A comprehensive write up on matrimonial laws in India with legal remedies for a common man.
THE HINDU MARRIAGE ACT, 1955
The Hindu Marriage Act, 1955 came into force on May 18, 1955. It has amended and codified the law relating to marriage among Hindus. It thus codified the various aspects of the Hindu marriages and the legal issues arising out therein. The essential conditions of a valid Hindu Marriage are stated in Sections 5 of the Act and the violation thereof is made punishable under Sections 17 and 18 of the Act.
DISPUTES AND PROCEEDINGS UNDER THE HINDU MARRIAGE ACT, 1955
(1) Restitution of Conjugal Rights
(2) Nullity of Marriage
(3) Judicial Separation
(5) Maintenance pendent lite and expenses for proceedings
(6) Permanent alimony and maintenance
(1) Restitution of Conjugal Rights
Section 9 of the Hindu Marriage Act, 1955 provides for restitution of conjugal rights. It states as follows:
“When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the District Court, for restitution of conjugal rights and the Court, on being satisfied with the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.
Explanation: Where a question arises whether there has been a reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.”
Thus a decree of restitution of conjugal rights may be obtained either by the husband or by the wife, where the following conditions are satisfied
(a) one of the spouses has without reasonable excuse withdrawn from the society of the other.
(b) the court is satisfied with the truth of allegations made in the petition, and
(c) there is o legal ground why the petition should not be allowed.
The above requirements are based upon the fundamental rule of matrimonial law that the spouses are entitled to the society and consortium of each other and that all-out efforts should be made to bring back the spouse who has without reasonable cause run away from matrimonial home. Thus while granting restitution, the Court is under a duty to consider whether the respondent had a reasonable cause for leaving the petitioner. The reasonableness of the cause (or what is often termed as just cause or excuse) for withdrawing from the society of the petitioner, will have to be judged in the light of changed social conditions of the time and not on the rigid and outmoded background of the norms of the old text of Manu or other Hindu lawgivers.
A petition of restitution of conjugal rights could be defended by raising any of the grounds mentioned I clause (2) of Section 9, but now since clause (2) has been deleted by the Amending Act No. 68 of 1976, the scope of defence is considerably widened.
While granting a decree of restitution of conjugal rights, it is mandatory upon the Court to be satisfied that the petitioner is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief. The Court is, therefore, bound to take into consideration the conduct of the petitioner. If the petitioner has by his own misdeeds, compelled his spouse to desert him, he cannot be allowed to reap the advantage of his own wrong and ask for the assistance of the Court to help perpetuate his own wrongdoing. The above rule is based upon the maxims of English Equity Courts that He who comes to equity must come with clean hands and: He who seeks equity must do equity.
The doctrine of Collusion and Connivance has a place in a statute. Accordingly, Section 23(1)(c) of the Act lays down that the court shall not grant a decree of restitution if it is found that the petition has been filed by the collusion of connivance of the respondent. Unnecessary and improper delay in presenting the petition for restitution would also be fatal.
The petition for restitution of conjugal rights under Section 9 of the Act should be presented in the Court of District Judge. The Munsif Court has no jurisdiction to entertain the petition for restitution of conjugal rights. Further, the proceedings are required to be conducted in camera. A decree of restitution of conjugal rights may be executed by rules 32 and 33 of Order XXI C.P.C 1908. The decree of restitution of conjugal rights passed under Section 9 of the Hindu Marriage Act, 1955 is appealable under Section 28 of the Act. According to the provisions of Section 21-B introduced by the Amending Act No. 68 of 1976, the petition should be disposed of as expeditiously as possible, and the trial must be concluded within six months from the date of service of the notice of the petition on the respondent. It would be profitable at this stage to note that if a decree of restitution of conjugal rights is not complied with for a period of one year or more, it will be possible for either party to the marriage to obtain divorce under Section 13 (A-1)(ii) of the Hindu Marriage Act, 1955.
The provisions of Section 24 provide for Maintenance pendent lite and expenses of proceedings and of Section 25 providing for permanent alimony and maintenance, being reliefs of an ancillary nature, would apply to proceedings for restitution of conjugal rights under Section 9 of the Act.
The remedy of restitution of conjugal rights has been borrowed from English Law and has been made applicable to Hindus since the later half of the 19th century. The remedy by way of restitution of conjugal rights is a positive remedy, whereas other matrimonial remedies are negative in character. The remedies by way of judicial separation, divorce and nullity of marriage aim at the temporary or permanent dissolution of marriage, but the remedy of restitution of conjugal rights aims at reconciliation. Although of a positive nature, the remedy in actual working has assumed a negative character, like other matrimonial remedies. In many cases, this remedy has been used as stepping stone to divorce or to frustrate the payment of maintenance to the aggrieved spouse. Thus in some cases, it has been found that as soon as demand for maintenance is made by the deserted wife, the husband moves the Court for a decree of restitution of conjugal rights under Section 9 of the Act, only with a view to frustrate the payment of maintenance to the wife.
