.

Rule 6 of the Rules made under Hindu Marriage Act mandates that whenever

adultery is attributed, by a spouse, against the other, specific acts, together

with particulars of place, time, identity etc., must be furnished. The Rules also

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require that the person, who is said to have adulterous relations with the

spouse, must also be impleaded.”

In Rajee vs Baburao AIR 1996 Mad 262, 1996 (2) CTC 22, the Hon’ble High Court of

Madras held as, “the mere fact that husband considers the conduct of the wife

open to suspicion is not sufficient. The mere fact that a panchayat of the

community condemned the wife's conduct is not a ground for the Judge to base

his finding on the evidence before him, whether the wife was living in adultery.

Though direct evidence of adultery may not be possible from the nature of the

offence, there must be some evidence showing opportunity and desire to

commit the offence or access. Mere hole-and-corner tattle or bazar gossip will

not prove adultery. In general, we require corroboration to confirm the

testimony of the applicant regarding the material facts in issue and

corroboration is, as a rule, demanded in regard to alleged admission and

confessions. A decree for dissolution of marriage cannot be granted merely on

the ground that the respondent does not oppose the petition."

The standard of proof in case of adultery is like in a civil suit. A Three Judge

Bench of Hon’ble Supreme Court in Dr. N.G. Dastane vs Mrs. S. Dastane AIR

1975 SC 1534, (1975) 2 SCC 326 held as “The High Court of Australia in Wright v.

Wright 1948, 77 C.L.R. 191 at 210, has also taken the view that "the civil and

not the criminal standard of persuasion applies to matrimonial causes,

including issues of adultery". The High Court was therefore in error in holding

that the petitioner must establish the charge of cruelty "beyond reasonable

doubt". The High Court adds that "This must be in accordance with the law of

evidence", but we are not clear as to the implications of this observation”.

Cruelty– where the other party has after the solemnization of marriage, treated

the petitioner with cruelty as per section 13(1) (ia);

The concept of cruelty is a changing concept. The modern concept of cruelty

includes both mental and physical cruelty. Acts of cruelty are behavioral

manifestations stimulated by different factors in the life of spouses, and their

surroundings and therefore; each case has to be decided on the basis of its

own set of facts. While physical cruelty is easy to determine, it is difficult to say

what mental cruelty consists of. Perhaps, mental cruelty is lack of such

conjugal kindness, which inflicts pain of such a degree and duration that it

adversely affects the health, mental or bodily, of the spouse on whom it is

inflicted. The mental cruelty may be defined as ‘the state of mind.’ The Hon’ble

Supreme Court of India in Vishwanath Sitaram Agrawad v. Sau.Sarla

Vishwanath Agrawal 2012 (6) ALD 86 (SC) wherein at Para No.17, it was held

as "The expression 'cruelty' has an inseparable nexus with human conduct or

human behaviour. It is always dependent upon the social strata or the milieu

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to which the parties belong, their ways of life, relationship, temperaments and

emotions that have been conditioned by their social status".

Recently, the Division Bench decision of Hon'ble High Court of Judicature at

Hyderabad for the State of Telangana and the State of Andhra Pradesh in

Challa Surya Prabha Vs. Challa Divakar Venkata Ram 2017 (1) ALD 134 (DB), was

pleased to define the cruelty as, “Cruelty is not defined under the Hindu

Marriage Act, 1955, but it is an act of indifferent to or delighting in another's

pain. The Courts have described the cruelty in different cases differently

depending upon the facts and circumstances of each case. Cruelty may be

infinite variety. It can be subtle or brutal. It may be physical or mental. It may

be by words, gestures or by mere silence, violence or non-violence. That is the

reason why Courts have never tried to give an exclusive definition of cruelty in

matrimonial law. However, to constitute cruelty the acts or omissions must be

so serious to create reasonable apprehension in the mind of other spouse that

it is unsafe for one spouse to live with the other. The legal concept of cruelty

generally described as conduct of such character as to have caused danger to

life, limb or health (bodily or mental) or as to give rise to a reasonable

apprehension of such danger. Therefore, no hard and fast rule can be laid

down as to what acts or conduct will amount to cruelty in any given case.”

The Hon’ble Supreme Court of India in Savitri Pandey v. Prem Chandra

Pandey 2002 AIR (SC) 591, held as: "Cruelty has not been defined under the Act but

in relation to matrimonial matters it is contemplated as a conduct of such type

which endangers the living of the petitioner with the respondent. Cruelty

consists of acts, which are dangerous to life, limb or health. Cruelty for the

purpose of the Act means where one spouse has so treated the other and

manifested such feelings towards her or him as to have inflicted bodily injury,

or to have caused reasonable apprehension of bodily injury, or suffering or to

have injured health. Cruelty may be physical or mental. Mental cruelty is the

conduct of other spouse which causes mental suffering or fear to the

matrimonial life of the other. "Cruelty", therefore, postulates a treatment of the

petitioner with such cruelty as to cause a reasonable apprehension in his or

mind that it would be harmful or injurious for the petitioner to live with the

other party. Cruelty, however, 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 course of conduct which

would, in general, be dangerous for a spouse to live with the other. The

averments made in the petition and the evidence led in support thereof clearly

show that the allegations, even if held to have been proved, would only show

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the sensitivity of the appellant with respect to the conduct of the respondent

which cannot be termed more than ordinary wear and tear of the family life."

In Naveen Kohli v. Neelu Kohli 2006 AIR (SC) 1675, the Supreme Court held as: "To

constitute cruelty, the conduct complained of should be 'grave and weighty' so

as to come to the conclusion that the petitioner spouse cannot be reasonably

expected to live with the other spouse. It must be something more serious than

"ordinary wear and tear of married life".

The Hon'ble Supreme Court of India in K. Srinivas Rao Vs. D.A. Deepa 2013 (3)

ALD 11(SC) it was held as: “It is also to be noted that the appellant-husband and

the respondent- wife are staying apart from 27/4/1999. Thus, they are living

separately for more than ten years. This separation has created an

unbridgeable distance between the two. As held in Samar Ghosh, if we refuse

to sever the tie, it may lead to mental cruelty.”

The Hon'ble High Court of Bombay in Smt Madhavi Ramesh Dudani Vs.

Ramesh K. Dudani AIR 2006 Bombay 94 it was held as: “Now, as far as the relations

between the parties are concerned, they are sufficiently spoiled. The wife has

pointed out various acts of cruelty and ill-treatment including physical and

verbal abuse whereas the husband has pointed out that she was in the habit of

siphoning off his funds in his absence. He has also alleged an incident of

house-breaking after she walked out of the house. She had gone to the extent

of applying for impounding his passport after she started living apart. It is

alleged that she resorted to tarnishing his image by publishing their disputes

in newspapers. There are number of such instances relied by both the parties

and we do not think it necessary to place on record the precise particulars of

these allegations. Suffice it to say that it can be said that both the parties have

treated each other with such a conduct that it could be considered by the other

as the acts of cruelty.”

The Hon'ble High Court of Gujarat in Anilkumar Kanubhai Jaiswal Vs.

Heenaben http://indiankanoon.org/doc/63725912/, it was held: “The expression “Cruelty“

as envisaged under section 13 of the Act clearly admits in its ambit and scope

such acts which may even cause mental agony to aggrieved party. Intention to

be cruel is not an essential element of cruelty as envisaged under section 13 (1)

(ia) of the Act. It is sufficient that if the cruelty is of such type that it becomes

impossible for spouses to live together;

Some Instances of Cruelty are as follows–

1. False accusations of adultery or unchastity 2. Demand of dowry 3. Refusal to have marital intercourse 4. Refusal to have children

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Drunkenness

Threat to commit suicide

Spouse writing false complaints to employer of the counterpart

Removing Mangala Sutra

Beating children unnecessarily

The following may not amount to cruelty-

Ordinary wear & tear of married life

Wife’s refusal to resign her job

Desertion per se

Outbursts of temper without rancor. Desertion: Where the party has deserted the petitioner for a continuous period

of not less than two years immediately preceding the presentation of the

petition as per section 13(1)(ib) ;

Desertion means the rejection by one party of all the obligations of marriage-

the permanent forsaking or abandonment of one spouse by the other without

any reasonable cause and without the consent of the other. It means a total

repudiation of marital obligation.

The following 5 conditions must be present to constitute a desertion; they

must co-exist to present a ground for divorce:

The factum of separation

Intention to desert

Desertion without any reasonable cause

Desertion without consent of other party

Statutory period of two years must have run out before a petition is presented.

In Bipinchandra v. Prabhavati AIR 1957 SC 176, deserves particular notice. In

this case, it was also pointed out that leaving of matrimonial house is not a

necessary criterion for determining the desertion. The Supreme Court held that

where the respondent leaves the matrimonial home with an intention to desert,

he will not be guilty of desertion if subsequently he shows an inclination to

return & is prevented from doing so by the petitioner.

The Hon’ble Apex Court of India defined the desertion in Savitri Pandey vs

Prem Chandra Pandey https://indiankanoon.org/doc/325522/ as: "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 other's

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, therefore, means withdrawing from the

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matrimonial obligations, i.e., not permitting or allowing and facilitating the

cohabitation between the parties”.

The Hon’ble High Court of Andhra Pradesh in Chintala Venkata

Satyanarayana vs Chintala Syamala AIR 2003 AP 322, 2003 (3) ALD 637 it was held as:

“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 other's consent and without reasonable cause. In other words, it

is a total repudiation of the obligations of the marriage. Desertion is not

withdrawal from the place, but from a state of things. Desertion, therefore,

means withdrawing from the matrimonial obligations, that is to say, not

permitting or allowing and facilitating cohabitation between the parties.”

The Hon'ble High Court of Chhattisgarh in Anita Gupta Vs. Chandra

Shekhar Gupta LAWS (CHH) 2005-4-15 held as: “From bear reading of the above

provisions, it is manifest that for invoking the said provision for obtaining

decree following are the mandatory requirements - (I) desertion for continuous

period of two years or more preceding the presentation of the petition. (ii)

desertion should be without reasonable cause and without the consent or wish

of the party deserted. (iii) Willful neglect or to say separation with intent to

bring marital relation to an end.”

Recently, the Hon’ble High Court of Judicature at Hyderabad for the

State of Telangana and the State of Andhra Pradesh in Sulochana vs

M.Ramachari https://indiankanoon.org/doc/123262255/ it was held as: a party suffering

guilt or fault dis-entitles himself/herself from consideration. Illustratively,

desertion for a specified continuous period is one of the grounds for annulment

of marriage. But the aforesaid ground for annulment is available only, if the

desertion is on account of the fault of the opposite party, and not fault of the

party which has approached the Court. Therefore, if a husbands act of cruelty,

compels a wife to leave her matrimonial home, whereupon, she remains away

from the husband for the stipulated duration, it would not be open to a

husband to seek dissolution of marriage, on the ground of desertion.

Comparative Rectitude

When both spouses seek a fault divorce and can both prove the other spouse is

at fault, the court decides which one is least at fault. That party will be granted

the divorce. This is called "comparative rectitude." This doctrine was created to

address the problem of courts granting neither party a divorce if they were both

at fault. Courts have a public policy interest in not forcing two people to stay

married if they don't want to be.

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Defenses to a Fault Divorce

Unlike a no fault divorce, a spouse can object to a fault divorce by disproving or

presenting a defense to the fault complained of. The following is a list of

common fault divorce defenses:

Connivance is an absolute defense to adultery. Connivance alleges that the

complaining spouse agreed to and even participated in the infidelity. It makes

sense that a couple who voluntarily participates in group sex cannot then go

and complain of adultery. Similarly, a spouse who prostitutes the other or who

facilitates the other's infidelity cannot thereafter claim adultery as grounds for

divorce.

Condonation is a claim that the other spouse knew about the complained of

conduct, forgave such conduct, and resumed the marital relationship. This is

typically used to defend an adultery accusation.

Recrimination is when the complaining spouse is equally at fault or engaged in

similar conduct. For example, if both spouses had affairs, neither one would be

able to use adultery as grounds for a fault divorce.

Provocation is where one spouse is enticed by the other spouse to act in a

certain way. For example, where one spouse abuses the other spouse, which

forces that other spouse to leave the marital home, the abusive spouse would

not be able to then use abandonment as grounds for divorce, since it was his

or her abuse that caused the other spouse to leave.

Collusion refers to an agreement between both of the spouses to fabricate the

grounds for divorce. If one of the spouses changes his or her mind, collusion

could be raised to lessen the original grounds for the fault divorce.

Proving any of these defenses can be costly, timely, and often involves the use

of witnesses. Furthermore, courts have an interest in not forcing people to stay

married who don't want to be married, and so usually grant divorces to people

who ask, despite defenses given by the other spouse. These reasons typically

defer people from attempting defenses.

Residency Requirements for Filing for Divorce

Because state laws vary regarding fault divorce and no fault divorce, it is

important to understand where you or your spouse could potentially file for

divorce. Most states have a residency requirement, meaning that at least one of

the spouses must have been a resident of that state for a specified length of

time--usually six months to one year--in order to file for divorce there. However,

Washington, South Dakota, and Alaska have no required length of time. To file

in one of those states, you merely need to be a resident of that state at the time

you are filing.

It is in your best interest to have your divorce filed in the state you are living in.

Whichever court orders the divorce decree is the same court that must hear all

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other matters, including changes. For example, if your spouse files for and

receives a divorce in Illinois, and the two of you want to revise your child

custody arrangement, you must return to that Illinois court that granted the

initial.

Conversion– Where the party has ceased to be a Hindu by conversion to

another religion as per section 13(1)(ii);

When the other party has ceased to be Hindu by conversion to any other

religion for e.g. Islam, Christianity, Judaism, Zorostrianism, a divorce can be

granted.

The Hon’ble High Court of Andhra Pradesh in Reemana Kaushik vs Shobhit

Kaushik https://indiankanoon.org/doc/19672592/, held as: the Act applies only to the

marriages that take place between the parties, who profess Hinduism. The

importance of the continued obedience to Hindu religion by the parties is

evident from the fact that conversion of one of the spouses to another religion

by itself would constitute a ground for divorce.

Unsound mind– As per section 13(1)(iii), where the party has been

incurably of unsound mind, or has suffering continuously or intermittently

from mental disorder of such a kind and to such an extent that the petitioner

cannot reasonably be expected to live with the respondent.

Explanation–

In this clause-(a) the expression “mental disorder” means mental illness,

arrested or incomplete development of mind, psychopathic disorder or any

other disorder or disability of mind and include schizophrenia:

(b)the expression “psychopathic disorder” means a persistent disorder or

disability of mind(whether or not including sub-normality of intelligence) which

results in abnormally aggressive or seriously irresponsible conduct on the part

of the other party and whether or not it requires or insusceptible to medical

treatment;

Insanity as a ground of divorce has the following two requirements-

i) The respondent has been incurably of unsound mind

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.

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In Amarnadh Palacharla vs Venkatalaxmi Palacharla 2005 (5) ALD 763, 2005

(5) ALT 642 while dealing with unsoundness of mind it was held that it should be

of such a nature and extent that the spouse cannot reasonably expect to live

with the other.

In Kollam Padma Latha (Dr.) vs Kollam Chandra Sekhar (Dr.) 2007 (1)

ALD 598, 2007 (1) ALT 177 it was held as: Section 13(1)(iii)(a) and (b) of Hindu

Marriage Act, 1955 says divorce can be granted in case the spouse has been

incurably of unsound mind, or has been suffering continuously or

intermittently from mental disorder of such a kind and to such an extent that

the petitioner cannot reasonably be expected to live with the respondent.

(a) the expression "mental disorder" means mental illness, arrested or

incomplete development of mind, psychopathic disorder or any other disorder

or disability of mind and includes schizophrenia;

(b) the expression "psychopathic disorder" means a persistent disorder or

disability of mind (whether or not including sub-normality of intelligence)

which results in abnormally aggressive or seriously irresponsible conduct on

the part of the other party, and whether or not, it requires or is susceptible to

medical treatment.

Leprosy– As per section 13(1)(iv), It is a ground for divorce when a a

spouse has been suffering from a virulent and incurable form of leprosy.

The Hon’ble High Court of Andhra Pradesh in G.G. Padma Rao vs

Swarajya Lakshmi AIR 1970 AP 300 held as: "Leprosy is supposed to be curable

because treatment has to be taken for a very long time. No doctor can say that

any leprosy is absolutely incurable. Sometimes the treatment is carried on for

the rest of the life. This disease can be punctuated by relapses and reactions.”

But in appeal, the Hon’ble Apex Court of India in Swarajya Lakshmi vs G. G.

Padma Rao 1974 AIR 165, 1974 SCR (2) 97 held as: it is significant that judicial

separation is allowed if other party to a marriage has been suffering from a

virulent form of leprosy for a period of at least one year before the presentation

of the petition. In order, however, to be entitled to a decree of divorce a party

has to prove that his spouse has been suffering from a form of leprosy which is

not only virulent but also incurable and further that the spouse concerned has

been suffering from this ailment for a period of at least three years before the

presentation of the petition.

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Venereal disease– As per section 13(1)(v) where the other party has been

suffering from venereal disease in a communicable form;

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 and

it is not necessary that it should have been communicated to the petitioner

(even if done innocently).

In G. Anuradha vs G. Narayana Rao 1998 (2) ALD 158, 1998 (2) ALT 569 the

Hon’ble High Court of Andhra Pradesh discussed a decision of Hon’ble High

Court of Bombay as: If a party to a marriage is suffering from some abhorrent

disease such as leprosy or venereal disease and this is not disclosed it will be

definitely concealment and consequently fraud as to material fact and

circumstance.

In M. Vijaya vs Chairman And Managing Director 2001 (5) ALD 522, 2001 (5)

ALT 154 a Five Judge Bench of Hon’ble High Court of Andhra Pradesh

considered various enactments where under the incurable veneral disease is

ground for divorce and held as: We may also notice that Section 2 of

Dissolution of Muslim Marriage Act, 1939, Section 32 of Parsi Marriage

and Divorce Act, 1936, Section 10 of Indian Divorce Act, 1869, Section 13 of

Hindu Marriage Act, 1956 and Section 27 of the Special Marriage Act, 1955

make incurable veneral diseases of either of spouses a ground for divorce.

Renunciation of the world– As per section 13(1)(vi) has renounced the

world by entering any religious order; it means renounced the world regarded

tantamount to civil death and therefore, it is given as a ground for decree of

divorce. It doesn’t mean that a person becomes a sanyasi merely by the

declaring himself a sanyasi. “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 lays 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 and absolute.

Presumed death– where the other party has not been heard of as being

alive for a period of seven years or more by those persons who would naturally

have heard of it, had that party been alive; it means this clause provides that

the either party may seek divorce on this ground if the other party has not

been heard of as being alive, for a period of seven years or more by those

person who would naturally have heard of it, had that party been alive. Thus

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the aggrieved party may marry again and have legitimate children.[ii] Under the

Hindu Marriage Act, 1955 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. A decree of divorce

granted under this clause is valid and effective even if it subsequently

transpires that the respondent was in fact alive at the time when the decree

was passed.

There are four additional grounds for divorce available to only wife:

Bigamy– As per section 13(2)(1) a wife may also present a petition for

dissolution of marriage on the basis of by a decree of divorce on the ground

that in the case of any marriage solemnized before the commencement of this

Act, 1955, the husband has married again before such commencement or that

any other wife of the husband married before such commencement of alive at

the time of solemnization of marriage.

[iii] Rape, sodomy or bestiality : Under s. 13(2) (ii) of the Act a wife is

entitled to petition for divorce on the ground of rape, sodomy or bestiality

committed on her by the husband. Rape is also a criminal offence and defined

in s. 375 of the Indian Penal Code. A man is said to commit rape who has

sexual intercourse with a woman against her will, without her consent, with

her consent which is obtained by putting her in fear of death or of hurt, with

her consent when the man knows that he is not her husband and that her

consent is given because she believes that he is another man to whom she is or

believes herself to be lawfully married, or with or without her consent when she

is under sixteen years of age. Penetration is sufficient to constitute the sexual

intercourse necessary to the offence of rape. There is however one exception.

No rape is committed by the husband on the wife if she is over fifteen years of

age. Sodomy is committed by a person who has carnal copulation with a

member of the same sex or with an animal, or has non-coital carnal copulation

with a member of the opposite sex. Bestiality means sexual union by a human

being against the order of nature with an animal. The commission of these

offences by the husband must be proved by the wife either by witnesses as to

fact or by evidence of admission made by the respondent, such as a plea of

guilty of his trial. Though these are criminal offences, but mere evidence of

conviction for these offences is not sufficient to obtain a decree for divorce. In

divorce proceedings these offences are required to be proved b the wife de novo.

Where the wife is a consenting party to the commission of any of these offences,

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her evidence should not be accepted without corroboration.

[iv] Non resumption of cohabitation after decree or order of maintenance–

Where a decree for maintenance of wife under 18 of the Hindu Adoptions and

Maintenance Act 1956, or an order for maintenance of wife under section 125 of

Cr PC 1973, has been passed against the husband, the wife is entitled to

present a petition for divorce provided two conditions are satisfied. First, she

was living apart, and secondly, since the passing of such decree or order

cohabitation between her and her husband has not been resumed for at least

one year or upwards, decree of divorce would be granted.

Option of puberty– Wife is entitled to present a petition for divorce if her

marriage was solemnized before her attainment of the age of fifteen years

provided she has repudiated the marriage after attaining the age of fifteen years

but before attaining the age of eighteen years. But the petition may be

presented after completing eighteen years of age 13. In absence of a school

certificate, the parents are the best witnesses of the fact of the date of birth of

their children. Entries in a horoscope can be used to prove the date of birth

and also by examining the person who wrote it.

No fault theory of divorce:

Now Divorce can also be obtained on the basis of no fault theory, i.e., by

mutual consent of the parties to marriage in view of section 13-B (1)which is

introduced in 1976. Such a petition is required to be moved jointly by the

parties to marriage on the ground that they have been living separately for a

period of one year or more and they have not been able to live together and also

that they have agreed that marriage should be dissolved.

As per section 13-B (II) of the Act that on the motion of both the parties made

no earlier than six months after the date of the presentation of the petition

referred to in sub-section (I) given above 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 averments in the

petition are true, then pass a decree of divorce, declaring the marriage to be

dissolved with effect from the date of decree.

Essentials of divorce by mutual consent:

According to section 13-B, there are three essentials of divorce by mutual

consent-

That both the parties have been living separately for a period of one year or

more;

That both the parties have not been able to live together;

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That both the parties have mutually agreed that their marriage should be

dissolved.

