Chapter 3

Effects of Divorce On Society.

3.1 Introduction

The establishment of a sound marriage is resistance, alteration and particular each

other between a couple. Tolerances to one another's a flaw to the specific endurable

degree must be inborn in each marriage Petty bandy; piddling contrasts ought not to

be overstated and amplified to obliterate what is said to have been made in paradise.

The disintegration of marriage is a grave issue that influences not just the gatherings

to the suit yet their kids, relatives, group of friends and the general public as a rule.

Therefore, the court managing the request for separation needs to hold up under as a

main priority that the issues previously are those of people and their change in

perception in a mate's direct have to be borne as a top priority, before discarding the

request for separation. Under our plan of laws, the courts will undoubtedly give their

sentiment on the protected legitimacy of any close to home law, be it Hindu, Muslim,

Christian or Parsi. It is the obligation of the court to make enquiry and fulfill it-self

that every one of the realities that are fundamental under various laws of separation

are available for the situation for disintegration of marriage It is moreover important

to fulfill itself that the case isn't tricky and that the gathering applying for

disintegration of marriage has not approved or schemed at the Adultery or has been

in any way assistant to it Regardless of the reality whether any resistance of this sort

has been set up by the respondent or not, the court must make inquiry concerning

these realities and give an unequivocal finding.

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Marriage isn't a customary contract It presents a status on the gatherings to it and

upon the kids that issue from it Though went into by people it has an open character

It is the premise whereupon the system of the edified society is fabricated and as

such is subject in all nations to general laws which direct and control its

commitments, what's more, episodes autonomously of the volition of the individuals

who enter upon it. An upbeat marriage life is without a doubt an extraordinary help

in actuality, the debilitated what's more, disgruntled conjugal relations have their

repercussions and effect not simply upon the related life partners, yet in addition

have more extensive ramifications for society and offer ascent to social issues

Understanding the previously mentioned imperative essentials of marriage. Dharma

Shastras appointed the marriage of a Hindu as a constant tie. The Hindu thought of

holy observance marriage basically contrasts from Christian one of every as much as

Hindus respect their marriage not just a consecrated and sacred association, yet

additionally an interminable association, an association which subsists not simply

during this life yet for all lives to come. The law as a social designer will

undoubtedly observe the evolving conditions in contemporary society and its

requirements individuals. The rapid procedure of urbanization, improvement towards

scholarly and impact of western lifestyle deeply affected the devout establishment of

marriage. Marriage is of an extremely overpowering significance in an individual's

life particularly in Indian culture where a lot of assets and sacrifices have gone into

it, in this way, far as could be expected under the circumstances endeavours are made

to support a marriage in spite of extremely high arranges When the marriage can't be

continued, the courts are depended on, with the goal that the grievances that have

emerged out of such a marriage can be settled. The sensitive and delicate

circumstance needs apt dealing with experienced individuals in charge of

102
undertakings in the court. Today the need of the hour is a particular treatment of

these individual issues so as to accommodate, resolve and help the gatherings with

therapeutic treatment. The whole perspective on the legal executive needs to

experience an extreme change and a medical procedure must be done to the old

arrangement of the suit where disappointment or achievement was overwhelmingly

significant is a fight in court. The present part is committed to discovering legal

reaction dispensed to different grounds of separation under Hindu, Muslim,

Christian, and Parsi laws Legal reaction to blame hypothesis under Hindu Laws.

3.2 Hindu Law: Following are the Grounds mentioned Under Fault/Guilt Theory

for Divorce which are available to both Husband and Wife. The discussion of case

laws are done as per the following grounds which were mentioned under Hindu

Marriage Act 1955.

3.2.1 Adultery :

Adultery is a ground of separation under Hindu Marriage Act 1955, Special Marriage

Act 1955, Divorce Act 1869 and the Parsi Marriage and Divorce Act 1936 Adultery

or willful sex is an offence which disrupts and breaks a family totally. Therefore the

Adultery has been considered as the main ground of separate under Section 13(1) of

the Hindu Marriage Act 1955 which peruses as under Any marriage solemnized,

regardless of whether previously or after the initiation of Hindu Marriage Act, may

on an appeal displayed by either the spouse or the wife, be broken down by the

pronouncement of separation on the ground that, the other party has offered the

solemnization of the marriage, had intentional sex with any individual other than

their companion.

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In the case of Bhagwan Singh v. Amar Kaur175 it was laid down by the court that

circumstantial evidence was sufficient and exclude all possibilities of innocence.

Similarly, in the case of Colman v. Colman176 court said that illegal relations before

marriage cannot become a ground of adultery. In Suraj v. Saraswathi177 court laid

down that if an unknown person to a family is found in the bedroom of a better half

at midnight and do not have reasonable explanation, then it is a clear evidence and

lead to a conclusion of illicit consummation. Similarly where a wife has been absent

willfully from her matrimonial house for more than 4 days and seen with an

unknown person, there is no need to explain that she has committed adultery. 178 In

the case of Arun Kumar Bhardwaj v. Anita Bhardwaj179 Punjab and Haryana High

Court said that mere intimacy of wife with unknown does not amounts to adultery

committed by wife. In this case husband present an eye-witness, a gardener who

claimed that he saw his wife from the window of the room in a compromising

situation with the stranger but as a employee he was not able to answer the total

number of rooms in the house. Similarly, In Prem Chand Pandey v. Savitri

Pandey180 a petition of Divorce was filed by the wife on the ground of her husband‟s

Adultery but court rejected her plea as court found that she has taking benefit of her

own fault and made false allegations on her husband. In Santoshi Devi v. Sadanand

Das Goswami181 the petition was filed by the husband and made allegations on his

175
AIR 1902 Punj 144.
176
(1953) LER 617.
177
AIR 1967 Mad 85.
178
Anandi v. Raja AIR 1973 Raj 94.
179
AIR 1993 P & H 33.
180
AIR 1999 All. 43.
181
(2004) II DMC 301 Jha

104
wife that she was pregnant before marriage and a female child was born after six

months of marriage. Court said that husband was not specify any incident of adultery

for wife after marriage and held that he was not avail the decree of divorce on

adultery. To avail this ground it is necessary that the act of sexual intercourse with

another male should happen after the marriage.

Where husband is able to give evidence that he had no ingress to the wife, when she

got pregnant, then it will be a sufficient evidence to prove adultery as there is a

presumption of paternity mention in the section 112 of Indian Evidence Act 1872, in

which if husband prove his non access then the court may give the permission of

DNA test to rebut paternity. In the case of Jyothi Ammal v. K. Anjan182 the plea of a

husband for his wife committed adultery has been proved on the report of DNA test

and awarded a decree of divorce to him. The court has always take precautions while

deciding any case on the ground of adultery and specially when it was against the

wife, as it assassinates women character, if disprove. In the judgement of Meera v.

Vijay Shankar Talchidia183 Rajasthan High Court set aside the decree and said that

mere statement of a husband that his wife was sitting with a teen age boy who was

indulge in an objectionable acts does not establish the adulterous character of the

wife. Similarly a husband cannot take divorce from his wife on the ground of

adultery only because she was a rape victim. In the decision of Rajesh Kumar Singh

v. Rekha Singh184 court rejected the petition of divorce presented by the husband on

wife‟s Adultery. The Allahabad high court said that wife did not have any illegal

relationship but she was gang raped and not in a mental state to reveal the facts to her

182
I (2007) RMC 756 Mad.
183
II (2004) DMC 15 Raj.
184
AIR 2005 All 16.

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husband. She was not revealing the whole scenario, as it was in the habbit of female

to be hesitate to tell about such a heinous crime against her. Renu Singh @ Reenu

Singh v. Pramod Kumar Singh185 Husband filed a petition of Divorce allegation his

wife that she is having illicit relations with other male and demand for DNA test to

establish that the child is illegitimate. Court said that any order for such test can be

given only when strong prima facie case is made out the requirement.

In the case of Maya Devi @ Dimple Kaur v. Pargat Singh186 husband got news

from his family relation that his wife having illicit relation with other person. The

camera installed by him in his house shows that his wife committing illicit relation

with his co-villager which she also admit in her cross examination. The court granted

the decree of Divorce to husband on the ground of Adultery. From the above cases it

was found that the clear evidence of adultery is not possible to be given or present in

the court. Therefore, court in the matter of adultery rely on the circumstantial as well

as some prima facie witness to prove an act as an adultery.

3.2.2 Cruelty: The idea of savagery has been experiencing a change alongside the

changes in the financial states of our general public The word 'Cruelty‟ has not been

characterized in the Act, in light of the fact that the idea changes every once in a

while, here and there from individual to individual in its application as indicated by

societal position of the people in question, what's more, their monetary conditions

and different issues. Initially cruelty was not a ground of Divorce, it was only given

as a ground of Judicial Separation, but after the Amendment Act of 1976 it was

added under Section 13 as a ground of Divorce also.

185
II (2018) DMC 204 (All).
186
AIR 2019 P & H 330.

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3.2.2.1 Physical Cruelty

Any act or action committed by a spouse against other which consists any bodily

injury, harm or injury to any body part or cause likely such harm, consider earlier as

a legal cruelty, but in matter of physical cruelty, it depends upon the situations of

every case which are always differ from the prior one. To check which act of

violence is consider as a physical cruelty supreme court gave various decision to

prove such instance.

In the case of Saptami v. Jagdish187 the husband steadily maltreated and disgraced

his wife and cross his limits Infront of her father on one day, when he pushed her and

causing such bodily injury which results blacken her body.

Similarly in the case of Tapan Kumar v. Biva188 the cruelty was done by the wife

with her relative upon her husband to force him to live separately with his parents.

Court consider this case as cruelty committed by wife upon her husband and grant

the decree of Divorce. In the case of Seema v. Nilesh Chauhan189 the wife move to

her parental house after her marriage and did not come back, whenever her husband

tried to take her back, her parents start illtreating him and make him go back. They

crosses all their limits when they beaten his father who has gone there for mediation

and convince to make her come back to her matrimonial house. Court consider it as a

clear case of cruelty and granted the decree of divorce to the husband. In the case of

Sundar Lal v. State190 husband and his family members made regular demands of

187
AIR 1987 P& H33
188
AIR 1988 CAL 223.
189
AIR 2006 MP 46.
190
II (2018) DMC 147 (DB) (Utta.).

107
dowry. In a view to cause her mentally and physically torture he strangled his wife

and made her in the state of suffocation which later cause her death.

3.2.2.2 Mental Cruelty

It is act done by the partner to cause emotional, psychological, mental harm to

his/her partner in such a manner that he or she cannot able to live a normal life. As

per Cambridge Dictionary Mental Cruelty 191 means “ behavior that makes other

person suffer emotionally but does not involve physical violence.” In the instance of

N. Sreepadachar v. Vasantha Bai192the husband was tortured by his wife in public

and even hold his collar for not cooking the food for her and when he offered her the

food she threw the plate on his head and threaten him that she will burn herself alive

and give a fabricated complaint to the police which made him into a trouble and also

states infront of others that her husband wants to kill her to get her insurance claim.

The court observed in this case that it is not necessary cruelty can done only through

physical acts, it can be done mentally also. Cruelty in each case must be judged with

the relations among the spouses and with their effect in future.

In the case of Nirmala Manohar Jagesha v. Manohar Shivram Jagesha 193 the

Bombay High court laid down the concept of cruelty as follows:

1. Cruelty under marital laws means such treatment with the other spouse which

cannot expect from him/ her and not possible for the other spouse to live a

normal life with him/her.

191
https://dictionary.cambridge.org/dictionary/english/mental-cruelty visited on 2/12/2019 at 10:53

am
192
AIR 1970 Mys. 232.
193
AIR 1991 Bom 259.

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 2. The concept of danger mentioned under English Law, is not acceptable in

India.

3. The making of false and meaningless allegations of sterile, disloyalty itself

amounts to cruelty in marital laws.

