By Soumya Singh Chauhan, UILS, Chandigarh
“Editor’s Note: The Special Marriage Act of 1954 is on of the most important secular laws of the country. It allows people to marry irrespective of religion. This paper examines the matrimonial causes under the Act. It analyses provisions relating to restitution of conjugal rights and judicial separation, their scope and ingredients. It also studies the relative and absolute grounds for nullity of marriage and the legitimacy of children born out of such marriages. Finally, the paper examines the grounds for divorce under the Special Marriage Act, and the requirements of each of these grounds.”
The main reason behind passing of the Special Marriage Act, 1954 was to provide a special form of marriage for the people of India and all Indian nationals in foreign countries, irrespective of the religion or faith followed by either party. The Act originated from a piece of legislation proposed during the late 19th century.
In 1872 Act III was enacted but later it was found inadequate for certain desired reforms, and Parliament enacted a new legislation.
The Special Marriage Act, 1954 replaced the old Act III, 1872. The new enactment had 3 major objectives:
- To provide a special form of marriage in certain cases,
- To provide for registration of certain marriages and,
- To provide for divorce.
The matrimonial causes under this act are-
Restitution Of Conjugal Rights
On marriage, it is the primary duty of the parties to live together for the performance of their marital obligations. This right to cohabit with each other is called the right to ‘consortium’. It is the right that husband and wife have to each other’s society, comfort and affection. The origin of the action seems to lie in the early law concept of husband having a quasi-proprietary right over the wife. It included his wife’s society as well as her services. With the passage of time, the concept of consortium assumed a distinct footing of mutuality. Conjugal rights cannot be enforced by the act of either party and a husband cannot seize and detain his wife by force. If a spouse makes a breach of this obligation without any justifiable cause, the other can go to the court for the restoration of his conjugal rights.[i]
Section 22, of Chapter V of the Special Marriage Act, 1954, lays down the conditions on which a petition for restitution of conjugal rights would lie.
22. Restitution of conjugal rights.- When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply to petition to the district court for restitution of conjugal rights, and the court, on being satisfied of the truth of the statements made in such petition, and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.
Explanation. Where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.[ii]
The following are the elements of the section:
- The respondent has withdrawn from the society of the petitioner.
- The respondent has withdrawn without reasonable cause.
- The burden of proof of reasonable cause is on the respondent
- The petition is filed in the district court
- The court is satisfied with the truth of the statement and there is no other ground for the denial of the relief.[iii]
This section corresponds to S. 9 of the Hindu Marriage Act 1955, S. 36 of the Parsi Marriage and Divorce Act 1869, S. 32 of the Divorce Act 1869 and S. 13 of the Matrimonial Causes Act 1965.
Where a spouse has withdrawn from the society of the other without reasonable cause, the aggrieved party may apply to the competent court for restoration of society and restitution of conjugal rights, on which the court will, in a proper case, make decree to that effect. A conjugal right is one vested in the spouse on marriage to live in a close society of each other for upholding the cause of matrimonial relations.[iv]
Withdrawal from society
The word ‘society’ occurring in the section means the same thing as consortium or cohabitation, i.e., living together as husband and wife in the place called ‘matrimonial home’. So it is evident that withdrawal from society of the other would mean withdrawal from the matrimonial home by either spouse that would involve a total loss of consortium like desertion.[v] Withdrawal from society involves two elements: animus and factum. This means that the withdrawing spouse has an intention to put the cohabitation to an end and secondly, mere intention to withdraw would not amount to withdrawal unless it is coupled with factum of separation on the part of withdrawing spouse.[vi]
Cohabitation does not necessarily mean that parties are living together under the same roof but there may be states of cohabitation where they see as much of each other as they can, and yet are not separated.
Kay v. Kay[vii]: A man may be cohabiting with his wife even if he is away on a visit or on business because the conjugal relationship is not determined in any shape or form thereby.
G v. G[viii]: A husband cannot be taken as having deserted his wife without reasonable cause because his work in life compels him to live away from her.
