Matrimonial Remedies

Section 9 to 13

Restitution of Conjugal Rights u/s 9

• Conjugal Right is a matrimonial right which husband and wife have to each other’s society, comfort and affection;

• This is the express condition of the law that each party to the marriage is to become life associate of the other and enjoy the pleasures and consortium of each other

• Section 9 – “ when either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the District Court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted may decree restitution of conjugal rights accordingly.”

Incidents of Sec 9• Where the wife or the husband as the case may be – Has withdrawn from the society of the other, Without reasonable excuse, The court is satisfied of the truth of the statements made in

the petition, and There is no legal ground why the application should not be

granted-u/s9(1) the husband or wife may get the decree of restitution of conjugal rights-the burden of proving the reasonable excuse shall be on the person who has withdrawn from the society.

Subsistence of Marriage – A pre-requisite

• The remedy under this section presupposes the subsistence of a valid marriage;

Where the parties are not legally married or the marriage was not subsisting at the time of the petition, the question of remedy does not arise under this section;

• It is for the petitioner to prove the validity of the marriage; respondent to prove the reasonable cause for withdrawal;

• In Smt. Ranjana Vinod Kumar Kejriwal v. Vinod Kumar Kejriwal AIR 1997 Bom 380 – husband was already married, second marriage is not a valid marriage, hence no remedy u/s 9

• In Malkiat Singh v. Shinderpal Kaur AIR 2003 P&H 283 – it was observed by the court that the sole essence of a decree of restitution conjugal rights is that the husband desiring the company of his wife makes an effort through the court for its assistance in order to restore his wife back to him so that they may be able to lead a conjugal life.

• Where the parties do not honour the decree passed u/s 9 for period of one year, the respondent is entitled to divorce u/s 13(1-A) of the Act.

Withdrawal from society

• Withdrawal means withdrawing from the company of the other spouse & from conjugal relationship;

• Parties may be living separately, could maintain a frequent and regular social and sexual relationship thereby treating the marriages as still being in real existence;

• There may be withdrawal from society whilst the parties are living under the same roof;

• Withdrawal from the society is a mental process apart from physical separation.

Previous cohabitation not necessary – granting of this remedy does not necessitate the parties to prove that they have at some time cohabitated with each other and then separated;

Agreement of separation – an agreement to live separately is void and no respondent can take this as a defence;

Reasonable and Just Cause

• What is reasonable or just would be decided in the context of facts and circumstances of each case;

• The reason for withdrawal from the society must be ‘grave and weighty’ and it is different from matrimonial offence;

• The circumstances surrounding the respondent’s life must render him practically impossible to continue cohabitation with the petitioner;

• The grounds for residing separately is not discussed in sec 9; but by the judicial decisions the following are some of the grounds where the parties residing separately is considered as ‘reasonable cause’-

1. Refusal to perform marital obligations without sufficient cause;2. Imputing unchastity upon the wife;3. Gravely indecent behavior;4. False allegations against each other as to unnatural offence and

so on. (Chapter XVI, Section 377 of the IPC 1861, criminalizes sexual activities "against the order of nature", arguably including homosexual acts)

• In Tulsa v. Panna AIR 1963 SC 595 – the husband used to beat his wife as she did not get up early morning to cook food, she did not wear clothes according to the desires of the husband;

• She left the house and refused to go back to his house;• It was held that there was reasonable cause within the

meaning of sec 9• Where the husband files petition for conjugal rights and

the wife gets the ground of physical and mental cruelty, she has to prove it.

• In Pramila Bala Barik v. Ravindra Nath Barik AIT 1977 Orissa 132 – where the wife left the house because of the continuous torture from the mother-in-law,

• on the petition u/s 9 by the husband, the court held that the wife cannot be compelled to stay in her parents-in-laws house against her wishes under adverse circumstances amounting to cruelty

• In Smt Swaraj Garg v. K.M. Garg AIR 1978 Delhi 296 – husband and wife were gainfully emplyoed in 2 different places from days before marriage….

• Question arose as to where the matrimonial home is to be…• Husband filed petition u/s 9 trial court dismissed the

petition.. Went in appeal before the single judge bench which allowed the petition and granted restitution…

• Against that order matter was brought before the division bench – Mr. Desh Pande. Dismissing the petition held that ‘there is no warrant in Hindu Law to regard a Hindu Wife as having no say in choosing the place of matrimonial home’

• Further referring to art 14 – ‘any law which would give an exclusive right to the husband to decide upon the place of the matrimonial home without considering the merits of the claim of the wife would be contrary to art 14 and unconstitutional for that reason’

• The learners in Hindu law viewed that the constitutional provisions can not be brought with in the frame work of personal law, because entire matrimonial edifice is founded on mutual love, sacrifice and devotion, to introduce the concept of fundamental right in this relationship would be hazardous.