In Jeebodhan v Sindhoo194, it was held that there would not be any savagery even

with respect to the spouse in the event that he had named the subsequent time, which

shows that around then no psychological. Cruelty exists but now the idea of

remorseless is changing quickly and now on bringing the second spouse during the

subsistence of first marriage will comprise mental brutality. The legal specialists are

consistent in holding that harshness is indefinable furthermore, that its significance is

dynamic which relies on conditions of each case. The specialist presently examines

about the ongoing methodology of the courts which connected in allowing marital

help based on Cruelty. The Supreme Court through its various choices communicates

its sees in respect to idea of mercilessness. It will be seen from the accompanying

cases chosen by Supreme Court that they have given choices as per the changing

perspective on present society. In Bhagwat v. Bhagwat195 supreme court observed

and defined cruelty as such conduct of other partner which imposes such mental pain

and agony as it would not be possible to live with each other under the same roof. In

this case wife to defend herself make false allegations to husband and his family and

while cross examination said that he and his whole family is a lunatic, but still she

wants to be live with her husband. The act of wife consider and taken by the

Supreme court as a cruelty and her very intention was also clear that she only wants

to take revenge after moving back to her matrimonial house. In Dastane v.

194
(1988) 1 SCC 105.
195
AIR 1994 SC 710.

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Dastane196, Justice Chandrachud said that cruelty does not contain a single act but it

contains number of acts observed in many cases. Law does not require that at the

primary appearance of cruel act, the other mate must leave the wedding home in case

the proceeded dwelling together be understood as an approbation. Such a

development will obstruct compromise. Furthermore, along these lines baffle the

kind hearted motivation behind marriage laws. The Change of phrasing as for cruelty

brought by Amendment Act of 1976 in Section 13(1)(I-9) has its effect on the

reaction of judiciary to such provision. Prior to the said change , the Supreme Court

had held in Dastane v. Dastane 197 that mischief or damage to well beingness,

notoriety or the like would be a significant thought in deciding if the lead of the

respondent adds up to Cruelty.

After this, the position has been changed. Another measurement has been given to

the idea of savagery by the Supreme Court in Shobha Rani v. Madhukar Reddy198

For this situation, it was held that after the revision that any act or omission which

comprises harshness need not cause any kind of anxiety or fear in the brain of the

applicant. It is adequate that to direct which establishes Cruelty ought to be of such

sort that the candidate cannot sensibly be normal to live with the applicant.

This view has been kept up reliably by the courts in the country. Horizons of

mercilessness or harshness are growing step by step In Ramesh Chandra v. Savitri199

the Apex Court took to see that, continuation of marriage which is dead both

genuinely furthermore, for all intents and purposes without any odds of it's being

196
1975 HLR-31.
197
ibid
198
AIR 1988 SC 124
199
(1995) 2 SCC 7

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recovered, would be Cruelty particularly when the tyke born out of the wedlock to

the extent 1968 has now turned out to be adult and being in administration living

with the mother Twenty-five years had slipped by since the litigant and the

respondent delighted in the organization of one another as a couple. In such a case, a

continuation of the conjugal coalition for name purpose would draw out the distress

and tribulation. The spouse communicated regret for his past direct isn't having been

obedient and aware of his duties either towards his better half or his child and was

willing the make up for the equivalent by moving the main house in his name for his

significant other In such conditions, the court practicing the power under Article 142

of the constitution broken up the marriage subject to the spouse moving the house for

the sake of his spouse inside four months from its organization. It was clarified that

the disintegration will come into impact from the date, the house is so moved and

ownership in gave over to the spouse. The courts with regards to present-day living

have seen that, the facts demonstrate that conventional idea of Hindu spouse. As she

was consider to be Dharmapatni, Ardhangini or Bharya, which means along these

lines that she needs to pursue the spouse way and be in his organization as his very

own piece body, but this idea has experienced an adjustment in the present situation.

Issues between the modem couples in such manner are on-increment normally on the

grounds that, there are an enormous number of marriage accomplices who are taught

and have a profession of their very own in administration or calling and they need to

proceed with that vocation during the whole time of their marriage life.

In such conditions, if a spouse demands his employed spouse to leave the job for all

time and to live with him else, he records an instance of cruelty against her and looks

for separation on a similar ground - what is the arrangement ? Reacting to this

inquiry D.M. Dharmadhikan Justice of the M P High Court in Smt. Vibha Srivastav

111
v Dinesh Kumar Srivastav 200 talked that every life partner is qualified for an

equivalent voice in the ordering of the issues which are their normal concern. Neither

has a making choice, despite the fact that they should attempt so to orchestrate their

issues that they get to know one another as a family furthermore, not separated. If

such a game plan is disappointed by the outlandish wants of the candidate, his case to

separate on the ground of cruelty that his significant other isn't happy to go along

with him at the expense of relinquishing her profession for all time, ought not be

acknowledged.

It was in such conditions that scholarly judge in the moment case held the frame of

mind of the spouse very preposterous and would not give the declaration of

separation to support him. In this unique circumstance, it has been judicially

perceived that a Hindu spouse has a right to her thoughts of good and bad, If she

doesn't need the union with being broken down at her occurrence regardless of there

being great ground for the equivalent, the courts cannot break up the marriage by an

announcement of separation to support her. The spouse needs to endure the results of

his own wrong May be, the spouse additionally endures and endures more as the

blameless party, yet when she doesn't want any alleviation from the court however

she could have requested it on the realities asserted and demonstrated by her, her

suppositions must be regarded and no declaration for separation could be passed, in

spite of the fact that it might appear that the marriage has broken down. 201 In the case

of Dr. A.R. Aruna Kumar v. Nalini202 under this case wife was under a habbit to

steal valuables from where ever she get and always quoted an instance of gold chain

200
AIR 1991 MP 346
201
Satyapal Sethi v. Smt. Sushila Sethi AIR 1991 Bom, 164.
202
AIR 2003 Karn 25.

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thievery. Husband was unable to provide any other example through which he can

prove that she was intently involving in these situations to mentally torture him.

Court said that it is not an act of any grievous nature to provide a decree of divorce

on mental cruelty.

In Maya Devi v. Jagdish Prasad 203 in this case the attitude of wife towards her

husband, children were not cordial. She usually fight with her husband for money to

maintain her parents and if he deny to give, she threaten him for lodging a criminal

complaint against him on false allegations of Dowry demands and will also lodge a

case U/S 498A of IPC. She usually tortured him and sometimes tied the kids with

rope and beat them. In such situation court consider that mental and physical cruelty

was done with him and granted him a decree of divorce. It‟s really painful, where

legislature frame laws for the protection of society, used as a weapon or become a

way to fulfill the illegal demands under marriage.

Similarly, in the case of Vijaykumar Ramchandra Bhate v. Neela Vijaykumar

Bhate 204 The apex court consider that false allegations of Extramarital Affairs,

Inchasity and so on by the husband, to his wife, in the submission of Written

statement, considers as a character assassination of female by her husband which

amounts to cruelty for female.

It is easy to alleged false charges upon anyone, but no one know the consequences

face by the person to whom such charges are allege. It is totally a murder of a person

203
AIR 2007 S.C. 1426
204
AIR 2003 SC 2462.

113
character and person responsible for such can be charged under IPC for culpable

Homicide.205

Similarly, in case of Samar Ghosh v. Jaya Ghosh206 Supreme court laid down that

denial by wife to mingle with her husband amounts to mental cruelty towards

husband. It is the duty of wife, when she willfully accepted the marriage to perform

all the obligations which were necessary to maintain a healthy matrimonial relations.

Normal quarrels are the part of life, it is to be presumed that the life of husband and

wife cannot be complete if they do not fight with each other. It‟s also been heard in

our families or from society that love is persist where, there are some fight on trifles.

In the case of Asha Gupta @ Anju gupta v. Rajiv Kumar Gupta.207 The Punjab and

Haryana High court said that quarrels on trifles does not construct any cruelty. A

divorce cannot be granted on the part of normal wear tear quarrels. In the case of
208
Suman Kapur v. Sudhir Kapur The Supreme Court Observed “cruelty is a

conduct of one spouse which adversely affects the other spouse. The cruelty may be

mental or Physical, intentional or unintentional. If cruelty is physical, it is a question

of degree which is relevant. If it is mental, the enquiry must begin as to the nature of

the cruel treatment and then as to the impact of such treatment on the mind of the

other spouse. Therefore may, however, be cases where the conduct complained of

itself is bad enough and per se unlawful or illegal. Then the impact or the injurious

effect on the other spouse need not be enquired into or considered. In such cases,

cruelty will be established if the conduct itself is proceed or admitted. The absence of

205
Section 299 of Indian Penal code.
206
(2007) 4 SCC 511
207
AIR 2005 P& H 134.
208
AIR 2009 SC 589

114
intention (mensrea) should not make any difference in the case, if in ordinary sense

in human affairs, the act complained of could otherwise regarded as cruelty.” In this

case supreme court consider that (mensrea) is not an essential element for

committing a cruelty. It has been committed merely by the actions done by the

partners against each other in their wedlock, whether that act was done deliberately

or not, if the spouse is the sufferer , it amounts to cruelty.

In the case of Harish Chandra Singh Chilwal v. Pushpa209 the husband was insulted

by his wife infront of others and humiliate him that he was earning less than her,

which construed cruelty towards husband. In Indu Mishra v. Kavid Kumar Gaur210It

was held that false allegations of illegal relations of husband with his brother‟s wife

construed cruelty towards husband.

Similarly In Neena Malhotra v. Ashok Malhotra 211 it was held by the court that

bogus accusation of illegitimate relations between her husband and her mother-in-

law amounts to cruelty of the topmost degree, as it point out and blame the most

pious relation of mother and her son.

Recent cases of mental cruelty: In the case of Disha Kushwaha v. Rituraj Singh212

Court said that while communicating with each other in the presence of children and

putting accusation of adultery against each other amounts to mental cruelty towards

each other.

209
II (2008) DMC 454 Utt.
210
I (2007) DMC 427 Raj.
211
II (2008) DMC 94 P & H.
212
AIR 2019 MP 217.

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Similarly in the case of Kamini Sondhi v. Kapil Sondhi213 Delhi High Court said that

false accusation of impotency against her husband whereas he already a daughter

from his first marriage and for such reason he went to depression and quit from his

service. These instances are sufficient to cause mental cruelty against husband.

In the case of D. Subramanyam Raju v. D. Lakshmi Devi214 Husband plea to the

court that his wife committing mental cruelty against him and his family members by

refusing consummation of marriage and falsely allegating his family members in

criminal cases which amounts to mental cruelty.

Similarly in the case Raghuveer Kaintura v. Smt. Meera Kaintura 215 of court

considered that voluntarily refusal by wife from cohabitation of marriage make life

of other party intolerable. As voluntarily dispossess other from the sootheness of a

marital life amounts to mental cruelty against husband.

3.2.3 Desertion:

Desertion was embedded as a particular ground of separation in the first Hindu

Marriage Act 1955 by the revision of 1976, before which it was one of the grounds

for legal partition under Section 10. According to the new arrangement as contained

in Section 13(1) (I-b), the marriage might be broken down if the other party has

abandoned the solicitor for a persistent our period of not less than two years

promptly. Here it is important to Clarify the meaning and importance of

'abandonment', in Lachman v Meena 216 the Supreme Court expressed that in its

213
https://www.shoneekapoor.com/kamini-sondhi-vs-kapil-sondhi/ visited on 28/11/2019 at 07:45pm
214
AIR 2019 AP 61.
215
AIR 2019 Uttar. 145.
216
AIR 1964 SC 40.

116
aspect. Desertion implies the purposeful lasting forsaking and relinquishment of the

life partner by the other without that other's assent and without sensible reason. It is a

complete denial of the commitment of marriage.

217
Bipin Chandra v Prabhavati is the first case wherein the basic fixings of the

wedding offense of renunciation were compactly examined by the Supreme Court. In

Mohinder Singh v Harbans Kaur 218 , See likewise Ranganayaki v Arunagm, 219

Indra Gangule v Shalendra Kumar Gangule 220 and Suresh Bala, v Rajbir Singh,
221
this association, the Court saw that the two basic conditions must be there

previously a life partner can be held blameworthy of renunciation First basic

comprises of two components on the some portion of the forsaking life partner These

are (a) the reality of detachment, and (b) aim to bring living together forever to an

end. Similarly, the subsequent fundamental condition requires two components with

respect to the left life partner, these being (i) nonattendance of assent, and (ii)

nonappearance of lead giving sensible reason to the mate leaving the matrimonial

home to shape the vital aim previously mentioned The legal pattern in regards to the

importance and basics of Desertion has been stanchly kept up in the consequent

choices of the Supreme Court and High Courts.

