Hindu Marriage and Dissolution

a. Institution of Marriage under Hindu Law-

Salient features of the Hindu Marriage Act, 1955

 Hindu Marriage Act, 1955 has reformed Hindu law of Marriage. It is a landmark in
the history of social legislation. It has not simply codified the Hindu law of marriage
but has introduced certain important changes in many respects.
 The Hindu marriage contemplated by the Act hardly remains sacramental. The Act has
brought in some changes of far reaching consequences which have undermined the
sacramental nature of marriage and rendered it contractual in nature to a great extent.

i. Evolution and Concept of the Institution of Marriage

The concept of Hindu Marriage: Ancient Hindu Law & Marriage

- The institution of marriage is as old as Rig Vedic and was given importance in
Vedas; the marriage in Hindu philosophy is holy and scared union. Marriage is
one of 16 samaskara's as propounded by Veda Vysa, it is stated that Sudra has
only one samaskara that is marriage.
- One of the important stages of Hindu man's life is called Grihastha or married
man [like Brahmacharya-Student, Grihastha-Household life, Vanaprastha-
Retired life, Sanyasa: Renounced].
- The purpose of marriage is not to beget children or sexual fulfilment ,but also
to perform holy ceremonies ,Hindu wife is called 'Ardhangini' one half of man
- The married women is given utmost importance in Hindu society, ironically
,widow or single women & divorcee [even widow re-marriage prohibited]are
not given much importance during certain Hindu ceremonies, which lead to
mass social movements lead by Raja Rammohan Roy, Dayanand Saraswathi
Eshwarchand Vidhya sagar.
- The gotra and surname of wife changes, as she will be regarded as family
member of husband.
- The Ancient Hindu law allowed polygamy [under certain conditions] but
monogamy was prohibited, but Draupadi case of marrying five men [Panch
Pandavas] was an exception to the rule.
- There was no provision for divorce in ancient Hindu law as marriage was
performed by chanting holy hymns [Mantra's].The wife leaves father's house
for ever and become a member of husband's family for generations, the
marriage is for seven generations.
 - In ancient Hindu law, the offences of against marriage like Adultery were
regarded as sin and wrongdoers were punished as well as ostracized from the
society, even prohibited to participate in social activities. The inter-caste
marriage or [same] sagotra marriage was strictly prohibited in ancient Hindu
law.

Secular Hindu Law:

The Hindu Code Bill was introduced for the first time during interim-
parliament session by Law Minister Dr. B.R Ambedkar, but there was no
progress as Dr Ambedkar resigned from the Ministry. After first general
election [1952], four acts into existence during year 1955-1956:
ii. Hindu Marriage Act, 1955.
iii. Hindu Succession Act ,1956
iv. Hindu Minority and Guardianship Act ,1956
v. Hindu Adoption and Maintenance Act,1956

The Hindu law of marriage, as the British rulers of India found, interpreted and
applied, was, as follows:
- Marriage was a holy sanskar, it could be solemnised in one of the eight forms
recognised by law
- The solemnisation would be according to the Shastric or customary rites;
- One could marry at any age, as there was no lowest age of marriage;
- Inter-religious and inter-caste marriages were prohibited, but the latter could
be sanctioned by custom
- Marrying within one’s gotra or pravara was not allowed, except among the
Shudras
- Husband and wife would live together, the latter would be submit to the
wishes of the former, and the former would maintain the latter
- Marriage was indissoluble; divorce was not permitted unless recognised by
custom
- Death did not dissolve a marriage and therefore a widow could not remarry
unless permitted by custom so to do.

Changes brought about by the Hindu Marriage Act, 1955

The Courts in India recognised, interpreted and applied all these principles in their
minute details. The new Act has made radical and substantial changes in the
institution of marriage. The following changes are important:

- A Hindu marriage is now not so much concerned with religion. It is more a

result of mutual consent than sacramental [Sections 5(ii), (iii), 11 to 13 and 7].
- Marriages amongst Hindu, Jains, Sikhs and Buddhists are now valid Hindu
marriages in the eyes of the law (Section 2).
- As per Section 3 the divergence between the Mitakshara and Dayabhaga
schools in connection with the expression “prohibited degrees of relationship”
for the purpose of marriage is now removed. The strict rule prohibiting
marriages within the limits of Sapinda relationship, as defined in the Smritis,
have been considerably relaxed. Some new degrees of relationship have also
been added. Thus one cannot now marry a person who was the wife of the
brother of the other.
- Monogamy amongst the Hindus is introduced for the first time by the Act.
Bigamy is now punished under the Indian Penal Code. The conditions and
requirements of a valid marriage are now very much simplified as is evident
from the provisions of Sections 5 and 17 of the Act.
- Caste considerations for inter-caste and inter-communal marriages have now
been made irrelevant, eliminating all restrictions thereupon.
- There were different kinds of marriages in vogue before the Act. Now they are
of no consequence and the only form of marriage will be that accepted by the
parties as prevailing in his or her community (Section 7).
- The Act now makes no distinction between the marriage of a maiden and the
marriage of a widow.
- The ancient Hindu law did not prescribe any age for marriage but it is now a
condition of marriage that the bridegroom must have completed 21 years and
the bride must have completed the age of 18 years (Section 5).
- The Act now lays down conditions of a valid marriage and does not recognise
any particular form of a Hindu marriage (Section 5).
- For a valid Hindu marriage no particular ceremony is prescribed by the Act.
Sections 5 and 7 lay down that such a marriage can be solemnised in
accordance with the customary rights and ceremonies of any one of the parties
to the marriage.
- Provision for registration of Hindu marriages has been provided for the first
time (Section 8).
- Eliminating restrictions based on gotra, pravara and Sapinda relationship the
Act makes provisions for judicial separation, for divorce and for annulment of
marriages (Section 10 to 14).
- Provisions for restitution of conjugal rights of the parties (Section 9).
- After a valid divorce either party may remarry (Section 15).
- Provisions for legitimacy of children born out of alliances which may be
subsequently declared annulled or void or voidable (Section 16).
- Provisions for maintenance pendente lite and for expenses of legal
proceedings (Section 24).
- Permanent alimony and maintenance (Section 25).
- The custody, maintenance and education of minor children during the
pendency of legal proceedings as also after passing of decree (Section 26).
 Applicability of legislation (Section 2)
- The Act applies to three types of persons:
(i) who are Hindus by religion in any of its forms or developments
(ii) who are Buddhists, Jains or Sikhs by religion
(iii) Who domiciled in the territory to which this Act extends and not a
Muslim, Christian, Parsi or Jew by religion.
- This Act, however, will not apply to those:
(i) why have renounced the Hindu religion and have became converts to
some other religion
(ii) persons, who descended from Hindu ancestors and on account of
marriage or on account of some new occupation converted into new
community having their own religion and usages
(iii) Children, whose either parents though a Hindu, are not brought up as
Hindus.

Who are Hindus

till this day there is no precise definition of the term ‘Hindu’ available either in
any statute or in any judicial decision. However since Hindu law applies to all
those persons who are Hindus; it is necessary to know who Hindus are. The
persons to whom Hindu law applies may be put in the following three
categories:

- Any person who is a Hindu, Jain, Sikh or Buddhist by religion, i.e., Hindus by
religion.
- Any person who is born of Hindu parents (when both the parents or one of the
parents is a Hindu, Jain, Sikh or Buddhist by religion), i.e., Hindus by birth,
- Any person who is not a Muslim, Christian, Parsi or Jew, and who is not
governed by any other law.

Hindus by Religion: This category includes two types of persons:

- Those who are originally Hindus, Jains, Sikhs or Buddhists by religion.

As rightly observed by the Supreme Court in Chandrasekhar v. Kulandaivelu,

Any person who is a Hindu, Jain, Buddhist or Sikh by religion is a Hindu if:
(i) he practises, professes or follows any of these religions, and (ii) he remains
a Hindu even if he does not practice, profess or follow the tenets of any one of
these religions. Thus, a person does not cease to be a Hindu if he becomes an
atheist, or dissents or deviates from the central doctrines of Hinduism, or
lapses from orthodox practices, or adopts western way of life, or eats beef.
- Those who are converts or reconverts to Hindu, Jain, Sikh or Buddhist
religion.

A person who ceases to be a Hindu by converting to a non-Hindu religion; will

again become Hindu if he reconverts to any of the four religions of Hindus.

A non-Hindu will become a Hindu by conversion:

(i) If he undergoes a formal ceremony of conversion or reconversion
prescribed by the caste or community to which he converts or reconverts; or

(ii) If he expresses a bona fide intention to become Hindu accompanied by

conduct unequivocally expressing that intention coupled with the acceptance
of him as a member of the community into the fold of which he was ushered
into.

Further, when a person declares that he is a follower of Hindu faith and if such
a declaration is bona fide and not made with any ulterior motive or intention, it
amounts to his having accepted the Hindu approach to God. He becomes a
Hindu by conversion.

Hindu by Birth
Under Modern Hindu Law, a person will be a Hindu by birth if:

(i) Both his parents are Hindu; or

(ii) One of the parents is a Hindu and he is brought up as a Hindu.

Such child is Hindu irrespective of fact he/she is legitimate or illegitimate.

In case after the birth of the child both or one of the parents convert to another
religion, the child will continue to be a Hindu unless, in the exercise of their
parental right, they also convert the child into the religion in which either or
both of the parents have converted.

A relevant judgement in this context is Maneka Gandhi v. Indira Gandhi,

wherein the Court held that Sanjay Gandhi was a Hindu because: (1) one of
the parents, namely his mother was a Hindu and (2) he was openly brought up
as a Hindu.

