Matrimonial Relief under The Special Marriage Act, 1954

By Aditya Thejus Krishnan , School of Legal Studies, CUSAT

Editor’s Note: Marriage is seen as an institution of people coming together under the promise of spending a life time with each other. However, sometimes this union may not turn out to be as pleasant as expected. Unhappy marriages are socially undesirable and are a breeding ground for delinquent children. Thus, instead of living a life filled with regret and remorse, the parties may chose to part ways. This is a submission on the options thus given to a party frustrated by his/her marriage under the Special Marriage Act, 1954.

Introduction

“I promise to take care of him/her…in sickness and in health…and until death do us apart”

The above is an oft quoted line when it comes to love and especially marriage. These are promises made by the parties to a marriage at the time of marriage. Marriage is seen as an institution of people coming together under the promise of spending a life time with each other, or at least this was the case till recent times. The Catholics and the Hindus were under the firm faith that a marriage was a permanent union of man and woman and not even death itself could separate them, for they would be joined once again in the next life. But these are beliefs of the yester years, when family was at the core of social life.

In the present era however, marriage is nothing short of a contract entered into by two people who have the capacity to enter into the contracts and one that can be terminated at will subject to certain conditions. It is these conditions that are called “matrimonial relief”. On a personal level, one has to question why they are called “matrimonial reliefs”. Does it mean that the parties are provided with a relief from their marriage? If that is so, then why marry in the first place? But the answer to this is often simple; these measures have been introduced to ensure that, in case the marriage takes a wrong turn, the innocent party always has a solution. It has to be remembered that law has always been in existence to provide a helping hand, to protect the needy and guide the helpless. This is exactly what these provisions do.

Matrimonial relief is a topic that basically deals with the different solution available to a person who is part of a frustrated marriage. Marriage maybe a sacred union of man and woman, but it serves no purpose if the man and woman are incapable of living together. Unhappy marriages are socially undesirable and are a breeding ground for delinquent children. If the parties can no longer continue a proper relation, then why have a relation at all. Thus, instead of living a life filled with regret and remorse, the parties are given an option, they can fist apply for their marital rights to be reinstated or they can live separately and see if they still want to continue and if that also does not work, they can go for a divorce which  is the final option. Once divorced, the parties are no longer bound by marital ties.

This is a submission on the options thus given to a party frustrated by his/her marriage under the Special Marriage Act, 1954

Nullity of Marriage

 The concept of a marriage being a nullity from the very beginning or being annulled subsequent to the marriage is a concept of English origin from the times of the ecclesiastical courts which exercised jurisdiction over every aspect of marriage. The ecclesiastical doctrine laid down that marriage was not regarded as consummated if parties have not become one flesh by sexual intercourse, and consequently if one of the parties was impotent and therefore unable to consummate the marriage, he or she lacked the capacity to marry. Further, annulling a voidable marriage was given retrospective effect. According to ecclesiastical law, a marriage was either valid forever or never, in cases similar to the above, the marriage was declared void ab initio. Such uncontrolled and unrestrained power in the hands of the religious leaders to declare marriages void and bastardize the issue was a cause of great concern to the royal courts.

 It was situations like this that lead to the question, whether laws which in spite of their ecclesiastical authority character should force such arbitrary rules upon the common man. It was as an answer to this question that laws were divided into (a) civil and (b) canonical. It was further decided that a marriage in violation of the former would be void and latter would voidable. It was also understood as a general principle that the validity could be questioned only by the parties to a marriage and further that if one of the spouses died, such a question could never arise.

Void Marriage

A marriage which arises on account of the fact that the parties have no capacity to marry, have in fact married undergoing the requisite rites and ceremonies of marriage. Such a marriage is a misnomer, a contradiction and is void ab initio. The essential feature of such a marriage is that no legal consequences arise from it, i.e. no rights and obligation arise from it. Further since a void marriage is no marriage at all, a decree of nullity is not necessary, as a decree merely makes a judicial declaration of an existing fact.[i]

Grounds of void marriage

A marriage performed in violation of absolute impediments is void. Under the SMA, a marriage is void on the following grounds:[ii]

  • Either party has a spouse living at the time of marriage.
  • Either party was at the time of marriage incapable of giving a valid consent in consequence of unsoundness of mind or though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and procreation of children or has been subject to recurrent attacks of insanity.
  • The bride was below 18 years in age and bridegroom was below age of 21 years at the time of marriage
  • Parties were within the degree of prohibited relationship.
  • The respondent was impotent t the time of institution of the suit.

These grounds do not apply to marriages registered under the Act. The registration however maybe cancelled on the following grounds:

  • Marriage was bigamous
  • Either party was an idiot or lunatic at the time of marriage
  • No valid ceremony of marriage was performed between the parties
  • One of the parties or both were under the age of 21 years at the time registration
  • Parties are within the degrees of prohibited relationship

 Voidable Marriage

A voidable marriage is one which is valid until it is avoided. It can be avoided by a petition by either party to a marriage if it violates conditions requisite to make a marriage valid. If, however none of the parties petition for an annulment, it will remain valid. If one of the parties dies, the validity cannot be questioned. The marriage will give rise to rights and obligations as long as it is valid.

