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Divorce :- Once it came to be established that marriage was a civil contract, it was the logical next step to recognize that it was also a dissolute union. However, when marriage came to be accepted as a contract, it was not regarded like an ordinary contract. It is because marriage has always been considered as a social institution. It is asserted that there is a social interest in the preservation and protection of the institution of marriage. This is the main reason why the institution of marriage is hedged in with all-round protection. Under the law of evidence, communication between husband and wife is regarded as a privileged communication. The domestic life as such is accorded protection by multifarious laws. It was, therefore, inevitable to consider marriage as a special contract and, being a special contract, the marriage could not be put to an end like an ordinary contract. This may be illustrated from English law. In England, divorce was recognized for the first time in the year 1857. For a long time adultery was a ground of divorce, then cruelty and desertion were added. And these three were the only grounds of divorce for considerable time. The grounds of divorce may be looked at from two aspects : (i) Marriage is an exclusive union and if it is not an exclusive union, it ceases to be marriage. Adultery destroys the very foundations of marriage. Marriage also implies that parties will live with each other in harmony and in mutual confidence. Cruelty, or an apprehension of cruelty, undermines this basic requirement of marriage. Basic assumption of marriage is that both the parties will live together; if one party deserts the other, this basic assumptien no longer exists. Thus, adultery, cruelty and desertion are destructive of the very foundation of marriage. Looked at from another angle, these grounds are the matrimonial offences committed by one of the parties to marriage. Some notion of criminality is involved. In that sense, divorce is regarded as mode of punishing the guilty party who had rendered himself or herself unworthy of consortium. This gave rise to the guilt or offence theory of divorce.

(ii)

Offence or Guilt Theory of Divorce.In the early law of England, in most of the Commonwealth countries and in most States of the U.S.A., the offence theory was considered to be the most appropriate basis of divorce. According to this theory, a marriage can be dissolved only if one of the parties to marriage has, after the solemnization of the marriage, committed some matrimonial offences. The offence must be one that is recognized as a ground of divorce. This implies that the parties, though free to enter into a wedlock, are not equally free to get out of it. The marriage could be dissolved only on certain grounds prescribed by law. 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

respondents 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. It has been seen that in early English law adultery, cruelty and desertion were the only three grounds of divorce. Later on, insanity was added as a ground of divorce. Insanity did not fit in within the framework of guilt or matrimonial offence theory, as the party suffering from insanity could hardly be called a guilty party. It is a misfortune rather than a misconduct. This led to renaming of the guilt theory as fault theory. If one of the parties has some fault in him or her, marriage could be dissolved whether that fault is due to his or her conscious act or providential. Originally, the Hindu Marriage Act incorporated the guilt or fault theory, and laid down that there must be a guilty party and an innocent party. The Act had a conservative stance. All the three traditional fault grounds, adultery, cruelty, and desertion, were made grounds of judicial separation and not of divorce. Under Section 13, nine grounds of divorce were recognized both for husband and wife, and two additional grounds were recognized on which the wife alone could seek divorce. Barring aside insanity and leprosy, rest of the grounds arose out of the same offence or wrong of the respondent. These were : living in adultery, change of religion, insanity, leprosy, venereal diseases, presumption of death, renunciation of world, non-resumption of cohabitation by the respondent after a decree of judicial separation and non-compliance with the decree of restitution of conjugal rights; (before 1964, the petitionei in the petition for restitution of conjugal rights, or in the petition for judicial separation, alone could seek divorce). Thus, these were incorporated essentially as guilt grounds. The wifes additional grounds, viz., rape, sodomy or bestiality of the husband and the existence of another spouse of the polygamous pre-1955 marriage of the husband, were also based on the same theory Even renunciation of the world by becoming a Sanyasi fitted into the framework of fault theory, though the orthodox will not agree that if one of the spouses enters into the holy order, he could be said to have committed any offence, yet looked at from the angle of the other spouse, it is nothing but permanent desertion. Section 23 of the Hindu Marriage Act deals with the matrimonial bars. Thus, it is laid down that the petitioner will not be allowed to take advantage of his or her own wrong or disability, this is to say, if the guilt of the respondent is, in any way, the direct or indirect outcome of some wrong or disability of the petitioner, the petitioner will not be entitled to the matrimonial relief asked for, even if he had been able to establish his ground of relief beyond reasonable doubt. 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 respondents adultery, and that he did not connive at the adultery of the respondent. In every petition, the petitioner has to show that there is no collusion between him and the respondent. In case the ground is cruelty or adultery, the petitioner is also required to show that he or she did not condone the offence. The petitioner in every matrimonial cause is required to prove that there is no improper delay in the presentation of the petition.

Consent Theory of Divorce.As against the guilt theory, there has been advocated the theory of free divorce or the consent theory of divorce. The protagonists of this theory hold the view that parties to marriage are as free to dissolve a marriage as they are to enter it. If marriage is a contract based on the free volition of parties, the parties should have equal freedom to dissolve it. Just as an individual may err in entering into some other transaction, so also he or she may err in entering a marriage. The argument may be summed up thus : it may happen that two parties who have entered into a marriage with free consent, may, later on, realize that they made a mistake, and, for one reason or another, are finding it difficult to pull on together smoothly and to live together harmoniously. It is not because they are wicked, bad or malicious people. They are just ordinary average human beings, but it has just happened that their marriage has turned out to be a bad bargain, and they find it impossible to continue to live together. Should they have no right to correct their error, to cast off a burden which has become onerous, intolerable and which is sapping the vital fluid of life and eating into its very vitals ? It is not merely their physical life, it is also their entire family life including moral life, which is affected. If from this situation they have no way out, they are likely to go astray, may be, willy-nilly, one is forced to commit a matrimonial offence, may be one, out of sheer frustration, murders the other. Such an unhappy family is a breeding ground for delinquent children. In short, continuance of such a marriage is neither in the individual nor in the social interest. Thus, it is argued, that freedom of marriage implies freedom of divorce, then and then only can mutual fidelity continue, can real monogamy exist. The very basis of marriage is mutual fidelity, and if for any reason the parties feel that mutual fidelity cannot continue, they should have freedom to dissolve the marriage, as only by dissolution, fidelity can be preserved. Divorce by mutual consent means that the law recognizes the situation that has existed for some time and in effect says to the unhappy couple : If you think that your marriage cannot continue and if you both are convinced that it should be dissolved, the marriage will be dissolved. The main criticism of the consent theory is that it will bring about chaos and will lead to hasty divorce. Protagonists of the consent theory maintained that freedom of divorce will not lead to chaos. It will neither lead to immorality. The advocates of this theory hold that the freedom of divorce will bring about more happy marriages, and reduce the number of unhappy ones. It will help both the husband and the wife to live in harmony and consolidate the unity of the family, so that they may fully engage in their career. Since there is freedom of divorce, both man and woman are forced to take a very serious and sincere attitude towards marriage. One will be very careful before marriage, lest one should repent, and one will also be frank and honest, so that one is not regretful later. The main criticism of the consent theory is two-fold : (i) (ii) it makes divorce very easy, and it makes divorce very difficult.

It has been said that divorce by mutual consent offers a great temptation to hasty and illconsidered divorces. More often than not, parties unnecessarily magnify their differences, discomforts and other difficulties, which are nothing but problems of mutual adjustments, and rush to divorce court leading to irrevocable consequences to the whole family. This criticism has been met by the law of many countries which recognize divorce by mutual consent, by providing several safeguards. Under the modern English law, the Matrimonial Causes Act, 1973, the consent theory has been accorded recognition by laying down that if the parties have lived apart for a continuous period of at least two years, immediately preceding the presentation of the petition, divorce may be granted by the mutual consent of the parties. Under the Special Marriage Act, and the Hindu Marriage Act, 1955, no petition for divorce can be ordinarily presented before a period of one year has elapsed since the solemnization of marriage. Section 28 of the former and Section 13-B of the latter provides that a petition for divorce by mutual consent may be presented to the District Court by both the parties together 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. A further safeguard to the hasty step is provided by laying down On the motion of both the parties made not earlier than six months and not later than eighteen months after the presentation of petition [in case the petition has not already been withdrawn] the District Court shall, on being satisfied after hearing the parties and after making such enquiry as it thinks fit, that a marriage has been solemnized under the Act and that the averments in the petition are true, pass a decree dissolving the marriage. The other criticism of the theory is that it makes divorce very difficult. Since divorce by mutual consent requires the consent of both the parties and if one of the parties withholds his or her consent, divorce can never be obtained. It may happen that one of the parties to marriage may not give his or her consent for divorce on account of a belief in the indissolubility of marriage, or on account of sheer malice, bigotry or avarice, then divorce can never be obtained. Irretrievable Breakdown of Marriage Theory of Divoree.The guilt theory of divorce has been found deficient as it recognizes divorce only on certain specified grounds. The consent theory has been found wanting as it either makes divorce too easy or too difficult. The problem that the modern law faces is that if a marriage has in fact broken down irretrievably, may be on account of fault of either party or both parties, or on account of fault of neither, then, is there any sense in continuing such a union? Would it not be in the interest of both the individual and the society that the marriage is dissolved ? In such a marriage, substance has disappeared, only form has remained. There is no use in retaining the empty shell. In other words, the law recognizes a situation and in effect says to the unhappy couple; If you can satisfy the court that your marriage has broken down, and that you desire to terminate a situation that has become intolerable then your marriage shall be dissolved, whatever may be the cause, the breakdown theory of divorce represents the modern view of divorce. Recently, the Law Commission on Reform of the Grounds of Divorce said in its Report that objectives of any good divorce law are two : One, to buttress, rather than undermine, the stability of marriage, and two, when regrettably, a marriage has irretrievably broken down, to enable the empty shell to be destroyed with the maximum fairness, and the

minimum bitterness, distress and humiliation. If a marriage has broken down beyond all possibilities of repairs, then it should be brought to an end, without looking into the causes of breakdown and without fixing any responsibility on either party. In our contemporary society, the irretrievable breakdown of marriage theory is recognized by the laws of many countries. In or about nineteen fifties, a trend towards this theory became discernible in those countries also which were deeply entrenched in the fault theory. Two methods were used. First, by enlarging the number of grounds. Such grounds as incompatibility of temperament were added. The Swedish Marriage Law of 1920 provides a very good illustration of this trend. It was laid down that both the spouses could present a joint petition for separation decree on the ground of profound and lasting disruption. Such an application could be presented by one of the spouses to the marriage also. In the case of joint application, the court was required to pass a decree without looking into the matter. When only one spouse sought divorce, the application could be granted if the court, after an enquiry, came to the finding of profound and lasting disruption of marriage. The second method that was used was to give widest possible interpretation to the traditional fault grounds. Cruelty proved to be the most fertile ground. In Gollins v. Gollins,1 the husbands failure to take up a job, his inability to maintain his wife and his dependence on his wife to pay off his pressing debts was held to be a conduct amounting to cruelty. In Williams v. Williams, husbands persistent accusations of adultery against the wife were considered to amount to cruelty, despite the fact that husband was found to be insane. In Masarati v. Masarati, the Court of Appeal said Today we are perhaps faced with a new situation as regards the weight to be attached to one particular factor that is the breakdown of marriage. Thus, the way for the reception of the irretrievable breakdown of marriage theory was opened up. In the Mortimer Committees report, the breakdown of marriage is defined as such failure in the matrimonial relationship or such circumstances adverse to that relation that no reasonable probability remains for the spouses again living together as husband and wife. In the opinion of the Committee if it is shown that a marriage has broken down completely, the marriage should be dissolved even if one of the parties to the marriage does not desire it. In the modern law, the irretrievable breakdown of marriage theory has found its way in two modes (i) The law lays down that if a marriage has broken down beyond any possibility of repair then it should be dissolved. The determination of the question whether in fact a marriage has broken down or not is left to the courts. In other words, the legislature does not lay down any criterion on which a marriage may be deemed to have broken down. It leaves it to the court to find out whether a marriage has in fact broken down or not in each individual case. (ii) In its second mode, the legislature lays down the criterion of breakdown of a marriage and if that is established, the courts have no option but to dissolve the marriage. For instance, the petitioner must show that before the presentation of the petition, he has been living separate from the respondent for a specified period. This goes to establish that marriage has broken down beyond all possibilities of repair. In this form, the breakdown theory received early recognition in some countries.

Under the Hindu Marriage Act, 1955-76 divorce can be obtained by either party : (a) if it is shown that a decree for restitution of conjugal rights has not been complied with for a period of one year or more, or (b) if it is shown that cohabitation has not been resumed for a period of one year or more after passing of the decree for judicial separation. In this very form the breakdown grounds are recognized under the Special Marriage Act, 195476. Thus, the breakdown theory was introduced into the Indian law by allowing divorce both to the so-called innocent and the guilty party. But the provision of the matrimonial bars under both statutes was overlooked. In the framework of guilt theory the breakdown theory was buttressed. The letter of law still requires that the petitioner must prove that he is not taking advantage of his or her own wrong or disability, though the breakdown theory does not admit of any such provision. And it may be interesting to note that most of our High Courts have struck to the letter of law and have held, despite the amendment, that the party who is not innocent cannot get a decree of divorce under S. 13(1A). Grounds of Divorce :-

Desertion :- Section 13(ia), Hindu Marriage Act. 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. Where the petitioner has been deserted continuously for a period not less than two years immediately preceding the presentation of the petition for judicial separation or divorce, such petition may be granted. 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. Desertion means withdrawing from the matrimonial obligation, i.e., not permitting or allowing and facilitating the cohabitation between the parties. The proof of desertion has to be considered by taking into consideration the concept of marriage which in law legalises the sexual relationship between man and woman in the society for the perpetuation of race, permitting lawful indulgence in passion to prevent licentiousness and for procreation of children. Desertion is not a single act complete in itself, it is a continuous course of conduct to be determined under the facts and circumstances of each case. As desertion in matrimonial cases means the withdrawal of one party from a state of things, i.e., a marital status of the party, no party to the marriage can be permitted to allege desertion unless he or she admits that after the formal ceremonies of the marriage, the parties had recognised and discharged the common obligation of the married life which essentially requires the cohabitation between the parties for the purpose of consummating the

marriage. Cohabitation by the parties is an essential of a valid marriage. There can be no desertion without previous cohabitation by the parties. The basis for this theory is built upon the recognised position of law in matrimonial matters that no one can desert who does not actively or wilfully bring to an end the existing state of cohabitation. However, such a rule is subject to just exceptions which may be found in a case on the ground of mental or physical incapacity or other peculiar circumstances of the case. The party seeking divorce on the ground of desertion is required to show that he/she was not taking the advantage of his or her own wrong. Desertion under the Hindu Marriage Act falls under the following categories (a) Actual desertion, (b) Constructive desertion, and (c) Wilful neglect. Actual desertion.In order to constitute actual desertion, the following facts should be established (a) the spouses must have parted or terminated all joint-living, (b) the deserting spouse must have the intention to desert the other spouse, (c) the deserted spouse must not have agreed to the separation, (d) the desertion must have been without reasonable cause, and (e) this state of affairs must have continued for the requisite period, i.e., two years. (a) One of the essential requisites of actual desertion is separation of one spouse from another and therefore if the spouses are living together, there is no factum of separation, and therefore here one of the essential elements of actual desertion is missing. (b) Where one of the spouses leaves the matrimonial home for some specific period with the idea that he would return home after the expiry of that period, he is not guilty of the matrimonial offence of desertion. Desertion is permanent forsaking and abandonment of one spouse by the other. In order to constitute this offence, there must be an intention on the part of the withdrawing party not to return or resume cohabitation. (c) In order to establish desertion the petitioner must prove that the separation of the respondent is against the wish and without the consent of the petitioner. Where the spouses live separately under the agreement and there is no evidence that the husband revoked the agreement it cannot amount to desertion as essential element of leaving the matrimonial home without the consent of the deserted spouse is not present. (d) To constitute desertion, the separation must be without reasonable cause. The following have been held to constitute sufficient grounds for desertion (I) confession of adultery by the wife, (II) habitual drunkenness of wife, (III) persistence in the false charge of unnatural offence having been committed by the husband, (IV) unreasonable and persistent refusal by the wife to consummate the marriage and, (V) wife permitting indecent liberties taken by others with her.

(e) Desertion is a continuing offence. To constitute desertion it is necessary that both facturn. of separation and animus deserendi should continue during the entire statutory period of two years immediately preceding the presentation of the petition. The offence of desertion remains inchoate till the presentation of the petition however long might have been the period of previous desertion. During this period the offending spouse has always the locus poenitentiae to go back to the deserted spouse. It is necessary that during all this period the deserted spouse must affirm the marriage and be ready and willing to resume married life on such conditions as may be reasonable. Element Nos. 1 & 2 : Factum of separation and intention to desert.In actual desertion, it is necessary that respondent must have forsaken or abandoned the matrimonial home. Suppose, a spouse every day, while he goes to bed, resolves that next day he will abandon the matrimonial home, but day after day he continues to live in matrimonial home. It is clear that he had formed an intention to desert, but that intention has not been translated into action and he continues to live in matrimonial home with the other spouse. He cannot be said to have deserted the other spouse. On the other hand, it may happen that a spouse leaves the matrimonial home on account of business, study or something else and goes to another place for some period and with the clear intention that, after the completion of business or study or other work, he would return home. But somehow or the other, may be on account of illness or non-completion of business or study or other work, he is stranded there and despite his intention to return, he has not been able to do so. Abandonment of matrimonial home should be accompanied by animus deserdendi. Where the wife left the matrimonial home under a delusion (with which she was suffering that it would not be safe to live with her husband), she would not be in desertion as she has no mental capacity to form the animus Thus, to constitute desertion, factum and animus must co-exist. Where the wife was living separate for treatment and had no intention to separate, it was held that she is not in desertion. The moment they co-exist, it amounts to desertion. If the petitioner fails to establish any one of these two elements, he would fail in his petition. Both animus and factum must co-exist to constitute desertion. If animus deserdendi is not proved, there would be no desertion. However, it is not necessary that intention must precede the factum. May be, when a person leaves the matrimonial home, he has no intention to forsake or abandon, but, later on, he forms an intention not to return and consequently he fails to return; in such a case, the moment he forms an intention not to return he becomes a deserter, as at that moment both the elements co-exist. On the completion of the statutory period of two years, the other party may file a petition for judicial separation or divorce. In Bipinchandra v. Prabhavati,AIR 1957 SC 176 soon after the marriage in 1942, the wife resided in Bombay with her husband alongwith the husbands parents and two sisters. Till 1946, they lived happily and a son was born to them. In 1946, there came to live in matrimonial home one Mahendra, a friend of the family. In January, 1947, the husband went to England on business. He came back in May, 1947. On return he came to know that in his absence his wife

had become intimate with Mahendra. The husbands father had intercepted a letter by the wife to Mahendra which he handed over to the husband. The husband asked his wife to explain. She denied having written the letter. Next day, on May 24, she left for her parents home at Jalgaon, ostensibly for the marriage of her cousin which was to take place four to six weeks later. It was alleged that she did not return to live with the husband. On July 15, 1947, the husband had a letter sent to the wife through his solicitor charging her with intimacy with Mahendra and asking her to send back the child. However, in November, 1947 the husband was told by his mother that his wife was coming to Bombay within a few days, whereupon the husband sent a telegram to the wifes father to the following effect, Must not send Prabha, Letter posted In 1951, a petition for divorce was filed. In between, some abortive attempts at reconciliation were made. The main defence of the wife was that it was the petitioner who, by his treatment after his return from England, made her life unbearable and compelled her to leave the marital home against her wishes and did not allow her to return. She denied any intimacy with Mahendra. The Supreme Court said that it was established that the wife left for her parents house on May 24, 1947. But the question is, Sinha, J., said, Whether her leaving her marital home on May 24, 1947, is consistent with her having deserted her husband in the sense that she had deliberately decided permanently to forsake all relationship with him with the intention of not returning to consortium, without the consent of the husband and against his wishes ? In this respect, the learned judge said, two things are important The act of departure from the other spouse draws its significance for the purpose with which it is done, as revealed by conduct or other expression of intention, and the party who intends bringing the cohabitation to an end and whose conduct in reality causes its termination, commits the act of desertion.

