Men and women physical relationship and its legalities

K.P.Satish Kumar M.L Advocate Madras High Court Political Philosopher
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Daniel & Daniel Helpline ;- 9884883318
Men and Women Physical Relationships
– its Legalities
( A guide for legal relationships and its break-
up)
K.P.Satish Kumar Advocate
Men is meant for Women and Women is meant for Men.
Men never came from Mars and Women never came
form Venus. Both Men and Women are born and brought
up from the Earth. All the Bio unity, meta physics and
mental chemistry are made for Men and Women for a
combined life in the soil bounded by the water. Mars
never collides with the Venus and the Venus never
collides with the Mars, they are produced to live with
oneness of body, mind and soul. This philosophy of
nature and the natural order of the creation emerges to
regulates to an organisation which today it is established
as an Marriage institution.
The Body and the Mind of the women are made for the
physical, mental, emotional and spiritual attractions for
the men and in the reciprocal the Body and the mind of

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the men are made for the physical, mental, emotional
and spiritual attractions for the women.
The object and the aim of the human life is the
manifestation of the physical, mental, emotional and
spiritual interactions of the men and the women. And the
entire humanity is the out of those actions and reactions.
The words used in the holy books regarding the
interactions of the man and women is that they came to
know each other. The interactions of men and women
regarding their physical, mental, emotional and spiritual
life and knowing one among other is the basic foundation
of the union of men and women.
The submission of women to men and the men to
women by material, sprit and soul is the next step in the
united life of men and women. They enjoyed the love,
kindness, ....

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Women and men meant to live together, Dine with same
food, support each other and sleep together. This
relationship was projected as husband and wife
relationship. In the process of unification men became
husband and women became wife. Whenever in such
process if a man or women lack in the unification of their
interactions in physical, mental, emotional and spiritual
things, there lead a division among them. It leads to
various problems in their lives and with the society
connected with them directly or indirectly. And problems
also arises by the persons connected to them in a human
bondage or without bondage.
Some religions says that both the husband are the one
and the same. Wife is made from the body of the
husband. Whatsoever it is but they means both husband
should be in oneness in body, mental, emotional and
spiritual. This relationship creates the marriage
institution. Religions considered this as a sacred one and
the institution is created by the god. Humans considered

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this as a contact between themselves in order to protect
the social, physical, spiritual, emotional and mental
order of the human society and the institution created by
the rules framed by them.
How many husbands can a women have?
Modern laws in all societies permitted a women to have
one husband at a time. If she marries another person
when a spouse was alive it is a crime according to the
law of this land. In Mahabaratha we find that Drowpathi
possessed five husbands at a time. And there was no
other example a women posses more husbands at a
time.
Having a husband or marrying a person when the first
husband was alive is bigamy. And Indian penal code
imposes 7 years imprisonment for such offence. The
first husband is also entitled for divorce under this
ground. The first husband can approach the court by
proving the second marriage and can divorce his wife.

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The second husband has also have the legal remedy if he
is innocent about the first marriage of his wife at the
time of marriage. And he should approach the court
within one year of the knowledge that his wife’s
marriage is in existence with her first husband at the
time of the second marriage. The second husband can
get the annulment of the marriage and get a valid
decree from the court declaring the marriage as null and
void.
After the death of the first husband the women is legally
free and she is entitled to marry another person. This is
permitted in all religions and the modern Hindu law also
accepts the same. In some areas in India women’s burn
themselves together with their husband after his death.
This was abolished by the legislation. And widow
remarriage also recognised in the Indian Community.
How many wife’s can a man have?

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All over the world men have many wife and concubines
but the modernisation of the religion and the laws
curtailed the number of wives to one to four. And those
laws has not given any legal rights to concubines in
respect of property and legal heir.
In the historical times Indian rulers and the ruling
society have thousand of wives. In those cases the first
wife have primary rights over the others. In western
world such a huge number of wives is unknown but they
have quite pretty in numbers according to their status
and authority over the earth. In early era the Tamil
society has given status of wife to the first married and
given concubine status to other women who to perform
the duties of the wife when the first wife was not
available. But the concubine received the respect from
the society as such as the first wife.
In all communities a man marrying all the sisters is quite
common. Israel married Leah and Rachael both were

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sisters. And even he married the servants of his wife. It
also seemed that his grand father Abraham also married
Agar who was the servant of his wife Sarah who gave
birth to Ishamavel whom the descendants are believed
to be Arabs.
The Muslim religion and the Syrian catholic a sect of
Christian community permits a man to have four wife at
a time and the fifth wife is illegal. But for the persons
covered under modern Hindu law and the Christians
more than one wife is illegal. If a person marries more
than one wife the first wife can terminate her marriage
on the ground of Bigamy. If the second wife is innocent
about the first marriage at the time of her marriage then
she can approach the court to annul her marriage as null
and void within a period of one year after she discovers
that she was cheated by her husband.
The modern women never allows her husband to have a
second wife and this leads to a dramatic warfare in

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thousands of families not only in India but also in
western countries. The Morden law also not permits to
have more than one wife expect as mentioned above.
Can a women live with another men apart from her
husband?
Living with other person when there is husband is
treaded as adulteress life in the women’s part. In ancient
society in some areas women’s are even treated as
properties and the husband is the owner of the
properties. In some society women are treated as equal
counterparts and given respected as equal to men’s as in
Tamil society. In the modern Christianity it preaches
men rules over women and women rules over the men in
the matrimonial tie up. And no one permits to have a
physical relationship of a women outside the matrimonial
tie up.
Women’s in the modern society is allowed to interact
with the other persons and society in economical, social,

