(i) Circumstantial evidence,
(ii) Birth of a child to the wife when there is no evidence of contact with her,
(iii) Contracting of a venereal disease,
(iv) Admission on die part of the respondent in some other proceedings or a clear confession by him,
(v) Discovery of letters which might contain such contents which suggest sexual relationship between the two.
Even a solitary proof of extra-marital intercourse is sufficient for getting a decree of judicial separation. There can be circumstantial evidence but it should be such that it might rule out the possibility of his innocence. Pre-marital illicit intercourse cannot be a ground to the relief of judicial separation.
It is not necessary to establish cohabitation by direct evidence as it is very rare in such cases. The evidence may be circumstantial and should be such as to rebut the presumption of innocence in favour of the party against whom the charge is levelled. If any eye-witness thereto is produced, there is very little chance of his credibility. The general rule is that the circumstantial evidence should be such which might appear reasonable to a man of common prudence.
In Suvrai v. Saraswathi, the court held that in most cases the evidence is circumstantial and the circumstances under which the act is alleged to have been done must be determinative and in every probability must lead to a conclusion of illicit cohabitation. If a stranger to the family is found in the bedroom of wife at mid-night in absence of an acceptable explanation, it would normally be concluded that illicit intercourse must have taken effect.
But if the wife is found moving on a scooter with a stranger or talking with him in lonely places, adulterous relations cannot be inferred particularly in modern social context when moral values are changing at a rapid pace. Similarly presence of the wife and the respondent holding her breasts in his hands by itself cannot permit any inference of adultery.
In Chandra Mohini v. Avinash Srivastava the Supreme Court observed that love letters, written to wife by a certain person, howsoever objectionable contents they might contain or might they be leading to an inference of adulterous relations could not establish adultery between the two in absence of proof of similar letters being despatched by the wife to him.
In the above case husband’s petition for divorce on the ground of adultery was rejected by the court as the husband could not produce a single letter which might have been written by her in response to those love letters which were sent to her. But where the exchange of letters between them unequivocally suggested illicit relations between them the husband deserves the relief against his wife. Since no direct evidence of illicit intercourse is available, the court has to depend on indirect evidence.
Where a person has married within prohibited degrees of relationship and later on, on discovering the marriage to be void, he marries another person, then the intercourse with the wife of previous marriage would also amount to illicit intercourse and on that basis the wife of valid marriage can obtain the decree of judicial separation.
Intercourse in the present context implies the consent of both the parties to the act. Where the respondent was raped against her consent or by mistake or made to agree to the act by her doctor under the belief that it was an operation, or when it was done under anesthesia or influence of drugs it could not be said to be an act of voluntary sexual intercourse.
The act of sexual intercourse must have been willing and a knowing act consented to by the respondent in violation of the matrimonial obligation not to have sexual intercourse with any person other than his or her spouse.
The expression cruelty has not been defined in the Act but the judicial decisions have made it distinct that cruelty in the legal sense not necessarily be physical violence. A course of conduct or treatment which tends to undermine the health of the spouse on that account or affects the reasonable happiness of the life and ill-treatment both physical or mental would constitute cruelty. There is mental as well as physical cruelty. Motive or intention to be cruel is not necessary if conduct otherwise can be held to be cruel.
In India, the Protection of Women from Domestic Violence Act, 2005 provides for more effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family and for matter connected therewith or incidental thereto. The statement of objects and reasons of the Act, 2005 reads as under:
“1. Domestic violence is undoubtedly a human rights issue and serious deterrent to development. The Vienna Accord of 1994 and the Beijing Declaration and the Platform for Action (1995) have acknowledged this. The United Nations Committee on Convention on Elimination of All Forms of Discrimination against Women (CEDAW) in its General Recommendation No. XII (1989) has recommended that State parties should act to protect women against violence of any kind especially that occurring within the family.