The principles of Shastric law were that the wife is bound to live with her husband and to submit herself to his authority. This rule of law that gave husband alone the right to establish a matrimonial home in preference to the wife was based on a custom, which reflected the condition of the age in which the custom was practiced. Moreover, the right of the husband to establish a matrimonial home is not a proposition of law, it is simply a proposition of ordinary good sense arising from the fact that husband is usually the bread earner and has to live near his work. In such circumstances it becomes quite natural that the husband should have the right for the choice of matrimonial home.[ix] The Constitution of India gives an equal status to both the sexes, thus both have an equal right to pursue their career. Now the casting vote as to the choice of matrimonial home is not with the husband or wife but it is a matter, which has to be decided amicably between them.[x]
Case study: Wife’s refusal to give up job
The question as to what amounts to withdrawal from society has come before our courts in several cases in an interesting manner: does the wife’s refusal to give up her job at the instance of the husband amount to withdrawal from the society of the husband? The question came for consideration before the Punjab High Court in several cases and it was answered in the affirmative. In the cases Tirath Kaur v. Kirpal Singh[xi], Gaya Prasad v. Bhagwati[xii], and Kailashwati v. Ayodhiya Prakash[xiii], the courts held that the husband has a right to decide the matrimonial home and the wife must resign her job and live with him. As opposed to this extreme opinion the other view, as held in S. Garg v. K. M. Garg[xiv], is that in the present scenario of the society the wife cannot be prevented from taking up employment and cannot be forced to reside in the same place her husband is living. Neither party has a casting vote and the matter must be settled by agreement between the parties, by a process of give and take and by reasonable accommodation.[xv]
Without reasonable excuse
Once the petitioner proves that the respondent has withdrawn from his society, the burden of proving that he/she has withdrawn with reasonable excuse would be on the respondent. A petition for restitution will fail if it established that the respondent has withdrawn from the society of the petitioner with a reasonable excuse for doing so.
Under the modern matrimonial law, it will amount to reasonable excuse or reasonable cause:
- If there exists a ground on which, the respondent can claim any matrimonial relief. Thus if it is established that the petitioner has another wife (Parkash v. Parmeshwari[xvi]),is guilty of cruelty (Bejoy v. Aloka[xvii]),or is adulterous (Laxmi Malik v. Mayadhar Malik[xviii]) the petition will fail.
- If the petitioner is guilty of any matrimonial misconduct, not amounting to ground for a matrimonial relief, yet sufficiently weighty and grave.
- If the petitioner is guilty of such act, omission or conduct which makes it impossible for the respondent to live with him.
The jurisdiction to entertain a petition for restitution of conjugal rights under the section rests with the district court. District court has been defined in S. 2(e) of the Act. It means the principle civil court of original jurisdiction and a city civil court where there is such court. The jurisdiction of a district court can be invoked by an aggrieved party if any of the following qualifications is fulfilled:
- The marriage was solemnized within the local limits of that court.
- Both the husband and wife reside together within the local limit of that court.
- Both the husband and wife last resided together within the local limit of that court.
Effect of decree for restitution of conjugal rights
On passing of a decree of restitution of conjugal rights, the decree holder is required to execute the decree under Order. XXI, Rule. 32, CPC.[xix]
Under English law, before the Reformation, the marriage was regarded by the church as a sacrament that made it impossible to get a divorce. In the case of a marriage validly contracted, the ecclesiastical courts granted ‘divorcium a mens et thoro’, i.e., divorce from bed and board, not enabling the parties to remarry. This remedy was not divorce, i.e., it did not dissolve the marriage. This remedy is now called judicial separation, which allows the parties to live separate from each other, without dissolution of marriage tie, with a possibility of re-uniting and living together again if circumstances subsequently change.[xx]
Section 23 of the Special Marriage Act provides for the relief of judicial separation.
