UNCODIFIED HINDU LAW

Introduction

According to Hindu mythology Marriage is a sacrament. An indissoluble union to be continued even

in the next world. It can be said as “ Janma janmala

Bhandham” A man cannot be said to have a material

existence until he took a wife Marriage was meant for doing good deeds

and for attainment of ‘Moksha’

Characteristic features of Hindu Marriage Under uncodified Law

Under the old Hindu Law (1) Identity of caste between the

parties (2) parties must be beyond the

prohibited degrees i.e., they should not be of the same

gotra or pravara or sapinda of each other

(3) proper performances of marital ceremonies

Contrinuation

1. Ancient Hindu Scriptures prohibited Pratiloma marriage( a marriage

between a girl of higher caste and boy of lower caste

But Anuloma marriage ( males of higher caste and females of lower caste) was permitted

Identity of caste between the parties became one

of the essential conditions or marriage

Purpose of Marriage

(2)Parties to be beyond prohibited degrees Dharmasutras declared that a man should not

marry a wife belonging to the same GOTRA or Pravara

Gotra : Senior sage Pravara : descendant sage up to 3

generations Ex: Kusika vasista viswamitra Marichi

Continuation

Similarly no one could marry a girl who comes within his sapinda relationship

3. Performance of religious ceremonies

Betrothal or tilak ceremony recitation of holy texts before the

holy fire taking seven steps round the sacred

fire.’ saptapadi

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In a Nutshell Hindu marriage was a holy samskar ,it

could be performed in one of the eight forms recognised by law

Solemnization would be according to Shastric or customary rites

One could marry at any age and a man could marry any number of women

Inter-religious and inter- caste marriages were prohibited

continuation

Marrying within one’s own gotra or pravara was not allowed

Husband and wife would live together, the latter would submit to the wishes of the former, and the former would maintain the latter

Marriage was indissoluble, divorce was not permitted

Death did not dissolve a marriage. Hence a widow could not remarry

Forms of Hindu Marriage

Approved forms (a ) Brahma Gift of a daughter clothed only

with a single robe to a man learned in Vedas whom her father invites respectfully

chief character Parents do not receive consideration for

giving the girl

Continuation

(b) Daiva

Damsel is given to a person who operates as a priest in a sacrifice performed by the father, in lieu of fee or dakshina due to the priest

(c) Arsha

Bridegroom present a cow and a bull ;

or 2 cows and 2 bulls

to the bride’s father which is accepted for religious purposes only

(d) Prajapatya

It does not materially differ from ‘Brahma” with a condition “you to be partners for secular and religious duties

Unapproved forms of marriage(a) Asura Bridegroom having given as much wealth as he

can afford , to the father and paternal kinsmen and damsel herself takes her voluntarily as his wife

Striking feature receipt of pecuniary benefit by the bride’s

parents amounts to a virtual sale(b) Gandharva Union of man and woman by mutual consent

by exchange of garlands or by rings before the ceremony of homa

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(c) Rakshasa Forcible abduction of the bride from

her paternal home Ex: Enticing Rukmini by Lord Krishna(d) Paishacha marriage of a girl by a man , who had committed the crime of

ravishing her either when asleep; or when made drunk by administering

intoxicating during or when in the state of mental disorder

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(3) Performance of marriage a. Betrothel b. formalities recital of holy texts before the sacred fire c Sapthapadhi (4) Hindu Marriage was a holy samskara, It could be

solemnized in one of the eight forms recognised (5) One could marry at any age there being no lowest age

of marriage and a man could marry any number of women

(6) Marriage was indissoluble, divorce was not permitted (7) Death did dissolve a marriage therefore a widow could

not remarry

Hindu Marriage Act 1955

Act,1955 brought important and dynamic changes in the Hindu Matrimonial concept

It is a landmark in the history of social legislation i.e., Changes of far reaching consequence,

character, which have undermined the ‘Sacramental’ character of marriage and rendered it ‘Contractual in nature to a great extent

Introduction of fault theory a basis for obtaining a matrimonial relief like Judicial separation nullity of marriage and Divorce

Continuation

Consent theory Introduced by Marriage Laws (Amendment) Act 1976

Parties are free to effect dissolution of marriage in case the marriage has failed between them

The Act has permitted them to sever their relations by mutual consent

continuation

Breakdown theory U/ sec.13( 1 A) (a) If the decree of restitution of conjugal

rights has not been complied with for 1 year or more

(b) if the cohabitation has not been resumed for a period of 1 year or more after the passing of the decree for judicial separation

Divorce can be obtained by either party The Act has permitted divorce to the

guilty as well as to the innocent

Continuation

A Hindu marriage is now not so much concerned with religion. It is more a result of mutual consent

It has introduced monogamy . Sec.5 it has been stated that a marriage becomes null and void, if either party has a spouse living at the time of marriage

Bigamy has not only been prohibited but has been made an offence punishable under IPC

permitted inter-caste marriages. Giving retrospective effect under Sec.29

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Marriage between the persons of same gotra has been legalised

Minimum age of marriage for the bride groom has been fixed as 21 years and for bride 18 years

Introduction of matrimonial reliefs Restitution of conjugal rites, judicial separation, Nullity of marriage, divorce Registration of marriage No distinction between the marriage of a

maiden and marriage of a widow

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The Act has allowed the right of claiming alimony pendente lite and also permanent maintenance by either of the spouse Sec.23

Sec.24 Maintenance pendente lite and for legal expenses

Sec.25 Permanent alimony and maintenance Sec.29 for custody, maintenance and

education of minor children during pendente lite

legitimacy to the children born of void and voidable marriages

Changes introduced by virtue of Marriage Laws (Amendment) Act,1976

1. Under Sec13-B Divorce by mutual consent Due to the growing influence of break-

down theory of divorce. This provision is retrospective in operation

2. Divorce on the ground of adultery made easy

Formerly, divorce was allowed only, when it could be proved that the other party was living in adultery

now a single instance of adultery on the part of the other is sufficient to seek divorce

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3. Unsound-mind ,Incurable leprosy or venereal disease

For a divorce on the above ground, formerly the party seeking divorce could not file a petition until 3 years had elapsed . Now the party need not wait for 3 years

4. Sec.21-B has been introduced to expedite the matrimonial proceedings. This section provides continuance of the trial(day to day), until conclusion of the case

continuation

Child Marriage Restraint (Amendment) Act 1978 has changed existing provisions of Marriage with regard to age of parties . The Act Provides 21 years for the bride groom and 18 years of age for the bride

Effect: Deletion of Sec.6 of the Act which deals with guardian in marriage

Important Definitions of H.M.Act 1955

Hindu Any person who is Hindu by religion

irrespective of or regardless of its forms or developments, including—

(1) (a) a Virashaiva (b) a Lingayat (c) a follower of the Brahmo ,Prarthana

or Arya Samaj Any person who is either – (II) (a) a Buddhist by religion; or (b) a Jain by religion ; or (c) a Sikh by religion

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Any other person domiciled in the territories to which this Act extends who is not –

III (A) a Muslim by religion, or (b) a Christian by religion, or (c) a Parsi by religion, or (d) a Jew by religion

The following persons are Hindus , Buddhists , Jains ,or Sikhs by religion

(a) any child legitimate or illegitimate, both of whose parents belong to any of the above religions

(b) any child ,legitimate or illegitimate , both of whose parents are Hindus, Buddhists, Jains, or sikhs by religion

(c) any child legitimate or illegitimate whose parents are Hindus, Buddhists, Jains, or Sikhs by religion and whose brought up as a member of that group or family to which such parent belongs

(d) Convert and re- convert

Conditions For a valid H.M. Act 1955

There are 6 conditions:-Originally Hindu Marriage Act 1955 provided 6 conditions. But

the Child Marriage Restraint Act 1978 omitted sixth condition relating to guardianship

Sec. 5(1) provides the rule of monogamy and prohibits polygamy. A Hindu can have only one marriage subsisting at a time

Neither party has a spouse living In Sarala Mudgal Vs. Union of India SCC 1995 Vol..2 page.635 Husband converted himself into a Muslim by adopting Islam Then married another wife Question was whether by conversion the first

marriage is annulled or it becomes void and he commits an offence of bigamy

Court said that the first marriage subsists and the husband commits an offence

Continuation

Appeal was filed by the husband this appeal was disposed of along the Lily Thomas by the S.C