The Supreme Court again had an opportunity to dwell on desertion in Lachman v. Meena.AIR 1964 SC 40 Where separation de facto exists, it sometimes becomes difficult to establish whether or not separation is attributable to the conduct of the respondent or whether state of separation de facto existed during the entire statutory period. In such cases, animus is a question of inference from several facts. In this case, as in Bipinchandras case, the wife was required to live with her husbands joint family consisting of his parents and two sisters. The parents of the wife were very affluent having business houses throughout S.E. Asia. Parties were married on November 11, 1946 and lived together in Bombay till February, 1954, when the wife left the matrimonial home. The parties also had a child from the marriage who was left behind by the wife. She first went to Poona and thereafter lived at several places in S.E, Asia. Throughout this period, her husband wrote to her to return and all along she said that she would when her health would permit her to do so. Some letters of the husband contained insinuations of unchastity, but, unmindful of them, she continued to correspond with the husband. It was established that before going abroad, the wife came to Bombay and stayed there for about a fortnight at a friends house and did not try to see the husband or the child. The Supreme Court said that desertion is a matter of inference to be drawn from the facts and circumstances of each case. The court found that the wife did not leave the house of the husband with his consent, but did so of her own accord and without his knowledge. There was satisfactory proof that besides the factum of desertion, there was also the animus deserdendi at the time when she left the husbands house and the requisite animus continued for the duration of two years before the presentation of the petition. Her offer

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to return as expressed in her letters was not sincere and in reality there was no intention on her part to return. The letters of the husband, containing insinuations of unchastity, did not have such an impact on her mind as it would have caused her to live apart from her husband. Thus, the Supreme Court (Subba Rao, J., dissenting) found that the wife was guilty of desertion. The matter once again came for consideration before the Supreme Court in Rohini v. Narendra Singh,AIR 1972 SC 459 which was again a husbands petition. The parties were married in 1945 and the marital life went on smoothly till 1947 when the wife packed up and went to her fathers house. Despite repeated requests from the husband, she did not return. Meanwhile, a day before the coming into force of the Hindu Marriage Act, 1955, the husband took a second wife. On husbands petition for judicial separation on the ground of desertion, the wife averred that during the period that she lived in the matrimonial home she was ill-treated and she developed heart trouble, that it was her father-in-law who sent her to her fathers house and that the husband had taken a second wife. On facts, the court found that none of her assertions was true and that she had left the matrimonial house with a clear intention to abandon it. The court further observed that the second marriage of the husband did not have any such impact on her mind as to cause her to continue to live apart. In Geeta Jagdish Mangtani v. Jagdish Mangtani,AIR 2005 SC 3508 the wife had deserted the husband after 7 months of marriage on the ground that he had insufficient income. She started living with her parents and gave birth to a child. She made no attempts to rejoin the husband and continued with her teaching job. She was aware of the income status her husband before marriage. Under the circumstances, desertion on her part stands proved. These cases lay down that any time when animus and factum of desertion co-exist, desertion commences. The intention to forsake must be a permanent intention not to return. If a spouse abandons the other in a state of temporary passion or anger without an intention to permanently put an end to cohabitation then, it would not be desertion. The deserted spouse should not have consented and should not have provided any reasonable cause for desertion. Further, the intention to desert should continue during the entire statutory period of desertion rather till the presentation of the petition; if any time, before the presentation of the petition, the deserting spouse changes his/her intention and wishes to return and is prevented from doing so by the other, then he/she would not be in desertion. However, if such conduct does not affect the mind of the deserting spouse, (in Meenas case accusation of adultery and in Rohinis case second marriage of husband did not affect the mind of the wife), then desertion will not terminate. There is nothing like mutual desertion under the Act. One party has to be guilty. Husband initiated proceedings after 7 years of alleged desertion. He never made efforts to accept reasonable wishes of a serving (working) wife. The wife was willing to live with her husband at her flat at place of her service. Decree of divorce granted to husband was set aside. Constructive desertion.Desertion is not withdrawal from a place but from a state of things, i.e., from cohabitation. It was held in Savitri Pandey v. Prem Chand Pandey, AIR 2002 SC 591. that desertion means withdrawing from matrimonial obligations and not withdrawal from place. If a party withdraws from cohabitation, it is he/she who is guilty of desertion, despite the fact

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that he/she continues to live in the matrimonial home. If a spouse creates a situation or conducts himselEherself in a manner that the other spouse is compelled to leave the matrimonial home, then the spouse who forced the other party to leave the matrimonial home is the deserter and not the spouse who left the matrimonial home. Take an example : suppose a husband tells his wife that everything is over between them, they will not talk to each other, they will not meet each other, they will not go out in each others company and they will meet only at breakfast table and, if necessary, talk about children. In such a situation, the wife has two alternatives she may leave the matrimonial home, as she may feel that she cannot stand such indignities and humiliation, or she may continue to stay there in the irterest of the children or because she has no other place to go. In either case, it is the hband who is the deserter. The ingredients of actual as well as constructive desertion are the same : both elements, factum and animus, must co-exist, in the former there is actual abandonment and in the latter, there is expulsive conduct. Under constructive desertion, the deserting spouse may continue to stay in the matrimonial home under the same roof or even in the same bedroom. In our country; in many a home the husband would be guilty of expulsive conduct towards his wife by completely neglecting her to the extent of denying her all marital rights, but still the wife, because of social and economic conditions, may continue to live under the same roof. Wilful neglect.Explanation to Section 13(1), Hindu Marriage Act lays down that desertion includes wilful neglect of the petitioner by the other party to the marriage. Subbarao, J. expressed the view that wilful neglect is designed to cover constructive desertion and thus it must satisfy the ingredients of desertion. Balihar v. Dhir Das, 1979 P & H 162. It is submitted that wilful neglect adds a new dimension to the notion of desertion, inasmuch as if the offending spouse consciously neglects the other party without any intention to desert, it would nonetheless amount to desertion. There it has been said that an act of omission done by accident of inadvertence is not wilful, nor is it, on the other hand, absolutely necessary that to be wilful, the act or omission should be deliberate and intentional. Thus, it will amount to wilful neglect if a person consciously acts in a reprehensible manner in the discharge of his marital obligations, or consciously fails in a reprehensible manner in the discharge of these obligations. In short, it connotes a degree of neglect which is shown by an abstention from an obvious duty, attended by a knowledge of the likely result of the abstention. However, failure to discharge, or omission to discharge, every marital obligation will not amount to wilful neglect. Failure to fulfil basic marital obligations, such as denial of company or denial of martial intercourse, or denial to provide maintenance will amount to wilful neglect. Without the consent.If one party leaves the matrimonial home with the consent of the other party, he or she is not guilty of desertion. When the parties are living apart from each other under a separation agreement, or by mutual consent, it is a clear case of living away with the consent of the other. In Bhagwati v. Sadhu Ram, the wife was living separate from her husband in a rented house under a compromise in maintenance proceedings under Section 488, Cr. P.C. (old code) and the

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court held that she was not in desertion. Consent may be express or implied, may be given at the time when the other party leaves the matrimonial home or during the period when one is living separate from the other. In Bipin Chandra v. Prabha, during the period when wife was living away from the husband, the husband by sending the telegram, Must not send Prabha to wifes father expressed his wish that the wife should continue to live separate from him. A pregnant wife who goes to her fathers house for delivery without the consent of her husband cannot be treated in desertion. Similarly, when the husband himself compels the wife to go to her parents home or leaves her there, the wife is not in desertion. Desertion must be for a continuous period of two years.To constitute a ground for judicial separation or divorce, desertion must be for the entire statutory period of two years, preceding the date of presentation of the petition.4 It has been said that desertion is a continuing offence; it is an inchoate offence. This means that once desertion begins, it continues day after day till it is brought to an end by the act or conduct of the deserting party. It also means that the offence of desertion is not complete even if the period of two years is complete. It may still be brought to an end by any act or conduct of the deserting spouse. It is inchoate. It becomes a complete offence only when the deserted spouse files a petition for a matrimonial relief. But before filing the petition, if the respondent or the petitioner does something which brings desertion to an end, petition cannot be maintained. In Bipinchandra v. Prabha and Laxman v. Meena, the main question before the Supreme Court was whether wife continued to be in desertion for the entire statutory period. In the former case, Bipinchandra, the husband by sending a letter to her through the solicitor and then by his telegram prevented the wife from joining him. On the other hand, in Laxman V. Meena, the wife persisted in her desertion. In Suresh Bala v. Gurmodinder Singh, the court said that wifes act of withdrawing jewellery from the locker and remaining away from her husband for two years clearly proved her desertion. Divorce on ground of desertion allowed. Durga Prasanna Tripathy v. Arundhati Tripathy, AIR 2005 SC 3297. Wife had deserted the husband after seven months of marriage. Parties were living separately for almost 14 years. The wife was not prepared to lead conjugal life with the husband. Attempts were made by the husband and his relatives in getting wife back to matrimonial home, but failed. A good part of the lives of both parties was consumed in this litigation. It was shown by record that parties disliked each other. There were no chances of reconciliation. There was an irretrievable breakdown of marriage. With a view to put a quietus to litigation inter se and bitterness between parties, decree of divorce on ground of desertion could be granted. Husband entitled to divorce decree due to desertion by wife. When wife had deserted the husband on ground that he was not having enough income. She had left the matrimonial home in Mumbai only after about 7 months of marriage and had started living with her parents in Gujarat where she gave birth to a child and then continued with her teaching job. No attempt was made by her to stay with her husband which clearly established animus deserendi. Parties knew their

13

earnings even prior to marriage. But the wife had chosen to adopt a course of conduct which proved desertion on her part without reasonable cause. It also amounted to wilful neglect of husband. As such, the husband was entitled to divorce decree. In Durga Prasanna Tripathy v. Arundhati Tripathy,AIR 2005 SC 3297 the wife had deserted the husband after 7 months of marriage and the parties were living separate since a period of 14 years. The wife was not willing to live with the husband in spite of all efforts. Better part of their lives was wasted in litigation and the parties disliked each other. There was irretrievable breakdown of marriage. Therefore, to put an end to litigation and to put an end to the bitterness between the parties divorce on the ground of desertion can be granted. Termination of desertion.Desertion as a ground for matrimonial relief differs from other grounds, such as adultery or cruelty, in that the offence founded on the cause of action of desertion is not complete until the petition seeking relief is filed. Desertion is a continuing offence. This character and quality of desertion makes it possible to bring the state of desertion to an end by some act or conduct on the part of deserting spouse. It may be emphasized that the state of desertion may be put to an end not merely before the statutory period has run out, but also at any time, before the presentation of the petition. Desertion may come to an end in the following ways (a) Resumption of cohabitation. (b) Resumption of marital intercourse. (c) Supervening animus revertendi, or offer of reconciliation. Resumption of cohabitation.If parties resume cohabitation, at any time before the presentation of petition, the desertion comes to an end. Resumption of cohabitation must be by mutual consent of both parties and it should imply complete reconciliation. Thus, if the deserting spouse comes and stays in the matrimonial home for a couple of days without intending to reconcile or resume cohabitation, it does not terminate desertion. The desertion would come to an end only when he or she goes to the matrimonial home mentally prepared to resume cohabitation. In a simple language, it means living together as husband and wife. If parties start living together, it is enough to establish resumption of cthabitation. It is necessary to prove that marital intercourse was also resumed. Resumption of marital intercourse .Resumption of marital intercourse is an important aspect of resumption of cohabitation. Sometimes resumption of marital intercourse may terminate desertion. If resumption of marital intercourse was a step towards the resumption of cohabitation, it will terminate desertion even if the deserted spouse backs out. But, desertion cannot be put to an end by casual acts of intercourse. Supervening animus revertendi or offer of reconciliation.If the party in desertion expresses an intention to return, this would amount to termination of desertion. Animus revertendi means intention to return. Suppose, the deserting spouse wants to terminate desertion by expressing a desire to resume cohabitation, but the deserted spouse prevents the coming back of the deserted

14

spouse. In such a case desertion comes to an end, and it may be that from that time onward it is the deserted spouse who becomes a deserter. In fact, this was what happened in Bipinchandra v. Prabhavati. The wife through her mother-inlaw expressed a desire to come back to the matrimonial home, but the husband prevented her coming by sending a telegram. Desertion may be brought to an end by the deserting spouses genuine and bona fide offer of reconciliation. The offer must be conciliatory and not hedged with conditions or qualifications. The offer must be made in good faith and for resumption of full-fledged cohabitation. It should not be just to forestall or defeat the impending judicial proceedings. Suppose, a husband who has deserted his wife, makes an offer to receive back the wife in proceedings filed by her for maintenance under Section 125 Cr. P.C. or under Section 18, Hindu Adoptions and Maintenance Act, 1956. Such an offer may not be genuine and may be made just to defeat the maintenance proceedings. Cruelty [Section 13 (1) (1-a)].Where the petitioner has been treated with cruelty after the solemnization of marriage, he would be entitled to get a decree of divorce. After passing of the Marriage Laws (Amendment) Act, 1976, cruelty has become a ground of divorce as well. Under the English law, the term cruelty was defined in Ritssel v. Russel, for the first time. In this case the House of Lords observed, To constitute legal cruelty there must be danger to life or injury to health, bodily or mental or reasonable apprehension of it. However, this definition of cruelty is not valid in the present Hindu Law. It would depend upon the court to consider the gravity of the cruelty to make it a ground for divorce, there the word treated signifies a continuous course of cruel behaviour by the respondents to the husband. Cruelty may be either mental or physical. Although the term cruelty has not been defined in the Act, yet for the purposes of establishing an act of cruelty it should be so serious and weighty that cohabitation becomes impossible. It should be somewhat more serious than ordinary wear and tear of routine marital life. 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 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. In Shobha Rani v. Madhukar Reddi,AIR 1988 SC 121 the Supreme Court considerably enlarged the concept of cruelty and held that the demand for dowry, which is prohibited under law, amounts to cruelty entitling the wife to get a decree for dissolution of marriage. A new

15

dimension has been given to the concept of cruelty. Explanation to Section 498-A provides that any wilful conduct which is of such a nature as is likely to drive a woman to commit suicide would constitute cruelty. Such wilful conduct which is likely to cause grave injury or danger to life, limb or health (whether mental or physical of the woman) would also amount to cruelty. Harassment of the woman with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security would also constitute cruelty. Cruelty in law is different from what is understood by it in its popular sense. In A. Jayachandra v. Aneel Kaur, AIR 2005 SC 534 the Supreme Court held that the expression cruelty has been used in relation to human conduct or human behaviour. It is the conduct in relation of matrimonial duties and obligations. Cruelty is a course of conduct of one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical, the Court will have no problem in determining it. If it is mental, the problem presents difficulties. First, the enquiry must begin as to the nature of cruel treatment. Second, the impact of such treatment in the mind of the spouse whether it caused reasonable apprehension that it would be harmful or injurious to live with the other. Ultimately, it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. However, there may be a case where the conduct complained of itself bad enough and per se unlawful or illegal. Then the impact or injurious effect on the other spouse need not be enquired into or considered. In such cases, cruelty will be established if the conduct itself is proved or admitted. Cruelty in matrimonial law may be of infinite variety. It can be subtle or brutal. It may be physical or mental. It may be by words, gestures or by mere silence, violence or non-violence. That is the reason why the courts have never tried to give an exclusive definition of cruelty, as understood in matrimonial law. Further, the legal concept of cruelty had varied from time to time, not in theory but in application, as the social and economic conditions change. Cruelty under this section is not necessarily physical cruelty. It also includes the cases of mental cruelty. The question of cruelty must be determined from the whole facts and the matrimonial relations between the spouses. It has to be determined as cumulative effect of the circumstances. Regard must be had to their culture, temperaments, status in life, the state of health of the parties, the interaction between them in their daily life and numerous other factors which cannot be brought in and confined to an exclusive or inclusive definition. All these factors must be considered to judge whether the conduct complained of amounts to a matrimonial offence of cruelty. The existence of cruelty depends not on the magnitude, but rather on the consequences of respondent but of some member (or members) of the joint family ? Classification of cruelty.In the modern law, cruelty is classified under the following two heads (a) Physical cruelty, and (b) Mental cruelty. Physical cruelty.Acts of physical violence by one spouse to another resulting in injury to body, limb or health, or causing reasonable apprehension of the same have been traditionally considered as cruelty. In fact, this is the original meaning of cruelty. What acts of physical

16

violei,ce will amount to cruelty will differ from case to case, depending upon the susceptibility and sensibility of the party concerned. Mental Cruelty.In Bhagat v. Bhagat, the Supreme Court defined mental cruelty as that 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 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. To judge mental cruelty, court has to go by intensity, gravity and stigmatic impact of cruel treatment, even if such cruel treatment is meted out once.1 While arriving at such a conclusion regard must be had to the social status, educational level2 of the parties, the society they move in, the possibility or otherwise of the parties never living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. In the modern matrimonial law, mental cruelty is a very important aspect of legal cruelty. In Praveen Mehta v. Inderjeet MehtaAIR 2002 SC 2582 , court has defined mental cruelty as a state of mind and feeling. The court further said that mental cruelty is a matter of inference and inference has to be drawn on facts and circumstances taken cumulatively. N. Sreepadachanda v. Vasantha provides very good illustration of mental cruelty. The court found that the wife quarrelled with, and hurled vilest abuses at her husband over most trivial matters, on account of which the husband had to spend many sleepless nights and suffered great mental agony. She not merely abused him at home, but she did so in public and subjected him to great humiliation and shame before the public. He became a laughing stock in the locality. On one occasion, she caught hold of him by his collar in a bus and abused him. On another occasion, she made him cook food for her and when he served the food to her, in a rage she threw the plates at him saying that what rubbish he had cooked and wanted an apology from him. Once when he was going to his office with his colleagues, she caught hold of him by the neck and abused and insulted him. She used to say that she wanted her husband to be killed in some accident so that she could have his insurance money and provident fund. All this obviously caused great agony and mental torture to the husband. Dastane v. DastaneAIR 1976 SC 1534 is a high watermark case on mental cruelty. The wife took delight in causing misery to her husband, to his relatives, to whom she abused profusely, day and night. She not merely abused and humiliated the husband and his father but also made false accusations against them. She would hurl abuses like these on her husband : the pleaders sanad of that old hag of your father be forfeited. I want to see the ruination of the whole Dastane dynasty, Burn the books written by your father and smear the ashes on your forehead, You are not a man but a monster in human body, I would make you lose your job and get it published in the newspapers,t and the like. Once she tore her mangal sutra. She would lock out the husband when he was due to return from the office. She used to thrash her child

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mercilessly even when he had high fever. She would rub chilly powder on the tongue of the child. During the night, she would switch on the light focused on husband Manisha Tyagi Vs. Deepak Kumar AIR 2010 SC

