DIVORCE AND

MATRIMONIAL REMEDIES
UNDER HINDU MARRIAGE
ACT, 1955
Guided by: Professor Kahkashan Daniyal

SUBMITTED BY:
AHMAD AMMAR
B.A. LL.B. (HONS.) 5TH SEMESTER
 Acknowledgement
Firstly, I would like to express my profound sense of gratitude towards the almighty “ALLAH”
for providing me with the authentic circumstances which were mandatory for the completion of
my project.

Secondly, I am highly indebted to Prof. KAHKASHAN Y. DANYAL at Faculty of Law, Jamia

Millia Islamia University, New Delhi for providing me with constant encouragement and
guidance throughout the preparation of this project.

Thirdly, I thank the Law library staff who liaised with us in searching material relating to the
project.

My cardinal thanks are also for my parents, friends and all teachers of law department in our
college who have always been the source of my inspiration and motivation without which I
would have never been able to unabridged my project.

My father, a lawyer with large access to books of value has been of great help to me.

Without the contribution of the above said people I could have never completed this project.

Ahmad Ammar

B.A.LL.B (Hons) 5th Semester

 Table of Contents
1. Introduction..........................................................................................................................1
2. Theories Regarding Divorce................................................................................................3
3. Grounds for Divorce under Hindu Marriage Act, 1955.......................................................6
i. Adultery
ii. Cruelty
iii. Conversion or Change of Religion
iv. Insanity
v. Venereal Disease
vi. Renunciation of the World
vii. Presumption of Death

Divorce by Mutual Consent...............................................................................................11

Judicial Separation.............................................................................................................12

Non-Resumption of Cohabitation......................................................................................13

4. Desertion – A Separate Analysis.......................................................................................15

5. Other Matrimonial Remedies.............................................................................................29
6. Conclusion…...…………………………………………………………………………..34
7. Bibliography……………………………………………………………………………..41
Introduction
Marriage constitutes the very basis of social organization. Hindu law regards marriage as a
sacrament- indissoluble and eternal. This sacramental character of marriage has given rise to
certain anomalies. The declaration of Manu that neither by sale nor by desertion is wife released
from the husband was applied only to women and not men. Thus there was an element of
inherent injustice on the wife in Hindu law. To counter such inequalities among spouses and to
protect the sacramental aspect of marriage, Hindu Marriage Act, 1955 was enacted which
provided certain matrimonial remedies.

Marriage is an institution in the maintenance of which the public at large is deeply interested. It
is the foundation of the family and in turn of the society without which no civilization can exist.
A marriage solemnized, whether before or after the commencement of the Hindu Marriage Act,
1955 can only be dissolved by a decree of divorce on any of the grounds enumerated in Section
13 of the Act.

In literal sense, "divorce" means a legal separation of two persons of the opposite sex who desire
to respect and honour each other. Earlier the marriage under Hindu Dharma Shastra was
considered a sacred bond and did not provide for divorce, until it was codified in the year 1955.
The Hindu Marriage Act, 1955 which came into existence, eight years after the independence of
the India, under section 13 provided with the grounds on which the parties can seek a decree of
divorce from a competent court having jurisdiction to entertain such petition. In early Roman
law, marriage and divorce were essentially private acts of parties. Whenever two persons wanted
to marry they could do so; and whenever they wanted to put their marriage as under they were
equally free to do so. No formalities or intervention of an agency was necessary for either

The idea or the concept of divorce is quite old and its origin cannot be traced. The term ‘divorce’
is of Latin origin ‘divortium’ which means ‘to turn aside, to separate from, diversion’. It is

1
referred to as diversion because a husband is diverted from his wife.1 It was considered to be of
the following two categories wherein the divorce may be:

 Absolute, that is, the marriage stands dissolved2, or

 Limited, when the marital relation is suspended though the matrimonial bonds remain in
full force which is now referred to as ‘Judicial Separation’.3

Oxford English Dictionary defines ‘Divorce’ as ‘legal dissolution of marriage’4 i.e., it is the
permanent dissolution of marriage, the cancelling and/or reorganizing of the legal duties and
responsibilities of marriage, thus dissolving the bonds of matrimony between a married couple
under the rule of law.5 Since, there are no rights and obligations to maintain after this permanent
separation, thus, either party after such dissolution is free to remarry.

However, it is important to distinguish divorce from ‘annulment’ to avoid any kind of confusion.
Annulment declares the marriage null and void per se.6it retroactively invalidates a marriage
from the date of its formation. Annulling a marriage is as though it stands completely erased, i.e.,
the marriage, technically never even existed and was thus, never valid. Whereas on the other
hand divorce is the court decree that terminates a marriage.

1
Jai Janak Raj, Divorce: Law and Procedures, 3rd edition. Universal Laws Publishing Co. Pvt. Ltd. 2004, p 5
2
Id.
3
Id.
4
H.G.A. Hughes, (2004) "Oxford Dictionary of English (2nd edition)", Reference Reviews, Vol. 18 Issue: 4, p.65
5
Retrieved on http://www.adjuvalegal.com/pdf
6
Retrieved on http://legal-dictionary.thefreedictionary.com/annulment

2
Theories Regarding Divorce
The provisions relating to divorce is contained in Sec 13 of Hindu Marriage Act, 1955. The Act
recognizes two theories of Divorce: the fault theory and divorce by mutual consent.

 Fault theory: marriage can be dissolved only when either party to the marriage had
committed a matrimonial offence. Under this theory 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.
 Theory 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.
 Indissolubility of Marriage Theory: Marriage was considered as an unbreakable tie
between the husband and wife according to this theory. It was a union of bone with bone
and flesh with flesh which meant that it was an eternal tie between a man and a woman.7
This implies that even if the parties were unhappy with each other, they were bound for
life and there was absolutely nothing that they could do about but to live and die with
each other.8 This particular theory is resonant with Vedic Hindu Laws and Pre- English
Common Law (prior to 1857, the concept of divorce in English Common Law was non-
existent and an act of the Parliament was required to for divorce to be granted.9)
 Will Theory of Divorce: According to this theory, anyone can divorce one’s spouse at
one’s will whenever he/she pleases.10 This theory is recognised by the Mohammedan law
by way of ‘Mubarat’ which literally means ‘obtaining release from each other’.11 It is

7
Retrieved on http://shodhganga.inflibnet.ac.in/bitstream/10603/39005/12/12_chapter%204.pdf
8
Ibid.
9
Retrieved on http://www.branchcollective.org/?ps_articles=kelly-hager-chipping-away-at-coverture-the
matrimonial-causes-act-of-1857
10
Ibid.
11
Retrieved on http://waqaslaw.com/what-is-mubaraat

