By Shri Y.Srinivasa Rao, Research Scholor in Law of Torts (Ph.D), Principal Senior Civil Judge, Tirupati.

TABLE OF CASES

1. Introduction
2. Common law marriage
3. When is ‘Divorce’ importance?
4. Irretrievable Breakdown of Marriage
5. ”Cruelty” under section S. 13(1)(i-a) 
6. Desertion
7. “Desertion” for the purpose of seeking divorce under the Hindu Marriage, 1955
8. Deserter and Desertion
9. Divorce by Mutual Consent
10. Statutory period of six months – Divorce on Mutual Consent – Can be waived?
11. Case- Law

Introduction:-

Asura marriage is nothing more than a transaction of marriage whereunder a bridegroom takes a bride for the price paid by him to the bride’s father or others entitled to give her and therefore in substance it is a sale of the bride. Under Hindu law marriage is a sacrament and it is the religious duty of the father to give his daughter in marriage to a suitable person but if he receives a payment in cash or in kind as a consideration for giving his daughter in marriage he would be converting a sacrament into commercial transaction. Brahma marriage satisfies the said test laid down by Hindu Law. But from Vedic times seven other forms of marriage were recognised based on custom and convenience. Asura form is one of the eight forms of marriage. The essence of the said marriage is the sale of a bride for a price and it is one of the unapproved forms of marriage prohibited by Manu for all the four castes of Hindu society. The vice of the said marriage lies in the receipt of the price by the bride’s father or other persons entitled to give away the bride as a consideration for the bride. If the amount paid or the ornaments given is not the consideration for taking the bride but only given to the bride or even to the bride’s father out of affection or in token of respect to them or to comply with a traditional or ritualistic form, such payment, does not make the marriage an Asura marriage. There is also nothing in the texts to indicate that the bearing of the expenditure wholly or in part by the bridegroom or his parents is a condition or a criterion of such a marriage, for in such a case the bride’s father or others entitled to give her in marriage do not take any consideration for the marriage or any way benefit thereunder. The fact that the bridegroom’s party bears the expenditure may be due to varied circumstances. Prestige, vanity, social custom, the poverty or the disinclination of the bride’s father or some of them may be the reasons for the incurring of expenditure by bridegroom’s father on the marriage but the money so spent is not the price or consideration for the bride. Even in a case where the bride’s father though rich is disinclined to spend a large amount on the marriage functions and allows the bridegroom to incur the whole or part of it, it cannot be said that he has received any consideration or price for the bride. Though in such a case if the bridegroom’s father had not incurred the said expenditure in whole or in part, the bride’s father might have to spend some money on that account such an indirect result could not be described as price or consideration for giving the bride. Shortly stated Asura marriage is a marriage where the bride’s father or any other person entitled to give away the bride takes Sulka or price for giving the bride in marriage. The test is twofold: there shall not only be benefit to the father, but that benefit shall form a consideration for the sale of the bride. When this element of consideration is absent, such a marriage cannot be described as Asura marriage. As the Asura marriage does not comply with the strict standards of Hindu law it is not only termed as an unapproved marriage, but it has been consistently held that whenever a question arises whether a marriage is a Brahma or Asura, the presumption is that the marriage is a Brahma form and the burden is upon the person who asserts the contrary to prove that the marriage was either an Asura or any other form, Veerappa Chettiar v. S. Michael, AIR 1963 SC 933, 939, 944: 1963 Supp (2) SCR 244.

Common law marriage:- Some countries in the world recognise common law marriage. A common law marriage, sometimes called do facto marriage or informal marriage is recognised in some countries as a marriage though no legally recognised marriage ceremony is performed or civil marriage contract is entered into or the marriage registered in a civil registry, D. Velusamy v. D. Patchaiammal, (2010) 10 SCC 469: (2010) 6 CTC 216: (2010) 4 KLT 384: (2010) 4 UPLJ 138.