(2) Nullity of Marriage
A decree of nullity of marriage can be obtained from a court under Section 11 of the Act when the marriage is void and also under Section 12 when the marriage is voidable. Since different considerations apply to void and voidable marriages, the two have to be dealt with separately.
(a) Void Marriage
Section 11 of the Hindu Marriage Act, 1955 states:
Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto, against the other party be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of Section
5. A Hindu Marriage under the Act of 1955, is a voluntary and unequivocal union of one man with one woman solemnized by the parties to it, having gone through the customary rites and ceremonies of either party to it, as specified in Section 7 of the Act. Apart from the customary rites and ceremonies required by Section 7, no marriage shall be valid unless the conditions laid down in Section 5 of the Act have been complied with. Section 11 of the Act states that if any one of the three conditions as specified in clauses (i), (iv) and (v) of Section 5 is not complied with, the marriage shall void ab initio and can be declared as such by the Court by granting a decree of nullity. The non-fulfillment of any of the three conditions of Section 5 which would render the marriage void under Section 11 are:
(i) neither party has a spouse living at the time of marriage
(ii) the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two
(iii) the parties are not spindas of each other unless the custom of usage governing each of them permits of a marriage between the two
It will thus be seen that unless saved by a recognised custom or usage, the marriage of a Hindu within Sapinda relationship or prohibited degrees of relationship shall be void ab initio, where, therefore, the first would be treated as the first marriage for purposes of the law. It may, however, be noted that the provision of Section 11 are not retrospective and consequently a marriage solemnised before the commencement of this Act is not affected in any manner by this section. A marriage which is in contravention of any of the three conditions of Section 5, as specified in Section 11, is in law marriage at all, being void ab initio and the parties are free to treat the marriage as a nullity even without recourse to the court. But where a person intends to re-marry, he should obtain a decree of nullity from the court as a matter of abundant caution, and also with a view to avid future complications. Thus it has been stated by the Supreme Court that the necessary condition for a lawful marriage as laid down in Section 5(1)(i) is that marriage in contravention of this condition is, therefore, void is so jure i.e. void from the very inception by Section 11 of the Act. Such a marriage has to the ignored as not existing in law at all if and when such a question arises. The fact that such a marriage was earlier recognized in Hindu law and custom is of no avail because of the overriding effect of the Act.
A marriage which is void from the very inception does not alter or affect the status and position of the parties. Such marriage confers no matrimonial obligation on them, which normally arise from a valid marriage, except such rights as are expressly recognized by the Act. Thus the provisions of Section 24 relating to maintenance pendente lite and expenses of proceedings and Section 25 relating to permanent alimony and maintenance shall apply to such void marriages, and the Court is competent to pass any such order in a proceeding for a declaration of nullity of marriage under this section.
It may also be noted that under Section 11, only parties to a marriage can present a petition against each other for a decree of nullity. Hence the first wife cannot present a petition for a decree of nullity if the subsequent marriage is void due to non-fulfillment of any of the three conditions of Section 5 as specified in Section 11. But this certainly does not mean that the first wife has no remedy at law against the subsequent void marriage of her husband. She can in such circumstances, file a suit under ordinary law for the declaration that the marriage of her husband with the second wife is illegal and void under the Hindu Marriage Act, 1955. She may also take recourse to divorce under Section 13 of the Hindu Marriage Act, 1955. Besides she can also invoke Section 494 and 495 of the Indian Penal Code, 1860 against her husband for the offense or bigamy. This is clearly provided in Section 17 of the Hindu Marriage Act. Contravention of the other two conditions specified in Section 11 is also made punishable under Section 18 of the Act.
Under Section 19, a petition for nullity is to be presented in the Court of District Judge and Section 22 requires all proceedings under Section 11 to be conducted in camera (i.e. in privacy and not publicly).
(b) Voidable Marriage
Section 12 of the Hindu Marriage Act, 1955 states the circumstances in which a marriage is not void ab initio but is merely voidable. A voidable marriage can be avoided at the instance of the aggrieved spouse, and the Court can annul and set aside such marriage by issuing a decree of nullity. A significant point of difference between Section 11 dealing with void marriages and Section 12 dealing with voidable marriages is that whereas Section 11 is only prospective in operation and would in no way affect marriage performed before the commencement of the Act. Section 12 is both prospective and retrospective and would apply to a marriage whether solemnized before or after the commencement of the Act. Section 12 reads:
Voidable Marriage(1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:-
(a) that the marriage has not been consummated owing to the impotence of the respondent; or
(b) that the marriage is in contravention of the condition specified in clause (ii) of Section 5; or
(c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner [was required under Section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978 (2of 1978)] the consent of such guardian was obtained by force [or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent]; a marriagesor
(d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner.