It is an important to note that the consent must be free and not obtained by

force, fraud, as per section 23(1) of this Act.

The Karnataka High court in Krishna Murti Rao v. Kamalashi AIR 1983

Kant 235, ILR 1983 KAR 94 has said that on filling a petition jointly by the

wife and husband the following points are to be proved for getting a decree

under this section:-

The parties to marriage are living separately for a period of one year or more;

They could not live together;

They have reached a compromise that they would dissolved the marriage; and

That they have consented to divorce not under any force or fraud or undue

influence.

The couple is entitled to file divorce petition under Section 13-B of Hindu

Marriage Act of mutual consent only after six months , but before eighteen

months from the date of presentation of petition, will make proper enquiries as

it may deem fit. It is incumbent upon the Court to verify that the statements

made in the Petition are true. This requires the Court to verify, by examination

on oath, whether they have consented to dissolve their marriage, as stated in

Petition. After making necessary enquiry into the facts that marriage was

solemnized, that the parties have not withdrawn the joint petition in the

meantime, and that their consent continues, as stated in the Petition, on the

day of examining the parties on oath. The Court has to satisfy itself about the

genuineness of the averments in the petition and also to find out whether

the consent was not obtained by force, fraud or undue influence If the court is

satisfied that the consent of parties was not obtained by force, fraud or undue

influence and they have mutually agreed that the marriage should be dissolved,

it must pass a decree of divorce. Thereupon, the Court will declare by decree

that the marriages solemnized between the parties are dissolved. After

presentation of the Petition for divorce by mutual consent, either of the parties

may retract his or her consent at any time or at the time of examination on

oath and thereupon the Petition shall be dismissed.

In Smt. Sureshta Devi v. Om Prakash 1992 AIR 1904, 1991 SCR (1) 274,

the Apex Court has held that `living separately’ for a period of one year should

be immediately precede the presentation of the petition. It is necessary that

immediately preceding the presentation of petition, the parties must have been

living separately. The expression `living separately’, connotes not living like

husband and wife. It has no reference to the place of living. The parties may

live under the same roof by force of circumstances, and yet they may not be

living as husband and wife. The parties may be living in different houses and

yet they could live as husband and wife. What seems to be necessary is that

39

they have no desire to perform marital obligations and with that mental

attitude they have been living separately for a period of one year immediately

preceding the presentation of the petition. The meaning of the words in the Act

that they `have not been able to live together’ indicates the concept of broken

down marriage and it would not be possible to reconcile themselves.

In Ashok Hurra v. Rupa Bipin Zaveri

https://indiankanoon.org/doc/1222699/ the Supreme court held that

Suresshta Devi’s decision that “consent can be withdrawn at any time before

decree is passed” are to wide and requires reconsideration. In this case, the

petition for divorce by mutual consent was pending for a considerably long

period and the wife had not withdrawn her consent within 18 months from the

date of presentation of petition. Neither divorce decree could be passed nor

reconciliation could be brought about between the spouses. Moreover, during

the pendency of the divorce proceedings, the husband had contracted another

marriage and begot a child. Civil and criminal proceedings were also filed by

the spouses against each other during pendency of the suit. In view of the

above facts, the Supreme Court held:

The cumulative effect of the various aspect’s in the case indisputably point out

that the marriage is dead, both emotionally and practically and there is long

laps of years since the filling of the petition; existence of such a state of affairs

of warrant the exercise of the jurisdiction of this court under Articles 142 of the

constitution and grant a decree of divorce by mutual consent and dissolve the

marriage between the parties.

Irretrivocable-breakdown of marriage:

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.”

Such marriage should be dissolved with maximum fairness & minimum

bitterness, distress & humiliation. Irrespective of the three remedies available

to parties that is: restitution of conjugal rights, judicial separation and divorce,

the judiciary in India is demanding irretrievable breakdown of marriage as a

special ground for divorce, as sometimes courts face some difficulties in

granting the decree of divorce due to some of the technical loopholes in the

existing theories of divorce. Both the Supreme Court and Law Committee

consider the implementation of such a theory as a boon to parties who for one

or the other reasons are unable to seek the decree of divorce. Therefore, in the

opinion of the Supreme Court and Law Commission of India, it is very essential

to make it a special and separate ground mission that introduction of

irretrievable breakdown of marriage, as a special ground will do any public

good.

40

The Irretrievable breakdown theory of divorce is the fourth and the most

controversial theory in legal jurisprudence, based on the principle that

marriage is a union of two persons based on love affection and respect for each

other. If any of these is hampered due to any reason and if the matrimonial

relation between the spouses reaches to such an extent from where it becomes

completely irreparable, that is a point where neither of the spouse can live

peacefully with each other and acquire the benefits of a matrimonial relations,

than it is better to dissolve the marriage as now there is no point of stretching

such a dead relationship, which exist only in name and not in reality.

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, a Three Judge Bench of the Hon’ble Supreme Court of India in

Naveen Kohli v. Neelu Kohli (Supra), 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 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.

41

The Hon’ble Supreme Court of India in Manish Goel vs Rohini Goel 2010) 4 SCC

393 observed as hereunder:

“We are fully alive of the fact that this Court has been exercising the power

under Article 142 of the Constitution for dissolution of marriage where the

Court finds that marriage is totally unworkable, emotionally dead, beyond

salvage and has broken down irretrievably, even if the facts of the case do not

provide a ground in law on which the divorce could be granted. Decree of

divorce has been granted to put quietus to all litigations between the parties

and to save them from further agony.

Merits of irretrivokable breakdown theory:

The only merit of the theory as has been propounded by the jurists is that a

marriage, which in practice is considered to be sacramental institution, should

be based on grounds on which a sound marriage is built- that is tolerance,

adjustment and respecting each other. If any of the party to marriage is not

ready to live with the other party the relationship will not be a happy

relationship. Stretching such a relationship will do no good, rather will develop

hatred and frustration among the parties for each other. 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 of irretrivokable breakdown theory:

The Law Commission Of India in Chapter 4 of the 71st report has dealt in

detail the demerits of the irretrievable breakdown theory. 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.

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. Mostly, 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. Causes of divorce

and how it has evolved over the past three decade are issues that must be

addressed in order to understand this problem. While being surrounded with

marital separation, our society is left to ask many questions. What are some

factors that lead to divorce? What consequences or negative effects on adults

and children are created by this societal breakdown? What changes is divorce

42

causing in the family structure of society? How have divorce and marriage

rates changed over past 30 years? The dissolution of marriage is without a

doubt a problem for today’s society. It is probably one of the biggest

problems. Children of divorce are often left with scars that do not heal. Often

children from divorced families have a more difficult time establishing intimate

relationships. The stress has even been shown to cause difficulty in

performing school work for kids. These groups of children will form the future

familiesThere applicability differs from situation to situation. Therefore it is

very essential that the lawmakers of our country should deal with the subject

in a very cautious manner after considering in detail its future implications.

43

Paper Presented by :: Smt. U.Indira Priya Darshini,

IV Addl. Chief Metropolitan Magistrate,

Vijayawada.

Hindus consider marriage is a sacred bond, because it is bond of

indissoluble nature, the marriage is not define in Hindu marriage Act.

In any Society when the married persons feel that they cannot leave

together, they have no other alternative but to dissolve the marriage. Under

the Hindu Marriage Act, 1955 both Husband and the Wife have been given a

right to get their marriage dissolved by a decree of divorce on more than one

grounds specifically enumerated in Section 13 of the Act. The concept of

divorce is one that has become increasingly pertinent today Society. Rights of

divorce has been increasing so greatly over the past few decades.

Divorce was unknown to General Hindu Law as marriage was regarded

as an indissoluble union of the Husband and wife. Mano has been declared

that the wife cannot be released from her husband either by sale or by

abandonment, implying that the marital tie cannot served in any way.

FAULT AND NO FAULT THEORIES:-

There are Three important enactments in India which deals Matrimonial

disputes such as 1) Hindu Marriage Act, 1955, 2) Special Marriage Act, 1952,

3) Indian Divorce Act, 1869.

FAULT THEORY:-

The Act originally recognized the fault grounds for obtaining the decree of

divorce. For this purpose 9 grounds were mentioned in section 13(i) of the Act

these are all fault grounds, on which either the husband or wife could sue for

divorce. U/s.13(ii) two fault grounds have been dealt, on which wife alone could

seek the decree of divorce for sake convenience Section 13 of the Act re-

extracted below:-

SECTION 13 DIVORCE:- (1) Any marriage solemnized, whether before or after

the commencement of this Act, may, on a petition presented by either the

husband or the wife, by dissolved by a decree of divorce on the ground that the

other party -

(i) ADULTERY- has, after the solemnization of marriage, had voluntary

sexual intercourse with any person other than his or her spouse; or

(ia) CRUELTY:- has, after the solemnization of the marriage, treated the

petitioner with cruelty; or

(ib) DISSORTION:- has deserted the petitioner for a continuous period of

not less than two years immediately preceding the presentation of the petition;

or

(ii) CONVERSION:- has ceased to be a Hindu by conversion to another

religion; or

(iii) UNSOUND MIND:- has been incurably of unsound mind, or has been

suffering continuously or intermittently from mental disorder of such a kind

44

and to such an extent that the petitioner cannot reasonably be expected to live

with the respondent.

Explanation: - In this clause -

(a) the expression ‘mental disorder’ means mental illness, arrested or

incomplete

development of mind, psychopathic disorder or any other disorder or

disability of mind and includes schizophrenia;

(b) the expression ‘psychopathic disorder’ means a persistent disorder or

disability of mind(whether or not including sub-normality of

intelligence which

results in abnormally aggressive or seriously irresponsibly conduct on

the part

of the other party, and whether or not, it requires or is susceptible to

medical

treatment; or}

(iv) has {xxx} been suffering from a virulent and incurable form of leprosy;

or

(v) has {xxx} been suffering from venereal disease in a communicable form;

or

(vi) has renounced the world by entering any religious order; or

(vii) has not been heard of as being alive for a period of seven years or more

by

those persons who would naturally have heard of it; had that party been

alive.

{Explanation : - In this sub-sec., the expression “desertion” means the

desertion of the petitioner by the other party to the marriage without

reasonable cause and without the consent or against the wish of such party,

and includes the willful neglect of the petitioner by the other party to the

marriage, and its grammatical variations and cognate expressions shall be

construed accordingly}.

(2) A wife may also present a petition for the dissolution of her

marriage by a decree of divorce on the ground:-

(i) BYGAMY:- in the case of any marriage solemnized before the

commencement of this Act, that the husband had married again before such

commencement or that any other wife of the husband married before

such commencement was alive at the time of the solemnization of the

marriage of the petitioner Provided that in either case the other wife is alive at

the time of the presentation of the petition; or

(ii) RAPE, SODOMY OR BESTIALITY:- that the husband has, since the

solemnization of the marriage, been guilty of rape, sodomy or {bestiality; or}

{(iii) NONE RESUMPTION OF COHABITATION AFTER DECREE OR ORDER

OF MAINTENANCE:- that in a suit under Sec.18 of the Hindu, Adoptions and

Maintenance Act, 1956 (78 of 1956), or in a proceeding under Sec.125 of the

Code of Criminal Procedure, 1973 (2 of 1974) ( or under the corresponding

Sec.488 of the Code of Criminal Procedure, 1898 ( 5 of 1898)}; a decree or

order, as the case may be, has been passed against the husband awarding

45

maintenance to the wife notwithstanding that she was living apart and that

since the passing of such decree or order, cohabitation between the parties has

not been resumed for one year or upwards;

(iv) OPTION OF PUBERTY:- that her marriage (whether consummated or

not was solemnized before she attained the age of fifteen years and she has

repudiated the marriage after attaining that age but before attaining the age of

eighteen years.

Explanation:- This clause applies whether the marriage was solemnized

before or after the commencement of the Marriage Laws(Amendment) Act, 1976

(68 of 1976).

NO FAULT THEORY:- Under the no fault theory underlying rationale is that

since two persons can marry by their free wheel they should also be allowed to

move out of their relationship of their own free wheel. Based on no fault theory

sec.13(b) of Hindu Marriage Act was introduced in the year 1976, this provision

gives opportunity to spouses to file a petition for divorce on mutual consent.

Section 13(b) of the Act re-extracted below for the sake of convenience.

13-B. DIVORCE BY MUTUAL CONSENT:- (1) 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 (68 of 1976), on the ground that they

have been living separately for a period of one year or more, that they have not

been able to live together and that they have mutually agreed that the marriage

should be dissolved.

(2) On the motion of both the parties made not earlier than six months

after the date of the presentation of the petition referred to in sub-sec. (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}.

FAULT AND NO FAULT THEORY UNDER MUSLIM MARRIAGE: - Under

Muslim law the divorce known as Thalak it is Arabic word and it means set free

it is only in unavoidable circumstances that Thalak is permitted in Islam as a

lawful method – to bring marriage contract to end. Under Muslim marriage we

are all know that it is necessary condition for happy marital life, therefore

insists upon the subsistence of marriage and prescribe the breach of the

marriage – Contract should be avoided. The marriage may dissolve by Act of

God or by the Act of parties. Under Muslim marriage Nikah (Divorce) may take

place also by mutual consent of the husband and wife. The existence of any

46

prior agreement or delegation of authority by the husband is not necessary for

divorce by a common consent. It may take place any time whenever the

husband and wife feels that it is now impossible for them to live with mutual

love and affection as is desired by the God. A divorce by the mutual consent of

parties is a peculiar feature of Muslim.

CASE LAW:-

Neelam Kumar Vs. Dayarani 2010 (5) SCJ, 567 their lordship held

that Cruelty may be mental or physical intentional or unintentional – depends

upon type of life the parties are accustomed, their economic and social

conditions, their culture and human values they respect – Act complained of

whether ‘cruel’ or not to be determined on an overall consideration of facts – In

difference and frigidity towards wife, denial of company to her, hatred and

abhorrence for wife constitute mental cruelty, while acts of violence and

abstinence from sexual intercourse without reasonable cause constitutes

physical cruelty – Attempt to commit suicide by one spouse amounts to cruelty

to the others.

Vinita Sexena Vs. Pankaj Pandit 2006 (3) SCJ 163 their lordship held

that Mere proof of mental disorder does not suffice the legal requirement but it

should also be proved that the disorder is such that the wife cannot reasonably

be expected to live with the husband.

Usha Rani Vs. N.Sridhar 2003 (2) An.W.R.595 (D.B) (A.P.)= 2003 (3)

L.S.232 (D.B) their lordship held that ‘Desertion’ means intentional permanent

forsaking and abandonment of one spouse by the other without that others

consent and without reasonable cause – Total repudiation of obligations of

marriage – In the instant case, no evidence to show that the husband made

efforts to get his wife back – No mediators or letters to that effect – No proof of

desertion – Further statutory period of two years preceding the O.P not elapsed

– No divorce on this ground – Irretrievable break down of marriage not a

ground of divorce even after the Amendment Act of 1976 – Orders of the court

below set aside – Husband’s OP for divorce dismissed – Wife’s OP for restitution

of conjugal rights allowed – Both appeals allowed.

K.S.Subramanian Vs. V.Vasanthi Devi, 2002 (2) CCC 153 (Mad.) =

2002 (3) ALT 5.2 (DN OHC), their lordship held that joint petition for divorce –

When the ingredients of sub-sec.(1) of Section 13-B are satisfied, the court

below is bound to accept the petition and grant relief of divorce by mutual

consent. All other temporary actions or activities in the court hall are

immaterial and alien for consideration. All the ingredients of Section 13-B

having been made out and satisfied, the court has no other option except to

accept the prayer for dissolution of marriage by a decree of divorce – CRP was

allowed accordingly.

47

Hitesh Narendra Doshi Vs. Jesal Hitesh Doshi, 2000 (2) ALT 609 =

AIR 2000 A.P. 362 (D.B.), their lordship held that Divorce by mutual consent –

Minimum of 6 months wait from date of presentation of petition.

Mandatory and not directory. Court has no power to relax the said

compulsory time wait.

Smt. Suresta Devi Vs. Om Prakash 1991(2) SCC 25 their lordship held

that gives considerable guidance, there are three other requirements in Sub

section I) They have been living separately for a period of One year. II) They

have not been able to live together and III) they have mutually agreed that the

marriage should be dissolved.

When using this court for divorce the spouses do not have testy in court

as to why their marriage has failed. They have to prove that they filed a

petition on mutual consent without any collusion, and that they complied with

all the legal requirements as per section 13(b) of Hindu Marriage Act the same

opportunity was given to spouses u/s.28 of Special Marriage Act 1954. i.e. for

divorce and mutual consent on fulfillment of same requirement.

Smt. Linda Constance Edwards Vs. Shri William Adwords and

another 2001 DLP 355 - defined Adultery as according to divorce Laws

adultery is voluntary sexual intercourse of a married person with a person

other than or spouse raided it has consequential sexual-intercourse between a

married persons and person of the opposite side not the other spouse, during

subsistence of the marriage, it is no more necessary that person should

continue live in adultery. Single Act of intercourse Constitutes or Adultery.

CONCLUSION:-

Hindus considered the marriage is a sacred bond prior to Hindu

Marriage Act 1955 there were no provision of divorce the consent of divorce was

too radical for the Indian Society however time has changed now the Law

provides for a way to get out of unpleasant Marriage by seeking divorce in a

court of Law. The dissolution of marriage is without doubt the problem of today

Society it is problem one of the biggest problem children of divorce are often left

with scare and do not heal. Therefore it is very essential that the Law makers

of our country should deal with subject in a very cautious manner after

considering in detail in future implications.

48

Paper Presented by :: Sri P.Govardhan,

II Addl.Senior Civil Judge,

Vijayawada.

There are various theories of divorce such as fault theory, on the basis of

which most of the grounds of judicial separation and divorce are formulated in

section 13(1) of the Hindu Marriage Amendment Act, 1976. There are also

modern theories of divorce such as Mutual Consent on the basis of which a

new ground of divorce; divorce by mutual consent has been incorporated. Yet

there is one more theory called breakdown theory which is reflected in some

grounds such as failure to resume cohabitation within one year getting the

degree of restitution of conjugal rights and failure to resume cohabitation

within one year after getting the degree of judicial separation. These two

grounds are stated in section 13(1) (a) and section 13(1) (b) of the Marriage Law

Amendment Act, 1976.

No fault theory :

Prior to 1976 Divorce only on the basis of fault theory it means marriage

can be dissolved only when either party to the marriage had committed a

matrimonial offence. But now Divorce can also be obtained on the basis of no

fault theory, it means divorce can obtain by the mutual consent of the parties

to marriage under the marriage laws (Amendment) Act, 1976. According to

section 13-B (1), such a petition is required to be moved jointly by the parties to

marriage on the ground that they have been living separately for a period of one

year or more and they have not been to live together and also that they have

agreed that marriage should be dissolved.

As per section 13-B (II) of the Act lays down that on the motion of both

the parties made no earlier than six months after the date of the presentation

of the petition referred to in sub-section (I) given above 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 averments in the petition are true, then pass a decree of divorce, declaring

the marriage to be dissolved with effect from the date of decree.

Essentials of divorce by mutual consent:

According to section 13-B, there are three essentials of divorce by mutual

consent-

That both the parties have been living separately for a period of one year or

more;

That both the parties have not been able to live together;

That both the parties have mutually agreed that their marriage should be

dissolved.

It is an important to note that the consent obtained for divorce means divorce

by mutual consent not obtained by force, fraud, it means consent must be free

as per section 23(1) of this Act.

49

The Karnataka High court in Krishna Murti Rao v. kamalashi, has said that on

filling a petition jointly by the wife and husband the following points are to be

proved for getting a decree under this section:-

The parties to marriage are living separately for a period of one year or more;

They could not live together;

They have reached a compromise that they would dissolved the marriage; and

That they have consented to divorce not under any force or fraud or undue

influence.

A Court of competent jurisdiction there upon motion (application) being

made by both the parties at any time after six months, but before eighteen

months from the date of presentation of petition, will make proper enquiries as

it may deem fit. It is incumbent upon the Court to verify that the statements

made in the Petition are true. This requires the Court to verify, by examination

on oath, whether they have consented to dissolve their marriage, as stated in

Petition. After making necessary enquiry into the facts that marriage was

solemnized, that the parties have not withdrawn the joint petition in the

meantime, and that their consent continues, as stated in the Petition, on the

day of examining the parties on oath. The Court has to satisfy itself about the

genuineness of the averments in the petition and also to find out whether the

consent was not obtained by force, fraud or undue influence If the court is

satisfied that the consent of parties was not obtained by force, fraud or undue

influence and they have mutually agreed that the marriage should be dissolved,

it must pass a decree of divorce. Thereupon, the Court will declare by decree

that the marriages solemnized between the parties are dissolved. After

presentation of the Petition for divorce by mutual consent, either of the parties

may retract his or her consent at any time or at the time of examination on

oath and thereupon the Petition shall be dismissed.

It therefore follows that the parties even when having stated in the

Petition that they have decided to dissolve their marriage by mutual consent,

have opportunity to retract or withdraw the consent at the time of examination

on oath by the Court. The period of consideration of the petition only after six

months of the presentation, imply that the parties are having opportunity to re

think on the decision of divorce and law gives ample opportunity to save

marriage.

However, it is incumbent upon the parties to move before the Court

before eighteen months from the date of presentation of the Petition for divorce.

The Court is not bound to pass decree of divorce by mutual consent after a

period of eighteen months for the date of presentation of the Petition.

A no fault divorce refers to a type of divorce which the spouse that is

filing for divorce does not have to prove any fault on the part of the other

spouse. All a spouse has to do is give any reason that the state honors for the

divorce. The most commonly given reason is "irreconcilable differences" or an

"irreparable breakdown of the marriage." These are just fancy ways of saying

that the couple does not get along and that the marital relationship cannot be

repaired. A spouse cannot object to another's petition for no fault divorce, as

that objection itself is viewed by the court as an irreconcilable difference.

50

A no fault divorce occurs when two people want to end their marriage but

one party has not clearly wronged the other. When a marriage breaks down

simply because the parties no longer wish to be married anymore, a no fault

divorce may take place. This has become a common form of divorce and most

states recognize no fault grounds as a legitimate reason to end a marriage.

Courts may refer to this as “divorce on the basis of irreconcilable differences”,

or the process may simply be called a no fault divorce.

