notbecome a Inarriage ge has not remained a

cramental
contract, though it has
of a contract as
as in most
consent is of some semblance of both. narriage and has
It has
marriages sacramentalimportance; isit has semblance of aa semblan
a a
ceremony still
necessary. sacranmonent
Once it came to be DIVORCE
the logical next established that
step to
when marriage came recognize that it was marriage was a civil
to be also a dissolute contract, it was
ordinary contract. It is because accepted a contract, it was not union. However
as
institution. It is asserted marriage has always been regarded likean
that there
protection of the institution of is a
social interest in considered
the
as a social
institution of marriage. This is the main preservation and
marriage is
evidence, communication hedged with all-round
in reason why the
communication. between husband and protection. Under the
laws. It was, The domestic life as such is wife is law
therefore, accorded regarded as a
privileged
being a special inevitable to consider protection by multifarious
contract,
ordinary contract. This the
marriage marriage as a
special contract
was may be illustratedcould not be put to an end likeand,aan
a recognized for the first
time from English law.
ground of
divorce, then
in the year 1857.
For
In
England, divore
were the
only grounds of divorcecruelty and desertion a
long time adultery w
The for were added. And these tnie
Is an grounds of
exclusive union anddivorce may be considerable time.
looked at from two
Adultery destroys the very not an exclusive union, it aspects (1) Mar
if it is
parties will live foundations
with each other of ceases to be
mari that
-

1. The in marriage. Marriage

harmony and in mutualage also
also implies
Matrimonial Causes Act, 1857. impeCruel
confidence
 cONCEPT OF MARRIAGE AND THEORIES OF DIVORCE 9

orehension of cruelty, undermines this basic

or an appre
requirement
arriage is that both the parties will live together; if one
mption of marr
of marriage.
Rasic ashs the other, this basic assumption no longer exists. Thus,
party des
adultery,
rtion are destructive to the very foundation of
and desertion
marriage.
cruelyat from another angle, these grounds are the matrimonial (ii)
offences
Looked by one of the parties to marriage. Some notion of criminality is
committed

In that sense, vorce is regarded as mode of punishing the

involve
party who had rendered
himself or herself unworthy of consortium. Thisguilty
or offence theory of divorce. gave
the guilt
e to
Oence or Guilt Theory of Divorce-In the early law of England, in most
the Commonwealth countries and in most States of the U.S.A., the offence
of waS considered to be the most appropriate basis of divorce. According to
this theory, a arriage can be dissolved only if one of the parties to marriage
has, after the solemnization of the marriage, committed some matrimonial
offences. The offence must be one that is recognized as a ground of divorce. This
ne parties, though free to enter into a wedlock, are not equally free
nplies that the
to get out of it. The marriage could be dissolved only on certain grounds
prescri by law. The guilt theory, on the one hand, implies, a guilty party, i.e.,
rimonial offence on the part of one of the parties to the
ommission of matrin
mariage, and, on the other hand, it inmplies that the other party is innocent, ie.,
in no way a party to, or responsible for, the offence of the guilty party. This
principle was taken very far in English law; so much so that if both the parties,
independently of each other, committed matrimonial offence, the marriage could
not be dissolved. For instance, if a petition is presented 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. One of the Chief Justices of England caustically
remarked: "Perhaps it is not vouchsafed to everybody, whether in Holy Orders
or out of them, to appreciate the full beauty of the doctrine that if one of the
two married persons is guilty of misconduct, there may properly be a divorce,
while if both are guilty, they must continue to abide in the holy state of
matrimony. English law has now abandoned this position.
Since the guilt theory requires that the petitioner should be innocent, the
English law evolved the doctrine of matrimonial bars, discretionary bars and
absolute bars. This means that even if a petitioner is able to establish a ground
of divorce to the satisfaction of the court, he may not get divorce if one of the
matrimonial bars is proved against him. Under English law, the absolute bars
are: connivance, acquiescence in the misconduct of the respondent, condonation
and collusion. (Collusion was made a discretionary bar by the Act of 1963). The
scretionary bars are : petitioner's own adultery, cruelty, unreasonable delay,
Cconduct conducive to the respondent's guilt, and the like. The existence of an
absolute bar is fatal to the petition, while in the case of discretionary bars the
r t may exercise, or refuse to exercise, its discretion in favour of the petitioner.
The moden
English law has abandoned all the bars.'
practically
t has been seen that in early English law, adultery, cruelty and desertion
* have now been abolished by Divorce Reforms Act, 1969; See now the Matrimonial

Causes Act, 1973.

