Conditions of Hindu Marriage
Q. 5. What are the essential conditions of a valid marriage under the Hindu Marriage Act, 1955.
Or
Discuss the conditions of Hindu marriage as laid down under Section 5 of the Hindu Marriage Act, 1955.
Or
Examine the conditions of a valid Hindu marriage as provided under Section 5 of the Hindu Marriage Act, 1955.
Ans. Conditions of Hindu Marriage. The essential conditions of a valid Hindu marriage are provided under Section 5.
1. Monogamy. Section 5 (i) of the Hindu Marriage Act, 1955 provides that neither party to the marriage should have a spouse living. Any person marrying in violation of this condition will be punished in two ways ie.. his marriage will be void and the marriage is punishable under Sections 494 and 495 of the Indian Penal Code for the offence of bigamy.
A woman whose husband is alive and her marriage is valid, cannot marry another husband. But if there is a dissolution of the previous marriage either by a decree of nullity under Section 12, or by a decree of divorce under Section 13 either party to such a marriage may marry again and the prohibition of Section 5 (i) will have no operation. Section 5 (i) of this Act provides the rule of Monogamy and prohibits Polygamy and Polyandry.
A second marriage in the lifetime of the spouse of the first marriage in the view of Section 5 (1) of this Act will be against the law and such marriage will be void ab initio and ipso facto Smt. Yamanabai Anant Rao Adhar v. Anant Rao Thiraram Adhar, AIR 1988 SC 644] even if that marriage was contracted outside India. [Miles v. Chiton, 1 Rob, 684]
Custom amongst the Nadar Community of Udumalpet Taluk of Tamil Nadu permitting a second marriage while the first marriage was subsisting even if established, cannot have the force of law in view of the statutory provisions contained under Sections 5 and 11 of the Hindu Marriage Act, 1955.
2. Neither party to the marriage should be a person of unsound mind.- Section 5 (ii) of the Hindu Marriage Act, 1955 provides that at the time of marriage neither party-
(a) is incapable of giving a valid consent to it in consequences of unsoundness of mind, or
(b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children, or
(c) has been subjected to recurrent attacks of insanity
In S. Laxmi Narayan Shanti, [AIR 2001 SC 2110] the Supreme Court observed that to brand a wife as unfit for marriage and procreation of children on account of the mental disorder it needs to be established that the ailment suffered by her is of such a kind or such an extent that it is impossible for her to lead a married life.
According to Section 5 (ii) of this Act the parties should not be of unsound mind at the time of marriage If a person becomes a lunatic subsequent to the date of marriage, the provisions of this clause are not attracted. The marriage in violation of Section 5 (ii) is not a void marriage but a voidable marriage under Section 12, which can be annulled by a decree of nullity on the ground that the other party was an idiot or lunatic at the time of marriage.
3. Age of the parties. The Hindu Marriage Act, 1955 provides that the bridegroom must have completed the age of twenty-one years and the bride the age of eighteen years at the time of marriage. The marriage solemnized in contravention of age condition is not void, but such marriage is voidable under Section 3 of the Prohibition of Child Marriage Act, 2006. The person who procures such a marriage of himself or herself to be solemnized will be punishable with rigorous imprisonment which may extend to two years or with fine which may extend to one lac rupees, or with both. [Section 18(a)]
4. Degrees of prohibited relationship. Section 5 (iv) of the Hindu Marriage Act provides that the parties must not be related to each other within the prohibited degrees, unless such marriage is sanctioned by custom or usage governing both the parties.
Two persons are said to be within the degrees of prohibited relationship:
(i) if one is lineal ascendant of the other, or
(ii) if one was the wife or husband of a lineal ascendant or descendant of the other, or
(iii) if one was wife of the brother or of the father’s or mother’s brother or of grandfather’s or grandmother’s brother of the other, or
(iv) if the two are brother and sister, uncle and niece, aunt and nephew, or children of brother and sister or of two brothers or of two sisters.
Here also relationship includes:
(i) relationship by half or uterine blood as well as by full blood;
( ii) illegitimate blood relationship as well as legitimate;
(iii) relationship by adoption as well by blood.
The marriage in contravention of the above clause will be null and void, and any person who procures such a marriage of himself or herself will be punishable under Section 18 (b) of the Act with simple imprisonment which may extend to one month, or with fine which may extend to one thousand rupees, or with both. But if the custom or usage governing each of the parties permits such a marriage between the two, the marriage shall be valid, and parties will not be punishable under Section 18 (b) of the Act.
5. Non-sapinda. Section 5 (v) of the Hindu Marriage Act provides that the parties to the marriage should not be sapindas of each other. The marriage performed between sapindas is void. The person who procures the marriage of himself in contravention of this provision will be punishable under Section 18 (b) of the Act with simple imprisonment which may extend to one month, or with fine which may extend to one thousand rupees. or with both. But if the custom or usage governing each of parties permits such a marriage between the two the marriage shall be valid and parties will not be punishable under Section 18 (b) of the Act.
6. Marriage ceremonies. A Hindu marriage may be solemnised in accordance with the customary rites and ceremonies of either party thereto [Section 7(1)]. Section 7(2) of the Act provides that where such rites and ceremonies include the Saptapadi, that is the taking of seven steps by the bridegroom and the bride jointly before the sacred fire marriage becomes complete and binding when the seventh step is taken.
The Act prescribes ceremonial marriage and does not invalidate a marriage without any ceremony whatsoever. Where the marital rites and ceremonies include Saptapadi, the marriage becomes binding and complete when the seventh step is completed and till then it is revocable.
7. Non-impotency. The parties to the marriage should not be impotent at the time of marriage. Section 12 (1) (a) of the Hindu Marriage Act, 1955 as amended by the Marriage Laws (Amendment) Act, 1976 provides that, “If the marriage has not been consummated owing to the impotency of the respondent, the marriage is voidable”.
Therefore, if the respondent was impotent at the time of marriage and the marriage has not been consummated, then the other party may avoid the marriage.
Nowhere in the Hindu Marriage Act, 1955 the term impotency has been defined.
Impotency means incapacity to consummate the marriage. The non- consummation of marriage may be due to some structural defect in the organ of generation rendering complete sexual intercourse impracticable or due to some other cause. It may be even mental or psychological. Again it may be universal or only relative, that is, a person may be impotent with a particular spouse but non-impotent with other. The Supreme Court in Yuvaraj Digvijay v. Yuvarani Pratap Kumari, AIR 1970 SC 137 said:
“A party is impotent if his or her mental or physical condition makes the consummation of the marriage a practical impossibility.”
8. Non-pregnancy of the wife. The wife must not be pregnant at the time of the marriage. If she was as such then the marriage is voidable at the option of the husband. To avoid such marriage the husband has to prove that
(i) she was pregnant at the time of marriage,
(ii) she was pregnant by a person other than by him,
(iii) the pregnancy was not known to him at the time of marriage;
(iv) since the knowledge of the facts the marital intercourse has not taken place, and
(v) the proceedings have been instituted within one year from the date of marriage.
If any one of the five conditions is not proved the marriage will not be avoided and will be treated as valid.
