Who are Hindus?

A person can be called as a Hindu, who:

 Is a Hindu by religion in any form.

 Is a Buddhist, Jaina or Sikh by religion.
 Is born from Hindu parents.
 Is not a Muslim, Parsi, Christian or Jews and are not governed under
Hindu law.
 Lodge in India.

What are Sources of Hindu law?

There is the two-fold classification of the sources of the Hindu law

 Ancient sources
 Modern sources

Ancient source
Ancient sources are the source that developed the concept of Hindu law in
ancient times. It is further classified into four categories

 Shruti
 Smriti
 Customs
 Digest and commentaries

Shruti
The term Shruti means what has been heard. It contains the sacred words of
the god. This source is considered to be the most important and essential
source of all. Shruti’s are the sacred pure utterance that has been enshrined in
the Vedas and the Upanishads. They have religious nexus with a person and
help him in a way to attain the knowledge of salvation and incarnation. It is
considered to be the primitive source containing the knowledge of the law.

Smritis
Smritis are considered as text which has been remembered and then
interpreted by the rishis throughout the generation. There is a further
classification of the term Smrities which are as follows

 Dharma Sutra (Prose)

 Dharmashastras (Poetry).

Commentaries and digest

The third ancient source of Hindu law is commentaries and digestives.
Commentaries and digestives have expanded the scope of Hindu law. It played
a very major role in developing the very concept of Hindu law. It helped in the
interpretation of the smritis. Single interpretation of the smritis is called as a
commentary while different interpretations of the smritis are known as
digestive. Dayabhaga and Mitakshara are considered to be the two most
important commentaries.

Customs
Customs is the tradition that has been practiced in society since ancient times.
It is the type of practice that is under the continuous observation of the people
and has been followed by the people.

Further, the customs have been classified into two categories-

 Legal customs
 Conventional customs

Legal customs
Legal custom is those customs which are enforceable or sanctioned by law. It
can’t be deemed invalid until the law itself declares it invalid. There are two
types of legal customs.

1.
 1. Local customs: Local customs are the customs that are
practiced in a local area. This type of custom is not highly
recognized.

General customs: General customs are the customs or traditions


which are practiced in a large area. This type of custom is highly
recognized by people.
Conventional customs

Conventional customs are customs that are related to the incorporation of an

agreement and it is conditional.

What are the essentials of a custom?

Following are the essential points which constitute a custom-

 A customs must be continuous in practice

 A custom should not be vague or ambiguous
 A custom must have time antiquity
 There must be a complete observation of the custom
 It should be certain and clear
 A custom must not oppose the public policy which will affect the
interest of the general public.

 Modern sources
 Judicial Decisions
 Judicial decisions are considered to be the most important ingredient of
modern sources. Judicial decision is considered to be authoritative and
binding. The doctrine of precedent was established and it was applied in
the cases resembling the same facts and circumstances of a case already
decided.
 The legislation is considered to be the codification of customs which plays
an essential role in expanding the concept of Hindu law. Legislations are
enacted by the parliament.

 Justice equity and good conscience

 Justice equity and good conscience is the basic rule of law. This rule of
law applies when an existing law doesn’t apply in a case before the court
 decides the particular matter by applying its rationality and the concept of
justice equity and good conscience.
 This rule is considered to be the fairest and reasonable option available to
a person.
 In Gurunath v Kamlabai the supreme court held that in the absence of
any existing law the rule of justice equity and good conscience was
applied.

 Legislation
 The legislation is considered to be the most important source of Hindu
law. It is considered as a base for the growth of Hindu law in the modern
world. It has been stated that in order to meet the new conditions of
society it became a necessity to codify the law.

 Schools of Hindu law

Schools of Hindu law are considered to be the commentaries and the digestives
of the smritis. These schools have widened the scope of Hindu law and explicitly
contributed to its development.

The two major schools of Hindu law are as follows-

 Mitakshara
 Daya Bhaga

Mitakshara
Mitakshara School: Mitakshara is one of the most important schools of Hindu
law. It is a running commentary of the Smriti written by Yajnvalkya. This school
is applicable in the whole part of India except in West Bengal and Assam. The
Mitakshara has a very wide jurisdiction. However different parts of the country
practice law differently because of the different customary rules followed by
them.

Mitakshara is further divided into five sub-schools namely

 Benaras Hindu law school

 Mithila law school
 Maharashtra law school
 Punjab law school
  Dravida or madras law school
These law schools come under the ambit of Mitakshara law school. They enjoy
the same fundamental principle but differ in certain circumstances.

Benaras law school

This law school comes under the authority of the Mitakshara law school and
covers Northern India including Orissa. Viramitrodaya Nirnaya Sindhu vivada
are some of its major commentaries.

Mithila law school

This law school exercises its authority in the territorial parts of tirhoot and north
Bihar. The principles of the law school prevail in the north. The major
commentaries of this school are Vivadaratnakar, Vivadachintamani, smritsara.

Maharashtra or Mumbai law school

The Maharashtra law school has the authority to exercise its jurisdiction over
the territorial parts including Gujarat Karana and the parts where the Marathi
language is proficiently spoken. The main authorities of these schools are
Vyavahara Mayukha, Virmitrodaya, etc.

Madras law school

This law school tends to cover the whole southern part of India. It also
exercises its authority under Mitakshara law school. The main authorities of this
school are Smriti Chandrika, Vaijayanti, etc.

Punjab law school

This law school was predominantly established in east Punjab. It had
established its own customs and traditions. The main commentaries of this
school are viramitrodaya and its established customs.

Dayabhaga school
Dayabhaga school predominantly prevailed in Assam and West Bengal. This is
also one of the most important schools of hindu laws. It is considered to be a
digest for the leading smritis. Its primary focus was to deal with partition,
inheritance and joint family. According to Kane, it was incorporated in between
1090-1130 A.D.

Dayabhaga school was formulated with a view to eradicating all the other
absurd and artificial principles of inheritance. The immediate benefit of this new
digest is that it tends to remove all the shortcomings and limitations of the
previously established principles and inclusion of many cognates in the list of
heirs, which was restricted by the Mitakshara school.

In Dayabhaga school various other commentaries were followed such as:

 Dayatatya
 Dayakram-sangrah
 Virmitrodaya
 Dattaka chandrika

 Sapinda relationship and degrees of prohibited

relationship
 All prohibited relationships are Sapinda but all Sapinda relationships are
not prohibited relationships. Sapinda relationship is the chain of all the
relationship from the side of the brother and sister in the family; they
can’t marry each other due to prohibited relationship and also their
generation till three generations from the girl side and five-generation
from the boy side, till that they all are in Sapinda relationship. Avoidance
of Sapinda can be achieved as the girl reaches the fourth generation and
boy (brother) reaches the sixth generation after that both families can
have a marriage that will be neither prohibited relationship nor Sapinda
relationship.

Conditions for validity of a Hindu Marriage

 Section 5 A valid marriage shall be solemnized between two Hindus if the
following conditions are fulfilled:[3]
 Any person doesn’t have a spouse living at the time of the marriage.
According to the Hindu Marriage Act, it is not permissible to have two living
wives at the same point in time, which amounts to bigamy. It is punishable
under Section 494 of the Indian Penal Code.
 The groom shall attain the age of 21 and the bride attains the age of 18. It
is necessary at the time of marriage the person shall attain the specified age
given in this Act.
 The consent shall not be given by coercion or threat. In the modern world, a
father can’t get the girl married to any without a girl’s consent. Marriage will
be void.
 They don’t fall under the Sapinda relationship, or within the degree of
prohibited relationship unless it is allowed by their custom or tradition.
 The person shall be not suffering from any insanity or mental disorder at the
time of the marriage.

