The Coca Cola Company and its Mergers and Acquisitions

A project submitted for the partial fulfillment of the requirement for the
Degree of
B.A.LL.B (Hons.)

By
Harshit Singh
Semester 8, Section B
Enrollment No. A11911113183

Amity Law School

Block I-3, Sector-125, Amity Campus
Amity University, Noida
 DECLARATION

I declare that the assignment titled Coca Cola Company and its Mergers and Acquisitions is the
outcome of my own work conducted under the supervision of Mr. INDRANIL BANERJEE
Professor of Law at Amity Law School, Amity University. Noida U.P.

I further declare that to the best of my Knowledge the assignment does not contain any part of
any work, which has been submitted for the award of any degree either in this University or in
any other University/Deemed University without proper citation.

HARSHIT SINGH

Dated: 5th April, 2017

 ACKNOWLEDGMENT

This project is the outcome of the study by the author. Any material written by another person
that has been used in the paper has been thoroughly acknowledged. As my research has
concluded, there are a number of people I would like to thank for the successful attempt.

I thank the esteemed director of this institution, Dr. ADITYA TOMER for inculcating the concept
of preparing a project and allowing the researcher to present his/ her point of views in liberal
manner and encouraging the researcher by providing all the much needed support

I would also like to express my exceptional gratitude and acknowledgment to Mr. INDRANIL
BANERJEE who undertook the role of a supervisor and guide for the successful preparation of
this project and for supporting throughout the time of research and writing.

I would also like to extend my thanks and gratitude for the contribution of all those who helped
me in this work as individuals or otherwise. On a personal level I would like to extend my
appreciation to my family and friends who supported me to conclude this research paper.

HARSHIT SINGH

A11911113183

B.A. LLB (H)

 TABLE OF CASES

1. Darshan Gupta v. Radhika Gupta (2013) 9 SCC 1 (Civil Appeals Nos. 6332-33 of
2009
2. Badshah v. Sou. Urmila BadshahGodse
3. Anju Garg Vs. Vikas Garg
4. A. Jayachandra v Kaul
5. Ms. Jordan Diengdeh vs. S.S. Chopra AIR 1985 SC 935
6. Naveen Kohli vs Neelu Kohli
7. V. Bhagat v. D. Bhagat
8. Smt. Kakali Das vs Dr. Asish Kumar Das
9. K. Srinivas Rao Vs.D.A. Deepa
10. Sailesh and Ors. Vs. Varun Sreenivasan and Ors
11. Satish Sitole Vs. Smt. Ganga
 CONTENTS

DECLARATION

ACKNOWLEDGMENT

TABLE OF CASES

CHAPTER NO. 1

Introduction.

Hindu marriage.
Seven steps
Semblance of both

CHAPTER NO.2

Dissolution of Marriage

Divorce
 Judicial Separation
Theories of Divorce

CHAPTER NO. 3

Barbarism leading to nullity

Case of Naveen Kohli vs Neelu Kohli

Conclusion of case
Critical analysis of case

CHAPTER NO. 4

Divorce made easier

The Marriage Law (Amendment) Act 2013
Use of powers derived from Article 142 of the Constitution

CHAPTER NO. 5

Conclusion

BIBLIOGRAPHY
 Introduction:

Hindu marriage a Sacrament or Semblance with Contract

In Hindu philosophy, marriage also means vivaha which is the ceremony of carrying away
the bride to the grooms house. But, it has come long to mean the entire ceremony of wedlock. It
would mean that marriage is not merely a matter of social contract entered into for mutual
convenience, as is most often the case in the Western countries. It is opposite in nature, a
religious sacrament. Its purpose, is not to give mere physical pleasure to the individuals but to
ensure their spiritual growth. 1

Marriage among the Hindus is mandatory because the Vedas ordain that a Hindu should perform
his Dharma along with his wife. The Vedas consider marriage or vivaha as one of the important
Sarira Samskaras or sacraments sanctifying the body Hence, their was the Vedic injunction that
every Hindu should pass through the sacrament of marriage at the proper age.

1Puja Mondal, Hindu Marriage a

Sacrament,http://www.yourarticlelibrary.com/marriage/essay-on-hindu-marriage-a-
sacrament/4373/ Visited on October 07 2015.
A man is not considered perfect unless he is married a wife is the very source of the
Purusharthas, not only of Dharma, Artha and Kama but even of Moksha. Those that have wives
can fulfill their due obligations in this world (Kriyavantah), those that have wives, truly lead a
family life, and those that have wives can lead a full life. Equally, emphasis is also given on the
marriage of women. For example, Narada said that if a woman remains unmarried, she cannot
attain salvation. Hence, marriage is an important institution for the Hindus.2

According to Hinduism, marriage is a union between a male and a female with a commitment so
that they can pursue Dharma, Artha (possessions) and Kama (physical desires) together. It joins
two families. It is at once a gateway to earthly life of pleasure, progress, prosperity and joy as it
is also an altar of elevation to a level of spiritual experience. Society recognizes and controls it as
it results in the procreation and nurture of future generation and thereby influences the social and
cultural growth of society. 3

As marriage is said to be sacred, it is irrevocable, other parties to the marriage can't dissolve it at
will. Each is bound to the other until the death of either of them and the wife is supposed to be
bound to her husband even after his death. Concept of marriage, that it is, indissoluble, is a lofty
one because it means that the husband and wife after marriage age to adjust their tastes and
temper their ideas and interest, instead of breaking with each other when they find that these
differ.4

2Puja Mondal ,Concept of Marriage in Hinduism,

http://www.yourarticlelibrary.com/marriage/concept-of-marriage-in-hinduism-essay/4366/
Visited on October 07 2015