Fault Theory

Fault theory of divorce is essentially a 19th century concept where the

society abhorred divorce as an evil, as devil‘s mischief, and therefore that

society could agree for divorce only on that basis that one of the parties has

committed some sin, some very heinous offence against marriage. As a

corollary to the guilt of one party, the other party was required to be totally

innocent.

Fault divorces are not as common, and in fact, most states no longer

even recognize them. In the states that do recognize them, one of the spouses

requests that a divorce be granted based on some fault of the other spouse. The

most common grounds for granting a fault divorce are:

Adultery

Abandonment for a certain length of time

Prison confinement

A spouse is physically unable to have sexual intercourse

Inflicting emotional or physical pain (cruelty)

Unlike a no fault divorce, a spouse can object to a fault divorce by disproving or

presenting a defense to the fault complained of. The following is a list of

common fault divorce defenses:

Connivance is an absolute defense to adultery. Connivance alleges that the

complaining spouse agreed to and even participated in the infidelity. It makes

sense that a couple who voluntarily participates in group sex cannot then go

and complain of adultery. Similarly, a spouse who prostitutes the other or who

facilitates the other's infidelity cannot thereafter claim adultery as grounds for

divorce.

Condonation is a claim that the other spouse knew about the complained of

conduct, forgave such conduct, and resumed the marital relationship. This is

typically used to defend an adultery accusation.

Recrimination is when the complaining spouse is equally at fault or engaged

in similar conduct. For example, if both spouses had affairs, neither one would

be able to use adultery as grounds for a fault divorce.

Provocation is where one spouse is enticed by the other spouse to act in a

certain way. For example, where one spouse abuses the other spouse, which

forces that other spouse to leave the marital home, the abusive spouse would

not be able to then use abandonment as grounds for divorce, since it was his

51

or her abuse that caused the other spouse to leave.

Collusion refers to an agreement between both of the spouses to fabricate the

grounds for divorce. If one of the spouses changes his or her mind, collusion

could be raised to lessen the original grounds for the fault divorce.

Proving any of these defenses can be costly, timely, and often involves

the use of witnesses. Furthermore, courts have an interest in not forcing people

to stay married who don't want to be married, and so usually grant divorces to

people who ask, despite defenses given by the other spouse. These reasons

typically defer people from attempting defenses.

No-Fault Divorce vs. Fault Divorce In the past, fault has often been required for a divorce. To end a marriage,

one party must have done something that would cause the other person to

want a divorce. Each state had its own grounds for a fault divorce, but some

common examples include:

Adultery

Incarceration of one spouse in prison

Cruelty

Desertion

One spouses' inability to have sexual intercourse, unless the other party knew

of this before the marriage began

To get a fault divorce, the party filing the papers often needed to provide

proof of the grounds. Proof of misconduct that occurred during the marriage

was shown through evidence of any of the grounds for divorce, such as

testimony from sexual partners of the adultering spouse, incriminating

photographs, or other sordid materials. These types of divorces typically caused

huge divorce battles in which private marriage issues were made public, and

huge amounts of money was spent on private investigators and on lawyers in

drawn out courtroom dramas that strained court systems. Since it was often

difficult to prove grounds, or both spouses were equally guilty, or even more

commonly there weren't any grounds present but couples still wanted to

divorce, it became common place for spouses to engage in collusion and feign

grounds in order to obtain a divorce.

52

Paper Presented by :: Sri Kumar Vivek,

Senior Civil Judge,

Nandigama

The Hindu Marriage Act, 1955 recognizes two theories of Divorce:

Fault theory;

No fault theory or divorce by mutual consent.

Fault theory of divorce

For this purpose nine fault grounds were mentioned in the Hindu

Marriage Act, 1955. Sec. 13(1) of the Hindu Marriage Act, 1955 lays down

these nine fault grounds, on which either the husband or wife could sue for

divorce. Two fault grounds have been dealt with in the sec. 13(2), on which wife

alone could seek the decree of divorce. The following are the nine grounds for

divorce available to husband and wife both:

Adultery– Whether the other party has, after the solemnization of the

marriage had voluntary sexual intercourse with any person other than his or

her spouse as per section 13(i) of the Hindu Marriage Act, 1955. In the

authority reported in AIR 1982 Kant 295 the hon’ble Karnataka High Court

held that A person alleging cruelty cannot plead at the same time that his wife

deserted him. In the authority reported in (1994) 2 HinduLR 671(AP)(DB)the

hon’ble Andhra Pradesh High Court held that Burden to prove adultery is on

the party who alleges dissolution of marriage on the said ground. In the

authority reported in AIR 1988 AP (DB) the hon’ble Andhra Pradesh High Court

held that Proof of even single instance of adultery by a party to the marriage

with a person other than his/her spouse is enough a ground for granting

decree of divorce.

Cruelty– Where the other party has after the solemnization of marriage,

treated the petitioner with cruelty as per section 13(1) (ia) of the Hindu

Marriage Act, 1955. The hon'ble Supreme Court in the authority between

Darshan Gupta v. Radhika Gupta reported in (2013) 9 SCC 1 held that the

petitioner must approach court with clean hands, hence if petitioner

himself/herself is guilty or at fault, he/she would be disentitled to seek divorce.

In the authority reported in AIR 2009 SC 589 the hon’ble Supreme Court held

that Mens rea is not the necessary element in cruelty, and relief to party

cannot be denied on the ground that there has been no deliberate or willful ill-

treatment. In the authority reported in 2014(1) ALD 719 the hon’ble Andhra

Pradesh High Court held that After creating a ground for wife to leave

matrimonial home, permitting that situation to remain for years together, and

then citing the same as a ground, the husband cannot seek divorce. In the

authority reported in AIR 2014 AP 95(DB) the hon’ble Andhra Pradesh High

Court held that The test to determine cruelty is whether cumulative effect of

acts and omissions on the part of one of the spouses created a sense of

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humiliation, insecurity and harassment in other spouse. In the authority

reported in 2014(1) ALD 28 the hon’ble Andhra Pradesh High Court held that

Sole testimony of the complaining spouse would not be adequate, evidence of

the inmates of the family, neighbors and such persons who witnessed the acts

of cruelty on the part of the other spouse has to be adduced. In the authority

reported in AIR 2002 SC 576 the hon’ble Supreme Court held that Austerity of

temper, rudeness of language, occasional outburst of anger, may not amount

to cruelty, though they may amount to misconduct. In the authority reported

in 2005(2) SCC 22 the hon’ble Supreme Court held that To constitute cruelty,

the conduct complained of, should be ‘grave and weighty’, that is, something

more serious than ordinary wear and tear of married life, that the conduct

should be such that the petitioner-spouse cannot be expected to live with the

other spouse. In the authority reported in AIR 2009 SC 589 the hon’ble

Supreme Court held that The expression ‘cruelty’ as a ground of dissolution of

marriage includes both mental and cruelty. In the authority reported in 2014(6)

ALD 187 the hon’ble Supreme Court held that Refusal by a spouse to have

sexual intercourse for a long time, amounts to mental cruelty to the other

spouse. In the authority reported in 2013(1) ALD 230 the hon’ble Andhra

Pradesh High Court held that Institution of criminal cases by wife against the

husband and his family members, would by itself constitute cruelty,

particularly it ends up in acquittal.

Desertion: Where the party has deserted the petitioner for a continuous

period of not less than two years immediately preceding the presentation of the

petition as per section 13(1)(ib) of the Hindu Marriage Act, 1955. In the

authority reported in 2014(2) ALD 360 the hon’ble Andhra Pradesh High Court

held that One who complains desertion must demonstrate that he/she was

willing to live with the other spouse and that the latter living separately on

account of his/her disinclination. In the authority reported in 2013(6) ALD 775

the hon’ble Andhra Pradesh High Court held that Tests to determine desertion

is whether spouse complaining desertion made effort to join company of the

other spouse like issuance of notice, requiring other spouse to come and join,

or filing of OP under section 9 of the Hindu Marriage Act, 1955.

Conversion– Where the party has ceased to be a Hindu by conversion to

another religion as per section 13(1)(ii) of the Hindu Marriage Act, 1955. In the

authority reported in 2007(1) HLR 281 between Suresh Babu vs. V P Leela the

hon’ble KeralaHigh Court held that A petition for divorce cannot be defeated

on the ground that the respondent has ceased to be Hindu and he has

converted to another religion even if other spouse has consented to such

conversion, or that the converted spouse has lived with the spouse after

conversion.

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Unsound mind– Where the party has been incurably of unsound mind,

or has 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 13(1)(iii) of the Hindu Marriage Act, 1955.

Explanation–

the expression “mental disorder” means mental illness, arrested or incomplete

development of mind, psychopathic disorder or any other disorder or disability

of mind and include schizophrenia;

the expression “psychopathic order” means persistent disorder or disability of

mind(whether or not including sub-normality of intelligence) which results in

abnormally aggressive or seriously irresponsible conduct on the part of the

other party and whether or not it requires or insusceptible to medical

treatment.

In the authority reported in 2014(3) ALD 228(DB) the hon’ble Andhra Pradesh

High Court held that By mere alleging that wife is mentally stable and that she

is psychiatric patient, husband cannot be said to have made a dround for

divorce.

Leprosy– Where the party has been suffering from a virulent and incurable

form of leprosy as per 13(1)(iv) of the Hindu Marriage Act, 1955. In the

authority reported in AIR 1974 SC 165 between Swarajya Laxmi v. Padma

Rao the hon’ble Supreme Court held lepromatous leprosy is virulent. This type

of leprosy malignant and contiguous. It is also an incurable from of leprosy and

entitles the other spouses to a decree of divorce.

Venereal disease–Where the other party has been suffering from venereal

disease in a communicable form as per 13(1)(v) of the Hindu Marriage Act,

1955.

Renunciation of the world– Where the other party has renounced the world by

entering any religious order as per 13(1)(vi) of the Hindu Marriage Act, 1955.

Presumed death– Where the other party has not been heard of as being alive

for a period of seven years or more by those persons who would naturally have

heard of it, had that party been alive as per 13(1)(vii) of the Hindu Marriage Act,

1955.

There are four additional grounds for divorce available to only wife:

Bigamy– A wife may present a petition for dissolution of marriage on the basis

of by a decree of divorce on the ground that in the case of any marriage

solemnized before the commencement of this Act, 1955, the husband has

married again before such commencement or that any other wife of the

husband married before such commencement of alive at the time of

solemnization of marriage as per 13(2)(i) of the Hindu Marriage Act, 1955.

Rape, sodomy or bestiality. A wife is entitled to petition for divorce on the

ground of rape, sodomy or bestiality committed on her by the husband as

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13(2)(ii) of the Hindu Marriage Act, 1955.

Non resumption of cohabitation after decree or order of maintenance– Where a

decree for maintenance of wife under Section 18 of the Hindu Adoptions and

Maintenance Act 1956, or an order for maintenance of wife under Section

125 of the Criminal Procedure Code, 1973 has been passed against the

husband, the wife is entitled to present a petition for divorce provided two

conditions are satisfied. First, she was living apart, and secondly, since the

passing of such decree or order cohabitation between her and her husband has

not been resumed for at least one year or upwards, decree of divorce would be

granted as per 13(1)(iii) of the Hindu Marriage Act, 1955.

Option of puberty– Wife is entitled to present a petition for divorce if her

marriage was solemnized before her attainment of the age of fifteen years

provided she has repudiated the marriage after attaining the age of fifteen years

but before attaining the age of eighteen years as per 13(1)(iv) of the Hindu

Marriage Act, 1955.

No fault theory of divorce

It means divorce can obtain by the mutual consent of the parties to marriage

under the Marriage Laws (Amendment) Act, 1976. According to section 13-B (1)

of the Hindu Marriage Act, 1955 such a petition is required to be moved jointly

by the parties to marriage on the ground that they have been living separately

for a period of one year or more and they have not been to live together and

also that they have agreed that marriage should be dissolved. It is an important

to note that the consent obtained for divorce means divorce by mutual consent

not obtained by force, fraud, it means consent must be free as per section 23(1)

of the Hindu Marriage Act, 1955. The hon’ble Karnataka High Court in the

authority reported AIR 1983 Kar 235 between Krishna Murti Rao v.

Kamalashi has said that on filling a petition jointly by the wife and husband

the following points are to be proved for getting a decree under this section:-

The parties to marriage are living separately for a period of one year or more;

They could not live together;

They have reached a compromise that they would dissolved the marriage; and

That they have consented to divorce not under any force or fraud or undue

influence.

In the authority reported in AIR 1992 SC 1904 between Smt. Sureshta Devi v.

Om Prakash the hon’ble Supreme Court has held that `living separately’ for a

period of one year should be immediately precede the presentation of the

petition.

In the authority reported in AIR 1997 SC 1266 between Ashok Hurra v. Rupa

Bipin Zaveri the hon’ble Supreme Court held that Sureshta Devi’s decision that

“consent can be withdrawn at any time before decree is passed” are wide and

requires reconsideration. In this case, the petition for divorce by mutual

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consent was pending for a considerably long period and the wife had not

withdrawn her consent within 18 months from the date of presentation of

petition. Neither divorce decree could be passed nor reconciliation could be

brought about between the spouses. Moreover, during the pendency of the

divorce proceedings, the husband had contracted another marriage and begot a

child. Civil and criminal proceedings were also filed by the spouses against

each other during pendency of the suit. In view of the above facts, the hon’ble

Supreme Court held as The cumulative effect of the various aspect’s in the case

indisputably point out that the marriage is dead, both emotionally and

practically and there is long laps of years since the filling of the petition;

existence of such a state of affairs of warrant the exercise of the jurisdiction of

this court under Article 142 of the Constitution and grant a decree of divorce

by mutual consent and dissolve the marriage between the parties.

Divorce by mutual consent in Muslim marriage

Under Muslim marriage (Nikah), a divorce may take place also by mutual

consent of the husband and wife. Existence of any prior agreement or

delegation of authority by the husband is not necessary for a divorce by

common consent. It may take place any time whenever the husband and wife

feel that it is now impossible for them to live with mutual love and affection as

is desired by the God. There are two forms of divorce by mutual consent, Khula

and Murabat.

Khula

The term ‘Khula’ literal meaning is considered as ‘to take off the cloths’. In this

law, it means divorce by the wife with the consent of her husband on payment

of something to him. There are four essentials of a valid khula-

Competence of the parties : The husband and wife must be of sound mind and

have attained the age of puberty(fifteen years). A minor or insane husband or

wife cannot lawfully effect Kula. The guardian of a minor husband may not

validly effect on his behalf.

Free consent: The offer and acceptance of Khula must be made with the free

consent of the parties. But, under Hanafi Law a Khula under compulsion or in

the state of intoxication is also valid. But, under all other schools including

Shia law, without free consent of the parties, Khula is not valid.

Formalities: There is an offer by the wife to release her from the matrimonial tie.

The offer is made to the husband. The offer for Khula must also be accepted by

the husband. Until the offer is accepted, the divorce is not complete and it may

be revoked by the wife. But, the once the offer is accepted, the divorce is

complete and becomes irrevocable. Offer or acceptance may in oral or writing.

The offer and acceptance must be made at one sitting i.e. at one place of

meeting. Under sunni law there is no any witness necessary at the time of

dissolution of marriage. But, in the case of Shia law there must be two

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competent witness available at the time of dissolution of marriage.

Consideration: For the release, the wife has to pay something to the husband

as compensation. Any some of money or property may be settled as

consideration for Khula. There is no maximum or minimum limits as in the

case of dower. But once this consideration has been settled, it cannot be

increased.

Mubarat

Mubarat is also a divorce by mutual consent of the husband and wife. In Khula

the wife alone is desirous of separation and makes offer, whereas

in Mubarat the offer both the parties are equally willing to dissolve the

marriage. Therefore, in Mubarat the offer for separation may come either from

husband or from wife to be accepted by the other. The essential feature of a

divorce by Mubarat is willingness of both the parties to get rid of each other,

therefore, it is not very relevant as to who takes the initives. Another significant

point in the mubarat form of divorce is that both the parties are equally

interested in dissolution of marriage, no party is legally required to compensate

the other by giving some consideration.

Legal consequences of Khula and Mubarat:

The wife is required to observe Iddat;

The wife is also entitled to be maintained by the husband during the period of

Iddat;

If the consideration in Khula is not the release of wife’s dower, the wife is

entitled to get her dowry.

Conclusion

The logic behind granting divorce on breakdown of marriage is that what could

not be mended should be ended. The guilt or fault theory of divorce should be

replaced, though gradually, in exceptional cases by breakdown of marriage

theory. This will enable the embattled couple, who failed to secure conjugal

happiness, a fresh start in life. A marriage could be broken down on account of

fault of either party or both parties or on account of fault of neither party. It

may happen that relations of husband and wife became so strained that they

stopped living with each other. In such a situation, it is desirable that the

relationship is brought to an end by a decree of divorce on the ground of

irretrievable breakdown of marriage without fixing any responsibility on either

party in the interest of both the parties and also the society.

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Paper Presented by :: Smt. D.Sony,

Spl.JMFC for Trying P & E Offences,

Machilipatnam.

Introduction :

Under the Hindu Marriage Act, 1955 both the husband and the

wife have been given a right to get their marriage dissolved by a decree of

divorce on more than one grounds specifically enumerated in Section 13. Some

of the grounds initially inserted were substituted and some more grounds came

to be added. It was in the year 1964 that sub-section (1-A) was inserted by

which either party to the marriage was also given a right to apply for

dissolution of marriage by a decree of divorce either where there has been no

resumption of cohabitation for the period specified therein, after the passing of

the decree for judicial separation; or where there has been no restitution of

conjugal rights for the period specified therein, after the passing of the decree

for judicial separation; or where there has been no restitution of conjugal rights

for the period specified therein after the passing of a decree for restitution of

conjugal rights. Under Muslim law divorce is known as Talaq and it is an

Arabic word and it means ‘to set free’.

Concept of divorce :

The concept of divorce is one that has become increasingly

pertinent to today’s society. People are bombarded by statistics about its rise

and facts about the decreasing stability of the nuclear family. Rates of divorce

have increased so greatly over the past few decades that people have come to

fear the institution of marriage. Causes of divorce and how it has evolved over

the past three decade are issues that must be addressed in order to

understand this problem. While being surrounded with marital separation, our

society is left to ask many questions.

The dissolution of marriage is without a doubt a problem for

today’s society. It is probably one of the biggest problems. Children of divorce

are often left with scars that do not heal. Often children from divorced families

have a more difficult time establishing intimate relationships. Recognizing the

changing rates of marriage and divorce are necessary in analyzing today’s

family structure. One cannot deny that these divorce rates show a relevant

problem that must be researched in order to understand elements of family life

today.

However, marriage is also regarded as a social institution and not

merely a transaction between two individuals, and therefore, it was argued that

there was a social interest in prevention and protection of the institution of

marriage was hedged with legal protection. The inevitable consequence of this

philosophy was that marriage came to be regarded as a special contract which

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cannot be put to an end like an ordinary contract. A marriage can be dissolved

only if one of the spouses is found guilty of such an act and conducts which

undermined the very foundation of marriage. This led to the emergence of the

offence or guilt theory of divorce. Marriage as an eternal union was not

altogether immune to rejection. Divorce or tyaga was not alien to Indian

society; it was devoid of any formal recognition as a tool of self-emancipation by

the marriage partners. During the pre-Vedic era, despite separation of marriage

partners, the marriage was not null and void.

Women had never used their rights to disown men. However, two

ancient Smriti writers Narada and Parasara laid down few grounds on which

women could remarry. However, earlier there was no systematic code to

regulate divorce in specific.

The Hindu Marriage Act, 1955 as amended by the Marriage Laws

(Amendment) Act, 1976 lays down nine grounds, based on guilt theory of

divorce; adultery; cruelty; desertion; conversion to a non-Hindu religion;

incurable insanity or mental disorder; virulent and incurable leprosy; venereal

disease in communicable form; taking to sanyasa (i.e. renunciation of world by

entering into a holy order) and presumption of death; and some additional

grounds on which wife alone can sue for divorce.

The Special Marriage Act, 1954 as amended by the Marriage Laws

(Amendment) Act, 1976 recognizes eight grounds based on guilt on which

either party may seek divorce and two additional grounds on which wife alone

may seek divorce, viz, rape, sodomy or bestiality of the husband. The eight

grounds are: adultery; desertion for at least three years; respondent

undergoing a sentence of imprisonment for seven years or more for an offence

under the Indian Penal Code, 1860; cruelty; venereal disease in a

communicable form, leprosy (only if the disease was not contracted by the

respondent form the petitioner); incurable insanity or continuous or

intermittent mental disorder of such a kind and to such an extent that the

petitioner cannot reasonably be expected to live with the respondent, and

presumption of death (respondent not been heard of as alive for a period of

seven years or more).

THEORIES OF DIVORCE

Indissolubility of Marriage Theory :

According to this theory, marriage is an unbreakable tie between

husband and wife. It is a union of bone with bone and flesh with flesh. It is

eternal. Even if the relations between the parties are unhappy, they have to live

and die with it. This is the theory of the Shastric Hindu Law. The marriage

could be dissolved neither by the act of the parties nor by the death of one of

them. Divorce was an anathema. However, this was the law for the regenerate

castes, the so called upper three castes. The shudras and tribes recognized

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divorce and had their customs relating there to. The Hindu Marriage Act

abandoned the Shastric position. Marriage is no more unbreakable rope even

for the regenerate caste. If the necessary conditions as given under Section 13

and 13B exist, every Hindu is entitled to the dissolution of his or her marriage.

The Hindu Marriage Act is indeed a revolutionary piece of legislation from this

point of view.

FAULT THEORY OF DIVORCE :

Under the fault theory, marriage can be dissolved only when either

party to the marriage had committed a matrimonial offence. Under this theory,

it is necessary to have a guilty and an innocent party and only innocent party

can seek the remedy of divorce. However the most striking feature and

drawback is that if both parties have been at fault, there is no remedy available.

Fault divorces are not as common, and in fact, many states no

longer even recognize them. In the states that do recognize them, one of the

spouses requests that a divorce be granted based on some fault of the other

spouse. No state requires the spouses seeking a fault divorce to live apart

for a specific period of time, unlike a no fault divorce. Proving fault also often

provides the spouse without fault with a larger portion of the marital property

or support. These two characteristics make a fault divorce more attractive to

some people.

