A

PROJECT
ON
Wife’s Special Grounds of Dissolution of Hindu Marriage

(Family Law)

Submitted as a partial fulfilment of the requirements

for
B.A. LL.B (HONS) 5 Year Integrated Course

Session: 2021-2022

Submitted On: Wednesday, 23 February 2022

Submitted By: Submitted to:

Dr. ANJU GEHLOT
AVANI LEKHARA
Roll no-17
Semester -5 Section -A

University five year law college

University of Rajasthan, Jaipur
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 Declaration

I, Avani Lekhara, hereby declare that this project titled “Wife’s Special
Grounds of Dissolution of Hindu Marriage”

is based on the original research work carried out by me under the guidance and
supervision of Dr. Anju Gehlot .

The interpretations put forth are based on my reading and understanding of the
original texts. The books, articles and websites etc. which have been relied upon by
me have been duly acknowledged at the respective places in the text.

For the present project which I am submitting to the university, no degree or

diploma has been conferred on me before, either in this or in any other university.

Date: Wednesday, 23 February 2022 (Avani Lekhara)

Roll No.17
Semester 5A

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 Certificate

Dr. Anju Gehlot Date: Wednesday, 23 February 2022

Assistant Professor
University five year law college,
University of Rajasthan, Jaipur

This is to certify that Avani Lekhara student of semester 5 Section A of

University Five Year Law College, University of Rajasthan has carried out project
tittle " Wife’s Special Grounds of Dissolution of Hindu Marriage” my
supervision. It is an investigation of a minor research project. The student has
completed research work in stipulated time and according to norms prescribed for the
purpose.

Supervisor

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 Acknowledgment

I have written this project titled, "Wife’s Special Grounds of Dissolution of

Hindu Marriage” under the supervision of Dr. Anju Gehlot Faculty, University
Five Year Law College, University of Rajasthan, Jaipur. His valuable suggestions
herein have not only helped me immensely in making this work but also in
developing an analytical approach this work.

I found no words to express my sense of gratitude for Director Dr. Aruna

Choudhary for constant encouragement at every step.

I am extremely grateful to librarian and library staff of the college for the
support and cooperation extended by them from time to time.

Avani Lekhara

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 Table of content

• Declaration

• Certificate

• Acknowledgment

• Abstract

• Introduction

• Section 9 (Restitution of Conjugal Rights)

• Section 10 (Judicial Separation)

• Section 13 (Divorce)

• Dismissal Of Petition by Courts

• Conclusion

• Bibliography

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 Introduction

Marriage

Marriage, the very foundation of a family, plays the important role of a root on which the
subsequent ties add up to build a social structure, the very basis of society. Under this institution,
individuals are tied up and are supposed to adhere to certain rules and responsibilities. These
responsibilities vary from sharing space, sharing and maintaining their finances, healthcare,
insurance, the responsibility of the children etc. Since marriage itself affects the life of a
community, it is believed that it is the duty of the State to promote and protect the institution of
marriage. Also, in the case of Chanmuniya v. Virendra Kumar Singh Kushwaha, [1] in which it was
said that “Strong presumption arises in favour of wedlock, where the partners have lived together
for a long spell as husband and wife”.

Dissolution

When two persons are legally tied by the institution of marriage and through the consent of both of
them, this tie is broken, then a dissolution is said to have occurred. After that, the process of child
custody, alimony and division of property is looked upon by the court. Couples can opt for “no-
fault” or “fault” divorce for the purpose of dissolution. While fault divorces are based on particular
misconduct by any one party, no-fault dissolution is one when parties do not seek divorce on the
basis of any kind of misconduct.

Realizing the above issues, the Parliament of India enacted the Hindu Marriage Act, in the year
1955. It gives certain rights and duties to both the parties and at the same time defined rules and
regulations relating to concepts like Guardianship, Succession and Adoption. While marriage is a
kind of personal and social alliance between the parties, it is necessary to understand that the
individuals tied by the wedlock have their own individual life which is sometimes compromised
due to this. When the efforts of one or both of the parties fail to comply with their obligations under
marriage, the act gives the parties the freedom to dissolve the wedlock, if the conditions comply
with those given or mentioned in the act. These conditions are given mutually to both of the parties
and on separate grounds to the wife. This project specifically focuses on the privileges regarding the
dissolution which are given to the wife.