9. Fraud or Force. Section 12 (1). Clause (c) lays down that the marriage is voidable if the consent of the petitioner was obtained by force or fraud as to the nature of ceremony or to any material fact or circumstances concerning the respondent. In order to avoid a marriage the petitioner has to prove:
(i) that the petition has been presented within one year after the force has ceased to operate or the fraud has been discovered, and
(ii) that the petitioner has not, with his or her full consent, lived with the other party to the marriage as husband or wife after the force has ceased to operate or the fraud had been discovered.
In Rabindra Pd v. Sita Devi, AIR 1986 Pat. 128 the consent of the bridegroom was obtained by practicing fraud, but the petition to annul the marriage was filed two and half years after detection of the fraud. The Patna High Court held that the petition is not maintainable.
In Rajender Singh v. Smt. Pramilla, AIR 1987 Del. 285, the Delhi High Court held that the concealment of pre-marital status by the husband amounted to fraud. In this case Rajinder Singh concealed of the fact that he was already married and that his first marriage was dissolved by the customary divorce.
Q. 6. Can a Hindu marriage be solemnised without a guardian?
Ans. Guardianship-Is it necessary for solemnisation of a Hindu marriage. The original Section 5(iii) of the Hindu Marriage Act laid down that at the time of marriage, the bridegroom must have attained the age of eighteen years, the bride the age of fifteen years. Section 6 of the Hindu Marriage Act which has been omitted by the Child Marriage Restraint (Amendment) Act, 1978 initially specified for the guardianship for marriage. Whenever the consent of a guardian was necessary for a bride (i.e., for a bride who was below the age of eighteen years) the persons entitled to give such consent were the following the father, the mother, the paternal grandfather, the paternal grandmother, the brother by full blood, the brother by half blood etc.
No consent of guardian is necessary after the amendment was made in the Hindu Marriage Act by the Child Marriage Restraint (Amendment) Act. 1978 which omitted Section Stvi) and Section 6 of the Hindu Marriage Act and has increased the age of marriage Now, the bridegroom must not be below the age of twenty-one years and the bride must not be below the age of eighteen years at the time of marriage. Therefore, marriage under the Hindu Marriage Act may be solemnised without a guardian at present.
Sapinda Relationship
Q. 7. What do you understand by the term ‘Sapinda’? What changes has been brought about by the Hindu Marriage Act, 1955 in Sapinda relationship? How does Sapinda relationship between the parties affect a marriage under the Act?
Or
Define Sapinda relationship. Point, out the changes brought about by the Hindu Marriage Act, 1955 with respect to the Sapinda relationship. What is the effect of Sapinda relationship upon the validity of a Hindu marriage?
Or
What is Sapinda relationship? Does the Hindu Marriage Act, 1955 make any change in the previous law on this point? Mention. Discuss also the effect of Sapinda relationship upon marriage under the Act.
Ans. Old Hindu Law on ‘Sapindaship’. The word ‘sapindaship’ is used in two senses. In one sense it means connection by pinda, the funeral oblations, in other sense, it means relation by particles of one body. The staunch supporter of the first view is Jimutavahan, the author of Dayabhaga and of the other, Vijnaneshwar, the author of Mitakshara.
(a) Dayabhaga Law on Sapinda relationship. According to Dayabhaga law, “Sapinda’ means of the same pinda. “The Pinda” means cooked rice-ball presented to the manes of ancestors at the shradha ceremony A Hindu male is bound to offer pinda (funeral cake) to six immediate paternal ancestors, and three immediate maternal ancestors. That is, he is bound to give pinda to his father,
father’s father,
father’s father’s father,
father’s father’s father’s father,
father’s father’s father’s father’s father,
father’s fathers’ father’s father’s father’s father,
mother’s father.
mother’s father’s father, and
mother’s father’s father’s father.
One who is bound to offer pinda, and the other who receives it are ‘sapindas’ of each other. Thus sapinda relationship extends upto seventh degree on paternal side and five degree on maternal side. In counting the degree the giver of the pinda is counted as first degree. Thus on paternal side sapindas are father, father’s father (F2), F3, F4, F5 and F6, and on maternal side, the mother, the mother’s father (MF), MF2 and MF3. Sapinda relationship, according to Dayabhaga law means persons related through pinda, that is, the funeral oblations of food.
(b) Mitakshara Law on Sapinda relationship. According to Mitakshara, “pinda” means body, and sapinda relationship is the connection of person through the particles of the same body. Vijnaneshwar (Mitakshara) commenting on Yajnavalkya 1-52 says:
(Sapindaship means one connected through the particles of the same body).
Thus, the son is the sapinda of his father, because particles of his father’s body having entered into his just so he is a sapinda of his mother because particles of the mother’s body have entered into his. In like manner stands the grandson in sapinda relationship to his grandfather, and the rest, because through his father, particles of his grand father’s body have entered into his own. The husband and the wife become sapindas of each other because a text of the revelation says that the marriage-sanskara unites them “bones with bones, flesh with flesh and skin with skin”.
Mitakshara says that wherever the term “sapinda” is used there exists between the persons to whom it is applied in connection with one body. “either immediately or by descent”. But that relationship of all persons may, in one way or the other, be traced with all other persons in the world, so it is ordained:
It extends five degree on mother’s side, and seven degree on father’s side.”
Hence although word “sapinda” by its etymological import applies to all relations, yet it is restricted to six ascendants beginning with the father. the man himself being seventh. Likewise on mother’s side sapindaship is restricted to five degrees inclusive of man himself.
Modern Hindu Law on Sapindaship
The Hindu Marriage Act has defined sapinda relationship under Section 3(f) of the Hindu Marriage Act, 1955 as follows:
(i) Sapinda relationship with reference to any person extends as far as the third generation (inclusive) in the line of ascent through the mother and the fifth (inclusive) in the line of ascent through the father, the line being traced upwards in each case from the person concerned, who is to be counted as the first generation,
(ii) two persons are said to be ‘sapindas’ of each other if one is a lineal ascendant of the other within the limits of sapinda relationship, or if they have a common lineal ascendant who is within the limits of sapinda relationship with reference to each of them.
Relationship includes:
(i) relationship by half or uterine blood as well as by full blood:
(ii) illegitimate blood relationship as well as legitimate:
(iii) relationship by adoption as well as by blood; and all terms of relationship in those clauses shall be construed accordingly.
The sapinda relationship extends as far as the third generation on mother’s side and upto the fifth generation on the father’s side.
The Hindu Marriage Act does not define “sapindaship” but only provides who are sapindas. Clause (f) (i) of Section 3 of the Act does not distinguish between Mitakshara and Dayabhaga schools, it abolishes that distinction and adopts a uniform rule which restricts the “sapinda relationship” to three degrees in the line of ascent through the mother and five degrees in the line of ascent through the father.
There are two categories of Sapindas
(i) a lineal descendant within limits of sapindaship, and
(ii) persons having common lineal ascendant within those limits.
