MATRIMONIAL RELIEFS

RCR Section 9 of HMA

Judicial Separation Section 10 of HMA
Nullity of Marriage Section 11 of HMA
Voidable Marriage Section 12 of HMA
Divorce Section 13 of HMA
Maintenance Sections 24 and 25 of HMA

 The idea behind these reliefs is to give the marriage a chance. If there are problems, the
court gives you solutions in these forms.
 S.11 and 12 are there in case of any irregularities in the marriage as per S.5
 Another relief is maintenance which is a part of every prayer but RCR
 Child custody is another important relief claimed
 Petitions asking for divorce usually also ask for nullity or/and judicial separation
 Reliefs can be available under HMA and HAMA.

Under Hindu Law, marriages can be:

 Valid
Essentials under S.5 are fulfilled
 Void
Marriage is null as S.5 essentials not fulfilled
A marriage is void when:
1. Within Sapinda relationship [S.5(v)]
2. Prohibited close family relationship unless custom/usage governing the two
permits [S.5(iv)]
3. Either party had a lawfully wedded spouse alive at time of second marriage
[S.5(i)]
On the above grounds, a court issues a decree of nullity. The decree is not necessary as the
marriage is void ab initio but can be useful and required in case of a dispute to establish the
nullity.

MM Malhotra v. Union of India (2006)

Facts: A Pilot of Indian Air Force was ordered into compulsory retirement on evidence of
plural marriage and adultery. His first wife to whom he had been married to for 18 years, had
discovered the existence of his second marriage of the husband and she complained to the
Chief of Air staff. He was dismissed. HC upheld the decision. The matter reached the SC.
In the court, the first wife agreed that she was not divorced from her first marriage formally
through a decree of the court. She didn’t go through the dissolution process as she had gotten
married to the pilot and they were together for 18 years now. He contended that the first
marriage was not valid as his first wife was in a bigamous marriage with another man before
him.
Issues:
i) If married parties are staying separately for a considerable amount of time, is the marriage
void?
ii) In case of a void marriage, is a decree necessary before entering into another marriage?
Held:
i) A long separation cannot be presumed to be divorce. Charges of Bigamous marriage on
the pilot were dismissed. However, the pilot’s compulsory retirement was still upheld on
proved charges of ill-treatment and cruelty.
ii) The court held that in a void marriage, a decree of annulment is not required. However,
the court recommended the same so as to avoid future issues. It was held to be necessary
in a voidable marriage.

Mohan Lal Sharma v. Parveen (2009)

The respondent/husband filed a petition against the appellant/ wife, and her first husband
under section 11 of the Act, on the plea that her marriage with the respondent was still
subsisting on the date of her marriage with him. The Court referred to MM Malhotra v.
Union of India (2006) to arrive at the decision.

Promila v. Ashok Kumar (2009)

The Court placed reliance on MM Malhotra v. Union of India (2006).

Leena v. Laxmi (1968)

 VOIDABLE MARRIAGE
There is an entitlement of marriage. Until annulled by the contracting party, the marriage is
valid and marital obligations continue. It’s based on S.5 and S.12. Child marriage is also
voidable but it is not covered in HMA (but under PCMA).
Section 12(1)
(a) marriage has not been consummated owing to the impotency. Impotency must’ve been at
time of marriage and continued till institution of proceedings for annulment.
If either spouse was physically incapable of entering the marriage at the time of the
marriage, usually because of a lack of ability to have sexual intercourse, and if this
inability is incurable or if the spouse refuses to take any action to cure the inability,
there are grounds for an annulment. The inability must continue and must exist at the
time of suit.
(b) that the marriage is in contravention of the condition in S.5(ii) [unsoundness, mental
disorder to the extent of unfitness for marriage or procreation, recurrent attacks of insanity]
If the court finds that either spouse did not have ability to understand the nature of or
the duties and responsibilities of the marriage contract, then there is ground for an
annulment. However, if the spouse who did not have the ability to understand the
contract gains the capacity to understand it and freely lives with the other spouse, then
this ground does not apply. [Refer S.12(2)]

Pronab v. Krishna
It was held that Schizophrenia which is a type of lunacy is a ground for making the marriage
as null and void.

Muneshwar Dutt v. Indra Kumari (1963)

 The mental condition of the parties at the time of marriage would be decisive in the
nullification.
 If the insanity develops after marriage, it could not be declared null and void on that
ground.
 Where either party had been suffering from unsoundness of mind prior to marriage but
later at the time of marriage became mentally sound, the marriage could not be declared
null and void.

(c) that the consent of the petitioner, required under S.5 (or that of guardian of petitioner as
it stood immediately before the commencement of the Child Marriage Restraint (Amendment)
Act, 1978) was obtained by force/fraud as to the nature of the ceremony or as to any material
fact or circumstance concerning the respondent
If the consent to the marriage contract was obtained either by fraud or force, then there
are grounds for an annulment. The person who has been threatened or deceived about
the marriage contract continues to live with the spouse after the discovery of the fraud
or the deception or after being forced into the marriage, it is possible that this ground
will not apply. (Refer S.12(2))

Anurag Anand v. Sunita Anand

The court held that false particulars in bio data based upon which the marriage was
solemnized amounts fraud and the aggrieved party may annul the marriage.

Although there is no strict obligation on the parties to reveal all information about
them, material facts must be concealed. Court has to decide if facts were material or
not.

Som Dutta v. Raj Kumari

The consent was obtained by concealing the age of the wife. Husband sought annulment as it
was a material fact under S.12(c). It was only upon visiting the doctor for which real age was
required did she reveal the same.
Ratio: Age as a criterion for voidability is not specifically mentioned in the HMA.

