The document presents an overview of Hindu law, detailing its origins, sources, and application. It defines key concepts such as 'dharma', outlines the classification of Hindus, and discusses the various schools of thought within Hindu law, as well as the evolution and characteristics of Hindu marriage. The text also addresses the conditions for valid marriage and legal repercussions related to marriage, including void and voidable marriages.

1. Semester: BALLB/BBALLB 3rd SEM
Name of the Subject: Family Law-I
Unit-1
FACULTY NAME: Mr. Raman Bhardwaj
Assistant Professor ( Law)
Chanderprabhu Jain College of Higher Studies & School of Law
Plot No. OCF, SectorA-8, Narela, New Delhi – 110040
(Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

2. Introduction of the Hindu Law
Concept of Dharma
• Hindu Law is a body of principles or rules called ‘Dharma’. Dharma
according to Hindu texts -embraces everything in life.
• According to the Hindus, ‘Dharma’ includes not only what is known
as law in the modern sense of the term but all rules of good and
proper human conduct.
• Dharma is used to mean justice what is right in a given circumstance,
moral, religious, pious or righteous conduct, being helpful to living
beings and things, duty, law and usage or custom having in the force
of law and also a valid Rajashasana
Origin of Hindu law
• The Hindu system as modified through centuries has been in existence
for over ten thousand years and has continued to govern the social and
moral patterns of Hindu life with harmonizing the diverse elements of
Hindu cultural life.

3. Nature and scope of Hindu Law
Hindu law, though believed to be of divine origin, is based essentially on
immemorial custom and many of the acts of the people which were purely
of a secular nature. But the secular nature of the acts have been modified to
suit the religious preferences of a Brahmin community. With a desire to
promote the special objects of religion or policy, they have used their
intellectual superiority and religious influence to mold the customs of the
people

4. Who are Hindus?
• The term ‘Hindus’ denotes all those persons who profess Hindu religion
either by birth from Hindu parents or by conversion to Hindu faith.
• In Yagnapurus dasji v. Muldas [AIR 1966 SC 1119], the Supreme Court
accepted the working formula evolved by Tilak regarding Hindu religion
that ‘acceptance of vedas’ with reverence, recognition of the fact that the
number of Gods to be worshiped at large, that indeed is the distinguishing
feature of Hindu religion.
• In Shastri v Muldas SC AIR 1961, SC has held that various sub sects of
Hindus such as Swaminarayan, Satsangis, Arya Samajis are also Hindus by
religion because they follow the same basic concept of Hindu Philosophy.

5. • Converts and Reconverts are also Hindus.
• If only one parent is a Hindu, the person can be a Hindu if he/she has been
raised as a Hindu.
• In Sapna vs State of Kerala, Kerala HC, the son of Hindu father and
Christian mother was held to be a Christian.
To whom Hindu Law apply:
• 1. Hindus by birth
• 2. Offshoots of Hinduism
• 3. Persons who are not Muslims, Christians, Parsis or Jews(CJM(P))
• 4. Converts to Hinduism
• 5. Reconverts to Hinduism
• 6. Harijans
• 7. Aboriginal Tribes

6. To whom Hindu law does not apply:
• to converts from the Hindu to the Mohammedan faith
• to the Hindu converts to Christianity
• to the illegitimate children of a Hindu father by Christian mother and
• who are brought up as Christians

7. Sources of Hindu Law
Ancient Sources
• Before the codification of Hindu Law, the ancient literature was the only
source of the law.
These sources can be divided into four categories:
1.Shruti & Vedas
Shruti means “what is heard”. It is believed that the rishis and munis had
reached the height of spirituality where they were revealed the knowledge of
Vedas. Thus, shrutis include the four vedas – rig, yajur, sam, and athrava along
with their brahmanas. The brahmanas are like the apendices to the Vedas.
Vedas primarily contain theories about sacrifices, rituals, and customs.
2. Smritis
Smriti means “what is remembered”. With Smritis, a systematic study and
teaching of Vedas started.. So it can be said that Smri"s are a written memoiral