The offence of renunciation starts when the reality of partition and hostility desired

match on the purpose of time. For the situation of Om Prakash v. Madhu222 the High

217
AIR 1957 SC 176.
218
AIR 1992 P and H 8
219
AIR 1993 Mad 172,
220
AIR 1993 M P 59
221
AIR 1997 P & H 74.
222
AIR 1997 Raj. 214

117
Court of Rajasthan has underscored that ill will must be found in the doing of the

gathering asserted by liable of Desertion. It can't be founded on the circumstances

made by the gathering looking for separation. In the moment case the applicant

himself denied the organization of the spouse intentionally for a time of nine years,

so he may demonstrate that the marriage had separated, but the High Court got the

fragrance of the issue and noticed that on the grounds that the marriage was not

looked to be broken down or renounced on the ground of minority, it was being

looked to be dissolved on the ground of renunciation. The genuine article was that in

light of the fact that of his shy nature he couldn't beat the desires of his folks who

disliked the marriage and were constraining him to have a subsequent spouse. The

Courts have been underscoring that abandonment isn't only a physical demonstration

of leaving a spot however it is pull back! from a condition of things 223 Mere truth of

living independently does not establish the offense. Thus the High Court of

Rajasthan in Teerath Ram v Parvati Devi224 called attention to as of late that if a

spouse endeavors to live independently so as to brighten the eventual fate of her

child, without no other mala-fide aim would not add up to abandonment on her part.

Then again, if the gatherings lived respectively for a brief length on intercession of

the Court for looking for compromise, it doesn't imply that abandonment has arrived

at an end 225 . It has been clarified by later legal declarations that courts are most

certainly not at freedom to add new grounds to the resolution under the shade of

'Desertion'. Thus in Uma Shanker v Rajeshwari 226 the High Court of Rajasthan

rejected the spouse's appeal chasing separate just on the premise that the gatherings
223
Ram Chandra Lamba v. Smt. Adarsh Lamba, AIR 1987 Del. 99
224
AIR 1995 Raj 86.
225
Om prakash v. Surestha Devi, AIR 1993 HP 71.
226
AIR 1991 Raj. 149

118
were living ceaselessly from one another from years together, calling attention to that

no such ground is accessible under the Hindu Marriage Act and the Court can't break

down a marriage on a ground not indicated in the Act. For a pronouncement of

separation verification of abandonment of least statutory time of two a long time is

mandatory. 227 The High Court of Calcutta in Madan Mohan Manna v Chitra

Manna228 has given more biting teeth to the said statutory prerequisite by including

that introduction of appeal before the consummation of the said period of two years

is untimely. The Court clarified that the time spent in the wake of filling of the

request can't be considered for registering the said time of two years of abandonment.

Here it was contended in the interest of the spouse that albeit two years had not

slipped by before the request yet the penned of two years had terminated after the

filling of the request Rejecting the contentions, the High Court said:

“We are the firm view that the time after the filing of petition cannot be considered

for computing the period of desertion Plainly, after the filing of the petition, there

cannot be any question of desertion by the wife, because the petitioner wants to sever

marital ties and is not willing to accept the wife Therefore, the time subsequent to the

filing of the suit cannot go against the wife, for when the husband refuses to accept

the wife, there cannot be any question of desertion by the wife herself But ignoring

time factor for presentation of application is one thing and creation of offence is

another thing The offence of desertion is complete only after the period of two years

is spent By taking the time after the suit for consideration a new offence cannot be

created If the offence is not complete, the ground also vanishes”229

227
Amarjeet Paul singh v. Kiran Bala, AIR 1995 P & h 356.
228
AIR 1993 Cal. 33
229
ibid

119
Under the steady gaze of allowing separation courts are very cognizant towards the

directions given in Section 23(1)(d) of the Act with respect to whether there has been

preposterous postponement in filling the request. If there is, an postponement and

similar stands unexplained. The Courts have demonstrated no restraint in striking

down the appeal exclusively. Thus or occurrence, the High Court of Rajasthan in

Teerath Ram v Parvati230 would not concede the announcement of separation to the

spouse since he made a postponement of 11 years in recording the appeal for

separation on the ground of abandonment hanging tight for this time whether the

support procedures against him by his significant other under Section 125 Cr PC

succeeded or not, and he documented the said appeal simply after he found that the

spouse's request had been expelled by the Officer just as by the Appellate Court

Similarly, the postponement of nine years in recording the appeal on the ground of

abandonment demonstrated to be lethal for the spouse in Om Prakash v Madhu231 as

the equivalent stayed unexplained.

232
In the case of Durga Prasanna Tripathi v. Arundhati Tripathi wife left the

matrimonial house immediate after seven months of marriage and were lived

separately around 14 years. She was not prepared to live an married life with her

husband. It was held that marriage was irretrievable broke down and it is in the

welfare of parties to bring an end to their matrimonial life. Therefore, Divorce had

been granted to them on the ground of Desertion.

230
AIR 1995 Raj 86.
231
AIR 1997 Raj 214.
232
AIR 2005 SC 3297.

120
In Sau Varsha Pravin Patil v. Pravin Madhukar Patil 233 the wife was thrown out

from her matrimonial house by her husband after beaten her brutally, and left her

with no option , only to reside with her parents. Therefore court said that there was

no desertion committed by the wife. As husband wants to take benefit from his own

guilt.

In Deo Kumar Sah v. Anjali Kumari Sah 234 The wife left her matrimonial house

from last 26 years and live separately from her husband. Now after 26 years she

cannot claim her wish to live along with her husband. Hence husband is entitled to

claim a decree of divorce.

In Rajesh Kumar Chaudhary v. Sunita Chaudhary235 it was held by the Himachal

Pradesh High Court that there was absence of an appropriate evidence to show that

wife does not make any attempt to establish her re-union with her husband. Although

her husband apart from his willingness he was not able to take back home due to his

parents. They were taunted and humiliated her and wants to create her image as a bad

women. Therefore, in these circumstances wife has reason to do so and there is no

desertion by the wife.

In the case of Nisha Soni v. Mukesh Soni236 the petitioner was deserted his wife

when he gets job in Railway in order to sanctify his second marriage as opponent

was slightly disable from her legs which was well known by the petitioner at the

time of marriage but he gave his consent because he was unemployed at that time

233
AIR 2009 Bom 60.
234
AIR 2009 Pat 4.
235
II (2008) DMC 670 HP.
236
AIR 2019 All.189.

121
and want to be married in any circumstances. Court consider it as a desertion done by

the husband against his wife.

3.2.4 Conversion :

At the point when an individual receives another religion by officially changing over

to it (in understanding with the conventions endorsed by the religion to which change

is looked for) he stops to be the supporter of his new faith. Ordinarily, change is

affected by experiencing the conventions or services of change set somewhere

around the religion to which Conversion is looked for. Different religions

recommend various methods of Conversion. In a series of cases237 coming full circle

with the Supreme Court choice in Peerumal v. Poonuswam238, it has been set out

that an individual may likewise end up Hindu on the off chance that in the wake of

communicating a goal, explicitly or impliedly he lives as a Hindu and the network or

on the other hand station, into the overlay of which he is introduced, acknowledges

him as an individual from that network or on the other hand station In such case one

needs to look to the goal and direct of the believer, and if the agreement of the

network into which he was started is adequately characteristic of his change at that

point, the absence of certain customs can't negative what is a cultivated fact. 239 In

such a case no formal service of cleansing or appeasement is important to effectuate.

Conversion It is immaterial to which class of Hindus convert has a place. It is too not

important to demonstrate that he rehearses or pursues tenets of any group or sub-

order of Hindus. In any case, in light of the fact that a Hindu of higher standing turns

into an investor of the Kerala Scheduled Positions and Scheduled Tubes, Welfare

237
Durga v. Surdarsan Swami AIR 1940 Mad 513.
238
AIR 1971 SC 2352.
239
Lakshmi v. Ponuswami (1967) 2 MLJ 334.

122
Board it doesn't imply that he has been acknowledged as an individual from the

Scheduled standing and therefore has turned into a Scheduled Caste240 The Kerala

High Court in Mohandas v. Devasaron Board241 has gone a stage further from the

recommendation propounded by the Supreme Court in Peerumal v. Poonuswami242

It held that when an individual proclaims that he is adherent of Hindu confidence and

if such a revelation is bonafide and not made with any ulterior rationale or goal, it

sums to his having acknowledged the Hindu way to deal with God. He turns into a

Hindu by Conversion For this situation one Jesudas, a Catholic Christian by birth and

acclaimed play-back artist utilized to give reverential music in a Hindu Temple and

venerated there like a Hindu. He had likewise recorded affirmation, "I pronounce

that I am a devotee of Hindu belief. " On these realities the court held that Jesudas

was a Hindu and would not be kept from entering the sanctuary.

3.2.5 Insanity:

Section 13(1)(iii) of the Hindu Marriage Act 1955 contains 'Insanity' as a ground of

separation. It sets out that an appeal might be exhibited for separation by either party

on the ground of insanity of the other party or has been enduring ceaselessly and

irregularly from mental issue of such a sort and to such a degree that the candidate

can't sensibly be relied upon to live with the respondent. In Ajirai Shivprad Mehta v

Bai Vasumati243, the court saw that the test to be connected is whether by reason of

his state of mind, he is equipped for overseeing himself and the undertakings and if

not, regardless of whether he can would like to be depended on a phase where he will

240
J Das v. State of Kerela AIR 1981 Ker 164.
241
1975 KLT 55.
242
AIR 1971 SC 2532.
243
AIR 1969 Guj. 48.

123
probably do, and the trial of the limit is that of a sensible individual. Obviously an

unimportant mental imperfection isn't unsoundness of brain. In Bipin Chandra v.

244
Madhunben the Gujarat High Court propounded the accompanying three

suggestions (a) It is for the solicitor to set up unsoundness of mind i.e. weight of

evidence is on the applicant (b) The unsoundness of mind should be hopeless, and (c)

Respondent cannot be constrained to experience restorative assessment, however

because of his refusal, an unfriendly induction might be drawn. It is presented that if

the respondent is fit for practicing his choice of not submitting for therapeutic test, at

that point he is surely not of unsound personality. In aggregate, the trial of

unsoundness of psyche is such mental insufficiency which makes one unequipped for

overseeing himself and his issues including the issue of the general public.

Furthermore, of wedded life and it will be serious if there is no sensible any desire

for his being turned to an emotional well-being in which he will most likely do as

such. In a request for separation in the ground of craziness where guardians of the

respondent are not inspected and the specialist treating the spouse neither named nor

analyzed, the request is at risk to be rejected.245

In J. Sudhakar Shenoy v. Vrinda Shenoy246 husband found after 13 years of their

marriage that his wife is in infirmity of any disorder. The story was modify by the

wife, when she gave a birth to a child and prove that she was absolutely normal. The

decree of divorce cannot be granted.

244
AIR 1963 Guj. 250.
245
Pramatha v Ashima Maily, AIR 1991 Cal 123.
246
AIR 2001 Kant 1.

124
In Sampa Karmakar v. Dr. Sanjib Karmakar247 there is no previous record of wife

illness. Her husband did not consult and examine her or even proved that she was

suffering from any mental illness. The court laid down that husband is not entitled

for divorce on the ground of insanity.

3.2.6 Leprosy and Veneral Disease-

Under the Hindu Marriage Act 1955, disease is a ground for separation or legal

detachment and it ought to fulfill two capabilities viz (a) it ought to be harmful and

(b) it should be serious The word 'destructive' is anything but a restorative term nor it

has been characterized in the Act. As per Chamber's Dictionary, destructive methods

profoundly toxic or 'harmful', 'venomous' or 'rancorous.' In Swarajya Lakshmi v G

C Padma Rao 248 the Supreme Court was concerned with lepromatous infection

which is perceived by every single medicinal specialist as dangerous and infectious

and in this manner destructive. Justice Mukherjee in his judgment has gathered the

importance of lepromatous infection from restorative experts. The Supreme Court

held that lepromatous infection is destructive This kind of disease is harmful and

infectious. It is likewise hopeless type of infection The trial of destructive sickness is

that it ought to be dangerous and infectious. In this specific circumstance, one should

take a gander at Section 27(1 )(g) of the Special Marriage Act 1954, which utilizes

the words malady not having been contracted from the applicant just an infectious

malady can be contracted. Another fascinating part of this choice is that Justice

Mukherjee dismissed the contention that the word 'destructive' ought to be given a

247
(2013) 1 Gau.L J 429.
248
AIR 1974 SC 165.