3
 said to take place when the husband and wife, with mutual consent and desire obtain
release and freedom from their married status.
 Frustration of Marriage Theory: There is every possibility the marriage may be
frustrated for a party to the marriage even though the other party is not guilty of any
marital offence. This may happen when he/she is suffering from mental unsoundness, has
changed his/her religion or has renounced the world or has disappeared for a very long
time. If a party to the marriage prefers to be released from such a fruitless marriage, they
should be allowed to do so. The Hindu Marriage Act readily recognises these grounds as
being good for divorce.
 Breakdown Theory of Divorce: the root cause of most social problems can be traced to
maladjusted couples. Many marriages fail not because of the wickedness of one party or
the other, but they just fail. Sometimes marriages fail because of selfishness, boorishness,
callousness, indifference and thinks like these on the part of one of the parties to the
marriage. All this does not amount to any matrimonial offence yet remaining bound by
marital ties becomes problematic.
 Irretrievable Breakdown of Marriage Theory: Irretrievable breakdown of marriage
comes under the breakdown theory where the marriage is supposed to have reached a
point wherein there is complete breakdown of the institution with no scope for retrieval
of that previously existing bond.12 The irreparable nature of the situation gives rise to the
alternative of providing the couple an option to leave each other’s company without
bitterness and distress. There has been a gradual shift from a fault theory to a no fault
theory. Previously, the provision was that after obtaining an order for restitution of
conjugal rights, the party which wronged could not obtain divorce rather only the person
who was wronged could move the court for a divorce order if the restitution does not get
executed.

The Amendment of 1976 helped introduce the concept of irretrievable breakdown as it was
understood that making the right available only to one party when the marriage is barely a form
with no substance underneath. Even though irretrievable breakdown of marriage has not been

12
Retrieved on http://www.lawctopus.com/academike/irretrievable-breakdown-marriage/.

4
stated under Section 13 of the Hindu Marriage Act, 1955 as a ground for divorce, there have
been many judgments which gave decisions based on the principle.

5
Grounds for Divorce under the Hindu
Marriage Act, 1955
The Hindu Marriage Act, 1955 came into existence, eight years after the independence of the
country. Section 13 of the Hindu Marriage Act deals with the grounds on which the parties can
seek a decree of divorce from a competent court having jurisdiction to entertain such petition. In
the literal sense "divorce" means a legal separation of two persons of the opposite sex who desire
to respect and honor each other.
Legally, a petition can only be filed after one year has elapsed from the date of marriage unless
there are exceptional circumstances. The Hindu Marriage Act 1955 lists 9 grounds for divorce.
Namely –

 Adultery
 Cruelty
 Desertion
 Conversion of religion
 Unsoundness of mind / serious mental disorder
 Virulent and incurable form of leprosy of partner
 Venereal and communicable disease suffered by a partner
 Renunciation of the world
 Unknown whereabouts of partner for more at least 7 years

In addition to the above grounds, parties may also file for dissolution of marriage on the grounds
of mutual consent, no resumption of cohabitation or no restitution of conjugal rights for a period
of one year or upwards after a judicial decree of separation has already been passed.

Women have certain additional grounds for filing, namely – polygamous husband, rape or
sodomy inflicted on her, or if she was married before she attained the age of 15 as long as the
marriage was repudiated before she attains the age of 18. Because our country is a culturally and
religiously diverse country, there are more than one set of Personal Laws. Muslim law does not
require seven years of unknown whereabouts of husband. Four is sufficient period for the wife to

6
file for divorce. Similar is the case for the wife of a man who has been under imprisonment for
more than 7 years.

Following are the grounds under section 13 (1) on which either party to the marriage are entitled
to seek the decree of divorce:

I. Adultery:
Section 13(1)(i) prescribes that a decree of divorce shall be sought on the ground that the
respondent after the solemnization of marriage, had voluntary sexual intercourse with any
person other than his or her spouse.13 Initially a divorce could be granted only if such
spouse was living in adultery, but in the case of Veera Reddy v. KistaAmma14, it was
held by the court that even a ‘single act’ of adultery would be a sufficient ground for
divorce. Subsequently, by the Marriage Laws Amendment Act, 1976, the position under
the Hindu Marriage Act changed on the lines of the above judgement and now even a
single act of adultery is considered as enough for the decree of divorce.15 Thus, the
vigour of ‘living in adultery has been reduced. The same was also held in
SanjuktaPradhanv.LakshminarainPradhan16.

Burden of Proof: Adultery is a matrimonial offence as well as criminal one. The burden
of proof in a criminal case is stricter because the act is to be proved beyond reasonable
doubt whereas in a matrimonial offence, it is not so strict because the evidence in this
case is based on inferences and probabilities. In the case of HargovindSoniv. Ram
Dulari17 , the High Court observed that adultery need not be proved beyond all
reasonable doubts, instead, it can be established by preponderance of probabilities.104
The same was held in Pramila Devi v.Amarjeet Singh18 wherein the court observed that
no ‘direct evidence’ is required to prove the matrimonial offence of adultery, the
existence of circumstantial evidence is sufficient.

13
Jai Janak Raj, Divorce: Law and Procedures, pg 33, 3rd edition. Universal Laws Publishing Co. Pvt. Ltd. 2004
14
AIR 1969 Madras.
15
Retrieved on http://www.lawctopus.com/academike/divorce-under-hindu-law/
16
AIR 1991 Ori 39
17
AIR 1986 MP 57
18
Pramila Devi v. Amarjeet Singh, AIR 2015 Haryana

7
 II. Cruelty:
It is a ground for divorce and judicial separation under section 13(1)(ia) and section 10(1)
of the Hindu Marriage Act respectively. Cruelty was defined in Dastane v. Dastane19 as
“Conduct of such character as to have caused danger to life, limb or health (bodily or
mentally), or as to give rise to a reasonable apprehension of such danger.” Cruelty is
usually classified into two following categories:
a) Physical Cruelty- Physical violence is relatively easy to determine and the courts
would have no problem to arrive at a decision. Even a single act of physical
violence is enough to come under the purview of cruelty as held in Marry v.
Raghavan.20
b) Mental Cruelty- An act of mental cruelty is far more severe than a physical
cruelty. It is also comparatively difficult for the courts to ascertain mental torture
and harassment. In Pravin Mehta v.Inderjeet Mehta21, the court has defined
mental cruelty as ‘the state of mind’.

In Shobha Rani v. MadhukarReddi22, the court observed that the question whether a
particular act or conduct would amount to cruelty or not would always depend on the
facts of each case, the court further held, the two elements which are required to be
proved are the nature of the cruel treatment and its effect on the aggrieved party.