(1) A petition for judicial separation may be presented to the District Court either by the husband or the wife:-
(a) on any of the grounds specified in sub-section (1) and sub-section (1A) of
Section 27 on which a petition for divorce might have been presented, or
(b) on the ground of failure to comply with a decree for restitution of conjugal rights;
and the Court, on being satisfied of the truth of the statement made in such petition, and that there is no legal ground why the application should not be granted, may decree judicial separation accordingly.
(2) Where the Court grants a decree for judicial separation, it shall be no longer 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 statement made in such petition, rescind the decree if it considers it just and reasonable to do so.
This section corresponds to S. 10 of the Hindu Marriage Act 1955, S. 34 of the Parsi Marriage and Divorce Act 1936, S. 22 of the Divorce Act 1869 and S. 12 of the Matrimonial Causes Act 1965.[xxi]
Grounds for judicial separation
A district court will entertain a petition for judicial separation either from the husband or from the wife on any of the following grounds that the respondent:
- Has committed adultery;
- Has deserted the petitioner without cause for a period of two years immediately preceding the presentation of the petition
- Is undergoing a sentence of imprisonment for seven years or more for an offence as defined in the Indian Penal Code
- Has treated the petitioner with cruelty
- Has been incurably of unsound mind
- Has been suffering from venereal disease in communicable form
- Has been suffering from leprosy not contracted from the petitioner
- Has not been heard of as being alive for not less than seven years.
Where the petitioner is the wife, she can petition for judicial separation on the additional ground:
- That since the solemnization of marriage, her husband has been guilty of
- Sodomy, or
- Bestiality; or
- That there has not been any cohabitation between her and the husband for not less than one year after passing a decree or order of maintenance against her husband in her favour, or
- That there has been non-compliance with a decree for restitution of conjugal rights by her husband.
The grounds aforesaid are similar to the grounds for divorce under S. 27 of the Act.[xxii]
Power of the court
On presentation of the petition, the District Court must be satisfied as to the truth of the statement made in such petition. If the court is satisfied, it will pass a decree of judicial separation. After the passing of the decree, the parties are at liberty to live apart from each other. But the court may, on subsequent application by either party, rescind the decree of judicial separation if it considers it just and reasonable to do so[xxiii]. In a petition for divorce, if the petitioner fails to establish the alleged ground for divorce, though facts do establish a ground for judicial separation, the court has power to pass a decree of judicial separation, even though no such prayer has been made in the petition, as held in Bhagwan v. Amar Kaur[xxiv].
The District Court will exercise jurisdiction for the petition of judicial separation provided:
- The marriage of the parties was solemnized, or
- The husband and wife reside, or
- Both the parties resided together within the local limits of that court as provided in S. 31(1) of the Special Marriage Act.[xxv]
Effect of decree
The decree of judicial separation entitles the parties to live separately and cohabitation as the essential of marital relation is not obligatory on either party. But it does not break the marital status of husband and wife. No one can remarry till the decree for divorce. Either party may present a petition for divorce to the district court on the ground that there has been no resumption of cohabitation as between the parties for a period of one year or upwards after passing a decree for judicial separation.[xxvi]
Nullity Of Marriage
The law of nullity relates to the pre-marriage impediments. The subject matter of impediments to marriage is covered under capacity to marry. If there exist certain impediments, parties cannot marry each other. If they marry, despite impediments, their marriage may not be valid. These impediments are usually divided into two:
- Absolute impediments: If absolute impediments exist, a marriage is void ab initio, i.e., it is an invalid marriage from the beginning.
- Relative impediments: If relative impediments exist, a marriage is voidable, i.e., it may be avoided by one of the parties to the marriage in case he or she desires.