3Vivaha, http://hinduonline.co/HinduCulture/Vivaha.html

4Marriage in Hinduism, http://www.sociologyguide.com/indian-society/marriage-in-

hinduism.php
The aims of Hindu marriage according to K.M. Kapadia in his book is Marriage was desired not
so much for sex or for progeny as for obtaining a partner for the fulfillment of ones religious
duties.5 Fulfillment of dharma or religions duties: According to the Hindu scriptures marriage is a
basic of all religion activities. In the words of K.M Kapadia"marriage is primarily for the
fulfillment of duties; the basic aim of marriage was dharma".6

Procreation: In Hindu families the child is given a very important place. According to Riga
Veda, the husband accepts the palm of wife in order to get a high breed progeny. According to
manu, the chief aim of marriage is procreation. Mahabarat has also maintained the same view.

Sexual pleasure: The Hindu scriptures have compared the sexual pleasure with the relation of
divine bliss. According to vatsyanyan sexual pleasure is the chief in aim marriage.7

It is mandatory for a Hindu householder to perform the five great sacrifices in order to repay his
debts to the spirits,the Rishis, the Gods, the names and ones fellowmen. Since these can be
performed only in the company of a wife, marriage is considered a religious commitment.8

A Hindu marriage comprises several meaningful rituals. Each such marriage ritual has
varying degrees of significance. The most important of them all is the" Saptapadi " or the

5GhanshyamShah ,Caste and Democratic Politics in India,,PermanentBlack,Delhi, 1 st Edition,

Page No. 74

7 SUPRA

8Hindu Rituals, http://hinduonline.co/HinduReligion/AllAboutHinduism5.html

" Seven Steps " which the couple takes together after tying the Mangalsutra or Thali
(sacred thread). The manner in which these seven steps are taken differ. In some South
Indian marriages, these seven steps are taken towards the Southern direction with the
groom holding the little finger of the bride and then going round the sacred fire. In certain
other marriages, the groom holds the hand of the bride and leads her around the fire seven
times. Every step is taken invoking the Gods to shower their blessings on the couple.

The Seven Steps

With the first step , the couple invokes the Gods for plentitude of food.

With the second step , the couple prays to the Gods to give them both mental and
physical strength and a healthy life free from ailments.

The third step is for the fulfilment of spiritual obligation for the couple and for the
successful performance of their spiritual duties.

The fourth step is for the attainment of happiness in all walks of life.

The fifth step is to pray for the welfare of all living entities in theentire Universe.

The sixth step is for bountiful seasons all over the world.

The seventh step is taken invoking the prayer and sacrifice for universal peace.

On taking these seven steps together, the couple agrees to be companions forever and pray
that they never have any conflicts so as to break this companionship. They agree to lead a
harmonious life taking into consideration not only each other's likes and dislikes, but also
keeping in mind the good of the entire family.
Under the Hindu Law, a marriage is not complete on tying the Mangalsutra or Thali alone.
A couple are declared husband and wife only after the Saptapadi is complete. The ideals
behind the Saptapadi acquire more significance from the fact that the married couple pray
not only for their own welfare but also for the health and prosperity of all living beings and
the entire Universe.9

Hindu marriage is a permanent & indissoluble union, it is an eternal union, and it is a holy union.
It is evident that the first element has been destroyed by the act since divorce is recognised.
Second element was destroyed in 1856 by recognition of Widow Remarriage.
Probably to some extent third element is still retained. In most of the Hindu Marriages a sacred
or religious ceremony is still necessary. But the ceremonial aspect of the sacramental marriage is
of least importance.

From the above it may be concluded that the Hindu Marriage has not remained a sacramental
marriage and at the same time has not become a contract, though it has semblance of both.
It has semblance of a contract as consent is of some importance; it has semblance of a sacrament
as in most marriages a sacramental ceremony is necessary. 10

Although Indians are among the most married societies in the world and there are laws
governing marriage among Hindus, the number of divorce suits filed by Hindu couples is on the
rise. Instead of strengthening the traditional ideals, which for thousands of years have helped us
prevent marriage and family break-ups, we are misdirecting our energies towards promoting the
ideal of sense-enjoyment and self-interest. 11

9About seven steps, http://www.saptapadi.net/html/about-sevensteps.asp

10Is Hindu Marriage a Sacrament or a Contract or a semblance of both,

https://bharatchugh.wordpress.com/2012/03/29/is-hindu-marriage-a-sacrament-or-a-
contract-or-a-semblance-of-both/
Hindu civil code permits divorce on certain grounds. But the religion as such does not approve
divorce, because the concept is alien to Hinduism. According to the tenets of Hinduism, marriage
is a sacred relationship, a divine covenant and a sacrament. Marriage is meant for procreation
and continuation of family lineage, not for sexual pleasure. It is an obligatory duty, part of Hindu
dharma, which, once accepted, should be upheld by both the parties throughout their lives.
Marriage is therefore a sacred bond, which cannot be dissolved through divorce on some
personal or selfish grounds.

The Hindu Marriage Act 1955, applies not just to Hindus in the ordinary sense, but any person
who is a Buddhist, Jaina or Sikh by religion, domiciled in India and who is a "Muslim, Christian,
Parsi or Jew by religion."

The Law expressively prohibits polygamy by stipulating that a Hindu marriage can be
solemnized between two Hindus if neither party has a living spouse at the time of marriage and
that if they are not of unsound mind or not suffering from severe bouts of epilepsy.

It prohibits child marriages by stating that bridegroom should have "completed the age of twenty
one years and the bride the age of eighteen years at the time of the marriage." Certain types of
marriages areexplicitly prohibited in the Act, under the definition of prohibited marriages.

