Under the Act also, divorce is neither favoured

Under the Act also, divorce is neither favoured nor encouraged; it is permitted only on certain, serious, specified grounds.

Twelve Grounds available to both husband and wife:

(1) Adultery

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(2) Cruelty

(3) Desertion, – for a continuous period of two years or more before the Petition is filed

(4) Conversion

(5) Insanity

(6) Leprosy, – provided it is virulent and incurable

(7) Venereal disease in a communicable form

(8) Renouncing the world

(9) Not heard of, for seven years or more

(10) Judicial separation decreed,- and no cohabitation for one year after the decree.

(11) Restitution of conjugal rights decreed,- and no cohabitation for one year after the decree.

(12) Divorce by mutual consent

The following twelve grounds of divorce available to either spouse, i.e., husband or wife:

(1) ADULTERY, namely, that the other party has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than his or her spouse.

Formerly, to obtain a divorce on the ground of adultery, the Petitioner had to prove that the other party was living in adultery, which expression would cover a more or less continuous and habitual course of action, and not isolated acts; of immorality. However, after the 1976 Amendment, in view of the above language, even one single and isolated act of infidelity would be a sufficient ground for obtaining divorce.

Adultery has been one of the principal grounds for relief in the matrimonial law of all legal systems. The term adultery has been defined as consensual sexual intercourse between a married person and another of the opposite sex during the subsistence of the marriage.

An attempt to commit adultery does not, however, amount to adultery, and cannot, therefore, be the basis of a petition for judicial separation.

Direct evidence of adultery is not necessary, and the nature of the act is such that it would not even be reasonable to expect any direct evidence. The Courts have, therefore, observed that circumstantial evidence is all that can be expected in such cases. The time and place of adultery, therefore, need not be proved. (Barker v. Barker, A.I.R. 1955 Mad. 103)

Thus, the proof which is required to prove adultery is not proof “beyond a shadow of doubt”. As stated in one English case, such proof “need not reach certainty, but must carry a high degree of probability”. (Miller v. Minister of Pensions (1947) 2 All E.R. 372)

Evidence of sheer opportunity is, however, not enough. There must be something more than opportunity, as for instance, evidence of inclination or passion. In several cases, where the evidence consisted of entries in hotel registers and of the respondent being seen in a room with a woman, the Courts have insisted on further evidence of a background of adulterous association. Thus, apart from evidence of opportunity, some evidence of disposition on the respondent’s part is also required to be adduced.

A charge of adultery may be based on non-access and a long period of gestation ‘of a child born to the wife. In Jones v. Jones (1951 1 All E.R. 124), the only evidence of adultery was that a normal child was born 360 days after the husband had the last intercourse with his wife. The Court granted a decree in favour of the husband, and observed that it would be a fantastic suggestion that a normal child born 360 days after the last intercourse was a child of the husband.

Confessions or admission of adultery are admissible in connection with other relevant evidence on a charge of adultery. However, such confessions, though admissible, are looked upon with some measure of distrust, and are normally not taken at face value by the Court.

(2) CRUELTY, namely, that the other party has, after the solemnization of the marriage, treated the petitioner with cruelty.

The legal concept of cruelty cannot be defined with any degree of precision. It would indeed be unsafe to attempt any comprehensive definition which would cover all cases of “cruelty”. As observed by Lord Denning. “The categories of cruelty are not closed”. (Sheldon v. Sheldon (1966) 2 All E.R. 257).

Thus, cruelty may be brutal or subtle. It may be physical or mental. It may be by words or by gestures or even by mere silence. Cruelty refers to “conduct of such a character as to have caused danger to life, limb or health (bodily or mental) or as to give rise to a reasonable apprehension of such danger.” (Russel v. Russel, 1897 A.C., 395)

It is to be noted that two distinct elements are present in the legal concept of cruelty. Firstly, the ill-treatment complained of, and secondly, the resultant danger or apprehension of such danger. This apprehension is that further cohabitation will be harmful or injurious to the aggrieved party.

Whether an act, or a series of acts, can fall within the legal concept of cruelty is a question which can be answered only with reference to the facts and circumstances of each individual case. The culture of the spouses, their age, temperament, standard of living and other relevant circumstances would have to be taken into account.

