COMMENTS

Irretrievable break down of marriage is not a ground recognized by law for grant of decree of divorce: Sudhir Singhal v. Neeta Singhal A.I.R.2001 Del.116.

The expression “cruelty” as envisaged under S.13 clearly admits in its ambit and scope such acts which may even cause mental agony to aggrieved party. Cruelty may result where the complaining spouse establishes his being treated with cruelty whether physical, mental, social or otherwise but the acts complained of must be more serious than ordinary wear and tear of marriage falling in the category of conscious acts cruel in nature as that is the underlying requirement of the provision: Neelu Kohli v. Naveen Kohli A.I.R.2004 All.1.

Mental cruelty in S.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. V.Bhagat v. D.Bhagat (Mrs.) A.I.R. 1994 S.C.710: (1994) S.C.C. 337; Neelu Kohli v. Naveen Kohli A.I.R.2004 All.1.

Leveling of disgusting allegations of unchastity and indecent familiarity of wife with different  persons outside wedlock and her having extra-marital relations with other persons, themselves will amount to cruelty: Jai Dayal v. Shakunthal Devi A.I.R.2004 Del.39.

The fact that wife was pregnant from some other person at the time of marriage would amount to cruelty and mental agony to the husband: Pawan Kumar v. Mukesh Kumari A.I.R. 2001 Raj.1.

A Hindu marriage solemnized under the Act can only be dissolved on any of the grounds specified under the Act: Sarla Mudgal President, Kalyani v. Union of India 1995 D.N.J 252: (1995) 2 D.M.C. 351 (S.C.).

Grounds of divorce are to be construed liberally: Reynold Rajamani v. Union of India A.I.R. 1982 S.C. 1261: (1982) 2 S.C.C. 474.

After the amendment of S.13 by the Marriage Laws (Amendment) Act, 1976, the proof of only one instance of voluntary sexual intercourse by the other party with any other person except his or her spouse, is enough for a decree of dissolution of marriage: Sanjukta Padhan v. Laxminarayan Padhan A.I.R. 1991 Ori.39; Rajendra Agrawal v. Sharda Devi A.I.R.1993 Madh. Pra. 142; Gali Kondaiah v. Gali Ankamma A.I.R. 1988 Andh. Pra. 68 (D.B.).

The burden to prove the adultery is on the peson who seeks dissolution of marriage on the ground of adultery: A.Hemamalini v. A.Pankajanaban (1995) 1 D.M.C. 258: (1994) 2 Hindu L.R. 671 (Andh. Pra.) (D.B.).

It is quite possible that a particular conduct may amount to “cruelty” in one case but the same conduct necessarily may not amount to “cruelty” due to change of various factors, in different set of circumstances. Therefore, it is essential for the petitioner, who claims relief, to prove that a particular/part of conduct or behaviour resulted in “cruelty” to him. No prior assumptions can be made in such matters: Naval Kishore Somani v. Poonam Somani A.I.R. 1999 Andh. Pra. 1 (D.B.).

Even a single act of violence which is of grievous and inexcusable in nature satisfies the test of cruelty: Mohanan v. Thankamani (1995) 1 D.M.C. 327; (1995) 2 Hindu L.R. 174 (Ker.) (D.B.); Sulekha Bairagi v. Kamala Kanta Bairagi A.I.R. 1980 Cal. 370 (D.B.).

“cruelty” under the Act can be both mental and physical. The degree of “cruelty” necessary to claim a matrimonial relief has not been defined under the Act. It depends from case to case and the Legislature has also refrained from giving a comprehensive definition of the expression that may cover all cases. In order to claim divorce on the ground of cruelty, it may be shown that the other spouse has treated the complaining spouse with cruelty which may be physical mental: Praveen Mehta v. Inderjeet Mehta (2002) 5 S.S.C.C. 706; A.I.R.2002 S.C.2582. Besides mental cruelty is a state of mind and feeling of one of the spouses due to the behaviour or behavioural pattern of the other. It is a matter of inference to be drawn from the facts and circumstances of the case and proper approach requires the assessment of the cumulative effect of the attending facts, and circumstances as established from the facts and circumstances on record. Physical cruelty on the other hand consists of such acts which endanger a physical health of one of the parties to the marriage and includes the inflicting bodily injury or giving cause for such injuries: Savitri Pandey v. Preme Chandra (2002) 2 S.C.C. 73: A.I.R. 2002 S.C. 591; Neelam Kumari v. Gurnam Singh A.I.R. 2004 P. & H.9.

The decisions of various Courts in India including the Supreme Court lead to the conclusion that a decree for divorce in terms of S.13(1)(iii) of the Act can be granted in the event the unsoundness of mind is held to be not curable. A party may  behave strangely or oddly inappropriate and be progressive in deterioration in the level of work which may lead to a conclusion that he or she suffers from an illness of slow growing developing over the years. The disease, however, must be of such a kind that the other spouse cannot reasonably be expected to live with him or her. A few strong instances indicating short temper and somewhat erratic behaviour on the part of the spouse may not amount to his/her suffering continuously or intermittently from mental disorder: Sharda v. Dharmapal (2003) 4 S.C.C.493.

