DIVORCE

Grounds of Divorce
■ s.13(1)(i) - Adultery

■ s.13(1)(ia) - Cruelty

■ s.13(1)(ib) - Desertion

■ s.13(1)(ii) - Conversion

■ s.13(1)(iii) - Insanity

■ s.13(1)(v) - Venereal Disease

■ s.13(1)(vi) - Renunciation 
■ s.13(1A) - No resumption after decree of Judicial Separation or
Restitution of Conjugal Rights 
■ s.13(2) - Divorce at the instance of wife
■ s.13A - Alternative relief in divorce proceedings
■ s.13B - Divorce by mutual consent 

■ s.23 - Decree in proceedings 

(A) Fault Theory/Offence Theory/
Guilt Theory):
■ A divorce is regarded as mode of punishing the guilty party who had
rendered himself or herself unworthy of consortium.
■ A marriage can be dissolved only if one of the spouses has committed
some matrimonial offence, which is recognised as a ground for divorce.
■ English Law: Doctrine of recrimination- If both the parties independent of
each other, have committed matrimonial offences i.e. both parties were
guilty, the marriage should not be dissolved.
■ Doctrine of recrimination is not applicable in India
■ Guilt: Cruelty (ia), desertion (ib), adultery (i) under [s.13(1)]
■ Fault: Insanity [s.13(1)(iii)]
(B) Consent Theory:

■ Parties to marriage are as free to dissolve a marriage as

they are to enter into it.
■ The very basis of marriage is mutual fidelity and if for
any other reason the parties feel that mutual fidelity
cannot continue, they should have freedom to dissolve
the marriage.
■ Divorce by mutual consent [s.13(B)]
 (C) Irretrievable Breakdown Theory:

■ Such failure in the matrimonial relationship or such circumstances

adverse to that relation that no reasonable probability remains for the
spouses again living together as husband and wife.
■ If a marriage has broken down beyond all possibilities of repair, then it
should be brought to an end, without looking into the causes of the
breakdown and without fixing any responsibility on either party.
■ Saroj Rani v. Sudarshan Kumar
■ 71st Report of Law Commission of India.
■ s.13(1-A)
s.13(1)(i): Adultery

■ Even a single act of adultery is sufficient and there is no need to show that
respondent is living in adultery, which was required prior to 1976 Amendment.
■ Circumstantial evidence is all that can normally be expected in proof of
charge. Circumstances must be such as would lead the guarded judgement of a
reasonable and just man to the conclusion.
■ It is not important to prove adultery in time and place. Nor is it absolutely on
the petitioner to prove the identity of the person with whom the alleged act of
adultery took place.
■ Mere suspicion is not enough to avail of a remedy under s.13(1)(i)
■ A spouse is not guilty of adultery if the act is not voluntary and committed
under intoxication or unconsciousness or by force/ fraud.
■ Long period of gestation (carrying of young in the uterus) and non-access: An evidence of adultery.
■ The mere pre mature birth of a child is not per se a ground of adultery. The court will examine the
evidence with a lynx eye.
■ Blood Test and Doctor’s report: In a case based on non-access or period of gestation, the court
cannot compel any party to submit a blood test. However, if a party voluntarily tenders such
evidence, it would be duly taken into consideration.
■ Confession of Adultery: Confessions or admissions of adultery are admissible in connection with
other relevant evidence on a charge of adultery, but must be corroborated by independent evidence.
■ Burden of Proof: There is always the presumption of innocence and it is for the petitioner to prove
the allegations relied upon. The respondent bears the burden of establishing affirmative defence set
up in reply.
■ Condonation of Adultery: Section 23 (1) (b) lays down that condonation is an absolute bar to
granting of any relief under Section 10 or under Section 13(1)(i).
Cruelty [s.13(1)(ia)]