These impediments have given rise to the classification of marriage into Void and Voidable Marriages.[xxvii]
A void marriage is no marriage, i.e., it does not exist from its beginning. It is called a marriage because two persons have undergone the ceremonies of marriage. Since they absolutely lack the capacity to marry, they cannot, just by undergoing ceremonies of marriage, become husband and wife. In other words, no legal consequences flow from a void marriage. In respect of void marriages no decree of court is necessary. Even when the court passes a decree, it merely declares that the marriage is null and void. It is not the decree of the court which renders such a marriage void. It is an existing fact that the marriage is void and the court merely makes a judicial declaration of the fact. Either party can make a petition of nullity to the marriage under section 24 of the Special Marriage Act, 1954.[xxviii]
24. Void marriage- (1) Any marriage solemnized under this Act shall be null and void and may, on a petition presented by either party there to against the other party, be so declared by a decree of nullity if:-
(i) any of the conditions specified in clauses (a),(b),(c) and (d) of section 4 has not been fulfilled, or
(ii) the respondent was impotent at the time of the marriage and at the time of the institution of the suit.
(2) Nothing contained in this section shall apply to any marriage deemed to be solemnized under this Act within the meaning of Section 18, but the registration of any such marriage under Chapter III may be declared to be of no effect if the registration was in contravention of any of the conditions specified in clauses (a) to (e) of Section 15:
Provided that no such declaration shall be made in any case where an appeal has been preferred under Section 17 and the decision of the District Court has becomes final.
This section corresponds to s. 11 of the Hindu Marriage Act, 1955, s. 18 and 19 of the Divorce Act 1869 and s. 9 of the Matrimonial Causes Act 1965.[xxix]
Grounds for void marriage:
A marriage may be declared void by a decree of nullity on the following grounds:
- Any of the conditions specified in clauses (a), (b), (c) and (d) of section 4 of the act has not been fulfilled. These conditions are as follows:
- Neither party has a spouse living at the time of marriage. The first marriage should be a valid marriage.
- Neither party is incapable of giving a valid consent
- The male has completed 21 years of age and the female the age of 18 years
- The parties are not within the degrees of prohibited relationship.
- The respondent was impotent at the time of marriage and at the time of institution of suit. In case of impotency the initial burden is on the petitioner wife to prove impotency of the respondent husband.[xxx]
A voidable marriage is perfectly valid so long as it is not avoided. It can be avoided only on the petition of one of the parties to the marriage. If one of the parties does not petition for annulment of marriage, the marriage will remain valid. If one of the parties dies before annulment, no one can challenge the marriage and it will remain valid forever. So long as it is not avoided, all the legal consequences of a valid marriage flow from it. Section 25 of the Special Marriage Act lays down the grounds for voidable marriages.
25. Voidable marriage:- Any marriage solemnized under this Act shall be voidable and may be annulled by a decree of nullity if:-
(i) the marriage has not been consummated owing to the willful refusal of the respondent to consummate the marriage , or
(ii) the respondent was it time of the marriage pregnant by some person other than the petitioner, or
(iii) the consent of either party to the marriage was obtained by coercion of fraud, as defined in the Indian Contract Act, 1872 (9 of 1872);
Provided that, in the case specified in clause (ii) the Court shall not grant a decree unless it is satisfied:-
(a) that the petitioner was at the time of the marriage ignorant of the facts alleged.
(b) that proceeding were instituted within a year from the date of the marriage. and
(c) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the grounds for a decree.
Provided further that in the case specified in clause (iii), the Court shall not grant a decree if:-
(a) proceedings have not been instituted within one year after the coercion has ceased or, as the case may be, the fraud had been discovered, or
(b) The petitioner has with his or her free consent lived with the other party to the marriage as husband and wife after the coercion had ceased or, as the case may be, the fraud had been discovered.
This section corresponds to S. 12 of the Hindu Marriage Act 1955, S. 19 of the Divorce Act 1869, S. 32 of the Parsi Marriage and Divorce Act 1936 and S. 9 of the Matrimonial Causes Act 1965.[xxxi]
Grounds for voidable marriage
- Non-consummation of marriage: The marriage has not been consummated owing to the willful refusal of the respondent. In Sunil K. Mirchandani v. Reena S Mirchandani, where the parties had been living together for about 5 months and letter written by husband to wife shows his satisfactory sexual relations with her, it could not be a ground for annulment of marriage under s. 25(1) of the Act.
