Dissolution of Hindu Marriage Divorce Section 13 (1) At fault Grounds
i. Adultery Voluntary intercourse with third person. It does not include rape. Vira Reddy vs Kistamma 1! - One single act of adultery is enough for divorce or judicial separation. Burden of proof is on the petitioner. Earlier it had to be proved beyond doubt but now only high probability is required. Circustantial evidence is sufficient.
ii" #ruelty !egal concept of cruelty has varied fro tie to tie" place to place" and situation to situation. In early law" intention was considered an essential eleent of cruelty but in odern law it is not so. #he intention of the law is to protect the innocent party fro any har -physical or ental. $colding or nagging have also been considered as cruelty. Definition of #ruelty
#here is no precise definition of cruelty because the ter is so wide. $everal situations and cases over past %&& years have shown that cruelty can be ental or physical. In the case of Dastane vs Dastane 1$% &om " it was held that cruelty could be through words" gestures" or even by ere silence. ' general e(planation of cruelty can be found in the case of Russel vs Russel 1'$ " in which it was held that any conduct that poses a danger to life" lib" or health - physical or ental" or causes reasonable apprehension of such danger" is cruelty. Earlie Earl ier" r" th thee pe peti titi tione onerr ha had d to sh show ow th that at th thee ac actt of th thee res respo pond nden entt ca caus used ed re reas ason onab able le apprehension of danger. #hus" in the case of Sayal vs Sarla 1!1 una* " when wife adinistered love-potion to the husband" causing his hospitali)ation" it was held to be cruelty even though she did not ean to hurt her husband because it caused reasonable apprehension of danger. *owever" now it is not required. #he clause erely says" +if the respondent respond ent has treate treated d the petit petitioner ioner with cruelty+. cruelty+. In the case of GV+ Kames,-ara Rao vs G .alili /%%/ " $C held that it is not necessary that the act has caused a reasonable appre ap prehe hens nsio ion n in th thee i ind nd of pe peti titi tione onerr. #h #hee e epha phasi siss wi will ll be on th thee ac actt or co cond nduc uctt constituting cruelty. It further held that social status of the parties" their education ust be cons co nsid ider ered ed wh whil ilee de dete ter rin inin ing g wh whet ethe herr th thee ac actt co cons nsti titu tute tess cr crue uelt lty y or no not. t. #h #hus us"" wh what at aounts to cruelty in one case ay not aount to cruelty in another. 0ntention to *e cruel is not material
Earlier intention was necessary but now it is not so. In the case of .amieson vs .amieson 1/" *ouse of !ords observed that unintentional acts ay also aount to cruelty. In 2illiams vs 2illiams 1!3 Alla,*ad " the necessity of intention in cruelty was finally rejected in India. In this case husband was insane and constantly accused the wife of adultery. #his was cruelty without intention. #hus" in the case of &,ag-at vs &,ag-at 1$! &om " when husband tried to strangulate wife,s brother and he younger son in a fit of insanity" he was held to be cruel. #eporary insanity or schi)ophrenia cannot be a defense against the plea of cruelty. #ruelty need not only *e against t,e etitioner
In &,ag-at vs &,ag-at4 cruelty against his step daughter was held as cruelty against wife. 5,e act or omission need not only *e of t,e resondent
$ince ost woen have to live in husband,s joint faily" they have to put up with their actions also. In the case of S,yam Sundar vs Santa Devi 1!/ " the wife was ill treated by the in-laws and husband stood their idly without caring for wife. #his was held as cruelty. *owever" in the case of Goal vs Mit,iles, 1$ Alla,*ad " husband,s stand of neutrality regarding wife and other and his inaction about his other,s nagging of his wife was not considered cruelty because it is noral wear and tear of a arried life. 5yes of cruelty 6 ,ysical and Mental ,ysical #ruelty
Injury to body" lib" or health" or apprehension of the sae. In the case of Kaus,alya vs 2isa7,iram 1!1 un" husband beat his wife so uch so that she had to lodge police coplaint even though injury was not serious. It was held that serious injury is not required. Mental #ruelty
In &,agat vs &,agat 18 S# held that a conduct that causes such a ental pain and suffering that aes it ipossible to live with that person is ental cruelty. ental cruelty ust be such that it cannot reasonably be e(pected to live together. #his has to be judged on the circustances of the case. In the case of + Sreeadc,anda vs Vasant,a 1$% Mysore " wife hurled abuses at the husband and quarreled over trivial atters so uch so that he becae a laughing stoc in the locality. #his was held to be ental cruelty against the wife. In Satami vs .agdis, 1$% #alcutta " false accusations of adultery were held to be ental cruelty.