All the three traditional fault grounds, adultery, cruelty, and desertion,

were made grounds of judicial separation and not of divorce. But now under

Section 13, nine grounds of divorce were recognized both for husband and wife,

and two additional grounds were recognized on which the wife alone could seek

divorce. Barring aside insanity and leprosy, rest of the grounds arose out of

some offence or wrong of the respondent. These were: living in adultery, change

of religion, insanity, leprosy, venereal diseases, presumption of death,

renunciation of world, non-resumption of cohabitation by the respondent after

a decree of judicial separation and non-compliance with the decree of

restitution of conjugal rights; (Before 1964, the petitioner, in the petition for

restitution of conjugal rights, or in the petition for judicial separation, alone

could seek divorce). Thus, these were incorporated essentially as guilt grounds.

The wife‘s additional grounds, viz., rape, sodomy or bestiality of the husband

and the existence of another spouse of the polygamous pre-1955 marriage of

the husband, were also based on the same theory. Even renunciation of the

world by becoming a sanyasi fitted into the framework of fault theory, though

the orthodox will not agree that if one of the spouses enters into the holy order

he could be said to have committed any offence, yet looked at from the angle of

the other spouse it is nothing but permanent desertion.

Section 23 of the Hindu Marriage Act 29 deals with the

matrimonial bars. Recently, the Hon’ble Supreme Court in Darshan Gupta v.

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Radhika Gupta, reported in (2013) 9 SCC 1, held that the petitioner must

approach court with clean hands.

Grounds of divorce under S. 13(1) are based on matrimonial offence or

fault theory. It is only commission of matrimonial offence by one spouse that

entitles the other spouse to seek divorce. Hence, if petitioner himself/herself is

guilty or at fault, he/she would be disentitled to seek divorce. Again in

Badshah v. Sou. Urmila Badshah Godse in Criminal Misc. Petition

No.19530/2013, decided on October 18, 2013, the Apex Court held that

where a man marriages second time by keeping that lady in dark about the

first surviving marriage, such lady will be treated to be a legally wedded wife of

the man for the purpose of claiming maintenance as if this interpretation is not

accepted, it would amount to giving a premium to the husband for defrauding

the wife. Stating that the husband cannot take advantage of his own wrong by

saying that such second wife cannot claim maintenance under Section 125 of

Cr.P.C. as she is not his legally wedded wife, the Hon’ble Supreme Court held

that while dealing with the application of destitute wife or hapless children or

parents under the said provision, the Court is dealing with the marginalized

sections of the society and hence, it is the bounden duty of the Courts to

advance the cause of the social justice. Thus, it is laid down that the petitioner

will not be allowed to take advantage of his or her own wrong or disability, this

is to say, if the guilt of the respondent is, in any way, the direct or indirect

outcome of some wrong or disability of the petitioner, the petitioner will not be

entitled to the matrimonial relief asked for, even if he had been able to

establish his ground of relief beyond reasonable doubt.

In case the ground for seeking matrimonial relief (divorce or judicial

separation) is adultery, the petitioner must show that he is in no way accessory

to the respondent‘s adultery, and that he did not connive at the adultery of the

respondent. In every petition, the petitioner had to show that there is no

collusion between him and the respondent. In case the ground is cruelty or

adultery, the petitioner is also required to show that he or she did not condone

the offence.

Defences :

There are also defences which can be raised by the other spouse in a

fault divorce proceedings :

Recrimination - It is the defence wherein the accused spouse in an action for

divorce makes a similar accusation against the complainant spouse.

Condonation - Which usually takes the form of implied or express forgiveness of

a spouse's marital wrong and, therefore, weakens the accusers‘ case.

Connivance - Which is the act of knowingly and wrongly overlooking or

assenting without placing any opposition to a spouse's marital misconduct,

especially to adultery.

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Reconciliation - Where the spouses voluntarily resume marital relation by

cohabiting as spouses prior to a divorce becoming final with mutual intention

of remaining together and re-establishing a harmonious relationship.

Provocation - Inciting the other spouse to do a certain act. An example of this is

when a spouse claiming for abandonment, the other spouse may raise the

defense that the claiming spouse provoked the abandonment.

Proof :

It is equally important to consider all the circumstances when making

these charges or planning a defense. Proof of marital fault is needed. It usually

requires witnesses, involves a lot of time and expenses, and there is a high

probability that the divorce will turn vicious. It is important to note that the

grounds and defenses for a fault divorce are defined by the different

jurisdictions and that the legal interpretation may likewise vary from one place

to another. Also, be aware that actual legal definitions may be very dissimilar

to a layman's concept of the term.

NO FAULT THEORY OF DIVORCE :

Prior to 1976, Divorce is only on the basis of fault theory. It means

marriage can be dissolved only when either party to the marriage had

committed a matrimonial offence. But now Divorce can also be obtained on the

basis of no fault theory, it means divorce be can obtained by the mutual

consent of the parties to marriage under the Marriage Laws (Amendment) Act,

1976. According to Section 13-B (1), such a petition is required to be moved

jointly by the parties to marriage on the ground that they have been living

separately for a period of one year or more and they have not been to live

together and also that they have agreed that marriage should be dissolved.

As per Section 13-B (II) of the Act 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 (I) given above 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

averments in the petition are true, then pass a decree of divorce, declaring the

marriage to be dissolved with effect from the date of decree.

Essentials of divorce by mutual consent:

According to section 13-B, there are three essentials of divorce by

mutual consent-

That both the parties have been living separately for a period of one year or

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more;

That both the parties have not been able to live together;

That both the parties have mutually agreed that their marriage should be

dissolved.

It is an important to note that the consent obtained for divorce means

divorce by mutual consent not obtained by force, fraud, it means consent must

be free as per section 23(1) of this Act.

The Hon’ble Karnataka High court in Krishna Murti Rao vs.

Kamalashi, reported in AIR 1983 Karnt 235 has said that on filling a

petition jointly by the wife and husband the following points are to be proved

for getting a decree under this section:-

The parties to marriage are living separately for a period of one year or more;

They could not live together;

They have reached a compromise that they would dissolved the marriage; and

That they have consented to divorce not under any force or fraud or undue

influence.

The period of consideration of the petition only after six months of the

presentation, imply that the parties are having opportunity to re think on the

decision of divorce and law gives ample opportunity to save marriage. However,

it is incumbent upon the parties to move before the Court before eighteen

months from the date of presentation of the Petition for divorce. The Court is

not bound to pass decree of divorce by mutual consent after a period of

eighteen months for the date of presentation of the petition.

In Smt. Sureshta Devi vs. Om Prakash, reported in AIR (1992) SC

1904 the Hon’ble Apex Court has held that living separately’ for a period of one

year should be immediately precede the presentation of the petition. It is

necessary that immediately preceding the presentation of petition, the parties

must have been living separately. The expression `living separately’, connotes

not living like husband and wife. It has no reference to the place of living. The

parties may live under the same roof by force of circumstances, and yet they

may not be living as husband and wife. The parties may be living in different

houses and yet they could live as husband and wife. What seems to be

necessary is that they have no desire to perform marital obligations and with

that mental attitude they have been living separately for a period of one year

immediately preceding the presentation of the petition. The meaning of the

words in the Act that they ‘have not been able to live together’ indicates the

concept of broken down marriage and it would not be possible to reconcile

themselves.

In Ashok Hurra v. Rupa Bipin Zaveri, reported in AIR (1997) SC

1266 the Supreme court held that Suresshta Devi’s decision that “consent can

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be withdrawn at any time before decree is passed” are to wide and requires

reconsideration. In this case, the petition for divorce by mutual consent was

pending for a considerably long period and the wife had not withdrawn her

consent within 18 months from the date of presentation of petition. Neither

divorce decree could be passed nor reconciliation could be brought about

between the spouses. Moreover, during the pendency of the divorce

proceedings, the husband had contracted another marriage and begot a child.

Civil and criminal proceedings were also filed by the spouses against each

other during pendency of the suit. In view of the above facts, the Hon’ble

Supreme Court held:

The cumulative effect of the various aspects in the case indisputably

point out that the marriage is dead, both emotionally and practically and there

is long lapse of years since the filling of the petition; existence of such a state of

affairs of warrant the exercise of the jurisdiction of this court under Articles

142 of the constitution and grant a decree of divorce by mutual consent and

dissolve the marriage between the parties.

In Dharmendra Kumar vs. Usha Kumari, reported in AIR 1977 SC

2218 it was held that Divorce by mutual consent mean that the case is not like

usual ones in which one party petition against the other for divorce and the

other party resist the same. It means that both the party makes a joint petition

to the court for divorce between them. There may be a genuine desire on the

part of both to get rid of each other. When a party to marriage wants divorce, it

is not necessary in the nature of things that the other party must oppose it.

The other party may be equally or rather more willing for it. They may be

sensible enough to part for good amicably.

Divorce by mutual consent under Muslim Law :

Under Muslim marriage (Nikah), a divorce may take place also by

mutual consent of the husband and wife. Existence of any prior agreement or

delegation of authority by the husband is not necessary for a divorce by

common consent. It may take place any time whenever the husband and wife

feel that it is now impossible for them to live with mutual love and affection as

is desired by the God. A divorce by mutual consent of the parties is a peculiar

feature of Muslim law.

There are two forms of divorce by mutual consent:

Khula

Mubarat

Khula:

The term ‘Khula’ literal meaning is considered as ‘to take off the cloths’.

In this law, it means divorce by the wife with the consent of her husband on

payment of something to him. Before Islam the wife was no right to take any

action for the dissolution of her marriage. But, when Islam came in to existence,

65

she is permitted to ask her husband to release her after taking some

compensation.

In the leading case Munshee Buzle raheem v. Luteefutoon nissa in

(1861) 8 Moore’s Indian Appeals 379 cited in Tyabji : Muslim Law, Ed. IV

p. 182, the Privy Council describes a Khula form of divorce in the following

words:

“A divorce by Khula is a divorce with the consent and at the instance of the

wife, in which she gives or agrees to give a consideration to husband for her

release from the marriage tie. In the case the terms of the bargain are matter s

of arrangement between the husband and wife may, as the consideration,

release her dynmahr (due dowr) and other rights, or make any other agreement

for the benefit of the husband.”

Mubarat:

Mubarat is also a divorce by mutual consent of the husband and

wife. In Khula, the wife alone is desirous of separation and makes offer,

whereas in Mubarat the offer both the parties are equally willing to dissolve the

marriage. Therefore, in Mubarat the offer for separation may come either from

husband or from wife to be accepted by the other. The essential feature of a

divorce by Mubarat is willingness of both the parties to get rid of each other,

therefore, it is not very relevant as to who takes the initiative. Another

significant point in the mubarat form of divorce is that both the parties are

equally interested in dissolution of marriage, no party is legally required to

compensate the other by giving some consideration.

Conclusion :

The 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. 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.

However, to prevent hasty divorces, the law lays down certain restrictions and

grounds for obtaining a divorce. Before obtaining divorce, the parties may first

obtain a decree for judicial separation after which divorce may be obtained.

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Paper Presented by :: Smt.Gogi.Kalarchana,

II Add. Junior Civil Judge,

Vijayawada Introduction :-

All over the civilized world, marriage is a very important social

institution. Whether considered as a sacrament or a contract marriage gives

rise to status. It confers a status of husband and wife on the parties to

marriage and it confers a status of legitimacy on the children of marriage. The

basic difference between the marriage and any other contract is that a

commercial or mercantile contract does not give rise to any status, while

marriage does. Then, once the marriage is performed, the contract of marriage

has no utility in respect of the marriage or in regard to any rights and liabilities

arising under it. Practically all the countries of the world agree that marriage is

a union between man and woman. Beyond this there are differences. In the

Western countries marriage is considered as a contract, and a monogamous

union, though Roman Catholic Church (despite the recent Italian legislation

conferring power of dissolving marriage on civil courts) still insists that

marriage is a sacrament and an indissoluble union. The Muslim world has all

along considered marriage as a civil contract though has, at the same time,

recognised limited polygamy. At one time in the East- among Hindus and

Buddhists- marriage was considered as a sacrament and indissoluble union;

among both the people unlimited polygamy was recognised. Today the

Buddhists and Hindus no longer recognize polygamy. The Chinese Buddhists

consider their marriage as a contract. Among Hindus marriage is something in

between a sacrament and a contract.

According to the Vedas a Hindu Marriage is an indissoluble union till

eternity. It is defined as a union of ―bones with bones, flesh with flesh and

skin with skin, the husband and wife become as if they were one person . The

Hindu Marriage Act, 1955 came into force on 18thMay 1955. It applies to a

Hindu by religion in any of its forms and development. A Hindu marriage may

be solemnized between any two persons who are Hindus by faith and religion.

Hindu marriage is monogamous .

According to Muslim law marriage is a purely civil contract; no religious

ceremony is essential; there must be an exchange of offer and acceptance

respectively by the parties, in each other‘s presence and hearing. A special

feature of a Muslim marriage is that the wife is always entitled to receive from

her husband money or other property in consideration of the marriage.

The Indian Christian Marriage Act is applicable to persons who profess

the Christian religion including natives in India converted to Christianity and

their Christian descendants. This Act deals with the forms and ceremonies of a

Christian marriage.

67

The marriage and divorce of Parsis in India is now governed by legislation

contained in the Parsi Marriage and Divorce Act. The marriage is monogamous.

The making and validity of a contract of marriage between Jews in India

depends wholly on the religious usages of the Jewish faith and is unaffected by

legislation.

In India, Marriage and Divorce is treated as part of the personal law of

the parties considered mainly by reference to their religious profession. With

the advancement of time and social awareness, several acts have been passed

by the government to make the present day divorce procedure in India more

progressive with respect to gender affairs and related sensitive issues.

Divorce procedure in India is based on the following legislation:-

1. The Hindu Marriage Act, 1955

2. The Special Marriage Act, 1954

3. The dissolution of Muslim Marriage act, 1939

4. The Indian Divorce Act, 1869

5. The Parsi Marriage and Divorce Act, 1936

6. The Foreign Marriage Act, 1969

2. Divorce under Hindu Law

Hindus consider marriage to be a sacred bond. Prior to the Hindu

Marriage Act of 1955, there was no provision for divorce. Divorce was unknown

to general Hindu law as marriage was regarded as an indissoluble union of the

husband and wife. Manu has declared that a wife cannot be released from her

husband either by sale or by abandonment, implying that the marital tie

cannot be severed in any way. It, therefore, follows that the textual Hindu law

does not recognize a divorce. Although Hindu law not contemplates divorce yet

it has been held that where it is recognized as an established custom it would

have the force of law.

Under the Hindu Marriage Act, 1955 both the husband and the wife have

been given a right to get their marriage dissolved by a decree of divorce on more

than one grounds specifically enumerated in Section 13. Some of the grounds

initially inserted were substituted and some more grounds came to be added. It

was in the year 1964 that sub-section (1-A) was inserted by which either party

to the marriage was also given a right to apply for dissolution of marriage by a

decree of divorce either where there has been no resumption of cohabitation for

the period specified therein, after the passing of the decree for judicial

separation; or where there has been no restitution of conjugal rights for the

period specified therein, after the passing of the decree for judicial separation;

or where there has been no restitution of conjugal rights for the period

specified therein after the passing of a decree for restitution of conjugal rights.

Theory regarding divorce

The provisions relating to divorce is contained in Sec 13 of Hindu

Marriage Act, 1955.The Act recognizes two theories of Divorce:

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Fault theory;

Divorce by mutual consent.( No fault theory )

Fault theory :-

Under the fault theory, marriage can be dissolved only when either party

to the marriage had committed a matrimonial offence. Under this theory it is

necessary to have a guilty and an innocent party and only innocent party can

seek the remedy of divorce. However the most striking feature and drawback is

that if both parties have been at fault, there is no remedy available. Another

theory of divorce is that of mutual consent. The underlying rational is that

since two persons can marry by their free will, they should also be allowed to

move out of their relationship of their own free will. However critics of this

theory say that this approach will promote immorality as it will lead to hasty

divorces and parties would dissolve their marriage even if there were slight

incompatibility of temperament. Some of the grounds available under Hindu

Marriage Act can be said to be under the theory of frustration by reason of

specified circumstances. These include civil death renouncement of the world

etc.

Grounds for divorce under Fault theory :-

The Act originally recognized the fault grounds for obtaining the decree of

divorce. For this purpose, nine fault grounds were mentioned in the Act. Sec.

13(1) lays down these fault grounds, on which either the husband or wife could

sue for divorce. Two fault grounds have been dealt with in the sec. 13(2), on

which wife alone could seek the decree of divorce. In 1976, the grounds for

divorce by mutual consent have been recognized through provision of the

section 13B of the Hindu marriage Act,1955 Says:

(1) Any marriage solemnized, whether before or after the commencement

of the Act, may, on a petition presented by either the husband or the wife, be

dissolved by a decree of divorce on the ground stated below :-

There are 9 grounds for divorce available to husband and wife both:

1. Adultery– Whether the other party has, after the solemnization of the marriage

had voluntary sexual intercourse with any person other than his or her spouse;

In Swapna Ghose v. Sadanand Ghose AIR 1979 Cal 1 the wife found her

husband and the adulteress to be lying in the same bed at night and further

evidence of the neighbors that the husband was living with the adulteress as

husband and wife is sufficient evidence of adultery. The fact of the matter is

that direct proof of adultery is very rare.

2. Cruelty– where the other party has after the solemnization of marriage, treated

the petitioner with cruelty as per section 13(1) (ia);

In Patnek v. Patnek 51 39 Bom LR 845. the Bombay High Court held that

unless an act amounts to grievous hurt, it would not be ground of divorce. In

Md. Sharif v. Nasrin AIR 1996 Raj 23. the Rajasthan High Court has held

that cruelty should be such as to give rise to a reasonable apprehension that it

would cause danger to life, limb or health.

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3. Desertion: Where the party has deserted the petitioner for a continuous period

of not less than two years immediately preceding the presentation of the

petition as per section 13(1)(ib) ;

In Bipinchandra v. Prabhavati AIR 1957 SC 176. the Supreme Court held

that where the respondent leaves the matrimonial home with an intention to

desert, he will not be guilty of desertion if subsequently he shows an

inclination to return & is prevented from doing so by the petitioner.

4. Conversion– Where the party has ceased to be a Hindu by conversion to

another religion as per section 13(1)(ii);

5. Unsound mind– As per section 13(1)(iii), where the party has been incurably of

unsound mind, or has suffering continuously or intermittently from mental

disorder of such a kind and to such an extent that the petitioner cannot

reasonably be expected to live with the respondent.

Explanation– In this clause-(a) the expression “mental disorder” means

mental illness, arrested or incomplete development of mind, psychopathic

disorder or any other disorder or disability of mind and include schizophrenia:

(b)the expression “psychopathic disorder” means a persistent disorder or

disability of mind(whether or not including sub-normality of intelligence) which

results in abnormally aggressive or seriously irresponsible conduct on the part

of the other party and whether or not it requires or insusceptible to medical

treatment;

6. Leprosy– As per section 13(1)(iv), where the party has been suffering from a

virulent and incurable form of leprosy;

in swarajya Laxmi v. Padma Rao, AIR 1974 SC 165 the Supreme court

held lepromatous leprosy is virulent. This type of leprosy malignant and

contiguous. It is also an incurable from of leprosy and entitles the other

spouses to a decree of divorce. The petitioner brought the divorce petition

against the respondent on the ground of lepromatous leprosy and is was

decreed.

7. Venereal disease– As per section 13(1)(v) where the other party has been

suffering from venereal disease in a communicable form;

8. Renunciation of the world– As per section 13(1)(vi) has renounced the world

by entering any religious order; it means renounced the world regarded

tantamount to civil death and therefore, it is given as a ground for decree of

divorce. It doesn’t mean that a person becomes a sanyasi merely by the

declaring himself a sanyasi.

9. Presumed death– where the other party has not been heard of as being alive

for a period of seven years or more by those persons who would naturally have

heard of it, had that party been alive; it means this clause provides that the

70

either party may seek divorce on this ground if the other party has not been

heard of as being alive, for a period of seven years or more by those person who

would naturally have heard of it, had that party been alive. Thus the aggrieved

party may marry again and have legitimate children.[ii]

There are 4 additional grounds for divorce available to only wife:

1. Bigamy– As per section 13(2)(1) a wife may also present a petition for

dissolution of marriage on the basis of by a decree of divorce on the ground

that in the case of any marriage solemnized before the commencement of this

Act, 1955, the husband has married again before such commencement or that

any other wife of the husband married before such commencement of alive at

the time of solemnization of marriage.

2. Rape, sodomy or bestiality.Under s. 13(2) (ii) of the Act a wife is entitled to

petition for divorce on the ground of rape, sodomy or bestiality committed on

her by the husband.

Rape is also a criminal offence and defined in s. 375 of the Indian Penal

Code. A man is said to commit rape who has sexual intercourse with a woman

against her will, without her consent, with her consent which is obtained by

putting her in fear of death or of hurt, with her consent when the man knows

that he is not her husband and that her consent is given because she believes

that he is another man to whom she is or believes herself to be lawfully

married, or with or without her consent when she is under sixteen years of age.

Penetration is sufficient to constitute the sexual intercourse necessary to the

offence of rape. There is however one exception. No rape is committed by the

husband on the wife if she is over fifteen years of age.

Sodomy is committed by a person who has carnal copulation with a

member of the same sex or with an animal, or has non-coital carnal copulation

with a member of the opposite sex.

Bestiality means sexual union by a human being against the order of

nature with an animal. The commission of these offences by the husband must

be proved by the wife either by witnesses as to fact or by evidence of admission

made by the respondent, such as a plea of guilty of his trial. Though these are

criminal offences, but mere evidence of conviction for these offences is not

sufficient to obtain a decree for divorce. In divorce proceedings these offences

are required to be proved b the wife de novo. Where the wife is a consenting

party to the commission of any of these offences, her evidence should not be

accepted without corroboration.

3. Non resumptionof cohabitation after decree or order of maintenance–

Where a decree for maintenance of wife under 18 of the Hindu Adoptions and

Maintenance Act 1956, or an order for maintenance of wife under section 125

of Cr PC 1973, has been passed against the husband, the wife is entitled to

71

present a petition for divorce provided two conditions are satisfied. First, she

was living apart, and secondly, since the passing of such decree or order

cohabitation between her and her husband has not been resumed for at least

one year or upwards, decree of divorce would be granted.

