Dissolution of Marriage HMA & SMA

• Section 13- Hindu Marriage Act

• Sec 27, 28- Special Marriage Act
Theories of Divorce
• Fault theory
• Mutual consent theory
• Irretrievable breakdown of marriage theory
Fault 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 the
innocent party can seek the remedy of divorce.
• However, the most striking feature and the drawback is that if both
parties have been at fault, there is no remedy available.
Fault Theory (example)

• Adultery
• Cruelty
• Desertion
• Apostasy
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 the relationship
of their own free will. 
Irretrievable breakdown of the marriage
• The breakdown of marriage is defined as “such failure in the
matrimonial relationships or such circumstances adverse to that
relationship 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.
Divorce
• There must be a valid marriage for the court to grant Divorce.
• Divorce means the dissolution of marriage by a competent court.
• A petition for divorce usually can only be filed one year after
registration. However, in certain cases of suffering by the petitioner or
mental instability of the respondent, a court may allow a petition to
be presented before one year.
Adultery

• After the solemnization of marriage, the party has had voluntary

sexual intercourse with any other person other than his or her
spouse.
• Marital Offence
• Ground for Divorce under all personal laws.
Adultery
• 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 offense 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. For example: If the wife can establish that the co-
respondent raped her, then the husband would not be entitled to a
divorce.
Adultery
• No adultery, if the wife can show that she was raped (Redpath v
redpath 1950 1 All ER 600)
• No adultery, where the spouse can show that he/she lacked mental
capacity to give consent (Lang v Lang 1890 15 PD 245)
• When sexual intercourse has happened in belief that the other person
is his or her spouse, It will not amount to adultery.
Adultery
The essential ingredients in an offence of adultery are that:
• There should be an act of sexual intercourse outside the marriage,
and
• That such intercourse should be voluntary.
Adultery
• The burden of proof that the respondent committed adultery is on the
Petitioner.
• General evidence of ill-repute of husband or of the lewd company that he
keeps and that he knows the address of prostitutes would not prove
adultery. (Henderson v Henderson AIR 1980 Cal 370)
• “Adultery cannot and should not be a crime. It can be a ground for a civil
offense, a ground for divorce,” CJI- Dipak Misra (scrapping the law where a
man was punished (upto 5 years) for having intercourse with a married
woman without her husband’s permission- 497 IPC)- Joseph shine v UOI
2018.
• Civil offence-ground for Divorce.
Adultery
• In the case of Subbarma v. Saraswathi, the Madras Court held that
where an unrelated person is found with the wife after midnight, the
same may be inferred to be an adulterous act.
• In the English case of Maclenna v. Maclenna, where the question was
raised as to whether Artificial Insemination Donor (AID) being used by
the wife without taking the consent of the husband can be ruled as
adultery. The Court ruled in favour of the wife stating that AID cannot
amount to adultery on the part of the wife. The burden of proof, will
be on the petitioner to prove whether the act of adultery actual took
place or not.
Adultery
• In Sulekha Bairagi v. Kamala Kanta Bairagi, Section 10 and Section 13
of the Hindu Marriage Act were discussed. According to the husband,
she used to visit the house of the co-respondent late in the night and
on one such night was even found in a compromising situation with
him. In this case, the decision was taken in the favour of the
petitioner on merit of the evidence provided, and judicial separation
was granted.
Adultery
• Mere suspicion of the husband will not be a proof of adultery
especially when the husband had not seen his wife in the company of
any male member, nor could be prove it through circumstantial
evidence- in such cases he is not entitles to a divroce. Ashok Aggarwal
v Anju Raje AIR 2010 442 P&H
