Whether Divorce can be granted due to broken of marriage or due to ‘irretrievable breakdown of marriage’ ?

In K. Srinivas Rao Vs. D.A. Deepa (2013) 5 Supreme Court Cases 226, it is held that whether the marriage is beyond repair on the ground of bitterness created by the acts of the husband or the wife or both, the courts have always taken irretrievable breakdown of the marriage as a very weighty circumstance amongst others necessitating severance of marital tie. A marriage, which is dead for all purposes cannot be revived by the court’s verdict if the parties are not willing. This is because the marriage involves human sentiments and emotions and if they have dried up, there is hardly any chance of their springing back to life on account of artificial reunion created by the court’s decree.

In Darshan Gupta Vs. Radhika Gupta, (2013) 9 Supreme Court Cases 1, the Apex Court has opined that the Apex Court in some cases had dissolved the marriage on the ground of ‘irretrievable breakdown’ but in those cases, the legal position was not taken into consideration and hence, they are not precedents. It is also mentioned in para-’52’ of this judgement that the decree of divorce on the ground of ‘irretrievable breakdown’ of marriage could not be granted for the simple reason that the breakdown was from the side of the husband only. The Apex Court found that where the wife was intensely concerned with her future relationship with her husband and her greatest desire was to rejoin her husband and to live in a normal matrimonial life, in that case the Court cannot proceed to grant decree of divorce.

Limitation for filling Execution Petition against the maintenance order-Laws on Maintenance in India.

The ambit and scope of the powers to be exercised under Section 125(3) of the Code and the question as to whether the limitation prescribed under proviso to Section 125(3) would be applicable in respect of proceedings under Section 128 of the Code.

The scheme provided under the Code for making orders for maintenance of wife, children and parents under Chapter IX would be required to be adverted to. The relevant provisions under Sections 125 to 128 are being extracted below:-

“125. Order for maintenance of wives, children and parents.–(1) If any person having sufficient means neglects or refuses to maintain-
(a) his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or
(d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct:
Provided that the Magistrate may order the father of a minor female child referred to in clause

(b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means :
Provided further that the Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this sub- section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct:
Provided also that an application for the monthly allowance for the interim maintenance and expenses for proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person.

Explanation.- For the purposes of this Chapter,-

(a) “minor” means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875 ); is deemed not to have attained his majority;

(b) ” wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.

(2) Any such allowance for the maintenance or interim maintenance and expenses of proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be.

(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole, or any part of each month’s allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:
Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due:

Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.

Explanation.- If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife’ s refusal to live with him.

(4) No wife shall be entitled to receive an allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.

(5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.

126. Procedure.–(1) Proceedings under section 125 may be taken against any person in any district—

(a) where he is, or
(b) where he or his wife, resides, or
(c) where he last resided with his wife, or as the case may be, with the mother of the illegitimate child.

(2) All evidence to such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made, or, when his personal attendance is dispensed with in the presence of his pleader, and shall be recorded in the manner prescribed for summons-cases:

Provided that if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is wilfully avoiding service, or wilfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the case ex parte and any order so made may be set aside for good cause shown on an application made within three months from the date thereof subject to such terms including terms as to payment of costs to the opposite party as the Magistrate may think just and proper.

(3) The Court in dealing with applications under section 125 shall have power to make such order as to costs as may be just.

127. Alteration in allowance.–(1) On proof of a change in the circumstances of any person, receiving, under section 125 a monthly allowance for the maintenance or interim maintenance, or ordered under the same section to pay a monthly allowance for the maintenance, or interim maintenance, to his wife, child, father or mother, as the case may be, the Magistrate may make such alteration, as he thinks fit, in the allowance for the maintenance or the interim maintenance, as the case may be.

(2) Where it appears to the Magistrate that, in consequence of any decision of a competent Civil Court, any order made under section 125 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly.