The Act has made the calculation of sapinda-relationship easy. At first the common ancestor should be found. Then it should be seen whether the relationship between the two would-be spouses is through the father or mother. If it is through the mother, the common ancestor should be within three degrees of the boy or the girl and the common ancestor being each counted as one degree. If the relationship is to be traced through the father. then it is to be within five degrees by similar calculation.
The Hindu Marriage Act provides that the marriage between persons who are sapindas of each other is prohibited. The marriage in contravention of Section 5 (v) of the Hindu Marriage Act is void under Section 11. The person contravening the provision is also be liable to simple imprisonment extending to one month or to a fine of one thousand rupees or both under Section 18 (b) of the Hindu Marriage Act, 1955.
VBut if the custom or usage governing each of parties permits such marriage between the two, the marriage is valid and parties will not be punishable under Section 18 (b) of the Act. If custom of only one party allows such a marriage, it shall nevertheless be void and parties will be punishable under Section 18 (b).
A man cannot marry his maternal sister, because they are sapindas of each other (within three degree on mother’s side). But such a marriage is valid amongst the Nambudripad Brahmins of Kerala because there it is allowed by custom
Remedy of restitution of conjugal rights
Q. 8. Discuss the remedy of the restitution of conjugal rights as contained under the Hindu Marriage Act, 1955. What defences are available to the respondent in a petition for the restitution of conjugal rights.
Or
What provision has been laid down under Section 9 of the Hindu Marriage Act, 1955. Discuss also the constitutional validity of this provision.
Or
Examine the remedy of restitution of conjugal rights pointing out the constitutional validity of this remedy. Refer to the leading cases in this respect.
Ans. Remedy of restitution of conjugal rights. It is the fundamental rule of matrimonial law that one spouse is entitled to the society and comfort (consortium) of the other. If one spouse has abandoned or withdrawn from the society of the other without his or her consent or without just cause the other spouse is entitled to get the decree for the restitution of conjugal rights. Section 9 of the Hindu Marriage Act, 1955. incorporates in clear terms the remedy of restitution of conjugal rights. It reads:
“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.”
The petition of restitution under Section 9 of the Act may be granted if the following three conditions are satisfied:
(i) that the respondent has withdrawn from the society of the petitioner (aggrieved party) without any reasonable excuse;
(ii) that the court is satisfied about the truth of the statements made in such a petition; and
(iii) that there is no legal ground why the application should not be granted.
Defences available. In a suit for restitution of conjugal rights the respondent can take any one or more of the following defences:
(1) that the respondent has not withdrawn from the society of the petitioner (but it is petitioner who has withdrawn from the society of the respondent);
(2) that there is a reasonable excuse (or just cause) for withdrawal from the society of the petitioner.
(3) that there is no valid and subsisting marriage between the parties,
(4) that the petitioner is taking advantage of his or her own wrong or disability:
(5) that there is unnecessary or improper delay in instituting the petition:
(6) that the petition is presented in collusion with the respondent.
“Reasonable excuse” means reasonable cause or just cause. The test as to what constitutes reasonable excuse would vary with the circumstances of each case. It will have to be applied in the changed social conditions as they obtain today and not with the rigid background of the tenets of the old texts of Manu and other Hindu law-givers.
In Jagdish Lal v. Smt. Shyama, AIR 1966 All. 150 the husband filed a suit for restitution of conjugal rights. The wife took the defence of his impotency at the time of marriage. Though it was not proved that he continued to be impotent till the presentation of the petition, yet the remedy was not granted because the Court took this as “reasonable excuse” for withdrawing from his society.
In Smt. Putul Devi v. Gopi Mandal, AIR 1963 Pat. 93 the husband launched a criminal prosecution against the father of the wife under Section 498 of the Indian Penal Code for enticing away the wife for immoral purposes and for remarriage. The father was acquitted. Then the husband applied for restitution of conjugal rights under Section 9 of the Hindu Marriage Act.
It was held that though there was an acquittal in that criminal case, the allegation made therein were sufficient to humiliate the wife and to cause her extreme distress amounting to “reasonable excuse” within the meaning of Section 9 of the Act.
The decree of restitution of conjugal rights cannot be enforced by the arrest of the respondent and the delivery of one’s person to the other, Onder XXI, Rules 32 and 33 of the Civil Procedure Code deal with the question of execution of this decree. It is submitted that according to procedural law this decree could not be forcibly executed. The Court’s order to the spouse to return to matrimonial home remains only a pious order and the non- compliance of that order is not treated as contempt of court because it is inhuman and immoral to compel two people to live as husband and wife when one or both find it impossible to do so.
This remedy has been abolished in England by the Law Reforms (Miscellaneous Provisions) Act, 1970. Now under Hindu Law this remedy serves as a stepping stone for some other remedies, viz.. maintenance pendente lite, expenses of the proceedings and ground for divorce.
Is Section 9 of the Act unconstitutional?
In T. Sareentha v. T. Venkata Subbaiah, AIR 1983 A.P. 356. Justice Chaudhary held that Section 9 of the Hindu Marriage Act offends Articles 14 and 21 of the Constitution and therefore declared it null and void. It was held that decree for restitution of conjugal rights was an order to coerce through the judicial process, the unwilling party to have sex against that person’s consent and free will with the decree-holder. This is degrading to human dignity and monstrous to human spirit. It is a coerced sex act.
According to the learned Judge, a decree of restitution of conjugal rights constituted grossest form of violation of any individual’s right to privacy. It deprives the woman a free choice, where, when and how her body was to become the vehicle for procreation of another human being. A decree of restitution of conjugal rights deprives a woman of control over her choice as and when and by whom the various parts of her body should be allowed to be sensed. She loses her control over her most intimate decisions. It does not subserve any social good. It is arbitrary and void as offending Article 14.
The Delhi High Court, on the other hand, in Smt. Harvinder Kaur v. Harmander Singh, AIR 1984 Del. 66 held that Section 9 of the Act is not violative of Article 14 or Article 21 of the Constitution. The decree cannot be termed as “coerced sex” or forcible intercourse. The decree orders cohabitation only. The “cohabitation” means the husband and wife living together as husband and wife.
The Supreme Court in Saroj Rani v. Sudarshan Kumar, AIR 1984 SC 1562, accepted the view of the Delhi High Court and held that Section 9 of the Hindu Marriage Act is not violative of Article 14 or Article 21 of the Constitution.
The Court observed that in India conjugal rights, i.e., right of the husband or the wife to the society of the other spouse is not merely creature of the statute. Such a right is inherent in the very institution of marriage itself.
Q. 9. What are grounds of voidable marriage? Examine.
Ans. Voidable marriage. According to Section 12 any marriage solemnized, whether before or after commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely-
(a) Impotency: that the marriage has not been consummated owing to the impotence of the respondent. [Section 12 (1) (a)).
The wife need not prove that the husband was impotent at the time of marriage and continued to be so when the petition was filed. It is enough if it is proved that the marriage has not been consummated and the non-consummation is due to the impotency of the husband. (Smt. Suvarna v G.M. Achary, AIR 1979 AP 169).
