Matrimonial Remedies: Divorce and Theories of Divorce

• Conditions: either spouse has, without reasonable excuse, withdrawn from the society of the other; the petitioner may apply to the district court for restitution; Section 9(2): the burden of proving reasonable excuse is on the person who has withdrawn.

• Constitutionality: T. Sareetha v T. Venkata Subbaiah (AP High Court, 1983) struck it down as a violation of privacy, dignity and bodily integrity under Article 21; Harvinder Kaur v Harmander Singh Choudhry (Delhi High Court, 1984) upheld it, saying the remedy aims at cohabitation, not sexual intercourse; Saroj Rani v Sudarshan Kumar Chadha (Supreme Court, 1984) upheld Section 9 as a measure to preserve marriage, not violating Articles 14 or 21.

• Consequence: a decree is enforced by attachment of property (Order XXI Rule 32 CPC), not by compelling cohabitation. No restitution within one year ends in a ground for divorce: Section 13(1A)(ii).

• Pending challenge: Ojaswa Pathak v Union of India (a writ challenging Section 9) was pending before the Supreme Court at last report (verify).

Available on any of the Section 13(1) grounds and, for a wife, the Section 13(2) grounds. Effects: no obligation to cohabit, but the marital status continues; the decree can be rescinded by the court (Section 10(2)). After one year without resumption of cohabitation, either party may seek divorce under Section 13(1A)(i) (reduced from two years in 1976).

Section 13(1A): either party can petition for divorce if there has been (i) no resumption of cohabitation for one year or more after a decree of judicial separation, or (ii) no restitution of conjugal rights for one year or more after a decree. Section 13(2): grounds only for wife: (i) husband had another wife alive at the commencement of the Act (pre-1955 bigamy); (ii) husband guilty of rape, sodomy or bestiality after marriage; (iii) a decree or order of maintenance (Section 18 HAMA or Section 125 CrPC) passed against husband and no cohabitation for one year or more thereafter; (iv) repudiation: marriage solemnised before she was 15 and she repudiated it after 15 and before 18. In 2026 the Supreme Court (CJI Surya Kant and Justice Joymalya Bagchi) dismissed Jitender Singh v Union of India (W.P.(C) 460/2026), a PIL by a man seeking gender parity in Section 13(2)(iii), saying special provisions for women are constitutionally permitted (reported; verify).

The court grants relief only if: (a) the petitioner is not taking advantage of his or her own wrong (the bar of ‘own wrong’); (b) the petitioner has not been accessory to or connived at the act complained of; (bb) no condonation (forgiveness with restoration to former marital status; revives if the condoned offence repeats); (c) not collusive; (d) no unnecessary or improper delay; (e) no other legal ground for refusing relief. Section 23(2): court must try to reconcile where possible. Section 14: no divorce petition within one year of marriage unless exceptional hardship or exceptional depravity. Section 15: remarriage after decree allowed once the time for appeal lapses or the appeal is dismissed (Section 28). Section 21B: trial day-to-day; Section 21A: transfer of petitions; Section 19: jurisdiction: place of marriage, where respondent resides, where parties last resided together, or where the wife resides (inserted 2003).

• 13B(1): a joint petition on the ground that they have been living separately for one year or more, have not been able to live together and have mutually agreed to dissolve the marriage.

• 13B(2): the second motion not earlier than six months and not later than eighteen months after the petition; if the petition is not withdrawn, the court after inquiry grants a decree.

• Consent must continue until decree: Sureshta Devi v Om Prakash (1991); the Supreme Court in Hitesh Bhatnagar v Deepa Bhatnagar (2011) reaffirmed that one party can withdraw consent before the decree; Anil Kumar Jain v Maya Jain (2009) held that only the Supreme Court, under Article 142, could waive the statutory period, a rigid view later softened by Amardeep Singh (2017).

• Cooling-off period is directory: Amardeep Singh v Harveen Kaur (2017): it can be waived by the Family Court if the statutory one-year separation is over, efforts at mediation have failed, the parties have settled alimony and custody, and waiting would only prolong agony. Shilpa Sailesh v Varun Sreenivasan (2023, five judges) also approved this.

• Recent: A Supreme Court bench in S v State of Odisha (Justices Nagarathna and Mahadevan, 28 September 2026, reported) invoked Article 142 to grant divorce by mutual consent, awarded alimony and quashed 18 pending civil and criminal cases between the parties, observing that Section 13B does not limit its power (verify; 2026 INSC 1060 appears in a report).

• Shilpa Sailesh v Varun Sreenivasan (2023): Constitution Bench of Justices Kaul, Khanna, Oka, Vikram Nath and Maheshwari. Held: the Supreme Court may dissolve a marriage on the ground of irretrievable breakdown under Article 142(1) to do ‘complete justice’, even though it is not a statutory ground; it is not a matter of right, but a discretion to be exercised with care; it may also quash related criminal proceedings; it can waive the 6-month period; the Court laid down factors such as period of separation (a long separation, often six years or more, is relevant), efforts at reconciliation, nature of allegations, number of proceedings, the interest of children and financial security of the wife, but refused to fix a rigid rule. High Courts cannot use Article 142; family courts cannot treat irretrievable breakdown as a ground.

• Earlier cases: Naveen Kohli v Neelu Kohli (2006) recommended amendment; Vishnu Dutt Sharma v Manju Sharma (2009) said courts cannot add a ground; Samar Ghosh listed long separation as indicating irretrievable breakdown.

• 2026 applications (reported; verify): Neha Lal v Abhishek Kumar (2026 INSC 73, 20 January 2026): marriage dissolved over the husband’s objection after only 65 days of cohabitation and over ten years of separation with more than forty proceedings; judgment of 2 June 2026 dissolving a marriage of two government doctors separated for fifteen years (‘stale and frozen’ marriages); 27 May 2026 (Justices Vikram Nath and Sandeep Mehta) dissolved an Army officer and doctor’s marriage with large permanent alimony.

• Section 24: interim maintenance and expenses of proceedings to the spouse with no independent income sufficient for support (either wife or husband); to be decided within 60 days of service.

• Section 25: permanent alimony and maintenance (gross sum or monthly), modifiable if circumstances change; it ceases on remarriage or unchastity (wife) or if the husband has sex outside marriage (husband).

• Section 26: custody, maintenance and education of minor children; welfare is paramount.

• Section 27: disposal of property presented at or about the time of marriage that belongs jointly to both spouses.

• Rajnesh v Neha (2020) mandates an affidavit of disclosure of assets and liabilities in all maintenance cases; interim maintenance from the date of application; no fixed formula (reaffirmed in 2026 decisions: verify).

• Anamika Jain (28 January 2026, Section 25 HMA): a working wife can still be entitled to alimony; maintenance enhanced from Rs 15,000 to Rs 30,000 per month (verify).