S 13 Hindu Marriage Act

Question 1

Case Title: XXX v YYY
Amending act of 1976 on S 13 HMA

Answer 1

1. Referring to the Amending Act of 1976 of the HMA which introduced clauses (ia) and (ib) to Section 13 and Section 13A of the Act, that added various grounds for divorce.
2. the Court observed that the Statement of Objects and Reasons of the Amendment Act makes it clear that the intention of the legislature was to liberalize the grant of divorce.
3. On the question of burden of proof in cases of divorce, the Apex Court said that it lies on the petitioner. “However, the degree of probability is not one beyond reasonable doubt, but of preponderance.” The Court clarified.
4. Section 23 confers on the court the power to pass a decree if it is “satisfied” on matters mentioned in clauses (a) to (e) of the section.
5. Considering that proceedings under the Act are essentially of a civil nature, the word “satisfied” must mean “satisfied on a preponderance of probabilities” and not “satisfied beyond a reasonable doubt”.

Question 2

Shri Rakesh Raman vs Smt. Kavita
Citation. : 2023

Answer 2

1. In a notable judgment, the Supreme Court has held that irretrievable breakdown of marriage can be read as the ground of “cruelty” under Section 13 (1)(ia) of the Hindu Marriage Act for the dissolution of marriage.
2. A bench comprising Justices Sudhanshu Dhulia and JB Pardiwala made this notable observation while dealing with a case in which a couple had been living separately for 25 years. The couple had lived together as husband and wife for barely four years after which they fell apart.
3. The Supreme Court, while considering the husband’s appeal, noted that the relationship between the parties have become acrimonious over the years. The Court also noted that no child is born in the wedlock.
4. The bench further noted that irretrievable breakdown of marriage is not yet a ground for dissolution of marriage, though a recommendation to that effect was made by the Supreme Court in Naveen Kohli v. Neelu Kohli (2006)
5. The Law Commission of India, in its 71st and 217th reports, recommended that a marriage, which has de facto broken down, needs to be de jure recognised as such by the law.
6. Dealing with the present appeal, the bench said, Irretrievable breakdown of a marriage may not be a ground for dissolution of marriage, under the Hindu Marriage Act, but cruelty is.
7. It opined that “continuation of this marriage would mean continuation of cruelty, which each now inflicts on the other”.
8. In our considered opinion, a marital relationship which has only become more bitter and acrimonious over the years, does nothing but inflicts cruelty on both the sides. 9. To keep the façade of this broken marriage alive would be doing injustice to both the parties
9. It is therefore a ground for dissolution of marriage under Section 13 (1) (ia) of the Act”, the bench observed.
10. The long separation and absence of cohabitation and the complete breakdown of all meaningful bonds and the existing bitterness between the two, has to be read as cruelty under Section 13(1) (ia) of the 1955 Act.

1. IBOM can be read as ground for ‘cruelty under S. 13(1)(a) of HMA.
2. IBOM not yet but rec. in Naveen Kohli v Neelu Kohli -
3. 217 Law comm. report.
4. dead marriage kept alive constitutes as cruelty to both parties.
   5.

Question 3

Case Title : Shilpa Sailesh vs Varun Sreenivasan. 2023 - held

Answer 3

1. In a significant judgment, the Supreme Court has held that it can dissolve marriages on the ground of ‘irretrievable breakdown of marriage’, by invoking the powers under Article 142 of the Constitution, as per which the Supreme Court can issue extraordinary directions to do “complete justice”.
2. It may be noted that “irretrievable breakdown of marriage” is not a statutorily recognised ground for divorce. Therefore, the issue was referred to a Constitution Bench to decide whether the powers under Article 142 can be invoked to dissolve marriage on a ground which is not statutorily accepted.
3. “Fault theory” (by which marriages are dissolved only if a statutorily recognized fault is found on the part of one of the spouses) can be diluted by this Court to do ‘complete justice’ in a particular case
4. The courts must not encourage matrimonial litigation, and prolongation of such litigation is detrimental to both the parties who lose their young age in chasing multiple litigations. Thus, adopting a hyper-technical view can be counter-productive.
5. The judgment clearly stated that grant of divorce on the ground of irretrievable breakdown of marriage by this Court is not a matter of right, but a discretion which is to be exercised with great care and caution.
6. This Court should be fully convinced and satisfied that the marriage is totally unworkable, emotionally dead and beyond salvation and, therefore, dissolution of marriage is the right solution and the only way forward.

