Divorce

 

Section 13B of HMA

1. 13-B - Divorce by Mutual Consent
1. Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both parties to a marriage together, whether such marriage was solemnized before or after the commencement of Act, 1976 on ground that they have been living separately for 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 6m after the date of the presentation of the petition referred to in the sub-section (1) and not later than 18m after the said date, if the petition is not withdrawn in the meantime, the court shall on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of decree.

Important Points

1. Ground of Divorce
1. Desertion
1. Two Essential elements
1. Factum of separation
2. Intention to bring cohabitation to end
2. Two element of deserting spouse to be proved
1. desertion with out consent
2. desertion without reasonable cause to form necessary intention
3. Burden of proof is on the petitioner who has to prove the above
4. Intention has to be INFERED from the facts and circumstances of case.
2. Cruelty
1. What is cruelty?
1. Considering complete matrimonial life, if it would not be possible for parties to live with each other
2. Comprehensive look at matrimonial life, the wronged party cannot be asked to put with the conduct of other spouse.
3. Unilateral decision
1. Sterilization, abortion without consent or knowledge of other spouse
2. Not have children, not to sex 
4. Long period of separate cohabitation 
5. leveling disgusting accusation of unchastity and attributing aspersions of perfidiousness 
1. Should be able to substantiate the imputation made by him
2. What is NOT cruelty?
1. Mere lack of affection or coldness is not cruelty
2. Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day-to-day life would not be adequate
3. What has to be considered to understand cruelty?
1. Sustained, long, grave injury, 
4. By refusing to serve that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary it shows scant regard for the feelings and emotions of the parties
3. Irretrievable Breakdown of marriage
1. Long sustained litigation 10y and above
2. Absolutely No hope of settlement.
3. Matrimonial Bound beyond repair
4. Mutual Consent Divorce
1. Wavier of 6month 
1. Couple entrapped in irretrievable broken marriage, unnecessarily asked to wait
2. apply U/s A227 of Constitution of India against FC order in HC in MCD - 13-B of HMA
3. Both parties filed wavier of statutory period of 6m
4. all methods of mediation u/s OXXXIIA, R3 CPC, S23(2) HMA, S9 of Family courts have been unsuccessful.
5. Alimony, custody of Child, other matters are genuinely settled.
6. A 142 of Constitution of India - Nikhil Kumar Vs Rupali Kumar 
7. Forcible perpetuation of status of matrimony b/w unwilling partners did not serve any purpose.
2. Waiver of 6m is it not contrary to law
1. Courts are meant to enforce the rule of law and not to pass orders/ directions contrary to what has been injected in law.
2. Order by SC u/s A142 to do complete justice b/w parties must
1. NOT only be consistent with FR 
2. But cannot even be inconsistent with the substantive provisions of the relevant statutory law.
3. SC Bar Association Vs UoI (1998) 4 SCC 409 
3. Waiting period in 13(b)2 is directory and can be waived by the court where proceedings are pending in exceptional situations.
4. 13B(1) - relates to Jurisdiction of court and petition is maintainable only if parties are living separately for a period of 1y or more and if they are not able to live together and have agreed to dissolve marriage. 
5. 13B(2) - is Procedural - guided discretion by consideration of interest of justice where there is no chance of reconciliation and parties were already separated for a long period or contesting proceeding for a period longer than the period mentioned in 13B(2)
3. Court should consider the Question
1. How long parties have been married?
2. How long litigation is pending?
3. How long they have been staying apart? - more than statuary period
4. Are there any other proceeding between the parties?
5. Have the parties attended mediation/ conciliation?
6. Have the parties arrived at genuine settlement which takes care of alimony, custody or any other pending issues b/w parties/
4. why 6m of waiting period
1. to enable the parties to have a rethink so that the courts grants divorce by mutal consent only if there is no chance of reconciliation.
2. Object of cooling of period is to safeguard against a hurried decision , Object is not to perpetuate a purposeless marriage or to prolong the agony of the parties when no chance of reconciliation.
5. MCD - Conducting such proceedings the court can also use the medium of video conferencing and also permit genuine representation of the parties through close relations such as parents or siblings where the parties are unable to appear for any just and valid reason as may satisfy the court, to advance the interest of Justice