4. Option of puberty– Wife is entitled to present a petition for divorce if her

marriage was solemnized before her attainment of the age of fifteen years

provided she has repudiated the marriage after attaining the age of fifteen years

but before attaining the age of eighteen years. But the petition may be

presented after completing eighteen years of age. In absence of a school

certificate, the parents are the best witnesses of the fact of the date of birth of

their children. Entries in a horoscope can be used to prove the date of birth

and also by examining the person who wrote it.

No fault theory of divorce :-

A no fault divorce refers to a type of divorce in which the spouse that is

filing for divorce does not have to prove any fault on the part of the other

spouse. All a spouse has to do is give any reason that the state honors for the

divorce. The most commonly given reason is "irreconcilable differences" or an

"irreparable breakdown of the marriage." These are just fancy ways of saying

that the couple does not get along and that the marital relationship cannot be

repaired. A spouse cannot object to another's petition for no fault divorce, as

that objection itself is viewed by the court as an irreconcilable difference.

Prior to 1976 Divorce only on the basis of fault theory it means marriage

can be dissolved only when either party to the marriage had committed a

matrimonial offence. But now Divorce can also be obtained on the basis of no

fault theory, it means divorce can obtain by the mutual consent of the parties

to marriage under the marriage laws (Amendment) Act, 1976. According to

section 13-B (1), such a petition is required to be moved jointly by the parties

to marriage on the ground that they have been living separately for a period of

one year or more and they have not been to live together and also that they

have agreed that marriage should be dissolved.

As per section 13-B (II) of the Act lays down that on the motion of both

the parties made no earlier than six months after the date of the presentation

of the petition referred to in sub-section (I) given above 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 averments in the petition are true, then pass a decree of divorce, declaring

the marriage to be dissolved with effect from the date of decree.

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The Karnataka High court in Krishna Murti Rao v. kamalashi, AIR

1983 Karnt.235, has said that on filling a petition jointly by the wife and

husband the following essential points are to be proved for getting a decree

under this section:-

The parties to marriage are living separately for a period of one year or more;

They could not live together;

They have reached a compromise that they would dissolved the marriage; and

That they have consented to divorce not under any force or fraud or undue

influence.

A Court of competent jurisdiction there upon motion (application) being

made by both the parties at any time after six months , but before eighteen

months from the date of presentation of petition, will make proper enquiries as

it may deem fit. It is incumbent upon the Court to verify that the statements

made in the Petition are true. This requires the Court to verify, by examination

on oath, whether they have consented to dissolve their marriage, as stated in

Petition. After making necessary enquiry into the facts that marriage was

solemnized, that the parties have not withdrawn the joint petition in the

meantime, and that their consent continues, as stated in the Petition, on the

day of examining the parties on oath. The Court has to satisfy itself about the

genuineness of the averments in the petition and also to find out whether the

consent was not obtained by force, fraud or undue influence If the court is

satisfied that the consent of parties was not obtained by force, fraud or undue

influence and they have mutually agreed that the marriage should be

dissolved, it must pass a decree of divorce. Thereupon, the Court will declare

by decree that the marriages solemnized between the parties are dissolved.

After presentation of the Petition for divorce by mutual consent, either of the

parties may retract his or her consent at any time or at the time of examination

on oath and thereupon the Petition shall be dismissed.

It therefore follows that the parties even when having stated in the

Petition that they have decided to dissolve their marriage by mutual consent,

have opportunity to retract or withdraw the consent at the time of examination

on oath by the Court. The period of consideration of the petition only after six

months of the presentation, imply that the parties are having opportunity to re

think on the decision of divorce and law gives ample opportunity to save

marriage.

However, it is incumbent upon the parties to move before the Court

before eighteen months from the date of presentation of the Petition for divorce.

The Court is not bound to pass decree of divorce by mutual consent after a

period of eighteen months for the date of presentation of the Petition.

73

In Smt. Sureshta Devi v. Om Prakash, AIR (1992) S.C. 1904. The

Apex Court has held that `living separately’ for a period of one year should be

immediately precede the presentation of the petition. It is necessary that

immediately preceding the presentation of petition, the parties must have been

living separately. The expression `living separately’, connotes not living like

husband and wife. It has no reference to the place of living. The parties may

live under the same roof by force of circumstances, and yet they may not be

living as husband and wife. The parties may be living in different houses and

yet they could live as husband and wife. What seems to be necessary is that

they have no desire to perform marital obligations and with that mental

attitude they have been living separately for a period of one year immediately

preceding the presentation of the petition. The meaning of the words in the Act

that they `have not been able to live together’ indicates the concept of broken

down marriage and it would not be possible to reconcile themselves.

In Ashok Hurra v. Rupa Bipin Zaveri, AIR (1997) SC 1266. the

Supreme court held that Sureshta Devi’s decision that “consent can be

withdrawn at any time before decree is passed” are too wide and requires

reconsideration. In this case, the petition for divorce by mutual consent was

pending for a considerably long period and the wife had not withdrawn her

consent within 18 months from the date of presentation of petition. Neither

divorce decree could be passed nor reconciliation could be brought about

between the spouses. Moreover, during the pendency of the divorce

proceedings, the husband had contracted another marriage and begot a child.

Civil and criminal proceedings were also filed by the spouses against each

other during pendency of the suit. In view of the above facts, the Supreme

Court held:

The cumulative effect of the various aspect’s in the case indisputably

point out that the marriage is dead, both emotionally and practically and there

is long laps of years since the filling of the petition; existence of such a state of

affairs of warrant the exercise of the jurisdiction of this court under Articles

142 of the constitution and grant a decree of divorce by mutual consent and

dissolve the marriage between the parties.

Recently the Supreme Court Naveen Kohli v. Neelu Kohli 2006(3)

SCALE 252. 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.

No fault divorce under Muslim Law :-

74

Under Muslim law divorce is known as Talaq and it is an Arbic word and

it means ‘to set free’. It is only in unavoidable circumstances that Talaq is

permitted in Islam as a lawful method to bring marriage contract to end. The

Shariah takes a very reasonable and realistic view of such a sad situation

where marriage becomes impossible to continue and all means fails to bring

the couple together, by permitting divorce as a last resort.

Under Muslim marriage, concept of divorce-we all are know that the

husband and wife is necessary condition for a happy family-life. Islam

therefore, insists upon the subsistence of marriage and prescribes that breach

of the marriage- contract should be avoided. Initially no marriage is contract to

be dissolved in future, but in unfortunate cases the take place and the

matrimonial contract is broken. A marriage may dissolve:

By act of God; By act of parties, Grounds of divorce

Divorce by mutual consent under Muslim marriage :-

Under Muslim marriage (Nikah), a divorce may take place also by mutual

consent of the husband and wife. Existence of any prior agreement or

delegation of authority by the husband is not necessary for a divorce by

common consent. It may take place any time whenever the husband and wife

feel that it is now impossible for them to live with mutual love and affection as

is desired by the God. A divorce by mutual consent of the parties is a peculiar

feature of Muslim law.

There are two forms of divorce by mutual consent: Khula and Mubharat

Khula:

The term ‘Khula’ literal meaning is considered as ‘to take off the cloths’.

In this law, it means divorce by the wife with the consent of her husband on

payment of something to him. Before Islam the wife was no right to take any

action for the dissolution of her marriage. But, when Islam came in to

existence, she is permitted to ask her husband to release her after taking some

compensation. Quran lays down about Kula in the following words:

“If you fear that they (husband and wife) may not be able to keep within the

limits of Allah, in that case it is on sin for either of them if the woman release

herself by giving something (to the husband)”

In the leading case Munshee Buzle raheem v. Luteefutoon nissa, the privy

council describes a Khula form of divorce in the following words:

“A divorce by Khula is a divorce with the consent and at the instance of

the wife, in which she gives or agrees to give a consideration to husband for her

release from the marriage tie. In the case the terms of the bargain are matter s

of arrangement between the husband and wife may, as the consideration,

release her dynmahr (due dowr) and other rights, or make any other agreement

for the benefit of the husband.”

75

Mubarat:

Mubarat is also a divorce by mutual consent of the husband and wife. In

Khula the wife alone is desirous of separation and makes offer, whereas in

Mubarat the offer both the parties are equally willing to dissolve the marriage.

Therefore, in Mubarat the offer for separation may come either from husband

or from wife to be accepted by the other. The essential feature of a divorce by

Mubarat is willingness of both the parties to get rid of each other, therefore, it

is not very relevant as to who takes the initives. Another significant point in the

mubarat form of divorce is that both the parties are equally interested in

dissolution of marriage, no party is legally required to compensate the other by

giving some consideration.

Fault Grounds of Divorce in other laws :-

Under other Acts in India which are personal Laws governing marriage

and divorce like The Special Marriage Act, 1954 , The dissolution of Muslim

Marriage act, 1939 , The Indian Divorce Act, 1869, The Parsi Marriage and

Divorce Act, 1936, The Foreign Marriage Act, 1969, Divorce under all the

personal laws recognise fault grounds of divoerce which are common as

discussed above.

Section 27(1) of the Special Marriage Act, 1954 containing ten-fault

grounds of divorce on which either spouse can seek divorce, which are under ,

Adultery, cruelty, desertion, conversion, unsound mind, , leprosy, suffering

with venereal disease, renunciation of world presumed death other than that

one special ground is, undergoing a sentence, of imprisonment for seven years

or more for an offence as defined in the Indian Penal Code;

Section 27(1A)16 of the Special Marriage Act, 1954 which contains two

fault grounds on which wife alone can seek dissolution of marriage runs:

A wife may also present a petition for divorce to the district court on the

ground-

(i) that her husband has, since the solemnization of the marriage, been

guilty of rape, sodomy or bestiality;

(ii) that in a suit under section 18 of the Hindu Adoptions and

Maintenance Act, 1956 (78 of 1956), or in a proceeding under section 125 of

the Code of Criminal procedure, 1973 (2 of 1974) [or under the corresponding

section 488 of the code f criminal procedure, 1898 (5 of 1898)], a decree or

order, as the case may be, has been passed against the husband awarding

maintenance to the wife not withstanding that she was living apart and that

since the passing of such decree or order, cohabitation between the parties has

not been resumed for one year or upwards.

Divorce under Muslim Law :-

Fault Grounds of Divorce

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The dissolution of Muslim Marriage Act, 1939 contains nine-fault

grounds on which wife alone can sue. According to Section 2-

A woman married under Muslim law shall be entitled to obtain a decree

for the dissolution of her marriage on any one or more of the following grounds

namely:--

(i) That the whereabouts of the husband have not been known for a

period of four years.

(ii) That the husband has neglected or has failed to provide for her

maintenance for a period of two years.

(iii)That the husband has been sentenced to imprisonment for a period of

seven years or upwards.

(iv) that the husband has failed to perform, without reasonable cause, his

marital obligation for a period of three years;

(v) that the husband was impotent at the time of the marriage and

continues to be so;

(vi) that the husband has been insane for a period of two years or is

suffering from leprosy or a virulent disease;

(vii) that she, having been given in marriage by her father or other

guardian before she attained the age of fifteen years, repudiated the marriage

before attaining the age of eighteen years; Provided that the marriage has not

been consummated;

(viii) that the husband treats her with cruelty, that is to say-

a) habitually assaults her or makes her life miserable by cruelty of

conduct even if such conduct does not amount to physical ill-treatment, or

b) associates with women of evil repute or leads an infamous life, or

c) attempts to force her to lead an immoral life, or

d) disposes of her property or prevents her exercising her legal rights over

it, or

e) obstructs her in the observance of her religious profession or practice,

or

f) if he has more wives than one, does not treat her equitably in

accordance with the injunctions of the Quran;

(ix) on any other ground which is recognised as valid for the dissolution

of marriage under Muslim Law; Provided that-

a) no decree shall be passed on ground(iii) until the sentence has been

come final;

b) a decree passed on the ground (i) shall not take effect for a period of

six months from the date of such decree and if the husband appears either in

person or through an authorised agent within that period and satisfies the

court that he is prepared to perform his conjugal duties, the court shall set

aside the said decree; and

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c) before passing a decree on ground (v) the court shall, on application by

the husband, make an order requiring the husband to satisfy the court within

a period of one year from the date of such order that he has ceased to be

impotent and if the husband so satisfies the court within such period, no

decree shall be passed on the said ground.

Divorce under Christian Law

Fault Ground of Divorce

Sub-Section (1) of section 10 of the Indian Divorce Act, 1869, which

contains the ground of divorce which runs as under:

Grounds for dissolution of Marriage17- (1) any marriage solemnized,

whether before or after the commencement of the Indian Divorce (Amendment)

Act 2001, may, on a petition presented to the District Court either by the

husband or the wife, be dissolved on the ground that since the solemnization of

the marriage, the respondent-

(i) Has committed adultery; or

(ii) has ceased to be Christian by conversion to another religion; or

(iii)has been incurably of unsound mind for a continuous period of not

less than two years immediately preceding the presentation of the petition; or

(iv) has, for a period of not less than two years immediately preceding the

presentation of the petition, been suffering from a virulent and incurable form

of leprosy; or

(v) has, for a period of not less than two years immediately preceding the

presentation of the petition, been suffering from venereal disease in, 1

communicable form; or

(vi) has not been heard of as being alive for a period of seven years or

more by those persons who would naturally have heard of the respondent if the

respondent had been alive; or

(vii) has willfully refused to consummate the marriage and the marriage

has not therefore been consummated; or

(viii) has failed to comply with a decree for restitution of conjugal rights

for a period of two years or upwards after the passing of the decree against the

respondent; or

(ix) has deserted the petitioner for at least two years immediately

preceding the presentation of the petition; or

(x) has treated the petitioner with such cruelty as to cause a reasonable

apprehension in the mind of the petitioner that it would be harmful or

injurious for the petitioner to live with the respondent.

(2) A wife may also present a petition for the dissolution of her marriage

on the ground that the husband has, since the solemnization of the marriage,

been guilty of rape, sodomy or bestiality.

Divorce under Persian Law :-

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Fault Grounds of Divorce:

The Parsi Marriage and Divorce Act, 1936, contain ten-fault grounds of

divorce on which either spouse may seek divorce. Section 32 runs:

Any married person may sue for divorce on any one or more of the

following grounds, namely:

(a) That the marriage has not been consummated within one year after

its solemnization owing to the willful refusal of the defendant to consummate

it;

(b) That the defendant at the time of the marriage was of unsound mind

and has been habitually so up to the date of the suit: Provided that divorce

shall not be granted on this ground, unless the plaintiff: (1) was ignorant of the

fact at the time of the marriage, and (2) has filed the suit within three years

from the date of the marriage;

(bb) that the defendant has been incurably of unsound mind for a period

of two years or upwards immediately preceding the filing of the suit or has been

suffering continuously or intermittently from mental disorder of such kind and

to such an extent that the plaintiff cannot reasonably be expected to live with

the defendant.

(c) That the defendant was at the time of marriage pregnant by some-

person other than the plaintiff:

Provided that divorce shall not be granted on this ground, unless: (1) the

plaintiff was at the time of the marriage ignorant of the fact alleged, (2) the suit

has been filed within two years of the date of marriage, and (3) Marital

intercourse has not taken place after the plaintiff came to know of the fact;

(d) that the defendant has since the marriage committed adultery or

fornication or bigamy or rape or an unnatural offence;

Provided that divorce shall not be granted on this ground, if the suit has

been filed more than two years after the plaintiff came to know of the fact;

(dd) that the defendant has since the solemnization of the marriage

treated the plaintiff with cruelty or has behaved in such a way as to render it in

the judgment of the court improper to compel the plaintiff to live with the

defendant;

Provided that in every suit for divorce on this ground it shall be in the

discretion of the court whether it should grant a decree for divorce or for

judicial separation only;

(e) That the defendant has since the marriage voluntarily caused grievous

hurt to the plaintiff or has infected the plaintiff with venereal disease or, where

the defendant is the husband, has compelled the wife to submit herself to

prostitution:

Provided that divorce shall not be granted on this ground if the suit has

been filed more than two years (i) after the infliction of the grievous hurt, or (ii)

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after the plaintiff came to know of the infection, or (iii) after the last act of

compulsory prostitution;

(f) That the defendant is undergoing a sentence of imprisonment for

seven years or more for an offence as defined in the Indian Penal Code:

Provided that divorce shall not be granted on this ground, unless the

defendant has prior to the filing of the suit undergone at least one year‘s

imprisonment out of the said period; that the defendant has deserted the

plaintiff for at least two years; that an order has been passed against the

defendant by a Magistrate awarding separate maintenance to the plaintiff, and

the parties have not had marital intercourse for one year or more since such

decree or order;

(j) That the defendant has ceased to be a Parsi by conversion to an-other

religion. Provided that divorce shall not be granted on this ground if the suit

has been filed more than two years after the plaintiff came to know of the fact.

Divorce under Jews Law :-

Under Jewish law, a man can divorce a woman for any reason or no

reason. The Talmud specifically says that a man can divorce a woman because

she spoiled his dinner or simply because he finds another woman more

attractive, and the woman‘s consent to the divorce is not required. In fact,

Jewish law requires divorce in some circumstances: when the wife commits a

sexual transgression, a man must divorce her, even if he is inclined to forgive

her.

This does not mean that Judaism takes divorce lightly. Many aspects of

Jewish law discourage divorce. The procedural details involved in arranging a

divorce are complex and exacting. Except in certain cases of misconduct by the

wife, a man who divorces his wife is required to pay her substantial sums of

money, as specified in the ketubah (marriage contract). In addition, Jewish law

prohibits a man from remarrying his ex-wife after she has married another

man. Kohanim cannot marry divorces at all.

Dissolution of Marriage:

(a) Death of either party- by death of either party, the marriage stands

dissolved.

(b) Void marriage and non-fulfilment of conditions- if the marriage was

between prohibited degrees, it was void ab initio. No formal divorce is necessary

in such a case. When the marriage was preceded by Kaseph Kiddushim and

some conditions were put during such ceremony, the aggrieved party- in the

event of non-fulfilment of the conditions by the other party- may get rid of the

effects of betrothal without intervention of the court.22

(c) Mutual agreement- the Jewish law provides that the court should not

interfere where both parties declare that their marriage has failed and that they

would like to dissolve their marriage.

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The Jewish has no codified legislation. They are governed by their own

customary laws.

(d) Divorce through court- Rev. M. Mieliziner has presented the

matrimonial law as divided into two categories:

(1.) Old law, according to the religious scripture, referred to as the

Mosaic Law and its Rabbinical interpretations and provisions; and

(2.) The causes for divorce considered in the modern legislations in

England and the United States.

The grounds of divorce (besides by mutual consent) under the old

personal law are as follows:

The husband is entitled to divorce:

i. On account of wife‘s adultery and even on strong suspicion of her

having committed this crime;

ii. On account of her public violation of decency;

iii. On account of change of religion or proved disregard of the ritual law

in the management of the household by which she caused him to transgress

the religious precepts against his will;

iv. On account of obstinate refusal of connubial rights during a whole

year;

v. On account of her unjustified refusal to follow him to another domicile;

vi. On account of insulting her father-in-law in the presence of her

husband, or her insulting the husband himself;

vii. On account of certain incurable diseases, rendering cohabitation

impracticable or dangerous, such as epilepsy etc.

The wife can claim divorce on the following grounds:

i. Gross immoral living. The husband leads an immoral life;

ii. Loathsome disease which the husband contracted after marriage but

not from the wife;

iii. Impotency of the husband;

iv. Refusal by the husband to matrimonial intercourse;

v. Apostasy. If the husband changes the religion, the wife may claim

divorce;

vi. Distasteful or immoral trade. If the husband is engaged in such trade

so as to render the wife shun his company, she may claim divorce;

vii. If the husband squanders away his property and refuses to maintain

the wife, she may claim divorce;

viii. Cruelty, ill-treatment by the husband is another ground for divorce;

ix. If the husband, having committed a crime, flees away from the

country, the wife may claim divorce.

The matrimonial causes of the Jews are also regulated by modern

legislations in some parts of England and the United States modern legislations

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and has compiled the principal grounds on the basis of which divorce may be

granted.

Principal grounds of divorce on the basis of modern legislative principles:

(a) Adultery;

(b) Cruelty, differently described in the laws of different States, such as

intolerable severity, injurious treatment, indignities making life burdensome,

etc.

(c) Desertion, also termed as abandonment, or absence without good

cause. The time of wilful absence required to constitute desertion is differently

fixed in the statutes varying from one to five years.

(d) Habitual drunkenness.

(e) Imprisonment for crime. The duration of imprisonment varies in

different States.

(f) Neglect to provide for the wife‘s maintenance and support, though

being able to do so. Also gross neglect of duty on the part of the wife is a

ground for divorce in some of the States.

(g) Impotency in several States, qualified as existing before marriage, and

in this case evens a cause for annulling the marriage, so as to render it void ab

initio.

(h) Joining a religious society which holds marriage to be unlawful is by

the statutes of a few States made a ground for divorce.

(i) In some of the States the causes for which divorce may be granted are

wholly or in part left to the discretion of the Courts.

Conclusion

The 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. 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.

However, to prevent hasty divorces, the law lays down certain restrictions and

grounds for obtaining a divorce. Before obtaining divorce, the parties may first

obtain a decree for judicial separation after which divorce may be obtained.

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.It is conceded

in all jurisdictions that public policy, good morals & the interests of society

require that marital relation should be surrounded with every safeguard and its

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severance be allowed only in the manner and for the cause specified by law.

Divorce is not favored or encouraged, and is permitted only for grave reasons.

In the modern Hindu law, and other personal laws all the three theories

of divorce are recognized & divorce can be obtained on the basis of any one of

them.

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Paper Presented by :: Sri P.Tirumala Rao

III Metropolitan Magistrate,

Vijayawada.

INTRODUCTION:

Marriage according to Hindu Law is a holy sanskar (sacrament) and not

a contract unlike Muslim Law. The maxim 'conjuctic martitet peminae eet de

nature' means that to keep husband and wife together is the law of nature and

the maxim 'Viretunor consentur in lege una persona' means that the husband

and wife are considered one in Law. Marriage, according to the Shastras, is a

holy sacrament and the gift of the girl to a suitable person is a sacred duty put

on the parents and after the performance of which the father gets great

spiritual benefit. The object of marriage is the procreation of children.

A marriage tie is a tie which can never be broken and it is a relation

established from birth to birth according to ancient Hindu Law. Under the old

Hindu Law, DIVORCE was unknown to Hindu society and therefore to law.

Though divorce was unknown, it was in some cases permitted by custom. Such

custom, however, prevailed only among the lower classes. If a person relied

upon divorce as being customary he had to allege and prove the incidents of

that custom. Consequently the right of divorce and second marriage based on

custom was recognised amongst the Jats of the Punjab, Lingayats of South

India and in Western India.