Some Instances of Cruelty are as follows:

 false accusations of adultery or unchastity

 demand of dowry
 refusal to have marital intercourse/children

III. Conversion or Change of Religion:

Under section 13(1)(ii), if one of the spousesadopts another religion, he/she does ceases
to be a Hindu. The marriage however wouldnot stand dissolved merely because the other

19
AIR 1975 SC 1534
20
AIR 1979 MP 40.
21
AIR 2002 SC 2528.
22
AIR 1988 SC 121.

8
 spouse embraced another religion. Also, the spouse who did not change his/her religion is
entitled to file a petition for a decree of divorce on the ground that the other spouse has
ceased to be a Hindu by embracing another religion. In the case of Lily Thomas v. Union
of India23, the husband of the petitioner had converted for the sole purpose of marrying
another woman without divorcing the previous one. It was pleaded that since he had
converted to Islam, he could keep upto four wives at a time and thus could not be
prosecuted for bigamy u/s 494 of the Indian Penal Code. It was further contended that the
marriage automatically stood dissolved u/s 13 of the Hindu Marriage Act because of the
conversion. The Supreme Court rejected the two contentions and held that conversion or
apostasy does not automatically dissolve a marriage already solemnised under the Hindu
Marriage Act. Section 13 of the act only provides the ground for divorce. Further, if a
person marries a second time during the lifetime of his wife, such marriage apart from
being void u/s 11 and 17 of the Hindu Marriage Act, would also constitute the offence of
bigamy u/s 494 of IPC.

IV. Insanity:
If it has been established that the other spouse 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 him/her, a
decree of divorce can be granted by the court. The Hindu Marriage Act goes on to specify
the meaning of ‘mental disorder’ under explanation to the section, which appears as
under: “the expression "mental disorder" means mental illness, arrested or incomplete
development of mind, psychopathic disorder or any other disorder or disability of mind
and include schizophrenia;”24
In the case of Ram Narain Gupta v. Rajeshwari Gupta25, the Supreme Court held that by
merely branding the spouse as schizophrenic is not sufficient to prove mental disorder for
the purpose of divorce u/s 13(1)(iii). The said disease should be such to justify the
reasonable apprehension that it would not be possible or safe for the petitioner to live the
spouse.

23
Lily Thomas v. Union of India AIRR 2000 SC 1650
24
Section 13 of Hindu Marriage Act, 1955
25
Ram Narain Gupta v. Rajeshwari Gupta AIR 1988 SC 2260

9
 Further, in Nirmala Manohar Jagesha v. Manohar Shivram Jagesha26, the court held
that a few stray instances indicating a petulant behaviour does not amount to mental
disorder for the purpose of section 13(1)(iii) because such alleged mental disorder is not
of such a kind that the petitioner cannot be reasonably expected to live with the other
spouse. Also, a decree of divorce would not be granted u/s 13(1)(iii) of the Hindu
Marriage Act where the spouse suffers from curable epilepsy.
The onus of proof that the respondent is of incurably unsound mind or that he/she is
suffering from a mental disorder lies on the petitioner.

V. Venereal Disease:
Venereal disease, if in a communicable form, constitutes a ground for obtaining a decree
of divorce under section 13(1)(v) of the Hindu Marriage Act. Thus, the respondent must
not only be suffering from a venereal disease, like syphilis, gonorrhoea etc., but also the
disease should be such as to infect others who come in contact with the infected.

VI. Renunciation of the world:

Section 13(1)(vi) makes the ‘renouncement of world by entering any religious order’ a
ground for divorce. 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. Supreme Court in Sita Das v. Sant Ram27 held
that the renunciation must be complete and final and must be effected with the
ceremonies and rites prescribed by the order which he enters.

VII. 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.

26
NirmalaManoharJagesha v. ManoharShivramJageshaAIR 1991 Bom 259
27
Sita Das v. Sant Ram AIR 1954 SC 606

10
 In view of section 108 of the Indian Evidence Act, 1872, the burden to prove that aperson
has not been heard of for more than seven years, is still on the person whoaffirms it.28

Divorce by Mutual Consent

When the husband and wife both agree that their marriage cannot succeed, they may decide to
get a divorce by mutual consent. It is not necessary to give any reason to the court for such a
divorce. They must file a divorce petition in the District court. However the following should be
considered:
• Both the husband and wife are living separately from last 1 year.
• Both of them had agreed that they cant stay together.
• None of them has been forced to give the application.
The court will not take any action on the application for 6 months so that the husband and wife
can reconsider their decision. After a period of 6 months from the date of presentation of the
petition and not later than 18 months, if the petition is not withdrawn, the court will grant the
decree of divorce. The court must however be satisfied about the bonafides and consent of the
parties. If one of the parties withdraws the consent, the court makes an inquiry in this regard and
if there is no consent at the time of the enquiry, it cannot pass the decree of divorce.

Six Months Waiting Period In Section 13B(2) Of Hindu Marriage Act For Divorce By Mutual
Consent Not Mandatory

It was held recently in Amardeep Singh v. Harveen Kaur29 that where the Court dealing with a
matter was satisfied that a case was made out to waive the statutory period under Section 13B(2),
it can do so after considering the following :
1. 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;

28
Section 108 of Indian Evidence Act, 18872
29
MANU/SC/1134/2017; Civil Appeal No. 11158 of 2017.

11
 2. 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;
3. the parties have genuinely settled their differences including alimony, custody of child or
any other pending issues between the parties;
4. the waiting period will only prolong their agony

Video Conferencing facilities in Divorce Proceeding

In Santhini v. Vijaya Venketesh30, the Supreme Court considered a newer question – the extent
to which video conferencing facilities can be used in divorce proceedings.
By a majority judgment of two judges against one, the court held:
 Video conferencing facilities cannot be used at the urging of only one of the parties.
Both parties must agree before video conferencing can be used. This is to protect the
privacy of the parties, the importance of which is recognised in both the Hindu Marriage
Act and the Family Courts Act, 1984.
 Video conferencing facilities can only be used after the court is satisfied that no
settlement or resolution is possible between the parties. The Hindu Marriage Act also
emphasizes that divorce courts should encourage reconciliation. This cannot be achieved
through video-conferencing.
 Video conferencing cannot be used as an alternative to transferring divorce proceedings
in cases in which transfer petitions have been filed. The use of video conferencing
facilities for the hearing of a divorce case can only be permitted on a specific joint
application of both parties or if both parties file consent memorandums with respect to
the use of video conferencing. It can also only be permitted after settlement efforts fail.

Unavoidable Judicial Separation

Section 13(1A)(i) provides that either of the parties to a marriage may seek dissolution of
marriage on the ground “that there has been no resumption of cohabitation as between the

30
Transfer Petition (Civil) No. 422 of 2017

12
parties to the marriage for a period of one year or upwards after the passing of a decree for
judicial separation in a proceeding to which they were parties;”31

However, while availing the ground of divorce provided under this clause, provisions of section
23(1)(a) have also to be kept in mind, which requires that “the petitioner should not in any way
take advantage of his/her own wrong or disability for the purpose of such relief”. Thus, to justify
the decree of divorce under the provisions of 13(1) and 13(1-A) and 23(1) the essentials are:
i. A decree of judicial separation between the petitioner and the respondent, whosoever might be
the decree holder;
ii. Non-resumption of cohabitation between the parties for a period of one year or upwards
iii. The petitioner should not be in any way taking advantage of his or her wrong or disability
iv. Non-existent of any other legal ground warranting refusal of relief prayed.
This clause enables even a defaulting party and not merely an aggrieved party to obtain a decree
for dissolution of marriage.