In Lily Thomas Vs. Union of India SCC 2000, Vol.2, Page 224 The same question came before the court. S.C. Observed; that the institution of marriage under every

personal law is a sacred institution. Under the Hindu Law, marriage is a sacrament. Both these have to be preserved. Therefore religion is not a commodity to be exploited, it is a matter of faith

Continuation

when a non-muslim married according to religious rites stipulating monogamy, renounces his religion, converts to Islam and solemnizes a second marriage, according to Islamic rites, without divorcing his first wife, the second marriage is void. Here a person feigns ( make believe with intent to deceive) to have adopted another religion, just for some worldly gain or benefit, and this is a religious bigotry

Conversion dose not automatically dissolve the first marriage, Since a bigamous marriage is an offence under Sec. 17 of H.M.Act readwith Sec.494 of I.P.C The court affirmed in Sarala Mudgul case and dismissed the appeal

Continuation

2.Soundness of mind (Sec.5 (2) (a) at the time of marriage neither party is

incapable of giving a valid consent to it inconsequence of unsoundmind

(b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or such an extent as to be unfit for marriage and for procreation; or

(c) has been subject to recurrent attacks of insanity

CONTINUATION

Sec.12 (1) (b) renders the marriage voidable, at the instance of the aggrieved

3. Age of Marriage . Sec.5(3)This section prescribes the age of the

bride 15 years and the bridegoom 18 years. This was amended by the Child Marriage Restraint (Amendment) Act

1978 as 18 and 21 respectively the breach of this provision did not affect

the validity of marriage but rendered it as an offence

Continuation

the guilty party to such marriage or the parent or guardian concerned is responsible for getting the marriage solemnized, or negligently fails to prevent it from being solemnized, shall be liable for simple imprisonment up to 15 days or a fine of Rs.1000 or both under Sec.18

Changed position if the condition specified in Cl.(iii) of Sec.5, with rigorous imprisonment, which may extend to

two years or with fine , which may extend to one lakh or both

continuation

In Pinniti Venkatarama Vs. State AIR 1977, A.P.43 the A.P High court laid down that any marriage

solemnized in contravention of Cl.(iii) of Sec.5 is neither void nor voidable

the only consequence being that the persons concerned are liable for punishment under Sec.18. If in any such marriage, where a bride had been married before completion of her 15th year, on attaining that age ,repudiate that marriage and entitled to a decree of divorce Under Sec.18 (2) (iv) of the Act, which was inserted by Marriage Laws (Amendment) Act,1976

Continuation

The option of getting divorce would be available till the completion of her 18th year

4.Prohibited degree of relationship Sec.5(4) Two persons would be regarded to be within prohibited degrees

(sec.3(g)) (a) If one is a lineal ascendant to the other; or (b) if one was the wife or the husband of a lineal ascendant or

descendant of the other © If one was the wife of the brother or of the father’s or mother’s brother or of the grand father’s or grand mother’s brother of the other (d) if two are brother and sister , uncle and neice, aunt and

nephew or children of brother and sister

Continuation

The relationship would also include (i) Half blood, Uterine blood and full blood (ii) illegitimate as well as legitimate (iii) Blood as well as by adoption Exception That a marriage of persons though related

within the prohibited degree shall be permissible, if the custom or usage governing both the parties to the marriage, permits

Ex: a marriage with sister’s daughter Mother’s brother’s daughter

Continuation

Examples of prohibited degrees For Men (i) Mother (ii) former wife of father or grand father

howsoever high (iii) Former wife of brother (iv) Sister (v) Either parent’s sister (vi) Daughter of a brother or sister

Continuation

For women Father Brother of former husband Nephew of former husband Brother Either of parent’s brother Son of a brother or sister Son of either parent’s brother Son of either parent’s sister

Continuation

High Court in Smt. Shakuntala Devi Vs. Amar Nath

AIR 1962 P & H.22 the conditions of a valid marriage under

Sec.5(iv) stands qualified by custom. .i.e., in the event of custom being established, the marriage though prohibited relationship ,would constitute a legal and valid

Ceremonies of Marriage (Sec.7) Old Law Ceremonies and their significance(1) Ganapathi puja(2) Nandidevatha ( Since the object of

marriage is to begetting progeny. They are the builders of the ‘Sukshma Deha

(3) Graha Yajna

(4)Snatakam(Close of Studies) Bridegroom asks for forgiveness for

any lapses on his part in observing the strict regime during the period of studies

(5) Kasi Yatra (6) Vak nischaya Muhurtha (7) Sankalpa (8) Kanyadana

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(9) Bridegroom’s promise “’ DHARMECHA, ARDECHA,

KAMECHA

NATHICHARITHAVYA”’ Father of the bride obtains a solemn

promise of fidelity to his daughter from his son

in-Law The Bridegroom says “’ NATHI CHARAMI ( I will not)

Continuation

(10) Rakshabandhana Significance; From that time till SAMAVESANA (Sexual union)

both bride and bridegroom will not be affected by pollution

(11)Sapthapadi We have together paced all the seven steps, we shall live together and we shall reside together and we each shall be an object of love to the other, we each shall be a source of joy to the other with mutual good

(12)Pradhana Ahuti (Invoking the blessings of Agni ) (13)Laja Homa ; Long life vigour and prosperity

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(14) Journey Home Bride is taken to the in-laws house (15) Gruhapravesam(Satyanarayana

Vratham) For future prosperity of the couple (16) Thri ratri ( Three nights) For acquiring progeny , who would

be physically and spiritually healthy (17) Sesha Homa

Continuation

This is preparatory to sexual union and is intended to propitiate the devine powers

(18) Garbhadhana These manthras are intended to

furnish the couple with knowledge of sexual science for begetting spiritually worthy children

Ceremonies of Marriage ( Sec.7)

Sec.7 Says: (1) A Marriage may be solemnised in

accordance with the customary rites and ceremonies of either party thereto

(2) where such rite and ceremonies include the Saptapadi, the marriage becomes binding ,when the seventh step is taken

“ May ” the word may here in the sense of

“ must “

continuation

In Bhaurao Vs. State of Maharastra AIR 1965 SC 1564 S.c Held that unless a marriage is celebrated

or, performed with proper ceremonies and in due form, it cannot be said to have been ‘solemnised”

In Surjit Kaur Vs. Garja Singh AIR 1994 SC.135 Parties lived together as wife and husband

without or under any established custom performing the essential ceremonies

Continuation

Su..C. held that in such situations living together as husband and wife by itself would not confer status of husband and wife

Supreme Court in Dr. Surajmani Stella Kajur Vs. Durg Charan Hansdah AIR 2001 SC 938 if the parties to the petition are of tribals, who

otherwise profess Hinduism, but their marriage being out of the purview of H.M.Act 1955 in the light of Sec.2(2) of the Act would be governed by their customs and usages of tribe

Proof of Marriage (Sec.8)

Sec. 8 says For the purpose of proof of marriage, the State is authoriszed to make rules for registration of marriage

omission to make the entry in the marriage register would not affect the validity of the marriage itself

in Vinaya Nair and others Vs. Corporation of

Kochi

AIR 2006 Ker.275

Continuation

Petitioners belong to Nair community Marriage performed under the provisions of

H.M.Act Husband was born in Canada ,acquired

canadian citizenship and employed in Canada., who professes Hindu religion and married Hindu girl. After marriage they submitted an application of the Kerala Hindu Marriage Registration Rules 1957 to the corporation of Cochin for registering their marriage

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Corporation refused to register on the ground that the husband is of Canadian domicile.

High court held that since the marriage was solemnized by following the provisions of Hindu Marriage Act , it is valid and the corporation is not justified in refusing the marriage certificate

Bombay, Himachal Pradesh and Karnataka high Courts implement for uniform, and compulsory registration of marriage in their respective states.