There is nothing immoral in a caste system by which divorce and

remarriage were permissible by mutual agreement; Shankar Lingam ..Vs..

Subbam, (1894) 17 Madras 479. A custom which dissolved a marriage and

permitted wife to marry again where she had been abandoned or deserted by

the husband, was held to be valid; Gopi Krishna ..vs.. Jaggo, AIR 1936 PC 198.

But a custom of caste by which the marriage tie could be dissolved by either

husband or wife against the wishes of the other spouse, the sole condition

attached being the payment of a sum of money fixed by the caste, could not be

recognized by the Courts. It must be regarded as immoral or opposed to public

policy; Keshav ..vs. Bai Gandi, AIR 1915 Bombay 107.

In 1866, Native Converts Marriage Dissolution Act facilitated

divorce for Hindus accepting Christian faith. In 1869, the Indian Divorce Act

was passed but this remained in applicable to Hindus. With the passing of

Hindu Marriage Act, 1955, statutory recognition has been given to the concept

of divorce under certain circumstances.

Concept of divorce:

The concept of divorce is one that has become increasingly pertinent to

today’s society. The statistics about its rise and facts about the decresing

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stability of the nuclear family. Rates of divorce have increased so greatly over

the past few decades that people have come to fear the institution of marriage.

Causes of divorce and how it has evolved over the past three decades are issues

that must be addressed in order to understand this problem. The dissolution

of marriage is without a doubt a problem for today’s society. It is probably one

of the biggest problems. Children of divorce are often left with scars that do

not heal. Often children from divorced familes have more difficult time

establishing intimate relationships. Recognizing the changing rates of marriage

and divorce are necessary in analyzing today’s family structure. One cannot

deny that these divorce rates show a relevant problem that must be researched

in order to understand elements of family life today.

Under Hindu marriage Act, 1955 both the husband and wife have been

given a right to get their marriage dissolved by a decree of divorce on one or

more grounds enumerated in Sec.13. Some of the grounds initially inserted

were substituted and some more grounds are added. In the year 1964 Sub-

section 1-A was inserted by which either party to the marriage was also given a

right to apply for dissolution of marriage by a decree of divorce.

Grounds of divorce:

The Act originally recognized the fault grounds for obtaining the decree of

divorce. For this purpose nine fault grounds were mentioned in the Act.

Sec13(1) lays down these fault grounds, on which either the husband or wife

could sue for divorce.

Two fault grounds have been dealt with in the Sec.13(2), on which wife

alone could seek the decree of divorce.

In 1976, the grounds for divorce by mutual consent have been recognized

through provision of the section 13B of the Hindu marriage Act, 1955 says:

Any marriage solemnized, whether before or after the commencement of

the Act, may on a petition presented by either the husband or the wife, be

dissolved by a decree of divorce on some grounds.

There are 9 grounds for divorce available to husband and wife both:

1. Adultery

2. Cruelty.

3. Desertion.

4. Conversion.

5. Unsound mind.

6. Leprosy.

7. Venereal disease.

8. Renunciation of the world.

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9. Presumed death.

There are 4 additional grounds for divorce available to only wife:

1. Bigamy.

2. Rape, Sodomy or bestiality.

3. Non resumption of cohabitation after decree or order of maintenance.

4. Option of puberty.

Theory regarding divorce:

The provisions relating to divorce is contained in Sec.13 of Hindu

Marriage Act, 1955. The act recognizes two theories of Divorce:

Fault Theory:

The underlying rational is that since 2 persons can marry by their free

will, they should also be allowed to move out of their relationship of their own

free will. However, critics of this theory say that this approach will promote

immorality as it will lead to hasty divorces and parties would dissolve their

marriage even if there were slight incompatibility of temperament. Some of the

grounds available under Hindu Marriage Act can be said to be under the theory

of frustration by reasons of specified circumstances. Thgese include civil death

renouncement of the world etc.,

Fault Divorce:

One of the spouses requests that a divorce be granted based on some

fault of the other spouse. Fault divorces are not as common, and in fact most

states no longer even recognizes them. IN the states that do recognize them,

one of the spouse requests that a divorce be granted based on some fault of the

other spouse. The most common grounds for granting a fault divorce are:

Adultery.

Abandonment for a certain length of time.

Prison confinement.

A spouse is physically unable to have sexual intercourse

Inflicting emotional or physical pain (cruelty).

No state requires the spouses seeking a fault divorce to live apart for a

specific period of time, unlike a no fault divorce. Proving fault also often

provides the spouse without fault with a larger portion of the marital property

or support. These 2 characteristics make a fault divorce more attractive to

some people.

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Doctrine of Comparative Rectitude:

When both spouses seek a fault divorce and can both prove the other

spouse is at fault, the court decides which one is least at fault. That party will

be granted the divorce. This is called “Comparitive rectitude”. This doctrine

was created to address the problem of courts granting neither party a divorce if

they were both at fault Courts have a public policy interest is not foreing two

people to stay married if they don’t wasn’t to be.

Defenses to a Fault Divorce:

Unlike a no fault divorce, a spouse can object to a fault divorce by

disproving or presenting a defense to the fault complained of the following is a

list of common fault divorce defenses:

Connivance is an absolute defense to adultery. Connivance alleges that

the complaining spouse agreed to and even participated in the infidelity. It

makes sense that a couple who voluntarily for a fault divorce.

Condition is a claim that the other spouse knew about the complained of

conduct, forgave such conduct and resumed the marital relationship. This is

used to defend an adultery accusation,

Recrimination is when the complaining spouse is equally at fault or

engaged in similar conduct. For example, if both spouses had affairs, neither

one would be able to use adultery as ground for a fault divorce.

Provocation is where one spouse is enticed by the other spouse to act in

a certain way. For example, where one spouse abuses the other spouse, which

forces that other spouse to leave the marital home, the abusive spouse would

not be able to then use abandonment as grounds for divorce, since it was his

or her abuse that caused the other spouse to leave.

Collussion refers to an agreement between both of the spouses to

fabricate the grounds for divorce. If one of the spouses changes his or her

mind, collusion could be raised to lessen the original grounds for the fault

divorce.

Proving any of these defenses can be costly6, timely and often involves

the use of witnesses. Furthermore, courts have an intent in not forcing people

to stay married who don’t want to be married, and so usually grant divorces to

people who ask, despite defenses given by the other spouse. These reasons

typically defer people from attempting defenses.

No fault theory of divorce:

It refers to a type of divorce in which the spouse who is filing for divorce

does not have to prove any fault on the part of the other spouse. Prior to 1976

Divorce only on the basis of fault theory it means marriage can be dissolved

only when either party to the marriage had committed a matrimonial offence.

But now Divorce can also be obtained on the basis of no fault theory, it means

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divorce can obtain by the mutual consent of the parties to marriage under the

marriage laws (Amendment) Act, 1976. According to section13-B(1), such a

petition is required to be moved jointly by the parties to marriage on the

ground that they have been living separately for a period of one year or more

and they have not been to live together and also that they have agreed that

marriage should be dissolved.

As per section 13-B(11) of the Act lays down that on the motion of both

the parties made no earlier than 6 months after the date of the presentation of

the petition referred to in sub-section(1) given above and not later than 18

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 marriagte has been solemnized and that

averments in the petition are true, then pass a decree of divorce, declaring the

marriage to be dissolved with effect from the date of decree.

Essentials of divorce by mutual consent:

According to section13-B, there are 3 essentials of divorce by mutual

consent:-

That both the parties have been living separately for a period of 1 year

or more;

That both the parties have not been able to live together;

That both the parties have mutually agreed that their marriage should

be dissolved.

It is an important to note that the consent obtained for divorce means

divorce by mutual consent not obtained by force, fraud, it means consent must

be freee as per section23(1) of this Act.

The karnatake high Court in Krishna Marti Rao V.Kamalashi, [v] has said

that on filing a petition jointly by the wife and husband, the following points

are to be proved for getting a decree of divorce on Mutual Consent:-

The parties to marriage are living separately for a period of one year or

more;

The could not live together;

They have reached a compromise that they would dissolved the marriage;

and

That they have consented to divorce not under any force or fraud or

undue influence.

Court of competent jurisdiction there upon an application being made by

both the parties at any time after 6 months, but before 18 months from the

date of presentation of petition, will make proper enquiries as it may deem fit.

It is incumbent upon the Court to verify that the statements made in the

petition are true. This requires the Court to verify, by examination on oath,

whether they have consented to dissolve their marriage as stated in petition.

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After making necessary enquiry into the facts that marriage was solemnized,

that the parties have not withdrawn the joint petition in the meantime, and

that their consent continues as stated in the petition, on the day of examining

the parties on oath. The Court has to satisfy itself about the genuineness of

the averments in the petition and also to find out whether the consent was not

obtained by force, fraud or undue influence f the court is satisfied that the

consent of parties was not obtained by force, fraud or undue influence and

they have mutually agreed that the marriage should be dissolved, it must pass

a decree of divorce. Thereupon the court will declare that the marriages

solemnized between the parties are dissolved. After presentation of the petition

for divorce by mutual consent, either of the parties may retract his or her

consent at any time or at the time of examination on oath and thereupon the

petition shall be dismissed.

It therefore follows that the parties even when having stated in the

petition that they have decided to dissolve their marriage by mutual consent,

have opportunity to retract or withdraw the consent at the time of examination

on oath by the Court. The Period of consideration of the petition only after 6

months of the presentation, imply that the parties are having opportunity to re

think on the decision of divorce and law gives ample opportunity to save

marriages.

However, it is incumbent upon the parties to move before the Court

before 18 months from the date of presentation of the petition for divorce. The

Court is not bound to pass decree of divorce by mutual consent after a period

of 18 months for the date of presentation of the petition.\

In Smt. Sureshta Devi V/s. Om prakash, the Apex Courty has held that

living separately for a period of 1 year should be immediately precede the

presentation of the petition. It is necessary that immediately preceding the

presentation of petition, the parties must have been living separately. The

expression living separately connotes not livging like husband and wife. It has

no reference to the place of living. The arties may live under the same roof by

force of circumstances, and yet they may not be living as husband and wife.

The parties may be living in different houses and yet they could live as

husband and wife. What seems to be necessary is that they have no desire to

perform marital long period and the wife had not withdrawn her consent within

18 months from the date of presentation of petition. The meaning of the words

in the Act that they 'have not been able to live together' indicates the concept of

broken down marriage and it would not be possible to reconcile themselves.

In Ashok Hurra .Vs. Rupa Bipin Zaveri, the Apex Court of India held that

Suresshta Devi's decision that 'consent can be withdrawn at any time before

decree is passed' are to wide and requiress reconsideration. In this case, the

petition for divorce by mutual consent was pending for a considerably long

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period and the wife had not withdrawn her consent within 18 months from the

date of presentation of petition. Neither divorce decree could be passed nor

reconciliation could be brought about between the spouses. Moreover, during

the pendency of the divorce proceedings, the husband had contracted another

marriage and begot a child. Civil and criminal proceedings were also initiated

by the spouses against each other during pendency of the suit. In view of the

above facts, the Supreme Court held that ------

The cumulative effect of the various aspects in the case indisputably

point out that the marriage is dead, both emotionally and practically and there

is long laps of years since the filing of the petition; existence of such a state of

affairs of warrant the exercise of the jurisdiction of this Court under articles

142 of the constitution and grant a decree of divorce by mutual consent and

dissolve the marriage between the parties.

Conclusion:

The Hindus consider marriage to be a sacred bond. Prior to the Hindu

Marriage Act of 1955, the concept of getting divorced was too radical for the

Indian Society. The wife was the silent victim of such a rigid system. Now the

law provides for a way to get out of an unpleasant marriage life 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. The Courts also consider in each case the

animus, of the wife and the surrounding circumstances for the wfie to take up

service at a place different from the place of business or vocation of her

husband. There is no warrant in Hindu Law to regard the wife as having no

say in choosing the polace of matrimonial home. However, to prevent hasty

divorce, the law lays down certain restrictions and grounds for obtaining a

divorce.

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Paper Presented by :: Smt. B.Padma,

Prl. Junior Civil Judge,

Nuzvid.

INTRODUCTION :

In literal sense, "divorce" means a legal separation of two persons of the

opposite sex who desire to respect and honour each other. Earlier the marriage

under Hindu Dharma Shastra was considered a sacred bond and did not

provide for divorce, until it was codified in the year 1955.

The Hindu Marriage Act, 1955 which came into existence, eight years

after the independence of the India, under section 13 provided with the

grounds on which the parties can seek a decree of divorce from a competent

court having jurisdiction to entertain such petition.

In early Roman law, marriage and divorce were essentially private acts of

parties. Whenever two persons wanted to marry they could do so; and

whenever they wanted to put their marriage as under they were equally free to

do so. No formalities or intervention of an agency was necessary for either.

In England before 1857, a marriage could be dissolved only by an Act of

Parliament. After a considerable pressure, divorce was recognized under the

Matrimonial Causes Act, 1857, but only on one ground i.e. adultery. This

continues to be position in India in respect of the Christian marriage. Later on

insanity was added as a ground of divorce. The inevitable consequence of this

philosophy was that marriage came to be regarded as a special contract which

cannot be put to an end like an ordinary contract. A marriage can be dissolved

only if one of the spouses is found guilty of such an act and conduct which

undermined the very foundation of marriage. This led to the emergence of the

offence or guilt theory of divorce. Marriage as an eternal union was not

altogether immune to rejection. However, earlier there was no systematic code

to regulate divorce in specific.

The Hindu law of divorce, as codified under the Hindu Marriage Act,

1955, has accommodated three theories namely ‘Fault’ or ‘Guilt’ theory, ‘Break

down’ theory and ‘Consent’ theory.

Under the fault theory, marriage can be dissolved only when either party

to the marriage had committed any matrimonial offence. Under this theory, it is

necessary to have a guilty and an innocent party; and only the innocent party

can seek the remedy of divorce. Whereas under the nofault theory,the spouse

asking for a divorce does not have to prove that the other spouse did something

wrong or any matrimonial offence. All states allow no fault divorces. To get a no

fault divorce, one spouse must simply state a reason for the divorce that is

recognized by the law.

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No Fault Divorce : A no fault divorce refers to a type of divorce in which the

spouse that is filing for divorce does not have to prove any fault on the part of

the other spouse. All a spouse has to do is give any reason that the state

honors for the divorce. The most commonly given reason is "irreconcilable

differences" or an "irreparable breakdown of the marriage." These are just fancy

ways of saying that the couple does not get along and that the marital

relationship cannot be repaired. A spouse cannot object to another's petition

for no fault divorce, as that objection itself is viewed by the court as an

irreconcilable difference.

Fault Divorce

Fault divorces are not as common, and in fact, most states no longer

even recognize them. In the states that do recognize them, one of the spouses

requests that a divorce be granted based on some fault of the other spouse. The

most common grounds for granting a fault divorce are:

Adultery

Abandonment for a certain length of time

Prison confinement

A spouse is physically unable to have sexual intercourse

Inflicting emotional or physical pain (cruelty)

No state requires the spouses seeking a fault divorce to live apart for a

specific period of time, unlike a no fault divorce. Proving fault also often

provides the spouse without fault with a larger portion of the marital property

or support. These two characteristics make a fault divorce more attractive to

some people.

Comparative Rectitude

When both spouses seek a fault divorce and can both prove the other

spouse is at fault, the court decides which one is least at fault.

That party will be granted the divorce. This is called "comparative

rectitude." This doctrine was created to address the problem of courts granting

neither party a divorce if they were both at fault. Courts have a public policy

interest in not forcing two people to stay married if they don't want to be.

NO FAULT THEORY OF DIVORCE :

No fault divorce refers to a form of divorce in which the spouse that is

filing for divorce does not have to prove any fault on the part of the other

spouse. All a spouse has to do is give any reason that the state honors for the

divorce. The most commonly given reason is "irreconcilable differences" or an

"irretrievable breakdown of the marriage". These are just fancy ways of saying

that the couple does not get along and that the marital relationship cannot be

repaired. A spouse cannot object to another's petition for no fault divorce, as

that objection itself is viewed by the court as an irreconcilable difference. All

states recognize no fault divorces, but some states require that the spouses live

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separately for a designated period of time before either of them can file for a

divorce. Under the Indian matrimonial laws, a form of irretrievable breakdown

of marriage has been recognized under the Hindu Marriage Act, 1955, the Parsi

Marriage and Divorce Act, 1936 and the Special Marriage Act, 1954 while a

nother form of irretrievable breakdown of marriage as a basis of divorce is

recognized under Muslim law. Section 13 (1A) of the Hindu Marriage Act, 1955

contains the provision for irretrievable breakdown of marriage which runs as

"Either party to a marriage, whether

solemnized before or after the commencement of this Act, may also present a

petition for the dissolution of the marriage by a decree of divorce on the ground

(I) that there has been no resumption of cohabitation as between the parties to

the marriage for a period of one year or upwards after the passing of a decree

for judicial separation in a proceeding to which they were parties; or

(ii) that there has been no restitution of conjugal rights as between the parties

to the marriage for a period of one year or upwards after the passing of a decree

for restitution of conjugal rights in a proceeding to which they were parties. The

Hon'ble Apex Court in the case of Visnu Dutt Sharma Vs. Manju Sharma

reported in AIR 2009 SC 2254, held that on bare reading of section 13 of the

Hindu Marriage Act, it is clear that no such ground of irretrievable breakdown

of marriage is provided by the Legislature for granting a decree of divorce. The

court cannot add such a ground to

section 13 of the Act as that would be amending the Act which is a function of

the Legislature. Evidently by laying down that either party could sue for divorce

and not merely the so-called innocent party and the divorce could not be

denied to the other party the so called guilty party. The amendment sought to

give up the guilt theory and sought to introduce the irretrievable breakdown

principle of divorce. Noncompliance with a decree for restitution of conjugal

rights and non resumption of cohabitation after a decree of judicial separation

for a period of one year is treated as a conclusive evidence of breakdown of

marriage.

Prior to 1976, Divorce only on the basis of fault theory, it means

marriage can be dissolved only when either party to the marriage had

committed a matrimonial offence. But now Divorce can also be obtained on the

basis of no fault theory, it means divorce can obtain by the mutual consent of

the parties to marriage under the marriage laws (Amendment) Act, 1976.

According to section 13B (1) of the Hindu Marriage Act, 1955,such a petition is

required to be moved jointly by the parties to marriage on the ground that they

have been living separately for a period of one year or more and they have not

been to live together and also that they have mutually agreed that marriage

should be dissolved.

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Section 13-B (II) of the Act lays down that 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) given above 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

averments in the petition are true, then pass a decree of divorce, declaring the

marriage to be dissolved with effect from the date of decree.

According to section 13-B of the Hindu Marriage Act, 1955, there are

three essentials of divorce by mutual consent viz.

That both the parties have been living separately for a period of one year

or more; That both the parties have not been able to live together;

That both the parties have mutually agreed that their marriage should be

dissolved.

It is an important to note that the consent obtained for divorce means

divorce by mutual consent not obtained by force, fraud, it means consent must

be free as per section 23(1) of this Act. A Court of competent jurisdiction there

upon motion (application) being made by both the parties at any time after six

months, but before eighteen months from the date of presentation of petition,

will make proper enquiries as it may deem fit. It is incumbent upon the Court

to verify that the statements made in the Petition are true. This 11 requires the

Court to verify, by examination on oath, whether they have consented to

dissolve their marriage, as stated in Petition. After making necessary enquiry

into the facts that marriage was solemnized, that the parties have not

withdrawn the joint petition in the meantime, and that their consent continues,

as stated in the Petition, on the day of examining the parties on oath. The

Court has to satisfy itself about the genuineness of the averments in the

petition and also to find out whether the consent was not obtained by force,

fraud or undue influence. If the court is satisfied that the consent of parties

was not obtained by force, fraud or undue influence and they have mutually

agreed that the marriage should be dissolved, it must pass a decree of divorce.

Thereupon, the Court will declare by decree that the marriage solemnized

between the parties are dissolved from the date of decree. After presentation of

the Petition for divorce by mutual consent, either of the parties may retract

his or her consent at any time or at the time of examination on oath and

thereupon the Petition shall be dismissed. It therefore follows that the parties

even when having stated in the Petition that they have decided to dissolve their

marriage by mutual consent, have opportunity to retract or withdraw their

consent at the time of examination on oath by the Court. The period of

consideration of the petition only after six months of the presentation, imply

that the parties are having opportunity to re think on the decision of divorce

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and law gives ample opportunity to save marriage. However, it is incumbent

upon the parties to move before the Court before eighteen months from the

date of presentation of the Petition for divorce. The Court is not bound to pass

decree of divorce by mutual consent after a period of eighteen months from the

date of presentation of the Petition.

CONCLUSION :

The Hindus consider marriage to be a sacred bond. Prior to the Hindu Marriage

Act of 1955, the re 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. 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. However, to prevent hasty

divorces, the law lays down certain restrictions and ground s for obtaining a

divorce. With the advancement in socio - economic conditions, the concept of

marriage has also changed. The spouses are more self- reliant and independent

than they used to be before. The spirit of forced tolerance of yesteryears is

disappearing. They are prepared to live separately rather than stay united while

unhappy. The family relations always depend on the understanding and faith

between the spouses and once it is broken, the very existence of the 13 family

is in question. The best course in such cases would be to set them free of the

bond, which does not serve and purpose at all. The logic behind granting

divorce on breakdown of marriage is that what could not be mended should be

ended. The guilt or fault theory of divorce should be replaced, though

gradually, in exceptional cases by breakdown of marriage theory. This will

enable the embattled couple, who failed to secure conjugal happiness, a fresh

start in life. A marriage could be broken down on account of fault of either

party or both parties or on account of fault of neither party. It may happen that

relations of husband and wife became so strained that they stopped living with

each other. In such a situation, it is desirable that the relationship is brought

to an end by a decree of divorce on the ground of irretrievable breakdown of

marriage without fixing any responsibility on either party in the interest of both

the parties and also the society.

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Paper Presented by :: Sri S.Srikanth,

Junior Civil Judge,

Vuyyuru.

