DIVORCE BY MUTUAL CONSENT

Under Section 13-B, a decree of divorce may b e obtained b y both the parties to a

mamage together whether the marriage was solemnized before or after the commencement

separately for a period o f one year or more, that they have not been able t o live together

of the Mariage Laws (Amendment) Act, 1976 on the ground that they have ben living

and that they have agreed that the marriage should be dissolved

O n the motion of both the parties made not earlier than six months after the date of

the presentation of petition and not later than eighteen months after that date the court

shall if satisfied after hearing the parties and making such enquiries as the Court may

think fit, that a marriage has been solemnized and the statements contained therein are

true, pass a decree of divorce declaring the marriage t o be dissolved.

1. GROUNDS AVAILABLE T O HUSBAND AND WIFE

1 . Adultery [Section 1 3 (1)(i)].—Under the Marriage Laws (Amendment)

Act. 1976, the expression "living in adultery" has been dispensed with. It has been

replaced by a simple requirement o f adultery, that is, voluntary sexual intercourse with

any person other than his or her spouse. Now, even a single act of adultery may

constitute a sufficient ground for obtaining divorce. This amendment was necessary

because under the unamended Act any cunning or watchful spouse, living a continuous

life in adultery, could on sensing the intention of the other party to file a petition under

the Act, discontinue the adulterous life temporarily and thus frustrate the object o f the

Act. Under unamended law i t was essential for the petitioner to show that the opposite

party is having sexual intercourse with a person other than the spouse, as a matter of

usual indulgence. It was further necessary under Section 23(i)(b) to shows that the

petitioner has not been in any way accessory to it, and that he or she has not connived a t

or condoned it. The fact that the husband cohabited with the wife even after knowledge

that she had been guilty of cohabiting with another person would be sufficient t o

constitute condonation.'

In the present clause the expression 'voluntary sexual intercourse' has been used.
Therefore, the sexual intercourse by either o f the spouses with a person other than his or

her spouse must be a voluntary act. If one of the spouses is raped i t cannot be said that

there is voluntary intercourse.

Some cases o n adultery decided b y the Indian Courts cannot be viewed without

impugnment. In P. v. P. where the wife was sen in a semi-naked state in a hotel with

a stranger, the court did not consider it sufficient to conclude adulterous relations of wife

with the stranger. The Court held that s o long the act of cohabitation is not proved

beyond doubt, adultery cannot be concluded to be a ground for matrimonial relief.

Similarly, where the husband is often found in company with the persons of ill-repute or

with prostitutes or with ladies o f immoral character, the Court has held that these all facts

are not sufficient enough:o prove adultery on the part of the husband.? I n view o f the

circumstantial evidence as only mode of proof of adultery, the existence of such facts may

1: Srivastava v. Srivastava, AIR 1967 SC 581 ; N. Reckliv. Kistamma. AIR 1962 Mad. 235.

2 . AIR 1982 Bom. 498.

Das v. Das. AIR 1982 MP 120.

90 HINDU LAW

be sufficient to conclude adultery and to provide a matrimonial relief to the other party.

But the Court has held otherwise, which may not be very correct approach.

To constitute a ground for decree of divorce, the sexual intercourse complained must

have taken place after the solemnization o f marriage with the petitioner. Pre-marriage

unchastity of the wife o r pre-marriage sexual relation of the husband with some other

woman is not a ground of divorce.

It i s also necessary that such intercourse must be intercourse with a person other

than his or her spouse. Therefore, intercourse with one of the wives of the pre-Act

polygamous marriage will not amount to extra-marital intercourse under this clause.

Standard of proof.—Adultery from its very nature is a secret act. Direct

evidence of an act of adultery is extremely difficult. It is very rarely indeed that the parties

are surprised in the direct act o f adultery. Direct evidence, even when produced, the court
will tend to look upon i t with disfavour, as it i s highly improbable that any person can

be a witness to such acts, as such acts are generally performed with utmost secrecy. The

petitioner has t o rely on circumstantial evidence as to non-access and birth of a child, and

confessions and admissions of the parties i n relation thereto. But the evidence o f adultery

whether direct or circumstantial, must be necessarily of such a character as would make a

reasonable man to believe beyond any doubts and a mere probability that adultery

may have been committed is not enough. In Rajee v. Baburao' the Madras High Court

has held that mere allegation of adultery without proving wife's activities in details except

that family o f the husband has reputation, would not be sufficient to raise the

presumption of adultery by wife.

The burden o f proving adultery is always on the person alleging adultery, there

being a presumption of innocence. Adultery being a serious matrimonial offence, a high

standard proof is required in order to satisfy the court that the offence has been committed

I t is true that normally the matrimonial offence of adultery is expected to be established

by circumstantial evidence because direct fact of adultery may be difficult to b e proved

except i n very few cases.?

In Smt. Pushpa Devi v. Radheysham, it was held that it is not necessary t o prove

the fact of adultery by direct evidence and such evidence, if produced would normally be

suspected and likely to be discarded. Normally adultery i s proved b y circumstantial

evidence. The general rule i s that the circumstances must be such as would lead 10 a

guarded judgment of a reasonable and just man to the conclusion.

But the circumstantiai evidence must satisfy the test that they lead t o an irresistible

inference that adultery must have been committed. In Chandra Mohini V. A.P

Srivastava, the Supreme Court held that the mere fact that some male relations

write improper leters to a maried woman does not necessarily prove that there was

ilicit relationship between the writer of the leters and the maried woman who recieved

1 . AIR 1996 Mad. 262 ; sce also Rajni v. Prabhakar, AIR 1958 Bom. 264.

2. Ravindra Prasad v. Sita Devi. AIR 1986 Pal 128

MARRIAGE 91

to have done so for the sake of dignity of his family, the petition o f divorce of the

Where the husband condoned the act of his wife's adultery and the petitioner is held

husband cannot b e accepred.!

in Thimmappa Dasappa v. Thimma? the facts were that the wife used to be

usualy absent from the house and was found to be in company with strangers. She was

also found in the room of those strangers. She did not have any explanation for being 1

their company. On the petition for divorce filed by the husband. the court held that under

the conditions. the wife's living in adultery would be established and the petition would

be decreed.

The law relating to standard of proof is clear and simple. It i s not recessary that the

charge of unchastity must be proved beyond all reasonable doubt. The court can act o n the

preponderance of probabilities. The standard o f proof is the same as in civil cases. 3

In Hargovinda Soni v. Ram Dulari, the Court observed that it was no longer

required that adultery must be proved beyond all reasonable doubt. I t could be established

by preponderance o f probabilities. The proof o f adultery must be of such a character as

would lead a reasonable man t o conclude no other inference than the misconduct. In the

above case adultery was sought to b e proved by non-access and non-áccess is being

cstablished on the basis of blood grouping. The husband contended that he had n o access

to his wife from 28th April, 1968 but a boy was born to the wife on April 12. 1969,

another boy o n May 27, 1972 and a girl on May 27, 1975. Since on medical evidence

based o n blood-test, it was established that the third child could not be the child of the

peritioner, the court granted a decree of divorce on the ground of wife's adultery.

2. Cruelty [Section 13(1) (1-a)).—Petition for the decree of divorce may be

filed by either party to the marriage on the ground that the cther party has treated him o r

her with cruelty after the solemnization o f marriage. After passing o f the Marriage Laws

(Amendment) Act, 1976, cruelty has become a ground o f divorce as well. Under the
English law. the term 'cruelty' was defined in Russel v. Russel, 5 for the first time. I n

this case the House of Lords observed, "To constitute legal cruelty there must be danger

1o life or injury to health. bodily or mental or reasonable apprehension o f it." However,

this definition of cruelty is not valid in the present Hindu Law. I t would depend upon the

Court to consider the gravity o f the cruelty to make i t a ground for divorce. The word

'realed signifies a continuous course of cruel behaviour by the respondent t o the

petitioner. Cruelty may be either mental or physical.