At one time, it was thought the actual physical harm (or a reasonable apprehension thereof) was the prime ingredient of cruelty. However, it is now well-established that this expression is comprehensive enough to cover cases of mental cruelty also. Indeed, in a given case, mental cruelty may be more serious, and may cause more grievous injury, than physical cruelty.

Whilst on the point of mental cruelty, a case decided by the Allahabad High Court, deserves special mention. The unique question before the Court in that case was : If a wife refuses to prepare tea for the husband and his friends, would this amount to mental cruelty? Answering the question in the affirmative, the Court observed that such an act on the wife’s part certainly hurts the husband’s ego, and causes him humiliation before his friends. This act, along with other acts on the wife’s part (viz., lodging false police complaints against her husband and terminating her pregnancy without the husband’s consent) were held to constitute a grave form of anguish and gross mental cruelty. (Kalpana Srivastava v. Surendra Nath, A.I.R. 1985 All. 253)

As observed by the Supreme Court, mental cruelty can be defined as “that conduct which inflicts upon the other party such mental pain and suffering as would make it impossible for that party to live with the other.” (Bhagat v. Bhagat, A.I.R. 1994 S.C. 710)

In Bhagat v. Bhagat (above), it was held that if the wife calls her husband (who, incidentally, was an Advocate) a lunatic, and further alleges that a streak of insanity ran through his entire family; such conduct would amount to mental cruelty.

The Rajasthan High Court has held that a wife’s allegation that her husband is impotent, although only by way of an abuse, is a serious stigma on the husband’s manhood, and is bound to cause great mental agony and pain to the husband. This would, therefore, amount to act to cruelty. (Shanti Devi v. Raghav Prakash, A.I.R. 1986 Raj. 13)

In Shanti Devi’s case (above), the wife had also burnt the thesis of her husband, who was a Lecturer, and this too was held to be an act of gross cruelty on the wife’s part.

In one case, a wife of an Army Officer sent a letter to his superior, falsely complaining about his affair with a woman for more than three years, and asking for his transfer to a field area, and that too, on a high altitude. Copies of the letter were also sent to the President, Prime Minister, etc. The Court held since the charge of adultery was proved to be baseless, such conduct was mental torture and humiliation of an extreme kind, and amounted to cruelty. (Jalan v. Jalan, A.I.R. 1988 All. 239)

It may also be noted that an actual intention of one spouse to injure the other is not an ingredient of this matrimonial offence. As rightly observed in one English case, “It is not necessary, in determining this point, to inquire from what motive such treatment proceeds. It may be from turbulent passion, or sometimes from causes which are not inconsistent with affection, and are indeed often consistent with it, as for instance, the passion of jealousy.

If bitter waters are flowing, it is not necessary to consider from what source they spring.” (Holden v. Holden, (1810) 1 Hag. Con. 453) The Supreme Court has also held that cruelty also includes unintentional cruelty, as for instance, where there are repeated demands for dowry by the husband or his relatives. (Shobha Rani v. Madhukar Reddi, A.I.R. 1988 S.C. 121)

The Courts have held that drunkenness, by itself, is not cruelty. But, persistent drunkenness, despite several warnings to the effect that such conduct is injuring the health of the other spouse, May, in a given case, amount to cruelty.

Thus, the Delhi High Court has held that although excessive drinking is not a ground for divorce under the Hindu Marriage Act, yet, if it is indulged in by a spouse despite strong remonstrance’s by the other, to whom it could cause great anguish and distress, it could amount to “cruelty” for the purpose of a divorce under the Act. (Rita v. Brij Kishore Gandhi, A.I.R. 1984 Delhi 291)

Similarly, although accusing the other spouse of infidelity would not, per se, amount to cruelty, malicious charges of adultery, persistently made in bad faith, may so amount in a given case.