Continuation

Recently Supreme Court in Seema Vs. Ashwani Kumar, AIR 2006 Sc 1158 S.C. directed the Centre and States

to make necessary amendments in the rules to facilitate compulsory registration of marriages by a nodal officer, and the court has given three months time to the governments to notify the amended rules

History of Restitution 0f conjugal rights

Vedic injunction for necessity for a son, who relieves his father from hell resulted in desire of a male offspring for continuance of the family

and for the performance of funeral rites The sacredness of marriage tie was recognised The wife was given an honoured position in the

house ‘’ as the woman is half her husband and

completes him’’ The texts of Hindu Law also recognised the principle l

Hindu law enjoined on the spouses to have the society of each other

while Dharmasastras stressed on the wife’s implicit obedience to her husband, it did not lay down any procedure for compelling her to return to her husand against her will . It became necessary to find some remedies and procedures so as to see the marriage tie is intact and would not be disturbed by some petty quarrels between spouses

The procedure of restitution of conjugal rights recognised in England by the Ecclesiastical courts was introduced in Our country by the Britishers

From the time of the decision in MoonsheeBuzloor Vs.Shumsoonisa

Begum 1867 ii, Moo IA 551 This procedure is now recognised as

restitution of conjugal rights under Sec.9 of Hindu Marriage Act,

1955

Restitution of conjugal rights ( Sec.9)

Conjugal right is a matrimonial right It is indeed one of the express

conditions of the nuptial vow that each party is to become life associate of the other and enjoy the pleasures and consortium of each other

Sec. 9 The husband or wife may get a

decree for restitution of conjugal rights where the wife or the husband

has

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(a) has withdrawn from the society of the other

(b) Without reasonable excuse ( c ) the court is satisfied of the truth of the

statements made in the petition; and ( d) there is no legal groundwhy the

application should not be granted _Explanation___________ Burden of proof in case of reasonable excuse

shall be on the person who has withdrawn

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For obtaining this remedy It presupposes the subsistence of

valid marriage Petitioner has to prove the valid

marriage ,if it is disputed by the respondant In Smt. Ranjana Vinod kumar

Kejriwal Vs. Vinodkumar Kejriwal AIR 1997 Bom. 380

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Petition for restitution filed by the wife, Who had admittedly married a husband, who was already married to some one. The marriage with her was contracted after suppressing the fact .

Court refused to grant restitution of conjugal rights, as on the ground that the lady who moved to the court was not a legally wedded wife

Continuation

Withdrawal from the company It means withdrawing from the company of

the other spouse. The mental process should show that the spouse complained against should have made up his or her mind not to discharge his or her marital obligations without there being any excuse

Reasonable and just cause According to judicial decisions the following

are reasonable justifications for living separately

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Refusal to perform marital obligations without sufficient cause

Imputing unchastity upon the wife Gravely indecent behaviour, false allegations against each other as

to unnatural offence

Malkiat singh Vs. Shinderpal Kaur Air 2003 P&H. 283 Court observed that the essence of the decree of decree of restitution

is that the husband desiring the company of his wife makes any effort through the court for its assistance in order to restore his wife back so that they may be able to lead a conjugal life

the provision of law cannot be misused by a spouse to obtain a decree by invoking the provisions of

Sec13(1-A)(ii) of the Act, by deliberately keeping the decree of Restitution of conjugal rights as unsatisfied

Here the Husband could not satisfy the court about his sincerity to allow the respondent to resume her matrimonial duties

The appellant cannot be allowed to take the benefit of his wrong

In Sohan Lal Vs. Smt Prathiba Mehra AIR 2007 Raj.915

where the wife did not respond the decree for restitution of conjugal rights for one year, the husband is entitled to get divorce under Sec.13(1-A)

T. Srinivasan Vs. T. Vara Lakshmi AIR 1999 S.C.595 misconduct by the husband Wife was deprived by the husband

to perform her conjugal duties She demanded to perform her conjugal

rights Husband not only refused but also

drove her out

He did not allow her wife to again enter the house

S.C held that these acts of husband were positive wrongs amounting to misconduct uncondolable

‘He is not entitled to relief of divorce under Sec.13(1) (A)

Rajasthan High Court in Mirchullal Vs. Devi bai AIR 1977 Raj.113 according to the Hindu law a wife after

marriage is bound to be dutiful towards her husband and remain under the obligations of her husband in his house, but the concept of protection of the husband and unbroken residence in his house are not inelastic and rigid rules which cannot be interpreted in the context of present day conditions and needs . Women are no longer confined within the walls of their houses.

On account of family circumstances a woman might have to live by herself, while the husband is working at a place or out of employment under such conditions a wife has to live away from her husband such a situation would not amount to staying away from her husband

High Court of Delhi pronounced an important Judgment in

Smt Swaraj Garg Vs. K.M. Garg AIR 1978delhi296

Husband and wife were gainfully employed at different places before their marriage

Question arose with respect to matrimonial home after marriage

Husband drawing, a pay lesser though highly qualified They did not discuss about their matrimonial house either

before after the marriage wife continued to live at her place of working,

although attended twice to Delhi with him, where husband is serving

Husband filed a suit for restitution on the ground that she had withdrawn from his association without reasonable excuse

Trial court dismissed the petition, but a single bench allowed the appeal and granted the restitution

Mr. Desh Pande.,J women have taken up jobs to help their families and

she is financially and in other respects better situated to choose the place of matrimonial home then the husband. There is no warrant in Hindu law to regard a Hindu wife as having no say in choosing the place of matrimonial home.

Art. 14 of the constitution guarantees equality before law and equal protection of laws to both wife and husband

Any law which would give exclusive right to the husband to decide upon the place of the matrimonial home without considering the merits of the claim of the wife, would be against Art.14 and unconstitutional

Mohinder singh Vs. Preet Kaur AIR 1981 HLR 321 Husband became totally blind due to eye-injury

after six months of his marriage wife withdrew from the society on the plea of his

blindness

Court held that the wife had a reasonable excuse to withdraw. Consequently restitution decree was refused

T Saritha V.s T. Venkata subbaiah AIR 1983 AP356 R.C.R. Constituted th grossest form of violation of individual’s

right to privacy Smt. Harvinder Kaur Vs Harmander AIR1984 Del.66 Restitution aimed at cohabitation and consortium Sarojrani Vs. Sudharsan kumar AIR 1984 SC 1562 Restitution is not merely creature of the Statute it is

inherent in the very institution of marriage, it may be viewed in its proper perspective by keeping the dictionary meaning

Execution of decree of Restitution of conjugal rights

( Order 21 Rule 32 and 33 of C.P.C) It provides for execution of R .of C.Rts. The party against whom the decree is passed

has an opportunity of obeying the decree and if willfully failed to obey it, the decree may be enforced by attachment of his property

Or by his detention in civil prison or by both. The attachment decree will be in operation for one year and if the party has not obeyed the decree, the decree holder can apply for sale of the attached property

continuation

Court is not competent to direct that the wife or husband be bodily handed over to the other spouse and restrain him or her of liberty

In India Restitution decree is used as a Stepping stone for getting a decree of divorce Relevancy of the remedy When the remedy of divorce by mutual

consent has been included and the grounds of judicial separation and divorce have been made common, parties to marriage would hardly opt for Restitution

Prof. Derrett, who was a voter of the retention of the remedy under the H.M.Act admitted that it serves no purpose in many cases and is a mere half way house to divorce or is a counter blast to an application or suit for maintenance.

He believes that the remedy for restitution of conjugal rights is of great value for the Hindu Society. He believes that the practical utility of the remedy is little in England, but in India where spouses separate at times due to misunderstandings, failure of mutual communication of the intrigues of relatives, the remedy of restitution is still of considerable value.. He represents the popular feelings of Hindu spouses.

Due to the changed social scenario of the Hindu

Community , rapid growth of nuclear families spreading of education ;and consciousness of their rights, the remedy of restitution is gradually losing

its importance. Survey of reported case laws exhibits that the

aggrieved spouses hardly chooses this restitution as against divorce

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Judicial Separation (Sec.10)

Object To give time to the spouses for reapproachement and conciliation. The main function of the matrimonial reliefs is to offer protection to the innocent party and

getting a marriage dissolved when it has for all practical purposes broken down

when the grounds are same for both judicial separation as well as for divorce one may feel this provision is not necessary, but some spouses may not be willing to take divorce as they may feel it a stigma to be a divorcee in the society

Under Hindu Law although this remedy of Judicial separation is unknown, British courts by their pronouncements established that a suit for judicial separation is maintainable.