- Pre-marriage pregnancy: The presumption of law is that a child born during the continuance of a valid marriage or during 280 days after dissolution that is within the gestation period, is legitimate unless proven otherwise by strong evidence. There are certain limitations to the right of the petitioner to institute proceedings on this ground of pregnancy of the respondent at the time of marriage by a person other than the petitioner. The court in such cases shall not grant a decree of nullity unless it is satisfied:
- That the petitioner was quite ignorant of the fact of pregnancy at the time of marriage.
- That proceedings were instituted within one year of the date of the marriage
- That no marital intercourse with the consent of the petitioner has taken place since the discovery of the facts alleged.
- Coercion or fraud: If the consent of either party to the marriage was obtained by coercion or fraud as defined in S. 15 and 17 respectively of the Indian Contract Act 1872, the marriage can be avoided.
Section 15 defines coercion as committing or threatening to commit, any act forbidden by the Indian Penal Code or the unlawful detaining or threatening to detain, any property, to the prejudice of any person whatsoever, with the intention of causing any person to enter into an agreement.
Section 17 of the Indian Contract Act defines fraud, which means and includes any of the following acts committed by a party to a contract or with his connivance, or by his agent, with the intent to deceive another party thereto or his agent or to induce him to enter into the contract:
- The suggestion as to a fact, which is not true by one who does not believe it to be true.
- The active concealment of a fact by one having knowledge or belief of the fact
- A promise made without any intention of performing it
- Any other act fitted to deceive
- Any such act or omission as the law specifically declares to be fraudulent.
In Gitika Bagchi v Subhabrota Bagchi[xxxiii], where the wife concealed the fact that she is older by 3 years than her husband, this amounted to fraud as contemplated in s. 25(iii) of the Act. In Asha Qureshi v Afaq Qureshi[xxxiv], suppression of fact by wife that she was married before and a widow at the time of second marriage is a material fact and as such it amounts to fraud exercised on her second husband, he is entitled to decree of nullity.
In case of coercion or fraud the court shall not grant a decree of nullity if
- Proceedings have not been instituted within one year after the coercion had ceased or the fraud had been discovered.
- The petitioner has with his or her free consent lived with the respondent after the coercion has ceased or the fraud had been discovered.
In such circumstances the acquiescence of the petitioner will be presumed to such an act or omission, and the right of the petitioner on these scores will be waived.
Legitimacy Of Children Of Void Or Voidable Marriages
Section 26 aims at giving conferring a status of legitimacy on the children begotten before the decree of nullity is passed. Where a decree of nullity is granted in respect of void or voidable marriage, it will be deemed to be a decree of dissolution for the specific purpose of conferring the status of legitimacy on the children begotten before the decree is made. But the child from such a marriage shall not have any rights in or to the property of any person other than the parents. In those cases by a legal fiction the child shall be deemed to be not a legitimate child of his parents.[xxxv]
Divorce puts an end to the marriage; the parties revert back to their unmarried status, and are once again free to marry. Section 27 of the act lays down the grounds for divorce.
27. Divorce- (1) subject to the provision of this Act and to the rules made there under, a petition for divorce may be presented to the District Court either by the husband, or the wife on the ground that the respondent-
(a) has, after the solemnization of the marriage. Had voluntary sexual intercourse with any person other than his or her spouse, or
(b) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition or
(c) is undergoing a sentence of imprisonment for seven years or more for an offence as defined in the Indian Penal Code 1860 (45 of 1860),
(d) has since the solemnization of the marriage treated the petitioner with cruelty , or
(e) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder to such a kind, and to such all extend that the petitioner cannot reasonably be expected to live with the respondent.