Section 2(2) provides that nothing contained in this Act shall apply to the
members of any Scheduled Tribes (even if they are Hindus) unless the Central
Government by notification in the official gazette otherwise directs. Most of
the scheduled tribes are still governed by customs.
Conditions for Valid Hindu Marriage under Hindu Marriage Act, 1955:

Sec-5: Conditions for a Hindu marriage- A marriage may be solemnized between any two
Hindus, if the following conditions are fulfilled namely-

- Neither party has a spouse living at the time of marriage

- At the time of marriage, neither party, Is incapable of giving a valid consent to
it in consequence of unsoundness of mind; or 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
Has been subject to recurrent attacks of insanity
- The bridegroom has completed the age of [twenty-one years] and the bride,
the age of [eighteen years] at the time of marriage;
- The parties are not within the degrees of prohibited relationship unless the
custom or usage governing each of them permits of a marriage between the
two
- The parties are not sapindas of each other, unless the custom or usage
governing each of them permits of a marriage between the two.

Hindu Marriage being sacred and Contractual

- According to the tenets of Hinduism, marriage is a sacred relationship, a

sacrament, and a divine covenant meant for procreation and the continuation
of family lineage.
- In the traditional Hindu system of marriage, there is no role for the State as
marriage remained a private affair within the social realm. Within this
traditional framework reference, marriage is undoubtedly the most important
transitional point in a Hindu’s life and the most important of all the Hindu
samskaras, or life-cycle rituals.
- Historical Perspective - Manu, Ardhangini, marriage is an essential Sanskara,
man is incomplete without wife. Once performed, it cannot be dissolved.
- Modern Perspective - Civil contract. Can be dissolved. Cannot force to live
together. Equality of sexes. Can't be done without consent.
- It is Sacramental As per Contract Act 1872, contract with a minor is void ab
initio. Even though section 5(2) says that valid consent is required and section
5(3) says that the boy should be above 21 yrs and the girl should be above 18
years, marriage done in contravention of these provisions is not void. Marriage
with a minor is not even void able only on that ground.
- In one leading case, it was held that the person married may be a minor or
even of unsound mind, yet if the marriage rite is duly solemnized, it is a valid
marriage.
 - Section 7 of Hindu Marriage Act 1955 requires that religious ceremonies are a
must to complete a marriage. A marriage done without "saptapadi" is
void. Even now bachelors are not eligible to perform several religious
ceremonies. Only married couples are allowed.
- Thus, it still retains its sacramental property. No-fault divorce, as available in
western countries, is not available in Hindu Marriage Act 1955. Thus,
breaking up of a marriage is very difficult.
- It is contractual. The fact that consent of the boy and the girl is required means
that it is contractual. If the consent is obtained by force or fraud, the marriage
is voidable. Marriage is no more permanent since divorce is available by
mutual consent. Marriage is no more holy because a marriage can be done
without all the ceremonies such as vivah homam. Only saptapadi is
required.
- Thus Hindu marriage is has a unique blend of sacramental and contractual
characteristics

ii. Forms, Validity and Voidability of Marriage

Forms of Marriage:

There are 8 Different Forms of Marriage According to Hindu Law. The old textual law
provided for eight forms of marriage, four of them were approved and four others were
disapproved. The legal consequences in approved and unapproved forms of marriage are not
similar.

** The wife in the approved forms of marriage enjoyed the status of Dharmpatni and all its
consequential rights whereas the wife in an unapproved form does not enjoy such status.
Moreover the approved forms of marriage were viewed with respect while the unapproved
forms were considered to be disgraceful.

Approved Forms:

 Brahma Form: In this form of marriage the father of the girl respectfully invites the
bridegroom at his residence, worships him and offers him the girl as his wife along
with a pair of fine clothes and ornaments etc. Here the father does not accept any
consideration in exchange of bride and does not select the bridegroom with a view to
augment his own profession etc. A widow could not be remarried under this form of
marriage.
 Daiva: In this form of marriage, a well decorated bride is offered to the priest who
performs religious acts and rituals for the spiritual benefits of the father of the bride.
  Arsha: In this form of marriage the bride is offered to a person, from whom the father
has accepted a pair of cow or bull for religious rituals only.
 Prajapatya: In this form the bride’s father, decorates the bride with colourful attires
and after worshipping her, offers her to the bridegroom, making a recitation to the
effect that they (bride and bridegroom) together may act religiously throughout and
prosper and flourish in life. In this form of marriage it is not necessary that the
bridegroom should be a bachelor as in the Brahma form.

Unapproved Forms:

 Asura Form: In this form of marriage the bridegroom after having given wealth as
much as it is within his means to the father and paternal kinsman or to the damsel
herself takes her voluntarily as his bride obviously with the consent of her father.
This form of marriage has a striking resemblance with a kind of purchase of bride as
the father or the girl herself has already taken money and the father or guardian later
giving his consent to marry the girl in lieu of money taken.
Sometimes it is said that in this type of marriage the girl is sold out. The price which
the father of the bride gets in consideration of offering bride constitutes his
compensation. This type of marriage is practised widely amongst Sudras of Southern
India.
 Gandharava: In this form of marriage there is a union of the bride and bridegroom by
mutual consent motivated by their mutual love and sexual instincts. Infatuated by
their bond of love, the bride and the groom establish a bodily union without having
performed any religious rites and ceremonies.
One of the leading examples of this type of marriage is found in the famous love
story of Dushyant and Shakuntala. Amongst Kshatriyas, this type of marriage was
quite prevalent. But now it has become very uncommon, although the Madras High
Court has recently observed that this form of marriage has not yet fallen into disuse.
 Rakshasa: In this form of marriage the girl is forcibly kidnapped and married to a
person, who intends to marry her but her father is not willing. There is an attack on
the bride’s parents or guardian who is either killed or wounded and thereafter
breaking open the door or securing forcible entry into the house, the people at the
groom’s side take away the girl, weeping and crying for help. This type of marriage is
still prevalent in the Gonda castes of Barrar and Betul (Madhya Pradesh).
 Paishach: According to Dharmashastras this is the most condemnable form of
marriage. In this type of marriage sexual intercourse is done with a girl, while she is
asleep, or brought in a state of drunk or after she is administered some drug and has
lost consciousness temporarily or who is of immature understanding. After the girl is
ravished, she is married to one, who has been guilty of such heinous crime.
 The Brahma form of marriage amongst the approved ones and Asura amongst the
unapproved forms of marriage were generally in vogue. All the rest forms of
marriage were viewed as degrading and became non-prevalent. Neither in Gandharva
nor in Rakshasa and Paishach forms of marriage, had mere dominion over the girl
either through persuasion, use of force or act of ravishing, marriage was taken for
granted. Marriage was taken to be complete only after the father or the guardian has
decided with the consent of his daughter in the latter two cases to give her away in
marriage after performing religious rites and ceremonies.
Otherwise it could have been said that ancient Hindu law had legalised seduction,
kidnapping and rape by extending recognition to Gandharva, Rakshasa and Paisach
forms of marriage. In fact under old law they were considered to be serious crimes as
they are regarded today and there was provision for severest penalties.

** These eight forms of marriage did not find any place in the Hindu Marriage Act of 1955.
It proscribes only five essential conditions of a valid marriage, i.e., (1) Monogamy; (2)
Soundness of mind; (3) Age of marriage; (4) Beyond Prohibited degree; and (5) Beyond
sapinda relationship.

Validity of Marriage

Under the Hindu Marriage Act, 1955 certain conditions are necessary for a valid Hindu
Marriage. Those conditions have been laid down in Sec 5 and 7of the Act. Section reads as
follows:

By virtue of section 5 of the Hindu Marriage Act 1955, a marriage will be valid only if both
the parties to the marriage are Hindus. If one of the parties to the marriage is a Christian or
Muslim, the marriage will not be a valid Hindu marriage “A marriage may be solemnized
between any two Hindus, if the following conditions are fulfilled, namely:-

- neither party has a spouse living at the time of the marriage

- at the time of marriage, neither party is incapable of giving a valid consent to
it in consequence of unsoundness of mind; or 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 has been
subject to recurrent attacks of insanity or epilepsy
- the bridegroom has completed the age of 21 years and the bride the age of 18
years at the time of marriage
- the parties are not within the degrees of prohibited relationship, unless the
custom or usage governing each of them permits of a marriage between the
two
- The parties are not sapindas (one is a lineal ascendant of the other) of each
other, unless the custom or usage governing each of them permits of a
marriage between the two.
Section 5 lays down five conditions for a valid marriage. They are:

