TABLE OF INDEX

1. INTRODUCTION……………………………………………………1

2. MARRIAGE AS A SACRAMENT………………………………….2

3. MEANING OF DIVORCE……........................................................3-4

4. GROUNDS OF DIVORCE…………………………………………..4-10

5. IRRETRIEVABLE BREAKDOWN OF MARRIAGE…………...…11

6. CONCLUSION.………………………………………………………12

7. BIBLIOGRAPHY…………………………………………………….13
 Introduction

Marriage under all matrimonial laws is the union of a man and a woman which imposes
certain marital duties and consequently confers to each of them certain legal rights. In case of
any dispute arising out of the matrimony, a matrimonial relief or remedy could be sought by
either parties. Under Hindu Marriage Act of 1955, various matrimonial remedies (from
section 9 to section 13 of the said Act) have been accorded to either parties of a marriage
which for example encompass restitution of conjugal rights (under section - 9), judicial
separation (under section - 10) as well as divorce (under section- 13).

In Ancient Hindu Law, marriage was recognized as a sanaskar which means a sacred duty. It
was considered as divine in nature wherein the concept of divorce did not exist. Neither Vedic
texts nor Smritis contain any advertence to divorce by which we can conclude that once the
husband and wife were united, they were bound for life and even beyond that.1

It is interesting to note here that the sacramental character of Hindu Marriage has evaporated
as a result of induction of the remedy of divorce in Hindu Marriage Act. Section 13 the Hindu
Marriage Act talks about the various grounds of divorce.

1
Retrieved on http://www.harvard-jlpp.com/wp-content/uploads/2013/10/GeorgeFinal.pdf.
 Marriage as a Sacrament

A legally sanctioned contract between a man and a woman is known as ‘marriage’ which
engender changes in legal status of both the parties wherein each are accorded with new rights
and obligations.17 The concept of marriage has come a long way since the Vedic times. The
Human life is divided into four Ashramas by Hindus namely:

 Brahmacharya Ashrama (studentship)

 Grihastha Ashrama (life of householder)

 Vanasprastha Ashrama (life of recluse)

 Sanyasa Ashrama (life)

Marriage is described by the Hindu Law as a holy union for the performance of religious
duties because according to Yajnavalka, it was performed to achieve: Enjoyment (love, bliss
and happiness), procreation (son) and Dharma. Therefore, it was an essential samskara for
every Hindu to marry and enter Grihasthaa Ashrama.

Hindu marriage had a sacramental element of being an eternal, permanent and indissoluble
and a holy union which means that the concept of separation was alien and considered as a
blasphemy. This concept slowly and steadily gave away which ultimately led to the enactment
of Hindu Marriage Act, 1955.

Section 13 of the said Act deals with the grounds on which the parties can procure a decree of
divorce by way of petition from a competent court having the adequate jurisdiction. Before
broaching on the discussion on divorce which is the complete termination of marriage. The
Hindu Marriage Act, 1955 provides additional matrimonial remedies of varying intensities
which do not lead to the actual termination of the marriage.
 Divorce And It’s Meaning

The idea or the concept of divorce is quite old and its origin cannot be traced. The term
‘divorce’ is of Latin origin ‘divortium’ which means ‘to turn aside, to separate from,
diversion’. It is referred to as diversion because a husband is diverted from his wife 2. It was
considered to be of the following two categories wherein the divorce may be:

 Absolute, that is, the marriage stands dissolved, or

 Limited, when the marital relation is suspended though the matrimonial bonds remain
in full force which is now referred to as ‘Judicial Separation’.

Oxford English Dictionary defines ‘Divorce’ as ‘legal dissolution of marriage’ i.e., it is the
permanent dissolution of marriage, the cancelling and/or reorganizing of the legal duties and
responsibilities of marriage, thus dissolving the bonds of matrimony between a married
couple under the rule of law. Since, there are no rights and obligations to maintain after this
permanent separation, thus, either party after such dissolution is free to remarry.3

However, it is important to distinguish divorce from ‘annulment’ to avoid any kind of

confusion. Annulment declares the marriage null and void per se. It retroactively invalidates a
marriage from the date of its formation. Annulling a marriage is as though it stands
completely erased, i.e., the marriage, technically never even existed and was thus, never valid.
Whereas on the other hand divorce is the court decree that terminates a marriage.

It is important to observe the distinction between ‘Judicial Separation’ and ‘Divorce’. The
former is the last resort before the actual act of legal termination of marriage, i.e., divorce.
Unlike divorce, wherein the parties no longer have any marital ties attached to each other,
under the decree of judicial separation, the marital status of both the parties is not affected,
however, there is an impact on cohabitation i.e., the party who approached the court after the
pronouncement of the decree of judicial separation, is not obliged to live with his/her spouse.