• In Hardeep Singh v. Dalip Kaur 1970 Punj 284 – where the husband does not agree to live separately from his parents and wife’s insistence for a separate house persists as a result she chooses to be away from the husband;

• The court decreed the petition of restitution conjugal rights filed by the husband holding that there is no reasonable excuse for the wife to live separately on the alleged grounds.

T. Saritha v. Venkata Subbaiah AIR 1983 AP 356

• Single Judge bench of Andhra Pradesh observed that ‘the remedy of restitution conjugal rights is a savage and barbarous remedy violating the right to privacy and human dignity guaranteed by art 21 of the constitution, hence void.’

• Examining the validity of S. 9 of the Act in the light of the above discussion, it should be held, that a Court decree enforcing restitution of conjugal right constitutes the starkest form of Government invasion of personal identity and individual's zone of intimate decisions.

• The victim is stripped of its control over the various parts of its body subjected to the humiliating sexual molestation accompanied by a forcible loss of the precious right to decide when if at all her body should be allowed to be used to give birth to another human being.

• Clearly the victim loses its autonomy of control over intimacies of personal identity. Above all, the decree for restitution of conjugal rights makes the unwilling victim's body a soulless and a joyless vehicle for bringing into existence another human being. In other words, pregnancy would be foisted on her by the state and against her will.

Above all, the decree for restitution of conjugal rights makes the unwilling victim's body a soulless and a joyless vehicle for bringing into existence another human being. In other words, pregnancy would be foisted on her by the state and against her will.

There can therefore be little doubt that such a law violates the right to privacy and human dignity guaranteed by and contained in Article 21 of our Constitution. It is of constitutional significance to note that the ancient Hindu society and its culture never approved such a forcible marital intercourse.

• In this view I have taken of the constitutional validity of section 9 of the Hindu Marriage Act, I declare that section 9 is null and void.

• As a corollary to that declaration, I hold that the case on the file of subordinate Judge, cuddapah, filed by venkata subbaiah for the relief of restitution of conjugal rights with sareetha is legally incompetent.

• Accordingly, I prohibit the Court of the subordinate Judge, cuddapah from trying the petition.

• The civil Revision petition is allowed, but without costs.• Revision allowed.

• In Smt. Harvinder Kaur v. Harmander AIR 1984 Del 66 –• The view in Saritha’s case was dissented in this decision;• It was observed that sec 9 was not violative of articles 14 &

21 of the Constitution; the leading idea of sec 9 was to preserve the marriage;

• The object of restitution of conjugal rights decree was to bring about cohabitation between the estranged parties so that they could live together in the matrimonial home in amity;

• The remedy of restitution aimed at cohabitation and consortium and not merely at sexual intercourse.

• In Saroj Rani v. Sudarshan Kumar AIR 1984 SC 1562 – SC held that conjugal rights is not merely creature of the statute, such a right is inherent in the very institution of marriage itself;

• It serves a social purpose as an aid to the prevention of break-up of marriage;

• It can not be said that the sanction is violative of articles 14 & 21 of the Constitution.

Mode of Execution of decree for restitution of conjugal rights

• Order 21 rules 32 & 33 of the CPC provides for the execution of a decree for restitution of conjugal rights.

• Where the party against whom a decree for restitution of conjugal rights is passed, has an opportunity of obeying the decree and has wilfully failed to obey it –

- The decree may be enforced by attachment of his property or by his detention in civil prison or by both

• Where the property is attached for a year and if the party has not obeyed the decree and the decree-holder has applied to sale of the attached property so that out of the proceeds of the sale, he/she could get such compensation as the court deems fit;

• A decree under this section is a stepping stone for getting a decree of divorce u/s 13(1-A) of the act after the expiry of one year from the date of order.

• Conclusion: according to Prof. Derrett – ‘the practical utility of the remedy is little in contemporary England, but in India where spouses separate at times due to misunderstanding, failure of mutual communication, the remedy of restitution is of considerable value.’

