Divorce by Mutual Consent
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This article is written by Shivani Verma, a student of Guru Gobind Singh Indraprastha University, New Delhi. In this article, she has discussed the provisions related to divorce by mutual consent, the procedure to file for mutual divorce and unilateral withdrawal of consent when the petition is already filed in the Family Court.

 

 

The Latin word “Divortium” means “to separate”. Divorce is not favoured and it is only granted in rare cases. Under uncodified Hindu Law, Manu has explained that wife, in any case, cannot be released from her husband by sale or abandonment. But the Modernist Divorce Reforms in independent India made divorce available by Section 13 of the Hindu Marriage Act, 1955 to all the Hindus. This Act has been amended several times and new grounds for divorce are included with.

Table of Contents

What is Divorce by Mutual Consent?

When both the parties agree on the dissolution of marriage in a cordial manner which is a more harmonious way rather than fighting in a court and defaming each other. In that case, they may file a petition in a District Court under Section 13B of the Hindu Marriage Act,1955 and the Court may grant them the decree for divorce. Proceedings before Panchayat will not affect the divorce, the parties have to get it processed through Matrimonial Courts.

Section 13B: Divorce by Mutual Consent 

This provision was inserted by Marriage Law (Amendment) Act,1976 and was not originally made by the Hindu Marriage Act. Section 13B of the Hindu Marriage Act,1955 is on the same ground on which Section 28 of the Special Marriage Act,1954 is. This provision is retrospective as well as prospective from the commencement, which means that the parties whose marriage is solemnized before or after the Amending Act can seek the help of this provision in order to get a divorce.

This section explains that to seek divorce by mutual consent, the parties have to file a joint petition in a district court. For filing this petition it is important that for a period of one year or more, the parties are not living together, they have not been able to live together and they mutually agreed to take divorce and put an end to their marital relationship.

Section 13B(2) explains that the parties must wait for at least six months from the date they present the petition and before the ending of eighteen months from the date the petition is presented by the parties, they should together make a step forward to the court. After going through the case, if the court thinks that all the facts are true then it can grant the petition for divorce.

Divorce mutual consent latest judgement

Latest judgements related to divorce by mutual consent is provided in the whole article under different sub-topics such as:

    1. No waiting in mutual consent divorce

2. Can the consent be withdrawn after filing for Divorce by Mutual Consent?

When can a Divorce by Mutual Consent be filed?

The petition for divorce by Mutual Consent can be filed on the following grounds:

  1. The petition must be presented to the court jointly by both the parties.
  2. The motion before the court hearing the petition should also be by both the parties.
  3. For a period of one year, parties must be living separately.
  4. Parties are not able to live together.
  5. Parties agreed mutually that marriage must be dissolved.
  6. It is compulsory for the parties to wait for a period of six months. These six months starts from the date the parties filed a petition for divorce in the court.
  7. Concerned parties must make a motion to the court before the expiry of eighteen months from the date the petition is presented for passing a decree.
  8. Consent in the case of divorce by mutual consent should not be obtained by fraud, force or undue influence, as per the Section 23(1)(bb) of the Hindu Marriage Act,1955.

What are the different laws of Divorce by Mutual Consent?

The provision for divorce by mutual consent is presented in various personal laws such as:

Hindu Marriage Act,1955

Section 13B of The Hindu Marriage Act,1955 provides the provision for Divorce by Mutual Consent. It explains that if the parties that are living separately continuously for a period of one year and parties are not able to live together and have agreed to separate mutually then they can seek divorce by mutual consent.

The Muslim Women (Protection on Divorce) Act, 1986 and Personal Laws

According to The Muslim Women(Protection on Divorce) Act, 1986 and Personal Laws, Muslims can seek Divorce by mutual consent. There are two types of divorce by mutual consent in Muslim Personal Laws:

  1. Khulla 
  2. Mubarat 

Both under Khula and Mubarat, there is no need for giving any reason for divorce and in case of Mubarat no consideration passes from wife to her husband. So the wife (in case of Khula) or both husband and wife(in case of Mubarat) decides to separate on a no-blame basis. Resort to Khula and Mubarat are commonly seen in India as a mode for dissolution of marriage.

Divorce by Mubarat is very close to the provision of Divorce by Mutual Consent under:

  1. Section 24, Special Marriage Act, 1954 
  2. Section 13B, Hindu Marriage Act,1955.

Khula (At the Request of Wife)

Khula means to lay down. It also means that the husband lays down his right and authority over his wife. The wife proposes the husband for dissolution of marriage and she can do this by providing some kind of consideration to him. This may be by giving up her dower or something else. This totally depends on the wife that she provides the consideration or not. So this type of divorce starts from wife and husband can’t refuse it, but he can do negotiations related to the consideration.

