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Listed below are the Grounds of divorce
(1) Adultery.
Either party to the marriage may present a petition for divorce under cl. (i) of
sub-sec. (1) of s. 13, on the ground of adultery of the respondent. The
expression 'living in adultery' used in old s. 13(I)(i) meant a continuous
course of adulterous life as distinguished from one or two lapses from virtue.
It would not be in consonance with the intention of the Legislature to put too
narrow and too circumscribed a construction upon the words 'is living' in (old) cl. (i) of sub-sec. (1) of s. 13 of the Act. On the other hand, it was clear
that too loose a construction must also not be put on these words. For
attracting the operation of these words, it would not be enough if the spouse
was living in adultery sometime in the past, but had seceded from such life for
an appreciable duration extending to the filing of the petition. It is not
possible to lay down a hard and fast rule about it since the decision of each
case must depend upon its own merits and turn upon its own circumstances. But it
is clear that for invoking the application of (old) cl. (i) of sub-sec. (1) of
s. 13, it must be shown that the period during, which the spouse was living an
adulterous life was so related from the point of proximity of time, to the
filing of the petition that it could be reasonably inferred that the petitioner
had a fair ground to believe that, when the petition was filed, the respondent
was living in adultery. By using the words 'is living in adultery' the
Legislature did not intend to make such living co-extensive with the filing of
the petition. The identical expression of 'living in adultery' is to be found in
s. 488(4) the Code of Criminal Procedure (old) and in s. 125(4) of the Code of
Criminal Procedure (new). This expression implies that a single lapse from
virtue even if true will not suffice, and it must be shown that the respondent
was actually living in adultery with someone else at the time of the
application. Living in adultery is different from failing to lead a chaste life.
(2) Cruelty
After the Marriage Laws (Amendment) Act 1976, cruelty has been made a ground
for divorce as well as judicial separation. Prior to that amendment it was only
a ground for judicial separation and not for divorce.
Mental cruelty in s.13(l)(ia) can be broadly defined as the conduct which
inflicts upon the other party such mental pain and suffering as would make it
not possible for that party to live with the other. In other words, mental
cruelty must be of such a nature that the parties cannot reasonably be expected
to live together. The situation must be such that the wronged party cannot
reasonably be asked to put up with the other party. It is not necessary to prove
that the mental cruelty is such as to cause injury to the health of the
petitioner. While arriving at such conclusion, regard must be had to the social
status, educational level of the parties, the society they move in, the
possibility or otherwise of the parties ever living together in case they are
already living apart and all other relevant facts and circumstances. What is
cruelty in one case may not amount to cruelty in another case.14 In that case
allegations were made by the wife in her written statement and question put by
her counsel to her husband that he and all the members of his family were
lunatic etc. All these constitute mental cruelty.
In the absence of a positive act of cruelty a party is not entitled to obtain a
decree of divorce.
(3) Desertion.
Desertion as a ground for divorce has been added to s.13 by the Marriage
Laws (Amendment) Act 1976. Previously, it was only a ground for judicial
separation. Now desertion is a ground for both judicial separation and divorce.
NEW PHENOMENON OF NRI RELATED DESERTION. Many non-resident Indians (NRI) come to
India to marry girls who are also aspirants to migrate from India by this
marriage relation. It is often seen that some NRIs marry local girls, enjoy them
and return to the foreign countries with vague hopes behind that their wives
would be taken after completion of official formalities. But all those hopes are
never materialized. Sometimes they receive papers in India in the form of
foreign divorce decree. In the Punjab it is said that the NRI matrimonial frauds
account for at least one-fifth of women related complaints to the Punjab State
Women's Commission.
To check this menace the Centre should make laws that any marriage between an
Indian bride and an NRI solemnized in India cannot be dissolved by any foreign
court without application of the law under which they are married. There should
also be law for cancellation of their passports where NRIs are found to be
perpetrators of such frauds.
(4) Conversion
A Hindu marriage may be dissolved by a decree of divorce on the ground that
the respondent has ceased to be a Hindu by conversion to another religion.
According to ancient Hindu Law a marriage was not ipso facto dissolved by
conversion of one of the parties to the marriage. Thus the statement of objects
and reasons of the Bill laid down that a change in religion was not inconsistent
with the continuance of conjugal love and it should therefore not be permissible
for a party to the marriage to get a divorce by changing his or her religion.