Adultery
• Patta Dhanalakshmi v Ramachandra Rao, AIR 1998 AP 341
The wife was living with her parents and became pregnant without
resumption of cohabitation. She stated that the husband used to visit
her and stayed with her at her parents place during nights. But then
failed to examine her parents or any other person to support her
version. As the husband proved that he did not reume cohabitation
through letters written to his in-laws.
Here, the divorce was granted on the ground of adultery.
Adultery
• The wife saw her husband and the adulteress lying on the same bed
at night and further the neighbours were witness that the husband
was living with the adulteress as husband and wife.
The court held that this is sufficient evidence of adultery. Swapna
Ghosh v Sadananda Ghosh, AIR 1979 Cal 1
Adultery
• In Pushpa Devi v Radhey Shyam AIR 1972 Raj 360 the court stated
that to establish adultery the proof of marriage must be there.
Proving adultery by direct evidence is difficult and extremely rare and
thus it would be unreasonable to expect direct evidence of adultery.
• Even when direct evidence of adultery is produced, the courts looks
upon it with suspicion as it highly unlikely that any person could be a
witness of such act, Sita v Gopal, AIR 1928 Pat 37
Adultery
• Where a child was born after 402 days of separation from the
husband, it is clear evidence of adultery- H.T.Veera v Kistamma AIR
1969 Mad 235
• The Nature of Adulterous act is such that obtaining direct evidence of
the same is not possible, thus proving the same without reasonable
doubt is not always possible, in Patayee Amma v Manickam AIR 1967
Mad 257. Thus the courts usually expects circumstantial evidence-
Imarta Devi v Deep Chand.
Adultery
• Veena Kalia v Jatinder Kalia
Husband left India for studies leaving his wife and two daugthers. Later
he did not try to take his wife and daughters with him. For twenty-three
years, they lived apart and later the wife got to know that he has
contracted second marriage and has three children out of the second
marriage.
He was thus held guilty of cruelty, desertion and adultery and wife was
granted a divorce on these grounds,
Adultery
• Applicable only post-marriage fro relief against respondent, Arokia
Morais v Babita Morais 2006 2 MLJ 537. The conduct of the spouse
prior to marriage is immaterial.
• In Elam Plakkat v Mulam Kothrayil AIR 1999 Ker 354 the husband
wanted divorce on the ground of wifes’ adultery as she was pregnant
at the time of marriage by another person and has concealed this fact
from the husband.
Act of Adultery? Class View?
Adultery
• The court held that Section 10 of Indian Divorce Act, 1869 provides
for adultery, but it does not deal with premarital sexual behaviour.
This would be a case of fraud, but not adultery.
CRUELTY
Cruelty
• Cruelty is a ground for Divorce/ Matrimonial relief under all the
Legislations in India.
• However, cruelty differs from case to case basis which is why it is not
defined in any of the statutes.
• In Ravi Kumar v Julmi Devi the court pointed out that cruelty has no
definition, in matrimonial cases it is very subjective and vary with
time, place and persons.
Cruelty
• Previously, Cruelty has to be of such nature or to such an extent that
it would be harmful or injurious for the petitioner to live with the
other party,
• However, now the party to the suit just has to proof that the
respondent has treated the petitioner with cruelty. GVN Kameshwara
Rao v. G Jabili [2002 SC 576]
Cruelty- 498A- IPC
• Whoever, being the husband or the relative of the husband of a woman,
subjects such woman to cruelty shall be pun­ished with imprisonment for a
term which may extend to three years and shall also be liable to fine. For
the purpose of this section, “cruelty” means—
(a) any wilful conduct which is of such a nature as is likely to drive the
woman to commit suicide or to cause grave injury or danger to life, limb or
health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to
coercing her or any person related to her to meet any unlawful demand for
any property or valuable security or is on account of failure by her or any
person related to her to meet such demand.
Cruelty

