Divorce

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 AMITY LAW SCHOOL

Presentation : Divorce (Matrimonial Remedy) Under HMA ,1955

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 INTRODUCTION
• The very purpose of marriage is to unite legally. It lays down that the
legally wedded couple must live together throughout the life sharing
pleasures and pains. However, in some cases, matrimonial disputes
takes place due to misunderstanding or indifferent attitudes between
the husband and the wife. In such cases, to provide relief to the
aggrieved spouse, certain matrimonial remedies are incorporated in the
Hindu Marriage Act,1955. Those matrimonial remedies are :

1.Restitution of Conjugal Rights.(Sec.9)

2.Judicial Separation.(Sec.10)

3.Void and Voidable Marriage(Sec.11 & 12) (Nullity and

Annulment of Marriage)

4.Divorce(Sec.13)

5.Divorce by Mutual Consent(Sec.13B)

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Divorce

Meaning: Divorce is a process by which the marriage is dissolved(i.e., comes to an end).

After dissolution of the marriage(Divorce), the parties revert to their unmarried status
and are free to marry again. Section 13 of the Hindu Marriage Act, 1955 deals with
Divorce.

*The petition for divorce can be filed by either of the parties to the marriage under any
one of the following grounds:

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Section 13(i) :- Adultery –

• Definition: Adultery may be defined as “Consensual sexual intercourse between a

married person with another (of opposite sex) other than his/her spouse during the
subsistence of the marriage.”
• After the Amendment Act of 1976, single act of adultery is sufficient.
• The burden of proof is on the part of the Petitioner.

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• According to Section 497 of IPC, it is an offence.
• Adultery can be committed by a man, not by a woman. The
sexual intercourse must have been committed with the consent
of the woman, who is the wife of another man.
• The criminal action for adultery is filed against the
man(adulterer) only, not against the woman (even as an abettor).
• In Matrimonial Law also, it is an offence. It is a ground against
adulterer only for a matrimonial relief on the ground of adultery,
the marriage must be valid and subsisting at the time of filing
the petition. Sexual intercourse with the respondent when
he/she is unconscious under the influence of drug or liquor does
not amount to adultery.

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• In Chirutha Kutty v/s. Subramanian, AIR 1987 Kerela: The wife became
pregnant despite family planning operation (Vasectomy) by the Husband. The
Court did not grant divorce in the absence of the proof that operation was
successful and there was no intercourse between them after the Vasectomy
operation by the Husband.
•

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• In Reddi v/s. Kistamma,(1969 Madras): The Madras High Court held
that the wife was guilty of adultery by observing that despite the
disruption of relation between the spouses, the wife gives birth to a
child. But, in

• In Hargovinda Soni v/s. Ram Dulari, A.I.R 1986 M.P. :- The court
observed that it was no longer required that adultery must be proved
beyond all reasonable doubts. It could be established by preponderance
of probabilities. The proof of adultery must be of such a character as
would lead a reasonable man to conclude no other inference than the
misconduct.

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Section 13(ia) :– Cruelty-

• Definition: It is very difficult to define the expression

‘Cruelty’.
• In Russel v/s. Russel(1897) – It is defined as
“Conduct of such a character as to have caused
danger to life, limb or health, bodily or mental, or as
to give rise to reasonable apprehension of such
danger.”

• The concept of cruelty varies from time to time and from society
to society depending upon socio economic conditions.
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• In Shobha Rani v/s. Madhukar Reddi [AIR 1988 SC] :- The Supreme Court
considerably enlarged the concept of cruelty and held that the demand for
dowry, which is prohibited under law, amounts to cruelty entitling the wife to
get a decree for dissolution of marriage. A new dimension has been given to
the concept of cruelty. Explanation to Section 498-A provides that any willful
conduct which is of such a nature as is likely to drive a woman to commit
suicide would constitute cruelty. Such willful conduct which is likely to cause
grave injury or danger to life, limb or health(whether mental or physical of the
woman) would also amount to cruelty. Harassment of a woman with a view to
coercing her or any person related to her to meet any unlawful demand for any
property or valuable security would also constitute cruelty.