(2) Notwithstanding anything contained in sub-section (1), no petition for annulling a marriage
(a) on the ground specified in clause (c) of sub-section (1), shall be entertained if
(i) the petition is presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered; or
(ii) the petitioner has, with his or her full consent, lived with the other party to the marriage as husband or wife after the force had ceased to operate or, as the case may be, the fraud had been discovered;
(b) on the ground specified in clause (d) of sub-section (1) shall be entertained unless the court is satisfied
(i) that the petitioner was at the time of the marriage ignorant of the facts alleged;
(ii) that the proceedings have been instituted in ta marriage solemnized before the commencement of this Act within one year of such commencement and in the case of marriages solemnized after such commencement within one year from the date of the marriage; and
(iii) that the marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the said ground.
Under the Hindu Marriage Act, 1955, a marriage performed by all the essentials laid down in Section 5 and 7 of the Act, is a valid marriage. Where there is the contravention of clauses (i), (iv) and (v) of Section 5 the marriage is void ab initio under Section 11 of the Act. Furthermore a marriage may be annulled (i.e. declared null and void) and set aside by the court at the instance of the aggrieved spouse on any of the grounds mentioned in clause (1) of Section 12. A voidable marriage remains effective and operates as valid and binding on the parties to the marriage unless the instance of the aggrieved spouse, on any of the grounds permitted by Section 12(1). As soon as the decree of nullity is passed, the marriage becomes void and of no effect. The nullity of marriage denounces the existence of the marital tie, the divorce breaks it, whereas the decree of judicial separation neither denounces nor breaks it but damages it to a considerable extent. These are all matrimonial remedies because they provide sufficient relief to the aggrieved spouse. The decree of restitution of conjugal rights is also a matrimonial remedy, but it attempts to heal the strained relation of the spouses instead of annihilating the marriage or wiping it out completely.
A marriage can be annulled and set aside by the Court by granting a decree of nullity on any of the following grounds:
Under Section 12(1)(a), if a marriage has not been consummated owing to the impotence of the other party, it can be declared void and set aside by the Court by granting a decree of nullity. Undoubtedly, one of the chief purposes of marriage is sexual intercourse between the spouses, and, therefore, the capacity of sexual intercourse must exist among the spouses at the time of marriage. It is for this reason that impotency (which is interpreted to mean incurable and permanent impotency) existing at the time of marriage due to which marriage remains unconsummated, is recognized as the first and foremost ground for getting a marriage annulled under Section 12; where, however, marriage has been consummated, and one of the spouses becomes impotent subsequently, the marriage cannot be repudiated by the other spouse under Section 12(1)(a).
The right to repudiate marriage on the ground of impotence belongs to the spouse who becomes the victim of the impotent spouse. A spouse who is himself or herself impotent cannot get the marriage annulled on the ground of impotence.
The cause of impotence male or female may be physical or mental or both. Where a wife did not have a vagina or uterus at the time of marriage, she was impotent at the time of marriage, due to which the marriage could not be consummated, and the husband can get the marriage annulled by a decree of nullity under Section 12(1)(a) of the Act. Where the capacity of normal sexual intercourse does not exist in any person, impotence can be easily inferred. Mere denial of sexual intercourse cannot be called impotence. Impotence, however, need not be necessary of a universal nature. A spouse can be impotent as against the other spouse but can be potent as against other persons.
(ii) Contravention of conditions in clause (ii) of Section 5
Under Section 12(1)(b), where marriage is performed in violation of the conditions laid down in clause (ii) of Section 5, it can be annulled by the Court at the instance of the aggrieved party. Thus where any party to marriage cannot give valid consent because of unsoundness of mind or even if capable of giving a valid consent, the party has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children or where the party has been subject to recurrent attacks of insanity or epilepsy, the marriage can be annulled at the instance of the aggrieved party by the Court under Section 12(1)(b).
(iii) Where the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner was required under Section 5 [as it stood before the Child Marriage Restraint (Amendment) Act, 1978] the consent of such guardian was obtained by fore or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent, the marriage can be annulled by the Court under Section 12(1)(c). This is subject to Section 12(2)(a).
(iv) Finally, if the respondent was at the time of marriage pregnant by some person other than the petitioner, the marriage could be annulled under Section 12(1)(d). This is subject to Section 12(2)(b). In a case before the Supreme Court, the respondent wife gave birth to a full-time mature baby within about seven months of marriage. The petitioner had no access to her before the marriage. Medical evidence was that her pregnancy was of more than one and half months at the date of the wedding. The court held that the petitioner had satisfactorily discharged the burden which lay on him. The annulment of the marriage by the trial court was accordingly upheld.