Non-Resumption of Cohabitation after Passing of a Decree for Restitution Of Conjugal

Rights

For a period of one year or upwards after the passing of a decree for restitution of conjugal rights
there has been no restitution of conjugal rights between the parties also constitutes a ground for
divorce under of the Act.
Under this clause also, the court would have to consider under section 23(1) whether the
petitioner is taking advantage of his/her wrong in the pleading that there has been no restitution
of conjugal rights after the passing of a decree for that purpose, and thus, the provisions of
section 13(1-A)(ii) are subject to the provisions of section 23(1)(a).

Grounds which are available only to the wife are as follows:

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

31
Section 13 of Hindu Marriage Act, 1955

13
A. 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. In the case of Venkatame v. Patil32where a man
had two wives, one of whom sued for divorce, and while the petition was pending, he divorced
the second wife. Consequently, he then averred that since he was left only with one wife, and the
petition should be dismissed. The Court out rightly rejected this plea. Such a ground is available
if both the marriages are valid marriages & the other wife (2ndwife) should be present at the time
of filing of the petition. However, today this ground is no more of practical importance.

B. 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.33

C. 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., 1973or 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.

D. 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 1976amendment) 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.34

32
Venkatame v. PatilAIR 1963 Mys 118
33
Section 13 of the Hindu Marriage Act
34
Section 13 of the Hindu Marriage Act

14
Desertion- A Separate Analysis
In explanation to sub-section (1) of Section 13, Hindu Marriage Act, Parliament has thus
explained desertion: “The expression ‘desertion’ means the desertion of the petitioner by the
other party to the marriage without reasonable cause and without the consent or against the wish
of such party, and includes the willful neglect of the petitioner by the other party to marriage,
and its grammatical variations and cognate expressions shall be construed accordingly.”35

In case of Lachman Utamchand Kripalaniv.Meena36, the court said that in its essence desertion
means the intentional permanent forsaking and abandonment of one spouse by the other without
that other’s consent and reasonable cause. It is a total repudiation on the obligations of the
marriage.

For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions
are required:

1. the factum of separation, and

2. The intention to bring cohabitation permanently to an end (animus deserendi).

Also in case of Rameshv.Premlata37, the court observed that in actual desertion, it is necessary
that respondent must have forsaken or abandoned the matrimonial home. Suppose a spouse every
day, while he goes to bed resolves to abandon the matrimonial home the next day but continues
to stay there, he had formed the intention but that intention has not been translated to action. He
cannot be said to have deserted the other spouse.

On the other hand, if a spouse leaves the matrimonial home for studies or business and goes to
another place for some period, with the clear intention that, after completion of studies or work
he would return home but is not able to return because of illness or other work. In this case the
factum of separation is there but, but his intention to desert is lacking; therefore this will not
constitute desertion.

35
Dr. ParasDiwan- “Modern Hindu Law”, 18th edn. 2007, Allahabad Law Agency, Faridabad (Haryana).
36
AIR 1964 SC 40
37
1979 MP 15

15
Similarly, two elements are essential so far as the deserted spouse in concerned:

1. the absence of the consent, and

2. Absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to
form the necessary intention. If one party leaves the matrimonial home with the consent of
the other party, he or she is not guilty of desertion. For instance, if husband leaves his wife to
her parent’s house, it is not desertion as husband’s consent is present.

In Indira Devi v. Kumarian38, Again, a pregnant wife who goes to her father’s place for delivery
without the consent of the husband cannot be treated in desertion.

In Mallikav.Rajendran39, it was established that husband was guilty of adultery and desertion.
The wife was granted a decree of divorce. While under the act husband can sue for divorce on
the ground of wife’s adultery simpliciter, the wife has to prove that husband is guilty of more
than adultery that is to say adultery should be incest, or coupled with cruelty, or coupled with
desertion, without reasonable cause for two year or more coupled with bigamy etc. The burden
of proof that the respondent committed adultery is on the petitioner who must prove it beyond
reasonable doubt.40 ‘Proof beyond reasonable doubt’ means such proof as precludes every
reasonable hypothesis except that which tends to support it.41

In Venei v. Nirmala42, when the spouse left the matrimonial home (for business, pleasure, trip
etc.), he has all the intentions to return home, but subsequently if he forms the intention not to
return, the moment such an intention is formed he becomes a deserter. If a spouse leaves the
matrimonial home without any reason, he or she is a deserter.

In Bipinchandra Shahv.Prabhavati43, it was observed that the desertion is a matter of inference

to be drawn from the facts and circumstances of each case.

38
1982 Ker 78
39
AIR 1995 Mad. 100
40
Bipin v. Prabha AIR 1957 SC176; White v. White AIR 1958 SC 441
41
Sachindranath v. Nilima AIR 1970 cal. 38
42
AIR [1987] Del. 79
43
AIR 1957 SC 176

16
The offence of desertion commences when the fact of separation and the animus deserendi co-
exist. But it is not necessary that both should commence at the same time. The de facto
separation may have commenced without the necessary animus or it may be that the separation
and the animus deserendi coincide in point of time. However it is not necessary that the intention
must precede the factum. For instance, a husband goes abroad for studies, initially he is contact
with wife but slowly he ceases that contact. He develops attachment with another woman and
decides not to return. From this time onwards both factum and animus co-exist and he becomes a
deserter. A mere separation without necessary animus does not constitute desertion. 44 Both
factum of physical separation and animus deserendi must be proved. 45 It is also necessary that
there must be a determination to an end to marital relation and cohabitation. There is nothing like
mutual desertion under the Act. One party has to be guilty.

In Atmaram v. Narbada Devi46, it was held that in a petition filed after 6'/2 years after the date
of separation, relief could not be denied on the ground of delay, as incessant efforts were made
for amicable settlement and the petition was filed as a last resort, when the withdrawal from the
society of the wife by the husband was proved, the burden was on the husband to show that there
was reasonable excuse for such withdrawal from the society of the wife and if the same is found
to be without any just and reasonable cause, the petition for divorce could be maintained on the
ground of desertion.

In Mst. DaljitKaur v. Balwant Singh47, it was held that the wife left the house of the husband on
her own accord and was not driven out by the husband, who was always willing and wanted to
live with her, but she refused to return to the matrimonial home. It was also held that there was
no reasonable excuse for the wife to live separately from the husband. In such circumstances, it
was held that desertion was proved as it was a matter to be decided on the basis of inference to
be drawn from the facts and circumstances of each case.