125
similar elucidation which has been given to it under Hindu Law where destructive

uncleanliness is a preclusion for legacy. The honorable Judge observed:

“„Virulent‟ as a ground exclusion from inheritance is treated from an entirely

different angle in Hindu religious and legal texts The general emphasis in those

contexts was of the competence of a man to perform his social and religious

obligations and no word has been used in those texts which could be referred to as

the corresponding Sanskrit word for „Virulent‟ The decision of the different High

Courts and the Privy Council where the word “virulent” has been used for

interpreting the Hindu Law on the subject have used it to describe the leprosy of the

most serious and aggravated type This does not therefore give any sure and reliable

guide in interpreting the word „virulent‟”

In Annapoorna Devi v. Narakishore249 a difficult circumstance were arose when the

lower court ordered to kept the wife under medical observation for a period of six

months and submit its report in the court, but High Court of Gauhati rejected the

lower court decision and said it is the obligation of the applicant to prove that his

wife is suffering from incurable and virulent form of leprosy.

3.2.7 Renunciation of World:

'Renunciation of the world' is a ground of separation just under Hindu Law, as

renunciation of the world is a commonplace Hindu thought The life of a Hindu is

composed into fours Ashrams, or phases of life (Brahmacharya, Grahasata,

Vanaprastha and Sanyas) out of which the sanyas Ashram is the last Ashram. This

sanyas Ashram implies renunciation of the world. There are not very many cases

given an account of the ground of renunciation of the world, but it is built up that
249
AIR 1965 Ori 72.

126
fundamental fixings are that the other party probably disavowed the world and has

gone into a heavenly request, both must exist together. Thus negligible accepting

sanyasi isn't sufficient, however appropriate philosophical affirmation in sanyas is

necessary.250 Where any individual has left the globe and did not get in into any

pious organization, then other spouse has right to obtain a decree of divorce on the

ground of desertion. If anyone become a disciple of a saint, then he cannot claim

himself as a sanyasi251

3.2.8 Presumption of Death-

In a large portion of the frameworks of the world, it is set out that if the whereabouts

of an individual are not known for a specific span by the individuals who might have

thought about him, he would be dared to be dead In English Law, the time of

nonattendance in seven years. In Indian law the period of nonappearance is likewise

seven years Section 108 of Indian Evidence Act 1872, which encapsulates this

assumption keeps running as under. At the point when the inquiry is whether a man

is alive or dead and it is demonstrated that he has not been known about for a long

time by the individuals who might normally have known about him on the off chance

that he had been alive, the weight of demonstrating that he is alive is moved to the

individual who attests it.

The assumption on which this belief has been drawn is that, if anyone who is alive,

have communicated with his near dear one‟s. When his closed relatives or someone

to whom he communicates provide proof then he may be considered as alive.

250
Shitaldas v. Sita ram AIR, 1954 SC 606, Satyanarayana v. Hindu Religion Endowment Board AIR

1957 A P 824
251
Govind v. Kuldeep. AIR 1971 Del. 157

127
Whereas if no one has heard about his/her for seven years or more, then other spouse

has right to take a decree of divorce.

3.2.9 Non Resumption of Cohabitation

As per this ground any spouse can file a petition of divorce. No matters whether

there marriage is Solemnized prior or post to 1976 Amendment Act. If there is no

matrimonial relations between them or there marriage is not consummate for one

year or more252, after getting the decree. It is mandatory for the court to pass a decree

of divorce.

In Bimla Devi v. Singh Raj253 The Punjab and Haryana High Court Said that : “ the

question is no longer who obtained the decree for restitution of conjugal rights or for

Judicial separation or who was at fault previously or who is at the fault now? The

question is not one fault at all. The question is not one of apportioning blame. The

question is, have the parties been able to come together after the decree was passed,

if they have not been able to come together, either party, may seek divorce.

Irrespective of whose fault it was that they did not come together. Section 23(1) (a)

applies to cases based on concept of wrong disability and not to Section 13 (1A)

which is not based on that concept.”

In the case of Harvinder Kaur v. Harmender Singh Chaudhary 254 Justice S.

Murtaza Fazal Ali and Justice Sabyasachi said that the right of husband and wife to

live in the association of each other is not only given by law but these rights are

252
Prior to the amendment Act 1976, the time period for non-resumption of consummation of

marriage is two years or more.

253
1976 RLR 480
254
AIR 1984 Del 66.

128
ingrained in the foundation of marriage. Today there are enough grounds of

protection given under section 9 of Hindu Marriage Act, to protect it from being a

depotism.

Similarly in the case of Hirachand Srinivas Managaonkar v. Sunanda255 The apex

court held that after obtaining a decree of cohabitation by the wife , if she will fully

refuse to cohabitate with husband, then husband has right to take divorce. As wife

cannot take benefit of her own wrongful acts.

In another case of Kanchan Sanjay Gujar v. Sanjay Gujar256 it was held that, the

wife has a right to take a decree of divorce, if her husband after obtaining the decree

of cohabitation, still live in adultery. Husband cannot take advantage of his own

wrongful acts.

Therefore it has been seen that despite there is a provision made by the legislature to

protect the piousness of marriages but still in number of cases, it has been observed

that after westernization of the society the pious belief has losing its faith. Although

the above grounds are based on guilt or fault theory to either spouse. Any spouse can

file a petition of divorce in the court. Where in these grounds the procedure to file a

petition is given , certain preventions and safeguards are also given to protect the

marriage from its dissolution. The court always tries to safe the relation at a first

instance so before providing the decree of Divorce, judiciary try to attempt last effort

for their re-union under section 10257 of Hindu marriage Act 1955, As, in present

times both spouse are aware their rights and educated. No one needs support and

255
AIR 2001 SC 1285
256
AIR 2009 Bom 151.
257
Judicial separation granted by court under the provision of this section.

129
dependency on each other either financially, sufficiency of goods and so on. So the

court also tries to find out the last solution for the spouse if court feels any ray of

light in there relation.

3.2.10 Wife’s Grounds of Divorce:258 Following are the Special grounds available

only to wife under Hindu Marriage Act 1955.

3.2.10.1 Pre-Act Polygamous Marriages:

The arrangement contained in Section 13(2)(i) empowers two sorts of ladies to look

for a separation (a) one who was hitched before eighteenth May, 1955 and whose

spouse had hitched again before the said date while the marriage with the primary

spouse was all the while subsisting in law, and (b) one who was hitched before

eighteenth May, 1955, while her better half as of now had a spouse and the marriage

with the principal wife subsisted in law. It has been set up that the co-spouses of a

man can look for separation under this arrangement gave that both were marriage to

him before eighteenth May, 1955 and both are alive at the hour of the introduction of

the petition.259 The lack of ongoing case law on this ground is very justifiable. How

numerous spouses would be alive today whose marriage was performed before

eighteenth May, 1955 The equivalent is to be speculated about their spouses. More

than thirty years have passed since the accumulation of this privilege to such

spouses. Even if alive, scarcely a Hindu woman would settle on separate at the fag

part of the arrangement.

258
Under Section 13 (2) (i) of Hindu Marriage Act 1955.
259
Naganna v. Lachmi Bai, AIR 1963 AP 82, and Geita Bai v. Pattu, AIR 1966 MP130

130
In Nirmoo v. Nikka Ram260 court held that under this section first wife has a right to

take divorce from her husband. Although prior to this Act she had given her consent.

Any adjustment of understanding cannot be work as an estoppels on wife‟s right.

In Laxmiammal v. Atagiri Swami261 court had an opinion that section 13(2)(i) is also

matters with section 23(1) of this Act and lag for period of six years of first marriage,

taken as a genuine ground for divorce.

3.2.10.2 Rape, Sodomy, and Bestiality.

This is a ground accessible to the spouse under sub-section (2) (ii) of Section 13 of

the Act as per which a spouse may introduce a request for the disintegration of her

marriage by an announcement of separation on the ground that the spouse has, since

the solemnization of the marriage, been liable of Rape, homosexuality or savagery.

Albeit under Section 13(2) (ii) the weight of demonstrating that the spouse has been

liable of these offenses lies on the spouse, yet it isn't vital that he ought to be indicted

for the said offenses by an official courtroom. Dearth of case law on the issue, once

more, goes to social foundation of Hindu spouses and by and large to their financial

reliance on their better half inferable from which they repress looking for separation

on these grounds.

In Ganesh v. Mayasundri 262 the meaning of „sodomy‟ has given as outlandish

intercourse done with any individual or living being whereas „bestiality‟ means

intercourse by a male against the nature (with animals).

260
AIR 1968 Del 260.
261
(1972) 1 MLJ 187.
262
ILR (1970) 1 Ker 517.

131
In Vinit H Joglekar v. Vaishali Vinit Joglekar 263 case irrespective accusation of

brutality and other nature, an accusation of lewd relations projected in books for his

gratification. Court held that husband did not defend himself for accusation of lewd

relations. Therefore the court granted the decree of divorce.

3.2.10.3 Non-Resumption of Cohabitation:

This ground of separation as contained in Section 13(2) (iii) of the Act 264 has been

made accessible to a Hindu spouse just because by the Marriage Laws (Amendment)

Act, 1976. The main focus under this clause is on non-restoration of sexual relations.

This clause is relate with section 13 (1A) with exception that this is only meant for

women.

The provision under this section is only connected with the maintenance

arrangements along with a tendency that although maintenance is allowed but still

marriage is not come to an end and can be rescue, if cohabitation resume and give

assurance for the future and if this main element of resumption for sexual relations

are not present, then its better to leave such relations which are not more than an

empty shell.

263
AIR 1998 Bom 73.
264
This clause of section 13(2) (iii) states that:

“that in a suit under section 18 of the Hindu Adoption and Maintenance Act 1956 (78 of 1956), or in a

proceeding under section 125 Cr.P.C.1973, or under the corresponding section 488 (now omitted) of

the Cr.P.C.1898, a decree of order, as the case may be, has been passed against the husband

awarding maintenance to the wife notwithstanding that she was living apart and that since passing of

such decree or order, cohabitation between the parties has not been resumed for one year or

upwards.”

132
3.2.10.4. Repudiation of Marriage:

It has turned out to be settled throughout the years since the inclusion of the ground

by Amending Act of 1976 in Section 13(2)(iv)265 that the spouse so as to get the

announcement of separation on this ground needs to demonstrate two things (i) that

she was hitched at once when she was under 15 years old, and (ii) that she has

renounced the said marriage in the wake of achieving the age of 15 years however

before accomplishing that of 18 years.266 The courts are under this arrangement that,

(iii) a spouse may introduce a request for separation on the ground that her marriage

was solemnized before she accomplished the age of 15 years and she has revoked the

marriage subsequent to accomplishing that age however before achieving the age of

18 years. However it is very necessary to see that the spouse candidate does not

exploit this ground of separate by demanding that the marriage has been denied by

the spouse on the ground that she was married during minority and now does not

have any desire to live with him.

Thus in Katari Subharao v Katari Seetha Mahalakshmi 267 the High Court of

Andhra Pradesh getting the fragrance of the issue saw that this request has been

taken uniquely so as to thwart the closeout of the property.

265
This clause states that: “ that her marriage (whether consummated or not) was solemnized before

she attained the age of fifteen years and she has repudiated the marriage after attaining that age but

before attaining the age of eighteen years.”

266
47 Jiviben v Pati Dahyalal, (1993) 2 DMC130 (Guj), and Bhatula lylaih v Bhatula Deamma AIR

1981 AP 74
267
AIR 1994 AP 365.

133
In Ramesh v. Rajpati268 the wife has acknowledged after her marriage, that at the

time of her marriage, she was just 14 years old and provide the supporting evidence

with her petition which after verification court granted a decree of divorce in her

favour.