When is ‘Divorce’ importance?

As ordinarily understood, divorce is nothing more nor less than another name for dissolution of marriage, Zohara Khatoon v. Mohd. Ibrahim, (1981) 2 SCC 509: 1981 SCC (Cri) 517. The dissolution of the marriage contract, grantable to a husband proving the adultery of his wife or to a wife proving the adultery of her husband, coupled with cruelty or two years’ desertion of her or incestuous or bigamous adultery or an unnatural offence.

 Impotence, as a reason for annulling marriage, must exist at the time of marriage and be incurable; it makes the marriage only voidable by a suit by one of the parties during their join lives [A v. B, (1868) LR 1 P & D 559] and the suit cannot be brought by the impotent person.

Irretrievable Breakdown of Marriage — 

Section 13 of Hindu Marriage Act, 1955  — Irretrievable breakdown of marriage where marriage is beyond repair on account of bitterness created by acts of either of the spouses or of both, courts have always taken irretrievable breakdown of marriage as a very weighty circumstance amongst others necessitating severance of marital tie. Marriage which is dead for all purposes cannot be revived by court’s verdict, if parties are not willing since marriage involves human sentiments and emotions and if they have dried up, there is hardly any chance of their springing back to life on account of artificial reunion created by court decree, K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226: (2013) 2 SCC (Cri) 963: (2013) 2 SCC (Civ) 775. See also . Seventy-first Report: The Hindu Marriage Act, 1955—In entirable Breakdown of Maniage as a Ground of Divorce (1978).

”Cruelty” under section S. 13(1)(i-a) — It consists of acts which are dangerous to life, limb or health. Cruelty for the purpose of the Act means where one spouse has so treated the other and manifested such feelings towards her or him as to have inflicted bodily injury or to have caused reasonable apprehension of bodily injury, suffering or to have injured health. Cruelty may be physical or mental. Mental cruelty is the conduct of the other spouse which causes mental suffering or fear to the matrimonial life of the other, Savitri Pandey v. Prem Chandra Pandey, (2002) 2 SCC 73. As ground for divorce means cruelty of such character as to amount to danger to life, limb or health, bodily or mental, as to give rise to reasonable apprehension of such danger, Madanlal Sharma v. Santosh Sharma, 1980 Mah LJ 391.  Such conduct on the part of a husband or wife.

 Under Section 13(1)(i-a) of the Hindu Marriage Act, 1955 cruelty includes both physical and mental cruelty. The legal conception of cruelty and the kind of degree of cruelty necessary to amount to a matrimonial offence has not been defined under the Act. The legislature has refrained from giving a comprehensive definition of the expression that may cover all cases, realising the danger in making such attempt. The accepted legal meaning in England as also in India of this expression, which is rather difficult to define, had been “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”, Parveen Mehta v. Inderjit Mehta, (2002) 5 SCC 706. The expression “cruelty” has not been defined in the Hindu Marriage Act, 1955. The said expression has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. Cruelty is a course or conduct of one, which is adversely affecting the other. It may be defined as wilful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental or as to give rise to a reasonable apprehension of such a danger. The question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society to which the parties belong, their social values, status, environment in which they live. The cruelty may be mental or physical, intentional or unintentional. Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other party. If the cruelty is physical, the court will have no problem in determining it. It is a question of fact and degree. In physical cruelty, there can be tangible and direct evidence, but in case of mental cruelty there may not at the same time be direct evidence, A. Jayachandra v. Aneel Kaur, (2005) 2 SCC 22. 