Grounds of voidable marriage:-

Under SMA, a marriage is voidable on the following grounds:

  • Non consummation of marriage on account of wilful refusal of the respondent to do so
  • Pre-marriage pregnancy of the respondent of which the petitioner was not the cause and of which the petitioner was at the time of marriage ignorant, and marital inter course had not take place with the consent of the petitioner after the knowledge of pregnancy and further that the petition  is presented within a year from the date of marriage
  • Petitioners consent was obtained by fraud or force, provided that the petitioner did not live with the respondent as husband or wife after the discovery of fraud or cessation of force and provided further that the petition was presented within one year of the discovery of fraud or cessation of force.

Pre-Marriage Pregnancy

Pre-marriage pregnancy is a ground for voidable marriage under the SMA[iii]. This ground has its origin in English and if often called a special kind of fraud. It has to be noted that this ground talks about pre-marriage pregnancy lone and not pre-marriage unchastity. Even if the woman is unchaste before the marriage and she had delivered an illegitimate child, the marriage could not be avoided, since unchastity is not a ground of annulment of marriage[iv]. The conditions to be roved here are,

  1. Respondent was pregnant at the time of marriage
  2. She was pregnant from a person other than the petitioner
  3. Petitioner was not aware of respondent’s pregnancy at the time of marriage
  4. Petition must be presented within one year of the marriage under the SMA
  5. No marital intercourse should take place with the consent of the petitioner after he had known of wife’s pregnancy

It is essential that all these conditions must be fulfilled before a petition can be filed. In case of this particular ground the burden of proof is on the petitioner who must establish all the aforesaid requirements. Also if the petition is not presented within the time limit specified under the Act, it will become time-barred and the petitioner will be left with no remedy.

Fraud or Force

Broadly the ground uses the terms fraud and force. The SMA, 1954 uses the words coercion and fraud. The requirements are:

  1. Consent of the petitioner was obtained by fraud or coercion
  2. Petition must be presented within one year of the discovery of fraud or cessation or coercion
  3. Petitioner must not have lived with the respondent, as husband or wife, as the case maybe, after the discovery of fraud or coercion.

Force

Force i99n this context does not mean merely physical force it also includes mental agony and torture. English authorities lay down that whatever owing to some natural weakness of mind or on account of some fear, whether entertained reasonably or unreasonably, but nonetheless entertained really, or when a party is in such a mental state that he finds it almost impossible to resist the pressure, it will amount to duress as in such a case there is no real consent. This is what coercion means under the SMA[v].

Strong advice and persuasion does not come within this definition. This is primarily because in most cases of arranged marriage some element of persuasion is present and it would be absurd to include all such cases as forceful and inclusive of coercion. Further it is also to be noted that for the purpose of personal laws in India, the terms force, coercion, duress etc mean the same.

Fraud

It basically means situation sand circumstances as to show want of real consent to marriage. The main element here is deceit. Unlike the Law of Contracts, misrepresentation either innocent or fraudulent will not terminate the marriage. The important aspect here is respect to the fact that has been fraudulently represented. If it a crucial element in the marital relation then it will affect the marital relation. For example if there is a misrepresentation with respect to the ceremonies or identity of the party. Under the Act the following are classified as fraudulent:

  • Fraud as to the nature of the ceremony

Shiram v. Taylor[vi] is a case where the parties went through with a ceremony of marriage though the husband had no intention to regard it as a real marriage.

  •  As to the identity of the person

C v. C[vii] is a case where W married H in the erroneous belief that he was well known boxer called Miller.

  •  Concealment of disease

Amarnath v. Layyabati[viii] is a case where concealment of venereal disease lead to nullification of the marriage. It was also held that some cases like syphilis will not be sufficient ground.

  •  Concealment of religion or caste unchastity

Leelamma v. Dilip Kumar[ix] is an example where thewife married H under the impression that he was a Christian belonging to an ancient family, when in fact he turned out to be an Ezhava.

  •  Concealment of unchastity or illegitimate birth.

Harbhajan v. Brij[x] is a case where H married W under the assurance that she was still a virgin. It was however revealed that she had earlier given birth to an illegitimate child. The court refused to grant the petition saying that this will be valid only if it can be proved that the husband attaches great importance to her chastity

Several other factors, like concealment of age, financial status etc. Have aso been considered as fraud in several other instances. The above list though not a comprehensive one deal with the most important items.

Impotency

Impotency means an inability of either spouse to consummate the marriage. It can also take the form of a wilful refusal to consummate. Under the SMA[xi], this ground renders the marriage null and void; the requirement is two-fold:

  • Respondent was impotent at the time of marriage
  • Continued to be so till the presentation of the petition.

A person can be said to be potent if his or her physical or mental condition makes consummation of marriage a physical impossibility. Even if the person is in a position to consummate, a wilful refusal or repugnancy towards the act will constitute impotency. A man’s inability to achieve erection and therefore have sexual inter-course and a woman’s physical inability to have sexual inter-course[xii] is also impotency.

The key question however is with regard to consummation of marriage. A marriage can be said to be consummated when parties to the marriage have sexual-intercourse after marriage. And for this it has been held that if the husband does not achieve full penetration in the normal sense, it would not amount to consummation[xiii]. However the use of contraception poses no threat, and the use of such measures will not lead to a conclusion of non-consummation and hence impotency[xiv]. Thus, non-consummation as such is not a ground for voiding marriage. Only if the non consummation is a s a result of the person’s impotency it will lead to a valid ground for nullity. The reason for the non-consummation can however be two-fold in itself:

Physical Impotency

Malformations or structural defects in the organs constitute physical impotency. If a person is capable of consummation after undergoing surgery or any kind of medical treatment, it cannot be held as a physical impotency any longer. A refusal to undergo surgery will however draw an inference of impotency.