2. The phenomenon of domestic violence is widely prevalent but has remained largely invisible in the public domain. Presently, where a woman is subjected to cruelty by her husband or his relatives, it is an offence under Section 498-A of the Indian Penal Code. The civil law does not however, address this phenomenon in its entirety.
3. It is, therefore, proposed to enact a law keeping in view the rights guaranteed under Articles 14, 15 and 21 of the Constitution to provide for a remedy under the civil law which is intended to protect the woman from being victim of domestic violence and to prevent the occurrence of domestic violence in the society.
4. The Bill, inter alia, seeks to provide for the following—
(i) It covers those women who are or have been in a relationship with the abuser where both parties have lived together in a shared household and are related by consanguinity, marriage or through a relationship in the nature of marriage or adoption. In addition, relationships with family members living together as a joint family are also included. Even those women who are sisters, widows, mothers, single woman, or living with the abuser are entitled to legal protection under the proposed legislation.
However, whereas the Bill enables the wife or the female living in a relationship in the nature of marriage to file a complaint under the proposed enactment against any relative of the husband or the male partner, it does not enable any female relative of the husband or the male partner to file a complaint against the wife or the female partner.
(ii) It defines the expression “domestic violence” to include actual abuse or threat or abuse that is physical, sexual, verbal, emotional or economic. Harassment by way of unlawful dowry demands to the woman or her relatives would also be covered under this definition.
(iii) It provides for the rights of women to secure housing. It also provides for the right of a woman to reside in her matrimonial home or shared household, whether or not she has any title or rights in such home or household. This right is secured by a residence order, which is passed by the Magistrate.
(iv) It empowers the Magistrate to pass protection orders in favour of the aggrieved person to prevent the respondent from aiding or committing an act of domestic violence or any other specified act, entering a workplace or any other place frequented by the aggrieved person, attempting to communicate with her, isolating any assets used by both the parties and causing violence to the aggrieved person, her relatives or others who provide her assistance from the domestic violence.
(v) It provides for appointment of Protection Officers and registration of non-governmental organisations as service providers for providing assistance to the aggrieved person with respect to her medical examination, obtaining legal aid, safe shelter, etc.
5. The Bill seeks to achieve the above objects.”
In England, the House of Lords observed that cruelty in the matrimonial law implies legal cruelty, which means not only actual physical assault but also a reasonable apprehension of danger to life, limb, health and happiness. As held in Russel v. Russel, “cruelty which is a ground for dissolution of marriage may be defined as wilful and injustifiable conduct of such a 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 false imputation made by the husband against his wife that she is living an adulterous life amounts to such cruelty as to cause reasonable apprehension in her mind that it would be harmful or injurious for her to live with the husband.
Different kinds of cruelty justifying judicial separation can be classified under the following heads:
(i) Actual or Threatened Physical Injury:
Physical injury will necessarily constitute a violence of certain degree and such degree of violence sufficient to constitute legal cruelty will vary with the status of parties in each case. Where bodily injury is inflicted or there is reasonable apprehension of danger to life, limb or health, bodily or mental, it is easy to conclude that cruelty has taken place. One or two acts of beating inflicted by the husband on the wife are sufficient to constitute cruelty.
In Prarnati Chatterjee v. Gautam Chatterjee, the Calcutta High Court observed that the wife left matrimonial home after two years of marriage and was not willing to come back. Wife was having separate source of income and interested in looking after father’s business making false allegation against husband before police and his employer and also deprived him from cohabitation. Therefore, husband is entitled to decree of divorce as wife had failed to prove the allegation of physical cruelty against husband.
(ii) Verbal Abuse or Insults:
The continual use of abusive mid insulting words spitefully indulged in to bring shame and mental agony to the other spouse which will tend to undermine the health of that spouse may in the circumstances of any particular case amount to legal cruelty. Where the wife used foul and abusive language to the husband and his parents and generally picked up quarrels tending to disturb husband’s mental peace, it was held to amount to cruelty.
