DIVORCE CASES.

ADULTERY –

1. Some cases on adultery decided by the Indian Courts cannot be viewed without
impugnment. In P. v. P. and R. (AIR 1982 BOM. 498) where the wife was seen in a semi-
naked state in a hotel with a stranger, the court did not consider it sufficient to conclude
adulterous relations of wife with the stranger. The Court held that so long the act of
cohabitation is not proved beyond doubt, adultery cannot be concluded to be a ground for
matrimonial relief. Similarly, where the husband is often found in company with the
persons of ill-repute or with prostitutes or with ladies of immoral character, the Court has
held that these all facts are not sufficient enough to prove adultery on the part of the
husband. In view of the circumstantial evidence as only mode of proof of adultery, the
existence of such facts may be sufficient to conclude adultery and to provide a
matrimonial relief to the other party. But the Court has held otherwise, which may not be
very correct approach.
2. Ravindra Prasad v. Sita Devi (AIR 1986 Pat. 128) - The burden of proving adultery is
always on the person alleging adultery, there being a presumption of innocence. Adultery
being a serious matrimonial offence, a high standard proof is required in order to satisfy
the court that the offence has been committed. It is true that normally the matrimonial
offence of adultery is expected to be established by circumstantial evidence because
direct fact of adultery may be difficult to be proved except in very few cases.
3. In Smt. Pushpa Devi v. Radheysham - it was held that it is not necessary to prove the fact
of adultery by direct evidence and such evidence, if produced would normally be
suspected and likely to be discarded. Normally adultery is proved by circumstantial
evidence. The general rule is that the circumstances must be such as would lead to a
guarded judgment of a reasonable and just man to the conclusion.
4. In Thimmappa Dasappa v. Thimmva(AIR 1967 SC 581). the facts were that the wife
used to be usually absent from the house and was found to be in company with strangers.
She was also found in the room of those strangers. She did not have any explanation for
being in their company. On the petition for divorce filed by the husband, the court held
that under the conditions, the wife's living in adultery would be established and the
petition would be decreed.
5. In Hargovinda Soni v. Ram Dulari, (AIR 1986 MP 57) the court observed that it was no
longer required that adultery must be proved beyond all reasonable doubt. It could be
 established by preponderance of probabilities. The proof of adultery must be of such a
character as would lead a reasonable man to conclude no other inference than the
misconduct. In the above case adultery was sought to be proved by non-access and non-
access is being established on the basis of blood grouping. The husband contended that he
had no access to his wife from 28th April, 1968 but a boy was born to the wife on April
12, 1969, another boy on May 27, 1972 and a girl on May 27, 1975. Since on medical
evidence based on blood-test, it was established that the third child could not be the child
of the petitioner, the court granted a decree of divorce on the ground of wife's adultery.
6. A. Hemamalini vs A. Pankajanabham And Anr. (1994 (3) ALT 30) – it was held that the
burden to prove adultery is on the person who seeks dissolution of marriage on the
ground of adultery.

