JAMIA MILLIA ISLAMIA

MATRIMONIAL REMEDIES

FAMILY LAW II

MD. ALI IMRAN

B.A. LL.B
TH
5 SEM. (REGULAR)

SUBMITTED TO- Prof. Kahkashan Y.

Danyal
 Acknowledgement

I would like to express my profound sense of gratitude towards the god for providing me with
the authentic circumstances which were mandatory for the completion of my project.

I am highly indebted to Prof. DR KAHKASHAN Y. DANYAL at Faculty of Law, Jamia

Millia Islamia University, New Delhi for providing me with constant encouragement and
guidance throughout the preparation of this project.

I also thanks the library staff who liaised with us in searching material relating to the project.

My cardinal thanks are also for my parents, friends and all teachers of law department in our
college who have always been the source of my inspiration and motivation without which I
would have never been able to unabridged my project.

Without the contribution of the above said people I could have never completed this project.

S&d
Contents
INTRODUCTION................................................................................................................................5
Restitution of Conjugal Rights (Section 9).........................................................................................6
Reasonable Cause:........................................................................................................................7
Whether living separately for job amounts to reasonable cause?................................................7
Constitutionality of Sec.9 of HMA.................................................................................................8
Judicial Seperation (Section 10)........................................................................................................9
Consequences of judicial separation:..........................................................................................10
Nullity and Annulment of Marriage (Sec.11 & 12)..........................................................................11
Void Marriage.............................................................................................................................11
Effects or Legal Consequences of Void Marriage.....................................................................12
Voidable Marriage......................................................................................................................12
Divorce...........................................................................................................................................14
GROUNDS AVAILABLE TO WIFE ALONE:-.........................................................................................19
Divorce by Mutual Consent............................................................................................................20
BIBLIOGRAPHY....................................................................................................................................21
INTRODUCTION
India is only country in the world which permits persons belonging to different religious to
follow their own personal laws based on religion. Thus in respect of personal matters like
marriage, divorce, succession and maintenance, different personal laws are followed,
depending on the religion of the person. This gave rise to different marriage laws, succession
laws and divorce laws, applicable to different religions like Hindusim, Islam, Christianity and
Parsis.

The very purpose of marriage is to unite legally. It lays down that the legally wedded couple
must live together throughout the life sharing pleasures and pains. However, in some cases,
matrimonial disputes takes place due to misunderstanding or indifferent attitudes between the
husband and the wife. In such cases, to provide relief to the aggrieved spouse, certain
matrimonial remedies are incorporated in the Hindu Marriage Act, 1955.

Marriage constitutes the very basis of social organization. Hindu law regards marriage as a
sacrament- indissoluble and eternal. This sacramental character of marriage has given rise to
certain anomalies. The declaration of Manu that neither by sale nor by desertion is wife
released from the husband was applied only to women and not men. Thus there was an
element of inherent injustice on the wife in Hindu law. To counter such inequalities among
spouses and to protect the sacramental aspect of marriage, Hindu Marriage Act, 1955 was
enacted which provided certain matrimonial remedies.

Those matrimonial remedies are:

1. Restitution of Conjugal Rights (Sec.9)

2. Judicial Separation (Sec.10)

3. Nullity and Annulment of Marriage (Sec.11 & 12)

4. Divorce (Sec.13)
Restitution of Conjugal Rights (Section 9)
It is a well establishes principle that both the spouses are equally entitled to matrimonial
society and comfort (consortium) of the other. In case one spouse happens to leave the other
from the matrimonial society without any reasonable cause, the other (deserted) spouse can
file a petition in the District Court for the restitution of conjugal rights. For instance, if a
husband, without any reasonable cause leaves his wife and lives elsewhere, wife can file a
petition for the restitution of conjugal rights of the Hindu Marriage Act, 1955. A provision to
this effect has been provided for under Section 9,which runs as follows: “When either the
husband or the wife has, without reasonable excuse, withdrawn from the society of the other,
the aggrieved party may apply, by petition to the District Court, for restitution of conjugal
rights and the court, on being satisfied of the truth of the statements made in such petition and
there is no legal ground why the application should not be granted, may decree restitution of
conjugal right accordingly.1

The explanation added to the section provides that where a question arises whether there has
been reasonable excuse for withdrawal from society, the burden of proving reasonable excuse
shall be on person who has withdrawn from society.