1. Monogamy
- This provision Prohibits bigamy .The marriage should be monogamous.
Under the Hindu Law a person can validly marry if he or she is either
unmarried or divorced or a widow or a widower. If at the time of the
performance of the marriage rites and ceremonies either party has a spouse
living or the earlier marriage had not already been set aside, the later marriage
is void. A bigamous marriage is null and void and is made punishable.
- In Lily Thomas v Union of India (2000) 6 SCC 227 the court observed:
“The grievance that the judgment of the Court amounts to violation of the
freedom of conscience and free profession, practice and propagation of
religion is also far-fetched and apparently artificially carved out by such
persons who are alleged to have violated the law by attempting to cloak
themselves under the protective fundamental right guaranteed under Article 25
of the Constitution. No person, by the judgment impugned, has been denied
the freedom of conscience and propagation of religion. Under the
constitutional scheme every person has a fundamental right not merely to
entertain the religious belief of his choice but also to exhibit this belief and
idea in a manner which does not infringe the religious right and personal
freedom of others.
It was contended in Sarla Mudgal case that making a covert Hindu liable for
prosecution under the Penal Code would be against Islam, the religion adopted
by such person upon conversion. Such a plea raised demonstrates the
ignorance of the petitioners about the tenets of Islam and its teachings.”
As regards the true position of the permission for bigamy under the traditional
Muslim law, the court said: “Even under the Muslim law plurality of
marriages is not unconditionally conferred upon the husband. It would,
therefore, be doing injustice to Islamic law to urge that the convert is entitled
to practice bigamy notwithstanding the continuance of his marriage under the
law to which he belonged before conversion. The violators of law who have
contracted a second marriage cannot be permitted to urge that such marriage
should not be made the subject-matter of prosecution under the general penal
law prevalent in the country.
The progressive outlook and wider approach of Islamic law cannot be
permitted to be squeezed and narrowed by unscrupulous litigants, apparently
indulging in sensual lust sought to be quenched by illegal means, who
apparently are found to be guilty of the commission of the offence under the
law to which they belonged before their alleged conversion. It is nobody’s
case that any such convertee has been deprived of practicing any other
religious right for the attainment of spiritual goals. Islam which is a pious,
progressive and respected religion with a rational outlook cannot be given a
narrow concept as has been tried to be done by the alleged violators of law.”
2. Mental Capacity

- The parties to the marriage should not suffer from unsoundness of mind, mental disorder or
insanity. In all the cases given in sec 5 clause (2) the party is regarded as not having the
mental capacity to solemnize the marriage. So if a party who solemnize the marriage is suffer
from unsoundness of mind, mental disorder or insanity, the marriage is voidable at the
opinion of the other party.

- It is to be noted that Sec 5(2) (c) of the Hindu Marriage Act 1955 has been amended by the
Marriage Laws (Amendment) Act 1999 and the word ‘epilepsy’ is omitted. The result is that
at present even if a party to the marriage is subject to recurrent attacks of epilepsy, the
marriage is valid and the other party cannot seek for nullity of marriage.

- The Madhya Pradesh High Court in Smt. Alka Sharma v. Avinash Chandra has laid down
that the word 'and' between expression unfit for marriage and procreation of children in
Section 5(2)(b) should be read as 'and', 'or'. The Court can nullify the marriage if either
condition or both conditions contemplated exist due to mental disorder making the living
together of parties highly unhappy. It was also held in this case that the word "procreation"
implies within it not only capacity to give birth to children but also to look after them as well
as so as to bring them up. From the use of the expression "has been suffering" under clause
(c) it is clear that it is not necessary that a person should be insane or suffering from epilepsy
at the time of marriage. It is sufficient if he or she had been subject to recurrent attacks of
insanity or epilepsy.

3. Age to the parties

- At the time of marriage the bridegroom has completed the age of 21 years and the bride the
age of 18 years .If a marriage is solemnized in contravention of this condition is neither void
nor voidable. anyone who procures a marriage in violation of the condition is liable to be
punished with simple imprisonment which may extent up to 15 days or with fine which may
extend up to Rs. 1000/- or with both.

**the Child Marriage Restraint Act 1929:

- Section 2: In this Act, unless there is anything repugnant in the subject or context, (a) child
means a person who, if a male, has not completed twenty one years of age, and if a female,
has not completed eighteen years of age, (b)child marriage means a marriage to which either
of the contracting parties is a child; (c)contracting party to a marriage means either of the
parties whose marriage is or is about to be thereby solemnised; and (d)minor means a person
of either sex who is under eighteen years of age.

- Section 3: Whoever, being a male above eighteen years of age and below twenty-one,
contracts a child marriage shall be punishable with simple imprisonment which may extend
to fifteen days, or with fine which may extend to one thousand rupees, or with both.
- Section 4: Whoever, being a male above twenty-one years of age, contracts a child marriage
shall be punishable with simple imprisonment which may extend to three months and shall
also be liable to fine.

- Section 5: Whoever performs conducts or directs any child marriage shall be punishable
with simple imprisonment which may extend to three months and shall also be liable to fine,
unless he proves that he had reason to believe that the marriage was not a child marriage.

- Section 6 (1): Where a minor contracts a child marriage, any person having charge of the
minor, whether as parent or guardian or in any other capacity, lawful or unlawful, who does
any act to promote the marriage or permits it to be solemnised, or negligently fails to prevent
it from being solemnised, shall be punishable with simple imprisonment which may extend to
three months and shall also be liable to fine. Provided that no woman shall be punishable
with imprisonment.

- Section 6(2): For the purposes of this section, it shall be presumed, unless and until the
contrary is proved, that where a minor has contracted a child marriage, the person having
charge of such minor has negligently failed to prevent the marriage from being solemnised.

4. Degrees of Prohibited relationship

- The parties to the marriage should not come within the degrees of prohibited relationship.
Two persons are said to be within the degrees of prohibited relationship if:

i) one is a lineal ascendant of the other; or

ii) one was the wife or husband of lineal ascendant or descendant of the other; or
iii) one was the wife of the brother or of the father’s or mother’s brother or of the
grandfathers or grandmothers brother of the other; or
iv) 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.

- A marriage between two persons who come within the degrees of prohibited relationship
shall be void. However, if there is a valid custom or usage governing both the parties allows
they can marry even though they come within the degrees of prohibited relationship. All over
India, there are such custom which validate marriage between persons who come within the
degrees of prohibited relationship.

- For instance, marriage between the children of brother and sister is common among the
marumakathayam of Kerala. In some parts of Tamil Nadu, Marriage between a person and
his eldest sister’s daughter is common. Here the parties though come within the degrees of
prohibited relationship; they can validly marry by virtue of custom or usage.
- Punishment :-According to Sec.18(b); A marriage solemnized between the parties within
the degrees of prohibited relationship is null and void and the parties of such marriage are
liable to be punished with simple imprisonment for a period of one month of fine or Rs.
10000/- or with both.

5. Sapinda Relationship

- The parties to the marriage should not be related to each other as Sapindas. A marriage
between sapindas is void.

- Under Section 3(f) (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.

- Under Section 3(f) (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 that is within the limits of "sapinda" relationship with reference to each of
them.

- No marriage is valid if it is made between parties who are related to each other as ‘sapindas’
unless such marriage is sanctioned by usage or custom governing both parties. The custom
which permits of a marriage between people who are sapindas of each other must fulfil the
requirements of a valid custom. The custom must be certain, reasonable and should not be
opposed to public policy.

- Punishment:-A marriage in contravention of this clause is void. Under Sec 18(b)A person
contravening this provision are liable to be punished with simple imprisonment which may be
extend to Rs. 1000/- or with both

Registration of Marriage under Hindu Law

- The Hindu Marriage Act is applicable only to the Hindus, The Hindu Marriage
Act provides for registration of an already solemnized marriage. It does not
provide for solemnization of marriage by the Registrar.
- For facilitating the proof of Hindu marriages, the state government may make
rules for the registration of marriages. Section 8 of the Hindu Marriage Act,
1955 provides for the registration of Marriage. All rules made in this section
may be laid before the state legislature.
- A Hindu marriage, which has already been solemnized in accordance with the
religious customs and rituals, can be registered under the Hindu Marriage Act,
1955. The Hindu Marriage Act is applicable in cases where both husband and
wife are Hindus, Buddhists, Jains or Sikhs or where they have converted into
any of these religions.
 - The parties to the marriage have to apply to the concerned authority in whose
Jurisdiction the marriage is solemnized or either party to the marriage has been
residing.
- Along with the application form they have to attach two photographs of the
marriage ceremonies, invitation card of marriage, age and address proof of
both parties, affidavit of Notary/Executive Magistrate to prove that the couple
is married under Hindu Marriage Act 1955, fit mental condition, non
relationship between the parties within the degree of prohibition.
- Both the parties have to appear before the Registrar along with their parents or
guardians or other witnesses within one month from the date of marriage.
- Marriage is registered before a marriage registrar/tahsildar of the district,
wherever the parties got married. The registration under the Hindu marriage
Act does not require any notice. It can be done on the same day of the filing of
application or a few days of moving the application for marriage. The parties
will receive a marriage certificate within few days, which is a proof of
registration of marriage.

Voidability of Marriage

- Marriage is the voluntary union of one man with one woman to the exclusion
of all others, satisfied by the solemnisation of the marriage. The Hindu
Marriage Act, 1955 provides for three types of marriages: Valid, Void and
Voidable.
- The difference between these three relates to the pre-marriage impediments to
marriage which are clearly enunciated in Section 5 of the Act. If there exist,
absolute disablements or impairments, a marriage is void ab initio.
- Section 11 deals with void marriages. If relative disablements or impairments
exist, a marriage is voidable.
- Section 12 deals with voidable marriages. All other marriages which are not
covered by these two Sections are valid.