(3) Where any order has been made under section 125 in favour of a woman who has been divorced by, or has obtained a divorce from, her husband, the Magistrate shall, if he is satisfied that—

(a) the woman has, after the date of such divorce, remarried, cancel such order as from the date of her remarriage;
(b) the woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order–
(i) in the case where such sum was paid before such order, from the date on which such order was made;
(ii) in any other case, from the date of expiry of the period, if any, for which maintenance has been actually paid by the husband to the woman;
(c) the woman has obtained a divorce from her husband and that she had voluntarily surrendered her rights to maintenance or interim maintenance, as the case may be, after her divorce, cancel the order from the date thereof.

(4) At the time of making any decree for the recovery of any maintenance or dowry by any person, to whom a monthly allowance for the maintenance and interim maintenance or any of them has been ordered to be paid under section 125, the Civil Court shall take into account the sum which has been paid to, or recovered by, such person as monthly allowance for the maintenance and interim maintenance or any of them, as the case may be, in pursuance of the said order.

128. Enforcement of order of maintenance.–A copy of the order of maintenance or interim maintenance and expenses of proceeding, as the case may be, shall be given without payment to the person in whose favour it is made, or to his guardian, if any, or to the person to whom the allowance for the maintenance or the allowance for the interim maintenance and expenses of proceeding, as the case may be, is to be paid; and such order may be enforced by any Magistrate in any place where the person against whom it is made may be, on such Magistrate being satisfied as to the identity of the parties and the non-payment of the allowance, or as the case may be, expenses, due.”
The object of the provisions contained under Chapter IX of the code is to provide a speedy and effective remedy against persons, who neglect or refuses to maintain their dependent wife, children and parents.

The provisions with regard to grant of maintenance under Section 125 Cr.P.C. and the duty of the husband towards the wife in regard thereof, came up for consideration in the case of Bhuwan Mohan Singh vs. Meena & others2, and referring to the earlier decisions in Smt. Dukhtar Jahan v. Mohammed Farooq3, Vimala (K.) v. Veeraswamy (K.)4 and Kirtikant D. Vadodaria v. State of Gujarat5 it was held that the proceedings are summary in nature and they intend to provide a speedy remedy and achieve a social purpose. The observations made in the judgement in this regard are as follows :

 To reiterate the principle of law how a proceeding under Section 125 of the Code has to be dealt with by the court, and what is the duty of a Family Court after establishment of such courts by the Family Courts Act 1984. In Smt. Dukhtar Jahan v. Mohammed Farooq (1987) 1 SCC 624, the Court opined that: (SCC p. 631, para 16)

“Proceedings under Section 125 of the Code, it must be remembered, are of a summary nature and are intended to enable destitute wives and children, the latter whether they are legitimate or illegitimate, to get maintenance in a speedy manner.”

 A three-Judge Bench in Vimala (K.) v. Veeraswamy (K.) (1991) 2 SCC 375, while discussing about the basic purpose under Section 125 of the Code, opined that: (SCC p. 378, para 3)
“3. Section 125 of the Code of Criminal Procedure is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife.

 A two-Judge Bench in Kirtikant D. Vadodaria v. State of Gujarat (1996) 4 SCC 479, while adverting to the dominant purpose behind Section 125 of the Code, ruled that: (SCC p. 489, para 15)

“15 While dealing with the ambit and scope of the provision contained in Section 125 of the Code, it has to be borne in mind that the dominant and primary object is to give social justice to the woman, child and infirm parents etc. and to prevent destitution and vagrancy by compelling those who can support those who are unable to support themselves but have a moral claim for support. The provisions in Section 125 provide a speedy remedy to those women, children and destitute parents who are in distress. The provisions in Section 125 are intended to achieve this special purpose. The dominant purpose behind the benevolent provisions contained in Section 125 clearly is that the wife, child and parents should not be left in a helpless state of distress, destitution and starvation.”

 The legal position that the provisions under Chapter IX of the Code are in the nature of a beneficent legislation and the liability to pay maintenance under Section 125 of the Code is a continuing one, was reiterated in recent decisions of this Court in Alakhram v. State of U.P. and Another6 and Mithilesh Maurya v. State of U.P. and Another7.