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political and spiritual spheres but not in physical spheres.
And the same to men.
In the modern communication means and its easy access
with every body makes a women to contact with a
person better than the physical, economical, social and
spiritual persons. For any physical satisfaction, or
economic benevolent or to have a protected social
atmosphere or in the improvement in spiritual spheres
without the religious, racial and linguistic barriers they
made a physical relationships with others.
Indian law says if a women is living with a women in a
physical relationship continuously as a husband and wife
relationship then it amounts to divorce. The punishment
provision in the IPC provision was recently scarped by
the Supreme court of India. But living in adultery can
lead the other person to obtain divorce. Proving adultery
is a challengeable one not one in India but also world

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wide. Definitely without a help of an expert it is hard to
prove adultery.
Can a men live with another women apart from his
Wife?
The men and women who are living together with the
intention to procure the child and to live in a mutual
benefit way it is considered as husband and wife
relation. The legal system denies the wife status to
others except the first wife as a husband and wife
relationship, the law gives only concubine status.
In the modern law every has a right to choice of living
and choose his first partner, but denies the choosing of
second and subsequent partners. The most progressive
law the Hindu Marriage Act 1955 only abolishes the evil
system practised against women’s but not granted wife
status for the second and subsequent wife’s. The same
thing is also continuing in the western world. Even the
older Judaism permits their husband to have many wife’s

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and gives wife status except for the servants who are
travelling with wife relationship.
Muslim men and Syrian catholic can have four wife and
all the four wives lives in a wife status. In Hinduism
polygamy is abolished. And in Christianity preaches that
the physical relationship other than a wife is sin. Even
the so called progressive humans in the earth, the
communists and the Atheists are preserving the one
husband and one wife policy in the society.
In India it is quiet common to have two wife system in
lower status of people and in the higher status of people.
The class system in between the above category is
strongly condemning the act.
If men live with other women apart from his wife then
the wife can seek divorce on the ground of adulteress
live of her husband. When a husband compels his
concubine to live along with his wife or keeping his

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mistress in the same house along with the wife is a
serious ground for divorce.
What is legal right of the concubine?
The Concubine has no legal right in and out side India.
She cannot claim wife status. She cannot claim the
property of her husband after his death. She has no right
to live in her partners house after his death nor claims
any benefit form her partner for her future livelihood and
decent living.
Hence many concubines are forcing their partners to
divorce his first wife and to marry them legally. On this
situation many divorces cases are filing in India. Because
the Hide and seek relationship between the men and his
concubine makes her socially rejected, makes cheap in
the society.
Mere cohabitation or negotiation for marriage is not a
marriage. A document will not solemnize a marriage.

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Marriage in accordance with the custom of the
community has to been conducted, unless it is proved
there is no valid form of marriage. If the marriage is not
took place in accordance with the manner known to law,
then no one can claim husband and wife relationship.
Registered agreement entered into between parties
agreeing that they would not take another spouse and
that they accepted each other as husband and wife is not
a marriage. Betrothal is not a marriage.
A person cannot be said to married merely they have a
long and intimate relationship between them. The parties
should show some valid forms of marriage well known to
law. If there is no known manner of marriage format was
performed then no one can assume a marriage was
performed and the parties of such function can treat as
husband and wife.
When a valid marriage is not established between the
parties then the parties cannot claim husband and wife

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status. They wont be a legal heir of the other party and
no share in the property can be claimed by the other
party. Long and intimate relationship only shows the
live-in relationship not declares the husband and wife
status.
When a Marriage became valid Marriage?
1.A Hindu and a Christian cannot undergo a marriage
ceremony under Hindu Marriage format.
2.A Hindu and a Muslim cannot undergo a marriage
ceremony under Muslim law.
3. Marriage between persons belong to different religion
can undergo marriage only under special marriage
format, if they perform marriage under any format then
it is void.
4. A persons of Hindu or Christian cannot have a valid
marriage by merely signing an agreement.

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5.Having a reception without any marriage ceremony is
not a valid marriage.
6. Having a marriage certificate without performing
marriage ceremony is not a valid marriage.
7. Merely registering a fake marriage which was not held
before the marriage register and obtaining marriage
certificate is not a valid marriage.
8. Any marriage which took place without the recognized
customary rites and practices between Hindus, Christians
and Muslims or to any other religious persons is not a
valid marriage.
9.Metinoning the name in Ration card or Aadhar card or
Voter Id as husband and wife is not a valid proof of
Marriage.
10. Birth certificates of the children is not a valid proof of
Marriage.

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11. Affidavit sworn before the Notary public and
commissioner of oaths is not a valid marriage.
12. A man lived as husband and wife for more than 50
years presumption they are married.
13. No strict proof of marriage is necessary to claim
maintenance under 125 Cr.P.C.
What is the accepted form of Hindu Marriage?
1.Tying of mangalliyasootara or thali around the neck of
the bride by the bridegroom was an essential rite to be
performed so as to constitute a valid marriage between a
man and a woman
2. Taking seven steps by the men and women surround
the sacred fire constitute a valid marriage.
3. In Tamilnadu marriage between any two Hindus,
whether called suyamariyathai marriage
or seerthiruththa marriage or by any other name,

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solemnized in the presence of relatives, friends or other
persons-
(a) by each party to the marriage declaring in any
language understood by the parties that each takes
the other to be his wife or, as the case may be, her
husband; or
(b) by each party to the marriage garlanding the other
or putting a ring upon any finger of the other; or
(c) by the tying of the thali. The above things
constitute a valid marriage.
4. Oral evidence of co-worker of wife and landlord,
both parties living together as husband and wife which
is sufficient proof of marriage for the purpose of
maintenance under CR.P.C. Supreme court in Kamala
case in 2018(3) DMC 694.
5. Where a man and woman are proved to have lived
together as man and wife along with his father and
mother, the law will presume, unless the contrary be

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clearly proved, that they were living together in
consequence of a valid marriage and not in a state of
concubinage.
6. The supreme court held in Tulsa case in 2008 (4) SCC
520 that under the light of the section 114 of the
Evidence Act it is the Presumption of marriage that a
man and woman living together for 30 years as man and
wife is husband and wife
(a) Under Section 50 and 114 of Evidence Act marriage
can be presumed from the common course of natural
events and the conduct of parties as they are borne out
by the facts of a particular case.
(b) The presumption was however, rebuttable, but a
heavy burden lies on the person who contends that there
was no marriage.
Can a husband and wife can together breakup their
matrimonial tie up?