Question 4

Case Title : Shilpa Sailesh vs Varun Sreenivasan

Citation : 2023. Factors to be considered for irretrievable breakdown of marriage

Answer 4

Factors to be considered to hold that a marriage has irretrievably broken down?

The judgment authored by Justice Sanjiv Khanna refrained from laying down concrete factors which should be considered to decide if a marriage has been irretrievably broken down.
However, the judgment specified certain broad factors, which are illustrative. The Court should consider factors such as :
1. the period of time the parties had cohabited after marriage;
2. when the parties had last cohabited;
3. the nature of allegation made by the parties against each other and their family members
4. the orders passed in the legal proceedings from time to time, cumulative impact on the personal relationship;
5. whether, and how many attempts were made to settle the disputes by intervention of the court or through mediation, and when the last attempt was made, etc.
6. The period of separation should be sufficiently long, and anything above six years or more will be a relevant factor.
7. Question of custody and welfare of minor children, provision for fair and adequate alimony for the wife, and economic rights of the children and other pending matters, if any, are relevant considerations”, the Court stated

Question 5

Amardeep Singh v Harveen Kaur

Answer 5

The Constitution Bench noted that in Amardeep Singh, certain factors were mentioned which will warrant the waiving of the waiting period :
1. The statutory period of six months specified in Section 13B(2), in addition to the statutory period of one year under Section 13B(1) of separation of parties is already over before the first motion itself;
2. All efforts for mediation/conciliation including efforts in terms of Order XXXIIA Rule 3 CPC/Section 23(2) of the Act/Section 9 of the Family Courts Act to reunite the parties have failed and there is no likelihood of success in that direction by any further effort;
3. The parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties;
4. The waiting period will only prolong their agony

Question 6

Shilpa Sailesh vs Varun Sreenivasan

Citation : 2023 - on Section 13B of HMA

Answer 6

1. A Constitution Bench of the Supreme Court has held that it can invoke the special powers under Article 142 of the Constitution of India to waive the waiting period of 6 to 8 months prescribed for seeking divorce through mutual consent as per Section 13-B of the Hindu Marriage Act 1955.
2. Supreme Court can exercise power under Article 142(1) of the Constitution, in view of the settlement between the parties, and grant a decree of divorce by mutual consent dispensing with the period and the procedure prescribed under Section 13-B of the Hindu Marriage Act
3. As per Section 13-B of the Hindu Marriage Act, after filing the first motion seeking divorce through mutual consent, the parties have to wait for a minimum of six months and a maximum of 18 months before moving the second motion.
4. This ‘cooling off period’ is mandated by the legislature so as enable the parties to have an opportunity for introspection and re-think over the decision. However, this mandate for waiting period was found to be causing hardships in certain cases.
5. In 2017, a two-judge a two-judge bench of the Court in Amardeep Singh v. Harveen Kaur held that the six months waiting period as prescribed under Section 13B(2) of the HMA is not mandatory and that the same can be waived by the Family Court in exceptional circumstances.

Question 7

Delhi HC on housework being a ground of cruelty?

Answer 7

1. The Delhi High Court has observed that a husband expecting his wife to do household chores cannot be termed as cruelty.
2. Observing that when the parties enter into wedlock, their intent is to share the responsibilities of future life,
3. the bench said: In a catena of decisions, it has already been held that if a married woman is asked to do household work, the same cannot be equated to the work of a maid servant and shall be counted as her love and affection for her family.”
4. It added: “family. In certain strata, the husband takes over the financial obligations and wife accepts house hold responsibility. Such is the present case.

vvv

Question 8

Wife Turning Children Against Father Is Parental Alienation, Amounts To Grave Mental Cruelty: Delhi High Court

Answer 8

1. The Delhi High Court has observed that the act of a wife in trying to turn the children against the father is a clear case of “parental alienation”, which amounts to “grave mental cruelty.”
2. Such vindictiveness aimed to erode a father-daughter relationship is not only an act of extreme cruelty to the father but also gross inhumanity to the child
   3.

