DIVORCE BY MUTUAL CONSENT

The Marriage Laws (Amendment) Act, 1976 has inserted a new section 13B in
the Hindu Marriage Act, 1955, under which divorce by mutual consent is
recognized. The provision is almost a verbatim copy of the provision in S 28.
Special Marriage Act, 1954. Now, a petition for divorce mutual consent may be
presented jointly by both the parties to marriage with the averments:

(i). that they have been living separately for a period of one year,

(ii). that they have not been able to live together, and

(iii). that they have mutually agreed to live separately.

After the presentation of the petition with the aforesaid averments the parties
are required to wait for six months .After lapse of six months period , on joint
motion/ application by both the parties that the divorce as prayed for be
granted , the court shall on being satisfied after hearing parties and after
making such inquiry as it thinks fit ,that a marriage has been solemnized and
that the averments in the petition are true, within 18 months from the date of
making of such a divorce application , pass a decree of divorce declaring the
marriage to be dissolved with effect from the date of the decree.

The parties are also free to withdraw the petition at any time. If no motion is
moved within eighteen months, the petition shall stand dismissed. The parties,
if they still desire divorce„ will have to move a fresh petition.

No other ground or basis of divorce need be made out in such a petition. When
a petition for divorce by mutual consent of the parties is moved the court has
to be satisfied that consent of either party has not been obtained by force,
fraud or undue influence. The other bars laid down in s. 23 also apply to divorce
by mutual consent .i.e. petitioner/s must not be taking advantage of one’s own
wrong or disability , No connivance , no condonation of cruelty, no
unnecessary delay in filing divorce petition.

RESTITUTION OF CONJUGAL RIGHTS

Marriage imposes an obligation on both spouses to cohabit with each other.

The necessary implication of marriage is that parties will live together. But
suppose, one party refuses to live with the other can the latter, by a legal
process, compel the former to live with him ?

The Jewish law provided the remedy of restitution of conjugal right . From
Jewish law the remedy was adopted in English common law and from English
law it came to Indian Marriage Act law. A decree of restitution of conjugal
rights implies that the guilty party is ordered to live with the aggrieved party.
The concept of restitution of conjugal rights owes its origin to the ancient days
when the concept of marriage was based on proprietary rights of the husband.
The wife was considered as a property of her husband and was, therefore,
required to live at all times in the home provided by the husband and if she
refused to do so or ran away, she could be compelled to live with him, almost
the same way as a cow which ran away from master's shed could be brought
back and tied at its post. Originally, the decree of Restitution could be
enforced by the arrest of the respondent and delivery of her person to the
husband. In the later law the remedy of restitution was made available to the

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wife also, but the execution of decree by arrest was done away with. Still the
decree could be executed by the attachment of the respondent's property.
Subsequently, the English law abandoned this mode of execution of decree,
with the result that a decree of restitution could not be executed by any mode.
The non-compliance with the decree amounted to constructive desertion and
the aggrieved party, on the expiry of the statutory period, could obtain divorce.
The other advantage of this remedy was that if the wife had obtained the
decree- and the husband refused to comply with it, she could claim
maintenance. In English law the remedy of restitution of conjugal rights has
been abolished by s. 20 of the Matrimonial Proceedings and Property Act, 1970.

In India the remedy of restitution of conjugal rights is available to members of

all communities, either under the personal law or under the general law. In
India a decree of Restitution can be executed by attachment of the property
of the respondent though not by his or her arrest.

The remedy of Restitution has been criticised by some expert and jurists as
most inhuman and obnoxious. This anachronistic remedy has been called
worst than tyranny and worst than slavery. It is obvious that a marriage cannot
be specifically enforced; a party can perform the obligation only if body is
willing. All over the world the jurists and sociologists are of the view that
remedy of Restitution should be abolished. But unfortunately we retain it

Pre-marriage agreements" to live separately or post-marriage agreements"' to

live separately in future are void, being against public policy. Such agreements
are no defence to a petition for restitution for conjugal rights. A pre-marriage
agreement under which the husband agreed to live in the house of wife's father
is not a valid defence against the husband's petition for restitution. However,
when parties are living separate under a valid separation agreement, it cannot
be said that either has withdrawn from the society of the other. In A. E
Thirumal V Rajaram, Alagiriswami, J held that the view that a bona fide
agreement to live separately could be a valid defence to a petitioner for
Restitution.

It is obvious that if one spouse has obtained a decree for Restitution, the other
party cannot file a petition for Restitution.