  1. In the case of Mst. Bilquis Ikram vs. Najmal Ikram [1], it was held that the wife has to satisfy the court that this marriage is forcing her into a hateful union after that she is entitled to Khula.
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Essentials of a Valid Khula

  1. Competence of the parties: The parties must be of sound mind and have attained the age of majority.
  2. Free consent: The husband should accept the proposal made by the wife. There should be free consent on the husband’s behalf. The consent should not be influenced by force, fraud etc.
  3. Formalities: An offer must be made by the wife to free the husband from the matrimonial tie and husband needs to accept the offer.
  4. Consideration: The wife has to pay something to her husband to seek her release. This could be anything property, money etc.

As soon as the proposal is accepted by the husband the marriage is dissolved, even if the payment for consideration is on a later date.

Mubarat  (Mutual Release)

In this case, both husband and wife are willing to dissolve the marriage. So the offer of separation can come from either the husband or wife’s side. The essential features of divorce by Mubarat are as follows:

  1. Both parties want to get rid of each other.
  2. Both the parties are interested, so there is no need for consideration.

Legal Consequences of Khula and Mubarat

The effects are similar to that of divorce by any other method. The wife needs to undergo the period of iddat and husband has to maintain her during that period. After the completion of the period, marriage dissolves.

Difference Between Khula and Mubarat

                          Khula 

                          Mubarat 

Redemption of the contract of marriage.

Mutual release from the marriage.

Wife gives the offer and husband accepts it.

Either the husband or wife can make the offer and the other party can accept it.

Consideration is given by the wife.

There is no consideration involved.

Dislike is from the wife’s side.

Mutual dislike.

The Indian Christian Marriage Act, 1872

The provision of the Indian Divorce Act,1869 is applied to the Christain marriage in India. Their marriage can be dissolved under Section X of this act. Under Section XA (as amended in 2001) both the parties can file for divorce by mutual consent.

The Parsi Marriage and Divorce Act 1936

Under Section 32B Divorce by Mutual Consent is defined. It provides that whether the marriage is solemnized before or after the commencement of the Parsi Marriage and Divorce (Amendment) Act, 1988 they can file for divorce by mutual consent. The suit has to be filed by both the parties and the parties must be living separately for a time span of one year and they are not able to live together and decided mutually to separate. The suit cannot be filed unless the period of one year has expired from the date of marriage. If the court is satisfied from the facts and circumstances of the case, the Court can grant the decree for divorce.

The Special Marriage Act, 1954

The divorce by mutual consent is filed under Section 28 of the Special Marriage Act, 1954 in case of court marriage. The parties have to together file a petition in the Court claiming that it is not possible for them to live together and because of this they are living separately and they both decided to file for a divorce by mutual consent.

Also, both the parties are provided with a time span of six months to think about their decision but if the parties are fixed on their decision than after the completion of six months and before ending eighteen months the party can move in the Court. After getting satisfied with the facts and circumstances of the case and when there is no ground available on which the petition can be rejected than the Court can grant a decree for divorce by mutual consent in favour of the parties.

Step by Step procedure to file for a Mutual Divorce

Step 1: Petition to File for a Divorce

Firstly, a joint petition has to be filed by both the parties for dissolution of marriage to seek a decree for divorce. The petition is to be presented to the Family Court duly signed by both the parties. The spouses have to present the petition on the grounds that, they both are living separately for a consecutive period of one year. It is hopeless for the parties to live together and they have co-jointly decided to divorce.

If anyone of the party is not available then any family member of such party can file the same on his/her behalf. After this, the ‘First Motion’ is established.

The court will give the date for pleading after a period of six months but the period will not be more than eighteen months. The time period after six months and before the completion of eighteen months is known as the cooling-off period. If the party doesn’t take action on a given date or if the parties pull back the case then the petition stands cancelled.

Paper Requirement

The papers that are required along with the petition are:

  1. Birth details and family details.
  2. Details of income.
  3. Details of assets owned.
  4. Income tax returns filed for a period of three years.