Void Marriage

 Section 5 of the Hindu Marriage Act 1955 includes essential conditions of a valid
marriage. It contains such conditions which if violated shall result in a void marriage.
 Section 11 of the Act had considered following marriage to be void:-
- Where at the time of marriage any party has a living husband or wife i.e.,
bigamous marriage is void
- Where parties to the marriage fall within sapinda relationship i.e., same blood.
A person cannot marry in the same family i.e., to a person from-
i. Five generation from the paternal side
ii. Three generations from the maternal side
 iii. The parties are within the prohibited degree of relationship. The
section 3(g) of the Hindu Marriage Act 1955 talks about the degree of
prohibited relationship that is as follows:
iv. Where parties to the marriage come with degrees of prohibited
relationship.
- In the case of Rampyari v. Dharamdas 1984, it was said by Allahabad High
Court that an application for declaring a marriage void is not required to be
presented by the victim only.
- In another case of Leela v. Lakshmi 1968, it was held that void marriage does
not require even the decree of a court.
- Although the Section permits a formal declaration to be made on the
presentation of the petition, it is not essential to obtain in advance such a
formal declaration from a court in a proceeding commenced for the purpose. If
one withdraws from the society of the other, the other party has no right to the
restitution of conjugal rights. If one of them marries again, he or she is not
guilty of bigamy and the validity of later marriage is not affected because of
the first so called marriage.
- “On a petition presented by either Party thereto“, It is only the parties to
marriage who can move a petition for the declaration of nullity of marriage.
The first wife, during the subsistence of whose marriage the husband takes the
second wife, has no right to move for a declaration of nullity of the subsequent
marriage under this Section.
- However, there is nothing in the Section or any other provision of any law to
debar a person affected by an illegal marriage from filing a regular suit in a
civil court for its declaration as void, if such party was affected by such
marriage.
- There can be a civil suit by a person for a declaration that the marriage of A
with B was a nullity and for consequential relief’s under the Specific Relief
Act, 1963, if the Plaintiff has any cause of action for such relief.
- In Uma Shanker v. Radha Devi, the Patna High Court ruled that the first wife
could obtain a perpetual injunction to prevent the second marriage of her
husband under Section 9 of the Civil Procedure Code and Section 54 of the
Specific Relief Act.
 Consequences of a void marriage
- The parties have no status of wife and husband
- Children of a void marriage are illegitimate (this is subject to the provision of
Section 16 of Hindu Marriage Act 1955).
- Avoid marriage doesn’t give rise to mutual rights and obligations.

Voidable Marriage

 A marriage which can be annulled or avoided at the option of one or both the parties
is known as a voidable marriage.
 Section 12 of Hindu Marriage Act contains relevant provisions of Voidable
Marriage. According to it, in the case of marriage being voidable, the Court may
declare it Null under following conditions:-
- Where marital cohabitation has not occurred due to the impotency of the
respondent.
- Where at the time of marriage any party failed to give valid consent due to
unsoundness or has been affected by mental retardedness to such extent that he
is incapable to marriage and giving birth to a child, or suffers from frequent
insanity or is insane.
- Where the consent of guardian is necessary for the marriage and such consent
has been obtained by force or by fraud as to nature of rituals or any actual
facts or circumstances as to the respondents.

Madhya Pradesh High Court held in Nandkishore v. Smt. Munnibai on 29

September, 1978 AIR 1979 MP 45 that

(1) fraud within the meaning of Section 12(1)(c) of the Act means either (a)
deception as to the identity of the other party to the marriage, or (b) deception
as to the nature of the ceremonies being performed;

(2) Where consent is given with the intention to marry the other party and with
the knowledge that what is being solemnized is marriage, an objection to the
validity of the marriage on the ground of any fraudulent misrepresentation or
concealment is not tenable".

- Where the respondent is pregnant at the time of marriage from a person other
than the applicant.

 Grounds of declaring a marriage voidable: A marriage is voidable on the ground of

consent obtained by fraud as force, then such marriage shall be declared null only
when:-
- The applicant is presented within one year from the date of knowledge of fraud as
the force used.
- The parties have not lived as husband and wife after the knowledge of force used or
fraud.

Madhya Pradesh High Court in Nandkishore vs. Smt. Munnibai on 29 September,

1978; AIR 1979 MP 45 held that:

fraud within the meaning of Section 12(1) (c) of the Act means either (a) deception as
to the identity of the other party to the marriage, or (b) deception as to the nature of
the ceremonies being performed; (2) where consent is given with the intention to
marry the other party and with the knowledge that what is being solemnized is
marriage, an objection to the validity of the marriage on the ground of any fraudulent
misrepresentation or concealment is not tenable".
  Similarly, if the marriage is voidable due to the pregnancy of wife then such marriage
shall be declared null only when the court is satisfied that:-
- The applicant was unaware of the pregnancy of the wife at the time of marriage.
- If the marriage has been solemnized before this Act came into force, then the
application shall be presented within one year from the date of enforcement of the Act
or if the marriage has been solemnized after the act came into force then the
application shall be presented within one year from such marriage.
- The applicant has not voluntarily cohabitated after the knowledge of pregnancy of
wife.
- Wife had been pregnant from a person other than the applicant.
- She was pregnant before the marriage.

b. Matrimonial Remedies
 Under Hindu Marriage Act 1955; the very purpose of marriage is to unite legally. It
lies down that the legally wedded couple must live together throughout the life
sharing pleasures and pains.
 However in some cases; matrimonial disputes take place due to misunderstanding or
indifferent attitudes between the husband and the wife. In such cases to provide to
relief to the aggrieved spouse; certain matrimonial remedies are incorporated in this
Act.
 Such matrimonial remedies as per the Act are:-
- Restitution of conjugal rights (Sec. 9)
- Judicial separation (Sec. 10)
- Void and voidable marriages (Sec. 11 & 12) for nullity and annulment of marriage
- Divorce (Sec. 13)
- Divorce by mutual consent (Sec. 13 B)

i. Restitution of Conjugal Rights

 Marriage under all matrimonial laws is union imposing upon each of the spouses
certain marital duties and gives to each of them certain legal rights. The necessary
implication of marriage is that parties will live together. Each spouse is entitled to
comfort consortium of the other.
 So after the solemnisation of the marriage if either of the spouses without reasonable
excuse withdraws himself or herself from the society of the other then aggrieved party
has a legal right to file a petition in the matrimonial court for restitution of conjugal
rights.
 The Court after hearing the petition of the aggrieved spouse, on being satisfied that
there is no legal ground why the application shall be refused and on being satisfied of
the truth of the statements made in the petition may pass a decree of restitution of
conjugal rights.
 A decree of restitution of conjugal rights implies that the guilty party is ordered to live
with the aggrieved party. Restitution of conjugal rights is the only remedy which
could be used by the deserted spouse against the other. A husband or wife can file a
petition for restoration of their rights to cohabit with the other spouse. But the
execution of the decree of restitution of conjugal rights is very difficult.
 The Court though is competent to pass a decree of restitution of conjugal rights, but it
is powerless to have its specific performance by any law. The non-compliance of the
issued decree results to constructive destruction on the part of the erring spouse.
 At present as per the provisions available under the Indian personal laws, the
aggrieved party move a petition for a decree of divorce after one year from the date of
the passing of the decree and the competent Court can pass a decree of divorce in
favour of the aggrieved party.
 The decree of restitution of conjugal rights can be enforced by the attachment of
property, and if the party complained against still does not comply, the Court may
also punish him or her for contempt of court.
 But under no circumstances the Court can force the erring spouse to consummate
marriage. Decree of restitution of conjugal rights could be passed in case of valid
marriages only.
 The provisions for restitution of conjugal rights are identical in Section 22 the Special
Marriage Act, 1954 and Section 9 of the Hindu Marriage Act, 1955. It is as follows:
- 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.
- Explanation: Where a question arises whether there has been reasonable
excuse for withdrawal from the society, the burden of proving reasonable
excuse shall be on the person who has withdrawn from the society.”
 The restitution of conjugal rights is often regarded as a matrimonial remedy. The
remedy of restitution of conjugal rights is a positive remedy that requires both parties
to the marriage to live together and cohabit.
 Under all personal law, the requirements of the provision of restitution of conjugal
rights are the following:
- The withdrawal by the respondent from the society of the petitioner.
- The withdrawal is without any reasonable cause or excuse or lawful ground.
- There should be no other legal ground for refusal of the relief.
- The court should be satisfied about the truth of the statement made in the
petition.
 In Sushila Bai v. Prem Narayan, the husband deserted his wife and thereafter was
totally unresponsive towards her. This behaviour was held sufficient to show that he
had withdrawn from the society of his wife, and therefore the wife’s petition for
restitution of conjugal rights was allowed.
 The defence to this principle lies in the concept of a ‘reasonable excuse’. If the
respondent has withdrawn from the society of his spouse for a valid reason, it is a
complete defence to a restitution petition.

 The Court will normally order restitution of conjugal rights if:

- The petitioner proves that the respondent spouse has without reasonable
excuse withdrawn from his/her society
- The statements made by the aggrieved spouse in the application are true, and
- There is no legal ground why the petitioner’s prayer should not be granted.
 The Court has held in various cases that the following situations will amount to a
reasonable excuse to act as a defence in this area:
- A ground for relief in any matrimonial cause.
- A matrimonial misconduct not amounting to a ground of a matrimonial cause,
if sufficiently weighty and grave
- Such an act, omission or conduct which makes it impossible for the petitioner
to live with the respondent.
 The constitutional validity of the provision for restitution of conjugal rights has time
and again been questioned and challenged. The earliest being in 1983 before the
Andhra Pradesh High Court in T.Sareetha v. T. Venkatasubbaiah where the
Honourable High Court held that the impugned section was unconstitutional.
The Delhi High Court in Harvinder Kaur v Harminder Singh though had non-
conforming views.

Delhi High Court in Harvinder Kaur v. Harmander Singh Choudhary held on 15

November, 1983 that: On the whole case it appears to me that the wife deliberately
broke up the matrimonial home and brought to an end the matrimonial life, so far as
she was able to bring those results about. The breaker-up of the home is the wife. She
has disrupted the matrimonial home without sufficient cause. There is withdrawal not
only from' intercourse but from cohabitation without just cause.