Although the term 'cruelty' has not been defined i n the Act, yet for the purposes o f

establishing an act of cruelty it should be so serious and weighty that cohabitation

becomes impossible. I t should be somewhat more serious and ordinary wear and tear o f

routine marital life. In Indira Gangele v. S.K. Gangele, only some misunderstanding

berween parties was established. It was held that merely saying that parties are unhappy i s

1. Virupakshiv. Smt. Sarojini, AIR 1991 Kant. 128

2. AIR 1972 Mys. 1: Nidhi Dalela v. Deepak Dalela. AIR 2002 Raj. 128.

3 . Mani Shankar v. Rauha Devi. AIR 1992 Raj. 33.

4. AIR 1986 MP 57

S. (1897) AC 395.

I 1993 MOS

92 HINDU LAW

not enough, not even unruly temper of a spouse or whimsical nature of a spouse is

enough. Wherever cruelty is to be examined the entire background of the life of the

parties to mariage has to be considered. In maters of divorce continuous acts of curely

has to be established.'

Cruelty may be physical or mental. Mental cruelty is the conduct of other spouse

which causes mental sufering or fear to the matrimonial life of the other. Cruely.

therefore, postulates a treatment of the petitioner with such cruelty as lo cause a

reasonable apprehension in his or her mind that it would be harmful or injurious for the

petitioner to live with the other party. Cruelty, horever, has to be distinguished from the
ordinary wear and tear of family life. It cannot be decided on the basis of the sensitivity of

the petitioner and has to be adjudged on the basis of the course of conduct which would.

in general, be dangerous for a spouse to live with the other.?

Mens rea i s not an essential clement o f cruelty. Relief cannot be denied on the

ground that there has been no deliberate o r wilful treatment. 3

In Ramchander v. Anant,* decided on 24th February, 2015 i t was observed by the

Supreme Court that cruelly for the purpose of Section 13 (1), (la) is to be taken as

behaviour by one spouse towards the other, which causes a reasonable apprehension in

the mind of the latter that it i s not safe for him or her t o continue the matrimonial

relationship with the other. Cruelty can be physical or mental.

A few stray instances indicating a short tempered nature and somewhat erratic

behaviour are not sufficient to prove cruelty for purposes of this section.

I n V. Bhagat v . D . Bhagat, i t was observed that 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 i t not possible for that party to live with the

other. Mental cruelty must be of such a nature that the parties cannot reasonably be

expected t o live together. The situation must b e 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 o f the petitioner.

In Shobha Rani v. Madhukar Reddi, the Supreme Court considerably enlarged the

concept o f cruelty and held that the demand for dowry, which is prohibited under law.

amounts t o cruelty entitling the wife to get a decree for dissolution o f marriage. A new

dimension has been given to the concept of cruelty. Explanation to Section 498-4

provides that any wilful conduct which i s o f such a nature as i s likely to drive a woman

t o commit suicide would constitute cruelty. Such wilful conduct which is likely to cause

grave injury or danger to life, limb or health (whether mental or physical of the woman)

would also amount t o cruelty. Harassment of the woman with a view t o coercing her or
1 . Smr. Maya v. Brij Nath, AIR 1982 Del. 240.

2. Savitri Pandey v. Prem Chandra Pandey, AIR 2002 SC 591: Karuna v. Jiwan Prakash, AIR 202
HP 127; Praveen Melta v Inderjir Mehta, AIR 2002 S C 2582.

3. Suman Kapoor v. Sudhir Kapoor, AIR 2009 S C 589.

4. Civil Appeal No. 3483 of 2011.

MARRIAGE

93

any person related to her to meet any unlawful demand for any property or valuable

suity would also constitute cruelty.

Cruelty in law is different from what is understood by it in its popular sense. I n 1

Janachandra v. Aneel Kowr,' the Supreme Court held that the expression "cruelty" has

ken used in relation to human conduct or human behaviour. It is the conduct in relation

adversely affecting the other. The cruelly may be mental or physical, intentional or

of matrimonial duties and obligations. Cruelty is a course of conduct of one which is

unintentional. If it is physical, the Court wil have no problem in determining it. If it is

mental, the problem presents difficulties. First, the enquiry must begin as to the nature of

cruel treatment. Second, the impact of such treatment in the mind of the spouse whether

if caused reasonable apprehension that i t would be harmful or injurious to live with the

other. Ultimately, it is a matter o f inference to b e drawn by taking into account the nature

of the conduct and its effect on the complaining spouse. However, there may be a case

where the conduct complained of itself is bad enough and per se unlawful or illegal.

Then the impact or injurious effect on the other spouse need not be enquired into or

considered. In such cases, cruelty will b e established if the conduct itself i s proved o r

admitted.

In Vishwanath Sitaram Agrawal v. Sarla Vishwanath Agrawal, 2 the Supreme Court

stated that the expression "cruelty' has a n inseparable nexus with human conduct or

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

parties belong, their ways of life, relationship, temperaments and emotions that have
been conditioned by their social status. A set o f facts stigmatized as cruelty in one case

may not be in another case. The cruelty alleged may largely depend upon the type of life

the parties are accustomed to or their economic and social conditions. It may also depend

upon their culture and human values to which they attach importance. While dealing with

concept of mental cruelty the question has to be considered in the light o f the norms o f

marital ties of the particular society t o which the parties belong, their social values,

status and environment i n which they live. If from the conduct o f the spouse, it is

established and/or an inference can legitimately be drawn that the treatment o f the spouse

is such that it causes an apprehension in the mind of the petitioner about his or her

mental welfare, then the same would amount to cruelty. While dealing with the concept

of mental cruelly, enquiry must begin a s to the nature of cruelty, treatment and the

umpact o f such treatment in the mind of the spouse. It has to be seen whether the conduct

is such that no reasonable person would tolerate it.

Cruelty i n matrimonial law may be o f infinite variety. It can b e subtle or brutal. Il

may be physical or mental. I t may be by words, gestures or by mere silence, violence or

non-violence. That is the reason why the courts have never tried t o give an exclusive

definition of cruelty, as understood in matrimonial law. Further, the legal concept of

cruelly had varied from time to time, not i n theory but in application, as the social and

economic conditions change. Cruelty under this section i s not necessarily physical

cruely. It also includes the cases of mental cruelty. The question of cruelty must be

determined from the whole facts and the matrimonial relations between the spouses. It has

1. AIR 2005 SC 534

2. AIR 2012 SC 2586

94

HINDU LAW

t o be determined as cumulative effect of the circumstances.' Regard must be had to their

culture, temperaments, status in life, the state of health of the parties, the interaction

between thei in their daily life and numerous other factors which cannot be brought in
and confined to an exclusive or inclusive definition. All these factors must be considered

to judge whether the conduct complained of amounts to a matrimonial offence of cruelty.

The existence of cruelty depends not on the magnitude, but rather on the consequences of

the offence of cruelty, actual or apprehended. To punish a spouse for the past is not the

function of the court. Its duty is to protect him or her for the future.

I n Rajender Bhardwaj v. Anita,? the facts o f the case were as follows :—The wife

did not allow the husband t o consummate the marriage for the first seven days and nights

The wife abused her müther-in-law, wrote a nasty letter to her husband making illega

demands for clothes for her brother etc., and threatened to burn the whole house by

putting gas cylinder o n fire. She also threatened that she would implicate her husband and

other family members i n false dowry case. It was held that the wife i s guilty o f cruelty.

The court observed that cruelty under the amended clause has to be o f the type which

should satisfy the conscience of the court to believe that the relations between the parties

had deteriorated to such an extent due to the conduct of one of the spouses that it has

become impssible for them to live together without mental agony, torture or distress.