In M v. S[xv], the wife who was not in a position to have sexual intercourse on account of structural malformations underwent a surgery as a result of which she became capable of consummation. It was held that the wife in this particular case as not impotent. In Laxmi v. Babulal[xvi], a wife who had no vagina was given an artificial vagina of two and a half inches it was held that this did not cure her impotency. It is submitted that it is the incapacity to perform the sexual act that is important and not the extent of satisfaction gained by the other party that is to be questioned.

Psychological Impotency

When a person suffers from a psychological or moral repulsion or repugnancy towards the act, them the person can be said to be psychologically impotent. In Jagdish v. Seetha[xvii] , immediately after the marriage, the husband and wife lived together three days and nights, but the husband failed to consummate the marriage. The court held that it was a fair inference that non-consummation of marriage was due to the husband’s knowing refusal arising out of his incapacity, nervousness and hysteria. As a result the marriage was nullified.

The basis of this ground is in the fact that people desire to have offspring and I one of the parties is sterile, that desire cannot be fulfilled. If a party to the marriage is impotent or becomes sterile without the consent of the other spouse, it frustrates the wishes of the latter and this is a sound ground for divorce.

Divorce

The matrimonial laws relating to divorce and separation in India have been greatly influenced by the English matrimonial law viz., the Matrimonial Causes Act, 1857. Under the Act, the husband can claim separation on the ground of wife’s adultery, but the wife had to prove adultery accompanied with bigamy, incest, cruelty, two years desertion and the like. This was typical of the Victorian era. However modifications arose via the Matrimonial Causes Act, 1923, which put both spouses at par and subsequently in 1937 when three more grounds were introduced into the Act. The Indian Matrimonial Laws have closely followed these developments and have built codes that closely follow the British model.

The Special Marriage Act, 1954 as amended under the Marriage Laws (Amendment) Act, 1976 recognises the following eight fault grounds for divorce[xviii]:

  • Adultery
  • Two years desertion
  • Respondent undergoing a sentence of imprisonment for seven years or more for n offence under IPC, 1860
  • Cruelty
  • Venereal diseases in a communicable form
  • Leprosy
  • Incurable insanity or continuous or intermittent mental disorder, and
  • Presumption of death

Further two specific grounds have been provided for the wife alone[xix]. They are:

  • The husband, since the solemnization of marriage has been guilty of rape, sodomy or bestiality, and

  • Cohabitation has not been resumed for one year or more after an order of maintenance has been passed under section 125 of the Criminal Procedure Code.

Adultery

Under the SMA, 1954 the ground of adultery has been worded thus:

“….the respondent has after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his/her spouse…”

The Act has recognised adultery itself as an offence and no additional offence has to be proved in order to obtain a decree of divorce or judicial separation.

Definition

The term adultery has not been specifically defined in any of the personal laws. From the section as stated above, it is the consensual sexual intercourse between a married person and a person (whether married or unmarried) of the opposite sex, not being the other’s spouse. Simply put, any spouse who engages in extra-marital intercourse is guilty of adultery.

Sexual intercourse: the ground of adultery pre-supposes a carnal union between a man and a woman. A mere attempt alone will not suffice. Some penetration, however brief is necessary though full penetration is not required[xx].

In Subramma v. Saraswati[xxi] the court observed, “if an unrelated person is found along with a young wife, after mid-night in her bedroom in actual physical juxtaposition, unless there is some explanation forthcoming for that which is compatible with an innocent interpretation, the inference that a court of law can draw must be that two were committing an act of adultery together.[xxii]

Consensual: the act of sexual intercourse has to be voluntary. Thus if the wife can show that she was raped or lacked mental capacity[xxiii] to consent, it will not amount to adultery. Similarly, intercourse when the person is unconscious or under the influence of drugs or liquor will not amount to adultery.

Burden of Proof

The view that was followed in India in the mid 20th century was that the burden was on the petitioner to prove beyond reasonable doubt that the respondent was guilty of the offence of adultery. But such a burden as heavy as the one imposed petitioner in criminal cases was subsequently seen as unnecessary in the case of adultery. The present position thus is that, it can be proved by a preponderance of evidence; it need not be beyond all reasonable doubt[xxiv]. Further, it has also been recognised that due to the difficulty of obtaining direct evidence in cases of adultery, the mere existence of circumstances (which irresistibly lead to the conclusion of adultery) will do. This however excludes casual remarks which maybe corroborated.

Once the offence of adultery has been established, a decree of dissolution of marriage should be made, unless there is some bar to relief.

Desertion

Section 27(1) of the SMA, 1954 deals with ‘desertion as a ground for divorce’. The section requires a period of atleast two years desertion as a pre-condition to a decree for divorce.

DEFINITION

Desertion means “the wilful and unjustified abandonment of a person’s duties or obligation especially to….a spouse or family”[xxv], or in simpler words it is the rejection of, either party to a marriage, all the obligations that arise from the wed-lock. The explanation to clause (1) of S. 27 of the SMA gives the following definition,

“Desertion of the petitioner by the other party to the marriage without any reasonable cause and without the consent or against the wishes of such party, and includes wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions.”