• Physical cruelty
-Physical violence
-Sexual violence

• Mental cruelty
Cruelty
• In a case where the petitioner who was a practising doctor, sought
divorce on the ground that her In-laws are forcing her to wear saree.
The court held that this does not amounts to cruelty and a marriage
cannot be ended over it.
Cruelty
• The actual intention to injure is not an essential element,
unintentional acts may also amount to cruelty. P.l sayal v Sarla AIR
1961 Punj 125. Parties were married and had 2 children. However, the
wanted love and affection and thus consulted a fakir who gave her
some love portion to be given to her husband.
• The husband became severely ill after taking that portion and was
admitted to hospital. Husband later filed in for a decree of judicial
separation and it was granted by the court.
• Here the wife did not have intention to injure the husband; if the
act/conduct caused injury, it was enough to constitute cruelty.
Cruelty
• Shobha Rani v Madhukar Reddy: SC stated that the intention is not a
necessary element in cruelty. The absence of intention would not
make any difference if, in normal sense the act would amount to
cruelty.
Cruelty
• Intention not necessary: Husband, who was insane, tries to
strangulate wifes’ brother on one occasion and her son on another, in
fit of insanity. The conduct of husband in this case amounts to cruelty
even in the absence of an intention to be cruel. [Bhagwat v Bhagwat
1976 Bom 80].
Cruelty
• Rajiv v Nilangi AIR 2010 NOC 538: husband forced wife to adapt
American lifestyle- Cruelty
• Rajender Singh v Tarawati: Omission can also constitute cruelty-
where one party to the marriage did not take care and was indifferent
towards the ill-spouse, it amounts to cruelty.
• Denying paternity of child, sadistic and suspicious behaviour towards
wife- amounts to cruelty.
• Husband jobless and drug addict- such conduct amounts to cruelty
(jasvir kaur v Harjinder singh)
Cruelty
• To force the partner to lead a sexless life amounts to cruelty- Abha
Gupta v Rakesh Khanna 1995 1 HLR (P&H)
• In Suman Kapur v Sudhir Kapur- husband sought divorce on ground
that his wife, a career oriented lady got her pregnancy terminated
thrice, because she did not want motherhood. Held, Mental cruelty.
• Demand for dowry by husband and his parents amounts to mental
cruelty- Shobha Rani v Madhukar Reddi.
Cruelty
• In Iris Paintal v Avtar Singh- false allegations by wife that husband had
scandalous affair with colleagues, husband being a very senior
medical practitioner found it harmful for his career and personal life-
Cruelty, established.
• A.P. Mary v K.G.Raghawan the court held that a single act of violence
may come within the meaning of the word “has treated with cruelty”
provided the violence is of grievous and inexcusable nature.
Cruelty
• Wife quarrelling over trivial matters; an earning wife not parting with
her salary in favour of husband; inability to cook; wife selling away
the house gifted to her by her father without husbands’ consent is not
cruelty.
• When a husband is in transferable service and stays away from home,
wifes’ demand to stay with him is not cruelty.
Cruelty
• Frequent visits by wife at her parents house; minor medical problem
and not being able to conceive immediately after treatment of a
curable ovarian failure- does not amount to mental cruelty.
• In Sanjay yadav v Anita yadav: Husband was “hurt” and “anguished”
on discovering that the wife was one-and-a-half-year older to him.
Court observed this to be “irrational reaction of husband” as the
couple had four children out of the wedlock and were living happily.
Cruelty
• Acts of physical violence on the spouse or his/her family members
would be cruelty- Savitri v Chand Prakash 1 HLR 312.
• Husband addicted to alcohol and drugs and in that state misbehaved
with wife, moved around in state of drunkenness, stayed in hotel
causing nuisance and without paying bills- construed as mental
cruelty, Kamma Damoder v Kamma Anuradha AIR 2011 AP 23
• U Sree v U Srinivas, husband was a musician, the wife was not in
favour of this career line and thus obstructed his routine practice,
insulted and humiliated him before his students- amounts to cruelty.
Cruelty
• Ramesh Jangid v Sunita AIR 2007 Raj 160- a wifes’ demand that her
husband leave his parents house and other sibling and reside with her
parents and upon his refusal, she became abusive- held, Cruelty.
• Repeated threats to commit suicide amounts to cruelty. When sun a
thing is repeated in the form of sign and gesture, no spouse can live
peacefully.
• Wife denying to have a childe because the couple is not financially
stable- does not amount to cruelty.
Cruelty
• A Wife’s demand to live separately from joint family, with her
husband and child would not, by itself constitute cruelty. The court
here considered the practical and realistic view of present terms that
newly weds want to have privacy and live separately from the in-laws-
Rakesh Goyal v Deepika Goyal.
• Mere pressure of wifes’ on the husband to live separate from parents
would not be sufficient ground for divorce on the basis of cruelty,
Shashi Shah v Kiran Kumar Shah 1992 (2) Civil court cases 664 (All)
DESERTION
Desertion