The concept of Restitution of Conjugal Rights is based upon English Matrimonial Law. In
India, it was applied by the Privy Council for the first time in 1866 in Moonshee Bazloor vs.
Shamsoonaissa Begum (1866-67). However, this remedy was abolished in England in 1970.

The expression ‘Reasonable Excuse’ has been inserted under the Amendment Act of 1976.
The burden of proving reasonable excuse is on the spouse, who has withdrawn from the
society of the other.

The relief under Section 9 is subject to fulfilment of the following conditions:

i. The marriage between the parties must be a valid marriage under Sec.5 of Hindu
Marriage Act, 1955.
ii. The respondent has withdrawn from the society of the petitioner without reasonable
excuse.
iii. The court is satisfied with the truth of the statement, made in the petition.
iv. There is no legal ground, why the relief should not be granted.

1
Section 9 of the Hindu Marriage Act, 1955.
Parbia Ram vs. Thopali (AIR 1966) – In this case, it was held that if, the parties of the
restitution of conjugal rights petition are not legally married or the marriage was not
subsisting at the time of the petition, the question of granting of decree of restitution of
conjugal rights does not arise.

Reasonable Cause:

The expression ‘reasonable cause’ is not defined in the Act. What is reasonable or just would
be decided in the context of facts and circumstances of each case, no formula can be
formulated for ascertaining reasonable or just grounds. The reason for withdrawal from the
society must be ‘grave and weighty’ and it may be distinct from a matrimonial offence.

Whether living separately for job amounts to reasonable cause?

In all societies, the universally accepted opinion is that wife and husband must live under the
same roof sharing pleasure and pains and the wife must be obedient to her Husband. Manu
has said – ‘The wife should obey her lord’. However, in the modern society, under rapid
changing socio-economic cultural environment, a number of House-wives are taking up
employment, which occasionally becomes cause for conflict between her job and matrimonial
obligations. The question arise whether taking up of a job by a wife, as a place other than
that of her husband, or at husband’s desire to give up her job, amounts to desertion and her
withdrawal from the society of her husband without reasonable cause excuse and whether the
husband could get a decree of restitution of conjugal rights? 2

Tirad Kaur vs. Kirpal Singh (AIR 1964)3 – In the instant case, the respondent (wife) with the
consent of her husband had undergone tailoring course and joined employment elsewhere.
After sometime, she was asked to resign the job (by her husband). As she refused to do so,
the husband filed a petition under Sec.9 of the Hindu Marriage Act,1955 for restitution of
conjugal rights. The question as to the course to be adopted if the wife refused to resign her
job and the husband refused to allow the wife to continue in the job is difficult to decide.
Mere refusal on the wife’s part to resign her job is not a sufficient ground for the husband to
seek relief for the restitution of conjugal rights. The Courts have to decide on the
circumstances of each case which of the parties is reasonable. If the attitude of the wife is
reasonable the Court may dismiss the suit in its discretionary jurisdiction. If it is unreasonable
it will decree the suit on the ground that the wife has no just defence to the action.
2
Legally India
3
AIR 1963 MP 10
If the court is satisfied with the truth or genuineness of the statement made in the petition and
there is no legal ground, why the relief should not be granted, the court will pass the decree of
restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955. An agreement
to live separately is not valid. If the parties to marriage have entered into an agreement to live
separately, such agreement is not valid. Cruelty on the part of one spouse is a reasonable
cause. Cruelty on the part of one spouse is a reasonable cause to the other spouse to withdraw
from the society of the other spouse. Eg. Impotency on the part of the Husband, insisting
upon wife to take Non-Vegetarian food, to smoke, to drink alcohol etc. amounts to reasonable
cause. If the wife has the reasonable cause to withdraw herself from her husband’s society,
she is entitled to maintenance and separate residence under Sec.18 of Hindu Adoption and
Maintenance Act, 1956, Section 24 & 25, Hindu Marriage Act, 1955 and Section 125 of
CrPC, 1973.