Similarly, in Ramakanta v. Mohinder Laxmidas Bhandula, where the wife's behaviour in

the matrimonial home was not cordial, her threats and attempts t o commit suicide and her

act o f lodging false criminal complaint against husband were held t o be incidents of her

cruel behaviour. Cruelty as a ground o f divorce under Section 13(1)(ia) of the Hindu

Marriage Act is a conduct of such type that the petitioner cannot reasonably be expected

to live with the respondent. Now the act or omission or conduct which constitutes cruelty

need not cause any sort o f apprehension i n the mind of the petitioner.

In order to establish cruelty it would be sufficient to show that the conduct of one

o f the spouses is so abnormal and below the accepted norm that the other spouse cannot

reasonably be expected to put u p with. The conduct i s n o longer requited to be so

atrociously abominable which would cause a reasonable apprehension that i t would be

harmful or injurious to continue the cobabitation with the other spouse. Therefore, 10

establish cruelty it is not necessary that physical violence should be used. However.
continued ill-treatment, cessation of marital intercourse, studied neglect, indifference of

one spouse to the other may lead to a n inference of cruelty.4

In Naveen Kohli v. Neelu Kohli, 5 the Apex Court reiterated the well-establishe o

view that to constitute cruelty, the conduct complained o f should be 'grave and weighty

so as to come t o the conclusion that the petitioner spouse cannot be reasonably expected

t o live with the other spouse.

It has to b e noted that ordinary wear and tear o f married life should not be confuse

with cruelty. The courts should help to preserve marriages. Too much should not be made

1 . Sreepadacgher v, Basantha Bai, AIR 1970 Mys. 232.

2. AIR 1993 Del. 135.

3. AIR 1996 P & H 99.

4. Manisha Tyagi v. Deepak Kumar, AIR 2010 SC 1042.

5. AIR 2006 SC 1675.

MARRIAGE 95

out of pety instances of things said or done, until parties have had time to know each

other and setle down. Where the spouses had diferences in their early period of mariage

but after the birth of a son, no serious incidents or problems deserving consideration have

taken place the husband seeking divorce on the ground of cruelty could not succeed. The

quarrels but that could not be held to be a ground of divorce.'

temperament of spouses may not be conducive to each other and it may rosult in pety

I n Harbhajan Singh Monga v. Amarjeet Kaur,? the M. P. High Court considered

various situations which amounted t o cruelty. Where the wife used to give the threat of

committing suicide, slapped the husband and admonished him not to trouble her i n the

night, used to refuse to do household work and to keep the husband waiting outside the

door of that house on his return from office at times for half a n hour, used to ask the

husband to clean the dining table and wash the dishes in presence of his friends, the court

held them as incidents of cruelty and hence decreed the petition o f the husband for
divorce.
I n Dr. N . C . Dastane v. Mrs. S . Dastane,3 the Supreme Court examined the entire

concept o f legal cruelty. In this case the husband brought a petition for judicial separation

on the ground of cruelty. The wife of the petitioner used to give him a threat that she

would put an end to her own life or that she would set her house on fire. She also

threatened that she will make him lose his job and have the matter published in

newspapers. She persistly abused him and insulted his father. The court held that all of

them were o f so grave a nature as t o imperil the husband's sense o f personal safety,

mental happiness, job satisfaction and reputation. Similarly, the acts like the tearing of

the Mangal Sutra, locking out the husband when he is due t o return from the office,

rubbing chillie powder on the tongue o f an infant child, beating a child mercilessly while

he is in high fever and switching on the light a t night and sitting a t the bedside o f the

husband merely t o nag him are the acts which tend t o destroy the legitimate ends and

objects of matrimony. Her frequent apologies do not reflect genuine contrition but merely

device to tide over a crisis temporarily. The Court held that the conduct of the wife clearly

amounted to cruelty. Although a case o f cruelty was established, yet the petitioner was

held to have condoned cruelty. He has not explained the circumstances as to how he came

lo lead and live a normal sexual life with the wife even after a series of acts of cruelty on

her part. Therefore, the case o f judicial separation of the husband failed and his appeal was

dismissed.

Cruelty thus may b e either physical o r mental :

(a) 'Physical cruelty' will necessarily constitute a violence of certain degree and

such degree of violence, sufficient to constitute legal cruelty, will vary with the status of

parties in each case.4 Where bodily injury i s inflicted or where there is a reasonable

apprehension of danger to life, limb or health, bodily or mental, it i s easy t o conclude

that cruelty has taken place. One or two acts of beating inflicted by the husband on the

wife are sufficient to constitute cruelty.S

1. J. L. Nanda v. Smt. Veena, AIR 1988 SC 407.

2. AIR 1986 MP 41.

Parkash, AIR 2002 HP 127.

4 . Foster v. Foster, 107 iC 184.

S. Laloo v. Baclu, AIR 1986 Raj. 49.

HINDU LAW

96

(b) "Mental cruelty" denotes a set o f circumstances, which though fall short o f

actual physical violence. may yet be acts of cruelty, e.g., malicious false accusation,!

rudeness, forcing wife 1o prostitution. threatening a pregnant wife,? subjecting the other

partner to indignity.*

Solitary act of wife who was an illiterate lady o f removing her Mangalsutra and

throwing the same on roadside gutter in heat o f moment would not constitute mental

cruelty.S

In Nemai Kumar Ghosh v. Smt. Mita Ghosh,° the wife became suspicious about

the character of her husband and used to doubt that the husband was in illicit connection

with his own sister-in-law. The husband held his sister-in-law in high esteem like his

mother. The Court held that i n such circumstances the behaviour o f the wife amounted to

mental cruelty. However, mere suspicion without any overt act or outward expression

cannot amount t o cruelty.?

Where the wife makes persistent disparaging derogatory and ugly remarks against

the husband and his close relations about their character and she reiterates suc

disparaging remarks in her writen statement, the court has held it to be a case of mental

cruelty. In Rajan Vasart Revankar v. Shobha Ranjan Revankar the Bombay High Cour

held that wild, reckless and seandaious allegations by wife against the husband's mother

his two married sisters and brothers-in-law followed repeatedly in letters, amounted to

mental cruelty against husband. The husband was therefore, entitled to decree of divorce

In K. Srinivas Rao v . D. A . Deepa,? i t was observed by the Apex Court that

staying together under the same roof is not a pre-condition for mental cruelty. Spouse car
cause mental cruelty by his or her conduct even h e o r she is not staying under the same

roof. I n a given case, while staying away, a spouse can cause mental cruelty to the other

spouse b y sending vulgar and defamatory letters or notices or filing complaints

containing indecent allegations or by initiating number o f judicial proceedings making

the other spouse's life miserable.

The mental cruelty faced b y the petitioner i s t o be assessed having regard to his

status in life, educational background, the environment i n which he lives. I n G.V.

Kameswara Rao v. G. Jabilli, ° the petitioner suffered traumatic experience because

the police complaint and the consequent loss o f reputation and prestige in the societ

The incidents brought out in the evidence showed that the relationship between the part

was irretrievably broken and because o f non-cooperation and the hostile attitude of

respondent, the petitioner was subjected to serious traumatic experience. The Co

observed that the conduct of the respondent can safely b e termed as cruelty within t

purview of Section 13 (1) (ia).

1. Geapes v. Geapes, (1908) 89 L T 7 .

2 . Coleman v . Coleman, 56 LJP 37.

3. King v . King, AIR 1925 AlI 232

4 . Mung v. Labya, 80 IC 139.