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In ancient times once a man is married to a women their
continues a husband and wife relationship till their
death. Even the law giver of Israel Mosses has
introduced to divorce their wife on certain grounds. But
not introduced the break their matrimonial tie up on
consent between them. The cannon law practised by the
Roman Catholic churches has also formulated the
grounds for divorce but not mutual consent.
The Muslims are more progressive in this and they can
give unilateral divorce to others without the consent of
the others or without proving the ground for divorce
allowed from them. Talaq is practised in entire Muslim
community where a men can divorce his wife. And Kula
is practised in some sector of Muslim community by
women’s. Consent on both side for divorce are also well
known to Muslim community. This system prevails in
Muslim community from memorable ages.

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Modern Hindu reformist and thinkers have suggested
various reforms in the present combined Hindu society.
Women’s liberation movement and communist
movements in India and Dravidian movement in the
Tamilnadu has created a pressure to change the Hindu
Marriage and Divorce Laws. On this Impact Hindu
Marriage act was amended and Divorce on the ground of
mutual consent by the husband and wife is introduced in
India.
Mutual consent Divorce in Hindu Marriage Act put a full
stop for legal battles between husband and wife for
several years. The legislation till now have no remedy for
the peoples who are in legal and social battles for long
time to put a end to their marriage relationship. Marriage
legislations are till now it is not compatible to regulate
the husband and wife relationship and their bondages. In
some angle it seems to be progressive but in many
angles it related to law prevailed in the cannibal state. In
Christianity even in a hard manner it commands that no

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one can break the persons who god had united them. It
even preaches the husband and wife relationship
continues till death and only the death a person will free
the other person from the matrimonial tie up. In India
only High Court entertains the divorce petition of
Christians. But now the powers are delegated to the
district courts after due legislation. Mutual consent was
introduced in Indian Divorce Act only after the
amendment made under the Hindu Marriage Act. Even
Hinduism is trending to have many more modern
reforms but in Christianity the door is always closed
under their strong religious laws.
Roman Catholic churches never accepts the divorce
granted by the Indian courts. And also never allows to
marry any person who obtained divorce from the Indian
courts. But in other Christian denominations they
accepts the divorce obtained from Indian courts. But in
Pentecostal form of churches and in full gospel they
refuse to perform the marriage of divorced persons. The

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right wing and the left wing in Indian churches are dead
against the consent and contested divorce obtain in India
or in foreign courts.
In case of Roman catholic churches now it grant divorces
for limited grounds and it recognise the re-marriage of
persons for which it granted the divorces. But Indian
courts never recognises the divorce granted by the
Roman catholic churches and marriage performed after
obtaining church divorce in not valid under the Indian
Laws.
The other churches are not granting divorce and also not
accepting the second marriage. The church and the state
is total contra in divorce which make a confused state in
the Christian community.
Among Hindus there was no religious divorce, some kind
of caste panchayats grant divorce in North – India is also
not recognised under Indian Laws. Only the court

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granted divorce is recognised and it affects the martial
status and property after the death of the spouse.
What is the benefit for a women with a men under
live-in relationship?
This is a new trend in Indian laws that maintenance is
provided to women who have a live in relationship for a
period of time. This happens after the implementation of
the Domestic violence Act in India. No Indian laws has
defined who is a wife neither the Hindu marriage act or
the Christian marriage act and even the special marriage
act has not defined who is a wife or husband except the
criminal procedure code. Explanation given for section
125 (1) of Cr.P.C. has stated “Wife includes a woman
who has been divorced by, or has obtained a divorce
from, her husband and has not remarried”.
The very object for the Cr.P.C. to define the wife is for
the purpose of maintenance. No person other than a wife

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was granted maintenance till the enactment of Domestic
violation act which provides women as domestic
relationship.
The Live-in-relationship is a western concept which is
imported to India in its cosmopolitan city at large and
outskirts as insignificant. Live-in-relationships are mostly
seen in
1.At college levels where both women and men came
from other cities or out states for the purpose of
studying. They took houses for rent and lead a live-in
relationship till their studies. And even perform the
obligations as husband and wife. It is quite common in
Chennai and other major Indian cities.
2.At work levels where both women and men came from
other cities or out states for the purpose of job. They
took houses for rent and lead a live-in relationship. They
continue their relationship till their marriage or even
marry the same person but it happens rarely. This trend

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happens between young generation to escape from the
clutches of the marriage.
3. Widows who after the death of her husband are
happen to live-in-relationship with other women’s
husband for their social and financial security without
being married with that person. Since the fist wife is the
barricade to marry the concubine legally. Law give only
the status of concubine to them.
4. Divorcee women who had grown up children whom
doesn’t want to commit a martial life and bondage are
having a live-in relationship.
In some situations the men’s nature to forbidden the
women who are in a live-in relationship. The women’s
were left abandoned in the society without any financial
assistance or source of living. The domestic violence act
came rescue to such victimized women and provide
maintenance for her life.