Essentials of a valid marriage under the

Hindu Marriage Act, 1955
 The conditions for a valid marriage under Hindu law have been provided
hereunder:

 Both the parties to the marriage should be

Hindu
 Section 5 of the Hindu Marriage Act of 1955 specifies the prerequisites for
a lawful Hindu marriage, which provides that both parties must be
Hindus. If one of the parties to the marriage is a Christian or a Muslim,
the marriage will not be considered a genuine Hindu marriage under the
Hindu Marriage Act of 1955. Therefore, under the Act of 1955, a lawful
marriage cannot be solemnised if both parties are not Hindus.
In Yamunabai Anant Rao Adhav v. Anant Rao Shivaram Adhav (1988), it
was made clear that Section 5 of the Act only permits marriages to be
performed between two Hindus.

 The parties to the marriage should not suffer

from unsoundness of mind, mental disorder, or
insanity
 In a Hindu marriage, a person must be able to give legally binding
consent, according to Section 5(ii)(a) of the Act of 1995. The other party
has the option to declare the marriage null and void if neither of the
parties is competent to offer legally binding consent to the union due to
mental incapacity.
  According to Section 5(ii)(b) of the Act, a marriage may be dissolved at
the discretion of the other party if one of the parties, even though they
are capable of giving legal consent, has been experiencing a mental
condition that renders them unfit for marriage and for having children.

In Alka Sharma v. Chandra Sharma (1991), the woman felt extremely chilly,
anxious, and frigid on the first night of the marriage. She was unwilling to
participate in the sexual act. She did not attend to the family members’
requirements and was unable to explain why she had urinated on the verandah
in front of the whole family. Thus, the husband initiated legal action to dissolve
the union. The marriage was declared null by the court.

It is also to be noted that, according to Section 5(ii)(c) of the Act, if one partner
has experienced repeated episodes of insanity, the other party may choose to
have the marriage annulled. The Marriage Laws (Amendment) Act, 1999 altered
this clause of the Hindu Marriage Act of 1955, and the phrase “epilepsy” has
been removed. Because of this, in modern times, if a party to a marriage
experiences frequent seizures, the marriage is still legal and the party cannot
choose to annul it.

The marriage should be monogamous

Section 5(i) of the Hindu Marriage Act, 1955 specifies that neither party had a
spouse who was still alive at the time of the marriage. The marriage is deemed
null and void if any of the parties had a spouse who was still alive at the time of
the union. A bigamous marriage is therefore invalid. A second marriage can be
legally consummated after the first one has been ended by death or divorce.

Any marriage between two Hindus that is solemnised before the

commencement of legislation is void if either party was married or already had
a spouse at the time of the marriage, according to Section 17 of the Act, which
deals with the penalties for bigamy. Also, if a person solemnised a second
marriage while the original marriage is still in effect, they may be prosecuted
and punished in accordance with the requirements of Sections 494 and 495 of
the Indian Penal Code, 1860.

The parties to the marriage have attained the

majority
The bride must be at least 18 years old and the husband must be at least 21
years old at the time of the marriage, per Section 5(iii) of the Act. Any marriage
that is performed in contravention of these standards shall neither be null nor
voidable. Additionally, anyone who solemnised such a marriage could be
prosecuted under Section 18 of this Act with a harsh sentence of up to two
years in jail, a fine of up to one lakh rupees, or both.

A marriage solemnised in contravention of the age requirements under Section

5(iii) was found to be neither void nor voidable in the case of P. Venkataramana
v. State (1977). However, Section 18 of the Hindu Marriage Act of 1955 makes
violating the terms illegal.

The parties to the marriage should not be related

as Sapindas
A marriage between two people who are associated as Sapindas is void,
according to Section 5(v) of the 1955 Act, if it is solemnised. To put it another
way, the husband and wife shouldn’t share the same ancestry. According
to Section 3 (f) of the Hindu Marriage Act of 1955, a Sapinda relationship is one
in which a person extends as far as the third generation (inclusive) in the line of
descent through the mother and the fifth generation (inclusive) in the line of
descent through the father, the line in each case being traced upward from the
individual in question, who is to be counted as the first generation.

Even though the marriage between the Sapindas is null, it may still be lawful if
there is a valid custom or usage that governs each of them and allows for such
a union. By virtue of Section 18 of the Act, a marriage solemnised between two
parties related to Sapindas is void and the parties are subject to punishment,
which may include both simple imprisonment for a month and a fine of Rs.
1,000.

The parties should not come under the degree of

prohibited relationships
The parties should not be considered to be in a banned relationship under
Section 5(iv) of the Act unless their respective cultures’ traditions allow for
marriage between them. According to Section 3(g) of the Act of 1955, two
people are considered to be in a banned relationship if they are:
  If one is the other’s lineal ascendant or
 If one was married to or had a descendant from the other’s lineal
ascendant;
 If one was the spouse of the other’s brother, father, mother, grandpa,
grandmother, or any other relative; or
 If one of the two is a brother or sister, an uncle or niece, an aunt or
nephew, a child of a brother or sister, or the children of two brothers or
sisters.
A marriage between two people is void if it falls within the parameters of a
banned relationship. However, marriage is legitimate if it is governed by a valid
custom or usage that applies to both parties. It is crucial that the usage or
custom being practised be certain, reasonable, and not in conflict with public
policy. Various traditions that validate marriage in the context of banned
partnerships can be found all over India. For instance, it’s usual practice in
Kerala to marry off siblings’ offspring.

In the case of Balu Swami Reddiar v. Balakrishna (1956), the court determined
that it was improper and against public policy, for one to marry his daughter’s
daughter in accordance with a Reddiar custom that was well-known among
them in the state of Madras. A marriage solemnised between two persons that
fall under the definition of a forbidden relationship is void pursuant to Section
18 of the Act, and the parties are subject to a fine of INR 1,000 or one month’s
simple imprisonment, or both, depending on the severity of the offence.

The marriage should be solemnised in accordance

with the customary rites and ceremonies
According to Section 7 of the Act, a Hindu marriage is lawful under the 1955 Act
if it is performed in conformity with the traditional rites and ceremonies of
either party. If such rituals and ceremonies involve the saptapadi and binding,
when the seventh step is taken, the marriage is considered to be complete.

Registration of Marriage (Section 8)

Section 8 states that:
The state government is facilitating the provision as a proof to Hindu so that the
person comes into a valid marriage with the prescribed manner. [7]

All the rules made in this section shall be laid before the state legislature as soon
as May.

Hindu marriage registrar has all the powers and reasonable time open for the
inspection and collects evidence and certified them after the payment of a
prescribed fee.

Void Marriages (Section 11)

Section 11 of the Hindu Marriage Act 1996 states that any marriage solemnized
after the commencement of the Hindu Marriage Act 1955, if it contravenes any of
the provisions of this act, the marriage will be void. The marriage will have not
[8]

any legal entity nor will it be enforceable.

Voidable Marriages (Section 12)

Any marriage solemnized after or before the commencement of this will be
voidable on the following grounds:

No sexual intercourse has been done after the marriage due to the impotence of
the Husband.

Marriage is in contravention of Section 5 (ii) of this Act which states that the bride
shall attain the age of 18 and the groom shall attain the age of 21.

There shall be a consent of the bride.

If the husband has pregnant another woman other than the wife.

The wife has filed a request for annulling the marriage.

Ceremonies To Be Performed by Hindu

Marriage (section -7)
Marriage in the Hindu religion is a sacred tie performed by certain ceremonies and
rites which are necessary for a valid marriage. There are three important stages
wherein certain ceremonies are to be performed.

Sagai – Hindu engagement is an necessary pre-wedding ritual in Indian culture, it

is a kind of tradition in which the bride and groom come face to face and are
engaged with a religious bond through each other’s families. The Hindu subculture
of “Vagdanam” dates again to Vedic duration the place the groom’s father offers
their phrases to the bride’s father that they will accept their daughter and will be
accountable for their future wellbeing. There are a number terms which are used
instead of engagement in specific locations like Mangi, Sagai, Ashirbad,
Nishchayam etc.