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• In Dastane v/s. Dastane (AIR 1975 SC 1534):- In this case, the Supreme Court
examined the entire concept of legal cruelty. In the matter Husband brought a petition for
Judicial Separation on the ground of Cruelty. The wife of the petitioner used to give him a
threat that she would put an end to her life or she would set the house in fire. She also
threatened that she will make him lose his job and will get matter published in the
newspaper. She persistently abused him and insulted his parents.

The Court held that all of them were so grave a nature as to imperil the Husband’s sense
of personal safety, mental happiness, job satisfaction and reputation. Similarly, acts like
breaking of Mangalsutra, locking out the Husband when he is due to return from the
office, rubbing chilli powder on the tongue of an infant child, beating a child mercilessly
who is running in fever, switching on the light at night and sitting beside the Husband
merely to nag with him are the acts which tend to destroy the legitimate ends and objects
of matrimony.

Her frequent apologies do not reflect genuine contrition but merely device to tide over a
crisis temporarily. The court held that the conduct of the wife amounted to cruelty.
Although, a case of cruelty was established, yet the Petitioner was held to have condoned
the cruelty. He has not explained the circumstances as to how he came to lead and live a
normal sexual life with a wife of such a cruel nature.

Moreover, he was the father of three children. Therefore, the case of Judicial Separation
failed and his appeal was dismissed.

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• CLASSIFICATION OF CRUELTY :-
1) Physical Cruelty and
2) Mental Cruelty.

• Physical Cruelty :- It is an act of violence by one spouse to

another resulting in injury to body, limb or health or causing
reasonable apprehension.

• Injury to private parts also amounts to physical cruelty

(Ashok v/s. Santosh).

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 Some instances of Physical Cruelty:-
i) Repeated Beating
ii) Burning any limb of the body
iii) Stabbing
iv) Causing fracture of any organ
v) Neglect in providing food or starving
vi) Administering something that injuries health.
vii) Keeping in illegal confinement
viii) Making attempt on life.
• Mental Cruelty: Mental Cruelty can be defined as that conduct which
inflicts such mental pain and sufferings as would make it not possible
for the party to live with the other. It must be of such a nature that the
parties cannot reasonably be expected

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• to live together. It is not necessary to prove that the mental
cruelty is such as to cause injury to the health of the petitioner.
• Mental Cruelty includes use of abusive language, causing mental
agony etc.
• In N.Sreepadachandra v/s. Vasantha,(1970 Mysore):- It is a
good illustration on mental cruelty. In this case, the act of wife of
abusing and insulting the husband in public was held to be
cruelty.
• In Shobhadevi v/s. Bhima,(AIR 1976 Orissa):- Intemperate
and violent behavior by Husband due to heavy drinking was held
to be cruelty.
• In Smt. Satya v/s. Sri Ram(AIR 1983, P&H):- The Court
observed that where the Husband himself, his sister and his
parents were always crazy to have a child in the family but the
wife always dashed their hopes by resorting to termination of
pregnancy twice, this conduct of the wife amounts to mental
cruelty and the husband is well within his right to claim the
decree of divorce on that ground. 14
• Some instances of Mental Cruelty to Husband (by the wife) :-
i) Wife having undesirable relation with some other person, refusal
to discontinue such relation and also threatening the spouse to
put an end to his life.
ii) Refusal to cook for the Husband and insulting him in front of
his friends and relatives.
iii) Charge by wife and by her parents without medical evidence
that the Husband is impotent.
iv) Voluntary abortion without the consent of the Husband.
v) Birth of an illegitimate child within 7 months from the date of
marriage.
vi) Making false complaint to the superior of the Husband that he
ill-treated her which lowered the Husband in the eyes of his
employer and affecting his career and promotional opportunities.
vii) Burning the Doctoral Thesis if the Husband is lecturer.

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Some instances of Mental Cruelty to wife(by Husband) :-
i) Frequent demand for dowry.
ii) Returning home late at night to the House in a drunken condition.
iii) Imputing unchastity to the wife.
iv) False charge against wife that she is not virgin.
v) Compelling the wife to adopt the life of a prostitute.
vi) Marrying another person.
vii) Imposition of a condition by the Husband on the educated wife not to do
undertake the job.
viii) Ill-treatment of children.

