Dissolution of Hindu Marriage

Judicial separation
Some married couples never get as far as divorce, but are happy to stay apart.
Judicial separation is a state of marriage authorized by the court where a husband and wife do not live
like a married couple. In many situations it becomes impossible for either spouse to live with the other
person. At the same time, they either do not want a divorce or do not have enough ground for divorce.
Legal separation (sometimes “judicial separation”, “separate maintenance”, “divorce a mensa et thoro”,
or “divorce from bed-and-board”) is a legal process by which a married couple may formalize a de
facto separation while remaining legally married. A legal separation is granted in the form of a court
order, which can be in the form of a legally-binding consent decree. In such a situation, court may
grant a decree of judicial separation.
Section 10 of the Hindu Marriage Act, 1955:
(1) Either party to a marriage, whether solemnized before or after the commencement of this Act, may
present a petition praying for a decree for judicial separation on any of the grounds specified in sub-
section (1) of section 13, and in the case of a wife also on any of the grounds specified in sub-section
(2) thereof, as grounds on which a petition for divorce might have been presented.
(2) Where a decree for judicial separation has been passed, it shall no longer be obligatory for the
petitioner to cohabit with the respondent, but the court may, on the application by petition of either
party and on being satisfied of the truth of the statements made in such petition, rescind the decree if it
considers it just and reasonable to do so.
Grounds for Judicial separation are same as given in section 13(1), which are applicable for divorce. A
wife has the grounds given in section 13(2) as well. These are given below under Divorce.
The Effect of a Decree of Judicial Separation:
(a) The parties are no longer bound to co-habit with each other.
(b) If either party dies Intestate whilst the Decree is in force and the separation is continuing, his or her
property devolves as if the other party to the marriage had been dead.
(c) Marriage between the parties still exists therefore they cannot remarry. If either party remarries, has
committed offence of bigamy punishable under Section 494 & 495 of Indian Penal Code.
(d) If a woman is judicially separated, her husband cannot have sexual intercourse with her without her
consent. If he does, he can be prosecuted under section 376-A of the IPC. Note that consent under
pressure (e.g. because of threats to injure or to stop paying maintenance) is not considered valid.
(e) A Decree of Judicial Separation is not a bar to a subsequent Divorce.
Difference between Judicial Separation Explain and Divorce.
Judicial Separation Divorce
Section 10 - Marriage still exists therefore cannot Section 13 - Marriage ends. Can remarry subject to
remarry, cannot do adultery etc. Sec 15.
Not obligatory for the petitioner to cohabit with
Marriage is dissolved, hence no legal obligation
the partner.
Can be rescinded by petition of either party if
Cannot be undone.
court is satisfied.

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Consideration by Court
It has also to be kept in mind that before granting the prayer to permanently snap the relationship
between parties to the marriage every attempt should be made to maintain the sanctity of the
relationship which of importance not only for the individuals or their children but also for the society.
It would be too hazardous to lay down a general principle of universal application.
Divorce
The term ‘divorce’ comes from the Latin word ‘divortium’ which means ‘to turn aside’, ‘to separate’.
Divorce is the legal cessation of a matrimonial bond.

Under Shastric Hindu law, wedlock was unbreakable and the marital bond existed even after the death
of a party to marriage. Divorce was known only as a matter of exception in certain tribes and
communities which were regarded uncivilized by the Hindu elite. The courts recognized it in these
communities due to the binding force of custom. But the general Hindu law did not recognize it.

Divorce puts the marriage to an end, and the parties revert back to their unmarried status and are once
again free to marry.3All rights and mutual obligations of husband and wife ceases. In other words,
after a decree of dissolution of marriage, the marriage comes to an end and the parties cease to be
husband and wife, and are free to go their own ways. There remain no bonds between them except in
relation to Section 25 and Section 26 of Hindu Marriage Act, 1955.

The modern matrimonial law in India has been greatly influenced by and based upon English
matrimonial law. In England, the Matrimonial Causes Act, 1857 for the first time permitted divorce by
judicial process. Before 1857, divorce could be obtained only by a private Act of parliament and only
very rich could afford this luxury. Under the Act, the husband could file a petition for divorce on the
ground of wife’s adultery (single act was enough), but a wife had to prove adultery coupled with either
incest, bigamy, cruelty or two years desertion or alternatively, rape or any other unnatural offence. This
was the typical mid-Victorian attitude to sexual morality.

Section 13 of the Hindu Marriage Act, 1955 has introduced a revolutionary amendment to the shastric
Hindu law. It provides for the dissolution of marriage. Under the Hindu law, divorce does not take
place unless it has been granted by a court. Before passing of the Marriage Laws (Amendment) Act,
1976, the grounds for judicial separation and divorce were different. The Marriage Laws (Amendment)
Act, 1976 makes the grounds of divorce and judicial separation common. An aggrieved party may sue
for divorce or judicial separation.