The distinction between the mode of enforcing recovery on the one hand and effecting actual recovery of the amount of monthly allowance which has fallen in arrears on the other, in the context of the provisions under Sections 125(3) and 128 of the Code, fell for consideration in the case of Smt. Kuldip Kaur v. Surinder Singh And Another8, and it was held that sentencing a person to jail as per terms of Sections 125(3) of the Code is a ”mode of enforcement’ and not ”mode of satisfaction’ of the liability, which can be satisfied only by making actual payment of the arrears. The observations made in the judgement with regard to the scope of the powers to be exercised under Sections 125(3) and 128 of the Code, are being extracted below:-

“5. The scheme of the provisions embodies in Chapter IX of the Code comprising of Sections 125 to 128 which constitutes a complete code in itself requires to be comprehended. It deals with three questions, viz.: (1) adjudication as regards the liability to pay monthly allowance to the neglected wife and child etc., (2) the execution of the order on recovery of monthly allowance, and (3) the mode of execution of an order for monthly allowance. Now, one of the modes for enforcing the order of maintenance allowance with a view to effect recovery thereof is to impose a sentence of jail on the person liable to pay the monthly allowances.

A distinction has to be drawn between a mode of enforcing recovery on the one hand and effecting actual recovery of the amount of monthly allowance which has fallen in arrears on the other. Sentencing a person to jail is a `mode of enforcement’. It is not a `mode of satisfaction’ of the liability. The liability can be satisfied only by making actual payment of the arrears. The whole purpose of sending to jail is to oblige a person liable to pay the monthly allowance who refuses to comply with the order without sufficient cause, to obey the order and to make the payment. The purpose of sending him to jail is not to wipe out the liability which he has refused to discharge. Be it also realised that a person ordered to pay monthly allowance can be sent to jail only if he fails to pay monthly allowance ‘without sufficient cause’ to comply with the order. It would indeed be strange to hold that a person who `without reasonable cause’ refuses to comply with the order of the Court to maintain his neglected wife or child would be absolved of his liability merely because he prefers to go to jail. A sentence of jail is no substitute for the recovery of the amount of monthly allowance which has fallen in arrears. Monthly allowance is paid in order to enable the wife and child to live by providing with the essential economic wherewithal. Neither the neglected wife nor the neglected child can live without funds for purchasing food and the essential articles to enable them to live. Instead of providing them with the funds, no useful purpose would be served by sending the husband to jail. Sentencing to jail is the means for achieving the end of enforcing the order by recovering the amount of arrears. It is not a mode of discharging liability. The section does not say so. The Parliament in its wisdom has not said so. Common sense does not support such a construction. From where does the Court draw inspiration for persuading itself that the liability arising under the order for maintenance would stand discharged upon an effort being made to recover it? The order for monthly allowance can be discharged only upon the monthly allowance being recovered. The liability cannot be taken to have been by sending the person liable to pay the monthly allowance, to jail. At the cost of repetition it may be stated that it is only a mode or method of recovery and not a substitute for recovery. No other view is possible. …”

Refence : APPLICATION U/S 482 No. – 8718 of 2021

Applicant :- Mohammad Usman Alias Bhai Lal vs State of U.P.

When Mandatory Period of Six Months Can be Waived Off for Divorce by way of Mutual Consent.

Divorce by way of Mutual Consent  in India.

The relevant Section 10A(1) & 2 of the Divorce Act, 1869 reads as under:

10A Dissolution of marriage by mutual consent.

“(1) Subject to the provisions of this Act and the rules made thereunder, a petition for dissolution of marriage 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 Indian Divorce (Amendment) Act, 2001, on the ground that they have been living separately for a period of two years or more, that they have not been able to live together and 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 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 by both the parties in the meantime, the Court shall, on being satisfied, after hearing the parties and making such inquiry, as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree declaring the marriage to be dissolved with effect from the date of decree.]”