Insulting conduct indulged in by the wife in public against her husband would cause mental agony and pain and therefore, it would amount to cruelty.
(iii) Excessive Sexual Intercourse:
Sex plays an important role in marital life and cannot be separated from other factors which lend to matrimony a sense of fruition and fulfilment. But demand of excessive sexual intercourse and compelling the other partner to submit to it against one’s wishes and despite one’s remonstrance, resulting in the impairment of other’s health will amount to cruelty.
(iv) Refusal of Intercourse:
Where sexual intercourse is unreasonably refused and the refusal is persisted in for long time, it will amount to cruelty. The question whether refusal will amount to legal cruelty depends upon the facts of each case. Refusal of sexual intercourse is not per se cruelty, but its persistent refusal would amount to cruelty.
In Shanker Prasad v. Madhabi the court held that where the wife has been refusing to sexual intercourse without any reasonable justification or expressed her inability to co-operate in the sexual act or she behaves in a manner that the consummation becomes impossible, such deliberate acts of the wife would amount to legal cruelty and the husband would be entitled to matrimonial relief.
Neglect by the spouse in the discharge of his or her duties of attention and company to the other and forcing the latter to leave the home on account of such neglect would in the circumstances of any particular case constitute neglect amounting to cruelty. Incompatibility of temperament will not amount to cruelty. Where the conduct of the husband was so cold and neglectful that it affected the health of the wife and in case of continuance of such conduct she could have become a victim of melancholia, the court held it to be a case of legal cruelty.
In Rajendm Singh v. Taramati, the husband was seriously injured in an accident and was admitted in a hospital. He remained in the hospital for treatment for about eight months, but the wife did not care to visit him regularly despite the information of his condition. The court held that the conduct of wife was so neglectful that it amounts to cruelty and the husband is entitled to get a decree of divorce.
(vi) Communication of Venereal Disease:
Where a spouse knowing it well that she or he is afflicted with venereal disease has sexual intercourse with the other is guilty of cruelty.
(vii) Drunkenness and Use of Drugs:
Drunkenness and intemperance and violent behaviour due to use of drugs may not in themselves constitute cruelty, but if they result in violent acts injurious to health, whether mental or physical of the other spouse, then the protection of the court is to be rendered by judicial separation.
In Rita v. Brij Kishore, the Delhi High Court observed that excessive drinking is a vice and cannot be considered a reasonable wear and tear of married life. No reasonable person marries to bargain to endure habitual drunkenness, a disgusting conduct. And yet it is not an independent ground of any matrimonial relief in India.
But it may constitute treatment with cruelty, if indulged in by a spouse and continued in spite of remonstrances by the other. It may cause great anguish and distress to the wife who never suspected what she was bargaining for and may sooner or later find living together not only miserable but unbearable. If it was so, she may leave him and may, apart from cruelty, even complain of constructive desertion or wilful neglect by the husband.
(viii) Refusal to Speak:
Where one of the spouses living under the same roof refuses to speak to the other for a considerable long time and it causes worry and anxiety to the other such conduct of the party refusing to speak may amount to cruelty. While considering such conduct as a case of cruelty, the attendant circumstances and relationship between the spouses has to be taken into consideration.
(ix) Forcing Association with Improper Persons:
Each spouse enjoys a right to sanctity of the marital bed preserved unsullied by the intrusion of strangers, and if either introduces such strangers to share the life of home and the conjugal society of the other it would amount to cruelty. Where the husband induces his wife to have intercourse with a stranger or induces her to put up with a lewd woman whom he has brought into her room for his carnal satisfaction, the wife is entitled to resist all such immoral attempts by filing a petition for judicial separation on the ground of cruelty. There cannot be greater degree of cruelty than to compel a chaste wife to submit to overtures of other persons out of an ignoble desire to make gains by prostituting the wife.