Divorce is the ‘dissolution of a valid marriage in law’, in a way other than

the death of one of the spouses, so that the parties are free to remarry either

immediately or after a certain period of time. The Concept of divorce was

introduced in India in the latter part of the 19th century among two classes of

Christians. It was introduced for Hindus in 1955 in the form of the Hindu

Marriage Act 1955. Before the commencement of the Hindu Marriage Act 1955,

there were Acts in some of the States providing for divorce in certain

circumstances, viz., the Bombay Hindu Divorce Act (22 of 1947), the Madras

Hindu (Bigamy, Prevention and Divorce) Act (6 of 1949), and the Saurashtra

Hindu Divorce Act (30 of 1952)1. These Acts were repealed by Section 30 of the

Hindu Marriage Act 1955. Under the Hindu Marriage Act 1955, initially,

adultery, cruelty, and desertion were not made grounds of divorce but of

judicial separation. These grounds were based on the fault theory of divorce. At

present, ‘Divorce’ is governed by different Acts1 among different communities

in India. Section 13 of the Hindu Marriage Act 1955 has undergone many

changes through amendments. Section 13 (1-A) was introduced in the present

Act by the Hindu Marriage (Amendment) Act (44 of 1964). The amendments of

1976 in the Hindu Marriage Act 1955 have made these three grounds as

grounds of divorce as well as of judicial separation and also added Section 13-

B, providing for divorce by mutual consent. The other grounds of divorce are

virulent leprosy, incurable and continuous insanity, venereal diseases,

conversion to another religion, renunciation of world by entering a holy order

or sect and when whereabouts are unknown for a period of seven years or

more. By the Marriage Laws (Amendment) Act (68 of 1976), the words “is living

in adultery” stated in Section 13 (1) (i) were substituted by the words “has after

solemnization of the marriage had voluntary sexual intercourse with any

person other than his or her spouse”.

Fault theory

This is the traditional theory that requires an innocent party to approach

the court to file for a divorce due to a fault on the part of the other party. Here,

it is possible to distinguish between two kinds of faults: which are directed

towards the petitioner and which are not directed towards the petitioner. The

latter may be referred to as a separate theory- “theory of frustration of marital

relationship” . Both the kinds of faults have been incorporated in the Act as

grounds for obtaining divorce. The following are examples of grounds based on

fault that is directed against the petitioner under the Act: adultery, cruelty,

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desertion, bigamy, rape, sodomy or bestiality and failure to pay maintenance .

The grounds for divorce on the basis of fault not directed towards the other

party are: conversion to another religion, insanity, virulent or incurable form of

leprosy, venereal disease in a communicable form, renunciation of the world

and being missing for seven years or more. Thus the fault can either be

inherent in the person or be a result of his/her actions; nonetheless there must

be a fault in the person. The Act provides or certain defences to a petition for

divorce. No person in order to get relief can take advantage of his own wrong or

disability, can connive, condone or collude with the respondent and

unnecessarily delay the filing of the petition. Any of these circumstances would

result in denial of the grant of divorce even if the fault is proved.

Thus, the theory requires an innocent party in need of relief and a guilty party

against whom the relief is granted. If the guilty party is able to show that the

party claiming to be innocent is also guilty, no relief would be granted to the

petitioner

No fault theory

The institution of marriage being distinct as regards its socio-economic

and legal footings, it will be unjust if the law ignores the importance attached

to it. But at the same time it is the choice of the parties to a valid marriage to

understand the importance of the institution and to preserve its sanctity. With

the changing requirements, attitude and aptitude, the society has drastically

changed and it is very difficult for the married couples to cope with change.

While adjusting in a new atmosphere in the matrimonial home, spouses may

commit, knowingly or unknowingly, with or without intention, whether

economical dependent or independent, some kind of mistakes which lead to a

communication gap between them and create havoc in the matrimonial home.

Some times no party is willingly ready to hurt another one but circumstances

beyond control create unhealthy atmosphere in the matrimonial home. It is

difficult to say which party is at fault but matrimonial relationship loses its

sweetness and its sanctity. At the same time it is more difficult to find out

bitterness between the parties if they are well educated, working and

economically independent because each individual has his own style of living.

Where both the parties of a valid marriage are at fault of any kind of

matrimonial offence, it is difficult to prove which one is an aggrieved party.

According to the Doctrine of Recrimination, no remedy can be granted to the

party who is at fault. It is imperative in law to have one party as innocent and

another at fault to provide a matrimonial relief. A person who seeks

matrimonial remedy must come to the Court with clean hands. For example, if

in a petition for divorce on the ground of respondent’s adultery, it is found the

petitioner is also guilty of adultery, then the petition will not be granted divorce

even though there is no co-relationship between the two adulteries. English law

97

abandoned this position in later law and changed the matrimonial laws as per

the need and requirements of the time. In case of no fault theory of divorce, it

is not necessary to prove which party is at fault. There may be many reasons

based on which sweetness of matrimonial relationship is at risk. If the parties

prove with reliable evidence on record that their marriage is beyond all possible

repairs then law should understand the reality of the facts and should help the

parties to the marriage which has broken down irretrievably. The Law

Commission of India in its 71st Report on “the Hindu Marriage Act 1955 -

Irretrievable Breakdown of Marriage as a Ground of Divorce” had suggested

that the theoretical basis for introducing irretrievable breakdown as a ground

of divorce is one with which, by now, lawyers and others have become familiar.

Restricting the ground of divorce to a particular offence or matrimonial

disability, it is urged, causes injustice in those cases where the situation is

such that although none of the parties is at fault, or the fault is of such a

nature that the parties to the marriage do not want to divulge it, yet there has

arisen a situation in which the marriage cannot be worked. The marriage has

all the external appearances of marriage, but none of the reality. As is often put

pithily, the marriage is merely a shell out of which the substance is gone. In

such circumstances, it is stated, there is hardly any utility in maintaining the

marriage as a façade, when the emotional and other bounds which are the

essence of a marriage have disappeared. The breakdown theory of divorce

which is inherently attached with no fault theory of divorce represents the

modern view of divorce. Under this theory, the law realises a situation and says

to the unhappy couple: if you can satisfy the Court that your marriage has

broken down, and that you desire to terminate a situation that has become

intolerable, then your marriage shall be dissolved, whatever may be the cause.

The marriage can be said to be broken when the objects of the marriage cannot

be fulfilled. When there is not an iota of hope that parties can be reconciled, it

can be considered as irretrievable breakdown of marriage.2 Another logic why

this theory holds is that after the marriage has ceased to exist in substance

and in reality, there is no reason for denying divorce. Divorce should be seen as

a solution and an escape route out of a difficult situation. Such divorce is

unconcerned with the wrongs of the past, but is concerned with bringing the

parties and the children to terms with the new situation and developments by

working out the most satisfactory basis upon which they may regulate their

relationship in the changed circumstances. In fact, the intention of the

Parliament to introduce the concept of breakdown into the Hindu Marriage Act

1955 is evident from the statement of objects and reasons of the Amendment

Bill, which reads as follows: The rights to apply for divorce on the ground that

98

cohabitation has not been resumed for a space of two years or more after the

passing of a decree for judicial separation, or on the ground that conjugal life

has not been restored after the expiry of two years or more from the date of

decree for restitution of conjugal rights should be available to both the

husband and the wife, as in such cases it is clear that the marriage has proved

a complete failure. There is, therefore, no justification for making the right

available only to the party who has obtained the decree3. In Madhukar v.

Saral4, the Bombay High Court held that the enactment of Section 13 (1-A) in

1964 is a legislative recognition of the principle that in the interest of society, if

there has been a breakdown of the marriage, there is no purpose in keeping the

parties tied down to each other. In Abu Baker Haji v. Manu Koya5, the Kerala

High Court held that trivial differences get dissolved in course of time and may

be treated as teething troubles of early matrimonial adjustment. The stream of

life lived in married mutuality washes away smaller pebbles but that is not the

case when the incompability of minds breaks up the flow of stream. In such

circumstances the breakdown of marriage is evident so we recognize that fact

and accord divorce6.6 The Delhi High Court also observed in Ram Kali v. Gopal

Das7s that it would not be a practical and realistic approach, indeed it would

be unreasonable and inhuman to compel, the parties to keep up the face of

marriage even though the rift between them is completed and there are no

prospects of their ever living together as husband and wife. The Law

Commission of India in its 71st Report on ‘Reform of the Grounds of Divorce’

said that objectives of any good divorce law are two fold: “One, to buttress,

rather than undermine, the stability of marriage, and two, when regrettably, a

marriage has irretrievably broken down, to enable the empty shell to be

destroyed with the maximum fairness, and the minimum bitterness, distress

and humiliation”8.8 If a marriage has broken down beyond all possibilities of

repair, then it should be brought to an end, without looking into the causes of

breakdown and without fixing any responsibility on either party. In

contemporary society, the breakdown of marriage theory is recognised by the

laws of many countries and a trend towards this theory becomes discernable

through two methods: (1) by enlarging the number of grounds based on the

fault theory; and (2) by giving the widest possible interpretation to the

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traditional fault grounds. Cruelty has proved to be the most fertile ground. In

Gollins v. Gollins,9 the husband’s failure to take up a job, his inability to

maintain his wife and his dependence on his wife to pay off his pressing debts

was held to be a conduct amounting to cruelty. In Williams v. Williams,10

husband’s persistent accusations of adultery against the wife were considered

amounting to cruelty, despite the fact that the husband was found to be

insane. In Masarati v. Masarati,11 the Court of Appeal held that “today we are

perhaps faced with a new situation as regards the weight to be attached to one

particular factor that is the breakdown of marriage”. In the Mortimer

Committee’s report the breakdown of marriage is defined as: “such failure in

the matrimonial relationship or such circumstances adverse to that relation

that no reasonable probability remains for the spouses again living together as

husband and wife.12

In Hindu law, the breakdown theory has its own version. Under the

Hindu Marriage Act 1955-76 divorce can be obtained by either party to a valid

marriage on the following grounds: (a) If it is shown that a decree of restitution

of conjugal rights has not been complied with for a period of one year or more,

or (b) If it is shown that cohabitation has not been resumed for a period of one

year or more after passing of the decree for judicial separation.13 These

grounds of divorce are not recognised under the Special Marriage Act 1954-

76.14 Thus, the breakdown theory was introduced into the Indian Law by

allowing divorce both to the so called innocent and the guilty parties. However,

the provisions of the matrimonial bars under both the Acts were overlooked.

The Law Commission of India in its 71st report has recommended that

irretrievable breakdown of marriage should be a separate ground of divorce for

Hindus. It suggests the period of three years’ separation as a criterion of

breakdown. On the basis of the report, the Marriage Laws (Amendment) Bill

198115 was introduced in the Parliament but was allowed to lapse on account

of opposition by some women’s organizations. Irretrievable breakdown of

marriage as a ground of Divorce Irretrievable breakdown of marriage as a

separate ground of divorce has not yet found a place in the marriage statutes

in India, viz., the Hindu Marriage Act 1955, the Special Marriage Act 1954, the

Divorce Act, 1869 (2001) the Parsi Marriage and Divorce Act 1936, the

Dissolution of Muslim Marriage Act 1939. The foundation of a sound marriage

is tolerance, adjustment and respect for one another. Tolerance to each other’s

fault to a certain bearable extent has to be inherent in every marriage. Petty

quibbles and trifling differences should not be exaggerated and magnified to

destroy what is said to have been made in heaven. All quarrels must be

weighed from that point of view in determining what constitutes irretrievable

breakdown of marriage in each particular case and always keeping in view the

physical and mental conditions of the parties, their character and social status.

100

A too technical and hypersensitive approach would be counter-productive to

the institution of marriage. The Courts do not have to deal with ideal husbands

and ideal wives. They have to deal with a particular man and woman before

them.

In Harendra Nath Burman v. Suparva Burman,16 the Court observed

that the mere breakdown of marriage, however irretrievable, is not by itself and

without more, any ground for dissolution of the marriage as yet under our

matrimonial law. However, in Ram Kali v. Gopal,17 the Court observed, “it

would not be practical and realistic, indeed it would be unrealistic and

inhuman, to compel the parties to keep up the façade of marriage even though

the essence of marriage between them has completely disappeared and there

are no prospects of their living together as husband and wife”. Where the

parties were living separately for sixteen years without any chance of

reconciliation, the Court held that marriage had broken down and dissolution

of marriage was justified.18 It may be noted that in this case the term

“irretrievable breakdown” has not been used; only “broken down” has been

stated. But lately even the Apex Court is using the phrase “irretrievable

breakdown of marriage”.19 In Gajendra v. Madhu Mati,20 it was held that

where parties have been living separately for seventeen years, the chance of

their re-union may be ruled out and it may be reasonable to assume that the

marriage has broken down irretrievably. So the marriage should be dissolved.

Arguments against introduction of Irretrievable Breakdown of Marriage

A law of divorce based mainly on fault is inadequate to deal with a

broken marriage. Under the fault theory, guilt has to be proved; Courts are

presented with concrete instances of human behaviour which bring the

institution of marriage into disrepute. The irretrievable breakdown of marriage

is not a separate ground of divorce by itself. But while scrutinising the evidence

on record to determine whether the grounds on which divorce is sought are

made out, the circumstances can be taken into consideration. No divorce can

be granted on the ground of irretrievable breakdown of marriage if the party

seeking divorce on this ground is himself or herself at fault. The decree of

divorce on the ground that the marriage has been irretrievably broken down

can be granted in those cases where both the parties have leveled such

allegations against each other that the marriage appears to be practically dead

and the parties cannot live together. The power of the Court to grant divorce on

the ground of irretrievable break down of marriage should be exercised with

much care and caution in exceptional circumstances only in the interest of

both the parties.21 A decree of divorce between the parties cannot be granted

on ground of marriage having been irretrievably broken down, in the absence of

one or more grounds as contemplated under Section 13 (1).22 One of the views

against the introduction of Irretrievable Breakdown of marriage as a separate

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ground of divorce is contained in the judgment of William Scott in Evans v.

Evans23 : The general happiness of the married life is secured by its

indissolubility….When people understand that they must live together, they

learn to soften by mutual accommodation….for necessity is a powerful master

in teaching the duties which it imposes. The two grounds on which the

irretrievable breakdown theory has been opposed as contained in the 71st

Report of the Law Commission of India are: It will allow the spouses to

terminate the marriage at will and it is against the basic principle that one

shall not be allowed to take advantage of his own wrong as against Section 23

of the Act.24 The Report responded these objections by stating that they will

never succeed in their entirety and relevant safeguards will be introduced at

the relevant places to counter these objections. In the words of Friedmann :

The cost of an unhappy marriage, forcibly maintained by unavailability of legal

divorce grounds, or more frequently by lack of resources to circumvent the law,

may be an increase in juvenile delinquency or lesser forms of social

maladjustment.25

Irretrievable breakdown of marriage is not contemplated to be one of the

grounds for dissolution of marriage. Thus, by itself, it cannot be taken to be a

ground for decree of dissolution of marriage.26 Similarly in Tapan Kumar

Chakraborty v. Jyotsna Chakraborty27 it was held by the Calcutta High Court

that the Court cannot grant any decree of divorce on the ground that the

marriage is irretrievably broken down, as it has not yet been made a ground for

divorce. In Reynold Rajamoni v. Union of India28 the Supreme Court

emphasized that when legislative provisions specify the grounds on which

divorce may be granted, they constitute the only conditions on which the Court

has jurisdiction to grant divorce. If grounds need to be added to those already

specifically set forth in the legislation that is the business of the legislature and

not of the Courts. In Vishnu Dutt Sharma v. Manju Sharma29 the Supreme

Court made it clear that a decree of divorce between the parties cannot be

granted merely on ground of marriage having been irretrievably broken down

and Court cannot add a new ground in the existing list of grounds as available

in Section 13 of the Hindu Marriage Act 1955 or any other Statute dealing with

matrimonial remedies.

The concept of irretrievable breakdown of marriage cannot be used as a

magic formula to obtain a decree for divorce where grounds for divorce are not

proved. In a case where the husband utterly failed to prove his ground of

cruelty and gave up the ground of adultery, which was wholly unfounded, the

Court held that the husband is not entitled to a decree of divorce.30 Where the

husband failed to prove cruelty and desertion on the part of the wife and the

Court had taken considerable time in disposal of appeal it refused to become a

tool in hands of the parties.31 However whether the marriage had irretrievably

102

broken down beyond repair is a question which has to be answered having

regard to the facts of the particular case.32 While deciding a divorce petition

filed by the husband based on irretrievable breakdown of marriage, Justice P.

B. Majumdar observed that ‘marriage between a man and a woman is

considered to be a sacred ceremony. It is a social contract between two

individuals that unites their lives legally, economically and emotionally. The

husband and wife performs the marriage ceremony with a fond hope that they

will stay together for the rest of their life and both of them will have love and

affection amongst each other and if any children are born out of the said

wedlock they will be looked after by them. With this pious objective, the

marriages under the Hindu Marriage Act take place in the presence of a priest.

Therefore, the said ceremony is a sacred ceremony which is not required to be

treated lightly by either spouse as a child’s play. It is said that marriages are

made in heaven but are broken on earth. Appropriate care is required to be

taken to see that such marriages are not broken lightly and that is how laws

are enacted for providing dissolution of marriage as per statutory grounds

available’. He further observed that ‘the manner in which various divorce

petitions are filed creates doubts as to (i) whether marriages which are treated

as sacred ceremonies will still continue to be the same in future; (ii) whether

the tradition which is prevailing since time immemorial in this country will

continue for a long time; and (iii) whether the child who is born out of the said

wedlock will be able to get the love and affection of parents in case the

marriage is dissolved in a light fashion’.33 The institution of marriage occupies

an important place and plays an important role in the society in general and,

therefore, it would not be appropriate to apply the doctrine of irretrievable

breakdown of marriage as a straitjacket formula for dissolving the marriage.

This aspect has to be considered in the background of other facts and

circumstances of the case. The sanctity of marriage cannot be left at the whims

of one of the annoying spouses. It is only in extreme circumstances that the

Court may use this ground of divorce.

The Bombay High Court in Bajrang Gangadhar Revdekar v. Pooja

Gangadhar Revdekar34 has held that while considering the case as to whether

divorce should be granted or not it is required to consider the statutory

grounds provided under Section 13 of the Hindu Marriage Act. The Act is

enacted keeping in view the social, economic and political changes in the

country. The Act brings about a number of important changes in the field of

Hindu marriage and divorce law in the country. The Act has provided decree of

dissolution of marriage by way of mutual consent under Section 13-B.

However, if either side is not willing to give any consent, the Court is required

to see the statutory ground available as provided under Section 13 of the Act

for dissolving the marriage. Arguments for introduction of Irretrievable

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Breakdown of Marriage There has been a demand from jurists, academicians

and common people for the introduction of Irretrievable Breakdown of Marriage

as a separate ground of divorce. Before proceeding further it will be good to

define what Irretrievable Breakdown of Marriage means. The twin objects of

marriage are: Maintenance of stable sexual relationship and providing care and

protection to children from the marriage.35 The marriage can be said to be

broken down when the objects of the marriage cannot be fulfilled. It was

recognised as early as 1972 by the Bombay High Court36 in the following

words: “the enactment of Section 13 (1-A) in 1964 is a legislative recognition of

the fact that if there has been a breakdown of marriage there is no purpose in

keeping the parties tied together”.37 The intention of the Parliament becomes

clear when we look at the statement of objects and reasons of the amended

Bill. The Sections 13 (1-A) and 13-B of the Hindu Marriage Act 1955 are

insufficient to deal with all the situations pertaining to the matrimonial

remedies. Under the fault grounds though the marriage may have broken

down, the parties may be compelled to live together. The fault of the accused is

to be put under the pigeon holes provided under the law there are accusations

and counter accusations by both the parties. There is a lot of mud-slinging by

the parties. It also happens that the petitioner may ultimately be denied relief

on the non production of evidence after a long drawn legal battle. The working

of the divorce laws over a period of few decades reveals that obtaining a divorce

on the basis of matrimonial grounds specified under the law is not only time

consuming and nerve breaking but also involves a lot of harassment

andembarrassment.38 Section 13-B also may not be used in certain

conditions. It is contingent on the mutual consent of the parties to the divorce.

If one of the parties is not willing to give consent the Court cannot pass a

decree of divorce. Such a situation arose in the cases of Jayshree v. Ramesh39

and Nachhattar Singh v. Harcharan Kaur.40 Once the marriage has broken

down beyond repair, it would be unrealistic for the law not to take notice of

that fact, and it would be harmful to society and injurious to the interest of the

parties. Where there has been a long period of continuous separation, it may

fairly be surmised that the matrimonial bond is beyond repair. The marriage

becomes a fiction, though supported by a legal tie, by refusing to severe that

tie. The law in such cases does not serve the sanctity of marriage; on the

contrary, it shows scant regard for the feelings and emotions of the parties.

Public interest demands not only that the married status should, 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. Since there is no acceptable way in which a spouse can be compelled

to resume life with the consort, nothing is gained by trying to keep the parties

tied forever to a marriage that in fact has ceased to exist. Human life has a

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short span and situations causing misery cannot be allowed to continue

indefinitely. A halt has to be called at some stage. Law cannot turn a blind eye

to such situations, nor can it decline to give adequate response to the

necessities arising therefrom. The Supreme Court recommended to the Union

of India to seriously consider bringing an amendment in the Hindu Marriage

Act 1955 to incorporate irretrievable breakdown of marriage as a separate

ground of divorce.41 In case of Dastane v. Dastane,42 the parties fought for

over a decade. Husband’s petition for judicial separation was dismissed on

technical grounds of condonation. The marriage in this case was utterly

wrecked. The case makes out a point for irretrievable breakdown of marriage as

a separate ground of divorce. It is also a common fact that the young children

will be better off with one loving parent rather than two perpetually quarreling

parents.43 In Sukhendu Bikash Chatterjee v. Anjali Chatterjee,44 it was held

that the ground of irretrievable breakdown of marriage can be used in

exceptional cases. The same principle was cemented by the Supreme Court in

V. Bhagat v. D. Bhagat45 where the Court held that merely because there are

allegations and counter-allegations, a decree of divorce cannot follow. Nor is

mere delay in disposal of the matrimonial proceeding by itself a ground.