Kanyadan– The phrase kanyadan consists of two words- Kanya which is maiden
or girl and daan which ability donation. It is the donation of a girl. It is an age-old
culture the place the bride’s father affords his daughter to the groom, giving him
accountability for her future wellbeing. It is an emotional and sentimental weighted
down ritual which acknowledges the sacrifice a father makes in order to make
certain her daughter’s happiness. It is observed till now from the Vedic times. It is
a necessary part of usual Hindu marriage.

Saptapadi– saptapadi is a very necessary and essential factor of a common Hindu

marriage. It is an exercise which is undertaken via the bride and groom in front of
the furnace god, where couples go around the sacred furnace seven times while
reciting sure vows. This movement is also known as phera. Fire or Agni is
considered noticeably sacred in the Hindu religion, vows taken in front of the Agni
are unbreakable. The god of fire, Agni deva is considered to be a witness to be
solemnization of the marriage as well as a representative of the supreme being to
provide his blessing to the newlywed couple. Section 7 of the Hindu marriage act
1955 states the solemnization of the Hindu marriage, a Hindu marriage may be
performed by means of all the ceremonies and rituals of each the party or either
anyone. It is involved with the Saptapadi which skill that taking seven rounds
around the fire with their partner; after its completion, marriage becomes
complete.
Guardianship under the Hindu Marriage Act, 1955
The guardianship for marriage is outlined in Section 6 of the Hindu Marriage
Act, 1955. When a bride is required by this Act to get a guardian’s consent for
marriage, the following individuals are qualified to do so:

1. The bride’s mother,

2. Father,
3. Paternal grandpa, (section 6)
4. Paternal grandmother,
5. Brother by full blood,
6. Brother by half-blood, etc.

All about Section 9 of Hindu

Marriage Act, 1955
Introduction
In India, marriage is considered a sacrament where the man and woman
getting married are considered to get bonded within one relationship where they
will be considered as one soul. When a man and woman get married they follow
certain customs according to their culture and religion which brings them
together for their entire life. They are considered to be living together till their
last breath and share all their happiness, sadness and be each other’s support.

Imagine a situation where two persons get married to each other and after the
marriage husband leaves the wife and settles somewhere else without
explaining anything or without giving any valid reason. In this situation, the
woman who left her family and got married to the man with so many dreams is
left unanswered with broken dreams and hearts. In this case, the woman has all
rights to take a legal step to compel her husband to live with her and live a life
where she doesn’t feel abandoned by her husband. Such a legal right is not only
available to women but a man can also avail themselves of this right if his wife
withdraws from the society of the husband without giving any reasonable
excuse.
The Hindu Marriage Act, 1955 (HMA) provides the married couple with certain
duties and rights against each other in their marriage. In a marriage, it is
presumed that the man and the woman should live together after marriage.
Both the parties in a marriage have the right to get comfort from their spouse
and if unreasonably one of the spouses fails to fulfill their obligations then the
other spouse has the right to remedy to compel him or her to do so.

Restitution of conjugal rights

Restitution of conjugal rights means resuming the marital relationship between
both spouses. The main objective is to consummate the marriage and get along
with each other’s society and comfort. The petition of restitution of conjugal
rights is filed to make the court intervene between the parties to decide the
case and grant the decree of restitution to preserve the marriage union.

Restitution of conjugal rights is a relief or remedy available to either of the

parties to the marriage who got abandoned by the other spouse without
explaining or giving any just and reasonable ground of abandonment.

Understanding Section 9 of Hindu Marriage

Act, 1955
Marriage in Smt. Saroj Rani v. Sudarshan Kumar Chadha, 1984, is
contemplated to be a bond where both husband and wife should share a
common life where they will share happiness and will stand by each other even
in miseries.

Section 9 of the HMA, 1955 talks about restitution of conjugal rights that states
that in a situation where a husband or wife withdraws from the society of the
other spouse without giving them any reasonable cause then the other spouse
has the remedy to file a petition before a district court for restitution of conjugal
rights. If the court is satisfied that the statements presented in the petition are
true and there is no legal bar in granting the remedy of restitution then the
court may pass the decree of restitution of conjugal rights.

This Section states that the court may grant a decree for restitution of conjugal
rights under the following conditions:

1. When either of the party without giving any reasonable cause has
withdrawn from the society of the other spouse;
 2. The court is satisfied with the fact that the statements made in the
petition are true;
3. There is no legal ground on which the petition shall be declined.
Under this Section, the term ‘society’ means cohabitation and companionship
that a person expects in a marriage. The term ‘withdrawal from society’ means
‘withdrawal from a conjugal relationship’.

Essential elements of Section 9 of Hindu Marriage

Act, 1955
Following are the essential elements of Section 9 of the Hindu Marriage Act,
1955:

1. The marriage between the applicant and defendant is legal, valid, and
existing.
2. The defendant should withdraw from the society of the applicant.
3. Such withdrawal from society should be unjust and unreasonable.
4. The court should be satisfied that the petition and facts stated by the
applicant are true.
5. The court should be satisfied that there exists no legal ground to refuse
the decree.

Who can file a petition under Section 9 of Hindu

Marriage Act, 1955
 Either of the spouses can file the petition under Section 9 of the Hindu
Marriage Act, 1955.
 The party that has got abandoned by the other person in the marriage
is supposed to file the case under this Section.
 The petition is made by the person who wants to re-establish their
marriage to compel the other person to perform their obligations and
consummate their marriage.
Prerequisites for filing a case under Section 9 of
Hindu Marriage Act, 1955
To file a case under this Section following two prerequisites should be met:

1. The husband and wife must be living separately without a reasonable

excuse.
2. The aggrieved spouse has filed the case under Section 9 of HMA.

How and where to file the petition under this

Section
The petition for restitution of conjugal rights is filed before a family court having
jurisdiction over the area where:

1. The marriage ceremony was performed;

2. The spouse used to live together;
3. The wife is currently residing.
The appropriate family court after hearing both sides and after getting satisfied
that the spouse left without giving any reasonable cause then court will order
that spouse to live with the aggrieved party and if necessary give a decree of
attaching the defendant’s property. If the defendant does not fulfil the direction
given in the decree by the family court within one year, then the petitioner can
file a case of divorce.

Judicial Separation under Hindu Law

Judicial Separation under Hindu Law is a legal procedure designed to give troubled
couples some time to reflect on their marriage. It allows both the husband and wife
to reconsider their relationship while living apart. This legal process provides them
with the freedom and space to think about their future and represents their final
option for a legal separation.

Under Section 10 of the Hindu Marriage Act, 1955, couples married under this act
can seek Judicial Separation by filing a petition. Once the court grants the order
for Judicial Separation, they are not required to live together as a married couple.
What is Judicial Separation in Hindu Law?
In Hindu Law, Judicial Separation is a legal remedy that allows a married couple to
live apart without officially dissolving their marriage. It is distinct from divorce and
serves as a potential precursor to it. Judicial separation is granted by the court
based on specific grounds, such as adultery, cruelty, desertion or other valid
reasons recognised by the law.

During a judicial separation in Hindu Law, the spouses retain their marital status,
but their legal duties and obligations toward each other are suspended. This
arrangement provides an opportunity for the couple to assess their relationship,
possibly reconcile or eventually move towards divorce. It offers a structured and
legally recognised means for couples facing significant marital challenges to obtain
a formal separation while remaining legally married.

Section 10 of Hindu Marriage Act and Judicial

Separation in India
Judicial separation under Hindu Law is dealt in Section 10 of the Hindu Marriage
Act, which states that;

(1) Either party to a marriage, whether solemnised before or after the

commencement of this Act, may present a petition praying for a decree for judicial
separation on any of the grounds 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.

(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.

Petition for Judicial Separation: Either party in a Hindu marriage, regardless of

whether it was solemnised before or after the enactment of the Act, can file a
petition seeking a decree for judicial separation. This petition can be based on the
grounds specified in Section 13(1) for both parties and on the grounds mentioned
in Section 13(2) in the case of a wife. These grounds are the same as those on which
a divorce petition could have been filed.