A marriage may be solemnized through customary rites and ceremonies or by taking seven steps
around the sacred fire or through a simple process of registration. Registration of marriage is
however not compulsory. According to the Act, both parties to marriage have the right to claim
their conjugal rights or seek judicial separation based on certain conditions. The Act also defines
when marriages are voidable, such as when there was no consent of the guardian, impotency,
pregnancy by another person before marriage etc.

11Gyan Rajhans, Ideals of Hindu Marriage,

http://hinduism.about.com/od/matrimonial1/a/idealsofmarriage.htm
Aggrieved party has to take one of the above grounds of divorce and will have to file the case in
the Court of appropriate jurisdiction. Party which files the case has to prove the case with
support of evidence and documents. On successfully proving the case, divorce will be granted
and divorce decree will be drawn up accordingly.12

According to the Hindu Marriage Act 1955 (India), divorce can be sought on certain grounds,
namely, adultery, cruelty, desertion for two years, religious conversion, mental abnormality,
venereal disease, leprosy, renunciation of the world, physical separation and absence of
communication for more than seven years and so on.

The stigma associated with divorce is the biggest deterrent. It not only effects the couple
involved, but their families and children also. Divorced people find it difficult to be accepted
among their friends and family and find new partners. The problem is more acute in case of
divorced women. The families involved on either side also suffer, especially if there are children
of marriageable age. Dowry and interference of in-laws are two important causes of divorce.
Many put up with the injustices, but a few take action. There are many couples, who live
together, though they have serious issues of compatibility, for fear of public humiliation and
social disapproval or the love of children. Some women turn to religion to cope with the
pressures of a difficult marriage or a difficult husband.

12Prem Prakash Gupta, How To Get A Divorce In Indi,

http://parting.hpage.co.in/divorce_91250198.html
 Chapter No.2

Dissolution of Marriage

Divorce is a big subject, bigger than getting married, tougher than getting marriage registered. It
is not an easy task, not by taking back Saptapadi or saying or asking to divorce. It is to be done
by legal protocol, proving in court that wedlock is not sustainable by either of the party or by
mutual consent. Civil courts then passes an order for divorce. As soon as divorce happens the
issue of partition starts, partition in property, money, custody of child etc.

Literally divorce amounts to legally nullifying the marriage. Earlier in Hindus concept of
Divorce was not present. It got introduced in The Hindu marriage act under section 13, which
provides for dissolution of marriage.

Divorce procedure starts by obtaining judicial separation from civil court under section 10 of The
Hindu marriage act, if both the partners do not wish to stay together and due to courts orders they
are not obligatory to stay together. Time period of judicial separation is 1 year, during this period
If spouses wish to join they can or after 1 year they have ground for divorce. In between can
cohabit together to try and workout the wedlock, If it does not happen then also after 1 year they
have grounds for divorce.
Grounds to apply for judicial separation are:

Desertion, Insanity, Venereal disease in a communicable form, Renunciation of world by

entering any religious order, Cruelty, Has not been heard of as being alive for seven years,
adultery. Virulent and incurable form of leprosy.

The Courts while dealing with the matters for judicial separation shall without the reason of
doubt bear in mind the specific issues and grounds raised for grant of relief claimed and be firm
on strict proofs to establish those grounds and shall not pass some relief or the other as a matter
of course. It is power of court to entertain petition for divorce, the Court has authority in respect
of the grounds and issue for divorce other than those mentioned in section 13 (1A) and also some
other specified grounds to grant limited relief of judicial separation instead of divorce
straightway13

Divorce is based on three theories:

Guilt/ Fault theory [Sec. 13{(1)(i),(i-a),(i-b)},{(2)(i)-(iv): If one party has omitted any
matrimonial offence, then this becomes grounds for divorce. For eg, adultery, cruelty,
desertion, converting to other religion. Guilt theorys name has changed to fault theory as
unsoundness of mind or epilepsy is as his part of guilt.

Part of the fault theory says that a person cannot take advantage of his/her own wrong.
For example, a person cannot commit adultery or cruelty and then file a petition for
divorce. Divorce can only be sought by the hurt or aggrieved party who has been at the
suffering end of the other party's unacceptable conduct14.

13 Judicial Separation and Divorce, http://www.vakilno1.com/legalviews/judicial-separation-divorce-

india.html visited October 08, 2015
 the Supreme Court in Darshan Gupta v. Radhika Gupta15, held that the petitioner must
approach court with clean hands. Grounds of divorce under S. 13(1) are based on
matrimonial offence or fault theory. It is only commission of matrimonial offence by one
spouse that entitles the other spouse to seek divorce. Hence, if petitioner himself/herself
is guilty or at fault, he/she would be disentitled to seek divorce.

16

In Badshah v. Sou. Urmila BadshahGodse17,The Court held that when a man marries a
lady second time by keeping the woman in the dark about thefirst marriage. Then
husband cannot take advantage of his own wrong by saying that such a second wife
cannot claim maintenance under Section 125 of the CrPC. The court said that while
dealing with the application wife or destitution hapless children or parents under the
provision in question, the court dealing with marginalized sectors of society, and
therefore it is not wedded to his wife -legally, it is a binding duty of the courts to advance
the cause of social justice. The court also found that in spite of these marriages are illegal
according to the law, they are not immoral "and therefore a woman dependent financially

14Rakesh Shukla, The 'fault theory' vs the 'breakdown theory' of divorce,

http://infochangeindia.org/women/judicial-interventions-and-women/the-fault-theory-vs-the-breakdown-theory-of-
divorce.html Vitisted on: October 09,2015.