2
Supra note 15, pg: , Jai Janak Raj
3
Retrieved on http://legal-dictionary.thefreedictionary.com/annulment last accessed on 10.04.2019
A divorce decree establishes the new relations between the parties which is inclusive of their
duties and obligations that they own, support responsibilities of either or both of them and
provisions for children, if any. When a marriage breaks up, a decree of divorce a legal
solution for the issue(s) that the parties to the marriage are not able to resolve through mutual
cooperation.

Grounds Of Divorce

Following are the grounds under section 13 (1) on which either party to the marriage are
entitled to seek the decree of divorce:

1. Adultery: Section 13(1)

Prescribes that a decree of divorce shall be sought on the ground that the respondent
after the solemnization of marriage, had voluntary sexual intercourse with any person
other than his or her spouse. Initially a divorce could be granted only if such spouse
was living in adultery, but in the case of Veera Reddy v. Kista Amma4, it was held
by the court that even a ‘single act’ of adultery would be a sufficient ground for
divorce. Subsequently, by the Marriage Laws Amendment Act, 1976, the position
under the Hindu Marriage Act changed on the lines of the above judgment and now
even a single act of adultery is considered as enough for the decree of divorce. Thus,
the vigour of ‘living in adultery has been reduced. The same was also held in
Sanjukta Pradhan v. Lakshminarain Pradhan5.

1.1 Burden Of proof:-

Adultery is a matrimonial offence. The burden of proof in a matrimonial offence, it is

not so strict because the evidence in this case is based on inferences and probabilities.

4
7Veera Reddy v. Kista Amma AIR 1969 Madras
5
Sanjukta Pradhan v. Lakshminarain Pradhan AIR 1991 Ori 39
In the case of Hargovind Soni v. Ram Dulari6 , the High Court observed that adultery need
not be proved beyond all reasonable doubts, instead, it can be established by preponderance of
probabilities. The same was held in Pramila Devi v. Amarjeet Singh7 wherein the court
observed that no ‘direct evidence’ is required to prove the matrimonial offence of adultery,
the existence of circumstantial evidence is sufficient.

2. Cruelty:-

It is a ground for divorce and judicial separation under section 13(1)(ia) and section 10(1)
of the Hindu Marriage Act respectively. Cruelty was defined in Dastane v. Dastane8 as
“Conduct of such character as to have caused danger to life, limb or health (bodily or
mentally), or as to give rise to a reasonable apprehension of such danger.”

Cruelty is usually classified into two following categories: -

 Physical Cruelty- Physical violence is relatively easy to determine and the courts
would have no problem to arrive at a decision. Even a single act of physical
violence is enough to come under the purview of cruelty.
 Mental Cruelty- An act of mental cruelty is far more severe than a physical
cruelty. 110 It is also comparatively difficult for the courts to ascertain mental
torture and harassment.

In Pravin Mehta v. Inderjeet Mehta9, the court has defined mental cruelty as ‘the
state of mind’.

In Shobha Rani v. Madhukar Reddi10, the court observed that the question whether
a particular act or conduct would amount to cruelty or not would always depend on the
facts of each case, the court further held, the two elements which are required to be
proved are the nature of the cruel treatment and its effect on the aggrieved party.

6
Hargovind Soni v. Ram Dulari AIR 1986 MP 57
7
Pramila Devi v. Amarjeet Singh AIR 2015 Haryana
8
Dastane v. Dastane AIR 1975 SC 1534
9
Pravin Mehta v. Inderjeet Mehta AIR 2002 SC 2528
10
Shobha Rani v. Madhukar Reddi AIR 1988 SC 121
 Some Instances of Cruelty are as follows:

 false accusations of adultery or unchastity

 demand of dowry

 refusal to have marital intercourse/children

 impotency

 birth of child

 drunkenness

 threat to commit suicide

 wife’s writing false complaints to employer of the husband

 incompatibility of temperament

 irretrievable breakdown of marriage

3. Desertion:

Under section 13(1)(ib), a decree of divorce can be obtained from the court on the
ground that the other party has deserted the petitioner for a continuous period of not
less than two years immediately preceding the presentation of the petition. An
explanation after clause (vii) of (13)(1) was inserted by the Amending Act of 1976
which is as follows: “Explanation- In this sub-section, the expression "desertion"
means the desertion of the petitioner by the other party to the marriage without
reasonable cause and without the consent or against the wish of such party, and
includes the willful neglect of the petitioner by the other party to the marriage, and its
grammatical variations and cognate expression shall be construed accordingly.” Even
before the amendment, in Bipin Chandra v. Prabhavati11, the court had observed that

11
Bipin Chandra v. Prabhavati AIR 1957 SC 176
 so far as the deserting spouse is consent two essential conditions must be met to
constitute the offence of ‘desertion’ namely:

 Factum of separation, and

 The intention to bring cohabitation to an end (animus deserendi) Similarly, two

elements are essential which are required for the deserted spouse:

 The absence of consent, and

 Absence of conduct giving reasonable cause to the spouse leaving the matrimonial
home to form necessary intention aforesaid.