Jurisdiction of the Court

Place of a jurisdiction of the court can be the one where:

  1. Couple last lived.
  2. Their marriage was solemnized.
  3. Wife is residing at present.

Step 2: Appearing Before Court and Inspection of the Petition

When the date is given by the Family Court, the parties have to be presented there with their respective lawyers who are representing them along with their documents. The court, in the first case, will tend to bring settlement between the parties so that they could drop the idea of getting a divorce. But if no parties agree then the court will move further with the petition for divorce.

Step 3: Passing Orders for a Recording of Statements on Oath

After the petition is examined by the court and the court is satisfied by it, then Court can order that the party’s statement to be recorded on oath.

Step 4: First Motion is Passed and a Period of 6 Months is Given Before the Second Motion

After the recording of the statement, the court passes an order on the first motion. Before the filing of the second motion, a time period of six months is granted to both the parties. Before the ending of eighteen months from the date of presentation of divorce petition in the Family Court, the second motion is filed.

Step 5: Second Motion and the Final Hearing of Petition

The parties appear and record statements before the Family Court, once they decided to go ahead with the proceedings and appears for the second motion. In the final hearing, the parties need to be present in the court. 

The Supreme Court can waive off the period of six months given to the party if the court is satisfied that the parties are settled on the issues related to alimony, custody of the child or if the court is of the view that the waiting period will only extend the adversity of the parties.

Step 6: Final Decree of Divorce

The court passes the decree of divorce when it comes to the conclusion that all the facts and statements present in the petition are true and there is no scope of reconciliation between the parties. The divorce becomes final once the decree of divorce is obtained by the court.

No waiting in mutual consent divorce

There has been a conflicting view of the courts whether they should wait for a period of six months or not. 

In the case of Grandhi Venkata Chitti Abbal [2] and Dinesh Kumar Shukla vs. Neeta [3], it was held that the waiting period of six months is compulsory otherwise it will hinder an important aspect of the Section 13B(2) of the Hindu Marriage Act,1955. The period can be reduced from six months on the discretion of the court.

There was another view that was provided in Hitesh Narendra Doshi vs. Jesal Hitesh Joshi’s case[4], it was held that the provision of six months was given for a specific purpose. The purpose behind this provision is that in the period of six months the parties can give time to each other, think about it once again, introspect about it and reconcile. 

Can mutual consent divorce be withdrawn?

If one party changes its mind and wants to save his/her marriage then that party can file an application before the Court where their proceeding for divorce is going on, stating that he/she wants to withdraw his/her consent for the divorce as he/she wants to give a second chance to their marriage. In case if both husband and wife agree to the withdrawal then both can withdraw the case mutually and the court can dismiss such petition.

What if one of the spouses withdraws the mutual consent divorce petition after filing in the Family Court? What can the other spouse do under such situation?

The court grants no divorce decree in case either of the spouses files an application before the court declaring that he/she doesn’t want to pursue Divorce by Mutual Consent. It can be done during those six months when the petition is pending in the court.

The court can grant a divorce decree and dissolve the marriage if it comes to know that the unilateral withdrawal of consent is not genuine. So the court will ignore the withdrawal of consent and will grant the decree.

If the money is accepted by wife at a later stage and she withdraws her consent and did not make any effort to reconcile in the last seven years then it cannot be called a genuine act.

There are several cases in which it is seen that the wife withdraws her consent by filing an application in the court in order to demand more permanent alimony than what was agreed upon. This is can be used as a tool for harassment.

Can the consent be withdrawn after filing for Divorce by Mutual Consent?

Cases under which the court has explained that the consent can be withdrawn after filing for divorce by mutual consent are:

  1. Jayashree Ramesh Londhe vs. Ramesh Bhikaji [5]
  2. Nachhattar Singh vs. Harcharan Kaur [6]
  3. Sureshta Devi vs. Om Prakash [7]
  4. Ashok Hurra vs. Rupa Zaveri [8]
  5. Anil Kumar Jain vs. Maya Jain [9]

In Jayashree Ramesh Londhe vs. Ramesh Bhikaji, the court held that no party can withdraw from the joint petition of divorce unless and until there is a consent of both the parties for the respective withdrawal.

Also, in the case of Nachhattar Singh vs. Harcharan Kaur the court held that once the parties voluntarily file the petition for divorce by mutual consent and all the conditions mentioned under Section 13B(1) of the Hindu Marriage Act,1955 are fulfilled, then it is not open for the party to withdraw the consent.

In the case of Sureshta Devi vs. Om Prakash, the court held that unless and until the decree of divorce is passed the mutuality of consent should be there. The purpose of giving a time span of six months is that there can be chances if the parties want to change their mind. It is not necessary that both parties change their mind. It can be done by one party also.