The Rajasthan High Court has held that false allegations by a wife that her husband was leading an immoral life and that her father-in-law behaved indecently with her would amount to cruelty. (Lee I a Devi v. Suresh Kumar, A.I.R. 1994 Raj. 128)

Mere proof that the parties to the marriage are unhappy because of the unruly temper of one of the spouses would fall short of proof of cruelty. Nor is it enough to show that the other spouse is moody or whimsical or inconsiderate. Such defects of temperament, like defects of health, are to be accepted, for better or for worse.

Likewise, a solitary instance of emotional outburst or violent behaviour is not cruelty. (Gangadharan v. Thankam, A.I.R. 1988 Ker. 244)

In one case, where a husband publicly called his wife a ‘prostitute’ and tried to wipe her vermilion mark (on the forehead at the parting of her hair) by dashing her against a wall, it was held that it amounted to cruelty. (Saptami Sarkar v. Jagdish, 73 C.W.N. 502)

The Gujarat High Court has held that a wild and reckless allega­tion made by a husband that his wife was unchaste, would amount to mental cruelty under the Act. (A v. B, A.I.R. 1985 Guj. 121)

However, in another case (Kamlesh v. Paras Ram, A.I.R. 1985, Pun. & Har. 199), the High Court of Punjab and Haryana has held that making a false allegation of adultery is only an instance of “legal cruelty”. However, unless it is also proved that such allegations were of such a grave character so as to cause danger to life, limb or health (or at least, a reasonable apprehension of such danger), the relief of divorce on the ground of cruelty cannot be granted.

In another case, the wife was informed, when she was in Delhi that her husband had met with a serious accident in Assam. However, she did not bother to go and see him in Assam. Even when the husband was brought to Delhi, she did not go to see her ailing husband. On these facts, the Delhi High Court held that the wife was guilty of cruelty. (Rajinder Singh Joon v. Tara Wati, A.I.R. 1980 Del. 213)

The High Court of Jammu and Kashmir was faced with a peculiar question. A husband filed a petition alleging that the wife suffered from a disease as a result of which foul smell emitted from her nose, and that this amounted to cruelty on the part of the wife. It was held that this, by itself, would not amount to cruelty. (Jinlal Abrol v. Sarla Devi, A.I.R. 1978 J & K 69)

The Gujarat High Court has held that if a husband insists on having perverted sexual relations with his wife, such as cunnilingus and fellatio, this would amount to physical cruelty, and entitle the wife to obtain a divorce on this ground. (A. v. B. A.I.R. 1985 Guj. 121)

Likewise, persistent refusal to have marital intercourse also amounts to cruelty. (Jytish v. Meera A.I.R. 1970 Cal. 266)

The Supreme Court has observed that the concept of cruelty is fast changing. A set of facts which amount to cruelty in one case may not be regarded as cruelty in another case. The concept of cruelty is to be viewed against the background of the way of life of the parties, their economic and social condition, their culture, sense of values, etc. Therefore, precedents cannot always be relied upon. (Shobha Rani v. M. Reddi, A.I.R. 1988, S.C. 121)

(3) DESERTION, namely, that the other party has deserted the petitioner for a period of not less than two years immediately preceding the presentation of the petition.

It may be noted that the concept of desertion (from the point of view of matrimonial law) is not easy to define. It has rightly been said that no judge has ever attempted to give a comprehensive definition of desertion, and no judge would probably ever succeed in doing so. It is, however, a well-established principle of English matrimonial law that desertion is “a withdrawal, not from a place, but from a state of things.” (Pulford v. Pulford, 1923 P. 18)

It has also been clarified that the term desertion means 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.

The leading Indian case on desertion is Bipin Chander v. Prabhawati (1956 S.C.R. 838), where the Supreme Court discussed the term, quoting extensively from Halsbury’s Laws of England. The principles laid down in this case have also been followed by later decisions of the Supreme Court and other Courts.

In Halsbury’s Laws of England, the position is well-summarised in the following words:

“In its essence, desertion means the intentional forsaking and abandonment of one spouse by the other without that other’s consent and without reasonable cause. It is a total repudiation of the obligations of marriage. There can be desertion even without previous cohabitation by the parties or without the marriage having been consummated”.