 70 MODERN HINDU LAW

were only three grounds of divorce.' Later on, insanity was added
the
ground of divorce. Insanity did not fit in within the framework of
matrimonial offence theory, as the party suffering from insanity could
harc
called a guilty party. It is a misfortune rather than a misconduct. Thiey ba
renaming of the guilt theory as fault theory. If one of the parties has s e d t
in himor her, marriage could be dissolved whether that fault is ome fault
due to
her conscious act or providential. In some systems of law, there
exist s° o
8rounds of divorce. Sentence of imprisonment for a
specified severa
whereabouts of a party not been known for a specified period of the
wilful refusal to consummate the otherod peri
marriage, leprosy, venereal diseases y
Sodomy, bestiality, etc. have come to be recognised as grounds of divorce Pe,
systems also include grounds like incompatibility of
the Hindu temperament. Orioinne
Marriage Act incorporated the guilt or fault theory, and laidd
that there must be a
guilty party and an innocent party. The Act ha
conservative stance. All the three traditional fult
grounds, adultery, cruelhnad
desertion, made grounds of
Section 13, nine grounds of divorcejudicial
were
separation and not of divorce. it an
were recognized both for
and two additional husband and
seek divorce.
grounds were
recognized on which the wife
alone wife,
Barring aside insanity and leprosy, rest of the grounds
of the same offence or
wrong of the respondent. These were:
arosecould
change of religion, insanity, leprosy, venereal diseases, living in adultemeut
renunciation of world, presumption of deat
a decree of non-resumptionof cohabitation by the
respondent at
judicial separation and non-compliance with the decree of
of
conjugal rights; (before 1964, the petitioner,in the restituion
conjugal rights, or in the petition for judicial petition for
restitution of
divorce). Thus, these separation, alone seelk
additional grounds, viz.,
were
incorporated essentially as guilt grounds. could
The wifes
existence of another rape, sodomy or bestiality of the husband
and the
spouse of the polygamous pre-1955
husband, werealso based on the same
theory.
marriage of the
Even renunciation of
by becoming sanyasi fitted into the framework of fault
a the world
orthodox will not agree that if one of the theory, though the
could be said to have spouses enters into the holy order, he
the other
committed any offence, yet looked at from the
spouse, it is nothing but permanent desertion. angle of
Marriage Act deals with the matrimonial bars. Thus, itSection 23 of the Hindu
is laid down
petitioner will not be allowed to take that the
disability, this is to say, if the advantage of his or her own
wrong 0r
or
indirect outcome of some
guilt of the
respondent is, in any way, the direct
will not be entitled to the wrong or disability of the
matrimonial relief asked for, evenpetitioner, the petitioner
to establish his if he had been able
ground of relief beyond reasonable doubt. In case
seeking matrimonial relief (divorce or the
ground
petitioner must show that he is in no judicial separation) is adultery, tne
adultery, and that he did not connive at the way accessory to the respondent
petition, the petitioner has to show that there adultery of the respondent.
In
eve
the is no collusion
respondent. In case the between him a
required to show that he or ground
is cruelty or
she did not adultery, the petitioner1s
a in
every matrimonial condone the offence. The
cause is required to prove that there is
petitione in
the presentation of the
petition.
no
improper ae
1. Matrimonial Causes Acts of 1857, 1923
Utr. 16. and 1937. Suresh 2010
Mohan Saxena v. Anju >ua
 CONCEPT OF MARRIAGE AND THEORIES OF DIVORCE 71

after
ment of
the amendme 1964 (which introduced the breakdown
Even
re) and of 1976 (which introduced consent theory of divorce), the
t h e o r y o fd i v o r

unds of divorce and the bars to matrimonial relief are still part ot
fault g The amending Act of 1976 has made adultery, cruelty, and
ofdivorce.
law
ertion as fault grounds of divorce, and has added two more fault grounds of
H i n d u