Thus desertion is an unreasonable withdrawal from the company of the spouse and of the exiting state of affairs. In simple English it can also be termed as “abandonment”.

 Desertion can basically be of the following types:

  • Actual desertion
  • Constructive desertion
  • Wilful neglect

Elements of Desertion

It is pertinent to note that any form of desertion as noted above will and should constitute of the following elements:

  • A cessation of cohabitation or the factum of separation
  • An intention to abandon or the animus deserdendi
  • Lack of consent from the abandoned spouse.
  • Lack of reasonable excuse
  • Statutory period of three years

 Actual desertion

Factum of separation and animus deserdendi: it is a well recognised principle that for a person to approach a court of the law for a decree or order of divorce on the ground of desertion, both the factum and the animus must coexist. The mere existence of a mental intention is not enough; it has to be accompanied by a fact situation i.e. abandonment has to take place in fact. The same applies for the existence of a mere fact situation unaccompanied by a mental intention to abandon.

In Gopal v. Mithilesh[xxvi]

The court stated that an intention to abandon must be established. A person may go out on business or to study and maybe stranded for two years, but this will not amount to desertion since all along there is an intention and moreover an expectation that the person will return.

However, if a person leaves the matrimonial home with the intention of returning, but subsequently changes his attitude, the moment such an intention is formed, he becomes a deserter.[xxvii]

An excellent example can be seen in the case of Lacchman v. Meena[xxviii]

Meena was married to a physician and after their marriage she lived with her husband and his joint family. Their lives were affected by the partition of India in 1947. Meena first settled with an uncle in Columbo and then and then for her home at Lonavala. Towards the end of 1948 Lacchman got a home in Bombay and the couple settled there.  In 1954 Meena left the marital home and went to her parent’s home and thereafter to South East Asian towns where her father had business establishments. Lacchman wrote to her several times asking her to return. Unsatisfied with the replies, he finally wrote a letter hurling wild and nasty allegations and then filed for a decree of judicial separation. Meena’s story included tales of how she was mistreated by her in-laws and how she was abused. Her story revealed that she had no freedom at home and was subject to cruel treatment. His story was of how Meena was refused cooperation with the homely matters and her rude and disrespectful conduct.

The court after considering the testimony and evidence including the letters came to the conclusion that the wife had left the marital home and the letter he sent to her did not have such an impact as to have her refuse to come back. Thus it was evident that the wife had deserted the husband. A decree was passed in favour of the husband.

A similar situation occurred in Bipin Chandra v. Prabhavati[xxix],

Here the wife left the marital home on being questioned of her sincerity to the marriage. Her father attempted reconciliation between the two. Several attempts were made by family members, but all in vain. The husband got a registered notice served on his wife through hi solicitor charging her with adultery. Subsequent to this, he was informed by his mother that she was returning to join him in their matrimonial home whereupon he sent a telegram to her father, “Must not send Prabha..”Husband filed for divorce on the ground of desertion.

The Supreme Court in this case held that the telegram by the husband terminated a valid attempt at reconciliation made by Prabha. They further stated that desertion is an inchoate offence and ceases to be complete until the petition is filed for divorce. The court thus gave its judgment in favour of the wife.

The above two cases represent two fundamental aspects of desertion i.e. the fact of separation and the mental intention is necessary for desertion to happen; and the differentiating factor in the above two cases being the fact that the desertion is terminated as soon as the deserting spouse expresses an intention to come back.

To sum up:

  • At any time when animus and factum coexist desertion commences
  • The intention to forsake must be a permanent intention not to return
  • The deserted spouse should not have consented and should not have provided any reasonable cause for desertion
  • The intention to desert should continue during the entire statutory period of desertion rather till the presentation of petition
  • If at any time before the presentation of the petition, the deserting spouse changes his/her intention to continue in desertion and wishes to return but is prevented from doing so by the other, he/she would not be in desertion; rather it might be the other party who may become deserter thenceforth.

Constructive Desertion

Constructive desertion has been clearly defined by the Privy Council in Lang v. Lang[xxx][xxxi]

it has been recognised that the party truly guilty of disrupting the home is not necessarily or in all cases the party who first leaves it. The party who stays behind maybe by reason of conduct on his part making it unbearable for the wife with reasonable respect, or power of endurance to stay with him, so that the is the party really responsible for the breakdown of marriage. He has deserted her by expelling her, by driving her out.”

Simply put it means, one spouse’s misconduct that forces the other spouse to leave the marital abode[xxxii] . Thus if one spouse by his words or conduct compels the other spuse to leave the matrimonial home, the former will be guilty of desertion, though it is the latter who physically separated from the other.

Jyotish Chandra v. Meera[xxxiii]is an interesting case under the SMA, 1954,

After her marriage in 1945, the wife came to live with her husband. The averments of the wife were that she found him cold, indifferent and sexually abnormal and perverse. Shortly after, he left for England; he continued to be cold even on his return. On his instance she went to England to continue her education. His continued to be cold even on her short visits. On returning her mental torture and agony continued. She realised that her husband wanted her to live separately. In 1954, she left the home and stayed with her sister and mother in a rented flat. On attempting reconciliation he mistreated her father and threatened her and also struck at her.

The court held that the husband had throughout the marital life been cold and indifferent. In the context of her suffering and her loneliness of a frustrated married life, the husband created such a situation that it was impossible for her to stay any longer in the matrimonial home. The husband thus forcing the wife by his conduct to leave the matrimonial home became himself guilty of desertion, even though it was the wife who had left the matrimonial home.