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A man and woman not married, but having live-in
relationship is enough for the Woman is entitled to
maintenance under Protection of Women from Domestic
Violence Act. But merely living a live-in relationship is
not entitled for maintenance. The women has to show
that though there was no marriage but relationship was
in the nature of marriage. Having sexual relationship
with a women frequently is not a live-in relationship. It is
a nature of living as a husband and wife without
undergoing a marriage.
"Relationship in the nature of marriage" must fulfill the
following ingredients :-
(a) The couple must hold themselves out to society as
being akin to spouses.
(b) They must be of legal age to marry.
(c) They must be otherwise qualified to enter into a legal
marriage, including being unmarried.

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(d) They must have voluntarily cohabited and held
themselves out to the world as being akin to spouses for
a significant period of time.
(e) The parties must have lived together in a 'shared
household' as defined in Section 2(s) of the Act - Merely
spending weekends together or a one night stand would
not make it a 'domestic relationship'.
(f) If a man has a 'keep' whom he maintains financially
and uses mainly for sexual purpose and/or as a servant
it would not, be a relationship in the nature of marriage.
A legally wedded wife or divorced wife can claim
maintenance from husband under Section 125 of
Criminal Procedure Code. A women who was in live-in
relationship with man but not legally wedded is not
entitled to claim maintenance under Section 125 of
Criminal Procedure Code. However if such a women
proves that she was in domestic relationship with the
man in the nature marriage would be entitled to claim
maintenance under Section 20(3) of Protection of

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Domestic Violence At, 2005. The supreme court of India
has also confirm this proposition in Velusamy Vs
Patchaiammal case. This is a progressive judgment and
a great boon to the suppressed women.
How can a divorce be obtained from courts when
the whereabouts of the Husband or Wife is not
known ?
If the husband or wife left the matrimonial home and the
whereabouts was not known to the other spouse it is a
difficult procedure to get divorce from the court.
Indian legal system for Hindus and Christians provide
any spouse can approach the court to get divorce when
the other spouse has withdrawn and left the matrimonial
home without any reasonable cause. The court’ s will
grant divorce on the ground of desertion only after two
years the other spouse has deserted.

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If a person left the matrimonial home the other person
has to wait for a period of two years to apply for divorce
on the ground of desertion. The period of desertion
should be proved by either oral or documentary evidence
before the Indian courts. And the court should satisfy
that the other spouse has deserted the applicant for a
period of two or more years.
A spouse can give a missing complaint of the spouse in
the Police station where he or she resides, when he left
the matrimonial home and his whereabouts was not
known. If the police after due investigation and cannot
find the missing person, the concerned police station will
give a non-traceable certificate to the complainant. And
even if a missing person has not known after seven
years, the other spouse can approach the proper court
and can obtain the civil dead of the missing person.
When a spouse who get a decree of civil dead, then he
or she is eligible for remarriage as if the husband or wife

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died naturally. And this is not only benefit the other
spouse but including the sons and daughters and other
legal heirs for succession of the property of the person
who was declared as civil death. This mostly happen in
the fishermen family who never returns from the sea in
the times of natural calamity.
In cases that when the other spouse is not dead and
only his or her whereabouts is not known, then the
applicant can file divorce on the grounds of desertion or
the other grounds applicable to their case by showing
the last known address of his or her spouse. In such
cases the court will even direct the applicant to sent
notice to all best known address. Even such attempts are
failed to bring the other spouse before the Court in which
the case was filed, then the court will ordered
substituted service for summons to appear the other
person before the court on the appointed day by the
court.

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The court may order to give a notice in the local news
paper which was recognised by the Indian Courts, either
in English daily or in the Vernacular daily as the court
think as deem fit in proper circumstances and situations.
The notice period in the news paper must be at least
fifteen days after the publication of the notice.
If the opponent spouse is not appearing before the court
and answers the allegations made by the applicant, then
the court will decide the case as if the contents made in
the application by the applicant and grant divorce on the
plea and grounds made in the application. Such kind of
divorce grant by the court in absence of the appearance
of the other spouse or not answering or providing
counter statement for the allegation made by the
application within the reasonable time allotted by the
court. This kind of divorce is known as ex-parte divorce.
What is the importance and validity of the ex-parte
divorce?

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When a person obtained an ex-parte divorce from the
Indian or foreign courts. It is always opened for a other
side to re-open the case which was decided as ex-parte.
When the other spouse whom were aggrieved by the ex-
parte divorce can approach the concerned courts within
30 days to set-aside the ex-parte order passed by the
appropriate court. If the court is satisfied for the non-
appearance of the other spouse on the court appointed
day is satisfied beyond his control, then the court will
set-aside the order passed and allow the other spouse to
contest the case.
When the court set-aside the ex-parte order then the
husband and wife relation is regained between the
married parties. No one can claim the benefits of the
divorce order passed by the court. If any one of the
spouse died in pendency of the set-aside application and
court has not cancelled the ex-parte divorce order then
the divorce order continues and valid over the parties
between the marriage.

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When the husband obtained the ex-parte order and died
before it was set-aside by the court then the husband
gains the ex-parte order and the wife can have no claim
as husband and wife relationship thereafter the death of
the husband.
When the wife obtained the ex-parte order and died
before it was set-aside by the court then the wife gains
the ex-parte order and the husband can have no claim
as husband and wife relationship thereafter the death of
the wife.
In circumstances when the husband is the applicant for
divorce and obtained a ex-parte divorce order and the
court has set-aside the ex-parte order then husband
cannot enjoy the fruits of the ex-parte order and he have
to prove the allegations against his wife to get a valid
divorce order from the court. If the court rejects the
claims of the husband then the husband and wife