9as,oda*ai vs Kris,namurt,i 1/ - ere doestic quarrels with other in law is not cruelty. S,o*,a vs Mad,u7ar Reddy 1'' S# - Constant deand for dowry is cruelty.
In the case of .yotis,c,andra vs Meera 1$%" husband was not interested in wife" he was cold" indifferent" se(ually abnoral and perverse. It was physical as well as ental cruelty.
iii" Desertion #hree #ypes - 'ctual /esertion" Constructive /esertion" 0illful neglect. Actual Desertion - factu of desertion" anius deserdendi" 0ithout reasonable cause" without consent" 1 yrs ust have passed. :ac,man vs Meena 6 1!8 - 0ife was fro rich faily. $he was required to live in joint faily of husband. $he went bac to parents. 2ept aing fae proises of return but never did. *eld desertion. .agannat, vs Kris,na - 0ife becae braha uari and refused to perfor arital obligations. *eld desertion. &iinc,andra vs ra*,avati S# 1$ - *usband went to England. *usband,s friend cae to house in India. *usband cae bac. 'lleged affair" which was refuted by wife. 0ife went to her parents for attending arriage. 3revented her fro coing bac. *eld no desertion by wife. Sunil Kumar vs ;s,a 18 - 0ife left due to unpalatable atosphere of torture in husband,s house. *eld not desertion. #onstructive Desertion - If a spouse creates an environent that forces the other spouse to leave" the spouse who created such an environent is considered deserter. .yotis,c,andra vs Meera 1$% - *usband was not interested in wife" he was cold" indifferent" se(ually abnoral and perverse. 0ent to England. #hen cae bac and sent wife to England for 3h/. 0hen wife cae bac" did not treat her well. 'bused her and his inlaws physically. 0ife was forced to live separately. *eld desertion by husband. -illful +eglect - If a spouse intentionally neglects the other spouse without physically deserting" it is still desertion. &ali,ar vs D,ir Das 1$ - 4efusing to perfor basic arital obligations such as denial of copany or intercourse or denial to provide aintenance is willful neglect. Reasona*le #ause
%. If there is a ground for atrionial relief. 5ground for void" voidable arriage or grounds for aintenance under sec %6 of *''7. 1. If spouse is guilty of a atrionial isconduct that is not enough for atrionial relief but still weighty and grave.
8. If a spouse is guilty of an act" oission" or conduct due to which it is not possible to live with that spouse. #,andra vs Saro 1$ - 9orcing a brahin wife to eat eat. 2it,out #onsent &,ag-ati vs Sad,u Ram 1!1 - 0ife was living separately under a aintenance agreeent. *eld not desertion.
v" ;nsound mind $ection %8 5iii7 unsound ind- includes ental disorders such a incoplete developent of brain or psychopathic disorder or schi)ophrenia
vi" :erosy $ection %8 5iv7 virulent and and incurable !eprosy
vii" Venereal disease $ection %8 5v7 counicable venereal disease
viii" Renunciation of t,e -orld $ection %8 5vi7 renounced the world
i>" resumed deat, $ection %8 5vii7 presued death - not heard of in preceding ; years. Section 13 (16A) &rea7do-n 5,eory
5i7
5i7 'nother wife of the husband is alive. 5ii7 4ape" $odoy" Bestiality. 5iii7 0ife was awarded aintenance under section %6 of the *'" %=>? or under $ection %1> of Cr3C and no cohabitation has occurred for % yr after the award.