It is now well-established that proof of the factum of separation, which is one of the essential ingredients of the matrimonial offence of desertion, does not consist merely in ascertaining which spouse left the home first. It is now well-accepted by the Courts, both in India and in England, that a spouse may be guilty of such misconduct as would render the continuance of marital relations so unbearable, that the other spouse is compelled to leave the matrimonial home. In such a case, it is the former, and not the latter spouse, who is guilty of desertion. This is sometimes also referred to as constructive desertion.

Thus, it has been held that if a husband creates circumstances which compel the wife to leave the house, it is the husband, and not the wife, who is guilty of desertion. (Asha Handa v. Baldev Handa, A.I.R. 1985 Del. 76)

It is now well-established that two factors must co-exist to establish desertion. Firstly, there must be the factum, i.e., the actual separation, and secondly, this must be accompanied by the animus deserendi, i.e., the intention to desert. Both these ingredients must continue throughout the statutory period (i.e. two years or more).

The Supreme Court has held that there is no obligation on the deserted spouse to appeal to the other spouse to change his (or her) mind. Omission to make efforts for reconciliation does not debar a deserted spouse from claiming matrimonial relief. (Lachman v. Meena, A.I.R. 1964 S.C. 40)

In one case, it was shown to the Court that the husband and wife were living separately from February, 1979. Although the husband was informed of their child’s death (in September, 1979), he did not bother to attend the funeral. Likewise, he also neglected to pay the maintenance ordered by the Court. In the circumstances, the Court granted a divorce to the wife, on the ground of her husband’s desertion. (Om Wati v. Kishan Chand A.I.R. 1985 Del. 43)

It will be seen that one of the essential ingredients of desertion is the separation of one spouse from another. Thus, as a general rule, there can be no desertion when the parties are living together. However, it has been held, in an English case, that in exceptional cases, there may be desertion even if the husband and wife are living in the same dwelling place, if there is such a forsaking and abandonment by one spouse of the other that the Court comes to the conclusion that the spouses have separate households, (Baker v. Baker (1952) 2 All. E.R. 248)

Lastly, it may be noted that desertion differs from other matrimonial offences (like adultery or cruelty) in that it does not consist of an act or a series of acts which are separate and distinct in themselves. Rather, it is an activity or course of conduct which must persist for the statutory period upto the presentation of the petition. If the period is broken, the broken periods cannot be added together to make a period of two years.

(4) Conversion, namely, that the other party has ceased to be a Hindu by conversion to another religion.

Under the ancient, uncodified Hindu Law, there was no rule forbidding the subsistence of a marriage where one of the parties had ceased to be a Hindu. The Act now gives a right to the spouse who continues to be Hindu to obtain a divorce on the ground that the other spouse has ceased to be a Hindu by conversion to some other religion.

The term Hindu, as used in this clause, must be understood in the wide sense given to it in S. 2 of the Act, and would therefore include all Hindus, Buddhists, Jains and Sikhs. Thus, a person will continue to be a Hindu even if he opts for conversion from, say, the Sikh to the Buddhist or Jain faith.

Further, a person does not cease to be a Hindu merely because he is an ardent admirer of some other religion or if he professes a theoretical allegiance to such other religion. If, however, he has abdicated the Hindu faith by a clear act of renunciation, and formally converts himself to the other religion, he would cease to be a Hindu under this clause.

(5) INSANITY, namely, that the other party 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 the Respondent.

As observed earlier under S. 5, one of the essential conditions of a valid Hindu marriage is that neither party should be an idiot or a lunatic at the time of the marriage. This section deals with supervening unsoundness of mind and makes it a ground for divorce.

The onus of proving unsoundness of mind will be on the Petitioner, i.e., the spouse seeking divorce on this ground.

Further, the terms “mental disorder” and “psychopathic disorder” have also been defined as follows:

(i) The expression “mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind, and includes schizophrenia.

(ii) The expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not including sub- normality of intelligence), which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment.

Dealing with this ground of divorce, the Supreme Court has cautioned that mere branding of a spouse as schizophrenic is not sufficient. The degree of mental disorder of the spouse must be proved
to be such that the other spouse cannot reasonably be expected to live with him or her. (Gupta v Gupta, A.I.R. 1988 S.C. 2260)

In England, the Matrimonial Causes Act, 1950, recognises incurable unsoundness of mind as a ground for divorce, and requires that the Respondent should have been taking care and treatment continuously for at least five years before the divorce Petition.