Wilful Neglect

The SMA includes the concept of wilful neglect as also a part of desertion. Though no specific case has come p under this heading, Subba Rao, J., Obiter, observed[xxxiv] that wilful neglect was designated to cover constructive desertion. Wilful neglect connoted a degree of neglect which is shown by a degree of abstention. But failure to discharge or omission to discharge, every marital obligation will not amount to wilful neglect. But failure to discharge basic marital obligations will amount to wilful neglect.

Want of Reasonable Excuse

It has been recognised that if there is a valid reason as to why the deserting spouse has been staying apart then there can in fact be no desertion. If for example the wife stays away due to her occupation.

Indira v. Shellenrda[xxxv]is a good example. Here the wife was accused of having deserted the husband and of leaving her matrimonial home. It was however proved on her behalf that she had stayed away to complete her studies and that there was every intention to return once this was completed. The court accepted this as a valid reason.

Lack of Consent

The very fact that the deserting spouse has left the marital home with the consent of the other would be enough to invalidate the ground of desertion. But this aspect has to be looked into carefully. As Buckley, LJ observed,

“Desertion does not necessarily involve that the wife desires her husband to remain with her. She may be thankful that he has gone, but he may nevertheless have deserted her.”[xxxvi]

The expression used in the SMA is “without the consent” or “against the wishes of such party”. Thus instances where the parties have entered into a “separation agreement”[xxxvii] or a “compromise agreement”[xxxviii] will not be covered under this heading.

This is however not an absolute disqualification to the ground of desertion. Consent can at any point of time be revoked. As soon as this consent is revoked, desertion begins, provided all other conditions are satisfied. Further, if the consent is obtained by force or under pressure, it will not be deemed valid[xxxix].

Statutory Period of Desertion

For desertion to constitute a ground for divorce or judicial separation, it must be for a continuous period of two years. Desertion is however not complete when the statutory period is over.

Termination of Desertion

Termination is one of the outstanding features of the ground of desertion. The guilty party can at any moment bring the offence t an end by any of the following acts:

  • Resumption of cohabitation
  • When separation becomes consensual
  • When there is an offer to return
  • Supervening event may remove the duty to cohabit

Resumption of cohabitation: if at any time before the presentation of the petition, spouses resume cohabitation, desertion comes to an end. Resumption must be by mutual consent and it should imply complete reconciliation[xl]. Thus if the deserting spouse return for a couple of days without any intention of staying, it does not bring the desertion to an end.

In Dhrubajyoti v. Lila[xli](under SMA) wife left her husband’s home and did not return to the marital home for more than two years. Thereafter one day she went home she went to her husband’s home with her relatives and left before the husband came back. It was held that she was still in desertion.

Another interesting situation to be addressed is whether resumption f marital intercourse implies a termination of desertion? The answer to the same has been answered in Perry v. Perry[xlii]. Here the wife resumed marital intercourse with the husband but in all other respects she repudiated the relation. It was held that she was still in desertion.

When separation becomes consensual: if the spouses enter into a separation agreement, desertion would be at an end similarly if a decree of judicial separation is obtained, the desertion would come to an end from the date of decree of judicial separation.

Offer to return: in desertion, there is intent to destroy the marriage. But, if the deserting spouse seeks to return home, makes an offer to return, the intention to destroy the marriage is no longer there and therefore desertion will come to an end; the basic principle being that a spouse who has been deserted must take back his deserted spouse.

The case of Bipinchandra v. Prabhavati as already mentioned above is a classic example. When the wife offered to return the husband replied, “Do not send Prabha…” which frustrated her intention to return. But if the deserting spouse has been guilty of behaviour which entitles the other to stay away, such as when deserter has been guilty of adultery, a simple offer to return will not be enough to terminate desertion and the deserted spouse is not bound to accept it; were it not so, it would amount to forcing condonation on him[xliii].

An offer to return must satisfy the following two conditions:

It must be a genuine and bona fide attempt at reconciliation. In Shyam Chand v. Janaki[xliv], a wife who was turned out by the husband from the matrimonial home, filed maintenance proceedings. These proceedings were compromised and the husband agreed to have the wife back and maintain her. But subsequently he backed out and filed proceedings for divorce. His petition was rejected. He filed an appeal. At the hearing of his appeal, he made an offer to take back the wife. The wife rejected it. The court held that the offer was not genuine and sincere.

The second requirement is that the offer should not be subject to unreasonable conditions. In Dunn v. Dunn[xlv] , the wife deserted the husband and took with her the three daughters born from the marriage. Subsequently, the husband asked her to return but refused to take back the daughters the wife declined. On the husband’s petition for divorce on the ground of desertion, the court held that desertion is terminated  when the husband refused to take the daughters as it was unreasonable condition and there was nothing in the conduct of the daughters to justify his condition.

Supervening event: if the deserted spouse commits an act which justifies the other to continue to live apart, desertion will stand terminated unless it can be shown that the  deserter would not  in any case have returned.

Burden Of Proof

It is established law that the burden of proving all aspects of desertion is on the petitioner. Thus, it is for the petitioner to establish both animus factum of desertion. It is for him to establish that desertion was without reasonable cause, against his wishes and without his consent, and that it subsisted throughout the statutory period. At one time, it was the established view that desertion must be proved beyond all doubts.  However the present view is that it may be established by balance of probabilities.