1. In this appeal the wife has challenged the judgment of High Court of Punjab and Haryana in LPA No.1625/01 dated 25.8.2006 whereby the High Court set aside the judgment of the Trial Court and the Judgment of Ld. Single Judge and granted a decree of divorce to the husband. 2. Marriage between the parties was celebrated according to Hindu rites at New Delhi on 17.11.1991. For a short period after the marriage, the couple stayed at Meerut where the husband was posted as a Captain in the Indian Army. Mutual cohabitation of the parties seems to have come to an end on 30.12.1992. They have been living separately since 31.12.1992. They have a daughter who was born on 2.6.1993. 3. On 24.11.1993 the husband filed a petition under Section 13 of the Hindu Marriage Act being Matrimonial Case No.644 of 1993 for dissolution of the marriage. Later on the petition was amended and filed in the Court of District Judge of Gurgaon on 28.11.1995 pursuant to the order issued by this Court in a transfer petition. 4. The husband has mentioned numerous instances of cruelty in paragraph 7 of the divorce petition. He has described the wife as quarrelsome, rude and ill-mannered. He had gone to the extent of terming his wife to be schizophrenic, making his life a living hell. He goes on to narrate that all efforts at conciliation even by his parents did not yield any result. He then proceeds to state that his wife is misusing her position as a practising advocate. According to him she has been constantly threatening him as well as his family that since she and her two uncles are advocates they would make the lives of the husband and his family miserable. The husband then complains that the wife has been making baseless complaints to his superiors. This has affected his career prospects in the Army. He makes a special reference to a statutory complaint dated 10.12.1993 in which according to him the wife had made numerous false allegations about the behaviour of the husband and his family even prior to the marriage ceremony. 5. We may notice here the contents of the statutory complaint. She complained about the exorbitant demands made by the husband's family for dowry. She complained that within days of the marriage the husband started behaving in a strange manner; throwing household articles and clothes all around in the room and also mimicking the sound of different animals and sometimes barking like a dog. She had also claimed that she had never seen a human being behaving that way even if very heavily drunk, as he was most of the times she remained in his company. She has stated that the husband and in-laws had willfully and cruelly treated her and had spared no effort to cause her mental harm and inflicted grave injuries. She also complains that there is danger to her life, limb and health. They had pressurised her to meet not only their unlawful demands of money but also for spurious reasons. She ends the complaint with the comment that she has a child to support. She requested that an enquiry be held into the conduct

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of the husband which is not only rude, indiscreet, disgraceful and unbecoming of an Army officer but he has committed the offences under the Penal Code. 6. The husband further complains that even during this short period of cohabitation the behaviour of the wife was erratic, inhuman and unbearable. In order to cause mental agony to the husband the wife would deliberately indulge in erratic sexual behaviour. She would intentionally interrupt the coitus. On many occasions she even refused to share the bed with him. 7. The husband then makes a grievance that the wife had made a complaint to the Women Cell, Nanakpura, New Delhi where notice was received by the husband for appearance on 28.1.1994. She had also registered FIR No.10 on 19.1.1994 with Police Station, Keshavpuram, Delhi under Section 406, 498-A, IPC. The police raided the flat of the parents of the husband at Noida on 22.1.1994 along with the wife. She even took away all her belongings including the Maruti car. The husband in fact goes on further to allege that she even took the ornaments belonging to the husband and his parents. It is further alleged that the husband and the parents had to approach the court for anticipatory bail. She then filed a petition for maintenance before the Family Court, Meerut. She also lodged an FIR on 18.8.1999 under Section 354/506/34. She made false allegations against his father, advocate and the son of the advocate. With these allegations the husband had gone to court seeking divorce. 8. The Trial Court also took notice of the counter allegations made by the wife. She claimed that the husband and his family had started treating her with cruelty when the unwarranted demands for dowry were not met by her parents. She also claimed that the husband is deliberately disrupting the marriage as he wants to get married to someone else. She however admitted that the couple had separated on 31.12.1992. She complains about the deliberate neglect by the husband of his matrimonial as well as parental duties towards the new born daughter. She denied all the allegations made by the husband with regard to her erratic behaviour. She dwells on the illegal demands made by the in-laws for cash, jeweler and electronic items. She states that the marriage was celebrated under shadow of extortion. She was harassed by the in-laws and rudely informed that they were expecting a sum of more than 30-lakh rupees to be spent in the marriage as her father was working abroad. On the very first day when she went to the matrimonial home she was informed by the mother-in-law that her son was destined to marry twice as per the horoscope. She reiterates the allegations about the erratic behaviour of the husband. She states that in his show of temper he threw household things at her. She was constantly beaten on one pretext or the other. Denying the allegations with regard to sexual misbehaviour she stated that in fact the respondent tried to have sexual intercourse during menstruation period or after conception. She had asked him to desist from acting in such an unnatural manner but to no effect. She further admitted having made the complaint but she denied that these are made as a counter blast to the divorce petition filed by the husband. 9. On the basis of the pleadings of the parties the Trial Court framed the following issues: 1. Whether respondent has been exercising such cruelty towards the petitioner so as to entitle the petitioner to the dissolution of the marriage? OPP

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2. Whether the petitioner has been illtreating the respondent and as such, cannot take benefit of his own cruel and tortuous acts, if so, to what effect? OPR 3. Whether the petitioner is bad as premature? OPP 4. Whether the petition is malafide? OPR 5. Relief.; 12. The final conclusion reached by the Learned Single Judge is as follows: I have made an independent assessment of the oral evidence and am of the opinion that both the parties are at fault. The respondent exceeded the limits of decency when she went to the extent of lodging a false FIR and when she tried to humiliate the appellant in the eye of his superiors by writing a very damaging letter Ex. PW2/1 without knowing its consequences. 13. In view of the aforesaid conclusions the Learned Single Judge granted the alternative relief to the husband by passing a decree for judicial separation under Section 10 of the Hindu Marriage Act. This decree was passed with the hope that the parties would ponder upon the situation and may be able to re-unite for the welfare of the child. If, on the other hand, the parties do not reconcile within the statutory period of one year it will be open to either of them to seek a decree of divorce. 14. Aggrieved by the aforesaid judgment the wife went in appeal before the Division Bench in LPA No.1625/01. The Division Bench noticed the extensive pleadings as well as the evidence led by the parties. On a reevaluation of the evidence the Division Bench concluded that all efforts of reconciliation between parties have failed. They have been living separately since 31.12.1992. According to the Division Bench the marriage has irretrievably broken down. The Division Bench sums up the entire matrimonial scene of the parties in the following words: The allegations and counter allegations had flown thick and proper in this case. To an extent these did receive support by the evidence led by the respective parties. The learned Single Judge chose a middle-path by holding that both the parties were at fault and accordingly granted decree of judicial separation instead of divorce. To what effect and what difference it has made to the lives of parties can not really be made out. The parties are living separately since 31.12.1992. Though not revealed from the record but we can assume that efforts must have been made for reconciliation between the parties at the trial and at the first appellate stage. Both the parties continue to differ and have refused to patch up. As noticed earlier, we also failed in our efforts to bring this matrimonial dispute to some agreed solution. What is left of this marriage? Both the parties though educated but are still standing firm on their respective stands. They both seem to be totally unconcerned about their young child and have continued with their combatant attitude without any remorse. This marriage, if we may say, has irretrievably broken down. That of course cannot be a ground for granting divorce between this fighting couple. No wonder, the Hon'ble Supreme Court in a latest decision in Naveen Kohli vs. Neelu Kohli, 2006 (3) Scale 252 has made a recommendation to the executive to provide this as a legal ground for divorce. Till the law is amended, we will remain handicapped to act even in those cases where one finds that a marriage just cannot work and existence thereof is nothing but an agony for both the parties. We,

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as such, are required to decide if the allegations of cruelty made by the respondent were proved or not. 22. At this stage we may notice the observations made by this Court in the case of Naveen Kohli vs. Neelu Kohli (2006) 4 SCC 558. In this case the Court examined the development and evolution of the concept of mental cruelty in matrimonial causes. In paragraph 35 it is observed as follows: . The petition for divorce was filed primarily on the ground of cruelty. It may be pertinent to note that, prior to 1976 amendment in the Hindu Marriage Act, 1955 cruelly was not a ground for claiming divorce under the Hindu Marriage Act. It was only a ground for claiming judicial separation under Section 10 of the Act. By the 1976 amendment, cruelty was made a ground for divorce and the words which have been omitted from Section 10 are as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party . Therefore, it is not necessary for a party claiming divorce to prove that the cruel treatment is of such a nature as to cause an apprehension-reasonable apprehension - that it will be harmful or injurious for him or her to live with the other party. 23. The classic example of the definition of cruelty in the pre-1976 era is given in the well known decision of this Court in the case of N.G.Dastane vs. S. Dastane (1975) 2 SCC 326, wherein it is observed as follows: The enquiry has to be whether the conduct charged as cruelty is of such a character as to cause in the mind of the petitioner as reasonable apprehension that it would be harmful or injurious for him to live with the respondent. 24. This is no longer the required standard. Now it would be sufficient to show that the conduct of one of the spouses is so abnormal and below the accepted norm that the other spouse could not reasonably be expected to put up with it. The conduct is no longer required to be so atrociously abominable which would cause a reasonable apprehension that it would be harmful or injurious to continue the cohabitation with the other spouse. Therefore to establish cruelty it is not necessary that physical violence should be used. However continued ill-treatment cessation of marital intercourse, studied neglect, indifference of one spouse to the other may lead to an inference of cruelty. However in this case even with aforesaid standard both the Trial Court and the Appellate Court had accepted that the conduct of the wife did not amount to cruelty of such a nature to enable the husband to obtain a decree of divorce. 25. We may notice here the observations made by this Court in the case of Shobha Rani vs. Madhukar Reddi (1988) 1 SCC 105 wherein the concept of cruelty has been stated as under: The word cruelty; has not been defined in the Hindu Marriage Act. It has been used in Section 13(1)(i-a) of the Act in the context of human conduct or behaviour in relation to or in respect of matrimonial duties or obligations. It is a course of conduct of one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical, it is a question of fact and degree. It if it mental, the enquiry must begin as to the nature of the cruel treatment and then as to the impact of such treatment on the mind of the spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other, ultimately, is a matter of inference to be drawn by taking into account the nature of the conduct

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and its effect on the complaining spouse. There may, however, be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted. The absence of intention should not make any difference in the case, if by ordinary sense in human affairs, the act complained of could otherwise be regarded as cruelty. Intention is not a necessary element in cruelty. The relief to the party cannot b e denied on the ground that there has been no deliberate or willful ill-treatment. 26. In the case of V. Bhagat vs. D. Bhagat (1994) 1 SCC 337, this Court while examining the concept of mental cruelty observed as follows: 16. Mental cruelty in Section 13(1)(i-a) can broadly be defined as that 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 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. 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 which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made.

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False accusations of adultery or unchastity .That false accusation of adultery or unchastity amounts to cruelty came to be established at an early period. Such accusations can take various forms. Wife quarrelling with mother-in-law.-Mere domestic quarrels on account of the presence of the mother-in-law in the family would not constitute mental cruelty. Mere misbehaviour with parents of husband and other relations does not amount to cruelty. Demand of dowry.The demand of dowry from the wife or her parents and relations amounts to cruelty.But this should be distinguished from the Section 498-A, Indian Penal Code where under it is a criminal offence. Persistent refusal to have marital intercourse.Persistent refusal to have marital intercourse amounts to cruelty. In Shakuntala v. Om Prakash, Leila Seth, J. observed: A normal and healthy sexual relationship is one of the basic ingredients of a happy and harmonious marriage. If this is not possible due to ill-health on the part of one of the spouses, it may or may not amount to cruelty depending upon the circumstances of the case. But wilful denial of sexual relationship by a spouse when the other spouse is anxious for it, would amount to mental cruelty, especially when the parties are young and newly married, This is a consistent view taken by the courts. Wilful refusal to sexual intercourse and impotency.If refusal to have intercourse amounts to cruelty, so does the impotency. In Rita v. Balkrishna Nijhawan, the Delhi High Court observed, .... the law is well-settled that if either of the parties to a marriage being of healthy physical capacity refuses to have sexual intercourse, the same would amount to cruelty entitling the other to a decree. In our submission, it would make no difference in law whether denial of intercourse is the result of sexual weakness of respondent or it is beacause of his wilful refusal. This view has been confirmed by the Supreme Court in Sirajmohedkhan v. Hafizunissa, a case under Section 125, Criminal Procedure Code. Drunkenness.Following English decision, a view is propounded that drunkenness per se is not cruelty. But it seems in the context of Hindu culture, there may be certain circumstances in which drunkenness may amount to cruelty. M.L. Jam, J. rightly observed that the habit of excessive drinking is a vice and cannot be considered reasonable wear and tear of marriage life. If a spouse indulges in excessive drinking and continues to do so in spite of remonstrances by the other, it may amount to cruelty, since it may cause great anguish and distress to the other spouse who may find living together not merely miserable but unbearable. This decision gives a new dimension to cruelty, and considering our cultural context, it is a welcome decision. False criminal charges.In several cases it has been held that prosecution of a spouse by the other of a false criminal charge amounts to cruelty. Thus, it was held to amount to cruelty, where the wife launched prosecution of her husband on a false charge of bigamy under Section 494 of the Indian Penal Code.

23

Refusal to have children.Just as wilful refusal to have sexual intercourse amounts to cruelty, the persistent refusal of a spouse to have any children amounts to cruelty. Thus, wilful refusal to have sexual intercourse to frustrate the other spouses desire to have a child amounts to cruelty.6 Among Hindus (and for that matter every normal person wishes to have one or two children) the birth of a son is considered to be necessary for the salvation of the soul, and if one of the parties refuses to have marital intercourse or insists on having it only with the contraceptives, it would amount to cruelty. Wifes insistence to terminate pregnancy twice over for no valid reason despite the husbands desire to have a child amounts to cruelty. Similarly, when the wife got her pregnancy terminated without consulting her husband and for no valid reason, it was held to amount to cruelty. Irretrievable breakdown of marriage amounts to cruelty In Romesh Chander v. Savitri,AIR 1995 SC 851 twenty five years had elapsed since the appellant-husband, a sanitary inspector, and the respondent-wife, a school teacher, had enjoyed the company of each other. The Supreme Court said that within these 25 years, this is the second round of litigation which routing through the trial court and the High Court had reached them. Both the Courts below found that even though the wife had cast serious aspersions on the character of her husband in the written statement as saying that he was in the habit of mixing with undesirable women in her presence, but it was not proved. The Supreme Court said that this marriage was dead physically and emotionally and continuance of the alliance for namesake would be prolonging the agony and affliction. The Supreme Court passed a decree dissolving the marriage on the husband expressing remorse and agreeing to transfer his only house in favour of his wife. But second marriage of the husband does not mean and cannot be ground of irretrievable breakdown of marriage. The Supreme Court has sounded a word of caution in Shyam Singh Kohli v. SushmaAIR 2004 SC 5111, by observing that in very extreme cases Court may make use of this ground. Courts should not lightly dissolve marriage on this ground. A new trend is discernible whereby divorce is granted on the ground of cruelty when marriage is found to be dead or irretrievably broken down. The Supreme Court has given its seal of approval to this new trend in A. Jaya Chandra v. Aneel KaurAIR 2005 SC 534 , by observing that irretrievable breakdown of marriage is, though not a ground for dissolution of marriage, but in extreme cases, to do complete justice and shorten the agony of parties, a decree to dissolve the marriage may be passed. Threat to commit suicideWhen a spouse threatens the other to commit suicide with a view to coercing the other do something, it amounts to cruelty. Thus, in Dastane v. Dastane, the Supreme Court held that the threat given by the wife that she would commit suicide amounted to cruelty. False allegations of insanity and lunacyAllegations that husband and all members of his family are lunatics and a streak of insanity runs through his entire family amounts to cruelty.

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ADULTERY Before the coming into force of the Marriage Laws (Amendment) Act, 1976 living in adultery was a ground of divorce. On the other hand, a petitioner could obtain a decree of judicial separation, if he could show that his spouse, after the solemnization of the marriage, had sexual intercourse with any person other than his spouse. Now adultery simpliciter has been made ground of divorce as well as of judicial separation. The present clause has been worded thus has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse. Adultery: in matrimonial and criminal lawThe following is the accepted meaning of adultery in matrimonial law: Adultery may be defined as consensual sexual intercourse between a married person and a person of the opposite sex, not the other spouse, during the subsistence of marriage. Under the Indian law, adultery is also a criminal offence. But the definition is different. Section 497, Indian Penal Code defines it thus:Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of. another man without the consent or connivance of that man, such intercourse not amounting to the offence of rape, is guilty of adultery. Under S. 497, Indian Penal Code, (a) adultery can be committed only by a man and not by a woman, (b) person committing adultery must also know or should have reason to believe that the woman with whom he has had intercourse is the wife of another man, and (c) the sexual intercourse should not amount to rape, i.e., the intercourse must be with the consent of the wife. The criminal action is filed not against the wife but against the adulterer. The wife is not guilty of offence, not even as an abettor. In the matrimonial court when a petition is filed for the matrimonial relief of judicial separation or divorce, on the ground of adultery, the main relief is sought against the spouse and not against the adulterer, though, in most systems, adulterer, if known, is a necessary party to the proceedings and must be made a co-respondent (High Court Rules the Hindu Marriage Act, 1955, require that the adulterer should be made a co-respondent). Under both the criminal law and matrimonial law, adultery is an offence against marriage and therefore in both cases it is essential that at the time of the offence a valid marriage was subsisting. To constitute the offence of adultery it is also necessary that the respondent (in the case of criminal offence, the wife) was a consenting party. In short, the sexual intercourse must be consensual. If the respondent did not consent, just as when she was raped, it would not amount to adultery, Sexual intercourse with the respondent, when he, or she is unconscious, or under the influence of drug or liquor, will also not amount to adultery.

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Similarly, sexual intercourse in the belief that the adulterer is his or her spouse will also negate the charge of adultery. In a petition for divorce, it is not necessary, nor is it material, to prove that the correspondent had knowledge or reason to believe that the respondent was the wife or husband of the petitioner. If the respondent had intercourse with the co-respondent with the full knowledge that he or she was not his or her wife or husband, then it is enough. It may be emphasised that the matrimonial court is not much concerned with the knowledge of the respondent, that co-respondent was not his or her spouse. Thus, if the co-respondent had intercourse with a married woman personating to be her husband and the respondent taking him to be her husband had intercourse with him, she is not guilty of the matrimonial offence of adultery, though the co-respondent may be guilty of criminal offence of adultery. One single act of adultery is enough for divorce or judicial separation. The unwritten taboos and rules of social morality in this country and particularly in village areas must necessarily be taken into account. If an unrelated person is found alone with a young wife, after midnight in her bed-room in actual physical juxtaposition unless there is some explanation forthcoming for this, which is compatible with an innocent interpretation, the only inference that a court of law can draw must be that the two were committing an act of adultery together. The sexual intercourse contemplated by the clause is an intercourse with a third person, i.e., nonspouse. Thus, intercourse with the wives of pre-Act polygamous marriage will not amount to extra-marital intercourse. But if the second marriage is void, then intercourse with the second wife will amount to extra-marital intercourse within the meaning of the clause. Proof of adultery and burden of proofThe burden of proof is on the petitioner. At one time he was required to prove it beyond all reasonable doubts, but today it can be proved by preponderance of probabilities. Proof beyond all reasonable doubts, means such proof as precludes every reasonable hypothesis except that which tends to support it. It need not reach certainty, but must carry a high degree of probability. It is also an established rule that it is generally difficult to adduce direct evidence of adultery and usually the circumstantial evidence is sufficient. However, if direct evidence is reliable, it may be proved by direct evidence. When a person says that he saw the respondent and adulterer sleeping together in the night, it is sufficient proof of adultery. But direct evidence, even when produced, is looked down upon with disfavour. It is highly improbable that any person can be a witness to such acts which are generally performed in utmost secrecy. The fact that a married woman has been absenting herself from her house for four to six days at a stretch and has been seen more than once with a total stranger, there being no explanation for this, leads to an irresistible conclusion that she had committed adultery. However, the circumstances must satisfy that regarded together they lead to an irresistible inference that adultery must have been committed. If adultery is sought to be proved by non-access, then circumstances of non-access should be such as would lead a reasonable man to no other inference. Mere vasectomy is not a proof of adultery; proper semen test must also be taken. General evidence of the ill-repute of husband or of the lewd company that he keeps, or even that he knows the addresses of prostitutes and was seen with lewd women, would neither prove nor probabilize adultery. Similarly, mere admission of the wife in cross-examination will not be enough. Modern view is that adultery may be proved by preponderance of probability.