44
RohiniKumari v. Narendra Singh AIR 1972 SC 459
45
Biswasnath Das v. Maya Das AIR 1994 NOC 364
46
1980 Mat LR. 63 : (AIR 1980 Raj 35)
47
1981 WLN (UC) 230

17
Examples of desertion

 The husband left his wife at her parent’s house for 7 to 8 years uncared; his conduct
amounted to desertion.48
 Party taking unreasonable attitude resulting in separation is guilty of desertion.49
 In case of Induv.RajeshwarPershad50, it was decided that the wife left the matrimonial home
for paucity of accommodation and the husband refused to live separately from the members
of his family due to meager income. The act of wife amounted to desertion.
 In Pramodv.Vasundhara51, the court said that the notice issued by wife to the husband
expressing her intention not to return to the matrimonial home constitutes desertion
commencing from the date of notice.

Examples of no desertion

 In BejoyDawv.Sm. AlokhaDaw52, it was decided that where the husband himself reached his
wife to her mother’s place for confinement, there is no desertion.
 In S. Kripal Singhv.Smt. HarbansKaur53, held that the continued separation without
intention to willfully neglect is not desertion.
 In case of Kaminiv.Balaji54, the court took a view thatafter abortion of pregnancy through
the husband, the wife was staying with her parents for better treatment, there was no adverse
inference that the wife intended to remain separate and she did not want to come back to her
husband’s place.
 In Bhagwantiv.Sadhu Ram55, held that the wife was living separately in a room provided by
the husband under compromising in the proceeding under Section 488, Cr PC (old) and the
husband had another wife living with him. Separation does not amount to desertion.

48
1969 Cur LJ 319
49
(1967)69 Punj LJ 566
50
AIR 1982 Del 458
51
AIR 1989 Bom 75
52
AIR 1969 Cal 477 (DB)
53
AIR 1967 Del 19
54
AIR 1988 Ori 93
55
AIR 1961 Punj 181

18
 Where the husband was guilty of cruelty to wife and of openly keeping a mistress in the
house so that the wife was compelled to leave her husband’s house, it was held that the wife
did not desert the husband without reasonable cause.56
 In Sunil Kumarv.Usha57, it was decided that when wife leaves the matrimonial house due to
unpalatable atmosphere does not amount to desertion.

Burden of proof

In case of desertion, the burden of proof lies upon the petitioner held in
LachmanKripalaniv.Meena58. The petitioner is required to prove the four essential conditions
namely,

1. the factum of separation;

2. animus deserendi;
3. absence of his or her consent
4. Absence of his/her conducts giving reasonable cause to the deserting spouse to leave the
matrimonial home.

The offence of desertion must be proved must be proved beyond any reasonable doubt and a rule
of prudence the evidence of the petitioner shall be corroborated held in
BipinchandraShahv.Prabhavati59. In short the proof required in a matrimonial case is to be
equated to that in a criminal case.

Constructive desertion

Where a situation or circumstances are created either by actual use of force or by the conduct of
one spouse that the other spouse is compelled to leave the matrimonial home, it constitutes
constructive desertion of the creator of the situation or circumstances. It is not necessary for the
husband in order to desert his wife to actually turn his wife out of doors; it is sufficient if by his
conduct he compelled her to leave the house held in Jonesv.Jones60. There is no substantial

56
AIR 1961 Mad 391
57
1994 MP 1
58
AIR 1964 SC 40.
59
AIR 1995 Mad. 100
60
[1952]2 TLR 225(CA)

19
difference between the case of a man who intends to cease cohabitation and leaves his wife, and
the case of a man who compels his wife by his conduct, with the same intention, to leave him.61

In Ashok Kumarv.Shabnam62, it was decided that it is now well settled that the matrimonial
court has to look at the entire conspectus of the family life and if one side by his or her words or
conduct compels the other side to leave the matrimonial home, the former would be guilty of
desertion, though it is the latter who is seemingly separated from the other. But where the
husband does not take any steps to effect reconciliation, he is not guilty of constructive desertion
held in Bharat Lal v. Ram Kali Devi63.

The ingredients of both actual and constructive desertion are the same: both the elements, factum
and animus must co-exist, in former there is actual abandonment and in the latter, there is
expulsive conduct. Under constructive desertion, the deserting spouse may continue to stay in the
matrimonial home under the same roof or even in the same bedroom. In our country, in many
homes husband would be guilty of expulsive conduct towards his wife to the extent of
completely neglecting her, denying her all marital rights, but still the wife because of social and
economic conditions, may continue to live in the same house.64

Examples of constructive desertion

 In Marsdenv.Marsden65, held that the husband accused constantly the wife of her immorality
and told her to go away.
 In Hutchimsonv.Hutchimson66, it was held that the willful and unjustifiable refusal of sexual
intercourse by the respondent.
 The husband’s adultery.67
 The husband used sexual malpractices on the wife.68
 Husband’s intention was to divorce wife with a view to remarry and he forced wife to leave
matrimonial home.69

61
Halsbury’s Laws of England, 3rd Ed. Vol. 12 pg. 246
62
AIR 1989 Del 121
63
AIR 1984 All 274
64
AIR 1964 SC 40.
65
[1967]1 All ER 967
66
[1963]1 WLR 180
67
Roe v. Roe [1956]1 WLR 1380
68
D.B. v. W.B. [1935] P 80

20
 The spouse who by his conduct compels the other spouse to matrimonial home, the former
would be guilty of desertion.70
 In Shaym Chandv.Janki71, the court held that the husband asked for judicial separation on
the ground of wife’s desertion, the wife stated that she was maltreated, beaten up and turned
out of house by husband. The wife’s averments were proved.

Willful neglect

It connotes a degree of neglect, which is shown by an abstention from an obvious duty, attended
by knowledge of the likely result of the abstention. However, failure to discharge or omission to
discharge, every material obligation will not amount to willful neglect. Failure to fulfill basic
marital obligations, such as denial of company or denial of marital intercourse, or denial to prove
maintenance will amount to willful neglect held in case of Balidharv.Dhir Das72.Though in
Laxman v. Meena73, SubhaRao J. Obitter observed that wilful neglect was designated to cover
constructive desertion, and therefore should fulfil all the ingredients of desertion.

Without the consent

If one party leaves the matrimonial home with the consent of the other party, he or she is not
guilty of desertion. When the parties are living apart from each other under a separation
agreement, or by mutual consent, it is a clear consent of living away with the consent of the other
held in case of Vadranamav.Krishnama74.

In Bipinchandra Shahv.Prabhavati75, the court held that the wife when living away from the
husband, husband sends a telegram ‘must not send wife’ to wife’s father expressed his wish to
live separate.