Judicial Separation u/s 10• The remedy of Judicial Separation was not known to the

Shastric Hindu Law;• British Indian Courts permitted in certain cases

maintenance to wife and also separate residence from her husband;

• Hindu Married Women’s Right to Separate Maintenance and Residence Act, 1946 gave statutory right to Hindu Married Woman to claim separation and Maintenance from her husband;

• This act has resemblance in Judicial separation u/s 10 of HMA 1955.

• Section 10 deals with judicial separation and consequences that flow from it;

• The decree of Judicial separation does not terminate the marriage but it puts the obligation of conjugal duties an end;

• After the decree neither the spouse is under an obligation to cohabit each other;

• This section is also applicable to such marriages which were solemnized before the HMA;

• The Marriage Laws (Amendment) Act, 1976, u/s 10(1) has enabled either party to a marriage to move for a decree of judicial separation on any one of the grounds specified in sec 13(1) and

• in the case of 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;

• The grounds on which Judicial separation and divorce can be sought are identical;

• Sec 10(2) preserves the right of the court to rescind the decree of Judicial separation, on satisfaction.

Characteristics of judicial separation

1. Puts the obligation to cohabit to an end, although it does not affect the marital relationship;

2. As soon as the decree of JS is passed the parties to marriage are relieved of the duty to live together and cohabit;

3. Any act of cohabitation between the two would neutralize the effect of decree and their normal marital life is restored;

4. During the operation of the decree, parties to marriage cannot remarry;

5. Remarriage amount to bigamous act

Grounds 1. u/s 10(1)(a) - Extra-marital voluntary sexual intercourse – where either

party to marriage wilfully had sexual intercourse with another person after marriage, the other party to marriage could obtain the decree of judicial separation.

To decide cases one has to depend on ancillary facts which may be- a) Circumstantial evidence;b) Birth of a child to the wife when there is no evidence of contact with

her;c) Contracting of a venereal disease;d) Admission on the part of the respondent in some other proceedings or

a clear confession by him/her;e) Discovery of letters which might contain such contents which suggest

sexual relationship between the two.

Other features for the remedy• A solitary proof of extra-marital intercourse is sufficient for getting a

decree of judicial separation;• Circumstantial evidence should be such that it might rule out the

possibility of his innocence;• Pre marital illicit intercourse cannot be a ground to the relief of judicial

separation;• Eye witness has very little chance of credibility;• Circumstantial evidence should be such which might appear reasonable

to a man of common prudence;• At the time of presentation of the petition the respondent was living in

adultery;• Single act of extra marital relation is enough to prefer the suit u/s 10 &

13

• In Suvrai v. Saraswathi AIR 1967 Mad 85 – the court held that - in most cases the evidence is circumstantial and the circumstances under which the act is alleged to have been done must be determinative and

• In every probability must lead to a conclusion of illicit cohabitation;

• Entering the bed room, waiting for the family members to go out and entering the house when one of the spouse is alone;

• If a stranger to the family is found in the bedroom of wife at mid-night in absence of an acceptable explanation, it would normally be concluded that illicit intercourse must have taken effect.

• In Chandra Mohini v. Avinash Srivastava, AIR 1967 SC 581 – the SC observed that love letters, written to wife by a certain person, howsoever objectionable contents they might contain or might they be leading to an inference of adulterous contents they might contain; or Might they be leading to an adulterous relations

• could not establish the adultery between the two in absence of proof of similar letters being dispatched by the wife to him;

• Husband’s petition on the ground of adultery is rejected because he could not produce a single letter which were sent by her in response to those letters which were sent to her; Where no direct evidence of illicit intercourse is available, the court has to depend on indirect evidence.

• In Smt. Swaryam Prabha v. A.S. Chandra Sekar AIR 1982 Ker. 295 – where a person has married within prohibited degrees of relationship and later on, on discovering the marriage is void;

• he married another person, then the intercourse with the wife of previous marriage would also amount to illicit intercourse; and

• on that basis the wife of valid marriage can obtain the decree of JS

• In Sanjukta Pradhan v. Laxmi Narayan Pradhan AIR 1991 Ori. 39 – a charge was levelled against the wife that she went away with some other person one evening from her husband’s home and was seen moving with him on a motor cycle, after 1am in the night;

• They were seen returning from a lonely place; • She was away from her parental home and matrimonial

home;• When father-in-law went to call her, she bolted herself

in a room & never visited them;

• Court granting the decree of divorce, made the following observations – “in India, it is not for a young man and woman to live together in a house when they are neither related to each other; society being very much conservative here than elsewhere; it will be reasonable to infer adultery from the facts –

1. That only the respondent and co-respondent stayed in one house together for a long time;

2. That respondent refused to go back to matrimonial home;3. Both had no courage to come to witness box to deny the

charge of adultery;4. They had ample opportunity to commit adultery by being

alone in the house and their stay together cannot be accounted for any other reasonable innocent hypothesis.