divorce for
wife. It has also reformed some of the existing fault grounds of
divorve. (See
Chapter V1).
Theory of Divorce+As against the guilt theory, there has been
Cothe theory of free divorce or the consent theory of divorce. The
ofthis theory hold the view that parties to marriage are as free to
a d v o c a t e

potagonists

marriage as s they are to enter it. If marriage is a contract based on the

solvea
diolition of parties, the parties should have equal freedom to dissolve it. Just
in entering into some other transaction, so also he or
tree
ndividual may err
as
an
e r r in
ering
enteri a marriage. The argument may be summed up thus: it
she may that two parties who have entered into a marriage with free
may happen
later on, realize that they made a mistake, and, for one reasor1 or
onsent, may,
another, are findin it difficult to pull on together smoothly and to live together
Cons

harmoniously. It is not cause they are wicked, bad or malicious people. They
just ordin
average human ings, but it has just happened that their
has turned out to be a bad bargain, and they find
are
it impossible to
age
n e to live together. Should they have no right to correct their error, to cast
intolerable and which is sapping the
off a burden which has become onerous, vitals ? It is not
vital fluid of life
and eating into its very merely their physical
their entire family life including moral life, which is affected. If
ife, it is also
have no way out, they are likely to go astray, may be,
from this situation they
commit a matrimonial offence, may be one, out of
willy-nilly, one is forced to
murders the other. Such an unhappy family is a breeding
sheer frustration,
children. In short, continuance of such a marriage is
ground for delinquent social interest. Thus, it is argued, that
neither in the individual nor in the
then and then only can mutual
freedom of marriage implies freedom of divorce,
exist. Engels observed
fidelity continue, can real monogamy
then only those are
"If only marriages that are based on love are moral,
cessation of affection, or its
moral in which love continues. A definite
a blessing for
displacement a new passionate love, makes separation
by the
both
parties well as for society. People will only be spared
as

experience of wading through the useless mire divorce proceedings."

of
The very basis of marriage is mutual fidelity, and
if for any reason the
should have freedom to
parties feel that mutual fidelity cannot continue, they
can be preserved. Divorce
dissolve the marriage. as only by dissolution, fidelity that has existed
the situation
Dy mutual consent means that the law recognizes
Tor some time and in effect says to the unhappy couple: "Ifyou think that your
convinced that it should be
narriage cannot continue and if you both are main criticism of the consent
aissolved, the marriage will be dissolved." The divorce.
eory 1s bring about chaos and will lead to hasty
that it will
divorce will
of the theory maintained that freedom of
Frotagonists
Ot lead
consent
to chaos. It will neither lead to immorality. In the words of Tillet
can be
deductions about the standard of morality in any country
No
Origin of Family, Private Property and State, 117-18.
 MODERN HINDU LAW

divorce by mutual con

drawn from the fact that they recognize
refute the charge that divorce by mutual aproent
except perhaps, to
necessarily means widespread
licence or immorality." Teement
hold that the freedom of divorce wil
The advocates of this theory
and reduce the number of unhappy ones n g
about more happy marriages,
the wife to live in harmony and consolidat. ill
help both the husband and h
in their career. Since the
so that they may fully engage
unity of the family, w o m a n are forced to take a very serione
freedom of divorce, both man and
towards marriage. One will be very careful before marriaood
sincere attitude
one should repent, and one will also be frank and honest, so that one i st
not
regretful later.
Soon after the Revolution, the Soviet Union introduced this theorv in
in most of Eastern-Eure th
family law. In the People's Republic of China,
countries Belgium, Norway, Sweden, Japan, Portugal and in some n
American States divorce by mutual consent 1S recognized in one form Or Latin
other. At home, the Speical Marriage Act, 1954, and the Hindu Marriage the
1955 (after the amendment of 1976) recognize divorce by mutual consent
The main criticism of the consent theory is two-fold : ) it makes divoree
very easy, and (i) it makes divorce very difficult. It has been said that div
and ill-considered divor
by mutual consent offers a great temptation to hasty
More often than not, parties unnecessarily magnify their differences, discomforts
and other difficulties, which are nothing but problems of mutual adjustments
and rush to divorce court leading to irrevocable consequences to the whole
family. This criticism has been met by the law of many countries which
recognize divorce by mutual consent, by providing several safeguards. Under
the modern English law, the Matrimonial Causes Act, 1973, the consent theorv
has been accorded recognition by laying down that if the parties have lived
apart for a continuous period of at least two years, immediately preceding he
presentation of the petition, divorce may be granted by the mutual consent of
the parties. Under the Special Marriage Act, and the Hindu Marriage Act, 195,
no petition for divorce can be ordinarily presented before a period of one year
has elapsed since the solemnization of marriage. Section 28 of the former and
Section 13-B of the latter provides that a petition for divorce by mutual consent
may be presented to the District Court by both the parties together 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. A further safeguard to the hasty step is
provided by laying down: "On the motion of both the parties made not earlier
than six months and not later than eighteen months after the presentation o
petition" [in case the petition has not already been withdrawn] "the District
Court shall, on being satisfied, after
hearing the parties and after making suen
enquiry as it thinks fit, that a marriage has been solemnized under the Act and
that the averments in the petition are true,
pass a decree dissolving u
marriage."
The other criticism of the
theory
is that it makes divorce
very difficu
Since divorce by mutual consent requires the consent of both the
of the parties and
one parties withholds his or her consent, divorce can neverbe oDra
ined.