■ RUSSELL v. RUSSELL: Conduct of such character as to have caused danger to life, limb
or heath (bodily or mental), or as to give rise to a reasonable apprehension of such danger.
■ Mental Cruelty: When the whole conduct of the spouse shows instances of ill treatment,
use of abusive language and allegations which amount to casting aspersions on the fidelity
of the other spouse and in general have the effect of demoralising the spouse; against
whom the allegations are levelled causing mental stress and agony, mental cruelty would
be proved.
■ Cruelty may be inferred from the whole facts and matrimonial relations of the parties and
interaction in the daily life disclosed by the evidence.
■ In several, cruelty in its character a cumulative charge. The conduct may consist of a
number of acts each of which is serious in itself, but it may well be even more effective it
consists of long continued series of minor acts, no one of which could be regarded as
serious if taken in isolation.
■ Intention: Actual intention on the part of one spouse to injure the other is not an essential factor.
■ While there is no such requirement that intention to hurt must be shown, much must depend on the
nature of his or her conduct and on the character and physical or mental condition and weakness of the
spouses.
■ The treatment, complained of must, in the ultimate test, be such as to cause a reasonable apprehension in
the mind of the complaining spouse that is will be harmful or injurious for him or her to live with the
other spouse.
■ Instances of Cruelty:
1) False accusations of adultery or unchastity
2) Dowry demands
3) Excessive drunkenness
4) Threat to commit suicide with a view to coercing the other to do something.
5) Refusal to have children: Parenthood is a normal natural desire of every human being. A spouse who
deprives the other of his pleasure and desire would be causing great mental agony to that other spouse.
■ Exception: Fear of pain and risk of child birth. Though very unnatural
and unfortunate but it is not cruelty unless she has also an intention to
inflict misery on her husband.
■ Instances not amounting to cruelty:
1) Ordinary wear and tear of married life.
2) Wife’s refusal to resign her job quarrelling with mother-in-law.
3) Non- payment of interim maintenance.
■ Defences to cruelty:
1) Provocation or self-defence may be pleaded in justification or any way of excuse for
the act or conduct complained of on the ground of cruelty.
The provocation, must, however be extreme and cruelty wholly disproportionate to the
provocation would not be treated as excusable.
2) Insanity: Diversity in Judicial opinion-
I View- It would be a contradiction in terms to describe as cruel the conduct of a person
who did not know what he was doing. The word ‘cruel’ carries with it implications of
guilt which can no more be imputed to such a person than to a sleep-walker.
II View- In petitions based on cruelty by the husband the duty of the court to interfere is
intended, not to punish the husband for the past but to protect the wife for the future.
3) Schizophrenia: Serious disease- It would be unreal to strain the meaning of the word cruelty to comprehend
what can only be described as the schizophrenic isolation, passivity and stillness of the wife and the impact of
those manifestations on the health of husband.
Similar are situations where one of the spouses is struck down by physical damages such as disseminated
sclerosis, cerebral thrombosis or other illness that for years encumber all communications or active cooperation
in the home. These situations engulf both spouses in personal tragedy. No court would characterize such
sufferings as cruelty.