• In P v. P&R AIR 1982 Bom, 498 – the Bombay HC held that – there can be no direct evidence of adultery; It is difficult produce evidence of the party being found in actual

compromising position; The finding of adultery must necessarily rest on circumstantial evidence; To bring under this section the actual cohabitation must have taken

place; The circumstantial evidence will consist of – (a) two offending parties being found together in unusual circumstances

or being together alone in scheduled places at scheduled time;(b) The social conditions of the parties and the manner in which parties

are accustomed to live.

• In Chandra Prakash v. Sudesh Kumari AIR 1971 Delhi 208 – the court held that ,it is a presumption in law that the respondent charged with adultery is innocent and the burden to prove adultery lies on the party who has alleged it.

• In Chetan Dass v. Kamala Devi AIR 2001 SC 1709 – the appellant and the respondent were married in the year 1976, according to Hindu rites and rituals;

• Appellant was working as compounder in the Medical Health Department in the State of Rajasthan;

• After marriage appellant had been carrying on illegitimate relationship with a lady who was nurse in the same hospital;

• Wife deserted him;• Petition was u/s 9 was filed earlier, later application was

moved u/o 6 R 17 of CPC for amendment, which was allowed;

• Amendment was to convert petition u/s 13 from sec 9;

• Apex court held that the relief of divorce cannot be granted merely on the ground that marriage was irretrievably broken down; and

• The husband who committed wrong and was leading adulterous life could not be given advantage of his own wrong and cannot be granted divorce on the desertion on the part of his wife.

Cruelty

• The expression cruelty is not defined in the act• The judicial decisions have made it distinct that cruelty

in the legal sense not necessarily be physical violence;• A course of conduct or treatment which tends to

undermine the health of the spouse/ affects the reasonable happiness of the life and ill-treatment both physical and mental would constitute cruelty;

• There is mental as well physical cruelty;• Motive or intention to be cruel is not necessary if

conduct otherwise can be held to be cruel

• In Russel v. Russel AIR 1995 Del. 315 – it was held that cruelty which is a ground for dissolution of marriage may be defined as ‘wilful and unjustifiable conduct of such a character, as to cause danger to life, limb or health, bodily or mental or as to give rise to a reasonable apprehension of such a danger’.

• The same view was observed by House of Lords in England while defining the term cruelty

• Legal cruelty- any conduct of the husband which causes disgrace to the wife or subjects her to a course of annoyance or indignity amounts to legal cruelty;

• The harm apprehended may be mental suffering as distinct from bodily harm, for, pain of mind may be even more severe than bodily pain;

• The legal concept of cruelty has varied from time to time according to social and economic conditions changes, may be not in theory but in application;

• Sec 10(1)(b) covers both mental and physical cruelty

To establish Legal cruelty Not necessary that physical violence should be used; Continuous ill-treatment, cessation of marital intercourse; studied neglect and indifference on the part of the

husband; Habitual insulting, unkindness so as to impair her health; Mental agony which will tend to undermine the health of

that spouse; Mere trivial incidents which are wear and tear of married

life do not constitute cruelty

• Prof. Ragavacharya in his book Hindu Law, considering the judgments of courts, writes – “where one of the spouse (husband) though living under the same roof refuses to speak to the other for a considerable long time and on that ground the other spouse becomes wretched and worried, such a conduct of the husband amounts to legal cruelty;

• Cruelty may be words, by talk, or by conduct of silence.

• In Shreepadachar v. Vasantha Bai AIR 1970 Mys 232 – the court held that,

abusing husband in public, in a bus and catching hold of his collar, asking the husband to cook food, when he served throwing plate at

him, insisting on asking forgiveness, threatening to burn herself and give a false complaint to the police, stopping him from going to office holding his neck in front of his

friend, amounts to cruelty inflicted by the respondent Petitioner was granted the order of Divorce

• In Jiya Lal Abrol v. Sarala Devi AIR 1978 J&K 69 – petitioner husband complained that the wife was suffering from a disease in nose because of which she was continuously emitting such awful smell as made it unbearable for him either to sit by her side or enjoy her company or to have cohabitation with her;

• Court held that it does not amount to cruelty and no remedy can be granted u/this sec and dismissed the petition.

