Theories Of Divorce

Guilt Theory/Fault Theory: If party guilt of matrimonial offence divorce can be

granted. Ex C,D,A
If there is any fault in the party. Ex insane, leprosy, vulnerable disease
Consent theory: parties have freedom of marriage so should be free to dissolve
it.
In 1976 provision of divorce by Mutual Consent was added( Sec 13B)
Too Easy or Too difficult
Breakdown Theory: If marriage broken down irretrievably better to dissolve it.
Sec 13(1A) :
SC Art 142
Divorce
• 13. Divorce.—(1) Any marriage be dissolved on ground—
• Other party has, after the marriage, had voluntary sexual intercourse
with any person other than his or her spouse;
• Before 1976 Adultery was ground of JS only and for divorce must be
living in adultery.
• After 1976 Amd adultery ground of divorce –
• single act sufficient.
• Sec 23 Must not be condoned, connived or accessory.
• Joseph shine V. UOI decriminalize Adultery
Cruelty
• Sec 13 (ia) has, after the solemnization of the marriage, treated the petitioner with
cruelty
• Originally cruelty was ground for JS and cruelty must be such as to cause reasonable
apprehension that it would be harmfull/injurious to live with respondent.
• In 1976 made ground for divorce and rephrased”treated with cruelty”
• U/S 23 petitioner must not have condoned cruelty.
• Can be physical/ Mental
• No mensrea/intention Required ex demanding dowry. Conduct complained of should
be weighty and grave not ordinary wear and tear of life.
• Act complained of must be grave and weighty and not ordinary wear and tear of life.
• Test: Socio, Eco status etc.
Cases on cruelty
• Dastane v. Dastane
• Suman Kapoor v. Sudhir Kapoor(cruelty + desertion)
• Savitri Pandey V.Prem chander Pandey.(cruelty+desertion) cruelty not
proved desertion not proved bcoz had not lived together a single day.
• Shobha Rani v. Madhukar Reddi: for cruelty intention doesn’t matter
demanding dowry itself is cruelty.
• K Srinivasrao v. Deepa (cruelty+IBD) Living together not reqd for
cruelty.
• Naveen Kohli v. Neelu Kohli(cruelty+IBD)
Desertion
• . Divorce.—13(1) Any marriage solemnized, whether before or after
the commencement of this Act, may, on a petition presented by
either the husband or the wife, be dissolved by a decree of divorce on
the ground that the other party
• (ib) has deserted the petitioner for a continuous period of not less
than two years immediately preceding the presentation of the
petition; or]
• Desertion: Separation / abandonment of one spouse from other with
an intention of bringing Cohabitation permanently to an end without
consent of other spouse.
Desertion Contd.
• Conditions
• Factum of separation { co exist factum + Animus}
• Animus deserendi
• Absence /without consent of other
• Without reasonable excuse
• Continous period of 2 yrs
• Types:
• Actual
• Constructive
• Bipin Chander V. Prabhawati
Savitri Pandey
• “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
matrimonal obligations, i.e., not permitting or allowing and facilitating the cohabitation between the parties.
• After referring to host of authorities and the views of various authors, this Court in Bipinchandra Jaisinghbhai Shah v. Prabhavati
(AIR 1957 SC 176), 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. It further held :
• For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely
• (1) the factum of separation, and
• (2) the intention to bring cohabitation permanently to an end (animus deserendi).
• Similarly two elements are essential so far as the deserted spouse is concerned:
• (1) the absence of consent, and
• (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention
aforesaid. The petitioner for divorce bears the burden of proving those elements in the two spouses respectively.
• 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
Remaining Grounds Of Divorce
• 13. Divorce.—(1) Any marriage solemnized, whether before or after the
commencement of this Act, may, on a petition presented by either the husband or
the wife, be dissolved by a decree of divorce on the ground that the other party—]
• (ii) has ceased to be a Hindu by conversion to another religion; or
• [(iii) has been incurably of unsound mind, or has been suffering continuously or
intermittently from mental disorder of such a kind and to such an extent that the
petitioner cannot reasonably be expected to live with the respondent. Explanation.
• (v) has 3 * * * been suffering from venereal disease in a communicable form; or (vi)
has renounced the world by entering any religious order; or
• (vii) has not been heard of as being alive for a period of seven years or more by
those persons who would naturally have heard of it, had that party been alive
Sec 13(1A)
• Sec 13 [(1A) Either party to a marriage, whether solemnized before or after the commencement of
this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the
ground—
• (i) that there has been no resumption of cohabitation as between the parties to the marriage for a
period of 8 [one year] or upwards after the passing of a decree for judicial separation in a proceeding
to which they were parties; or
• (ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a
period of 8 [one year] or upwards after the passing of a decree for restitution of conjugal rights in a
proceeding to which they were parties.]
• It was inserted by amd in 1964 and gave right to both the parties earlier right was only with the party
in whose favour decree of RCR/JS was passed.
• In 1976 period of 2 year was reduced to 1 year.
• Cases: Dharmender Kumar V. Usha Kumari
• Hirachand Srinivas Managaonkar V. Sunanda
• H W
• RCR Iyear
Sec 21
Wife’s exclusive ground of divorce.Sec 13(2)
• (2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground,—
• (i) in the case of any marriage solemnized before the commencement of this Act, that the husband had married
again before such commencement or that any other wife of the husband married before such commencement
was alive at the time of the solemnization of the marriage of the petitioner:
• Provided that in either case the other wife is alive at the time of the presentation of the petition; or
• (ii) that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or [bestiality
• [(iii) that in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a
proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) (or under the corresponding
section 488 of the Code of Criminal Procedure, 1898 (5 of 1898), a decree or order, as the case may be, has been
passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that
since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or
upwards;
• (iv) that her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years
and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.
Explanation.—This clause applies whether the marriage was solemnized before or after the commencement of
the Marriage Laws (Amendment) Act, 1976 (68 of 1976)
• [13A. Alternate relief in divorce proceedings.—In any proceeding
under this Act, on a petition for dissolution of marriage by a decree of
divorce, except in so far as the petition is founded on the grounds
mentioned in clauses (ii), (vi) and (vii) of sub-section (1) of section 13,
the court may, if it considers it just so to do having regard to the
circumstances of the case, pass instead a decree for judicial
separation.
Mutual Consent
• 13B. Divorce by mutual consent.—(1) Subject to the provisions of this Act a petition for dissolution
of marriage by a decree of divorce may be presented to the district court by both the parties to a
marriage together, whether such marriage was solemnized before or after the commencement of
the Marriage Laws (Amendment) Act, 1976 (68 of 1976),
• on the ground that they have been living separately for a period of one year or more, that they
have not been able to live together and that
• they have mutually agreed that the marriage should be dissolved.
• (2) On the motion of both the parties made not earlier than six months after the date of the
presentation of the petition referred to in sub-section (1) and not later than eighteen months after
the said date,
• if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing
the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and
that the averments in the petition are true, pass a decree of divorce declaring the marriage to be
dissolved with effect from the date of the decree.]
• Petition to be presented by both parties together
• They should be living separately for period of 1 year or more(i.e not
living as H/W
• They have not been able to live together
• They have mutually agreed to dissolve the marriage
• Motion has to be presented by both the parties not earlier than 6
months and not later than 18 months
• Petition not withdrawn
• Sureshta Devi V. Omprakash
• Anil Kumar Jain v. Maya Jain.
• Nikhil Kumar V. Rupali kumar.
• Amardeep singh v. Harveen Kaur
Amardeep singh v. Harveen Kaur

