FAMILY LAW

JUDICIAL SEPERATION

 9 grounds (either party), grounds in 13(1)

 4 grounds in 13(2) for women
 Sec 10, both retro and prospective
 JS must by order of competent court
 10(2)- effect of decree – not obligatory for the petitioner to cohabit with respondent, -
no RCR – choice of petitioner
 If no resumption of cohabitation – one year – ground for divorce Sec 13(1-A)(i)
 Cohabitation means living together a =s husband and wife. Sexual intercourse without
living together does not amount to cohabitation
 Decree of JS can be rescinded. Any one can file a petition – on rescission, bound to
live together otherwise RCR
 For rescission, first, the statements in petition are true, and second, just and
reasonable to grant rescission.
 Rescission by cohabitation - Object and reason for the petitioner for seeking the dcree
of JS is that he may be free from the essential marital obligation of cohabitation with
the respondent. – depends on will of the parties and duration of the cohabitation
 Differences – JS, temperory – Div., permanent – JS, rescinded – Div., complete end –
second marriage – sexual intercourse other than spouse – inheritance rights
 Similarity – similar Grounds – retrospective and prospective – gender neutral –
alimony and maintenance – sexual intercourse without consent – “feme dole”
 Petition of divorce may be converted into a petition for JS.

Hirachand Srinivash Managaokar v. Sunanda.

Adultery - JS and maintenance to wife – no maintenance – no divorce under sec 23(1)(a)
During the period of JS, one should not flout the foundation of marriage.

THEORIES OF DIVORCE

DIVORCE
 Introduction of divorce does not affect sacramental nature of marriage
  Retrospective and prospective
 No personal divorce – only through court
Adultery
 Adultery - definition
 Basic feature – sexual intercourse outside marriage – voluntary sexual intercourse
(not fraud, rape) – person other than spouse – act must be sexual intercourse not
friendship- other person must be of opposite sex.
 Bop on who levels the charges – by a cogent evidence – higher than normal civil
standard of proof - above balance of probability and below beyond reasonable doubt
 Charge against wife – alleging child is born – H has to show non access during the
relevant period
 X v. Y - DNA
 Sikha Singh v. Dina Chakraborty – adulterer and adulteress – masculine include
feminine and discretion of court to join such parties applying CPC
 Considerations – Adelaide v. Williams – 26 year late but 2 daughters to feed – court
granted divorce by ignoring delay - Nalini v. Issac – both in adultery – granted
divorce- would not be proper to refuse divorce and condemn 4 persons to live in
adultery

Cruelty
 Amendment in 1976
 A spouse who is himself or herself guilty of matrimonial fault or disability can also be
granted divorce on the ground of cruelty on the part of another spouse.
 Holmes v. Holmes - husband has full entitlement to have sex with her.
 Dastane v. Dastane - -----------------------*
 After 1976 – not reasonable person but individual – not the intent of respondent but
impact on petitioner – if conduct unlawful, impact doesn’t matter – nature of the
conduct not number – personal and social background, values of age
 Basic consideration
 Sec 498 A
 Protection of women against domestic violence act
 Under the dissolution of muslim marriage act
  Samar Ghosh v. Jaya Ghosh – IAS officer –

Desertion
 Desertion is defined by the legislature as to mean the desertion of the petitioner by the
other party to marriage without reasonable cause and without the consent or against
the wish of such party, and includes the wilful neglect of the petitioner by the other
party to the marriage.
 Factum desertion- animus deserendi – absence of consent – absence of reasonable
cause
 Must co-exist for 2 year
 When the factum and animus of desertion come to meet. If a spouse leaves the other
in a momentary fit of anger or anguish or due to brutal assault but without a will to
terminate cohabitation for good, it is not desertion. - Not mere withdrawal from place
but withdrawal from a state of things.
 Bipin Chandra Jaisingh Bhai Shah v. Prabhawatii
 Savitri Pandey v. Prem Chand Pandey – bop – coexist – other compels
-Constructive desertion – not withdrawal from place but withdrawal from a state of
things.
 Jagdish Kumar v. Radhika – medical student – exams – no animus deserendi
 Manjeet Kaur v. Sukhwinder Singh – left 2 month baby – took jewellery –
desertion- had animus deserendi
 Constructive desertion – When a spouse does not perform his or her marital duties
otowards the other spouse, or in other words, does not respect matrimonial rights of
the other spouse or spurns at matrimonial services rendered by other spouse or does
not afford opportunities to perform them, the spouse guilty of these is guilty of
deliberate or intentional neglect. This is known as constructive desertion.