To constitute “cruelty” it is enough that conduct of one of parties is so abnormal and below accepted norm that other spouse could not reasonably be expected to put up with it. Conduct is no longer required to be so atrociously abominable which would cause reasonable apprehension that it would be harmful or injurious to continue cohabitation with other spouse. Hence, not necessary to establish physical violence. Continued ill-treatment, cessation of marital intercourse, studied neglect, indifference may lead to inference of cruelty, Manisha Tyagi v. Deepak Kumar, (2010) 4 SCC 339: (2010) 2 SCC (Civ) 123. Cruelty in matrimonial behaviour defies any definition and can be of infinite variety, categories wherefor can never be closed. Cruelty has to be judged taking into account entire facts and circumstances of case and not by any predetermined rigid formula. In matrimonial relationship cruelty mean absence of mutual respect and understanding between spouses which embitters relationship. Sometimes it may take form of violence or at times may just be an attitude or approach. Silence in some situations may also amount to cruelty, Ravi Kumar v. Julmidevi, (2010) 4 SCC 476: (2010) 2 SCC (Civ) 185. 

Cruelty has not been defined under the Act. It is quite possible that a particular conduct may amount to cruelty in one case but the same conduct necessarily may not amount to cruelty due to change of various factors, in different set of circumstances, Gurbux Singh v. Harminder Kaur, (2010) 14 SCC 301. Cruelty is evident where one spouse so treats other and manifests such feelings in other, as to cause reasonable apprehension in mind of other that it would be harmful or injurious to reside with other spouse. Cruelty may be physical or mental, K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226: (2013) 2 SCC (Cri) 963: (2013) 2 SCC (Civ) 775. The expression “cruelty” has an inseparable nexus with human conduct or human behaviour. It is always dependent upon the social strata or the milieu to which the parties belong, their ways of life, relationship, temperaments and emotions that are conditioned by their social status, Vishwanath Agrawal v. Sarla Vishwanath Agrawal, (2012) 7 SCC 288: (2012) 3 SCC (Cri) 347: (2012) 4 SCC (Civ) 224. The cruelty may be mental or physical, intentional or unintentional. If it is physical it is a question of fact and degree. If it is mental, the enquiry must begin as to the nature of the cruel treatment and then as to the impact of such treatment on the mind of the spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other, ultimately, is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse, Shobha Rani v. Madhukar Reddi, (1988) 1 SCC 105: 1988 SCC (Cri) 60. Cruelty can be said to be an act committed with the intention to cause sufferings to the opposite party, G.V.N. Kameswara Rao v. G. Jabilli, (2002) 2 SCC 296.

Desertion:-

 ”Desertion” implies abandonment against the wish of the person charging it, as mentioned in Section 3(9), Divorce Act, 1869. The intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent and without reasonable cause. For the offence of desertion so far as the deserting spouse is concerned, two essential conditions must be there

(1) the factum of separation and

(2) the intention to bring cohabitation permanently to an end (animus deserendi).

Similarly two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. For holding desertion as proved the inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation, Bipinchandra Jaisinghbhai Shah v. Prabhavati, AIR 1957 SC 176: 1956 SCR 838. 

Desertion for this purpose is regarded as a continuing act (Piper v. Piper, [1902] p. 198). The inclusive definition is only intended to incorporate therein the doctrine of “constructive desertion” known to English law and the language is designedly made wide to cover the peculiar circumstances of our society. The ingredients of desertion as well as constructive desertion are the same, namely, animus and factum, though in one case there is actual abandonment and in the other there is expulsive conduct. Under certain circumstances the deserted spouse may even stay under the same roof or even in the same bedroom. In our society, it is well known that in many a home the husband would be guilty of expulsive conduct towards his wife by completely neglecting her to the extent of denying her all marital rights, but still the wife because of social and economic conditions, may continue to live under the same roof. The words “wilful neglect” in the explanation were certainly designed to cover constructive desertion in the English law. If so, it follows that wilful conduct must satisfy the ingredients of desertion as indicated above, Lachman Utamchand Kirpalani v. Meena, AIR 1964 SC 40: (1964) 4 SCR 331: 66 Bom LR 297. 