Where a decree of nullity was granted on the ground of pre-existing pregnancy, and while an appeal against the decree was still pending, one of the parties remarried, the Supreme Court held that this would not render the appeal to be infructuous. Section 15 which permits remarriage only when there is no right of appeal or the right of appeal has been exhausted or the time for appeal has expired, applies to decrees of nullity also although the words used in the section are: when a marriage is dissolved by a decree of divorce.
Under Section 19, the petition should be presented in the Court of District Judge, and all proceedings under Section 12, shall be conducted in camera. According to Section 21-B, the petition should be disposed of as expeditiously as possible, and the trial must be concluded within six months from the date of service of the notice. The provisions of Section 24 dealing with permanent alimony and maintenance shall apply to all proceedings under Section 12 as they apply under Section 11.
Void and Voidable Marriages: Distinction
1. A void marriage has not existence in the eye of law, and it is not necessary to obtain a decree of nullity from the court in respect of such marriage. A voidable marriage, on the other hand, is not void ab initio and remains a perfectly valid marriage till it is repudiated by the aggrieved spouse by a decree of nullity from the Court. Such marriage becomes void only from the date it is annulled by the decree of the Court.
2. A void marriage does not alter the status and position of and confers no rights and obligations upon the parties to such marriage. A voidable marriage remains valid and binding and continues to subsist for all purposes till it is got annulled by the Court.
3. A void marriage may be put in issue at any time, even after both the parties to it are dead. A voidable marriage cannot be impeached if one of the spouses to marriage is dead. This is because, under Section 12(1), the marriage can be repudiated by either arty to the marriage alone.
4. Section 11 of the Hindu Marriage Act, 1955 dealing with void marriage is perspective whereas Section 12 of the Act dealing with voidable marriage has been given retrospective effect also.
5. Spouses of void marriage can re-marry at any time whereas spouses of voidable marriage cannot re-marry until marriage is annulled by the Court.
6. Children born of void marriages are legitimate under section 16(1) of the Hindu Marriage Act, 1955 and those born of voidable marriages are legitimate under Section 16(2) of the Act. But in either case, the legal fiction of legitimacy is for a limited purpose. Such children under Section 16(3) can only inherit the properties of their parents i.e. father and mother and no other person.
(3) Judicial Separation
Section 10 of the Hindu Marriage Act, 1955 provides for the remedy of judicial separation. Judicial separation means severance of connection among the spouses by order of the Court. But it should not be taken to mean divorce for that also severs the connection of spouses. In judicial separation the severance of connection among the spouses is temporary, but in divorce, the severance of connection is permanent and also affects the status and position of the spouses as husband and wife. Judicial separation thus is a step midway between subsistence of marriage and complete dissolution of marriage affected by divorce. Section 10 of the Hindu Marriage Act was amended by the Marriage Laws (Amendment) Act, 1976. The amended section reads:
(1) Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition praying for a decree of judicial separation on any of the grounds specified in sub-section (1) of Section 13 and in case of a wife also on any of the grounds specified in sub-section (2) thereof, as grounds on which a petition for divorce might have been presented.
(2) Where a decree of judicial separation has been passed it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the Court may, on the application by petition of either party, and on being satisfied with the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so.
The provision of Section 10 provides a relief to the aggrieved spouse to live separately from the spouse who is guilty of the matrimonial offence, by the orders of the Court without dissolving the marriage, completely and forever. This relief has been termed as legal or judicial separation. The decree of judicial separation does not dissolve the marital bond permanently but only suspends the marital obligations for some time. The grounds for the decree of judicial separation are the same as laid down in sub-section (1) of Section 13, and in a case of the wife also on the grounds specified in sub-section (2). Section 13 provides for the grounds on which divorce may be obtained between the spouses. Prior to the amendment Section 10 had provided grounds which were not identical to those on which divorce could be obtained under Section 13 of the Act, but the amended clause has abolished the distinction and now the decree of judicial separation can be obtained on any of the grounds on which divorce can be obtained under Section 13. As such the husband or the wife, as the case may be, can claim the decree of judicial separation on the same grounds on which they may claim a decree of divorce.
The relief above of judicial separation is discretionary, and the Court is not bound to grant it merely on the existence of one or more of the grounds specified in clauses (1) and (2) of Section 13. The relief granted by the Court under Section 10 is subject to the provisions of Section 23, 23-A, 24 and 25 of the Act.