Irretrievable breakdown of marriage is not a ground by itself but all of these

facts are to be borne in mind if it becomes necessary to take an unusual

judicial step or decision to clear up an insoluble mess when the Court may find

it in the interest of both the parties. In Ashok Hurra v. Rupa Bipin Zaveri,46

the Supreme Court observed that a period of nearly thirteen years had already

passed and there was no useful purpose of prolonging the agony and that the

curtain should be rung at some stage. In such a state of affairs, the Supreme

Court exercised its jurisdiction under Article 14247 of the Constitution and

granted a decree of divorce by mutual consent under Section 13-B of the Hindu

Marriage Act 1955. But certain safeguards were also provided, such as the

husband was directed to pay a lumpsum of ten lakh rupees to the wife and

also another sum of fifty thousand rupees as litigation cost within a given time

as condition precedent of the decree taking effect. Therefore, it may be noted

that even though the High Court used the expression “irretrievable breakdown

of marriage”, the Supreme Court avoided it. Instead, on the peculiar facts and

circumstances, the provisions of Article 142 of the Constitution were invoked

as no other legal provision could apply. But it leaves such problems unsolved

as only the Supreme Court can invoke the provisions under Article 142 of the

Constitution. No other Court, not even the High Court, has such power. Again

in Kanchan Devi v. Promod Kumar Mittal48 the Supreme Court took recourse

to Article 142 of the Constitution and dissolved the marriage on the ground

that the marriage has irretrievably broken down. The Supreme Court further

held that “in view of the peculiar facts and circumstances of the case and being

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satisfied that the marriage between the appellant and the respondent has

irretrievably broken down and that there is no possibility of reconciliation, we

in exercise of our powers under Article 142 of the Constitution of India hereby

direct that the marriage between the appellant and the respondent shall stand

dissolved by a decree of divorce. All pending cases arising out of the

matrimonial proceedings and the maintenance proceedings under Section 125

of Cr. P.C. pending between the parties shall stand disposed of and consigned

to the records in the respective Courts on being moved by either of the parties

by providing a copy of this order, which has settled all those disputes in terms

of the settlement. This appeal is disposed of in the above terms.” In Romesh

Chandre v. Savitri,49 the appellant and the respondent had been married for a

period of 25 years but during this period the husband had committed adultery

with other woman and had not treated his wife and son well. The differences

that had cropped up could not be settled between the husband and wife even

after the husband realised his mistake and apologised. Their marriage had

reached a stage of no return and thus needed to be dissolved since the

marriage was emotionally and physically dead; therefore, the Supreme Court

on account of cruelty, both physical and mental, granted a decree of

dissolution of marriage and observed that if a party still wants to continue in

the wedlock despite the practical and emotional breakdown of the marriage,

then it is in the best interest of both the parties and the society that the

marriage be dissolved. In Chanderkala Trivedi v. Dr. S.P. Trivedi,50 the

appellant-wife was against the decree of divorce on the grounds that it is not

suitable for a Hindu lady to be a divorcee. However, the facts of the case

present that the husband filed for divorce on account of cruelty by the wife.

The wife replied to this statement by mentioning the adulterous relationship

the husband has been having with another woman. The husband continued

blaming the wife of associating herself unrespectably with young boys. The

Supreme Court held that though it is not reasonable for a Hindu lady to be a

divorcee but under the current circumstances not paying much attention to the

legitimacy of the accusations but merely that their relationship had become so

acrid and hostile for accusing each other of such lowly behaviour that it would

be in the interest of both the parties to be separated than to live unhappily with

each other in the matrimonial home. Thus, the Court in view of the complete

breakdown of marriage upheld the decree of divorce by letting irretrievable

breakdown of marriage by a back door entry. In Abha Agarwal v. Sunil Agarwal,

the appellant-wife was accused of cruelty by her husband. The husband first

approached the Court and filed for divorce but later withdrew it on being asked

to give the marriage a second try by the wife’s relatives. There was no change in

the behaviour of his wife even the second time, cruelty against the husband

and his family continued. The wife in her statement replied to this by stating

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that the husband and his family used to treat her badly by continually asking

for dowry. However, it was proved to be false in the Court. Thus, the Supreme

Court finally held that the decree of divorce must be given on account of

cruelty, both mental and physical, and also because the marriage had

completely broken in all aspects at least for one party.51 In Chetan Dass v.

Kamla Devi, the appellant-husband wanted a divorce from his wife on the

grounds of cruelty, i.e., mental cruelty. However, when probed, his allegation

was found to be false. The wife came out with counter claim and alleged that

her husband had an extra marital affair with a nurse from his hospital. This

however, turned out to be true but even then, the wife maintained that she

would not like to be divorced if the husband cut his relations with the said

nurse. This was not accepted by the Court as the husband wanted to take

divorce in the first place to be with the nurse and hence, this deal would not

work out despite further trials. Therefore, the only proper solution out of this

deadlock would be to get the two parties divorced as there is a clear case of

irretrievable breakdown of marriage.52 In Chiranjeevi v. Lavanya alias

Sujatha,53 the husband wanted to divorce his wife on account of cruelty. But

after submissions by the wife, the Court accepted the charges against the

husband of leading a non-marital life and thus granted divorce to the couple on

grounds that there have been a number of accusations and counter

accusations. Hence, the Court could not see any way in which both of them

could reconcile their differences. Therefore, though it did not fall under any of

the grounds provided for divorce in Section 13 of the Hindu Marriage Act 1955,

the Court felt that there was total breakdown of marriage and thus granted a

decree of divorce.

In Rishikesh Sharma v. Saroj Sharma,54 the husband filed a petition for

divorce which was rejected. On moving the Supreme Court, it was observed

that the wife had been living separately for several years and had also

instituted baseless criminal proceedings against the husband. The wife in her

written statement alleged that the appellant-husband had been living with

another woman. The Supreme Court held that under the present

circumstances where there is nothing in this marriage to continue and since it

is dead from every angle and is impossible to revive, no purpose was being

served in keeping both the parties retained in marriage. Hence, the Court

ordered for the marriage to be dissolved on the basis of irretrievable breakdown

of marriage. In Naveen Kohli v. Neelu Kohli,55 the Supreme Court has once

again made a strong plea for incorporating irretrievable breakdown of the

marriage as a separate ground of divorce under Section 13 of the Hindu

Marriage Act 1955. The husband, in this case had filed a divorce petition on

the ground of cruelty making several allegations, including criminal complaints

against the wife. In a nutshell it was an acrimonious Court battle devoid of any

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sensitivity and decency. The Family Court at Kanpur granted the decree;

against this the wife filed an appeal before the Division Bench of the Allahabad

High Court which set aside the divorce decree; thereupon the husband filed a

Special Leave Petition under Article 136 of the Constitution. The Court

analysed in great detail the facts and circumstances of the case, various

judgments on cruelty decided by the Courts in India and other countries, as

also the law on this issue, and dissolved the marriage. The Court held that

once the marriage has broken down beyond repair, it would be unrealistic for

the law not to take notice of that fact, and it would be harmful to society and

injurious to the interests of the parties. Where there has been a long period of

continuous separation, it may fairly be surmised that the matrimonial bond is

beyond repair. The marriage becomes a fiction, though supported by a legal tie.

By refusing to severe that tie, the law in such cases does not serve the sanctity

of marriage; on the contrary it shows scant regard for the feelings and emotions

of the parties. The Court observed from the analysis and evaluation of the

entire evidence that it is clear that the respondent-wife has resolved to live in

agony only to make life a miserable hell for the appellant-husband as well. This

type of adamant and callous attitude…. Leaves no manner of doubt….that the

respondent is bent upon treating the appellant with mental cruelty. It is

abundantly clear that the marriage between the parties has broken down

irretrievably and there is no chance of their coming together, or living together

again…..there has been a total disappearance of emotional substratum in the

marriage. The course which has been adopted by the High Court would

encourage continuous bickering, perpetual bitterness and may lead to

immorality. The Court further observed that the marriage has been wrecked

beyond salvage; public interest of all concerned lies in the recognition of the

fact and to declare defunct de jure what is already defunct defacto. To keep the

sham is obviously conducive to immorality and potentially more prejudicial to

the public interest than dissolution of the marriage bond. In another case, the

parties were not living together for a considerable period and there was no

evidence on record to prove that the husband was in any manner responsible

for keeping wife out of matrimonial home. The feelings, emotions and affection

between parties had turned into total hatred and there had been continuous

separation between parties which had rendered their living together a mere

fiction. In such circumstances, therefore, marriage was dissolved by the

Court.56 In Mamta Dubey v. Rajesh Dubey,57 the Court dissolved the

marriage between the parties because the wife was not willing to withdraw

criminal prosecution which was pending against the husband and his family

members who were sent to jail. Due to non withdrawal of criminal prosecution

the parties did not cohabit for the last 13 years and the Court found that the

matrimonial bond was beyond repair, hence it granted a decree of divorce. In

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Smitha v. Sathyajith,58 the Court observed that the act of contracting a second

marriage by the husband clearly implies that he is not interested in continuing

his marital relationship.

In Anil Kumar Jain v. Maya Jain59 the parties had been living separately

for seven years. The parties filed a joint petition for divorce by mutual consent

in a trial Court in Madhya Pradesh. As the wife withdrew her consent later, the

Court dismissed the petition. A single judge bench of Madhya Pradesh High

Court at Jabalpur also dismissed the appeal. The Supreme Court allowed the

appeal and held that it is empowered to grant divorce by mutual consent under

Section 13-B of the Hindu Marriage Act 1955 even if the wife or the husband

withdraws it during the proceedings in the Lower Court prior to passing of the

order. Though 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. It is only the Supreme Court, in exercise of its

extraordinary powers under Article 142 of the Constitution that can pass

orders to do complete justice to the parties. The Supreme Court made it clear

that the doctrine of irretrievable breakdown of marriage was not available to

the High Courts, which do not have powers similar to those exercised by the

Supreme Court under Article 142. Neither the Civil Court nor even the High

Courts can therefore pass orders before the periods prescribed under the

relevant provisions of the Hindu Marriage Act 1955 or on grounds not provided

for in Section 13 and Section 13-B of the Act. The Court further held that no

purpose would be served by prolonging the agony of the parties to a marriage

which had broken down irretrievably and the curtain had to be rung down at

some stage. The Court has to take a total and broad view of the ground realities

while dealing with adjustment of human relationships.

Conclusion

Marriage is, no doubt, an individual relationship, but more than that it

is a social institution having complex social dimensions. The true happiness

that the institution of marriage can bestow upon a man/woman is found only

in the continued pursuit of harmony by a couple. The indiscreet and unguided

divorce law may destroy all that is good in marriage institution. Even if we take

marriage as a mere contract, it cannot be said that it is the parties whose

interest have to be considered in divorce proceedings. It is larger social interest

which should be put above the individual interest of parties.

The Supreme Court of India has granted divorce in many cases not only

on the basis of adultery, cruelty or desertion but more so because in their

opinion the marriage between the two parties had completely broken down; lost

faith, love, care; emotional break down; and failed to control their feelings.

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Though, there is no explicit provision of ‘irretrievable breakdown of marriage’

as an independent ground of divorce in Section 13 of the Hindu Marriage Act

1955 or Section 23 of the Special Marriage Act 1954, yet the Supreme Court

used its power vested in it by Article 142 of the Constitution towards

administration of absolute justice for the parties in the matrimonial

proceedings. The Court felt that where there are grave situations where there

are not only accusations between one another, but where the mere foundation

of the marriage has broken and cannot be restored at all, then the Court must

pass a decree of divorce on the ground of irretrievable breakdown of marriage.

Granting divorce protects the interest of the innocent party but there are cases

in which both of the parties are at fault or one party is at fault and the

relationship between the parties has turned absolutely acrimonious and

beyond any type of repair; some cases in which the parties would not like to

disclose the facts or issues of their incompatibility as they may want to keep it

private. In such issues, there has to be a form or way out of the dead wedlock

for these people. It is a matter of fact that once the marriage has broken down

beyond repair, it would be unrealistic for the law not to take notice of the fact,

and it would be harmful to society and injurious to the interests of the parties.

Therefore, it is evident that the judiciary has taken a serious note of

irretrievable breakdown of marriage as an independent ground of divorce and

has been serving the needy but only in the limited number of cases as it is not

possible for all litigants’ spouses to afford to reach up to the Supreme Court.

On the other hand the legislatures are slipping over the issue and waiting for

the opportunity which is unknown to the people whom they represent.

Unfortunately the trial Court, which is a competent Court of jurisdiction in

matrimonial proceedings, cannot serve the people unless the Hindu Marriage

Act 1955 and the Special Marriage Act 1954 is amended and ‘irretrievable

breakdown of marriage’ as an independent ground of divorce is incorporated in

the Statute book. I however, do point out that it must be implemented only

when there are mechanisms in place to facilitate its proper execution so as to

avoid giving undue advantage to the wrong person or giving a person a position

to handle this provision recklessly.

The Law Commission in its 71st report urged for irretrievable breakdown

of marriage to be made a ground of divorce and cited several reasons for the

same. To illustrate this, an extract from the report is provided below: It has

been stated in support of this suggestion that the Hindu Marriage Act has been

a complete failure, and that a social reform is imperative in the field. Proof of

such a breakdown would be that the husband and wife have separated and

have been living apart for say, a period of five or ten years and it has become

impossible to resurrect the marriage or to reunite the parties. It is stated that

once it is known that there are no prospects of the success of the marriage, to

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drag the legal tie acts as cruelty to the spouse and gives rise to crime and even

abuse of religion to obtain annulment of marriage.

It is also mentioned in the report that in case the marriage has ceased to

exist in substance and in reality, there is no reason for denying divorce, and

then the parties can alone decide whether their mutual relationship provides

the fulfillment that they seek. Divorce should be seen as a solution and an

escape route out of such a situation. Such divorce is unconcerned with the

wrongs of the past, but is concerned with bringing the parties and the children

to terms with the new situation and developments by working out the most

satisfactory basis upon which they may regulate their relationship in the

changed circumstances. The 71st Report of the Law Commission of India

submitted to the Government of India on April 7, 1978 briefly dealt with the

concept of irretrievable breakdown of marriage. The Report points out the fact

that the fault and the guilt theories cause injustice in those cases where the

situation is such that although none of the parties is at fault, or the fault is of

such a nature that the parties to the marriage do not want to divulge it, yet

there has arisen a situation in which the marriage cannot be worked out. The

marriage has all the outward manifestations of marriage but the real substance

is gone, it’s just like an empty shell. The Report unequivocally asserts that in

such circumstances it will be in the interest of justice to dissolve the

marriage.68 On the recommendation of the Law Commission of India, the

provisions relating to irretrievable breakdown of marriage were introduced

before the Lok Sabha on February 27, 1981 in the form of the Marriage Laws

(Amendment) Bill 1981 but subsequently the Bill did not pass.

After having undergone a careful analysis of the provisions in law as they

exist in different systems in the world, the researcher suggests the following

amendments to be made in Section 13 of the Hindu Marriage Act 1955 to

enable the Courts in granting decree of divorce on the ground of irretrievable

breakdown of marriage and administer absolute justice towards the fulfillment

of the Constitutional mandate as laid down in Article 142 : Section 13-C:

Divorce on the ground of Irretrievable Breakdown of Marriage: (1) A petition for

the dissolution of marriage by a decree of divorce may be presented to the

District Court by either party to a marriage, on the ground that the marriage

has broken down irretrievably. (2) The Court hearing such a petition shall not

hold the marriage to have broken down irretrievably unless it is satisfied that

the parties to the marriage have lived apart for a continuous period of not less

than three years immediately preceding the presentation of the petition.

If the Court is satisfied, on the evidence, as to the fact mentioned in

subsection (2) then, unless it is satisfied on all the evidence that the marriage

has not broken down irretrievably, it shall, subject to the provisions of this Act,

grant a decree of divorce. (4) In considering, for the purpose of sub-section (2),

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whether the period for which the parties to a marriage have lived apart has

been continuous, no account shall be taken of any one period (not exceeding

three months in all) during which the parties resumed living with each other,

but no other period during which the parties lived with each other shall count

as part of the period for which the parties to the marriage lived apart. (5) For

the purpose of sub-sections (2) and (4) a husband and wife shall be treated as

living apart unless they are living with each other in the same household, and

reference in this Section to the parties to a marriage living with each other

shall be construed as reference to their living with each other in the same

household.

References:

1Section 13 of the Hindu Marriage Act 1955; Section 27 of the Special Marriage

Act 1954; Section 32 of the Parsi Marriage and Divorce Act 1936; Section 10 of

the Divorce Act 1869 and Section 2 of the Dissolution of Muslim Marriage Act

1939.

2 Kusum, “Irretrievable Breakdown of Marriage: A Ground for Divorce”, 20 JILI

(1978), p. 291.

3 Vide Gazette of India, Extraordinary, Part II, S. 2, p. 86.

4 AIR 1973 Bom. 55-57.

5 AIR 1971 ILR 338 (Ker.).

6 Aboobacker v. Mam 1997 KLT, 66 as quoted in Paras Diwan, Hindu Law, 2nd

ed. 2002, p. 565.

7 (1971) ILR 1 Del. 6. 8 71st Report of the Law Commission of India, para 15.

9 [1963] 3 All ER 966: [1964] AC 644.

10 [1963] 2 AII ER 994.

11 [1969] 1 WLR 392.

12 Paras Diwan, Modern Hindu Law, 17th ed. 2006, pp. 68-77.

13 Section 13(1-A), the Hindu Marriage Act 1955.

14 Section 27(2), the Special Marriage Act 1954.

15 Bill No. 23 of 1981.

16 AIR 1989 Cal 120.

17 AIR 1971 Del 6 (FB).

18 Krishna Banerjee v. Bhanu Bikash Bandyopadhyay AIR 2001 Cal 154 (DB).

19 Jordan Diengdeh v. S.S.Chopra AIR 1985 SC 925 and Sneh Prabha v.

Ravinder Kumar 1996 (1) HLR 280 (SC).

20 II (2001) DMC 123 (MP).

21. Rishikesh Sharma v. Saroj Sharma I (2007) DMC 77 (SC). Shankar

Chakravarty v. Puspita Chakravarty I (2006) DMC 582 (Jhar.). Pradeep Kumar

Nanda v. Sanghamitra Binakar AIR 2007 Ori. 60. Gautam Chandra Nag v.

Jyotsna Nag AIR 2007 NOC 674 Cal. Sanghamitra Ghosh v. Kajal Kumar

Ghosh 2007 (1) HLR 464 (SC).

112

22 Geeta Mullick v. Brojo Gopal Mullick AIR 2003 Cal. 321. See also Ram

Babu Babeley v. Sandhya 2006 (1) HLR 424 (All.). Debjani Sinha v. Bikash

Chandra Sinha 2006 (2) HLR 165 (Cal.). Jaiprakash Dattatray Patade v. Usha

Jaiprakash Patade 2005 (1) HLR 172 (Bom.).

23 161 E.R. 466 - 467. 24 71st Report of the Law Commission of India, p. 15.

25 Michael F. Farrel; No Fault Divorce: A Time for Change, 7 Suffolk

University Law Review 86 at 107 (1972-1973).

26 Ashok Kumar Bhatnagar v. Shabnam AIR Del. 121; Swaraj Garg v.

K.M.Garg AIR 1978 Del. 296; Smita Dilip Rane v. Dilip Dattaram Rane AIR

1990; Suresh Prasad Sharma v. Rambai Sharma 1 (1999) DMC 311 (MP).

27 AIR 1997 Cal. 134.

28 AIR 1982 SC 1261.

29 AIR 2009 SC 2254.

30 Murarilal v. Saraswati 2003 (2) HLR 542 (Mad.): II (2003) DMC 59 (Mad.).

See also Dilip Kumar Karmakar v. Biju Rani Karmakar II (2004) DMC 522

(Cal.). Yashwant Kumar v. Kunta Bai AIR 2007 Raj. 67.

31 Binod Kumar v. Madhavi Kumari AIR 2009 (NOC) 2414 (Pat.).

32 Ananta v. Ramchander 2009 (2) HLR 259 (Cal.).

33 Bajrang Gangadhar Revdekar v. Pooja Gangadhar Revdekar AIR 2010 Bom.

8-9.

34 AIR 2010 Bom. 8, 15. See also Ramen Chandra Deka v. Sujata Deka 2009

(2) HLR (Gau.) 522 ; Ananta v. Ramchander 2009 (2) HLR (Cal.) 259 ; Sunita

Devi v. Lala 2009 (2) HLR (HP) 527.

35 Kusum, Irretrievable Breakdown of Marriage: A ground for Divorce, 20 JILI

(1978), p. 291.

36 Madhukar v. Saral AIR 1973 Bom 55.

37 Ibid, p. 57.

38 Kusum, Divorce by Mutual Consent, 29 JILI (1987), pp. 110-111.

39 AIR 1984 Bom 30.

40 AIR 1986 P&H 201.

41 Naveen Kohli v. Neelu Kohli AIR 2006 SC 1675.

42 AIR 1975 SC 1534.

43 Harinder Boparai, Reappraisal of Bars to Divorce: A comparative Study, 26

JILI (1984).

44 (1996) 1 DMC 388.

45 AIR 1994 SC 710.

46 AIR 1997 SC 1266. See also Madhuri Mehta v. Meet Verma (1997) 11 SCC

81.

47 Article 142 : (1) The Supreme Court in the exercise of its jurisdiction may

pass such decree or make such order as is necessary for doing complete justice

in any cause or matter pending before it, and any decree so passed or order so

113

made shall be enforceable throughout the territory of India in such manner as

may be prescribed by or under any law made by Parliament and, until

provision in that behalf is so made, in such manner as the President may by

order prescribe.

48 AIR 1996 SC 1515: I (1997) DHC 257 (SC)

49 AIR 1995 SC 851: 1995 (2) SCC 7.

50 (1993) 4 SCC 232.

51 AIR 2000 All 377, 384.

52 AIR 2001 SC 1709.

53 AIR 1999 AP 316, 318.

54 (2006) 12 SCALE 282.

55 AIR 2006 SC 1675. See also Durga Prasanna Tripathi v. Arundhati Tripathi

AIR 2005 SC 3297 : 2005 AIR SCW 4045 : (2005) 7 SCC 353.

56 Neelima Verma v. Manish Kumar AIR 2009 (NOC) 2411 (HP). See also Col.

D. S. Godara v. Rajeshwari Singh II (2009) DMC 479 (Uttch.), Rajendra Krishna

Agrawal v. Sandhya Rani AIR 2009 (NOC) 1328 (Pat.). 57 AIR 2009 All. 141.

See also Sudhanshu Mauli Tripathi v. Meena Kumari, AIR 2010 (NOC) 673

(Pat.). 58 AIR 2010 (NOC) 332 (Kar.). 59 II (2009) DMC 449 (SC).

60 Section 48 (1), Australian Family Law Act 1975.

61 Section 49, the Matrimonial Causes Act 1973