(x) False Charge of Immorality against the Wife:
Where a husband falsely charges his wife with immorality and adultery and persists in such charge, it would amount to cruelty. Normally such persistent charges undermine the health and happiness of decent Woman and would justify her claim for relief. Husband writing threatening letters to the wife, making false complaints of theft against her to the police and also writing letters to her superiors containing false and baseless allegations, constitute cruelty on the part of the husband. Where allegations of adultery are made without proper foundation® and basis, it would constitute mental cruelty on the other spouse.
(xi) Ill-Treatment of Children:
Deliberate and designed ill-treatment of the children in the presence of the mother with a view to give her pain carried to such an extent that it affected her health and pained her mind will amount to legal cruelty and would enable her for a judicial separation.
(xii) Refusal to have Children:
Where the husband deliberately and without good reasons, permanently denies his wife of a fair opportunity of having a child, by his practice of coitus interrupts, a course which, while preserving to himself a measure of sexual enjoyment, it was held to be a deliberate act contrary to the laws of nature and one which any reasonable husband must realise is likely to affect the wife’s health and hence an instance of legal cruelty.
Similarly where a wife deliberately and consistently refused to satisfy the husband’s desire for having children by insisting on use of contraceptives, thus disabling any conception, causing anxiety and mental ill-health to the husband, it was held that the wife was guilty of cruelty to her husband. Where the husband and other family members were crazy to have a child in the family but their wishes were shattered by die conduct of the wife who always resorted to termination of pregnancy it was held to be an act of cruelty.
Dastane v. Pastime is a leading case on judicial separation. In this case, the petitioner husband moved a petition for annulment of marriage or alternatively for judicial separation or for divorce. The annulment was sought on the ground of fraud, divorce on the ground of unsoundness of mind and judicial separation on the ground of cruelty. The petition was dismissed hence the husband filed the appeal before the apex court asking for judicial separation on the ground of legal cruelty.
It was alleged by the husband that his wife used to threaten him by saying that she will put an end to her own life or that she will set the house on fire. She also gave the threat that she will make him lose his job and have the matter published in the newspaper and persistent abuses and insults hurled at the husband and his parents were so grave as to imperil the husband’s sense of personal safety, mental happiness, job satisfaction and reputation. Her once too-frequent apologies do not reflect genuine contrition but were merely impromptu devices to tide over a crisis temporarily.
Similarly the acts like tearing of the Mangalsutra, locking out the husband when he is due to return from office, rubbing chillie powder on the tongue of an infant child, beating a child mercilessly while in high fever and switching on the light at night and sitting by the side of the husband merely to nag him, are acts which tend to destroy the legitimate ends and objects of matrimony.
Thus the conduct of the wife was held to amount to cruelty. The court observed: “Harm or injury to health, reputation, the working career or the like would be an important consideration in determining whether the conduct of the respondent amounts to cruelty. It is not necessary, as under the English law, that the cruelty must be of such a character as to cause danger to life, limb and health as to give rise to a reasonable apprehension of such danger. Therefore, what the courts must determine is not whether the petitioner has proved the cruelty having regard to the principles of English law, but whether the petitioner proves that the respondent has treated him with such cruelty as to cause a reasonable apprehension in his mind that it will be harmful or injurious for him to live with the respondent.”
Thus it is now well settled that cruelty has to be of such kind as to make the complaining spouse’s continued association under the same roof with the other spouse unsafe for his or her mental or physical health. If a wife is arrogant and temperamental lady and her behaviour consists of total disrespect towards her husband and the members of his family and she has dislike for them, besides constant nagging, her conduct is sufficient to cause untold mental agony to the husband. Once the cruelty is condoned it revives again by fresh act of cruelty.
Condonation signifies forgiveness of the matrimonial offence and restoration of the offending spouse to the same position as she occupied before the commission of the offence. To constitute condonation there must be two things: forgiveness and restoration. In Dastane v. Dastane, it was held that where the spouses led normal sexual life even after a series of acts of cruelty by one spouse, it will be a sufficient proof of condonation by the other.