CLUELTY –

1. Under the English law, the term 'cruelty' was defined in Russel v. Russel (1897) AC 395
for the first time. In this case the House of Lords observed, "To constitute legal cruelty
there must be danger to life or injury to health, bodily or mental or reasonable
apprehension of it." However, this definition of cruelty is not valid in the present Hindu
Law. It would depend upon the court to consider the gravity of the cruelty to make it a
ground for divorce, there the word 'treated' signifies a continuous course of cruel
behaviour by the respondents to the husband. Cruelty may be either mental or physical.
2. In Gollins V. Gollins 1964 AC 644: (1963)2 All ER 966, Lord Reid stated:
"No one has ever attempted to give a comprehensive definition of cruelty and I do not
intend to try to do so. Much must depend on the knowledge and intention of the
respondent, on the nature of his (or her) conduct, and on the character and physical or
mental weakness of the spouses, and probably no general statement is equally applicable
in all cases except the requirement that the party seeking relief must show actual or
probable injury to life, limb or health".
3. Although the term 'cruelty' has not been defined in the Act, yet for the purposes of
establishing an act of cruelty it should be so serious and weighty that cohabitation
becomes impossible. It should be somewhat more serious than ordinary wear and tear of
routine marital life. In Indira Gangele v. S.K. Gangele (AIR 1993 MP 59) only some
misunderstanding between parties was established. It was held that merely saying that
 parties are unhappy is not enough, not even unruly temper of a spouse or whimsical
nature of a spouse is enough. Wherever cruelty is to be examined the entire background
of the life of the parties to marriage has to be considered.
4. SHOBHA RANI V/S. MADHUKAR REDDI [AIR 1988 SC 121]
The Hon’ble Supreme court considerably enlarged the concept of cruelty and held that
the demand for dowry which is prohibited under law amounts to cruelty entitling the
wife to get a decree for dissolution of marriage.
5. In Shobha Rani v. Madhukar Reddi, (1988) 1 SCC 105, this Court examined the concept
of cruelty. It was observed that the term `cruelty' has not been defined in the Hindu
Marriage Act. It has been used in Section 13(1)(ia) of the Act in the context of human
conduct and behavior in relation to or in respect of matrimonial duties or obligations. It
is a course of conduct of one spouse which adversely affects the other spouse. The
cruelty may be mental or physical, intentional or unintentional. If it is physical, it is a
question of degree which is relevant. 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 other 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. There
may, however, be cases where the conduct complained of itself is bad enough and per se
unlawful or illegal. Then the impact or the injurious effect on the other spouse need not
be enquired into or considered. In such cases, the cruelty will be established if the
conduct itself is proved or admitted. The absence of intention should not make any
difference in the case, if by ordinary sense in human affairs, the act complained of could
otherwise be regarded as cruelty. Mens rea is not a necessary element in cruelty. The
relief to the party cannot be denied on the ground that there has been no deliberate or
wilful ill-treatment.
6. In V. Bhagat v. D. Bhagat (Mrs.), (1994) 1 SCC 337, the Court observed;
"Mental Cruelty in Section 13(1)(ia) can broadly be defined as that conduct which
inflicts upon the other party such mental pain and suffering as would make it not
possible for that party to live with the other. In other words, mental cruelty must be of
such a nature that the parties cannot reasonably be expected to live together. The
situation must be such that the wronged party cannot reasonably be asked to put up with
such 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. There may, however, be cases where the conduct
complained of itself is bad enough and per se unlawful or illegal. Then the impact or the
injurious effect on the other spouse need not be enquired into or considered. In such
cases, the cruelty will be established if the conduct itself is proved or admitted. The
absence of intention should not make any difference in the case, if by ordinary sense in
human affairs, the act complained of could otherwise be regarded as cruelty. Intention is
not a necessary element in cruelty. The relief to the party cannot be denied on the
ground that there has been no deliberate or wilful ill-treatment or conduct and continue
to live with the other party. It is not necessary to prove that the mental cruelty is such as
to cause injury to the health of the petitioner. While arriving at such conclusion, regard
must be had to the social status, educational level of the parties, the society they move
in, the possibility or otherwise of the parties ever living together in case they are already
living apart and all other relevant facts and circumstances which it is neither possible