In G. Venkatnarayan v. Kurupati Lakhsmi Devi, AIR 1985 AP 11. where the court in a matrimonial proceeding under this section appointed a Commissioner-Doctor for examining a party to marriage to know whether he or she was impotent or not and whether he or she was able to consummate the marriage there was no deprivation of personal liberty or breach of Article 21 of the Constitution.
(b) Insanity, Unsoundness of mind : that the marriage is in contravention of the condition specified in clause (ii) of Section 5. [Section 12 (1) (b)|
Section 12 (i) (b) refers that any marriage shall be voidable and may be annulled if the marriage is in contravention of the condition specified in clause (ii) of Section 5. On a plain reading of the said provision it is manifest that the condition prescribed in that section, if established, disentitles the party to a valid marriage. The marriage is not per se void but voidable under the clause. [R. Lakshmi Narayan v Santhi. 2001 (45) ALR 515 (SC))
(c) Consent obtained by force or fraud : that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner is required under Section 5, the consent of such guardian, was obtained by force or by fraud as to the nature of the ceremonies or as to any material fact or circumstances concerning the respondent. [Section 12 (1) (c)]
(d) Pregnancy of the Respondent: that the respondent was at the time of marriage was pregnant by some person other than the petitioner. [Section 12 (1) (d)]
In Mahendra v. Sushila Bai, AIR 1965 SC 364, it was held that where the wife admitted her pregnancy before the solemnisation of marriage, when the husband had not met her the case would be covered under Section 12(1)(d) and the husband would be entitled to get a decree of nullity. In Baldev Raj Miglani v. Smt. Urmila Kumari, AIR 1979 SC 879, the Court was so satisfied even though the doctor who testified was not specialised in gynecology and held that the appellant had satisfactorily discharged the burden which lay upon him of proving that the respondent was pregnant since long before the date of wedding as a result of sexual relations with some person other than the appellant and was pregnant at the time of marriage that it passed the decree of nullity in favour of the appellant.
Grounds of Divorce
(Section 13 of the Hindu Marriage Act)
Q. 10. Discuss the grounds on which marriage may be dissolved under Section 13 of the Hindu Marriage Act, 1955.
Or
What are the grounds of divorce under Section 13 of the Hindu Marriage Act, 1955? Discuss.
Or
Examine the grounds of divorce as laid down in Section 13 of the Hindu Marriage Act, 1955.
Ans. Grounds of divorce as laid down in Section 13 of the Hindu Marriage Act [Section 13 (i)]-Section 13 (i) of the Hindu Marriage Act lays down the following grounds on which the marriage may be dissolved by a decree of divorce on a petition presented by either the husband or the wife-
1. Adultery [Section 13 (1) (i)].- Under Section 13 (1) (i) the husband or the wife may present a petition for the dissolution of marriage by a decree of divorce on the ground that the other party “has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than his or her spouse”
Rape of a spouse is not voluntary sexual intercourse and therefore, if the wife is raped, the husband cannot be granted relief of judicial separation or divorce by the court. Under the law before the commencement of the Hindu Marriage Act, polygamy was allowed. Where a person has been married with two or more ladies before this Act, intercourse with one of such ladies would not entitled the other wife to present a petition for divorce under this sub- section.
2. Cruelty [Section 13 (1) (i-a)]. The husband or the wife may present petition for dissolution of marriage by decree of divorce on the ground that the other party “has after the solemnisation of the marriage treated the petitioner with cruelty.”
[N.B. For detailed study of ‘cruelty’ see Q. 13]
3. Desertion [Section 13 (1) (i-b)]. The husband or the wife may sue for the dissolution of marriage by a decree of divorce on the ground that the other party “has deserted the petitioner for a continuous period of not less than two years immediately preeding the presentation of the petition.”
Desertion in the context of matrimonial law represents a legal conception. It is difficult to give a comprehensive definition of the term. The essential ingredients of desertion in order that it may furnish ground for relief are (1) The factum of separation, (2) the intention to bring cohabitation permanently to end-animus deserendi, (3) the element of permanence which is a prime condition requires that both these essential ingredients should continue during the entire statutory period. [Adhyatma Bhattar Alwar v. Adhayatma Bhattar Sridevi, AIR 2002 SC 88)]
4. Conversion [Section 13 (1) (ii)].-Any of the spouses may present a petition for the dissolution of marriage by a decree of divorce on the ground that the respondent “has ceased to be Hindu by conversion to another religion” Change of religion does not ipso facto dissolve the marriage performed under the Hindu Marriage Act between two Hindus A decree for divorce can be obtained by a petitioner where the other party has ceased to be a Hindu by conversion to another religion, e.g., Islam, Christianity, Judaism or Zorostrianism.
5. Mental Incapacity [Section 13 (1) (iii)].-Either party to a marriage may present a petition for dissolution of marriage by decree of divorce on the ground that the other party “has been incurably of unsound mind or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent”.
In Ram Narayan Gupta v. Smt. Raineshwari Gupta, AIR 1988 SC 2260, it was held that the context in which the idea of unsoundness of mind and mental disorder occur in the section as grounds for dissolution of marriage require the assessment of the degree of mental disorder. Its degree must be such as that the spouse seeking relief cannot reasonably be expected to live with the other. All mental abnormalities are not recognised as ground for grant of decree.
6. Leprosy [Section 13 (1) (iv)].- Leprosy is no more a ground for decree of dissolution of marriage under the Hindu Marriage Act and is omitted by the Personal Laws (Amendment) Act, 2019 Before this amendment virulent and incurable form of leprosy was a ground of divorce under Section 13(1)(iv).
7. Venereal disease [Section 13 (1) (v)].-Either the husband or the wife may present a petition for the dissolution of marriage on the ground that the other party “has been suffering from venereal disease in a communicable form”.
8. Renunciation of world [Section 13 (1) (vi)].-Either party to a marriage may file a petition for the dissolution of the marriage on the ground that the other party “has renounced the world by entering any religious order”.
9. Presumption of death [Section 13 (1) (vii)].-Either party to a marriage may present a petition for the dissolution of marriage by a decree of divorce on the ground that the other party “has not been heard of as being alive for a period of seven years or more by those persons who would have heard of it had that party been alive”.
Section 13 (1-A). Under Section 13, sub-section (1-A) of the Hindu Marriage Act, either party to a marriage, whether solemnised before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground :
(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties.
(ii) that there has been no resumption of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties (Hirachand Srinivas Managaonkar Sunanda, AIR 2001 SC 1285].
Additional grounds of divorce available to the wife alone.- Under Section 13 (2) of the Hindu Marriage Act, four grounds of divorce are given on which only a wife may obtain decree of divorce. These grounds are the following:
(a) Polygamous marriage solemnised before the Hindu Marriage Act [Section 13 (2) (i)].-A wife may present a petition for the dissolution of her marriage by a decree of divorce on the ground “in the case of any marriage solemnised before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband before such commencement was alive at the time of the solemnisation 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”.
(b) Unnatural offence Section 13(2) (ii)].-A wife may present a petition for the dissolution of her marriage by a decree of divorce on the ground that “the husband has, since the solemnisation of the marriage been guilty of rape, sodomy or bestiality.”