Mutual Consent Divorce under Hindu Marriage Act

“13-B. 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, 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.

Power to waived off mandatory Period of six Month for dissolution of Marriage  by Hon’ble Supreme Court.

This Court noted that power under Article 142 had been exercised in cases where the Court found the marriage to be totally unworkable, emotionally dead, beyond salvage and broken down irretrievably. This power was also exercised to put quietus to all litigations and to save the parties from further agony. This view was reiterated in Poonam versus Sumit Tanwar.

However, the question  is whether Section 13B(2) is to be read as mandatory or discretionary needs to be gone into. In Manish Goel (supra), this question was not gone into as it was not raised.

The Hon’ble Court  observed :

that waiting period enshrined under Section 13(B)2 of the Act is directory and can be waived by the court where proceedings are pending, in exceptional situations. This view is supported by judgments of the Andhra Pradesh High Court in K. Omprakash vs. K. Nalini, Karnataka High Court in Roopa Reddy vs. Prabhakar Reddy11, Delhi High Court in Dhanjit Vadra vs. Smt. Beena Vadra12 and Madhya Pradesh High Court in Dinesh Kumar Shukla vs. Smt. Neeta13. Contrary view has been taken by Kerala High Court in M. Krishna Preetha vs. Dr. Jayan 10 AIR 1986 AP 167 (DB) 11 AIR 1994 Kar 12 (DB) 12 AIR 1990 Del 146 13 AIR 2005 MP 106 (DB) Moorkkanatt.

It was submitted that Section 13B(1) relates to jurisdiction of the Court and the petition is maintainable only if the parties are living separately for a period of one year or more and if they have not been able to live together and have agreed that the marriage be dissolved. Section 13B(2) is procedural. The discretion to waive the period is a guided discretion by consideration of interest of justice where there is no chance of reconciliation and parties were already separated for a longer period or contesting proceedings for a period longer than the period mentioned in Section 13B(2). Thus, the Court should consider the questions:

i) How long parties have been married?

ii) How long litigation is pending?

iii) How long they have been staying apart?

iv) Are there any other proceedings between the parties?

v) Have the parties attended mediation/conciliation?

vi) Have the parties arrived at genuine settlement which takes care of alimony, custody of child or any other pending issues between the parties?

. The Court must be satisfied that the parties were living separately for more than the statutory period and all efforts at mediation and reconciliation have been tried and have failed and there is no chance of reconciliation and further waiting period will only prolong their agony.

The  given due consideration to the issue involved. Under the traditional Hindu Law, as it stood prior to the statutory law on the point, marriage is a sacrament and cannot be dissolved by consent. The Act enabled the  court to dissolve marriage on statutory grounds. By way of amendment in the year 1976, the concept of divorce by mutual consent was introduced. However, Section 13B(2) contains a bar to divorce being granted before six months of time elapsing after filing of the divorce petition by mutual consent. The said period was laid down to enable the parties to have a rethink so that the court grants divorce by mutual consent only if there is no chance for reconciliation.

The object of the provision is to enable the parties to dissolve a marriage by consent if the marriage has irretrievably broken down and to enable them to rehabilitate them as per available options. The amendment was inspired by the thought that forcible perpetuation of status of matrimony between unwilling partners did not serve any purpose. The object of the cooling off the period was to safeguard against a hurried decision if there was otherwise possibility of differences being reconciled. The object was not to perpetuate a purposeless marriage or to prolong the agony of the parties when there was no chance of reconciliation. Though every effort has to be made to save a marriage, if there are no chances of reunion and there are chances of fresh rehabilitation, the Court should not be powerless in enabling the parties to have a better option.