Clause (2) of Section 10 clearly states: Where a decree of judicial separation has been passed it shall no longer be compulsory and necessary for the petitioner to cohabit with the other spouse. The net result of the decree of judicial separation is that certain mutual rights and obligations arising out of the marriage become suspended and the rights and duties as provided by the decree are substituted, therefore. The judicial order only separates the fighting spouses physically for some time, but the marital relationship as husband and wife does not collapse immediately, though it may ultimately result in the dissolution of the marriage later on. It has been held by the Supreme Court that the decree of judicial separation does not terminate the marital status. Where no divorce decree is claimed after one year after the decree of judicial separation, marriage is not terminated automatically. For divorce a decree under Section 13(1-A)(i) is essential.
The decree of judicial separation provides an opportunity to the conflicting spouses for reconciliation and adjustment. If the spouses wish to continue to live peacefully again, repenting upon the misdeeds of the past and reconciling all differences, they can still live together by asking the Court to rescind the decree of judicial separation.
The idea of divorce is not much cherished among the Hindus. Thus Hindu spouses have been given a choice to elect whether they want normalisation or destruction of their relationship. This kind of option is only possible when there is a legal separation before divorce. If the spouses come to the conclusion that they have reached a point of no return and that reconciliation is no longer possible, they can, if they so desire, after complying with the conditions laid down in Section 13(1-A)(i), present a petition for dissolution of the marriage by a decree of divorce. Although the decree of judicial separation is provisional and conditional, the Court cannot impose any terms on the parties as to the nature or duration of its operation.
If cohabitation as between the parties to the marriage has been resumed for one year or upwards, after the decree of judicial separation, it would not be possible for either party to the marriage to claim relief under Section 13(1-A)(i). Cohabitation means living together as husband and wife. Sexual intercourse between the husband and the wife is not at all necessary for raising the presumption of cohabitation. If the husband and wife have begun to react as such and have resumed their status and position as such, it would be sufficient to infer cohabitation.
Judicial separation before the divorce is not always necessary, but this does not in any way minimise its utility and value. It is still desirable, where it serves a useful purpose I society. In cases where the unhappy spouses cannot wait for one year after judicial separation, the aggrieved spouse may invoke the provisions of Section 13 for dissolution of marriage.
Sub-section (2) enables the court to cancel or rescind the decree of judicial separation. No grounds are mentioned. All that is required is that the contents of the petition of the party are true and that it is reasonable and fair to grant rescission. The effect of an order of rescission is that the parties become bound to resume cohabitation. Refusal can result in a decree of restitution of conjugal rights. If this decree is also disobeyed, the other party gets a ground for divorce. There are no difficulties to be encountered when both parties apply for rescission. But when one seeks rescission and the other resists it, there must convince proof that his demand for the cohabitation of the other party is just and reasonable in the circumstances.
The Hindu Marriage Act, 1955 for the first time introduced divorce among the Hindus. Divorce is a remedy whereby the marriage is dissolved, and the matrimonial tie is broken for ever. The old Hindu Law did not recognize divorce as a right to dissolve a marriage by a decree of the competent court, except in those cases where it was permitted by some custom or usage in certain communities among Hindus. Section 13 of the Hindu Marriage Act, therefore, by permitting divorce makes a serious departure from the position prevailing under the old Hindu Law. The concept of marriage as a Sacrament or Samskar has also undergone a radical change and the marriage among Hindus is now considered to be something akin to what may be termed as a civil contract.
Section 13 has been given retrospective effect as any marriage solemnised, whether before or after the commencement of the Hindu Marriage Act, 1955, may on the petition presented by either of the spouses of the marriage, be dissolved by a decree of divorce on any of the grounds specified therein.
The grounds on which divorce can be granted under the Act are:
(i) Voluntary sexual intercourse with any person other than his or her spouse after solemnization of the marriage.
(it) The petitioner has been treated with cruelty after solemnization of marriage.
(in) The petitioner has been deserted by the other spouse for a continuous period of not less than two years immediately preceding the presentation of the petition.
(ii) The other spouse has ceased to be a Hindu by conversion to another religion.
The above four grounds are commonly referred to as adultery, cruelty, desertion, and apostasy. The expression desertion,’ according to the Explanation, means the desertion of the petitioner by the other party without reasonable cause and without the consent or against the wish of such party, and includes willful neglect of the petitioner.
Section 13(1)(v) with its Explanation in clauses (a) and (b) takes care of cases in which one spouse is suffering from mental disorder, and the other is coming in for divorce on that ground. The Supreme Court has emphasized that the degree of severity or acuteness of schizophrenia a mental disorder, should be proved to be such that the petitioner cannot reasonably be expected to live with the respondent. Merely branding a person to be schizophrenic is not enough for the grant of a divorce. Thus the mere existence of a mental disorder will not do. The context in which the ideas of unsoundness of mind and mental disorder occur in the section as grounds for dissolution of marriage require an assessment of the degree of mental disorder. Its degree must be such that the spouse seeking relief cannot reasonably be expected to live with the other. The personality disintegration that characterizes schizophrenia may be of varying degrees. Not all schizophrenics are affected by the same intensity of the disease. The burden of proof lies on the petitioner. The court found on facts that the petitioner had failed to prove his charge beyond a reasonable doubt. She became irritable because she was exposed to an environment of hostility and harassment. In a proceeding under the Lunacy Act, a Magistrate had recorded a finding that there was no abnormality in the respondent and the medical certificates were found to be of doubtful validity.