THEORIES REGARDING DIVORCE

The provisions relating to divorce is contained in Sec 13 of Hindu Marriage Act, 1955.The Act
recognizes two theories of Divorce: the fault theory and divorce by mutual consent. Under the fault
theory, marriage can be dissolved only when either party to the marriage had committed a matrimonial
offence. Under this theory it is necessary to have a guilty and an innocent party and only innocent party
can seek the remedy of divorce. However the most striking feature and drawback is that if both parties
have been at fault, there is no remedy available. Another theory of divorce is that of mutual consent.
The underlying rationale is that since two persons can marry by their free will; they should also be
allowed to move out of their relationship of their own free will. However critics of this theory say that

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this approach will promote immorality as it will lead to hasty divorces and parties would dissolve their
marriage even if there were slight incompatibility of temperament. Some of the grounds available
under Hindu Marriage Act can be said to be under the theory of frustration by reason of specified
circumstances. These include civil death, renouncement of the world etc. In this article we shall see
that how these theories, owing to change in social circumstances and change in attitude towards the
institution of marriage had failed to provide full justice in matrimonial case

GROUNDS OF DIVORCE
The Hindu Marriage Act, 1955 originally based divorce on the fault theory and enshrined 9 fault
grounds in Section 13 (1) on which, either the husband or the wife could sue for divorce. Section 13
has undergone a substantial change by reason of subsequent amendments. The grounds mentioned in
sub-Section (1) and (1-A) are available to both the husband and wife; while the grounds mentioned
under sub-Section (2) are available only to the wife.31 In 1964, Section 13 (1-A) has been inserted
containing two clauses under which, non-resumption of cohabitation for two years or upwards after the
decree of judicial separation or restitution of conjugal rights was made a ground of divorce. This is a
modification of clauses (viii) and (ix) of Section 13 of the Hindu Marriage Act, 1955. By the Marriage
Laws (Amendment) Act 1976, the period of two years is reduced to one year. Section 13 (1-A)
introduced an element of Break-down theory in the Hindu Marriage Act 1955.
Prior to the amendments the petition for divorce could be filed on the grounds of non-resumption of
cohabitation after the decree of judicial separation and restitution of conjugal rights only by the
petitioner. After the amendments, either party to the marriage can prefer such petitions. However, this
is not applicable to in the cases where the decrees of judicial separation and restitution of conjugal
rights were obtained prior to the passing of the Hindu Marriage (Amendment) Act, 1964. If the decrees
are obtained after 1964, the respondent also can take advantage of the new Section.
The Hindu Marriage Act, 1955 originally contained two fault grounds in Section 13 (2) on which, a
Hindu wife alone could sue for divorce. The Marriage Laws (Amendment) Act 1976 has inserted two
additional fault grounds of divorce for wife and a new Section 13-B under which, divorce by mutual
consent has been made available as a matrimonial relief. Thus, in the modern Hindu law, the position
is that all the three theories of divorce are recognized and divorce can be obtained on the basis of any
one of them. Further, the customary mode of divorce is also retained. The Marriage Laws
(Amendment) Act, 1976 has introduced certain changes of far-reaching consequences, which have
materially affected the sacramental character of marriage. The relief of divorce may be obtained in
respect of any marriage whether solemnized before or after the commencement of this Act. Thus,
Section 13 is retrospective as well as prospective operation.
Section 13 (1) Fault Grounds
i. Adultery
Adultery is extra-marital sex. It is consensual sexual intercourse between a married person and a
person of the opposite sex not being the other spouse, during the subsistence of the former’s marriage.
Where the other party has, after the solemnization of the marriage, had voluntary sexual intercourse
with any person other than his or her spouse, a divorce petition can be filed.
Section 497 of the Indian Penal Code defines adultery: “Whoever has sexual intercourse with a person
who is and whom he knows or has reason to believe to be the wife of another man without the consent
or connivance of that man such intercourse not amounting to the offence of rape is guilty of the offence
of adultery”. The criminal action is filed not against the wife but against the adulterer. The wife is not
guilty of offence, not even as an abettor. In the matrimonial court, when a petition is filed for the

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matrimonial relief of divorce or judicial separation on the ground of adultery, the main relief is sought
against the spouse and not against the adulterer. The adulterer or the adulteress is made merely a co-
respondent, and that too is not always necessary. It is in this aspect, that the matrimonial offence of
adultery is different from the criminal offence. If the wife is raped, she is not guilty of adultery. It is a
complete defence to the charge of adultery if the respondent wife was raped. If a person lacks mental
capacity to consent, such as a minor or person of unsound mind, the intercourse will not be voluntary.
In Veena Kalia v. Jatinder Nath Kalia (AIR 1996 Del 54), the husband after marriage went abroad for
studies leaving his two minor daughters and his wife in India. He did not tried to take his wife with him
and left her. For twenty three years, they lived apart and the husband contracted a second marriage
there. He had three children out of the second marriage. He was thus, guilty of cruelty, desertion and
adultery. The wife got divorce on these grounds and the husband was ordered to pay her maintenance
of Rs. 10,000 per month. The court also ordered him to deposit Rs. 10 lacs in the court towards the
expenses of his daughters’ marriages.
Burden of proof is on the petitioner. Earlier it had to be proved beyond doubt but now only high
probability is required.
Proof of adultery by direct evidence is rare and it would be unreasonable to expect direct evidence of
adultery. Moreover, the nature of this act is such that direct evidence is not possible. Courts therefore
expect circumstantial evidence and circumstantial evidence is sufficient.

ii. Cruelty
Legal concept of cruelty has varied from time to time, place to place, and situation to situation. In early
law, intention was considered an essential element of cruelty but in modern law it is not so. The
intention of the law is to protect the innocent party from any harm -physical or mental. Scolding or
nagging have also been considered as cruelty.
Before passing of the Marriage Laws (Amendment) Act 1976, cruelty was a ground only for judicial
separation and the petitioner was required to prove that the respondent had treated him or her with such
cruelty as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious
for the petitioner to live with the other party.
The Marriage Laws (Amendment) Act, 1976 which makes cruelty also a ground for divorce, has
changed the wording of the clause thus: “respondent has treated the petitioner with cruelty”. The
change in the definition of cruelty will signify that an act or omission or conduct which constitutes
cruelty is a ground for judicial separation or divorce. Even if it causes no apprehension of any sort in
the mind of the petitioner.
Cruelty can be of both kinds: physical and mental. It is physical when the body is injured. It is mental
when feeling and sentiments are wounded. The petitioner may be meted with cruelty of either or both
types. However, cruelty has to be distinguished from the ordinary wear and tear of family life. It
cannot be decided on the basis of sensitivity of the petitioner and has to be adjudged on the basis of the
course of conduct which would, in general, be dangerous for a spouse to live with the other. A few
stray instances indicating a short tempered nature and somewhat erratic behaviour are not sufficient to
prove cruelty for the purpose of this Section.
In Shobha Rani v. Madhukar Reddi (AIR 1988 SC 121), the Supreme Court held that the word
‘cruelty’ used in Section 13 (1) (i-a) of the Act is with reference to human conduct or behaviour in