Question 9

Wife’s Conduct Of Attempting Suicide, Trying To Put Blame On Husband And His Family Amounts To Cruelty: Delhi High Court Upholds Divorce

Answer 9

1. The bench said that the husband, for about two years, was subjected to civil and criminal litigation by the wife’s conduct who had filed not only civil, but also criminal cases against him on unsubstantiated allegations
2. Such conduct of the appellant in attempting suicide and then trying to put the blame on the husband and his family members is an act of extreme cruelty as the family remanded under constant threat of being implicated in false cases

Question 10

V. Bhagat v. D. Bhagat,

Answer 10

1. the Apex Court said, “Mental cruelty in Section 13(1)(i-a).can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other.
2. If it is physical, it is a question of fact and degree. If it is mental, the enquiry must begin as to the nature of the cruel treatment and then as to the impact of such treatment on the mind of the spouse.”

Question 11

SC on what is cruelty

Answer 11

1. The word ‘cruelty’ under Section 13(1)(ia) of the Act of 1955 has got no fixed meaning, and therefore, gives a very wide discretion to the Court to apply it liberally and contextually.
2. What is cruelty in one case may not be the same for another.
3. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions. It may also depend upon their culture and human values to which they attach importance.”
4. The concept of cruelty differs from person to person depending upon his upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and their value system. (Samar Ghosh v Jaya Ghosh)
5. There can never be any straitjacket formula or fixed parameters for determining mental cruelty in matrimonial matters. The prudent and appropriate way to adjudicate the case would be to evaluate it on its peculiar facts and circumstances. (Samar Ghosh v Jaya Ghosh)

Question 12

S 13(1) HMA Explained?

Answer 12

1. Section 13(1) of the Act of 1955 sets contours and rigours for grant of divorce at the instance of both the parties.

Question 13

Reynolds Rajamani. V UOI

Answer 13

1. Justice O.Chinnappa Reddy, in his concurring opinion in Reynold Rajamani and Another v. Union of India and Another, (1982), took note of the position of women in a marital relationship and the consequent social and economic inequalities faced by the female spouse in view of divorce.
2. The resultant stigmatization hinders societal reintegration, making a woman divorcee socially and economically dependent.
3. Hence, Courts must adopt a holistic approach and endeavor to secure some measure of socio-economic independence for the woman.

Question 14

Dr. N.G. Dastane v. Mrs. S. Dastane, (1975)

Answer 14

To marry or not to marry and if so whom, may well be a private affair but the freedom to break a matrimonial tie is not. The society has a stake in the institution of marriage and therefore the erring spouse is treated not as a mere defaulter but as an offender.

Question 15

S 23(2) explained

Answer 15

1. Section 23(2)3 of the Act of 1955 postulates that the court before granting any relief under the Act shall, in the first instance, where it is possible in the nature and circumstances of the case, make every endeavour to bring about reconciliation between the parties. The proviso carves out certain exceptions.
2. The object and purpose of these provisions is to check any party taking advantage of social and economic inequalities between the sexes given the fact that on many occasions a divorce may solve one problem, but create another when the woman is separated both socially and economically

Question 16

Full para copy paste

Answer 16

we wish to clearly state that grant of divorce on the ground of irretrievable breakdown of marriage by this Court is not a matter of right, but a discretion which is to be exercised with great care and caution, keeping in mind several
factors ensuring that ‘complete justice’ is done to both parties. It
is obvious that this Court should be fully convinced and satisfied that the marriage is totally unworkable, emotionally dead and beyond salvation and, therefore, dissolution of
marriage is the right solution and the only way forward. That
the marriage has irretrievably broken down is to be factually determined and firmly established. For this, several factors are
to be considered such as the period of time the parties had
cohabited after marriage; when the parties had last cohabited;
the nature of allegations made by the parties against each other
and their family members; the orders passed in the legal
proceedings from time to time, cumulative impact on the
personal relationship; whether, and how many attempts were
made to settle the disputes by intervention of the court or
through mediation, and when the last attempt was made, etc. The period of separation should be sufficiently long, and anything above six years or more will be a relevant factor. But
these facts have to be evaluated keeping in view the economic and social status of the parties, including their educational qualifications, whether the parties have any children, their age,
educational qualification, and whether the other spouse and
children are dependent, in which event how and in what manner the party seeking divorce intends to take care and provide for the spouse or the children. Question of custody and welfare of
minor children, provision for fair and adequate alimony for the wife, and economic rights of the children and other pending
matters, if any, are relevant considerations

Question 17

Court on Best year’s of life for a couple.