nor desirable to set out exhaustively. What is cruelty in one case may not amount to
cruelty in another case. It is a matter to be determined in each case having regard to the
facts and circumstances of that case. If it is a case of accusations and allegations, regard
must also be had to the context in which they were made".
7. In A. Jayachandra v. Aneel Kaur, (2005) 2 SCC 22, the Court observed as under:
The expression cruelty has been issued in relation to human conduct or human
behaviour. It is a conduct in relation to or in respect of matrimonial duties and
obligations. The cruelty can be mental or physical. intentional or unintentional. In
physical cruelty, there can be tangible and direct evidence, but in the case of mental
cruelty there may not at the same time be direct evidence. In cases where there is no
direct evidence, Courts are required to probe into the mental process and mental effect
of incidents that are brought out in evidence. It is in this view that one has to consider
the evidence in matrimonial dispute.
8.  In Vinita Saxena v. Pankaj Pandit, (2006) 3 SCC 778, the Court said;
"It is settled by a catena of decisions that mental cruelty can cause even more serious
injury than the physical harm and create in the mind of the injured appellant such
apprehension as is contemplated in the section. It is to be determined on whole facts of
 the case and the matrimonial relations between the spouses. To amount to cruelty,
there must be such willful treatment of the party which caused suffering in body or mind
either as an actual fact or by way of apprehension in such a manner as to render the
continued living together of spouses harmful or injurious having regard to the
circumstances of the case.
9. In suman kapur v. Sudhir kapur (AIR 2009 SC 589) the supreme court reiterated its
view on cruelty –
The word "cruelty" has not been defined and it 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. It is a course of conduct and one which is adversely affecting the
other. The cruelty may be mental or physical, intentional or unintentional. There may be
cases where the conduct complained of itself is bad enough and per se unlawful or
illegal. Then the impact or the injurious effect on the other spouse need not be enquired
into or considered. In such cases, the cruelty will be established if the conduct itself is
proved or admitted
10. G.V.N. Kameswara Rao vs G. Jabilli (2002) 2 SCC 296
Cruelty can be said to be an act committed with the intention to cause sufferings to the
opposite party. Austerity of temper, rudeness of language, occasional outburst of anger,
may not amount to cruelty, though it may amount to misconduct. “The mental cruelty in
Section 13(1)(ia) can broadly be defined as that conduct which inflicts upon the other
party such mental pain and suffering as would make it not possible for that party to live
with the other. In other words, mental cruelty must be of such a nature that the parties
cannot reasonably be expected to live together. The situation must be such that the
wronged party cannot reasonably be asked to put up with such conduct and continue to
live with the other party.
It is not necessary to prove that the mental cruelty is such as to cause injury to the health
of the petitioner. While arriving at such conclusion, regard must be had to the social
status, educational level of the parties, the society they move in, the possibility or
otherwise of the parties ever living together in case they are already living apart and all
other relevant facts and circumstances which it is neither possible nor desirable to set
out exhaustively. What is cruelty in one case may not amount to cruelty in another case.
It is a matter to be determined in each case having regard to the facts and circumstances
of that case. If it is a case of accusations and allegations, regard must be had to the
context in which they were made.”
 11. Jiya Lai v. Sarla Devi, AIR 1973 J&K 69. - The concept of cruelty has varied from time
to time, from place to place and from individual to individual in its application
according to social status of the persons involved and their economic conditions and
other matters. Each case depends on its own facts and must be judged on their facts.
12. Narayan Ganesh Dastane v. Sucheta Narayan Dastane, AIR 1975 1534 –
In the present case, the contention regarding the Respondent inflicting cruelty on the
Appellant has been proven to exist, but the Appellant’s act of engaging in sexual
intercourse with the Respondent amounts to condonation of cruelty in the eyes of law.
After the acts of cruelty have been condoned, for the Appellant’s claims regarding
cruelty to have held ground, the Respondent’s subsequent conduct had to be as grave or
to the degree of her previous acts of cruelty. The Respondent was willing to make
amends and return to the household shared by both parties and she realised her mistakes.
The Appellant condoned the Respondent after which she did not act in the manner she
did before the condonation. The Respondent will not be held liable for cruelty.