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relation to or in respect of matrimonial duties or obligations. It is a course of conduct of one which is
adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it
is physical, it is a question of fact and degree. If it is mental, the inquiry must begin as to the nature of
the cruel treatment and then as to the impact of such treatment on the mind of the spouse. In this Case,
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.
Definition of Cruelty
There is no precise definition of cruelty because the term is so wide. Several situations and cases over
past 100 years have shown that cruelty can be mental or physical. In the case of Dastane vs Dastane
1970 Bom, it was held that cruelty could be through words, gestures, or even by mere silence.
A general explanation of cruelty can be found in the case of Russel vs Russel 1897, in which it was
held that any conduct that poses a danger to life, limb, or health - physical or mental, or causes
reasonable apprehension of such danger, is cruelty.
Earlier, the petitioner had to show that the act of the respondent caused reasonable apprehension of
danger. Thus, in the case of Sayal vs Sarla 1961 Punjab, when wife administered love-potion to the
husband, causing his hospitalization, it was held to be cruelty even though she did not mean to hurt her
husband because it caused reasonable apprehension of danger. However, now it is not required. The
clause merely says, "if the respondent has treated the petitioner with cruelty". In the case of GVN
Kameshwara Rao vs G Jalili 2002, SC held that it is not necessary that the act has caused a
reasonable apprehension in the mind of petitioner. The emphasis will be on the act or conduct
constituting cruelty. It further held that social status of the parties, their education must be considered
while determining whether the act constitutes cruelty or not. Thus, what amounts to cruelty in one case
may not amount to cruelty in another.
Intention to be cruel is not material
Earlier intention was necessary but now it is not so. In the case of Jamieson vs Jamieson 1952, House
of Lords observed that unintentional acts may also amount to cruelty. In Williams vs Williams 1963
Allahbad, the necessity of intention in cruelty was finally rejected in India. In this case husband was
insane and constantly accused the wife of adultery. This was cruelty without intention.
Thus, in the case of Bhagwat vs Bhagwat 1976 Bom, when husband tried to strangulate wife's brother
and he younger son in a fit of insanity, he was held to be cruel. Temporary insanity or schizophrenia
cannot be a defense against the plea of cruelty.
Cruelty need not only be against the petitioner
In Bhagwat vs Bhagwat, cruelty against his step daughter was held as cruelty against wife.
The act or omission need not only be of the respondent
Since most women have to live in husband's joint family, they have to put up with their actions also. In
the case of Shyam Sundar vs Santa Devi 1962, the wife was ill treated by the in-laws and husband
stood their idly without caring for wife. This was held as cruelty.

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However, in the case of Gopal vs Mithilesh 1979 Allahbad, husband's stand of neutrality regarding
wife and mother and his inaction about his mother's nagging of his wife was not considered cruelty
because it is normal wear and tear of a married life.
Types of cruelty - Physical and Mental
Physical Cruelty
Injury to body, limb, or health, or apprehension of the same. In the case of Kaushalya vs Wisakhiram
1961 Punj, husband beat his wife so much so that she had to lodge police complaint even though
injury was not serious. It was held that serious injury is not required.
Mental Cruelty
In Bhagat vs Bhagat 1994 SC held that a conduct that causes such a mental pain and suffering that
makes it impossible to live with that person is mental cruelty. Mental cruelty must be such that it
cannot reasonably be expected to live together. This has to be judged on the circumstances of the case.
In the case of N Sreepadchanda vs Vasantha 1970 Mysore, wife hurled abuses at the husband and
quarreled over trivial matters so much so that he became a laughing stock in the locality. This was held
to be mental cruelty against the wife.
In Saptami vs Jagdish 1970 Calcutta, false accusations of adultery were held to be mental cruelty.
Yashodabai vs Krishnamurthi 1992 - Mere domestic quarrels with mother in law is not cruelty.
In the case of Jyotishchandra vs Meera 1970, husband was not interested in wife, he was cold,
indifferent, sexually abnormal and perverse. It was physical as well as mental cruelty.

iii. Desertion
Desertion means withdrawing from the matrimonial obligation, i.e., not permitting or allowing and
facilitating the cohabitation between the parties. It means the desertion of the petitioner by the other
party to the marriage without reasonable cause and without the consent or against the wish of such
party and includes the willful neglect of the petitioner by the other party to the marriage.
The deserting spouse should be proved that there is-
1. factum of separation; i.e., living apart and away from the deserted spouse, and
2. Animus deserendi; i.e., an intention to bring cohabitation to an end permanently. Further, it
should be proved that on the part of the deserted spouse, there was-
a. Absence of consent to the separation, and
b. Absence of conduct giving reasonable cause to the spouse to leave the matrimonial
home.
In matrimonial law, desertion means continual absence from cohabitation contrary to the will or
without the consent of the party charging it, and without reasonable cause. Desertion is not to be tested
by merely ascertaining which party left the matrimonial home first. The party who intends to bring the
cohabitation to an end and whose conduct in reality caused its termination commits the act of
desertion.
Desertion was a ground only for judicial separation under Hindu Marriage Act, 1955.101 However,
after passing of the Act of 1976, this is a ground for both divorce as well as judicial separation under
Section 13 (1) (i-b).