S. Shoba Srinivas Bodigar v. Srinivas Veeranna Bodigar, AIR 2002 Kant. 258.

6. AIR 1986 Cal. 150.

7. Tapan Chakraborty v . Anjali Chakraborty, AIR 1993 Cal. 10.

8. AIR 1995 Bom. 246 ; Sce also Santana Banerji v. Sachidanand Banerji, AIR 1990 Cal 213.

9. AIR 2013 SC 2176.

10. AIR 2002 SC 576.

MARRIAGE 97

Similarly, where the wife falsely alleged that the husband attempted t o set her

ablaze by drousing her in kerosene oil, the court held that such allegations would result in

mental agony of gravest character which would in turn amount to cruelty.!

reckless, defamatory and false allegations against him, his family members and colleagues

lowering their reputation. It was held that such conduct of the wife who made the false

allegations against them amounts to cruelty against the husband.

Act of wife of leaving matrimonial home without husband's consent and not

returning thereafter and i n making false and scandalous allegations against husband o f

demand of dowry and regarding his adulterous life constitute mental cruelty.3

The question o f legal cruelty justifying judicial separation o r divorce on that ground

may b. considered under the following heads :

(a) Actual or threatened physical violence.—Actual violence or threat of

violence o f such a character as to give rise to a n apprehension of danger t o life, limb o r

health will undoubredly constitute cruelty. Mere slight acts of violence which any spouse

may commit in anger or worry cannot be a ground for holding that legal cruelty exists.

Cruelty by physical violence can b e committed both by the husband and wife, though

cases o f crueity b y the wife, i n the nature o f things, are rare.

(b) Verbal abuse and insults.—The continual use o f abusive and insulting

words indulged in to bring shame and mental agony to the other spouse may amount to

legal cruelty. Mere trivial incidents, which are inerely the wear and tear of married life d o

not constitute cruelty.4 Insulting conduct indulged in by the wife i n public against her

husband would cause mental agony and pain and therefore it amounts t o cruelty.

(c) Excessive sexual intercourse.—By the husband against her ivish.S

(d) Refusal of intercourse.—If sexual intercourse i s unreasonably refused and

the refusal i s persisted i n for a long time, i t will be a ground for holding that there i s

legal cruelty.?

In Shanker Prasad Chaudhary v. Madhvi Pal Chaudhary,& the Calcutta High Court

has held that where the wife has been refusing sexual intercourse without any reasonable

justification o r has expressed her inability to co-operate i n the sexual act or she behaves

in a manner that the consummation becomes impossible, such deliberate acts of the vife
would amount t o legal cruelty and the husband would b e entitled t o matrimonial relief.

(e) Neglect.-Neglect by the spouse in the discharge of his o r her duties of

attention and company t o the other and forcing the latter t o leave the home o n account o f

such conduct would i n the circumstances of any particular case constitute neglect

justifying judicial separation or divorce on the ground of cruelty. In Rajendra Singh v.

1. Ashoka Kumar v . Smt. Vijaya Laxmi. AIR 1992 Delhi 182.

2. AIR 2017 SC 2138.

3. Rukesh Sharma v. Surbhi Sharma, AIR 2002 Raj. 138; Hema Reddy v. Rakesh Reddy. AIR
2002 AP

228; Butr: v. Gulab Chand Pandey: AIR 2002 MP 123.

4. Thompson v. Thompson, (1937) | Al! ER 161.

5. Ramakanta v. Mohinder Laxmidas Blundula, AIR 1996 P & H 99: False Criminal complaint
by wife

against husband and his relatives.

6. Kusumlala v. Kamta Pd., AIR 1965 AU 210.

7. Vidhya Viswanathan v . Karlik Balakrishnan, AIR 2015 SC 285.

8. AIR 1982 Cal. 474.

HINDU LAW

98

Taramari,' the husband was admited in the hospital after having ben badly wounded in

an accident. He was lying in the hospital for about eight months but the wife did not use

to go to se him despite the information of his conditions. The court held that the conduct of
the wife was so neglectful that it amounts to cruelty and the husband is

entitled to get a decree o f divorce.

he is afflicted with venereal disease has sexual intercourse with the other such spouse is

(f) Communication of venereal diseases. —A spouse who knowing that she or

guilty of cruelty. (g) Drunkenness and use of drugs.-Drunkenness and intemperance and
violent

behaviour due to use of drugs may not in themselves constitute cruelty, but if they resul in
violent acts injurious to the health, whether mental or physical, of other spouse, ther
such acts would amount to cruelty.

(h) Forcing association with improper persons.—If either spouse introduces

strangers to share the life of the home and conjugal society of the other as, for instance, by
the husband inducing his ivife to have intercourse with a stranger or inducing her to

put u p with a lewd woman whom he has brought into her room for his caral

satisfaction, the wife is entitled to resist all such immoral attempts by filing a pelion

for judicial separation o r divorce on the ground o f cruelty.

(i) False charge of immorality against the wife.?

(j) Unsubstantial allegations of extra-marital affair levelled by wife and threats and

attempt to commit suicide amounts to cruelty. 3

(k) IIl-treatment o f children.—Designed and deliberate ill-treatment of the

children in the presence of the mother with a view to give her pain to such an extent that

it affects her health and mind will entitle her for a judicial separation or divorce on the

ground of cruelty.

(I) Wife's association, persisting in with another woman, raising suspicion of her

practising lesbianism would amount to cruelty.4

(m) Wife suffering from deadly disease.—If the wife suffers from a deadly

disease due t o which the husband is prevented from performing his marital functions, il

amounts t o a case of legal cruelty t o husband. S

(n) Persistent effort o f wife to constrain husband t o b e separated from his parents

constitutes an act of cruelty

Whatever might have been the view i n past the present tendency is in favour of the

view that any conduct o f the husband which causes disgrace t o the wife and annoyance
and

indignity amounts to legal cruelty. Cruelty as contemplated by Section 13 is a conduct oi

such type that i t has become impossible for the spouses to live toggther.? However.

minor incidents Icading to temporary unpleasantness may not amount to cruelty. Thus, in

a case the petitioner on certain occasions pursuaded the respondent to accompany him and

1. AIR 1980 Del. 213.

3. Narendra v . K. Meena, AIR 2016 SC 4599

4 . Spicer v . Spicer, (1954) 3 All ER 208.

5. Rupe Lal v. Kartaro Devi, AIR 1950 J&K 158.

6 . Narendra v. K . Meena, AIR 2016 SC 4599.

7. Rajan Vasant Revankar v. Shobha Ranjan Revankar, AIR 1995 Bom. 246.

MARRIAGE

even pressed her for the same. This gave rise lo unpleasantness because she was

perfectly justified and can by no stretch of imagination be treated as cruelty.'

unwiling to go with him. Held that such a conduct on the part of the husband is

The conduct of a husband of indulging in love afairs with a woman other than the

wife and going to the length of promising to her and keeping her as his own wife in the

same house wherein maried ivife lives is sufficient to give rise to an apprehension that

the maried woman would be mentaly hurt. This would be a sufficient ground to grant

judicial separation. The expression cruelty not only covers the physical or violent act of

the spouse but covers the mental or psychological acts of the other partner which creates

apprehensions in the mind of the complaining partner that it would be harmful and

injurious to live with the other party. Even though the wife had not been given any

physical beating, the denial of medical treatment to her, and turning her out of the house

clearly go to establish, that the husband had treated the wife with legal cruelty. 3

leveling false charges against her father are circumstances when cumulatively considered,

The concept o f cruelty has varied from time t o time, from place to place and from

individual to individual i n its application according to social status of the persons

involved and their economic conditions and other matters. Each case depends o n its own

faces and must be judged on their facts.4 Cruelty has to be of the type which would

satisfy the conscience of Court in believing that the relations of the parties had

acteriorated to such an extent that i t has become impossible for them to live together

cithout any mental torture or distress. S

dissatisfaction of the wife. Where the husband fails t o satisfy the wife i n sexual

intercourse on account of his physical disability o r otherwise the courts have held i t to be

a cruelty. In Dr. Srikant Rangacharya v. Smt. Anuradha, the Karnataka High Court held

that where the husband has failed to sexually satisfy the wife, it would be regarded as

cruelty 1o her. The court observed further that cruelty is not only physical it may be

psychological also. Marriage without sex i s a curse. To fail t o satisfy the wife's sexual

desire is cruelty to her, for which divorce could be obtained by her.