Effect of Judicial Separation: Once a decree for judicial separation is granted, it

is no longer mandatory for the petitioner and the respondent to live together as a
married couple. They can live separately. However, the court has the authority to
rescind the decree upon the application of either party if it finds that doing so is
just and reasonable.

This legal provision provides a structured process for obtaining judicial separation
in Hindu marriages and allows for flexibility if circumstances change

Filing Petition for Judicial Separation in India

If one spouse has been harmed by the other, they can initiate a Judicial Separation
under Hindu Law petition in a District Court under Section 10 of the Hindu
Marriage Act, 1955. To do so, the following conditions should be met:

 The marriage between the husband and wife must have been legally
solemnised under the Hindu Marriage Act.
 The respondent, the spouse against whom the petition is filed, should
reside within the jurisdiction of the court where the petitioner submits the
petition.
 The husband and wife must have lived together for a specific period before
the petition is filed.
Every petition should, in accordance with Order VII Rule 1 of the Civil Procedure
Code, 1908 contain the following information:

 The date and place of the marriage.

 An affidavit confirming that the person is a Hindu.
 Names, status and addresses of both parties.
 Names, dates of birth and genders of any children.
 Details of any prior legal actions filed before seeking a judicial separation
or divorce.
For judicial separation under Hindu Law, evidence must be provided to
substantiate the grounds for the separation.

Grounds of Judicial Separation in India

Grounds of Judicial Separation under Hindu Law refer to the legal reasons or
circumstances under which a married couple can seek a formal separation
recognised by the law without proceeding to a full divorce. Judicial separation
allows couples to live apart while still legally married. In this section, we will explore
various grounds for judicial separation in Hindu Law, examining the situations and
criteria that enable either spouse to petition for this legal remedy.

Adultery

Adultery refers to when one spouse in a marriage engages in voluntary sexual

intercourse with another person outside of the marriage. In the case of Dr. H.T.
Vira Reddi v. Kistamma (1968), the Court granted judicial separation under
Hindu Law to the husband because the wife had engaged in sexual intercourse
with someone else. The Court emphasised that even a single act of infidelity by
one spouse is sufficient grounds for obtaining legal separation.

Cruelty

The term ‘cruelty’ in the context of marriage doesn’t have the same meaning as in
everyday language. ‘Legal cruelty’ has a different definition. In the case of G.V.N.
Kaeswara Rao v. G. Jalli (2002), the Supreme Court attempted to define ‘cruelty’
within the context of marriage.

The Court stated that an act is considered cruel if its intent is to cause suffering to
the other spouse. It doesn’t necessarily have to create fear in the spouse that it’s
dangerous to live with the other. The intent of the person causing the cruelty
doesn’t matter and it doesn’t have to be committed by the respondent alone.

Desertion

Desertion, for a continuous period of two years, can be a basis for seeking judicial
separation under Hindu Law. It means one spouse completely abandoning their
marital responsibilities without a valid reason and without the consent of the other
spouse. There are three types of desertion:

Actual desertion: When one spouse physically abandons the other without
explanation. For instance, in the case of Meena v. Lachman (1959), the wife left
for her parent’s home without informing her husband and made false promises of
return but didn’t come back for two years. The Bombay High Court recognised this
as desertion and granted judicial separation in Hindu Law.

Constructive Desertion: Constructive desertion occurs when one spouse creates

an environment that compels the other spouse to leave. In the case of Jyotish
Chandra Guha v. Meera Guha (1969), the husband’s persistent disinterest and
cold, rude behaviour towards his wife led to her enduring mental and physical
suffering. She was eventually forced to file a divorce petition. The court deemed
this as desertion at the hands of the husband.

Wilful Neglect

Wilful neglect happens when one spouse intentionally neglects their marital duties
towards the other without physically leaving. This may involve a refusal to cohabit
or a failure to fulfil various marital responsibilities.

Conversion

If one spouse converts to another religion, ceasing to be a Hindu, the other party
can seek judicial separation under Hindu Law. In the case of Vilayat Raj v. Smt.
Sunila (1983), where the husband converted to Islam and sought to dissolve the
marriage, the court established that a conversion alone does not automatically end
the marriage but serves as a ground for its dissolution. However, the court also
noted that a party cannot benefit from a situation they created to the detriment of
the other spouse.

Unsound Mind or Mental Disorder

If one spouse is of unsound mind or suffers from an incurable mental illness or

disorder that makes it difficult for the other spouse to live with them, an appeal for
judicial separation in India can be filed. In the case of Anima Roy v. Proboth Mohan
Roy (1968), the husband sought nullity of the marriage, claiming his wife had
schizophrenia at the time of their marriage. However, his petition was not allowed
by the court due to an unwarranted delay of three years in filing the petition from
the date he claimed to have learned about his wife’s condition. Additionally, the
evidence presented was not satisfactory.

Venereal Communicable Diseases

If one spouse suffers from a communicable and incurable venereal disease such as
HIV/AIDS, HPV or syphilis, the other spouse can seek judicial separation under
Hindu Law. In the case of Madhusudan v. Smt. Chandrika (1975), the husband
filed a petition seeking annulment of the marriage or judicial separation due to his
wife’s syphilis. The court rejected his appeal because he couldn’t prove that his wife
had syphilis for three years before the petition and the incurable nature of the
disease was not established.

Renunciation

Renunciation occurs when a person forsakes worldly pleasures to lead a spiritual

life and seek enlightenment. This is one of the grounds on which a party to a
marriage can request judicial separation. In the case of Teesta Chattoraj vs. Union
of India (2012), ‘renounce the world’ was defined as withdrawing from worldly
interests to lead a spiritual life. It involves formally consenting to abandon or
surrender material possessions and worldly claims.

Presumption of Not Being Alive

If one spouse goes missing for a minimum of seven years and there is no
information about their status and their family and friends are unaware of their
whereabouts, it is presumed that the missing spouse may have passed away. In
such cases, the other spouse can request judicial separation on these grounds.

Grounds of Judicial Separation Available to the Wife

Bigamy

Bigamy refers to marrying another person when one is already legally married to
someone else. Prior to the commencement of the Act, if a husband remarried
another woman while his wife was still alive, the wife could file a petition for judicial
separation under Hindu Law. In the case of Harmohan Senapati v. Smt. Kamala
Kumari (1978), the wife filed a suit for judicial separation because the husband
married another woman and lived with her without dissolving their earlier
marriage.

Guilty of Rape, Sodomy or Bestiality

If the husband, after marriage, is found guilty of rape, sodomy or bestiality, the wife
has the right to file a petition for judicial separation on these grounds. For example,
if ‘A’ and ‘B’ are husband and wife and ‘A’ is convicted of rape of another woman,
‘B’ can file a petition for judicial separation under Hindu Law.

Non-Resumption of Cohabitation After an Order of Maintenance

If a decree or order has been passed against the husband to provide maintenance
to the wife under various acts like the Hindu Adoptions and Maintenance Act,
1956 or under Section 125 of the Code of Criminal Procedure, 1973 and no
cohabitation between the husband and wife has resumed for a period of one year
or more, the wife can file a petition for judicial separation.

Repudiation of Marriage After the Age of 15 and Before the Age of 18

If a marriage was solemnised when the girl was under 15 years of age and she
repudiates the marriage after turning 15 but before turning 18, the wife can file a
petition for judicial separation under Hindu Law. This ground is significant in
providing relief to minor girls, especially from disadvantaged communities, who
were married against their will.

Effect of Judicial Separation in Hindu Law

The effect of judicial separation in Hindu Law is a formal legal recognition of a
married couple living apart without dissolving the marriage. During a judicial
separation, both parties retain their marital status, but their legal obligations to
each other are suspended. They are no longer required to cohabit and the court
may even decide on issues like financial support and child custody. While the
marriage still exists in name, the couple can essentially lead separate lives.