• In P.L.Sayal v. Sarla 1961 Punjab 125 – too much love of wife towards husband, she was crazy to get more and more love and affection of her husband;

• She met a fakir to whom she expressed her will;• he gave her some love potion and told her to mixing it with

some food articles and make him eat by which he love her more;

• She administered the same to husband;• He became ill with slow fever, giddiness and ultimately he

got nervous breakdown, loss of weight, abdominal burning, backache and various other complications;

• He was admitted to hospital and she took care of him in the hospital and told him the entire story and the reason for his ill health;

• On discharge from the hospital he filed a petition for JS and contended that the wife has caused a reasonable apprehension in him and he is worried to eat anything at home;

• Considering his state of mind on the ground of cruelty decree was passed under this section

Other facts on which decree is granted

Actual or threatened physical injury Verbal abuse or insults Excessive cohabitation Refusal to cohabit Neglect to take care Communication of venereal disease Drunkenness and use of drugs Refusal to speak Forcing association with improper persons (Lalitha Devi v. Radha

Mohan 1976 Raj 1) False charge of immorality on the wife ill treatment of children or refusal to have children

Dastane v. Dastane AIR 1975 SC 1534

• This is a leading case on judicial separation on the ground of cruelty, annulment of marriage on the ground of fraud, divorce on the ground of unsoundness of mind.

• The petition was dismissed in the District and HC, hence the petitioner preferred appeal before the apex court.

• Facts – it was alleged by the husband that the wife used to threaten him by saying that she will put an end to her own life, she will set the house on fire, she will make him lose his job, tearing mangalsutra, locking out the husband while he is back from the office,

• Beating child mercilessly, pouring cold water when the child is suffering from high fever, switching on the fan with high speed and make the child under the fan

• Switching the light during the night and sitting next to husband not allowing him to go to sleep;

• The court held that all these acts tend to destroy the legitimate ends and objects of matrimony

• amounts to cruelty.

Desertion as ground for JS

• It is the act of forsaking or abandoning or the act of quitting without leave with an intention not to return;

• To cause desertion there must be cessation of cohabitation without cause thereof and consent thereto; it is total repudiation of the obligations;

• A mere severance of the relation is not sufficient, because there may be separation without desertion and desertion without separation;

• Continued separation of husband and wife which may be consistent with no intention to wilfully desert, is not desertion within the meaning of the statute;

• Desertion implies the ‘factum of separation’ and animus deserendi i.e., the intention to bring cohabitation permanently to an end.

• The husband may well live in the place but make it absolutely impossible for the wife to live there and in that stage if she leaves him, it can legitimately be held that the husband has deserted her.

To constitute desertion the following facts must be established

1. The spouse must have parted or terminated joint living;

2. The deserting spouse must have the intention to desert the other spouse;

3. The deserted spouse must not have agreed to the separation;

4. The desertion must have been without cause, and5. This state of affairs must have continued for the

requisite period, i.e., two years

For the offence of desertion

- As far as the deserting spouse is concerned 2 essential conditions must be there –

(1) The factum of separation, and (2) The intention to bring cohabitation

permanently to an end (animus deserendi)- As far as the deserted spouse is concerned:(1) The absence of consent, and(2) The absence of reasonable cause

If the deserting spouse decides to come back to the deserted spouse by a bona fide offer or resuming the matrimonial home, desertion comes to an end;

- In Bipin Chandra v. Prabhawati AIR 1957 SC 173 husband left to England for a few months, wife established intimacy with husband’s friend, there were exchanges of letters indicating adulterous act, compromises were attempted, she refused join, later her mother telegrammed to take the daughter, husband refused, filed divorce on the ground of desertion;

- Held desertion comes to an end on attempting to join the other spouse.

• Where the wife deserts the husband on a reasonable excuse, it would not amount to desertion;

• Where the husband goes on accusing his wife with unchastity and loose morals which compels her to leave matrimonial home, she cannot be held guilty of desertion;

• In Sarla Sikrodia v. Krishna Lal AIR 1982 Raj 220 – husband left the wife to a particular place for treatment, later started saying that she is unchaste,

• he filed petition for Restitution of Conjugal Rights and later for divorce, court held that her staying separate is justifiable.