The impotency of husband has been held t o be cruelty t o wife. In Hanuman v . Smt.

Chandrakala, the wife sought divorce on the ground of impotency of her husband.

Although the doctor iho examined the husband concluded about the proper development

or his genital organ, but there vas n o cogent evidence that the husband was capable of

creting his organ which i s necessary for penetration t o complete coitus. The Punjab

High Court held that iwhere the husband failed to do anything o f the kind, letting the wife

remain in such a matrimonial bond would be utter cruelty to her and she would b e entitled

lo get divorce. The court observed that sex i s the foundation of marriage and without

sexual activity, it would be impossible for any mariage to continue for long. Forcing the

wile to live a sexless life would inevitably damage her physical and mental health and it

Lantamounts to cruelly.

1. Lalita Deviv. Radha Mohan, AIR 1976 Raj. I; Pratima Rigarl

1. Annu Suleb v. Taruhui, AIR 1970 M P 36.

HINDU LAW

100

In Smi. Satva v. Sri Ram.' where the husband was craving for an issue and him

parents and other family members were also pressing for an issue but the desire of

husband was crushed by the wife by aborting twice, the Court held that this wold

amount to mental cruelty to husband. Such acts causing mental agony to either party of
mariage would be sufficient cruelty. Similarly, in Mukesh Kumar Gupta v Kamin Gunia. the
wife used to impute immorality on the husband and has been accusing him s

be adulterous and drunkard. This kind of conduct on the part of wife causing mental

depression, was held by the Delhi High Court to be acts of cruelty sufficient enough in

decree dissolution of marriage. Similarly accusing the husband to have illegal relations

with some other lady and burning the thesis written by the husband who was a lecturer

and doing the research would amount t o cruelty. Such an incident would entitle the

husband t o get a decree of divorce.?

I n Madan Mohan Manna v. Chitra Manna,* the wife refused to stay with the

husband as the husband was already staying with another woman, under the same roof

Wife showed wilingness 1o live with the husband if that woman was removed from house.
Whether o r not the petitioner had any illicit relationship with that woman, the

respondent had genuine ground of apprehension that all was not well. I t was held that she

could not h e compelled to live in the same house under the same roof with another

woman not related to the husband. If she was so compelled, that itself would have

amounted to cruelty.

I n Deva Kumar v. Thilagavathy, it was aileged by the petitioner that within five

days after the marriage, the respondent aliempted to commit suicide. The respondent wife

contended that due to ill-treatment by her mother in law and sister i n law she was driven

1o the stage o f attempting to commit suicide. I t was held that her attempt i n the given

circumstances did not amount to cruelty.

A false criminal case to harass the husband would be an act of cruelty depending

upon the circumstances of the case. I n Raj Kishore Prasad v. Raj Kumari Devi, the cour

held that filing a false case against the husband under Section 494 of I.P.C. by the wife

amounted to cruelty particularly since the husband, who was a government servant, would

be guilty of misconduct i f he took another spouse i n the life-time o f an existing one.

Where the wife gave birth to an illegitimate child, the child being born only 6

months after the marriage with the full development, it has been held to be cruelty to the

husband. The husband in such cases has been held t o he entitled to divorce
notwithstanding that o n the same facts he could have availed remedy o f decree o f nullity

under Section 12(1)(d)?

However, the mere suspicion without any overt act or outward expression cannot

amount to cruelty. Mere suspicion is net enough. There must be some test of objectivity

in the concept of cruelty. Only a certain state of mind of one person, without more.

cannot have the adverse effect o n the body and mind o f other spouse s o much so that it

would amount t o cruelty. Marriage cannot b e s o frail and fragile that it should b e wrecked

1. AIR 1983 P&H 252

2 AIR 1981 Del. 368

3. Smi. Shanti Devi v. Raghav Prakash, AIR 1986 Raj. 13

4. AIR 1993 Cal. 33|

5. AIR 1995 Mad 1|6

6. AIR 1986 Pat. 362, see also Rama Kanta v. Molunder Luumulas, AIR 1996/' & HO2: Nare

Gupta v . Indu. AIR 2002 Raj 169

7. Madanlal v. Sudesl Kumari, AIR 1988 Del. 93.

MARRIAGE

hecause of some quarrels beneen the couple or on account of some frailly on the part o f

this or that spouse.'

ihaviour Few isolated incidents of long past and that too condoned due to compromisin

o f the parties do not amount t o cruelty.?

3. Desertion (Section 13(1)(1-b)|.-Where the petitioner has ben deserted

continuously for a period not less than two years immediately preceding the presentation of
the petition for judicial separation or divorce, such petition may be granted.

to the mariage without reasonable cause and without the consent or against the wish of
such party and includes the wilful The expression 'desertion' means the desertion of the
petitioner by the other party

neglect o f the petitioner b y the other party t o the

marriage. "Desertion" means withdrawing from the matrimonial obligation, i.e., not

permiting or alowing and facilitating the cohabitation betiveen the parties. The proof of
desertion has to be considered by taking into consideration the concept of mariage which

in law legalises the sexual relationship between man and woman in the society for the

perpetuation of race, permiting lawful indulgence in passion to prevent licentiousnes

and for procreation of children. Desertion is not a single act complete in itself, it is a

continuous course of conduct to be determined under the facts and circumstances of each

case. As desertion i n matrimonial cases means the withdrawal of one party from a state of

things, i.e., a marital status of the party, no party to the marriage can b e permitted t o

allege desertion unless he or she admits that after the formal ceremonies of the marriage,

the parties had recognised and discharged the common obligation of the married life which

essentially requires the cohabitation between the parties for the purpose of consummating

the marriage. Cohabitation by the parties is an essential of a valid marriage. There can be

no desertion without previous cohabitation by the parties. The basis for this theory is

built upon the recognised position of law in matrimonial matters that no one can desert

who does not actively o r wilfuily bring to a n end the existing state of cohabitation.

However, such a rule i s subject to just exceptions which may b e found in a case on the

ground of mental or physical incapacity or other peculiar circumstances o f the case. The

party seeking divorce on the ground of desertion i s required t o show that he/she was not

taking the advantage o f his or her own wrong.3

The essence of desertion is a forsaking o r abandonment of one o f the spouses b y the

other. Desertion implies abandonment against the wish of the person charging. I t i s a

total repudiation of the obligations of marriage. Once desertion is established, there is n o

obligation on the deserted party to appeal t o the deserting spouse t o change her or his

mind. The circumstances that the deserted husband makes no effort to take steps to effect

a reconciliation with the wife does not debar him from obtaining the relief of judicial

return to the matrimonial home.

desertion, so long as she evidences no sincer intention to efect a reconciliation and

separation, for once desertion is proved, the deserting spouse is presumed t o continue in

For the offence of desertion, s o far as the deserting spouse i s concerned two
essential conditions must be proved: (1) the factum of separation, and (2) the intention

to bring cohabitation permanently to a n end (animus deserendi). Similarly two elements

1. Tapan Chakurborly v. Anjuli Chakarborly: AIR 1993 Cal. 10.

2. Suinun Sing/ v . Sanjay Singh, AIR 2017 S C 1315.

3. Savitri Pandey v. Prem Chandra Pander. AIR 2062 SC 591.

HINDU LAW

an essential so far as the deserted spouse is concerned: (a) the absence of consent (D) and

absence of conduct giving reasonable cause to the spouse leaving the matrimonial hom

to form the necessar intention aforesaid. The petitioner for divorce bears the burdene

proving those elements respectively and also their continuance throughout the duration of

to years, which is the statutor! period.' Desertion is a mater of inference to be drawn

from certain facts and circumstances of each case. The inference may be drawn from

certain facts which may not in another case be capable of leading to the same inference. If

a deserting spouse decides to come back to the deserted spouse by a bona fide ofer of

resuming the matrimonial home, desertion comes to an end. Hence it is necessary that

during al the period there has ben a desertion, the deserted spouse must affirm the

marriage and be ready and willing to resume married life on such conditions as may be

reasonable.