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But the circumstantial evidence must satisfy the test that they lead to an irresistible inference that adultery must have been committed. In Chandra Mohini v. A.P Srivastava,AIR 1967 SC 581 the Supreme Court held that the mere fact that some male relations write improper letters to a married woman does not necessarily prove that there was illicit relationship between the writer of the jetters and the married woman who recieved them. IRRETRIEVABLE BREAKDOWN GROUNDS :- Originally based as divorce was on the guilt theory; the divorce could be obtained if one of the parties to the marriage was guilty of a matrimonial offence and the other was innocent. In 1964, by the Hindu Marriage (Amendment) Act, a form of breakdown theory was introduced in Hindu law by modifying the last two clauses of Section 13(1), viz., clauses (viii) and (ix). These clauses were renumbered as clauses (i) and (ii) of Section 13(IA). These clauses have been modified by the Marriage Laws (Amendment) Act, 1976 under which the period of two years has been reduced to one year. Section 13(IA) runs as under . Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for dissolution of marriage by a decree of divorce on the ground (i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upward after the passing of a decree for judicial separation in a proceeding to which they were parties; or (ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upward after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties. As is evident, either, party can seek divorce. The question of guilt or innocence of either party does not arise. That this is the crux of breakdown theory was made evident in the Statement of Objects and Reasons appended to the Bill; the right to apply for divorce on anyone of these grounds should be available to both the husband or wife as in such a case it is clear that the marriage has proved a complete failure. There is, therefore, no justification for making the right available only to the party who has obtained the decree in each case. Thus, the clear intention of Parliament was that living in separation for a period of one year after a decree of restitution or judicial separation is a clear proof of failure of marriage or of the fact that marriage has broken down irretrievably, and therefore there is no use in retaining the empty shell. Further, in such a case, no useful purpose will be served in finding out as to which of the two is guilty or innocent. If two-in-oneship has ended, the marriage should be dissolved at the instance of either party. The period of one year :- The period of one year in either case commences with effect from the decree of the trial court granting restitution or judicial separation. A divorce petition may be filed after one year of the decree of restitution or judicial separation under this provision. A petition filed a day after the completion of one year for the date of the decree for judicial separation is not premature. The 1964 or 1976 amendment to the Act has not touched Section 23, as to its application to all matrimonial causes, including divorce under Section 13(1A). The result has been that when irretrievable breakdown of marriagclause

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came for interpretation, most of the High Courts applied Section 23(1)(a) and took the view that if the petitioner is found guilty of any wrong, he would not be granted divorce, even though there is a full compliance to the clause. Thus, where the husband obtained a decree of restitution but did not allow the wife to comply with it and when later on he sued for divorce on the ground of non-compliance of the decree for the statutory period,4 the courts refused to grant him divorce, as they felt that it would amount to giving him advantage of his wrong as his not allowing the wife to comply with his decree was such a wrong. In some cases also the same view has been expressed. O.P. Mehra v. Saroj, is a case illustrating the application of Section 23(1)(a) to the irretrievable breakdown ground. The husband filed a petition of divorce on the ground of wifes adultery, about six months after he had obtained a decree for restitution of conjugal rights. While the divorce petition was pending, one years period was completed as provided under Section 13(1-A)(ii), and he filed another petition for divorce under Section 13(1-A)(ii) on the basis of non-restitution of conjugal rights for a period of one year after the passing of the decree of restitution. The husband was probably in a hurry; he wanted to obtain divorce on whatever ground he could lay hand at. Due to this hurry or undue haste, the court came to the conclusion that granting of petition of the divorce under Section 13(1-A)(ii) would amount to giving him an advaiitage of his own wrong, as in the opinion of the court, the wife was prevented from complying with the restitution decree on account of his petition for divorce on the ground of wifes adultery; no self-respecting wife would go to her husbands house while her husband had sued her in the court alleging adultery on her part. Certainly, the husbands petition for divorce on wifes adultery in the intervening period was a new factor, a distressing factor, but this as well as all other facts of the case lead to the inevitable conclusion of breakdown of marriage, and if that was the position what ever efforts, ugly or mean he made, should not matter. The wife would gain nothing by keeping this empty shell of marriage. Thus, a spouse who had obtained a decree for restitution of conjugal rights fails to entreat the other spouse to join him, or a spouse against whom a decree had been obtained fails or refuses to comply with it, he or she will be in the wrong and the petition for divorce under Section 13(1-A) will fail. On the other hand, if he successfully entreats the other spouse to join him in the former case, and if he complies with the petition in the latter case, there is left no cause of action to file a petition for divorce. It appears that when the Amendment of 1964 was debated in Parliament, no one gave any thought to the possibility of the applicability of Section 23 to a petition under Section 13(1-A). Since the divorce structure in the original Hindu Marriage Act was based on fault theory, it is in that structure on1y that Section 23 has any relevance, and when a new structure of irretrievable breakdown of marriage was laid down, the projecting arm of Section 23 was not cut down but rather allowed to cast its shadow; the courts applied Section 23 to the irretrievable breakdown of marriage basis of divorce also. They overlooked the spirit and the law behind Section 13(1-A), and, adhered as they do to mechanical jurisprudence, applied Section 23, in the result Section 13 (1-A) was almost rendered nugatory Bai Mani v. Jayantilal,AIR 197 Guj 209 the Gujarat High Court held that the continunace of the same wrong such as adultery, on the basis of which the decree for judicial separation was passed, was not a wrong inhibiting the relief under Section 13(1-A). Nor was it essential that the petition

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should have made any effort of resumption of cohabitation after a decree for judicial separation. A mere distinction to accept an offer of reconciliation or mere non-compliance or reluctance to comply with a decree of restitution, does not amount to wrong under Section 23(1)(a). With Dharmendra v. Usha,AIR 1977 SC 2218 where the Supreme Court has taken this view, the old cases should be treated as bad law, though as we have seen in cases like O.P. Mehra v. Saroj, the devotion of some High Courts to apply Section 23, wherever possibly they can, has not waned. Husbands refusal to or failure to make efforts at resumption of cohabitation or his failure to pay alimony does not amount to his taking advantage of his own wrong.2 However, in T. Sriniwas v. T Varalakshrni, AIR 1999 SC 595 in a very brief judgment, the Supreme Court has again ruled to the effect that Section 23(1)(a) shall be applicable on Section 13(1A). It seems that this controversy has taken a somersault and is veering towards old view of reading section 23(1)(a) into Section 13(1A). It has again been held by the Supreme Curt in Hirachand Srinivas v. Sunanda,AIR 2001 SC 1285 that Section 23 would apply to Section 13(1A) and court is not bound to grant divorce on mere proof of non-cohabitation for the stipulated period and that further section 10(2) does not vest a right to get decree for divorce in the spouse. In the instant case, the husband was living an adulterous life and continued to do so even after the decree of judicial separation was passed. On the expiry of one year, he petitioned for grant of divorce under Section 13(1A). He had also not paid any maintenance to the wife. In view of the above two facts, court held him to be in wrong and refused his petition. The following observations of the court may be noted,It has to be kept in mind that human relationships between spouses is a matter concerning human life. Human life does not run on dotted lines or charter course laid down by the statute. It has also to be kept in mind that before granting the prayer of the petitioner to permanently snap the relationship between the parties to the marriage, every attempt should be made to maintain the sanctity of the relationship which is of importance not only for the individuals or their children but also for the society. In view of the above observations, it is submitted that the learned judges though appreciate the fine nuances of human life but fail to see the whole issue in larger perspective. It is agreed that a settlement as to maintenance has to be made before the grant of divorce. But an important fact has been overlooked by the learned judges that the petitioner was and is living in adultery which means that he has no intention of cohabiting with his wife. This fact amply shows that the marriage is in fact irretrievably broken down and by refusing the decree what the court is retaining is an empty shell. What purpose this empty shell is going to serve to the society is difficult to fathom. In Indian society divorce has traditionally been looked as a stigma, a thing not done, whereas in western societies it is an accepted part of the life. But where no wrong was alleged or established on the part of husband for non-compliance of decree of restitution, this would not disentitle him from seeking divorce under Section 13(1A). It has again been held by the Supreme Court in Hirachand Srinivas v. Sunanda, that Section 23 would apply to Section 13(1A) and court is not bound to grant divorce on mere proof of noncohabitation for the stipulated period and that further Section 10(2) does not vest right to get decree for divorce in the spouse. In the instant case, the husband was living an adulterous life and continued to do so after the passing of the decree of judicial separation. On the expiry of one year, he petitioned for grant of divorce under Section 13(1A). He had also not paid any maintenance to the wife. In view of the above two facts, court held him to be in wrong and

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refused his petition. It is agreed that a settlement as to maintenance has to be made before the grant of decree. But an important fact has been overlooked by the learned judges that the petitioner was and is living in adultery which means that he has no intention of cohibitation with his wife. This fact amply shows that the marriage is in fact irretrievably broken down and by refusing the decree what the court is retaining is an empty shell. What purpose this empty shell is going to serve to the society is difficult to fathom. In a landmark judgment in Naveen Kohli v. Neelu Kohli,AIR 2006 SC 1675 the Supreme Court has exhorted the Union of India to seriously consider and amend the existing Act to add the ground of irretrievable breakdown of marriage. The criteria or touchstone that a marriage has broken down irretrievably should be the long period of separation. The Supreme Court has admitted that fault grounds are proving to be inadequate to deal with this problem. To quote the apex court 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 is a long period of continuous separation, it may fairly be surmised that 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 feelings and emotions of the parties. It is submitted here that the present authors had also propounded the same thesis based on similar reasoning.2 In this light reading Section 23 along with Section 13(1-A) also becomes anachronistic. The Supreme Court has further emphasized this aspect in Manjula v. KR. Mahesh,AIR 2006 SC 2750 where all efforts at reconciliation failed and parties claimed that marriage has irretrievably broken down. After making arrangements for the daughter of the marriage, divorce was granted to the parties. It has been held that an ex parte decree or consent decree for judicial separation or restitution of conjugal rights can also be the basis of petition for divorce under Section 13(1-A).

INSANITY Insanity is a ground both for judicial separation and divorce. The Marriage Laws (Amendment) Act, 1976 has changed the language of clause (iii) of S. 13 (1) completely. The clause now lays down that a petitioner may get a decree of divorce (or judicial separation) if 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 be expected to live with the respondent. Explanation to the clause defines mental disorder as mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia.3 The expression psychopathic disorder is defined as 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. This provision has been borrowed from the English law. One wonders what advantange we are going to draw from this new change. It merely makes simple matters complicated. Gupte rightly observes It is a

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pendantic rigmarole meaning nothing except unsoundness of mind. In the submission of the present writers, this is nothing but another instance as to how we ape the English law, least bothering whether in our social context this will work or not. Mental disorder or schizophrenia should be of such a quality that the petitioner is not reasonably expected to live with the respondent. The explanation of this section is not added to limit the scope of the main provision. The petitioner only has to prove that as a reasonable person it is not possible for him/her to live with the other party because of the mental illness. It seems that in a petition on the ground of insanity, a preliminary inquiry as contemplated in Rule 3, read with R. 15 of 0. 32, Civil Procedure Code, is necessary. In Ram Narayan v. Rameshwari, AIR 1989 SC 149the Supreme Court said that in schizophrenic mental disorder, the petitioner should prove not merely the said mental disorder, but should also establish that on that account the petitioner could not reasonably be expected to live with the respondent. In K. Jasmine v. Balsundarm, the wife underwent medical test at the instance of the husband. The medical test and insanity went against the husband. The wife could not be ordered to undergo another test of I.Q. Mental disorder and not psychological depression is a ground of divorce under the Act. LEPROSY The Marriage Laws (Amendment) Act, 1976 has made leprosy a ground both for judicial separation and divorce. No duration of leprosy is specified. Under the c]ause, the petitioner is required to show that the respondent has been suffering from virulent and incurable leprosy. Thus, two conditions are necessary it must he (i) virulent, and (ii) incurable. With the advance in medical science, leprosy is now mostly curable in its early stages. It seems that some period must elapse when virulent leprosy becomes incurable. Malignant or venomous leprosy is called virulen: leprosy. A mild type of leprosy which is capable of treatment is neither a ground for divorce nor for judicial separation. But lepromatous leprosy which is malignant and contagious and in which prognosis is usually grave is virulent leprosy. Swarajya Laxmi Versus Dr.G.G. Padma Rao AIR 1974 SC 165 :- Sometimes the spread can be arrested by a long period of treatment, but relapes in it are frequent. Leprosy is also virulent from which ulcerous and unsightly symptoms appear or when social intercourse becomes almost impossible. VENEREAL DISEASE Venereal disease to be a ground for divorce or judicial separation must be in a communicable form. Congenital syphilis is excluded from its ambit. That the disease is curable or was contracted innocently is immaterial. The Marriage Laws (Amendment) Act, 1976 had done away with the duration of the disease (originally it was required to be of three year& duration), and has also omitted the words, disease having not been contracted from the petitioner which overruled in Section 1O(1)(d), but these words did not exist in Section 13(1)(v). One was apt to say that divorce could be obtained even if the disease was contracted from the petitioner, but judicial separation could not

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be. It was an anomalous situation. This writer had submitted in the earlier editions of this work that it would hardly make any difference in the actual working of these clauses, as divorce, too, could not be obtained if the disease was contracted from the petitioner in view of Section 23(1)(a), under which no petitioner could obtain relief if it would mean giving him or her an advantage of his or her own wrong. It is submitted that the same would be the position now. CONVERSION Under clause (ii) of Section 13(1) of the Hindu Marriage Act, if the respondent has ceased to be a Hindu by conversion to another religion, divorce may be obtained. Under the clause two conditions must be satisfied (1) respondent has ceased to be a Hindu, and (2) he has converted to another religion. Section 13(l)(vi), Hindu Marriage Act.Ceases to be a Hindu.A person does not cease to be a Hindu merely because he declares that he has no faith in his religion. A person will not cease to be a Hindu if he does not practice his religion, or does not have faith in his religion or renounces his religion or leads an. unorthodox life, so much so even if he eats beef and insults all Hindu gods and goddesses. He will also not cease to be a Hindu even if he expresses his faith in another religion and even starts practising another religion. Such a person will continue to be a Hindu. Thus, ceasing to be a Hindu is hardly material except in the context of conversion. A person who, at the time of his marriage was a Hindu by religion converts to Sikhism, Jainism or Buddhism, will not cease to be a Hindu, since a person who is Sikh, Jam or Buddhist by religion is a Hindu. This ground will be available only when the respondent converts to a non-Hindu faith, such as the Christianity, Islam or Zoroastrianism, What is required is a conversion to a non-Hindu faith, and such conversion can take place when the respondent undergoes the formalities prescribed by the faith to which he seeks conversion. Sincerity of conversion or genuineness of belief in the new faith is immaterial. It is also not necessary that the respondent, after conversion, should practise the new faith. The conversion of the respondent to a non-Hindu faith does not amount to automatic dissolution of marriage. The petitioner has to file a petition to obtain a decree of divorce. If a petitioner chooses to continue to live with his spouse who has converted to another religion, there is nothing to debar him from doing so.

BARS TO MATRIMONIAL RELIEF Under the modern law, not all bars apply to all matrimonial causes. Section 23 as amended by the Amending Act of 1976 runs as under In any proceedings under this Act, whether defended or not, the court is satisfied that (a) any of the grounds for granting relief exists and the petitioner is except in cases where the relief sought by him the ground specified in sub-clauses (a), (b) and (c) of clause (ii) of Section 5, is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief, and

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(b) where the ground of the petition is the ground specified in Clause (i) of sub-section (1) of Section 13, the petitioner has in any manner been accessory to or connived at or condoned the act or acts complained of, or where the ground of the petition is cruelty, the petitioner has not in any manner condoned cruelty, and (bb) when divorce is sought on the ground of mutual consent, such consent has not been obtained by force, fraud or undue influence; and (c) the petition (not being a petition under Section 11) is not presented or prosecuted in collusion with the respondent, and (d) there has not been any unnecessary or improper delay in instituting the proceedings, and (e) there is no other ground why relief should not be granted, then, and in such a case, but not otherwise, the court shall decree such relief accordingly. A decree passed in disregard to clauses (a) to (e) of Section 23(1) is a nullity. Section 23(1) deals with the following bars (a) Doctrine of strict proof or standard of proof and burden of proof (b) Taking advantage of ones own wrong or disability, (c) Accessory, (d) Connivance, (e) Condonation, (1) Collusion, (g) Delay, and (h) Any other legal ground. Doctrine of proof or standard of proof and burden of proof.Matrimonial proceedings are civil proceedings, and just as in any other civil suit, in a matrimonial suit, after the receipt of summons by the respondent, the following three situations may arise (a) the respondent does not put up any appearance in the court, the court proceeds against him in his absence, i.e., ex parte, (b) the respondent puts up appearance in the court and admits the guilt, or c) the respondent contests the case. In an ordinary civil case, in the first situation, the court records the oral testimony of the plaintiff and some corroborative evidence, if considered necessary, and decrees the suit. In the second situation, the court passes a decree on the admissions of the parties. In the third situation, the court will proceed with recording of the evidence of the parties and on the basis of the evidence, the suit may be dismissed or decreed.

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But in a matrimonial case, whether the petition is defended or not, whether contested or not, the burden of proof is on the petitioner, and he must prove his case beyond all reasonable doubts. This is known as doctrine of strict proof. No decree could be passed on the consent of the parties. In Dastane v. Dastane, Chandrachud, J. (as he was then) has struck a different note. According to the learned judge, though the burden of proving cruelty lies on the petitioner, the cruelty may be proved by balance of probabilities. It is submitted that this is a healthy departure from the old doctrinaire view. This is now the standard of proof in all matrimonial causes. The modern matrimonial law lays more emphasis on the fact as to whether a marriage has broken down or not rather than on the guilt or innocence of the parties. Standard of proofCorroboration.It is well settled that the ground for relief in a matrimonial cause should be strictly proved. The standard ol proof in case of alt proceedings under this Act is that the court must be satisfied beyond all reasonable doubts that the ground for relief is proved. Normally the court requires that the evidence oi a spouse who charges the other spouse with a matrimonial offence should he corroborated, But there is nothing to prevent the court from passing a decree even on uncorrohoratcd testimony of the petitioner where the facts otherwise justify so. In Bipin Chander v, Prabhawati the Supreme Court referred to the law in England and observed that though corroboration is not required as an absolute rule of law in proof of a matrimonial offence. the court insists upon corroborative evidence as a precaution unless its absence is accounted for to the satisfaction of the court. The correct test is that the court must he satisfied beyond reasonable doubts about the commission of the matrimonial of fence and that evidence must be clear and satisfactory beyond mere balance of prohahi1ities. Court cannot decree ex-parte.-Before discussing the conditions on satisfaction of which a court may grant relief, it may be mentioned that the courts cannot pass ex parte decree in matrimonial suits. The court remains under the obligation of satisfying itself that there is sufficient legal evidence to support thc decree. The court must record evidence and as a rule should not decide a case on mere admissions of the parties, and without recording evidence. In proceedings for divorce the evidence of the husband or wife alone ought never to be accepted without corroboration either by a witness or at least by a strong surrounding circumstances. NOT TAKING ADVANTAGE OF ONES OWN WRONG :- Section 23 (1)(a): any of the grounds for granting relief exists and the petitioner except in cases where the relief is sought by him on the ground specified in sub-clause (a), sub-clause (b) or sub-clause (c) of clause (ii) of Section 5 is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief .Thus, Section 23 (1) (a) provides for observance of two conditions, namely: 1. The ground for granting the relief exists. 2. The petitioner is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief.