69
Baljit Singh v. Harjit Kaur 1997(1) Civ LJ 177 (P&H)
70
Lang v Lang 1955 AC 402
71
1966 HP 70
72
1979 P&H 162
73
AIR 1964 SC 40.
74
(1970) 1 AWR 13
75
AIR 1957 SC 176

21
Desertion must be for a continuous period of two years

To constitute a ground for judicial separation or divorce, desertion must be for the entire
statutory period of two years held in Shakuntalav.OmPrakash76, preceding the date of
presentation of the petition held in case of Amarjitv.Kiran77, Desertion is an continuing offence;
it is an inchoate offence. This means that once desertion begins it continues day after day till it is
brought to an end by the act or the conduct of the deserting party. It is not complete even if the
period of two years is complete. It becomes complete only when the deserted spouse files a
petition for a matrimonial relief. Wife’s act of withdrawing jewellery from the locker and
remaining away from her husband for two years clearly proved her desertion held in case of
Suresh Balav.Gurmodinder Singh78.

Offer to return

If a deserting party spouse genuinely desires to return to his or her partner, that partner cannot in
law refuse to reinstate him or her.79 An offer to resume cohabitation must be genuine or bona
fide for which two elements must be present. First, an offer to return permanently, if accepted,
must be implemented; secondly, it must contain an assurance as to the termination of the conduct
by the deserting party which caused the separation.80 A refusal to such an offer would convert
the deserted party to the deserting party. The offer to return to resume married life by the
deserting spouse before the expiry of the statutory period of desertion must not be stratagem. The
deserting spouse must be ready and anxious to resume married life.81

Defences to desertion

The following are the main defences to desertion:-

76
1981 Del 53
77
1985 P&H 356
78
1983 Del 230
79
Perry v. Perry [1952] 1 All ER 1076
80
Gaskell v. Gaskell [1963] 1 All ER 1052
81
Pratt v Pratt [1939] 3 All ER 437 (HL)

22
 Agreement to separation does not amount to separation. But such agreement may be changed
to desertion without resumption of cohabitation. Separation in such cases loses its consensual
element.82
 There may be animus deserendi without a separation.
 Physical inability to end desertion, such as imprisonment.
 Absence of just cause of separation.
 Absence of animus deserendi.

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:

I. Resumption of cohabitation.
II. Resumption of marital intercourse.
III. Supervening animus revertendi, or offer of reconciliation.

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.

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.

82
Gallagher v Gallagher [1965] 2 All ER 967

23
 Supervening animus revertendi – 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.

Important Judgment on desertion

Case 1

Mrs. X: Appellant v. Mr. Y: Respondent

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

FAMILY COURT APPEAL NO.204 OF 2007

DATED: DECEMBER 02, 2009

JUDGES - S. A. BOBDE & S. J. KATHAWALLA, JJ

Facts of the Case

i. The parties got married on 1st May 1987. It appears that soon thereafter on 25th January
1989, the appellant wife left the company of the respondent husband, but later she filed a
petition for restitution of conjugal rights (Petition No. 789/89), which was decreed on 11th
April 1990.
ii. She resumed cohabitation with the respondent after he paid her a sum of Rs. 24,500/-.The
parties apparently lived together for the period between 1st July 1993 and 15th January 1994.
iii. On 7th April 1994, she left the company of the respondent again. She returned the next day
and lodged a criminal complaint against him for harassment, which she ultimately withdrew
on being paid Rs. 10,000/- by the respondent.
iv. According to the respondent, on 1st August 1996, he was transferred to Valsad, but she
refused to accompany him there as she was working and giving tuitions at Surat at the time.
On 12th January 1997, when he visited her at Surat, she threw him out of the very premises,
which he had rented for her to live in and further threatened him of dire consequences if he
entered again.

24
 v. Since this incident, the parties have not cohabited till the date of filing of the divorce petition
on 8th October 2003 and thereafter.
vi. This as an appeal filed by the wife against the Judgment of the Vth Family Court, Mumbai,
decided on 28th September 2007, decreeing the petition for divorce filed by the Respondent
(Petition No. A – 1804 of 2003), under sections 13 (1) (ia) and 2 13 (1) (ib) of the Hindu
Marriage Act, 1955, on the grounds of cruelty and desertion.

Decision

i. The respondent deposed before the Learned Trial Court that the appellant used to lose her
temper on trivial matters, which was insulting and humiliating for him, as a result of which
he could not sleep peacefully, and this in turn disturbed his work.
ii. This is a temperamental problem, which the appellant may have had and by itself is
insufficient to establish cruelty towards the respondent, particularly in the absence of any
specific instances from which it could have been inferred that this temperamental flaw was so
disturbing, that it would constitute cruelty towards the respondent in itself.
iii. In the contention of desertion of the respondent by the appellant. Section 13 (1) (ib) of the
Hindu Marriage Act, provides that a decree of divorce may be granted on the ground that the
other party has deserted the petitioner for a continuous period of not less than two years
immediately preceding the presentation of the petition.
iv. In BipinchandraJaisinghbhai Shah v. Prabhavati83, it has made it clear that it is not
necessary for the deserting spouse to leave the home in order to constitute desertion. If one
spouse by his or her words compels the other side to leave the matrimonial home or stay
away therefrom, without reasonable cause, the former would be guilty of desertion, though it
is the latter that is seemingly separated from the other. The ejection of the other spouse from
the home with the intention not to cohabit equally constitutes desertion. This is the principle
of ‘Constructive Desertion.’
v. In the present case, we find that the respondent has established and in fact, the appellant has
not denied, that she did not allow the respondent to cohabit with her at the house in Surat,
when he visited on 12th January 1997.

83
Ibid 14

25
 vi. She threw him out of the very house, which he had rented for her to live in, and threatened
him with dire consequences if he dared to enter. This incident occurred over and above the
fact that she herself had refused to travel and reside with him at Valsad, after he was posted
there on 1st August 1996, ostensibly because she was teaching and giving tuitions at the time
in Surat.
vii. The Learned Family Court has observed that there is no challenge by the appellant to the
evidence of the respondent that she was not interested in cohabiting with him at Valsad. In
any case, we find that merely because the respondent had moved to Valsad, due to his
transfer, it cannotbe considered to be reasonable cause for the appellant refusing to cohabit
with him when he visited her in Surat, and in fact constitutes wilful neglect on her part.
viii. Her conduct on the whole, is evidence of animus deserdendi. The incident at Surat clearly
compelled the respondent to leave and stay away from the matrimonial home. There is no
dispute as to the factum of separation i.e. that the parties did not reside together from the date
of the incident at Surat i.e. 12th January 1997, until this petition was presented on 8th
October 2003 and thereafter.
ix. At this stage, we may note that the Learned Family Court has not passed any orders as
regards maintenance, as no prayer for such orders was made by the appellant. However, Mr.
Vashi, the learned advocate for the appellant has submitted that the appellant has preferred an
application for maintenance before this Court. It would be proper if this application is heard
and decided by the Family Court itself.
x. Accordingly, the learned advocate for the appellant seeks leave to withdraw the application
and present it, in accordance with the law, before the Family Court. The said application is
allowed to be withdrawn.
xi. In the result, the divorce decree is upheld under section 13 (1) (ib) against theappellant on the
ground of desertion. The appeal is hence dismissed.