• 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 wilful
neglect of the petitioner by the other party to the marriage, and its
grammatical variations and cognate expressions shall be construed
accordingly.
Desertion
• Based on rejection or repudiation by one party of all the obligations of
marriage.
• Abandonment of one spouse by the other without any reasonable
cause or without the consent of the other.
• Intentional permanent forsaking and abandonment of the spouse,
without consent and without any reasonable cause.
• Not withdrawal from a place but from a state of things
- Savitri Pandey v Prem Chandra Paney 2002 2 SCC 73
Desertion
• Burden of proof is on the petitioner to show that the respondent has
deserted him without reasonable cause and without his consent or
against his wishes, Devi singh v Sushila Devi AIR 980 Raj 48.
Desertion
• Desertion constitutes following elements to qualify as a ground fro
matrimonial relief:
1. Factum of Desertion/Separation
2. Intention to bring the cohabitation permanently to end or Intention
to Desert- Animus Deserdendi.
3. Absence of consent (from the deserted spouse)
4. Absence of reasonable cause (from the deserted spouse)
The offence of Desertion commences when the Separation and Animus
Deserdendi co-exist- Bipinchandra Jaisinghbai v Prabhavati AIR 1957 SC
176
Desertion
• To be proved Beyond all reasonable doubt.
• In Narayan Roy v Jamuna Dey AIR 2010 Gau. 75, husband tortured
wife, because of the torture she was compelled to live separately,
husband filed for divorce on grounds of desertion.
Class view?
• Where a wife left matrimonial home on the ground of husband’s
second marriage , her staying separate was no desertion (Damyanti
devi v Prabitra Mohan)
Desertion
• If a spouse abandons the other in a state of temporary passion or
anger without intending to cease cohabitation permanently, there is
no desertion; the intention to permanently put an end to cohabitation
is necessary. (Arvinder kaur v Harjinder AIR 2007 P&H)
• A spouse living away on grounds of medical treatment or studies of
self was held not guilty of desertion. (Rajan Damodar Sapre v
Sumidha and Om Prakash v Madhu)
Desertion
• Manjit Kaur v Mohan Singh AIT 2007 66 P&H
Husband was in army, whenever he used to come on leave the wife
used to stay with him and accompany him, the mere fact that she was
not residing in the matrimonial home was not held to be desertion by
her.
• Vikas Sharma v Anita Sharma AIR 2011 UTR 43
Husband was a rifle man in the Indian Army posted in Manipur and his
parents house was in musoorie. He wanted his wife to stay with his
parents which wife declined to do. Desertion ?
Desertion
• Sanjay Bhutada v Rajni Bhutada- where wife is employed at a different
place but is willing fro cohabitation, it does not amount to desertion.
The court held that the husband cannot seek divorce by taking
advantage of forced separation due to employment of the wife.
• Gajendra v Madhu Mati, wife abandoned the home with intention to
pressurize the husband to live in her father’s house as ghar-jamai.
Desertion?
Desertion
• Must last for continuous 2 years
• Krishan Kumar v Sahnkari, husband filed divorce petition on ground of
desertion on 22 July, 2000. the parties had admittedly lived together
till April 1999- court held, mandatory period of 2 years not complied
with and hence the ground is unavailable.
Desertion
• During the entire period of desertion the deserted spouse must affirm
the marriage and be ready and willing to resume married life on such
conditions as may be reasonable.
• A bona fide offer by the forsaking party to return or to resume
cohabitation before completion of two years.
• Two years completed-deserted party has right to relief.
Desertion
• Desertion ends when the deserting spouse resumes cohabitation or
expresses her/his willingness to come back, within the statutory
period of two years.
• After two years?
Desertion
• When there is a reasonable ground or cause for a party to withdraw
from the company of the other, it would not constitute desertion.
• Where a wife left the matrimonial home because of constant dowry
demand by the husband, wife was not held guilty fro desertion. Ashok