In Ramesh Kumar v. Sunita Devi269 the petition was file U/S- 13(2)(iv) of HMA

when she was just 13 years old and as per the above section a wife can file a petition

only when she has completed her 15 years of age but not completed her 18 years of

age. Therefore the court dismissed her petition.

3.2.11 Alternate Relief 270

The relief under this section was added by the Amendment Act 1976 through which

an arbitrary power has been given to the court unconditionally to allow decree of

judicial separation rather than divorce other than the petitions filed U/S-13 (1) (ii),

(vi), and (vii). In these clauses there is no choice of remedy other than divorce. It is

very clear from the provisions that for the decree of judicial the petition, there is no

need to file an individual petition. By modifying the petition of divorce, this petition

can also use for the suit of judicial separation271but it is upto the court to see that the

circumstances given under section 10 for judicial separation must be fulfilled.

268
AIR 2003 P & H 316
269
AIR 2005 P & H 55.
270
Section 13-A of Hindu Marriage Act.
271
Vidya Kumar v. Subhash Reddy, (1984) 2 AP WR 426.

134
3.2.12 Judicial Response on Mutual Consent Theory:

The arrangement for separation by common assent contained in Section 13-B of the

Act has been given a review impact With the outcome separate by common assent

can be looked for by a Hindu couple independent of when their marriage was

solemnized, i.e, previously or after the initiation of the Amending Act of 1976 or

even before the initiation of the parent Act of 1955. Legal suggestions with respect to

this ground are gradually getting subsided into the texture of current Hindu law. Thus

in Saroj Ram v Sudarshan Kumar Chadha272 it has been decided that for acquiring

an announcement of separation on this ground the gatherings are required to satisfy

three conditions, viz (a) they have been living independently for a time of one year,

(b) they have not had the option to live respectively, and (c) they have commonly

concurred that marriage ought to be broken down. It has been clarified that there can

be isolated living under a similar rooftop and the spouse must accommodate the wife

on the off chance that she isn't procuring herself.273 Similarly, where both the life

partners in genuinely progressed age having grown up kids were living separated,

pronouncement of separation can't be denied due to adult children.

In this association, the most prominent legal contention has been rotating around

Sub-Section (2) of Section 13-B bringing up the issue. Whether one-sided

withdrawal of assent by a gathering is achievable inside the stipulated statutory

period of a year and a half. This contention has now been settled by the Supreme

Court in Sureshta Devi v. Om Prakash274 wherein refuting the perspective on the

272
AIR 1984 SC 1562
273
Jagroop Singh v. General Public 1981 HLR 289
274
AIR 1992 SC 1994.

135
High Court of Bombay275, Delhi276 and Madhya Pradesh277 furthermore, confirming

that of the High Court of Kerala278, Punjab and Haryana279 and Rajasthan,280 it held

that such a one-sided withdrawal is very conceivable and advocated before the

stipulated statutory period of year and a half It was clarified that the documenting of

the appeal does not cut off the marital ties There is a holding up period from 6 to

year and a half, i.e., interregnum to consider what's more, think and accept

exhortation, and on the off chance that one of them has doubt doing this period, he or

she can pull back the appeal unilaterally.

The above view has been reaffirmed by the Supreme Court in its pronouncement

given in Ashok Hurra v Rupa Bipin Zaven281 However a huge inquiry, regardless of

whether such a one-sided withdrawal of assent by a mate is conceivable even past the

time of 18 months before going of the declaration of separation, is as yet anticipating

a last decision from a bigger Bench of the pinnacle Court in light of the fact that the

Division Bench in the moment case has communicated its uncertainty about the

confirmed answer given to the said inquiry. In Sureshta Devi282 by remarking that the

said perception are excessively wide and require a reexamination in a fitting case It

has likewise developed that the arrangement contained in Section 13-B(2) is index

275
J.R.Londhe v. R.B. Londhe AIR 1984 Bom 302.
276
Chander Kanta v. Hams Kumar AIR 1989 Del 73.
277
Meena Dutta v. Anirudh Dutta AIR (1984) 2 DMC 388.
278
K L Mohanan v. Jeejabai AIR 1988 Ker 28.
279
Harcharan Kaur v. Nachhattar Singh AIR 1988 P & H 27.
280
Santosh Kumari v. Virendra Kumar AIR 1986 Raj 128.
281
AIR 1997 SC 1266
282
AIR 1992SC 1904

136
furthermore, not mandatory.283 Similarly, it has likewise been opined that request on

deficiency ground can be changed over into an appeal for separation by common

consent284

Another critical inquiry over which legal debate still continues is Can a request for

separation on one of the particular grounds in Section 13 be treated in any situation

as a request based on common assent The High Court of Bombay in the ongoing

instance of Rajshri Rajendra Shasane v. Rajendra Babulal Shasane285 gave a very

insistent negative answer to the inquiry Briefly expressed, the spouse had field the

request against her significant other for separation on the ground of savagery and

abandonment under Section 13 During the trial under the steady gaze of the Family

Court the gatherings will fully petitioned God for disintegration of the marriage. On

this the Court proclaimed for issue under Section 13-B on the ground of common

assent. When the issue went in request the High Court communicated its

disappointment in the following terms, If that is along these lines, one neglects to

comprehend concerning how the Family Court could have passed the announcement

of separation under Section 13-B of the Act. When the request was documented by

the appealing party - spouse for separation under Section 13(1) (i-a) and (i-b). In para

9 of the judgment, the Family Court has seen that from the announcement of the

applicant and the respondent plainly they are living independently for over one year

and there is no living together between the gatherings from the date of the said

division. Appellant has asserted just the upkeep from the respondent – spouse. The

Family Court further seen that the gatherings have will fully petitioned from a deity

283
D H Garasia v. N Mansu AIR 1988 Guj 159.
284
Dhanjit Vadra v. Smt Beena Vadra AIR 1990 Del 146.
285
AIR 1997 Bom 65.

137
for disintegration of their marriage. One neglects to comprehend with respect to how

the Family Court can mention such objective fact when there is no appeal at all by

the spouse for disintegration of the marriage. Accordingly, the declaration gone by

the Family Court was put aside since it had been passed without jurisdiction and the

issue was remanded back to the Family Court for its crisp choice on the first appeal

on the ground of Cruelty and renunciation

As against this High Court of Punjab and Haryana on account of Krishna v Satish
286
Lal has offered a certifiable response. There the request for separation was

recorded by the spouse against his significant other on the ground of cold-

bloodedness under Section 13(1) (i-a) During the progress of the preliminary the

spouse moved and application for correction to his appeal supplicating that his

unique appeal be changed over into one dependent on shared assent under Section

13-B the spouse - respondent likewise consented to it. Therefore, the preliminary

Court finding

The nitty-gritty certainties are not clear as the Court discarded the issue just in five

short passages in reference to certain other pending procedures K Omprakash v K

Nalmi,287 that the gatherings were living independently for a time of over one year,

conceded the petition and conceded the declaration of separation based on common

assent In advance the High Court did not discover any deficiency with the judgment

of the preliminary Court and rejected the offer

Until the last decision originates from the pinnacle Court, it is presented that the view

taken by the High Court of Punjab and Haryana is by all accounts increasingly down

286
AIR 1987 P & H 191.
287
AIR 1986 AP 167

138
to business and is in tune with the liberal pattern of the Legislature in authorizing

Section 13-B This accommodation additionally discovers some help from an

extremely short judgment of the Supreme Court conveyed in Preeti Singh v.

Sandeep Singh 288 . The accompanying perceptions of the court merit taking note

According to the headings of this Court-the gatherings have recorded the request for

shared separation. As far as the request, the marriage of the candidate and the

respondent stands disintegrated also, the separation produces results from today as

far as the trade off every one of the procedures established by either party in any

Court of before any expert stand pulled back and rejected - The questions presently

thoroughly stand closed between the parties. On the translation of Sub-section (2) of

Section 13-B the view is gaming ground that the Court, as well as even the High

Court, can shed the statutory necessity of least holding up time of a half year in

giving separation on the ground of shared consent.289 However, the Andhra Pradesh

High Court:

In re V M Saileja290 has called attention to that regardless of whether the arrangement

is interpreted to be catalog, it doesn't imply that the necessity of time ought to be

abstained from in all cases and the appeal for divorce based on common assent ought

to be discarded the minute the appeal is documented.

3.2.13 Judicial Response to Irretrievable Breakdown Theory

The idea of unrecoverable breakdown of marriage was totally obscure to Rear

Jurisprudence till 1964 It came to be mixed into the veins of that jurisprudence in

two portions, i.e., in 1964 and 1976. The 1964 Amendment to the Act acquired

288
AIR 1995 SC 1851.
289
K Ompraksh v. K Nalini AIR 1986 AP 167.
290
AIR 1995 AP 325.

139
Section 13(1-A) on the rule book by making two grounds on which either gathering

to a marriage can look for the disintegration of marriage by a pronouncement of

separation.

They are as underneath Section 13(1-A) Either gathering to a marriage, regardless of

whether solemnized previously or after the initiation of this Act, may likewise

exhibit an appeal for the disintegration of the marriage by a pronouncement on the

ground

(i) that there has been no resumption of living together as between the gatherings

to the marriage for a time of one year or upwards after the death of a

declaration for legal division in continuing to which they were parties, or

(ii) that there has been no compensation of matrimonial rights as between the

gatherings to the marriage for time of one year or upwards after the death of

a declaration for compensation of matrimonial rights in a procedure to which

they were parties.

The subsequent portion was embedded by way of Section 13-B in the parent Act by

the Hindu Marriage Laws (Amendment) Act 1976. This peruses as under Section

13-B ' Divorce by shared assent

(1) Subject to the arrangements of this Act a request for disintegration of marriage

by a declaration of separation might be exhibited to the District Court by both the

gatherings to a marriage together, regardless of whether such marriage was

solemnized previously or after the beginning of the Marriage Laws (Amendment)

Act, 1976, on the ground that they have been living independently for a period of

one year or more, that they have not had the option to live respectively and that they

have commonly concurred that the marriage ought to be broken down.

140
(1) On the movement of both the gatherings made not sooner than a half year after

the date of the introduction of the appeal alluded to in Sub-Section (1) and not later

than eighteen months after the said date, if the appeal isn't pulled back in the interim,

the Court will, on being fulfilled, subsequent to hearing the gatherings and

subsequent to making such request as it might suspect fit, that a marriage has been

solemnized what's more, that the averments in the request are valid, pass an

announcement of separation declaring the marriage to be broken down with impact

from the date of the declaration.

The previously mentioned second ground of separation is secured under the idea of

irretrievable breakdown of marriage since it is a simple method of separation and

turned to generally in those situations where the marriage has been separated

hopelessly with no odds of retrieval.

At first the legal advisors and judges, including those of the High Courts failed m

appropriately translating the previously mentioned arrangements. So likewise they

bombed appropriately to value the message conveyed by the Supreme Court in Saroj

Ram v Sudarshan Kumar291 and V Bhagat v D Bhagat.292 They got the feeling that

a marriage being represented by the Special Marriage Act or the Hindu Marriage Act

can be broken down by a pronouncement of separation on the ground of lost

breakdown of marriage notwithstanding when no ground on which such

pronouncement is passable under the concerned Act has been set up. This is what

was held by a Division Bench of Calcutta High Court in Sukhomoy Bagh v. Jaya

Bagh293 as of late as in 1996, however it was later on announced according to High

291
AIR 1984 SC 1562
292
AIR 1994 SC 710 at 721.
293
(1996) (1) Cal HN 210.

141
Court in Tapan Kumar v. Jyotsna294 in perspective on Supreme Court's choice in

Saroj Ram Even now when the position has been completely disclosed actually by

the pinnacle Court, comparable conflicts are raised, contending that independent of

the grounds, there ought to be a declaration for the disintegration of marriage as the

marriage itself has separated irretrievably. In Madan Mohan Manna v Chitra

Manna295 the Calcutta High Court noted- We locate that all the time this contention

is propelled We imagine that the contentions propelled that the marriage is to be

revoked just in light of the fact that a gathering has requested on the ground that the

marriage has turned out to be irretrievable , depend on certain misguided judgments.