Desertion is the act of forsaking or abandoning or the act of quitting without leave with an intention not to return. To constitute desertion, there must be cessation of cohabitation without cause thereof and consent thereto and with an intention to abandon which is wilfully persisted in a space of the statutory period.
A mere severance of the relation is not sufficient, since there may be separation without desertion and desertion without separation. Continued separation of husband and wife which may be consistent with no intention to wilfully desert, is not desertion within the meaning of the statute.
In Labh Kaur v. Narain Singh the court held that desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent, and without reasonable cause. It is total repudiation of the obligations of marriage. In case a spouse abandoned the other spouse in a state of temporary passion, like anger or disgust, without intending permanently to cease cohabitation, it will not amount to desertion.
Desertion implies the factum of separation and animus deserendi i.e., the intention to bring cohabitation permanently to an end. In the absence of animus deserendi a desertion cannot be taken as proved merely because the parties are living separately.
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:
In order to constitute desertion, the following facts must be established—
(i) The spouse must have parted or terminated joint living,
(ii) The deserting spouse must have the intention to desert the other spouse,
(iii) The deserted spouse must not have agreed to the separation,
(iv) The desertion must have been without cause, and
(v) This state of affairs must have continued for the requisite period, i.e., two years.
In simple desertion there is abandonment, in constructive desertion there is expulsive conduct. The conduct must be grave and weighty. Constructive desertion is not abandonment of a place (matrimonial home) but of a relationship, namely, matrimonial relationship. If one spouse by words and conduct compels the other to quit the matrimonial home the former will be guilty of desertion though the latter has physically separated from the other and left the matrimonial home.
Constructive desertion in the expression used to show that the spouse who forces the other to leave him or her is guilty of desertion even though the party going away from the matrimonial home is the other party. In deciding the question of desertion, the court has to look at the conduct of both the spouses and it must be remembered that there is no substantial difference between a husband leaving his wife animus deserendi, and a husband who by his conduct with like intention brings cohabitation to an end by compelling his wife to depart from the matrimonial home.
In the case of Tarachand v. Smt. Narain Devi, the court laid down that where the appellant had himself created a situation under which the respondent was compelled to leave home and live separately, the appellant could not raise the plea of desertion against the respondent and file a petition for judicial separation.
Wilful Neglect and Desertion:
The explanation to Section 10 lays down that desertion includes the wilful neglect of the petitioner by the other party to the marriage; “wilful” means ‘on purpose’ ‘intentional’ and neglect means neglect in the discharge of marital obligations of consortium and cohabitation. Mr. Subba Rao, J., expressed the view that the use of the expression ‘wilful neglect’ aims at including constructive desertion within its ambit and so it must have all the ingredients of desertion. Inclusion of ‘wilful neglect’ has considerably widened the scope of desertion.
The Karnataka High Court upholding this view in Dr. Srikant Rangacharya v. Smt. Anuradha observed that the 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. Desertion is inferred from the state of affairs and not from place.
Where the wife is falsely accused of sexlessness hurting her ego especially when the husband himself was suffering from physical disabilities, the husband would be guilty of desertion. Similarly where the husband fails to provide sufficient fund for subsistence consistent with his means and income, or does not make arrangement to keep her with him independently or does not provide her any reliefs in case of acts of cruelties done to her, the court has held the husband guilty of desertion.
The burden of proving desertion, i.e., factum of separation and animus deserendi is always on the petitioner. He or she must show that it was without any reasonable excuse and that it existed throughout the period of at least two years.
Prior to the amendment of Section 10 of the Act by Marriage Laws (Amendment) Act, 1976, conversion was a ground of decree of divorce and now it has also been made a ground for judicial separation. According to this sub-section, ceasing to be a Hindu by conversion on the part of the other party to the marriage, forms a ground for a decree of judicial separation and of divorce. The petitioner, who himself ceases to be Hindu by conversion, cannot claim a decree for judicial separation or for divorce on the ground of his or her conversion.