Case 2

Vikas Sharma – Appellant v. Mrs. Anita Sharma – Respondent

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

First Appeal No.58 of 2010

26
 DATED – March 10, 2011

Bench - V.K. Bist, J., Prafulla C. Pant,J.

Facts of the Case

i. 07.10.2005 Vikas Sharma got married to respondent Anita. Vikas is a rifle-man in Indian
Army and was posted in Manipur at the time of his marriage. 04.07.2006 A son was born out
of the wed-lock.
ii. The appellant filed a petition under section 13 of Hindu Marriage Act, for a decree of divorce
against his wife on the ground that she (Anita) has withdrawn from the society of the
appellant/petitioner without any sufficient cause and as such deserted him. It is also pleaded
that he moved a petition under section 9 of Hindu Marriage Act, 4 1955, for restitution of
conjugal rights, but the same was got dismissed as not pressed. In substance divorce petition
was filed on the ground of desertion and cruelty.

Decision

i. It has come on the record that the parties to the matrimony could live together only for a brief
period after their marriage, and the respondent left at the time she was carrying pregnancy to
her parents’ home and she did not go back to the house of her husband. The allegation and
counter allegations are that the husband says that his wife has deserted him without any
sufficient cause; on the other hand, the wife alleges that she is ready to live with her husband
but not with his parents. Morally, the stand taken by the wife may not be correct but legally
speaking when the husband is posted in Army and not taking hiswife with him to his place of
posting she cannot be said to have faulted in declining to stay with parents of her husband.
ii. Merely not obliging the petitioner to stay in his parental house, where he himself is not
residing, in our opinion cannot be said to be desertion of the husband. That being so, we find
that trial court has committed no error of law in appreciating the evidence on record and
coming to the conclusion that the petitioner could not make out the case for divorce either on
the ground of desertion or cruelty. We have already mentioned above that no incident of
cruelty is mentioned in the petition and the period for which couple living together was a
brief period.

27
iii. Having considered submissions of learned counsel for the appellant, and after going through
the papers on record, we do not find force in these two appeals filed by the appellant
(husband) against the impugned judgment and order dated 25.08.2010, passed in suit no. 70
of 2008. Therefore, both the appeals are dismissed.

Can the mere reason that a wife leaves matrimonial home without the consent of her
husband be made a ground of desertion for the Husband to get divorce?

Delhi High Court in Nisha Rani v. Sohan Singh Nehra84, observed

The desertion is not to be tested by merely ascertaining which party left the matrimonial home
first. If one spouse is forced by the conduct of the other to leave, the desertion could be by such
conduct of other spouse and compelled to live separately.

The court observed that the wife never wished to bring her marital ties permanently to an end
and she has elaborated the circumstances to show how she was tormented by her husband in her
matrimonial house. The bench observed that desertion is is not a withdrawal from a place, but
from a state of things and it is the repudiation by one of all obligations of marriage. It is the
abandonment of one spouse by the other without any reasonable cause and without consent of
other.

84
2017 SCC OnLine Del 6404

28
OTHER MATRIMONIAL REMEDIES
Restitution of Conjugal Rights - Section 9

If a spouse has left the other one without giving any reasonable ground, the Hindu Marriage Act
1955 gives a remedy in the form of Section 9 under the restitution of conjugal rights. The section
9 of the HMA reads that when either the husband or the wife has, without reasonable excuse,
withdrawn from the society of the other, the aggrieved party may apply for restitution of
conjugal rights.What the aggrieved party needs to do is file a petition and 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, the judge may decree restitution of conjugal rights in his
favor.

Three essential conditions for Section 9 of HMA

(a) Firstly, one party must have withdrawn from the society of the other;

(b) Secondly, the withdrawal must be without any reasonable reason, and

(c) Thirdly, the aggrieved party applies for the restitution of conjugal rights.

Once these conditions are fulfilled, the district court may decree of restitution of conjugal rights
to bring about cohabitation between the estranged parties.

If the aggrieved party is unable to convince the district court and it founds that the petitioner is
guilty then the decree of restitution of conjugal rights is not granted. An added advantage from
this is that if the parties are not following the decree for cohabitation after the passing of the
decree, continuously for one year, it becomes a ground for divorce under Section 13.

29
Constitutionality of Section 9, HMA 1955-

In T. Saritha Venkata Subbiah v. State85, the court had ruled that that S.9 of Hindu Marriage
Act relating to restitution of conjugal rights as unconstitutional because this decree clearly
snatches the privacy of wife by compelling her to live with her husband against her wish.

HarvinderKaur v. Harmendar Singh86, the judiciary again went back to its original approach
and help Section 9 of Hindu Marriage Act as completely valid. The object of section 9 is to bring
about cohabitation between estranged parties , so that they can live together at the matrimonial
home with animty. The remedy of Restitution of Conjugal Rights aims at cohabitation and
consortium and not merely sexual intercourse.

Concept of working woman and matrimonial home :According to Halsbury Law it is the
Husband’s duty to provide the with a home . There is no absolute rule that either party can
dictate as to where the matrimonial home shall be . The matter should be settled by an agreement
or by the process of give and take and by reasonable accommodation.

In the case of Smt. Swaraj v. K.M.Garg87, Husband and Wife were gainfully employed but the
wife was in a better position as compared to the Husband . The Husband asked the wife to leave
her job and live with him, The court dismissed the petition because the wife has a valid reason to
live away.

Reasonable grounds on which petition for Restitution of Conjugal Rights can be rejected:

(i) First, if the respondent has a ground on which he or she can claim any matrimonial relief;

(ii) Second, if the petitioner is guilty of any matrimonial misconduct;

(iii) Third, if the petitioner is guilty of such act, omission or conduct which makes it impossible
for the respondent to live with him; for instance, husband’s neglect of his wife or the constant
demand for dowry, etc. are some reasonable ground for wife not to join the company of her
husband.

85
AIR 1983 AP 356.
86
AIR 1984 Delhi 66
87
AIR 1978 Delhi 296

30
Burden of proof under Section 9 of the HMA

Burden of proof operates at two levels. Firstly, burden of proof is on the aggrieved/petitioner
who needs to prove that the respondent has withdrawn from his society. Once that burden is
discharged by the petitioner, it falls on the respondent to prove that there exists a reasonable
excuse for the withdrawal.