In Navtej Singh Johar v. Union of India, AIR 2018 SC 4321, the Supreme Court held that portion of Section 377 is unconstitutional which criminalised consensual sexual acts between adults. The Court pointed out that criminalisation of sexual acts between consenting adults violates the right to equality granted by the Constitution. However, other portion of Section 377 relating to sex with minors, non-consensual sexual acts and bestiality remain in force.
The decision of Navtej Singh Johar v. Union of India, AIR 2018 SC 4321, however, does not have any effect on Section 13(2)(iii).
(c) Non-resumption of cohabitation after a decree or order of maintenance (Section 13 (2) (iii)].- Section 13 (2) (iii) of the Hindu Marriage Act lays down that a wife may present a petition for the dissolution of her marriage by a decree of divorce on the ground “that in a suit under Section 18 of the Hindu Adoptions and Maintenance Act, 1956 or in a poceeding 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 the passing of such decree or order cohabitation between the parties has not been resumed for one year or upwards”
(d) Option of Puberty (Section 13 (2) (iv)]-Section 13 (2) (iv) of the Hindu Marriage Act lays down that a wife may present a petition for the dissolution of her marriage by a decree of divorce on the ground that “her marriage (whether consummated or not) was solemnised 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”
Q. 11. Discuss the provision laid down in the Hindu Marriage Act, 1955 regarding divorce by Mutual consent of the spouses.
Or
‘Hindu Marriage Act, 1955 provides for the dissolution of marriage by mutual consent of the parties.’ Discuss it. Also refer to the leading cases.
Or
Mention the provision contained in Section 13-B of the Hindu Marriage Act dealing with divorce by mutual consent of the spouses.
Ans. Divorce by Mutual Consent [Section 13-B, Hindu Marriage Act]- Section 13-B of the Hindu Marriage Act, 1955 deals with divorce by mutual consent. This section was inserted by the Marriage Laws (Amendment) Act, 1976. This section lays down
(i) Subject to the provisions of this Act, petition for dissolution of marriage by a decree of divorce may be presented in the district court by both the parties to a marriage together, whether such marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976 on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.
(ii) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnised and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.”
Three essentials of divorce by mutual consent.- According to Section 13-B following are the three essentials:
(i) that both the parties have been living separately for a period of one year or more:
(ii) that both the parties have not been able to live together.
(iii) that both the parties have mutually agreed that their marriage should be dissolved.
It is remarkable here that the consent for mutual consent must not be obtained by force, fraud or undue influence.
The Supreme Court in Sureshtha Devi v. Om Prakash. AIR 1992 SC 1904, held that a party to the petition for divorce by mutual consent can unilaterally withdraw his consent at any time till passing of the decree under this section. If subsequent motion seeking divorce decree under Section 13-B (2) is not of both the parties because of the withdrawal of consent by one of the parties, the court gets no jurisdiction to pass the decree. Mutual consent should continue till passing of decree. In this case the wife stated that her consent was obtained under pressure and threat of husband and she was not even allowed to see or consult her relatives before filing the petition for divorce.
The Court observed that the interregnum of 6 to 18 months contemplated under sub-section (2) of Section 13-B was intended to give time and opportunity to the parties to reflect on their move and seek advice from relatives and friends. In this transitional period one of the parties may have a second thought and change its mind not to proceed with the petition.
However, the Supreme Court has held in Ashok Hurra v. Rupa Bipin Zaveri, AIR 1997 SC 1266, that Sureshtha Devi’s decision that “consent can be withdrawn at any time before decree is passed” are too wide and requires reconsideration. In this case, the petition for divorce by mutual consent was pending for a considerably long period and the wife had not withdrawn her consent within 18 months from the date of presentation of petition, but after about 19 months of the presentation of the petition. During the pendency of the divorce proceedings, the husband had contracted another marriage and begot a child. Civil and Criminal proceedings were also filed by the spouses against each other during the pendency of the suit. In view of the above facts, the Supreme Court held-“the cumulative effect of the various aspects in the case indisputably point out that the marriage is dead, both emotionally and practically…..and there is long lapse of years since the filing of the petition, existence of such a state of affairs warrant the exercise of the jurisdiction of this court under Article 142 of the Constitution and grant a decree of divorce by mutual consent and dissolve the marriage between the parties”
In this landmark decision, the Supreme Court dissolved the marriage under Section 13-B of the Hindu Marriage Act, by exercising its power under Article 142 of the Constitution of India so as to meet the ends of justice considering the blameworthy conduct of the husband, the Apex Court directed him to pay Rs. ten lakhs as condition precedent for the decree of divorce.
In Nikhil Kumar v. Rupali, AIR 2016 SC 2163, the parties had not been able to work out their marriage as husband and wife since day one. For the last around five years, most of the time they lived separately and their marriage reached a breaking point more than one year back. Hoth the parties were well educated. Having regard to the educational background of both the parties and the entire facts and circumstances of the case, in the peculiar situation the Apex Court invoked its jurisdiction under Article 142 of the Constitution for doing complete justice between the parties. The statutory period of six months was waived and the marriage between the parties was dissolved.
In Anil Kumar Jain v. Maya Jain, AIR 2010 SC 229, the Apex Court made it clear that it is only the Supreme Court, which in exercise of its extraordinary powers under Article 142 of the Constitution can pass orders to do complete justice to the parties.
In Amardeep Singh v. Harveen Kaur, AIR 2017 SC 4417, the Apex Court laid down that the period mentioned in Section 13-B (2) of the Act is not mandatory but directory. It will be open to the court to exercise its jurisdiction in the facts and circumstances of the each case where there is no possibility of parties resuming cohabitation and there are chances of rehabilitation. When the Court dealing with a matter is satisfied that a case is made out to waive the statutory period under Section 13-B(2) of the Act. it can do so after considering the following:
(i) the statutory period of six months specified in Section 13-B(2), in addition to the statutory period of one year under Section 13-B(1) of separation of parties is already over before the first motion itself;
(ii) all efforts for mediation/reconciliation to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts:
(iii) the parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties,
(iv) the waiting period will only prolong their agony.
Desertion as a Ground of Judicial Separation and Divorce
Q. 12. Referring to some important decisions, explain the concept of “desertion” under the Hindu Marriage Act, 1955.
Or
Discuss the concept of desertion as a ground of judicial separation and divorce under the Hindu Marriage Act. Refer to the leading cases in this connection.
Or
What are the essential ingredients of desertion as a ground of divorce and judicial separation? Discuss.
Ans. Desertion as a ground of Judicial Separation and Divorce. Before the commencement of the Marriage Laws (Amendment) Act. 1976, only the relief “Judicial separation” could be sought on ground of “desertion” But the Amending Act has added “desertion” in Section 13 (1) as a ground for divorce. Now the deserted spouse may file either a petition for judicial separation or a petition for judicial divorce.
“Desertion” 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 wilful neglect of the petitioner by the other party to the marriage. In Halsbury’s Laws of England it has been defined as :
“In its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent and without reasonable excuse. It is a total repudiation of the obligation of marriage.”