As a consequence , The Indian Divorce Act 1869 was made applicable

Under Sec 10 Either party may present a petition for

judicial separation on any of the grounds mentioned in Sub.Sec.(1) of Sec.13

In case of wife also on any of the grounds specified in Sub.Sec(2) of Sec.13 as grounds on which a petition for divorce might have been presented

That Is grounds for judicial separation and divorce are virtually the same

The Court may rescind the decree on the application by petition of either party and on being satisfied of the truth of the statements

Grounds available to husband and wife

(1) Adultery Prior to the Marriage Laws

(Amendment) Act 1976 . ‘’living in adultery’’ was necessary for getting the decree of judicial separation.

Now This has been dispensed with and it has been replaced by a simple requirement adultery

(2) Cruelty Though it has not been defined in the

Act. It is a course of conduct or treatment

which tends to undermine the health of the spouse on that account; or

affects the reasonable happiness of life and ill-treatment of both physical or mental

Smt. Mayadevi VS. Jagdish Prasad A I R 2007 S C 1426

wife used to make demands for money used to quarrel when money was not paid she did not even provide food to her

husband or the children Used to threaten her husband to falsely

implicate him in dowry demand and to kill the children and put the blame on the respondent and his family members

S.C Held that the allegation of cruelty was estd and granted the decree of divorce.

Grounds of cruelty Actual or threatened physical injury Verbal abuse or insults Excessive sexual intercourse Refusal of intercourse Neglect Communication of venereal disease

Drunkenness Refusal to speak Forcing association with improper

persons False charge of immorality against

wife Ill-treatment of children

(xii) Refusal to have children In Dastane Vs. Dastane The Supreme Court observed ‘’ Harm or

injury to health, reputation, the working career or the like would be an important consideration In determining whether the conduct of the respondent amounts to cruelty It is not necessary as under English law, that the cruelty must be of such a character as to cause danger to life,limb and health as to give rise to reasonable apprehension of such danger

(3) Desertion Two elements are necessary (a) Consent (b) Intention In Bipin Chandra Vs. Prabhavathi AIR 1957 SC 173 Supreme Court held that if the deserting

spouse decides to come back to the deserted spouse by a bonafide offer of resuming the matrimonial home, desertion comes to an end

Again Supreme court in Lakshan Vs. Meena AIR 1964 SC 30 reaffirmed that the factum of separation and animus deserendi are the necessary elements of the offence of desertion

In the above case S.C remarked that the wife left her husband’s house without his consent and without any reasonable excuse, it was also evident from her conduct that she had no intention to live with him, this state of things continued for 2 years/ Hence the wife was guilty of desertion and a decree for judicial separation was granted

(4) Conversion (5) Unsound mind (6) Leprosy (7) Venereal Disease (8) Renunciation of the world (9)Presumption of death

(B) Additional grounds available to wife (1) Bigamy (2) Rape, Sodomy or Bestiality (3) Non-resumption of cohabitation after

decree or order of maintenance (4) Option Of puberty COURT ’S power to Rescind The above grounds are available to wife

whether her marriage was solemnized before or after the commencement of Marriage Laws (Amendment) Act 1976

The Power to rescind though available under SEC.10(2) must be exercised with circumspection only to achieve the purpose of giving opportunity to the parties for conciliation

The court may rescind the decree in the following circumstances

(1) If the decree has been obtained ex parte In such case, by showing reasonable excuse for her or his absence, for his or alleged desertion (2) If the parties had cohabited with each

other, after the decree, or have come to terms with each other and have begun to live as husband and wife

(3) If the opposite party has condoned the Offence

(4) If the opposite party has satisfied the court that he or she is

willing to live as husband and wife and is not going to do any such thing in future on which judicial separation was granted (Sec.23)

(5) If the opposite party is cured of leprosy, or venereal disease, or unsoundness of mind, in spite of that the petitioner is not willing to resume cohabitation(Sec.23)

while awarding this relief the court must be satisfied beyond reasonable doubt. There should be strict inquiry into the matter

Effects of judicial separation;- Marriage tie is not dissolved husband and wife are not bound

to live together or dine together It will not be obligatory for the

parties to cohabit

It does not prevent the parties from subsequently resuming cohabitation and living together as

husband and wife If either spouse marries during the period he or

she will be guilty of bigamy and will be liable for punishment under Sec.17 of the Act

The petitioner, if she be the wife, becomes entitled to alimony from the husband and if he is the husband he can claim maintenance from wife under Sec.25 of H.M.Act

From the date of decree till separation continues considered as ‘” independent woman”’

Mutual rights and obligations arising from the marriage are suspended,

rights and duties under the decree are substituted.

Nullity of Marriage and divorce (Sec.11)

Sec.11 provides the marriages which can be declared as

Nullity of Marriages If the essential conditions laid down

under Sec. 5 Of H.M.Act are not followed, such a marriage becomes null and void

Exception :-Sec. 11 is not applicable to marriages solemnized before H.M.Act,1955 Came into effect.

A marriage which violates any of the following

Sec.5(1) If any party has a spouse living

Sec.5(iv) Parties are within the prohibited degrees

Sec.5(v) If the parties are sapindas is void ipso jure/. The parties need not ask for a declaration from the court

In M.M. Malhotra Vs. Union of India

AIR 2006 S C 80 Apex Court observed marriages covered by Sec.11 are

void ipso jure., void from the very inception and have to be ignored as not existing at all. A void marriage does not alter or affect the status of the parties nor does it create any rights

Voidable Marriage (Sec.12)

Sec.12 read with Sec.5 of the Hindu Marriage Act Narrates the provisions about nullity of marriage in case of voidable marriages

Under Sec.12(1) A marriage solemnized, whether

before or after the commencement of the Act, shall be voidable and be declared as nullity on any of the following grounds

(a) marriage has not been consummated owing to

Impotency Very object of marriage is to give the

legal relationship to the couple to have sexual intercourse

Sec.12(1) makes the impotency as disqualification and makes such marriage void. In such cases the aggrieved party can approach the court for nullity of marriage

As a general rule when a marriage is sought to be annulled on the ground of impotency, medical examination of the parties is essential

Before the Marriage Laws ( Amendment) Act 1976

It was necessary that the respondent was impotent at the time of the marriage and continued to be so until the institution of the proceedings

BY Virtue of 1976 Amendment, No decree for annulment can be granted ,if the marriage is subsequently capable of consummation, due to surgical operation or otherwise

Cases Moina Vs. Amardeep, AIR 1976 Del. 399 Delhi High Court held that Under. Cl.(a) of

Sec.12(1) petitioner would be entitled to a decree of nullity of marriage , if the marriage was not consummated due to the impotency of the respondent

D. Balakrishna Vs. Pavala mani AIR 2001 Mad.147

Madras High Court held that where impotency was proved by medical evidence and the marriage had not been consummated, the marriage voidable under Sec.12(1) of H.M.Act

Sec.12(1)(b) Unsound mind Under English law a person of unsoundmind is not capable of giving consent, marriage of such a person is void ab initio.

According to Hindu law marriage of such person is not void, it is voidable

in Rajeswari Misra Vs. Sidharta Pandit AIR 2010 Ori. 41 Petitioner Husband filed a petition for

annulment of marriage on the ground that at the time of marriage wife suffering from recurring attacks of epilepsy

Court Held that, when suit came for judgment the ground of epilepsy was no longer available as the ground of annulment.

But the court observed that the husband was entitled to decree for annulment of marriage because he had filed the suit prior to such amendment

(C) Consent obtained by force or fraud Sec.12(1)(c)

Any marriage solemnized shall be voidable and may be annulled by a Decree nullity on the ground that the consent of

the petitioner ; or the guardian, in the case of child

marriage before the Child Marriage Restraint

(Amendment) Act 1978 has been obtained by force or fraud

In Perminder Charan Singh Vs. Harjit Kaur AIR 2003 S C 2310 Initiation of marriage by the husband through the

matrimonial columns Bride’s father submitted brides bio-date and her status

as “’legally divorced”’ Mother of the bridegroom in her reply mentioned that the bridegroom was “’ also “’ legally divorced The evidence on record show that both the bridegroom

and his mother are aware of the Bride’s status S.c held that there was no evidence of fraud on the

part of the wife or her father in bringing out the marriage

(d) Pregnancy at the time of Marriage Sec.12(1)(d)

Supreme court in Mahendra Vs. Shushila AIR 1965 sc 364 a baby was born to Sushila after 171 days from

the date of marriage. The child was fully developed healthy child. There was no evidence of their meeting before the marriage.