This arrangement offers the opportunity for the couple to evaluate their
relationship, potentially reconcile or eventually seek a divorce. The effect of judicial
separation under Hindu Law provides a structured and legally recognised means
for couples facing insurmountable marital challenges to obtain a formal separation
while maintaining their legal marriage status.

Conclusion
Judicial Separation under Hindu Law is a legal mechanism designed to provide
relief for married couples facing insurmountable challenges in their relationship. It
allows spouses to live apart while maintaining their legal marital status.

The various grounds for judicial separation, ranging from adultery to cruelty and
more, offer individuals recourse to address specific issues within their marriage. It
serves as a significant step before divorce, allowing couples to evaluate their
relationship, seek reconciliation or move towards a more permanent separation.

By providing a structured and recognised path for marital separation, Hindu Law
seeks to balance the institution of marriage with individual rights and the need for
solutions when the marital bond becomes untenable, ultimately promoting
fairness and justice within the context of family law.

Nullity of Marriage under Hindu Marriage Act

A socially and religiously recognized union between a man and a woman that establishes
certain rights and duties between them is called a marriage. The parties to the marriage that is
the man and the woman are call husband and wife respectively. A marriage is often referred as
a contact between the husband and wife to live together. In our nation, marriage is a religious
establishment which is essential for the development of our general public.

Marriage has been awarded a legal status Under various personal laws. These laws include
Hindu Marriage Act, 1955, Parsi marriage and divorce act,1936. Indian Christain Marriage Act,
1872 and Special Marriage Act, 1954. The marriage is considered as a sacred relationship. But
it's complexities In the society give birth to the concept of nullity of marriage.

Meaning Of Nullity Of Marriage:

The term nullity of marriage Is a declaration by a court that your supposed marriage is null and
void, And there is no valid marriage exist between you and your spouse. In simple words, It is a
declaration that the supposed marriage never happened. One thing to be noted here that,
Nullity is not the same thing as divorce. Divorce is the declaration ending a valid marriage. But
on the other hand, nullity is a declaration that valid marriage never existed.

Law of nullity talks about Two types of marriages that may be cancelled. These are known as
void marriage and voidable marriage respectively.

If your marriage is void, it means that it is never having taken place. Technically, if marriage
between you and your spouse never took place, then there is no need of court to obtain a
degree of annulment. You can simply act as though your marriage never happened. But, it is
advisable to obtain a court order declaring that your marriage is annulled so that any doubt can
be removed.

But on the other hand, if your marriage is voidable, this is considered yo be a valid marriage
until and unless a degree of annulment is made.

In order to obtain a degree of annulment in a voidable marriage either of the party has to apply
to the court for a nullity. If the court deems it fit that your marriage was invalid from the start
and your marriage never happened, it passes the order for nullity of marriage.

Firstly, it has to be noted that nullity of marriage is different from divorce and judicial
separation. Nullity of marriage is the declaration of the court that marriage was not in
existence. It refers to the validity of a marriage according to the law. It clearly states that there
was not a valid marriage performed between the parties.

Divorce on the other hand is a judicial declaration on the petition of the parties of marriage
which led to the end of a valid marriage. It is to be noted here that in divorce the validity of a
marriage is not questioned but the continuation of marriage is affected and there is an end of a
valid marriage.

Judicial separation is also different from nullity of marriage. In judicial separation there is a
court's declaration on the petition of the parties of marriage to live separate under the status of
marriage. It is not an end of the marriage. The duties of husband and wife remain same
towards each other.

Nullity of Marriage under Hindu Law:

According to the smrities, marriage is considered as an essential sanskar for the Hindus. It is a
duty of the members to perform it. Before the enactments of the parliament, there was no such
concept of end of marriage or nullity of marriage under the Hindu personal law and the
marriage is treated as a holy and strong wedlock for the whole life. But after the enactment of
Hindu Marriage Act [1] There are certain grounds on which marriage shall be declared null and
void by the court. These grounds are given under Clause i, iv, and v of section 5 of the Hindu
Marriage Act.

Void Marriage:
The term void can be generally understood as a synonym of the word illegal. hence anything
which is void would have one consequence for sure that it would be illegal as well. A void
marriage[2] therefore means an illegal marriage. Section 5 of the Hindu Marriage act lays down
certain essentials which are to be fulfilled for a valid marriage. On the other hand, section 11 of
the Hindu marriage act lays down the grounds which shall render a marriage as void.

These grounds are as follows:

 1. Bigamy:
The very first condition for a valid Hindu marriage is that none of the parties to the
marriage shall have a living spouse at the time of their marriage. If either of them has a
spouse alive from an earlier marriage, their subsequent marriage is considered as no
marriage in the eyes of law. It is considered as void from the very beginning.

2. Prohibited Relationships:
Under prohibited relationships, lineal ascendants are to be seen from both sides that is
from the father's side as well as from the mother's side too. So, both the mother and
father are lineal ascendants. Father's father is a lineal ascendant whereas mother's
mother is also a lineal ascendant. So, no marriage is performed between the prohibited
relationships. And if performed these marriages have no validity in the eyes of law.

3. Sapinda Relationships:
By the virtue of Section 3(f) clause ii, not only those who fall within the limits of sapinda
relationships shall be a sapinda to the person but also where two persons have a
common lineal ascendant who is within the limits of sapinda relationships with
reference to each of them, both of them shall be a sapinda to each other.

Voidable Marriages:
Voidable marriage[3] is also categorized under Hindu Marriage act. The voidable marriage is a
one which is valid until declared null and void. This marriage shall be annulled by the decree of
nullity taken under section 12 of Hindu Marriage Act. It is totally upon the parties that whether
they want to continue with the marriage or to annul marriage by the decree of the court.

Following are the grounds to set aside a marriage and make it voidable:

1. Impotency of the respondent.

2. Incapacity to give valid consent or forced consent of parties or mental illness or the
person is unfit for creation of a child.
3. Under aged marriage. [4]
4. If respondent was pregnant by some other person at the time of marriage.

Difference between Void and Voidable Marriage:

1. Void marriage is void from the very beginning but voidable marriage is valid unless it is
avoided by either party to the marriage.
2. In void marriage a mere degree is passed as to nullity of marriage by the court. But in
voidable the marriage is annulled by the decree of nullity by the court.
3. Parties are free to perform another marriage without getting a decree of nullity in a void
marriage. But in voidable marriage, parties cannot perform another marriage unless the
marriage is annulled by the court.
 4. A wife has no right to claim compensation in a void marriage. On the other hand, in
voidable marriage wife has the right to claim compensation.

Nullity of Marriage under Special Marriage Act, 1954:

Section 24 of the special marriage act also talks about the nullity of marriage which also have
certain grounds. Like neither party has living spouse, incapable to give valid consent, parties are
under aged, parties are in relation of prohibited degree and impotency of respondent.

Procedure For Obtaining Decree Of Nullity:

The procedure for obtaining decree of nullity of marriage is same in all personal laws. The
petition for nullity of marriage shall be presented before the court. The jurisdiction of court is
decided on the basis that where the defendant or respondent has resides or marriage has
solemnized or place where the party has last resized together.

After it, the court issue notice yo respondent or defendant to give reply before the court. After
hearing of parties and considering the related evidences court grant the relief accordingly.

Consequences Of Nullity Of Marriage And Children Born Out Of These Marriages:

After the declaration of nullity of marriage is made , the court also decides maintenance which
is given to the opposite party either monthly or yearly or lump sum amount.

Children born out of this marriage are considered to be legitimate. After the order of nullity of
marriage is made the parties are free to marry with any other person. Order of nullity of
marriage declares that there was no status of marriage between two persons. A marriage which
is null and void have no legal status at all.

Case Laws:
Parayan K. Amma vs. K. Devi [5]
The court in this case held that for the purpose of bringing social reform, the amendment act
has been conferred the status of legitimacy on children, who if not awarded the title of
legitimate children, will be treated as bastards.