(d) respondent was at the time of the marriage pregnant by some person other than the
petitioner.
Pregnancy is irrespective of whether the wife had knowledge of it or not. It’s not fraud,
the essential component is that it must exist at the time of marriage and the Husband
must prove that the pregnancy is not because of him.
Section 12(2) (Proviso to S.12(1))
Notwithstanding anything in S.12(1), no petition for annulling a marriage shall be entertained
(a) on the grounds specified in S.12(1)(c), if after the force had ceased to operate or the fraud
had been discovered:
(i) the petition is presented more than one year
(ii) the petitioner has, with his or her full consent, lived with the other party to the marriage as
husband or wife
(b) on the ground specified in S.12(1)(d), unless the court is satisfied-
(i) that the petitioner was at the time of the marriage ignorant of the alleged facts.

RESTITUTION OF CONJUGAL RIGHTS

Restitution of Conjugal Rights [RCR] is one of the various reliefs available to spouses under
the HMA, 1955. Section 9 of the HMA states:
SECTION – 9 – RESTITUTION OF CONJUGAL RIGHTS
When either the husband or the wife has, without reasonable excuse, withdrawn from the
society of the other, the aggrieved party may apply, by petition to the district court, for
restitution of conjugal rights and the court, on being satisfied of the truth of the statements
made in such petition and that there is no legal ground why the application should not be
granted, may decree restitution of conjugal rights accordingly.
Explanation: Where a question arises whether there has been reasonable excuse for
withdrawal from the society, the burden of proving reasonable excuse shall be on the person
who has withdrawn from the society.

Mode of execution of decree

The mode of execution of such a decree is laid down in the Code of Civil Procedure. Under
Order 21 Rule 32, if a respondent has willfully failed to obey such a decree after being given
an opportunity to do so, the Court may, in execution of the same, attach the property of the
respondent, and if within a year after such attachment, the decree has not been complied with,
the attached property may be sold and out of the sale proceeds, the court may award such
compensation to the petitioner as it thinks fit.

The idea of providing restitution by a Court decree is to preserve the marriage tie as far as
possible, by enabling the Court to intervene and enjoin upon the withdrawing party to join the
other. The conditions to be satisfied for obtaining such a decree are:
1. The other spouse has withdrawn from the society of the petitioner.
2. There is no reasonable excuse for such withdrawal. Should the respondent allege a
reasonable excuse, then the burden of proof lies on him/her.
3. The Court’s satisfaction as to the truth of the statements made in the petition.
4. No legal grounds exist for refusing the decree.
Other requirements:
Validity and subsistence of marriage – for RCR, marriage must be in subsistence and valid. A
decree can be issued even in case of voidable marriage.
Two exceptions: Judicial Separation, Section 18 HAMA
When parties are living separately and the Court has permitted the same, RCR cannot be
forced. The aggrieved party may appeal against the JS decree.
Withdrawal from society: Intention for withdrawal is key. Conduct of withdrawal must be
coupled with the intention. Physical withdrawal is not a criterion. Actual/constructive
withdrawal – both parties may be staying together but this can also amount to withdrawal.
Physical distance is not a criterion. If parties are living together but are not fulfilling
matrimonial obligations, then this can amount to withdrawal.

There is a withdrawal from society when one of the spouses, without reasonable excuse,
terminates an existing relationship with the intention of forsaking the other, and permanently
or indefinitely abandoning such relationship. There is no withdrawal from society where the
separation is brought about by exigencies of work. Thus, while a husband and wife might be
at times living apart, but maintain a frequent and regular social and conjugal relationship, in
such a case, there would be no withdrawal from society. Conversely, there may be
withdrawal even while the parties are living under the same roof.

Amendment in 1976 – Major Reformation

Section 9(2) HMA was originally enacted and provided as – “Nothing shall be pleaded in
answer to a petition for RCR which all not be a ground for JS or for nullity of marriage or for
divorce”.
For example, a person goes to Mumbai for a job and wife claims RCR. Then the person will
have no defence as this is no ground for divorce, JS and the person had a bona fide intention.
Yet a decree of RCR would be issued, before 1976.
This provision was very restrictive with respect to interpretation. This amendment was
recommended by the 59th LCR, 1974. The intention of the party is an important factor to be
considered.
The provision of RCR was amended in 1976. It played a major role in considering the decree
of RCR. Section 9(2) originally read that the party who has withdrawn can put a defence that
withdrawal is done as per the grounds under HMA (judicial separation, divorce, annulment,
etc.).
On the basis of cruelty, if a party has withdrawn, then this can be claimed as a defence.

If cruelty is there, four remedies are possible: [exception for RCR]

1. Divorce
2. JS
3. Section 18 HAMA – to live separately and claim maintenance
4. Withdrawal from conjugal relations – Intention is key to be examined

Post Amendment
A party cannot withdraw without reasonable reasons – Intention, Consent and
Reasonableness.

Smt. Tirath Kaur v. Kirpal Singh

The financial position of the husband was not satisfactory. He started pressurizing the wife to
take some training and join service. She came to her parental home and asked her father to
arrange training for her in a Diploma course. She joined a course/school and was successful
in getting the diploma in tailoring. After completing her course, she went to the husband and
started living with him. Even when she was doing the course, she used to visit him. She then
joined as a teacher at a tailoring school at the instance of the husband. She served there fro
about a month. Later, she got a better job at a place which was at some distance from the
husband’s house. The parties cohabited: sometimes the husband went to the wife’s place and
lived with her and vice versa. This continued for some time. Later differences arose between
them on some matter, and the husband asked the wife to resign the job and join him at his
house. On the wife’s refusal to do so, the husband filed the petition for restitution.
Mulla’s Hindu Law was referred to – “It is stated that a wife’s first duty to her husband is to
submit herself obediently to his authority and to remain under his roof and protection.”
Matrimonial relationships have a balance in between husband and wife’s obligations.
Husband was incapable of fulfilling the basic necessities. There can be no ban to an
arrangement being made based on mutual consent and concurrence of the parties. In HMA,
there is no distinction between the position of wife/husband for RCR. Rights are always
subject to obligations. When the husband claimed that there was withdrawal – in fact, there
was no withdrawal, as withdrawal is associated with the intention of the party. The wife was
fulfilling her matrimonial obligations. Merely owing to conduct, intention could not be
proved.