8. of the knowledge of the sages. Immediately after the Vedic period, a need
for the regulation of the society arose.
• Dharmasutras: The Dharmansutras were written during 800 to 200 BC.
They were mostly written in prose form but also contain verses. It is clear
that they were meant to be training manuals of sages for teaching students.
• Dharmashastras: Dharmashastras were mostly in metrical verses and
were based of Dharmasutras. However, they were a lot more systematic
and clear.
• Manusmriti: This is the earliest and most important of all. It is not only
defined the way of life in India but is also well know in Java, Bali, and
Sumatra. The name of the real author is not known because the author has
written it under the mythical name of Manu, who is considered to the the
first human.
• Yajnavalkya Smriti: Though written after Manusmriti, this is a very
important smriti. Its language is very direct and clear. It is also a lot more
logical. He also gives a lot of importance to customs but hold the king to be

9. below the law.
3.Commenatries and Digests
• After 200 AD, most the of work was done only on the existing material given
in Smrutis. The work done to explain a particular smriti is called a commentary.
• Commentaries were composed in the period immediately after 200 AD. Digests
were mainly written after that and incorporated and explained material from all
the smruitis. As noted ealier, some of the commentaries were, manubhashya
and mitakshara.
• While the most important digest is Jimutvahan’s Dayabhag that is applicable in
the Bengal and Orissa area.
• Mitakshara literally means ‘New Word’ and is paramount source of law in all of
India.
4.Customs
• Most of the Hindu law is based on customs and practices followed by the
people all across the country. Even smrutis have given importance to customs.

10. • They have held customs as transcendent law and have advised the Kings to
give decisions based on customs after due religious consideration.
Customs are of four types:
• Local Custom: These are the customs that are followed in a given
geographical area.
• Family Custom: These are the customs that are followed by a family from
a long time. These are applicable to families where ever they live.
• Class or Caste Custom: These are the customs that are followed by a
particular cast or community. It is binding on the members of that
community or caste. By far, this is one of the most important source of
laws.
• Guild Custom: These are the customs that are followed by traders.

11. Requirements for a valid custom are:
• Ancient
• Continuous
• Certain
• Reasonable
• Not against morality
• Not against public policy
• Not against any law

12. Modern Sources
Judicial Decisions (Precedents)
• The doctrine of “Stare Decisis” started in India from the British rule. All
cases are now recorded and new cases are decided based on existing case
laws.
• Today, the judgment of SC is binding on all courts across India and the
judgment of HC is binding on all courts in that state.
Legislatures / Statutes (Codification of Hindu Law)
• In modern society, this is the only way to bring in new laws. The
parliament, in accordance with the needs society, constitutes new laws. For
example, a new way of performing Hindu marriages in Tamil Nadu that got
rid of rituals and priests was rejected by the SC on the basis that new
customs cannot be invented. However, TN later passed an act that
recognized these marriages

13. Justice, equity and good conscience
• Equity means fairness in dealing. Modern judicial systems greatly rely on
being impartial.
• True justice can only be delivered through equity and good conscience.
• In a situation where no rule is given, a sense of ‘reasonableness’ must
prevail.
• According to Gautama, in such situation, the decision should be given that
is acceptable to at least ten people who are knowledgeable in shastras.
• Yagyavalkya has said that where ever there are convincing rules, the
decision must be based on ‘Nyaya’

14. Schools of Hindu Law
Due to the emergence of various commentaries on SMIRITI and SRUTI,
different schools of thoughts arose. The commentary in one part of the
country varied from the commentary in the other parts of the country.
The Mitakshara School
• The Mitakshara School exists throughout India except in the State of
Bengal and Assam. The Yagna Valkya Smri" was commented on by
Vigneshwara under the title Mitakshara. The followers of Mitakshara are
grouped together under the Mitakshara School.
• Mitakshara school is based on the code of yagnavalkya commented by
vigneshwara, a great thinker and a law maker from Gulbarga, Karnataka.
The Inheritance is based on the principle or propinquity i.e. the nearest in
blood relationship will get the property.