The court held that the husband was held entitled to the decree of nullity

Divorce - Introduction

Except in the Institution of Hindu Marriage , All most all the remaining religious marriage

institutions have Divorce system Ancient Hindus did not know the term “’Divorce”’ In the Good olden days, the Husband and the wife

lived together until their death The Institution of marriage under Hindu Law is A Sacrament being based upon a Sacred religious ceremony. Even after the death of Husband the wife would

not remarry where as after the death of the wife husband

used to remarry

Even there were no customs of divorce . This system continued for a long period

The Divorce system has been incorporated in the H.M.ACT by the Indian Parliament Following the English Common Law

Therefore, the concept of Divorce is new to Hindu law

Even today the percentage of divorces in the Hindu Marriages is very less comparing with western Marriages.

This is the Greatness of Hindu Marriage System.

Sec. 9 to Sec. 13 of H.M. Act, 1955 provide for Matrimonial reliefs

Divorce enunciated in Sec.13 has been amended by several times to meet the changing social conditions and economic conditions of Hindu Society.

It was amended in 1964 by the Hindu Marriage (Amendment ) Act 1964

Drastic change was made in the year 1976 by the Hindu Marriage ( Amendment) Act

OBJECT To put full stop to the conflicts between the parties

and to end the marriage. The Decree of Divorce allows each of them to remarry with other parties

‘ Thus DIVORCE breaks away the MARRIAGE tie between the wife and Husband, and thus leads to live peacefully

Divorce Sec. 13

H.M.Act 1955 has introduced vital and dynamic

Changes in the institution of Hindu Marriage., i.e., Divorce. It has laid down clear provisions for Divorce

It is dealt with in Sec.13,13-B, 14 and 15 of the Act

Sec.13 provides the circumstances in which the

right accrues

Sec.14 Limits the right. It says that a petition

divorce may not be made with in one year of the date of marriage

Except when the case is exceptionally hardship to the petitioner, or

of exceptionally depravity to the respondent

Divorce ( Contd......)

Sec.15 Lays down the limitations on the right of the divorced persons to marry again

MARRIAGE Laws (Amendment) Act 1976 has Introduced the following Changes in the law of Divorce

(i) adultery has been made simple. Single act of adultery may constitute a ground for divorce Sec.13(1)(i) ( ii)Cruelty, and desertion which were the grounds Judl. Separation, have been made the grounds

for Divorce Sec.13(1) (i-a) and (i-b)

Divorce ( Contd...)

(iii) Minimum period of filing a petition for leprosy, and venereal disease has been omitted Sec.13(i), (iv) and (v)

(iv) The court has been given the power to exercise

it’’s discretion in petitions of divorce, to grant

an alternative relief under certain conditions

(Sec.13-A)

(v) A vital change has been introduced by providing divorce by mutual consent. By this the sacramental character of Hindu marriage has been affected (Sec.13-B)

(vi) parties can obtain divorce by presenting a petition after one year

(A) Grounds available to both Husband and wife

(i) Adultery (Sec.13 (1)(i) If any of the parties to the marriage has

sexual contracts with any other person, other than his or her spouse, is a good ground for obtaining divorce

In Bipin Chandra Vs. Prabhavathi

AIR 1967 SC 1760 Bipin chandra married

Prabhavathi . A son was born to the couple

In 1946 One Mahendra, a retired Army man, a friend of the family came to their house and resided for some months. In 1947 Bipin chandra went to England. Bipin’s father found a letter said to have been written by Prabhavathi to Mahendra about illicit contact. Bipin “’s father handed over the letter to Bipin after his return. When he asked his wife she could not tell . Husand entitled for divorce

Divorce contd.....

To constitute a ground for divorce sexual inter course complained must have taken place after the solemnization of marriage with the petitioner’

Pre-marriage unchastity of the wife or Pre- marriage sexual relation of the

husband with some other woman is not a ground of divorce

(2) Cruelty Cruelty has become a ground of divorce after

the Marriage laws (Amendment) Act 1976

Divorce Contd......

Cruelty was defined for the first time in RUSSEL Vs. RUSSEL (1897) AC

395 House of Lords Observed to constitute cruelty there must be danger to life or injury to health, bodily or mental or reasonable apprehension of it. However this definition is not valid in

the present Hindu law

Cruelty for the purpose of this Act, means

Where one spouse has so treated the other and manifested such feelings towards her or him as to have inflicted bodily injury,

or to have caused reasonable apprehension of bodily injury, suffering or to have injured health

Divorce

It may be physical or mental Mental cruelty is the conduct of the

other spouse which causes mental suffering or fear to the matrimonial life of the other

It 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 spouse

Divorce

In Dastane Vs. Dastane AIR 1975 SC 1536 Dastane married in the year 1957. Three children

were born . His wife behaved enemically Her conduct caused annoyance and untolerable He filed a case for divorce alleging that his wife

behaved with him cruelly. She cut the mangalsuthra locking out the doors when he is about to

return from his office,rubbing chilly powder on the tongue of an infant child beating a child while in high fever

Were some of the instances explained to the court

The trail court and the High courts gave judgments in favour of the wife

Supreme court observed that English decisions on Cruelty may not always be a safe guide to the Indian social structure.

English law requires danger to life, limb or health

But Sec10(1)(b) Laid down a lower requirement namely

reasonable apprehension that it is harmful or injurious for one spouse to live with the other.

SC gave judgment in favour of Mr. Dastane

Unfounded Allegations In dharm Pal Vs. Pushpa Devi AIR 2006 P&H 59 Husband tortured the wife,She left the

matrimonial house ,Husband filed a petition for restitution ,Wife proved that he tortured her with unfounded allegation of illicit contracts and claimed divorce

High Court held that unfounded allegations of illicit contacts would be treated as mental agony and cruelty

Samar Ghosh V Jaya Ghosh 2007. 4 SCC 511 Supreme court held that the question

was not of cooking food, but the wife’s cooking food only for herself and not for the husband would be a clear instance of causing annoyance which may lead to mental cruelty

Legal cruelty justifying JUDICIAL SEPARATION OR DIVORCE:

(a Actual or threatened physical violence (b) Verbal abuses and insults (c) Excessive sexual intercourse (d) Refusal of intercourse (e) Neglect (f) Communication of V.D (g Drunkenness and use of drugs (h) Forcing association with improper persons (i) False charges of immorality (J) illtreatment of children (k) Wife suffering from deadly disease

Mere suspicion without any open act cannot amount cruelty

(3)Desertion Sec.. 13 (1)(1-b) If the petitioner has been deserted

continuously for a period not less than two years immediately preceding the presentation of the petition for

judicial separation or divorce, Such petition may be granted The essence of desertion is abandonment of

one of the spouses by the other

For the offence of desertion 2 conditions must be proved so far as deserting spouse is concerned

(a) Factum of separation (b) intention to bring cohabitation

permanent to an end (animus deserendi) So far as deserted spouse is concerned (a) absence of consent (b) Absence of conduct giving reasonable

cause to the spouse leaving the matrimonial home To form the necessary intention

Desertion is of two types Actual desertion (a) spouses must have parted or terminated all

joint-living (b) Deserting spouse must have the intention

to desert the other (c)Deserted spouse must not have agreed to (d) without reasonable excuse (e) this situation must have continued for 2

years

In Lachman Vs. Meena, 1964 Sc 40 Wife was required to live with joint

family She left the matrimonial home after 5

years from the marriage She went to South East Asia Husband wrote letters to return. She replied that she would to return

in her letters when her health would permit her.

Her offer to return was not sincere and no intention to return

Sc held; besides the factum of separation there was also animus at the time when she left husband’s house and it continued for the period of 2 years before the presentation of the petition.