Ultimately Supreme Court in Saroj Rani v. Sudharshan gave a judgment which was in
line with the Delhi High Court views and upheld the constitutional validity of the
Section 9 of the Hindu Marriage Act, 1955 and over-ruled the decision given in T.
Sareetha v. T. Venkatasubbaiah.

 Section 9 of the Hindu Marriage Act, 1955 provides for the restitution of the conjugal
rights. The aggrieved party may apply, by petition to the District Court, for the
restitution of conjugal rights.
 Maintenance can also be obtained by the party in case when the action is pending
under Section 25 of the Hindu Marriage Act, 1955. So, a wife who does not want a
judicial separation or disruption of marriage can attain maintenance from her husband
without filing a suit for the same under the Hindu Adoptions and Maintenance Act,
1956.
 Another important implication of the section is that it provides a ground for divorce
under Section 13(1A) of the Hindu Marriage Act, 1955 on a condition that there has
been no restitution of conjugal rights between them for a period of one year or more
after the passing of a decree for restitution of conjugal rights.
The legal grounds for refusing to grant relief are:
- any ground on which the respondent could have asked for a decree for judicial
separation or for nullity of marriage or for divorce;
- Reasonable excuse for withdrawing from the society of the petitioner;
- Any conduct on the part of the petitioner or fact tantamount to the petitioner
taking advantage of his or her own wrong or any disability for the purpose of
such relief;
- Unnecessary or improper delay in instituting the proceeding.
 If the husband either deserts a wife or neglects to perform his marital obligations
without any proper reason, then the wife can apply for restitution of conjugal rights.
Even husband can apply for restitution of conjugal rights. But the court can refuse to
grant order of restitution of conjugal rights for following reasons:
- Cruelty by husband or in-laws
- On the failure by the husband to perform marital obligations
- On non-payment of prompt dower by the husband.
 The defences for the restitution petition under the Hindu Marriage Act, 1955 and the
Indian Divorce Act, 1869 is very broad and it puts down that if the withdrawal of the
respondent from the society of the petitioner is “without reasonable excuse”, it is in
defence to restitution petition.
 A marriage in violation of the age prescribed under Section 5 (iii) of the Hindu
Marriage Act, 1955 being neither void nor voidable, a decree for restitution of
conjugal rights cannot be refused on the ground of the violation.
 Cruelty need not always be physical and it can also be mental. The Section 13 (1)
(1A) of the Hindu Marriage Act, 1955 can be used as defence of cruelty against a
petition for restitution of conjugal rights. The definition of ‘cruelty’ or what all
actions constitute cruelty has not been specified in the Hindu Marriage Act, 1955 or
the Indian Christian Marriage Act, 1872 or the Indian Divorce Act, 1869.
 In Hindu law, the separation agreements are not part of the matrimonial statutes. They
are regulated by the general law of contract.
 The restitution of conjugal rights is a part of the personal laws of the individual, thus
they are guided by ideals such as religion, tradition and custom. A very important
feature of restitution of conjugal rights to be emphasized is that it is a remedy is aimed
at preserving the marriage and not at disrupting it as in the case of divorce or judicial
separation. It serves to aid prevention of the breakup of marriage, thus is a means of
saving the marriage.
 The decree of restitution of conjugal rights cannot be executed by forcing the party
who has withdrawn from the society from the other to stay with the person who
institutes Petition for restitution. The decree can be executed only by attachment of
the properties of the judgment debtor. The practice has shown that the decree of
restitution is a paper decree.
  However, if the decree of restitution of conjugal right is not honoured for a period of
more than one year, subsequent to the date of the decree, it becomes a ground for
divorce.

ii. Judicial Separation

 As per Hindu Marriage Act, 1955; Section 10, Judicial separation is -

1. Either party to a marriage, whether solemnized before or after the commencement of this
Act, may present a petition to the District Court praying for a decree for judicial separation
on the ground that the other party-

(a) Has deserted the petitioner for a continuous period of not less than two years immediately
preceding the presentation of the petition; or

(b) 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; or

(c) Has, for a period of not less than one year immediately preceding the presentation of the
petition, been suffering from a virulent form of leprosy; or

(d) Has, immediately before the presentation of the petition, been suffering from venereal
disease in a communicable form, the disease not having been contracted from the petitioner;
or

(e) Has been continuously of unsound mind for a period of not less than two years
immediately preceding the presentation of the petition; or

(f) Has, after the solemnization of the marriage, had sexual intercourse with any person other
than his or her spouse.

Explanation.- In this section, the expression "desertion", with its grammatical variations and
cognate expressions, 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.

(2) Where a decree for judicial separation has been passed, it shall no longer be obligatory for
the petitioner to cohabit with the respondent, but the Court may, on the application by
petition of either party and on being satisfied of the truth of the statements made in such
petition, rescind the decree if it considers it just and reasonable to do so.
 Courts while dealing with the applications for judicial separation shall bear in mind
the specific grounds raised for grant of relief claimed and insist on strict proof to
establish those grounds and shall not grant some relief or the other as a matter of
course. Thus on a petition for divorce, the Court has discretion in respect of the
grounds for divorce other than those mentioned in Section 13 (1A) and also some
other grounds to grant restricted relief of judicial separation instead of divorce
straightway if it is just having regard to the facts and circumstances.
 Another question that arises is of decree of maintenance vis-à-vis decree for judicial
separation. Where a decree for judicial separation was obtained by the husband
against her wife who had deserted him, the wife not being of unchaste character nor
her conduct being flagrantly vicious, was the order of alimony made in favour of the
wife not interfered with by the Court.
 Judicial separation is an instrument devised under law to afford some time for
introspection to both the parties to a troubled marriage. Law allows an opportunity to
both the husband and the wife to think about the continuance of their relationship
while at the same time directing them to live separate, thus allowing them the much
needed space and independence to choose their path.
 Judicial separation is a sort of a last resort before the actual legal break up of marriage
i.e. divorce. The reason for the presence of such a provision under Hindu Marriage
Act is the anxiety of the legislature that the tensions and wear and tear of everyday
life and the strain of living together do not result in abrupt break – up of a marital
relationship.
 Calcutta High Court held in Tapan Kumar Chakraborty vs. Smt. Jyotsna Chakraborty
on 9 July, 1996:
There is no effect of a decree for judicial separation on the subsistence and
continuance of the legal relationship of marriage as such between the parties. The
effect however is on their co-habitation. Once a decree for judicial separation is
passed, a husband or a wife, whosoever has approached the court, is under no
obligation to live with his / her spouse.
Having regard to the fact that the grounds of desertion and cruelty as originally
pleaded in the petition filed by the husband could not be established, as discussed in
this judgment, and having regard to the fact that earlier the parties could settle their
bickering by effecting a compromise leading to burial of earlier litigations and to the
fact that the parties have a daughter of adolescent age we think that it would be just to
pass a decree of judicial separation instead of a decree for dissolution of marriage so
that the door for reconciliation between the parties in the changed circumstances may
remain open for sometime more, as it does not appear to us to be a case of
irretrievable breakdown of marriage.
Therefore with a hope that the parties may even hereafter effect amicable
reconciliation we would grant a decree of judicial separation under Section 10 of the
Hindu Marriage Act instead of a decree of dissolution of marriage under Section
13(1) (a) of the Hindu Marriage Act.
  Though Section 10 of the Hindu Marriage Act does not provide any time as to how
long judicial separation can last. But Section 13 of the Act provides that if there is no
resumption of co-habitation between the parties one year after the decree for judicial
separation is passed, the parties can get a decree for divorce on this ground itself.
 But divorce on this ground will be given only when one year has expired after the
passing of the decree for judicial separation and not earlier. The reason for this is that
one year is a long period and it provides sufficient time to the parties for
reconciliation or to arrive at a decision.
 If the parties fail to overcome their differences within this period, then there is no fun
in allowing the legality of the marriage to just linger on when in substance the
relationship of marriage has long expired.
 It is to be noted, however, that if the parties do agree to resume co-habitation any time
after the passing of the decree for judicial separation, they can get the decree
rescinded by applying to the Court. The Act does not refer to any specific grounds on
which a decree for judicial separation can be annulled or rescinded.
 Section 10(2) however, empowers the Court to rescind the decree for judicial
separation if it considers it just and reasonable to do so. However Courts have
repeatedly warned that this power of rescission has to be exercised with great
circumspection and not in a hurry and only after satisfying themselves that it would be
just and reasonable to allow such rescission.

iii. Dissolution of Marriage : Theories, Forms of Divorce, Grounds

Dissolution of Marriage

 Divorce means dissolution of marriage by a competent Court. Under Hindu Law; it analyses
how the concept was non-existent under ancient law due to the sacramental nature of
marriage, but was introduced under the Hindu Marriage Act, 1955.
 It studies the different theories of divorce- fault, mutual consent, and breakdown; and also
describes the grounds for divorce under this Act, with focus on adultery and cruelty, and how
these grounds were modified through amendments. It briefly dwells on the grounds that are
only available to a wife.
 Earlier divorce was unknown to general Hindu law as marriage was regarded as an
indissoluble union of the husband and wife. Manu declared that a wife cannot be
released by her husband either by sale or by abandonment, implying that the marital
tie cannot be severed in anyway.
 Although Hindu law does not contemplate divorce yet it has been held that where it is
recognized as an established custom it would have the force of law.
 According to Kautilya’s Arthashatra, marriage might be dissolved by mutual consent
in the case of the unapproved form of marriage. But, Manu does not believe in
 discontinuance of marriage. He declares” let mutual fidelity continue till death; this in
brief may be understood to be the highest dharma of the husband and wife.”
 However, this changed when divorce was introduced in the Hindu Marriage Act,
1955.