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relationship between them continues till it was
interrupted by a valid divorce order between them.
In circumstances when the wife is the applicant for
divorce and obtained a ex-parte divorce order and the
court has set-aside the ex-parte order then wife cannot
enjoy the fruits of the ex-parte order and he have to
prove the allegations against his husband to get a valid
divorce order from the court. If the court rejects the
claims of the wife then the husband and wife relationship
between them continues till it was interrupted by a valid
divorce order between them.
What is the validity of the marriage under the ex-
parte divorce order?
When a court passes a order in matter it is valid under
law unless it is upheld or set-aside by a competent court
of law. On the next moment when the court passes a ex-
parte divorce order the husband and wife relationship
ceases between the spouses. The wife is entitled to get

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alimony from her husband even he obtained a divorce by
an ex-parte decree. As per the part of Alimony the wife
is entitled until she dies or remarries. As per the part of
ex-parte divorce decree she can accept it and enjoy the
status of divorcee. If she doesn’t like to continue with
the status of divorce the wife can file a set-aside
application before the court to resume her martial
status.
If the husband who marries another women after
obtaining a ex-parte divorce decree within in 90 days
after the judgement then the marriage is not a valid
marriage before law. And the ex-wife can file a set-aside
application before the court to reclaim her wife status.
And the wife can also file a application to declare the
second marriage of her husband as null and void. If the
court finds it is true than it can cancel the second
marriage of the husband and the second wife cannot
claim wife status thereafter. But if the first wife doesn’t
file any application for set-aside or for declaring the

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second marriage as null and void then the husband can
enjoy the fruits of the ex-parte decree. And the second
marriage which is performed by the husband is a valid
one if the first wife never chooses to file a application for
null and void within one after the knowledge of the
second marriage by the first wife.
The wife who carries a ex-parte divorce decree can only
marry after 90 days of the pronouncement of the
judgement. If she marries below the time fixed by the
Indian civil laws then the second marriage performed by
the wife is not a valid marriage under the procedural law
and she cannot claim the benefits of the substantive law
as a divorced person as she violates the procedural law
in performing her second marriage.
It is mandatory for the husband or wife to wait for a
period of 90 days after getting a ex-parte decree for
performing a second marriage. If husband or wife
receives any notice from any court regarding their

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matrimonial dispute to set-aside the divorce order or
they had obtained a knowledge that the other spouse
has filed any application before the court to re-determine
the martial status, the other spouse should not perform
the second marriage. And such kind of marriage is
amount to bigamy and it is punishable under law. If the
second marriage is not under a bonafide way then the
other spouse will be a clear cut guilty for bigamy and he
or she is liable for a maximum period imprisonment for
seven years.
The court can at any time can set-aside a ex-parte
decree if it is obtained by the husband or wife using
fraudulent method. But in fair cases the court draws a
cut line whether the second marriage is performed within
in 90 days or not.
If a second marriage is done by the other spouse after
90 days then the new party to marriage became the
legally wedded wife or husband. And in such cases the

Page 38
court will not set-aside the ex-parte divorce decree
because it affects the validity of the new husband or wife
who under gone the marriage within the legal
parameter.
If a party who had obtained a divorce has not married
thereafter the divorced wife or husband has an option to
reopen the divorce application filed by the other party
who had obtained an ex-parte divorce order. If the
opponent party to the divorce application well explained
his or her absence before the court for valid reasons, the
court has no other options other then to set-aside the
ex-parte divorce order and have to give a fair chance to
other party to contest the divorce case.
There is no time limit to file a set-aside application to
set-aside the ex-parte divorce decree granted by the
court. The opponent party the husband or wife
whomever may be can file a set-aside petition , when he

Page 39
or she came to the knowledge that there is a legal order
from the court in any source of means.
When a husband or wife who is aggrieved by the ex-
parte divorce order and they came to know only after
the exhaustion of the time limit granted by the law, they
can file a application to condone the delay in filing the
set-aside application and must state the reasons
accepted by law why he or she was not able to file a set-
aside application within the time limit prescribed by the
law. The court on satisfaction of the reasons showed by
the aggrieved party may or may not accept it according
to circumstances and facts of the case and also in the
interest of parties involved in the matrimonial dispute
and the consequential developments under the divorce
decree. If the court accept it may set-aside its own
divorce order granted to the other party and restore the
husband and wife relationship and give a fair opportunity
to both the parties to marriage to contest and defend
their case.

Page 40
What is the remedy when the husband or wife
withdraws the matrimonial community.
The Indian laws protects the matrimonial unity till the
death of the husband and wife. And it only emphasis the
spouses to live together in a common roof and to
perform the conjugal rights between them. If one of the
spouse withdraws from the matrimonial home it is
certainly a denial of conjugal rights to the other party.
From the Old cannibal age to modern cosmopolitan age
it is universally accepted and practised that both and the
husband and wife should perform their respective
conjugal obligations.
If one of the parties to marriage voluntarily withdrawn
from the matrimonial bondage the other party can seek
to fulfil the matrimonial obligation as a matter of right.
Even on the request of the affected party or by a
mediation of elderly persons in the family or through the
counselling centres arranged by the social welfare

Page 41
departments or by police departments the other party to
the marriage fails to reunite in the matrimonial bondage
and to perform the matrimonial obligations, the affected
party can approach the court in order for reunion and for
the restitution of his conjugal rights.
If one of the spouse even fail to reunion with his spouse
after given a fair opportunity by the other spouse for the
situations for reunion. And the other spouse even after
repeated request and mediations failed to live with the
affected party without any reasonable cause for more
than two years then it a ground for the affected party to
get divorce on the ground of desertion.
The affected party can immediately file an application for
restitution of conjugal rights before the appropriate court
or wait a period two years to get a decree of divorce on
the ground of desertion.
Even after the court ordered the other spouse to fulfil
the matrimonial obligation and ordered restitution for

Page 42
conjugal rights, the other party has not fulfilled the court
order then the victim to the matrimonial bondage can
apply for divorce on the ground for non compliance of
the court order in the application for restitution of
conjugal rights.
The Husband or wife even can file a petition for
executing the restitution of conjugal rights order passed
by the valid court. And the affected party may seek the
court to execute matrimonial obligations from his or her
spouse. On even after the court orders for the execution
of the conjugal rights, the other spouse is not fulfilling
the court order the court can even order for the arrest of
the disobeying spouse on application made by the victim
spouse. And the disobeying spouse may ordered to be
imprisoned in a civil prison for the failure to comply the
order of the court.
Can a person live together after getting divorce?