kumar v Shabnam AIR 1989 Del 121
Desretion
• Party leaving the matrimonial home or leaving the partner- not always
guilty
• The other party creates a situation that impels the spouse to leave
the house.
• Expulsive conduct.
• Constructive desertion.
• The one who creates such situation is guilty of desertion.
CONVERSION
Conversion
• There is no bar on continuation of marriage once solemnised under
HMA even if one of the parties convert to another religion.
• Refer to Sarla Mudgal and Lily Thomas.
Conversion to Islam and marrying again after such conversion would
not by itself dissolve the earlier marriage solemnised under personal
law.
• Conversion does not automatically dissolve the marriage . It only
provides a ground for divorce.
Conversion
• The ground for matrimonial relief under this Section of HMA is
available only to the non-converting spouse.
• The fact that non converting spouse had given consent to the other
converting spouse is immaterial.
• In Suresh babu v V. P. leela AIR 2007 285 Ker, it was held that even if
wife had given her consent for the husbands’ conversion, she would
nonetheless be entitled to seek divorce on the grounds of conversion.
Insanity or Incurably of unsound mind or
mental disorder
Insanity or Incurably of unsound mind or
mental disorder
• Respondent 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
• The expression “mental disorder” means mental illness, arrested or
incomplete development of mind, psychopathic disorder or any other
disorder or disability of mind and includes schizophrenia
Insanity or Incurably of unsound mind or
mental disorder
• the expression “psychopathic disorder” means a persistent disorder
or disability of mind (whether or not including sub-normality of
intelligence) which results in abnormally aggressive or seriously
irresponsible conduct on the part of the other party, and whether or
not it requires or is susceptible to medical treatment
Insanity or Incurably of unsound mind or
mental disorder
• Ram Narain Gupta v. Smt. Rameshwari Gupta AIR 1988 SC 2260
The context in which the ideas of unsoundness of 'mind' and 'mental
disorder' occur in the section as grounds for dissolution of a marriage,
require the assessment of the degree of the 'mental disorder'.
Its degree must be such that the spouse seeking relief cannot
reasonably be expected to live with the other.
All mental abnormalities are not recognized as grounds for grant of
decree. If the mere existence of any degree of mental abnormality
could justify dissolution of a marriage few marriages would, indeed,
survive in law.
Insanity or Incurably of unsound mind or
mental disorder
• The burden of proof of the existence of the requisite degree of mental
disorder is on the spouse basing the claim on that state of facts.
• Hema Reddy v Rakesh Reddy AIR 2002 AP 228 Psychological
depression cannot be equated with mental disorder. The petitioner
has to prove by leading medical evidence that psychological
depression is synonymous to mental disorder.
leprosy
Swarajya Lakshmi v. Dr. G.G. Padma Rao
AIR 1974 SC 165
• “Sociologists insist and they do so very, correctly that we should not allow our minds
to be swayed by feelings of emotional loathing and revulsion with which leprosy
patients have been treated throughout human history in all countries throughout the
world and that we should take up at very humane and balanced outlook and accept
leprosy "as simply another disorder that requires medical attention".
• We have no doubt that this is absolutely correct about what should be the social
approach to leprosy but to our mind this should not provide any justification for
compelling a husband to live with a wife who its suffering from an aggravated form of
leprosy and who can give him and his children leprosy almost any moment in their
daily life even though the legislature by a statute has given the husband a way off
relief.
• We have no doubt in our minds that the law-makers do not treat the subject of
divorce lightly and must have taken into consideration the consequences of one
spouse being compelled to live intimately with another spouse who suffers from
leprosy when they provided for a way out for the former.”
Renunciation
Renunciation