15 (2013) 9 SCC 1 (Civil Appeals Nos. 6332-33 of 2009, decided on July 1, 2013).

16Diiferentthoeories of divorce, http://shodhganga.inflibnet.ac.in/bitstream/10603/39005/12/12_chapter

%204.pdf

17 Criminal Misc. Petition No.19530/2013, decided on October 18, 2013. Visited on October 09,2015.
 undeniable maintenance on this basis. Thus, it puts down that he/she will not be allowed
to benefit from his or her own wrong.18

Consent Theory Sec.13-B: Mutually both the partners consent that they dont want to live
together. It is not that easy as it seems to. Both the partners have to live separately for 1
year or more. Then they file a petition after 6 months and before 18 months that they
want divorce. Our legislation amended Hindu Marriage Act in 1976 and inserted a new
section as 13 B which provides Divorce by mutual consent of the parties.This is just like
correction of error made by the both parties to the marriage when they realize that they
cannot live together and their marriage has turned out to be bad bargain.19

Except for decree of divorce under fault ground, the decree for restitution of conjugal
rights, judicial separation and decree of divorce under consent theory, requires living
separately for one year. This period, as has been discussed earlier also, is a reasonable
period in which parties can realize their mistakes and make a second attempt to live
together. But if they are not able to resume their marriage, it is better to give the decree of
divorce as marriage in such cases completely breaks.20

In Anju Garg Vs. Vikas Garg21

18 IBID

19 Consent theory of Divorce, http://kanoonirai.com/consent-theory-of-divorce/ Visited on: October

09,2015.

20Irretrievable breakdown of marriage, http://www.legalservicesindia.com/article/article/irretrievable-

breakdown-of-marriage-676-1.html , visited on October 09, 2015.
Both the husband and wife were staying away since October 2012 and there was no relation
between the spouses. They were not cohabiting with each other, did not want to recon ciliate
and parties decided to mutually dissolve the marriage.

Irretrievable breakdown of Marriage Sec.13 (1-A): The marriage has broken to such an
extent that it cannot be paired back. But this not a mere ground for divorce it needs to be
supported with other grounds as well. After restitution of conjugal rights is not observed
then it adds to grounds of divorce under section 13(1A)(i) and 13(1A)(ii). The court
before advancing to the merits of the case must be satisfied by theevidences produced
that parties have been living apart for a continuous period of not less than three years
immediately after the presentation of the petition.22

Justice V.R Krishna Iyer had famously explained this concept:

Daily trivial differences get dissolved in the course of time and may be treated as the
teething trouble of early matrimonial adjustment. While the stream of life lived in
married mutuality may wash away small pebbles, what is to happen if intransigent
incompatibility of minds breaks up the flow of stream? In such a situation we have the
breakdown of marriage itself and the only course open for law is to recognize what is a
fact and accord a divorce.23

21

22 Amartya Bag, Divorce on the Grounds of Irretrievable Break Down of Marriage

http://blog.ipleaders.in/irretrievable-break-down-of-marriage-as-a-ground-for-divorce-in-india/ Visited
on October 09, 2015

23
Paras Diwan, Marriage and Divorce Law Reforms [ The Marriage Laws (Amendment) Act, 1976] (1977)
2 SCC (Jour) 1 Visited on October 09,2015
 In A. Jayachandra v Kaul24, the Supreme Court reviewed the case. And discussed
afterwards thus concluded: When respondents were priorities of her career in her
husband's freedom, it points to the accuracy of discord, diffusion and unity of marriage, it
can be inferred from the Court irretrievable breakdown of marriagebreakup . The court
found the marriage broken down irretrievably and granted divorce her husband. However,
it is very surprising, because a lot of the time, under similar circumstances, the courts,
instead of granting a decree of divorce has been ordered held sacred Hindu Marriage Act
is the foundation of the concept of restitution, restitution of conjugal rights.

Honble Supreme Court, in the case of Ms. Jordan Diengdeh vs. S.S.
Chopra 25 the law relating to judicial separation, divorce and nullity of marriage is far,
far from uniform. Surely the time has now come for a complete reform of the law of
marriage and make a uniform law applicable to all people irrespective of religion or
caste. It appears to be necessary to introduce irretrievable break down of marriage and
mutual consent as grounds of divorce in all cases. The case before us is an illustration of
a case where the parties are bound together by a marital tie which is better untied. There
is no point or purpose to be served by the continuance of a marriage which has so
completely and signally broken down. We suggest that the time has come for the
intervention of the legislature in these matters to provide for a uniform code of marriage
and divorce and to provide by law for a way out of the unhappy situations in which
couples like the present have find themselves in.

24

25
Ms. Jordan Diengdeh vs S.S. Chopra AIR 1985 SC 935 Visited on October 09, 2015.
The idea behind the breakdown of the marriage statement is based on the consent of irreparable,
because it acts as a valid marriage took place an important role. Due to agree to give priority in
the marriage, it follows, when one or both parties believe that the breakdown of the marriage,
they can apply for a divorce. When both parties agree that the marriage fails, they can use the
"mutual consent" for divorce. If only one party believes that the failure of marriage, it would be
advantageous to the party seeking a divorce on the grounds that the marriage broke up, even
though they do not want to end the relationship.