She was guilty of desertion

In Adhyaatmam Bhamini Vs Jagadish Ambalal Shah

AIR 1997 Sc 1180 where the wife being confronted with the divorce

proceedings against her and though present in the court, but had not made

any enquiry, as to the orders passed against her S.C held that she had allowed proceedings to go

ex-parte against her deliberately remaining absent. Animus of permanent desertion was evident.

Apex court Upheld the decree passed by the Family court and Bombay High Court

Durga Prasanna Tripathy Vs. Arundhati Tripathy

AIR 2005 SC 3297 Petition by the husband on the ground of

desertion Wife deserted the husband after 7 months of marriage Parties were living separately for 14 years Wife was not prepared to lead conjugal life

with the husband

Attempts were made by husband and his relatives . No chance getting back her

Sc Held good part of the life of both the parties was over in litigation. No chances for reconciliation.

Apex Court held that there is irretrievable break-down of marriage

Constructive Desertion Karnataka High Court In Dr Srikanth Rangaharya Vs. Smt.

Anuradha AIR 1980 Karn. 8 Wilful neglect by one spouse to the other would come within the meaning of desertion (4)Conversion (Sec.13(1)(ii) ) It is one of the

grounds for Divorce’. Conversion to another religion is now a ground for a decree for judicial separation after the Marriage Laws ( Amendment ) Act, 1976

A decree for divorce can be obtained by a petitioner where the opposite party has ceased to be a Hindu by conversion

Sarala Mudgal Vs. Union of India AIR 1995 SC 1531 Lily Thomas Vs. Union of India AIR 2000 SC 1650 (E) Mental Disorder Sec13 (1)(iii) (F) Leprosy SEC.13(1)(iv)

Swarajya Lakshmi Vs. Dr.G.G. Padma Rao AIR 1974 Sc 165 S.C. Held that lepromatous leprosy is virulent.

This type of leprosy is malignant and contiguous. Court passed the decree

(g)Venereal Disease Sec.13(1)(v) (h)Renunciation of the world Sec. 13(1)(vi) (i) Not heard for seven years (Sec.13(1)(vii) (J)Decree for judicial seperation-After one year Sec13(1-A)(i) (k)Restitution of conjugal rights after one year Sec.13(1-A)(ii)

Case

O.P. Mehta Vs Smt. Saroj Mehta AIR 1984 Del.159

After the restitution decree, he filed a petition for divorce decree after four and half months on the ground of wife’s adultery.

Later on after a year He brought another petition for

divorce on the ground that wife has not complied with the decree for restitution for a period of one year

wife resisted the petition on the ground that the husband deliberately brought a petition after four and half months of the decree of restitution falsely imputing adultery thus made it impossible to comply with the decree

Court refused to pass the decree on the ground that during the pendency of the petition for divorce on the ground of wife’s adultery, the wife was disabled to join her husband if the decree of divorce were to be passed in his favour,

it would amount to husband taking advantage of his own

GROUNDS AVAILABLE TO WIFE ONLY (Sec.13(2))

Special grounds of divorce available to wife alone: (i) Bigamy Sec.13(2)(1) If another wife was

living before the commencement of this Act

(ii) Rape, Sodomy or Bestiality Sec.13(2)(ii) (iii) Non resumption of cohabitation order for

one year or upwards after the passing of maintenance order under Sec.18 H.A and Maintenance Act 1956, or under Sec.125 Cr.P.C Sec.13(2) (iii)

(IV) Repudiation of MarriageSec.13(2)(iv) This clause has been added by The Marriage Laws (Amendment) Act of 1976. Under this clause a wife whose marriage was solemnized before she attained 15 can repudiate the marriage after attaining 15 years but before attaining18 years

Alternate relief in divorce proceeding Sec.13(a)

The courts may, while dealing with the petition for divorce, have discretion to grant judicial separation

But the courts cannot exercise this power (a) Where the respondent has ceased to be

a Hindu (b) renounced the world (c) has not been heard of as being alive for a period of 7 years or more.

DIVOCE BY MUTUAL CONSENT Sec.13-B Divorce by mutual consent . There was no provision for divorce by

mutual consent in 1955 ACT Divorce puts an end to the marital relations petition for divorce may be filed by any on

of the spouses to the District Court on any one of the grounds given Under Sec.13’.

Some times both the spouses may decide to separate amicably. Such understanding will come under Divorce by mutual consent.

Necessary Conditions

Divorce by mutual Consent was incorporated in Sec.13-B by the Hindu Marriage (Amendment) Act 1976

Necessary conditions

(a) petition for divorce to be presented by both the parties to the marriage to the District Court

(b) Parties should have been living separately for a period of one year or more

(c) Parties could not adjust and not been able to live together

(d) Mutual consent to dissolve the marriage(e) Parties must apply to the District court(f) not earlier than six months of the presentation of the

petition and (g) not later than 18 months after that date

In Sureshtra Devi Vs. OM Prakash AIR 1992 SC 1940 Wife stated that her consent was obtained under

pressure and threat. She was even not allowed to see or consult her relatives before filing the petition.

SC held that a party to the petition for divorce by mutual consent, can unilaterally withdraw his consent at any time till passing of the decree.

If in a subsequent motion seeking divorce under sub-section (2) is not of both,

because of the withdrawal of consent by one of the parties, the court gets no jurisdiction

Supreme court has reviewed the previous case In ‘Ashok Hurra Vs. Rupa Bipin Zaveri AIR 1997 SC 1266 It was observed that the question of withdrawal of consent pending the case of

divorce is open to be withdrawn any time till the decree is passed.

Here consent not withdrawn within 18 months Civil and criminal proceedings were drawn against each.

Husband married and begot a child Circumstances warranted for exercise of jurisdiction Under 142 of I.C and granted divorce by awarding 2

lakhs to the wife, as a condition precedent to the decree

Punjab & Haryana High court In Charanjeet Mannu Vs Neelam Mannu AIR 2006 P & H 201 court should not decree for divorce before 6

months of time from the date of filing petition which is mandatory .

It cannot be waived off on the ground that the parties have already litigated for more than 6 months in the past and no useful purpose would be served by keeping the petition pending for lapse of 6 months

Punjab High Court In Sweta Garg Vs. Rajat Goyal AIR 2009 Bom Observed that the waiting period of 6 can be waived

on concession of both the parties But Supreme Court In Smt. Poonam Vs Sumit Tanwar A I R 2010 SC

1384 If the application was disposed off by the family

court to direct the parties to wait for statutory period of six months, but the parties filed the petition for issuance of direction to waive the statutory period, the court observed that, the petition has been filed without any sense of responsibility either by the parties or by the counsel. Such practice is tantamount to not only disservice to the institution, but it is also adversely affects the admn. Of justice and is liable to be dismissed

PETITION FOR divorce SEC.14 Prior to the MARRIAGE Laws (Amendment) Act 1976

No court could entertain a petition for divorce before the expirations of 3 years from the date of marriage

But the aforesaid Amendment reduced the period to one year

But the court could do so before the expiry period (a) In cases of exceptional hardship to the petitioner (b) Exceptional depravity of the respondent

Discretionary Power To dismiss the main petition; or to postpone the operation of the decree for one year from the date of marriage, if it transpires that the leave has been obtained by

misrepresentation or concealment of the facts

Object Of Sec.14 Sec.14 provides restrictions presumably designed to

prevent party recourse to legal proceedings before the parties have made real effort to save their marriage from disaster

General Principles of exceptional hardship or exceptional depravity Madras High Court in Meganatha Nayyar Vs.