Cruelty

Under the SMA cruelty is a ground for both divorce and judicial separation as per Section 23 and 27 respectively. The ground of cruelty is often considered as one of the most difficult grounds to decide upon. As a result courts have never gone into giving an accurate meaning to the term cruelty. The following definition has been provided in Blacks dictionary, “The intentional and malicious infliction of mental or physical suffering on living creature.”[xlvi]

Definition

Under the SMA, the ground is worded thus: the respondent “has, after the solemnization of the marriage, treated the petitioner with cruelty.”

Cruelty is a changing conception. Initially it was only actual physical harm caused to person that was considered as cruelty, now however the concept of cruelty includes both mental and physical aspects. Further, according to the early conception, the intention to be cruel was also seen as an essential ingredient. This position has also changed. Thus the definition has been shaped and re-shaped to fit the needs of the society and to ensure maximum protection to the weak and helpless. It is however important to keep in mind, at this stage, Lord Denning’s warning in 1950, that “if the doors of cruelty were opened too wide, we should soon find ourselves granting divorce for incompatibility of temperament”[xlvii]

In Gollins v. Gollins[xlviii] , the intention to be cruel was also seen as part of cruelty. Here the husband who was incorrigibly lazy and heavily in debt. Due to his complacency, the wife had to take care of all these matters. This caused her severe mental agony and anguish and to do all this while the husband sat around all day. It was held ht though the husband was not intentionally cruel, his conduct did attribute this.

This position has created a lot of confusion. Whether mens rea is actually necessary for a cruel act is a question that has been raised in several cases subsequent. It was ultimately seen that it was not an essential element[xlix] as the only thing that is important is whether the conduct of the party amounts to cruelty.

Cruelty can be basically of two kinds:

Physical Cruelty

Acts of physical violence by one spouse against the other resulting in injury or causing reasonable apprehension thereof have been traditionally considered to amount to cruelty. Saptami v. Jagdish [l] is a case where the wife continuously subject to cruel treatment and abused and insulted. It was considered as a clear case of cruelty.

Similarly in Ashok v. Santosh[li] , during the intercourse, the wife used to pull the flaccid penis of her husband. The Delhi High Court held that this amounts to cruelty as it can cause extreme pain.

Mental Cruelty

The mental element of cruelty has gained popularity in the recent times. Although intention is no longer an essential element of cruelty, the mental state cannot altogether be ignored. In Praveen Mehta v. Inderjeet Mehta[lii] the Apex court has held that mental cruelty is a state of mind and feeling thereof, a matter of inference and this inference has to be drawn from the circumstances taken cumulatively.

It has to be noted at this stage that an unusually callous conduct or negligence alone cannot be proof of cruelty.  Dastane v. Dastane[liii] presents a high watermark case on mental cruelty. Mrs. Dastane used to make all sorts of vile, filthy and false allegations not merely against the husband but also all the members of the family. She vehemently abused him and swore to drag his entire family to ashes. She rebuked him publicly and even tore off her mangalsutra twice. This was a clear case of mental cruelty.

Many other instances such as a false accusation of unchastity[liv], demand for dowry[lv], drunkenness[lvi] etc have been held to be acts of cruelty.

Insanity

The ground of insanity under the SMA has been modifies by the amendment Act of 1976. The clause now runs as follows:

“Respondent 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.”

The explanation to this clause provides:

  • 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[lvii].
  • The expression “psychopathic disorder” means a persistent disorder or disability of mind 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[lviii].

The important element here is not if the person has been affected by a mental illness, but if it to such an extent that it makes survival with the person impossible. If this condition has been satisfied, then a decree for divorce will be granted. It would always be a question of fact as to whether mental disorder is of such a kind and such an extent that the petitioner is not reasonably expected to live with the respondent.

Leprosy

The ground of leprosy is covered by sub-clause (g) of clause (1) of S. 26 of the SMA, 1954. Unlike the other sections, there is a difference in the wording for the ground of leprosy in the Hindu Marriage Act and the SMA. Under the SMA, it is worded thus,

“The respondent has been suffering from leprosy, the disease not having been contracted from the petitioner.”

The difference between the present Act and the Hindu Marriage Act arises primarily due to the fact that the Hindu Act requires the person affected with leprosy to be both (a) incurable and (b) virulent.

However under the SMA, it seems there no special qualification for leprosy any type of leprosy will be a ground for divorce or judicial separation. However, because it includes any type of leprosy, it is cautioned that it is not as widely used to include within its ambit “white spots” which is in plebeian terms called leprosy. The Act expressly provides only one qualification to the ground of leprosy, that is should not have been contracted from the petitioner.

Venereal disease

This particular ground is covered under sub-clause (6) of clause (1) of section 26. It goes as follows,

“The respondent has been suffering from venereal disease in a communicable form.”

Here, it is to be noted that for the disease to be a valid ground for divorce or judicial separation, it must be in a communicable form. It is also submitted that a virulent venereal disease is also communicable and hence comes within this definition in the SMA.

In Mr. X v. Hospital Z[lix]  divorce was granted to the wife when the husband was discovered to be HIV positive. It was observed by the Court that since venereal disease is a ground for divorce, it implies that a person suffering from venereal disease prior to the marriage must be injuncted from entering into marriage.