Theories of Divorce

 There are basically three theories for divorce-fault theory, mutual consent theory &
irretrievable breakdown of marriage theory.
 Under the Fault theory or the offences theory or the guilt theory, marriage can be
dissolved only when either party to the marriage has committed a matrimonial
offence. It is necessary to have a guilty and an innocent party, and only innocent party
can seek the remedy of divorce. However the most striking feature and drawback is
that if both parties have been at fault, there is no remedy available.
 Another theory of divorce is that of mutual consent. The underlying rationale is that
since two persons can marry by their free will, they should also be allowed to move
out of their relationship of their own free will. However critics of this theory say that
this approach will promote immorality as it will lead to hasty divorces and parties
would dissolve their marriage even if there were slight incompatibility of
temperament.
 The third theory relates to the irretrievable breakdown of marriage. The breakdown of
marriage is defined as “such failure in the matrimonial relationships or such
circumstances adverse to that relation that no reasonable probability remains for the
spouses again living together as husband & wife.” Such marriage should be dissolved
with maximum fairness & minimum bitterness, distress & humiliation.
 Some of the grounds available under Hindu Marriage Act can be said to be under the
theory of frustration by reason of specified circumstances. These include civil death,
renouncement of the world etc.

Fault /Guilt/Offence Theory

- The guilt or offence theory of divorce is essentially a 19th century concept

where the society abhorred divorce as an evil, as devil‘s mischief, and
therefore that society could agree for divorce only on that basis that one of the
parties has committed some sin, some very heinous offence against marriage.
As a corollary to the guilt of one party, the other party was required to be
totally innocent.
- According to this theory, if a party commits a matrimonial offence the
aggrieved party may seek divorce from the delinquent spouse. It is only the
matrimonial offence which is a ground of divorce. No criminal offence,
howsoever heinous, is a ground for divorce.
- Traditionally, adultery, desertion and cruelty are considered as matrimonial
offences. But this should be treated only as an illustrative list. Rapes, sodomy,
 bestiality, refusal to obey the order of a court to pay maintenance to the wife,
marring an underage person, are also examples of matrimonial offences.
- If the respondent is not guilty of any of these offences, divorce cannot be
granted against him even if he has committed the offence of murder, dacoit,
cheating, theft, treason, smuggling, black marketing or bribery etc. hence what
matters for divorce is the person injury to the marital relations of the other
spouse and not the injury dine to any other person(s) in the society.
- A fault divorce is usually chosen by a spouse who wishes to be vindicated by
proving the other's fault. In some states, the spouse who proves the other's
fault may receive a greater share of the marital property or more alimony.
- The offence theory stipulates for two things: (i) a guilty party, i.e., the party
who has committed one of the specified matrimonial offences, and (ii) an
innocent party, who has been outraged and who has played no role in the
criminality or the matrimonial offence of the other party.
If the purpose of the divorce law was the punishment of the guilty party, then
it was natural to lay down that the other party should have no complicity in the
guilt of the offending party. If the petitioner‘s hands are not clean, he cannot
seek relief. It is a different matter that the English courts took this principle to
its logical end.
- Under Indian law all bars are absolute bars. The guilt theory, on the one hand,
implies, a guilty party, i.e., commission of matrimonial offence on the part of
one of the parties to the marriage, and, on the other hand, it implies that the
other party is innocent, i.e., in no way a party to, or responsible for, the
offence of the guilty party.
This principle was taken very far in English law; so much so that if both the
parties, independently of each other, committed matrimonial offence the
marriage could not be dissolved. For instance, if a petition is presented on the
ground of respondent‘s adultery and it is established that the petitioner is also
guilty of adultery, then the petitioner cannot be allowed divorce.
- Since the guilt theory requires that the petitioner should be innocent, the
English law evolved the doctrine of matrimonial bars, discretionary bars and
absolute bars. This means that even if a petitioner is able to establish a ground
of divorce to the satisfaction of the court, he may not get divorce if one of the
matrimonial bars is proved against him.
- Possible Faults: This type of divorce can be based in any of the following:
i. Cruelty which includes the infliction of unnecessary emotional or
physical pain and abusive treatment
ii. Adultery which means voluntary sexual activity between a married
person with a person other than his or her spouse
iii. Desertion for a specified length of time
iv. Confinement in prison for a number of years
v. Alcohol or drug abuse
vi. Insanity
 vii. Physical inability to engage in sexual intercourse, if it was not
disclosed before marriage
viii. Infecting the other spouse with a sexually transmitted disease
- Defences: There are also defences which can be raised by the other spouse in a
fault divorce proceedings-
i. Recrimination - It is the defence wherein the accused spouse in an
action for divorce makes a similar accusation against the complainant
spouse.
ii. Condonation - Which usually takes the form of implied or express
forgiveness of a spouse's marital wrong and, therefore, weakens the
accuser’s case.
iii. Connivance – It is the act of knowingly and wrongly overlooking or
assenting without placing any opposition to a spouse's marital
misconduct, especially to adultery.
iv. Reconciliation - Where the spouses voluntarily resume marital relation
by cohabiting as spouses prior to a divorce becoming final with mutual
intention of remaining together and re-establishing a harmonious
relationship.
v. Provocation - Inciting the other spouse to do a certain act. An example
of this is when a spouse claiming for abandonment, the other spouse
may raise the defence that the claiming spouse provoked the
abandonment.

Forms of Divorce

Indian Laws regarding Divorce depict that the Divorce can be obtained by two ways:

- Divorce by Mutual Consent

- Contested Divorce

By Mutual Consent

- Divorce is a simple way of coming out of the marriage and dissolves it legally.
Important requirement is the mutual consent of the husband & wife. There are
two aspects on which Husband & Wife have to reach to consensus.
- One is the alimony or maintenance issues. As per Law there is no minimum or
maximum limit of maintenance. It could be any figure or no figure.
- Next important consideration is the Child Custody. This can also be worked
out effectively between the parties. Child Custody in Mutual Consent Divorce
can be shared or joint or exclusive depending upon the understanding of the
spouses.
 - Duration of Divorce in Mutual Consent varies from one month to six months
or more from States to States and as per the High Court directions.

Contested Divorce

- As the name suggests, one has to contest it. Indian laws in general recognizes
cruelty (Physical & Mental), Desertion (Period varies from 2 to 3 years),
Unsoundness of mind (of Incurable form), Impotency, renouncing the world,
etc.
- Aggrieved party has to take one of the above grounds of divorce and will have
to file the case in the Court of appropriate jurisdiction. Party which files the
case has to prove the case with support of evidence and documents.
- On successfully proving the case, divorce will be granted and divorce decree
will be drawn up accordingly.

** Annulment of marriage

- Marriage in India can also be dissolved by means of Annulment. Procedure for

annulment is same as that of Divorce except that the grounds for annulment
are different than that of divorce.
- Grounds for annulment are fraud, pregnancy of wife by person other than the
husband, impotency prior to the marriage and subsist even at the time of filing
the case.
- Once annulment is granted by the Indian Court, status of the parties remains as
it was prior to the marriage.

Grounds for Divorce under Hindu Marriage Act

 It is conceded in all jurisdictions that public policy, good morals & the interests of
society require that marital relation should be surrounded with every safeguard and its
severance be allowed only in the manner and for the cause specified by law. Divorce
is not favoured or encouraged, and is permitted only for grave reasons. In the modern
Hindu law, all the three theories of divorce are recognized & divorce can be obtained
on the basis of any one of them.
 The Hindu Marriage Act, 1955 originally, based divorce on the fault theory, and
enshrined nine fault grounds in Section 13(1) on which either the husband or wife
could sue for divorce, and two fault grounds in section 13(2) on which wife alone
could seek divorce.
 In 1964, by an Amendment, certain clauses of Section 13(1) were amended in the
form of Section 13(1A), thus recognizing two grounds of breakdown of marriage.
 The 1976 Amendment Act inserted two additional fault grounds of divorce for wife &
a new section 13B for divorce by mutual consent.
 The various grounds on which a decree of divorce can be obtained are as follows-

i. Adultery
- While adultery may not have been recognized as a criminal offence in all
countries, the matrimonial offence of adultery or the fault ground of adultery
is recognized in most. Even under the Shastric Hindu law, where divorce had
not been recognized, adultery was condemned in the most unequivocal terms.
There is no clear definition of the matrimonial offence of adultery.
- In adultery there must be voluntary or consensual sexual intercourse between
a married person and another, whether married or unmarried, of the opposite
sex, not being the other’s spouse, during the subsistence of marriage.
- Thus, intercourse with the former or latter wife of a polygamous marriage is
not adultery. But if the second marriage is void, then sexual intercourse with
the second wife will amount to adultery.
- Though initially a divorce could be granted only if such spouse was living in
adultery, by the Marriage Laws Amendment Act, 1976, the present position
under the Hindu Marriage Act is that it considers even the single act of
adultery enough for the decree of divorce.
- Since adultery is an offence against marriage, it is necessary to establish that at
the time of the act of adultery the marriage was subsisting. Also, it follows that
unless one willingly consents to the act, there can be no adultery. If the wife
can establish that the co-respondent raped her, then the husband would not be
entitled to divorce.
- In Swapna Ghose v. Sadanand Ghose the wife found her husband and the
adulteress to be lying in the same bed at night and further evidence of the
neighbours that the husband was living with the adulteress as husband and
wife is sufficient evidence of adultery. The fact of the matter is that direct
proof of adultery is very rare.