Explanation:-In this clause:-
(i) the expression “mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia,
(ii) the expression” psychopathic disorder” means a persistent disorder or disability of mind (shelter or not including sub-normally of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the respondent, and whether or not it requires or is susceptible to medical treatment, or
(f) has been suffering from venereal disease in a communicable form or
(g) has been suffering from leprosy, the disease not having been contracted from the petitioner or
(h) 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 the respondent if the respondent had been alive,
Explanation:- In this sub-section, the expression “desertion” means desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the willful neglect of the petitioner by the other party to the marriage and its grammatical variations and cognate expressions shall be construed accordingly.
(1A) A wife may also present a petition for divorce to the District Court on the ground:-
(i) that her husbands has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality,
(ii) that in a suit under Section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceedings 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
(2) subject to the provisions of this Act and to the Rules made there under, either party to a marriage, whether solemnized before or after the commencement of the Special Marriage (Amendment) Act, 1970 (29 of 1970), may present a petition for divorce to the District Court on the ground:-
(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties , or
(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties
This section corresponds to s. 10 of the Divorce Act 1869, S. 13 of the Hindu Marriage Act 1955, S. 32 of the Parsi Marriage and Divorce Act 1936 and S. 1 of the Matrimonial Causes Act 1955.
Grounds for divorce[xxxvi]
The District Court is the proper forum to make a petition for divorce on any of the following grounds:
Since the solemnization of marriage the respondent has committed adultery. Adultery is the matrimonial offence where there is consensual sexual intercourse between a married person and a person of the opposite sex other than the spouse, during the subsistence of the marriage, as held in Dawn Henderson v D Henderson[xxxvii]. In view of the provision (a) of cl. (1) of s. 27 of the Act, a single act of adultery may be a sufficient ground for divorce. It is not necessary to prove that the respondent has been ‘living in adultery’ as required in S. 13 of the Hindu Marriage Act 1955.
In case of adultery, the court must be satisfied beyond reasonable doubt that adultery was committed. But adultery can very rarely, if ever, be proved by direct evidence of witness. In most cases therefore the evidence must be circumstantial in character and depends on the probabilities relating to the situation. However, as in the case of Jyotish Chandra Guha v Meera Guha[xxxviii], mere production of love letters written to wife by a person will not prove adultery in the absence of wife’s reciprocity.
The respondent must have deserted the petitioner without cause for a period of not less than 2 years before the presentation of the petition. Desertion in its essence means intentional permanent forsaking and abandonment of one spouse by the other without the other’s consent and without reasonable cause. It is a total repudiation of the obligations of marriage. Desertion is not a withdrawal from a place but from a state of things necessary in a marital life. It is a continuing offence and must exist for a period of two years immediately preceding the presentation of the petition. The essential elements of desertion are factum, or physical eparation and animus or intention to desert. All these ingredients must continue throughout the statutory period. The Doctrine of Constructive Separation is one when one spouse is forced by the conduct of the other to leave the matrimonial home. The spouse responsible for the driving out is guilty of desertion. There is no substantial difference between the case of a man who intends to cease cohabitation and leaves his wife and the case of a man who compels his wife by his conduct with the same intention to leave him.
In Geeta Jagdish Mangtani v Jagdish Mangtani,[xxxix] the wife had deserted the husband after 7 months of marriage on the ground that he had insufficient income. She started living with her parents and gave birth to a child. She made no attempts to rejoin the husband and continued with her teaching job. She was aware of the income status of husband before marriage. Under the circumstances desertion on her part was proved. In Sunil Kumar v Usha[xl], the wife left the matrimonial home due to unpalatable atmosphere in the matrimonial home and the reign of terror prevailing there drove her out. It was held that she was not guilty of desertion.
The respondent is undergoing a decree of imprisonment for seven years or more for an offence defined in the Indian Penal Code. But no decree for divorce shall be granted on this ground unless the respondent has already undergone at least three years’ imprisonment out of the said period of seven years or more prior to the presentation of the petition.