Page 43
In India it became a trend that after getting a divorce
order from the court, the couples are living together as
husband and wife. It happens when the aggrieved
parties who get an ex-parte divorce or divorce by mutual
consent or even a contested divorce order after some
time both the parties pacifies and continue to live as a
husband and wife. Law never denies such cohabitation
but they cannot claim any legal rights provided under
the legislation.
In cases when at the early marriage time due to the
dispute between them the parties to the marriage get
divorced and in future for the welfare of children’s or on
reconciliation they continue to live as husband and wife.
In some cases to obtain foreign citizenship the parties to
the marriage divorce and marry a foreign citizen and
after obtaining the citizenship they divorce the Foreign
citizen and the husband and wife who divorce in India
continues to live a life as husband and wife. It is quite

Page 44
common in persons who want to get a foreign job or
foreign citizenship or settle in a foreign country.
In such a situation the spouses cannot claim the benefits
of husband and wife relationship in any forum or in the
society. Even they live as a husband and wife. The
divorce order is an obstacle to them. In future if they
again built a strained relationship then they cannot
approach any legal forum to settle their issues. The
supreme court of India in Inderjit Singh Grewal Vs State
of Punjab held that when a Husband and wife obtaining
divorce by mutual consent, but continued living together.
And wife filed a Complaint against husband under
Domestic Violence Act. It was held that the Complaint
not maintainable as decree of divorce subsisted.
It is a settled legal proposition that where a person gets
an order/office by making misrepresentation or playing
fraud upon the competent authority, such order cannot
be sustained in the eyes of the law as fraud unravels
everything. "Equity is always known to defend the law

Page 45
from crafty evasions and new subtleties invented to
evade law". It is a trite that "Fraud and justice never
dwell together" (fraus et jus nunquam cohabitant). Fraud
is an act of deliberate deception with a design to secure
something, which is otherwise not due. Fraud and
deception are synonymous. "Fraud is an anathema to all
equitable principles and any affair tainted with fraud
cannot be perpetuated or saved by the application of any
equitable doctrine". An act of fraud on court is always
viewed seriously as in Meghmala v. G. Narasimha Reddy
What is desertion?
Desertion is a voluntary withdrawal of the one spouse
from the matrimonial society and fails to perform the
conjugal rights which he or she is obliged to perform to
the other spouse. The Hindu and the Christian laws
provide that if any of the spouses is not reunited with
the other spouse within a period of two years then the
other spouse is eligible for divorce. The two years

Page 46
separation period should not be interfered with a reunion
even for one day.
Where desertion on part of the wife or husband was
permitted by the other spouse himself then it wont fall
under the unilateral withdrawal of the matrimonial
society or denial of conjugal rights. Some of the
instances are:-
1.If the husband allows the wife to study in a different
place other than the matrimonial place.
2.If the wife allows the husband to work in other place
other than the matrimonial place.
3. If the husband forces the wife to get away from the
matrimonial home then the husband cannot seek divorce
on the desertion ground.
4. If the wife without any valid reasons such as
undergoing cruelty came out of the matrimonial home
cannot claim divorce under the desertion ground.

Page 47
The acts will not include desertion if the animus
deserendi had to be in doings of the other spouse
himself or herself and not on the basis of situations
created by other spouse.
No one can file a application immediately to depart from
the matrimonial tie up by breaking the tie on the ground
of desertion should wait for more than three years from
the date of marriage. Before one year of marriage the
parties to the marriage cannot file divorce for the
divorceable grounds and in case of desertion the two
year desertion period should be shown unless it cannot
be taken in the file of the appropriate court of
jurisdiction. Even though the parties to marriage may
live separately for several years they have to prove that
it was not their mistake to live separately but it was the
other spouse who deserted from the matrimonial society.
Can a parties to the marriage can change religion
after the marriage?

Page 48
Al the marriages are religious except the civil marriages
performed under law or by non-religious group such as
atheists or communists.
Hindu religion provides both customary marriage and
non customary marriage. The only requirements under
the Hindu marriage is both the parties must be Hindus.
If both the parties even atheist or communist prefer to
marry themselves under Hindu Marriage Act are
governed by the Hindu Law.
The Hindu Law gives permission to divorce other person
whom their spouse converts themselves to other
religions or renounces the world by obtaining sanyasa. If
a person is Hindu at the time of Marriage converts
himself or herself to Christianity or Islam or any other
religion the other person to the Hindu Marriage may
approach the court for divorce on the conversion ground.
Mere attending the church mass or going to dargha and

Page 49
having prayers of other religion is not a ground but
conversion is need for the valid cut off for the divorce.
The Religions such as Buddhists, Jain and Sikh were
covered under Hindu Marriage Act. But there was no law
settled or the courts declared that conversion from
Hinduism to Buddhist or a Jain or a Sikh was granted
divorce on the basis of religious conversion. But it is of
an opinion that even a Hindu Who converts to Buddhist
or a Jain or Sikh can be granted divorce for conversion
even they all and one governed by the same law which is
the Hindu Marriage Act.
In India there are lakhs of persons are converting
themselves from Hinduism to Buddhism. And in
significant manner to Christianity and Islam. But
becoming a communist or atheist after the Hindu
marriage is not a ground for divorce. The Hindu law
made a big hole in its traditional and customary law and
even the modern progressive Hindu law also has not

Page 50
included of becoming communist or atheist after
marriage is a ground for divorce which defeats the very
purpose of the Hindu marriage. But it is a sad news that
even the communist and atheist born to the Hindu
fathers are governed under Hindu Law. There was no law
governing the marriage between the non –religious or
atheists.
In case of Christians there is no necessity for both the
parties should be a Christians. Even one of the party
from other religion can perform a marriage with a
Christian under Indian Christian marriage act without
changing or converting his or her religion to Christianity.
The Indian Divorce Act provides if a Christian who is
converted to other religion is entitled for the other
spouse to divorce his or her spouse. There is no clear
picture in the divorce law governed for Christians that
the non-Christian partner can divorce his or her spouse
for the change of religion of a Christian spouse.

