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Judicial Remedies, Divorce And Its Theories Under family Law

I promise to take care of him/her…in sickness and in health…and until death do us apart
The above is an oft quoted line when it comes to love and especially marriage. These are promises made by the parties to a marriage at the time of marriage. Marriage is seen as an institution of people coming together under the promise of spending a life time with each other, or at least this was the case till recent times.

The Catholics and the Hindus were under the firm faith that a marriage was a permanent union of man and woman and not even death itself could separate them, for they would be joined once again in the next life. But these are beliefs of the yester years, when family was at the core of social life.

Judicial Remedies

Restitution of Conjugal Rights (Sec. 9 of the Act):

As a legal consequence of marriage, the spouses one entitled to mutual consortium company. When one spouse deserts the other without legal justification, the deserted spouse can see for Restitution of Conjugal rights. Thus a remedy is provided by the matrimonial law for presentation of marriage relationship. Hindu texts did not provide this remedy, but British courts have been granting the remedy to deserted spouses. Sec. 9 of the Act provides this remedy.

For seeking this remedy:
  1. There should be a subsisting lawful marriage between the parties.
  2. One party should have deserted the other, (withdrawn from the society of the other without remarkable causes.)
  3. Petition should be filed by the deserted party.

The court grants this remedy:
  1. If it is satisfied of the truth of the statements in the petition.
  2. If there is no legal ground for refusing the remedy.
The order of Restitution of Conjugal Rights directs the deserting spouse to resume cohabitation with deserted spouse.

However there is no effective machinery for enforcing the order of the court. If the deserting spouse violates the order of the court, Cr. P.C. provides for attachment and sale of his her property.

The decree holder is entitled to compensation out of the sale proceeds. Therefore this remedy is criticized as physically undesirable and morally unwanted. Anyhow violation of the order of the restitution of conjugal rights entitles the petitioner to claim maintenance. Besides failure to resume cohabitation within one year after the decree for restitution of conjugal rights, is a ground for divorce under Section 13.

Defences: The defences to the petition for the remedy are:

  1. Reasonable excuse for desertion.
  2. Any just cause.
  3. That the petition is not sincere and that he does not desire bonafide resumption of cohabitation.

The reasonable excuse implies any cause fit and property in the opinion of the count for denying the remedy. When the relations of parties are so strained that further peaceful cohabitation is impossible, their remedy is not granted by the court.

Almost all grounds for judicial separation and divorce under the Act can be raised as defences to the petition for this remedy.

Judicial Separation (Sec. 10):

Judicial separation is a halfway house between marital status and complete dissolution of marriage. Judicial separation does not put an end to the matrimonial relationship. It effects a physical separation between the spouses in their own interests and it is a stepping stone to the remedy of divorce. At any time there may be reconciliation and the parties may rescind the decree of judicial separation and resume cohabitation. Even under early law the husband was permitted to keep apart and ensuring wife and to maintain her.

After the Amendment in 1976, all the grounds available for the remedy of Divorce. Under Sec. 13 are grounds for Judicial Separation. Either party to marriage may file the petition for Judicial Separation After the passing of the decree the parties are not under legal obligation to cohabit, with each other. However at any time either party may file petition for residing the decree.

Divorce (Sec.13)

Hindu Marriage was a sacrament and a divine union. Hence the Hindu believed that it is not to be dissolved. The Hindu Marriage Act provides the remedy of divorce in Secs. 13.
Either party to the marriage cane file a petition for divorce in the following grounds:

Section 13 (1):

  1. Respondent has voluntary sexual intercourse with another person after the marriage.
  2. The Respondent has treated the petitioner with cruelty, after the marriage.
  3. The respondent has deserted the petitioner for a continuous period of not less than 2 years prior to the petition.
  4. The respondent has become a convert to a non-Hindu religion
  5. The respondent has been:
    1. incurable of unsound mind
    2. or suffering continuously or intermittently from mental disorder rendering cohabitation difficult.
  6. The respondent has been suffering from a virulent and incurable form of leprosy.
  7. The responded has been suffering from venereal disease in a communicable form.
  8. The respondent has renounced the world by entering any religious order.
  9. The respondent is not held off for 7 years or more by these persons who would naturally have heard of him or her.
  10. If there is no resumption of cohabitation between the parties of one year, after the passing of the decree for judicial separation.
  11. If there is no restitution of conjugal rights between the parties for a period of one year, after the passing of the decree for Restitution of conjugal rights.

Section 13 (2): The wife alone may file a petition for divorce on the following grounds.

  1. If the husband marries again after the commencement of the Act, or of any other wife of the husband married before the Act was alive at the time of petitioner's marriage and the other wife is alive at the time of filing the petition.
  2. If the husband in guilty of rape, sodomy or bestiality, after the solemnization of marriages.
  3. If there is no cohabitation between the parties for one year or more after a decree is passed for maintenance to the wife, under Hindu Adoptions and Maintenance Act a under Cr. PC.
  4. If the marriage was solemnized before 15 years of age. If she repudiated the marriage after attaining 15 years and before reaching 18 years.

Sec. 13 A (1976 Amendment): This section provides an alternate relief in divorce proceedings. On a petition for divorce the court may grant an alternate remedy of judicial separation.

The petition must have been filed on any of the grounds in Sec. 13, except the following grounds:
  1. Conversion of the respondent to non-Hindu religion.
  2. The respondent's renunciation of worldly life.
  3. The respondent not being heard of for seven years.