Halsbury’s definition of desertion has been quoted with approval by our Supreme Court in Lachman v. Meena, (AIR 1964 SC 401. The Supreme Court in this case laid down the following principles:
(1) In its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent and without reasonable cause. It is a total repudiation of the obligations of marriage.
(2) For the offence of “desertion” four elements are essential. Two conditions applicable on deserting spouse are factum of separation and animus deserendi-the intention to bring co-habitation permanently to an end. Similarly two elements are essential so far as a deserted spouse is concerned, viz the absence of consent and the absence of expulsive conduct giving reasonable cause to spouse leaving the matrimonial home.
(3) The matrimonial offence of “desertion” commences at the moment when animus and factum of separation co-exist. However, it is not necessary that animus must precede the factum. The de facto separation may have commenced without the necessary animus, or it may be that the separation and the animus deserendi coincide in point of time.
Coming to the facts of this case the Supreme Court came to the view that there was clear evidence and satisfactory proof that besides the factum of desertion there was also the animus deserendi at the time when the wife left the husband’s house or atleast at the time of meeting at Poona at the end of May, 1954, and also at the time of her leaving India for abroad on July 7, 1954. She did not leave the husband’s house with his consent but did so of her own accord and without his knowledge. The wife remained in desertion throughout the entire satutory period of two years and the deserting spouse persisted in her intention to desert throughout the statutory period.
In Adhyatma Bhattar Alwar v. Adhyatma Bhattar Sri Devi, AIR 2002 SC 88, the Supreme Court laid down that for the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there namely (1) the factum of separation and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly, two elements are essential so far as the deserted spouse is concerned (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. d. The petitioner for divorce bears the burden of proving those clements in the spouses respectively and their continuance throughout the statutory period.
Elements of desertion. To constitute desertion there must be following elements:
(i) the factum of separation;
(ii) animus deserendi
(iii) without the petitioner’s consent;
(iv) without the expulsive conduct of the petitioner, and
(v) for a continuous period of not less than two years.
(i) The factum of separation. One of the essential elements of desertion is separation of one spouse from the other. [Weatherley v Weatherley, (1947) AC 628)
Desertion is not the withdrawal from a place, but from a state of things. There have been cases where husband and wife have occupied different storeys in the same house where it has been held that the one spouse has deserted the other although they have been living under the same roof.
In Wanbon v. Wanbon, (1948) 2 All ER 36, parties lived as one house- hold but the wife refused to allow sexual intercourse and did not perform wifely duties, and never addressed a word to her husband except to find some fault with him. It was held that the wife was guilty of desertion, though husband and wife lived as one house-hold.
(ii) Intention to desert.- Animus deserendi (intention to desert) is the second element of desertion. The wrong of desertion commences when the fact of separation and animus deserendi co-exist. But it is not necessary that factum and animus should commence at the same time. The de facto separation may have commenced without the animus deserendi or it may be that the separation and the animus deserendi coincide in point of time. The subsequent intention to abandon will not, however, relate back to the time of the separation and constitute a desertion from the time of the separation. but only from the time the intention to abandon is formed or manifested.
(iii) Desertion must be without the consent of the petitioner.- The third element that constitutes desertion is that the abandonment must be without the consent of the deserted party. When the parties are living separate under an agreement, how long period may be there will be no desertion. A typical instance of a separation by consent is a situation where a husband becomes unemployed and the spouses agree that the wife shall live with her parents until the husband finds employment. Explanation attached to Section 13 (1) of the Hindu Marriage Act provides that desertion must be without consent or against the wish of the other party.
(iv) Desertion must be without expulsive conduct of the petitioner. If a spouse conducts in such manner that his or her conduct expels the other spouse from the matrimonial home, the question becomes important as who deserted whom. There can be desertion of the wife by the husband, even though it is the wife who may have left the matrimonial home, and vice versa there may be a desertion of the husband by the wife if the husband has gone away from his home. The question of desertion cannot be decided merely by inquiring which party left the other spouse first. It is the party who by his or her conduct brings the cohabitation to an end that is guilty of desertion. There is no substantial difference between a husband who leaves his wife and brings cohabitation to an end and one whose conduct obliges his wife to leave him.
The conduct of one spouse “driving the other spouse away” is called constructive desertion. Explanation to Section 13 (1) of the Hindu Marriage Act lays down that the term “desertion” includes the wilful neglect of the petitioner by the other party to the marriage. This inclusive definition of desertion in the Explanation to Section 13 (1) is only intended to incorporate therein the doctrine of constructive desertion known to English law and the language is designedly made wide to cover the peculiar circumstances of our society.
(v) Desertion must be for a continuous period of two years. The fifth essential is that desertion must be for a continuous period of two years. As a ground of judicial separation or divorce, desertion must exist for a period of at least two years immediately preceding the presentation of the petition. It follows that the continuing offence of desertion for the statutory period of two years can never become complete until the petition is presented. The offence is not complete but inchoate until the suit is constituted. Hence a deserting spouse has always the advantage of the locus poenitentiae provided by law and go back to the deserted spouse by a bona fide offer of resuming the matrimonial home before the statutory period is out or even after the lapse of that period unless proceedings have been commenced. Desertion comes to an end if the deserted spouse unreasonably refuses the offer and then the later may be in desertion and not the former. This was what actually happened in Bipin Chander v. Prabhawati, AIR 1957 SC 176.
In Manju Kumari Singh @ Smt. Manju Singh v. Avinash Kumar Singh, AIR 2018 SC 3629, parties to the marriage were living separately for last more than decade. Attempts were made for reconciliation between them but such attempts were of no effect. There was no chance of both living together to continue their marital life. In order to do substantial justice between the parties the Apex Court passed decree for the dissolution of their marriage under Article 142 read with Section 13(1)(i-b) of the Hindu Marriage Act.
Q. 13. Examine the concept of “cruelty” as a ground for divorce under the Hindu Marriage Act, 1955.
Or
Define the concept of cruelty. Is cruelty a ground of judicial separation and divorce under the Hindu Marriage Act, 1955? Elaborate your answer with the help of decided cases.
Or
Is cruelty a ground of judicial separation and divorce under the Hindu Marriage Act, 1955? Discuss the concept of cruelty. Refer also to the leading cases on the point.
Ans. Cruelty as a ground of judicial separation and divorce.- In most systems of law, cruelty is a ground for divorce and it is the most common ground on which divorce is sought. In India too cruelty has been provided a ground for divorce under the Special Marriage Act, 1954. But under the Hindu Marriage Act, prior to the enforcement of the Marriage Laws (Amendment) Act, 1976, cruelty was a ground for judicial separation only and not a ground for divorce. Section 10(1) (b) of the Act laid down that the other party “has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party”.
This definition was not very precise but it was elastic and might suit the needs of changing society. It seems that this definition of cruelty had been gathered from the English decisions and had been given the legislative sanction of the Judge-made law.
After the commencement of the Marriage Laws (Amendment) Act, 1976, cruelty has become a ground of judicial separation as well as of divorce under the Hindu Marriage Act.
Cruelty under Section 13(1) of the Act
The amended Section 13(1) (1b) used the words that “the other party has after the solemnization of the marriage, treated the petitioner with cruelty.”