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If the understanding between both of the parties fails, then it is necessary to dissolve the marriage,
since it no longer serves as a necessary institution required by the community. The relationship in
such cases becomes a living misery for both of the parties, which is not what this institution intends.
Also, the relationship requires the emotional will of both of the parties and the desire to live
together. If that factor is missing, it neither serves its purpose socially nor personally, for the
enrichment of the parties as explained in the case of K. Srinivas Rao v. D.A. Deepa, [2] in which the
court explained “irretrievable breakdown of marriage” theory. In the words of the court, “if parties
are not willing since marriage involves human sentiments and emotions and if they have dried up,
there is hardly any chance of their springing back to life on account of artificial reunion created by
court decree”. However, under the Hindu Marriage Act, it does not act as a valid ground for divorce,
until now. The main intention in these cases is to mitigate the hardships of both the parties. The
rising popularity of individualism has also escalated such consciousness.

There are certain steps through which a marriage gets finally dissolved. These are made in such a
way that if there is any slightest possibility to save the marriage, it should be saved in such cases.

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Section 9 (Restitution of Conjugal Rights)

After the successful completion of a marriage under the Hindu Law (Section 9), both the husband
and the wife gain certain special rights known as the conjugal rights. The Hindu philosophy
describes three objects of marriage: justice, procreation and pleasure. In order to attain a successful
marriage, all of the objectives must be fulfilled while the spouses are under the marital union. Thus,
the Hindu Law says that “each spouse is entitled to the society and comfort of the other and if any
spouse, without any reasonable cause, leaves any spouse, the latter can move the court for the
decree of restitution of conjugal rights”. Thus, if a husband leaves his wife citing no appropriate
reasons, a wife can file a decree of restitution of conjugal rights. [3]

As pointed out in the case of Suman Singh v. Sanjay Singh, [4] “When there is evidence
establishing that it was the respondent-husband who withdrew from appellant’s company without
any reasonable cause, the appellant is entitled to a decree for restitution of conjugal rights”. Thus, in
such cases, rather than directly moving onto divorce, the court ensures that if the valid marriage
between two parties can be saved, it should be before such kind of necessity arises that both of the
parties cannot live together anymore.

Section 10 (Judicial Separation)

In the case of a troubled marriage under Section 10, the court allows a kind of last resort which is
available to the parties in order to save their marriage. After this, there is no obligation of the parties
to live together or cohabit. There are seven grounds which are available to the parties over which
they can claim the plea for judicial separation. In the case of Jeet Singh v. the State of U.P., [5] the
court explained judicial separation as “There would be no obligation for either party to cohabit with
the other. Mutual rights and obligations arising out of a marriage are suspended. The decree,
however, does not sever or dissolve the marriage. It affords an opportunity for reconciliation and
adjustment. Though judicial separation after a certain period may become a ground for divorce, it is
not necessary and the parties are not bound to have recourse to that remedy and the parties can live
keeping their status as wife and husband till their lifetime”.

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 Section 13 (Divorce)

Even after all these phases, if it becomes impossible for the parties to be bound by the institution of
marriage, the court allows the parties to free themselves. For that, the parties have to fulfil certain
conditions given under Section 13. These vary from voluntary sexual intercourse, cruelty, desertion
to mental or psychopathic disorder and venereal disease. The party claiming divorce has to prove
one or more of these grounds in order to claim for divorce.

Husband having more than one wife living

Under clause (i) of sub-clause (2) of section 13 of the Hindu Marriage Act, The wife was entitled to
file a petition dissolving his marriage on the ground that at the time of the ceremony of a marriage
between the appellency and the appellant the first wife of the appellant who was married to the
appellant before the commencement of the Act was alive.

In Leela v. Anant Singh[22] court held that The wife of polygamous marriage can not be deprived
of her right of divorce on the ground that, prior to the commencement of the act, she entered into a
compromise with her husband to continue living with her; nor can the husband plea that her conduct
or disability is a bar to her claim of divorce.

Rape, Sodomy or Bestiality

Under clause (ii) of sub-clause (2) of section 13 of the Hindu Marriage Act, the wife is entitled to
divorce on the ground of rape, sodomy, or bestiality against her husband.

A man is guilty of rape if he induces an unwilling woman to participate in sexual intercourse, i.e.
unwilling or unfiltered, or when his consent is gained by placing her in the fear of death or her
consent, or by falsely believing that she is his wives when they are not, or if they are less than
twelve years old. However, one can not be accused of raping his own wife unless she is less than 15
years old.

Sodomy or bestiality happens when one has a carnal relationship with another man, woman, or
animal outside the order of nature. The matrimonial crime of sodomy under the scope of the clause
would be if the man were to perform sodomy on his wife without their consent.

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Non-resumption of cohabitation after a decree of maintenance

Under clause (ii) of sub-clause (2) of section 13 of the Hindu Marriage Act provided the woman
with an alternative basis for a divorce. The purpose of incorporating the aforementioned provision
was to grant the wife the right to pursue a divorce if her husband had ignored her or not sustained
her after a maintenance order was passed in her favour.