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Three Types - Actual Desertion, Constructive Desertion, Willful neglect.
Actual Desertion - factum of desertion, animus deserdendi, Without reasonable cause, without
consent, 2 yrs must have passed.
Desertion for the purpose of seeking divorce under the Act means the intentional permanent forsaking
and abandonment of one spouse by the other without that other’s consent and without reasonable
cause. In other words, it is a total repudiation of the obligations of marriage. Desertion is not the
withdrawal from a place, but from a state of things. Desertion is not a single act complete in itself; it is
a continuous cause of conduct to be determined under the facts and circumstances of each case.
In Durga Prasanna Tripathy v. Arundhati Tripathy(AIR 2005 SC 3297), the wife had deserted the
husband after seven months of marriage and the parties were living separate since a period of fourteen
years. Wife was not willing to live with husband in spite of all efforts. Better part of their lives was
wasted in litigation and the parties disliked each other. There was irretrievable breakdown of marriage.
Therefore, to put an end to litigation and to put an end to the bitterness between the parties, divorce on
the ground of desertion can be granted.
Constructive Desertion - If a spouse creates an environment that forces the other spouse to leave, the
spouse who created such an environment is considered deserter.
Jyotish chandra vs Meera 1970 - Husband was not interested in wife, he was cold, indifferent,
sexually abnormal and perverse. Went to England. Then came back and sent wife to England for PhD.
When wife came back, did not treat her well. Abused her and his inlaws physically. Wife was forced to
live separately. Held desertion by husband.
Wilful Neglect - If a spouse intentionally neglects the other spouse without physically deserting, it is
still desertion. Refusing to perform basic marital obligations such as denial of company or intercourse
or denial to provide maintenance is wilful neglect.
Reasonable Cause
1. If there is a ground for matrimonial relief. (Ground for void, voidable marriage or grounds for
maintenance under sec 18 of HAMA).
2. If spouse is guilty of a matrimonial misconduct that is not enough for matrimonial relief but still
weighty and grave.
3. If a spouse is guilty of an act, omission, or conduct due to which it is not possible to live with that
spouse.

iv. Conversion
Under Section 13 (1) (ii) of the Hindu Marriage Act, 1955 if the spouse has ceased to be a Hindu by
conversion to another religion, divorce may be obtained. Originally, this ground was not available for
judicial separation in Section 10 of the Hindu Marriage Act, 1955. By an Amendment of Section 10 in
1964, it was made a ground for judicial separation. Subsequently in 1976, the grounds for judicial
separation were omitted in Section 10 and were incorporated with slight modifications in Section 13,
and is therefore a ground for divorce under Section 13 (1) (ii). When one spouse voluntarily
relinquishes one’s religion and adopts another distinctive religion after formal ceremonies, it is
conversion on his part. Thus, one should adopt some other religion which cannot be regarded as Hindu

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religion. If a Hindu person who is a Jain adopts Buddhism, he is still a Hindu. He cannot be said to
have changed his religion.
If one spouse ceases to be a Hindu, the marriage continues to be governed by Hindu law and it can be
dissolved only under the provisions of the Hindu Marriage Act, 1955. However, if both the spouses
change their religion and cease to be Hindus, none of them can invoke the aid of this Section. The
remedy of dissolution of marriage on the ground of conversion is not available to the converting
spouse. It is the other spouse who remains a Hindu that can avail of this ground if he or she so desires.
Conversion of the respondent to a non-Hindu faith does not amount to automatic dissolution of
marriage. The petitioner has to file a petition to obtain a decree of divorce. If the petitioner chooses to
continue to live with the spouse who has converted to another religion, there is nothing to debar him or
her from doing so.

v. Unsound mind
Before passing of the Marriage Laws (Amendment) Act, 1976 the position of insanity as ground of
divorce or judicial separation was as follows:
i) Insanity (whether curable or incurable) - lasting for not less than two years ending with the filing of
the petition was a ground for judicial separation;
ii) Incurable insanity- lasting for at least three years immediately preceding the filing of the petition
was a ground for divorce.
In 1974, the law commission recommended abolition of the duration for the purpose of treating it as a
ground for divorce. In 1976, while unifying the grounds for judicial separation and divorce, the
legislature not only accepted the said recommendation, it also went further to explain and expand the
concept of insanity under Section 13. This was done in the light of the commission’s general
observations regarding insanity.
Now the Act refers to two distinct mental conditions, namely:
1. Unsoundness of mind, and
2. Mental disorder.
The conditions attached to each of these two are:
1. Unsoundness of mind must be incurable; and
2. Mental disorder (whether continuous or intermittent) must be ‘of such a kind and to such an
extent that the petitioner cannot reasonably be expected to live with the respondent’.
After passing of the Marriage Laws (Amendment) Act 1976, incurable unsoundness of mind or
continuous or intermittent mental disorder of such a nature as to disable the petitioner to live
reasonably with the respondent makes the petitioner eligible to get a decree of divorce. The term
“mental disorder” has been widely interpreted so as to include mental illness, arrested or incomplete
development of mind, psychopathic disorder or any other disorder or disability of mind and includes
schizophrenia.