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The ground for granting the relief exists: The Court is to be satisfied by the petitioner that the ground for granting the relief exists. That mean the burden of proof is on the petitioner. Section 23 confers on the Court the power to pass a decree if it is satisfied that ground for relief for which the petition has been presented does exist. Dastane v. Dastane, the Court observed, Considering that proceedings under the Act are essentially of a civil nature, the word satisfied must mean satisfied on preponderance of probabilities and not satisfied beyond a reasonable doubt. Section 23 does not alter the standard of proof in civil cases. The Court explained that, Within the wide range of probabilities, the Court has often a difficult choice to make but it is this choice which ultimately determines where the preponderance of probabilities lies. The court also observed that proof beyond reasonable doubt is proof by a higher standard which generally governs criminal trials or quasi-criminal trials. It is wrong to import such considerations in trial of a purely civil nature. The petitioner is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief: This bar shall not apply in case the relief is sought on any of the grounds mentioned in sub-clause (a), sub-clause (b) or sub-clause (c) of clause (ii) of Section 5. These sub-clauses deal with incapacity of the respondent to give a valid consent to the marriage because of unsoundness of mind or mental disorder of such a kind or to such an extent as to be unfit for marriage or has been subject to recurrent attacks of insanity. The relief which can be sought on these grounds is presenting the petition for annulling the voidable marriage under Section 12 (1) (ii). Insanity is also a ground for seeking divorce under Section 13 (1) (iii) but unlike Section 12 (1) (ii), it does not make a reference to sub-clause (a), sub-clause (b) or subclause (c) of clause (ii) of section 5. Meaning of the term wrong: According to Section 23 (1) (a), a person cannot take advantage of his own wrong but the Courts have held that mere non-compliance of a decree is not a wrong as contemplated under Section 23(1) (a). In Dharmendra Kumar v. Usha Kumar, the Court observed that in order to be a wrong within the meaning of Section 23 (1) (a), the conduct alleged has to be something more than a mere disinclination to agree to an offer of reunion. It must be misconduct serious enough to justify denial of the relief to which the husband or the wife is otherwise entitled. Nor is it essential that the petitioner should have made any effort for resumption of cohabitation after a decree for judicial separation is passed. Living separately does not amount to wrong as the term wrong as contemplated in Section 23(1) (a) of the Act contemplates causing some injury to the other side. Conduct amounting to wrong: In Jeet Kurnar v. Smt Rama Kumari, husband obtained the decree of restitution of conjugal rights and after the making of the decree; he withdrew from the company of the wife without reasonable cause. Later when he sued for divorce under Section 13 (1A) on the ground of noncompliance with the decree of restitution of conjugal rights for more than one year, the Court declined the relief to him on the ground that he is trying to take advantage of his own wrong.

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In Prabhat Kumar Chakraborty v. Papiya Chakraborty, the Court held that where the party consciously and by force prevents the compliance to decree of restitution of conjugal rights, it constitutes wrong under this clause. In O.PMehta v. Smt. Saroj Mehta , husband obtained a decree of restitution of conjugal rights in his favour. Subsequently he presented a petition for divorce on the ground of adultery. The Court disallowed his claim holding that he deliberately acted in a cruel and vicious manner by making allegations of adultery and thus, making it impossible for the wife to come back to the home and resume co-habitation and therefore making a ground of non-compliance with the decree. The Court held in the facts of the case, husband is trying to take advantage of his own wrong.

In Hirachand Sriniuas Managaonkar v. Sunanda AIR 2001 SC 1285 , wife had obtained a decree of judicial separation in her favour on the ground of the adultery. The husband was also ordered to pay Rs 100 per month as maintenance for the wife and Rs. 75 per month maintenance for the daughter. He did not comply with the order. At the expiry of one year from the date of the decree, the husband filed the petition for divorce under Section 13(1-A). The Court held that non-payment of the maintenance to the wife of the small amount of Rs 100 and marking time for expiry of the statutory period of one year after the decree of judicial separation so that he may easily get a decree of divorce, the husband committed a matrimonial wrong. And he further estranged the relation creating acrimony rendering any rapprochement impossible and at the same time tried to take advantage of the said wrong. The Court further held that living in adultery is a continuing offence and since in this case the husband continued to lead an adulterous life even after passing of the decree for judicial separation, it amounts to be a wrong under Section 23 (1)(a) of the Act. In Savitri Pandey v. Prem Chandra Pandey AIR 2002 SC 591 , husband and wife did not cohabit after one month of the marriage and the marriage was not consummated too. Wife filed a petition for divorce on the grounds of desertion and cruelty. She was not forced to leave the husbands company nor was she thrown away from the matrimonial home. No attempt was ever made by the husband to bring the marriage to an end. Rather the wife had abandoned the house and declined to cohabit. The Court refused to grant relief to the wife as she was trying to taking advantage of her own wrong. Conduct not amounting to wrong: In G.VN. Kameswara Rao v. G. Jabilli, AIR (2002) 2 S.C.C. 296. husband flied the petition for divorce on the ground of cruelty. The husband was enjoying high position in U.S.A. He was insulted and humiliated. Attitude of the wife was not cordial and non-co-operative. The wife alleged for dismissal of the petition on the ground that her husband was taking advantage of his own wrong as he had executed a power of attorney in favour of his brother-in-law authorizing him to take steps for seeking divorce in the year 1982. The Court held that in the facts of the case, appellant cannot be denied relief by invoking Section 23 (1) (a) of the Act.

NO CONNIVANCE OR CONDONATION :- (b) where the ground of the petition is the

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ground specified or in clause (i) of sub-section (1) of Section 13, the petitioner has not in any manner been accessory to or connived at or condoned the act or acts complained of, or where the ground of the petition is cruelty the petitioner has not in any manner condoned the cruelty. Sub-clause (b) of Section 23 (1) covers divorce petition on two different grounds, namely, adultery and cruelty. 1. In case the ground of the petition is the ground specified in Section 13 (1) (i), which is adultery, the petitioner has not in any manner been accessory to or connived at or condoned the act or acts complained of. 2. Where the ground of the petition is cruelty, the petitioner has not in any manner condoned the cruelty.

In case the ground of the petition is the ground specified in Section 13 (1) (i), which is adultery, the petitioner has not in any manner been accessory to or connived at or condoned the act or acts complained of Been accessory to means helping, promoting or facilitating the act of adultery. It may be active facilitation. Connivance means ignoring deliberately thus, it is crooked or passive facilitation. Condoning means something more than forgiving. It means not only forgiving but also relegating the person at mistake to his or her original position as if the mistake or fault had not been committed. Condonation as a bar to matrimonial relief: - Condonation is a bar to relief on the grounds of adultery as well as cruelty. Condonation means reinstatement of spouse with the intention of remitting it, with the intention of not enforcing the rights which accrue to the wronged spouse in consequence of the matrimonial offence. Where there are no pleadings of condonation, Court cannot condone matrimonial offences of its own In the matter of Dastane v. Dastane , the Court explained that condonation means forgiveness of the matrimonial offence and the restoration of the offending spouse to the same position as he or she occupied before the offence was committed. To constitute forgiveness, there must be, therefore, two things, forgiveness and restoration. Adultery and condonation: In Saddan Singh v. Reshma, wife continued to have marital intercourse with her husband despite alleging that her husband had sexual relationship with his sister-in-law. It was held to be a case of condonation. Cruelty and condonation: In Dastane v. Dastane , the cruelty of the wife was established but both of them cohabited and had a normal sexual life and even a daughter was born, the Court held it to be a case of condonation of cruelty. The Court observed, The evidence of condonation in this case is, in our opinion, as strong and satisfactory as the evidence of cruelty. But that evidence does not consist in the mere fact that the spouses continued to share a common home during or for some time after the spell of cruelty. Cruelty, generally, does not consist of a single, isolated act but consists in most cases of series of acts spread over a period of time. Law does not require that at the first appearance of a cruel act, the other spouse must leave the matrimonial

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home, lest the continued cohabitation be construed as condonation. Such a construction will hinder reconciliation and thereby frustrate the benign purpose of marriage laws. AccessorySection 23(1), Hindu Marriage Act.Accessory is a term of criminal law. It implies active participation in the crime of the respondent. A person may be an accessory before the commission of the crime or after the commission of crime. He may also be an accessory at the time of the commission of crime (in such a case, he is called an accomplice). For instance, X may be an accessory in the murder of A by B in the following situations B goes to X and says that he wants to kill A, could he lend his pistol, and if X lends his pistol and B shoots A with it, X is an accessory before the fact. B stabs A while X holds him, X is an accomplice, B kills A and goes to X for the disposal of the body of A and if X helps him, he is an accessory after the fact. The same holds good in respect of adultery; It may be noted that the bar applies only to adultery. Thus, if a husband goes out and brings people for having intercourse with his wife, or if he keeps a watch while his wife is committing adultery, or if his wife goes to a place to commit adultery and he acts as an escort to bring her back, he is an accessory. In being an accessory there is a knowing active participation in the offence by the petitioner, and if such a participation is established, he cannot get a decree of judicial separation or divorce, as the case may be, ConnivanceSection 23(1)(b).Connivance, like accessory, is based on the maxim of equity one who comes to equity must come with clean hands. It is a concept of ecclesiastical law that if the petitioner has connived at the adultery of the respondent, he cannot be granted any matrimonial relief. The word has been derived from connive which means to wink at. Like accessory; connivance also applies to adultery. Connivance may be (a) anticipatory willing consent, or (b) culpable acquiescence, active or passive. The basic distinction between accessory and connivance is that in the former, there is an active participation by the petitioner in the guilt of the respondent, while in the latter there is no active participation. What is necessary is a corrupt intention, and not active corruption. To constitute connivance, consent, express or implied, is necessary. If the petitioner actively consents, the corrupt intention is there. For instance, if the respondent makes a proposal, expressly or by implication, that she would like to make money by illicit intercourse and the petitioner agrees with the proposal expressly or by implication, he is guilty of connivance, though he has actively done nothing. Or, if a wife invites a friend in the house for dinner and the guest indulges in undue familiarity with her, sensing what is going to happen, the husband withdraws from the place so as to allow the wife and the guest free-hand, it would amount to connivance as there is culpable acquiescence on his part. In its essence, connivance precedes the matrimonial offence. Once the consent is established for the first act, it is no defence to say that he or she did not consent for its repetition. However, this should not imply to mean that if a petitioner has connived at the adultery with one person and the respondent commits adultery with all and sundry, he or she can defeat the action of the petitioner on the basis of the subsequent acts of adultery by saying that the petitioner connived at the subsequent acts also. Once connivance is found, the court has to investigate all the facts and surrounding circumstances including the time-lag between the various acts of adultery, and then come to the conclusion whether or not the connivance at the first has spent its force before the subsequent act or acts of adultery were committed. Mere inattention, negligence, folly, failure of apprehension or imprudence

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does not amount to connivance. Spying with a view to finding out the truth does not amount to connivance. But if the petitioner oversteps his spying and deliberately fosters and encourages a situation which results in the commission of adultery, he cannot come forward and say that his motive was to obtain conclusive proof. In such a case, culpable intention may be implied. CondonationSection 23(1) (b), Hindu Marriage Act.Whenever the ground for matrimonial relief is cruelty or adultery, Section 23(1)(b) requires that the court should be satisfied that the offence complained of has not been condoned by the petitioner, it is immaterial whether petition is defended or undefended or whether a specific issue on condonation has been, or has not been, framed. Under Hindu law, condonation does not apply to any other matrimonial offence. However, in Som Dutt v. Raj Kumari,1 the Punjab and Haryana High Court held that it applies to fraud. It is submitted that the decision is wrong. Condonation has not been defined in the Act, nor has a complete definition been laid down judicially, It is often said that condonation means blotting out or erasing out the matrimonial offence, so as to restore the offending spouse to the same position as he or she occupied before the offence was committed. The expressions, blotting out and erasing out are figuratively good expressions of the situation. But literally speaking, no offence can ever be blotted out or erased. Essential characteristics of condonation are the forgiveness and reinstatement by the spouse who has suffered the matrimonial offence. Condonation essentially implies forgiveness plus restoration of status quo ante, Mere forgiveness is not condonation; to be condonation, it must completely restore the offending party in its former status and must be followed by cohabitation. The constitutent elements of condonation are : (a) forgiveness, and (b) reinstatement. Forgiveness and reinstatement.For forgiveness to be a constituent element, it is necessary that it should be given after the full knowledge of all material facts. Condonation to be valid can take place only when the offended spouse has full knowledge of all material circumstances of the offence forgiven. At the same time, mere forgiveness is not enough, the guilty party must be restored back to her or his original place, that is to say, cohabitation must be resumed full fledged. For instance, if the respondent wife shows her repentance to the husband for the adultery, and the husband tells her All right, I have forgiven you. But now onwards we shall sleep in different rooms. This may be forgiveness but not reinstatement and therefore there is no condonation. Forgiveness must be coupled with reinstatement of the guilty spouse, then alone it can amount to condonation. The question came before the Calcutta High Court in Saptami v. Jagdish Chandra, where a wife petitioned for judicial separation on the ground of cruelty of the husband. Parties lived together and slept in the same bedroom till August, 1963 when the acts of cruelty complained of commenced. After that, the wife lived in the same house, leaving it off and on, on being harassed by her husband, but coming back every time for the sake of her children. After August, 1963, it was established that parties did not have any marital intercourse. Though the wife lived in the same house, most of the time the parties did not talk to each other and slept in different rooms. The court held that merely because the wife lived in the matrimonial home, it does not mean that

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she cohabited with her husband. Since cohabitation was not resumed, it did not amount to condonation. In Dastane v. Dastane, the husband petitioned on the ground of wifes cruelty. It was established that after the alleged acts of cruelty, parties continued cohabitation and during the period a daughter was born to them. The court said that normally, sexual intercourse is evidence of both forgiveness and reconciliation and raises a presumption of condonation. A solitary freakish act of sexual intercourse would not raise an irrebuttable presumption of condonation. Resumption of cohabitation was held to be condonation. In Chandra v. Avinash AIR 1967 SC 581, the Supreme Court took the view that resumption of cohabitation with the full knowledge of respondents adultery amounts to condonation. In cases of cruelty,, the resumption or continuation of cohabitation is almost always with full knowledge of respondents guilt, yet the petitioner may have no alternative but to put up with it, may be on account of the consideration of the children, or on account of consideration of prestige or family background. Should this conduct amount to condonation ? This seems to be the view of the Supreme Court. In our submission, this should not be so. Resumption, or continuation, of sexual intercourse must be with a view to resuming cohabitation. If one party agrees to sexual intercourse with a view to reconciliation, but necessary reconciliation does not come about because the offending spouse is not sincere, the resumption of intercourse will not amount to condonation.If parties have resumed cohabitation, though there is no evidence that sexual intercourse has also been resumed, it will nonetheless amount to condonation. This is more true in the context of Hindu way of life. Mukheiji, J., very pertinently observed : there are married persons who have mastered their passions instead of being mastered by them and maintain complete abstinence in their conjugal life. They regard each other as partners and co-workers in life, dispensing with sexual act altogether. If such persons fall out and again resume cohabitation, that is enough. No evidence of sexual intercourse is necessary unless it is shown that resumption of cohabitation was partial. Revival of condoned offence .There is nothing like conditional condonation and condonation once given cannot be revoked. However, there is an implied condition in every condonation that the offending spouse will behave in future, i.e., will not repeat the same matrimonial offence, will not commit any other matrimonial offence, or will not be guilty of any marital misconduct. If he does so, the condoned offence will revive. Thus, a condoned offence may revive if the guilty party (1) repeats the condoned offence, (2) commits some other matrimonial offence, or (3) is guilty of some marital misconduct. The first case is simple. On wife admitting her illicit relationship, the husband agreed to take her back. Subsequently, she was again found in the company of her paramour. It was held that condoned offence revived. We may illustrate the last two cases. If after adultery is condoned, the offending spouse is found guilty of cruelty, the offended spouse can petition for divorce on the ground of adultery. Similarly, after condonation, if the offending spouse is found guilty of marital misconduct which does not constitute any

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matrimonial offence, the condoned offence, nonetheless, revives and the offended spouse can petition on the original ground. For example, adultery is condoned, but subsequently the offending spouse is found guilty of gross or undue familiarities with the adulterer or with some other person, this will go to revive the condoned offence of adultery. Or, the offending spouse deserts the offended spouse after condonation, howsoever short the desertion may beit may not be for the entire statutory periodthe condoned offence of cruelty will revive. In short, condonation implies a condition that there shall be in future a proper compliance with the matrimonial decencies and duties and the offending spouse is admitted back to cohabitation on that condition alone. However, this should not be taken to mean that condonation remains conditional for all times to come. It is like taking the guilty party on probation, but probationary period cannot be unlimited. In every case a point will be reached when revival of the condoned offence cannot take place. For instance, after condonation of the offence of cruelty, if parties live together for seven years, then the offending spouse slaps the offended spouse, it can not be said that seven years old offence of cruelty has revived. Collusion.Section 23(1)(c).With the exception of a petition for nullity of marriage under Section ii, collusion is a bar to every other matrimonial relief. Collusion virtually amounts to obtaining divorce by consent. Collusion may be defined as an agreement, arrangement or understanding, express or implied, between the parties or their agents whereby matrimonial relief is designed to be obtained, where in fact no ground or sufficient ground exists, by deceiving the court by misrepresentation, exaggeration or suppression of facts or by cooking up entirely false evidence. Under Section 23(1)(c), it is incumbent on the court to enquire and satisfy that there is no collusion. The burden of proof is on the petitioner to show that proceedings are not collusive. Hotel Bill Cases. What happened in these cases was a husband took some woman to a hotel, registered himself and the woman in the hotel as Mr. and Mrs., took a room in the hotel, stayed there for the night. Next day he left the hotel along with the woman making payment of the hotel bill in the name of Mr. and Mrs. Subsequently, the wife filed a petition for divorce on the ground of husbands adultery. In evidence she filed a copy of the hotel register and a copy of the hotel bill. The wife also produced some oral evidence of the hotel bearer and the like to testify that her husband and the other woman spent the night together in the same room. In such cases the husband either did not put up appearance or did not rebut wifes evidence. Thus, divorce was obtained. These were the cases of collusion. Jogindra v. Pushpa, 1969 P & H 397 A full Bench of the Punjab High Court, by majority, said that a consent decree for restitution can form a basis of divorce under Section 13(1A), provided it was a genuine consent decree and was not collusive consent decree intended to fabricate in advance a ground of divorce. It is only in this sense that collusion may be pleaded as a bar to petition for divorce on the basis of mutual consent; otherwise collusion cannot bar a petition for divorce by mutual consent. Collusion to amount to bar to relief must be such as to pervert or subvert the course of justice. Thus, when parties in anticipation of divorce make arrangement in respect of custody of children, maintenance of the parties, or of joint property, it does not amount to collusion. However, such arrangements may amount to collusion if, for instance, husband