Later in the case of Ashok Hurra vs. Rupa Zaveri, the court said that the mutual consent should continue till the passing of the decree of divorce, even if the consent is not withdrawn by one of the parties during the time span of eighteen months.

In Anil Kumar Jain vs. Maya Jain, the court explained that consent that is given by the parties at the stage of filing of the petition must continue till the second stage when petition comes up for order and decree for divorce is passed. The Supreme Court while exercising its extraordinary power under Article 142 of the Constitution can pass several orders to provide complete justice to the party.

The court would consider that the consent for divorce was continuing if the party who is withdrawing the consent does not communicate it to the court either himself or by his/her counsel.

A Division Bench of Rajasthan High Court held that at the time of second motion the withdrawal of consent to divorce by the party must be by a positive act.

Circumstances under which courts don’t agree with unilateral withdrawal by a Spouse

If there is no sufficient cause for withdrawal of the consent then the court considers that the withdrawal of consent is done under some pressure. When one party withdraws its consent it amounts to mental cruelty after mutually agreeing to divorce.

Whether mere silence at the second stage would amount to withdrawal?

In the case of Suman vs. Surendra Kumar [10], husband after filing the joint petition for divorce did not turn up at the second stage. The Family Court held that mere silence would not amount to a withdrawal of the consent as one party himself left the matter. So the conclusion has to be drawn in the favour of consent instead of the absence of consent.

Mutual divorce in India takes how long

The proceeding can go on till a minimum of three hearings or six months to one year depending from case to case. In some cases, if the matter is very serious than it can extend up to two years till ten years or more as the case may be.

Alimony in mutual divorce

The party can fix the maintenance or alimony through mutual consent if the parties are seeking divorce through mutual consent. According to the agreement a particular amount of money can be given either by the husband to wife or vice versa as the case may be. The amount to be paid is decided on several grounds such as respondents own income, the property he/she owns etc.

Can a working woman ask alimony in India

A working woman can ask for alimony in India. Mostly, the wife gets 20-35 percent of the husband’s net taxable income. A working woman can get maintenance if the court feels that she is not able to support her lifestyle which she enjoyed while she was married. The court can also grant maintenance in the case if she has dependants and she is not able to maintain them because her income is not that sufficient and also if she has some reasonable demands.

Divorce alimony calculator India

There is no fixed formula for calculating the alimony. The Court provides different alimony in different types of cases depending upon the facts and circumstances. The Court considers the status of the parties, their needs, husband’s capacity to pay, the number of people they have to support financially. 

The alimony is decided by taking into consideration the total monthly income that they take home without tax, their educational background, years since they were married and the number of children they have. The Supreme Court has set alimony benchmark to be 25 percent of ex-husband’s net salary. The Court also said that 25 percent of the husband’s net salary would be just and equitable for the wife so that she can live her life with dignity.

In the case of Gaurav Sondhi vs Diya Sondhi [10], the Court laid down the procedure that has to be followed by the Matrimonial Courts while granting interim maintenance/maintenance. Following is the procedure for granting maintenance

  1. The husband has to pay to his wife before the 10th day of every month. The Court can direct husband to pay such on a later date after taking into consideration all the facts and circumstances of this case which makes it impossible for him to pay on such date. The Court can pass orders to direct the husband to pay such maintenance on a later date.
  2. If the wife is having a bank account then the husband is directed to make such payment directly in her account before the 10th day of the month.
  3. The payment can be made through counsel if there is any difficulty in making it to the wife or the child directly. The husband can also deposit a draft/ crossed cheques in the name of the wife in the Court registry.
  4. In case there is a default in first payment than the Court can forgive it. But if there is a default in second payment without a proper reason then the court can add penalty up to 25 per cent of the amount of monthly maintenance.
  5. If there is a default in third and fourth then the penalty may increase up to 50 per cent of the monthly amount of maintenance.
  6. It is the duty of the court to ensure that the order of maintenance is meaningful and provide support to the wife.
  7. A written statement should be filed within a reasonable time if the interim maintenance is being paid and litigation expenses have been provided to the wife.
  8. The Court must take into consideration the nature of employment of the husband while applying penalty because of default in payment. Husbands having irregular employment have more chances to make default in payment.

One sided divorce in India

Divorce without Mutual Consent 

When one party to the divorce is not ready to seek divorce then the only option left to the parties is to fight for it in the Court. This is known as “Contested Divorce”. The Hindu Marriage Act,1955 provides numerous grounds for divorce.