DESERTION –

1. In Lachman v. Meena (1964 SC 40) the wife was required to live with her husband's
joint family. The wife left the matrimonial home after about five years from the
marriage. She went to South East Asia where her parents had business houses.
Throughout this period her husband wrote to her to return to which she replied that she
would when her health would permit her to do so. Her offer to return as expressed in her
letters was not sincere and she had no intention to return. It was held by the Supreme
Court that besides the factum of separation there was also animus deserendi at the time
when she left the husband's house and the requisite animus continued for the period of
two years before the presentation of the petition, therefore, she was guilty of desertion.
2. The case of Bipih Chandra v. Prabhawati ( decided by the Supreme Court is an
important example on animus deserendi. In this case the wife used to reside with the
husband along with his parents. Their marital life was happy and a son was born to
them. Later the husband left for England for a few months. During the absence of the
husband, the wife developed intimacy with the old friend of the husband. There was also
exchange of letters, between her and that friend of the husband, and one of the letters
containing objectionable contents was intercepted by the father-in-law of the wife. On
return of the husband his husband, the father told him everything. When the husband
asked her to explain all this, she refused and on next day left for her parents place. Later
 the husband wrote a letter to her asking her to send the child. Some attempts to reach an
understanding were made between the two. When the mother of wife sent a telegram to
the petitioner to receive his wife on station, the reply sent back by the husband was that
she should not be sent. After some time the husband filed a petition for divorce on the
ground of desertion by the wife. The defence of the wife was that it was petitioner who
by his treatment made her life unbearable and compelled her to leave matrimonial home.
The Supreme Court said "the question to be considered is whether her leaving marital
home is consistent with her having deserted her husband in the sense that she had
deliberately decided permanently to forsake all relationship with him with intention of
not returning to consortium, without the consent of the husband and against his wishes."
The learned judge said two things are important: the act of departure from the other
spouse and the party who intends bringing the cohabitation to an end and whose conduct
in reality causes its termination." The court concluded that even though the wife leaves
matrimonial home without any cause, she will not be guilty of desertion if subsequently
she shows an inclination to return and is prevented from doing so by the petitioner. To
constitute desertion it is necessary to prove that the deserting spouse persisted in the
intention to desert throughout the statutory period.
3. In P. V, Veeraraghavan v. 5. T. Parvathy (AIR 1974 KER. 43) the Kerala High Court
held that where animus deserendi is not proved, judicial separation cannot be decreed.
Here the appellant husband was a poor man, having meagre salary insufficient to
maintain a home. He directed the respondent wife to live in his ancestral home where
his parents and brother resided, which she steadfastly refused. According to the
husband, this amounted to desertion and hence the prayer of judicial separation. The
court dismissed the appeal holding that there was want of animus deserendi.
4. Where the parties are living separate on account of some misunderstanding and the wife
offers to come back and requests the husband to get reconciled and take her back but the
husband refuses to take her back, he will be guilty of desertion even though it was the
wife who left the matrimonial home. In Ambujam v. T. S. Rangaswami (AIR 1973
DELHI 66) the Delhi High Court in its pronouncement laid down that where husband
completely neglects in spite of wife's repeated pleading and urging to receive her on any
terms, he is guilty of desertion and the strain of wilful separation for years and complete
denial of coitus would also amount to causing such mental cruelty as would entitle the
wife to judicial separation or divorce.
 5. In Dr. Sri Kanta Ranga Charya v. Smt. Anuradha the Karnataka High Court held that
wilful neglect by one spouse to the other would come within the meaning of desertion. It
is not necessary to prove that one of the parties to marriage is living separately from the
other. Merely to prove that one of the parties is not fulfilling the duties and
responsibilities to the other, is sufficient to establish desertion.
6. In Jyotish Chandra v. Meera (AIR 1970 CAL 266) husband and wife lived together but
it was alleged by the wife that the husband was cold, indifferent and sexually abnormal
and perverse. The husband after completing his education from abroad returned to home
but his behaviour did not change. He used to return very late from the club and hardly
spent any time with her. At the instance of the husband, the wife went for higher studies
to England and stayed there for three years. During this period she came twice to India
but found the husband still more cold. When she finally came back to India, on finding
the husband unchanged, her mental sufferings and agony continued. She realised there is
no use of living together with the husband and started living separately alongwith her
mother and sister in a rented house. Sometime, later her father tried to meddle between
them and reach a compromise, but he was dragged out to the rented flat where the wife
was living. When a dialogue was going on the husband became enraged and beat the
wife, her sisters and father. Under these conditions a petition for divorce was filed by
the wife on the ground of desertion. The court held that the husband by his conduct has
forced the wife to stay separately from matrimonial home. Thus. the husband was guilty
of desertion even though it was the wife who had left the matrimonial home.