Swaraj Garg v. K.M. Garg (1978)

The appellant wife had a permanent job in Punjab before her marriage. The husband tried to
seek a job at the wife’s residence. But, when he could not find one, he was insistent that the
wife should resign from her job and come and live with him in Delhi. The Court held that it
cannot be expected that the parties continue in the matrimonial home. The basic principle on
which the location of the matrimonial home is to be determined by the husband and wide are
based on common convenience and benefit of the parties.
The Court made reference to Halsbury’s Laws of England – “It is the husband’s duty to
provide his wife with a home according to circumstances. There is no absolute rule whereby
either party is entitled to dictate to the other where the matrimonial home shall be, and the
matter is to be settled by an agreement between the parties, by the process of give and take.”

Vijay Kumar v. Neelam Ram (2004)

No force can be used to get the party to the conjugal house. The only force which is
conceived under the law is that the property of the opposite party can be attached by way of
Order 21 Rule 32 of the CPC [if the party willfully does not comply with the decree]. Hindu
marriage is not a contract and hence, enforcement of decree cannot be made like to her
contracts under the CPC. No law will force the parties to go back to conjugal relations – it
can only try and prevent the separation [Section 30 HMA]. Coming out of marriage and
remaining in the marriage is the sole choice of the parties [Section 13(1)(a)]. The law itself
provides that if a decree of RCR is not complied with, then there is not punishment for the
same. The remedy is provided to come out of the marriage – that is, to obtain divorce if there
is no possibility of reunion.
Constitutional Validity of RCR
The constitutional validity of Section 9 of the HMA became a subject-matter of debate as a
result of the Andhra Pradesh High Court judgement in T. Sareetha v. T. Venkata Subbaiah
(1983).
The civil revision petition was filed by Sareetha, a well-known film actress of the South
Indian screen, against an order passed by the learned subordinate Judge, overruling her
objection raised to the entertaining of an application filed by one Venkata Subbaiah, under
Section 9 of the HMA for restitution of conjugal rights with her.
Justice Choudhary termed the provision of restitution as “barbarous”, “uncivilized”, “engine
of oppression” and assailed Section 9 of the HMA as being violative of the right to privacy
and human dignity guaranteed by Article 21 of our Constitution, as well as being violative of
Articles 14 and 19. He observed that – sexual cohabitation is an inseparable ingredient of a
decree for RCR”. The result is that the decree holder gets a right not only to the company of
the other, but also to have sexual intercourse with him/her. This would result in transferring
the choice of whether to have or not sch relations to the State, and not the individual
concerned. As a natural corollary, according to the court, it also meant that the surrender of
the choice “to allow or not to allow one’s body to be used as a vehicle for another human
being’s creation”. Since a restitution decree is capable of being enforced, the Court felt that it
is “to coerce through judicial process, the unwilling party to have sex against the person’s
consent and the free-will of the decree-holder.
Holding the restitution decree as violative of Article 21, the Court held that the right to
privacy is a part of Article 21, and is bound to include body’s inviolability and integrity and
intimacy of personal identity, including marital privacy.
The Court referred to Bai Jiva v. Narsingh Lalbhai (1927), a division Bench of the Bombay
High Court which noticed that:
“Hindu law itself even while it lays down the duty of the wife of implicit obedience and
return to her husband, has laid down no such sanction or procedure as compulsion by the
courts to force her to return against her will.”
The Court reiterated the position taken by the American Supreme Court in Eisenstadt v.
Barid (1972) that the right to privacy belongs to each one of the married couple separately
and is not lost by reason of their marriage.
On the touchstone of Article 14, which guarantees equal protection of the law, the remedy of
restitution fails, according to the Court. Although Section 9 does not offence the
classification test, but the “bare equality of treatment, regardless of the inequalities of
realities, is neither justice nor homage to the constitutional principle”, the court said. The
only advantage of such a decree is that it provides a ground for divorce at a later stage, but
the price for this is very high – human dignity. In view of all this, Section 9 was declared as
null and void.

Shortly after the AP HC judgement, the Delhi High Court in Harvinder Kaur v. Harmander
Singh (1984) [Justice Avadh Behari], not only upheld the validity of Section 9, but also
discussed its advantages. He denounced the introduction of constitutional law in family law
as “introducing a bull in a china shop”. The Court discussed the meaning and idea of
cohabitation and consortium, and the purpose behind RCR decree in great detail, and came to
the conclusion that restitution aims at cohabitation and consortium and not merely sexual
intercourse, and that there is nothing barbarous or coercive about it.
Section 9, according to the Delhi HC, is in a way an extension of Sections 23(2) and 23(3) of
the HMA, which aim at stabilizing a marriage and encouraging reconciliation. If the RCR
decree is disobeyed, it is an indica that the parties have reached a stage of no return. In such
cases, the parties get a ground for divorce after lapse of one year. Thus, Section 9 aims at a
“two-in-one-ship”. It coaxes and cajoles the withdrawing spouse to return to the matrimonial
home, and, in the alternative, facilitates dissolution of the marriage where there is no
resumption of cohabitation. It thus serves a useful purpose by giving a “cooling off period”.
Spouses live under a type of “legal armistice”.

