Theories of Divorce

There are various theories of divorce such as fault theory, on the basis of which most of the grounds
of judicial separation and divorce are formulated in section 13(1) of the Hindu Marriage
Amendment Act, 1976. There are also modern theories of divorce such as Mutual Consent on the
basis of which a new ground of divorce; divorce by mutual consent has been incorporated. Yet
there is one more theory called Irretrievable breakdown theory which is reflected in some grounds
such as failure to resume cohabitation within one year getting the degree of restitution of conjugal
rights and failure to resume cohabitation within one year after getting the degree of judicial
separation. These two grounds are stated in section 13(1) (a) and section 13(1) (b) of the Marriage
Law Amendment Act, 1976. These are discussed below in detail.

Offence or Guilt Theory of Divorce

The guilt or offence theory of divorce is essentially a 19th century concept where the society
abhorred divorce as an evil, as devil ‘s mischief, and therefore that society could agree for divorce
only on that basis that one of the parties has committed some sin, some very heinous offence
against marriage. As a corollary to the guilt of one party, the other party was required to be totally
innocent.

According to this theory, if a party commits a matrimonial offence the aggrieved party may seek
divorce form the delinquent spouse. It is only the matrimonial offence which is a ground of divorce.
No criminal offence, howsoever heinous, is a ground for divorce. Traditionally, adultery, desertion
and cruelty are considered as matrimonial offences. But this should be treated only as an illustrative
list. Rapes, sodomy, bestiality, refusal to obey the order of a court to pay maintenance to the wife,
marring an underage person, are also examples of matrimonial offences. If the respondent is not
guilty of any of these offences, divorce cannot be granted against him even if he has committed
the offence of murder, dacoity, cheating, theft, treason, smuggling, black marketing or bribery etc.
hence what matters for divorce is the person injury to the marital relations of the other spouse and
not the injury dine to any other person(s) in the society. A fault divorce is usually chosen by a
spouse who wishes to be vindicated by proving the other's fault. In some states, the spouse who
proves the other's fault may receive a greater share of the marital property or more alimony.

The offence theory stipulates for two things:

1
(i) a guilty party, i.e., the party who has committed one of the specified matrimonial offences, and

(ii) an innocent party, who has been outraged and who has played no role in the criminality or the
matrimonial offence of the other party.

If the purpose of the divorce law was the punishment of the guilty party, then it was natural to lay
down that the other party should have no complicity in the guilt of the offending party. If the
petitioner‘s hands are not clean, he cannot seek relief. It is a different matter that the English courts
took this principle to its logical end. This dichotomy of matrimonial offence and innocence led not
merely to the evolution of matrimonial offences but also to the matrimonial bars. Such are the
notions of matrimonial offence and matrimonial innocence that the burden of proof of both is on
the party who seeks relief. English law classified these bars to matrimonial relief into discretionary
bars and absolute bars. The existence of the absolute bar was fatal to the matrimonial petition,
while in the case of discretionary bars, the court had discretion and it might exercise in favour of
the petitioner, or it might refuse to do so. Under Indian law all bars are absolute bars.

The guilt theory, on the one hand, implies, a guilty party, i.e., commission of matrimonial offence
on the part of one of the parties to the marriage, and, on the other hand, it implies that the other
party is innocent, i.e., in no way a party to, or responsible for, the offence of the guilty party. This
principle was taken very far in English law; so much so that if both the parties, independently of
each other, committed matrimonial offence the marriage could not be dissolved. For instance, if a
petition is presented on the ground of respondent ‘s adultery and it is established that the petitioner
is also guilty of adultery, then the petitioner cannot be allowed divorce. This is known as the
doctrine of recrimination.

Since the guilt theory requires that the petitioner should be innocent, the English law evolved the
doctrine of matrimonial bars, discretionary bars and absolute bars. This means that even if a
petitioner is able to establish a ground of divorce to the satisfaction of the court, he may not get
divorce if one of the matrimonial bars1 is proved against him. In Darshan Gupta v. Radhika Gupta
2
Court held that the petitioner must approach court with clean hands. Grounds of
divorce under S. 13(1) are based on matrimonial offence or fault theory. It is only commission of
matrimonial offence by one spouse that entitles the other spouse to seek divorce. Here the

1
Section 23, the Hindu Marriage Act, 1955.
2
AIR 2013 SC 383.

2
petitioner himself/herself is guilty or at fault, he/she would be disentitled to seek divorce. Here
the husband had come to court for divorce on the grounds/facts of unsoundness of
mind of the cognitive fact of the Radhika Gupta after two failed deliveries (first one did
not survive and the second one did not survive even after caesarean. She had lost her memory
and had become like child of 5 years. On which divorce is sought by the appellant. But the court
held that these grounds are not at all available to him under the "fault theory" on which S. 13(1) of
the Hindu Marriage Act, 1955, is founded. In case the ground for seeking matrimonial relief
(divorce or judicial separation) is adultery, the petitioner must show that he is in no way
accessory to the respondent ‘s adultery, and that he did not connive at the adultery of the respondent

This type of divorce can be based in any of the following:

• cruelty3, which includes the infliction of unnecessary emotional or physical pain and
abusive treatment
• adultery4 means voluntary sexual activity between a married person with a person other
than his or her spouse
• desertion5 for a specified length of time
• insanity6
• leprosy7
• conversion8
• infecting the other spouse with a sexually transmitted disease 9

3
Section 13 (1) (ia), the Hindu Marriage Act, 1955.
4
Section 13 (1) (i), the Hindu Marriage Act, 1955.

5
Section 13 (1) (ib), the Hindu Marriage Act, 1955.

6
Section 13 (1) (iii), the Hindu Marriage Act, 1955.

7
The Marriage Laws (Amendment) Act.
8
Section 13 (1) (ii), the Hindu Marriage Act, 1955.

9
Section 13 (1) (v), the Hindu Marriage Act, 1955.

3
 • renunciation of world10
• presumption of death11

Consent Theory of Divorce

According to this theory, if the husband and wife agree to part for good, they should be permitted
to get their marriage dissolved. It is they who have to live with their marriage. If for any reason
they cannot do so they must not be compelled. Compulsive cohabitation may give birth to
matrimonial delinquencies which give rise to grounds for divorce.

Divorce by mutual consent mean that the case is not like usual ones in which one party petition
against the other for divorce and the other party resist the same. It means that both the party makes
a joint petition to the court for divorce between them. There may be a genuine desire on the part
of both to get rid of each other. When a party to marriage wants divorce, it is not necessary in the
nature of things that the other party must oppose it. The other party may be equally or rather more
willing for it. They may be sensible enough to part for good amicably. 12

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.

10
Section 13 (1) (vi), the Hindu Marriage Act, 1955.

11
Section 13 (1) (vii), the Hindu Marriage Act, 1955.

12
Syal v. Syal, AIR 1968 P&H 439.

4
(2) On the motion of both the parties made not earlier than six months after the date of the
presentation of the petition referred to in sub-section (1) and not later than eighteen months after
the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied,
after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been
solemnized and that the averments in the petition are true, pass a decree of divorce declaring the
marriage to be dissolved with effect from the date of the decree.]

(i) 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; 13

(ii) 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; 14

(iii) 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 no 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;15

Irretrievable breakdown of marriage Theory of Divorce

13
Suman v. Surendra Kumar, AIR 2003 Raj 155.
14
Sureshta Devi v. Om Prakash, AIR 1992 SC 1904.

15
Sureshta Devi v. Om Prakash, AIR 1992 SC 1904.

5
The most controversial theory of Divorce is the Breakdown theory in the legal jurisprudence based
on the principle that marriage is a union of two persons based on love, affection & respect for each
other. If any, out of love, respect and affection is hampered due to any of the reasons like cruelty,
desertion, adultery, insanity etc & if the matrimonial relation between the spouses reaches to such
a situation from where it becomes totally irreparable, or it comes to a point where neither of the
spouse can live peacefully, happily and with each other & acquire the benefit of a matrimonial
relations, then it is better to end the marriage as for now there is no reason and point of stretching
such a numb relationship which exist only in name & not in actual form. It is now beyond the hope
of salvage. It is therefore an irretrievable breakdown of marriage.

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.

In a landmark judgment, the Supreme Court held that situations causing misery should not be
allowed to continue indefinitely, and that the dissolution of a marriage that could not be salvaged
was in the interests of all concerned. In Naveen Kohli v. Neelu Kohli,16 the parties were married in
1975 and after a few years, the marriage turned sour. There were allegations of cruelty, adultery
and other types of misbehaviour from both the parties against each other. Wife initiated several
civil and criminal proceedings against husband indicating her resolve to make his life miserable.
Husband also initiated some legal proceedings and was living separately from the wife for more
than ten years. Thus, it was evident from the facts of the case that the marriage has been wrecked
beyond redemption. The trial court stated that though both the parties have leveled allegations of
character assassination against each other, they failed to prove the same. According to the court,
the allegations were of such serious nature that there was no cordiality left between the parties and
no possibility to reconnect the chain of marital life between them. Hence, it found that there was
no alternative but to dissolve the marriage between the parties. The high court took the stand that
the trial court erred in granting a divorce to the husband without properly appreciating the
evaluating the evidence on record. In appeal, the Supreme Court while analyzing the concept of
irretrievable break down of marriage discussed other issues also like physical and mental cruelty
in matrimonial matters. The court came to the conclusion that where there has been a long period

16
AIR 2006 SC 1675.

6
of continuous separation, it may fairly be surmised that the matrimonial bond is beyond repair.
When the marriage becomes a fiction, the legal tie has to be severed.