CONVERSION –

1. In Lily Thomas v. Union of India, (2000) 6 SCC 224, Lily had filed the petition in the
Supreme Court on status of the earlier marriage regarding a case when a non-Muslim gets
converted to the ‘Muslim’ faith without any real change or belief without divorcing first wife. On
May 5, 2000, the bench of S. Saghir Ahmed and RP Sethi, JJ held that change of religion does
not dissolve the marriage performed under the Hindu Marriage Act between two Hindus. It said,
“Apostasy does not bring to an end the civil obligations or the matrimonial bond, but
apostasy is a ground for divorce under Section 13 as also a ground for judicial separation
under Section 10 of the Hindu Marriage Act. Hindu law does not recognise bigamy. As
we have seen above, the Hindu Marriage Act, 1955 provides for “monogamy”. A second
 marriage, during the lifetime of the spouse, would be void under Sections 11 and 17,
besides being an offence.”
The Court had further held that mere conversion does not bring to an end the marital ties
unless a decree for divorce on that ground is obtained from the court. Till a decree is
passed, the marriage subsists. Any other marriage, during the subsistence of the first
marriage would constitute an offence under Section 494 read with Section 17 of the
Hindu Marriage Act, 1955 and the person, in spite of his conversion to some other
religion, would be liable to be prosecuted for the offence of bigamy.
2. In Suresh Babu v. Leela 2006 (3) KLT 891 it was held that conversion to a non-hindu religion
does not automatically dissolved the marital bond but only provides the aggrieved spouse to
move towards a court for a decree of divorce and in this relation the court admitted the decree of
divorce.
3. In Teesta Chattoraj vs Union Of India 188(2012) DLT 507 court held that Conversion to
another religion is a ground for divorce, but a spouse may be denied divorce even if the other
spouse has embraced some other religion if the former goaded the latter to such conversion.