The Supreme Court settled the debate on the constitutional validity of Section 9 in Saroj
Rani v. Sudarshan Kumar (1984).
The wife-appellant filed a suit against the husband-respondent under Section 9 of the HMA
for RCR. Though the respondent contested the petition contending that he had neither turned
the appellant out from his house nor withdrawn from her society later as he made a statement
in the Court that the application under Section 9 be granted; a consent decree was passed by
the Sub-Judge for the RCR between the parties.
After a lapse of a year, the respondent-husband filed a petition under Section 13 of the Act
against the appellant for divorce on the ground that though one year had lapsed from the date
of passing the decree for RCR no actual co-habitation had taken place between the parties.
The appellant filed her reply contending that she was taken to the house of the husband by
her parents one month after the decree and that the husband kept her in the house for two
days and then she was again turned out.
Issue – Whether a husband who obtains RCR decree by consent but refuses to comply with
it, can later use the decree as a ground for obtaining divorce?
The Court held that consent decrees per se in matrimonial matters, were not collusive where
the parties had agreed to a decree pursuant to attempts made by courts at reconciliation, and if
that decree remained unsatisfied, the husband could not be denied divorce on the ground that
this would amount to taking advantage of his own wrong.
The Supreme Court held [on the question of Section 9]
1. In India, conjugal rights, i.e., right of the husband or the wife to the society of the other
spouse is not merely creature of the statute. Such a right is inherent in the very institution
of marriage itself. There are sufficient safeguards in Section 9 of the HMA to prevent it
from being a tyranny.
2. Section 9 is only a codification of pre-existing law. Rule 32 of Order 21 of the Code of
Civil Procedure deals with decree for specific performance for restitution of conjugal
rights or for an injunction.
3. Section 9 of the Act is not violative of Article 14 or Article 21 of the Constitution if the
purpose of the decree for restitution of conjugal rights in the said Act is understood in its
proper perspective and if the method of execution in cases of disobedience is kept in
view.
[T. Sareetha v. T. Venkata Subbaiah (1983) – A.P. HC – over-ruled; Harvinder Kaur v.
Harmander Singh (1984) – Delhi HC – approved].
4. It is significant that unlike a decree of specific performance of contract; a decree for
restitution of conjugal rights, where the disobedience to such a decree is willful i.e. is
deliberate, might be enforced by attachment of property. Where the disobedience follows
as a result of a willful conduct, i.e., where conditions are there for a wife or a husband to
obey the decree for restitution of conjugal rights but disobeys the same in spite of such
conditions, then only the properties have to be attached, is provided for. This is so to
enable the Court in appropriate cases when the Court has decreed restitution for conjugal
rights to offer inducement for the husband or wife to live together and to settle up the
matter amicably. It serves a social purpose, as an aid to the prevention of break-up of
marriage.
5. (i) Even after the final decree of divorce the husband would continue to pay
maintenance to the wife until she remarries and would maintain the one living daughter of
the marriage. Separate maintenance should be paid for the wife and the living daughter.
 Wife would be entitled to such maintenance only until she remarries and the daughter to
her maintenance until she is married.
(ii) Until altered by appropriate order on application or proper materials, such
maintenance should be Rs. 200 per month for the wife, and Rs. 300 per month for the
daughter.

RCR under Personal Laws

1. Hindu Marriage Act – Section 9
2. Muslim law – under general law [RCR may be denied if there is cruelty by spouse of
in-laws, or upon the failure by spouse to performing matrimonial obligations –
reasonable grounds]
3. Indian Divorce Act – Sections 32 and 33 [for Christians]
4. Parise Marriage and Divorce Act – Section 36
5. Special Marriage Act – Section 22

Conclusions
While the issue of the constitutional validity of restitution decrees is no longer in suspense,
one needs to reflect on the efficacy of such decrees. A mere paper decree cannot compel
parties to live together in a conjugal relationship. The real purpose of a restitution decree
seems to be to use it as a spring-board for obtaining a divorce. Since the ground for divorce
under Section 13(1A)(ii), viz non-compliance of a restitution decree for once year, is
available to both the judgment debtor as well as the decree holder, it gives an additional and
easier ground for divorce, especially in situations where one party is recalcitrant and does not
wat a divorce and the process of proving a matrimonial fault by the petitioner is long,
difficult and cumbersome. However, if this is the only purpose it serves, and so it seems, one
wonders whether it is expedient to retain at all. It must be examined as to whether it would be
more logical and decent to provide an honest and simple ground for divorce, rather than
retain a provision which abets and assists parties to obtain divorce circuitously via a non-
complied decree of restitution.

JUDICIAL SEPARATION
Court allows parties to live separately to resolve their issues. It is a suspension of marriage
for the purposes of conciliation rather than termination. During JS, parties can even be sent
for counselling or even the preparation for divorce can start and after the end of the JS period
the parties can get divorced. It’s not an obstacle to cohabit mutually but no RCR application
can be filed during JS. A decree to rescind JS can be demanded from the court but only after
parties resume cohabitation.

1976 Amendment
Prior to this amendment, S.10 (grounds for JS) and S.13 (grounds for divorce) of HMA were
parallel to each other. Post amendment, the grounds were abolished the separate grounds and
unified them.
Essentials for JS (and also for divorce):
 Existence of marriage
 Subsistence of marriage
Post decree of JS by either party, maintenance can also be demanded under S.24 and S.25.
The amendment put an indirect restriction on the courts to give JS a shot before divorce.
Subsequently, S.13A was added in HMA which empowered the courts to grant JS even if
parties didn’t want the same. There are exceptions to S.13A though:
S.13(i) - Adultery
S.13(ii) - Conversion
S.13(vi) - Renouncement of world by entering religious order
S.13(vii) – Missing for 7 years or more
Hirachand Srinivas v. Sunanda
Before permanently snapping the relationship, every attempt must be made to maintain the
sanctity of the relationship (stay together basically) which is of importance to the parties, the
children and also the society.

Effects or Consequences of JS
 Marriage does not dissolve
 Parties can live separately
 Some rights may get suspended and some new rights may be accrued
 Does not prohibit parties to resume cohabitation
 Parties may claim maintenance

DIVORCE
The term “divorce” comes from the Latin word divortium, which means “to turn aside” or to
“separate”. Divorce puts a legal cessation on a matrimonial bond. It brings the marriage to an
end, putting the parties back to their unmarried status. All rights and mutual obligations of the
husband and wife cease after divorce. There remain no bonds except in relation to Sections
25 and 26 of the HMA.