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allows excessive maintenance to the wife so that she may agree for divorce. In every case it will be necessary to show that purpose of such an arrangement was to pervert the course of justice, then it would amount to collusion. DelaySection 23(1)(d), Hindu Marriage Act.Delay applies to all the matrimonial reliefs. Proceedings in a matrimonial cause are civil proceedings. For most civil actions a period of limitation is laid down. However, for matrimonial actions no period of limitation as such has been prescribed. But this does not mean that a matrimonial action can be filed at any time irrespective of the fact as to how much time has lapsed after the cause of action arose. To matrimonial proceedings, the principle of laches applies. Section 23(1)(d) embodies this principle thus : court must be satisfied that there has not been any unnecessary or improper delay in instituting proceeding. Any delay, whatever be the period, which can be reasonably or properly explained will not be necessary or improper delay. The test is : is the delay culpable, or, is it in the nature of a wrong ? The conduct of the petitioner should be such as to estop him or her from the remedy the delay indicates that sense of injury is wanting. Any unexplained delay is fatal to the petition. Just as in the case of other bars, the burden of proof is on the petitioner. The basis of the rule is that delay in matrimonial causes may lead to an inference that there has been condonation, acquiescence in the guilt, indifference to the injury, or collusion between the party, or there is some ulterior motive in waking up after a long slumber. But if a reasonable explanation is forthcoming, whatever be the period of delay, the petition cannot be defeated. In considering whether there is unnecessary delay or unreasonable delay in seeking the relief, the conditions of the society in which the parties live and traditions of the families to which they belong cannot be ignored. The Hindu society looks with disfavour at dissolution of marriage. It is considered something sinful. It requires courage to face the public odium. This fact can be taken notice of judicially. While dealing with the question of delay one should not be oblivious of the background and tradition of Hindu society and the instinctive reluctance amongst the women to come to court and seek redress of their grievances against the husband. By and large our courts have proceeded on this basis. In Teja Singh v. Surjeet Kaur,AIR 1962 P&H the wife had left the husband about seven years before the presentation of the restitution petition by him. During this period the husband totally neglected her, he did not provide any maintenance to her; nor did he communicate with her. The petition was filed after the wife had obtained a maintenance order under Section 488, Cr. P.C. (old Code). It was held that there had been unnecessary and improper delay in filing the petition. In Jyotish Chandra v. Meera, there was 21 months delay in presentation of petition. The wifes explanation was that her sister was to be married and settled, and divorce proceedings by her would have created a scandal and would have stood in the way of her sisters marriage. This was accepted as a reasonable explanation. The high watermark was reached in Tobias v. Tobias, where the court accepted the wifes explanation that she did not go to the court of law to obtain divorce as she had to bring up two daughters and a son and she did not think it proper to obtain divorce till they were settled. For

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that purpose she waited for 26 years. It is submitted that in the typical Indian social conditions, these decisions provide a healthy trend, where courts have not hampered a relief on mere technicalities. Delay in nullity cases.In Narendra v. Suprova, the Calcutta High Court said that a declaration of nullity of marriage cannot be refused on the ground of long delay. In our submission, each case has to be decided on its own facts. Other Legal GroundsSection 23(1)(e), Hindu Marriage Act.Section 23(1)(e) contains a residue bar. This clause lays down that no decree is to be passed if there is any other legal ground why relief should not be granted. This clause has not yet come for interpretation before the courts. A That is the real import of this clause is difficult to say. As an example, the learned editor cites the case of annulment of marriage on the ground of pregnancy of the wife where a petition cannot be entertained after the expiry of one year after the solemnization of marriage. It is submitted that it is rather over-simplification of the matter. The bar exists in Section 12 itself and even if there was no clause (e) of Section 23(1), that court could not entertain the petition after one year.

Maintenance and Alimony :- Sections 24 and 25 of the Hindu Marriage Act provide for maintenance and alimony. These are the terms of English matrimonial L.aw. Under English law, maintenance and alimony can be claimed by the wife alone and not by the husband. Under the Hindu Marriage Act, alimony and maintenance can be claimed by either party. In English law, wife is required to provide maintenance to the husband only if the marriage is dissolved on the

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ground of the latters insanity. The Corpus Juris defines alimony as the allowance required by law to be made to a wife, out of her husbands estate for her support either during the matrimonial suit or on its termination, where the fact of the marriage is established and she proves herself entitled to a separate maintenance. Like maintenance, alimony connotes the existence of a duty on the part of a person to provide for the need of another person or persons who is or are in one way or the other related to, or dependent upon him. The assumption underlying maintenance and alimony is that the husband has to maintain his wife, not merely during the period she remains his wife but also after divorce, so long as she does not remarry. Even today in England and in other common law countries, a decree of divorce or judicial separation is usually accompanied by an order of maintenance for the wife and children. The usual practice is to award a third of the husbands income to the wife, after taking her own income, if any, into consideration. In our contemporary world, where women in a large number are employed in gainful employment or have their own income, and where principle of equality of sexes is realized more effectively, a view is gaining ground that in cases where the husband has no income or insufficient income of his own to maintain himself, wife should also pay maintenance to the husband on dissolution of marriage. In many countries this is now law. Under the Hindu Marriage Act also this is so. The right to claim maintenance under Sections 24 and 25 is an independent right available to the parties in ancillary proceedings in any petition for any matrimonial relief under the Hindu Marriage Act, 1955. Therefore, to claim that marriage was void ab initio is no defence in these proceedings2 and it is not controlled by the Hindu Adoptions and Maintenance Act, 1956. In other words, the courts jurisdiction cannot be ousted on the plea that the applicant for maintenance under Sections 24 and 25 of the Hindu Marriage Act is already getting maintenance under the Hindu Adoptions and Maintenance Act 1956, though in fixing the quantum of maintenance that may be taken into consideration. Under the Hindu Marriage Act, an order for maintenance may be made by the court (i) for maintenanke pendente lite and expenses of the proceedings under Section 24, and (ii) for permanent maintenance and alimony under Section 25. Maintenance pendente lite and Expenses of the Proceedings Section 24 :- Maintenance during the pendency of the proceedings is known as maintenance pendente lite, interim maintenance or temporary maintenance. The Hindu Marriage Act uses the first expression. An application for interim maintenance can be made both at the trial court as well as at the appellate court. As we have seen earlier, the maintenance may be claimed by the petitioner or the respondent. Mere denial of spousal relationship by the opposite party is no ground for denying interim maintenance. Claim may be made for (i) (ii) personal maintenance of the claimant, and expenses of proceedings.

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The only requirement is that the claimant should establish that he or she has no independent income sufficient for his or her maintenance and support and he or she has no means to meet the expenses of the proceedings. Travelling expenses of the wife will be included in the expenses of the litigation. Once these averments are prima facie established, the court will pass an order requiring the other party to pay to the complainant some monthly or periodic payment for his or her maintenance and some lump sum amount to meet the expenses of the proceedings. Whenever an application under Section 24 is made, it is the bounden duty of the court to decide the application as expeditiously as possible and in every case before the trial of the petition, and in any event before the decision in the petition. An ex parte decree of nullity passed without deciding respondents application for interim maintenance under Section 24 is bad and cannot be. sustained. Income Meaning.It may be observed that Section 24 uses the word income, while Section 25 uses the words income and other property. The distinction between the expressions came for consideration before the Calcutta High Court in Gita Chatterjee v. Prabhat Kumar. The Court said that the word in Section 24 would not include other property or assets, thus in fixing the amount of maintenance pendente lite, the court will have regard only to the income of the applicant and not her or his assets or property not yielding any income. When wife makes an application for maintenance, the onus of disclosing his income is on the husband. The section uses words that applicant has no independent means to support himself or herself. The word support does not mean bare existence, it means claimant spouse should be in as much comfort as the other spouse. It has been further held that plea such as wife was working as a teacher and had independent source of income was not substantiated by evidence and further plea that husband had to support his old mother and a 16 year old son is not valid as wife also has to support herself and a 12 year old daughter. Once it is established that the applicant has no sufficient means for her or his maintenance and support, the court should pass an order for interim maintenance as a matter of course. But if the respondent has no means, no income, then the court need not fix any amount of maintenance. After all. ability of the respondent is also a criterion.3 But in fixing interim maintenance, conduct of the applicant is immaterial. Thus, that there is an accusation of adultery is immaterial. It is not obligatory on the court as laid down in the Indian Divorce Act that onefifth of the net income of the husband (or wife) should be awarded by way of interim maintenance to the applicant. It may be in some cases good criterion but, it is submitted, the courts discretion in the matter of fixing the quantum of interim maintenance cannot be fettered by the importation of such foreign precedents. In fixing the quantum of maintenance, the court takes into consideration several factors, viz., income of the applicant and non-applicant, means of the non-claimant, the conduct of applicant as well as of the non-applicant, number of members to be maintained, reasonable wants of the claimants, and other factors the court may deem necessary. But the maintenance amount cannot be so fixed as to exceed the total income of the other party. An order passed without considering the income of both parties is illegal. For fixing the quantum of interim maintenance, the main test is : whether the applicant has no sufficient means to support herself or himself. Goodwill or charity of relations and friends cannot be taken into consideration and the fact that the applicant is being supported by relatives or friends is no reason for not awarding maintenance to the applicant. The court is also required to take into

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consideration the means of the non-applicant, and fix the quantum of maintenance accordingly, otherwise any such order will be illusory. In short, considering all factors and circumstances of the parties, the court fixes an amount of interim maintenance which it considers reasonable.2 In fixing the quantum of the expenses of the proceedings, the court takes into consideration the means of both parties, and status of spouse. Ordinarily, all reasonable expenses of the proceedings are allowed. If claimant has sufficient means to maintain herself, no amount of maintenance can be granted to her. Another question is whether interim maintenance can be allowed from the date of the petition for matrimonial relief or from the date of the application for maintenance. Although the interim maintenance can be awarded from the date of the petition in the matrimonial cause and till the final disposal of the petition, the courts have taken the view that the date from which it can be granted is the date of the application and not for any period anterior to it. Conditional order of maintenance.In Saroj v. Ashok, the trial court fixed an amount of maintenance of the wife on the condition that if she was found living in adultery, she would refund the amount of maintenance. The petition was on the ground of adultery, The Rajasthan High Court held no such condition could be attached to the order. An order for interim maintenance of the applicant and children and for the expenses of the proceedings can be made in any proceedings in any matrimonial cause, viz., nullity of marriage, judicial separation, divorce or restitution of conjugal rights, and even in proceedings for permanent alimony and maintenance under Section 25. In our submission, interim maintenance can be granted in proceedings under Section 25, when a petition is made after the decree in the main proceedings has been made. Maintenance also for children.It may be noted that the central idea behind provisions of this section is to provide maintenance to the necessitous spouse during pendency of the proceedings. But, in exceptional cases the Court can order the maintenance also for such children who are dependent on and are living with spouse whose claim has been found justified by the court. In Jasbir Kaur Sehgal v, District Judge, Dehrcidun, the Supreme Court held that provisions under section 24 cannot be given restricted meaning; the wifes right to claim maintenance peiideiite lite would include her own maintenance and that of her unmarried daughter living with her. Giving new dimensions to this section, the Supreme Court observed that under Hindu Adoption and Maintenance Act, it is the obligation of father to maintain his unmarried daughter if she is unable to maintain herself, In this case, the Court observed further, since the wife has no income of her own, it is the obligation of the husband to maintain her and her two unmarried daughters one of whom is living with the wife. Section 24 of the Act no doubt talks of maintenance of wife during pendency of the proceedings but this section. in our view, cannot be read in isolation and cannot be given restricted meaning to hold that it is the maintenance of the wife and no one else,. The right to claim educational expenses has been specifically provided under Section 20 read with the definition of word maintenance under the Hindu Adoption and Maintenance Act but no such provision has been providc under the Hindu

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Marriage Act and that the word maintenance as has been used under Section 24 of the Hindu Marriage Act, cannot include the specified educational expenses for an adult child.

Quantum of maintenance.There is no hard and fast rule regarding the quantum of interim maintenance. In the absence of special circumstances, courts should generally allow maintenance pendente lite at one-filth of the income of the respondent after deduction on account of the income-tax and provident fund. Under the Indian Divorce Act the maximum alimony pendente lite has been fixed at one-fifth of the net income of the respondent. In the Hindu Marriage Act no such limit has been fixed. If the court comes to the conclusion that the applicant is entitled to maintenance and expenses, then it has to consider their quantum. As for expenses of litigation there should be no difficulty in assessing what the reasonable expenses should be However, such amount must be sufficient enough to enable the applicant to contest the case properly. An order for maintenance pendente life or for costs of the proceedings is conditional on the circumstance that the petitioner has no independent income to support himself/herself or to meet the necessary expenses of the proceedings. Discretion of the Court.In the matter of granting alimony pendenie life, the court exercises a wide discretion, but this discretion is not to be exercised arbitrarily. It should he within the purview of the section and guided by the sound principles of matrimonial law. Stay of proceeding or striking out the defence.There may be situation where the nonapplicant refuses to pay the amount of interim maintenance and yet wants to proceed with the case. In such a case, if the non-applicant is a petitioner, the court has jurisdiction to stay all further proceedings, in the case till he or she pays the amount, and if the non-applicant happens to be the respondent, then the court may strike out his/her defence. If such a person is an appellant, then the court may even dismiss his appeal. Although there is no specific provision in Hindu Marriage Act, yet the court has power to change the quantum of intrim maintenance at any time during the pendency of the proceedings, if any change of circumstances is shown by any party to the proceedings. After the amendment of Section 28, Hindu Marriage Act, by the amending Act of 1976, it is clear that against an interim order, no appeal is maintainable, though a revision is maintainable. See also our commentary under the heading Appeals. Interim maintenance in proceeding for setting aside ex parte decree ...-Although an application for setting aside ex parte decree is made under the Act, and therefore interim maintenance can be claimed in these proceedings .

Permanent Maintenance and Alimony :- Section 25 is a welfare legislation. Right to maintenance under Section 25 would include right to residence. Maintenance would include

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provision of residence. Wife cannot be denied right of residence in the matrimonial home. On the application of either spouse, the court may pass an order for permanent alimony and maintenance (a) at the time of passing of the decree granting the petition, or (b) at any time after the passing of the decree granting the petition. When a claim of permanent alimony and maintenance is made after the passing of the decree, it should be done by a petition in the court which granted the petition. No order can be made if petition is dismissed.At one time, it was the confirmed view that if the petition has been dismissed, no application or petition for permanent alimony and maintenance can be made under Section 25. Some decisions8 have dissented from this view. The court said the words at the time of the passing of decree does not mean only when petition is allowed. The court has power to pass an order of maintenance even when petition is dismissed, because in either case it is a decree, and there is no reason to give decree a restricted meaning. In Chand Dhawan v. Jawahar Lal AIR 1993 SC 406 the Supreme Court has clarified the position by holding that if the main petition is dismissed, the court has no jurisdiction to award permanent maintenance. Technically this judgment is correct but not in the light of social justice. In Ramesh Chanthv Rwnpratap;i Daga v. Rameshwari R.C. Daga,AIR 2005 SC 422 the question belore the Apex Court was whether a woman remarried during the subsistence of her first marriage can claim maintenance from her second husband inspire ol the fact that such marriage being bigamous marriage is void under the provisions of the Hindu Marriage Act at the time. The Supreme Court in the above ease observed that a bigamous marriage may he declared illegal being in contravention of the provisions of the Hindu Marriage Act, but it cannot be said to be immoral so as to deny even the right ol alimony or maintenance to a spouse financially weak and economically dependent. In the opinion of the Court, it is with the purpose of not rendering a linancially dependent spouse destitute that Section 25 of the Act enables the Court to award maintenance at the time of passing any kind of decree resulting in breach ol marriage relationship. Factors Needs to Determine Maintenance :- In fixing the amount of maintenance, the court is required to consider the following matters (a) the income and other property of the claimant, (b) the income and other property of the non-claimant, (c) the conduct of parties, and (d) any particular circumstance or special factor. Income of the claimant and non-claimant.In fixing the amount of maintenance, the court takes into account the income of both the parties and also any other property that they may have. In determining the amount of maintenance on the application of the wife, the status of her husband, and not of her father, is material. Ordinarily, the wife is entitled to an amount which enables her to maintain the standard of living to which she was used to before the breakdown of

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the marriage. The court may pass orders that the non-claimant should pay to the claimant some gross sum or monthly or periodical sum for his or her support. According to the practice of the English courts, the monthly allowance that the non-claimant may be ordered to is one-third of his income. In some cases the Indian courts have followed this rule. However, the one-third rule is merely a guide line and there is no rigidity about it. In a given case the court may allow more, it may allow less, depending upon the circumstances. A husband cannot gef rid of the wifes claim of maintenance on the ground that he is not able to get a good job, or the wife is living with her father, or that the wife is sufficiently qualified to get a job, or is supported by her father. Even if husband is not earning but is able bodied he should pay maintenance to his wife. Conduct of parties.The term, conduct is used in a wide sense and includes, (i) (ii) (iii) conduct of the parties towards each other, conduct of the parties towards the marriage, such as, which party was responsible for the breakdown of the marriage, and conduct of the parties towards the court.

it is well established that even if the conduct of the claimant has not been fair towards the marriage, or it is she who is responsible for breaking the marriage, or is guilty of the matrimonial offence, the court may still grant her maintenance though the quantum of maintenance may be affected. The court will be justified in awarding less than the usual maintenance. It seems that the judicial opinion in our country is not yet well settled, and in our outlook towards adultery we are still maintaining the outlook of the Dharmashastra. Particular circumstances.This is not a matter specially mentioned in Section 25. It is there by necessary implication. The special factors or particular circumstances go to help the court in fixing the quantum of maintenance in individual cases. It may happen that in certain circumstances the amount that is fixed by the court is more than or less than the usual one-third. For instance, the claimant alleges that he is suffering from a disease, like T.B., and therefore the usual one-third will not be sufficient to meet his expenses. Or, in some cases the non-claimant may plead that he has to maintain several children, aged parents, younger brothers and sisters, therefofe he should be ordered to pay less than the usual one-third. Variation of the order.Under Section 25(2), the court has power to vary, modify or discharge any order of permanent alimony at the instance of either party if change of circumstances is shown. This means that there must be some material alteration in the circumstances of the parties. Such circumstances may be that the income of the non-claimant has come down appreciably or the expenditure of the claimant has gone up. For instance, cases of chronic diseases require prolonged indoor treatment and hence more expenses.