(iv) The other party has been suffering from a virulent and incurable from of leprosy. The requirement of such disease was continuing for a period not less than three years immediately preceding the presentation of the petition has been omitted by the Marriage Laws (Amendment) Act, 68 of 1976.
(v) The other party has been suffering form venereal disease in a communicable form. Here also the requirement of 3 years has been dispensed with the 1976 amendment.
(vi) the other party has renounced the world by entering any religious order.
(vii) the other party has not been heard of as being alive for seven years or more by those persons who would naturally have heard of him if he had been alive.
Any marriage solemnised whether before or after the commencement of the Hindu Marriage Act, may on the petition presented by either, the husband or the wife, be dissolved by a decree of divorce on any of the nine grounds stated above.
Further either party to marriage, whether solemnized before or after the commencement of the Hindu Marriage Act, may also present a petition for dissolution of the marriage by a decree of divorce o any of the following additional grounds:
(i) that there has been no resumption of cohabitation as between the parties to the marriage for one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or
(ii) that these has been no restitution of conjugal rights as between the parties to the marriage for one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.
Under sub-section (2) of Section 13, a wife may present a petition for the dissolution of her marriage by a decree of divorce on the ground
(i) in case of marriage solemnized before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of solemnization of the marriage of the petitioner; provided that in either case the other wife is alive at the time of the presentation of the petition.
(ii) that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality; or
(iii) that in a suit under Section 18 of the Hindu Adoption and Maintenance Act, 1956, or I a proceeding under Section 125 of the Code of Criminal Procedure, 1973, a decree or order, as maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards; or
(iv) That the marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years. This clause has been inserted by the Marriage Laws (Amendment) Act, 1976 and has been given retrospective effect.
Divorce is granted only in those cases where reconciliation is not possible and where spouses have reached a point of on return. The remedy of divorce is, therefore, more severe I effect. It is generally not favored or encouraged, and it is only allowed for grave reasons. A decree of divorce serves the connection or breaks the matrimonial tie completely and permanently, whereas the decree of judicial separation only suspends the marriage temporarily. The grounds for judicial separation and divorce are those specified in clauses (1), and (2) of Section 13 and the grant of a decree in both cases is discretionary with the Court. Under Section 13-A the Court may grant a decree of judicial separation instead of granting a decree of divorce on the petition for dissolution of marriage if the petition is founded on the grounds mentioned in clauses (ii), (vi) and (vii) of sub-section (1) of Section 13. These clauses of Section 13(1) refer to apostasy, renunciation and presumption of death, on which divorce is made available.
Divorce is a consequence of an unhappy marriage. It is based on a sound principle that if the parties to the marriage cannot live peacefully together, they must sever their connection for better or for worse. Dissolution of marriage by divorce differs from nullity of marriage in that dissolution presupposes the existence of a valid marriage whereas in the case of nullity either valid marriage does not have its existence at all in the eye of law being void ab initio, or it becomes non-existent subsequently being declared void and annulled by the Court at the instance of any of the spouses to the marriage.
The grounds on which divorce can be obtained form Court by husband or wife, are specified in Section 13. But even though any of the grounds mentioned in Section 13 exist, the Court will not normally entertain a petition for divorce unless the period of one year has elapsed since the date of marriage. This is expressly laid down in Section 14 of the Act and Section 13 has been held to be subject to Section 14.
An exception has been provided to the restriction on presentation of petition of divorce under Section 14, whereby the Courts, in accordance with the rules made by the High Court in this behalf, allow a petition for divorce to be presented even before one year has elapsed since the date of marriage on the ground that the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of respondent. In India, no criterion has been laid down for determining cases of exceptional hardship or exceptional depravity on either side.
Section 13 is subject to the provisions of Section 23. Further the petition for divorce is to be presented in the District Court within the local limits as required by Section 19 of the Act.
The petition is required to be tried as expeditiously as possible and must be concluded within six months. Divorce proceedings are to be conducted in camera. Further relief is also provided to the respondent under Section 23-A introduced by the Marriage Laws (Amendment) Act, 1976. Under this provision, the respondent is empowered to made a counter claim for a decree of judicial separation or divorce, in all those cases, in which the petitioner’s fault about adultery, cruelty or desertion is proved. Provisions of Section 24 and 25 providing for Maintenance pendent elite and expenses of proceedings and Permanent Alimony and Maintenance respectively, also apply to petitions for divorce under Sections 13 and 13-B of the Act. A decree of divorce operates from the moment it is pronounced to all intents and purposes.