4) Condonation: Condonation by one spouse of the cruel acts of other spouse is a good defence to cruelty.
■ [s.23 (1b)]
■ Requirement: (i) Forgiveness
(ii) Restoration to the same position as it was before committing the offence.
■ [Standard of Proof]: The offence charged must be established on a pre-ponderance of probability and must be
clear and satisfactory i.e. it must be corroborated. The concept of proof beyond a shadow of doubt can only be
applied to penal trails and not in cases of delicate human relationships such as marriage.
N. G. DASTANE v. S. DASTANE
(1975)
FACTS:
■ Both wife and husband had high academic qualification.
i. Appellant: Assistant Professor, MSc (Agriculture), Doctorate from Australia.
ii. Respondent: MA (Social Work) and B.Sc. from DU.
■ Age gap of 6 -7 years between the spouses.
■ Father of the Respondent told to the father of the appellant before marriage that she had
a bad attack of sunstroke which affected her mental capacity and was treated at
Yeravada Mental Hospital but was cured.
■ They had three daughters
■ I daughter -1957, II Daughter -1959, III Daughter -1961
■ Contentions of Husband (Appellant):
- In 1961, the wife was examined by Dr. Seth, a psychiatrist which was opposed by her.
- Letter by close relative of wife that:
a. Father in law should be slapped
b. Respondent should beat the appellant with footwear in public
Appellant therefore asked for:
i. Annulment on the ground of fraud – s.12(1)(c)
ii. Divorce - unsoundness of mind
iii. Judicial Separation - Cruelty
iv. Asked for police protection
■ Contentions of Respondent:
Husband was building a false case that she was of unsound mind.
Special instructions given by the husband that:
i. On rising up in the morning to look in the mirror
ii. Not to fill milk vessel or tea cup to the brim
iii. Not to do any work with one hand.
iv. Not to talk much
v. As far as possible not to dip the fingers in any utensils
vi. Not to serve meals in brass plates, cups and vessels.
vii. Not to make exaggerations in letters.
viii. To show imagination in every work.
■ Trial Court : Judicial Separation on ground of cruelty.
■ High court : Overruled and reversed the decree of TC.
■ Supreme Court :
Legal issue :
1. Standard of proof?
2. Were there such acts cumulatively count as cruelty?
3. Whether condonation?
■ Observations :
1. Proof should be such kind as satisfied on preponderance of probability -
more probable and rational view of the case
2. The behaviour of the Respondent should be such that amounted to cruelty.
■ Tolstoy's definition of cruelty -danger to life, limb or health or
apprehension
■ Reasonable apprehension that it is harmful or injurious for one spouse to
live with the other.
3. The conduct of the respondent clearly amounts to cruelty.
4. The cruelty was condoned because the third child was born during the
filing of petition and that is possible only when they were cohabiting. (23)
(1)(b)
5. Contentions of Respondent were after thought and husband was not taking
advantage of his wrong (23)(1)(a).
6. Acts did not amount to grave cruelty so as to be taken as ground for
granting decree of divorce.

■ Decision: Appeal dismissed.

Samar Ghosh v. Jaya Ghosh
(2007)
Facts : 22 years of matrimonial bond shattered. Both IAS.
Contentions of appellant:
He suffered from prolonged illness and had to undergo bypass surgery.
Wife's behaviour was inhuman.
Went to visit brother in Bariely when no one was there to look after him. No visit after
returning and he felt like a stranger.
Married him so that the first husband could not appeal against the decree of divorce and
custody of the female child.
She declared that she won't give birth to child for two years.
Wife scolded him in front of father in law and after he left, scolded the domestic servant.
She isolated him and also left the house.
■ Trial Court :- Respondent refused to cohabit and have child. She
cooked only for herself. These do not amount to cruelty.
■ High Court :- Wife has high standard of living and the appellant has
failed to give exact date when the Respondent refused to give birth to
child. There was condonation as they started living together.
■ Supreme Court :-
Legal Issues:
1) Were there are such acts that count as cruelty cumulatively?
2) Whether condonation?
3) Is there any scope left in the marriage?
■ Observation:
Normal human emotions are same for everyone even for an IAS officer.
Cooking is not a question but she did so only for herself.
During illness, since they were in a nuclear family, mutual support is
required.
Refuse to cohabit has been proved beyond doubt.
Analysed the meaning of cruelty:
■ A. American Jurisprudence
Cruelty - such a behaviour wherein there is humiliation, embarrassment and
anguish such that the other spouse's life becomes unbearable or miserable.
■ B. English Cases:
1. Russel v. Russel - danger to life, limb, mental or physical health.
2.Simpson v Simpson - Conduct which amounts to ill treatment and has effect on the spouse.
3. Fleck v Fleck -
Components of Mental cruelty
a. A course of abusive and humiliating treatment
b. Calculative or obviously of a nature to torture, discommode or render miserable the life of
the other Spouse .
c. Actually affecting mental and physical health of the spouse.

■ C. Indian Cases:
Shobha Rani case :- cruelty can be intentional or unintentional, physical or mental which
affects the complaining spouse. It depends on facts and circumstances.
■ D. Canadian Cases
1. Chouinard v Chouinard - There is no straight jacket formula and depends
on facts and circumstances.