1. Law and the People, 157.

 cONCEPT OF MARRIAGE AND THEORIES OF DIvORCE 73

of the his or her

happen that one parties to marriage may not give
1sent, I m a y
for divorce on account of a belief in the indissolubility of marriage, or
ment en tof
on account of sheer malice, bigotry or avarice, then divorce can never be

bring obtained.
vable Breakdown of Marriage Theory of Divorce-The guilt
will retrievabl

divorce has been found deficient as it recognizes divorce only on

2the The consent theory has been found wanting as it
ere is
theory

certain specifie fied grounds.

kes divorce
too easy or too difficult. The problem that the modern law
and fact broken down irretrievably, may be on
lest eith that if a marriage hasorinboth
not facesof fault of either party parties, or on account of fault of neither,
in the
accothere any sense in continuing such a union ? Would it not be
then is
both the individual and the society that the marriage is dissolvedd?
the substance has disappeared, only form has remained. There
oean marriage,
empty shell. In other words, the law recognizes
the a
atin ne in retaining
is
no

in effect says to the

unhappy couple; "If you can satisfy the court
the ituation
and
and in .

has broken down, and that you desire to terminate a

your marriage
Act, that
then your marriage shall be dissolved,
aion
situatior
that has become intolerable the
whatever may
be the cause", the breakdown theory of divorce represents
orce on Reform of the

orce
view of divorce. Recently, the Law Commission
modern view
divorce laww
Grounds of Divor orce said in its Report that objectives of any good
ces. rather than undermine, the stability of marriage,
and
orts are two: "One, to buttress, broken down, to enable the
two, when regrettably,
a
marriage has irretrievably
nts, n t shell to be destroyed with the maximum has fairness, and the minimum
nole humiliation." If a marriage broken down beyond all
ich hitterness, distress and into
then it should be brought to an end, without looking
DOssibilities of repairs,
der the causes of breakdown and without fixing any responsibility on
either party.
ory the irretrievable breakdown of marriage
ved In our contemporary society,
the laws of many countries. In or about nineteen fifties,
the theory is recognized by also which
a trend towards
this theory became discernible in those countries
of used. First, by
were deeply
entrenched in the fault theory. Two methods were
55, Such grounds as incompatibility of
ear enlarging the number of grounds.
Swedish Marriage Law of 1920 provides a very
and temperament were added. The
down that both the spouses could
ent good illustration of this trend. It was laid on the
present a joint petitiorn for separation
decree ground of "profound and
the be presented by one of the
re, lasting disruption". Such an application could court was
case of joint application, the
ed spouses to the marriage also. In the
matter. When only one
is required to pass a decree without looking into the
spouse sought divorce, the application could be granted if the court, after an
ier The
of lasting disruption of marriage.
enquiry, came to the finding of profound andwidest
ict second method that was used was to give possible interpretation the
to
traditional fault grounds. Cruelty proved to be the most fertile ground. In Gollins
ch V. Gollins, the husband's failure to take up a job, his inability to maintain his
nd debts held to
wiTea and his dependence on his wife to pay off his pressinghusband's
was
he
DE Conduct amounting to cruelty. In Williams v. Williams,' persistent
accusations of adultery against the wife were considered to amount to cruelty,
lt.
if 1.
Report, para 15.
d. 2. (1963) 2 All ER 994.
3. (1963) 2 All ER 994.
 Lasarati)
M .