The right to get a divorce under this law is therefore given to the party who
continued to be Hindu. A somewhat similar right is given to a person changing
his religion for Christianity under the Native Convert's Marriage Dissolution
Act 1866.Though s. 13(1)(ii) confers expressly right on a spouse to present a
petition for divorce against the other spouse who has changed his or her
religion after the solemnization of marriage, but the apostate can also file a
petition for dissolution of marriage after he or she has ceased to be a Hindu
under the Hindu Marriage Act provided he or she is able to establish the ground
for it. Mere professing or theoretical allegiance to a religion other than a
Hindu religion does not mean conversion for the purpose of this provision. There
must be voluntary relinquishment of Hindu religion by the respondent and formal
ceremonial conversion to another religion so as to attract this provision for
the purpose of divorce.
(5) Unsoundness of mind.
Prior to the Marriage Laws (Amendment) Act 1976, a petition for divorce
might be presented by a spouse on the ground (a) that the respondent had been
incurably of unsound mind, and (b) that the respondent had been so for a
continuous period of not less than three years immediately before the filing of
the petition. By the Marriage Laws (Amendment) Act 1976, the period of duration
of unsoundness of mind has been omitted and elaborative clarifications have been
made. The expression 'incurably of unsound mind' cannot be so widely interpreted
as to cover feeble-minded person or persons of dull intellect who understand the
nature and consequences of their acts and are able, therefore, to control
themselves and their affairs and their reactions in the normal way. Where this
ground is taken for dissolution of marriage, the said ground must be proved by
cogent and clear evidence beyond reasonable doubt so as to satisfy the court.
Eccentricities do not constitute psychopathic disorder or any other kind of
mental disorder.
It is not yet settled by medical science whether schizophrenia is curable
disease or not. But paranoid schizophrenia has been held to be indicative of
unsoundness of
mind. After the amendment of s.13 by the Marriage Laws (Amendment) Act 1976, the
expression 'mental disorder' includes schizophrenia. Unsoundness of mind is now
a ground for both divorce and judicial separation without any distinction.
For attracting s. l3(1)(iii) either of the two conditions is to be fulfilled.
First, the respondent has been incurably of unsound mind. Secondly, the
respondent has been suffering continuously or intermittently from mental
disorder of such a kind and to such an extent that the petitioner cannot
reasonably by expected to live with the respondent. So far as the second
condition is concerned, the petitioner will have to prove two elements, namely,
mental disorder and at the same time that the disease must be of such a kind and
to such an extent that the petitioner cannot reasonably be expected to live with
the respondent. So, proof of one element is insufficient to grant a decree.2 In
case of schizophrenia as a mental disorder it is not necessary to show that it
existed at or before the marriage for divorce.
The context in which the ideas of unsoundness of "mind" and "mental disorder"
occur in the section as grounds for divorce require the assessment of the degree
of the "mental disorder". Its degree must be such as that the aggrieved Spouse
cannot be reasonably expected to live with the other. All mental abnormalities
are not recognized as grounds for grant of decree. "Schizophrenia" is said to be
difficult mental affliction. It is said to be insidious in its onset and has
hereditary predisposing factor. It is characterized by the shallowness of
emotions and is marked by a detachment from reality. It is a varying degrees and
manifestations. Not all schizophrenics are characterized by the same intensity
of the disease. The mere branding of a person as schizophrenic will not suffice.
For purposes of s. 13(l)(iii) "schizophrenia" is what schizophrenia does. Thus,
the appeal by the husband for divorce on the ground of schizophrenia of the wife
could not succeed.
Over sensitiveness of the mind or character cannot be equated with insanity or
automatism. Epileptic insanity is a sign of unsoundness of mind.
When the wife intelligibly answers the query of the court, it cannot be said
that she suffers from any mental disorder.
Schizophrenia
The word "schizophrenia" is derived from Greek word which means "split
mind". The sufferers do not in fact have any "split personality". Generally they
undergo a gradual or sudden breaking down of the barriers between fantasy and
reality. The thoughts of such sufferer are muddled and distorted. In some cases
he suffers hallucination. A schizophrenic's delusions often lead him to believe
that he is being persecuted. Many sufferers sleep a great deal and neglect their
appearance in public. They develop odd and obsessive habits. No one knows the
real cause of schizophrenia. Many researchers believe that there is a genetic
component. A person with a family history of schizophrenia is susceptible to it.