Constitutionality of Sec.9 of HMA

Whether Section 9 of the HMA, 1955 is voilative of Article 14 & 21 of the Indian
Constitution. This question came before the A.P. H.C. in the leading case of T. Sareetha vs.
T. Venkata (AIR 1983)4 – The A.P. H.C. held that the relief under section 9 of the HMA,
1955 is unconstitutional since it offends against Article 21 (personally liberty) and Article 14
(Right to equality) of the Constitution. Sareetha – a famous film star got married to Venkata
– the A.P. H.C. dismissed the Petition u/s 9 stating that it violates the wife’s right to privacy
by compelling her to have physical relationship against her will. However, the A.P. H.C. in
Sareetha’s case was dissented and Constitutionality of Sec. 9 was upheld in Smt. Harvinder
Kaur vs. Harmendra Singh, AIR 19845. The Supreme Court upheld the judgement of Smt.
Harvinder Kaur vs. Harmendra Singh and opined in Saroj Rani vs. Sudarshan Kumar, (AIR
1984)6 that leading idea of Sec. 9 is to preserve the marriage and therefore, it is not violative
of Article 14 or 21 of the Constitution. 7

Judicial Seperation (Section 10)

Judicial Separation means suspension of Conjugal Rights for some time i.e., one year.
Section 10 of the Hindu Marriage Act deals with judicial separation. This section lays down:
Section 10(1) – ‘Either party to a marriage, whether solemnized before or after the

4
AIR 1983 AP 356
5
AIR 1984 Delhi 66
6
1984 AIR 1562
7
R K Agarwal, Hindu Law, Eastern Book Company
commencement of this Act, may present a petition praying for a decree of Judicial Separation
on any of the ground specified in sub-section (1) of Section 13,and in the case of a wife also
on any of the grounds specified in sub-section(2) thereof, as grounds on which a petition for
divorce might have been presented.

Section 10(2)- ‘Where a decree for judicial separation has been passed, it shall no longer be
obligatory for the petitioner to cohabit with the respondent, but the court may on the
application by petition of either party and on being satisfied of the truth of the statements
made in such petition rescind the decree if it considers it just and reasonable to do so.8

During the period of Judicial Separation, the parties to the marriage have no obligation to live
together or cohabit with each other. During the course of judicial separation either party may
be entitled to get maintenance from the other if the situation so warrants. But, during this
period the husband or the wife would not acquire the competence to marry fresh. The right of
fresh marriage would be available to them only after the dissolution of marriage. Section 10
provides that either party to marriage may present a petition praying for a decree of judicial
separation on any of the grounds specified in sub-section (1) of Section 13 and in case of wife
also on any of the grounds specified in sub- section(2) thereof, as grounds on which a
petition for divorce might have been presented.

Under the Marriage Laws (Amendment Act), 1976, the section has been completely
overhauled. The grounds of Judicial Separation are virtually the same which have been
provided to be grounds of divorce under Section 13(1) and (2) of the Act.

Before 1976, the grounds available for Judicial Separation were:

i) Desertion
ii) Cruelty
iii) Leprosy
iv) Venereal Disease
v) Insanity or Unsoundness of Mind
vi) Adultery.