Irretrievable Breakdown of Marriage-another Ground for Divorce is taken up by the 217th report
of Law Commission of India, viewed that it shall be inserted under Hindu Marriage Act, 1955.
The report suggested that it is the need for the society that the marriages which are broken down
irretrievably or if seem to be beyond repair to the court, then it should be mandatory for the court
to dissolve such marriage on the basis Irretrievable Breakdown of marriage. The report says that
whenever a question arises as to adding the irretrievable Breakdown of Marriage as a ground of
Divorce under Hindu Law the opponents argue that the inclusion of “Divorce by Mutual Consent”
covers the situation well than what is the need to add one more Ground. But it is of the foremost
consideration that for filing the petition under, “Divorce by Mutual Consent” the consent of both
the parties is required. And if one of the parties denies cooperating, the said ground is not available.
On the other hand, the “Irretrievable Breakdown of Marriage”, is a ground on which the court can
rely and if on the facts of the case, the court concludes that, the marriage in question is beyond
repair, the court can dissolve the marriage. The divorce here would not be granted on the will of
the parties but on the basis of the court coming to the conclusion, on the facts pleaded, that the
marriage in question has been irretrievably broken down. As the Supreme Court while invoking
its inherent powers to do ‘complete justice’, has granted a decree of Divorce to a district judge of
West Bengal who was married to a District Judge as they were living separately for the past 17
years. Referring to the case the Supreme Court said, “There is no likelihood of the appellant and
the Respondent living together and for all practical purposes there is irretrievable breakdown of
marriage”17

Irretrievable Breakdown of Marriage as a basis of divorce is recognized under Hindu Marriage

Act, The Parsi Marriage Act and divorce act and the special marriage act. It has been judicially
legislated upon in Muslim law also. No other personal law recognizes it. 18

In Shyam Sundar Kohli v. Sushma Kohli Alias Satya Devi, 19 the Hon’ble Supreme Court held that
the mere irretrievable breakdown of marriage cannot be considered as a ground for divorce.

17
Samar Ghosh v Jaya Ghosh, (2007) 4 SCC 511.
18
Meera Bai v. Rajendra Kumar Sabti, AIR 1986 del.136.
19
(2004) 7 SCC 747.

7
Cruelty as a ground of divorce under Hindu law.

When it was first passed, the Hindu Marriage Act did not have ‘cruelty’ as a ground for divorce.
It was after an amendment in 1976 that this basis became available for seeking both divorce and
judicial separation. Section 13 of the Act deals with divorce. As enacted originally it did not have
cruelty as one of the grounds for seeking divorce. The Legislature of Uttar Pradesh wished to
include cruelty also as a ground for divorce and with that view in mind by its Act No.13 of 1962,
Section 13 of the Hindu Marriage Act was amended to Include cruelty as a ground for divorce.

The amendment was to the effect that in sub-section (1) of Section 13, after clause (a), clause (i-
a) was inserted as under:

"(i-a)- has persistently or repeatedly treated the petitioner with such cruelty as to cause 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"

This ground was almost similar to the ground of cruelty under Section 10(1) (b) for judicial
separation but one distinction was made and that was that the words "persistently or repeatedly"
were added. By this addition cruelty as a ground for divorce was made stricter than what it was for
judicial separation. It appears that except Uttar Pradesh, no other State made any amendment In
Section 13 of the Hindu Marriage Act so as to have cruelty as a ground for divorce. It was only in
the year 1976 that the Parliament by its Marriage Laws (Amendment) Act amended Section 13 of
the Hindu Marriage Act, to make cruelty also a ground for divorce. This amendment extended to
the whole of India except the State of Jammu and Kashmir.

While Parliament did insert the term ‘cruelty’ in the Act, it did not supply an exhaustive definition.
As a result, the term has since been understood according to its interpretation by the judiciary over
the years – during which time the courts have evolved grounds for providing relief in cases of both
physical and mental cruelty.

Definition of Cruelty: - Cruelty has not been universally defined till now. It depends upon the
circumstances of the case and the country and time. Russel v. Russel,20 Cruelty has been described

20
(1897) AC 305.

8
as such characterial behaviour or conduct which may put life and body under physical or mental
form of danger or may arise apprehension of such danger.

In another case it has been held by the Supreme Court that since “cruelty is being used in relation
to human conduct or human behavior, it is all the more difficult to define it. It is the conduct in
relation to or in respect of matrimonial duties and obligations. It is a course of conduct of one
which is adversely affecting the other.’’ 21

It has not been defined anywhere because it has been noticed that human nature and conduct are
different. It is likely to happen that what we consider cruelty today may not have been considered
earlier or may not be taken as such in future. It has been aptly remarked by the Supreme Court in
Ravi Kumar v. Julmi Devi,22 that cruelty has no definition and its definition is not possible. As in
matrimonial cases it can be of infinite variety. In other words the concept of cruelty is very
subjective. It may vary with place, time, social and economic conditions of society and persons.
This is the reason that legislature has not defined cruelty in any of the statutes and has left it to the
judgment of the judiciary to define according to the particular conditions and circumstances of
particular persons.

The Indian judiciary is in the starting stage of developing a steady position on cruelty as a ground
for divorce. The courts adopt smooth ways while dealing with the issue of cruelty. At the same
time, it is crucial to understand the judicial approach to deciding whether the factual matrix merits
a decree of judicial separation or divorce. The evolution of cruelty as a ground for divorce
encompasses its varying definitions and prerequisites of proof of reasonable apprehension. 23

In Narendra v. K. Meena,24 the Supreme Court said that, “A Hindu son can divorce his wife for
the cruelty of trying to pry him away from his “pious obligation” to live with his aged parents and
provide shelter to them”.