Restricting the ground of divorce to a particular offence or matrimonial disability causes injustice
in those cases where the situation is such that although none of the parties is at fault, or the fault
is of such a nature that the parties to the marriage do not wish to divulge it, yet there has arisen a
situation in which the marriage cannot be worked; that is, where the marriage has all external
appearances of marriage but none of the reality.26

The Irretrievable breakdown theory of divorce is the fourth and the most controversial theory in
legal jurisprudence based on the principle that marriage is a union of two persons based on love
affection and respect for each other. If any of these is hampered due to any of the reason (say
cruelty, desertion, adultery, insanity etc) and if the matrimonial relation between the spouses
reach to such an extent from where it becomes completely irreparable that is a point where
neither of the spouse can live peacefully with each other and acquire the benefits of a
matrimonial relations, than it is better to dissolve the marriage as now there is no point of
stretching such a dead relationship, which exist only in name and not in reality.

The breakdown of relationship is presumed de facto. The fact that parties to marriage are living
separately for reasonably longer period of time (say two or three years), with any reasonable

26
Himani Sharma and Chetan Bagdi, Irretrievable breakdown of maariages ,
http://www.legalserviceindia.com/articles/break_mar.htm visited October 08 2015
cause (like cruelty, adultery, desertion) or even without any reasonable cause (which shows the
unwillingness of the parties or even of one of the party to live together) and all there attempts to
reunite failed, it will be presumed by law that relationship is dead now.27

Chapter No.3

Barbarism leading to Nullity

In Case of Naveen Kohli vs Neelu Kohli 28

Naveen Kohli and Neelu Kohli were married in 1975 and had three children out of there
wedlock. Naveen was the owner of three factories. He filed case for his divorce in family court
of on grounds of mental, physical and financial abuse and torture by his wife Neelu. Petitioner
alleged that his wife was of quarrelsome nature, nasty, rude and alleged she abused his parents
also. That is why in 1994, he moved from ancestral home and to live in a rented house as
compelled by his wife Neelu Kohli. Even she had indulged in indecent behavior with another
man these allegations were made.

According to Naveen Kohli, Neelu had filed false criminal charges against him, fraud, forgery
and false criminal charges of causing injury by a weapon. She made her eldest son to file a false
complaint that he was beaten by his father. Criminal Case for cruelty, humiliation and
intimidation were filed against him and his mother. Moreover a complaint in Company Law
27
Shishir Shrivastava, Irretrievable Breakdown of Marriage: A Special Ground For Divorce,
http://www.legalservicesindia.com/article/article/irretrievable-breakdown-of-marriage-676-1.html Visited
on: October 09, 2015

28
Board was filed that Naveen Kohli is criminal, immoral, alcoholic husband and was having illicit
affairs with many women. She also condemned his position in the company of employee not an
owner. In 1999 share in all the property and assets was asked by Neelu Kohli through a legal
notice.

Neelu kohli denied that she was not quarrelsome and rigid wife. She did not accept allegations of
mentally, physically or financially torturing her husband, and denied allegations of unethical
behaviour. Neelu alleged that her husband was living with another woman immorally.

The Court observed that number of cases were filed against Naveen and the police was found to
be irritating him. In fact, Naveen was the owner of the factories whereas his wife advertised in
newspapers that he was an employee in the factory. The court observed that he was being
mentally, physically and financially troubled his wife. The husband and wife both had filed
charges against each others character, morally they had assassin each other, but were failed to
prove the allegations they made. The court said that although many efforts had been made
towards an amicable settlement but there was no relation left between the parties and, therefore,
no chance of reconnecting the chain of marital life between the parties.

The family court nullified the marriage and directed the husband to deposit Rs 25 lakh towards
the permanent maintaince of wife. Husband deposited the money within two days of the order.
Wife then made an appeal in Allahabad High Court against the divorce which said family court at
Kanpur had hot taken the evidences and proofs before passing an order. Wife even alleged that
the husband was living with another woman. Appeal was in favour of the wife and husbands
decree for divorce was dismissed. The husband appealed and the case reached the Supreme
Court. The decision was made in March and Neelu Kohli, 2006 (3) 252 Naveen Kohli vs Neelu
Kohli as reported.

The Law Commission in its 71st report in 1978, dealt with the concept of divorce, irretrievable
breakdown of marriage. First in 1929 in New Zealand, irretrievable breakdown of the marriage
was ground for divorce, determination was that three years or more separation agreement was
reason for filing a petition in the court for divorce. The judge said that when marital relations
have, in fact, ceased to exist, it is not in the interest of the parties or in the interest of the public
to bound a man and a woman as husband and wife to keep the law. That in the event of such a
separation, the main reason of the marriage were exhausted and the further continuation ", not
only useless, but mischievous." This formulation has become a classic expression of the
decomposition principle marriage law.

The Law Commission noted that restricting divorce results handicap matrimonial matters in an
injustice in cases where neither party is at fault, or if the error is such that the parties do not want
it and yet to announce the marriage cannot elaborated. It refers to a situation where the
emotional and other ties which the essence of marriage have disappeared and only a fade
continues. The committee concluded that if a marriage has ceased to exist, both in substance and
in reality, divorce should be seen as a solution and an escape from a difficult situation. Such
separation should be concerned with bringing the parties and the children to come with the new
situation and to develop a sound basis for the regulation of relations in the changed
circumstances. Not to go into the "mistakes" of the past.

The court refers to the acceptance of the replacement of degradation rather than matrimonial
offenses as a basis for separation by the General Assembly of the Church of Scotland in 1969.
The judgment quotes with approval from the principles that "Matrimonial crimes are often the
result rather than the cause of the deterioration of the marriage. An adversarial principle of
divorce tends to encourage marital crimes, increase bitterness and widening the gap that already
exists. "

Observing that divorce law is based primarily on the debt inadequate to deal with a broken
marriage, the verdict states that when a marriage disrupted it is unrealistic of the law would fail
to notice this fact. According to the court, a long period of continuous separation can be taken to
suggest that the marriage is beyond repair and that marriage has become "a fiction, though
supported by a legal tie".