15. • The school is followed throughout India except Bengal state. Sapinda
relationship is of blood. The right to Hindu joint family property is by birth.
So, a son immediately after birth gets a right to the property.
• Dravidian School Of Thought (Madras School)
• Maharashtra School (Bombay School Of Thought)
• Banaras School Of Thought
• Mithila School Of Thought
The Dayabhaga School
• It exists in Bengal and Assam only. The Yagna Valkya smriti is commented
on by Jimootavagana under the "tle Dayabhaga. It has no sub-school. it
differs from Mistakshara School in many respects.
• This school is followed in Bengal state only. Sapinda relation is by pinda
offerings.

16. Evolution of the Institution of Marriage and Family
Definition and Forms of Hindu Marriage
• Marriage is a civil and religious contract whereby a man is joined and
united to a woman for the purpose of civilized society. In law ‘marriage’
may mean either the acts, agreements, or ceremony by which two persons
enter into wedlock, or their subsequent relation created thereby.
• Marriage is the civil status or personal relation of one man and one woman
joined together in a matrimonial union which was lawfully entered into
characteristics of Marriage: Marriage is universal, It is for the formation of
family, It forges a new social link, It fixes the responsibility of bringing up
children on the parents, It is a result of civil or religious ceremony.
• Legitimization of children born out of such union which is a social need
• In marriage, the male and female get the right of mutual relationship in
economic, social and biological spheres

17. Importance of the Institution of Marriage
• The institute of marriage regulates and socially validates relatively long-
term legitimate sexual relation between males and females.
• Marriage serves to start reproductive process, Marriage is also a way to
acquire new Kinsmen, It is only after marriage a family comes into being
Matrimonial Rights and Obligations
• Duties of a Husband are: to protect his wife, to give her a home, to
maintain her by providing her with comforts and necessities of life within
his means.
• Rights of a Husband are: he is entitled to the custody and the conjugal
society of his wife.
• Duties of a Wife are: to attend to the needs of her husband both in religious
and household activities, to show obedience and veneration for the
husband, to live with him wherever he may choose to reside unless he is
guilty of cruelty or misconduct

18. • Rights of a Wife are: right for maintenance throughout her life, right of
equality in the house of her husband, right to bring suit for the restitution of
conjugal rights, right to get divorce for the cruelty, insults, etc
Different forms of Marriage
Ancient Hindu Law:
The four obsolete approved forms:
• Brahma (to a man learned in vedas)
• Daiva (to a preist)
• Arsha (father’s taking giI from groom: a cow and a bull)
• Prajapatya (similar to Brahma, girl of a daughter by father, but bridegroom
need not be a bachelor)

19. The four unapproved forms:
• Asura (When groom buys bride through money)
• Gandharva (When voluntary union against parent’s wishes)
• Rakshasa (When forcible abduction / kidnapping)
• Paishacha (when intoxicated)
Forms of Marriage in Modern Hindu Law
Hindu Marriage Act 1955 does not specifically provide for any forms of
marriage. The Act calls marriage solemnised under the Act as Hindu
Marriage which may be performed in accordance with the shastric rites and
ceremonies or prevalent custom.