A matrimonial Court has the power to order a person to undergo medical test. Passing of such an order by the Court would not be in violation of the right to personal liberty under Art. 21. However, the court should exercise such a power if the applicant has a strong prima facie case ands there is sufficient material before the court. If despite the order of the Court the respondent refuses to submit himself to medical examination, the Court will be entitled to draw and adverse inference against him:  Sharda v. Dharmapal (2003) 4 S.C.C.493.

Desertion implies not only the factum of separation but also the intention to separate permanently and put an end to the matrimonial relationship and cohabitation; there can be no desertion without animus deserendi or if the husband himself is responsible for the wife living away from the husband or if the wife has sufficient reason to live away from the husband: Saroja v. Arumugam (1989-1) 103 Mad. L.W.116(1989) 1 Hindu L.R.528.

The onus of proving that the other spouse is of incurably unsound mind or is suffering from mental disorder, held, lies on the party alleging it; it must be proved by cogent and clear evidence: Parvati Mishra v. Jagadananda (1995) 1 D.M.C. 77 (Madh.Pra.).

For the success of a petition under S.13(2)(iv), the petitioner has to prove three things; (a) that her marriage was solemnized before she attained the age of 15 years; (b) that she repudiated the marriage after attaining the age of 18 years; and (c) that she repudiated the marriage before attaining the age of 18 years. Whether the marriage was consummated or not is immaterial and beside the point. It is also immaterial whether the repudiation was made before the Marriage Laws (Amendment) Act, 1976 came into force or thereafter. Even if the repudiation was made before coming into force of the Amending Act, the wife can take advantage of this provision in such a petition and can be granted a decree for divorce under S.13(2)(iv) of the Act: Raju v. Ratan (1988) 2 Hindu L.R.257(Raj.).

 

 [13-A. Alternate relief in divorce proceedings.- In any proceeding under this Act, on a petition for dissolution of marriage by a decree of divorce, except in so far as the petition is founded on the grounds mentioned in clauses (ii), (vi) and (vii) of sub-section (1) of section 13, the Court may, if it considers it just so to do having regard to the circumstances of the case, pass instead a decree for judicial separation.

 COMMENTS

The Court is not competent to grant the relief of judicial separation under S.13-A, when the petitioner had prayed for relief under S.13(1)(ia) and (ib) but failed to prove: Vijayalakshmi Balasubramanian v. R.Balasubramaniam (1998) 1 D.M.C. 210 (Mad.) (D.B.).

27. Ss.13-A and 13-B inserted by Act 68 of 1976, S.8 (w.e.f. 27-5-1976).

13-B. Divorce 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, 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 that 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.]

 COMMENTS

            A petition under S.13-B is not entertainable by the Appellate Court; it has to be filed in the original Court: N.Vijaya Raghavan v. K.Sharda A.I.R. 2001 Karn.300 (D.B.).

            No decree can be passed otherwise than under section 13-B for divorce on the basis of compromise: Munesh v. Anasuyamma A.I.R. 2001 Karn.355 (D.B.).

            A decree of divorce by mutual consent can be granted when and only when the Court is satisfied about (i) marriage having been solemnized between the parties; (ii) the parties have been living separately for more than a year before presenting the petition; (iii) they were not able to live together at the time of presenting the petition and continue to live apart; (iv) they had mutually agreed to dissolve the marriage before or at the time the petition was presented; and (v) the averments made in the petition are true and conditions under S.23 are fulfilled. Thus, the Court amongst other factors has to exclude the possibility of the consent of other party being obtained by force, fraud or undue influence, and also see through if there is any collusion: Krishna Khetarpal v. Satish Lal A.I.R. 1987 P. & H.19].

            There cannot be any written agreement between husband and wife for divorce contrary to the provisions contained in Hindu Marriage Act, both spouses being Hindus: Malayaiah v. G.S.Vasatha Lakshmi (1997) 2 D.M.C. 88 (Karn).

 14. No petition for divorce to be presented within one year of marriage:- (1) Notwithstanding anything contained in this Act, it shall not be competent for any Court to entertain any petition for dissolution of a marriage by a decree of divorce, {unless at the date of the presentation of the petition one year has elapsed} since the date of the marriage:

            Provided tat the Court may, upon application made  to it in accordance with such rules as may be made by the High Court in that behalf, allow a petition to be presented {before one year has elapsed} since the date of the marriage on the ground that the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent, but, if it appears to the Court at the hearing of the petition that the petitioner obtained leave to present the petition by any misrepresentation or concealment of the nature of the case, the Court may, if it pronounces a decree, do so subject to the condition that the decree shall not have effect until after

28. Substituted by Act 68 of 1976, S.9, for “unless at the date of the presentation of the petition three years have elapsed” (w.e.f.27-5-1976).

29. Substituted by Act 68 of 1976, S.9, for “before three years have elapsed” (w.e.f.27-5-1976).

the [expiry of one year] from the date of the marriage or may dismiss the petition without prejudice to any petition which may be brought after the [expiration of the said one year] upon the same or substantially the same facts as those alleged in support of the petition so dismissed.

(2) In disposing of any application under this section for leave to present a petition for divorce before the [expiration of one year] from the date of the marriage, the Court shall have regard to the interests of any children of the marriage and to the question whether there is a reasonable probability of a reconciliation between the parties before the expiration of the [said one year].