JUDICIAL SEPARATION- Section 10

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.
In this state of relation the husband and wife are no longer obligatory to live with each other and
perform marital obligations. It is temporary suspension of marital obligation by a judicial decree.
Either party is entitled for maintenance by the other. Ordinarily Judicial separation either leads to
reconciliation or divorce.

10. Judicial separation.-

(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

31
(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 willful 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.

Judicial separationis 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. 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 .

DIFFERENCE BETWEEN JUDICIAL SEPARATION AND DIVORCE

1. Decree for Judicial separation does not terminates the marriages whereas decree for
divorce terminates the marriages.

2. After the decree of Judicial separation , the rights and obligations remains suspended but
the marriage subsists ,the cannot marry afresh ( Bigamy will apply) whereas after the
decree for divorce they can marry again.

32
3. The reconciliation is possible by a decree but in case of divorce there are no chances of
reconciliation.

33
Conclusion
The Hindus consider marriage to be a sacred bond. Prior to the Hindu Marriage Act of 1955,
there was no provision for divorce. The concept of getting divorced was too radical for the
Indian society then. The wives were the silent victims of such a rigid system. Now the law
provides for a way to get out of an unpleasant marriage by seeking divorce in a court of law. The
actual benefactors of such a provision are women who no longer have to silently endure the
harassment or injustice caused to them by their husbands. However, to prevent hasty divorces,
the law lays down certain restrictions and grounds for obtaining a divorce

The Hindu Marriage Act, 1955 provides for various matrimonial remedies such as that of
‘Restitution of Conjugal Rights’ as well as ‘Judicial Separation’ which vary in intensity of the
relief granted. The said Act recognizes ‘divorce’ under Section 13 which is the permanent
dissolution of marriage and provides numerous grounds on which either parties to the marriage
are capable of obtaining a decree of divorce as well as the grounds which are solely available to
the wife. It also specifies grounds wherein both the parties can mutually agree to obtain the
decree of divorce. In any case, divorce should always be the last resort as all the marital ties
between the parties are severed.

With the advancement in socio-economic conditions, the concept of marriage has also changed.
The spouses are more self-reliant and independent than they used to be before. The spirit of
forced tolerance of yesteryears is disappearing. They are prepared to live separately rather than
stay united while unhappy. The family relations always depend on the understanding and faith
between the spouses and once it is broken, the very existence of the family is in question. The
best course in such cases would be to set them free of the bond, which does not serve and
purpose at all.

Due to various reasons in this country it is becoming more and more difficult for disgruntled
couples to live together, on the ground of incompatibility. The need for separation, where the
parties to the marriage cannot live together, has been recognised to a certain extent in Section 13-
B whereby the right to apply for divorce by mutual consent has been conferred by the Act.
Mutual consent is not always forthcoming and in many a case, there is much of dilly-dallying by

34
one or the other party. Sometimes anxious couples needing separation cannot avail of the remedy
of divorce by mutual consent, merely because one of the parties tries to bargain in the matter or
put conditions which may even be against public policy. It has been noticed that where a wife is
keen to seek divorce her husband tries to harass her or dictate terms compelling her at times even
to surrender her right to maintenance - a paramount right under the law. This unhappy situation
could be avoided if the law is changed in tune with the changed values of our society. Today's
wife is not ready to merely live at the mercy of her husband and the members of his family. A
sense of confidence and self-respect has come to be instilled in the wife in view of advanced
socio-economic conditions. The wives are ready to face challenges in life. They are keen to
become self-dependent. The spirit of forced tolerance of yesteryears is waning away. They are
prepared to live separately rather than to stay united while unhappy.

This scenario became evident in a case that came before the Delhi High Court in 1978. In 1978 a
dispute as to the choice of matrimonial home had arisen between a husband and wife who were
employed at two different places before their marriage. The question was as to whether the right
to chose the matrimonial home is vested with the husband only or also with the wife1. V.S.
Deshpande, J. who delivered the judgment took note of the changes in the social scenario thus:

"With more and more women taking up jobs and wanting to retain them even after their
marriage, the question becomes increasingly important, topical and controversial."88

A curious situation on facts arose before the Court. The Court therefore felt difficulty in
granting relief. The husband due to his financial difficulties was unable to decide about the place
where the matrimonial home should be set up. The wife on the contrary was in a comfortable
position on account of her job. But the husband's conduct was discouraging. The Court therefore
found that there was reasonable excuse for the wife for not resigning her job and not coming to
live with her husband in Delhi. This situation made the Court recognize the need for change in
the law and it categorically observed that where there is a breakdown of a marriage that itself
should be a ground for divorce and it would be immaterial to enquire as to which of the two
parties was at fault. The insertion of Section 13(1-A)2 and Section 13-B3 conferring the right to
seek divorce by mutual consent is in consonance with the needs of the time. Be that as it may,

88
Swaraj Garg v. K.M. Garg, AIR 1978 Del 296

35
"irretrievable breakdown of marriage" has till date not been made a direct ground available for
dissolution of marriage through divorce though Justice Deshpande in his celebrated judgment as
early as in 1978 impressed the need to amend the law to enable the parties to obtain a divorce
when marriage has apparently broken down. In his view with such an amendment the law would
come in line with English Law. Almost two decades have passed but the legislature is yet to act
upon this suggestion. There has been a sea-change in social thinking during all these years in the
matter of relations between husband and wife. The desire and determination to live separately
rather than to remain united but unhappy is gaining acceptance in our society

36
 Bibliography
 Agarwala R.K. - “Hindu Law”, 21st edn. 2003, Central Law Agency, Allahabad

 Dr. Paras Diwan on Hindu Law, 2nd edn. 2005, Orient Publishing Company, Allahaabad.

 Jai Janak Raj, Divorce: Law and Procedures, pg 33, 3rd edition. Universal Laws
Publishing Co. Pvt. Ltd. 2004

 Nigam, D.P. - “Law of Marriage and Divorce in India”, 1st edn. 1990, Vinod Publishing

House, Delhi.

 Bakshi, P.M. : ”Divorce by Mutual Consent: some reflections”, Supreme Court Journal,

(1986)2 p.27-30

 Halsbury’s Laws of England, 3rd Ed. Vol. 12 pg. 246

 Jayashree Sarathy. : “About Section 13 of the Hindu Marriage Act” Andhra Weekly

Reporter (1990) I, p.9-11.

 http://www.lawctopus.com/academike/divorce-under-hindu-law/

 http://shodhganga.inflibnet.ac.in/bitstream/10603/39005/12/12_chapter%204.pdf

 B.D. Agarwala, 'Irretrievable Breakdown of Marriage' as Ground of Divorce - Need for

Inclusion’, (1997) 8 SCC (Jour) 11

37