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Section 13(ib)
Desertion:-
• Before the amendment of 1976, desertion was a ground for judicial
separation only. Now, it is ground for both the judicial separation
and divorce. Desertion means “leaving/abandoning the spouse by
the other spouse without reasonable cause”. The spouse who deserts
is called ‘deserting spouse’ and the other, who is deserted is called
‘deserted spouse’. Desertion is “a withdrawal not from a place, but
from a state of things”.
• To constitute desertion, the following conditions must be satisfied:
i) Factum of Separation(intention to live separately); and
ii) Intention to bring cohabitation to an end permanently.
iii) Without reasonable cause.
iv) Without consent or wish of the deserted spouse.
• The burden of proof in case of desertion is always on the
petitioner. He or she must show that it was without any reasonable
excuse and that it existed throughout the period at least two years.
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• In Geeta Jagdish Mangtani v/s. Jagdish Mangtani (AIR 2005 SC) :- The
case arose based upon a petition by the Husband on the ground of desertion by
the wife. Wife deserted the Husband on the ground that he was not having
enough income. She left matrimonial home of Mumbai and continued to stay
with her parents in Gujarat. No attempt was made by her to stay with her
Husband, clearly signifying (animus deserendi). According to Husband parties
knew the income of one another prior to the marriage but the wife chose to
adopt the course of conduct which proved desertion on her part without
reasonable cause. This amounted to the humiliation of Husband

and therefore the Divorce was granted to the Husband.

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• Without Reasonable Cause: To constitute desertion, the
separation must be without reasonable cause. The following have
been held to constitute sufficient grounds for desertion:

 Confession of adultery by the wife.

 Habitual drunkenness of wife.
 Persistence in the false charge of unnatural offence having been
committed by the Husband.
Unreasonable and persistent refusal by the wife to consummate
the marriage; and
Wife permitting indecent liberties taken by others with her.

• Without consent or wish of the deserted spouse :- If the

deserting spouse has left the matrimonial without the consent of
the deserted spouse, it amounts to desertion.

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• (Hope v/s. Hope) (1949)
To constitute such desertion there must be separation of
households, not a separation of houses. The parties thus
may be in desertion even if living under the same roof. 

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Section 13(ii)
• Conversion :-
• Conversion means “Change of religion”. It is a process by which
a person gets converted from one religion to another. Eg.: If a
Hindu took Christianity, he/she ceased to be a Hindu. It is a
good ground for the spouse to take divorce.
• Under Section 13(ii) of the Hindu Marriage Act, 1955 if the
respondent has ceased to be Hindu by conversion to another
religion, divorce may be obtained. Under the clause two
conditions must be satisfied:
• i) Respondent has ceased to be a Hindu, and
• ii ) He has converted to another religion.
CASE : LILY THOMAS v/s. U.O.I (A.I.R 2000) (SC)

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Section 13(iii)
• Insanity(Unsoundness of mind) :-
• Before 1976 Amendment, the respondent must have been
incurably of unsound mind for a period of 2 years for Judicial
separation, and 3 years for divorce preceding the date of the
petition. The 1976 Amendment changed the position. Now, the
respondent has been incurably of unsound mind or has been
suffering from mental disorder that the petitioner cannot
reasonably be expected to live with the respondent..
• In Ram Narayan v/s. Rameshwari (AIR 1989 SC) – The S.C.
held that in schizophrenic mental disorder, the Petitioner should
prove not merely the said mental disorder but should also
establish that on that account the petitioner could not reasonably
be expected to live with the respondent.
• The S.C. laid emphasis on assessment of the degree of “mental
disorder”. Merely branding a person as schizophrenic therefore
will not suffice for purpose of Section 13(1)(iii).
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Section 13(iv)-
• : Leprosy:-
• The Marriage Laws (Amendment) Act, 1976 has made leprosy a ground both
for judicial separation and divorce. No duration of leprosy is specified. Under
the clause, the petitioner is required to show that the Respondent has been
suffering from virulent and incurable leprosy. Thus, two conditions are
necessary :
It must be –
a) Virulent, and
b) Incurable.
• A mild type of Leprosy which is capable of treatment is neither a ground of
Judicial Separation nor for Divorce.
• Swarajya Laxmi v/s. Padma Rao, AIR 1974 SC:- The Husband, a medical
practitioner discovered that his wife was suffering from leprosy. The Husband
was granted the decree of divorce.