■ E. Australian Cases
1. Dunkley v Dunkley and 2. La Rovere v. La Rovere – conduct of such a
character as to have caused injury or danger to life, limb or health (bodily or
mental), or as to give rise to a reasonable apprehension of such danger.
Comprises of 2 distinct elements: i. the ill-treatment complained of. ii. The
resultant danger or the apprehension thereof.
■ 71st Law commission Report - 7 April 1978
Inclusion of Divorce based on breakdown of marriage
Marriage to subsist both as de facto and de jure. Otherwise not only useless but also
mischievous. The very purpose of marriage is otherwise frustrated.
■ Naveen Kohli v. Neelu Kohli (2006):
If nothing is left in marriage then what is the benefit of legal tie ? Life is small so if
anything hampers the well being, why should it continue? What is the point of forcing to
live together?
Where there has been a long period of continuous separation. It may fairly be concluded
that the matrimonial bond is beyond repair.
■ Praveen Mehta v Inderjit Mehta (2002):
Mental cruelty is when the behaviour of one spouse troubles the behaviour of the other.
Cumulative effects of facts and circumstances to be looked at.
Conclusion :- No straight jacket formula. There are cumulative
acts of cruelty which have affected the appellant and even after
22years, the condition has not improved.

■ Decision - Appeal admitted and divorce decree granted.

Desertion: [s.13(1)(ib)]
■ Essential Ingredients:
(i) the factum of separation – the fact that there should be some kind of abandonment
(ii) the intention to bring cohabitation permanently to an end- animus deserdendi
(iii) the element of permanence which is prime condition requires that both these essential
ingredients should continue during the entire statutory period
(iv) desertion should be without any reasonable cause
(v) desertion should be without the consent of other party
(vi) the statutory period of two years must have run out before a petition is presented.
- Ordinary separation is not a ground of desertion.
- No desertion while the parties are living together and continuing cohabitation.
- Exception: There may be desertion, although husband and wife are living in the same
dwelling, if there is such a forsaking and abandonment by one spouse of the other that the
court can say that the spouses had ceased to be one household and had become two
separate households.
A) ACTUAL DESERTION: It is necessary that respondent must have
forsaken or abandoned the matrimonial home, accompanied by intention to
desert. Initial intention is not required, intention can be formed later.
B) CONSTRUCTIVE DESERTION: It is not withdrawal from a place but
from a state of things i.e. from cohabitation.
The rule is now well-established that a spouse may be guilty of such
misconduct or would render the continuance of marital relations so
unbearable that the other souse feels compelled to leave the matrimonial
home and in such a case it is the former and not the latter, who is the
deserter.
There must be proof of both the essential ingredients of factum and animus
deserdendi on the part of offending spouse. There is nothing left in the
parties’ relationship except their being under the same roof.
■ Wilful Neglect: In the context of matrimonial law, wilful neglect would
seem to mean that the person is consciously acting in a reprehensible
manner in the discharge of his marital obligations or is consciously failing
in the discharge of those obligations and connotes the degree of neglect
which is shown by an abstention from an obvious duty, attended by a
knowledge of the likely results of the abstention.
■ Breach of every tie of marriage or failure to discharge every tie of marriage
or failure to discharge every marital obligation cannot be regarded as wilful
neglect. Failure to provide maintenance may also amount to wilful neglect.
C) MUTUAL DESERTION: In England [Price v. Price (1986)] it was held
that the court may grant simultaneous decree on the ground of mutual
desertion.
■ In India, at present, such mutual desertion is not a ground for divorce.
■ Good cause for separation: It is well established principle that a spouse who withdraws from
cohabitation for what is described as good cause or a just cause or an effective cause such as