THEORIES OF DIVORCE
i) Divorce at Will
Either party can divorce at his/her will anytime. Not incorporated in any codified Indian
legislation. It’s only there in traditional Muslim law but only with the husband i.e. Talaq-e-
Hasan, Talaq-e-Ehsan. There’s also Talaq-e-Tafweez - husband can delegate the right of
divorce to his wife or any third person by way of a prenuptial agreement as a part of the
marriage contract i.e. Nikahnama, with or without conditions if they fear their daughter
would not be safe or mistreated in her in-laws’ house in future.
ii) Frustration of Marriage
When marriage is frustrated without a marital offence occurring e.g. A spouse suffering from
disease/disorder/missing/renouncement of world.

iii) Offence/Guilt/Fault Theory

When a matrimonial offence (not a general offence outside marriage eg. Murder) is
committed and divorce is sought from the delinquent spouse.
iv) Irretrievable Breakdown of marriage
When no hope is left in marriage about resumption of marriage, courts can grant divorce. It’s
not codified in Indian law but exists in practice. English law has it in codified law. 71 st LCR
proposed it as a ground for divorce and suggested a period of 3 years of separation to
constitute this ground. The Marriage Laws (Amendment) Act (2010) approved this is July
2013.
v) Divorce by mutual consent
Recognized by all legislations except Islamic law (although traditional Muslim law does
recognize it to certain extent). Both parties file a joint petition to get divorced. English
follows this absolutely. Indian codified law has some conditions though under S.13B that
there must be separation for 1 year.
S.14 of HMA lays down that no divorce petition may be filed within 1 year of marriage until
the day, 1 year has elapsed can the divorce be sought unless HC grants special leave for the
same. Divorce before that one year can only be granted in cases of exceptional hardship to
the petitioner or of exceptional depravity on the part of the respondent.

Meghanatha Nayyar v. Susheela

It laid down what constitutes exceptional hardship or depravity. Adultery with one person is
not exceptional depravity- Adultery plus desertion in favour of another woman plus cruelty
constitutes exceptional hardship- Apart from adultery coupled with another matrimonial
offence may cause exceptional hardship- husband commits adultery within a few weeks of
his marriage, or promiscuously with his wife’s sister, or a servant in the home, that may be
held to be exceptional depravity.
Divorce under HMA is laid down in S.13 which gives the grounds for divorce. There is no
other separate provision.
Essentials for divorce (and also for JS):
 Existence of marriage
 Subsistence of marriage
GROUNDS
ADULTERY [Section 13(1)(i)]
Voluntary sexual intercourse with any other person than the spouse. Adultery has been
decriminalized. It is no longer a criminal offence under S.497 (Joseph Shine v. UOI).
It can include both men and women. Pre 1976, continuous adultery was the standard but now
one single act is enough for the same to constitute a ground for divorce. Ascertaining
evidence for the same is the tough part. It’s based on circumstantial evidence which must
establish the existence of no reasonable doubt.
Bigamy =/= adultery as bigamy is not always adulterous ad the former merely may not be a
reason for divorce.

Essentials
 Defendant willfully indulged into it
 Substantial proof required to establish adultery
 One single act is enough

Principle of condonation with respect to adultery/cruelty

Upon discovery of cruelty/adultery, the aggrieved party can approach the court for divorce or
condone the act. The condonation may be express or implied (eg. Cohabitation resumed
without direct/indirect coercion). In such a case, the court needs to be satisfied the same has
not occurred before granting any relief under HMA.

Rajeev v. Baburao
Facts: Wife was engaged in adulterous acts and the husband was the sole witness. He
subsequently got more witnesses but he approached the court after 5 years in which they
lived together and fulfilled all matrimonial obligations.
Held: The court held that although delay should not be unreasonable under S.23 of HMA for
seeking delay, in this case the delay was justified as the husband had social obligations that
he wanted to fulfil which was that he did not want to upset his children. Divorce was granted.

Virupaxi v Sarojani (1991)

Court held that to urge the ground of Adultery after eight years is fatal to the petition for
divorce on ground of Adultery

A.R. Bhardwaj v. Arila Bhardwaj (1993)

In case of adultery against wife the onus shifts on husband to prove it but where parties are
living together after knowledge of misdeeds of wife it shall be presumed that the offence has
been condoned by the husband.

Pattayee v. Manikkam Gounder (1967)

In most of the cases regarding adultery, circumstantial evidence is all that can be normally
found. The circumstantial evidence must however be convincing to the court which should be
left in no reasonable doubt regarding the fact of adultery. The circumstances must be such as
would lead the guarded discretion of a reasonable and just man to the conclusion.

Rabindra Prased v. Sita Devi (1986)

It is not possible to lay down a rule of thumb as to what circumstances would be sufficient to
establish Adultery. But the circumstances certainly should be such as to lead a guarded
judgment of a reasonable and just man to the conclusion.

Avinash Prasad v. Chandra Mohini (1964)

The mere fact that some male relation writes love letter to a married woman does not
necessarily prove that there was any illicit relationship between the writer of the letter and the
married woman who receives them.

Sanjukta Pradhan v. Laxmi Narayan Pradhan (1991)

A charge was levelled against the wife, that she went away with some other person one
evening from her husband’s home and was seen moving with him on a motor cycle, after
which at 1 a.m. in the night they were again seen returning together on a motor cycle from a
lonely place. In this way she was away from her parental home and when her father-in-law
went to call her back, she bolted herself inside in a room and visited her marital home no
further. The Court, under the circumstance, found sufficient circumstantial evidence for
adultery and granted the decree for divorce.