Grounds for Divorce

The marriage which has been solemnized under Section 13 of The Hindu Marriage Act,1955 can seek divorce. The following grounds applies to both husband and wife:-

  1. Adultery. 
  2. Cruelty. 
  3. Desertion.
  4. Conversion.
  5. Unsoundness of mind.
  6. A Virulent or incurable form of Leprosy.
  7. Venereal Disease in a communicable form.
  8. Renunciation of world.
  9. Presumption of Death.

Additional grounds for Divorce without Mutual Consent

Along with the above conditions, the parties can seek divorce on the following grounds:

  1. After passing of the decree of judicial separation, cohabitation between the parties has not been resumed for a period of one year or more.
  2. For a period of one year, from the passing of the decree of restitution of conjugal rights, there has been no restoration of conjugal rights.

Grounds on which only wife can seek divorce

Grounds that are provided only to the wife under The Hindu Marriage Act,1955 are:

  1. Bigamy. 
  2. Rape, Sodomy or Bestiality.
  3. Non-resumption of Cohabitation after the decree of maintenance.
  4. Repudiation of marriage.

Adultery as a ground for divorce- Section 13(1)(i)

Extramarital sex is known as “adultery”. Other than his/her spouse if a married person voluntarily indulges in sexual intercourse with a person of the opposite sex during the subsistence of his previous marriage then it is termed as adultery. These are sexual relations not allowed by marriage.

To prove adultery, circumstantial evidence is enough.

To establish adultery:

  1.  There should be voluntarily sexual intercourse. Circumstances under which the action will not be considered as adultery are:
    1. An attempt to commit adultery.
    2. Mere love letters will not establish the guilt of extramarital sex.
    3. If there is an involuntary sexual act.
    4. If the act is committed under intoxication, by force or fraud.
    5. If a woman willingly commits an act considering another man to be her husband.
  2. Sexual intercourse should take place after the solemnization of the marriage with the petitioner.
  3. Even a single act of adultery will act as a ground for divorce.

When a child is born during the wedlock it is conclusive proof for the legitimacy of such child, unless it is proved that the child is born during the period when parties have no access to each other.

For example, the wife has been living separately since June 1973 and gave birth to a child in May 1974 was valid proof that the child was of a third person other than that of husband.

In Rajeev vs. Baburao [11], the court held that when a married person contracts a bigamous marriage after this act has been commenced then his wife can file a suit for divorce under this provision because the second marriage will be considered as void and any type of sexual intercourse with his second wife will amount to adultery.

In the case of Veena Kalia vs. Dr Jatindra Nath Kalia [12], the court held that the husband is guilty of adultery, cruelty and desertion because after getting married he went abroad leaving behind his wife and two daughters. There he married again and had three children from. For 23 years they lived apart. The court grant the decree of divorce in the favour of wife and husband was ordered to pay ten thousand rupees per month.

Cruelty as a ground for divorce- Section 13(1)(ia)

Cruelty includes both physical as well as mental cruelty. Before the Amendment Act, 1976, it was only a ground for judicial separation and not a ground for divorce. Earlier view on cruelty was that there should be actual physical harm and reasonable apprehension to establish cruelty but this view was changed. Now mental cruelty is also considered as a more serious injury. 

Cruelty can be established from facts and circumstances of the case. It mainly includes the behaviour of one spouse towards the other which causes suspicion in the mind of the party who is filing for divorce that it is unsafe to live with him/her.

Instances of Cruelty:

  1. Physical Cruelty:
    1. Burning any limb of the body.
    2. Feeding something that is injurious to health.
    3. Making an attempt on life.
  2. Mental Cruelty includes:
    1. False charge of unchastity.
    2. Forcing the wife to adopt the life of a prostitute.
    3. False charge of impotency.
    4. Threats to commit suicide.
    5. Keeping a concubine.
    6. Neglect of the wife when she is seriously ill.
    7. Repeated abuses
    8. Continuous taunts, curses.
    9. Injury caused to near and dear ones.
Cases wherein there was no cruelty
  1. Petty quarrels.
  2. Refusal of wife to resign the job.
  3. Ordinary wear and tear of married life.
  4. Consumption of alcohol by husband unaccompanied by abuses, insults and violence.