The definition of cruelty under Section 13(1) (1-b) of the Act includes both physical and mental cruelty. Under our law the emphasis is not so much on acts or conducts constituting cruelty, but on its resultant effect. The question is not whether the conduct would be cruel to a reaonable person or a person of average sensibilities, but whether it would have that effect on the aggrieved spouse. That which may be cruel to one person may be laughed-off by another, and what may not be cruel to an individual under one set of circumstances may be extreme cruelty under another set of circumstances. In determining the cruelty one should always keep in view the intelligence, apparent refinement, and delicacy of sentiment of the complaining party… Among persons of course habits they might pass for very little more that rudeness of language or manner, might occasion no apprehension, and might be productive of only slight unhappiness. The expression “cruelty comprehends both physical and mental cruelty. In deciding whether the act, conduct or attitude of behaviour of one spouse towards the other amounts to cruel treatment has to be measured by the resultant danger or apprehension of the victim. Physical temperament. standard of living and culture of the spouses, social ideas and all other relevant circumstances have bearing on the question whether the acts and conduct complained of amount to the matrimonial offence of cruelty The conduct alleged must be judged upto a point by reference to victim’s capacity or incapacity for endurance in so far as that is or ought to be known to the offending spouse.
In Vishwanath Sitaram Agrawal v. Sarla Vishwanath Agrawal, AIR 2012 SC 2586, the Apex Court laid down that the expression ‘cruelty’ has an inseparable nexus with human conduct or human behaviour. It is always dependent upon the social strata or the milieus which the parties belong. their ways of life, relationship, temperaments and emotions that have been conditioned by their social status. A set of facts stigmatized as cruelty in one case may not be cruelty in another case. The cruelty alleged may largely. depend upon the type of life the parties are accustomed to or their economic and social conditions. It may also depend upon their culture and human values to which they attach importance. While dealing with concept of mental cruelty the question has to be considered in the light of norms of marital ties of the particular society to which the parties belong, their social values, status and environment in which they live. If from the conduct of the spouse, it is established and/or an inference can legitimately be drwan that the treatment of the spouse is such that it causes an apprehension in the mind of the petitioner about his or her mental welfare, then the same would amount to cruelty. While dealing with the concept of mental cruelty, enquiry must begin as to the nature of cruelty, treatment and the impact of such treatment in the mind of the spouse. It has to be seen whether the conduct is such that no reasonable person would tolerate it.
In G.V.N. Kameshwar Rao v. G. Jabille, AIR 2002 SC 576 the Supreme Court observed that it is not necessary to prove that the nature of the cruelty is such as to cause reasonable apprehension in the mind of the petitioner that it would be harmful for the petitioner to live with the other party. The Court laid down that cruelty can be said to be an act committed with the intention to cause suffering to the opposite party. Austerity of temper, rudeness of language, occasional outburst of anger, may not amount to cruelty, though it may amount to misconduct. The court further opined that having regard to the sanctity and importance of marriages in community life, the Court should consider whether the conduct of the counter-petitioner is such that it has become intolerable for the petitioner to suffer any longer and to live together is impossible, and then only the court can find that there is cruelty on the part of the counter-petitioner. This is to be judged not from a solitary incident, but on an overall consideration of all relevant circumstances. In Savitri Pandey v. Prem Chandra Pandey, AIR 2002 SC 591, the Supreme Court observed that cruelty consists of acts which are dangerous of life, limb or health. Cruelty for the purposes of the Act means where one spouse has so treated the other and manifested such feelings towards her or him as to have inflicted bodily injury or to have caused reasonable apprehension of bodily injury/suffering or to have injured health.
“Has treated the petitioner”. These words occurring in the definition appears to import a course of conduct and not a single act, and the conduct must be such as to cause a reasonable apprehension of harm or injury. The apprehension must be reasonable, and not imaginary. hary. Though the cruelty consists of a course of conduct, and not of a single act, but where the conduct complained of consists of physical violence, it need not be persistent or become a fixed habit before it can be said to be cruelty authorizing relief by divorce. The divorce may be granted because of a single violent act where it is attended by danger to life.
Intention or malice is not material
The test of the sufficiency of cruelty as a ground for divorce lies in its effect upon the victim. As said in an early English case, it is not necessary in determining this point, to inquire from what motive such treatment proceeds. It may be from turbulent passion or sometimes from causes which are not inconsistent with affection and are indeed often consistent with it as the passion of jealousy. If the passions of the husband are so much out of his own control that continuance in his society is inconsistent with the personal safety of the wife, it is immaterial from what provocation such violence originated. In other words, the safety and health of the wife are deemed to be the point under consideration, and not the motive of the husband in occasioning her harm. This view of constituting of cruelty has been accepted by our High Court Judges. The Punjab High Court held in P.L. Sayal v. Sarla Rani, AIR 1961 Pun. 125 that wilful intention to injurt is not an essential element of cruelty.
In this case the marriage was not rosy. The wife was crazy to get the love and affection of her husband. She consulted a fakir who gave her some love potion to administer to the husband, she did it. Due to the administering of love potion the husband became seriously ill and was admitted in the hospital where he remained for some time. The husband presented a petition for judicial separation on ground of wife’s cruelty. (A that time cruelty was not recognized as a ground for divorce.)
The Court came to the conclusion that the husband was afraid of living with his wife lest such a thing happen again. It was held that the conduct of wife amounted to cruelty.
The Supreme Court also in Shobha Rani v. Madhukar Reddi, AIR 1988 SC 121 said that intention is not a necessary element in cruelty. If the intention to harm, harass or hurt could be inferred by the nature of the conduct or brutal act complained of, cruelty could be easily established. But the absence of the intention should not make any difference in the case, if by ordinary sense in human affairs, that act complained of could otherwise be regarded as cruelty.
The leading case decided by the Supreme Court on this point is Dr. Narayan Ganesh Dastane v. Smt. Sucheta Dastane, AIR 1975 SC 1534. In this case parties were Hindus. Their marriage was performed in 1956 at Poona in accordance with customary rites. At the time of marriage appellant was 27 and the respondent was 21 years of age. The husband was M. Sc., Ph. D. and the wife was MSW. February 27, 1961 was the last date they lived together.
The husband filed a petition on February 19, 1962 for annulment of his marriage with the respondent or alternatively for divorce or for judicial separation. The annulment was sought on ground of fraud, divorce on ground of unsoundness of mind, and judicial separation on the ground of cruelty. (At that time cruelty was not recognized as a ground for divorce). The appellant alleged that prior to the marriage the respondent was treated in the Yeravada Mental Hospital, Poona for schizophrenia but her father fradulently represented that she was treated for sunstroke and cerebral malaria. The trial Court rejected this contention. It also rejected the contention that she was of unsound mind. It, however, held that the respondent was guilty of cruelty and on that ground passed a decree for judicial separation. In appeal, the Bombay High Court held that the appellant was not entitled to any remedy claimed for. But the High Court granted special leave to appeal, limited to the question of judicial separation on the ground of cruelty.
The question before the Supreme Court was whether the respondent was guilty of cruelty.