Yamunabai Anantrao Adhav vs. Anantrao Shivram Adhav [6]

In this case, it has been held that a marriage which is contravention of section 11 of the Hindu
marriage act shall be treated as null and void from the time of its inception.

Lila vs Laxmi [7]

In this case it was held by the Allahabad High Court that a void marriage does not need a
degree of nullity as it is no marriage in the eyes of the law. A decree passed for this marriage is
a mere declaration of nullity of marriage.

Smt.Sariabai vs. Komalsingh [8]

It was held that petition after eight years of marriage is barred by the statute of limitation and
cannot be entertained.

Ratenshwari vs. Bhagwati [9]

In this case the federal court held that marriage with person of unsound mind is void because
at the time of marriage he could not know the nature of his act.

Conclusion:
In a country like India there are different religions and practices and each having it's own
personal laws related to the marriages. In our country marriage is considered as a holy religious
sacrament which is very essential for the systematic functions of our society. So, it should be
done without any kind of force and fraud. The grounds for nullity in all personal laws are almost
same in India. Nullity of the marriage makes a person free from the bond of the marriage which
is like a burden over them. The grounds of the nullity of marriage are also legal as well as taking
care of religious sentiments.

DIVORCE

Introduction
In Ancient times, the concept of divorce was not known to anyone. They
considered marriage as a sacred concept. According to Manu, the husband and
wife cannot be separated from each other, their marital tie cannot be broken.
Later the concept of divorce came into the picture and was established as a
custom to put the marriage to an end.

According to the Arthashastra, marriage can end if dissolved by mutual consent

and should be unapproved marriage. But Manu does not believe in the concept of
dissolution. According to Manu the only way to end the marriage is the death of
one of the spouses.

The provision related to the concept of divorce was introduced by the Hindu
Marriage Act, 1955. The Hindu Marriage Act defines divorce as the dissolution of
the marriage. For the interest of society, the marriage or the marital relationship
needs to be surrounded by every safeguard for the cause specified by law. Divorce
is permitted only for a grave reason otherwise given other alternatives.

“I want a divorce.” “We want a divorce from each other.”

You might have heard this from a lot of couples around you, but have you ever
wondered on what grounds a person can actually seek divorce?

Well, today we are going to discuss the grounds for divorce under the Hindu
Marriage Act,1955. Marriage is considered one of the oldest institutions and has
a religious sacrament attached to it. Marriage, according to Hindu law, is one of
the most important sanskaras (duties). It is considered a ‘dharma’ (religious
duty under Hindu law) by which men and women are united in wedlock to
achieve the ends of life, namely, dharma, progeny, kama, and moksha.

In Hinduism, a marriage is seen as an inseparable bond between husband and

wife, but with the changing times, there has been the introduction of the
concept of divorce, which means that on certain grounds, the parties to a
marriage can seek permanent separation. The present article explains the
concept of divorce and the various grounds on which parties to a marriage can
seek divorce under the Hindu Marriage Act of 1955. It also provides different
grounds that are specifically available to a woman seeking a divorce. It tries to
analyse the changes in practices that led to the enactment of modern Hindu law
on marriage. The article discusses the irretrievable breakdown of marriage as a
ground of divorce and also provides the jurisdiction of the courts dealing with
divorce cases. Further, it also provides case laws to better understand the
grounds for divorce.

Changing trends in the Hindu marriages

Divorce was earlier unknown to people because marriage was considered as an
indissoluble union between a husband and a wife. Manu, the great commentator
of ancient India, never approved of divorce and said that only death can
separate and break the relationship between a husband and a wife.

However, some texts like Narada and Parashar have different views on this. For
some, marriage is a contract and divorce means to revoke the marriage or
contract but for others it is sacred and the bond must not be broken. In
Hinduism, it is not a contract but a sanskara and religious sacrament is attached
with it. According to Naradasmriti, a woman is allowed to leave her husband
under the following conditions:
  If the husband is lost and unheard for seven years, i.e., civil death in
the modern period.
 The husband has renounced the world.
 If he became impotent.
 If he is expelled from community or caste.
On the other hand, many jurists like Kautilya in Arthashastra opined that if a
marriage falls within unapproved forms of marriage such as asura, gandharva,
rakshasa, and paisacha, it can be dissolved.

During the 1950s, the Hindu law was codified, and the Hindu Marriage Act,
1955, was enacted to govern marriages.

Applicability of Hindu Marriage Act, 1955

According to Section 2(1) of the Hindu Marriage Act, 1955, individuals
professing the following religions are covered under the ambit of Hindus:

 A person who is a Hindus by religion which includes Virashaiva or

Lingayat or a person who is a follower of the Brahmo, Prarthana or
Arya Samaj.
 A person who is Buddhist, Sikh or Jain.
 A person who is domiciled in the territories where the Act is applicable.
However, the Act expressly provides that it is not applicable to any
person belonging to Muslim, Christian, Parsi or Jew religion.
 Any child irrespective of whether he/she is legitimate or illegitimate,
born to parents who are Hindu, Buddhist, Jain or Sikh by religion.
 Any child, whether legitimate or illegitimate, whose one of the parents
is Hindu, Buddhist, Jain or Sikh by religion and who is brought up as a
member of such religion.
 Any other person who converted or reconverted to Hindu, Buddhist,
Jain or Sikh.

Concept of divorce in modern times

The modern law on divorce, on the other hand, brought many changes to the
way marriage was perceived. Section 13 of the Hindu Marriage Act, 1955 deals
with divorce and its grounds. Divorce is no longer unknown to people, and
couples can seek divorce on any of the grounds enumerated in the Act.
However, the objective of the court and legislature has always been to preserve
the institution of marriage, so Section 14 of the Act provides that no petition for
divorce can be filed by either of the parties to a marriage within one year of
their marriage. The relationship or bond between a husband and a wife, which
was once considered unbreakable, has changed with time, they can now be
separated by way of divorce. Moreover, the introduction of remarriage has also
led to a lot of changes.

Apart from this, the Marriage Laws (Amendment) Act, 1976, recognised divorce
by mutual consent under Section 13B of the Act. This form of divorce is based
on consent theory and takes a progressive approach to marriage and separation
of husband and wife. It is clearly visible that there is a difference in the
perspective and thought process regarding marriage in the old Hindu law and
the modern law. The uncodified Hindu law did not recognise divorce at all, but
modern law, on the other hand, is based on the principle that if two people are
unhappy with each other and it is impossible for them to spend life together,
they can be separated.

Changes brought by the Amendment of 1976

The Amendment Act of 1976 brought the following major changes in the Act:

 It introduced a new provision of seeking divorce on mutual consent

under Section 13B of the Act.
 Under Section 9 of the Act, the burden to prove that there exists a
reasonable cause for withdrawal from the society of another spouse is
on the one who withdrew.
 Further, under Section 10 parties can seek judicial separation on the
grounds mentioned under Section 13 of the Act which means that the
grounds of divorce and judicial separation are the same.
 It also added impotence as a ground for declaring a marriage voidable
and annulled under Section 12 of the Act.
 After the amendment of 1976, a single voluntary act of sexual
intercourse with a person other than the spouse is a valid ground for
divorce under Section 13 of the Act.
 It has reduced the time period for the compliance of decree of
restitution of conjugal rights to one year and if the decree is not
complied with, the parties can seek divorce.
  It introduced bestiality as a ground of divorce specifically available to
women under Section 13(2) of the Act.
 Further, it also gave the option of repudiating the marriage to women if
solemnised before attaining the age of 15 years.

Different Theories of Divorce

Fault Theory
Under this theory, marriage can be ended when one party to the marriage is
responsible or liable for the offence under matrimonial offences done against
another spouse. Only the innocent spouse can seek this remedy. The only
drawback of this theory is when both the spouse are at fault, then no one can
seek these remedy of divorce.

Mutual Consent
Under this theory, the marriage can be dissolved by mutual consent. If both the
spouse mutually gives their consents to end the marriage, they can take the
divorce. But many philosophers criticise this theory as this concept is immoral
and leads to hasty divorce.