(6) LEPROSY, namely, that the other party has been suffering from a virulent and incurable form of leprosy.

Leprosy was “the dreaded disease” once upon a time. However, modern medicine has taken great strides in the direction of its treatment, and with the new drugs that are now available, a scientific approach is warranted when answering the question whether in any given case, leprosy is virulent or not.

Before the 1976 Amendment, it was necessary that such leprosy should have existed for at least three years before the presentation of the petition. This minimum requirement of three years is no longer necessary.

(7) VENEREAL DISEASE, namely, that the other party has been suffering from venerea! disease in a communicable form.

Before the 1976 Amendment, it was necessary that such venereal disease should have existed for at least three years before the presentation of the petition. This minimum requirement is no longer necessary.

(8) RENOUNCING THE WORLD, namely that the other party has renounced the world, by entering any religious order.

Under the ancient Hindu Law, if a person entered a religious order, renouncing all worldly affairs, his action would tantamount to civil death. Under the Act, his action would afford a ground of divorce to the other spouse.

Two essential conditions have to be satisfied before a Court can grant divorce under this clause, viz:-

(1) Such person must have renounced the world.

(2) Such person should have entered some religious order.

Both these requirements must co-exist, and the presence of one of them will not suffice.

It is to be remembered that a person cannot be said to have adopted a religious order merely by declaring himself to belong to such order. Thus, for example, if a person calls himself a sanyasi, puts on clothes of a particular colour, and shaves his head; he does not thereby become a sanyasi. He will be deemed to have entered that order only if he has also performed the necessary rites and ceremonies prescribed for this purpose by the shastras.

(9) NOT HEARD OF, namely, that the other party has not been heard of as being alive, for a period of at least seven years, by persons who would naturally have heard of him had he been alive.

It is a well-established legal presumption that a person can be taken to be dead, if he is not heard of for a period of seven years or more, by those persons (like his near relatives and friends) who would have naturally heard of him had he been alive. This is a presumption of legal convenience, and has been adopted by the Indian Evidence Act also.

Under this clause, the fact that for a long period of seven years (or more), the Respondent has been absent from the Petitioner, and the Petitioner (and other close relatives) have not heard of him at all, should normally be sufficient evidence that such a person is dead, and a divorce ought to be granted to the Petitioner.

It is to be noted that a decree of divorce granted under this clause is valid and effective, even if it is subsequently discovered that the Respondent was in fact alive when the decree was passed.

(10) DECREE OF JUDICIAL SEPARA TION, namely, that a decree for judicial separation between the parties has been passed, and there has been no resumption of cohabitation for a period of at least one year after the passing of such decree.

As pointed out earlier, the scheme of the Act is not to encourage divorce or to enforce conditions which may cause hardship to the parties. Therefore, a period of one year has been fixed, and this would give maximum opportunities of mutual adjustment after a decree of judicial separation. If cohabitation is not resumed during this period, the marriage ought to be regarded as having been a complete failure, and a decree for divorce can be granted to either party to such a marriage.

It is to be noted that this clause does not confer any absolute or unrestricted right on a spouse to obtain a divorce. Under S. 23, the Court would still have to be satisfied that there is no bar of any kind (mentioned in S. 23) to the granting of such relief. Thus, for example, if the Court is satisfied that the Petitioner is taking advantage of his own wrong, the Court will decline to grant a divorce, even if the case falls under this clause.

Under this clause, either party to the marriage, and not necessarily the one who had obtained the judicial separation, can present a divorce petition.

(11) DECREE OF RESTITUTION OF CONJUGAL RIGHTS, namely, that a decree for restitution of conjugal rights between the parties has been passed, but there has been no restitution of conjugal rights for a period of at least one year after the passing of such a decree.

Under this clause also, either spouse can present a divorce petition. In other words, this right is not given only to spouse who had obtained the decree for restitution of conjugal rights.

(12) DIVORCE BY MUTUAL CONSENT (S. 13B) – which is discussed at length later.