Pankaj Mahajan v. Dimple @ Kajal,25 it was held that, “giving repeated threats to commit suicide
amounts to cruelty”.

21
See-Shobha Rani v. Madhukar Reddi (1988) 1 S.C.C. 105.
22
(2010) I DMC 411 SC.
23
Ananya Khanna, “Case Analysis of Manisha Tyagi v Capt. Deepak Kumar”, available at https://www.
lawctopus.com/academike/case-analysis-of-manisha-tyagi-v-capt-deepakkumar.
24
2016 SCC Online SC 1114.
25
(2011) 12 SCC 1.

9
TYPES OF CRUELTY:

There are legally two types of cruelty:

(i) Physical cruelty and

(ii) Mental cruelty.

Both mental and physical cruelties are included as cruelty in modern times. While physical cruelty
is easy to determine, it is difficult to say what mental cruelty consists of. Perhaps, mental cruelty
is lack of such conjugal kindness, which inflicts pain of such a degree and duration that it adversely
affects the health, mental or bodily, of the spouse on whom it is inflicted.

1. Physical Cruelty -All the acts of violence against another spouse resulting in injury to
body, limb or health or causing a reasonable apprehension thereto, have been traditionally
considered as physical cruelty 26. Thus, where bodily injury is inflicted, it is easy to
conclude that cruelty has taken place. The Courts do not find any difficulty in determining
physical cruelty.

In Chander Kanta v. Dial Chand,27 the husband dragged his wife forcibly to accompany him.
Thus, it is a case coming under physical cruelty.

In Savitri Pandey v. Prem Chandra Pandey,28 the court while observing the question regarding
cruelty said that, “Treating the petitioner with cruelty is a ground for divorce under Section
13(1)(ia) of the Act. Cruelty has not been defined under the Act but in relation to matrimonial
matters, it is contemplated as a conduct of such type which endangers the living of the
petitioner with the respondent. Cruelty consists of acts which are dangerous to life, limb or
health. Cruelty for the purpose of the Act means where one spouse has so treated the other and
manifested such feelings towards her or him as to have inflicted bodily injury, or to have caused
reasonable apprehension of bodily injury, suffering or to have injured health. Cruelty may be
physical or mental. Mental cruelty is the conduct of other spouse which causes mental suffering
or fear to the matrimonial life of the other. "Cruelty", therefore, postulates a treatment of the
petitioner with such cruelty as to cause a reasonable apprehension in his or her mind that it

26
Russel v. Russel (1897) AC 305.
27
1968 Cur LJ 442.
28
(2002) 2 SCC 73.

10
 would be harmful or injurious for the petitioner to live with the other party. Cruelty, however,
has to be distinguished from the ordinary wear and tear of family life. It cannot be decided on
the basis of the sensitivity of the petitioner and has to be adjudged on the basis of the course
of conduct which would, in general, be dangerous for a spouse to live with the other."

2. Mental cruelty-Under clause 13(1)(a) of Hindu marriage Act,1955, only cruelty has been
mentioned and it is not specified whether it is mental or physical cruelty. The courts have
interpreted it in a broader prospective and said that it includes both physical as well as
mental cruelty. It is not possible to define mental cruelty exhaustively. Prior to the
amendment, the Supreme Court examined this concept in the landmark case named
Dastane v. Dastane29. In that case, the court held that the wife threatening she would end
her life, and verbally abusing the husband and his father, among other acts, amounted to
mental cruelty, and granted divorce to the husband.

Justice YV Chandrachud had then observed, “The inquiry therefore has to be whether the conduct
charged as cruelty is of such a character as to cause in the mind of the petitioner a reasonable
apprehension that it will be harmful or injurious for him to live with the respondent. It is not
necessary, as under the English law, that the cruelty must be of such a character as to cause
“danger” to life, limb or health or as to give rise to a reasonable apprehension of such a danger.”

After the amendment, the courts were flooded with applications of divorce on the grounds of
mental cruelty and the courts were to do the tedious task of defining cruelty.

Broja Kishore Ghosh v. Smt. Krishna Ghosh,30 In this case honorable Calcutta High court in Para
10 says:” What act would constitute mental cruelty depend upon the circumstances of each case,
e.g. environment, status in society, education, cultural development, local customs, social
condition, physical and mental conditions of the parties. Each case depends upon a variety of facts
and circumstances.”

29
AIR 1975 SC 1534.
30
A.I.R.1989 Calcutta 327.

11
The Supreme Court has given new angle to the concept of mental cruelty in matrimonial matters.
In Smt. Chanderkala Trivedi v. Dr. S.P. Trivedi,31 Justice A.M. Sahai, speaking for the Bench
observed, "Whether the allegation of the husband that she was in the habit of associating with
young boys and the findings recorded by the three courts are correct or not but what is certain is
that once such allegations are made by the husband against wife as have been made in this case,
then it is obvious that the marriage of the two cannot in any circumstance be continued any further.
The marriage appears to be practically dead."

In V. Bhagat v. D. Bhagat,32 it was observed that mental cruelty in Section 13(1)(ia) can broadly
be defined as that conduct which inflicts upon the other party such mental pain and suffering would
make it not possible for that party to live with the other. 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 such conduct and continue to live 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.