CRUELTY [Section 13(1)(1-A)]

“has, after the solemnization of the marriage, treated the petitioner with cruelty”
Before the passing of the 1976 Amendment, cruelty was a ground only for JS.
Cruelty is any kind of mental or physical injury that causes danger to life, limb and health. It
is with reference to human conduct or behaviour in relation to or in respect of matrimonial
duties or obligations.
Cruelty is a question of fact and degree. The measure differs from time to time – each case
must be decided on its own facts, circumstances, nature, extent and effect.

Types of Cruelty:
Mental & Physical. The latter is easier to prove and the former is not visible and based on
apprehension.
Physical cruelty includes any form physical battery or confinement.
Mental cruelty includes a range of activities including denial of food, demand of dowry, false
allegations, no maintenance, non-fulfillment of martial obligations etc.
S.498A of IPC is relevant for cruelty.
S.498A(a)- any willful conduct of such nature so as to likely drive the woman to commit
suicide or cause grave injury or danger to her life, limb or health.
S.498A(b)- harassment of woman so as to coerce her/any person related to her to meet any
unlawful demand for property/valuable security or does so upon failure of fulfillment of said
demand.
Dastane v. Dastane (1970)
Dr. ML Dastane was married to Mrs. S Dastane in 1956 and had 3 children. There was a
dispute between them. Subsequently, the Husband approached the Court asking for 3
different remedies:
1. Judicial separation on the ground of cruelty.
2. Annulment under S.12 as his consent was not obtained properly
3. Divorce under S.13 on the ground of unsound mind. She was suffering from an
incurable form of Schizophrenia for not less than 3 years. (“recurrent attacks of
insanity”)
The father of the bride had written a letter to the father of the groom before marriage that a
sunstroke had caused her mental illness. He also wrote another letter afterwards saying that
malaria had caused a disorder but that had been cured in a Pune hospital. He stated that the
same could be verified. Considering it a bona fide disclosure, the father of the groom did not
verify.
During a doctor visit, she refused to be diagnosed. The husband got suspicious of such refusal
and suspected schizophrenia. Husband alleged that what was written in the letter by the father
of the bride was incorrect, ergo invalid consent.
JS was demanded under S.10(1)(b) of HMA based on the fact that:
 She insulted him in presence of guests and neighbors
 Beat children mercilessly
 Habitual disregard of household duties
 Disrespectful behavior towards in-laws in presence of others

Trial court gave judicial separation on the ground of cruelty and also gave maintenance. It
considered the evidence insufficient to annul the marriage.
District court set aside decree of JS as that apparently was not cruelty.
High Court confirmed the district Judge’s decision.
The Supreme Court limited its decision to Judicial separation
1. High Court was wrong to say that the burden of proof is beyond reasonable doubt.
Preponderance of probabilities is enough to establish case in civil cases. Though cruelty
is difficult to prove, it must be done through procedure of Indian Evidence Act. The
provisions along with evidence must be used for corroboration.
2. The enquiry has to be into whether the conduct charged as cruelty is of such a character
as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful
or injurious for him to live with the respondent. It is, however, wrong to import the
concept of a reasonable man as known to the law of negligence for judging matrimonial
relations. The question is not whether the conduct would be cruel to a reasonable person
or a person of average or normal sensibilities but whether it would have that effect on the
aggrieved spouse.
3. Acts like the tearing of the Mangal Sutra, locking out the husband when he is due to
arrive from the office, rubbing of chilly powder on the tongue of an infant child, beating a
child mercilessly while in high fever and switching on the light at night and sitting by the
bedside of the husband merely to nag him are acts which tend to destroy the legitimate
ends and objects of matrimony.
4. Petitioner should not have condoned the act of cruelty by words or action. S.23(1)(b)
casts an obligation on the court to consider condonation. This is similar to condonation in
case of adultery. Although, only one case of adultery is enough but the same might not be
true for cruelty. The extent and gravity of act is relevant to determine the same.
5. If alleged cruelty is merely a reaction no cruelty as long as reaction is reciprocal.
6. In all these cases, Court has the role to weigh in.

Held: The conduct of the wife amounted to cruelty, however the husband’s acts condoned in
and the subsequent conduct is not enough to revive original claim. The husband portrayed an
incorrect image of her mental illness. There were merely occasional arguments in the
marriage. Behavior of the wife was a reaction to the actions of the husband and could not be
seen independently.
Evidence showing that the spouse led a normal sexual life even after serious acts of cruelty
by one spouse is proof that the other spouse condoned that cruelty. Intercourse in
circumstances as obtained here would raise a strong inference of condonation.

Suman Singh v. Sanjay Singh (2017)

Facts: The husband and wife were married on 26 February 2000. The husband filed a petition
for divorce in 2010 on the grounds of cruelty and pleaded 9 instances of general nature, that
occurred at many instances during the matrimonial life of 9 years which were as follows: Not
giving due respect to husband, not letting husband's parents live with them, treating children
badly etc.
The decree of divorce was granted by the trial court and subsequently confirmed by the HC.
However, the SC set aside the decree
Held: SC said that it was not a fit case of cruelty since there was no continuity of cruel
treatment among the 9 instances.
Independent acts do not become cruelty. They have to be of repeated nature. Although
continuity is not a requirement per se, independent acts cannot be considered to amount to
cruelty. The court said that the case was not fit as per the guidelines framed by the supreme
court in Samar Ghosh v. Jaya Ghosh.