The court held the wife guilty of cruelty in the case of Dastane vs. Dastane [13]. The wife used to abuse parents and ancestors of the husband, she used to beat their child. She abuses her husband. Cursed the Dastane family, insults his husband in the presence of his students, tore the mangalsutra twice, rubbed chillies on the tongue of an infant child, defame him on a daily basis, used to nag him all night and don’t let him sleep, used to hide his shoes, keys and important documents, locked him outside the door on various occasions. The conduct of wife not only amount to physical cruelty but also amounts to mental cruelty.

In Bhagwat vs. Bhagwat [14], it was held that intention is not an essential element to establish cruelty. In this case, the husband strangulates wife’s younger brother on one and his son on another occasion. It was established that the husband in both cases acted due to a fit of insanity. So it was held that intention is not an essential element in order to establish cruelty and take divorce on this ground.

Desertion as a ground for divorce- Section 13(1)(ib)

When one spouse intentionally abandons another spouse without his/her consent or without any reasonable cause is called desertion. It is withdrawal from the matrimonial obligation.

Essential elements of desertion

Deserting spouse has to prove two elements:

  1. The factum of separation.
  2. There should be an intention on his/her behalf to permanently end the cohabitation. 

Deserted spouse is concerned with:

  1. Absence of consent.
  2. Absence of a reasonable cause.

The petitioner has to prove all these elements. All these elements must continue for the entire statutory period of not less than two years.

No Desertion without previous cohabitation

Cohabitation by the parties is an important element of a valid marriage. Desertion will not be established unless and until there is the previous cohabitation by the parties.

Types of Desertion

Desertion is of two types:

  1. Actual desertion.
  2. Constructive desertion.

In Actual Desertion, the deserting spouse gives up on the matrimonial home without proper excuse and justification. To prove Actual Desertion following facts must be established:

  1. Parties must have parted.
  2. There is an intention on the part of deserting spouse to desert the other spouse.
  3. No consent is given by deserted spouse in this regard.
  4. There should be no reasonable cause for desertion.
  5. Desertion should continue for a period of two years as it is a continuing offence.

In Smt. Snehlata Seth vs. Kawal Krishna [15], the husband filed a petition for divorce on the ground of desertion as the wife left husbands matrimonial home. The Court rejected this petition saying that the wife left the matrimonial home only at the instance of her mother-in-law and she has a bona fide intention to return to her matrimonial home but the husband is not ready to take her back. So the Court rejected her petition on the ground that leaving matrimonial home like this will not amount to desertion.

In Lachman vs. Meena [16],  the wife was living with her husband’s joint family. After five years of marriage, she went to South East Asia in order to handle her parents business. During this period her husband wrote her to return back to her home but she used to reply that her health doesn’t permit her to return. There was no intention on her behalf to return as it can be judged through the letters. So it was held by the Supreme Court that there should be not only factum of separation but also an intention to separate in order to establish desertion as a ground for divorce.

The court in the case of P.V.Veeraraghavan vs. S.T.Parrvathy [17], AIR 1974 Ker 43 held that where the intention to separate is not proved than the decree of judicial review will not be granted. In this case, the husband has insufficient means to afford a new matrimonial home. So he directed his wife to leave with him in his ancestral home with his parents and brothers but the wife did not agree to it. The husband filed a petition for judicial separation on this ground on which the court held that there was no intention to separate from wife’s side so no decree would be granted.

Constructive Desertion

It can be proved while the spouses are living under the same roof. It may not be withdrawal from a place but a state of things. It includes:

  1. Intentionally neglecting the other spouse.
  2. Ignoring opportunities for copulation.
  3. Not performing his/her marital duties.

In the case of Disnhaw vs. Dinshaw [18], AIR 1970 Bom 341 the Court held that constructive desertion is a matter of inference that is to be drawn from the facts and circumstances of the case. If due to husbands treatment wife leaves then it is clear that the wife left due to husbands intended action. He wants her to leave. So it depends on the motive of the deserting spouse and its effect on the deserted spouse. If the deserting spouse has malice towards the deserted spouse and due to his actions and treatment the deserting spouse finds it difficult to live with the other than this can be the case of cruelty. But if the withdrawal from the society is with a valid reason than this withdrawal will not amount to cruelty.

The neglect should be such that it is clear that he/she has decided to break the wedlock.

The Supreme Court has dismissed the appeal of wife in the case of Savitri Pandey vs. Prem Chandra Pandey [19] because she charged her husband with the offence of desertion and in her own pleadings she mentioned that the parties have never consummated. The wife lived with her husband for a few weeks and put a fake charge on her husband that he tortures her. She started demanding all household articles as well as money and also put a false charge of adultery on her husband. The court held that consummation is a very essential aspect of desertion and according to her own pleadings the parties never consummated. So, the appeal was dismissed.