Repudiation of Marriage

Wife/applicant lodged an application for divorce from the respondent-husband on the basis that she
was under 15 years of age when she was married, but that she had rejected her marriage before she
was 18 years of age, and that she was thus given a divorce order under Section 13(2)(iv) of the
Hindu Marriage Act, 1955.

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 Dismissal Of Petition by Courts

In these cases, even if the petition is filed by parties wanting to get divorced, the court may dismiss
their petition. These grounds are:

1. In a case, where the parties fail to provide evidence to the court, which is necessary for the
claim and hence, they cannot satisfy their claim. The claim made by the petitioner fails to be
proved.

2. If it cannot be proved before the court that the adultery has been committed to real and the
party disregards the fact that adultery has taken place. If the court finds out that the claimant
has himself overlooked the kind of marriage that has been complained of.

3. If it is found out that the petition has been claimed in collaboration with either of the
respondents. In such a case, the court will disregard the request of dissolution of marriage by
the party/parties.

Decision of the Court to dissolve the marriage

If the court is satisfied by the claim of the parties for the purpose of dissolution of marriage, then it
will pass an order to dissolve the marriage. The marriage is said to be dissolved on the day when a
given court declares a decree on the same issue. In case, the issue is settled between the parties, all
the terms of the settlement, are provided by the judgment. The document of judgment provides the
detail of every issue dealt with. A marriage is said to be finally dissolved on the same day when the
judge signs the decree of the divorce of the parties. The certificate for the same is provided by the
State, which acts as proof that the marriage has been officially ended. However, in certain cases, the
courts have the power to deny the request. These cases are:

1. If it comes to the knowledge of the court that the claimant has himself committed adultery,
then it has the right to disallow the parties.

2. If it is observed by the court that there has been an unnecessary delay on the part of the
claimant in proving his case or bringing charges for the prosecution of the case against the
other party.

3. If the party fails to give any reasonable excuse for separating or deserting his/her spouse
before the commission of adultery by the other party.

4. In case, the party commits any discomfort or wilful neglect towards the other party.
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 Conclusion

While it is necessary to protect the important institutions such as that of marriage since the health of
our community depends on it. Sometimes, it may happen that this very institution becomes the
cause of individual exploitation. This becomes the cause of tarnishing of individual happiness and
individual rights get violated while maintaining such a tie.

The State believes that it is its duty to protect such kind of rupture to an important relationship. The
proof of it can be clearly sought in the case of Reema Aggarwal v. Anupam [8] in which the court
clearly maintained that “Where a man and woman have been proved to have lived together as
husband and wife, the law will presume until the contrary is clearly proved, that they were living
together in consequence of a valid marriage and not in a state of concubinage.” In addition to this,
there must be a mutual sound understanding between both the parties with each other as well as the
responsibilities that they are required to carry out. Living under such kind of obligation is not an
easy task since a whole lot of responsibilities rest on an individual’s shoulder. Under such
circumstances, every day tensions are bound to occur. But, the law believes that sudden
shortcomings or misunderstandings should not be the reason for a sudden breakage of the sacred tie
Another ground is ‘judicial separation’ under which the parties are henceforth under no obligation
to live together. This can be achieved by fulfilling certain grounds after which the court allows both
of the parties to live separately. When the marriage of two parties become such that it cannot be
repaired and none of its many purposes is served, it becomes dead and fails to be revived. Under
such cases, it becomes necessary to dissolve the marriage or else the individual identities of both
parties would be at stake. Thus, the court grants certain conditions, which if fulfilled, could act as
valid grounds for the grant of divorce. Women, in these cases, have been given special rights/
conditions, under which, they can satisfy the dissolution of the marriage.

These include the marriage of the husband with another, rape or sodomy or if the marriage has been
solemnised before the attainment of the age of fifteen years.

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 BIBLIOGRAPHY

• Agarwala, R. (1970). RESTITUTION OF CONJUGAL RIGHTS UNDER HINDU LAW: A

PLEA FOR THE ABOLITION OF THE REMEDY.

• Agrawala, R. (1972). CHANGING BASIS OF DIVORCE AND THE HINDU

LAW. Journal of the Indian Law Institute, 14(3), 431-442.

• Diwan, P. (1957). The Hindu Marriage Act, 1955. The International and Comparative Law
Quarterly, 6(2), 263-272.

• V.S., J. (2006). IRRETRIEVABLE BREAKDOWN OF MARRIAGE AS AN

ADDITIONAL GROUND FOR DIVORCE. Journal of the Indian Law Institute, 48(3),
439-444.

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