Smt. Susheela AIR 1957 Mad. 23 held it is for the judge who hears the application to say

whether in the circumstances a prima facie case of exceptional hardship or depravity has been made out

His Lordships referred to an English decision, BOWMEN Vs. BOWMEN 1949 2 All. E.R. 127 observed that this case gave some guidance in considering what could be treated as exceptional

hardship or exceptional depravity by laying down the following general principles: (1) Adultery with one person is not exceptional depravity (2) Adultery plus desertion by the husband in

favour of another woman plus cruelty to his wife constitutes exceptional hardship to the wife

(3)Apart from adultery with another matrimonial offence, the consequences of adultery may cause exceptional hardship ,when a wife has a child by adultery

Exceptional Depravity (4) If a husband commits adultery within a few weeks

of his marriage, or promiscuously with his wife’s sister, or a servant in the home,

that may be held to be exceptional depravity (5) Cruelty coupled with aggravating

circumstances ., i.e., drunkenness and neglect may be exceptional hardship on the aggrieved spouse or if coupled with perverted lust exceptional depravity by the proposed respondent

(6) Husband’’s adultery promiscuously with other women

Sec.14(2) The court shall have regard to the interests of any children of

the marriage and to the question whether there is a reasonable probability

of a reconciliation between the parties before the expiration of the said one year

Divorced persons when remarry Sec.15

SEC .15 SAY THAT THE DIVORCED PERSONS MAY MARRY AGAIN IN THE conditions:

(1) when the marriage has been dissolved and

there is no right of appeal against the decree

(2) If there is right of appeal but the time has

expired, without filing appeal (3) An appeal has been filed but has

been dismissed

Differences between Judicial Separation and Divorce

It suspends the rights and duties for some time

Object is the hope of

Adjustment It is Lesser

remedy

It puts an end

To give the last resort

It is a drastic remedy

Judicial Separation (Section 10)

Divorce (Section 13 )

Differences between Judicial Separation and Divorce (Contd...)

By decree, parties cannot remarry another person

After J.S, the wife can file and succeed for maintenance

Parties are entitled to get another marriage of their choice

Divorced woman cannot file for maintenance under HAM act but she can file for maintenance under Sec.125 CrPC

Judicial Separation (Section 10)

Divorce (Section 13 )

Legitimacy of children of Void and voidable marriages Sec. 16

Sec. 16 deals with the position of child born out of a void and voidable

marriagesSec. 16(1) children born out of a void marriage

under Sec11, regardless of whether any decree of nullity of marriage has been granted in any proceeding

under the Act or otherwise is protected and considered as legitimate

In Bhagadi Kanna Babu Vs. Vuggina pydamma

AIR 2006 SC 2403 Deceased died leaving his first wife and

daughter born of a second marriage SC held that the daughter of the second

marriage is entitled to inherit the property of the deceased being legitimate child of the deceased along with the first wife

Sec.16(2) Children born out of Voidable Marriage A child of voidable marriage would be legitimate.

A voidable marriage can only be challenged at the instance of either party to the marriage. It cannot be challenged after the death of one of

the parties. Hence the issue of such marriage would be legitimate Board of Trustees Of V.P.T Vs. Presiding

Officer 2000 (5) ALT 577

Facts

‘ A’ was an employee of V.P.T. ‘ A’ married‘B’ to whom no children were born. Then ‘A’ married ‘C’ and got a daughter, later ‘A’ died leaving behind Ist wife ‘B’, daughter through second marriage, and ‘C’ , second wife.

Here ‘B’ and ‘C’ consented to share the retirement benefitsequally before the Lok Adalat and

Job offered by the VPT on compassionate grounds shall be given to the daughter

V.P.T rejects the appointment on compassionate grounds to the daughter, on the ground that

she is not a legitimate daughter

High Court held that the Board of Trustees of V.P.T. Has no authority to decide the legality or illegality of child of the employee,

when once it was decided by Lok Adalat and the decision is equal to the Decree of a Civil Court and the child born out of second marriage becomes legitimate Under section.16 of H.M.Act,1955.

Therefore the objections of the Board are not valid

Status of the children born out of Void and Voidable Marriages Sec.16(3)

The children of born out of void and voidable

marriages have the status of legitimate children

and inherit the property of their parents only

Punishment for bigamy Sec17

Sec.17 (1) If the marriage is solemnised after the ACT

1955Came into force (2) at the time of marriage either party has a spouse living Once the ceremonies are proved to have been performed, the marriage becomes properly

solemnised and if contacted, while the first marriage is still subsisting, then the provisions of Sec.494 I.P.C will be applicable

Punishment for contravention of Certain conditons Of Hindu Marriage Sec.18 I

SEC.18 that marriage solemnized in contravention of (a) age of parties to marriage Sec.5(iii) (b)Prohibited degrees of marriage Sec.5(iv) (c) sapinda relationship. Sec.5(v)

In case of (iii) of Sec.5 ,Simple Imprisonment of 15 days or fine Rs.1000 or both In case of (iv) & (v) of Sec.5: Simple Imprisonment of One month, Fine Rs.1000 or both-

Jurisdiction of courts to decree and grant relief Sec.19

Sec.19 says that every petition under this Act shall be

presented to the District Court,with in the local limits of whose Ordinary Original Civil jurisdiction

(i) the marriage is solemnised (ii) the respondent resided, at the time of

filing petition (iii) Parties last resided (iii-a) in case wife is the petitioner, where she is residing on the date of

presentation of petition

(iv) petitioner is residing at the time of filing the petition, in case where the respondent is residing outside the territories to which this Act extends

Or has not been heard of as being alive

for 7 years or more by those who would naturally have heard of him, if he were alive

By virtue of Marriage Laws(Amendment) Act 1976

, authorises the filing of petitions in the courts within whose jurisdiction the respondent is residing

Here District Court Means City Civil Court Principal Civil Court of Original Jurisdiction Includes any other Civil Court Which may be specified by

Gazette notification, by the State

For the purpose of jurisdiction Resides means a place where a spouse has made his or her permanent place of living. It must be a place where the spouses intend to live generally and

permanently Where the spouses were living at different

places due to employment Visit by one spouse to the other’s place amount to

‘’reside’’ at such places

Contents verification (sec.20) Sec.20 Petition presented under this Act shall

state the facts on which the claim to relief is founded

And there is no collusion between the petitioner and the other party to the marriage

The statements of the petition shall be verified by the petitioner or some other competent person

Application of Civil Procedure Code

Sec.21 All the proceedings under this Act shall be regulated By the C.P.C

Sec.21-A Power to transfer petitions in certain cases

This section was introduced by the marriage Laws (Amendment) Act 1976

Where various petitions have been presented by the parties to a marriage praying for a decree either of judicial separation or of divorce,

whether in the same District Court or in the different District courts, in the same State _

The Following rules shall be followed (a) If the petitions are filed in the same Dist. Court the petitions shall be tried and heard by the same

court

(b) If the petitions are presented to the different District courts,

the petition presented later shall be transferred to the District court in which the earlier petition presented

both shall be heard and disposed of together by the District court in which earlier petition was presented

Trial And disposal of petitions ( Sec.21-B)

This Section has been added by 1976 Amendment. The section is added with a view to expedite the trial made under this Act

Trial is required to continue the matrimonial

proceedings from day to day till it’s conclusion

In case of adjournments, it should record reasons.

Trial should be concluded as expeditiously as possible within 6 months from the date of service of notice to the respondent

Appeal proceedings to be completed within 3 months from the date of service of appeal notice on the respondent

Documentary evidence ( Sec.21-C) Inserted by Marriage Laws (Amendment )Act 1976

No document shall be inadmisable in evidence in any proceeding at the trail of a petition on the ground that it is not duly stamped or registered

Proceedings in camera may not be printed or published (Sec.22)

This rule is enacted so that reports of judicial proceedings relating to matrimonial disputes may not produce an unhealthy influence on the public.

Every proceeding under this Act shall be conducted in CAMERA . It shall not be lawful for any person to print or publish any matter in relation to any such proceeding

Except a judgment of a High Court or Supreme court, or with permission of the court If any person prints publishes in contravention, he shall

be punishable with fine Rs.1,000

Decree in Proceedings Sec.23 Sec.23 (1) Rules and conditions for the

guidance of the court. Upon the satisfaction of the conditions the court may pass decree, whether defended or not. Under Sub-Sec.(2) Before granting a Decree, the court has a duty to make every

endeavour in the first instance to bring about reconciliation in every case, where it is possible,

.

If the proceeding under Sec.23(2) has not been followed by the trial court, the same can be followed by the Appellate court.

That does not mean the same can be ignored

The very object of this provision is to bring harmony between the parties, in order to bring stability in the status of marriage

Corroboration In matrimonial proceedings ground for Matrimonial cause

must be strictly proved. The court must be satisfied beyond all reasonable doubts, that the ground for relief is proved.