UNSOUND MIND –

1. In Ram Narain Gupta v. Smt. Rameshwari Gupta (AIR 1988 SC 2260) the Supreme Court
elaborately described about the degree of mental disorder which will enable an aggrieved
party to a marriage to obtain a decree of divorce. The court held that the context in which
the idea of unsoundness of 'mind' and "mental disorder" occur in the section as grounds
for dissolution of a marriage, require the assessment of the degree of the "mental
disorder". Its degree must be such as that the spouse seeking relief cannot reasonably be
expected to live with the other. All mental abnormalities are not' recognised as grounds
for decree of divorce. If the mere existence of any degree of mental abnormality could
justify dissolution of a marriage, few marriages would, indeed, survive in law.
2. In R Lakshmi Narayan v Santhi ( the marriage was an arranged marriage where the
parties had met each other. After, staying together for about 25 days, they parted
company and the husband sought declaration that the marriage was void as the wife was
suffering from chronic and incurable mental disorder and was not in fit mental state to
lead married life. The incidents to substantiate the ground were, inter alia, that on the
night of marriage the husband found her drowsy; she refused cohabitation; she said she
had been suffering from mental disorder since childhood; she did not want to have any
conjugal relationship and stated that she married under pressure from parents. There was
 no allegation that she was incapable of giving valid consent to marriage owing to
unsoundness of mind at the time of marriage. The court declined to give relief on the
basis of these facts. A marriage sought to be annulled on the ground pleaded is not per se
void but voidable and strict standard of proof is required with heavy burden on the party
who approaches the court for annulment of a marriage already solemnised. According to
the court, to draw an inference of mental disorder merely from the fact that there was no
cohabitation for a short period of about a month is neither reasonable nor permissible. To
brand the wife as unfit for marriage and procreation on account of mental disorder, it
needs to be established that the ailment suffered by her is of such kind or such extent that
it is impossible for her to lead a normal married life.
3. . In GK Sanna Tippeswami v Triveni a husband sought divorce on grounds of cruelty and
mental disorder citing instances like wife's reluctance for physical relations, sleeping in
bathroom, walking out of bed during night hours, hitting her head against wall etc. The
wife challenged the same and sought restitution under section 9. Dismissing husband's
appeal and granting restitution in favour of wife the court held, in the context of mental
disorder, that the husband had failed to demonstrate that the wife was suffering from
mental disorder of such degree that it is impossible to lead normal life with her and he
cannot be reasonably expected to put up with her in such condition.
4. in Surendra Gayakwad v Janakbai Gayakwad where in response to husband's petition for
annulment on ground of wife's unsoundness of mind after 35 years, the wife alleged cruel
treatment by him impelling her to leave the house and further, in her absence, the husband
keeping a mistress and having three children from her which gave her a rude shock and
made her mentally ill, the husbands petition was dismissed. Inhuman treatment is bound
to have an adverse effect on the other party's mental/physical health and any counter act
on the victims part cannot be blamed as mental cruelty, the court remarked.
5. In T Hari Kumar Naidu v Prameela where the husband alleged mental disorder and
dangerous behaviour of the wife towards him and his children, and the wife did not co-
operate with the committee of doctors set up to examine her, the court drew an adverse
inference and the decree of divorce in favour of the husband was granted.
6. In Sheela v Baldev Singh where a wife used to beat the husband and her son, cry and
scream at night and also attempts suicide, the husband's petition for divorce on the ground
of mental disorder was granted. Besides, her illness was also proved from medical
prescription brought on record.
 VENEREAL DISEASE –
1. In Mr. X v. Hospital Z (AIR 2003 SC 664) Supreme court held that on the ground of
venereal disease Either husband or wife can get a divorce, and a person who has suffered
from the disease cannot be said to have any right to marry even before marriage, as long
as he is not completely cured of the disease.
2. In Madhusudan v Chandrika,531. a decree was sought by the husband on the ground that
the wife was suffering from venereal disease (syphilis) for more than three years and the
consent for the marriage was obtained fraudulently by concealing this fact. The court
refused to grant the decree because the husband failed to establish that the wife had been
suffering from "venereal disease in a communicable form", for not less than three years
immediately preceding the presentation of the petition. The judgment could have been
different if the case had come up after the 1976 Amendment, which has done away with
the requirement ofthree-year period.
3. The issue as to whether HIV or AIDs would come within the ambit of physical disease
or venereal disease in communicable form so as to entitle a non-affected party to relief
came up before the Madurai Bench of the Madras High Court in P Ravi Kumar v
Malarvizhi @Kokila.532. This was a husband's petition for divorce on the ground that his
wife was afflicted with HIV and so he cannot be expected to live with her. The trial court
decreed his suit but the same was set aside in appeal by the additional district judge on
the ground that AIDs is not a statutory ground for divorce. Hence, the present appeal.
Justice Ramanathan held that when the HMA was enacted in 1955, the disease was
not known and hence, there is no mention of it, but having regard to the fact that
venereal disease in communicable form is mentioned as one of the grounds, any such
disease which can be transmitted through sex, would also come within the purview of
section 13(1)(v) viz, "venereal disease in a communicable form" and HIV is one of those
diseases. Thus, the husband was granted divorce. In Sunil Lakhotia v Pratima533. also,
the Bombay High Court held that, "it is well known that HIV virus leads to AIDs which is
a venereal disease and which is sexually transmittable and so communicable. Under
such circumstances the disease squarely falls within the ambit of section 13(1)(v) of
the HMA."