In Bipinchandra vs. Prahbavati [20] the court held that the guilty party can bring an end to desertion through the resumption of cohabitation, resumption to marital intercourse and through the offer of reconciliation.

Conversion as a ground for divorce- Section 13(1)(ii)

If a Hindu cease or ceases to be Hindu by converting himself into another religion than the other party who is still a Hindu is entitled with the right to seek divorce under this section. Also, if children are born to him/her after the conversion gets disqualified from inheriting the property of any of their Hindu relatives.

A petitioner who seeks divorce on this ground has to prove the following:

  1. The other spouse discontinued being a Hindu.
  2. He has done so by accepting another religion.

This ground is not available to the converting spouse because then the spouse will take advantage of his own wrong. But if both the spouses convert into another religion then no one can seek the remedy for dissolution of marriage.

The court in the case of Sarla Mudgal vs. Union of India [21] and Lily Thomas vs. Union of India [22], held that simply because one party has changed its religion than a marriage which is solemnized according to one personal law will not dissolve the marriage solemnized under another personal law. Marrying another woman while the first wife still exists is an offence under Section 494, IPC. Justice Saghir Ahmad explained that where a person adopts another religion just because there is a plurality of marriage allowed and he gives up on his first marriage then he cannot be allowed to take advantage of his wrong by exploiting the religion, as religion is not something that should be exploited.

Mental Disorder: Unsoundness of Mind- Section 13(1)(iii)

Before 1976, unsoundness of mind for one year was a ground for judicial separation and if it continues till three years then it will be a ground for divorce. But after the 1976 Amendment, no period is prescribed and moreover, it includes all types of mental cases, sub-normality and abnormality.

The petitioner has to prove that:

  1. Respondent has been of unsound mind.
  2. It is incurable.
  3. It is of such kind that the petitioner is not expected to live with the respondent.

The Amendment Clause after 1976 also includes the following things under mental disorder:

  1. Occasional fits of schizophrenia.
  2. Epilepsy. 
  3. Mental retardation.
  4. Any Other disability of mind

Virulent and Incurable form of Leprosy- Section 13(1)(iv)

There is no period prescribed for filing a petition under this clause but prior to the 1976 Amendment, it was one year for judicial separation and three years for divorce. The requirements are:

  1. Respondent is suffering from leprosy which is an infectious disease resulting in disfigurement causing permanent disability.
  2. Leprosy must be both Virulent and Incurable. Ordinary leprosy is not a ground for divorce. Virulent means highly poisonous, venomous.

Venereal Disease in a communicable form- Section 13(1)(v)

The Communicable disease passes from one person to another, by the touch of that person or using his/her objects etc. The petitioner must give medical evidence in order to seek divorce on this ground. After the 1976 Amendment, there is no period prescribed for this.

Renunciation of world- Section 13(1)(vi)

By entering any religious order and renouncing from worldly affairs it amounts to “civil death”. To seek divorce on this ground the petitioner has to establish that:

  1. Respondent has entered any religious order.
  2. He/she has renounced the world.

A Spouse can only sue another spouse unless and until the second condition is also fulfilled. A person who renounces the world has no interest in society. It can be both Tyag and Sanyasa. Thus, mere tyag will not be considered under this ground it has to be coupled with sanyas.

Presumption of death- Section- 13(1)(vii)

If a person is not heard of being alive from his/her near or dear ones or his/her relatives for a period of seven years then he/she seemed to be legally dead. But in case he/she was married before, then their spouse can seek divorce on such a ground. In this case, no alternate decree of judicial separation is passed.

In the case of Vinita Saxena v. Pankaj Pandit [23], the lady got married at the age of 24 years. The marriage lasted for three to four months and she was forced to leave her matrimonial home. Marriage was not consummated and the respondent was also not in a position to fulfil his matrimonial obligations too. They lived separately since 1993. They have never seen each other in thirteen years and there was no chance of reconciliation. The court decided in favour of the wife and granted the divorce.

Irretrievable breakdown grounds- Section 13(1A)

Non-Resumption of cohabitation after the decree of Judicial separation or Restitution of Conjugal Rights

According to Section 13(1A)(i) of the Hindu Marriage Act,1955 after passing the decree of judicial separation, if the parties don’t resume cohabitation for a time span of one year or more than this can act as a ground for divorce for another party. Mere going together to some places do not amount to cohabitation. If the wife wants to resume the cohabitation but the husband dont want it or vice versa then this can also act as a ground for divorce.