adultery or cruelty, cannot be said to be guilty of desertion, for in such a case, it is the conduct of the
offending spouse which is the cause of separation and the spouse who leaves the matrimonial home
cannot be said to have acted from any animus deserdendi.
■ Termination of desertion: Desertion is a continuing offence. Once desertion begins, it continues day
after day till it is brought to an end by the act or conduct of deserting party.
■ It is inchoate (incomplete) and becomes complete only when the deserted spouse files petition for
matrimonial relief. 
■ Termination of Desertion:
(1) It may be terminated at any time, by resumption of cohabitation, because a resumption of
cohabitation is the exact negation of a state of desertion. There must be common or mutual intention of
the parties to resume cohabitation in circumstances showing that a true reconciliation has been affected.
■ Sexual intercourse would beyond doubt be the most important incident in the marital relationship
and very cogent evidence of the intention of the parties to effect reconciliation and resume
cohabitation.
(2) Desertion may also be terminated by a supervening animus revertendi expressed by a
genuine offer to return to the deserted spouse or in case of constructive desertion by a
bonafide attempt to get back the aggrieved spouse.
If a deserting spouse takes advantage of the locus poenitentiae (opportunity to withdraw
from a contract or obligation before it is completed or to decide not to commit an intended
crime) provided by law and goes back to the deserted spouse by a bonafide offer of
resuming the matrimonial home with all the implications of marital life before the statutory
period is out or even thereafter, before any proceedings for relief have been commenced,
desertion comes to an end and if the deserted spouse unreasonably refuse the offer, the
entire position would become different and the latter, instead of the former, would become
the deserter. [Bipin Chander V. Prabhawati, AIR 1957 SC 176]
(3) A deserting spouse may at any time before the initiation of proceedings by the other
spouse bring the desertion to an end by sufficient ‘offer of reconciliation’. It must be an
offer to return and must involve readiness and willingness to resume cohabitation in the
ordinary sense of the word.
The offer must be genuine offer made in good faith and not merely to lay a foundation for
an intended petition or to forestall or defeat any proceedings by the injured spouse. The
offer must be conciliatory and not hedged in with any unreasonable qualification or
condition.
Desertion and doctrine of Condonation: Doctrine inappropriate and
inapplicable to the offence of desertion.
Condonation involves: (i) an election by the injured spouse to affirm the
marriage notwithstanding the condoned offence.
(ii) Restoration
(iii) the possibility of revival of the condoned offence by any further
matrimonial offence on the part of the guilty spouse.
In desertion there is no question of election on the part of deserted spouse to
affirm or disaffirm it.
Bipin Chandra Jaisingh Bhai Shah v.
Prabhavati (1957)
■ Facts :
The couple lived in a joint family in a two room flat. They had a child out of
the wedlock. Mahendra, a family friend, after retiring from Army also started
living there. The appellant went to England for business.
■ Contentions of Appellant:
The wife became intimate with Mahendra.
Wife packed her luggage and went to parents home for a marriage.
He offered to send her a cab + ₹100 but she denied and never came back.
She had taken everything.
There were no letters or reply to letters.
■ Contentions of Respondent:
There was a telegram wishing happy New Year and telling not to send Prabhavati back.
She denied intimacy and said that the husband had made her life miserable.
Her uncle and his son attempted to reconcile but failed so did the negotiations between the
mothers of the appellant and Respondent.
She, in her written statement told that she was always ready and willing to come back.
The husband wilfully refused to keep her.
She lived with her mother in law four years in the matrimonial home and frequently visited it.
■ The Learned Trial judge granted divorce decree but the appellant bench reversed.