 “Desertion” in the context of matrimonial law represents a legal conception. It is difficult to give a comprehensive definition of the term. The essential ingredients of this offence in order that it may furnish a ground for relief are: 

1. the factum of separation; 

2. the intention to bring cohabitation permanently to an end — animus deserendi; 

3. the element of permanence which is a prime condition requires that both these essential ingredients should continue during the entire statutory period, Adhyatma Bhattar Alwar v. Adhyatma Bhattar Sri Devi, (2002) 1 SCC 308. 

“Desertion” for the purpose of seeking divorce under the Hindu Marriage, 1955:-

 “Desertion”, for the purpose of seeking divorce under the Hindu Marriage, 1955, means the intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent and without reasonable cause. In other words it is a total repudiation of the obligations of marriage. Desertion is not the withdrawal from a place but from a state of things. Desertion, therefore, means withdrawing from the matrimonial obligations i.e. not permitting or allowing and facilitating cohabitation between the parties. The proof of desertion has to be considered by taking into consideration the concept of marriage which in law legalises the sexual relationship between man and woman in the society for the perpetuation of race, permitting lawful indulgence in passion to prevent licentiousness and for procreation of children. Desertion is not a single act complete in itself, it is a continuous course of conduct to be determined under the facts and circumstances of each case, Savitri Pandey v. Prem Chandra Pandey, (2002) 2 SCC 73.

Deserter and Desertion — “A deserter is a man who leaves his ship and does not return to it with no other purpose than to break his agreement.” The gist of desertion therefore is the existence of an animus not to return to the ship or in other words, to go against the agreements under which the employment of seamen for sea voyages generally takes place, Ibrahim v. State of W.B., AIR 1968 SC 731: (1968) 2 SCR 306: 1968 Cri LJ 874.

Divorce by Mutual Consent:-

Section 13-B is introduced into the statute book by means of the Marriage Law (Amendment) Act, 1976. It permits, for the first time, dissolution of a Hindu marriage by mutual consent of parties, provided the parties have been living separately after their marriage for a period of one year or more and that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved. S. 13-B radically altered the legal basis of a Hindu marriage by treating it asan ordinary form of contract which competent parties can enter into and put an end to like any other contract by mutual consent. Just as the parties can obtain a consent decree from the courts under O. 23, R.3 C.P.C., so they can now under s. 13-B of the Hindu Marriage Act obtain a consent divorce. Sri S. V. Gupte in his Hindu Law 3rd (1981) edition, Vol. 2, page 800, commenting on this change, wrote: “This is a very radical amendment as it enables divorce by consent. It also virtually puts a death-nail on the old concept of Hindu Law and Hindu morality that marriage is a sacrament and not a contract.”