The judgment means that the refusal to break the band in such a case does not serve the sanctity
of marriage; in fact, it shows little respect for the feelings and emotions of the parties.
The court finds that the public interest requirements, that married status should, insofar as
possible, for as long as possible and be maintained as much as possible. However, when a
marriage has fared no hope that it will be salvaged, public interest lies in the recognition of the
fact.

Rejection of the view that irreconcilable differences as the reason for divorce would create more
problems than it would solve, the court considers that situations causing misery should not be
allowed to continue indefinitely, and that the law has a responsibility to adequately to respond to
the needs of society.

Coming to the conclusion of the case:

Observing that the marriage was destroyed with no hope of rescue, the court held that the public
interest and the interests of all involved lay in the recognition in the law, of this fact. That though
the woman was not pleasant for a divorce by mutual consent and seemed to have decided to live
in agony only to make the life of her husband a miserable hell, public interest lay in the
dissolution of the marriage bond. Keeping a sham of a marriage to life in the law held more
conducive to immorality and may be more detrimental to the public interest than to be the
dissolution of the marriage. It being not grant a divorce under such circumstances was held
disastrous for the parties. The granting of the divorce would give them the opportunity, both
psychologically and emotionally, to settle down after a while and start a new chapter in life. The
Supreme Court directed that marriage be resolved between Naveen and Neelu Kohli, subject to
the spouse who Rs 25 lakh to the wife as a permanent maintenance.

Furthermore, it believes, taking into account the needs of society, recommends that the
government seriously consider an amendment to the Hindu Marriage Act, 1955, to include
irretrievable breakdown of marriage as a ground for granting the divorce.

Critical Analysis of the case:

From the analysis and evaluation of the entire evidence, it is clear that the respondent has
resolved to live in agony only to make life a miserable hell for the appellant as well. This type of
adamant and callous attitude, in the context of the facts of this case, leaves no manner of doubt
that the respondent is bent upon treating the appellant with mental cruelty. It is abundantly clear
that the marriage between the parties had broken down irretrievably and there is no chance of
their coming together, or living together again.

To constitute cruelty, the conduct complained of should be "grave and weighty" so as to come
to the conclusion that the petitioner spouse cannot be reasonably expected to live with the
other spouse. It must be something more serious than "ordinary wear and tear of married life".
The conduct taking into consideration the circumstances and background has to be examined
to reach the conclusion whether the conduct complained of amounts to cruelty in the
matrimonial law. Conduct has to be considered, as noted above, in the background of several
factors such as social status of parties, their education, physical and mental conditions,
customs and traditions. It is difficult to lay down a precise definition or to give exhaustive
description of the circumstances, which would constitute cruelty. It must be of the type as to
satisfy the conscience of the Court that the relationship between the parties had deteriorated to
such extent due to the conduct of the other spouse that it would be impossible for them to live
together without mental agony, torture or distress, to entitle the complaining spouse to secure
divorce. Physical violence is not absolutely essential to constitute cruelty and a consistent
course of conduct inflicting immeasurable mental agony and torture may well constitute
cruelty within the meaning of Section 10 of the Act. Mental cruelty may consist of verbal
abuses and insults by using filthy and abusive language leading to constant disturbance of
mental peace of the other party.

The word 'cruelty' has to be understood in the ordinary sense of the term in matrimonial
affairs. If the intention to harm, harass or hurt could be inferred by the nature of the conduct or
brutal act complained of, cruelty could be easily established. But the absence of intention
should not make any difference in the case. There may be instances of cruelty by unintentional
but inexcusable conduct of any party.
"Cruelty", therefore, postulates a treatment of the petitioner with such cruelty as to cause a
reasonable apprehension in his or her mind that it would be harmful or injurious for the
petitioner to live with the other party. Cruelty, however, has to be distinguished from the
ordinary wear and tear of family life. It cannot be decided on the basis of the sensitivity of the
petitioner and has to be adjudged on the basis of the course of conduct which would, in
general, be dangerous for a spouse to live with the other.

The cruelty alleged may largely depend upon the type of life the parties are accustomed to or
their economic and social conditions and their culture and human values to which they attach
importance. Each case has to be decided on its own merits.29

Earlier the HMA did not recognise Irretrievable breakdown as grounds to obtain divorce. And
suppose if one of the parties to a marriage wants divorce on the ground that the marriage has
broken down irretrievably. To solve this problem Law Commission of India had recommended
that irretrievable breakdown of marriage should be made a ground for divorce by legislature.

Earlier In V. Bhagat v. D. Bhagat30, (this Court while allowing the marriage to dissolve on
ground of mental cruelty and in view of the irretrievable breakdown of marriage and the peculiar
circumstances of the case, held that the allegations of adultery against the wife were not proved
thereby vindicating her honour and character. This Court while exploring the other alternative
observed that the divorce petition has been pending for more than 8 years and a good part of the
lives of both the parties has been consumed in this litigation and yet, the end is not in sight and
that the allegations made against each other in the petition and the counter by the parties will go
to show that living together is out of question and rapprochement is not in the realm of
possibility.31

29
PK Das, Protection of women from domestic violence, 4 th edition, page no 312.

30
V. Bhagat vs D. Bhagat (1994) SCC (1) 337
In Smt. Kakali Das vs Dr. Asish Kumar Das 32

Wife has every right to visit her parents house and she is not required to take permission each
and every time so long as such visit to her maternal house does not cause an unbearable
inconvenience or does not amount to obduracy, husband cannot tend to believe such visits as acts
of cruelty. 33

Chapter No. 4

Divorce made easier

31
Irretrievable Breakdown of Marriage , http://www.legalserviceindia.com/issues/topic1421-naveen-kohli-
vs-neelu-kohli-situations-causing-misery-should-not-be-allowed-to-continue-indefinitely.html

32
K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226

33
S K Mukherjee, Frequent visit by wife to her parents house does not amount to cruelty to
husband,http://www.lawweb.in/2012/04/frequent-visit-by-wife-to-her-parents.html
We need not carry on an old divorce law which demands the men and women must be found
innocent or guilty. It is more important to get rid of the public washing of dirty linen which takes
place in long drawn out cruelty cases or in cases based on fault. If divorce is to go along the
ground of marriage breakdown, such an unhappy spectacle will be avoided.