[13-B. Divorce by mutual consent:- (1) subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.
(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition in not withdrawn in the meantime, the Court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass of decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.]
The provision enables the parties to a marriage, whether solemnized before or after the amendment, to seek dissolution by mutual consent. If the parties to a marriage are not able to co-exist happily and are determined to Part Company, in any case, it would be better that they are permitted to do so by mutual consent instead of forcing them to accuse each other in the court and made a public show of their private misery. Whether the parties are already prosecuting a petition for divorce under Section 13, they may convert it at any stage, including the appellate stage, into a petition by mutual consent. The section prescribes three requirements for this remedy. Firstly, the parties must have been living separately for more than a year immediately before the petition. Secondly, the parties are not able to live together. This may be due to any cause whatsoever, for example, mutual discomfort for any reason or being in employment at different places. Thirdly, they have on a voluntary basis agreed for mutual divorce. There should be no force or fraud by one upon the other or by others in the act of granting consent to a divorce.
Apart from these formal requirements, no specific ground is necessary. Even if there is some ground for their mutual estrangement, they may not resort to it and instead adopt the frictionless method of consent divorce.
The petition must be joint. Their agreement must become obvious to the court by their joint petition. This purpose cannot be served by one of them just filing a copy of the agreement.
The court will not consider the petition for six months. After the expiry of six months, the court cannot touch it suo motu. Both the parties must approach the court for a consideration of their petition. If they do not do so up to 18 months from the date of the petition, their petition abates. These provisions are mandatory.
(4) Maintenance pendente lite and expenses for proceedings
Section 24 of the Hindu Marriage Act, 1955 provides for maintenance pendente lite and expenses for proceedings under the Act. It states as under: Where in any proceeding under this Act it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expensed of the proceedings, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner’s own income and the income of the respondent, it may seem to the Court to be reasonable.
The term pendente lite literally means pending litigation. The relief under Section 24, in fact, is of an incidental and consequential nature. It can be invoked only when some substantive relief under the Act has been claimed by the party. The object of the provision is to ensure that the parties to the proceedings under the Act, do not suffer during the pendency of substantive proceedings because of their poverty. This section, thus, authorises the Court to make an order directing the respondent to pay to the petitioner the expenses of the proceedings under this Act and also to pay certain monthly sums of money during the pendency of the proceedings. But while making any such order, the Court shall have regard to the income of both the petitioner and the respondent.
The relief under this section is dependent upon some substantive proceedings under the act, and the application for maintenance and expenses should be specifically and separately moved at the time of institution of the substantive proceedings under the Act viz. petition for decree of restitution of conjugal rights, judicial separation, divorce or nullity of marriage in respect of void and voidable marriages.
When the fact of marriage is acknowledged or proved, maintenance pendente lite will follow as a matter of course. This, however, will be subject to the means of the parties to the parties to the application under Section 24.
It may be noted that if no substantive proceedings are started for relief under section 9, 10, 11, 12 or 13 or if such proceedings are started, but no application demanding maintenance pendente lite and cost of proceedings is made, no relief can be granted by the Court under this section.
The provisions of this section are similar to those of Section 36 of the Special Marriage Act, 1954, with the only difference that the relief under the 1954 Act can be claimed only by the wife against the husband, whereas under 1955 Act, both husband and wife have been made eligible to claim from each other. The Hindu Marriage Act, 1955 treats the husband and wife on equal footing as regards relief under Section 24 is concerned.
Relief cannot be refused under this section only because the needy party is already enjoying maintenance under some other provision such as Section 125 of the Criminal Procedure Code. Such grant ha, of course, to be taken into account in calculating the figure of relief to be allowed under this section.
An order or payment of maintenance pendente lite and expenses for proceedings may be enforced under the provisions of Code of Civil Procedure, 1908.
The order of the Court under Section 24 of the Act is appealable under Section 28 of the Act.
(6) Permanent alimony and maintenance
Section 25 of the Hindu Marriage Act, 1955 dealing with permanent alimony and maintenance reads as follows:
(1) Any Court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent’s own income and other property, if any, the income and other property of the applicant, the conduct of the parties and other circumstances of the case, it may seem to the Court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent.
(2) If the Court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under sub-section (1), it may, at the instance of either party, vary, modify or rescind any such order in such manner as the Court may deem just.