• we are of the view that where the Court dealing with a matter is satisfied that a case is made out to
waive the statutory period under Section 13B(2), it can do so after considering the following :
• i) the statutory period of six months specified in Section 13B(2), in addition to the statutory period of
one year under Section 13B(1) of separation of parties is already over before the first motion itself;
• ii) all efforts for mediation/conciliation including efforts in terms of Order XXXIIA Rule 3 CPC/Section
23(2) of the Act/Section 9 of the Family Courts Act to reunite the parties have failed and there is no
likelihood of success in that direction by any further efforts;
• iii) the parties have genuinely settled their differences including alimony, custody of child or any other
pending issues between the parties;
• iv) the waiting period will only prolong their agony.
• . The waiver application can be filed one week after the first motion giving reasons for the prayer for
waiver.
• If the above conditions are satisfied, the waiver of the waiting period for the second motion will be in
the discretion of the concerned Court.
• 14. No petition for divorce to be presented within one year of marriage.—(1) Notwithstanding anything
contained in this Act, it shall not be competent for any court to entertain any petition for dissolution of a
marriage by a decree of divorce, 4 [unless at the date of the presentation of the petition one one year has
elapsed] since the date of the marriage: Provided that the court may, upon application made to it in
accordance with such rules as may be made by the High Court in that behalf, allow a petition to be presented
4 [before one year has elapsed] since the date of the marriage on the ground that the case is one of
exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent, but if it
appears to the court at the hearing of the petition that the petitioner obtained leave to present the petition by
any misrepresentation or concealment of the nature of the case, the court may, if it pronounces a decree, do
so subject to the condition that the
• decree shall not have effect until after the 1 [expiry of one year] from the date of the marriage or may dismiss
the petition without prejudice to any petition which may be brought after 2 [expiration of the said one year]
upon the same or substantially the same facts as those alleged in support of the petition so dismissed. (2) In
disposing of any application under this section for leave to present a petition for divorce before the 3
[expiration of one year] from the date of the marriage, the court shall have regard to the interests of any
children of the marriage and to the question whether there is a reasonable probability of a reconciliation
between the parties before the expiration of the 4 [said one year].