• Entered religious order

• Renunciation has to be final and complete.
• Mere declaration not sufficient.
Presumption of Death
Presumption of Death

• 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. 13(1) (vi)
Presumption of Death

• Burden of proof

• Burden of proving that person is alive who has not been heard of for
seven years.—[Provided that when] the question is whether a man is
alive or dead, and it is proved that he has not been heard of for seven
years by those who would naturally have heard of him if he had been
alive, the burden of proving that he is alive is [shifted to] the person
who affirms it."
Divorce by Mutual Consent

• Section 13-B of HMA, 1955

• Section 28 of SMA, 1954
Mutual consent

• Parties living separately for one or more.

• Not able to live together.
• Mutually agreed to that a marriage should be dissolved.
• Court on hearing or inquiry that averments in petition are true, may
declare dissolution of marriage.
Mutual Consent

• The terms 'have been living separately' should be read with 'not
having been able to live together.'
• 13B presupposes only those cases where the cohabitation had come
to an end due to total break down of the matrimonial relationship.
Leela Mahdeo Joshi v. Dr. Mahadeo Sitaram Joshi AIR 1991 Bom
105(divorce after 30 years of marriage)
Mutual Consent

• Waiting of six months mandatory?

• Hitesh Narendra Doshi v Jesal Hitesh Doshi AIR 2000AP 364
• Charanjit singh Mann v Neelam Mann AIR 2006 P&H 201
• M Krishna Preetha v Dr. Jayant AIR 2010 Ker 157
• YES- held in above mentioned cases
Mutual Consent

• In Re, Gandhi Venkata Chitti Abbai AIR1999AP91

• Abhay Chauhan v Rachna Singh 2006 Del 18
• Om Prakash v Nalini AIR 1986 AP 167 (broken iron can be joined
together but not broken hearts)
• NO, held in above mentioned cases
Mutual Consent
• Withdrawal of consent
• If one of the parties at that stage says that "I have withdrawn my
consent", or "I am not a willing party the divorce", the Court cannot
pass a decree of divorce by mutual consent. If the Court is held to
have the power to make a decree solely based on the initial petition,
it negates the whole idea of mutuality and consent for divorce.
Mutual consent to the divorce is a sine qua non for passing a decree
for divorce under Section 13-B Mutual consent should continue till
the divorce decree is passed.
• Sureshta Devi v Om Prakash AIR 1992 SC 1904
Mutual Consent
Ashok Hurra v Rupa Ashok Hurra AIR 1997 SC 1266
• Wife left after 13 years of marriage.
• joint petition for divorce was filed under Section 13B an year later
• After 8 months only husband moved an application praying for
divorce.
• Adjournments.
• Court mediated reconciliations attempted. Futile.
Mutual Consent
• Wife withdraws consent after 19 months.
• Trial court- since consent was withdrawn before the decree could be
passed the petition for divorce by mutual consent dismissed.

• Husband appealed to single judge bench HC.

• HC passed the decree of dissolution of marriage from the date of the
petition
Mutual Consent
• High Court:
(1) that all the ingredients of Section 13B(1) of the Act were satisfied when
the petition was filed;
(2) that for a period of six months thereafter the parties have continued to
live separate and have not cohabited or stayed together as husband and
wife;
(3) that the wife withdrew her consent after the expiry of the period of 18
months from the date of the institution of the petition;
(4) that the revocation of consent after the prescribed period under Section
13B(2), (18 months) by the wife was not based on true or correct ground
but a false pretext, ruse, or non-existent ground put forward by her to
justify revocation of her consent;
Mutual Consent
• Wife appealed to Division Bench of HC.
• Held- the wife withdrew her consent even before the trial court could
make an inquiry. The trial court was, therefore, right in dismissing the
application submitted under Section 13B of the Act. There is no
requirement in law that the party withdrawing consent must give
reasons or the withdrawal must be based on reasonable grounds.
Irretrievable breakdown of marriage by itself is not a sufficient ground
for dissolution of a marriage, as held by the Apex Court. In the result,
we quash and set aside the order passed by learned single judge
granting decree of dissolution of marriage solemnized between the
parties herein and the order passed by the trial court is restored.
Mutual Consent
• During the pendency of the case, the husband had remarried and had
a son from his second Marriage.
• Husband appealed to SC.
• Court took notice of the fact that husband had remarried during the
pendency of the divorce petition and had a son.
• Wife withdrew consent after some months of second wedding.
• Wife filed for divorce petition on grounds of adultery/desertion.
Mutual Consent
Wife’s case:
• After statutory waiting period of six months, a motion should be
made by both the parties. The motion was made only by the husband.
It is incompetent.
• respondent/wife had withdrawn the consent before the enquiry.
• Consent for dissolution should be present at the time of filing the
joint application as also on the date when the decree has to be
passed. The expiry of 18 months from the date of filing of the petition
is irrelevant.
Mutual Consent
• Notwithstanding the strained relationship between the parties and
other factors urged to show that the marriage has broken down
irretrievably, the conduct of the appellant/husband disentitles him to
any relief. Indeed, when the proceedings were still pending in the trial
court the appellant married a second time and got a male child.
Thereby, he committed a wrong. He cannot take advantage of his own
wrong, and cannot invoke the jurisdiction of this Court by urging it as
a ground for passing a decree of divorce in order to do complete
justice in the matter.
Mutual Consent

• not only no re-union or reconciliation between the spouses was

possible at any stage after the institution of petition for divorce by
mutual consent under Section 13B on 21.8.1984 the parties were
convinced that the marriage was irretrievably broken. This Court also
finds that no useful purpose would be served by prolonging and/or
procrastinating the miseries of two spouses when the very purpose of
happy married life was lost.
Mutual Consent
• The pendency of the proceedings for a long period of over 12 years,
the acrimonious battle between the parties, the allegations and
counter-allegations made by the parties, the fact that the marriage is
dead or has broken down irretrievably without any chance of re-union
between the parties, that continuance of the stalemate is only a
futility leading to a tortious life for both and continued agony and that
the parties are living separately for more than 13 years.
• These should weigh with the Court to grant a decree for divorce by
mutual consent under Section 13B of the Act and dissolve the
marriage between them and give appropriate directions including
provision of reasonable/adequate funds for the wife to have a decent
living
Mutual Consent

• There is no useful purpose served in prolonging the agony any further.