■ Legal Issue: Whether the husband can be granted the decree of divorce?
■ Observations :-
1. Rayden on Desertion - Only change of place not the test.
2. Halsbury's Law of England- Desertion is total repudiation of matrimonial obligations.
3. Desertion Ingredients: Factum of separation, animus deserdendi, permanence of first
two elements, without reasonable excuse, continuous for 2 years.
None of this was found.
4. There was no corroborating evidence. Intention was not clear on the part of wife.
5.There was constructive desertion on the part of Husband towards wife.

■ Decision: Appeal dismissed.

 Apostasy or Conversion [s.13 (1) (ii)]

■ Conversion should be in accordance with rites and ceremonies or

formalities laid down by that religion to which conversion is sought.
■ Apostate - a person who renounces a religious belief or principle.
■ The conversion of respondent to a non-Hindu faith does not amount to
automatic dissolution of marriage, because a Hindu marriage, being a
‘Sanskara’ is not dissolved by conversion to any other faith.
■ The petitioner has to file a petition to obtain a decree of divorce and
cannot be filed by the converted spouse, as it would amount to taking
advantage of one’s own wrong.
■ If a spouse, after conversion, remarries, without obtaining a decree of
divorce, he/she will be liable for bigamy.
13 (1) (iii) Insanity:
■ The practical test of degree of unsound mind- The person incapable of
managing himself and his affairs including the problem of society and of
married life but without reference to the cause of such incapacity.
■ The onus of proving unsoundness of mind, as also that it is incurable is
on the petitioner.
■ The court insists on the test of legal insanity being satisfied by cogent
and clear evidence to the effect that the respondent is unable to
understand the nature and consequences of his acts and is such as cannot
be regarded as responsible for his acts in the eyes of law.
Venereal Disease [s.13(1)(v)]
■ Venereal disease: any disease caught by having sex with a
person who has it.
■ ‘In a communicable form’ means, a communicable to both
either spouse or to children.
■ Venereal disease, sometimes, taken as evidence of adultery.
■ Necessary to show that the disease is in a communicable form
and it is not necessary that it should have been communicated
to the petitioner.
Renunciation [s.13(1)(vi)]:
■ 2 conditions:
(a) the respondent must have renounced the world.
(b) he must have entered some religious order e.g. Sanyasi
Under Hindu law, where a person enters into a religious order renouncing all
worldly affairs, his action is tantamount to civil death.
■ A person must have performed the requisite ceremonies and formalities of
the particular religious order, e.g. A person who wants to renounce the
world by becoming a sanyasi can be held to have entered that order only if
he has performed necessary rites and ceremonies prescribed by Shastras.
■ Renunciation must be unequivocal and absolute.
Presumption of Death [s.13(1)(vii)]:

■ Presumption not sufficient for remarriage, the dissolution of 1st

marriage necessary.
■ As per s.108, Indian Evidence Act 1872: Burden of proving
that person is alive who has not been heard of for 7 years is on
the person who affirms it.
Irretrievable breakdown of marriage
[s.13(1A)]:
■ 71st Report of Law Commission of India-
(a) Submitted to the govt. on 7th April, 1978
(b) The germ of the breakdown theory, so far as Commonwealth countries
are considered, may be found in legislative and judicial development.
(c) The New Zealand Divorce and Matrimonial Causes Amendment Act
1920, Included for the first time the provision that a separation agreement
for 3 or more years was a ground for making a petition to the court for
divorce with the court’s discretion. [Lodder v. Lodder, 1921]
(d) Once the marriage has broken down beyond repair, it would be
unrealistic for the law not to take notice of that fact and it would be harmful
to society and injurious to the interests of the parties.
(e) Public Interest demands not only that the married status should, as far as
possible, and whenever possible, be maintained, but where a marriage has been
wrecked beyond the hope of salvage, public interest lies in the recognition of that
fact.
(f) Since there is no acceptable way in which a spouse can be compelled to
resume life with the consort, nothing is gained by trying to keep the parties tied
for ever to a marriage that in fact has ceased to exist.
(g) Human life has a short span and situations causing misery cannot be allowed
to continue indefinitely, halt has to be called at some stage.
(h) Breakdown of marriage is defined as ‘such failure in the matrimonial
relationship or such circumstances adverse to that relation that no reasonable
probability remains for the spouses again living together as husband and wife.’
Dharmendra Kumar v Usha Kumar
(1977)
■ Facts:
Wife asked for a decree of RoCR. It was granted but despite passing of two years, no
cohabitation. Asked for decree of divorce which was granted.
Husband has appealed against the decree of Divorce.
Appellant’s Contentions:
No compliance to decree under s.9 by the wife.
He made attempts to comply. He wrote her letters and invited her to live with him but she did
not come.
Wife taking advantage of her own wrong.

■ Legal Issue: Is wife taking advantage of her own wrong?

■ Observation:
1. Gajna Devi v. Purshottam Giri
It was observed that s.23 was inserted prior to s.13(1A). Parliament had no intention to
make 13(1A)redundant.
If that would be the intention, it would have inserted as an exception to s.13(1A).
13(1A) was inserted to help those who are not happy in their matrimonial relationship.
2. The wrong has to be grave and weighty. Mere disinclination to reunion and not
responding to letters not a significant wrong.

■ Decision:
Decree of Divorce granted. Appeal dismissed.
T. Srinivasan v. T Varalakshmi
(1990)
■ Facts:
The Respondent wife filed suit for separate maintenance against the appellant.
The husband applied for ROCR but no cohabitation.
Thereafter, the husband filed for divorce.