Answer 17

1. The Court observed that if the best years of a person’s life are lost in the matrimonial mayhem, little is left for him/ her of valuable time and its enjoyment.
2. It is better in these circumstances to put an end to an unhappy marriage rather than prolong the suffering of the parties.

Question 18

What is Divorce

Answer 18

1. Term ‘divorce’ derived from latin term ‘divortium’ meaning to separate, cast aside, disconnect etc.
2. Divorce puts an end to the marriage.
3. The parties are no longer tied to each other legally, are not under any obligation to cohabit and are free to try other matrimonial options.
   3.

Question 19

DIvorce introduced in HMA when?

Answer 19

1. The prov. for divorce was introduced in HMA in 1955.
2. It altered the character of a Hindu marriage from an indissoluble union to one that can be culminated during the life time of the parties.
3. Only limited grounds were provided that included amongst other graver matriomonial offences on adultery insanity etc.
4. Obtaining divorce became slightly more flexible in 1976 when more grounds were added to obtain divorce by mutual consent.

Question 20

Section 14 HMA Explained?

Answer 20

1. a prayer for dissolution of marriage presented by any one of the party or even by mutual consent, within one year of solemnisation of the marriage will not be entertained by any court.
2. The rule is formalised under section 14 that puts an-embargo on the court not to entertain any petition for dissolution of a marriage by a decree of divorce within one year of the date of the-marriage, with accommodation of exceptional hardship cases

Question 21

Leprosy as a ground for divorce

Answer 21

1. Grounds like respondent is suffering from a venereal disease in a communicable form or insanity, or even virulent form of leprosy were considered as grounds for divorce.
2. Leprosy is however curable and has been taken out of the preview of grounds for divorce in 2019.

Question 22

Effect of Divorce

Answer 22

1. The term ‘divorce’ is derived from Latin word divortium and means - to separate, disunite, caste aside etc.
2. Divorce puts an end to the marriage.
3. The parties are no longer tied to each other legally, are not under any obligation to cohabit and are free to try other matrimonial options.
4. The inheritance rights between the parties also culminate.

Question 23

Development of divorce in Hindu Law

Answer 23

1. Under Hindu Law, marriage is considered as a holy union.
2. For a long time, divorce was considered as unthinkable.
3. After intense resistance, the provision of divorce was finally introduced in the HMA, 1955.
4. It altered the character of a Hindu marriage from an indissoluble union to one that can be culminated during the life time of the parties if a stipulated ground provided- by the legislature existed and was enforced.

Question 24

1964 amendment to HMA

Answer 24

The amendment in 1964 was instrumental in introducing and recognising the concept of breakdown of marriage and continuing trend, obtaining divorce became slightly more flexible when in 1976, more grounds for divorce were added including divorce by mutual consent.

Question 25

Family Courts act, 1984

Answer 25

1. As a mandatory measure, the parties were advised to explore options of conciliation and patching of differences rather than rush to courts on trivial matters with a petition of divorce within a short period of solemnisation of marriage.

Question 26

Apostasy, a ground for divorce under SMA?

Answer 26

Under the secular laws, apostasy is not relevant and if a person married under the SMA, 1954, or the Foreign Marriage act, 1969, converts, his/ her apostasy is not a ground for divorce.

Question 27

Fault or disability based grounds

Answer 27

1. Fault or disability refers to a situation, where one of the parties to the marriage is guilty of commiting either a grave matrimonial misconduct, or an ailment of serious nature, that may make cohabitation either very difficult or impractical.
2. In such situations, the innocent or the aggrieved party as opposed to the guilty party acquires a right to approach the court and pray for a decree of divorce.
3. The court in such cases also assesses the conduct of the petitioner, as in order to be called the aggrieved party he/she should not have contributed to the commission of such misconduct.
4. The grounds are -adultery, cruelty, desertion, apostasy, insanity, sufferance, from a venereal disease in a communicable form, renunciation of the world and unexplained absence for a period of 7 years leading to a presumption of death.

Question 28

S 13(1) HMA

Answer 28

Section 13. Divorce.