20. Conditions of a Valid Marriage
5 Conditions for a Hindu marriage.:
—
A marriage may be solemnized between any two Hindus, if the following
conditions are fulfilled, namely:
—
(i) neither party has a spouse living at the time of the marriage;
[(ii) at the time of the marriage, neither party
—
(a) is incapable of giving a valid consent to it in consequence of
unsoundness of mind; or
(b) though capable of giving a valid consent, has been suffering from
mental disorder of such a kind or to such an extent as to be unfit for
marriage and the procreation of children; or
(c) has been subject to recurrent attacks of insanity
(iii) the bridegroom has completed the age of4 [twenty-one years] and the
bride, the age of 5 [eighteen years] at the time of the marriage;

21. (iv) the parties are not within the degrees of prohibited relationship unless the
custom or usage governing each of them permits of a marriage between the
two;
(v) the parties are not sapindas of each other, unless the custom or usage
governing each of them permits of a marriage between the two;
• Monogamy: The first essential condition for a valid marriage is that
neither party should have a spouse living at the "me of marriage.
Monogamy is the voluntary union for life of one man with one woman to
the exclusion of all others.
• Bigamy is the reverse of monogamy.
• Section 11 makes a bigamous marriage void and section 17 makes it a
penal offence under Section494 and 495 IPC

22. Leading Case Laws:
• Bhaurao Shankar Lokhande v. State of Maharashtra (AIR 1965 ALL 489)
• Sarla Mudgal v. UOI ( AIR 1995 SC 1531)
• Lily Thomas v. UOI ( AIR 2000 SC 1650)
• S.Nagalingam v. Sivagami (2001 (7) SCC 487

23. Judicial Separation
Section 10
[(1) Either party to a marriage, whether solemnised before or after the
commencement of this Act, may present a petition praying for a decree for
judicial separation on any of the grounds specified in sub-section (1) of
section 13, and in the case of a wife also on any of the grounds specified in
sub-section (2) thereof, as grounds on which a petition for divorce might
have been presented.]
(2) Where a decree for judicial separation has been passed, it shall no longer be
obligatory for the petitioner to cohabit with the respondent, but the court
may, on the application by petition of either party and on being satisfied of
the truth of the statements made in such petition, rescind the decree if it
considers it just and reasonable to do so

24. • A petition can be filed on any of the grounds specified in sub-section (1)
and (2) of Section 13.
• Judicial or legal separation means living apart by the parties to the
marriage. If a decree for judicial separation is passed by a competent Court,
it is no longer obligatory for either party to cohabit with the other.
• Such a decree does not sever or dissolve the marriage.
• Yet it is equally true that certain mutual rights and obligations arising from
the marriage are suspended when such a decree is passed.
Grounds
• Adultery
• Cruelty
• Desertion
• Unsoundness of Mind
• Conversion/Apostasy

25. • Virulent and /incurable Leprosy
• Venerable Disease
• Renunciatiation of World(Hermit)
• Presumed Death (missing Spouse)
Additional Grounds to Wife
• Bigamy
• Rape, Sodomy or Bestiality
• Non-resumption of Cohabitation after decree or Order of Maintenance
• Option of Puberty

26. Incidents and effects of Decree of Judicial Separation
Section 10(2)
1. permits the parties to live separately
2. does not dissolve the marriage
3. husband and wife continue to have the same status
4. not be obligatory for them to cohabit with each other
5. does not prevent the parties from resuming cohabitation and living together
as husband and wife.
Rescission of Decree of Judicial Separation (Section 10(2))
Section 10(2) of the Act empowers the Court to rescind the decree of the
judicial separation if it considers it just and reasonable to do so.
1. the decree has been obtained by showing reasonable excuse for his or her
absence.

27. 2. the parties cohabited with each other after the decree was passed or they
have resumed living together.
3. the opposite party has condoned the offence.
Void ( Section 11) and Voidability ( Section 12) of Marriage
• The Act introduced the concept of void, voidable and dissoluble Marriages.
Some marriages performed in contravention of certain legal provisions are
void ab initio and have no legal effect.
• There are those which are legal so long as they are not challenged, and
these are called voidable. The other category of marriages that are perfectly
legal or valid but due to existence of certain conditions, the petitioner is
entitled to seek a divorce.

28. Impediments or Bars to marriage
• Absolute, if exist marriage is void
• Relative, if exist marriage is voidable
Section 11:Void marriages
Any marriage solemnised after the commencement of this Act shall be
null and void and may, on a petition presented by either party
thereto 1[against the other party], be so declared by a decree of nullity if
it contravenes any one of the conditions specified in clauses (i), (iv) and
(v) of section 5.