Choices are referred to however we feel that they are not constantly refreshing in

their legitimate sense. Every now and then it has been clarified by the High Courts

and the Supreme Court that irretrievable breakdown of marriage, independent from

anyone else and without additional, has not yet been made a ground of separation and

the Court must discover at least one of the grounds indicated in the Act except if the

gatherings continue by common assent under Section 13-B.296 It is presented that if

an individual is permitted to record a suit exclusively as indicated by his impulses

what's more, chance and get an announcement on the ground that the marriage has

separated on the grounds that of his frame of mind, at that point the entire Hindu

Marriage Act would end up indolent. The establishment of marriage itself would be

endangered.

The clarification of the lawful circumstance separated, there is by all accounts no

closure to raising the said request supposedly on the quality of the Supreme Court

294
AIR 1997 Cal 134.
295
AIR 1993 Cal 33.
296
Tapan Kumar v. Jyotsana, AIR 1997 Cal 134.

142
choice in Saroj Ram297 and V.Bhagat298. This as of late in Anil Kumar Banerji v

Sefali Banerji299 it was contended on sake of the spouse applicant that the couple

had been dwelling independently for a long time and the marriage had hopelessly

separated and that all things considered an announcement of separation might be

conceded as was finished by this Supreme Court for Bhagat's situation. The Court

responded that the Bhagat's case would not help him as all things considered it was

clarified that there must be extremely some exceptional highlights to warrant award

of separation based on pleadings (and other conceded material) without a full

preliminary. The Court saw that lost breakdown of a marriage is an issue of certainty

dependent on reciprocal demonstration of both the couple. In the moment case the

spouse was all along anxious to return to the spouse for carrying on with an upbeat

matrimonial life. However the husband did not attempt at all to patch his way of life

and to bring back his better half. In this circumstance the court stated, it will be

neither coherent nor reasonable for state based on the one-sided claim of the spouse

that the marriage has hopelessly separated. Thus, the need of great importance is to

earnestly value the reality circumstance associated with Saroj Ram and Bhagat 300 and

the proportion as opposed to rise the said dispute in the swoon trust that it might be

acknowledged whether by chance different ground(s) was /were demonstrated to

some fulfillment of the court. It may not be strange to accentuation that the reality –

circumstances in Saroj Ram was very not quite the same as the one in had where the

pronouncement was not conceded all things considered in a request by the spouse for

compensation of matrimonial rights an assent pronouncement was passed allowing

297
AIR 1984 SC 1562.
298
AIR 1994 SC 710.
299
AIR 1997 Cal 6.
300
ibid

143
the alleviation. There was no dwelling together for a period of one year and the

spouse recorded a request for separation. The wife argued that after the

pronouncement was passed, there was living together for two days, and from that

point the spouse turned her out. The court distrusted the proof. The trial Court did not

concede the help, be that as it may, the High Court passed a declaration for

separation. In advance, under the steady gaze of the Supreme Court, the spouse

looked to attack the pronouncement on the ground that the husband needed the wife

to have order for compensation of marital nights by some sort of a snare and

afterward not to live together with her and from this point forward get a

pronouncement for separation. Thus the first announcement of compensation of

marital nights was itself attacked. It was certain that there was no dwelling together

between the parties against such foundation, the Supreme Court mentioned the

objective fact that when the marriage had separated, it was smarter to close the

section. So, as well, in Bhagat's case it took around eight years to arrive at the issue

under the steady gaze of the Supreme Court. The applicant, a Supreme Court

Advocate had looked for separation on the grounds of pitilessness and renunciation

against his significant other, the Vice-President of an open partnership. The spouse

not just denied the charges yet leveled claims of Insanity and lunacy against the

spouse and his entirety relatives. These charges were observed to be false. The

solicitor pull back the charge of Adultery to stay away from the disgrace on the

spouse and put together his case with respect to mercilessness coming about from

ridiculous and bogus charges of the spouse made in her counter. Even in this

conditions, the spouse communicated her ability to come back to the husband's

organization. The court regarded this as a further remorseless conduct on her part

who needed to make his life a hopeless hellfire. The offer was not certifiable She

144
completely realized that the gatherings had burned the marriage quite a while in the

past with no way of recovery in such a circumstance the Supreme Court disintegrated

the marriage. The suggestion of law was propounded in no mixed up terms. Hopeless

breakdown of the marriage isn't a ground without anyone else, but while examining

the proof on record to decide if the ground(s) claimed is/are made out and in deciding

the alleviation to be conceded. The said condition can unquestionably be borne as a

main priority.

It is normal that the above message will arrive at the attorneys and judges in its

genuine point of view, at some point or another. Indeed, even in England however

the Morton Committee on Marriage and Divorce in its Report in 1956 by a majority

of 13-12 rejected breakdown of marriage hypothesis of separation, Om Prakash v.

Smt Sareshtha Devi,301 it keeps on working at a slant Constructive abandonment,

mental mercilessness, refusal to comply with a compensation order, partition for a

fixed period have each come to fill in as a general ground driving a breakdown of

marriage and possible separation. However, serious musings are required where

separation is compelled to a non-consenting gathering without issue. The pivotal

question here is whether we should choose the course of saving the legitimate shell

of marriage which were in actuality not alive or rush the separation of association

with life still in them. In any case, it is in the wellness of things that the courts have

begun to give due weight to the factum of an irrevocably broken marriage while

inspecting the other proof on the side of the charges made by the candidate. Thus the

High Court of Himachal Pradesh while giving the declaration of separation for the

spouse on the ground of abandonment did not stay effective regardless everything

301
AIR 1993 HP 71, at 76 AIR 2006 SC 1675

145
being equal, it will be worthless to enable the gatherings to endure further agony.302

The legal executive every once in a while pours the substance of separation

hypothesis concurring to its contemporary experience. The Supreme Court on 21st

March, 2006 took a genuine perspective on the complete vanishing of substratum in

the marriage is a case before it and requested it's disintegration and furthermore

prescribed the association of India to seriously consider bringing an alteration in the

Hindu Marriage Act 1955 to fuse irretrievable break down of marriage as a ground

for the award of separation. The aforesaid case is Naveen Kohli v. Neelu Kohli303 in

which the Supreme Court has given a landmark judgment coordinating the

association of India to genuinely consider and change the current Act to include the

ground of hopeless breakdown of marriage. The catena or touchstone that a marriage

has broken down hopeless ought to be the significant lot of detachment. The

Supreme Court has conceded that flaw grounds are demonstrating to be insufficient

to manage this issue To quote peak court –

“We have been principally impressed by consideration that once the marriage has

broken down beyond repair, it would be unrealistic for the law not to take notice of

that fact and it should be harmful to the society and mucous to the interests of the

parties where there is a long period of continuous separation, it may fairly be

surmised that matrimonial bond is beyond repair The marriage becomes a fiction

though supported by a legal tie By refusing to sever that tie the law in such cases

does not serve the sanctity of marriage, On the contrary, it shows scant regard for

feelings and emotions of the parties.”

302
Om Prakash v. Smt Sareshtha Devi, AIR 1993 HP 71.
303
AIR 2006 SC 1675.

146
3.3 Muslim Law:

Amongst all countries of ancient times, dissolution of marriage was, inconsistent

allocation of marriage which gives an indifferences which creates a never filing gap

in regard as a natural analogy of marital rights and present in one and other form.

Divorce in former arabs was very common. The husband has powers without any

limits and with no conditions to dissolve their marriage and used discretionary

powers. At that time, there was no rule of fairness or justice. This practice is hasty

and uncivilized for society.

When prophet saw the wisdom and celestial light, he steered various rectifications to

change this brutal and uncultured society into cultured and religious one. The prophet

treated woman as the base of every society and under her guardianship, the

deliverance of mankind and formulation of significant ideals has been made for

society. Prophet replace the word body with „soul‟. The thought of marriage

“Nikah” was based on the benchmark of honor and blissfulness in the family. As

per Baihaqi “when a man got married ; he has made his Islam half perfect. Then let

him fear Allah for the remaining half.” The prophet also said that if both the spouse

cannot live a good life, then they can separate their ways with peacefully and in

graceful manner.

He stressed that right to dissolve the marriage shall be exercised only in

extraordinary situations when the parties have left with no other option. He regularly

says that nothing can make happy god more than the freedom of captive and nothing

can make him unhappy more than dissolution of marriage .

147
3.3.1 Forms of divorce: Following are the forms available for divorce under Muslim

Law

3.3.1.1 By the death: Under mohamedan law marriage is broke either by the death

of the life-partner or by dissolution of marriage. In case where wife dies, husband

can remarry at the same moment but in case where husband dies, the wife cannot do

so. As she has to wait to observe the specific period called “Iddat.” It is compulsory

for woman to observe this period for 4 months and 10 days from the same date when

her husband died and if she is pregnant then she has to observe this period till she

deliver her baby.

3.3.1.2 Talaq-ul-sunnat : This form of Talaq is revocable. Prophet Muhammad

consider only the revocable form of talaq and talaq-ul-sunnat is as per the

instructions of prophet. In HEDAYA304 Talaq-ul-sunnat means “divorce according

to the rules of the Sonna.” Divorce are of 3 types

(a) Talaq Ahasan, (b) Talaq Hasan and (c) Talaq-ul-Biddat.

3.3.1.2.1 Talaq Ahsan This form of talaq is most praise worthy divorce. Under this

form the husband disavow his better-half by a one sentence, during her “Tuhr” in

which they had not any sensuous contact and left her to observe the period of her

“Iddat.” This is the highest accepted form , as under this husband can regain his wife

without any embarrassment if he wish to do so. Even the wife remnant a legal affair

of marriage for her husband even though the period of “Iddat” has been expires.

3.3.1.2.2 Talaq Hasan This form of talaq is praise worthy. Under this where

disavom enjoyed by husband by three statements of dissolution in three “Tuhrs.” It

is less accepted form as there will be 3 succeeding declaration during the 3

304
Muslim Law, syed khalid rashid, 5th edn 2009, Eastern Book Company P 126.

148
successive duration of Tuhrs and there is no sexual relation between them after each

declaration and after the final declaration the wife has to observe her “Iddat” as

specified.

In Ahmad Kasim Molla v. Khatoon Bibi305

Under this case court laid down that

(a) Any Muslim male can divorce his wife suddenly without disclosing any

reasons.

(b) Written form of Talaq is legal, although whether its not bring into the

knowledge of wife .

(c) Marriage is not a sacrament, its purely a civil contract.terms and condition

mentioned at the time of marriage under Kabulnama must be consider in the

same manner like a terms and condition mentioned under the contract.

(d) Court does not view the matter as per customary or religious view, but to deal

in it as a legal point of view.

Similarly in the case of Asmat Ullah v. Mt. Khatun Unnisa 306 court held that if

husband made an affirmation then the effect for dissolution of marriage takes place

from that date when such affirmation is made.

In the matter of Chandbi v. Bandesha307 court laid down that if in marriage there is

no physical relation has been develop then Talaq-Ahsan may be obvious even if wife

is in her menstrual cycle period. Where husband and wife are not with each other, or

where she is outside the limits of her monthlies, period of “Tuhr” for Iddat is not

relevant.

305
AIR 1933 Cal 27.
306
AIR 1939 All 592.
307
AIR 1962 Bom 121.

149
3.3.1.2.3 Talaq-ul-Biddat

This is an irregular form of divorce. Under this form a husband disavow his wife by

pronouncing three divorce in one sentence, at the same time or he pronounce the

statement in three different period but in one period of „Tuhr‟.

In Sarabai v. Rabia Bai308 It was laid down that only one declaration for divorce

which shows clear intention for dissolution of marriage will establish Talaq-ul-

Biddat. Under this case the Talaqnama were established traditionally and obvious in

operation that it does not required any proof of husband‟s intention.

In Ahmad Giri v. Mst Megh309 court said that talaq-ul-biddat is the most common

form for taking divorce in India. Any alteration in this cannot be bring by the

judiciary or by its interpretation. If in Muslims there is a common wish to turn back

to the purity of Isalm then how these alterations can be bring out.