RENUNCIATION OF WORLD –
1. Shital das vs. sitaram (AIR 1954 SC 606) – under the hindu law according to the
supreme court, renunciation of the worldly affair followed by entrance into religious
order generally operated as civil death. It is necessary that all the required ceremonies for
entering the religious sect or order are proved satisfactorily.

PRESUMED DEATH –

1. Nirmoo vs Nikka Ram (AIR 1968 Delhi 260)

Section 13(l)(vii)].—The clause provides that either party may seek divorce on this
ground if the other party has not been heard of as being alive, for a period of seven years
or more by those persons who would naturally have heard of it, had that party been alive.
Thus the aggrieved party may marry again and have legitimate children. If the second
marriage is performed on the basis of presumption of death without getting a decree of
divorce, no person other than the missing spouse can question the validity of the second
marriage

Non-resumption of cohabitation after decree for judicial separation

1. Mulla's Hindu Law, 17th Edition at p. 121 cited in Hirachand Srinivas Managaonkar v.
Suiumda. AIR 2001 SC 1285.
Cohabitation means living together as husband and wife. It consists of the husband acting
as a husband towards the wife and the wife acting as a wife towards the husband, the wife
rendering house wifely duties to the husband and the husband supporting his wife as a
husband should. Cohabitation does not necessarily depend on whether there is sexual
intercourse between husband and wife. If there is sexual intercourse, it is very strong
evidence—it may be conclusive evidence—that they are cohabiting, but it does not follow
that because they do not have sexual intercourse they are not cohabiting. Cohabitation
implies something different from mere residence. It must mean that the husband and wife
have began acting as such and have resumed their status and position as husband and wife
Failure to comply with the decree for restitution of conjugal rights
1. Gulab Kaur v. GURUDEO Singh. ILR 1963 Punj. 213 -
A party will be entitled to a decree of divorce also when a decree for restitution of
conjugal rights has been passed and it has not been complied with within one year of the
passing of such a decree. The spouse who fails to comply with it would do so at his or her
risk and it would not be necessary for the aggrieved spouse to prove that he or she had
made positive efforts to make the other party comply with the same and it would suffice
to show that there was no compliance with the decree
2. In the case of Smt. Bimla Devi v. Bakhtawar Singh (1976 RLR 480) it has been held that
the provisions of Section 23 (1) (a) cannot be invoked to refuse the relief under Section
13(l-A)(ii) on the ground of non-compliance of a decree of restitution of conjugal rights
where there has not been restitution of conjugal rights as between the parties to the
 marriage for a period of one year or onwards after the passing of decree for restitution of
conjugal rights in proceeding in which they were parties.
3. In O.P. Mehta v. Smt. Saroj Mehta (AIR 1984 DEL. 159) the decree for restitution of
conjugal rights was passed in favour of the husband. After four and half months the
husband brought a petition of divorce on the ground of adultery of the wife. Later on,
after a year he brought another petition of divorce on the ground that the wife has not
complied with the decree of restitution for a period of one year. The wife resisted the
petition on the ground that the husband deliberately brought a petition after four and half
months of the decree of restitution of conjugal rights falsely imputing adultery against her
and thus made it impossible for her to comply with the decree. The court held the non-
compliance of the decree to be justified and accordingly dismissed the petition of the
divorce filed by the husband. The court refused to pass the decree on the ground that
during the pendency of the petition for divorce on the ground of wife's adultery, the wife
was disabled to join her husband, and if decree of divorce were to be passed in his favour,
it would amount to husband taking advantage of his own wrong.