Samar Ghosh v. Jaya Ghosh (2007)

Facts: Two IAS officers married in 1984. The wife was previously married to an IAS officer
and had a child. The first marriage was duly dissolved. The second marriage was under the
Special Marriage Act, 1954.
Divorce was sought under S.27 of SMA by the husband. The instances were as follows:
 Refusal to cohabit
 Unilateral decision to not have children after marriage
 Act of humiliating the husband and turning him out of his house
 Cooking for herself and forcing husband to cook for himself or eat outside
 Wife did not take care of husband during his prolonged illness
 Wife humiliated and drove out the loyal servant cum cook of the husband

Considering these instances, the trial court granted decree of divorce on ground of cruelty.
HC reversed the judgement and held that the husband was not able to prove the allegation of
mental cruelty
SC held: The High Court was unnecessarily obsessed by the fact that the respondent was also
an IAS officer. Even if the appellant had married an IAS officer that does not mean the
normal human emotions and feelings would be entirely different.
Uniform standard can ever be laid down but an attempt can be made:
 Acute mental pain agony and suffering as would not make possible for the parties to live
with each other
 On comprehensive appraisal if it is abundantly clear that the situation is such that the
wrong party cannot reasonably be asked to live with the other
 Mere coldness or lack of affection cannot amount to cruelty
 Mental cruelty is a state of mind such as feeling of anguish disappointment Frustration in
one spouse caused by the conduct of the other for a long time
 Sustained course of abusive and humiliating treatment
 Sustained unjustifiable conduct and behavior of one spouse affecting the physical and
mental health of such other
 Sustained reprehensible conduct, studied neglect, indifference or total departure from the
normal standard of conjugal kindness
 Unilateral decision of either husband or wife after marriage not ot have child from the
marriage may amount to cruelty.
 Mere trivial irritations, quarrels between spouses, which happen in day-to-day married
life, may also not amount to cruelty.
 The married life should be reviewed as a whole and a few isolated instances over a period
of years will not amount to cruelty. The ill-conduct must be persistent for a fairly lengthy
period, where the relationship has deteriorated to an extent that because of the acts and
behaviour of a spouse, the wronged party finds it extremely difficult to live with the other
party any longer, may amount to mental cruelty.

Rajiv Dinesh Gadkari v. Nilangi Rajiv Gadkari (2010)

Husband residing in the US forced his wife to adopt an American lifestyle. He later sent her
back to India. The wife sought a decree of divorce. The court held that such neglect amounted
to cruelty.

Rattan Singh v. Manjit Kaur (2010)

The wife was not allowing a husband to stay in the matrimonial home. The question was
whether this constitutes cruelty. Court held that such a single act considering the degree of
the Act was sufficient to be considered as cruelty.

Sadhana Srivastava v. Arvind Kumar Srivastava (2005)

False allegations by wife on husband of having illicit relationship and extra marital affairs
was held to be amounting to cruelty

DESERTION [Section 13(1)(i-b)]

“has deserted the petitioner for a continuous period of not less than two years immediately
preceding the presentation of the petition”
 Desertion was a ground only for JS under the HMA. Desertion of the petitioner by the
other party to the marriage without reasonable cause and without the consent or against
the wish of such party.
 It includes the willful neglect of the petitioner by the other party to the marriage and the
continual absence from cohabitation, contrary to the will or without the consent of the
party.
 RSR and desertion are principally based on the same thing. In RCR, the intention is to
come into relationship. In desertion, the intention is to be out of a relationship.
 Desertion is therefor different in the third component. Both have the common element
that the parties are living separately.
 Difference: In RCR, there is no limitation period. A party can claim divorce on the
ground of desertion only after two years lapse.
 A reasonable reason for withdrawal – moving out for a better job opportunity. In such a
case, an RCR decree cannot be given. Then, the Court will ask for the status quo to be
maintained.
 The court may decide to give JS or divorce in such a case of such separation has lasted for
at least two years and the parties are no longer interested in the relationship or have failed
in matrimonial obligations for those two years.
 There should not be an agreement of separation by the plaintiff.

Essentials
1. Factum of separation
2. Intention to bring cohabitation to an end [animus deserendi]

CONVERSION [Section 13(1)(ii)]

“has ceased to be a Hindu by conversion to another religion”
 Originally, this ground was not available for JS in Section 10 of the HMA. By an
amendment in this section in 1964, it was made a ground.
 Subsequently, the grounds for JS were omitted in Section 10 in 1976.
 Under Section 13(1)(ii) of the HMA, if the spouse has ceased to be a Hindu by
conversion to another religion, the divorce may be obtained.
 Conversion does not itself result in divorce. It depends on the wish of the parties.
 If one spouse ceases to be a Hindu, marriage and divorce continues to be governed by
Hindu law.
 Exception: If both parties have bona fide converted into another religion and agreed to be
governed by the new law.

UNSOUND MIND [Section 13(1)(iii)]

“has been incurably of unsound mind, or has suffering continuously or intermittently from
mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be
expected to live with the respondent”
 Before passing of the Marriage Laws (Amendment) Act of 1976, the position of insanity
as a ground for divorce or JS was:
(i) Insanity – whether curable/incurable – lasting for not less than two years ending
with the filing of the petition was a ground for JS [Section 10(1)(e) – repealed in
1976]
(ii) Incurable unsoundness – whereby it cannot be expected to reasonably live with
the party
 Difference between Sections 13 and 5 – Under Section 13, unsoundness must arise after
marriage.

LEPROSY [Section 13(1)(iv)]

 This was repealed by the Personal Laws (Amendment) Act, 2019.
 The 1976 amendment made leprosy a ground for both JS and divorce.
 It omitted the period of three ears. Under this clause, the petitioner is required to show
that the respondent has been suffering from virulent or incurable leprosy.

Swarajya Lakshmi v. G.G. Padma Rao (1974)

Sympathy and medical assistance must be given to a person suffering from leprosy. Yet this
does not provide a justification for compelling a person to live with the patient and run the
risk of contracting such a disease.
VENEREAL DISEASE [Section 13(1)(v)]
 The Marriage Laws (Amendment) Act, 1976 has simplified this ground.
 Prior to the amendment, the disease was required to be of three years duration. The
amendment did away with such a time period.
 Venereal diseases are highly incurable diseases.