The Act does not specify time duration for the disease. It is further immaterial under the present statute if the disease is curable or was contracted innocently. There are however always exceptions, congenital syphilis, for example, is not included within the expression “virulent venereal disease” or “venereal disease in a communicable form”

Presumption of death

It is now accepted in all systems of law that death dissolves marriage. However, will this be the same result, if there was no conclusive proof as to the death of the person?

In England, through Dhunbai v. Sorabji[lx] , it was held that a spouse can obtain a decree of dissolution of marriage on the basis of presumption of death. This still continues to be the position in England[lxi]. The same has been carried over by the legislators in India.

Under the SMA it is worded thus,

“The respondent has not been heard of as being alive for a period of seven hours or more by those persons who would naturally have heard of it, had that party been alive.”

This particular ground has some roots in the Evidence Act as well. Under the Evidence Act, a person is presumed dead if he is not heard as alive for seven years or more by those persons who would naturally have heard of him had he been alive[lxii]. Under the Evidence Act and the SMA, the burden of proof that the whereabouts of the respondent are not known for the requisite period by the concerned persons is on the party seeking relief[lxiii].

However, no spouse can presume himself as a widower or widow and remarry, by applying the presumption of death. If he does so, and the missing spouse return, the former will be guilty of bigamy and moreover the second marriage will be void. It can thus be deduced that once a person is presumed dead, the marriage is dissolved, and the person seeking relief is free to remarry. However, if the marriage is based on pure presumption without dissolving the former marriage, the subsequent marriage will be void, but no person can question this other than the missing spouse.

Seven years imprisonment

Seven years imprisonment is a ground only under some of the personal laws in India. Under the SMA, the ground runs thus,

“respondent is undergoing a sentence of imprisonment for seven years or more for an offence as defined in the Indian Penal Code.”[lxiv]

The section[lxv] clearly states that the person should be punished seven years for an offence as defined under IPC. Only if it satisfies this pre-condition will it be a valid ground for divorce.

Wife’s fault- grounds for divorce

RAPE, SODOMY AND BESTIALITY

Rape, sodomy and bestiality are special grounds which only the wife can avail under the SMA[lxvi]the ground runs thus’

“that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy and bestiality.”

Rape is a criminal offence under section 375 of IPC. Sodomy and bestiality are listed as unnatural offences under section 377, IPC.

A man is said to be guilty of rape when forces sexual intercourse on an unwilling woman, i.e. without her consent or consent has been obtained under fraud, force, misrepresentation or the like. A person thus guilty shall be punished with imprisonment for life or of either description or for a term which may extend to ten years and shall also be liable to fine[lxvii]. The exception to S. 375 however provides that a man is not guilty of raping his own wife, unless she is below fifteen years of age. If a man rapes his wife he shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both[lxviii].

Section 377 deals with unnatural offences. According to the section whoever has carnal sexual intercourse with a man, woman or animal shall be punished with imprisonment for a term which may extend to ten years and shall also be liable to fine. The explanation to this section further lays down that “penetration is sufficient to constitute carnal intercourse”. The above statement is equally applicable to rape as well.

It is because of the vile and unnatural nature of these offences that in Bamption v. Bamption[lxix] it was held that if a man commits sodomy on his wife without her consent, he is guilty of the offence and the wife my sue for divorce.

Non-Resumption of Cohabitation

This provision was added by the Marriage Laws (Amendment) Act, 1976. It runs as follows:

“ a wife may present a petition for the dissolution of her marriage on the ground-

  That in a……proceeding under section 125 of the Criminal Procedure Code, 1973 (2 of 1974)…., a decree or order, as the case maybe, 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[lxx]

Restitution of Conjugal Rights

The concept of restitution of conjugal rights has its roots in the fact that at time of marriage, the parties to the marriage have a right to enjoy each other’s consortium or company. In other words, it is a duty to cohabit.

Like many other remedies, the origin of this remedy goes back to feudal England, where marriage was considered as a property deal and the wife was seen as part of the man’s possession like all other chattel. It was this very same idea that was introduced into the British colonies including India. In India, a decree for the restitution of conjugal rights can still be executed by attachment of the respondent’s property[lxxi].

Section 22 of the SMA, 1954 covers the ground of restitution of conjugal rights. The provision in the SMA has been worded similar to Section 9 of the Hindu Marriage Act and runs as follows:

“when either the husband or the wife has without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the District Court, for the 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.”

The explanation to this section further provides that,

“where a question arises, whether there has been reasonable cause for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.”[lxxii]

It can thus be summarised that the following are necessary for a decree for the restitution of conjugal rights:

  • That the respondent has withdrawn from the society of the petitioner
  • That the withdrawal is without reasonable excuse or cause
  • That the court is satisfied about the truth of the statement made in such petition, and
  • That there is no legal ground why relief should not be granted

Judicial Separation

Judicial separation is often viewed as the lesser evil in comparison with divorce, since it leaves open a door for reconciliation. Ordinarily judicial separation may lead to reconciliation and divorce. It is important to note at this stage that the very intention of a marriage, no matter what personal law it comes under, is to ensure that the people who enter into the relationship are there for each other through thick and thin.  The intention of providing this particular relief is to give the parties an option to set aside their differences and if possible give their marriage another attempt. If this does not work, then the parties can very well apply for divorce.

The grounds for judicial separation under the SMA are the same as the fault ground provided for divorce. There is however one special ground that has been included viz. A decree for restitution of conjugal rights has not been complied with[lxxiii]. The grounds have been dealt with in detail under divorce.