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Section 13(v) –
• Venereal Disease (STD):-
• Earlier (i.e., before the Amendment of 1976), to get the decree of
divorce on the ground of Venereal Disease, the respondent had
been suffering from it for a period of not less than 3 years. Now it
is sufficient if the respondent is suffering from the disease at the
time of filing of the petition. If it is attacked to the respondent
from the petitioner, the petitioner is not entitled to the relief.
Syphilis, Gonorrhea are mentioned as Venereal Disease under
the English Venereal Disease Act, 1917.The present section
requires that the disease must be in communicable form. The
Venereal Disease are only such diseases which are
communicable by sexual intercourse.

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Section 13 (vi)

Renunciation of world:-
• The Petitioner can seek divorce, if the respondent has renounced the world by entering
any religious order. The renunciation requires relinquishment of all property and worldly
affairs. Hindu recognizes Sanyasa Ashrama as the last of the four ashrams into which the
life of Hindu is organised. On of the ceremonies that is performed before one enters into
this ashrama is one’s own funeral rites.

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Section 13 (vii)

Presumed Death (Unheard for seven years) :-

• If the whereabouts of one spouse are unknown for a period of seven
years, the other spouse can presume his/her death and can institute a
petition for dissolution of the marriage.
• Under Section 108, Evidence Act a person is presumed to be dead if
he is not heard of as alive for seven years or more by those who would
have normally heard from him or about him had he been alive. The
burden of proving that such a person is not dead but alive lies on him
who affirms it.

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Section 13(1A)
• (i) – Non-Resumption of marriage after decree of Judicial Separation :- If the disputing
spouses do not reconcile/resume matrimonial life within one year from the date of the
decree under Section 10 (Judicial Separation), either of the spouses can file a petition
for divorce under Section 13.(Before the 1976 Amendment the period was two years).
• Gajna Devi v/s. Purushottam Giri (AIR 1977 Delhi) :- Where the wife has obtained
the decree of Judicial Separation on cruelty ground and the Husband makes a petition
for Divorce after two years of the separation on the ground that there was no
resumption of cohabitation. The Court passed the decree of Divorce.

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Section 13 (1A) (ii)

• Non-Resumption of marriage after decree of Restitution of Conjugal Rights:- If the

parties do not rejoin/resume matrimonial home within one year or upwards after
obtaining the decree for Restitution of Conjugal Rights, either of the parties can resort
to file a petition for divorce under Section 13. (Before the 1976 Amendment, only the
petitioner, who got the decree under Section 9 could file a petition, not the respondent.
• O.P. Mehta v/s. Smt. Saroj Mehta (AIR 1984 Delhi) :- The decree of restitution of
conjugal rights was passed in favor of the Husband. After 4 & ½ months, Husband
brought a petition for Divorce on the ground of adultery by wife.
• Later on after one year he brought another petition on the ground that wife didn’t
complied with the decree of the Restitution of Conjugal Rights.

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• The court held that non compliance of decree is justified and accordingly dismissed the
petition of Divorce on the ground that during the pendency of the petition for divorce
on the Ground of wife’s adultery, the wife was disabled to join her Husband and passing
of decree of Divorce in Husband’s favor would amount to Husband taking advantage of
his own wrong.(Nullus commodum capere potest de injuria-No man can take the
advantage of his own wrong.)

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GROUNDS AVAILABLE TO WIFE
ALONE:-
Section 13 (2) (i) – Bigamy :-
• Section 13(2)(i) of the Hindu Marriage Act, 1955 provides that in the case of the
marriage of the wife solemnized before the commencement of the Act, (i.e.,
before 18th May, 1955) the wife can apply for divorce on the ground that the
Husband had married again before such commencement of the Act. If the
Husband whose wife is alive,gets married again, it amounts to bigamy and is
guilty of an offence under Section 494 of IPC .