29. Section 12:Voidable marriages
Any marriage solemnised, whether before or after the commencement of
this Act, shall be voidable and may be annulled by a decree of nullity on
any of the following grounds, namely:
1[(a) that the marriage has not been consummated owing to the impotence
of the respondent; or]
(b) that the marriage is in contravention of the condition specified in clause
(ii) of section 5; or
(c) that the consent of the petitioner, or where the consent of the guardian in
marriage of the petitioner 2[was required under section 5 as it stood
immediately before the commencement of the Child Marriage Restraint
(Amendment) Act, 1978 (2 of 1978)], the consent of such guardian was
obtained by force 3[or by fraud as to the nature of the ceremony or as to any
material fact or circumstances concerning the respondent]; or

30. (d) that the respondent was at the time of the marriage pregnant by some
person other than the petitioner.
(2) Notwithstanding anything contained in sub-section (1), no petition for
annulling a marriage
(a) on the ground specified in clause (c) of sub-section (1) shall be
entertained if
(i) the petition is presented more than one year after the force had ceased
to operate or, as the case may be, the fraud had been discovered; or
(ii) the petitioner has, with his or her full consent, lived with the other party
to the marriage as husband or wife after the force had ceased to operate or,
as the case may be, the fraud had been discovered;

31. (b) on the ground specified in clause (d) of sub-section (1) shall be
entertained unless the court is satisfied
(i) that the petitioner was at the time of the marriage ignorant of the facts
alleged;
(ii) that proceedings have been instituted in the case of a marriage
solemnised before the commencement of this Act within one year of such
commencement and in the case of marriages solemnised after such
commencement within one year from the date of the marriage; and
(iii) that marital intercourse with the consent of the petitioner has not taken
place since the discovery by the petitioner of the existence of 4[the said
ground].

32. Divorce
• Under Hindu Custom, Marriage is considered as sacred and they have this
relation by the blessings of the God. They believed the concept of
marriages are made in heaven”. Hindus considered the separa"on of couple
as a sin and hence the question of living separately did not arise in olden
days. Once married, then it will lasts till the end of life.
• Divorce means putting an end to the marriage by dissolution of marital
relations. The parties can no longer be husband and wife. Divorce was
unknown to the old textual Hindu law of marriage.
• Manu declared that a wife cannot be separated from her husband either by
sale or by abandonment because marital "e could not be severed under any
circumstances whatsoever.
• Manu did not approve of the dissolution of marriage in any condition

33. Theories of Divorce
• Divorce at Will Theory
• Frustration of Marriage Theory
• Offence or Guilt or Fault Theory
• Mutual Consent Theory
• Irretrievable Breakdown Theory (Yousuf v. Sowramma, AIR 1971 Ker 261)

34. Position in Modern Hindu Law(Amendments)
• The Hindu Marriage Act,1955 originally based divorce on the faulty theory
and enshrined nine fault ground in Section 13(1) on which either husband
or wife could sue for divorce and two fault ground in Section 13(2) on
which wife could sue for divorce.
• In 1964 , by an amendement ,clauses (viii) and (ix) of Section 13(1) were
recasted in the form of 13(1A),thus recognising two grounds of breakdown
of marriage. The 1976 Amendment Act inserted two additional fault
grounds of divorce for wife and a new Section 13 B (Divorce by Mutual
Consent)

35. Statutory Provisions (Section 13,13A,13B,14,15,23 & 23A)
Section 13(1) Any marriage solemnized, whether before or after the
commencement of this Act, may, on a petition presented by either the
husband or the wife, be dissolved by a decree of divorce on the ground that
the other party—
• Adultery:
• Cruelty:
• Desertion:
• Conversion:
• Unsoundness of mind:
• Venereal disease:
• Renunciation of the world:
• Presumption of death:
• Non-resumption of cohabitation after the decree of judicial separation:
• Non-compliance with the decree of restitution of conjugal rights:

36. • (1A) Either party to a marriage, whether solemnized before or after the
commencement of this Act, may also present a petition for the dissolution
of the marriage by a decree of divorce on the ground:
• (i) that there has been no resumption of cohabitation as between the
parties to the marriage for a period of 8[one year] or upwards after the
passing of a decree for judicial separation in a proceeding to which they
were parties; or
• (ii) that there has been no restitution of conjugal rights as between the
parties to the marriage for a period of 8[one year] or upwards after the
passing of a decree for restitution of conjugal rights in a proceeding to
which they were parties.]

37. Section 13(2) Grounds available for wife:
• Bigamy:
• Rape, Sodomy and bestiality:
• Maintenance decreed to Wife
• Repudiation of Marriage by Wife
Adultery ( Section 13(1)(i))
• Adultery (extra marital sex), may be defined as consensual sexual
intercourse between a married person and a person of the opposite sex, not
the other spouse, during the subsistence of the marriage.
• Prior to 1976 Amendment, it was only available for judicial separation and
for divorce, the respondent had to prove that respondent was ‘living in
adultery’( which means continuous period of acts), now one single act is
enough.

38. Cruelty (13)(1)(ia)
• Out of all grounds it is the most difficult to define. No precise definition.
• In Russel v. Russel(1897) A.C (305), cruelty defined as :” Conduct of such
a character as to have cause danger to life ,limb or health, bodily or
mental,or as to give rise to a reasonable apprehension of such danger.
• Before 1976,cruelty was not a ground of divorce, but only judicial
seperation.
Physical and Mental Cruelty
Instances of Physical Cruelty
• Repeated beating
• Burning any limb
• Neglect in providing or starving
• Keeping in illegal confinement

39. Instances of Mental Cruelty
• False Charge of unchasty
• Compelling the wife to adopt the adopt life of prostitution
• Repeated threats to commit suicide
• Voluntary abortion
Leading case Laws
• Dastane v. Dastane (1975) 2 SCC 326
• Samar Ghosh v. Jaya Ghosh, 2007(3) SCJ 253
• Concept of Mental Cruelty explained in Parveen Mehta v. Inderjit
Mehta,(2002) 5 SCC 706
• V. Bhagat v. D. Bhagat (AIR 1994 SC 710
• Suman Kapur v. Sudhir Kapur ( AIR 2009 SC 589)

40. Desertion( Section 13(1)(ib)
• It may be defined as permanent forsaking or abandonment of one spouse by
the other without any reasonable cause and without the consent of the other.
• Total repudiation of obligations of marriage
• Withdrawal not just from a place but also from a state of thing.
• Thus desertion is there even if spouses are living under one roof but refuses
to fulfill the matrimonial obligation.
• Desertion may be Actual or Constructive or Willful Neglect.
For Actual Desertion, following elements must be there:
a. The factum of separation
b. Animus deserdendi (intention to desert)
c. Without reasonable excuse
d. Without the consent of other party
e. Statutory period of two years must have run out before petition is
presented

41. Constructive Desertion
• It cannot always be equated with separate living by the parties to marriage.
If it is proof that despite of living under same roof spouse intentionally
neglects the other spouse then also he is guilty of desertion.
• Thus desertion is not actually the abandonment of a place but of a
relationship.
• It has same requirements as actual.
Willful Neglect
• Explanation to 13(1) of the Act states that desertion includes willful neglect
of the petitioner by the other party to the marriage.
• Thus it can be said that willful neglect adds a new dimension to the notion
of desertion.
• Thus it will amount to willful neglect if a person consciously acts in a
reprehensible manner in the discharge of his obligations.