II—GROUNDS AVAILABLE TO WIFE ONLY [SECTION 13 (2)]

Four additional grounds of divorce are available to the wife. She may also present a
petition for the dissolution of her marriage on any of these grounds. The special grounds
of divorce available to the wife alone are given below :—
(/.) Bigamy [Section I3(2)(I)].—A wife may also present a petition for the dissolution of
marriage by a decree for divorce on the ground that in the case of any marriage
solemnized before the commencement of this Act, [i.e., 18th May, 1955], the husband
had married again before such commencement or that any other wife of the husband
married before such commencement was alive at the time of the solemnization of the
marriage of the petitioner. There is, however, one condition that in either case at the time
of the presentation of the petition the other wife is alive.
In a petition under Section 13(2)(I) by wife on the ground of second marriage by husband
which was solemnized after the commencement of the Act, the husband admitted the facts
of second marriage and living with her. No connivance or condonation by the petitioner
was proved. It was held that a second marriage by the husband was void ah initio under
Section 11 read with Section 5(1) of the Act and living with second wife amounted to
adultery. The petitioner, therefore, is entitled to a decree of divorce under Section 13(1)0)
and not under Section 13(2) of the Act.47
(/() Rape, sodomy or bestiality.—The expressions 'rape' or 'sodomy' have been defined in
Sections 375 and 377 of the Penal Code. Section 375 defines "rape" while Section 377
"unnatural offences" (i.e. sodomy or bestiality, etc.).
A man is said to commit rape who has sexual intercourse with a woman—
46. AIR 1984 Del. 159.
47. Gitu Ikii v. Fattoa, AIR 1966 MP 130.

(1) against her will, or

(2) without her consent, or
(3) with her consent, when her consent has been obtained by putting her or any person in
whom she is interested in fear of death, or of hurt, or
(4) with her consent, when the man knows that he is not her husband, and that her consent
is given because she believes that he is another man to whom she is lawfully married, or
(5) with her consent, when at the time of giving such consent, by reason of unsoundness
of mind or intoxication or the administration by him personally or through another of any
stupefying or unwholesome substance, she is unable to understand the nature and
consequences of that to which she gives consent, or
(6) with or without her consent when she is under sixteen years of age.48
A carnal intercourse against the order of nature, with any man, woman or animal is an
unnatural carnal intercourse and whoever voluntarily has such intercourse, commits an
unnatural offence 49
It should be noted that only a proof of conviction, in these criminal offences will not be
sufficient for a decree of divorce.50 The commission of the offences must be proved 'de
novo'.
{Hi) Non-resumption of cohabitation after decree or order of maintenance [Section 13(2)
(III)J.—Where the decree or order has been passed against the husband awarding
maintenance to the wife in a suit under Section 18 of the Hindu Adoptions and
Maintenance Act, 1956, or under Section 125 of the Criminal Procedure Code. 1973, and
after passing of such decree or order, cohabitation between the parties has not been
resumed for one year or upwards, decree of divorce would be granted.
(/V) Option of Puberty [Section 13(2)(IV)J.—Where the wife's marriage was solemnized
before she attained the age of fifteen years and she repudiated the marriage alter attaining
that age but before attaining the age of eighteen years. It is immaterial whether the
marriage has been consummated or not.
In Bathula Ilahi v. Bathula Devamma.^ the Court granted the decree after the wife had
attained the age of eighteen years. The wife in this case had repudiated the marriage
before attaining the age of 15 years because after living with the husband for some time
she realised that it would be dangerous to live with him any more. She came to learn later
on about the passing of Marriage Laws (Amendment) Act, 1976, which entitled her to
bring the present petition. The Court held that even if the petition has been presented after
passing of the age of eighteen years it would be allowed in the wake of reasonable
explanations for the delay.
48. Section 375, IPC, as amended by the Criminal Law (Amendment) Act, 1983.
49. Section 377. IPC.
50. Virgo v. Virgo. 69 LT 460.
51. AIR 1981 AP74.
Where the wife was married before attaining the age of fifteen years but she repudiated
the marriage after attaining the age of fifteen years but before attaining eighteen years and
all this happened before the Amendment Act of 1976 came into force, the Court held that
even after 1976 that episode can be taken into consideration and divorce can be granted to
the wife.52