• The SC in Lakshman v. Meena AIR 1964 SC 30 – reaffirmed that the factum of separation and animus deserendi are the 2 esssential constituents of the offence of desertion;

Facts- the petitioner, although educated belonged to an orthodox family, respondent wife hailed from a rich family and held modern sophisticated views;- Lived with husband some time in Bombay and later moved to Singapore where her parents stay, without the consent, against the will of the husband.

- once she came to Bombay, stayed fortnight with a relative but she did not meet Lakshman and 7 year old son also;

- When husband called her, she took her health as a reason, not permitting her to leave Singapore;

- It was the clear case on desertion, hence the decree of JS was granted in favour of husband

• In Rohini Kumari v. Narendra Kumar AIR 1972 SC 459 – it was held that;

- ‘Desertion does not merely connote separate residence and separate living, it includes strong will to an end marital relations and cohabitation for ever’;

- ‘in absence of such intention there cannot be desertion u/s10 of the act’

- Facts: parties married in 1945, lived smooth marital life till 1947, then the wife left to her maternal home;

• Later the husband called her to join him and resume marital relation, which she did not do;

• Meanwhile the husband married a second wife just one day before the HMA 1955 came into force;

• The husband brought a petition of judicial separation on the ground of desertion, which was opposed by the wife by alleging that the husband ill treated her and had second wife;

• She was unable to prove ill treatment, 2nd marriage is not punishable, as the provision for bigamy under HMA is not retrospective in nature;

• The application filed by her got dismissed and the suit of the husband on the ground of desertion was decreed.

• In Smt. Santosh Devi v. Prem Chand AIR 2007 Raj. 121 – parties married as per Hindu rituals and rites, out of said wedlock a male child is born;

• The wife forced the husband to live separately from his parents, who were old and not keeping good health;

• She used to go to her parent’s house even without informing him, and her behaviour towards husband was not justifiable;

• Finally she left the matrimonial house and never returned• Court observed that the wife has deserted the husband and

JS was granted.

• Desertion vs. separation: Desertion is not the same as separation. In separation both spouses consent to living apart. Desertion only occurs when one spouse does not consent to the separation.

• Actual desertion & constructive desertionIn actual desertion the deserting spouse leaves the home. Constructive desertion occurs when the deserted spouse leaves due to unbearable conditions at home caused by the other spouse. Combined with the above elements of desertion, depending on the state.

• “Constructive desertion” involves actions or conduct resulting in the other spouse’s forced separation.

• To prove constructive desertion, the spouse leaving the home must prove that the misconduct by the spouse remaining in the home constitutes grounds for divorce.

- this spouse must show that the remaining spouse conducted himself/herself in such a manner as to provoke the leaving.

• In Tarachand v. Smt. Narain Devi AIR `975 P&H 300 – the court held that where the appellant had himself created a situation under which the respondent was compelled to leave and live separately,

• The appellant could not raise the plea of desertion against the respondent and file a petition for judicial separation

• In Jyotish chandra v. Meera AIR 1970 Cal. 266 – the wife had gone to her parental home with the consent of her husband and later the husband imputed against her that she had illicit relations with her sister’s husband,

• Under these conditions of imputation, the wife showed no willingness to return to her husband;

• Court held husband is guilty of constructive desertion.

• In Dr. Srikant Rangacharya v. Smt. Anuradha AIR 1980 Kar 8 – the court observed that the wilful neglect by one spouse to the other would come within the meaning of constructive desertion;

• Desertion includes the wilful neglect of the petitioner, ‘wilful’ means ‘on purpose’, ‘intentional’,

• Desertion is inferred from the state of affairs and not from place.

Conversion as a ground (Sec 10(1)(d)

• Prior to Hindu Marriage Laws (amendment) Act, 1976 – conversion was a ground of decree of divorce and now it has also been made a ground for judicial separation;

• Ceasing to be a Hindu by conversion on the part of the other party to the marriage, forms a ground for a decree of judicial separation and of divorce;

Unsoundness of mind 10(1)(e)• Incurable unsoundness of mind of either party to marriage is a

ground of judicial separation and also divorce.• By the amendment act 1976, it is no longer required to

establish that the other party has been continuously of unsound mind for a period not less than two years immediately prior to the presentation of petition;

• The petitioner has to establish that the respondent has been –1. Incurably of unsound mind2. Which is continuous or intermittently from mental disorder3. Of such kind and to such an extent that the petitioner cannot

be expected to live with the respondent.