Since the solemnization of marriage the respondent must have treated the petitioner with cruelty. The word ‘cruelty’ has not been defined in the Act and as such a broad meaning may be attached to it. The legal position of cruelty in a divorce proceeding is laid down in Russell v. Russell[xli]. The legal conception of cruelty is generally described as conduct of such character as to have caused danger to life, limb or health (bodily or mental) or as to give rise to a reasonable apprehension of such danger.
In a divorce proceeding on the ground of cruelty the petitioner must prove that the respondent has behaved in such a way that the petitioner could not in the circumstances be called upon to endure and that misconduct has caused injury to health or a reasonable apprehension of such injury. The standard of proof required is preponderance of probability and not beyond all reasonable doubts as in criminal proceedings.
Unsoundness of mind
The respondent must be incurably of unsound mind. The onus of proof is on the petitioner that the respondent is 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. The petitioner will also have to prove that the unsoundness of mind is incurable. If the court comes to a finding that the unsoundness of mind of the respondent is incurable, it does not trouble itself with the degree of unsoundness of mind for the purpose of decision, as held in Lock v Lock.[xlii]
The respondent must be suffering from venereal disease in a communicable form. Where it is not contracted from the petitioner who gives evidence to the effect that he or she has not had intercourse with any person other than the respondent, it is a prima facie case that the respondent has committed adultery. It is then for the respondent to rebut the prima facie case against him by calling medical evidence to show that
- The respondent was not suffering from the disease, or
- The respondent contracted the disease innocently, or
- The respondent had not committed adultery.[xliii]
The doctor who has personally examined the respondent can only give evidence to this effect.
The respondent should be suffering from leprosy and the disease must not have been contracted from the petitioner. It is not necessary to prove that the disease in a communicable form.
Not heard of as being alive
The respondent has not been heard of as being alive for not less than seven years by the people who are closely related to the respondent. There is a presumption of death of the person who is not heard of for 7 years by those who would naturally have heard of him if he had been alive. The burden of proving that the respondent is alive is on the person who affirms it.
Husband guilty of rape, sodomy or bestiality
The wife can make a petition for divorce in the District Court on the ground that since the solemnization of marriage her husband has been guilty of rape, sodomy and bestiality. These are also grounds for criminal prosecution. But the conviction of the husband on these grounds of criminal offence is not sufficient to grant a decree of divorce. The commission of offence must be proved de novo either by calling witnesses by the petitioner or by admission of the guilt by the respondent the court will decide whether corroboration is desirable of any evidence.
Decree or order of maintenance obtained by wife
The wife can also make a petition for divorce on the ground that she has obtained a decree or order of maintenance and she is living apart since the passing of such decree or order and cohabitation between her and her husband has not resumed.
No resumption of cohabitation after a decree of judicial separation
The parties have not resumed cohabitation for not less than one year after passing of a decree of judicial separation as between them. The intention of the legislature to give the parties such space and time is the possibility of reconciliation. In the absence of any such change of mind of the parties, the legislature thinks that there is no justification for keeping the right of cohabitation available to the parties for any further period. Each case is to be decided according to its peculiar facts and circumstances. A single act of cohabitation does not amount to resumption of cohabitation.
Non compliance with a decree for restitution of conjugal rights
There has been no restitution of conjugal rights between the parties for a period of not less than one year after the passing of a decree of restitution of conjugal rights.
Divorce by Mutual Consent
Section 28 Divorce by mutual consent: – (1) Subject to the provisions of this Act and to the rules made there under, a petition for divorce may be presented to the District Court by both the parties together on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.
(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in subsection (1) and not later than eighteen months] after the said date, if the petition is not withdrawn in the meantime, the District Court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit that a marriage has been solemnized under this Act, and that the averments in the petition are true, pass a decree declaring the marriage to be dissolved with effect from the date of the decree.