8
Section 10 of the Hindu Marriage Act, 1955.
After the Amendment Act of 1976, the ground available for Divorce and Judicial Separation
are common as detailed below:

Grounds available for both Husband and Wife:

i) Adultery

ii) Cruelty

iii) Desertion

iv) Conversion

v) Unsoundness of mind

vi) Leprosy

vii) Venereal Disease

viii) Renunciation of World

ix) Presumed Death (Unheard for seven years)

Consequences of judicial separation:

i) That the marriage tie is not dissolved.

ii) That after the passing of the decree of judicial separation, the husband and
the wife are not bound to live together or dine together as judicial
separation is separation from bed and board.
iii) After the decree of judicial separation it will not be obligatory for the
parties to cohabit with each other.
iv) It does not prevent the parties from subsequently resuming cohabitation
and living together as husband and wife as originally they did. It is not
necessarily for them to undergo the ceremony of marriage again because
their original marriage still subsists in spite of the decree of judicial
separation.
v) A fortiori if either spouse marries during that period, he or she will be
guilty of Bigamy and will be liable for punishment prescribed by Section
17 of this Act.
 vi) The Petitioner, if she be the wife, becomes entitled to alimony from the
Husband, and if he is the husband he can claim maintenance from wife
under Section 25 of this Act.
vii) The wife shall, from the date of the decree and till separation continues, be
considered as a femme sole, i.e., ‘independent woman’ with respect to
property of every description.
viii) The mutual rights and obligations arising from the marriage are suspended
and the rights and duties prescribed by the decree are substituted therefore.

Nullity and Annulment of Marriage (Sec.11 & 12)

Void Marriage

A void marriage is no marriage at all. It does not exist from the very beginning. Section 11 of
the Hindu Marriage Act, 1955 deals with Void Marriage.
It reads as follows – ‘Any marriage solemnized at the commencement of this Act shall be null
and void and may, on a petition presented by either party thereto against the other party be so
declared by a decree of nullity if it contravenes any one of the conditions specified in Clauses
(i),(iv) an (v) of Section 5.9

Thus a marriage will be void-ab-initio:

i) If any party to marriage has a spouse living at the time of the marriage
[Section 5(1)].
ii) If the parties are within the prohibited degree of relationship unless the custom
or usage governing each of them permits such a marriage.[Section 5(iv)].
iii) If the parties are ‘sapindas’ of each other, unless the custom or usage
governing each of them permits such a marriage [Section 5(v)].

Effects or Legal Consequences of Void Marriage

Legitimacy of Children:

Under the general law, the children of a marriage which is void ab initio are illegitimate and
are not entitled to any of the rights conferred by the law on a legitimate child. However,
Section 16 of the Act clearly lays down that the children conceived of such a void marriage
are to be deemed to be legitimate, even if a decree of nullity has been passed declaring the
marriage to be null and void.10

Voidable Marriage

A ‘voidable marriage’ is “one which can be avoided the option of one of the parties to the
marriage. It remains valid for all practical purposes until and unless its validity is questioned.
Section 12 of the Hindu Marriage Act, 1955 deals with ‘Voidable Marraige’.

9
Section 11 of the Hindu Marriage Act, 1955.

10
Section 16 of the Hindu Marriage Act, 1955.
It runs as follows :- (1) Any marriage solemnized, whether before or after the commencement
of this Act, shall be voidable and may be annulled by a decree of nullity on any of the
following grounds, namely: 11

a) That the marriage has not been consummated owing to the Impotency of the
respondent; or

b) That the marriage is in contravention of Section 5(ii) of Hindu Marriage Act,

1955(i.e., if either of the party suffers from Unsoundness of Mind).

c) That the consent of the petitioner or where the consent of the Guardian in the
marriage of the petitioner was required [under Section 5, as it stood immediately
before the commencement of the Child Marriage Restraint(Amendment)Act,1978],the
consent of such Guardian was obtained by force or by fraud as to the nature of
ceremony or as to any material fact or circumstances concerning the respondent; or

d) That the Respondent was, at the time of the marriage, pregnant by some other
person other than the petitioner.

2) Notwithstanding anything contained in sub-section (1), no petition for annulment of

marriage:

a) On the ground specified in clause(c) of sub-section (1), shall be entertained if:

i) The petition is presented more than one year after the force had ceased to operate or
as the case may be the fraud had been discovered, or

ii) The petitioner has, with his or her full consent, lived with the other party to the
marriage as husband or wife after the force ceased to operate or, as the case may be, the
fraud had been discovered;

b) On the ground specified in clause (d) of sub-section (1) shall be entertained unless
the court is satisfied:

i) That the petitioner was at the time of the marriage ignorant of the facts alleged;

11
Section 12 of the Hindu Marriage Act, 1955.
 ii) That proceedings have been instituted in the case of a marriage solemnized before
the commencement of this Act within one year of such commencement and in the case
of marriages solemnized after such commencement within one year from the date of the
marriage; and

iii) That marital intercourse with the consent of the petitioner has not taken place since
the discovery by the petitioner of the existence of the said ground.

