Dissolution of Hindu Marriage

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 wifes 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 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) at 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 formers
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 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
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.
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).
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 others 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 ones 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 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 commissions
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 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 agents 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 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 ones 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 ones 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 ones 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.

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

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, 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
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 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 courts view it is not possible to make
them reconciled.
It is suggested to go through the class notes also.