Withdrawal from the society of the petitioner by respondent mean cessation

of cohabitation by a voluntary act of the respondent. The word "society" in s.
9 has the same meaning as "cohabitation". Cohabitation means living together
as husband and wife, that is to say, the spouses are fulfilling their matrimonial
duties.The words "withdrawal from the society of the other" mean withdrawing
by one spouse not from the company of the other but from the conjugal
relationship. In short, it is withdrawal from the totality of conjugal relationship,
such as refusal to stay together, refusal to have marital intercourse and
refusal to give company and comfort. For a couple which is sharing the same
household, rejection by one of the physical relationship coupled with
difficulties of normal affection does not amount to withdrawal from the
society. In withdrawal from the society, there is an element of desertion. If it
is established that the respondent has deserted the petitioner, it will,
obviously, amount to withdrawal from the society. However, to establish
"withdrawal from the society" it is not essential to establish legal desertion
on the part of the respondent. It can be less than legal desertion. It is a total
repudiation of cohabitation. Mere refusal to have sexual intercourse, while

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parties are living together does not amount to withdrawal from the society. It
is a different matter that it may amount to cruelty.

It is not essential for a petition for restitution that parties have been earlier
cohabiting, but later on the respondent has is to do so. Evenif the parties have
not cohabited at all, the petition is maintainable. The basis of the petition is
that there has been a lawful wedlock between the parties but the respondent
has not been cohabiting or has refused to cohabit with the petitioner. Thus,
even the parties are living under the same roof, but one of them withdraws
totally from cohabitation, the cause of action arises to the other party, and
consummation of marriage is not essential.

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 Court, for restitution of conjugal rights and the court, on being
satisfied of truth of the statement 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.

Burden to prove reasonable excuse or reasonable cause for the withdrawal

from the society , lies on the opponent .

For restitution the following three conditions must be satisfied.

(i). the respondent has withdrawn from the society of the petitioner without
any reasonable excuse,

(ii). the court is satisfied about the truth of the statement made in such a
petition, and

(iii). there is no legal ground why the relief should not be granted. The second
condition relates to proof, i.e., the petitioner must prove his case beyond
reasonable doubt.

Withdrawal from the society:

Marriage implies consortium, i.e.the husband and wife are entitled to each
other's company and comfort. The restitution of conjugal rights means that if
one of the parties of the marriage withdraws from the society of the other, the
latter is entitled to compel the former to live with him. What amounts to
withdrawal from the society ?

The question has come before our courts in several cases in an interesting
manner: does the wife's refusal to give up her job at the instance of the
husband amount to withdrawal from the society of the husband ? The question
come for consideration before the Punjab High Court in several cases" and it
answered it in the affirmative. In Tirath Kaur v. Kirpal Singh at the instance of
the husband the wife took up training and succeeded in obtaining a diploma in
tailoring. Thereafter she got a 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 sometimes the wife went to the
husband's place and lived with him. In this manner parties continued to
cohabit for some time. Then it seems that differences arose between them on
some matter, and the husband asked the wife to resign her job and join him at
his house. On wife's refusal to do so, the husband filed the petition for
Restitution. Relying on s 555 in Mulla's Hindu Law (which is, it should be noted,

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in the Chapter dealing with Maintenance and relates to husband's obligation
to maintain his wife) 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"
(emphasis author's), Grover. J. said that under no law the wife could be
allowed to withdraw "virtually" from the society of the husband in this manner.
This decision was followed by the Madhya Pradesh High Court on more or less
similar facts. Bhargava, J. added: “Accordingly to ordinary custom of the Hindu
society, the wife is expected to perform the marital obligation at her husband's
residence, and that she could not impose her unilateral decision on the
husband by merely stating no objection to allow the husband to live with her
at the place where she has accepted the service. Both the judges conveniently
forgot that passage in Mulla's Hindu Law merely laid down that a wife who did
not live under the roof and protection of the husband was not entitled to
maintenance. l" It did not define cohabitation. The stare decisis has its way
and the Punjab and Haryana High Court reaffirmed this position.'" These
decisions lay down that a wife cannot take or choose a profession or avocation
against the wishes of her husband and if she has taken one (and it seems to
be immaterial according n to those judges whether the job was taken with or
without the consent of the husband) she must give it up as soon as her husband
asks her to do so, and should go to live with him wherever he may choose to
take her (the modern version of paturmuvrate), otherwise it would amount to
withdrawal from his society.

Fortunately, there is a trend in the other direction also. Katju, J. of the

Allahabad High Court held the mere refusal of the wife to resign her job at the
instance of the husband is not a sufficient ground for granting a decree of
Restitution in favour of the husband, as wife's taking up of a job even contrary
to the wishes of the husband would not amount to withdrawing from the
society.'' Similarly, the Gujarat. Madras and Rajasthan High Courts observed
that the proposition that the wife must always stay under the roof of the
husband might have been right in the past, but it is no longer true in the modern
times and in all circumstances: just because the wife is working at a different
place it cannot amount to withdrawal from the husband's society." In the age
of equality of opportunity in employment to both sexes, wife's taking up a job
or not giving it up at the instance of the husband cannot amount to withdrawal
from his society.

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