The matrimonial oftence of desertion may be classified into two kinds: -

(1) Actual desertion

(2) Constructive desertion

Actual desertion.—In order to constitute actual desertion, the following facts

should be established: -

(a) the spouses must have parted or terminated all joint-living,

(b) the deserting spouse must have the intention to desert the other spouse,

(c) the deserted spouse must not have agreed to the separation,

(d) the desertion must have been without reasonable cause, and

(e) this state of affairs must have continued for the requisite period, i.e.. two
years.

(a) One of the essential requisites of actual desertion is separation of one spouse

from another and therefore i f the spouses are living together, there i s no factum of

separation, and therefore here one of the essential elements of actual desertion is missing

(b) Where one of the spouses leaves the matrimonial home for some specific perio

with the idea that he would return home after the expiry o f that period, he i s not guilty ci

the matrimonial offence o f desertion. Desertion i s permanent forsaking and abandonment

of one spouse by the other. I n order t o constitute this offence, there must be an intention

on the pan of the withdrawing party not to return or resume cohabitation.

(c) In order to establish desertion the petitioner must prove that the separation of

the respondent is against the wish and without the consent of the petitioner. Where the

spouses live separately under the agreement and there i s no evidence that the husband

revoked the agreement i t cannot amount t o desertion a s essential element o f leaving the

matrimonial home without the consent o f the deserted spouse is not present.

(a) To constitute desertion, the separation must be without reasonable cause. The

folowing have ben held to constitute sufficient grounds for desertion- (1) confession oi

adultery by the wite, (1) habitual drunkenness o f wife, (III) persistence in the false changi

of unnatural ofence having ben commited by the husband, (IV) unreasonable and

persistent refusal by the wife to consummate the mariage and, (V) wife permiting

indecent liberties taken by others with her.

1.

Bipinchandra . Prubhavari 1956 SCR 338 Morich Chandar Me Ca A R 1098Cp.

v. Duan, 1949 AIl ER 822: Devi Singh v. Sm Sushila, AIR 1982 Raj. 48: Adhvatma Bhat f.
Adhyama Bharur Sri Devi, AIR 2002 SC 88

MARRIAGE 103

(e) Desertion is a continuing ofence. To constitute desertion if is necessary thar

both factum of separation and animus deserendi should continue during the entire

statulory period of two years immediately preceding the presentation of the petition. The
ofence of desertion remains inchoate til the presentation of the petition however long

might have been the period of previous desortion. During this period the ofending spouse

has always the locus poenitentiae lo go back to the deserted spouse. It is necessary that

wing to resume maried life on such conditous aftay the casale and be ready and

In Lachman v. Meena, 2 the wife was required to live with her husband's joint

family. The wife left the matrimonial home after about five years from the mariage. She

went to South East Asia where her parents had business houses. Throughout this period

her husband wrote to her to return to which she replied that she would when her health

would permit her to do so. Her ofer to return as expressed in her leters was not sincere

and she had no intention to return. I: was held by the Supreme Court that besides the

factum of separation there was also animus deserendi at the time when she left the

husband's house and the requisite animus continued for the period of two years before the

Kalia v. Jatinder Nath Kalia the husband went abroad for higher studies leaving behind

presentation of the petition, therefore, she was guilty of desertion. Similarly, in Veena

wife and two minor daughters. He never ivanted wife t o join him in that country and left

her i n lurch in India for herself. Husband already married in that country and had three

children there. The Delhi High Court held that since the parties did not live together for

23 years and also that husband had married in the foreign country, he had deliberate

intention of deserting the wife and divorce was granted in favour of the wife.

I n P. V. Veeraraghavan v . S. T. Parvathy, 4 the Kerala High Court held that where

animus deserendi is not proved, judicial separation cannot be decreed. Here the appellant

husband was a poor man, having meagre salary insufficient to maintain a home. He

directed the respondent wife t o live in his ancestral home where his parents and brother

resided, which she steadfastly refused. According to the husband, this amounted to

desertion and hence the prayer of judicial separation. The court dismissed the appeal

holding that there was want of animus deserendi. Similarly, where the sole deposition of

husband's allegation that his wife was living with her father without his consent and

without any cause, could not be proved b y him, the Rajasthan High Court held that
animus deserendi of the wife has not been proved and decree for divorce cannot b e

granted 5

The offence of desertion commences when the facts of separation and the animus

deserendi co-exist. But i t i s not necessary that they should commence a t the same time.

The de facto separation may have commenced without necessary animus or it may b e that

the separation and animus deserendi coincide in point of time.

Abandonment o f the company by one spouse of the other in a state of temporary

passion, disgust or anger without a n intention to bring the matrimonial relations to an

end permanently would not amount to desertion. However, if the intention to abandon the

company o f the other spouse is permanent, it would be 'desertion' within the meaning of

1. Bipin Chandra v. Prabhavati, 1956 SCR 838.

2. AIR 1964 SC 40.

3. AIR 1996 Delhi 54.

4. AIR 1924 Ker. 43. Sce also Devinder Pal Single v. Sanjota Rai, AIR 1995 P & H 275 and Tirth
Ram v.

Purvati Devi, AIR 1995 Raj. 86

S. Suklev v. Santosl, AIR 1998 Raj. 12

MARRIAGE

living separately from the other. Merely to prove that one of the partics i s not fulfelling

the duties and responsibilities to the other, is sufficient to establish desertion

Where a wife lives separately from her husband in order to do some joh and dues

not resign the job a t the instance of the husband, her refusal to resign would not amount

to desertion, because here she has no intention on her part to withdraw from her

matrimonial obligations.

In Smt. Sriehlata Seth v. Kawal Krishna,' the Delhi High Court held that where

the wife lett the matrimenial home at the instance of mother-in-law in order that

husband's mood and temper i s restored that would not amount to any desertion.

particularly when the wife displayed her willingness t o come back to matrimonial home.
I n this case the husband did not express his willingness to take her back and there was

evidence of his designs to free himself from matrimonial bond and enter into another

marriage. The Court held that the wife was not guilty of desertion as to entille the

husband to decree of divorce.

I n M . Govindaraju v. K . Mumisami Gounder,2 the Supreme Court held where the

wife is turned out o f the house o r she herself abandons the husband wilfully and i s not

pursued to be brought back as wife, divorce (on the ground of desertion) in fact takes

place, sometimes regulated by custom. In this case the parties belonged to "Shudra' caste

and the Apex Court held that Hindu law is clear o n the subject that if Shudra woman

leaves the house o f her husband and starts living with another person and there is n o

objection o r pursuation by anyone, the divorce is complete and the wife is entitled to

remarry lawfully and son born with new partner is legitimate.

I n Durga Prasanna Tripathy v. Arundhati Tripathy,? the petition for divorce was

filed by the husband on the ground of desertion under Section 13(1)(i-b) of the Hindu

Marriage Act. Wife had deserted the husband after 7 months o f marriage. Parties were

living separately for about 14 years. Wife was not prepared to lead conjugal lite with the

husband. Attempts were made by the husband and his relatives in getting back wife to

matrimonial home with no success. It was found by the Court that the good part of life

of both the parties was consumed in the litigation. Record showed that the parties disliked

each other. There were no chances of reconciliation. The Apex Court held that there is a n

irretrievable break-down of marriage. With a view to put a quietus to the litigation inter

se and bitterness between parties, decree of divorce on the ground of desertion was granted

b y the Apex Court.