Page 51
In Islam any one party who converts to another religion
can divorce the opponent spouse.
The Special marriage act provides a party belong to
same religion or different religion can marry under the
civil rights and obligations between them. The person
who married under the Special marriage Act has no
provision for divorce when the other spouse has
converted his or her religion.
No legislation has declared what is conversion of religion.
The law says merely attending other religious activities
or practising the religious things is not conversion of
religion. What is the actual conversion of religion. In
gazette offices where a converted person seeks to
publish that he or she is converted to other religion has
certain yard stick for conversion. A mere baptism is not
a conversion of a Hindu or a Islam to Christian Religion,
they must produce conversion certificate from the
Church office.

Page 52
A person cannot became a Hindu from other religion by
performing certain poojas for conversion, but a
certificate from Arya Samaj is a valid form of conversion
from other religion to Hinduism. These are the
conversion methods following in India despite of the
other recognised form of conversion.
What constitutes Mental cruelty?
The Hindu Marriage Act provides a marriage can be
dissolved by a decree of divorce on a application
presented either by the husband or the wife on the
ground that the other party has, after solemnization of
marriage, treated the applicant with cruelty. Mental
cruelty is defined either by the Act or by any courts. In a
series of judgements the courts has repeatedly stated
the meaning and outlined scope of the term ‘cruelty’.
Cruelty is evident where one spouse has so treated the
other and manifested such feelings towards him or her
as to cause in her or his mind reasonable apprehension

Page 53
that it will be harmful or injurious to live with the other
spouse.
No uniform standard can ever be laid down for guidance.
But court has enumerated some instances of human
behaviour which may relevant in dealing with the cases
of ‘Mental Cruelty’. The following are illustrative fixed for
mental cruelty on the light of the supreme court of
India’s intelligence:
1. On consideration of complete matrimonial life of
the parties, acute mental pain, agony and suffering
as would not make possible for the parties to live
with each other could come within the broad
parameters of mental cruelty.
2. On comprehensive appraisal of the entire
matrimonial life of the parties, it becomes
abundantly clear that situation is such that the
wronged party cannot reasonably be asked to put

Page 54
up with such conduct and continue to live with
other party.
3. Mental cruelty is a state of mind. The feeling of
deep anguish, disappointment, frustration in one
spouse caused by the conduct of other for a long
time may lead to mental cruelty.
4. A sustained course of abusive and humiliating
treatment calculated to torture, discommode or
render miserable life of the spouse.
5. The married life should be reviewed as a whole and
few isolated instances over a period of years will
not amount to cruelty. The ill conduct must be
persistent for a fairly lengthy period, where the
relationship has deteriorated to an extent that
because of the acts and behaviour of a spouse, the
wronged party finds it extremely difficult to live
with the other party any longer, may amount to
mental cruelty.

Page 55
6. Where there has been a long period of continuous
separation, it may fairly be concluded that the
matrimonial bond is beyond repair. The marriage
becomes a fiction through supported by a legal tie.
By refusing to sever that tie, the law in such cases,
does not serve the sanctity of marriage; on
contrary, it shows scant regard for the feelings and
emotions of the parties. In such like situation, it
may lead to mental cruelty.
What factors Supreme court of India fix as a
definite form of cruelty.
Expressly cruelty is not defined in the Act. But the legal
cruelty for the purpose of divorce is explained by the
Supreme Court of India in many cases.
Cruelty can be physical or mental, 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

Page 56
other party. It may be words, gestures or by mere
silence, violent or non-violent.
Cruelty should be wilful, 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.
Proof beyond doubt, as in criminal trials is not required
top prove cruelty.
In physical cruelty, there can be tangible and direct
evidence, but in the case of mental cruelty there may
not at same time be direct evidence. For proof of mental
cruelty court has to find out nature of cruel treatment,
impact of such treatment in the mind of the spouse,
whether it caused reasonable apprehension that it would
be harmful or injurious to live with the other.
There may be a case where the conduct complained of
itself is bad enough and per se unlawful or illegal. Then

Page 57
the impact or injurious effect on the other spouse need
not be enquired or considered which the supreme court
of India emphasised in AIR 1988 SC 121.
Whether the conduct of a spouse amounted to cruelty
has to be considered in the background of several factors
such as social status of parties, their education, physical
and mental condition, customs and traditions.
Mental trivial irritations, quarrels between spouses,
which happen day-to –day married life, may not amount
to cruelty.
The court do not have to deal with ideal husbands and
ideal wives. It has to deal with particular man and
women before it. The ideal couple or mere ideal one will
probably have no occasion to go to matrimonial court.
What are the incidents Supreme court of India
fixed as Mental Cruelty?