In coming to the above conclusion, we have not lost sight of the fact
that the conduct of the husband is blame-worthy in that he married a
second time and got a child during the pendency of the proceedings.
• But that factor cannot be blown out of proportion or viewed in
isolation, nor can deter this Court to take a total and broad view of
the ground realities of the situation when we deal with adjustment of
human relationship.
Mutual Consent

• The SC passed a decree of dissolution conditional and effective only

on payment or deposit in this Court of the entire sum of rupees ten
lakhs by the appellant to the respondent.
Mutual Consent
Anil Kumar Jain v Maya Jain AIR 2010 SC 229
• Parties living separately for more than 7 years
• As part of agreement, husband transferred valuable property rights in
favour of wife
• But after registration of such transfer, wife withdrew her consent
• Wife insistent on living separately from husband but doesn’t want
divorce.
Mutual Consent
Supreme Court discussed in detail all the judgments on withdrawal of
consent.
• After a lot of deliberation, held- Supreme Court can in special
circumstances pass appropriate orders to do justice to the parties in a
given fact situation by invoking its powers under Article 142 of the
Constitution, but in normal circumstances the provisions of the
statute have to be given effect to. The law as explained in Smt.
Sureshta Devi's case still holds good, though with certain variations as
far as the Supreme Court is concerned and that too in the light of
Article 142 of the Constitution.
Irretrievable Breakdown of Marriage
Breakdown Theory

• Irrespective of the fault of either or both the parties, a marriage can

be terminated if it is shown that nothing survives in the relationship.
Irretrievable Breakdown of Marriage
• Irretrievable breakdown of marriage- concept introduced in India via
Judiciary.
• Naveen Kohli v Neelu Kohli AIR 2006 SC 1675- The matter was brought before
Family Court of Kanpur for Divorce by appellant –Husband.
• Family Court of Kanpur granted divorce and directed the appellant to pay Rs.
5 lacs as her livelihood allowance and the same has been deposited by him.
• Then first appeal before Allahabad H.C. was preferred by wife. The same
appeal was allowed and All. H.C., cancelled and dismissed the divorce decree
granted by Family Court of Kanpur.
• Aggrieved by the decision, Husband filed an Special Leave Petition before
Supreme Court and the said SLP granted by Supreme Court of India.
Irretrievable Breakdown of Marriage

• Court has set aside the impugned judgment of High Court and direct
the marriage between the parties should be dissolved according to
the provisions of HMA and also directed the petitioner to pay
maintenance allowance of Rs. 25 lacs.
Irretrievable Breakdown of Marriage
• Held: Once the marriage has broken down beyond repair, it would be
unrealistic for the law not to take notice of that fact, and it would be
harmful to society and injurious to the interests of the parties.
Where there has been a long period of continuous separation, it may
fairly be surmised that the matrimonial bond is beyond repair. The
marriage becomes a fiction, though supported by a legal tie.
By refusing to sever that tie the law in such cases do not serve the
sanctity of marriage; on the contrary, it shows scant regard for the
feelings and emotions of the parties.
Irretrievable Breakdown of Marriage
• Vishnu Dutt Sharma v Manju Sharma
• On a bare reading of Section 13 of the Act, reproduced above, it is
crystal clear that no such ground of irretrievable breakdown of the
marriage is provided by the legislature for granting a decree of
divorce. This Court cannot add such a ground to Section 13 of the Act
as that would be amending the Act, which is a function of the
legislature.
Irretrievable Breakdown of Marriage
• Whenever the court has dissolved a marriage on the ground of irretrievable
breakdown, the legal position has not been taken into consideration and hence
they are not precedents.
• A mere direction of the Court without considering the legal position is not a
precedent. If we grant divorce on the ground of irretrievable breakdown, then
we shall by judicial verdict be adding a clause to Section 13 of the Act to the
effect that irretrievable breakdown of the marriage is also a ground for divorce.
• In our opinion, this can only be done by the legislature and not by the Court. It
is for the Parliament to enact or amend the law and not for the Courts. Hence,
we do not find force in the submission of the learned Counsel for the
appellant.
• Since respondent is not willing to agree to a divorce, the court can not grant
divorce.