vi. Leprosy
Before passing of the Marriage Laws (Amendment) Act, 1976 the position of ground of leprosy for
divorce was as follows: “the other party has for a period of not less than one year immediately
preceding the presentation of the petition, been suffering from a virulent form of leprosy”, it was a
ground for judicial separation.
If it was virulent and incurable, it was a ground for divorce, where it lasted for three years ending with
the filing of the petition. The Marriage Laws (Amendment) Act 1976 has made leprosy, a ground for
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both judicial separation and divorce. It omitted the period of three years. Under this clause, the
petitioner is required to show that the respondent has been suffering from virulent and incurable
leprosy.
Clause (iv) of Section 13 (1) of the Hindu Marriage Act, 1955 lays down that the divorce can be
obtained by a spouse if the other party has been suffering from a virulent and incurable form of
leprosy.
There are various types of leprosy. They are classified under:
a) Lepromatous leprosy,
b) Tuberculoid leprosy,
c) Maculoan aesthetic leprosy,
d) Polyneuritic leprosy,
e) Borderline leprosy and
f) Indeterminate leprosy.
Of these, Lepromatous leprosy at present, is the most dangerous and aggravated form of leprosy. In
this leprosy, the person suffering from it has low resistance and mycobacterium leproe multiply very
fast, almost in astronomical number. It is in malignant form and highly contagious. It is incurable and
there are hardly any chances of self-arrest and regression.

vii. Venereal disease

Venereal disease is a ground both for judicial separation and divorce. Originally under the Hindu
Marriage Act 1955, the requirement for judicial separation was as follows:
“Respondent has for a period of not less than three years immediately preceding the presentation of the
petition, been suffering from venereal disease in a communicable form, the disease not having been
contracted from the petitioner”. Clause (v) of Section 13 of the Hindu Marriage Act 1955 which
contains the venereal disease as a ground of divorce lays down that a spouse may present a petition for
dissolution of marriage on the ground that the other spouse has been suffering from venereal disease in
a communicable form.
The Marriage Laws (Amendment) Act, 1976 has simplified this ground. Prior to amendment, the
disease was required to be of three years duration. The amendment has done away with the period.
Now under the Hindu Marriage Act, 1955 the venereal disease to be a ground of judicial separation or
divorce, should be in a communicable form.
Venereal diseases comprise a number of contagious diseases that are most commonly acquired in a
destroyer of life (syphilis) and a preventer of life (gonorrhea). The group includes at least three other
diseases; cancroid, lymphogranuloma venereum and granuloma inguinale. These five are linked not
because of similarity of causative agents, tissue reactions and symptoms produced, but because of the
principal means of spread of each disease is by sexual intercourse especially promiscuous sexual
intercourse, as implied by their group name, venereal which is derived from the name of goddess of
love, ‘Venus’. Not only are the causative agent’s different morphologically but they also represent five
distinct classes of micro-organisms: Spirochetes; bacilli; viruses and Donovan body (perhaps a
bacterium).
The most common form of venereal diseases are Syphilis and Gonorrhea; and of these two, former is
considered to be more dangerous. Gonorrhea is considered to be more treatable and in most of the
cases, complete cure can be obtained. Syphilis in early stage is also now curable. Congenital syphilis is
not a disease in a communicable form and is thus not considered to be ground of divorce.
It is immaterial that the disease incurable or was contracted innocently. The duration of the disease is
not mentioned. Therefore, it may be of any duration. The Hindu Marriage Act, 1955 does not say that

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the disease should not have been contracted form the petitioner. If the disease is contracted form the
petitioner, under the Hindu Marriage Act, 1955 by virtue of Section 23 (1) (a), the decree cannot be
passed as it would amount to ‘taking advantage of one’s own wrong’.

In Mr. X v. Hospital Z (AIR 1999 SC 945), though it is a case under Art. 21 of the Constitution of
India i.e., right to Privacy where the question was as to the disclosure of a person being HIV Positive
by the hospital is violative of Article 21? In the context of marriage it was held that the basis of this
institution is a healthy body and moral ethics. Since as law provides Venereal disease as a ground for
divorce it implies that a person suffering from Venereal disease prior to marriage must be injuncted
from entering into marriage so as to prevent him from spoiling the health and consequently the life of
an innocent spouse.

viii. Renunciation of the world

Clause (vi) of Section 13 (1) lays down that a spouse may seek divorce if the other has renounced the
world by entering into any religious order. Thus the requirements of the clause are:
a) the other party has renounced the world, and
b) has entered into a holy order.
Hindus recognize Sanyasa Ashrama as the last of the four Ashramas into which, the life of a Hindu is
organized. According to Hindu religion, every Hindu is required to enter the last ashrama in his old
age. Entering into this ashrama amounts to civil death. For taking sanyas, a person has to perform eight
shradhas (including his own sradha) and has to give up his matrimonial life and property. A Hindu can
according to his religion, renounce the world and take up sanyas or vanaprastha ashram. Such a person
is known as sanyasi, yati, vanaprastha or perpetual brahmachari, cannot any more attend to his worldly
obligations. Therefore, law treats sanyas etc., as civil death. The sanyasi gives up his name and
assumes a new name. In other words, entering into a sanyasa ashram means not merely renunciation of
the world and worldly things, but also renunciation or rather an end of one’s worldly life led in grihasth
ashrama or the life led in the vanaprastha ashrama. Entering into the sanyasa ashrama in the old age is
in accordance with Hindu religion. A person may enter into a holy order even at the young age and it is
not contrary to Hindu religion. But it becomes a ground for divorce. The reason seems to be that one
can follow the religious faith or belief one has, but it should not amount to hardship to one’s spouse.
And when one spouse leaves the other, even by becoming a sanyasi, it prima facie causes hardship to
the other party. Looked at from this angle, to become a sanyasi is no hope that the sanyasi spouse will
ever return to resume cohabitation. This seems to be the reason for making it a ground for divorce.

ix. Presumed death

Clause (vii) of Section 13 (1) of the Hindu Marriage Act, 1955 which lays down that a spouse may file
a petition for divorce on the ground that the other spouse has not been heard of being alive for a period
of seven years or more by those persons who would naturally have heard of it, had that party been
alive. Under Section 108 of the Indian Evidence Act, 1872, 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. Under matrimonial law, the other spouse on the basis of presumption of death,
by assuming that he or she has become a widower or widow, contracts a second marriage and after
some time, the missing spouse re-appears, then the second marriage is void under Section 11 and the
spouse can also be prosecuted for bigamy.