MODERNHINOULAW Masarati v,

In
a newsituation as
is the reakdown
insane. w i t h

be the,
to
f a c e d

t h a t
is
f o u n d

p e r h a p s f a c t o r

was

husband
are
marria
p a r t i c u l a r
we

that "Today breakdown o f

breakdo.ge
fact one
despite
the

of
Appeal
to
said:

be
attached
to
irretrievable the kdown of
or
Such
Court report,
relationship

ofthe s
the weight
the
remain for
C o m m i t t e e

e c e p t i o n

regands m a t r i m o n ip
alrobability,
the M o r t i m e r

o fmarriage for
the way
In
the in
the reasonable
the opinion of the
hus,

opened
up.
"such
failure

that
no wife.
." In cor ompletely
was and down
as r e l a t i o n

theory defined

that
husband
b r o k e n dos
marnage
is
a d v e r s e
to
e t h e r
as has
to
tne
marriage
not
togeth marriage
parties
CiRumstances
living
again s h o w n that a of the theor
the spouses

if it is d i s s o l v e d
even
if o n e
of
marriage y has
Committee
should
be b r e a k d o w n

marmiage irretrievable

beyond
desire it.
law,
the b r o k e n
down
any
the
moderm
has
ation of
In
d e t e r m i n a t i

modes:
two
marriage
The o.e
its way in if a left to the
found
lays
down
that
be
d i s s o l v e d .

or
n o t is coufts
The law should down which
a) then it
has
broken criterion
on
ha
of repair marriage down any
court to
lay it to the
possibility fact a
w h e t h e r in
not
does It
leaves

guestion
In other
words, the
to have
broken
legislature
or
not in
each
individual down.
case
ca

be
deemed
broken
doWn
this m o d e .
So did
marrage may has in fact 1944 adopted adon
a marriage States also
Out
whether

Union in its family

East law since buropean
The Soviet 1946. Most of the an obligation
law of these countries
imposes
in its family of
Germany The law before proceedino
breakdown theory between parties
this form of reconciliation

to try to
effect a
on the court
to dissolve a marriage. the criterion of
mode, the legislature
lays down
(ii) In its second the courts have no option
and if that is established,
breakdown marriage
of a must show that before
For instance, the petitioner
but to dissolve the marriage. from the respondent
has been living separate
the presentation of the petition, he
that marriage has broken down
for a specified period. This goes to establish
breakdown theory received
beyond all possibilities of repair. In this form, the
early recognition in some countries. The Swedish law lays down that divorce
could be obtained if one year has elapsed after the passing of a decree for
judicial separation provided the parties have in fact lived separate from each
other during that period. The law of New Zealand and
about eighteen States of
the U.S.A. aso contain a similar
of Australia also ground. The two States of the Commonwealth
recognized
that if a decree for
such grounds. The law of
South Wales laid down
restitution of conjugal
divorce could be obtained rights was not complied with, then
the other forthwith. No period of
hand, the law of
obtained if a decree for South Australia waiting was provided. On

a period of three restitution of provided that divorce could be

conjugal
years or more. A similar rights was not
Commonwealth of Australia ground has been ror complied with
minimum waiting Matrimonial provided by
period is Causes Act, 1959, te
Another version of one year. whereunder u
Tequi
from reach
es that before a
this form of
breakdown theory is the
petition is presented,
other for some
1.
(1969) 1 WLR
392 specified period. Thethe parties must have lived
one
wu h
Royal apart
ap Commission on on Marriage
 75
CONCEPT OF MARRIAGE AND THEORIES OF DIVORCE

that either spouse may be able to obtain divorce

on
Divorce recommended
had lived separate from each other for a period of
seven
oround that they
could not be granted.
b u t if one of the parties objected to divorce, divorce
two periods of separation have been suggested, one
s vet another version, shorter. In the latter case, divorce can be given only
if the
longer a n d the other
if the
consents to it. In the former, divorce can be obtained even
party of the Law
other party
withho its consent. Following the recommendat
placed
of England, the Divorce Reform Act, 1969 (which has been
marriage
C o m m i s s i o n .