This section has incorporated in the doctrine of discharge from contractual obligation by mutual consent of the parties. A special marriage is nothing but a contractual bondage that can be severed like ordinary contract. Considering the vital importance and necessity of marital life in society a special statute is made incorporating the basic principles of law of contract therein. The Special Marriage Act has gone far ahead the English law o dissolution of marriage, and has simplified the severance of matrimonial tie even by mutual consent.[xliv]
Even if dissolution of marriage by mutual consent is sought by a joint petition of the husband and wife still it is incumbent on the court to comply with the mandatory provisions of s. 34(2) of the Act to make attempt for reconciliation between the parties.
Edited by Kudrat Agrawal
[i] Dr. Basant K. Sharma, Hindu Law, ed. 3, 2011, Central Law Publications, Allahabad, p. 63-64.
[ii] Special Marriage Act, 1954.
[iii] Dr. Basant K. Sharma, Hindu Law, ed. 3, 2011, Central Law Publications, Allahabad, p.64.
[iv] H. K. Saharay, Laws of Marriage and Divorce, ed. 5, Eastern Law House, p. 318.
[v] Dr. Basant K. Sharma, Hindu Law, ed. 3, 2011, Central Law Publications, Allahabad, p. 65.
[vii] (1904) p. 382.
[viii] (1930) p.72.
[ix] Dr. Basant K. Sharma, Hindu Law, ed. 3, 2011, Central Law Publications, Allahabad, p. 65-66.
[xi] AIR 1964 Punj 28.
[xii] AIR 1966 MP 212 (DB).
[xiii] 1977 HLR 175.
[xiv] AIR 1978 Del 296.
[xv] Dr. Basant K. Sharma, Hindu Law, ed. 3, 2011, Central Law Publications, Allahabad, p. 67, 68,69.
[xvi] AIR 1987 P & H 37.
[xvii] AIR 1969 Cal 477.
[xviii] AIR 2002 Ori. 5.
[xix] [xix] H. K. Saharay, Laws of Marriage and Divorce, ed. 5, Eastern Law House, p. 319.
[xx]Dr. Basant K. Sharma, Hindu Law, ed. 3, 2011, Central Law Publications, Allahabad, p. 73.
[xxi]H. K. Saharay, Laws of Marriage and Divorce, ed. 5, Eastern Law House, p. 319.
[xxii]H. K. Saharay, Laws of Marriage and Divorce, ed. 5, Eastern Law House, p. 319-320.
[xxiii]H. K. Saharay, Laws of Marriage and Divorce, ed. 5, Eastern Law House, p. 320.
[xxiv] AIR 1962 Punj 144.
[xxv]H. K. Saharay, Laws of Marriage and Divorce, ed. 5, Eastern Law House, p. 320.
[xxvi] Section 27(2)(i), Special Marriage Act.
[xxvii] Paras Diwan, Modern Hindu Law, Allahabad Law Agency, ed. 19, 2010, p.117-118.
[xxix]H. K. Saharay, Laws of Marriage and Divorce, ed. 5, Eastern Law House, p. 321.
[xxxi] H. K. Saharay, Laws of Marriage and Divorce, ed. 5, Eastern Law House, p. 323.
[xxxii] H. K. Saharay, Laws of Marriage and Divorce, ed. 5, Eastern Law House, p. 323-325.
[xxxiii] AIR 1999 Cal 246.
[xxxiv] AIR 2002 MP 263.
[xxxv] H. K. Saharay, Laws of Marriage and Divorce, ed. 5, Eastern Law House, p. 326.
[xxxvi] H. K. Saharay, Laws of Marriage and Divorce, ed. 5, Eastern Law House, p. 329-334.
[xxxvii] AIR 1970 Mad 104 (SB).
[xxxviii] AIR 1970 Cal 266 (DB).
[xxxix] 2005 SC 3508.
[xl] AIR 1994 MP 1.
[xli]  AC 395.
[xlii]  1 WLR 1248.
[xliii] Anthony v Anthony,  35 TLR 559.
[xliv] H. K. Saharay, Laws of Marriage and Divorce, ed. 5, Eastern Law House, p. 336.