Conversion
Sarla Mudgal v. UoI

Section 13(i)(iii) – Mental disease

  Sudhakar Sheroy v. Brinda Sheroy – ordinary cognitive malfunction – not mental
disease
 Darshan Gupta v. Radhika – post pregnancy aberations- not

Veneral Diseases
Renunciation of the world
Renunciation of the world and entry into a religious order must coexist

Long disappearance

Non-resumption of marital society

 Dharmendra Kumar v. Usha Kumar
 Gajna Devi v. Purushotam
 MP shreevastava v. Veena
 Hirachand Srinivas Managaonkar v. Sunanda

Secttion 13(2) – Only for women

 Lakshmi Anmol v. Alagir Swami - H married twice- w after 1955 had 2 children
and live happily knowing about – court – relief not granted – she decided to live
happily with the husband for several year – now cannot use it as relief as a brahmastra

DIVORCE BY MUTUAL CONSENT

Whether 1-year separate living is mandatory?
 If case of divorce pending – under fault – can be converted. (waived)
 Maturity and comprehension of spouse – age – deleterious effect of continuation –
absence of possibility of reconciliation
6 month waiting period
 Bijal Chandrabhai v. Chandrashekhar – litigating before court and wife filed
criminal case – not mandatory.
 HN Doshi v. Gesal Doshi: Charanjit S. Mann v. Neelam Maan – object is clear,
mentioning 6 months as mandatory, object is to avoid any hasty divorce and give the
parties time to reconciliation.
  Amardeep Singh v. Harveen Kaur, not mandatory – conditions –
Consent withdrawan
 Jaishree v. Ramesh – withdrawal mutually
 Aachchattar Singh v. Harcharan Kaur – can only be revoked mutually
 Sureshtha Devi v. Omprakash – meaning of consent vis a vis idea of divorce not
idea of continuance – can be unilaterally be withdrawn as very purpose.
Concluded – mutual consent must exist till the decree is passed in the second joint
session.
 Ashok Hurra v. Rupa Bipin Zaveri –
Whether mere silence of one party during the second joint motion amounts to withdrawal of
consent?
 Suman v. Surendra Kumar – silence means consent
 Smriti Pahariya v. Sanjay Pahariya – silence cannot means consent

MUSLIM DIVORCE
Talaq -al – Sunnat – approved; can be revoked
 Talaq-al-Ahsan – best, most proper, most approved
 Talaq-al-hasan- good, proper
Talaq-e-Biddat : unapproved, irrevocable
 Complete and binding – maintenance and mehr not inheritance
Remarry after irrevocable talaq – Doctrine of Halala
 Rashid Ahmad v. Anisa Khatun – triple talaq – wife not present – also talaq nama –
started living together – 5 children -acknowledge paternity – Privy Council – no
intervening marriage – baatil - children illegitimate
Ila
Zihar
Talaq-e-Tafweez – (instance of wife)- H delegates the power to his own wife or 3 rd person
when certain condition emerges - irrevocable
Khula
 Moonshee Buzul-ul-raheem v. lattefut-un-nissa – kula – one irrevocable divorce
  Balguis Fatima v. Najm -ul-Iqrar – wife entitled to khula as of right if she satisfies
the court that would otherwise mean forcing her into a hateful union.
Mubarat

Talaq-e-biddat
 Shamim Ara v. State of UP – married in 1968 – 1979 filed for maintenance under
125 Crpc – husband on 1990 filed written that she was divorced in 1987 – HC,
maintenance from 1979-87 – Can a mere plea taken in statement about divorce being
pronounced in past would mean an effective divorce? – referred Rukiya Khatun v.
Abdul Laskar, quran does not talk about talaq-e-biddat – court upheld and order
talaq in order to be effective has to be pronounced – pronounce means to utter,
declare, proclaim. After such pronouncement it must be communicated to the wife
as soon as possible as her rights are affected on such divorce. SC held that the divorce
is not valid, since not communicated to wife.
 Musroor Ahmed v. State – (i) Talaq in anger, fist or state of intoxication would not
be vaild and effective. – (ii) talaq-e-biddat – one revocable act – taken back during
iddat- (iii) one attempt at reconciliation is must – (iv) talaq must be pronounced and
communicated to wife – valid from the date of communication to the wife.
 Shayara Bano v. UoI

Judicial Divorce
Lian – false charge of adultery – adult and sane husband – only in sahih marriage not faasid
Faskh – before DMMA,1939, only 3 grounds – option of puberty, lian, impotence, - After
DMMA, 9 grounds – only to women married under muslim law
 Yousuf v. Sawrama – maintenance: when unambiguous and clear, then effect must
be given to whatever be the consequence.
 Ilwari v. Ashghari - nothing like hindu concept of cruelity, it has to be seen from
point of view of petitioner – Islam just tolerate polygamy and does not give it as a
matter of right – H must treat all wives equally and his polygamous behaviour even
though legally protected can still be basis for dismissing petition for RCR