5. Unsoundness of Mind:
Incurable unsoundness of mind of either party to marriage is a ground of judicial separation. The Amendment Act of 1976 has amended the section and now it is no longer required to establish that the other party has been continuously of unsound mind for a period not less than two years immediately prior to the presentation of the petition.
The petitioner has to establish that the 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 be expected to live with the respondent. 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.
The expression psychopathic disorder means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party and whether or not it requires is susceptible to medical treatment. This clause requires that the respondent’s unsoundness of mind should be incurable.
Prior to the amendment in the Hindu Marriage Act, 1955 by the Amendment Act of 1976, for getting a decree for judicial separation under this clause, it was to be established that the respondent has, for a period not less than one year immediately prior to the presentation of the petition been suffering from virulent form of leprosy.
Under the Amendment Act of 1976, the period of one year has been deleted and the word incurable has been added. In order to get a decree of judicial separation under this clause, it has to be established that the respondent has been suffering from a virulent and incurable “form of leprosy.”
The leprosy which is malignant or venomous can be termed as virulent. Lepromatous leprosy is virulent and incurable.
7. Venereal Disease:
Tine Amendment Act of 1976 has dispensed with the requirement of three years suffering from venereal disease and now it requires to establish for judicial separation that the respondent has been suffering from venereal disease in a communicable form. By this amendment the words “the disease not having been contracted from the petitioner” have also been omitted.
A man knowing that he has a venereal disease, if he compels his wife, she being unwilling, owing to his condition, to have intercourse with him, may be found guilty of cruelty though in fact, she does not infect her. The expression ‘communicable’ shows that the disease not has been communicated to the petitioner. It is enough to show that the disease has developed in an advanced stage that it poses a danger of infection or contagion to whatsoever comes into his/her contact.
8. Renunciation of the World:
Before the amendment in the Hindu Marriage Act, 1955 this ground was not available for a decree of judicial separation and it was a ground only for divorce. The Marriage Laws (Amendment) Act, 1976 has made this clause also a ground for judicial separation.
The renunciation implies a religious order which operates as a civil death and, therefore, the other party has been given right to obtain a decree of judicial separation or divorce. Mere declaration of the renunciation of the world by a person is not sufficient and it has to be further proved that such person has joined some religious order contrary to the concept of marriage.
9. Presumption of Death:
Under the Marriage Laws (Amendment) Act, 1976, the fact that the other party has not been heard of as being alive for a period of seven years or more by those who would naturally have heard of it, had that party been alive, has also been made a ground for judicial separation. Previously it was ground for divorce only.
The Marriage Laws (Amendment) Act, 1976 has brought out significant changes in the grounds of judicial separation. The grounds of judicial separation and divorce have been made identical.
Accordingly additional grounds have been made available to the wife for a decree of judicial separation, which are as follows:
(i) Bigamy- In case of any marriage solemnized before the commencement of this Act, that 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:
Provided that in either case the other wife is alive at the time of the presentation of the petition, or
(ii) Rape or Sodomy- The husband has, since the solemnization of the marriage, been guilty of rape or sodomy; or
(iii) That in a suit under Section 18 of the Hindu Adoption and Maintenance Act, 1956, or in a proceeding under Section 125 of the Code of Criminal Procedure, 1973, a decree or order has been passed against the husband awarding maintenance to wife and that since the passing of such decree or order cohabitation between the parties had not been resumed for one year or upwards; or
(iv) That her marriage (whether consummated or not) was solemnized before she attained the age of 15 years and she has repudiated the marriage after attaining that age but before attaining the age of 18 years. The above four grounds are available to a wife whether her marriage was solemnized before or after the commencement of Marriage Laws (Amendment) Act of 1976.