Case Law

1. Samar Ghosh Vs Jaya Ghosh (2007) 4 SCC 511
1. SC had succinctly carved out some instances of human behavior relevant in dealing with the cases of mental cruelty which are illustrative and not exhaustive
2. Appellant and Respondent were senior IAS officer, Respondent-wife had a female child from her 1st marriage and even had custody of child. 
3. Appellant and Respondent there after married in 1984, respondent-wife declared her decision unilaterally not to give birth to a child for 2y and appellant should be kept to himself long from herself as far as possible.
4. Appellant suffered a prolonged illness, further respondent left him and went to other place where there were non to look after her. The Respondent refused to cohabit and also stopped sharing bed with appellant. 
5. Appellant was not permitted to show his normal affection to the daughter of the respondent.
6. Trail court granted divorce which found 6 instances constituting mental cruelty
7. SC by way of this judgement found that the matrimonial bond had ruptured beyond repair because of mental cruelty caused by the respondents. 
8. It was clear case of irretrievable break down of marriage and it was impossible to preserve the same.
9. Salient features / instances of human behavior relevant in dealing the case of mental cruelty - complete, comprehensive, long, sustained , miserable life, grave danger , conjugal unkindness, without consent operation, 
1. On consideration of complete matrimonial life of the parties,  acute mental pain, agony and suffering as would not make possible for the parties to live with each other come within the broad parameters of mental cruelty
2. On comprehensive appraisal of the entire matrimonial life of the parties it becomes abundantly clear that situation is such that wronged party cannot reasonably be asekd to put up with such conduct and continue to life with other party.
3. Mere coldness of lack of affection cannot amount to cruelty frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable.
4. Mental cruelty is a state of mind. The feeling of deep anguish, disappointment frustation in one spouse caused by the conduct of other for a long time may lead to mental cruelty.
5. A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of spouse.
6. Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave and substantial and weighty.
7. Sustained reprehensible conduct, studied neglect, indifference or total departure from normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty
8. The conduct must be much more than jealously selfishness, possessiveness which causes unhappiness and dissatisfaction and emotional upset may not be ground for grant of divorce on the ground of mental cruelty.
9. mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day-to-day life would not be adequate for grant of divorce on the ground of mental cruelty.
10. The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount of cruelty. The ill-conduct must be persistent for fairly lengthy period, where the relationship has deteriorated to an extend that because of the acts and behaviour of a spouse the wrong party finds it extremely difficult to live with other party any longer, may amount to mental cruelty
11. if a husband submits himself for a operation of sterilization without medial reasons and without consent or knowledge of his wife and similarly if the wife undergoes vasectomy or abortion without medial reason or without the consent or knowledge of her husband such an act of the spouse may lead to mental cruelty.
12. Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty
13. Unilateral decision of either husband or wife after marriage not to have child from marriage may amount to cruelty
14. where there has been long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction thought supported by al legal tie. By refusing to serve that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.
2. Puneet Kumar Trivedi Vs Nitika Pathak III (2020) DMC< 150 (DB) ALL MR
1. Irretrievable break down of the marriage. Litigation lasted as long as 14y
2. absolutely No hope of settlement or reunion b/w the parties and matrimonial bond was beyond repair.
3. bipinchandra Jaisinghbhai Shah Vs Prabhavati AIR 1957 SC 176
1. Essential requisites of DESERTION were set out 
1. For the offence of desertion, so far as the deserting spouse is concerned,  TWO ESSENTIAL conditions must be there 
1. the factum of separation
2. the intention to bring cohabitation permanently to an end ( animus deserendi )
2. TWO ELEMENTS are essential so far as the deserted spouse is concerned.
1. the absence of consent
2. absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid.
3. The petitioner for divorce bears the burden to prove those elements 
4. Desertion is a matter of inference to be drawn from facts and circumstances of each case
4. Vijaykumar Ramchandra Bhate Vs Neela VijayKumar Bhate ( AIR 2003 SC 2462 )
1. Unsubstantiated disgusting accusations made by one spouse against the other in WRITTEN statements constitutes mental cruelty for sustaining the claim for divorce.
5. K. Srinivas Rao Vs D . A . Deepa ( AIR 2013 SC 2176 )
1. Making unfounded indecent defamatory allegations against the spouse or his / her relatives in the pleadings amount to causing mental cruelty to the other spouse.
6. Dr N.G Dastane Vs Mrs S. Dastane ( AIR 1995 SC 1534 )
1. Standard of proof in matrimonial cases would be same as in civil cases  i.e court has to decide the cases based on preponderance of probabilities.
7. Amardeep Singh Vs Harveen Kaur, 2017 8 SCC 746
1. Wavier 6 month Statutory waiting period
1. Statutory period of 6m specified S13-B(2), in addition to statutory period of one year under Section 13-B(1) of separation of parties is already over before 1st motion itself
2. all efforts for mediation/ conciliation including efforts in terms of Order XXXIIA, Rule 3 CPC/S.23(2) of the Act/Section 9 of Family Courts Act to reunite parties have failed and there is not likelihood of success in that direction by any further efforts;
3. parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties
4. waiting period will only prolog their agony.
8. Sunita v. Yogesh Kumar, 2021 SCC OnLine P&H 1057
1. Temperamental difference and living separately unable to reconciliation
2. Only daughter already married
3. Money already settled