It is common in the age group of 15-30 years. Thereafter women sufferers are a
little higher than the male sufferers. In India it is estimated that there are
nine million sufferers of this disease. But it is found that
about one-third of such sufferers recover fully; another one-third are able to
lead near normal lives with the help of anti-psychotic drugs in tablets or
injection form. Most of the remainder can lead ordinary lives only with
medication and occasional hospitalization. The symptoms of this illness were
recognized by Indian doctors about 2,000 years ago.
(6) Virulent and incurable leprosy. A petition for divorce may be
presented by either party to the marriage on the ground that the respondent has
been suffering from a virulent and incurable leprosy. Old cl. (iv) of s. 13(1)
did not require that before such a petition was presented the marriage existed
for more than three years and that it was only then it was possible for anyone
of the spouses to file an application for dissolution of marriage on that
ground.? Virulent means malignant or venomous.8 The onus to prove the
ingredients of cl. (iv) of s. 13(1) is on the petitioner. When it is not
disputed that the respondent has been suffering from leprosy, the onus is on the
petitioner to establish that the leprosy is virulent and incurable.
'Virulent' in the context of s. 13(I)(iv) is not a medical term. The decisions
of the different High Courts and the Privy Council where the word 'virulent' has
been used for interpreting the Hindu Law on the subject have used it to describe
the leprosy of the most serious and aggravated type. This does not therefore
give sure and reliable guide in interpreting the word 'virulent'. The dictionary
meaning of the word 'virulent' is malignant and infectious. Lepromatus leprosy
is a malignant, contagious and incurable form of disease. If it be true that suI
phone drugs have m"ade leprosy of all types curable, there would be no point in
the Legislature making a provision in this Act which will entitle a spouse to a
decree of divorce. A spouse cannot be compelled to live with the other spouse
who is suffering from an aggravated form of leprosy and who can give the
petitioner and children leprosy almost any moment in their daily life. Thus the
Legislature by a statute has given an aggrieved spouse a way of relief.
(7) Venereal disease in communicable form
Venereal disease in a communicable form is a ground for obtaining a decree
for dissolution of marriage. This ground affords also a ground for obtaining a
decree for judicial separation. Syphilis, gonorrhea or soft chancre are
recognized as venereal diseases under the (English) Venereal Diseases Act 1917.
(8) Entering new religious order. A decree for divorce may be obtained on
a petition presented by a spouse on the ground that the respondent has renounced
the world by entering any religious order. This clause consists of two
components. First, the respondent must have renounced the worldly affairs, and
secondly, the respondent has thereafter entered into a religious order
recognized by Hindu religion. Such entry requires some ceremonial performance or
observance of certain formalities. Renouncement of the world by entering any
religious order must be absolute. It amounts to civil death and has the effect
of excluding a person from inheritance and right to partition.But persons merely
wearing saffron-coloured clothes know as sadhus or bairagis and who enjoy a
married life cannot be said to have renounced the world and entered a religious
order. Similarly, the mere holding by a man of certain religious opinions or
professions does not amount to civil death.
(9) Presumption of death. A divorce may be granted on the ground that the
respondent 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. This is a legal presumption of death which is based on English law of
evidence. The presumption is drawn by reason of the fact that if the person were
living, the person would probably have communicated with some of his or her
friends and relatives. The legal presumption is different from presumption under
ancient Hindu law, according to which twelve years must have elapsed before a
person was presumed to be dead. This presumption under the provision of law is
not rigid and death may even be presumed before lapse of seven years from proof
of special circumstances. This presumption may also be rebutted where a person
is not heard of for a period of seven years by reason of special circumstances,
such as absconding on a charge of murder. A decree nisi will be resounded where
the respondent is proved to be alive before the decree made absolute. The onus
of proving the absence of the respondent for the statutory period without being
heard of as alive lies on the petitioner. The standard of proof for this purpose
is laid down in s. 23 of the Act. The petitioner is required to give particulars
relating to the last date of cohabitation, the date and place last seen the
respondent and steps taken to trace the respondent. Evidence as to reasonable
inquiry or search about the respondent is necessary to be adduced by the
petitioner. But the onus of proving that the respondent is alive lies on the
person who pleads so.
(10) Non-compliance with a decree of judicial separation. By sub-sec.