In the case of Lachman Utmamchand Kirpalani v. Meena12, the judgement in the

above case was reiterated stating that for desertion to be proved, the petitioner has to
prove that he/she was intentionally abandoned without reasonable cause; that there was
no bona fide attempt by the respondent to return; he/she did not provide the respondent a
reasonable cause to stay away etc.

4. Conversion or Change of Religion:

Under section 13(1)(ii), if one of the spouses adopts another religion, he/she does ceases
to be a Hindu. The marriage however would not stand dissolved merely because the
other spouse embraced another religion. Also, the spouse who did not change his/her
religion is entitled to file a petition for a decree of divorce on the ground that the other
spouse has ceased to be a Hindu by embracing another religion. In the case of Lily
Thomas v. Union of India13 , the husband of the petitioner had converted for the sole
purpose of marrying another woman without divorcing the previous one. It was pleaded
that since he had converted to Islam, he could keep up to four wives at a time and thus
could not be prosecuted for bigamy u/s 494 of the Indian Penal Code. It was further

12
Lachman Utmamchand Kirpalani v. Meena AIR 1964 SC 40
13
Lily Thomas v. Union of India AIRR 2000 SC 1650
 contended that the marriage automatically stood dissolved u/s 13 of the Hindu Marriage
Act because of the conversion. The Supreme Court rejected the two contentions and
held that conversion or apostasy does not automatically dissolve a marriage already
solemnized under the Hindu Marriage Act. 126 Section 13 of the act only provides the
ground for divorce. Further, if a person marries a second time during the lifetime of his
wife, such marriage apart from being void u/s 11 and 17 of the Hindu Marriage Act,
would also constitute the offence of bigamy u/s 494 of IPC.127.

5. Insanity:

If it has been established that the other spouse has been incurably of unsound mind or
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
him/her, a decree of divorce can be granted by the court. The Hindu Marriage Act
goes on to specify the meaning of ‘mental disorder’ under explanation to the section,
which appears as under: “the expression "mental disorder" means mental illness,
arrested or incomplete development of mind, psychopathic disorder or any other
disorder or disability of mind and include schizophrenia;”

In the case of Ram Narain Gupta v. Rajeshwari Gupta14, the Supreme Court held
that by merely branding the spouse as schizophrenic is not sufficient to prove mental
disorder for the purpose of divorce u/s 13(1)(iii). The said disease should be such to
justify the reasonable apprehension that it would not be possible or safe for the
petitioner to live the spouse.

Further, in Nirmala Manohar Jagesha v. Manohar Shivram Jagesha,15 the court

held that a few stray instances indicating a petulant behaviour does not amount to
mental disorder for the purpose of section 13(1)(iii) because such alleged mental
disorder is not of such a kind that the petitioner cannot be reasonably expected to live
with the other spouse. Also, a decree of divorce would not be granted u/s 13(1)(iii) of

14
Ram Narain Gupta v. Rajeshwari Gupta AIR 1988 SC 2260
15
Nirmala Manohar Jagesha v. Manohar Shivram Jagesha AIR 1991 Bom 259
 the Hindu Marriage Act where the spouse suffers from curable epilepsy.The onus of
proof that the respondent is of incurably unsound mind or that he/she is suffering from
a mental disorder lies on the petitioner.

6. Leprosy:

If a spouse is suffering from a ‘virulent and incurable form of leprosy’, it would

constitute a ground for divorce. The petitioner has to prove that his/her spouse has
been suffering from such form of leprosy which is not only ‘virulent’ but also
incurable.

7. Venereal Disease:
Venereal disease, if in a communicable form, constitutes a ground for obtaining a
decree of divorce under section 13(1)(v) of the Hindu Marriage Act.138 Thus, the
respondent must not only be suffering from a venereal disease, like syphilis,
gonorrhoea etc., but also the disease should be such as to infect others who come in
contact with the infected.