Divorce
Divorce is a process by which the marriage is dissolved (i.e., comes to an end). After
dissolution of the marriage (Divorce), the parties revert to their unmarried status and are free
to marry again.

Section 13 of the Hindu Marriage Act, 1955 deals with Divorce.

The petition for divorce can be filed by either of the parties to the marriage under any one of
the following grounds: 12

12
Section 13 of the Hindu Marriage Act, 1955.
Section 13(i) Adultery

Adultery may be defined as “Consensual sexual intercourse between a married person with
another (of opposite sex) other than his/her spouse during the subsistence of the marriage.”

After the Amendment Act of 1976, single act of adultery is sufficient.

Section 13(ia) Cruelty

It is very difficult to define the expression ‘Cruelty’. In Russel v/s. Russel (1897)13 – It is
defined as “Conduct of such a character as to have caused danger to life, limb or health,
bodily or mental, or as to give rise to reasonable apprehension of such danger.” The concept
of cruelty varies from time to time and from society to society depending upon socio
economic conditions.

In Shobha Rani v/s. Madhukar Reddi [AIR 1988 SC] 14, 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.

Section 13(ib) Desertion

Before the amendment of 1976, desertion was a ground for judicial separation only. Now, it
is ground for both the judicial separation and divorce. Desertion means “leaving/abandoning
the spouse by the other spouse without reasonable cause”. The spouse who deserts is called
‘deserting spouse’ and the other, who is deserted is called ‘deserted spouse’. Desertion is “a
withdrawal not from a place, but from a state of things”.

To constitute desertion, the following conditions must be satisfied:15

i) Factum of Separation (intention to live separately)

ii) Intention to bring cohabitation to an end permanently.

iii) Without reasonable cause.

13
A.C. 395, 455
14
1988 AIR 121
15
Paras Diwan, Hindu Law
 iv) Without consent or wish of the deserted spouse.

The burden of proof in case of desertion is always on the petitioner. He or she must show that
it was without any reasonable excuse and that it existed throughout the period at least two
years.

Bipin Chandra v/s. Prabhavati,16 In this case, the parties got married in 1942. The wife was
living at her matrimonial home with the Husband and his parents and two unmarried sisters.
After sometime, a son was born to them. In 1947, the Husband went abroad (England) and
wife developed an illicit relationship with a family friend. The Husband, after returning from
England discovered the illicit relationship and questioned wife but wife denied but could not
give any explanation in this respect and in May, 1947 she left for her parental home to attend
her cousin’s wedding which was to take place in June. On July,1947,the Husband sent the
legal notice to the wife through his solicitor in which after mentioning the fact that she had
left her against his wishes and further stated that he did not desire to keep her back any longer
under his care and protection and demanded her to send the minor son to him. On July, 1951,
the Husband instituted the suit for Divorce on the ground of desertion of wife ever since
1947, without reasonable cause and against his will for a period of four years.

The wife further stated that it was the Husband who was wiling to desert her and therefore
seeking for divorce. There was evidence which proved that after solicitor’s notice the wife
and her father and other relatives tried to bring reconciliation between the parties but they
failed owing to the attitude of the Husband. The Supreme Court after analyzing the fact and
contentions dismissed the petition of Divorce filed by the Husband.17

In Geeta Jagdish Mangtani v/s. Jagdish Mangtani,18 The case arose based upon a petition by
the Husband on the ground of desertion by the wife. Wife deserted the Husband on the
ground that he was not having enough income. She left matrimonial home of Mumbai and
continued to stay with her parents in Gujarat. No attempt was made by her to stay with her
Husband, clearly signifying (animus deserendi). According to Husband parties knew the
income of one another prior to the marriage but the wife chose to adopt the course of conduct