However, a petition filed for divorce by consent under S. 13-B of the Hindu Marriage Act is required to be kept in abeyance for a minimum period of six months. This is in sharp contrast with a petition filed for divorce by consent under Special Marriage Act which is liable to be kept in abeyance at least for one year. This liberalising trend of law in the matter of granting divorce by consent cannot be lost sight by Courts in interpreting that section. But even then Cl. (2) of S. 13-B requires a Court not to pass a decree for divorce before six months of time lapses and after 18 months of time passes from the date of filing of such a petition for divorce by mutual consent. This is the last hope of the legislature for saving the marriage. The intention of the legislature is to provide a minimum period of six months for re-thinking of the parties. If the above time-table fixed by S. 13-B (2)  of the Hindu Marriage Act is applied to the present application made by the parties in this case on 12th July 1985. We have to adjourn this case till January, 1986 for passing a decree for divorce under that section, notwithstanding the fact that we are of the opinion that there is no chance of reconciliation between the parties who have been living away from each other for the last 41/2 years and are today most anxious and ready to obtain such a decree here and now. That situation raises somewhat an important legal question as to the meaning which we should attribute to S. 13-B (2) of the Hindu Marriage Act. That question is whether the Legislature intended that S. 13-B (2) of the Hindu Marriage Act should be treated as a mandatory provision of law or the Legislature intended that section to be treated merely as a directory provision of law. We have already noticed the language of S. 13-B (2). On first impression it is not impossible to hold S. 13-B (2) to be mandatory. As a mandatory provision of law calls for its pound of flesh and requires to be complied strictly and it not being satisfied with offerings of more substantial compliance of its commands, we will have to adjourn this matter for six months and postpone the deliverance to the parties from this deadlock by the that period of time (sic). It is well-settled proposition of law that a statutory provision, though mandatory in form, can yet be treated as directory in substance. The question then arises whether there is anything in the text of S. 13-B (2) of its context or purpose or design that calls for S. 13-B (2) being interpreted as directory? In our opinion, there are weighty reasons warranting the reading of S. 13 -B Cl. (2) as directory. In that context, we must first call attention to the design of the law expressed in its liberalising tendency of providing relief to parties on the basis of their mutual consent from their broken marriages. We must remember that this relief is granted by bringing about a profound alteration in the concept of a Hindu marriage from that of a sacrament to a contract. By that alteration, law has definitely set its face against forcible perpetuation of the status of matrimoney between unwilling partners. Next, we must note that this six month’s time fixed by S. 13-B (2)  is not a rule relating to the jurisdiction of the Courts to entertain a petition filed for divorce by consent. That question of jurisdiction is dealt with by S. 13-B (1) of the Act and must be strictly complied with S. 13-B (2) is a part of mere procedure. A procedural provision must be interpreted as a handmaid of justice in order to advance and further the interests of justice and not as a technical rule. Above all we should note that if S. 13-B (2 is read as a mandatory provision and as applicable to the exercise of matrimonial jurisdiction by the appellate Courts also, S. 13-B (2) becomes totally unworkable. According to the literal reading of S. 13-B (2) the courts cannot pass consent decree of divorce beyond 18 months period from the date of its filing. In the event that such an application is filed by the parties and the Courts for some reason of human error or failure did not or could not dispose it of within the said period of 18 months, the literal reading of S. 13-B (2) prevents the Courts from granting that relief thereafter. Similarly if a petition for divorce by mutual consent is filed before the lower Court and was dismissed by the lower Court for some reason, the appellate Court would be powerless to grant that relief on the basis of the application filed in the lower Court because 18 months must have elapsed by the time the matter reached the appellate forum although the parties are still fighting relentlessly in the appellate Court. These considerations lead us to hold that it could not have been the intention of S. 13-B (2) that the appellate Court should always drive the fighting parties to go through the purposeless forms of meaningless ceremony of petitioning again for consent divorce waiting and watching the completion of necessary number of revolutions of this mother Earth around the unmoving sun. See. K. Omprakash vs K. Nalini, AIR 1986 AP 167.

Statutory period of six months – Divorce on Mutual Consent – Can be waived?

In Amardeep Singh vs Harveen Kaur (infra), the Supreme Court observed as follows: There is conflict of decisions of this Court on the question whether exercise of power under Article 142 to waive the statutory period under Section 13B of the Act was appropriate. In 1 (2016) 13 SCC 383 Manish Goel versus Rohini Goel2, a Bench of two-Judges of this Court held that jurisdiction of this Court under Article 142 could not be used to waive the statutory period of six months for filing the second motion under Section 13B, as doing so will be passing an order in contravention of a statutory provision. It was observed:

“14. Generally, no court has competence to issue a direction contrary to law nor can the court direct an authority to act in contravention of the statutory provisions. The courts are meant to enforce the rule of law and not to pass the orders or directions which are contrary to what has been injected by law. (Vide State of Punjab v. Renuka Singla[(1994) 1 SCC 175], State of U.P. v. Harish Chandra [(1996) 9 SCC 309], Union of India v. Kirloskar Pneumatic Co. Ltd. [(1996) 4 SCC 453], University of Allahabad v. Dr. Anand Prakash Mishra [(1997) 10 SCC 264] and Karnataka SRTC v. Ashrafulla Khan [(2002) 2 SC 560].