In Jayachandra v. Aneel Kaur,33 the Supreme Court had again reiterated cruelty by observing that
“…. legal cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind
of the complainant spouse because of the acts or omissions of the other.” In the case of
Jayachandra(supra), the Supreme Court had observed that the cruelty should be “grave and
weighty” and that too of such a nature that “the petitioner spouse cannot be reasonably expected
to live with the other spouse”. The Court had further observed that “…It must be something more
serious than “ordinary wear and tear of married life” and “.. The conduct, taking into consideration
the circumstances and background has to be examined to reach the conclusion whether the conduct
complained of amounts to cruelty in the matrimonial law.”

The aforesaid principles were highlighted by the Supreme Court yet again in the case of Naveen
Kohli v. Neelu Kohli.34

31
JT 1993 (4) SC 644.
32
1994 1SCC 337.
33
AIR 2005 SC 534.
34
AIR 2006 SC 1675.

12
The Supreme Court in Samar Ghosh v. Jaya Ghosh,35 tried to enumerate instances that constituted
mental cruelty. These instances were only illustrated and not exhaustive. They said:

“(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and
suffering as would not make possible for the parties to live with each other could come within the
broad parameters of mental cruelty.

(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly
clear that situation is such that the wronged party cannot reasonably be asked to put up with such
conduct and continue to live with other party.

(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language,
petulance of manner, indifference and neglect may reach such a degree that it makes the married
life for the other spouse absolutely intolerable.

(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in
one spouse caused by the conduct of other for a long time may lead to mental cruelty.

(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or
render miserable life of the spouse.

(vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and
mental health of the other spouse. The treatment complained of and the resultant danger or
apprehension must be very grave, substantial and weighty.

(vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the
normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure
can also amount to mental cruelty.

(viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes
unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on
the ground of mental cruelty.

(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in
day to day life would not be adequate for grant of divorce on the ground of mental cruelty.

35
2007(4) SCC 511.

13
(x) The married life should be reviewed as a whole and a few isolated instances over a period of
years will not amount to cruelty. The ill-conduct must be persistent for a fairly lengthy period,
where the relationship has deteriorated to an extent that because of the acts and behaviour of a
spouse, the wronged party finds it extremely difficult to live with the other party any longer, may
amount to mental cruelty.

(xi) If a husband submits himself for an operation of sterilization without medical reasons and
without the consent or knowledge of his wife and similarly if the wife undergoes vasectomy or
abortion without medical reason or without the consent or knowledge of her husband, such an act
of the spouse may lead to mental cruelty.

(xii) Unilateral decision of refusal to have intercourse for considerable period without there being
any physical incapacity or valid reason may amount to mental cruelty.

(xiii) Unilateral decision of either husband or wife after marriage not to have child from the
marriage may amount to cruelty.

(xiv) Where there has been a long period of continuous separation, it may fairly be concluded 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, does not serve the sanctity of marriage;
on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like
situations, it may lead to mental cruelty”. 36

The Supreme Court, in a series of judgments has explained what is meant by cruelty as envisaged
under the Act. The Hon’ble Apex Court, In Praveen Mehta v. Indrajeet Mehta37, it was held as
under: —

“Cruelty for the purpose of Section 13(1)(ia) is to be taken as a behavior by one spouse towards
the other which causes reasonable apprehension in the mind of the latter that it is not safe for him
or her to continue the matrimonial relationship with the other. Mental cruelty is a state of mind
and feeling with one of the spouses due to the behavior or behavioral pattern by the other. Unlike
the case of physical cruelty, the mental cruelty is difficult to establish by direct evidence. It is
necessarily a matter of inference to be drawn from the facts and circumstances of the case. A

36
Ibid.
37
(2002) 5 SCC 706.

14
feeling of anguish, disappointment and frustration in one spouse caused by the conduct of the other
can only be appreciated on assessing the attending facts and circumstances in which the two
partners of matrimonial life have been living. The inference has to be drawn from the attending
facts and circumstances taken cumulatively. In case of mental cruelty, it will not be a correct
approach to take an instance of misbehavior in isolation and then pose the question whether such
behavior is sufficient by itself to cause mental cruelty. The approach should be to take the
cumulative effect of the facts and circumstances emerging from the evidence on record and then
draw a fair inference whether the petitioner in the divorce petition has been subjected to mental
cruelty due to conduct of the other.”

Following are some conducts which have been held to constitute mental cruelty. Demand for
dowry by the husband and his family is mental cruelty. Wife abusing her husband and using foul
language is mental cruelty. Not visiting husband who was seriously ill constituted mental cruelty.
Abstaining from making any sexual relation without any probable cause constitutes cruelty.

Malthi Ravi M.D. v. b.v. Ravi M.D.38 The Supreme Court ruled that a wife not inviting her husband
to the naming ceremony of their son amounts to mental cruelty on the husband.

A Bench of Justices S.J. Mukhopadhaya and Dipak Misra ruled that “mental cruelty and its effect
cannot be stated with arithmetical exactitude... what would be mental cruelty in the life of two
individuals belonging to a particular strata of society may not amount to mental cruelty in respect
of another couple belonging to a different stratum of society... The inference has to be drawn from
the attending circumstances.”