In Manju Kumari Singh @ Smt. Manju Singh v. Avinash Kumar Singh, 4 parties

to the marriage were living separately for last more than decade. Attempts were made for

reconciliation between them, but such attempts were of no effect. There was no chance of

both living together to continue their marital life. In order to do substantial justice

between the parties the Supreme Court passed decree for the dissolution of their marriage
under Article 142 read with Section 13(I)(i-b) of the Hindu Marriage Act.

(II) Constructive Desertion.-Desertion is not withdrawal from a particular

place, but it is withdrawal from a particular state of things. i.e., cohabitation. Where the

husband creates a condition in which the wife is compelled to leave his company and

live separately, the wife will not be held guilty o f desertion but the husband

1. AIR 1986 Del. 162

2. AIR 1997 SC 10; See K. Palanisam! v. P. Suniathal, AIR 2002 Mad 158.

3. AIR 2005 SC 3297.

4. AIR 2018 SC 3629.

HINDU LAW

106

himself would be guilty of desertion. Thus constructive desertion consists of that state

of things where one party to mariage has ben compeled to leave matrimonial home

owing to repulsive behaviour of the other party and the party thus living separately cannot
be held to be deserter but the party compelling her/him would be held to be the

deserter.

In Jyotish Chandra v. Meera, husband and wife lived together but it was aleged by

the wife that the husband was cold, indiferent and sexualy abnormal and perverse. The

husband after completing his education from abroad returned to home but his behaviour

did not change. He used to return very late from the club and hardly spent any time with

her. At the instance of the husband, the wife went for higher studies to England and

stayed there for three years. During this period she came twice to India but found the

husband stil more cold. When she finaly came back to India, on finding the husband

unchanged, her mental sufferings and agony continued. She realised that there is no use of

living together with the husband and started living separately alongwith her mother and

sister in a rented house. Sometime, later her father tried to meddle between them and each

a compromise, but he was dragged out by the husband t o the rented flat where the wife

was living. When a dialogue was going on the husband became enraged and beat the wife.
her sister and father. Under these conditions a petition for divorce was filed by the wife on

the ground of desertion. The court held that the husband b y his conduct has forced the

wife t o stay separately from matrimonial home. Thus the husband was guilty of desertion

even though it was the wife who had left the matrimonial home.

Desertion also includes wilful neglect of one spouse by the other. I n Dr. Srikant

Rangacharya v . Smt. Anuradha, the Karnataka High Court held that wilful neglect by

one spouse 1o the other would come within the meaning o f desertion. It i s not necessary

to prove that one of the parties to marriage is living separately from the other. Merely to

prove that one of the parties to marriage is not fulfilling the duties and responsibilities

towards the other, is sufficient to establish desertion, provided such neglect in the

discharge of matrimonial duties is gross and deliberate.

4. Conversion-[Section 13(1)(ii)].—Conversion to another religion is one

of the grounds for divorce. Under Section 10 which provides for judicial separation,

conversion to another religion is now a ground for a decree for judicial separation after the

Act was amended b y Marriage Laws (Amendment) Act, 1976. Change of religion does

not ipso facto dissolve the marriage performed under the Hindu Marriage Act between INo

Hindus. Apostasy does not bring t o an end the civil obligations or the matrimonial bond.

out apostasy is a ground for judicial separation under Section 10 of the Hindu Marriage

Act. A decree for divorce can b e obtained by a petitioner where the opposite party ha:

ceased to be a Hindu by conversion to another religion e.g.. Islam, Christianity, Judasm

or Zorostrianism.

5 . Unsound mind-[Section 13(1)(ii)].—Now under the Amendment Act

of 1976 incurable unsoundness of mind or continuous or intermitient mental disorder of

such a nature as to disable the petitioner to live reasonably, with the respondent makes

the petitioner eligible to get a decree of divorce. The term "mental disorder' has been ven

widely interpreted so as to include mental ilness, arested or incomplete development of

1. AIR 1970 Cal. 266.

2 AIR 1980 Karn. 8.

Mukherji, ILR (1948) 2 Cal. 119.(1880) 4 Bom. 330; Budansa Rowther v. Fatima Bi, AIR 1914
Mad. 192: Rakera Bibi vAnil Komur

MARRIAGE

mind, psychopathic disorder or any other disorder or disability of mind and includes

schizophrenia. The expression psychopathic disorder has ben further explained to include

seriously irresponsible concuct on the part of the other parly.!

persistent disorder or disability of mind which results in abnormaly aggressive or

In Ram Narain Gupta v. Smt. Rameshwari Gupta,2 the Supreme Court elaborately

described about the degree of mental disorder which wil enable an aggrieved party to

a mariage to obtain a decree of divorce. The court held that the context in which the

¡dea of unsoundness of 'mind' and "mental uisorder" occur in the section as grounds

for dissolution of a mariage, require the assessment of the degree of the "mental

disorder". Its degree must be such that the spouse seeking relief cannot reasonably

be expected to live with the other. Al mental abnormalities are not recognised as

grounds for decree of divorce. If the mere existence of any degree of mental

abnormality could justify dissolution of a mariage, few mariages would, indeed,

survive in law. "Schizophrenia" it is true is said t o b e difficult mental affliction. Not

all schizophrenias are characterised bv the same intensity of the disease. The mere

branding a person as schizophrenic therefore will not suffice for purposes of Section

13 (1) (iii).

Woman suffering from incurable epilepsy and unable to manage herself or her

affairs as an ordinary reasonable person, fall within the expression "incurably of unsound

mind. "3 Where the husband does not submit to medical examination on the petition of

divorce by the wife, alleging that the husband i s suffering from unsoundness o f mind,

adverse interence would be drawn against the husband. 4

6. Leprosy [Section 13(1)(iv)].—Leprosy i s no more a ground of decree of

disolution of marriage under the Hindu Marriage Act and i s omitted b y the Personal
Laws (Amendment) Act, 2019. Before this Amendment Act, virulent and incurable form

of leprocy was a ground o f divorce under the Hindu Marriage Act a s laid down in Section

13(1)(iv) of the Act.

7. Venereal disease [Section 13(1)(v)].—It i s essential for the petitioner

10 prove that the opposite party has been suffering from venereal disease in a

communicable form. We note that for divorce it is not specifically required that the

disase shall not have been contracted from the petitioner, but this requirement is to be

suplied from the "own wrong" provision o f Section 23(1)(a). S

8. Renunciation of world [Section 13(1)(vi)].—Renunciation of world is

regarded tantamount to civil death and therefore i t is given a s a ground for a decree of

divorce. A person, howevei, does not become a sanyasi b y merely declaring himself a

sanyasi' or by wearing clothes of sanyasi. He or she must perform the ceremonies

necessary for entering the class of sanyasi; without such ceremonies h e cannot be

regarded dead for worldly purposes.

1. Dastune v. Dastane, ATR 1970 Bom. 312.

2 AIR 1988 SC 2260

4. Shamievy.3. Bani Devi v. H. K. Bunerji. AIR 1972 Delhi 53

HINDU LAW

108

9. Presumption of death (Section 13(1)(vi).—This clause provides ther

cither party may seck divorce on this ground it the other parly has not ben heard of an

being alive, for a period of seven years or more by those persons who would natural!

have heandolic, had that party ben alive. Thus the aggrieved party may mary againand

have legitimate children. If the second mariage is performed on the basis of presumpton
dideath withom getting a deeree of divorce, no person other than the missing spouse can

question the validity of the sccond marriage.'