RENUNCIATION OF THE WORLD [Section 13(1)(vi)]

“has renounced the world by entering any religious order”
 A Hindu can, according to his religion, renounce the world and take up sanyas or
vanaprastha ashram.
 Dr. Tahir Mahmood, Hindu Law (1986) –
Law treats sanyas as civil death.
 Renunciation means that such a person has given up his matrimonial life and property.
 Civil death – not died physically, but has died for all purposes and obligations with
respect to worldly affairs and matrimonial relationship.
 Renunciation starts with relinquishment in Hindu aw. The person must relinquish all
kinds of interest in all kinds of property (both present and future). This includes not just
ancestral property, but also self-acquired properties.
 The relinquishment can be towards anyone, or to any religious or non-religious entities
[the law does not put any restriction].
 Secondly, the person must relinquish all types of interest in worldly relationships.
 Thirdly, when the person is renouncing the world, he or she must declare that they will
attain civil death/sanyas [following particular faith, for instance].

Requirements –
1. The postulant has to perform his own death ceremony (though this is not considered as
essential by some).
2. Eight Shradhs must be performed, the last of which is his own Shradh.
3. He must distribute his wealth among his sons and Brahmins, reserving enough for the
Homam.
4. Sacrifice before fire
5. Purification ceremony – proper mantras and rituals as per Hinduism and Shastras must be
perfumed.
6. The leave of his sons and relatives must be taken formally.
7. Uttering of mantras to the effect that he has given up his desire for sons, wealth, world
and everything.
8. Absoluteness

Baldeo Prasad v. Arya Priti Nidhi Sabha (1980)

A very rich person declared that he was going to renounce the world. In the same month of
such declaration, he transferred all his properties by way of a deed to a Trust, which was
being managed by the Arya Samaj. It was challenged that the transfer to the trust was not
valid. The person, after renunciation, cannot transfer any property as he has no interest. After
declaration, there can be no transfer of property. It is assumed in such situations that the
descendants would get the property post declaration.
The Court said –
 The respondent must have renounced all worldly affairs.
 The respondent entered into a religious order, recognized by Hindu religion.
 Some ceremonial performance or observance of certain formalities [mere declaration is
insufficient].
 Renouncement of the world by entering any religious order must be absolute.
 It amounts to civil death and excludes a person from inheritance and matrimonial rights.
 Therefore, property interest cannot be transferred post the renunciation.

Kondol Row v. Swamulavaru (1917)

The Court explained as to what taking up Sanyas would constitute.

Ramdhan Puri v. Dalmore Puri (1910)

The Court explained that the Biraja home indicates the final and irrevocable renunciation of
worldly life by the chela.

PRESUMPTION OF DEATH [Section 13(1)(vii)]

“has not been heard of as being alive for a period of seven years or more by those persons
who would naturally have heard of it, had that party been alive”
 Spouse may file a petition for divorce on the ground that the other spouse as not been
heard of being alive for a period of seven years or more.
 Under Section 108 of the India Evidence Act, a person is presumed to be dead if he/she is
not heard of as alive for seven years or more.
 If the spouse is missing for seven years or more, then the Court must be approached with
all the evidence. Once the Court determines that such spouse has been missing, and a
certificate of presumption of death is received, only then can a petition for divorce be
filed in the family court.
 At the very first instance, a petition for divorce cannot be filed.
 No right of the missing party exists if they reappear if the spouse followed the process of
law and obtained divorce [and maybe subsequently married].

RESTITUTION OF CONJUGAL RIGHTS [Section 13(1-A)]

 In 1964, Section 13(1-A) was added.
 Non-resumption of cohabitation for two years or more after the decree of JS or RCR was
made a ground for divorce. RCR is not a ground for JS.
 By way of the Marriage Laws (Amendment) Act, 1976, the period of two years was
reduced to one year.

ADDITIONAL GROUNDS FOR DIVORCE FOR WIFE [Section 13(2)]

1. That the husband is guilty of rape (Section 375) or Sodomy (Section 377). If there is a
finality in such a decision and no appeal is lying, then this is a valid ground for divorce.
2. In the case of any marriage solemnized before the commencement of this Act, that the
husband had married again before such commencement or that any other wife of the
husband married before such commencement was alive at the time of the solemnization
of the marriage of the petitioner.
3. Where a wife obtains a decree or order for maintenance, either under Section 18 of the
HAMA 1956 or under Section 125 of the Code of Criminal Procedure – if cohabitation
between the parties has not been resumed for one year or upwards after the decree.
 Section 13(2)(iv) lays down that a wife who was married before she had attained the age
of 15 and who had repudiated such marriage after attaining that age but before 18, may
file a petition for divorce.
 The consummation of marriage is immaterial.
 The Act or the provision does not prescribe any procedure for the repudiation of
marriage. The fact of repudiation has to be proven by the wife.
 Repudiation refers to the wife informing her husband that she is no longer interested in
that marriage.
 No such relief is provided for the husband.
 Note that there must be withdrawal from conjugal relations after declaring such
repudiation.
 In cases where the wife seeks repudiation, the remedy of RCR is no longer available to
her.

DIVORCE BY MUTUAL CONSENT [Section 13-B]

 Section 13-B was added by the Marriage Laws (Amendment) Act, 1976.
 A petition for dissolution of marriage by a decree of divorce may be presented by both the
parties on the ground:
1. That parties have been living separately for a period of one year or more,
2. That they have not been able to live together, and
3. That they mutually agreed that the marriage should be dissolved.
On the motion of both the parties made not earlier then six months after the date of the
presentation of the petition, not later than 18 months after the said date, if the petition is not
withdrawn, then the Court may pass decree.

K. Thiruvengadam v. Nil (2008)

The six months requirement is upon the discretion of the Court.

Note that parties would prefer Section 13-B over Section 13(3), since under Section
13(1), the Court may force parties for getting JS and not divorce.