8. Renunciation of the world:

Section 13(1)(vi) makes the ‘renouncement of world by entering any religious order’ a
ground for divorce. Modern codified Hindu law lays down that a spouse may seek
divorce if the other party has renounced the world and has entered a holy order.140 A
person who does this is considered as civilly dead. Such renunciation by entering into
a religious order must be unequivocal & absolute. Supreme Court in Sita Das v. Sant
Ram held that the renunciation must be complete and final and must be effected with
the ceremonies and rites prescribed by the order which he enters.

9. Presumption of Death:

Under the Act, a person is presumed to be dead, if he/she has not been heard of as
being alive for a period of at least seven years. The burden of proof that the
whereabouts of the respondent are not known for the requisite period is on the
petitioner under all the matrimonial laws. In view of section 108 of the Indian
 Evidence Act, 1872, the burden to prove that a person has not been heard of for more
than seven years, is still on the person who affirms it.

10. Unavoidable Judicial Separation:

Section 13(1A)(i) provides that either of the parties to a marriage may seek dissolution
of marriage on the ground “that there has been no resumption of cohabitation as
between the parties to the marriage for a period of one year or upwards after the
passing of a decree for judicial separation in a proceeding to which they were parties;”
However, while availing the ground of divorce provided under this clause, provisions
of section 23(1)(a) have also to be kept in mind, which requires that “the petitioner
should not in any way take advantage of his/her own wrong or disability for the
purpose of such relief”. Thus, to justify the decree of divorce under the provisions of
13(1) and 13(1-A) and 23(1) the essentials are:

i. A decree of judicial separation between the petitioner and the respondent,

whosoever might be the decree holder;
ii. Non-resumption of cohabitation between the parties for a period of one year or
upwards
iii. The petitioner should not be in any way taking advantage of his or her wrong
or disability
iv. Non-existent of any other legal ground warranting refusal of relief prayed.
This clause enables even a defaulting party and not merely an aggrieved party
to obtain a decree for dissolution of marriage.
 Irretrievable Breakdown of Marriage Theory

Irretrievable breakdown of marriage comes under the breakdown theory where the
marriage is supposed to have reached a point wherein there is complete breakdown of
the institution with no scope for retrieval of that previously existing bond. The
irreparable nature of the situation gives rise to the alternative of providing the couple
an option to leave each other’s company without bitterness and distress. There has
been a gradual shift from a fault theory to a no fault theory. Previously, the provision
was that after obtaining an order for restitution of conjugal rights, the party which
wronged could not obtain divorce rather only the person who was wronged could
move the court for a divorce order if the restitution does not get executed.

In Ajay Sayajirao v. Rajashree Ajay Desai16 , the Court had held that when there is
no alleged fault ground proved, relief cannot be granted on ground of irretrievable
breakdown of marriage.However, a differing stance was taken in the case of in Dinesh
Kumar Mandal v. Mina Devi, it was held that a couple living separately for many
years justify the fact that the marriage is broken beyond repair and even though the
alleged ground of adultery was not proven here, divorce was granted.

Another landmark case relating to the concept is of Naveen Kohli v. Neelu Kohli17 ,
wherein the Court held that if irretrievable ground for divorce is not taken into
consideration, then the Courts would be unrealistic in their approach which would
result in mechanization and it would mean that the courts would then have turned
blind towards the feelings of the parties.

16
Ajay Sayajirao v. Rajashree Ajay Desai, AIR 2005 Bom 278
17
Naveen Kohli v. Neelu Kohli AIR 2006 SC
 Conclusion

No doubt the fundamental of a particular marriage is to stay together, and to provide each
other with warmth and support which is expected by the partners in the marriage.But this,
does not always remain the case in each marriage and hence the concept of divorce came into
existence by virtue of which, the parties have the matrimonial remedy to dissolve the
marriage.

The Hindu Marriage Act, 1955 provides for various matrimonial remedies such as that of
‘Restitution of Conjugal Rights’ as well as ‘Judicial Separation’ which vary in intensity of the
relief granted. The said Act recognizes ‘divorce’ under section 13 which is the permanent
dissolution of marriage and provides numerous grounds on which either parties to the
marriage are capable of obtaining a decree of divorce as well as the grounds which are solely
available to the wife. It also specifies grounds wherein both the parties can mutually agree to
obtain the decree of divorce. In any case, divorce should always be the last resort as all the
marital ties between the parties are severed.
 Bibliography

Websites:-

1. https://indiankanoon.org

2. https://scconline.in

3. https://manupatra.com

4. https://livelaw.com

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Graphics, 2012, p. 273

2. Mathiharan K., Patnaik AK. (edi.) Modi’s Medical Jurisprudence and Toxicology. 23rd edition.

LexisNexis, Butterworths, 2006, p. 21

3. Family law written by Paras Diwan