Decree for Judicial Separation in a Petition for Divorce

 As already stated, it is widely recognised that judicial separation is the lesser of the two evils in comparison to divorce. It is thus often seen that courts grant a decree for judicial separation in a petition for divorce, even though no such prayer is made in the petition.

In a Chandra v. Suresh[lxxiv], a petition for divorce was filed in January 1966.the Divorce Court (Assistant District Judge) passed a decree of divorce on September 25th, 1967. On appeal, the High Court converted the decree of divorce to a decree of judicial separation on the latter’s patent appeal, the High Court said that the decree was effective from the date on which it was passed by the Divorce Court and since by the time the latter’s patent appeal came for hearing, a period of two years had elapsed since the passing of the decree of judicial separation, the petitioner was entitled to a decree of divorce. This means that the court was now compelled to grant a divorce which was not sought in the original petition.

However the courts do not have discretion to grant a decree of judicial separation when an order of divorce is sought under a ground that is not available for judicial separation. For example, the court has no power to pass a decree for judicial separation in a petition for divorce on the ground of presumption of death[lxxv].

 Edited by Kanchi Kaushik

[i] Lila v. Laxmi, 1968 All LJ 683

[ii] Section 24

[iii] Section 12(1)(d)

[iv] Surjeet v. Raj Kumar, AIR 1967 Punj 522

[v] H v. H, (1954) P 258

[vi] AIR 1952 Punj 226

[vii] (1942) New Zealand Law Review 35-49

[viii] AIR I959 Cal 779

[ix] AIR 1993 Ker 57

[x] AIR 1964 Punj. 359

[xi] Section 24(1)(ii)

[xii] Black’s Law  Dictionary, 9th edn., 2009 at 825

[xiii] Chaman v. Rupa, AIR 1966 J & K 68

[xiv] Baxter v. Baxter, (1947) 2 All ER 886

[xv] AIR 1963  Ker LT 315

[xvi] AIR 1973 Raj 89

[xvii] AIR 1963 Punj. 914

[xviii]  As under S. 27(1) of the Act

[xix] As under S. 27(1A) of the Act

[xx] Dennis v. Dennis, (1955) P 153

[xxi] (1996) 2 MLJ 263

[xxii] The case of England v. England, (1952) 2 All ER 784, however provides a contradictory view to that provided in this case

[xxiii] Lang v. Lang, (1890) 15  PD 245

[xxiv] Sari v. Kalyan, AIR 1980 Cal 374

[xxv] Black’s Law  Dictionary, 9th edn., 2009 at p. 511

[xxvi] AIR 1979 MP 316

[xxvii] Venei v. Nirmala, AIR 1987 Del 79

[xxviii] AIR 1964 SC 40

[xxix] AIR 1957 SC 176

[xxx] (1955) AC 402

[xxxi] Ibid at 417

[xxxii] Black’s Law  Dictionary, 9th edn., 2009 at p. 511

[xxxiii] AIR 1970 Cal 266

[xxxiv]In Lacchman v. Meena, AIR 1964 SC 40

[xxxv] AIR 1993 MP 59

[xxxvi] Haniman v. Haniman, (1909) P 23

[xxxvii] A situation where both parties have voluntarily entered into a contract for separation.

[xxxviii] Usually during the pendency of maintenance proceedings

[xxxix] Holroyd v. Holroyd, (1920) 30 TLR 479

[xl] Mummery v. Mummery, (1942) 1 All ER 553

[xli] AIR 1979 Ori. 93

[xlii] (1952) 1 All ER 1976

[xliii] Everitt v. Everitt, (1949) 1 All ER 904

[xliv] AIR 1966 HP 70

[xlv] (1965) 1 All ER 1043

[xlvi] Black’s Law  Dictionary, 9th edn., 2009 at 434

[xlvii] Kaslefaky v. Kaslefaky, (1950) 2 All ER 398 at 403

[xlviii] (1963) 2 All ER 966

[xlix] Suman Kapoor v. Sudhir Kapoor, AIR 2009 SC 589

[l] (1969) 87 CWN 502

[li] AIR 1987 Del 63

[lii] AIR 2002 SC 2582

[liii] AIR 1975 SC 153

[liv]Jagsish v. Saptami, ILR (1970) Cal 266

[lv] Adarsh v. Sarita, AIR 1987 Del 203

[lvi] Rita v. Brij, AIR 1984 Del 291

[lvii] Clause (1) of Section 4,  Mental Health Act, 1959.

[lviii] Clause (4) of Section 4,  Mental Health Act, 1959.

[lix] AIR 1999 SC 495

[lx] AIR 1938 Rang 263

[lxi] Matrimonial Causes Act, 1937

[lxii] Section 3

[lxiii] Section 108

[lxiv] Surjeet Kaur v. Jhujhar Singh, AIR 1980 P&H 274

[lxv] S. 27(1) (c)

[lxvi] Section 27(2)

[lxvii] Section 376, IPC

[lxviii] ibid

[lxix] (1959) 2 All ER 766

[lxx] Section 26 (IA)(ii) of the SMA, 1954

[lxxi] Order 21, Rule 32, Civil Procedure Code, 1898

[lxxii] See section 22 of the SMA, 1954

[lxxiii] Section 23(1) (b) of the SMA, 1954

[lxxiv] AIR 1971 Del 208

[lxxv] Section 27-A

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