• The expression ‘mental disorder’ has also been defined by the act as – ‘persistent disorder or disability of mind which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party’

• To succeed in the divorce cases, the petitioner has to produce the evidence and prove it beyond reasonable doubt that the mental disorder – of respondent was of such a kind and to such an extent that the petitioner can’t live safely with the respondent

• In Smt. Suvarna Lata v. Mohan Anand Rao Deshmukh & ors, AIR 2010 SC 1586 – husband filed a suit for divorce on the ground that wife is a patient of Schizophrenia;

- a long-term mental disorder of a type involving a breakdown in the relation between thought, emotion, and behaviour,

- leading to faulty perception, inappropriate actions and feelings,

- withdrawal from reality and personal relationships into fantasy and delusion, and a sense of mental fragmentation.

• Decree of divorce was passed in favour of husband by the subordinate court;

• On appeal SC observed that the finding of schizophrenia in divorce proceeding is found incorrect in custody proceedings;

• The order of the HC would have ill effect on her child so that decree of divorce is to be set aside.

• In Smt. Alka v. Abhinesh AIR 1991 MP 205 – it was found that the wife was so cold and frigid and nervous on 1st night of marriage, resulting in no cohabitation;

• She was found unable to handle domestic appliances;

• She used to urinate in presence of family members;• It was held that she is suffering from schizophrenia,

husband was held to entitled for nullity of marriage.

Leprosy

• Where the respondent is a victim of serious leprosy in its incurable and virulent form, a decree of divorce will be passed in favour of petitioner;

• Virulent means the disease is considered to be extremely poisonous;

• No person can be forced to undergo a medical examination but if he or she refuses to do so, it raises a presumption against that person.

Venereal disease

• Where the respondent has been suffering from venereal disease in a communicable form, a decree of divorce will be granted in favour of petitioner;

• The period of duration is dispensed with by Marriage Laws (amendment) Act, 1976;

• The section requires that the disease must be in a communicable form;

• Venereal diseases are only such diseases which are communicated by sexual intercourse.

Renunciation of the world

• The remedy is available on the ground that the other spouse has renounced the world by entering any religious order;

• By performing the requisite ceremonies and formalities of the particular religious order;

• The renunciation of the world means, relinquishment of all property and worldly affairs;

• Where a person has left the world but did not enter into any religious order he can be held guilty of desertion or neglect and a decree can be obtained on that ground.

Presumptive death• Where there are reasonable grounds for supposing the other

party to marriage to be dead, the petitioner may seek divorce on this ground.

• This supposition could be drawn where the other party has not been heard of as being alive for a period of 7 years or more by persons who would naturally have heard of him/her had that party been alive.

• On the court being satisfied that sufficient enquiries have been made as to the existence of the respondent and has no reason to think that he/she is alive, pass the decree of divorce on this ground;

• If the respondent returns the marriage will not get restored.

Non resumption of cohabitation after decree of JS

• It is obligatory on the court to pass a decree for divorce when cohabitation has not been restored within 1 year of the passing of the decree for JS;

• Prior to 1974, failure to resume cohabitation for a period of 2 years, provided a ground only to the party who had obtained such decree to seek divorce;

• By amendment act 1974, sec 13 (viii) & (ix) were omitted and inserted (1A), which provided that either party could seek divorce on non-resumption of cohabitation or non-restitution of conjugal rights for a period of 2 years or more after the decree.

• In 1976, the Hindu Marriage Act was again amended and liberalized the ground for divorce, by reducing the period prescribed to 1 year from 2 years;

• In Bimla Devi v. Singh Raj, the P&H HC observed; ‘ the question is no longer who obtained the decree for RC rights or JS, the question is have the parties been able to come together after the decree was passed, if they have not been able to come together, either party may seek divorce, irrespective of whose fault it is.

Failure to comply with the decree of restitution of conjugal rights

• Either spouse to marriage would be entitled to a decree of divorce when decree of conjugal rights is not complied with within 1 year from the date of decree;

• u/s 13 (1-A)(ii) either party can apply for dissolution of marriage by a decree of divorce if it is able to show that there has been no compliance with the order

• In O.P.Mehta v. Saroj Mehta AIR 1984 Del 159 – the decree for conjugal rights is passed in favour of husband, after 4-1/2 months, the husband brought another petition of divorce on the ground of adultery of the wife;

• Later on after a year he brought another petition of divorce on the ground that the wife has not complied with the decree of restitution of rights with the period of 1 year;

• The wife resisted the petition on the ground that the husband deliberately brought a petition after 4-1/2 months, falsely imputing adultery and made it impossible for her to join him and comply the decree;

• Court held that non-compliance is justified and the suit stands dismissed.