Also, if there is no restoration of conjugal rights for a continuous period of one year or more after passing of such decree then this can act as a valid ground for divorce under Section 13(1A)(ii) of the Hindu Marriage Act,1955. Restitution of conjugal rights means that the parties must return to cohabitation.

Wife’s special grounds of divorce- Section 13(2)

Bigamy- Section 13(2)(i)

If the husband marries again while his first marriage has not dissolved then he will be guilty of bigamy and wife can seek divorce on this ground. The necessary ingredients of this section are:

  1. The husband should marry another woman.
  2. Husband married again while his first wife is alive.

If a person has two wives then the co-wives can seek divorce on the following grounds:

  1. Before the commencement of this act both the wives are married to him.
  2. Petition for divorce is filed when both the wives are alive.
  3. Both marriages must legally exist.

This section is for women, it provides support to the women as there are several cases in which the husband converts themselves into Islam so that they can get married to more than one wife.

Rape, Sodomy or Bestiality- Section-13(2)(ii)

All these three matrimonial offences are also crimes under IPC and punishment is provided for them. Sexual deviancy of the husband has been made a ground for divorce. If the wife proves that since the solemnization of marriage husband is guilty of rape, sodomy or bestiality she can be granted with the decree of divorce.

  1. Rape– it is sexual intercourse by a man with a woman against her will. A wife can file for divorce on the ground that the husband has raped her. For this, she must be below the age of fifteen years because sexual intercourse with a girl below the age of fifteen years is rape.
  2. Sodomy– Anal intercourse by a man with his wife or with another woman or with a man is termed as sodomy. Here, the consent of the victim and his/her age have no relevance in order to establish sodomy.
  3. Bestiality– It means sex with an animal and it is covered by unnatural offences under Section 377, IPC.

Non-Cohabitation after maintenance order- Section-13(2)(iii)

When the court has passed the order that the husband has to provide maintenance to his wife, and if the husband did not obey the order of the court and cohabitation has not resumed between them for a duration of one year or upwards then, the court grant the decree of divorce in favour of the wife on this ground.

When a decree is passed under Section 18 of the Hindu Adoption and Maintenance Act,1956 and under Section 125 of the Criminal Procedure Code, 1973 then it becomes obligatory for the husband to pay maintenance to his wife and also to resume cohabitation within a time period of one year. If the husband fails to discharge his duty then, the wife can seek a divorce in the court. If the husband offers cohabitation and wife doesn’t respond to it she is within her prescribed rights.

Repudiation of marriage- Section 13(2)(iv)

This clause is for the girls who are married and have not attained the age of fifteen years. Consummation of marriage is irrelevant here. The wife can get a divorce under subsequent conditions:

  1. She must be below the age of fifteen years at the time of marriage.
  2. Marriage is repudiated by her before attaining the age of eighteen years and after attaining the age of fifteen years.

The wife has to prove repudiation and there is no such prescribed procedure for this. There was no such right available prior to the Amendment of 1976, the Amendment Act,1976 added this clause.

That is all about Divorce by Mutual Consent. So far it has been seen that divorce by mutual consent is a better way rather than defaming each other through a court proceeding in an uncultured manner. In fact, in the case of divorce by mutual consent, the divorce can be granted as soon as possible by taking into consideration all the relevant facts and circumstances of the case rather than getting a divorce on other grounds which will definitely involve more time, money and efforts of the parties. 

References

  1. (1959) 2 WP 321
  2. AIR 1999 AP 91
  3. AIR 2005 MP 106
  4. 2003 (3) ALD 81
  5. AIR 1984 BOM 302
  6. AIR 1986 P H 201
  7. 1992 AIR 1904, 1991 SCR (1) 274
  8. 10 March 1997
  9. 1 September 2009
  10. AIR 2003 Raj 155
  11. 3 May, 2005
  12. 1981 SCC OnLine Del 364 
  13. 1975 AIR 1534 
  14. AIR 1976 Bom 80
  15. AIR 1986 Del 162
  16. 1964 SC 40
  17. AIR 1974 Ker 43
  18. AIR 1970 Bom 341
  19. 8 January 2000
  20. 1957 AIR 176
  21. 1995 AIR 1531, 1995 SCC (3) 635
  22. 2000 (2) ALD Cri 686
  23. (2006) 3 SCC 778

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