In determining the question whether provision is mandatory or directory, language alone is not always decisive. The Court has to have the regard to the context, the subject matter and the object of the provision. This principle, as formulated in Justice G.P. Singh’s “Principles of Statutory Interpretation” (9th Edn., 2004), has been cited with approval in Kailash versus Nanhku and ors.as follows:

 “The study of numerous cases on this topic does not lead to formulation of any universal rule except this that language alone most often is not decisive, and regard must be had to the context, subject-matter and object of the statutory provision in question, in determining whether the same is mandatory or directory. In an oft-quoted passage Lord Campbell said: ‘No universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be considered.’ ‘For ascertaining the real intention of the legislature’, points out Subbarao, J. ‘the court may consider inter alia, the nature and design of the statute, and the consequences which would follow from construing it the one way or the other; the impact of other provisions whereby the necessity of complying with the provisions in question is avoided; the circumstances, namely, that the statute provides for a contingency of the non-compliance with the provisions; the fact that the non-compliance with the provisions is or is not visited by some penalty; the serious or the trivial consequences, that flow therefrom; and above all, whether the object of the legislation will be defeated or furthered’. If object of the enactment will be defeated by holding the same directory, it will be construed as mandatory, whereas if by holding it mandatory serious general inconvenience will be created to innocent persons without very much furthering the object of enactment, the same will be construed as directory.”

Thereafter, it has been noted by the Hon’ble Supreme Court that power under Article 142 had been exercised in cases where the Court found the marriage to be totally unworkable, emotionally dead, beyond salvage and broken down irretrievably. The power was also exercised to put quietus to all litigations and to save the parties from further agony. It has been stated therein cooling off period of 6 months can be waived by exercising of power under Article 142 having considered the following grounds:

i) How long parties have been married?

ii) How long litigation is pending?

iii) How long they have been staying apart?

iv) Are there any other proceedings between the parties?

v) Have the parties attended mediation/conciliation?

vi) Have the parties arrived at genuine settlement which takes care of alimony, custody of child or any other pending issues between the parties?

Reference:

Dissolution of Marriage on Grounds of idiocy or lunacy under Hindu marriage Act 1955.

 In the matter of : Om Prakash Gupta vs Puspa Kumari, citations: ILR 1969 Delhi 953, The Hon’ble Delhi High Court held that:-

What  is the meaning of “an idiot” ?

In section 5(ii) of the Hindu Marriage Act, 1955 (hereinafter called the Act) and how to determine whether a person is such an idito on the medical and other evidence in this case-are the two important questions for decision in this appeal by the husband whose petition under section 12(1)(b) of the Act for a decree of nullity against the respondent wife has been dismissed by the learned lower Court on the ground that the husband has failed to prove that wife, at the time of the marriage, was “an idiot”.

(2) The two provisions of the Act to be considered are : Section 5(ii) :

“Amarriage may be solemnized between any two Hindus, if the following conditions are fulfillled, namely :

 (I)..

 (II)neither party is an idito or a lunatic at the time of the marriage.”

AND section 12(1) (b) :

12.(1) Any marriage solemnized, 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 :

 (a)..

(B)That the marriage is in contravention of the condition sepeified in clause (ii) of section 5.”

 (3) The key to the interpretation of Sections 5(ii) and 12(1)(b) will be found in the long title of the Act which is as follows :    “ANAct to amend and codify the law relating to marriage among Hindus”. 

 (4) The Act thus partly embodies the existing Hindu Law and partly amends it. In 1955, the Legislature, therefore, in making this Act, drew upon two distinct sources, namely :    

 (A)the then existing Hindu Law and  

 (B)the English Common Law as modified by statutes.  

(5) The concept of idiocy and/or lunacy as a ground of incapacity was nto unknown to Hindu Law. Idiocy was a ground of disqualification of a person from inheritance. In R. Muthammal v. S. Devasthanam (1) paragraphs 9 and 10, one Ramasami Pillai was held to be insane being a “gloomy and sickly person with a vacant look” and unable to answer “even the simple question about his name. On the evidence, the attempted distinction between a lunatic and a person of week intellect could nto be sustained in that case. The Supreme Court apparently based its finding of lunacy on the complete loss of reason and intellect.