5iv7 If wife was under %> at the tie of arriage and if she repudiates the arriage before %6. Section 136A Alternate relief in divorce roceedings - If the judge feels that sufficient grounds do not e(ist for divorce" he can grant judicial separation. Section 136& Divorce *y Mutual #onsent (+o ?ault t,eory of Divorce) rocedure of Mutual Divorce
utual /ivorce is to be filed by the couple only after they have lived apart for at least a year. ' petition supported with affidavits for divorce should be filed in the district court by the both the spouses. #he husband and the wife should jointly state to the court that they are unable to live together as they are facing iense difficulties in adjustent. #he filing of divorce petition by both the husband and the wife is legally nown as the @5,e ?irst Motion etition for Mutual #onsent Divorce@ . @5,e Second Motion etition for Mutual #onsent Divorce@ entioned in the sub-section 517 of $ection %8 B is filed when the couple reappears to the court for the second tie after a period of si( onths. If the judge is satisfied after a hearing fro both the husband and wife" the court announces a utual divorce decree. If the couple fails to appear in the court after si( onths and not later than eighteen onths fro the date of first otion" the divorce petition becoes null and void. Either of the couple can withdraw his@her petition within the si( onths ter. ' judgent for utual divorce is passed out only if all the necessary agreeents required for a utual divorce in India are strictly aintained. #he husband and the wife should coe to ters of settleent regarding the following issues. •
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Custody of Child 4eturn of /owry 'rticles @ Istridhan of 0ife
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!up $u aintenance 'ount of 0ife
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!itigation E(penses
2it,dra-al of consent
9or pursuing divorce by utual consent" it is iperative that utual consent should continue till the decree is granted by the court. In case" even if one of the parties to arriage withdraws his or her consent initially given" the court instantly loses the jurisdiction to proceed further and grant relief under $ection %8-B of the 'ct. In this respect" the $upree Court in the *itesh Bhatnagar case reaffired its earlier decision in $ureshta /evi v. O 3raash 5%==%7" which overruled the view of the *igh Courts of Bobay and /elhi that proceeded on the preise that the crucial tie for giving utual consent for divorce is the tie of filing petition and not the tie when they subsequently ove for a divorce decree.
#he statutory e(pression Athey have not been able to live together under $ection %8-B5%7 of the 'ct" is to be construed not just as a trite stateent of pure volition. It bears a deeper connotation. It indicates" as the ape( court has e(pounded" Athe concept of broen down arriage iplying thereby that reconciliation between the is not possible. In this respect" the court is duty bound to satisfy itself Aafter hearing the parties and after aing such inquiry as it thins 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. #he purpose of the period of %6 onths fro the date of presentation of the joint petition under $ection %8-B 517 of the 'ct is for re-thin and reconciliation. If the consent is withdrawn by either party to arriage" the petition becoes instantly ineffective and is liable to be disissed at the threshold on this very count. In view of the long separation of ore than a decade fro his wife" the husband" as a last resort" urged the ape( court to dissolve his arriage by e(ercising its special jurisdiction under 'rticle %D1 of the Constitution. #o buttress his clai he specifically cited a pro(iate decision of the $upree Court itself 'nil 2uar Fain v. aya Fain 51&&=7 wherein though the consent was withdrawn by the wife" yet the court found the arriage to have irretrievably broen down and granted a decree of divorce by e(ercising its special constitutional power. Secial o-er
*owever" in the instant case the ape( court refused to invoe its special power in favour of the husband ainly for two reasons. One" the special power is to be used very sparingly in cases which cannot be effectively and appropriately tacled by the e(isting provisions of law or when the e(isting provisions cannot bring about coplete justice between the parties. Generally such a power is e(ercised neither in contravention of statutory provisions nor erely on grounds of sypathy. #wo" the sanctity of the institution of arriage cannot allowed to be underined erely at the whis of one of the annoying spouses" ore specially in the situation and circustances" as in the present case" wherein the wife has stated that she wants this arriage to continue Ato secure the future of their inor daughter. Invariably it is found that a petition for divorce on fault grounds under section %8 is replaced by the reedy of dissolution of arriage by utual consent under section %8-B of the 'ct. #his is advisedly done as if the purpose of the latter provision is to facilitate divorce by effecting coproise between the parties in respect of ancillary atters. #his in our view is perhaps the ost erroneous construction of the provisions of section %8-B of the 'ct. #he purpose of the reedy of utual consent" we repeat" is not to facilitate the dissolution of arriage" inasuch as even the provisions of section %8-B are subject to the other provisions of the 'ct. #hus" to save arriage and not to hasten its dissolution should be the core concern of the court. $pouses ay thin of dissolving their arriage if they so fancy provided the court is satisfied that any of the grounds for granting relief e(ists" and that in courts view it is not possible to ae the reconciled.
0t is suggested to go t,roug, t,e class notes also"