Appellant’s Contentions:
Wife left his home and was running a nursery school so no maintenance to be paid
to her.
There was presence of a large lump on her shoulder and the father of thewife did not
tell him about it and therefore, it amounts to deception on the part of wife’s father.
Respondent’s Contentions:
Husband ill treated for insufficiency of gifts. The lump was small.
The husband deserted her and did not allow her to enter the home.
For maintenance, she resorted to s.18 of Hindu Adoptions and Maintenance Act.
She made efforts to resume the cohabitation but all the efforts went in vain.
There was no desertion on her side but constructive desertion on the part of husband.
The husband was taking advantage of his own wrong.

Trial Court: Granted decree in favour of wife.

Issue: Whether the husband is entitled to a decree of divorce under s.13(1A)

■ Observation:
Dharmendra Kumar v Usha Kumar – wrong under s.23(1)(a) must be grave and
weighty.
Misconduct was serious enough on behalf of Husband. Always demanded for gifts.
He wilfully neglected maintenance.
When guilt is such that it is not condonable, it becomes grave and this guilt makes
the offence absolute.
If divorce decree granted, the appellant will get benefit of his own wrong.

■ Decision: Appeal dismissed.

Hirachand Srinivas Managaonkar v.
Sunanda (2001)
■ Facts:
Judicial separation was given to the wife on the ground of adultery by the
husband and court directed husband to pay maintenance to his wife and daughter.
Husband did not do so and applied for divorce under 13(1A)(i) .
The appellant alleged that s.23(1)(a) does not apply to s.13(1A). Also, he has not
committed any wrong.
The wife pleaded that the adultery continued and husband taking advantage of his
own wrong. He had no intention to resume cohabitation.

■ Legal Issue: Whether the decree of divorce can be granted to the husband?
■ Observation:
- It is the duty of court to examine case and the objective of 13(1A) is to enlarge the scope of
getting the decree of divorce.
- It is not to be allowed on mere proof of cohabitation. After judicial separation, each party has
to work for reconciliation.
- Husband has to be dutiful and wife to be devoted ( Mulla's Principles of Hindu Law)
- Dharmendra Kumar v Usha Kumar – wrong under s.23(1)(a) must be grave and weighty.
- Objective of the 1955 enactment is to maintain matrimonial relationship.
- There is no straight jacket formula.
- In the present case, there has been no effort of reconciliation on the part of the husband and he
continued the wrong of adultery.

■ Decision: Appeal Dismissed.

Pre-act polygamous marriage [s.13(2)(i)]

■ With the coming into operation of the act, monogamy has

become the rule and a bigamous marriage, if contracted after the
coming into force of the act, would be null and void as laid down
in s.11 read with s.5(i) and no question of dissolution of marriage
arises, which was void ab initio.
■ Under the present sub-section, it would be competent to the court
and even necessary and incumbent on it to consider whether
there was any unnecessary or improper delay in instituting the
proceeding as laid down in Section 23(1)(d).
■ The ground will be available if both the marriages are valid.
today, this ground is no longer of any practical importance.
Rape, Sodomy, Bestiality [s.13(2)(ii)]

■ Sodomy: Anal intercourse by a man with his wife/ another

woman or with a man.
■ Bestiality: Sex with an animal.
■ Consent of the victim or his/her age not relevant.
■ An ‘attempt’ is not covered. Also, it is not necessary to show that
the husband was prosecuted and convicted for the offence. Even
if the husband is discharged on the charges of rape, etc, wife can
sue for divorce.
■ Burden of Proof: on Wife
Non resumption of cohabitation after a decree of maintenance [s.13(2)
(iii)]