In Yusuf v. Sowramma310 Justice Krishna Iyer quote that “it is a popular fallacy that

a Muslim male enjoys under Quranic law an unbrilled authority to liquidate the

marriage. The whole Quran expressly forbids a man seek pretexts for divorcing his

wife, so long as she remains faithful and obedient to him if they obey you, then do not

seek a way against them. The Islamic law gives to the man primarily the faculty of

dissolving the marriage, if the wife, by her indocility or her bad character, renders

the marital life unhappy; but in the absence of serious reasons, no man can justify a

divorce either in the eye of religion or the law. If he abandons his wife or puts her

308
(1905) 30 Bom 357.
309
AIR 1955 J & K 1.
310
AIR 1971 Ker. 261

150
away in simple caprice, he draws upon himself the divine anger, for the curse of

God. Said the prophet, rests on him who repudiates his wife capriciously.”

In Rahmatullah v. State of U.P. 311 Lucknow bench noticed that Talaq-ul Biddat

which means giving an irreversible divorce at one time speaking it, in a tuhr, in an

irreversible process, which runs against the order of holy Quran and considered as

sinful by all under Islam (Sunnat).

Similarly In Shamim Ara v. State of U.P.312 Apex Court held that the exact law of

talaq as ordered by Holy Quran is there must be a reasonable reason or ground for

Talaq and predate to pursue harmony or settlement between them by two mediators

from either side and if they fail, the talaq should enforced. Therefore court said that

without any evidence of their effort for reconciliation the court will not accept this

view.

In M. Shahul Hameed v. A. Salima313 under this case husband announced Talaq

through written letter to his wife where he did not profess talaq three times.

Therefore its legality was challenged by the wife. Court said that in this type talaq is

not valid as there was no proof produced by the husband that he tried for

reconciliation.

Similarly In Syed Maqsood v. State of A.P.314 Justice Bilal Nazki Said that as per

Holy Quran, it is compulsory to make attempts for conciliation before the declaration

of Talaq.

311
1994 (12) Luck. Civil decision, p. 463.
312
AIR 2002 SC 3551.
313
AIR 2003 Mad. 162.
314
AIR 2003 A.P. 123

151
In Firdous Bano v. Mohd. Ashraf315 case court that petitioner was not proficient in

English and the terms of Talaqnama in English. The sign in Talaqnama does not

match and the witnesses are also not examined. Husband also fails to provide any

proof of effort for reconciliation. Husband also not able to show any reasonable

ground for divorcing his wife.

In the recent Judgement of Shayara Bano v. Union of India316 the supreme court

declared the Triple talaq as an Unconstitutional317. As it discriminates the rights of

315
2008 (2) M.P.H.T. 111 (CG).
316
(2017) 9 SCC 1

317
 Any pronouncement of talaq by a Muslim husband upon his wife, by words, either spoken or

written or in electronic form or in any other manner whatsoever, shall be void and illegal.

 Any Muslim husband who pronounces talaq upon his wife shall be punished with imprisonment

for a term which may extend to three years, and shall also be liable to fine.

 A married Muslim woman upon whom talaq is pronounced shall be entitled to receive from her

husband such amount of subsistence allowance, for her and dependent children, as may be

determined by the Magistrate.

 A married Muslim woman shall be entitled to custody of her minor children in the event of

pronouncement of talaq by her husband, in such manner as may be determined by the

Magistrate.

 An offence punishable under this Act shall be cognizable, if information relating to the

commission of the offence is given to an officer in charge of a police station by the married

Muslim woman upon whom talaq is pronounced or any person related to her by blood or

marriage;

 An offence punishable under this Act shall be compoundable, at the instance of the married

Muslim woman upon whom talaq is pronounced with the permission of the Magistrate, on such

terms and conditions as he may determine;

152
wife with her husband and also violates the fundamental right of equality. In this case

the husband pronounce divorce in a single vow in the presence of 2 witnesses and

handover the Talaqnama to his wife which was challenged under the writ petition by

the wife on the ground of constitutional validity of Triple talaq. After the decision of

this case the amendment has also been proposed by the government in the name of

The Muslim Women (Protection of Rights on Marriage) Bill 2017, which later

converted into a law in 2019. The present situation of triple talaq that a husband

cannot give instant talaq to his wife either by written or oral form or through any

electronic media. If he do so then the provision of punishment318 for imprisonment

which may extend to 3 years along with fine. The step taken by the apex court is

remarkable for Muslim Women to safe her from the exploitation of her husband and

protect them from the evil practice of “Nikah-Halala”

3.3.1.3 Ila it is a promise made by husband for being self-restraint himself by a

declaration made as an oath that he will not have sexual intimacy with his wife for a

specified period of 4 months and 10 days or for unspecified period is considered as

Ila done by him. When the period of 4 months and 10 days over, it will recognized as

an irreversible divorce.

 No person accused of an offence punishable under this Act shall be released on bail unless the

Magistrate, on an application filed by the accused and after hearing the married Muslim woman

upon whom talaq is pronounced, is satisfied that there are reasonable grounds for granting bail

to such person.

318
The Muslim Women (Protection of marriage) Act, 2019 section 4 Punishment for Triple Talaq

153
3.3.1.4 Zihar Whenever husband done comparison of his wife with his restricted

relations of Kinship, agnates, cognates or fosterage the marriage gets dissipate. In

such condition wife has a right to deny him for not being his wife until he do

reparation of this wrongful act.

3.3.1.5 Talaq by Wife (Talaq- Tafweez) It is the form of Talaq where husband

delegates his power of divorce. He himself disavow his wife or transfer his power of

disavow to a child party or to his wife. Such type of power transfer is called

“Tafweez.” The wife can use her right of divorce transfer to her from her husband

either by agreement prior or post to marriage but such agreement must not be against

legal rules and against public law.

In Mohd. Khan v. Mst. Shahmali319 under this case an agreement was made before

the marriage on which opponent agreed to live with petitioner in her parental home

and if in any circumstance he would leave such home then he has to pay a stated

amount of money to her and if he not able to do so then it would consider as a

divorce. It was laid down by the court that such condition was not immoral and

against public law violation of such conditions and Terms would perform as

dissolution of marriage between both of them.

3.3.2 Talaq By Mutual Consent: By whatever name were given to effect

dissolution of marriage but all have the same meaning . Under Muslim Law mutual

consent also get recognition. Mutual consent divorce are of 2 types

(i) Khula (Redemption)

(ii) Mubarat (By Mutual Agreement)

319
AIR 1972 J & K 8.

154
3.3.2.1 Khula : In Mohamedan law a marital knot can be end-up either by the

husband or his better-half through their mutual consensus or agreement between

them. If marriage is ended up by the husband with his own pact then it is called talaq

which means husband put down his right and control over his wife for an alternate

achieved after affirmation. It is adept only at once by pronouncing suitable words or

handwritten by either parties or their representatives. It is an irrevocable, but does not

possible unless repeatedly thrice, prohibit the parties for their remarriage without any

stipulation.

In Ghansi Bi v. Ghulam Dastgir320 it has been observed that Muslim marriages

cannot only dissolved through Talaq but it can also be dissolved on an agreed

terms made between the parties.

In Shahnaz Bano v. Babbu Khan 321 it has been laid down that if divorce

proceeded through Khulanama and wife was not able to maintain herself then she

is entitled to claim maintenance from her husband.

3.3.2.2 Mubarat : It is an another form of divorce which dissolve a contractual

marriage between Husband and wife. It indicates a common liberate from the

claims of marriage. Mubarat is a common liberate which leave both the parties

from marriage claim upon each other, whereas in Khula the proposal to

revocation of marriage can be placed by either party and other party can give

acceptance on it. It has been submits that on the ground of common authority the

application of either term, includes the freedom of wife by her Mehar, leaving

him remain liable for her perpetuation for „Iddat‟ or for the perpetuation of her

320
(1985) Mah LJ 853
321
(1987) Mah L J 582

155
 Children and includes the daily payment for the child suckling, if needed. Fatwa-

I-Alamgiri as performed by Baillie declares that Khula and Mubarat both induce

each and every right to fall or fail which parties have depend on their marriage

and then it indicates release of dower and other debts.

Mulla says that when the dissolution of marriage is mutual and both parties have

desire of a separation such condition is called “Mubarat”. The proposal for

dissolution can be initiate from either side but once the proposal accepted,

separation of marriage is complete and perform as a „Talaq-I-Bain‟ same as in the

situation of Khula.

In Jani v. Muhammad Khan 322 it‟s laid down in this case that „Mubarat‟

indicates a common release where both parties wishes to separate. Therefore, it

includes consent of both parties.

3.3.3 Wife Right of Divorce:

Apart from the wishes of Muslim male, a Muslim wife can also claims

dissolution of marriage323 as a right under Muslim law under these conditions:

(i) Husband was not known for four years

(ii) Fail to maintain or negligent

(iii) Punished with Imprisonment for 7 years

(iv) Not perform marital duties

(v) Impotency

(vi) Insanity, Leprosy, venereal disease

(vii) Option of Puberty

(viii) Cruelty

322
AIR 1970 J & K 154.
323
Under section 2 (i) to 2 (ix) of Dissolution of Muslim Marriage Act 1939.

156
 (ix) Renunciation or abandonment of Islam

In Zahida Begum v. Mushtaque Ahmed 324 the opponent was not capable to

perform his martial relations and marriage was not accomplished due to his

incapability. The court directed the petitioner for celibacy check by the female

doctor. The question is whether such order of the court is not a violation of right

to privacy

In Sharda v. Dharm Pal325 Supreme court laid down that right laid down under

Article 21 of Indian Constitution is not an absolute right. Therefore with

precautionary measures court can exercise its power when court has sufficient

means to do so.

In the ground of cruelty court said in M. Begum v. M.K.R Khan326 that it has

adequate reason for dissolution of marriage. when cruelty done by husband with

the self-explanatory instance given in the Act.

Similarly in the case of Smt. Nafeesa v. Nishath 327 husband usually commits

physical cruelty with his wife due to which she left her matrimonial house in the

condition of 5 month pregnancy. The conduct of husband towards his wife shows

his negligence as well as cruelty. Thus dissolution of marriage is granted.

324
(2006) D.M.C. 110
325
I (2003) S.L.T. 1
326
A.I.R 2006 Raj. 31.
327
A.I.R. 2004 Ker. 22.

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 3.4 Christian Law on Divorce:

As we know, the Christian marriages and divorce were govern from two different

Acts; Indian Christian marriage Act 1872 for marriage and Divorce Act 1869

(formerly known as Indian Divorce Act 1869). These Acts were claim operation

on only single parties i.e. Christian, follower of Christianity faith.

Indian law makers has changed other personal laws as per the need of society

but still this Act was remain untouched. In 1968, however the Highest Court of

India suggests various relevant changes in the Indian Divorce Act.

In T. M. Bashiam v. M. Victor328 Madras High Court alarmed the legislature and

social protectors and thinkers of Christianity that Indian courts had act and gave

relief as per law of England.329The doctrines followed by the English court based

as per their regular amendments, were not possible and applicable in India.

Sometimes this gives a rewarding situation. In R. Hemalatha v.

Satyanandam330 A divorce petition was filed by a Christian wife on the ground

of anti-desertion and cruelty. Although all the other Acts were incorporated with

these grounds but not in Indian Divorce Act. Therefore, the High Court pointed

out and said that these grounds were applicable only for judicial separation, not

for Divorce.

In Elveena v. Gopal 331 a Christian wife acquired a decree of divorce on

adultery. Then court simply grant the decree without any discussion on Sec-10

328
AIR 1970 Mad 12.
329
U/S-7 of Matrimonial causes Act 1857.
330
AIR 1979 AP 1.
331
AIR 1979 P&H 4.

158
 of Indian Divorce Act which works as a weapon of husband against his wife in

case of dissolution of marriage.

After the Amendment Act of 2001, the title of Indian Divorce Act has been

changed to Divorce Act along with the following changes:

3.4.1 Grounds for Husband: Following are the grounds available to husband

for Divorce under Indian Divorce Act 2001. If after the performance of

marriage, wife has been a guilty of adultery then apart for discontinuance of

marriage, husband can demand compensation from adulterer. 332 husband may

also claim compensation or damages in the case of judicial segregation

proceedings or individually.

3.4.2 Grounds for wife:333

(i) Conversion of husband into some other religious faith and performed a

marriage with other female.