10. Non-resumption of cohabitation after decree for judicial

separation [Section 13(1-A)(i)].—Section 13(1-A)(I) provides that either party to

divorce on the ground that there has been no resumption o f cohabitation between the

panies to the marriage for a period of one year o r more after the passing of a decree for

judicial separation in a proceeding to which they were parties.

A party will be entitled to a decree o f divorce if a decree of judicial separation has

already heen passed and the other party has not resumed cohabitation within one year

thereafter.

Where a wife has obtained the decree for judicial separation and the husband makes a

petition of divorce, after 2 years of that separation on the ground that there was no

cohabitation resumed, the Court passed the decrec.?

Cohabitation means living together as husband and wife. I t consists of the husband

acting as a husband towards the wife and the wife acting as a wife towards the husband

the wife rendering house-wifely duties to the husband and the husband supporting his wife

as a husband should. Cohabitation does not necessarily depend on whether there is sexual

intercourse betiveen husband and wife. If there is sexual intercourse, it is very strong

evidence-it may be conclusive evidence-that they are cohabiting, but it does not follow

that because they do not have sexual intercourse they are not cohabiting. Cohabitation

implies something different from mere residence. I t must mean that the husband and wife

have began acting as such and have resumed their status and position as husband and

wife. 3

11. Failure t o comply with the decree for restitution o f conjugal

rights [Section 13(1-A)(ii)].—A party will b e entitled t o a decree of divorce also

when a decree for restitution of conjugal rights has heen passed and it has not been

complied with within one year of the passing of such a decree. The spouse who fails 10

comply with it would do so at his or her risk and it would not be necessary for the

aggrieved spouse to prove that he o r she had made positive efforts to make the other party

comply with the same and it would suffice to show that there was no compliance vith

the decree 4
Where the wife in good faith came to settle with the husband after passing of the

decree of restitution of conjugal rights and stayed with him for some time but later on due

to il-realment of the husband, she had to leave the husband's place, it cannot be said that

the wife was guilty of non-compliance o f the decree of restitution o f conjugal rights

1. Nirmo v. Nikkaram, AIR 1968 Del. 260.

2. Gajna Devi (Sml.) v. Purushottam Giri, AIR 1977 Del. 178

3. Mula's Hindu Law, 17th Edition at p. 121 cited in Hirachand Srinivas Mandpaonkar v Suran

AIR 2001 SC 1285

4. Gulah Kaur v. Gurdeo Singh, AIR 1963 Punj. 493

MARRIAGE

divorce against the wife on that basis.!

Hence, the husband under the circumstances would not be entitled to get a decree of

In the case of Sir. Bimla Devi v. Bakhtawar Singh,' it has been held that the

provisions of Section 23 (1) (a) cannot be invoked to refuse the relief under Section

13(1-A)(i) on the ground of non-compliance of a decree of restitution of conjugal rights

where there has not been restitution of conjugal rights as between the parties to the

conjugal rights in proceeding in which they were parties.

mariage for a period of one year or onwards after the passing of decree for restitution of

In O.P. Mehra v. Smr. Saroj Mehta, 3 she decree for restitution of conjugal rights

was pased in favour of the husband. After four and half months the husband brought a

petition of divorce on the ground of adultery of the wife. Later on, after a year he brought

another petition of divorce on the ground that the wife has not complied with the decree

of restitution for a period of one year. The wife resisted the petition on the ground that

the husband deliberately brought a petition after four and half months of the decree o f

resitution of conjugal rights falsely imputing acultery against ner and thus made it

imposible for her to comply with the decree. The court held the non-compliance of the

decree to be justified and accordingly dismissed the petition of the divorce filed by the

husband. The court refused to pass the decree on the ground that during the pendency of
the petition for divorce on the ground of wife's adultery, the wife was disabled to join her

husband, and i f decree o f divorce ivere t o b e passed i n his favour, it would amount to

husband taking advantage of his own wrong.

II-GROUNDS AVAILABLE TO WIFE ONLY [SECTION 13 (2)]

Four additional grounds u f divorce are available to the wife. She may also present a

petition for the dissolution of her marriage on any of these grounds. The special grounds

of divorce available to the wife alone are given below :—

(i) Bigamy (Section 13(2)(i)].- A wife may also present a petition for the

dissolution of marriage by a decree for divorce o n the ground that i n the case of any

marriage. solemnized before the commencement o f this Act, li.e., 18th May, 1955), 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 o f the solemnization o f

the marriage of the petitioner. There is, however, one condition that i n either case a t the

time of the presentation o f the petition the other wife is alive.

In a petition under Section 13(2)(i) b y wife on the ground of second marriage b y

husband which was solemnized after the commencement of the Act, the husband admitted

the acts of second marriage and living with her. No connivance or condonation by the

peiioner vas proved. It was held that a second marriage by the husband was void ab

initio under Section II read with Section 5(1) of the Act and living with second wife

amounted to adultery. The petitioner, therefore, is entitled to a decree of divorce under

Section 13()(i) and not under Section 13(2) of the Act.4

(i) Rape, sodomy or bestiality.—A wife may also present a petition for the

dissolution of her marriage b y a decree o f divorce on the ground that the husband has,

since the solemnisation of the marriage been guilty of rape, sodomy o r bestiality. The

1 . AIR 1968 Mys. 274.

2. AIR 1977 P & H167.

3. AIR 1984 Del. 159.

4. Gila Bai v. Fulloo, AIR 1966 MP 130.

Penal Code. Section 375 defines "rape" while Section 377 "unnatural offences" (ie.

expressions 'rape' or 'sodomy' have ben defined in Sections 375 and 37 of the Indian

sodomy or bestiality, etc.).

In Navtej Singh Johar v. Union of India, the Supreme Court held that that portion

of Section 37 is unconstitutional which criminalised consensual sexual acts between

portions o f Section 377 relating to sex with minors, non-consensual sexual acts and

bestiality remain in force.

The decision of Navtej Singh Johar v . Union of India, however, does not have

any effect on Section 13(2)(iii) of the Hindu Marriage Act.

A carnal intercourse against the order of nature, with any man, woman or animal is

an unnatural carnal intercourse and ihoever voluntarily has such intercourse, commits an

unnatural offence.3

It should be noted that only a proof of conviction, in these criminal offences will

not be sufficient for a decree of divorce. 4 The commission o f the offences must be proved

"de novo'.

(iii) Non-resumption of cohabitation after decree or order of maintenance (Section

13(2)(iil).- Where the decree or order has been passed against the husband awarding

maintenance to the wife in a suit under Section 18 o f the Hindu Adoptions and

Maintenance Act, 1956, or under Section 125 of the Criminal Procedure Code, 1973, and

after passing of such decree or order, cohabitation between the parties has not been

resumed for one year or upwards, decree of divorce would be granted

(iv) Option of Puberty (Section 13(2)(iv)]: - The wife may also present a petition

for the dissolution of her marriage by a decree of divorce on the ground that her marriage

was solemnized before she attained the age of fifteen years and she repudiated the marriage

after attaining that age but before attaining the age, of eighteen years. It is immaterial

whether the marriage has been consummated or not.

In Bathula Ilahi v . Bathula Devamma, the Court granted the decree after the wife
had attained the age of eighteen years. The wife i n this case had repudiated the marriage

before attaining the age of 15 years because after living with the husband for some time

she realised that i t would be dangerous to live with him any more. She came t o learn later

on about the passing o f Marriage Laws (Amendment) Act, 1976, which entitled her to

bring the present petition. The Court held that even i f the petition has been presented

after passing of the age of eighteen years i t would be allowed in the wake of reasonable

explanations for the delay.

Where the wife was married before attaining the age o f fifteen years but she

repudiated the marriage after attaining the age o f fifteen years but before attaining
eighteen

years and all this happened before the Amendment Act of 1976 came into force, the Court

held that even after 1976 that episode can be taken into consideration and divorce can be

granted to the wife.