In this case the evidences produced through records indicated that there were instances of mental
cruelty and hence the Hon’ble Supreme Court granted the decree of divorce.

Cruelty against Husband.

38
(2014) 7 SCC 640.

15
In the landmark judgement of Mayadevi v. Jagdish Prasad,39 in February 2007, the Supreme Court
held that any kind of mental cruelty faced by either of the spouses not just the woman but men as
well can apply for a divorce on grounds of cruelty. In this case, the respondent filed an application
of divorce after a repeated course of cruelty inflicted by his wife and as alleged by the husband
(respondent) that the wife did not provide food to him and his children and blamed the husband
and his family members instead.

Hence, a man is also entitled to divorce if he is inflicted with any kind of cruelty.

In present era women are getting more benefits from law, many judges are prejudiced that women
are vulnerable and they are victims of cruelty. The male on the other hand are helpless in many
matters but the balance must be maintained between the spouses so that no body claims to be
suffered. In Kalpana v. Surendranath,40 it has been observed that where a wife who refuses to
prepare tea for the husband’s friends was declared by the court as cruelty to husband.

In Praveen Mehta v. Indrajeet Mehta41, where it was held that “Mental cruelty cannot be
established by direct evidence and it is necessarily a matter of inference to be drawn from the facts
and circumstances of the case.

In Mrs. Deepalakshmi Saehia Zingade v. Sachi Rameshrao Zingade,42 the petitioner/wife filed a
false case against her husband on the ground of ‘Husband Having Girl Friend’ which is proved as
false in a court of law so it can be considered as cruelty against husband.

Smt. Suman Khanna v. Shri Munnish Khanna,43 in this case the wife was a constant influence of
her parents and she used to leave the matrimonial house time to time and again at the instance of
her parents. She also tried to commit suicide. Instead of serving food to the invited friend of the
husband, she served merely tea and biscuits. In pare 22, Honourable Justice Shri Kailash Gambhir
has held that Parents should not become the uninvited judges of the problems of their daughters.
Further it has been held that in this case, the parents, instead of putting out the fire have fuelled

39
A.I.R. 2007 SC 1426.
40
AIR 1985 All 253.
41
(2002) 5 SCC 706.
42
AIR 2010 Bom 16.
43
Delhi High Court: 18\2\2011.

16
and fanned it. All the matters were treated as Cruelty and the Divorce was allowed. The appeal of
the wife was not allowed.

In Smt. Shashi Bala v. Shri Rajiv Arora,44 the Petitioner of the case, the wife, was complaining
from the beginning that the husband, the respondent was not a man of her taste. She did not
response to participate in traditional ceremony of dud-mundri. She also did not take interest in the
dinner after wedding. Even she did not allow her husband to have sexual intercourse at the first
wedding night. She also filed false cases against her husband. All these were treated as Mental
cruelty by the learned Judge of Delhi High Court. Further in Para 12, honourable Justice Shri
Kailash Gambhir has held that Sexual intercourse is a means and an integral one of achieving
oneness in marriage.

In Om Prakash Poddar v. Rina Kumari,45 the respondent, wife, used to taunt on the substandard
life style of the husband and his parents. The utensils, furniture and the accommodations were not
fit for her servants of her parental house. As both the parties lived separately for Five Years, the
honourable Delhi High Court granted the Divorce Petition in favour of the husband.

In a Judgement by the Kerala High Court the court held that Divorce can be granted on the ground
of cruelty if a spouse maintains illicit relationship over phone.

The ruling by a division bench comprising Justices Antony Dominic and P D Rajan came while
considering an appeal against Thalassery family court's order denying divorce to a man on the
ground of cruelty despite proving on the basis of his wife's telephone records that she maintained
an illicit relationship.

Phone records had shown that the wife used to call her childhood 'friend' for long hours during
day and night while the husband was working abroad.

To decide the question whether maintaining such close relationship with another person over
phone amounts to cruelty for granting divorce, the high court relied on a decision by the Supreme
Court in 2004. In A Jayachandra v. Aneel Kaur case,46 the SC had held, "To constitute cruelty, the
conduct complained of should be 'grave and weighty' so as to come to the conclusion that the

44
Delhi High Court: 21\3\2012.

45
Delhi High Court : Dated 23\7\2013.
46
AIR 2005 SC 534.

17
petitioner spouse cannot be reasonably expected to live with the other spouse. It must be something
more serious than 'ordinary wear and tear of married life'." Granting divorce to the husband, the
high court held, "If the evidence in this case is appreciated in the light of the principles laid down
by the apex court, we are satisfied that the evidence clearly indicated that the conduct of the wife
rendered it impossible for the husband to live with her without mental agony, torture, or distress." 47
The wife is an educated lady and she having maintained an illicit relationship cannot avoid the
consequences nor can the husband be expected to suffer on the ground that he has two children,
the court held.

In Malthi Ravi M.D. v. b.v. Ravi M.D.48, The Supreme Court ruled that a wife not inviting her
husband to the naming ceremony of their son amounts to mental cruelty on the husband.