(6) Persons of unsound mind, i.e. idiots and lunatics, though disqualified for civil purposes generally, were nto declared incompetant to marry under the ancident Hindu Law. But such marriages were reprehensible. The late Sir Gurudas Banerjee in his Tagore Law Lectures on Marriage and Stridhan, therefore, expressed the view that “an idito and a lunatic being, where the loss of reason is complete, incompetent to accept the gift of the bride which is a necessary part of the ceremony of marriage, it is nto easy to understand how their marriage in such cases can be regarded as marriage at all”. (Fifth Edition, page 41). In Mouji Lal v. Chandrabati Kumari (2), the Privy Council did nto consider the question whether unsoundness of mind could in any circumstances, invalidate a Hindu marriage. Acting, however, on the hypothesis that it might, they pointed out that the degree of unsoundness would always have to be considered and in the particular cases berore them the man whose marriage was in question was nto so insane that he could nto understand the ceremonies of the marriage and, therefore, that particular marriage was nto invalid. The observations of the Privy Council were followed and Gurudas Banerjee’s view cited above was approved by the Federal Court in R. N. Singh v. Bhagwati Saran Singh (3) paragraphs 94 and 153 to 155. The following observation of B. K. Mukherjee J. is particularly instructive : “THEREare undoubtedly various degrees of insanity and the fact that a man has been adjudicated a lunatic may mean and imply that he is nto competent to manage his own affairs, but it does nto necessarily show that he suffers from complete mental aberration. He may have sufficient amount of reason still left in him which would enable him to understand the ceremonies of marriage”.

(7) There is a presumption that the Legislature does nto intend to change the law unless a statute clearly says so. It would be fair, therefore, to conclude that the words “idiot” and “lunatic” in section 5(ii) of the Act were used to indicate the total loss of reason or the last degree of mental disorder which alone would incapacitate a person from marriage inasmuch as this was the state of Hindu Law in 1955 when the Act came on the statute book.

(8) The concept of nullity of marriage was unknown to Hindu Law before the amendment made by sections 11 and 12 read with section 5 of the Act. Section 19 of the Indian Divorce Act, 1869, however, already existed on the Indian statute book outside the Hindu Law. It was in pari materia to sections 11 and 12 read (9) In its turn section 19 of the Indian Divorce Act, 1869, derived the meaning of the word “idiot” from the English Common Law on which it was based. As shown by section 22 of the Matrimonial Causes Act, 1857, the’ Courts were to give relief of nullity of marriage on the same principles and rules on which the Ecclesiastical Court had done so before. Historically and prior to the Reformation, marriage in England was also regarded by the Church as a sacrament which could nto be dissolved by a decree of divorce avinculo mafrimonii. This doctrine of indissolubility came to be evaded in course of time by the evolution of decree annulling the marriage on the ground that due to the lack of certain essential conditions, the marriage itself could nto be validly performed. One such condition was the mental capacity of a party to the marriage. When a party was unable to consent to the marriage because of mental incapacity, there could be no marriage at all and the marriage which might have been gone through was void ipso jure. In Durham (5) , Sir James Hannen (President) said that the contract of marriage is a very simple one which does nto require a high degree of intelligence to comprehend.” In Marrod v. Harrod (6) a dumb and deaf lady of extremely dull intellect who could nto comprehend anything, could nto read or write, was never allowed to leave her home alone and Was unable to tell the value of money or how to give change, was still held to be capable of marriage. In Park v. Park (7) upheld in appeal in 1954 Probate Division 112, the marriage of a 78 year old man was held to be vaild though his mind had been found to be impaired after a stroke and hardening of the arteries and was incapable of full recovery, but was capable of understanding what marriage was.

(10) The definition of “an idiot” given in Stroud’s Judicial Dictionary, Third Edition, Volume 2, page 1357, based on old decisions is as follows :

“IDIOT”is he that is a focl natural from his birth, and knoweth nto how to account or number twenty pence, or cannto name his father or mother, nor of what age himself is, or such like easie and common matters”.