16
1957 AIR 176
17
Legalservice.com
18
AIR 2005 SC 3508
which proved desertion on her part without reasonable cause. This amounted to the
humiliation of Husband and therefore the Divorce was granted to the Husband. 19

Section 13(ii) Conversion

Conversion means “Change of religion”. It is a process by which a person gets converted

from one religion to another. Eg.: If a Hindu took Christianity, he/she ceased to be a Hindu. It
is a good ground for the spouse to take divorce. Under Section 13(ii) of the Hindu Marriage
Act, 1955 if the respondent has ceased to be Hindu by conversion to another religion, divorce
may be obtained.

Under the clause two conditions must be satisfied:

i) Respondent has ceased to be a Hindu, and

ii) He has converted to another religion. (LILY THOMAS v/s. U.O.I.20

Section 13(iii) Insanity (Unsoundness of mind)

Before 1976 Amendment, the respondent must have been incurably of unsound mind for a
period of 2 years for Judicial separation, and 3 years for divorce preceding the date of the
petition. The 1976 Amendment changed the position. Now, the respondent has been
incurably of unsound mind or has been suffering from mental disorder that the petitioner
cannot reasonably be expected to live with the respondent. Eg.: Epilepsy.

21
In Ram Narayan v/s. Rameshwari – The S.C. held 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.

Section 13(iv) 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 clause, the petitioner is
required to show that the Respondent has been suffering from virulent and incurable leprosy.
Thus, two conditions are necessary. It must be – a) Virulent, and b) Incurable.

19
Indiankanoon.com
20
2000 (1) ALT Cri 363
21
1988 AIR 2260
A mild type of Leprosy which is capable of treatment is neither a ground of Judicial
Separation nor for Divorce.

Swarajya Laxmi v/s. Padma Rao,22 The Husband, a medical practitioner discovered that his
wife was suffering from leprosy. The Husband was granted the decree of divorce.

Section 13(v) Venereal Disease (STD)

Earlier (i.e., before the Amendment of 1976), to get the decree of divorce on the ground of
Venereal Disease, the respondent had been suffering from it for a period of not less than 3
years. Now it is sufficient if the respondent is suffering from the disease at the time of filing
of the petition. If it is attacked to the respondent from the petitioner, the petitioner is not
entitled to the relief. The present section requires that the disease must be in communicable
form. The Venereal Disease are only such diseases which are communicable by sexual
intercourse.

Section 13 (vi) Renunciation of world

The Petitioner can seek divorce, if the respondent has renounced the world by entering any
religious order. The renunciation requires relinquishment of all property and worldly affairs.
Hindu recognizes Sanyasa Ashrama as the last of the four ashrams into which the life of
Hindu is organised. On of the ceremonies that is performed before one enters into this
ashrama is one’s own funeral rites.

Section (vii) Presumed Death (Unheard for seven years)

If the whereabouts of one spouse are unknown for a period of seven years, the other spouse
can presume his/her death and can institute a petition for dissolution of the marriage. Under
Section 108, Evidence Act a person is presumed to be dead if he is not heard of as alive for
seven years or more by those who would have normally heard from him or about him had he
been alive. The burden of proving that such a person is not dead but alive lies on him who
affirms it.

Section 13(1A) (i) Non-Resumption of marriage after decree of Judicial Separation

22
1974 AIR 165
If the disputing spouses do not reconcile/resume matrimonial life within one year from the
date of the decree under Section 10 (Judicial Separation), either of the spouses can file a
petition for divorce under Section 13. (Before the 1976 Amendment the period was two
years).

Gajna Devi v/s. Purushottam Giri23, Where the wife has obtained the decree of Judicial
Separation on cruelty ground and the Husband makes a petition for Divorce after two years of
the separation on the ground that there was no resumption of cohabitation. The Court passed
the decree of Divorce.