Their Lordships of the Supreme Court held that the respondent treated the petitioner with cruelty.
Cruel treatment for any particular duration has not been stipulated to be necessary. In Vijay Kumar Ramchandra Bhate v. Neela Vijay Kumar Bhate, AIR 2003 SC 2462 the Supreme Court observed that to satisfy the requirement of clause (la) of sub-section (1) of Section 13 of the Hindu Marriage Act, it is not as though the cruel treatment for any particular duration or period has been statutorily stipulated to be necessary. As to what constitutes the required mental cruelty for purposes of the said provision will not depend upon the numerical count of such incidents or only on the continuous course of such conduct, but really go by the intensity, gravity and stigmatic impact of it when meted out even once and the deleterious effect of it on the mental attitude necessary for maintaining a conducive matrimonial home.
Short of Impotency. Where a husband knows that he is sexually weak and debilitated to perform normal sexual intercourse with his wife, he should not stimulate her and leave her in the bed without her having enjoyed orgasm. If he does so, he treats his wife with cruelty.
In Smt. Rita v. Shri Balkrishna, AIR 1973 Del. 200, parties were married in 1954. At the time of marriage Rita was about 16 years and the respondent was about 30 years. The respondent was sexually weak and debilitated so much so that he was not able to perform normal sexual intercourse with the appellant. He was not able to perform the act of coitus and that he used to get discharged before he could get his organ in contact with her organ. All that he was able to do was to rub his organ on her organ and get discharged in the mouth of vagina without any penetration, and this is how she conceived in June, 1958. He was weak to such an extent that he would suffer emission quickly after penetration and thus leave her in the bed without her having ever enjoyed orgasm.
Though the marriage was consummated but there had never been any normal sexual life, and the respondent had failed to give sexual satisfaction. Thus the marriage had really been reduced to a shadow and a shell and the appellant had been suffering misery and frustration.
It was held that the husband treated his wife with cruelty.
If sexual intercourse is unreasonably refused and the refusal is persisted in for a long time, it would be a ground for holding that there is legal cruelty. (Vidhya Vishwanathan v. Kartik Balakrishnan, AIR 2015 SC 285]
In K. Srinivas v. D.A. Deepa. AIR 2013 SC 2176, it was observed by the Apex Court that staying together under the same roof is not a pre-condition for mental cruelty. Spouses can cause mental cruelty by his or her conduct even he or she is not staying under the same roof.
The question of legal cruelty justifying judicial separation or divorce on that ground may be considered under the following heads:
(a) actual or threatened physical violence:
(b) verbal abuse and insults;
(c) excessive sexual intercourse,
(d) refusal of intercourse;
(e) neglect by the respondent in discharge of his or her marital duties,
(f) communication of venereal disease:
(g) drunkenness and use of drugs resulting in violent acts injurious to the mental or physical health of the petitioner:
(h) false charge of immorality or unchastity:
(i) unsubstantial allegation of extra-marital affairs made by the respondent against the petitioner,
(j) wife’s association, persisting in with another woman, raising suspicion of her practising lesbianisms.
(k) persistant effort of the wife to constrain husband to be separated from his parents;
(l) attempt or threat to commit suicide.
Distinction between (a) Judicial Separation and Divorce,
(b) Void and Voidable Marriage
Q. 14. Distinguish between the following:
(a) Judicial separation and divorce;
(b) Void marriage and voidable marriage.
Or
Point out the differences between:
(a) Judicial separation and divorce;
(b) Void and voidable marriages.
Ans. (a) Judicial Separation and divorce
Judicial separation is break-up of marriage which differs from divorce both in nature and degree. In divorce, the marriage is dissolved, the parties to it become free to re-marry anyone. If they wish to remarry, they must solemnize the marriage. But in judicial separation the marriage is only eclipsed, and parties are not completely alienated. The doors of reconciliation are open. They can resume co-habitation without re-marriage.
1. As regards effect upon marriage. A decree for divorce dissolves the marriage and puts an end to the marriage tie permanently, while the decree for judicial separation is a divorce mansa at thoro-the separation from bed and board only.
2. As regards remarriage. The decree for divorce changes the status of spouses from coverture to single person, while the decree for judicial separation retains the status of the spouses. On divorce parties are free to marry and the remarriage by a party after divorce will not be bigamy even if he or she marries within one year from the date of the decree of divorce.
3. As regards opportunity for reconciliation between the parties. On judicial separation marriage tie subsists. Parties are under all the burdens of matrimony and cut off from all its benefits. The remarriage by a husband or wife is bigamy punishable under Section 17 of the Hindu Marriage Act, and sexual intercourse with some one else is still adultery. On divorce relation of parties comes to an end once for all. But on judicial separation spouses have an opportunity for reconciliation and adjustment There is always a locus poenitentiae and the parties may at any time resume cohabitation. The judicial separation if continued for one year, affords, a ground for divorce under the Act. On application of either party the decree of Judicial separation may be rescinded by the Court if it considers just and reasonable to do so. Parties may resume cohabitation even without the rescission of the decree of judicial separation, and such cohabitation will void the decree. But after the decree of divorce parties cannot resume cohabitation without going again in the solemnization of marriage.
4. As regards entertainment of petition by the Court. There is one more difference, the petition for divorce is not to be entertained, except in hard cases, by the Court within one year of the marriage, but this is not so in case of petition for judicial separation.
(b) Void Marriage and Voidable Marriage
1. As regards effect upon the status of parties. A void marriage is non-existent since its very inception. It does not bring the relationship of husband and wife between the parties and it is not necessary for the parties to get a declaration for its nullity from the court. On the contrary, in the case of a voidable marriage, due to some defect in the marriage, the aggrieved party is given option to come out of the wedlock by getting his marriage annulled by the Court. If he does not exercise the option, the marriage remains valid and binding. That is, the parties are husband and wife and are entitled to certain rights and duties. If one of them dies without getting the marriage avoided, it cannot be anulled afterwards. In Parmaswami Pillai v Sornathammal, AIR 1969 Mad. 124 it was held that though the marriage of a woman with a impotent man is voidable, but if the man to whom she is married died without having got the marriage annulled, she will inherit his estate as a widow.
2. As regards the interest of some third party. A void marriage contravenes some tenet which is supposed to be basic to the institution of marriage. The law does not tolerate its violation. But a voidable marriage injs on interests of some party to marriage and, therefore, its validity is left to the forebearance of the party. If a third party is affected by a void marriage, he can get a declaration of its nullity from the ordinary civil Court. But no third party can raise an objection to the validity of voidable marriages under Section 12 of the Hindu Marriage Act.
3. As regards the nature of decree of nullity. Although a decree of nullity is passed in the case of both void and voidable marriages, yet there is difference in the nature of the decrees. In the case of void marriage the decree is declaratory but in case of voidable marriage it is constitutive. The former does not affect the status of the parties whereas the latter does.
There is one similarity between void and voidable marriage. Children of void and annulled voidable marriage are legitimate, but such children can inherit the property of their parents only. Section 16, Hindu Marriage Act, 1955; Balasubramanyam v. Suruttayan, AIR 1992 SC 756].