■ non resumption of cohabitation for 1 year after the passing of a

decree of maintenance
■ s.18, HAMA 1956
■ s.125, CrPC
■ No reconciliation
■ Non-cohabitation
■ 1 year
Option of puberty [s.13(2)(iv)]
■ In Hindu Law, a child marriage is neither void nor voidable, but a valid
marriage.
■ This clause provides some relief to those Hindu girls who were married
below the age of 15 years.
■ The underlying rationale is the need to ensure that the girl is not saddled
with a husband she did not choose for herself and with whom she did not
choose to remain.
■ A petition for divorce on this ground can obviously be filed after she
attains the age of 18 years. A repudiation of marriage and dissolution of
marriage is not the same thing; a minor girl can get her marriage dissolved
only after she becomes 18 years old and files a petition in the court.
s.13A. Alternate relief in divorce
proceedings
■ The discretion would be exercised on sound and established
principles considering the facts and circumstances of each
case.
■ Adultery
■ Cruelty
■ Desertion
■ Insanity
■ Venereal Disease
s.13B. Divorce by mutual consent

■ Ingredients:
(a) …. have been living separately: Not necessary that the parties must be
living in different places. But they must be living apart i.e. not living with
each other as husband and wife. The separation can be consensual or
otherwise.
(b) …. not able to live together: The averments and facts of the case may be
such that the court would be satisfied that it was impossible for the parties to
live together as husband and wife and had in fact been living separately for
the statutory period of 1 year or more. Duty of the court to find out whether
in fact cohabitation has come to an end.
(c) Lawful compromise may be recorded: After 1976 amendment, it is now
possible for the court to dissolve a marriage by agreement between the parties
although none of the grounds on which a marriage may be dissolved by a court, be
found to exist, provided that the compromise is not in any manner illegal and is in
consonance with s.23(1)(bb)
(d) Subject to the provisions of the Act: Apply to both sub-sections (1) and (2). The
provisions of Section 23 so far as they may be relevant can also apply to a petition
for dissolution of marriage by consent of parties. The court must be satisfied that
both the parties have truly and freely agreed to the dissolution of marriage.
- The court must also make every endeavour to bring about a reconciliation
between the parties required by Section 23 (2).
- Consent decree cannot be challenged per se as collusive.
■ Sub-section (2) should be read as discretionary only. It does not impose any
fetter on the powers of the appellate court to grant instant decree of divorce
since the timetable fixed in it does not apply in any case to appellate court.
The time specified in sub-section (2) can be waived, and a decree can be
granted without waiting for the prescribed period.
■ Akanksha v. Anupam Mathur (September 25, 2018) - SC waived the
cooling off period to grant divorce to a couple who agreed to part as friends.
Accordingly, the period of 6 months between first motion and second motion
is waived.
■ Amardeep Singh v. Harveen Kaur, 2017 - Cooling off period not
mandatory. 6 months waiting period under s.13(B)(2) not mandatory and can
be waived off under certain circumstances.
■ Following to be considered:
(a) The statutory period of 1 year under s.13(B)(1) of separation of parties, is
already passed over before the motion itself.
(b) All efforts of mediation/ conciliation including efforts in terms of order
XXXII A Rule 3, CPC 1908, s.23(2), Act 1955 and s.9, Family Courts Act to
reunite the parties have failed.
(c) Parties have genuinely settled their differences, like alimony, custody of
child, etc.
- The waiting period will only prolong their agony.
Surestha Devi v. Om Prakash (1991)

■ Facts:
Parties lived together for 6-9 months.
In between December 1983 to January 1985 not as husband and wife and then applied for divorce.
But then wife withdrew her consent saying that her consent was obtained under pressure and was
not allowed to meet and consult her friends and family.
Family members were not permitted to accompany her.

■ High Court: Wife cannot be allowed to unilaterally withdraw the consent as s.13B(2) satisfies
genuineness of averments.

■ Legal issue: Whether under s.13B, can consent be unilaterally withdrawn?

■ Observation:
Ingredients of s.13B:
1. Living separately for 1 year preceding the petition.
2. Not able to live together
3. No scope for reconciliation
4. Mutual agreement
23(1)(bb)- the consent for s.13B should be a free consent.
Bombay/ Delhi/ MP HC: Order 22 Rule 1,CPC, 1908: In joint suit, a part/claim cannot be
abandoned by either party
Kerala/ Punjab & Haryana/ Rajasthan HC: Can withdraw before passing
a decree.
Cooling or waiting period is to give opportunity to reconcile.
13B nowhere provides for change of mind.
Mutual consent is sine qua non i.e. an essential condition.

■ Decision: Appeal allowed.