(Sec. 13 B): Provides the remedy of divorce by mutual consent. Both parties to the marriage may present a petition together to the District Court for the remedy of divorce by mutual consent.
  1. If they have lived separately for a period of one year or more.
  2. If they are not able to live together.
  3. If they have mutually agreed to have the marriage dissolved. Within 18 months and after 6 months from the date of the petition under this section, the parties must make a motion. On the motion, the court hears the petition, makes enquiry and grants the decree of divorce by mutual consent.
Time Limit: No petition for divorce can be presented within one year of marriage. However the parties may obtain permission from the court premature applications for divorce.
  1. If there is exceptional hardship to the petitioner.
  2. Or, if there is exceptional depravity on the party of the respondent.
If such permission is obtained through misrepresentation or concealment of the nature of the case, the court (1) may either dismiss the divorce petition, or (2) shall pass a decree on condition that the divorce shall take effect only after one year.

In granting permission for premature petitions for divorce, the court considers interests of the children of marriage and the possibilities of reconciliation between the parties.
Divorced persons can remarry (1) after one year from the date of the decree (2) or from the confirmation of the decree by the Appellate Court, before the Amendment 1976.

Divorce and theories of Divorce

There are different theories according to which a married couple can give divorce. These theories are the reasoning given behind the separation or ending the marriage. These can be categorized under the following points:

Divorce at will

This theory of divorce was prominent in the Muslim law. According to this theory a person can divorce the spouse whenever they want to. The best example that can be given is of the practice that has been recently criminalized by our government, talaaq-e-biddat.

In this practice the husband has to say the urdu word, talaaq, thrice and the marriage is ended. This practice was misused by the husbands and hence is criminalized.

Frustration of marriage

This theory states the various reasons because of which the marriage can be ended at the will of one party. It is different from Divorce at will as here the party has to prove one of the grounds which are stated below and has to contest a case in the court.

These grounds are stated under section 13 of the Hindu Marriage Act.

Section 13(1) (iii)

Has been incurably of unsound mind, or has been suffering continuously or intermittently suffering from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

Explanation: In this clause:
  1. 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.
  2. 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.
  3. Has been suffering from venereal disease in a communicable form.
  4. Has renounced the world by entering any religious order.
  5. 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;
Explanation: In this sub-section, 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 wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.
If the party is able to prove any one of the ground towards the other party, then they can end the marriage under the theory of frustration of marriage.

Fault/ guilt theory

This theory includes divorce because of matrimonial offenses. For example adultery, bigamy, violence etc.
These theory includes section 13(1) (i), 13(1) (ia), 13(1) (ib), 13(2) of the Hindu Marriage Act.


  1. Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party.
    1. Has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse.
      1. Has, after the solemnization of the marriage, treated the petitioner with cruelty.
      2. Has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition.
    2. Has ceased to be a Hindu by conversion to another religion.

Section 13(2)

A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground:
  1. In the case of any marriage solemnized before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner.
    Provided that in either case the other wife is alive at the time of the presentation of the petition.

  2. That the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality.

  3. That in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) or under the corresponding section 488 of the Code of Criminal Procedure, 1898 (5 of 1898), a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards.

  4. That her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.

Mutual Consent Theory

According to this theory, both the husband and the wife want to get separated by mutual consent as they believe that they cannot be together in a marriage.
This theory is included under section 13(b) of the Hindu Marriage Act.

13B Divorce by mutual consent

  1. Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

  2. On the motion of both the parties made no earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.
    1. The period of 6 to 18 months provided in section 13B is a period of interregnum which is intended to give time and opportunity to the parties to reflect on their move. In this transitional period the parties or either of them may have second thoughts (Suman v. Surendra Kumar, AIR 2003 Raj 155).

    2. The period of living separately for one year must be immediately preceding the presentation of petition. The expression ‘living separately' connotes not living like husband and wife. It has no reference to the place of living. The parties may live under the same roof and yet they may not be living as husband and wife. The parties should have no desire to perform marital obligations (Sureshta Devi v. Om Prakash, AIR 1992 SC 1904).

    3. The period of six to eighteen months time is given in divorce by mutual consent as to give time and opportunity to the parties to reflect on their move and seek advice from relations and friends. Mutual consent should continue till the divorce decree is passed. The court should be satisfied about the bona fides and consent of the parties. If there is no consent at the time of enquiry the court gets a jurisdiction to make a decree for divorce.

      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. There can be unilateral withdrawal of consent. Held, that since consent of the wife was obtained by fraud and wife was not willing to consent, there could be unilateral withdrawal, of consent (Sureshta Devi v. Om Prakash, AIR 1992 SC 1904).

Irretrievable breakdown of marriage

It is a proposed bill and is somewhat similar to Divorce at will. When a divorce petition is filed the judge asks the question why the couple wants to get separated. There is not always a condition that there is a case of the above mentioned theories, there can also be cases that the marriage is already dead but the partners are not mutually consenting for divorce.

It can be because of any reason, may be financial security or because of the children born out of the wedlock. This theory can be applied to such cases where the partner has not done anything which comes under the above theories and one party wants divorce and the other doesn't. If this bill is passed it would do more harm than good. (Yousuf v. Sowrama AIR 1971, Kerala, 261)

Judgement: The judge in this case stated that while there is no rose which has no thorns but if what you hold is all thorns and no rose, better throw it away. Where the ground of divorce is not conjugal guilt but breakdown of marriage.

71st report of law commission recommended that it should be made a ground of divorce. It suggested a period of 3 years of separation as criteria of breakdown.

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