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An order may be rescinded .Section 25(3) lays down two circumstances in which an order passed in favour of a party may be rescinded (1) If he or she has remarried, or (2) If she (in the case of the wife) has not remained chaste; or he (in the case of the husband) has sexual intercourse with any woman. There may be a third case also when an order for maintenance may come to an end. The resumption of cohabitation by the parties after maintenance order, nullifies that order, whatever be the duration of the stay together, if there is a clear intention to resume cohabitation. This will be so in the case of restitution or judicial separation. But the question of resumption of cohabitation cannot arise in cases of divorce or nullity. On the death of non-claimant, the order of maintenance comes to an end. Punjab-Haryana High Court Gurmit Kaur vs Buta Singh on 11 August, 2009 This application under Section 24 of the Hindu Marriage Act has been moved by the applicantappellant, for grant of maintenance pendente lite and litigation expenses. It has been averred in the application, that the respondent husband is earning a sum of Rs.12,000/- (Rupees twelve thousand only) per month, and in addition has sufficient bank balance from which he is earning interest, therefore, his monthly income is more than Rs.15,000/- (Rupees fifteen thousand only) per month. Reply to the application has been filed, wherein preliminary objection has been taken, that the present application, under Section 24 of the Hindu Marriage Act is not maintainable, as at the time of marriage, the applicant-appellant had a living spouse, therefore, the marriage between the parties was null and void, therefore, the applicant- appellant could not be treated to be a wife to be entitled to maintenance under Section 24. It is also pleaded in the reply, that the respondenthusband stands retired on 31.12.2004, and is getting a monthly pension of Rs.5,500/- (Rupees five thousand five hundred only). It has also been pleaded, that he has to look after big family, which consists of his five children and one widow sister. However, the factum that the respondent is getting income by interest from the bank, has not been denied. The stand taken in the reply is, that the applicant-appellant is getting pension of Rs.4,000/- (Rupees four thousand only) per month from the Army Authorities being widow of Surjit Singh and further that her son is major, who is earning Rs.8,000/- (Rupees eight thousand only) per month. On merit it is contended that the applicant-appellant is not entitled to any maintenance, as she has independent source of income. The Hon'ble Supreme Court in Ramesh Chandra Rampratapji Daga Vs. Rameshwari Ramesh Chandra Daga (supra) has been pleased to lay down as under: "17. In interpreting the provision of Section 25 in the case of Chand Dhawan (supra) the Supreme Court categorically held that the expression 'at the passing (sic. time) of passing any decree,' as has been used in Section 25, includes a decree of nullity of marriage. The relevant observations read thus: -"On the other hand, under Hindu Marriage Act, in contrast, her claim for maintenance pendente lite is durated (sic) on the pendency of a litigation of the kind envisaged

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under Sections 9 to 14 of the Hindu Marriage Act, and her claim to permanent maintenance or alimony is based on the supposition that either her marital status has been strained or affected by passing a decree for restitution of conjugal rights or judicial separation in favour of (sic. or) against her, or her marriage stands dissolved by a decree of nullity or divorce, with or without her consent. Thus when her marital status is to be affected or disrupted the court does so by passing a decree for or against her. On or at the time of the happening of that event, the court being seisin of the matter, invokes its ancillary or incidental power to grant permanent alimony. Not only that, the court retains the jurisdiction at subsequent stages to fulfill this incidental or ancillary obligation when moved by an application on that behalf by a party entitled to relief. The court further retains the power to change or alter the order in view of the changed circumstances. Thus the whole exercise is within the gammit (sic gamut) of a diseased or a broken marriage. And in order to avoid conflict of perceptions the legislature which codifying the Hindu Marriage Act preserved the right of permanent maintenance in favour of the husband or the wife, as the case may be, dependent on the court passing a decree of the kind as envisaged under Section 9 to 14 of the Act. In other words without the marital status being affected or disrupted by the matrimonial court under the Hindu Marriage Act the claim of permanent alimony was not to be valid as ancillary or incidental to such affection or disruption. The wife's claim to maintenance necessarily has then to be agitated under the Hindu Adoptions and Maintenance Act, 1956 which is a legislative measure later in point of time than the Hindu Marriage Act, 1955, though part of the same socio-legal scheme revolutionizing the law applicable to Hindus. Navdeep Kaur Vs. Dilraj Singh, 2002(3) PLR 708, wherein this Court has laid down as under: "Hindu Marriage Act (25 of 1955), Ss 5(i), 11, 12, 14, 16 - Marriage with person having living spouse - Is null and void - cannot be treated as voidable under S. 12. Criminal P.C. (2) of 1974), S. 125 - Maintenance - Expression "Wife" - Means legally wedded wife - Marriage of woman with man already having living spouse as per Hindu Rites is complete nullity. She is not entitled to maintenance. It is further held in this citation as under. The expression "Wife" in S. 125 of the Code should be interpreted to mean only a legally wedded wife. The word "Wife" is not defined in the code except indicating in the Explanation to S. 125 its inclusive character so as to cover a divorce. A woman cannot be a divorcee unless there was a marriage in the eye of law preceding that status. The expression must therefore, be given the meaning in which it is understood in law applicable to the parties. The marriage of a woman in accordance with the Hindu rites with a man having a living spouse is a complete nullity in the eye of law and she is, therefore, not entitled to the benefit of S. 125 of the Code. I have gone through these citations. These citations fully apply in the present case. The learned counsel for the petitioner cited 1991(1), All India Hindu Law Reporter Madhya Pradesh, Page 56 in which it is held as under: - Hindu Marriage Act, 1955, Section 5, 9, 11, 24 and 25 - Petition for conjugal rights by wife - During the pendency of the petition prayer for interim maintenance was made - Wife was not dis-entitled from claiming maintenance pendente lite under Section 24 of the Act on a prima facie case having been found in favour of the husband that her marriage was bigamous and liable to be declared void under Section 11 read with Section 5(i) of the Act.

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Savitaben Somabhai Bhatiya Vs. State of Gujrat and others, AIR 2005 Supreme Court 1809, wherein the Hon'ble Supreme Court has been pleased to lay down, that the scope of Section 125 Cr.P.C. cannot be enlarged to include woman not lawfully married. The Hon'ble Supreme Court was pleased to lay down as under: - "The legislature considered it necessary to include within the scope of S. 125 an illegitimate child but it has not done so with respect to woman not lawfully married. As such, however, desirable it may be, to take note of the plight of the unfortunate woman, who unwittingly enters into wedlock with a married man the legislative intent being clearly reflected in S. 125 of the Code, there is no scope for enlarging its scope by introducing any artificial definition to include woman not lawfully married in the expression 'wife.' This may be an inadequacy in law, which only the legislature can undo." The Hon'ble Supreme Court in Ramesh Chandra Rampratapji Daga Vs. Rameshwari Ramesh Chandra Daga (supra) has been pleased to lay down that the maintenance is payable even to the wife in a proceeding under Section 11 of the Hindu Marriage Act. The Hon'ble Supreme Court has further gone to hold, that the wife, whose marriage is declared to be null and void, is entitled to permanent alimony, under Section 25 of the Hindu Marriage Act, at the time of passing of the decree. In view of the authoritative pronouncement of the Hon'ble Supreme Court, the reliance on the judgment of this Court can be of no help to the respondent-husband. The Hon'ble Supreme Court has further held, that necessity to pass that judgment arose because there were conflicting judgments of different High Courts, as to whether the wife, whose marriage has been declared to be null and void, is entitled to maintenance or not. In view of what has been stated above, this application is allowed. The applicant-appellant is held entitled to maintenance pendente lite @ Rs.1,500/- (Rupees one thousand five hundred only) per month. In addition, she is also held entitled to litigation expenses of Rs.11,000/(Rupees eleven thousand only). The maintenance shall be payable from the date of application. JURISDICTION AND PROCEDURE :- The Hindu Marriage Act, 1955 applies to Hindus, and it would appear that whenever a person seeks the jurisdiction of the court under the Hindu Marriage Act, he or she should be a Hindu. But in certain cases, a non-Hindu may also invoke the jurisdiction of the court. Thus, where the petitioner is a non-Hindua Hindu who has converted to a non-Hindu faith may seek the jurisdiction of the court in respect of a cause of action, which arose to him before his conversion. A petition for divorce may be filed against a non-Hindu when the ground itself is the conversion of the respondent to a non-Hindu faith. Jurisdiction :- Section 19, as amended by the Amending Act of 1976, runs as under: Every petition under this Act shall be presented to the District Court within the local limits of whose ordinary original civil jurisdiction (i) the marriage was solemnized, or (ii) the respondent at the time of the presentation of the petition resides, or (iii) the parties to the marriage last resided together, or (iii-a) in case the wife is the petitioner, where she is residing on the date of presentation of petition, or (iv) the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is, at that time, residing outside the territories to which this Act extends or has not

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been heard of as being alive for a period of seven years or more by those persons who would have heard of him if he was alive. The Court to which the petition is to be filedThe District Court.Section 19, Hindu Marriage Act, lays down that a petition in any matrimonial cause lies in the District Court. Section 3(b) defines the District Court thus, in any area for which there is a city civil court, that court, and in any other area the principal civil court of original jurisdiction and includes any other civil court which may be specified by the State Government, by notification in the Official Gazette, as having jurisdiction in respect of the matter dealt with in this Act. Thus, the District Court means (i) original side of the High Court in the Presidency towns, and (ii) City Civil Court, where it exists, (iii) the court of District Judge at other places. In addition to the above courts, or in lieu of them district court will also include a subordinate court which has been invested with jurisdiction by a State Government under a notification issued in the Official Gazette. The court of Additional District Judge is not the principal civil court of original jurisdiction. The District Court, under the Act, hears petition as personal designata . Under the Act, the District Court has jurisdiction if parties are Hindus irrespective of the fact whether they are domiciled in India or not. The place where a petition may be filed.Before the Marriage Laws (Amendment) Act, 1976 was passed, some difficult cases came before the courts and the parties were compelled to take recourse to the provision of the Civil Procedure Code, particularly to its Section 20. Under Section 19, a petition in any matrimonial cause (Hindu Marriage Act does not lay down different jurisdictional rules in respect of different matrimonial causes) may be filed in the District court within whose jurisdiction (a) the marriage was solemnized, (b) respondent is residing at the time of the presentation of the petition, (c) the parties last resided together, or (cc) or in case the petitioner is the wife where she is residing at the time of presentation of petition, or (d) the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is residing abroad or where his whereabouts are not known to the petitioner, i.e., where the .presumption of death applies. Residence as the basis of jurisdictionUnder clauses (ii), (iii) and (iv), a petition for nullity, divorce, judicial separation or restitution of conjugal rights may be filed on the basis of residence of the respondent, last joint residence of both the parties or the residence of the petitioner. The key word under all the three clauses is residence. The term residence has been variously defined. In all cases, residence is a question of fact, and whether or not a person is residing at a particular place will depend on the facts of each case. The question has come up before the Indian courts in several cases under the Divorce Act, 1860 which also confers jurisdiction on the court on the basis of residence. Ordinarily, residence means the permanent abode or permanent home or permanent place where a person lives, and does not include a temporary residence. If a

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person has a permanent place where he lives, but goes to another place for a temporary stay, such as for health reasons, for business or for study, that place cannot be called his residence.

DWORCE BY MUTUAL CONSENT :- At par with the analogous provision of divorce by mutual consent under the Special Marriage Act, 1954, Section 13-B, Hindu Marriage Act lays down that a petition for divorce by mutual consent may be presented jointly by both the spouses with the following averments (i) that they have been living separately for a period of one year, (ii) they have not been able to live together, and (iii) they have mutually agreed to live separately. All the above conditions should be fulfilled before divorce can be granted. There is no requirement of law that at the time of presentation of the petition, the statement of parties should be recorded. It is not necessary that parties should be living under separate roofs. They might be living in the same house but not as husband and wife. They have not been able to live together means that there is a state of complete breakdown of marriage. Where husband and wife were living separate for a period of more than one year and not able to live together and they were mutually agreeing to dissolve the marriage, it was held all ingredients of the section are fulfilled. After the presentation of the petition, the parties are required to wait for six months though not for more than eighteen months, and then to move a motion in the court that divorce be granted. Some courts hold that requirement of waiting for six months is mandatory. Some High Courts do not share this view. Now the trend is to waive the waiting period of 6 months considering the facts and circumstances of the cases.7 But Punjab and Haryana High Court has held that this period cannot be waived. In Abhay Chauhan v. Rachna Singh, the Delhi High Court has held that the waiting period of 6 months can be exempted in certain cases. This controversy is still continuing. Overwhelmingly High Courts are waiving this period by calling it directry rather than mandatry provision but some high courts do not agree. In the instant case, the marriage of the parties was solemnized 4 years ago and there was absolutely no possibility of reconciliation. Both the parties were 30 years old, mature and well educated. The parties are also free to withdraw the petition at any time. At one time some of our High Courts took the view that once a joint petition has been moved, one of the parties to it cannot withdraw his or her consent to the petition. This view has been overruled. If at the time of motion if one of the parties is absent, divorce cannot be granted.

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Smt. Sureshta Devi vs Om Prakash 1992 SC 1904, :- JUDGMENT: The appellant is the wife of the respondent. They were married on 21 November 1968. They lived together for about six to seven months. Thereafter, it is said that the wife did not stay with the husband except from 9 December 1984 to 7 January 1985. That was pursuant to an order of the Court, but it seems that they did not live like husband and wife during that period also. On 8 January 1985, both of them came to Hamirpur. The wife was accompanied by her counsel, Shri Madan Rattan. After about an hour discussion, they moved a petition under Section 13-B for divorce by mutual consent in the District Court at Hamirpur. On 9 January 1985, the Court recorded statements of the parties and left the matter there. On 15th January 1985, the wife filed an application in the Court, inter alia, stating that her statement dated 9 January 1985 was obtained under pressure and threat of the husband and she was not even allowed to see or meet her relations to consult them before filing the petition for divorce. Nor they were permitted to accompany her to the Court. She said that she would not be party to the petition and prayed for its dismissal. The District Judge made certain orders which were taken up in appeal before the High Court and the High Court remanded the matter to the District Judge for fresh disposal. Ultimately, the District Judge dismissed the petition for divorce. But upon appeal the High Court has reversed the order of the District Judge and granted a decree for dissolution of the marriage by mutual consent. The High Court has observed that the spouse who has given consent to a petition for divorce cannot unilaterally withdraw the consent and such withdrawal however, would not take away the jurisdiction of the Court to dissolve the marriage by mutual consent, if the consent was otherwise free. The High Court also recorded a finding that the wife gave her consent to the petition without any force, fraud or undue influence and therefore she was bound by that consent. Section 13-B was not there in the original Act. It was introduced by the Amending Act 68 of 1976. Section 13-B provides: 13-B(l) 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, 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 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." It is also necessary to read Section 23(l)(bb): 23(1) In any proceeding under this Act, whether defended or not, if the Court is satisfied that(bb) When a divorce is sought on the ground of mutual consent, such consent has not been obtained by force, fraud or undue influence, and ....."

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There are three other requirements in sub-section (1). There are: (i) They have been living separately for a period of one year. (ii) They have not been able to live together, and (iii) They have mutually agreed that marriage should be dissolved. The 'living separately' for a period of one year should be immediately preceding the presentation of the petition. It is necessary that immediately preceding the presentation of petition, the parties must have been living separately. The expression 'living separately', connotes to our mind not living like husband and wife. It has no reference to the place of living. The parties may live under the same roof by force of circumstances, and yet they may not be living as husband and wife. The parties may be living in different houses and yet they could live as husband and wife. What seems to be necessary is that they have no desire to perform marital obligations and with that attitude they have been living separately for a period of one year immediately preceding the presentation of the petition. The second requirement that they 'have not been able to live together' seems to indicate the concept of broken down marriage and it would not be possible to reconcile themselves. The third requirement is that they have mutually agreed that the marriage should be dissolved. Under sub-section (2) the parties are required to make a joint motion not earlier than six months after the date of presentation of the petition and not later than 18 months after the said date. This motion enables the Court to proceed with the case in order to satisfy itself about the genuineness of the averments in the petition and also to find out whether the consent was not obtained by force, fraud or undue influence. The Court may make such inquiry as it thinks fit including the hearing or examination of the parties for the purpose of satisfying itself whether the averments in the petition are true. If the Court is satisfied that the consent of parties was not obtained by force, fraud or undue influence and they have mutually agreed that the marriage should be dissolved, it must pass a decree of divorce. Sub-section (2) requires the Court to hear the parties which means both the parties. If one of the parties at that stage says that "I have withdrawn my consent", or "I am not a willing party to 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 mutualitly 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. It is a positive requirement for the court to pass a decree of divorce. "The consent must continue to decree nisi and must be valid subsisting consent when the case is heard". In the result, we allow the appeal and set aside the decree for dissolution of the marriage. In the circumstances of the case, however, we make on order as to costs.

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Anil Kumar Jain Vs. Maya Jain AIR 2009 SC the respondent-wife has made it very clear that she will not live with the petitioner, but, on the other hand, she is also not agreeable to a mutual divorce. In ordinary circumstances, the petitioner's remedy would lie in filing a separate petition before the Family Court u/s. 13 of the Act on the ground available but, in the instant case, there are certain admitted facts which attract the provisions of s.13-B. One of the grounds available u/s. 13-B is that the couple have been living separately for one year or more and that they have not been able to live together, which is, in fact, the case as far as the parties to these proceedings are concerned. The parties are living separately for more than seven years. As a part of the agreement between the parties, the appellant had transferred valuable property rights in favour of the respondent and it was after registration of such transfer of property that she withdrew her consent for divorce. She still continues to enjoy the property and insists on living separately from the husband Held: 1.1. This Court in Sureshta Devi held that the consent given by the parties to the filing of a petition u/s. 13-B of the Hindu Marriage Act, 1955 for mutual divorce had to subsist till a decree was passed on the petition and that in the event either of the parties withdrew the consent before passing of the final decree, the petition u/s. 13-B would not survive and would have to be dismissed. [Para 8] 1.2. Subsequently, however, in Ashok Hurra's case, basing its decision on the doctrine of irretrievable break-down of marriage, the Court was of the view that no useful purpose would be served in prolonging the agony of the parties to a marriage which had broken down irretrievably and that the curtain had to be rung down at some stage. The decision in Ashok Hurra's case to invoke the power under Article 142 of the Constitution of India was, thereafter, followed in several cases based upon the doctrine of irretrievable break-down of marriage. [Para 9 and 10] Ashok Hurra v. Rupa Bipin Zaveri 1997 (4) SCC 226, 1.3. An analysis of judgments of this Court throws up two propositions. The first is that although irretrievable break-down of marriage is not one of the grounds indicated u/s. 13 or 13-B of the Act, for grant of divorce, the said doctrine can be applied to a proceeding under either of the said two provisions only where the proceedings are before the Supreme Court. In exercise of its extraordinary powers under Article 142 of the Constitution, the Supreme Court can grant relief to the parties without even waiting for the statutory period of six months stipulated in s. 13-B of the Act. This doctrine of irretrievable break-down of marriage is not available even to the High Courts which do not have powers similar to those exercised by the Supreme Court under Article 142 of the Constitution. Neither the civil courts nor even the High Courts can, therefore, pass order before the periods prescribed under the relevant provisions of the Act or on grounds not provided for in ss. 13 and 13-B of the Hindu Marriage Act, 1955. [Para 17]

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Chandrakala Menon (Mrs.) & Anr. vs. Vipin Menon (Capt.) & Anr. (1993) 2 SCC 6; Sandhya M. Khandelwal vs. Manoj K. Khandelwal (1998) 8 SCC 369; Anita Sabharwal vs. Anil Sabharwal (1997) 1 SCC 490; Kiran vs. Sharad Dutt (2000) 10 SCC 243; Anjana Kishore vs. Puneet Kishore (2002) 10 SCC 194; Swati Verma (Smt.) vs. Rajan Verma & Ors. (2004) 1 SCC 123; Jimmy Sudarshan Purohit vs. Sudarshan Sharad Purohit (2005) 13 SCC 410 and Sanghamitra Ghosh vs. Kajal Kumar Ghose (2007) 2 SCC 220, referred to 1.4. The second proposition is that although the Supreme Court can, in exercise of its extraordinary powers under Article 142 of the Constitution, convert a proceeding u/s. 13 of the Act, into one u/s. 13-B and pass a decree for mutual divorce, without waiting for the statutory period of six months, none of the other courts can exercise such powers. The other courts are not competent to pass a decree for mutual divorce if one of the consenting parties withdraws his/her consent before the decree is passed. Under the existing laws, the consent given by the parties at the time of filing of the joint petition for divorce by mutual consent has to subsist till the second stage when the petition comes up for orders and a decree for divorce is finally passed and it is only the Supreme Court, which, in exercise of its extraordinary powers under Article 142 of the Constitution, can pass orders to do complete justice to the parties. [Para 18] 1.5. The various decisions merely indicate that the 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 statutes have to be given effect to. The law as explained in Sureshta Devi's case still holds good, though with certain variations as far as Supreme Court is concerned and that too in the light of Article 142 of the Constitution. [Para 19] While, therefore, following the decision in Sureshta Devi's case, the Court is of the view that this is a fit case where it may exercise the powers vested in it under Article 142 of the Constitution. The stand of the respondent-wife that she wants to live separately from her husband but is not agreeable to a mutual divorce is not acceptable, since living separately is one of the grounds for grant of a mutual divorce and admittedly the parties are living separately for more than seven years. [Para 21] The Supreme Court in Hitesh Bhatnagar v. Deepa Bhatnagar, AIR 2011 SC has examined whether the consent once given in a petition for divorce by mutual consent can be subsequently withdrawn by one of the parties after the expiry of 18 months from the date of the filing of the petition in accordance with Section 13B (1) of the Act. The Supreme Court was also called upon to decide whether the Court can grant a decree of divorce by mutual consent when the consent has been withdrawn by one of the parties. The relevant extracts from the judgment are reproduced hereinbelow; 1) Marriages are made in heaven, or so it is said. But we are more often than not made to wonder what happens to them by the time they descend down to earth. Though there is legal machinery in place to deal with such cases, these are perhaps the toughest for the courts to deal with. Such is the case presently before us.