Irretrievable Breakdown
According to this theory, the dissolution of marriage happens due to failure of the
matrimonial relationship. The divorce can be taken by the spouse as a last resort
i.e. when both of them are not able to live together again.

Divorce under Hindu Marriage Act, 1955

In the Hindu Marriage Act, there are some provisions given regarding a valid
divorce, i.e. when the spouse can get a divorce or appeal for dissolution of
marriage in a court of law. For the interest of society, the marriage or the marital
relationship needs to be surrounded by every safeguard for the cause specified
by law. Divorce is permitted only for a grave reason otherwise given other
alternatives.
The Hindu Marriage Act is based on the fault theory in which any one of the
aggrieved spouses (Section 13(1)) can approach the court of law and seek the
remedy of divorce. Section 13(2) provides the grounds on which only the wife
can approach the court of law and seek the remedy of divorce.

Grounds of Divorce as per The Hindu

Marriage Act
Section 13(1) provides grounds on which divorce can be sought by either of the
partners in a marriage. After the amendment of 1976, grounds for divorce
specified under Section 13 of the Act and judicial separation under Section 10
are similar. The parties also have the option of judicial separation instead of
divorce, where they can rethink their decision. The objective is to save the
sacred institution of marriage and make efforts for reconciliation. In the case
of Ishwar Singh v. Smt. Hukam Kaur (1965), the Allahabad High Court held that
if the husband permitted his wife to marry someone else of her choice because
of his ill health, it does not amount to divorce because no such petition or
application had been filed in the court and so the second marriage solemnised is
illegal as the first marriage still subsists. It was also observed that a marriage
subsists until a decree of divorce has been passed by the court.

Further, in the case of Niru Sarmah v. Jatin Chandra Sarmah (2014), the
Gauhati High Court observed that if a marriage is broken to the extent that it is
irretrievable and there are no possibilities that the bond can be recovered and
the marriage can be saved in near future, decree of divorce can be passed by
the court.

Adultery
The concept of Adultery may not be considered as an offence in many countries.
But as per the Hindu Marriage Act, in the matrimonial offence, the adultery is
considered as one of the most important ground for seeking divorce. Adultery
means the consensual and voluntary intercourse between a married person with
another person, married or unmarried, of the opposite sex. Even the intercourse
between the husband and his second wife i.e. if their marriage is considered under
bigamy, the person is liable for the Adultery.

The concept of Adultery was inserted under the Hindu Marriage Act by the
Marriage Laws Amendment Act, 1976.

In Swapna Ghose v. Sadanand Ghose

In this case, the wife found her husband with other girl lying on the same bed
and the neighbour also confirmed that the husband has committed an offence.
Here the wife gets the divorce.

In Sachindranath Chatterjee vs Sm. Nilima Chatterjee

In this case, the petitioner and the defendant were married. After marriage, the
husband leaves the wife in his home town so that she can complete her studies
and go to another city for work. He visited twice or thrice a month to meet her.
Later he found that his wife commits the adultery i.e. to involve in sexual
intercourse with his own nephew, watchman etc. The plaintiff approaches the
court to demand divorce on the ground of adultery and his petition was accepted
and the marriage gets dissolved.

Prior to the 1976 amendment, in order to seek divorce on the ground of

adultery, a person had to prove that, on the date of the petition, his/her spouse
was living in an adulterous relationship. However, after the amendment, even a
single voluntary sexual intercourse with a person other than the spouse is a
valid ground for divorce. It is given under Section 13(1)(i) of the Act. The
burden to prove that the spouse committed the offence of adultery is on the
person who made such allegations, and the standard of proof is by
preponderance of probabilities and not proof beyond reasonable doubt.

It is correct that there can be no direct evidence to prove the act of adultery, so
circumstantial evidence plays an important role. The Madhya Pradesh High
Court in the case of Samuel Bahadur Singh v. Smt. Roshini Singh (1960),
rightly pointed out that in India, if a male and female are living together under
the same roof without any connections or relations, it is not considered normal,
and so adultery can be inferred from the following circumstances:

 A male and female lived together in the same house for a long time.
 They are not related to each other by way of marriage or any other
relationship.
 They refused to return to their spouse.
 Both the parties cannot deny adultery because of circumstantial
evidence.
 They had the opportunity to commit adultery.
In the case of Chetan Dass v. Kamla Devi (2001), appellant and respondent
were married to each other according to Hindu ceremonies. After marriage, the
appellant had an extramarital affair with one of the nurses in the hospital where
he was working, and so his wife left him. He appealed, claiming that the
allegations made by the respondent and her act of deserting him without any
reasonable cause amount to mental torture. The Hon’ble Supreme Court
observed that a man cannot take advantage of his own wrong. However, the
decree for divorce was not passed because the wife, or respondent in this case,
was ready to continue her marriage and live with him only on the condition that
he must leave the other woman and end his adulterous relationship.

It must be noted that adultery as an offence has been decriminalised by the

Hon’ble Supreme Court in the case of Joseph Shine v. Union of India (2018).
However, it is still a ground of divorce under the Hindu Marriage Act, 1955,
which means that if a person commits adultery, he/she would not be punished
but the spouse can seek divorce.

Essentials of Adultery
1. One of the spouses involved in the intercourse with another person,
married or unmarried, of the opposite sex.
2. Intercourse should be voluntary and consensual.
3. At the time of the act, the marriage was subsisting.
4. There must be sufficient circumstantial evidence to prove the liability of
another spouse.

Cruelty
The concept of cruelty includes mental as well as physical cruelty. The physical
cruelty means when one spouse beats or causes any bodily injury to the other
spouse. But the concept of mental cruelty was added as the spouse can also be
mentally tortured by the other spouse. Mental Cruelty is lack of kindness which
adversely affects the health of the person. Well it is easy to determine the nature
of physical cruelty but difficult to say about mental cruelty

1. What is considered as Mental Cruelty against Husband by wife:

2. Humiliating the husband in front of his family and friends.
3. Undertaking the termination of pregnancy without husband consent.
4. Making false allegation against him.
5. Denial for Martial Physical Relationship without a valid reason.
6. Wife having affair.
7. Wife living an immoral life.
 8. The constant demand for money.
9. Aggressive and uncontrollable behaviour of Wife.
10. Ill-treatment to the husband parents and family.

What considered as Mental Cruelty against wife by Husband

1. False accusation of adultery.
2. The demand for dowry.
3. Impotency of Husband.
4. Force to abort the child.
5. The problem of drunkenness of husband.
6. Husband having affairs.
7. The husband lives an immoral life.
8. Aggressive and uncontrollable behaviour of the husband.
Humiliating the wife in front of family and friends

Desertion
Desertion means the permanent abandonment of one spouse by the other spouse
without any reasonable justification and without his consent. In General, the
rejection of the obligations of marriage by one party.

Essentials
1. Permanent abandonment of the other spouse.
2. Rejection of the obligation of marriage.
3. Without any reasonable justification.
4. No consent of another spouse.
In Bipin Chander Jaisinghbhai Shah vs Prabhawati

In this case, the respondent leaves the house with the intention to abandon his
wife. Later the wife approaches the court, but the defendant proved that even
though he left the house with the intention to desert, but he tried to come back
and he was prevented from doing so by the petitioner. Here, the defendant cannot
be held liable for desertion.
Conversion
If one of the spouses converts his religion to any other religion without the
consent of the other spouse, then the other spouse can approach the court and
seek the remedy of divorce.

Illustration

A, a Hindu has a wife B and two children. One day A went to church and converted
to Christianity without the consent of B, here B can approach the court and seek
for divorce on the ground of conversion.

In Suresh Babu vs Leela

In this case, the husband converts himself into Muslim and marries another
woman. Here the wife Leela filed a case and demanded the divorce on the ground
of conversion without her consent and cruelty.