Additional grounds to wife u/s 13(2)

• This sub section has been amended by Marriage Laws(Amendment) Act, 1976, and two additional grounds mentioned in 13(2)(iii) & (iv) were added.

• Clause (i) – Husband’s Bigamy – a wife may present a petition for the dissolution of marriage by a decree of divorce on the ground that at the time of presenting the petition there is already living wife for the respondent;

• In Mandol Nagamma v. laxmibai 1966 AP 82 –The court held that, where a petition for divorce is presented on the ground that the husband had remarried, the fact that the husband after the presentation of the said petition had divorced his other wife not stand in the way of granting divorce. • Smt. Nirma v. Nikkar AIR 1968 Del 260 – in the event if

the first wife enters a compromise with her husband to live with him on husband’s second marriage, would not stand in the way of obtaining a decree of divorce.

• If the wife already knew that her husband had married another woman, even that fact would not stand in the way of obtaining a decree of divorce;

• The petitions may fail on the ground of inordinate delay not on the above said grounds.

Rape, Sodomy or bestiality u/c (ii)• A wife may present a petition for divorce if the husband is,

after the solemnization of their marriage is guilty of rape, sodomy or bestiality;

• Where the husband was guilty of any of the offences, prior to the petitioner’s marriage, the petitioner cannot claim a divorce;

• These offences must be subsequent to marriage;• These terms are not defined in HMA but u/s 375 the word

‘rape’ is defined;• u/s 377 sodomy and bestiality is defined as unnatural

offences;

• An attempt to commit rape, sodomy or bestiality is not a good ground for obtaining the decree of divorce;

• There may not be direct evidence for these offences, mere proof of such a misconduct on his part is sufficient to enable the wife to get a decree of divorce.

Non resumption of cohabitation for 1 year or upwards (iii)

• After the passing of maintenance order u/s 18 of the Hindu Adoptions and Maintenance Act, 1956, or u/s 125 of Cr.p.c-

• This sub clause is inserted by amd 1976 –The conditions for moving divorce petition under this sub clause are –a) The petitioner should be wife;b) There should be a decree or order for maintenance either

u/s 18 HA&M or 125 of Cr.PCc) There had been no resumption of cohabitation between the

spouses for a period of 1 year or more since the passing of such decree or order of maintenance.

Repudiation of Marriage u/c (iv)

• By marriage amendment act 1976;• Wife whose marriage was solemnized before she

attained the age of 15 years, can repudiate the marriage after she attaining the age of 15 years but before attaining the age of 18 years.

• It is immaterial whether the marriage was consummated or not;

• This clause is applicable whether the marriage was solemnized before or after the commencement of the marriage laws (amd) act, 1976.

• Bathula llahi v. Bathula Devamma AIR 1981 AP 74 – the court granted the decree after the wife had attained the age of 18 years;

• She had repudiated the marriage before attaining 15 years because it was impossible for her to live with husband;

• Filed the petition after repudiating the marriage by herself;

• Court heard the matter and the reasons for delay in filing the petition, on being satisfied the repudiation decree was passed.

Alternative remedies in Divorce proceedings

• Sec 13-A, has been inserted to provide that under certain circumstances the courts may, while dealing with the petition for divorce, have a discretion to grant a decree for JS instead.

• This discretion is not enjoyed for the petitions on conversion, renouncing the world, not heard.

Court may rescind the decree u/s 10(2)

1. The decree has been obtained ex parte, by showing reasonable excuse for his/her absence,

2. The parties cohabited with each other after the decree was passed or they have resumed living together,

3. The opposite party has condoned the offence,4. The opposite party has satisfied the court he/she is

willing to live as husband & wife & is not going to do any such thing in future on which judicial separation was granted

Effects of judicial separation1. Marriage is not annulled or dissolved; mutual rights are

suspended; 2. Husband & wife continue to have the same status but they are

not bound by any obligations;3. Does not prevent the parties from subsequently resuming

cohabitation and living together;4. If either spouse marries during the period of judicial separation,

liable for punishment for 2nd marriage;5. The petitioner, who may be wife or husband, may claim alimony

from the other;6. The wife shall be considered as feme sole – ‘independent women’

with respect to the property of every description;