(ii) If husband commits:

(a) Incestuous Adultery

(b) Bigamy and Adultery

(c) Marriage with another woman with adultery

(d) Rape, sodomy, bestiality

(e) Adultery coupled with such cruelty as without adultery would have

entitled the wife to a divorce a mensa et thoro (from bed and board).

(f) Adultery coupled with desertion without reasonable excuse for two

years or upwards

332
Section 34 of Indian Divorce Act 1869.
333
Section 10 of Indian Divorce Act 1869

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Initially in Indian Divorce Act 1869, Divorce through Mutual Consent was not

recognized as a ground of divorce. It is a need of an hour to bring this Act as par with

other personal matrimonial Acts. Therefore an attempt was made by the Kerala high

court and present a bill as Indian Divorce (Kerala Amendment) Bill.

3.4.3 Divorce by Mutual Consent.

This provision was unknown prior to 2001 Amendment Act in which section 10 A

was inserted as a new ground for divorce by mutual consent as similar to Hindu

Marriage act section 13 B, Section 28 of Special Marriage Act 1954, and so on in

other Acts of same nature. Although this theory was consider for divorce but with a

little change in statutory period i.e. a couple has to wait for a period of 2 years.

In Reynold v. Union of India,334 the petition for divorce was filed on the ground of

mutual consent under section 7 of IDA 1869 but failed to get decree of divorce as

prior to the Amendment Act 2001 mutual consent was not a ground of divorce.

This is really a painful scenario where both parties were consented to depart from

each other but due to absence of provision, they cannot take divorce.

In Ramish Francis Toppo v. Violet Francis Toppo 335 the discrimination with

Christian spouse on the base of religion was done by the court.

In Anil Kumar v. Union of India336 the wife was discriminate for taking divorce

under Indian Divorce Act.

334
AIR 1982 SC 1261.
335
AIR 1989 Cal 1
336
1994 (5) SCC 704

160
In Best Morning v. Nirmalendu337 High court observed that concealment of facts by

husband about his incapability for not producing child was amounts fraud in

marriage and wife has a right to dissolve the marriage on this ground.

Similarly under Hindu law a decree of dissolution was awarded by the court in

favour of husband where wife intently hide about her mensuration.338

In Saumya Ann Thomas v. Union of India339 the main issue involved was whether

period of 2 years were mandatory for filing the petition of divorce under section 10A

of this Act. The court held that although the period of 1 year has been pass by and

other 6 months were passed on as a waiting period for the decree of divorce.

Therefore the decree of divorce has been granted to the parties by mutual consent.

In the case of Anita Jian v. Rajendra Jain340 Justice G.S. Saraf germane that “To

live with a man (or woman) you hate is a slavery but to be compelled to submit to

his/her embraces is a misfortune too great even for slavery itself.”

Thus the waiting period for separation a Christian couple has to wait for one year.341

The decision was made by Kerala high court U/A 226, where a PIL was filed for the

uniformity in separation period under all matrimonial laws.

In Nisha Susan George v. Alexander Vadekkam342 court dismissed there petition of

divorce on mutual consent although requirements were fulfilled by the parties

priorly. Therefore the decision of family court was consider as illegal and High court

was set aside the order.

337
AIR 1987 Gau 63.
338
Urmila Devi v. Narinder Singh, AIR 2007 HP 19.
339
II (2010) DMC 526 (Ker)
340
AIR 2010 Raj 56
341
Karnataka High Court ruled on feb 3, 2014
342
AIR 2013 Ker88

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3.5 Parsi Law:

The grounds for divorce were mentioned under section 31, 32, 32A and 32B of Parsi

marriage Act 1936 were as follows:

1. Missing for a period of 7 years in continuation and not be heard alive.

2. Willful denial by a spouse for non-resumption of marriage within 1 year.

3. The opponent was of unsound mind at marriage and still in same status upto the

time of filing a suit, provided that:

a. Petitioner was ignorant about the fact.

b. A case has been file in the 3 years of being married.

4. The opponent has been suffering from incurable form of unsound mind.

5. Wife has been pre marriage pregnant. Then husband has right to present a case

of divorce under following terms:

a. When he does not have knowledge at the time of marriage.

b. Present a suit within 2 years of marriage.

c. Non consummation of marriage after developing the facts.

6. If opponent have extra-marital relations, or having two wives at a time, or

molestation, or an abnormal offence.

7. Petitioner was treated by the opponent with cruelty.

8. Opponent caused a severe injury to the petitioner. Then petitioner has right to

bring a suit in front of court within 2 years.

9. Opponent has punished for a criminal act of punishment 7 years or more and

there is no consummation of marriage. Then petitioner can present a suit after 1

year when opponent has undergo for punishment.

10. Opponent has been deserted by the petitioner for at 2 years.

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 11. For non-resumption of martial relations in marriage after 1 year from the date of

a decree passed by the court. Then magistrate rewarded separate maintenance to

the petitioner.

12. For non-consummation of marriage for a period of 1 year or more after judicial

separation passed by the court.

13. By common assent.

14. Opponent ceased to be a Parsi.

Earlier divorce by mutual consent was not a ground of divorce under Parsi law, but

by amendment 1988 its becomes aground for divorce.

In Sharda v. Dharmpat343 the court‟s order for any medicinal inspection was not a

violation of Article 21 of Indian constitution.

In the amendment Act of 1988 section 32(bb) also inserted and provides that

petitioner can bring a suit in court for non-curable soundness of mind and it should

be in continuation after marriage.

3.5.1 Pregnancy other than husband

If a husband wants a divorce from his wife under this section 32(c) then he has to

prove:

1. At the time of marriage wife was pregnant other than her husband.

2. Husband has no knowledge about the pregnancy.

3. Husband has not develop any sexual relations with wife after having

knowledge of her pregnancy.

4. That husband has present a suit before court in the 2 years of marriage.

3.5.1.1 Adultery It means voluntarily sexual intercourse other than husband or wife

with other person either male or female. As per section 32(d) of the Act, 344 the

343
(2003) 4 SCC 493.

163
petition for divorce cannot be present jn the court after the completion of two years

after came to the knowledge of either spouse against his/ her husband/wife

adulterous act.

3.5.1.2 Fornication It is an illegal sexual intercourse other than better-half, happen

between wedded man and non- wedded woman or between wedded woman and non-

wedded man. This act of fornication is considered a ground of divorce.

3.5.1.3 Bigamy It is an act committed by man or woman against his/her spouse.

When having living spouse marries with other woman or man. This is consider a

ground of divorce.

3.5.1.4 Rape It is defined under section 375 of Indian Penal code and has the same

meaning under this Act. The wife has a right to take a divorce on this ground.

3.5.1.5 Unnatural offence It is defined under section 377 of Indian Penal Code. The

meaning of this act consist an abnormal sexual intercourse with any human being or

animal.

3.5.1.6 Cruelty The act of cruelty was inserted as a ground of divorce U/S-32(dd) by

the Amendment Act of 1988. Here the word cruelty was considered as legal cruelty.

In Nusserwanji v. Shehra Cowasji Patuk345 the cruelty was taken in its legal sense

include not compulsory bodily assault either done by husband or wife. It includes

crude behavior done by man or woman with his wife or her husband and Children.

The important point was that whether is it possible to live with him/ her in normal

344
Parsi Marriage and Divorce Act 1936.
345
AIR 1938 Bom 81.

164
prudence or compelling each other to live with them. The nature and behavior they

pursue during their married life was also to be considered.346

In Parveen Mehta v. Inderjit Mehta 347 mental cruelty is a condition of mind in

which an obstruction has been caused either by the acts, conduct and situation of the

case. An individual who is in normal state if being dispossessed of normal sexual life

by the better-half and the spouse suffer pain, disappointment and annoyance of this

act, said to be suffered from mental cruelty. Frequently causing humiliation infront

of public or at public place can also amounts to mental cruelty.

3.5.1.7 Grievous Hurt In Patuck v. Patuck 348 Bombay High Court held that

“Grievous Hurt” has been defined under section 2 (4) of the Act, is the one which

considered for the ground of Divorce. Therefore to put in use the English law of

cruelty towards Parsis, provisions under the Act, must never be neglected.

3.5.1.8 Venereal Disease When the petitioner has infected by the opponent through

STD (Sexually Transmitted Disease), then petitioner has right to present a petition

for divorce. The very moment petitioner get knowledge, he /she immediately apply

for the divorce.

3.5.1.9 Prostitution Wife can asked for divorce where her husband forced her to

enter into forcible sexual trade. This relief is available to wife as per section 32(e).

under this section petitioner can present a suit before the court in the time span of 2

years from the last act of such forcible sexual trade.

346
Under section 43 of Parsi Marriage Act 1936.
347
(2002) 5 SCC 706.
348
AIR 1938 Bom 81.

165
3.5.1.10 Imprisonment When either spouse is punished with imprisonment for 7

years or more then the life of other mate becomes aberrant. In such condition if a

spouse wants to break their matrimonial knot with the prisoner then he/ she can file a

suit of divorce in the court. Provided that the opponent has undergone for

punishment of atleast 1 year.

3.5.2 Desertion In Khorshed Mancherji Kapadia v. Muncherji Sorabji Kapadia349

for proving desertion it is compulsory for the petitioner to provide evidence or proof

that he/she has been deserted without any fault or any justifiable reason and not taken

his/her consent. The period of desertion has been for 2 years in continuation.

In Kaikhuhroo Tantra v. Meherbai Tantra350 where the opponent has restrained in

mental asylum then such time of span is not be considered for computing desertion.

In Dina Dinshaw v. Dinshaw Ardeshir 351 the question arises for constructive

desertion that whether it is decided by the conclusion made upon the facts. Thus the

judgement based on facts make parties liable for its disposition.

Meher Rohinton Moos v. Rohinton Framroze Moos.352 In this case court laid down

that only withdrawal from matrimonial house does not comply desertion itself. It

depends on the conduct of parties through which consummation of marriage ends.

Decree for divorce under this ground can be moved by either party.

3.5.3 Order for Separate Maintenance U/S-32(h) when an order has been moved

by the court U/S-125 of Cr.P.C. for awarding maintenance to the petitioner from the

349
30 Bom LR 1141.
350
AIR 1946 Bom 211
351
AIR 1970 Bom 341.
352
79 Bom LR 131.

166
date of such order when there is no matrimonial physical relations between them for

a period of 1 year or more, then petitioner can a bring a suit for divorce.

3.5.4 Ceased to be a Parsi

In Dhunbai Palkhiwala v. Sorabji Palkhiwala 353 for obtaining relief under this

section354 either spouse has to prove that his/her spouse quit from the Parsi faith or

religion. The suit has to present before the court within 2 years when the petitioner

came to knew about the fact. A mere suspect by the petitioner on the opponent will

not be enough or adequate to prove such ground.

Every case which comes in court for divorce should not be measured in terms of

losing or wining the lawsuit but as a communal curative problem. It never be viewed

as a lawsuit in which parties and their attorneys are only interest is to win or lose the

suit but not want a solution to this social cause. The solution of family disputes needs

a very special process of help those people who are in trouble and integrate their

disputes. Thus the procedure followed by the court would need to be change from

traditional court system. The part of the judiciary in the arrangement of divorce cases

has a great role and its always expect from the courts that they would deal in such

cases with a realistic manner.

The courts arbitrating in family matters should act in such a way that it tries to save

the relations, not to break them. It may not be for destruction of matrimonial tie, that

it provide help to the spouse and their young ones. The nature of the decision should

be more reformative rather than punitive of matrimonial knot. There is no doubt that

353
AIR 1938 Bom 68.
354
Section 32 (j) of Parsi marriage and Divorce Act 1936.

167
is a duty of the court to make efforts till last minute to protect and save the marriage.

In this reference it is rightly to quote the verdict of Supreme Court355 as cited below

“It has to be kept in mind that relationship between spouse is a matter concerning

human life. Human life does not run on dotted lines or charted course laid down by

the statute. It has also to be kept in mind that before granting the prayer to petitioner

to permanently snap the relationship between the parties to the marriage, every

attempt should be made to maintain the sanctity of the relationship which is of

importance not only for the individuals or their children but also for the society.”

355
Hirachand Srinivas v. Sunanda, AIR 2001 SC 1285

168