Evidence of spouse must be corroborated. But nothing to prevent the court from passing a decree even on

uncorroborated testimony, where the facts otherwise justify

In Bipin Chandra Vs. Prabhavathi, 1956 SCR 838SC held that though corroboration is not required as an absolute rule

of law in proof matrimonial offence, the court will insists upon

corroborative evidence as a precaution, unless it’s absence is accounted for, to the satisfaction of the court

Court cannot pass Ex Parte Decree

Courts cannot pass Ex Parte decrees in Matrimonial suits The court remains under the obligation to satisfy itself that there is sufficient legal evidence to support the decree and record the evidence.

As a rule should not decide a case on mere admissions of the parties, without recording evidence

The court must take into account the following conditions before passing decree:

:- (a) Not taking advantage of his or wrong Sec.23(1) (a)

Court before granting relief should be fully satisfied that some established ground of relief exists and

the petitioner is not in any way taking advantage of his or her wrong

In Meera Bai Vs. Rajinder Kumar Sabti AIR 1986 Del.136 Husband contracted second marriage and he allowed

an ex parte decree for restitution of conjugal rights to be passed against him.

Neither he cared for first wife nor his children nor paid maintenance. He filed a petition against his first wife for dissolution of marriage under Sec13(1-A) for failure to comply with restitution for a period of one year

Court held that it would amount to taking advantage of his own wrong

Exception This point is not applicable where a petition is filed for

nullity of marriage on the ground of unsoundness of mind of the other party to the marriage

(b) Absence of Connivance and condonation Sec.23(1)(b) There should not be any connivance with the respondent or the petitioner should not have condoned the acts of the

respondent

Supreme Court in Dastane Vs. Dastane AIR 1975, 1534 (Case of Judicial Separation) accepted the contention of the petitioner that he was

subjected to inexcusable cruelty by his wife and the contents of cruelty were sufficient to establish a case for judicial separation,

yet the remedy was refused on the ground that the petitioner has condoned the offence

Consent given for petition of divorce by MUTUAL CONSENT should not be by fruad, force or undue influence

Sec 23.(1)(bb) (c) Absence of Collusion Sec.23(1)(c) (d) no unreasonable delay Sec.23 (1)(d)

In Jyoti chandra Vs. Meera AIR 1970 Cal..206

wife filed a petition after delay of 21 months

Explanation of delay due to sister’s marriage,

Had she filed the petition, it would have brought a bad reputation and for finalisation of her sister’s marriage

Hence she preferred to file after the marriage

Court held that the explanation was held to be justified

Absence of legal bar Sec.23(1)(e) Amendment Act of 1976 has cast a duty

on the courts to make an endeavour to bring about reconciliation. In such procedure

if the parties desire or if the court thinks fit, it may adjourn for a period of not more than 15 days..

It may refer the matter to a person , either named by the parties or by the court with a direction to report to the court about conciliation

Maintenance pendente lite and expenses of proceedings ( Sec.24)

The provision of maintenance and pendente lite

in favour of needy spouse applies irrespective of whether such spouse appeared as the initiator of the main proceeding or not

Once an order is passed, no matter what happens to the petitioner there after. The liability to pay maintenance and expenses of the litigation in respect of period during which the proceedings were pending cannot be avoided

Application for such expenses of the proceeding and the monthly sum during the proceedings shall be disposed off within 60 days from the date of service of notice to wife or husband

Maintenance would be effective from the date of Service of Summons in the main petition

Exceptions in the following conditions there is no duty cast upon the court:-

In the case of a petition for divorce on the ground of Conversion, unsoundness of mind, V.D . incurable leprosy, renunciation of the world or unavailability of one of the parties

Under Sec.23(A), by virtue of Marriage Laws (Amendment) Act, 1976, the court may grant relief, if the petition’s adultery, cruelty, or desertion is proved , in divorce, judicial separation

Who May Apply The High courts of Bombay in Kamala Devi Vs. Sharma Rupchand and others

AIR 1958 Bom.466, Mysore High Court in Nagappa Vs. Vimala Devi,

AIR 1957 Mrs.44 and Punjab High Court in Rameshwarnath Vs.

Kanta devi AIR 1957 Punj.85 have clearly held that the words petitioner and respondent in Sec.24 mean respectively, the party who had made the application under this section and the person opposing the application or against whom the claim is made

Object and Scope of Sec.24 is To ensure that a party to a proceeding does

not suffer during the pendency of the proceedings by reason of his or her poverty

in Chitralekha Vs. Ranjit Rai AIR 1977 Del.176

laid down that the object behind Sec.24 is to provide financial assistance to the indigent spouse to maintain herself or himself during the pendency of the proceedings and also to have sufficient funds to defend or to carry on the litigation

Maintenance for children also In Jasbir Kaur Sehgal Vs. Dist. Judge,Dehradun AIR 1997 SC 3397 S.C held that Sec.24 cannot be given restricted meaning.

The wife’s claim to maintenance pendente lite would include her maintenance and that of her daughter living with her.

Supreme court by giving new dimensions to Sec.24 further observed that Sec.24 no doubt talks of

maintenance of wife during pendency of proceedings but this section cannot be read in isolation

And cannot be given restricted meaning to hold that it is the maintenance of the wife and no one else.

But Sec. 24 does not include educational expenses for an adult child

Permanent alimony and MainteanceSec.25

Sec.25 Permanent alimony and maintenance the court has been empowered to direct the opposite party at the time of

decree or subsequently to pay maintenance to the petitioner. While

ordering for maintenance, it shall take into account the status of the opposite party

It can rescind or modify the order at subsequent stage ,if the circumstances so warrant

Ex- Unchaste or remarriage

In Rameshchandra Rampratabji Daga Vs. Rameshwari R.C. Daga AIR 2005 SC 422 Whether a woman re-married during the subsistence

of her first marriage can claim maintenance from her second husband

SC. Bigamous marriage may be declared illegal, but it cannot be said to be immoral so as to deny even the right of alimony or maintenance to a spouse financially weak and economically dependent

The permanent alimony is maintainable in cases of divorce and annulment , void and voidable marriages

The court may rescind the maintenance alimony order in two conditions:-

(a) If the court thinks that there is a change of circumstances, at the instance of either party, it may vary, modify or rescind any such order Sec.25(2)

(b) if the court is satisfied that the party in whose favour an order has been made has re- married or

if such party is wife, she has not remained chaste, If such party is husband he has had a sexual

intercourse outside the wedlock, it may vary, modify, or rescind such order Sec25(3)

In such case the doctrine of estoppel, and res judicata cannot be invoked

Sec.26 Maintenance, custody, Edn., of Minor Children provided for interim orders from time to time as also for

making provisions in the decree with regard to custody , maintenance and education of minor

children. Therefore Sec.26 empowers the court to provide for the

maintenance of minor children. It applies for both pendente lite, and also for after

passing of the decree. However the court must be cautious while passing the

decree, with regard to the facts and circumstances

Disposal of property Sec.27 This section empowers the court to make

orders also for disposal of property presented to the spouses at or about the time of marriage

IN Balakrishna Ramachandra Kadam Vs. Sangeetha Balakrishna Kadam AIR 1997 SC 3562

Sc Held that the property in Sec.27 is not limited to only that property which is given to the wife at the time of the marriage it also includes the property given to the parties before or after marriage also, so long as it is relatable to the marriage

original civil jurisdiction

Appeals from decree and orders (Sec.28) This section was substituted By Marriage Laws(Amendment )Act

1976 Sec.28(1) All appeals shall be appealable as decrees of the court of Original Civil Jurisdiction. Every such appeal lies to the Court to which appeals ordinarily

shall lie Sec. 28(2) Orders made by the Court Under Sec.25( Permt. Alimy) & Sec.26 ( Mntc. . Of. Minr. childn) are appealable, provided they are not interim orders. Appeals under Sec.28(2) shall be preferred Within 30 days from the date of decree or order. There shall be no appeal under this section ,only on the subject of

cost

Sec.28(3) No appeal under this section on the subject of costs only

Sec.28) (4) Appeal shall be preferred within a period of 90 days from the date of decree or order

Enforcement of decrees and orders ( Sec.28-A) This was inserted by 1976 Amendment Act. All Decrees and orders shall be enforced as

decrees of the court of Original Civil Jurisdiction

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