“IDIOTS”were defined in the Menial Deficiency Act, 1913 as “persons so defective in mind from birth or from an early age as to be unabie to guard themselves against common physical dangers”. Under the Marriage of Lunatics Act, 1811, a person who has been found to be of insane mind by inquisition was disqualified from marriage. But a person nto so found by inquisition was nto disqualified if at the time of the marriage he or she was capable of understanding the nature of the contract and the duties and responsibilities thereby created, and was free from the influence of insane delusions on the subject. (19, Halsbury’s Laws of England 780, para 1250, Rayden on Divorce, Tenth Edition 101 and Tolstoy on the law and Practice of Divorce, Fifth Edition 109).

in this case to consider whether idiocy or lunacy constituting incapacity to marry and leading to a decree of nullity is capable of being distinguished from “unsoundness of mind” which may lead to judicial separation under section 10(1)(e) of the Act or to divorce under section 13(1)(iii) of the Act inasmuch as a different expression “unsound mind” has been used therein and the remedies of judicial separation and divorce are also different from the remedy of nullity. Remedy of nullity of marriage is based on incapacity to marry while the true purpose of divorce or judicial separation is to protect and relieve a spouse from misery or malaise as the outcome of cruelty or hardship. Nor are we concerned here with the meaning of the words “incurably of unsound mind” as being a ground for divorce in section l(i) (d) of the Matrimonial Causes Act, 1950, dealt with in Whysall v. Whysall (9) Chapman v. Chapman and Robinson v. Robinson . The test adopted therein is whether a person could manage himself and his own affairs. A similar test would appear to have been adopted in section 38 of the Indian Lunacy Act, 1912. But the purpose of the Lunacy Act, 1912 as also of the English Mental Health Act, 1959, is the care and protction of a person of unsound mind. Unsoundness of mind is a general expression in which various degrees of mental derangement may be comprised. For the treatment of mental illness the legal definitions of idoicy or lunacy would nto be sufficient. Therefore, as observed in Taylor op cit, (page 433), in. section 4(2) of the Mental Health Act, 1959, a new concept of “severe subnormality” has been adopted to include different degrees of unsound mind, e.g. “idiots” “imbeciles” and the lower grades of the “feeble minded” while the concept of “subnormality” in section 4(3) thereof includes the majority of the “feeble minded”. This shows that for the medical purposes, the approach to the subject of unsoundness of mind is likely to be different from the approach for the purposes of law. Unsoundness of mind may become relevant even for the purposes of law in different contexts such as responsibility for cirminal act (section 84 of the Indian and Code based on the McNaghten Rules) entering into ordinary contracts (saction 12 of the Contract Act) and mangement of property (Lunancy Act). It would nto perhaps be possible to regard unsoundness of mind for all these purposes to be the same thing. Even in the Law of -Marriage, the Hindu Marriage Act, 1955, has used different expressions indicating mental abnormality as a ground for nullity due to incapacity to marry on the one hand and as a ground for judicial separation or divorce on the other hand. Two rules of statutory construction may be borne in mind in this connection. Firstly, expressions used in different statutes which are nto in pari materia do nto necessarily mean the same thing. Secondly, different expressions used in the same statute are nto ordinarily meant to convey the same meaning.

(24) As instances in which the above-mentioned rules of statutory construction do nto seem to have been taken into account, reference may be made to two recent decisions, one dealing with idiocy, namely, Ajitrai v. Bai Vasumati (12) and the other dealing with lunacy, namely, Anima Roy v. Probodh Mohan Roy It is nto necessary however to consider in the present case, whether a part of the reasoning in these two decisions is vulnerable due to this lacuna.

(25) As the evidence in the present case does nto indicate want of rational conduct on the part of the wife, she cannto be regarded as having been an idito at the time of the marriage. The petition for annulment of the marriage was, therefore, rightly dismissed by the learned lower Court. In view of the further consideration given to the question by me above, the appeal is also dismissed with costs.