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To avoid the risk of missing spouse re-appearing, rendering the second marriage void, Clause (vii) of
Section 13 (1) provides that a petitioner may obtain a decree of dissolution of marriage on this ground.
Once the marriage is dissolved, the petitioner is free to marry again and even if the missing spouse
returns the next day of the passing of the decree or much before the second wedding, he can do
nothing.146 He or she as the case may be is not entitled to the restitution of conjugal rights with the
petitioner (who has obtained divorce). The remarriage of the decree holder is not violative of Section 5
(i) of the Hindu Marriage Act, 1955 and hence is not bigamy.

A court may under Section 108 of the Indian Evidence Act, 1872 draw the presumption in the above
circumstances that the person is dead. Though the Hindu Marriage Act, 1955 does not draw this
presumption, but it seems that it is based on the above presumption. As it is not a presumption of the
death of the respondent, the petitioner cannot take it for granted that his or her marriage is ipso facto
dissolved as in the case of the actual death of the respondent.

Section 13 (1-A) Breakdown Theory

In 1964, Section 13 (1-A) was inserted which contains second type of divorce based on the ‘Break
down’ theory. Thus the two grounds mentioned in sub-Section (1-A) are available to both the husband
and wife. The two clauses under which, non-resumption of cohabitation for two years or upwards after
the decree of judicial separation or restitution of conjugal rights was made a ground of divorce. This is
a modification of clauses (viii) and (ix) of Section 13 (1) of the Hindu Marriage Act, 1955. By the
Marriage Laws (Amendment) Act, 1976 the period of two years is reduced to one year. Section 13 (1-
A) introduced an element of Break-down theory in the Hindu Marriage Act, 1955.
(i) No cohabitation for 1 yr after passing the decree of judicial separation.
(ii) No cohabitation for 1 yr after passing the decree of restitution of conjugal rights. Effected by
provisions in Section 23.
Trace of the breakdown principle is evident in Section 13 (1-A) of the Hindu Marriage Act, 1955.
However, for passing of the decree, either a decree of judicial separation or that of restitution of
conjugal rights, court is invariable required to go into the question of marital offence or withdrawal by
one spouse from the society of other spouse without reasonable cause, respectively. The necessary
implication is that the consideration of fault is brought in though indirectly

In addition to the above mentioned grounds, Sub- Section (2) of Section 13 of Hindu Marriage Act,
1955 provides four additional grounds to the women for obtaining divorce from her husband.
Originally, Section 13 (2) of the Hindu Marriage Act, 1955 provided only for two special grounds on
which, a Hindu wife alone could seek divorce. Later, the Marriage Laws (Amendment) Act, 1976 has
added two more grounds. Thus, a wife may file a petition for divorce on any one of the following four
grounds:
i) in the case of any marriage solemnized before the commencement of this Act, that the husband had
married again before such commencement or that any other wife of the husband married before such
commencement was alive at the time of the solemnization of the marriage of the petitioner:
Provided that in either case, the other wife is alive at the time of the presentation of the petition; or

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Additional grounds for wife- Section 13(2)
In addition to the above mentioned grounds, Sub- Section (2) of Section 13 of Hindu Marriage Act,
1955 provides four additional grounds to the women for obtaining divorce from her husband.
Originally, Section 13 (2) of the Hindu Marriage Act, 1955 provided only for two special grounds on
which, a Hindu wife alone could seek divorce. Later, the Marriage Laws (Amendment) Act, 1976 has
added two more grounds. Thus, a wife may file a petition for divorce on any one of the following four
grounds:
i. in the case of any marriage solemnized before the commencement of this Act, that the
husband had married again before such commencement or that any other wife of the
husband married before such commencement was alive at the time of the solemnization
of the marriage of the petitioner:
Provided that in either case, the other wife is alive at the time of the presentation of the
petition; or
ii. that the husband has, since the solemnization of the marriage, been guilty of rape,
sodomy or bestiality; or
iii. that in a suit under Section 18 of the Hindu Adoptions and Maintenance Act, 1956 or in a
proceeding under Section 125 of the Code of Criminal Procedure, 1973, (or under the
corresponding Section 488 of the Code of Criminal Procedure 1898, a decree or 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; or
iv. 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.
Explanation: This clause applies whether the marriage was solemnized before or after the
commencement of the Marriage Laws (Amendment) Act 1976.
Section 13 (2) (i): deals with bigamous marriage.
Before passing of the Hindu Marriage Act, 1955 a Hindu male can marry as many wives as he liked
and no limit to the number of wives. Later, It is provided by Section 13 (2) (i) that if a man had
married more than one wife before the Hindu Marriage Act, 1955 came into force, then every wife was
given a right to seek divorce from the husband on the ground of his pre-Act remarriage. The first wife
on the plea that her husband married again during her life time and the second wife on the plea that her
husband married her when he already possessed a wife. A petition for divorce is barred if no other wife
is alive due to death or divorce. But if once a petition is made, the death or divorce of the other wife
does not bar the decreeing of divorce.