(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party–
1[(i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or
(ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or
(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or]
(ii) has ceased to be a Hindu by conversion to another religion; or
2[(iii) 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.
Explanation.–In this clause,–
(a) 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;
(b) the expression psychopathic disorder means a persistent disorder or disability of mind (whether or not including subnormality 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; or]
3* * * * *
(v) has 3* * * been suffering from venereal disease in a communicable form; or
(vi) has renounced the world by entering any religious order; or
(vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive; 4*
5* *
6[Explanation.In this sub-section, the expression desertion means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.]
7[(1A) Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground
(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of 8[one year] or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or
(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of 8[one year] or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.]
(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground,–
(i) in the case of any marriage solemnized before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner:
Provided that in either case the other wife is alive at the time of the presentation of the petition; or
(ii) that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or 9[bestiality; or]
10[(iii) that in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) (or under the corresponding section 488 of the Code of Criminal Procedure, 1898 (5 of 1898), a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards;
(iv) that her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.
Explanation.This clause applies whether the marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976).]

Question 29

S 13(ia) HMA

Answer 29

Section 13. Divorce.

(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party–
1[(i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or
(ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or
(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or]
(ii) has ceased to be a Hindu by conversion to another religion; or
2[(iii) 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.
Explanation.–In this clause,–
(a) 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;
(b) the expression psychopathic disorder means a persistent disorder or disability of mind (whether or not including subnormality 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; or]
3* * * * *
(v) has 3* * * been suffering from venereal disease in a communicable form; or
(vi) has renounced the world by entering any religious order; or
(vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive; 4*
5* *
6[Explanation.In this sub-section, the expression desertion means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.]
7[(1A) Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground
(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of 8[one year] or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or
(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of 8[one year] or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.]
(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground,–
(i) in the case of any marriage solemnized before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner:
Provided that in either case the other wife is alive at the time of the presentation of the petition; or
(ii) that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or 9[bestiality; or]
10[(iii) that in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) (or under the corresponding section 488 of the Code of Criminal Procedure, 1898 (5 of 1898), a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards;
(iv) that her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.
Explanation.This clause applies whether the marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976).]

Answer 30

Section 13. Divorce.

(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party–
1[(i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or
(ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or
(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or]
(ii) has ceased to be a Hindu by conversion to another religion; or
2[(iii) 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.
Explanation.–In this clause,–
(a) 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;
(b) the expression psychopathic disorder means a persistent disorder or disability of mind (whether or not including subnormality 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; or]
3* * * * *
(v) has 3* * * been suffering from venereal disease in a communicable form; or
(vi) has renounced the world by entering any religious order; or
(vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive; 4*
5* *
6[Explanation.In this sub-section, the expression desertion means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.]
7[(1A) Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground
(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of 8[one year] or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or
(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of 8[one year] or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.]
(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground,–
(i) in the case of any marriage solemnized before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner:
Provided that in either case the other wife is alive at the time of the presentation of the petition; or
(ii) that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or 9[bestiality; or]
10[(iii) that in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) (or under the corresponding section 488 of the Code of Criminal Procedure, 1898 (5 of 1898), a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards;
(iv) that her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.
Explanation.This clause applies whether the marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976).]

Question 31

S 13(ii) HMA.

Answer 31

Section 13. Divorce.

(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party–
1[(i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or
(ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or
(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or]
(ii) has ceased to be a Hindu by conversion to another religion; or
2[(iii) 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.
Explanation.–In this clause,–
(a) 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;
(b) the expression psychopathic disorder means a persistent disorder or disability of mind (whether or not including subnormality 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; or]
3* * * * *
(v) has 3* * * been suffering from venereal disease in a communicable form; or
(vi) has renounced the world by entering any religious order; or
(vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive; 4*
5* *
6[Explanation.In this sub-section, the expression desertion means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.]
7[(1A) Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground
(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of 8[one year] or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or
(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of 8[one year] or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.]
(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground,–
(i) in the case of any marriage solemnized before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner:
Provided that in either case the other wife is alive at the time of the presentation of the petition; or
(ii) that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or 9[bestiality; or]
10[(iii) that in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) (or under the corresponding section 488 of the Code of Criminal Procedure, 1898 (5 of 1898), a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards;
(iv) that her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.
Explanation.This clause applies whether the marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976).]