Causes Act, 1973) laid down that if parties to the

the Matrimonial immediately
for a continuous period of at least two years
have lived apart consented to the
the presentation of the petition and the respondent
nreceding the marriage could be passed.' It
also
decree being granted, decree dissolving
for a period of 5 years or more as a ground
for divorce,
recognized separation to
fact the other
party consented or did not consent
irrespective of the whether
English law recognizes consent theory
as
the modern
divorce. In this manner, In the former case, the criticism of consent theory
breakdown theory.
well as the down that before the
that it leads
to hasty divorces has been met by laying
the must have lived from each
separate
presentation of the petition, parties law
a period of
two years. Under the second ground, the English
other for
irretrievable breakdowm of marriage theory by laying
down
incorporates the of marriage.
is a sufficient evidence of the breakdown
that five years' separation in Australia
form in which the breakdown theory is recogmized
This is also the is three
though under the law of the latter, the period of separation
and Canada' is immaterial.
In that event, the consent or dissent of the other party
vears. for the parties to
have been hedged with sufficient safeguards
These grounds
the children of the parties."
the marriage and for Under the
breakdown theory, has its own version.
In Hindu law, the if it
Act, 1955-76, divorce can be obtained by either party (a)
Hindu Marriage not been complied
shown that a decree for restitution of conjugal rights has
is
or more, or (b) if it is
shown that cohabitation has
with for a period of one year of the decree
of one year or more after passing
not been resumed for a period
form the breakdown grounds are recognized
for judicial separation.° In this very
Thus, the breakdown
e o r y was

under the Special Marriage Act, 1954-76.

divorce both to the so-called
introduced into the Indian law by allowing bars under
innocent and the guilty party. But
the provision of the matrimonial
the breakdown
the framework of guilt theory,
both statutes was overlooked. In must
was buttressed. The letter
of law still requires that the petitioner
theory of his or her own wrong or disability,
prove that he is not taking advantage such provision. And it may
the breakdown theory does not admit of any
though Courts have struck to the letter
of
be interesting to note that most of our High innocent
that the party who is not
law and have held, despite the amendment,

1. Section 2(1)(d).
2. Section 2(1)(b).
6 of the Act.
3. See Section 2(2)(3); Sections 4 and
4. Matrimonial Causes Act, 1956 (Australia), S. 28(m).
5. Divorce Act, 1968 (Canada) S. 4(1)(e).
6. Section 13(1A). Kashmira, AIR 2010 Guj.
Nilesh Narin Rajesh Lal v.
7.
Section 27(2), Special Marriage Act, 1954.
3.
 MODERN HINDU LAW
cannot get a decree of divorce under S. 13(1A).'
Aspersion of
infidelity attributed to wife
cruelty-Levelling disgusting accusation of unchaste andamounts to
with outside the indecen
was a
person
a