42. Leading Case Laws
• Bipinchandra v. Prabhawati ,AIR 1957 SC 176
• Savitri Pandey v. Prem Chandra Pandey, AIR 2002 SC 591
Conversion 13(1)(ii)
• Conversion implies that the person has voluntary relinquishes his faith and
adopted another religion after ceremonial conversion.
• Conversion does not itself result in Divorce. A petition under this section is
to be made to the court for obtaining divorce.
Leading Case Laws:
• Sarla Mudgal v. UOI, AIR 1995 SC 1531
• Lily Thomas v. UOI, (2000) 6 SCC 224

43. Mental Disorder( Section 13(1)(iii)
&
Virulent and Incurable form of Leprosy(13(1)(iv)
Prior to 1976 “unsoundness of mind” and virulent and incurable form of
leprosy for one year was a ground for Judicial Separation, and for three
years for divorce. But after amendment now no period is prescribed.
Leading Case Law
• T.N Bhagat v. Bhagat ( AIR 1967 Bom. 80)

44. Irretrievable Breakdown of Marriage (13(1A))
• [(1A) Either party to a marriage, whether solemnized before or after the
commencement of this Act, may also present a petition for the dissolution
of the marriage by a decree of divorce on the ground:
• (i) that there has been no resumption of cohabitation as between the parties
to the marriage for a period of 8[one year] or upwards after the passing of a
decree for judicial separation in a proceeding to which they were parties; or
• (ii) that there has been no restitution of conjugal rights as between the
parties to the marriage for a period of 8[one year] or upwards after the
passing of a decree for restitution of conjugal rights in a proceeding to
which they were parties.]

45. Divorce by Mutual Consent (13B)
Section 13B. Divorce by mutual consent.
• (1) Subject to the provisions of this Act a petition for dissolution of
marriage by a decree of divorce may be presented to the district court by
both the parties to a marriage together, whether such marriage was
solemnized before or after the commencement of the Marriage Laws
(Amendment) Act, 1976 (68 of 1976), on the ground that they have been
living separately for a period of one year or more, that they have not been
able to live together and that they have mutually agreed that the marriage
should be dissolved.
• (2) On the motion of both the parties made not earlier than six months after
the date of the presentation of the petition referred to in sub-section (1) and
not later than eighteen months after the said date, if the petition is not
withdrawn in the meantime, the court shall, on being satisfied, after hearing
the parties and after making such inquiry as it thinks fit, that a marriage has
been solemnized and that the averments in the petition are true, pass a

46. • decree of divorce declaring the marriage to be dissolved with effect from
the date of the decree.]
• Since Divorce is the last remedy available to put an end to the marital tie,
the parties can decide to separate amicably, divorce petition may be
submitted by any one of the spouses to the District Court on any one of the
grounds given in Section 13 of the Act to take divorce on mutual consent.
• Divorce by mutual consent was not incorporated in the original Act of
1955. It has been inserted in the Section 13-B by the Hindu Marriage
(Amendment) Act, 1976.
Essentials
• parties living separately for a period of one year or more
• not able to live together
• mutual agreement in dissolving the marriage
• consent of the parties has been obtained

47. Leading Case Laws
• Sureshta Devi v. Om Prakash, AIR 1992 SC 1904 (One Party withdraws
consent unilaterally)
• Anil Kumar Jain v. Maya Jain, 2009 10 SCC 415

48. Difference between Divorce and Judicial Separation
• The relationship of husband and wife stands suppressed, while in Divorce
the relationship of husband and wife ceases to exist.
• Temporarily suspends the marital rights and duties of parties to marriage
for some "me by Court, while Divorce puts an end to the marital
relationship between the parties.
• The object is the hope of adjustment, reconciliation and reunion of the
spouses, while in Divorce, the object is to give the last resort.
• The parties to the marriage cannot remarry, while in Divorce, the parties are
entitled to get another marriage of his/her choice
• Original marital relationship can be restored, while in Divorce, the original
marital status cannot be restored
• It is a lesser remedy than divorce, but in Divorce, it is stronger, drastic and
last remedy than judicial separation