If a person rapes a woman who is not his wife, he is guilty of rape and his wife can sue for divorce. It
is immaterial as to whether the woman is related to him or not. The age of the woman raped is also
immaterial. A mere attempt of rape will not be sufficient. Further, Section 376-A provides punishment
to a husband having intercourse with his wife during separation. Rape is a criminal offence under
Section 375 of Indian Penal Code and a person guilty of these offences can be prosecuted in a criminal
court. However, under the Hindu law, these are recognized as special grounds of divorce for the wife.

‘Sodomy’ is anal intercourse by a man with his wife or with another woman or with a man. The age
and consent of the victim is irrelevant. If a man commits sodomy on his own wife without her consent,

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then it would amount to the matrimonial offence of sodomy within the meaning of the clause.
‘Bestiality’ means sexual intercourse with an animal

Section 13 (2) (iii) lays down that, where a wife obtains a decree or order for maintenance either under
Section 18 of the Hindu Adoptions and Maintenance Act, 1956 or under Section 125 of the Code of
Criminal Procedure, 1973 if cohabitation between the parties had not been resumed for one year or
upwards after the decree, can avail herself of this provision for obtaining divorce, notwithstanding that
she was living apart. Where a decree under Section 18 of the Hindu Adoptions and Maintenance Act,
1956 or under Section 125 of the Code of Criminal Procedure, 1973 is passed in favour of the wife, it
becomes the duty of her husband to pay maintenance to her and he must resume cohabitation within
one year. If he fails to do so, the wife can seek divorce.

Divorce by Mutual Consent (No Fault theory of Divorce) - Section 13-B

Divorce by mutual consent is not new to Hindus and it was recognized through legislation and customs
by some states and communities189. But there was no provision of divorce by mutual consent under
Hindu Marriage Act, 1955. Section 13-B was added by the Marriage Laws (Amendment) Act, 1976
where the parties can now obtain divorce by mutual consent. This provision is retrospective as well as
prospective. Hence, parties to a marriage whether solemnized before or after that Amending Act can
avail themselves of this provision. If both the parties have agreed to dissolve their marriage, they may
do so in a more civilized and cultured way than by quarrelling between themselves in a court. They
may petition together under Section 13-B in a District court that they may be granted a decree of
divorce. The court can allow the parties to amend a petition for divorce under Section 13-B to be
converted into a petition for divorce by mutual consent. This is possible even at the appellate stage.
When a decree of divorce under Section 13-B is passed on such an amended petition, the effect is that
all the past allegations and cross-allegations made by the parties against each other during the hearing
of the petition under Section 13-B are quashed.
Procedure of Mutual Divorce
Mutual Divorce is to be filed by the couple only after they have lived apart for at least a year. A
petition supported with affidavits for divorce should be filed in the district court by the both the
spouses. The husband and the wife should jointly state to the court that they are unable to live together
as they are facing immense difficulties in adjustment.
The filing of divorce petition by both the husband and the wife is legally known as the "The First
Motion Petition for Mutual Consent Divorce". "The Second Motion Petition for Mutual Consent
Divorce" mentioned in the sub-section (2) of Section 13 B is filed when the couple reappears to the
court for the second time after a period of six months. If the judge is satisfied after a hearing from both
the husband and wife, the court announces a mutual divorce decree.
If the couple fails to appear in the court after six months and not later than eighteen months from the
date of first motion, the divorce petition becomes null and void. Either of the couple can withdraw
his/her petition within the six months term.
A judgment for mutual divorce is passed out only if all the necessary agreements required for a mutual
divorce in India are strictly maintained. The husband and the wife should come to terms of settlement
regarding the following issues.
 Custody of Child
 Return of Dowry Articles / Istridhan of Wife

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  Lump Sum Maintenance Amount of Wife
 Litigation Expenses

Withdrawal of consent
For pursuing divorce by mutual consent, it is imperative that mutual consent should continue till the
decree is granted by the court. In case, even if one of the parties to marriage withdraws his or her
consent initially given, the court instantly loses the jurisdiction to proceed further and grant relief
under Section 13-B of the Act. In this respect, the Supreme Court in the Hitesh Bhatnagar case
reaffirmed its earlier decision in Sureshta Devi v. Om Prakash (1991), which overruled the view of the
High Courts of Bombay and Delhi that proceeded on the premise that the crucial time for giving
mutual consent for divorce is the time of filing petition and not the time when they subsequently move
for a divorce decree.

The statutory expression “they have not been able to live together” under Section 13-B(1) of the Act, is
to be construed not just as a trite statement of pure volition. It bears a deeper connotation. It indicates,
as the apex court has expounded, “the concept of broken down marriage”’ implying thereby that
reconciliation between them is not possible. In this respect, the court is duty bound to satisfy itself
“after hearing the parties and after making such inquiry as it thinks fit” about the bona fides and the
consent of the parties, and then and then alone the court shall consider the grant of divorce decree.

The purpose of the period of 18 months from the date of presentation of the joint petition under Section
13-B (2) of the Act is for re-think and reconciliation. If the consent is withdrawn by either party to
marriage, the petition becomes instantly ineffective and is liable to be dismissed at the threshold on this
very count.

In view of the long separation of more than a decade from his wife, the husband, as a last resort, urged
the apex court to dissolve his marriage by exercising its special jurisdiction under Article 142 of the
Constitution. To buttress his claim he specifically cited a proximate decision of the Supreme Court
itself – Anil Kumar Jain v. Maya Jain (2009) – wherein though the consent was withdrawn by the wife,
yet the court found the marriage to have irretrievably broken down and granted a decree of divorce by
exercising its special constitutional power.