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4) The issues that arise for our consideration and decision are as under: (a) Whether the consent once given in a petition for divorce by mutual consent can be subsequently withdrawn by one of the parties after the expiry of 18 months from the date of the filing of the petition in accordance with Section 13B (1) of the Act. (b) Whether the Court can grant a decree of divorce by mutual consent when the consent has been withdrawn by one of the parties, and if so, under what circumstances. 5) In order to answer the issues that we have framed for our consideration and decision, Section 13B of the Act requires to be noticed :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 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. ... 8) The question whether consent once given can be withdrawn in a proceeding for divorce by mutual consent is no more res integra. This Court, in the case of Smt. Sureshta Devi v. Om Prakash, (1991) 2 SCC 25, has concluded this issue and the view expressed in the said decision as of now holds the field. 9) In the case of Sureshta Devi (supra.), this Court took the view: "9. The `living separately' for a period of one year should be immediately preceding the presentation of the petition. It is necessary that immediately preceding the presentation of petition, the parties must have been living separately. The expression `living separately', connotes to our mind not living like husband and wife. It has no reference to the place of living. The parties may live under the same roof by force of circumstances, and yet they may not be living as husband and wife. The parties may be living in different houses and yet they could live as husband and wife. What seems to be necessary is that they have no desire to perform marital obligations and with that mental attitude they have been living separately for a period of one year immediately preceding the presentation of the petition. The second requirement that they `have not been able to live together' seems to

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indicate the concept of broken down marriage and it would not be possible to reconcile themselves. The third requirement is that they have mutually agreed that the marriage should be dissolved. 10. Under sub-section (2) the parties are required to make a joint motion not earlier than six months after the date of presentation of the petition and not later than 18 months after the said date. This motion enables the court to proceed with the case in order to satisfy itself about the genuineness of the averments in the petition and also to find out whether the consent was not obtained by force, fraud or undue influence. The court may make such inquiry as it thinks fit including the hearing or examination of the parties for the purpose of satisfying itself whether the averments in the petition are true. If the court is satisfied that the consent of parties was not obtained by force, fraud or undue influence and they have mutually agreed that the marriage should be dissolved, it must pass a decree of divorce." On the question of whether one of the parties may withdraw the consent at any time before the actual decree of divorce is passed, this Court held: "13. From the analysis of the section, it will be apparent that the filing of the petition with mutual consent does not authorise the court to make a decree for divorce. There is a period of waiting from 6 to 18 months. This interregnum was obviously intended to give time and opportunity to the parties to reflect on their move and seek advice from relations and friends. In this transitional period one of the parties may have a second thought and change the mind not to proceed with the petition. The spouse may not be a party to the joint motion under sub-section (2). There is nothing in the section which prevents such course. The section does not provide that if there is a change of mind it should not be by one party alone, but by both. The High Courts of Bombay and Delhi have proceeded on the ground that the crucial time for giving mutual consent for divorce is the time of filing the petition and not the time when they subsequently move for divorce decree. This approach appears to be untenable. At the time of the petition by mutual consent, the parties are not unaware that their petition does not by itself snap marital ties. They know that they have to take a further step to snap marital ties. Sub-section (2) of Section 13-B is clear on this point. It provides that "on the motion of both the parties. ... if the petition is not withdrawn in the meantime, the court shall ... pass a decree of divorce ...". What is significant in this provision is that there should also be mutual consent when they move the court with a request to pass a decree of divorce. Secondly, the court shall be satisfied about the bona fides and the consent of the parties. If there is no mutual consent at the time of the enquiry, the court gets no jurisdiction to make a decree for divorce. If the view is otherwise, the court could make an enquiry and pass a divorce decree even at the instance of one of the parties and against the consent of the other. Such a decree cannot be regarded as decree by mutual consent." 10) In the case of Ashok Hurra v. Rupa Bipin Zaveri, (1997) 4 SCC 226, this Court in passing reference, observed: "16. We are of opinion that in the light of the fact-situation present in this case, the conduct of the parties, the admissions made by the parties in the joint petition filed in Court, and the offer made by appellant's counsel for settlement, which appears to be bona fide, and the conclusion reached by us on an overall view of the matter, it may not be necessary to deal with the rival

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pleas urged by the parties regarding the scope of Section 13-B of the Act and the correctness or otherwise of the earlier decision of this Court in Sureshta Devi case or the various High Court decisions brought to our notice, in detail. However, with great respect to the learned Judges who rendered the decision in Sureshta Devi case, certain observations therein seem to be very wide and may require reconsideration in an appropriate case. In the said case, the facts were: The appellant (wife) before this Court married the respondent therein on 21-11-1968. They did not stay together from 9-12-1984 onwards. On 9-1-1985, the husband and wife together moved a petition under Section 13-B of the Act for divorce by mutual consent. The Court recorded statements of the parties. On 15-1-1985, the wife filed an application in the Court stating that her statement dated 9-1- 1985 was obtained under pressure and threat. She prayed for withdrawal of her consent for the petition filed under Section 13-B and also prayed for dismissal of the petition. The District Judge dismissed the petition filed under Section 13-B of the Act. In appeal, the High Court observed that the spouse who has given consent to a petition for divorce cannot unilaterally withdraw the consent and such withdrawal, however, would not take away the jurisdiction of the Court to dissolve the marriage by mutual consent, if the consent was otherwise free. It was found that the appellant (wife) gave her consent to the petition without any force, fraud or undue influence and so she was bound by that consent. The issue that came up for consideration before this Court was, whether a party to a petition for divorce by mutual consent under Section 13-B of the Act, can unilaterally withdraw the consent and whether the consent once given is irrevocable. It was undisputed that the consent was withdrawn within a week from the date of filing of the joint petition under Section 13-B. It was within the time-limit prescribed under Section 13-B(2) of the Act. On the above premises, the crucial question was whether the consent given could be unilaterally withdrawn. The question as to whether a party to a joint application filed under Section 13-B of the Act can withdraw the consent beyond the time-limit provided under Section 13-B(2) of the Act did not arise for consideration. It was not in issue at all. Even so, the Court considered the larger question as to whether it is open to one of the parties at any time till a decree of divorce is passed to withdraw the consent given to the petition. In considering the larger issue, conflicting views of the High Courts were adverted to and finally the Court held that the mutual consent should continue till the divorce decree is passed. In the light of the clear import of the language employed in Section 13-B(2) of the Act, it appears that in a joint petition duly filed under Section 13-B(1) of the Act, motion of both parties should be made six months after the date of filing of the petition and not later than 18 months, if the petition is not withdrawn in the meantime. In other words, the period of interregnum of 6 to 18 months was intended to give time and opportunity to the parties to have a second thought and change the mind. If it is not so done within the outer limit of 18 months, the petition duly filed under Section 13-B(1) and still pending shall be adjudicated by the Court as provided in Section 13-B(2) of the Act. It appears to us, the observations of this Court to the effect that mutual consent should continue till the divorce decree is passed, even if the petition is not withdrawn by one of the parties within the period of 18 months, appears to be too wide and does not logically accord with Section 13-B(2) of the Act. However, it is unnecessary to decide this vexed issue in this case, since we have reached the conclusion on the fact-situation herein. The decision in Sureshta Devi case may require reconsideration in an appropriate case. We leave it there."

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11) These observations of this Court in the case of Ashok Hurra (supra) cannot be considered to be ratio decidendi for all purposes, and is limited to the facts of that case. In other words, the ratio laid down by this Court in the case of Sureshta Devi (supra) still holds the field. 12) In the case of Smruti Pahariya v. Sanjay Pahariya, (2009) 13 SCC 338, a bench of three learned judges of this Court, while approving the ratio laid down in the case of Sureshta Devi (supra), has taken the view :"40. In the Constitution Bench decision of this Court in Rupa Ashok Hurra this Court did not express any view contrary to the views of this Court in Sureshta Devi. We endorse the views taken by this Court in Sureshta Devi as we find that on a proper construction of the provision in Sections 13-B(1) and 13-B(2), there is no scope of doubting the views taken in Sureshta Devi. In fact the decision which was rendered by the two learned Judges of this Court in Ashok Hurra has to be treated to be one rendered in the facts of that case and it is also clear by the observations of the learned Judges in that case. 41. None of the counsel for the parties argued for reconsideration of the ratio in Sureshta Devi. 42. We are of the view that it is only on the continued mutual consent of the parties that a decree for divorce under Section 13-B of the said Act can be passed by the court. If petition for divorce is not formally withdrawn and is kept pending then on the date when the court grants the decree, the court has a statutory obligation to hear the parties to ascertain their consent. From the absence of one of the parties for two to three days, the court cannot presume his/her consent as has been done by the learned Family Court Judge in the instant case and especially in its fact situation, discussed above. 43. In our view it is only the mutual consent of the parties which gives the court the jurisdiction to pass a decree for divorce under Section 13-B. So in cases under Section 13-B, mutual consent of the parties is a jurisdictional fact. The court while passing its decree under Section 13-B would be slow and circumspect before it can infer the existence of such jurisdictional fact. The court has to be satisfied about the existence of mutual consent between the parties on some tangible materials which demonstrably disclose such consent." 13) The appellant contends that the Additional District Judge, Gurgaon, was bound to grant divorce if the consent was not withdrawn within a period of 18 months in view of the language employed in Section 13B(2) of the Act. We find no merit in the submission made by the appellant in the light of the law laid down by this Court in Sureshta Devi's case (supra). 14) The language employed in Section 13B(2) of the Act is clear. The Court is bound to pass a decree of divorce declaring the marriage of the parties before it to be dissolved with effect from the date of the decree, if the following conditions are met: a. A second motion of both the parties is made not before 6 months from the date of filing of the petition as required under sub- section (1) and not later than 18 months;

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b. After hearing the parties and making such inquiry as it thinks fit, the Court is satisfied that the averments in the petition are true; and c. The petition is not withdrawn by either party at any time before passing the decree; 15) In other words, if the second motion is not made within the period of 18 months, then the Court is not bound to pass a decree of divorce by mutual consent. Besides, from the language of the Section, as well as the settled law, it is clear that one of the parties may withdraw their consent at any time before the passing of the decree. The most important requirement for a grant of a divorce by mutual consent is free consent of both the parties. In other words, unless there is a complete agreement between husband and wife for the dissolution of the marriage and unless the Court is completely satisfied, it cannot grant a decree for divorce by mutual consent. Otherwise, in our view, the expression `divorce by mutual consent' would be otiose. 16) In the present fact scenario, the second motion was never made by both the parties as is a mandatory requirement of the law, and as has been already stated, no Court can pass a decree of divorce in the absence of that. The non-withdrawal of consent before the expiry of the said eighteen months has no bearing. We are of the view that the eighteen month period was specified only to ensure quick disposal of cases of divorce by mutual consent, and not to specify the time period for withdrawal of consent, as canvassed by the appellant. 17) In the light of the settled position of law, we do not find any infirmity with the orders passed by the Ld. Single Judge. 18) As a last resort, the appellant submits that the marriage had irretrievably broken down and prays that the Court should dissolve the marriage by exercising its jurisdiction under Article 142 of the Constitution of India. In support of his request, he invites our attention to the observation made by this Court in the case of Anil Kumar Jain v. Maya Jain, (2009) 10 SCC 415, wherein though the consent was withdrawn by the wife, this Court found the marriage to have been irretrievably broken down and granted a decree of divorce by invoking its power under Article 142. We are not inclined to entertain this submission of the appellant since the facts in that case are not akin to those that are before us. In that case, the wife was agreeable to receive payments and property in terms of settlement from her husband, but was neither agreeable for divorce, nor to live with the husband as his wife. It was under these extraordinary circumstances that this Court was compelled to dissolve the marriage as having irretrievably broken down. Hence, this submission of the appellant fails. 19) In the case of Laxmidas Morarji v. Behrose Darab Madan, (2009) 10 SCC 425, a Bench of three learned Judges (of which one of us was a party), took the view: "25. Article 142 being in the nature of a residuary power based on equitable principles, the Courts have thought it advisable to leave the powers under the article undefined. The power under Article 142 of the Constitution is a constitutional power and hence, not restricted by statutory enactments. Though the Supreme Court would not pass any order under Article 142 of the Constitution which would amount to supplanting substantive law applicable or ignoring express statutory provisions dealing with the subject, at the same time these constitutional powers cannot in any way, be controlled by any statutory provisions. However, it is to be made clear that this power cannot be used to supplant the law applicable to the case. This means that

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acting under Article 142, the Supreme Court cannot pass an order or grant relief which is totally inconsistent or goes against the substantive or statutory enactments pertaining to the case. The power is to be used sparingly in cases which cannot be effectively and appropriately tackled by the existing provisions of law or when the existing provisions of law cannot bring about complete justice between the parties." 20) Following the above observation, this Court in the case of Manish Goel v. Rohini Goel, (2010) 4 SCC 393, while refusing to dissolve the marriage on the ground of irretrievable breakdown of marriage, held: "19. Therefore, the law in this regard can be summarised to the effect that in exercise of the power under Article 142 of the Constitution, this Court generally does not pass an order in contravention of or ignoring the statutory provisions nor is the power exercised merely on sympathy." 21) In other words, the power under Article 142 of the Constitution is plenipotentiary. However, it is an extraordinary jurisdiction vested by the Constitution with implicit trust and faith and, therefore, extraordinary care and caution has to be observed while exercising this jurisdiction. 22) This Court in the case of V. Bhagat v. Mrs. D. Bhagat, (1994) 1 SCC 337 held that irretrievable breakdown of a marriage cannot be the sole ground for the dissolution of a marriage, a view that has withstood the test of time. 23) In the case of Savitri Pandey v. Prem Chandra Pandey, (2002) 2 SCC 73, this Court took the view: "17. The marriage between the parties cannot be dissolved only on the averments made by one of the parties that as the marriage between them has broken down, no useful purpose would be served to keep it alive. The legislature, in its wisdom, despite observation of this Court has not thought it proper to provide for dissolution of the marriage on such averments. There may be cases where, on facts, it is found that as the marriage has become dead on account of contributory acts of commission and omission of the parties, no useful purpose would be served by keeping such marriage alive. The sanctity of marriage cannot be left at the whims of one of the annoying spouses......." 24) This Court uses its extraordinary power to dissolve a marriage as having irretrievably broken down only when it is impossible to save the marriage and all efforts made in that regard would, to the mind of the Court, be counterproductive [See Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511]. 25) It is settled law that this Court grants a decree of divorce only in those situations in which the Court is convinced beyond any doubt that there is absolutely no chance of the marriage surviving and it is broken beyond repair. Even if the chances are infinitesimal for the marriage to survive, it is not for this Court to use its power under Article 142 to dissolve the marriage as having broken down irretrievably. We may make it clear that we have not finally expressed any opinion on this issue.

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Judicial Separation:- Parties may separate from each other under a decree of the court known as udicial separation or under an agreement entered into by the parties, called consensual separation. Separation

of parties, whether under a decree of court (judicial separation) or by an agreement between parties, means separation from bed and board. After separation, parties are not bound to cohabit with each other. During the continuance of separation, parties are entitled to separate from each other and all basic marital obligations remain suspended. Mutual rights and obligations of marital intercourse and living with each other no longer remain operative; marital obligation and rights, save those preserved expressly or impliedly (just as relating to maintenance), are not available to parties. Nonetheless, the marriage subsists. Parties remain husband and wife. If any one of them remarries, he or she will be guilty of bigamy. In the event of one of the parties dying, the other party will inherit the property of the deceased spous e. Judicial separation can be allowed only if the marriage is valid. In a separation by agreement, the state of separation comes to an end the moment parties revoke the agreement or start cohabiting with each other. In judicial separation, since a decree for judicial separation is a judgment in rem, if parties want to resume cohabitation, an order of the court rescinding the decree will be necessary. Ordinarily, the court will rescind the decree whenever parties ask for it. If the cohabitation is not resumed for a period of one year or more after the passing of decree of judicial separation, any party may sue for divorce under Section 13(1A)(ii) of the Hindu Marriage Act. Separation by Agreement :-The Hindu Marriage Act is silent about separation by agreement. Separation by agreement is an important aspect of law relating to husband and wife. This was recognized under Hindu law before the Act and it continues to be so even now. Sometimes parties want to live separate from each other, for one reason or the other and they do not want judicial separation or divorce even if a ground is available to them. Or, they want to separate from each other as quietly as possible and neither of them wants to be dubbed as deserter later. In such cases, the only method available to them is separation by agreement. Separation by agreement does not lead to the forfeiture of claim of maintenance. In a separation by agreement, actual separation is necessary. It must relate to present separation. All agreements for future separation are void, being against public policy. A consensual separation is essentially a contract between the parties. Separation agreements sometimes stipulate covenants not to seek restitution of conjugal rights, or not to molest each other. A covenant against restitution is enforceable, but courts are not bound by it and restitution of conjugal rights may be granted despite the covenant. Covenants relating to maintenance and custody of children are enforceable, Yet, again in matrimonial proceedings filed subsequently, the agreement cannot oust the jurisdiction of the court in determining the amount of maintenance or in passing orders in respect of children. Similarly, a petition for judicial separation or divorce is also maintainable despite a covenant to the contrary in the agreement. There is conflict in the judicial opinion whether covenants in separation agreements relating to maintenance are enforceable if the wife is found guilty of unchastity. It seems that if covenant granting maintenance is absolute, the wife will be entitled to maintenance despite her unchastity. But if expressly or implicitly

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maintenance is allowed subject to her remaining chaste, then it cannot be allowed if she becomes unchaste. Judicial Separation :- Ordinarily, judicial separation either leads to reconciliation or to divorce. Judicial separation and divorce.Judicial separation is different from divorce. Divorce puts the marriage to an end. All mutual obligations and rights of husband and wife cease. In short, after a decree of dissolution of marriage, marriage comes to an end, parties cease to be husband and wife, and are free to go their own ways. There remain no bonds between them except in relation to Section 25 (maintenance and alimony) and Section 26 (custody, maintenance and education of children). After divorce, parties are free to remarry. On the other hand, judicial separation merely suspends marital rights and obligations during the period of subsistence of the decree; parties continue to be husband and wife.