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• To file a petition on the ground of bigamy, the first and the second wife
must be alive at the time of filing the petition under Section 13 by the
first wife. The second wife cannot file a petition under Section 13, since
her marriage itself was void.
• In Gita Bai v/s. Fattoo,(AIR 1966 MP) :- In a petition under section
13(2)(i) by wife on the ground of a second marriage by Husband which
was solemnized after the commencement of the Act of 1955, the
Husband admitted the facts of second marriage and was living with
her. It was held that second marriage by the Husband was void-abinitio
under Section 11 read with Section 5(1) of the Act. Therefore, the
Petitioner is entitled to a decree of Divorce.

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Section 13(2)(ii) –
• Sexual Offences i.e., Rape, Sodomy, Bestiality :-
• A wife can file a petition under Section 13 if her Husband is guilty of
certain sexual offences viz., Rape, Sodomy, Bestiality etc. Section 13(2)
(ii) of the Hindu Marriage Act, 1955 enables the wife to obtain a decree
of Divorce where the Husband has since the solemnization of marriage
been guilty of Rape, Sodomy or Bestiality.
• The expression ‘rape’ or ‘sodomy’ have been defined in Sections 375 &
377 of the Penal Code. Section 375 defines ‘rape’ while Section 377
‘Unnatural Offences’.
 Virgo v/s. Virgo, 69 LT 460
 Bosworthick v/s. Bosworthick (1902)
 Bromley v/s. Bromley(1793)
 Naz Foundation v/s. Government of NCT, Delhi (Refer to the holding
dictated in class).

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Section 13(2)(iii)
• –Non-Resumption of Marriage after decree of maintenance :-
• Under Section 13(2)(iii) of the Hindu Marriage Act, 1955, where a
decree or order has been passed against the Husband awarding
maintenance to the wife notwithstanding that
• (i) she was living apart and that
• (ii) since the passing of such decree or order, cohabitation between the
parties Has not been resumed for one year or upward, a wife on this
ground may present a petition for the dissolution of marriage by a
decree of Divorce. The wife, who has been granted the decree for
maintenance under Section 18 of Hindu Adoption and Maintenance
Act,1956 or under Section 125 of Cr.P.C or under Section 24 & 25 of the
Hindu Marriage Act, 1955, can file a petition under Section 13 for
Divorce if the cohabitation between the parties has not taken place even
after the lapse of one year.

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• In B. Ansuya v/s. B. Rajaiah (AIR 1971 AP) :- A decree for
maintenance was obtained by wife against her Husband. When
the wife sought enforcement of decree, Husband pleaded in
answer to the petition that after the decree the wife came to live
with him and consequently the decree could no longer be
deemed to be effective. The Court held that the law has made a
rule that resumption of cohabitation puts an end to the decree
for maintenance. This rule is based on sound common sense and
policy.

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Section 13(2)(iv)
Repudiation of Marriage / Option of Puberty :-
• This provision was enshrined in the Act under the 1976 Amendment. Where a
marriage was solemnized before or after the Act, if the woman was below the age
of 15years (whether the marriage was consummated or not). It is just and
reasonable if she seeks this benefit even after attaining 18 years, if the marriage
is not consummated.
• In Bathula Ilahi v/s. Bathula Devamma,(AIR 1981 AP) :- The Court granted
the decree after the wife had attained the age of 18 years. The wife in this case
had repudiated the marriage before attaining the age of 15years.She came to
know later on about the passing of Marriage Laws (Amendment)Act, 1976, which
entitled her to bring present petition .The Court held that even though she has
presented the petition after attainment of 18years yet the petition would be
allowed as her marriage was solemnized before 15 years of age and she
repudiated the marriage after attainment of 15years but before the attainment of
18 years and also have reasonable explanation for delay, therefore, the Petition
was granted
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 Divorce Under section 13(1A) and 13(B)
• Section 13(A)- Alternative relief in divorce proceedings

• Section 13(A) of hindu marriage act says about the alternative relief in divorce proceedings, if petition for
dissolution of marriage are on grounds mentioned in clause (ii) that is ceased to be Hindu by conversion to
another religion,
•