Special power

However, in the instant case the apex court refused to invoke its special power in favour of the husband
mainly for two reasons. One, the special power is to be used very sparingly in cases which cannot be
effectively and appropriately tackled by the existing provisions of law or when the existing provisions
cannot bring about complete justice between the parties.

Generally such a power is exercised neither in contravention of statutory provisions nor merely on
grounds of sympathy. Two, the sanctity of the institution of marriage cannot allowed to be undermined
merely at the whims of one of the annoying spouses, more specially in the situation and circumstances,
as in the present case, wherein the wife has stated that she wants this marriage to continue “to secure
the future of their minor daughter”.

Invariably it is found that a petition for divorce on fault grounds under section 13 is replaced by the
remedy of dissolution of marriage by mutual consent under section 13-B of the Act. This is advisedly
done as if the purpose of the latter provision is to facilitate divorce by effecting compromise between
the parties in respect of ancillary matters. This in our view is perhaps the most erroneous construction
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of the provisions of section 13-B of the Act. The purpose of the remedy of mutual consent, we repeat,
is not to facilitate the dissolution of marriage, inasmuch as even the provisions of section 13-B are
subject to the other provisions of the Act.
Thus, to save marriage and not to hasten its dissolution should be the core concern of the court.
Spouses may think of dissolving their marriage if they so fancy provided the court is satisfied that any
of the grounds for granting relief exists, and that in court’s view it is not possible to make them
reconciled.

Irretrievable Marriage Breakdown

"Irretrievable Marriage Breakdown" is when there is no reasonable prospect of reconciliation; that no
matter what anyone tries, it's done... finished... over; counselling will not help, discussion will not help,
therapy will not help, a trial separation will not help, etc. Legally speaking, “irretrievable breakdown of
marriage” is defined as: “The situation that exists when either or both spouses are no longer able or
willing to live with each other, thereby destroying their husband and wife relationship with no hope of
resumption of spousal duties.”
“This doctrine of irretrievable breakdown of marriage is not available even to the High Court’s which
do not have powers similar to those exercised by the Supreme Court under Article 142 of the
Constitution,” bench comprising former chief Justice Altamas Kabir and Justice Cyriac Joseph,
allowing an appeal of a husband, noted.
New Zealand was the first country to accept the concept of "irretrievable breakdown of marriage" in
‘The Divorce and Matrimonial Causes Amendment Act, 1920’. Since then several countries have
accepted it as a ground to seek divorce. In fact, in the United Kingdom, it is the only ground on which
one can seek divorce. On March 23, 2012, the Union Cabinet approved the Marriage Laws
(Amendment) Bill, 2010, by which "irretrievable breakdown of marriage" was included as a ground for
dissolving a marriage under the Hindu Marriage Act, 1955, and the Special Marriage Act, 1954.
Another area of concern has been whether the introduction of irretrievable breakdown as grounds for
divorce would work against the interests of women, given the gender disparities and large number of
women deserted by their husbands. It is in this context that the Supreme Court recently had the
occasion to revisit the issue of irretrievable breakdown as grounds for divorce. Footnote (Vishnu Dutt
Sharma versus Manju Sharma, 2009 (3) SCALE 425).
In Ashok Hurra v. Rupa Bipin Zaveri the Supreme Court granted a decree for divorce under § 13(B) of
the Act even though the wife had withdrawn the consent for the same eighteen months after the
petition was presented. The decree was conditionally granted on the ground of irretrievable breakdown
where the Court took into account the fact that the husband had married a second time and had a child
from this wedlock, during the subsistence of the proceedings in the Court (which is a punishable
offence under § 494 of the Indian Penal Code as the offence of bigamy.) However the decree was made
conditional that the same would be effective only when the husband paid the wife a certain sum
of money.
In 2003, the Supreme Court in Naveen Kohli v. Neelu Kohil, 2006(3) SCALE 252, recommended an
amendment to the Hindu Marriage Act, whereby either spouse can cite Irretrievable breakdown of
marriage as a reason to seek divorce. Expressing the concern that divorce could not be granted in
number of cases where marriage were virtually dead due to the absence of the provision of irretrievable
breakdown, the court strongly advocated incorporating this concept in the law in view of the change of
circumstances.
The proposal for including "irretrievable breakdown of marriage" as a ground for divorce was first
made almost three decades ago in the Seventy-first Report of the Law Commission of India.

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Again in the year 2009, the Law Commission of India suo motu took up the study of the subject and
submitted its 217th Report on this subject. The Commission examined the extant legislations as well as
a number of judgments of the Supreme Court and High Courts on the subject and is of the view that
“irretrievable breakdown of marriage” should be incorporated as another ground for granting divorce
under the provisions of the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954.
As per the Report, "the Hindu marriage should be allowed to be dissolved if the husband and wife have
lived apart for a period of say five to ten years and the marriage is irretrievably broken down due to
incompatibility, clash of personality or similar other reasons, as is permissible under many systems of
law of advanced countries."
Likewise, as per the current amendments, either party can present a petition for divorce under this new
ground. Both parties however have to live apart for at least a period of three years before filing for
divorce owing to irretrievable breakdown of marriage.
Irretrievable Breakdown of Marriage had been incorporated as Section 13C in the Marriage Laws
(Amendment) Bill, 2013. The bill was passed by the Rajya Sabha on 26th August 2013, however
could not be taken up for discussion in the Lok Sabha due to the change in the Government at the
Centre.
It is suggested to go through the class notes also.

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