The family is becoming more democratic and more egalitarian. Both the husband and wife share
not only the family house, in some cases they also share the earning of each other. Because of
rising rate of female activity, the family is more of a coalition. If this tie up cannot be worked the
legal sanction for it must be withdrawn.

Groups opposing the Marriage Laws (Amendment) Bill contend that it will cause an increase in
illegitimate and live-in relations and thereby a fall of the institution of marriage and family
values. They fear crime rate and undue litigation will increase.In this background, the
government is examining the aforesaid implications alleged to be involved in the proposal to
amend the marriage laws,

Under the current law, divorce is granted if a couple jointly files an application by mutual
consent. In case the divorce is contested, then the husband or the wife has to prove certain
grounds under which a marriage can be dissolved. These include adultery, cruelty, insanity,
desertion or medical reasons such as communicable disease. The Amendment Bill essentially
sought to remove this lacuna by allowing either the husband or the wife to contend that there has
been an irretrievable breakdown in the marriage.

Under the law, any one party can file for divorce on this ground after a three year period of
separation. The wife also has the right to contest a divorce if she can prove she will be in grave
financial hardship. The first proposals for amendments to the Hindu Marriage Act came from the
Law Commission in 1978. Since then the Supreme Court has on a number of occasions
recommended the inclusion of irretrievable breakdown of marriage as a ground for divorce.34

34
Jayant sriram, Bill to make divorce easier may be dropped,
http://www.thehindu.com/news/national/bill-to-make-divorce-easier-may-be-
dropped/article6910089.ece
In K. Srinivas Rao Vs.D.A. Deepa35

In this case wide made unfounded indecent defamatory allegations against the spouse or his or
her relatives in the pleadings by filing of complaints or issuing notices or news items which
may have had adverse impact on the business prospect or the job of the spouse and filing
repeated false complaints and cases in the Court against the husband would in way of a case,
will amount to cause mental cruelty to husband.

The High Court wrongly held that as the appellant-husband and the respondent-wife did not
stay together, in no way parties are causing cruelty with each other. It is not necessary to stay
together under the same roof, which is not a pre-condition for mental cruelty. Mental cruelty
can even be caused without staying under the same roof. In a given case, while staying apart, 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. This is what has happened in
this case.

In Shilpa Sailesh and Ors. Vs. Varun Sreenivasan and Ors.

The court ordered the parties to settle the dispute outside the court amicably. Parties agreed to
do so and filed an application for terms and condition of settlement. The parties agreed to
dissolve the marriage mutually by seeking an appropriate order from court under Article 142

35
K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226
of The Indian Constitution. The husband was residing in Pune and was a businessman, wife
lived in Muscat in connection of her job. She worked as director in her fathers company.

It also appeared to the court that marriage has irretrievably broken down and there can be no
reconciliation. So court passed a decree for dissolution of marri

In Satish Sitole Vs. Smt. Ganga36

The high court found that the respondent had not treated the appellant with cruelty but, on the
other hand was compelling her husband to leave the matrimonial home on account of the
conduct of the appellant, a different approach was taken on behalf of the appellant at the time
of hearing of the appeal. It was sought to be urged that even if the appellant had been unable to
prove his case of cruelty and desertion as grounds for seeking dissolution of the marriage,
having regard to the irretrievable breakdown of the marriage, technicalities should not stand in
the way of this Court granting relief to the appellant in exercise of its power under Article 142
of the Constitution.Out of 16 years of marriage, the parties have lived separately for 14 years,
most of which has been spent in acrimonious allegations against each other in the litigation
embarked upon by both the parties. There was no possibility of retrieval of the marriage and
appropriate orders should be passed to end the agony of both the parties.

36
 Chapter No. 5

Conclusion

When the bill was being proposed which had recommended provision of Irretrievable
breakdown people felt it would speed up the process of divorce but it became an easy way to
get divorce. Activists feared that women will now use it as weapon and can claim in property
from their ex husbands or their families. It was feared that it will be misused by women.
Whereas women activists said that women also plays an equal part in married life so why she
they be left dry hands after divorce. 37

Under article 142 of The Constitution, The Supreme court has the authority to pass any order
to provide complete justice, In several cases court have granted the divorce decree without six
months to one year judicial separation. Couples wanted the waiting period to be cut short since
there was irretrievable breakdown of marriage, Justices Gogoi and Ramana wondered if they
should exercise such power when the Act provides otherwise. They sought the views of
Attorney General Mukul Rohatgi who said the legislature was not contemplating irretrievable
breakdown of marriage as a ground for divorce.38

In Nagpurs family court:

It's the matter of record that the parties are staying separate since 13-14 years. However, only
long separation of parties is not a ground to dissolve their marriage. Irretrievable breakdown of
marriage is not a ground under Section 13 of Hindu Marriage Act to dissolve the
marriage," judgeSubhash Kafre held.