The Uttarakhand High Court has recently held that a wife causing mental cruelty to husband is a
valid ground for dissolution of marriage, as mental cruelty is no less than physical cruelty.

A Division Bench of Justice Ravi Vijaykumar Malimath and Justice Narayan Singh Dhanik, heard
an appeal filed by wife against decree of divorce passed by the lower court in grounds of cruelty
by the wife against her husband. Facts of the case are;

Rajesh Gaur and Anita Gaur who got married on 12th May 1999 according to Hindu customs and
ceremonies and had two children. The husband in June 2014 filed a suit under Section 13 of the
Hindu Marriage Act against the wife seeking a decree of divorce on the ground of cruelty.

According to the husband, about five years ago there was a sudden change in the behaviour of his
wife and several valuable articles, jewellery, cash, etc. started missing from the house. Few years
later, he started receiving telephone calls of people asking him either to return the money else he
would be kidnapped. The husband alleged that his wife confessed that she had borrowed money
on interest @10 percent per month and had purchased ornaments and clothes on credit. After
getting continuous threats he decided to go back to Dehradun with his wife. A Panchayat was then
held in the village where his wife admitted her mistakes in writing.

47
P.V.Prakash v. R.Bindu, Decided on 16 August, 2013.
48
(2014) 7 SCC 640.

18
When the husband moved for divorce, the wife denied the husband’s allegations, said that she was
being harassed by her husband. She filed complaint in the Women Cell and also lodged a case
under Section 494, Indian Penal code, 1860 against him.

After examining the evidence, the court decreed the suit for divorce holding that the reasons stated
for instituting the suit and the acts alleged by the plaintiff against his wife qualified to come under
the category of cruelty.

The Court while dismissing the appeal affirmed the order of the Family Court explaining that the
word “cruelty’ was not defined under the Act and it could be physical or mental. The Court relied
on various judgments of the Supreme Court like in Praveen Mehta v. Inderjit Mehta,49 where it
was held that “Mental cruelty cannot be established by direct evidence and it is necessarily a matter
of inference to be drawn from the facts and circumstances of the case.” In Raj Talreja v. Kavita
Talreja,50 the Court had held that “cruelty can never be defined with exactitude.’ The Court also
stated that the plaintiff-respondent failed to substantiate the allegations which she had made against
the plaintiff-respondent. The Court consequently held that:

“All these acts and conduct, in our considered view, constitute cruelty. Further, as is evident, it
was not a solitary instance of cruelty on the part of the defendant-appellant. The defendant-
appellant indulged in repeated acts of cruelty and misbehavior with her husband.” 51

Bars to Matrimonial relief.

Matrimonial Relief basically deals with the different solutions available to a spouse from another spouse
accordingly. The petitioner may get the relief from the respondent in a proceeding for divorce or Judicial
Separation or Restitution of Conjugal Rights.

The petitioner may get matrimonial relief under section 9 to 13 of Hindu Marriage Act in terms of divorce
or the Nullity of Marriage. But whereas come to the Section 23 of Hindu Marriage Act, it deals with bars
to matrimonial relief. The courts play an important role in the matrimonial relief by giving landmark
judgments to the petitioners. The burden of proof is only on the petitioner.

The bars of matrimonial relief are based on the maxim:

49
(2002) 5 SCC 706.
50
(2017) 14 SCC 194.
51
Anita Gaur v. Rajesh Gaur, 2020 SCC OnLine Utt 503, decided on 24-08-2020].

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“ONE WHO COMES TO EQUITY MUST COME WITH CLEAN HANDS”

There is no excuse to the petitioner by the court to take advantage of his own disability or wrong to the
petitioner. The bars of matrimonial relief are:

1. Doctrine of Strict Proof

2. Taking advantage of once own wrong or disability
3. Accessory
4. Connivance
5. Condonation
6. Collusion
7. Delay
8. Any other legal ground.

The decree passed in disregard of the bars is a nullity

1. Doctrine of Strict Proof: (Burden and standard proof):

There are 3 situations usually arises in matrimonial laws just like in ordinary civil law case proceedings:

• The defendant appears in the court and contests the claims of the plaintiff.
• If the defendant won’t appear before the court even after the service of summons, the court
may decide it as exparte.
• The defendant appears in the court of justice and admit the claims made by the plaintiff.

In first situation the plaintiff has to establish her case by adducing oral and documentary evidence. The case
will be decided accordingly. In second situation the suit decreed on the basis of the admission of the parties.
In third situation the court record the statement of the plaintiff and other evidences. In a matrimonial
proceeding, the petitioner must establish the ground of matrimonial remedies beyond all reasonable doubts
in all the 3 situations.

Case: Dastane v. Dastane,52 A different note was struck by the court. According to the court the untrue
statement of proof not be of beyond all reasonable doubt, guilt may be proved by balance of probabilities.

2. Taking Advantage of once own wrong/ Disability:

52 AIR 1975 SC 1534.

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There is no legal ground why relief should be granted. If petitioner is directly or indirectly responsible for
respondent wrongful act then, the petitioner cannot be granted.