grave assault on the character, honour,

wedlock and allegation of ent
familiar
extra-marital mental
health of the wife. Held, that reputation, status Aationsk
educated woman, would
of aspersion infidelity attributed to thas t
amount to insult, adding to injury of the the
suficient substantiate cruelty.
to fe, an
Ground of mental cruelty not worst kindind,
that it was settled proved.-Where allegation by hushane
during marriage negotiation that
school-teaching job after marriage, but the wife had broken wife would
lesWas
ve her
continued with her job. Held, that if husband was ken the promise
hurt
not
possibly help; but this type of instance could no at that, the wif and
by
mental cr Could
means be mental cruelty
Further fact pointed out was that
would visit wife's parental house to see husband was not
treated well
room without even a
her and he had to
leave
when
single cup of tea. Held, that it the drahe
as to become
careless and discourteous on small did not amount to cn
name of cruelty3 occasions was not the cruelty
oH.
Divorce ther
on
ground of
cruelty allowed to husband due to
allegation by wife about character and extra-marital slanderou
with another relationship
lady.-Where wife had written letters to Authorities by husband
Cell and also to the Prime and Women
Minister. She had persisted in
wounding feelings of husband, which humiliating and
assaulted by wife's brother and his tooth amounted to cruelty. Husband was
was broken. Such
caused profound and matrimonial life had
lasting
and reasonably apprehend thatdisruptiorn,
that in such
it was
driving the husband to feel deeply hurt
impossible for them to live
circumstances husband was entitled to decree
of
together. Held,
When divorce cannot be divorce.
granted only on
decree of divorce can ground
down of of irretrievable break
marriage-A
grounds as enumerated in the Act has been madeonlyout.beIf granted if one of the
is made out, a decree none of such
cannot be
granted simply because
grounds
irretrievable breakdown of there has been
irretrievable breakdown marriage. Clearly the Act does not
marriage of
to be a
ground provide
for granting a decree of
dissolution of marriage. That
the ground that the being so, a marriage cannot be dissolved
marriage between the parties has only on
contention of the appellant that decree for broken down. Thus,
marriage between the parties has divorce should be granted as the
chance of irretrievably
resumption of marital broken down and there
ties between them, could were
no
not be
When decree of divorce cannot
be
granted
accepted."
instant case, the
appellant-husband
had neither
on
ground of the cruelty.-ln
regarding allegation of
his specifically pleaded particulars
led, satisfactory evidence incruelty with him by the
this regard. On the respondent wife, nor had he
other hand, the evidence led in
1. See
Chapter Vl of this work under the
has been discussed. "Breakdown Ground" where the entire case law
2. G.
Siddagangappa
3. Arunima
v. R.
Shailaja,
AIR 2004 Kant. 244.
Bhattacharjee Shayama
v.
Prasad
4. D.N. Sharma v.
5. Harish Kumar
Usha Sharma, AIR
2004 Del. 198.
Bhattacharjee, AIR 2004 Cal. 161.
Ledwani v. Anita Ledwani, 2003(4) Civil LJ 258
(MP).
 cONCEPT OF MARRIAGE AND THEORIES OF DIVORCE 77

edid
the case d i d show that it was the husband
who was maltreating and
wife
assaulting
was thus cruel
to her. Thus, it was the husband and not the
fe and
theld be ssaid to be
c o u l d be
of Therefore, the
guilty cruelty.
not
appellant could get
who Section 13(1)(i-a) of the Act on the of cruelty by the
ground
under
decree under

arespondent wife"
case of husband was
sband entitled to divorce due to cruelty-Where
him that he was having illicit
ife used to level false allegations against denied the same in her
ations with his sister-in-law. Although the wife had
w
that
er proved the
her
but her statement in criminal case initiated by
writtenstatement,
of decree
beyond doubt. As such, husband was wife wouldgrant
entitled to
a f husband
case ofhust
acts of levelling false allegations by
cause cruelty
because
f divorce becar
divorce
to her husband.2

adulterator in a divorce
of non-impleadment of alleged
Consequence of
filed by the husband on the ground
a petition for divorce
netition.-n for the petitioner to implead the alleged
adulterator as

adultery, it is necessary had not impleaded the alleged

In the case the husband
co-responder
filed by him was not maintainable being
non-joining of
adulterator, the petition a divorce petition
filed by the
It was appropriate to dismiss
the necessary party.
as a
neither named nor impleaded
appellant as the
e alleged adulterator was

in the petition.3
respondent
marriage during pendency
second appeal of against decree
Contracting decree of divorce was filed by wife after
void.-Where appeal against
of divorce contracted second
of period of limitation. Husband had
three days
of expiry of marriage during
after filing of appeal.
Helä, that contracting Hindu
marriage would be hit by mischief
of provision of the
pendency of appeal
Marriage Act. recommended that
Law Commission in its 71st Report has Hindus.
The be a ground of divorce
for
irretrievable breakdown
of marriage should breakdown. On
as a criterion of
of three years' separation
It suggests the period 1981 (Bill No. 23
Laws (Amendment) Bill,
the basis of the Report,
the Marriage account of
allowed to lapse on
introduced in Parliament, but was
of 1981) was
women's organizations.
opposition by some

(MP).
K. Ledrvani Anita Ledrvani, 2003(4) Civil LJ 258
Harish v.
171.
2. Ompati v. Rajbir, AIR 2004 P &H & H).
3. Ram Kunmar v. Raksha, 2003(4) Civil LJ 76 (P
AIR 2004 Cal. 113.,
4. Kajal Chowdhury v. Dilip Chowdhury,