Page 58
1.Making unfound indecent defamatory allegations
against the spouse or his or her relatives in the
pleadings, filing of complaints or issuing notices or news
items which may have adverse impact on the business
prospect or the job of the spouse and filing repeated
false complaints and cases in the court against the
spouse would amount to causing mental cruelty to the
other spouse.
2.Spouse can cause mental cruelty by his or her conduct
even while he or she is not staying under the same roof.
A spouse can cause mental cruelty to the other spouse
by sending vulgar and defamatory letters or notices or
filing complaints containing indecent allegations or by
initiating number of judicial proceedings making the
other spouse’s life miserable.
3.Marriage not consummated by a spouse despite the
efforts of the other spouse is covered under mental
cruelty.

Page 59
4.Not allowing sexual relationship for a long time without
sufficient reason by other spouse is within the parameter
of the mental cruelty.
5.The spouse alleges the other spouse and family
members are genetically insane.
6.The husband or wife makes the other party was guilty
of adulterous course.
7.Refusal to participate in proceeding of divorce and
forcing the other party to stay in a dead marriage would
itself constitute mental cruelty.
8.The wilful and intentional removal of mangalasustra or
thali amounts to mental cruelty.
9.Consuming liquor and abusing the other spouse
physically and mentally is cruelty.
10.Demanding the balance of dowry amounts to mental
cruelty

Page 60
11.Assault and abuse for minor and insignificant matter
amounts to cruelty.
12.Ask to sleep with the brother-in-law is mental and
physical cruelty.
13.Torturing the wife to brink her sister to sleep with the
husband is also mental cruelty.
14.Compelling the wife to do domestic work like maid
servants is physical and mental cruelty.
15.Husband not taking care of the wife disease and not
taking her to doctor is mental cruelty.
16.Giving a fake police complaint is mental cruelty.
17.Husband misbehaving in presence of elders and
relatives is subjected to mental cruelty.
18.Contracting a second marriage does not amount to
mental cruelty.

Page 61
19.Mere complaint to women cell does not amount to
mental cruelty.
20.Discussing sexual relationship to other persons may
or may not form mental cruelty according to
circumstances and the status of the parties.
How to solve Matrimonial problems in Counselling
centres?
In the Modern days there are many counselling centres
established by the physiatrists as clinics and counselling
centres also functioning in the family courts, even All
Women Police Stations are accessed to counselling
centres to solve the minor problems and
misunderstandings between he spouses.
In family courts before conducting the trial it makes way
to solve the problems between the spouses. In the first
hearing it provides counselling session to the couples.
The experienced counsellors give minimum three

Page 62
counselling to the parties to the disputes. In further
development of peaceful measures it extend its
counselling session also. If it need they also call the
family members to solve the problems between the
spouses.
In certain circumstances if the family court feel there is a
stale mate in the cases and there was no possibility for
reunion, it tries for mediation between he parties.
Mediation is preferred in the cases when unhealthy
circumstances prevail in the matrimonial dispute or it
should arrive a quick disposal for a long pending
disputes by amicable means. Instead of pouring ugly
waters on each side mediation makes a way for decent
departure or for amicable settlement for disputes. The
parties to the legal disputes can always avail the
mediation not get more worse for their disputed life.
Except serious problems the All Women Police station
also tries to settle the problem between the spouses in a

Page 63
solution oriented way. They refer the cases to trained
counsellors and solution oriented physiatrists. In failure
of the mediation they advise to approach proper forum
to get legal remedy. But for serious matrimonial offences
they proceed in accordance with law.
On the increasing matrimonial disputes and its pendency
for several years Indian laws and the supreme court of
India has formulated many methods to solve the
matrimonial disputes in the early stage of litigation
between the spouses.
Under section 9 of the Family Courts Act, the Family
Courts are making all efforts to settle the matrimonial
disputes through mediation. Even if the counsellors
submit a failure report, the family courts shall, with the
consent of the parties, refer the matter to the mediation
centre.
The criminal courts dealing with the complaint under
section 498 A of the Indian Penal Code should, at any

Page 64
stage and particularly before they take up the complaint
for hearing refer the parties to mediation centre if they
feel that there exist elements of settlement and both the
parties are willing. However, they should take care to
see that in this exercise, rigour, purport and efficacy of
Section 498 A of the Indian Penal Code is not diluted.
Needless to say that the discretion to grant or not to
grant bail is not in any way curtailed by this direction. It
will be for the concerned court to work out the modalities
taking into consideration the facts of each case.
All mediation centres shall set up pre-litigation
desks/clinics; give them wide publicity and make efforts
to settle matrimonial disputes at pre-litigation stage.
The parties to the dispute should believe that the cause
of the misunderstanding in a matrimonial dispute is
trivial and can be sorted. Mediation as a method of
alternative dispute resolution has got legal recognition
now. In India lakhs of cases regarding matrimonial

Page 65
disputes were referred to mediation centres every
month. The supreme court of India has observed that
about 15 % of matrimonial disputes get settled through
courts through various mediation centres.
Indian courts are also at the first instance of hearing, it
is referred to mediation centres. Matrimonial disputes
particularly those relating to custody of child,
maintenance, etc are pre-eminently fit for mediation.
Section 9 of the Family courts Act enjoins upon the
Family Court to make efforts to settle the matrimonial
disputes
If the parties to the dispute was not able to solve the
problems in counselling and in mediation it is better to
put an end to the matrimonial tie up by the means
known to the law.

Page 66
About Author : Mr.K.P.Satish Kumar is a Practising
advocate in Madras High Court. He enrolled as an
advocate before the Bar Council of Tamilnadu and
Pondicherry in the year 1997. He holds B.L. in
Dr.Ambedkhar Govt Law College, Chennai and M.L.
Decree in International law and Constitutional Law
from University of Madras. He is an orator and
writer with an excellent proficiency both in Tamil
and English. He is a Political Philosopher and the
President of Thamizhar Desam. His advises has
changed many peoples upside down, solved their
problems in an effective manner, leads to happy
life.

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