According to section 23 (1)(a) of Hindu Marriage Act, the court bars grant of relief if the petitioner is in
anyway taking advantage of his or her own wrong of disability for the purpose of such relief.

It is based on, “There is no legal ground why relief should be granted” In this if the petitioner is directly or
indirectly responsible for the respondent’s wrongful act then the petition cannot be granted. There must be
relation of the petitioner’s wrong and respondent’s offence and in such condition, respondent cannot be
allowed to plead. Every petition must be sincere and should not be malafide and should not be filed with
some ulterior motive. A husband when he contributed in the adultery and cruelty or any other act cannot
have the right to take divorce or separate judicially. There is need of the relation between the petitioner’s
wrong and the respondent’s offence.

Case: Atma ram v. Narbada,53 Indian Divorce Act lays down that the petitioner cannot get the divorce if
court finds that the petitioner has been during the marriage guilty of cruelty towards the respondent. If the
petitioner willfully separating from her or him without any fault of the other party then the decree of the
divorce is not granted by the court.

3. Accessory:

Under Hindu Marriage Act, Special Marriage Act and Indian Divorce Act, when petition is filed on the
ground of respondent’s adultery accessory may be the trend. Under Parsi Marriage and Divorce Act is
considered as general bar. It is a term of criminal law if a husband promotes people to have intercourse with
his wife or keep a watch while his wife is having sex with another third parson, or fetch his wife’s name
from the place where she had gone to commit adultery, he is an accessory. In India not a single case is
reported on accessory. No single case is yet reported on “accessory”

4. Connivance:
• It is the same as an accessory.
• The difference between two is that, in accessory there is active participation by the
petitioner in the guilt of the respondent while in connivance there is no such participation.

53 AIR 1980 Raj 53.

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 • To constitute connivance, express, or implied consent is necessary. When the petitioner
agrees with the proposal of the respondent to earn money by illicit intercourse, then the
petitioner is guilty of the connivance. It is a bar for matrimonial relief to the offence of
adultery only. In this indirectly husband gives an opportunity or gives consent to his wife.

5. Condonation:
• Condonation is the reinstatement of the partners who have committed a matrimonial
offence with the intention to repeat it in the future of his or her matrimonial position. It is
a consequence of the acts.

Under Hindu Marriage Act, under Sec.23 (1) (b), Special Marriage Act, under Sec. 34 (1) (b) condo nation
applies to matrimonial relief of adultery and cruelty. Under Indian Divorce Act it applies to adultery only.
Under Sec.35 (a) of Parsi Marriage Act it applies to all matrimonial offences. Condo nation is the
reinstatement of the partners who has committed a matrimonial offence with the intention to repeat it in
future of his or her matrimonial position. It is a consequence of the acts.

Case: Saptami v. Jagdish Chandra,54 Wife filed a petition for judicial separation on the ground of husband’s
cruelty. After marriage both of them husband and wife lived and slept in the same bedroom till august 1963.
After the act of cruelty of husband wife started to live in the same house but after some time, she leaved the
house but again after some time she came to the same house where husband is living for the sake of children
of the marriage. The spouse did not have marital intercourse after august 1963 though the wife continued
to live in the same house. Court considered that even though the wife was living in the same house it did
not mean that she had continued to cohabit with her husband. Thus, her act did not amount condo nation.
However continuous cohabitation without sexual intercourse may amount to condo nation.

6. Collusion:
• Under Sec.23 (1) (c) of Hindu Marriage Act, Under Sec. 34 (1) (d) of Special Marriage Act
collusion was a bar to all matrimonial reliefs.
• The act abolished collusion as a bar to the petitions for a declaration that a marriage is null
and void under the Hindu Marriage Act but not in Special Marriage Act

54 (1969) 73 CWN 502.

22
 7. Improper and unnecessary delay:
• In Hindu Marriage Act, under Sec.23 (1) (d) Improper and unnecessary delay is a bar to
relief in respect of all matrimonial causes.

Case: Niromo v. Nikka,55 there is 11 years delay in filing the petition by wife. She gave explanation
that she kept quiet all along and had no intention to file the suit for her husband harassment which
began soon after she had got the property in inheritance from her father. This was accepted as a
reasonable explanation to delay.

8. Other legal grounds

Under Sec.23 (1) (e) of Hindu Marriage Act, Under Sec.34 (1) (b) of Special Marriage Act, under Sec.
35 (e) of Parsi Marriage and Divorce Act there is no residuary clause in which it is mentioned that there
should be no other legal ground for refusing the petition. It is a general bar which is applicable to all
matrimonial remedies. The act of cruelty done without any intention is which causes injure or hurt the
victim then it is considered as cruelty.

Case: Bhagwat v. Bhagwat,56 The criminal and indecent act by her husband to his stepdaughter
constitutes cruelty to wife even though there is no direct intention to cause injury or hurt to wife. The
act must be of husband only not her in laws.

In, White v. White,57 if husband deprives his wife by undergoing sterilization operation by practicing
coitus interrupts then it amounts to cruelty. In this husband deserts his wife by depriving the wish of
her to become a mother and by depriving her by normal sex.

55 AIR 1963 Delhi 26.

56 AIR 1967 Bom 80.
57 AIR 1958 SC 441.

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