(IA) of s.13 either spouse may present a petition for divorce on the ground that
there has not been any resumption of cohabitation of the parties to the marriage
for a period not less than one year after the passing of a decree for judicial
separation. Resumption of cohabitation means living together in conjugal
relationship. But this means is narrow and as such it should not be applied to
all cases irrespective of their special and surrounding circumstances. The
meaning of this expression therefore depends upon the intention of the parties,
and there may be resumption of cohabitation even where the parties do not live
under the same roof of matrimonial home. If there is sexual intercourse of the
parties to the marriage, it is no doubt a good ground to presume the resumption
of cohabitation, but that is not the conclusive evidence for this purpose. The
birth of a child from an isolated act of sexual intercourse does not mean
resumption of cohabitation. There may be resumption of cohabitation without
having sexual intercourse. The court will grant a decree for divorce on the
ground provided in sub sec. (1A) of s.13 in the absence of any bar laid down in
s. 23 of the Act. In a proceeding for divorce, a decree of judicial separation
cannot be challenged on the ground of lack of jurisdiction of the court in the
previous proceedings.
The statutory period of one year (previously two years) laid down in this
provision will be operative from the date of the judgment of the District Court
and with the lapse of this period the High Court in Letters Patent appeal may
pass a decree for divorce under s. 13( 1 A) of the Act. But where a decree
for judicial separation is passed by the High Court in appeal, period of one
year (previously two years) will commence from the date of the decree in appeal
But where an appeal is preferred against the decree and the decree confirmed by
dismissing the appeal, the period of one year (previously two years) will run
from the date of the original decree.
(11) Non-compliance with a decree of restitution of conjugal rights.
Under cl (ii) of sub-sec. (1A) of s. 13 either party to the marriage may present
a petition for divorce on the ground that there has been no resumption of
conjugal rights for a period of not less than one year after the passing of a
decree to that effect. The court before granting a decree for divorce on this
ground may be satisfied that the petitioner is not disentitled to this right by
reason of any bar laid down in s. 23 of the Act. After a decree for restitution
of conjugal rights obtained by the wife under s.9 of the Act the husband is not
entitled to the relief under s. 13( lA) of the Act if he fails to comply with
the decree and also acts positively by ill-treating her and driving her away
from the house.19 There are, however, conflicting decisions on the question of
application of s. 23(1 )(a) of the Act. The Punjab High Court, the Mysore High
Court and the Bombay High Court' were of the opinion that the petitioner in
divorce proceedings cannot take the advantage of his or her own wrong for the
purpose of this relief by non-compliance with the decree of restitution of
conjugal rights.
But the FuIl Bench of the Delhi High
Court2 is of the opinion that non-compliance with the decree for restitution of
conjugal rights by the husband would not constitute 'wrong' within the meaning
of s. 23(1)(a) of the Act. A reconciliation between these two sets of
conflicting decisions has been suggested in an article3 that the equation of the
judgment-debtor and the decree-holder for making a petition under this provision
has no bearing on the conduct of either party after the decree is passed. But
the court in divorce proceedings may consider the condiJct of the parties not
considered in the proceedings leading to the decree. It is submitted that the
plain wordings of s. 13(1A) have made no distinction between the parties to the
marriage and hence any contrary holding would impute super added idea in the
intention of the Legislature making the amendment for insertion of sub-sec. (1A)
of s. 13 of the Act. Further, where the language is plain and simple without any
ambiguity, s. 13(1)(a) should not restrict and control the application of s.
13(1A) of the Act. In a case where a consent decree for restitution of conjugal
rights was passed, it would form the basis for divorce for non-compliance. It is
to be noted that if a decree for restitution of conjugal rights is complied
with, there is no scope for a petition of divorce.
AIl the controversies on this issue have come to rest on the decision of
Saroj Rani v Sudarshan Kumar, where it has been
held that after a decree for restitution of conjugal rights the husband is
entitled for a decree of divorce under s. 13 of the Act and his failure to
resume cohabitation would not amount to "wrong" within the meaning of s. 23(1
)(a) of the Act. But where the husband has obtained a decree for restitution of
conjugal rights, only for the purpose of seeking a divorce under s. 13(1 A)(ii)
of the Act and preventing the wife from performing her conjugal duties by
driving her away from the house, this constituted misconduct under s. 23(1)(a)
of the Act as the husband was taking advantage of his own wrong and hence he was
not entitled to any relief under s. 13(1A) of the Act.6a
The expression "the passing of a decree" would mean "the passing of a
judgment".
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Delhi -
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