Section 13 (1A) (ii) Non-Resumption of marriage after decree of Restitution of Conjugal

Rights

If the parties do not rejoin/resume matrimonial home within one year or upwards after
obtaining the decree for Restitution of Conjugal Rights, either of the parties can resort to file
a petition for divorce under Section 13. (Before the 1976 Amendment, only the petitioner,
who got the decree under Section 9 could file a petition, not the respondent.

GROUNDS AVAILABLE TO WIFE ALONE

Section 13 (2) (i) Bigamy

Section 13(2)(i) of the Hindu Marriage Act, 1955 provides that in the case of the marriage of
the wife solemnized before the commencement of the Act, (i.e., before 18th May, 1955) the
wife can apply for divorce on the ground that the Husband had married again before such
commencement of the Act. If the Husband whose wife is alive gets married again, it amounts
to bigamy and is guilty of an offence under Section 494 of IPC.

23
AIR 1977 Delhi 178
To file a petition on the ground of bigamy, the first and the second wife must be alive at the
time of filing the petition under Section 13 by the first wife. The second wife cannot file a
petition under Section 13, since her marriage itself was void.

In Gita Bai v/s. Fattoo24 :- In a petition under section 13(2)(i) by wife on the ground of a
second marriage by Husband which was solemnized after the commencement of the Act of
1955, the Husband admitted the facts of second marriage and was living with her. It was held
that second marriage by the Husband was void-ab- initio under Section 11 read with Section
5(1) of the Act. Therefore, the Petitioner is entitled to a decree of Divorce.

Section 13(2) (ii) Sexual Offences i.e., Rape, Sodomy, Bestiality

A wife can file a petition under Section 13 if her Husband is guilty of certain sexual offences
viz., Rape, Sodomy, Bestiality etc. Section 13(2) (ii) of the Hindu Marriage Act, 1955
enables the wife to obtain a decree of Divorce where the Husband has since the solemnization
of marriage been guilty of Rape, Sodomy or Bestiality.

Section 13(2) (iii) Non-Resumption of Marriage after decree of maintenance

Under Section 13(2) (iii) of the Hindu Marriage Act, 1955, where a decree or order has been
passed against the Husband awarding maintenance to the wife notwithstanding that (i) she
was living apart and that (ii) since the passing of such decree or order, cohabitation between
the parties Has not been resumed for one year or upward, a wife on this ground may present a
petition for the dissolution of marriage by a decree of Divorce. The wife, who has been
granted the decree for maintenance under Section 18 of Hindu Adoption and Maintenance
Act, 1956 or under Section 125 of Cr.P.C or under Section 24 & 25 of the Hindu Marriage
Act, 1955, can file a petition under Section 13 for Divorce if the cohabitation between the
parties has not taken place even after the lapse of one year.

Section 13(2) (iv) Repudiation of Marriage / Option of Puberty

This provision was enshrined in the Act under the 1976 Amendment. Where a marriage was
solemnized before or after the Act, if the woman was below the age of 15years (whether the
marriage was consummated or not). It is just and reasonable if she seeks this benefit even
after attaining 18 years, if the marriage is not consummated.
24
AIR 1966 MP 130
Divorce by Mutual Consent
Section 13-B of the Act deals with ‘Divorce by Mutual Consent’.

This Section was inserted under the Amendment Act, 1976. It means “both the parties agree
to dissolve their marriage by divorce”.

The following conditions are to be satisfied for the divorce by mutual consent:25

i) Both the spouses should file the petition for divorce jointly;
ii) The spouses have been living separately for more than one year preceding the date
of filing the petition;
iii) They have not been able to live together; and
iv) They mutually agree to dissolve the marriage.

BIBLIOGRAPHY

BOOKS

1. Modern Hindu Law by Dr. Paras Diwan

2. Hindu law by R. K. Agarwal

STATUE

1. The Hindu Marriage Act, 1956

25
R K Agarwal, Hindu Law, Eastern Book Company
ONLINE SOURCES

1. Legallyindia.com
2. www.legalservice.com
3. Indiankanoon.com