Interestingly, the husband, who had made second attempt to get divorce, candidly admitted to
having an extra marital affair with another women and even birth of a son from their relationship
in August 2013.

"The husband has not made serious attempts to resume cohabitation with wife. It has come on
record that he has a son from another woman. In such circumstances, it's safe to hold that the
husband himself created circumstances so that wife was constrained to live separate. It can't be

37
Aarefa Johari, Why a law that could help Indians divorce more quickly is stuck,
http://scroll.in/article/723078/irretrievable-breakdown-why-a-law-that-could-help-end-bad-
marriages-more-quickly-is-stuck

38
Utkarsh Anand, Supreme Court asks own: Are we being flexible with law in granting divorce?,
http://indianexpress.com/article/india/india-others/supreme-court-asks-own-are-we-being-flexible-with-
law-in-granting-divorce/
accepted that she deserted him with an intention to bring cohabitation to an end permanently,"
the judge observed.39

On 19th November, 2014, the Division Bench comprising of Justice Vikramjit Sen and Justice
P.C. Pant said, "We unequivocally find that the respondent-wife had filed a false criminal
complaint, and even one such complaint is sufficient to constitute matrimonial cruelty. We
accordingly dissolve the marriage of the parties."

The wife had left her matrimonial home on June 30, 1995 and the husband filed a divorce suit
on July 14, 1995 on the ground of cruelty as well as irretrievable breakdown of marriage. The
wife retaliated by filing a criminal complaint against her husband and seven of his family
members under various provisions of IPC and Dowry Prohibition Act. The husband and his
family members were arrested and jailed.

The criminal complaint filed by the wife charged the husband and his seven family members
under Section 307 read with Sections 34, 148A, 384, 324 of the IPC, and Sections 4 and 6 of
the Dowry Prohibition Act, 1961. The wife also filed a petition under Section 9 of the Hindu
Marriage Act, 1955 for restitution of conjugal rights. As a result, the husband and his family
members were arrested and incarcerated.

Meanwhile, the Family Court at Hyderabad, by its Judgment dated 30th December, 1999,
granted a divorce to the Appellant on the ground of cruelty as also irretrievable breakdown of
marriage. While doing so, it also rejected the Respondent's petition under Section 9 of the
Hindu Marriage Act, 1955.

However, the wife appealed successfully against this judgment in the High Court, in 2005. The
39
Vaibhav Ganjapure , Long separation no reason for divorce: Family Court
http://timesofindia.indiatimes.com/city/nagpur/Long-separation-no-reason-for-divorce-Family-
Court/articleshow/48840212.cms
order of the High Court then came for consideration in front of the Hon'ble Supreme Court of
India.

The Apex Court of India started by saying that the principle of 'irretrievable breakdown of
marriage' had not yet found statutory acceptance in India in spite of the Law Commission's
recommendations in its 1978 and 2009 reports. The Court also stated that the Marriage Laws
(Amendment) Bill, 2013 that seeks to establish 'irretrievable breakdown of marriage' as a
ground for getting divorce, has the assent of only the Rajya Sabha for now, and that including
this principle in Section 13 of Hindu Marriage Act, 1955 may not be expedient, keeping in
mind the oppression of women in the country.

As a result, the Court said that the only question in front of it was whether the filing of a false
criminal complaint sufficiently proved matrimonial cruelty as would entitle the injured party to
claim dissolution of marriage.

The Court concluded that the criminal complaint filed by the wife was indeed false and that a
false criminal complaint was enough to constitute matrimonial cruelty. Based on this, the
Hon'ble Supreme Court of India dissolved the marriage under Section 13(1)(ia) of the Hindu
Marriage Act, 1955.

The only consideration to be kept in mind in subsequent cases is that the authenticity of the
complaint has to be examined thoroughly and only when it is concluded that the complaint is
false, the Court should construe it to be matrimonial cruelty. Nonetheless, this judgment has
established a new ground for dissolution of marriage and has put a judicial checkpoint on the
increasing number of false domestic complaints.40

40

Tarang Aggarwal, False criminal complaint A new ground for Dissolution of Marriage
http://www.legalera.in/legal-articles/item/15953-false-criminal-complaint-a-new-ground-for-dissolution-
of- marriage.html
 Bibliography

Books:

B.M. Gandhi, Hindu Laws, Eastern Book Company, Lucknow, 3rd Edition
Dr. Paras Diwan, Family Law, Allahabad Law Agency, Faridabad, 9th Edition
 Ghanshyam Shah ,Caste and Democratic Politics in India,,PermanentBlack, Delhi, 1st
Edition
PK Das, Protection of women from domestic violence, Delhi, 4th edition

Websites:

http://scroll.in/article/723078/irretrievable-breakdown-why-a-law-that-could-help-end-
bad-marriages-more-quickly-is-stuck
http://www.thehindu.com/news/national/bill-to-make-divorce-easier-may-be-
dropped/article6910089.ece
http://www.legalserviceindia.com/issues/topic1421-naveen-kohli-vs-neelu-kohli-
situations-causing-misery-should-not-be-allowed-to-continue-indefinitely.html
http://www.lawweb.in/2012/04/frequent-visit-by-wife-to-her-parents.html
http://blog.ipleaders.in/irretrievable-break-down-of-marriage-as-a-ground-for-divorce-in-
india/
http://kanoonirai.com/consent-theory-of-divorce/
http://infochangeindia.org/women/judicial-interventions-and-women/the-fault-theory-vs-
the-breakdown-theory-of-divorce.html
http://shodhganga.inflibnet.ac.in/bitstream/10603/39005/12/12_chapter%204.pdf