- The offence of adultery may be proved by:

a. Circumstantial evidence
b. Contracting venereal disease

ii. Cruelty
- The concept of cruelty is a changing concept. The modern concept of cruelty
includes both mental and physical cruelty. Acts of cruelty are behavioural
manifestations stimulated by different factors in the life of spouses, and their
surroundings and therefore; each case has to be decided on the basis of its own
set of facts.
- While physical cruelty is easy to determine, it is difficult to say what mental
cruelty consists of. Perhaps, mental cruelty is lack of such conjugal kindness,
which inflicts pain of such a degree and duration that it adversely affects the
health, mental or bodily, of the spouse on whom it is inflicted.
In Dastane v. Dastane, AIR 1970 Bom. 312: Five tests were laid down in determining
whether a given conduct amounts to legal cruelty. They are the following:

The alleged acts constituting cruelty should be proved according to the law of evidence;

There should be an apprehension in the petitioner’s mind of real injury or harm from such
conduct;

The apprehension should be reasonable having regard to the socio-economic and psycho-
physical condition of the parties;

The petitioner should not have taken advantage of his position;

The petitioner should not by his or her conduct have condoned the acts of cruelty.

- Some Instances of Cruelty are as follows–

a. false accusations of adultery or unchastity
Saptami Sarkar v. Jagdish, 73 C.W.N. 502: In this case, where a husband publicly
called his wife a ‘prostitute’ and tried to wipe her vermilion mark (on the forehead
at the parting of her hair) by dashing her against a wall, it was held that it
amounted to cruelty in form of demand of dowry.
b. refusal to have marital intercourse/children

Rita Nijhawan v Balakishan Nijhawan AIR 1973, AIR 1973 DEL 200: A 16 year
old female and 30 year old male were married in 1954. The wife alleged that
barring a part improvement that resulted in a pregnancy in 1958, there had never
been any normal sexual life and the husband had failed to give sexual satisfaction.
Judicial Separation was decreed. Also Impotency is the lack of ability to perform
full and complete sexual intercourse. Partial and imperfect intercourse is not
consummation and if a party (husband) was incapable of performing the sexual
intercourse fully, he would be in law deemed to be impotent.

c. impotency
d. birth of illegitimate child
e. drunkenness
f. threat to commit suicide
g. wife’s writing false complaints to employer of the husband
h. incompatibility of temperament
i. irretrievable breakdown of marriage
- The following do not amount to cruelty-
a. ordinary wear & tear of married life
b. wife’s refusal to resign her job
c. desertion per se
d. Outbursts of temper without rancour.
iii. Desertion
- Desertion means the rejection by one party of all the obligations of marriage-
the permanent forsaking or abandonment of one spouse by the other without
any reasonable cause and without the consent of the other. It means a total
repudiation of marital obligation.
- Desertion is not the withdrawal from a place but from a state of things.
Desertion, therefore, means withdrawing from the matrimonial obligations,
i.e., not permitting or allowing and facilitating the cohabitation between the
parties. The proof of desertion has to be considered by taking into
consideration the concept of marriage which in law legalises the sexual
relationship between man and woman in the society for the perpetuation of
race, permitting lawful indulgence in passion to prevent licentiousness and for
procreation of children.
- Desertion is not a single act complete in itself; it is a continuous course of
conduct to be determined under the facts and circumstances of each case.
In case of Savitri Pandey v. Prem Chandra Pandey, reported in 2002 AIR
SCW 182: [2002 (2) GLR 1369 (SC)]. The Hon'ble Supreme Court in Para 7A
on page 187 has observed as under:
"Desertion", for the purpose of seeking divorce under the Act, means the
intentional permanent forsaking and abandonment of one spouse by the other
without that other's consent and without reasonable cause. In other words, it is
a total repudiation of the obligations of marriage. Desertion is not the
withdrawal from a place but from a state of things. Desertion, therefore, means
withdrawing from the matrimonial obligations, i.e., not permitting or allowing
and facilitating the cohabitation between the parties. The proof of desertion
has to be considered by taking into consideration the concept of marriage
which in law legalises the sexual relationship between man and woman in the
society for the perpetuation of race, permitting lawful indulgence in passion to
prevent licentiousness and for procreation of children. Desertion is not a single
act complete in itself; it is a continuous course of conduct to be determined
under the facts and circumstances of each case”
- In Bipin Chandra v. Prabhavati the Supreme Court held that if a spouse abandons
the other in a state of temporary passions, for example, anger or disgust
without intending permanently to cease cohabitation, it will not amount to
desertion. If subsequently he shows an inclination to return & is prevented
from doing so by the petitioner. It was also held that
"For the office 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.
The petitioner for divorce bears the burden of proving those elements in the
two spouses respectively.

- Desertion is a matter of inference to be drawn from the facts and

circumstances of each case. The inference may be drawn from certain facts
which may not in another case be capable of leading to the same inference;
that is to say, the facts have to be viewed as to the purpose which is revealed
by those acts or by conduct and expression of intention, both anterior and
subsequent to the actual acts of separation. If, in fact, there has been a
separation, the essential question always is whether that act could be
attributable to an animus deserendi.

- The offence of desertion commences when the fact of separation and the
animus deserendi co-exist. But it is not necessary that they should commence
at the same time. The de facto separation may have commenced without the
necessary animus ort it may be that the separation and the animus deserendi
coincide in point of time; for example, when the separating spouse abandons
the marital home with the intention, express or implied, of bringing
cohabitation permanently to a close.
- The law in England has prescribed a three years period and the Bombay Act
prescribed a period of four years as a continuous period during which the two
elements must subsist. Hence, if a deserting spouse takes advantage of the
locus poenitentiae thus provided by law and decide to come back to the
deserted spouse by a bona fide offer of resuming the matrimonial home with
all the implications of marital life, before the statutory period is out or even
after the lapse of that period, unless proceedings for divorce have been
commenced, desertion comes to an end and if the deserted spouse
unreasonably refuses to offer, the latter may be in desertion and not the
former.
- Hence it is necessary that during all the period that there has been a desertion,
the deserted spouse must affirm the marriage and be ready and willing to
resume married life on such conditions as may be reasonable. It is also well
settled that in proceedings for divorce the plaintiff must prove the offence of
desertion, like and other matrimonial offence, beyond all reasonable doubt.
Hence, though corroboration is not required as an absolute rule of law the
courts insist upon corroborative evidence, unless its absence is accounted for
to the satisfaction of the court."
The essential ingredients of this offence in order that it may furnish a ground
for relief are:
(a) The factum of separation; and
(b) The intention to bring cohabitation permanently to an end - animus
deserendi
(c) the element of permanence which is a prime condition requires that both
these essential ingredients should continue during the entire satisfactory
period.

"Desertion, in short, means a total repudiation of marital obligation. An end to

two-in-oneship and to marital togetherness which is the kernel of marriage. To
explain it with an analogy: most of us are familiar with the term desertion
deserter from the army. A deserter from the army is one who runs away from
his post or from his duty. A spouse is in desertion if it runs away from his
marital obligations, from cohabitation.

The "running away" may mean that he actually leaves the matrimonial home
permanently or living in matrimonial home refuses to perform marital
obligations; he ceases to cohabit or he abandons his matrimonial obligations.
The latter aspect of desertion is termed as constructive desertion.

Thus, desertion may be classified under the following heads:-

(a) Actual desertion,
(b) Constructive desertion, and
(c) Wilful neglect: this expression is used both under the Special Marriage
Act, 1954 and the Hindu Marriage Act, 1955 and in some cases, it has been
considered part of constructive desertion.

The main elements of desertion are:

(a) The fact of separation (factum deserdendi), and
(b) The intention to desert (animus deserdendi).

The further elements are:

(i) without any reasonable cause,
(ii) (Without the consent of the other party or against the wishes. Further,
to examine the elements of desertion, the following two preliminary
observations are necessary to note with a view to clearly
comprehending the legal concept of desertion :
(A) Until an action is brought desertion remains an inchoate offence,
that is to say, it can be terminated by the party in desertion by either
resuming cohabitation or expressing an unequivocal intention to
resume cohabitation.
(B) Although fact of separation is an essential element of desertion, it
does not mean that the party who leaves the matrimonial home is
necessarily the deserter. It may be ‘that a party who stays behind may
by conduct or act on his part had made it intolerable for the other
spouse to stay on in the matrimonial home. This aspect of desertion is
called constructive desertion."

Proving Desertion

To prove desertion in matrimonial matter it is not always necessary

that one of the spouses should have left the company of the other as
desertion could be proved while living under the same roof. Desertion
cannot be equated with separate living by the parties to the marriage.
Desertion may also be constructive which can be inferred from the
attending circumstances.

It has always to be kept in mind that the question of desertion is a

matter of inference to be drawn from the facts and circumstances of
each case.
The basis for this theory is built upon the recognised position of law in
matrimonial matters that no-one can desert who does not actively or
wilfully bring to an end the existing state of cohabitation. However,
such a rule is subject to just exceptions which may be found in a case
on the ground of mental or physical incapacity or other peculiar
circumstances of the case.
However, the party seeking divorce on the ground of desertion is
required to show that he or she was not taking the advantage of his or
her own wrong.

Termination of desertion

Desertion is a continuing offence. This character and quality of

desertion makes it possible to bring the state of desertion to an end by
some act or conduct on the part of deserting spouse. It may be
emphasized that the state of desertion may be put to an end not merely
before the statutory period has run out, but also at any time, before the
presentation of the petition.
 Desertion may come to an end by the following ways:

(a) Resumption of cohabitation

If parties resume cohabitation, at any time before the presentation of the petition, the
desertion comes to an end. Resumption of cohabitation must be by mutual consent of
both parties and it should imply complete reconciliation. The desertion ends only
when the deserting parties goes to the matrimonial home mentally prepared to end
the cohabitation. It is necessary to prove that marital intercourse was also resumed.