• clause (vi)that is renounced the world bt entering any religious order and
•

• clause (vii) that is not heard of as being alive for a period of seven years or more by those persons who
would naturally have heard of it, of the section 13 of this act.
•

• So if it is considered just and having regards to the circumstances of the case, the court instead pass a
decree for judicial separation.
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Section 13(B)-

• Divorce by mutual consent

• Section 13-B of the Act deals with ‘Divorce by Mutual Consent”. This Section
was inserted under the Amendment Act, 1976. It means “both the parties agree
to dissolve their marriage by divorce”. The following conditions are to be
satisfied for the divorce by mutual consent :
• Both the spouses should file the petition for divorce jointly;
• The spouses have been living separately for more than one year preceding the
date of filing the petition;
• They have not been able to live together;
• They mutually agree to dissolve the marriage. After filing the petition, the
parties may withdraw the petition. If not withdrawn, the Court may after
6months and before 18 months pass a decree for divorce, after hearing the
parties.

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• Case laws :-
• In Raj Vinod v/s. Smt. Durga Devi (2002) :- Where the parties reached a consensus that they cannot
happily live together as husband and wife since their separation was for a substantial period of sixteen
years. As a result of the consensus, they decided to present joint divorce petition and the divorce by mutual
consent allowed.
•

• Whether one spouse can withdraw unilaterally petition of Divorce by Mutual Consent? As stated
above, provision was made to withdraw the petition for divorce by mutual consent.

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• Now the question is, whether one party can withdraw the petition? The trial court
answered the question in the affirmative, while the court of appeal answered in the negative in
the case of:
• Jayashree v/s. Ramesh,(A.I.R 1984) :- Both the parties filed a petition for Divorce under
Section 13-B.Subsequently, the Husband alone filed an application for withdrawal of the
petition. But, the Bombay High Court held that once consent is given it cannot be withdrawn
without the consent of the other spouse. This view was followed by the Punjab & Haryana
High Court in Nachhatar Singh v/s. Barcharan Kaur, AIR 1986. But the Rajasthan High Court
did not follow this view in Santosh Kumari v/s. Virendra Kumar, AIR 1986 and held that any
one of the parties to the petition could withdraw the petition till the last day.
•

• Sureshta Devi v/s. Om Prakash, AIR 1992 SC :- The Supreme Court had settled the
above controversy and held that consent given for mutual divorce can be withdrawn
unilaterally i.e., by either of the parties/spouses.

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• In Ashok Hurra v/s. Rupa Bipin Zaveri (or Rupa Hurra) (AIR 1977 SC 1266):- The
Supreme Court has observed that where wife and Husband filed Divorce petition under
Section 13-B (Mutual Consent) and one of them withdraws his/her consent thereafter,
the Court has discretionary power to proceed with the case and to grant divorce decree
if the evidences were in favour of the petitioner by overriding the general principle
‘after submission of petition, if any of the spouses withdraws the consent, the Court will
not sanction divorce on the petition before it’.
•

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Difference between Judicial Separation
and Divorce

1. Judicial separation does not terminate the marriage, whereas in

divorce the parties are no longer husband and wife. The marriage
ends.
2. While undertaking proceedings for judicial separation the court does
not have to consider that the marriage is permanently broken down
or has come to an end, whereas in divorce it is required while
presenting the petition.
3. Judicial separation goes through a one-step judgement procedure
whereas divorce goes through a two-stage judgement process

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• Judicial Separation has been provided under Section 10 of Hindu
Marriage Act, 1955 whereas in divorce has been provided under Section
13 of Hindu Marriage Act, 1955.
• Judicial separation merely suspends the marriage temporarily whereas in
Divorce is for the purpose of ending a marriage.
• After passing a decree of judicial separation, there’s still the possibility of
reconciliation of the parties. After passing of a decree of divorce, there is
no possibility of reconciliation of the parties.
• When hearing a petition for judicial separation, the judges presume that
the couple can reconcile and resume cohabitation but while hearing a
petition for divorce, the judges are more concerned about the permanent
breakdown of the marriage.

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Thank You

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