(3) If the Court is satisfied that the party in whose favor an order has been made under the section has remarried or, if such party is the wife, that she as to remained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside wedlock it may at the instance of the other party vary, modify or rescind any such order in such manner as the Court may deem just.
The term permanent alimony has been borrowed from English Law where it was generally used in the context of payment of the allowance to the wife by the husband, on her petition for judicial separation being granted by the Court. The allowance granted by the Court in such circumstances usually was one-third of the husband’s income. Where marriage was dissolved by divorce, the payment of allowance was termed permanent maintenance rather than permanent alimony. The payment of the allowance under Section 25 is thus available in both cases, whether it relates to judicial separation or divorce. It would also be available where marriage is declared null and void under Section 11 or Section 12 of the Act.
The term maintenance has not been defined n the Hindu Marriage Act, 1955 but has been defined in Section 3(b) of the Hindu Adoptions and Maintenance Act, 1956, which reads as under
(a) maintenance includes
(i) in all cases, provision for food, clothing, residence, education and medical attendance and treatment;
(ii) in the case of an unmarried daughter also the reasonable expenses of and incident to her marriage.
It is submitted that the definition of maintenance under the 1956 Act would equally apply concerning proceedings under Section 25 of the Hindu Marriage Act, 1955.
The provisions of Section 25 of this Act are analogous to those of Section 37 of the Special Marriage Act, 1954, subject to the difference that under the 1954 Act, wife alone can claim relief, whereas, under the 1955 Act, it can be availed of both by husband and wife against each other.
The application for maintenance under Section 25 of the Act, can be moved at the time of institution of substantive proceedings under the Act relating to restitution of conjugal rights, judicial separation, divorce or nullity of void and voidable marriages. It can also be moved at any time after the institution of substantive proceedings. There is no bar of limitation for presenting applications under Section 25. Delay, however great, in presenting the application would not frustrate the claim of maintenance. The provisions of Section 23(1)(d) ; of the Act which lays down the rule that no relief will be granted under this Act, where there has been an unnecessary and improper delay in instituting the proceedings, is not applicable to proceedings for relief under Section 25 of the Act. Section 23(1)(d) applies only to substantive proceedings relating to reliefs mentioned in Section 9, 10, 11, 12 and 13 of the Act, and not to applications under Section 25, which provides only for ancillary relief incidental to any of the substantive relief under the Act.
No relief under Section 25 shall be available, where the main petition for some substantive relief under the Act is itself dismissed. This is because the relief under this section is only ancillary and incidental.
Wide discretion has been conferred on the Court under this section for granting permanent alimony, but the discretion has to be exercised judicially and not arbitrarily. It should be based on established principles of law and also upon equitable view of all the circumstances of the case a conduct of the parties, their property, and income. The Court can direct the respondent to pay the amount of maintenance either in the gross sum or such monthly or periodical sums for a term not exceeding the life of the applicant. The payment may also be secured, if necessary, by creating a charge on the immovable property of the respondent. The assessment of the quantum of maintenance lies in the discretion of the Court. The section does not lay down any rigid rule or indicate any yardstick for determining and fixing with mathematical accuracy, the amount of maintenance, but leaves the matter to the discretion of the Court. The usual mode normally adopted by the Court is to take into account the average earnings during the previous three years, less liabilities, if any, in respect of income tax, super tax and other allied taxes, and the support and education and marriage of the children and the number of other dependants, etc. thus the question of fixing the quantum of maintenance cannot be purely mathematical. It must remain entirely at the discretion of the Court. The right to maintenance is a statutory right and cannot be contracted away by the parties. A wife cannot bind herself by agreement with her husband to forego her right to apply to the Court for maintenance in matrimonial proceedings between them. This principle, however, would not apply to an undertaking given by a party to the Court not to ask for the variation of an order for maintenance made by the Court.
Sub-section (2) of Section 25 confers wide power upon the Court to vary modify or even rescind any order for permanent alimony made under sub-section (1), in such manner as it deems fit. In exercising this power, the Courts shall have regard to the change in the circumstances of the parties.
Where a marriage is dissolved on the ground of adultery of the wife, the wife is entitled to a bare subsistence allowance or starving allowance from her husband. When she is not earning a living and is in a helpless position, her right to allowance is meant to prevent starvation.’ High Court decision have shown different trends on this point. Where a decree of divorce was passed because of the wife refusal to obey the decree of restitution of conjugal rights, Gujarat High Court held that it is a settled proposition that alimony can be granted even to a spouse who is guilty of a matrimonial offense. A matrimonial offense is only one factor to be taken into account. Its weight depends upon circumstances. Where, for example, a wife was not merely guilty of adultery gut was also actively supported in the proceedings by her paramour, the court held that this disentitled her from the right to alimony.
The order awarding or refusing to award permanent maintenance under this section is appealable under Section 28(2) of the Act.
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