(b) Resumption of marital intercourse.

Resumption of marital intercourse is an important aspect of resumption of
cohabitation. Sometimes resumption of marital intercourse may terminate desertion.
If resumption of marital intercourse was a step towards the resumption of
cohabitation, it will terminate desertion even if the deserted spouse backs out.

(c) Supervening animus revertendi or offer of reconciliation

If the party in desertion expresses an intention to return, this would amount to

termination of desertion. Animus revertendi means intention to return. Desertion may
be brought to an end by the deserting spouse’s genuine and bonafide offer of
reconciliation. It should not be just to forestall or defeat the impending judicial
proceedings.

iv. Conversion

When the other party has ceased to be Hindu by conversion to any other religion
for e.g. Islam, Christianity, Judaism, Zoroastrianism, a divorce can be granted.

v. Insanity: Insanity as a ground of divorce has the following two requirements-

a. The respondent has been incurably of unsound mind
b. The respondent 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.

vi. Leprosy
- Contagiousness of leprosy and repulsive outward manifestations are
responsible for creating a psychology where man not only shuns the company
of lepers but looks at them scornfully. Thus, it is provided as a ground for
divorce. The onus of proving this is on the petitioner.
 vii. Venereal Disease
- At present, it is a ground for divorce if it is communicable by nature
irrespective of the period for which the respondent has suffered from it. The
ground is made out if it is shown that the disease is in communicable form & it
is not necessary that it should have been communicated to the petitioner (even
if done innocently).

viii. Renunciation
- “Renunciation of the world” is a ground for divorce only under Hindu law, as
renunciation of the world is a typical Hindu notion. Modern codified Hindu
law lays down that a spouse may seek divorce if the other party has renounced
the world and has entered a holy order. A person who does this is considered
as civilly dead. Such renunciation by entering into a religious order must be
unequivocal & absolute.

ix. Presumption Of Death

- Under the Act, a person is presumed to be dead, if he/she has not been heard
of as being alive for a period of at least seven years. The burden of proof that
the whereabouts of the respondent are not known for the requisite period is on
the petitioner under all the matrimonial laws.
This is a presumption of universal acceptance as it aids proof in cases where it
would be extremely difficult if not impossible to prove that fact.
- A decree of divorce granted under this clause is valid & effective even if it
subsequently transpires that the respondent was in fact alive at the time when
the decree was passed.

Wife’s Special Grounds for Divorce

- Besides the grounds enumerated above, a wife has been provided four
additional grounds of divorce under Section 13(2) of the Hindu Marriage Act,
1955. These are as follows-

i. Pre-Act Polygamous Marriage

- This clause states the ground for divorce as, “That the husband has another
wife from before the commencement of the Act, alive at the time of the
solemnization of the marriage of the petitioner.
 - For example, the case of Venkatame v. Patil where a man had two wives, one of
whom sued for divorce, and whiles the petition was pending, he divorced the
second wife. He then averred that since he was left only with one wife, and the
petition should be dismissed.
The Court rejected the plea. Such a ground is available if both the marriages
are valid marriages & the other wife (2nd wife) should be present at the time
of filing of the petition. However, today this ground is no more of practical
importance.

ii. Rape, Sodomy Or Bestiality

- Under this clause, a divorce petition can be presented if the husband has, since
the solemnization of the marriage, been guilty of rape, sodomy or bestiality.

iii. Non-Resumption Of Cohabitation After A Decree/Order Of Maintenance

- If a wife has obtained an order of maintenance in proceedings under Section
125, Cr.P.C., 1973 or a decree under Section 18, Hindu Adoption &
Maintenance Act, 1956 & cohabitation has not been resumed between parties
after one year or upwards, then this is a valid ground for suing for divorce.

iv. Repudiation Of Marriage

- This provision provides a ground for divorce to the wife when the marriage
was solemnized before she attained the age of fifteen years, and she has
repudiated the marriage, but before the age of eighteen. Such repudiation may
be express (written or spoken words) or may be implied from the conduct of
the wife (left husband & refused to come back).
Moreover, this right (added by the 1976 Amendment) has only a retrospective
effect i.e. it can be invoked irrespective of the fact that the marriage was
solemnized before or after such Amendment.

iv. Divorce by Mutual Consent

- As the name suggests; it is when both the parties i.e. the husband and the wife
comes to an understanding that the marriage should be dissolved amicably
- Section 13B of Hindu Marriage Act 1955 provides for divorce by mutual
consent where period of separation is 1 year
- Section 28 of the Special Marriage Act 1954 provides for divorce by mutual
consent.
- Section 10A of the Divorce Act 1869 provides for divorce by mutual consent
and period of separation is of 2 years
 - Conditions required under 13B of Hindu Marriage Act for filing a divorce by
mutual consent are:
i. Husband and wife have been living separately for a period of one year
or more
ii. That they are unable to live together
iii. Both husband and wife have mutually agreed that the marriage has
totally collapsed so marriage should be dissolved.

- Karnataka High Court held in Case of Smt. Roopa Reddy v. Prabhakar Reddy on 4
June, 1993 that:

i. Marriage is a union of 2 hearts. Success of married life depends on the edifice built
with the mutual trust, understanding, love, affection, service and self sacrifice. If this
edifice is shaken then a happy married life will be shattered into pieces. The result is
one of misery and emotion.

ii. Whether one accepts it or not liberalisation in the way of living of individuals and
reformation in age old customs and due to modernisation and understanding of
individual rights and equal status irrespective of sex it is natural for either of the
spouse to seek for dissolution.

iii. Where the marriage tie has been broken, the Court has to look to the interest of the
parties and the welfare of the children as paramount. When it is impossible to live
like husband and wife, any compulsion to unite them will lead to social evils and
disturbance of mental peace and disorder in the family life.
iv. However rigid social fabric it is not the social system but the personal safety of
the parties to the wedlock, shall prevail. This should be the guiding principle in
view of S. 13B (1) of the Act. There is complete destruction of the essence of
marriage between parties and it has reached the stage of irretrievable breakdown.
v. In the background of the circumstances narrated in the case, the request made by
both parties for divorce by mutual consent is the only just and proper way to allow
them to spend their remaining period of life happily with contentment instead of
compelling them to lead a miserable and emotional life without any constructive
purpose.
vi. Hence, the request made by the parties for a decree of divorce by mutual consent
has to be granted since it is in their interest and for the welfare of their children.
vii. The judgment of the Court below is set aside and the decree of divorce by mutual
consent is granted by ordering dissolution of the marriage between the parties. It is
also made clear that this judgment is passed on the basis of the mutual consent and
not on the basis of the allegations made by the parties against each other.

** As per Sub Section 2; the parties are required to make joint motion not earlier 6
months and not later than 18 months of the said date. The motion empowers the Court
to satisfy itself regarding the genuineness of the averments in the petition and also to
verify whether consent was not obtained by fraud and undue pressure.
 The Court may make such an inquiry including the hearing or examination of parties
for the purpose of satisfying itself.

- Merits:
i. Saves time, money and energy for both
ii. Leaves no room for unnecessary quarrels
iii. Helpful in countries where there are many filed divorces cases and
there is a need for speedy trials and judgements
- Things that need to be mutually agreed upon in the petition for divorce by
mutual consent:
i. Custody of child
ii. Alimony i.e. lump sum maintenance
iii. Return of the items like dowry, streedhan, etc
iv. Litigation expenses

v. Irretrievable Breakdown as a Ground for Dissolution

- In spite of recommendations of the Law Commission in its first report; the
legislature did not consider its advice to introduce irretrievable breakdown of
marriage as one of the grounds for decree of divorce.
- In Saroj Rani v Sudarshan Kumar Chadha; the Supreme Court has first laid
down in uploading a decree of divorce following a consent decree for
restitution of conjugal rights that it is evident that for whatever be the reasons;
this marriage has broken down and the parties can no longer live together as
husband and wife; if such is the situation then it is better to close it.
- Considering the above case in Amrendra N. Chatterjee v. Smt. Kapana
Chatterjee in the context of different sets of facts; it was held that the Hindu
Marriage Act does not contain any provision for dissolution of marriage by a
decree on the ground of irretrievable breakdown of marriage and as such the
Court cannot grant a decree on that ground alone.
- In Apurba Mohan Ghosh v Manashi Ghosh; it has been held that in view of
the provisions of the Section 23 of the Act, the Court would grant relief only
when any of the statutory ground mentioned in the Act is found to exist.
- If such theory of irretrievable breakdown of marriage is introduced in
Marriage Laws of India; there maybe increase in number of divorce cases but
it will not destroy the institution of marriage nor will it affect the quality of
family.
- Moreover the essence of marriage is sharing of common life, sharing of all the
happiness that life has to offer and all the misery that has to face in life, an
experience of the joy that comes from enjoying in common things of the
matter and of the spirit from showering love and affection on one’s offspring.
- Living together is a symbol of such sharing in all aspects. Living apart is a
symbol indicating negation of such sharing. It is indicative of a disruption of
the essence of the marriage ‘breakdown’ and if continues for a fairly long
period then it means destruction of the essence of the marriage i.e.
irretrievable breakdown.
- In the case of Naveen Kohli vs. Neelu Kohli AIR 2006 SC 1675, the Court has
observed and recommended that irretrievable breakdown of marriage should
be incorporated as another ground for grant of divorce.