Unsoundness of mind
Insanity means when the person is of unsound mind. Insanity as a ground of
divorce has the following two requirements-

1. The respondent has been incurably of unsound mind.

2. The respondent 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.

3. Leprosy
4. Leprosy is an infectious disease of the skin, mucous membranes, nervous
system etc. this disease is transmitted from one person to another. Thus it
is considered as the valid ground for divorce.

5. Venereal Disease
 6. Under this concept, if the disease is in communicable form and it can be
transmitted to the other spouse, then this can be considered as the valid
ground for divorce.

Presumption of Death
In this case, the person is presumed to have died, if the family or the friends of
that person does not hear any news about the person alive or dead for seven
years. It is considered as the valid ground for divorce, but the burden of proof is
on the person who demands the divorce.

Concept of Divorce with Mutual Consent

As per Section 13B, the person can file the petition for divorce by mutual consent
of both the parties. If the parties want to dissolve their marriage as a mutual
consent are required to wait for one year from date of marriage. They have to
show that they are living separately for one or more year and not able to live with
one another.

There was no provision related to divorce by mutual consent till 1976. It was in
the 1976 Amendment that the provisions for divorce by mutual consent was
added. It is given under Section 13B of the Act and is retrospective in nature,
which means that it is applicable to marriages solemnised before the
commencement of the 1976 Amendment Act. According to the Section, both the
parties can jointly file a petition for divorce by mutual consent on the grounds
that they have been living separately for a year or more and cannot live
together and resume their married life. They must also provide that they both
have mutually decided to end their married life.

The Section also provides that when the petition has been filed, parties would
have to wait for six months, after which they can bring the motion again in the
court for dissolution of marriage. If the parties do not come to court after six
months and within eighteen months from the date the petition was filed, it
would be presumed that they have withdrawn the petition. If the petition is not
withdrawn, the court would hear the parties and after necessary inquiry
presume that the averments made are true and pass a decree of divorce.

Essentials
The ingredients, or essential conditions, to seek divorce by mutual consent are:

 The petition must be filed jointly by the husband and wife.

 They must be living separately for a year or more.
 They have mutually agreed to bring their married life to an end.
 There is no possibility of resuming married life.

Grounds of divorce specifically available to

wife
The Act also provides certain grounds of divorce to women, i.e., wives, on which
they can seek divorce. These are given under Section 13(2) of the Act and are
as follows:

 Bigamy by husband;
 Act of rape, sodomy, bestiality committed by husband;
 No cohabitation between husband and wife for one year or more after
the decree for maintenance has been passed;
 If the marriage was solemnised before attaining the age of 15 years,
the wife can repudiate the marriage.

Bigamy
A wife can seek divorce if the husband has committed the offence of bigamy
according to Section 13(2)(i) of the Act. Section 17 of the Act further punishes
bigamy. The conditions for the offence are:

 Marriage is solemnized after the commencement or enforcement of the

Act.
 The party has a spouse living on the date of second marriage.
In the case of Lily Thomas v. Union of India (2000), the wife filed a complaint
against the husband, claiming that he converted to another religion and
married another woman of that religion, even though the first marriage is still
subsisting. The court held that even though he converted to another religion, he
had not divorced his first wife. He would be liable for the offence of bigamy, and
his second marriage would be void. The Supreme Court also observed that
religion is not a commodity and must not be exploited for worldly gain or
benefits.
Rape, sodomy or bestiality
If the husband is guilty of committing the offence or rape, sodomy, or bestiality,
the wife is entitled to seek divorce on this ground under Section 13(2)(ii) of the
Act. Rape as an offence is given under Section 375 of the Indian Penal Code,
1860 (IPC), while sodomy or bestiality fall under the category of unnatural
offences. According to Section 377 of the IPC, unnatural offences are those
where a person engages in carnal or anal intercourse against the order of
nature with any animal. Carnal intercourse with a person of the same sex or
opposite sex is sodomy, while if done with an animal, it amounts to bestiality.

Non-resumption of cohabitation after the decree of

maintenance has been passed
The Amendment Act of 1976 provided another ground to the wife to seek
divorce. According to Section 13(2)(iii) of the Act, if a decree or order of
maintenance has been passed under Section 18 of the Hindu Marriage Act,
1955, or Section 125 of the Code of Criminal Procedure, 1973 against the
husband, directing him to give maintenance to the wife in spite of whether she
was living apart, and there was no cohabitation between both of them for a year
or more after the passing of such a decree or order, the wife can claim divorce.

The essentials conditions to obtain divorce under this ground are:

 Petition must be filed by the wife.

 A decree of maintenance must be passed against the husband.
 There must be no cohabitation between husband and wife for a year or
more after passing of decree.

Repudiation of marriage
The Amendment Act of 1976 also gave the wife an opportunity to repudiate her
marriage if it was solemnised before she attained the age of 15 years. This is
given under Section 13(2)(iv) of the Act. However, she can do so only before
attaining the age of majority, i.e., 18 years. This is known as repudiation of
marriage. This clause applies irrespective of whether the marriage was
solemnised before or after the commencement of the Marriage Laws
(Amendment) Act, 1976.
Irretrievable breakdown of marriage as a
ground of divorce
It has been observed that the rules pertaining to divorce have been liberalised
especially under the Hindu Marriage Act, 1955. However, getting a divorce on
the basis of grounds related to fault theory is cumbersome, time consuming and
exhausting. It also causes mental and physical trauma and shame to the
parties. In order to avoid such situations, the Law Commission in India
proposed that the parties to a marriage must be allowed to seek divorce on the
ground of irretrievable breakdown of marriage and that it must be recognised as
a separate ground for divorce. This recommendation was made in the 71st Law
Commission Report. Further, it also suggested that a separation period of three
years must be used as the criteria in this regard.

No petition for Divorce within one year of

Marriage
As per Section 14, no Court will entertain the petition of divorce within the one
year of the marriage. But can be entertained if the matter is related to bigamy,
and where the consent of the spouse was taken through misrepresentation, fraud,
undue influence etc.

According to Section 14 of the Act, no petition can be filed for divorce within
one year of marriage. The object of this provision is to enable parties to a
marriage to make efforts to save their marriage and marital bond. It is also
based on public policy because marriage is Hindu is considered to be a
sacrament and has religious importance to it. The courts try to safeguard a
marriage till the end.

However, if there are exceptional hardships to the petitioner or exceptional

depravity by the respondent then the court can hear the application. While
deciding the application, the court must consider the interest of children born
and whether there is a chance of reconciliation between the parties. In the case
of Dr. Rajasi v. Dr. Shashank (2015), a petition was filed by husband
under Section 12(1)(c) for nullity of marriage and also to dissolve his marriage
by way of divorce within one year of his marriage on the ground that his wife
had suicidal tendencies and behaved inappropriately. He also contended that if
he would have known about the same, he would have not solemnised the
marriage. The Bombay High Court observed that the object of Section 14 is
laudable as it prevents hasty decision of dissolving the marriage within one year
however, in the present case, the husband was able to prove that there was
cruelty on the part of wife and it is difficult for him to live with her and so
ordered for dissolution of marriage.

Remarriage of Divorced Person

As per Section 15, after the marriage gets dissolved and no further petition was
filed by any of the spouses against the order of the court and the time for
appeal has expired. At that time it is assumed that both the spouse are
satisfied. Then only the divorced person can marry again.

According to Section 15 of the Act, a person has a right to remarry the person
he or she divorced. However, the following conditions must be satisfied:

 There was no right to appeal when the marriage was dissolved.

 There was a right to appeal but the time had elapsed.
 An appeal was filed by either of the parties but was dismissed.
It must be noted that this Section is only applicable to marriages that are
dissolved by divorce and not that are declared null and void under Sections
11 and 12 of the Act. In the case of Tejinder Kaur v. Gurmit Singh (1988), the
Hon’ble Supreme Court observed that a spouse who got the decree of divorce
cannot take away the right of the other to present a special leave petition
before the Supreme Court by marrying immediately after the decree of divorce
has been passed. He or she must wait for a reasonable time.