15. A Constitution Bench of this Court in Prem Chand Garg v. Excise Commr.[AIR 1963 SCC 996] held as under: (AIR p. 1002, para 12) “12. … An order which this Court can make in order to do complete justice between the parties, must not only be consistent with the fundamental rights guaranteed by the Constitution, but it cannot even be inconsistent with the substantive provisions of the relevant statutory laws.” (emphasis supplied) The Constitution Benches of this Court in Supreme Court Bar Assn. v. Union of India [(1998) 4 SCC 409] and E.S.P.

Rajaram v. Union of India [(2001) 2 SCC 186] held that under Article 142 of the Constitution, this Court cannot altogether ignore the substantive provisions of a statute and pass orders concerning an issue which can be settled only through a mechanism prescribed in another statute. It is not to be exercised in a case where there is no basis in law which can form an edifice for building up a superstructure.”

After considering several decisions, the Apex Court is of the view that since Manish Goel versus Rohini Goel holds the field, in absence of contrary decisions by a larger Bench, power under Article 142 of the Constitution cannot be exercised contrary to the statutory provisions, especially when no proceedings are pending before this Court and this Court is approached only for the purpose of waiver of the statute.

Case- Law:-

1. Amardeep Singh vs Harveen Kaur ( Civ. Appeal. No. 11159/2017, dated 12-09-2017)

2.  Romesh Chander v. Savitri (1995) 2 SCC 7; Kanchan Devi v. Promod Kumar Mittal (1996) 8 SCC 90; Anita Sabharwal v. Anil Sabharwal (1997) 11 SCC 490; Ashok Hurra v. Rupa Bipin Zaveri (1997) 4 SCC 226; Kiran v. Sharad Dutt (2000)10 SCC 243; Swati Verma v. Rajan Verma (2004) 1 SCC 123; Harpit Singh Anand v. State of W.B. (2004) 10 SCC 505; Jimmy Sudarshan Purohit v. Sudarshan Sharad Purohit (2005) 13 SCC 410; Durga Prasanna Tripathy v. Arundhati Tripathy (2005) 7 SCC 353; Naveen Kohli v. Neelu Kohli (2006) 4 SCC 558; Sanghamitra Ghosh v. Kajal Kumar Ghosh (2007) 2 SCC 220; Rishikesh Sharma v. Saroj Sharma (2007) 2 SCC 263; Samar Ghosh v. Jaya Ghosh (2007) 4 SCC 511 and Satish Sitole v. Ganga (2008) 7 SCC 734 4 (2010) 4 SCC 460 5 (2010) 6 SCC 413 6 (2002) 10 SCC 194 7 Order dated 23rd August, 2011 in Transfer Petition (Civil)No. 899 of 2007

3. Sharan Kumar‘s case, A.I.R. 1986 P. & H. 213.

4. Naehhattar Singh v. Harcharan Kaur, A.I.R. 1986 P. & H. 201. – Held – A reading of this sub-section would show that the scheme of S. 13B of the Act does not envisage withdrawal of consent by one party. The petition can be dismissed as withdrawn only if both the parties who had filed the petition together agree to withdraw the same. Six months after the date of the presentation of the petition and not later than eighteen months after the said date, if the petition is not withdrawn by both the parties, the Court has to satisfy itself, after hearing the parties and after making such inquiries as it thinks fit, that the petitioners was in fact present by both the parties to the marriage, that they have been living separately for a period of one year or more and that they have mutually agreed that the marriage should be dissolved. If both the parties had voluntarily consented to file the petition for dissolving the marriage by mutual consent and all the other conditions mentioned in sub-sec (1) of S. 13B of the Act are fulfilled, it will not be open to a party to withdraw the consent. In the present case without making an inquiry under sub-sec.(2) the trial Court has dismissed the petition as withdrawn which could not be done merely on asking of one party.