LEGAL DRAFTSBVTHE HINDU MARRIAGE ACT

Update on 18th March,2010
CHAPTER I
PRELIMINARY

Short title and extent.-(1) This Act may be called THE HINDU MARRIAGE ACT, 1955.

(2) It extends to the whole of India except the State of Jammu and Kashmir, and applies also to Hindus domiciled in the territories to which this Act extends, who are outside the said territories.

Objects and Reasons:- The words “domiciled in India” have been changed to “domiciled in the territories to which this act extends” to make the position clear, so that the law will be applicable to all Hindus with such domicile, who may, for the time being, be outside the said territories-whether they be in Jammu and Kashmir or outside India altogether.

Application of Act.- (1) This Act applies-

to any person who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj;

to any person who is a Buddhist, Jaina or sikh by religion; and

to any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion, unless it is

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1. The Act has been extended to (1) Dadra and Nagar Haveli by regulation 6 of 1963 (w.e.f.1-7-1965) and (2) Pondicherry by regulation 7 of 1963 (w.e.f.1-10-1963); Sikkim by Noti.No.S.O.311(E), dated 28-4-1989 (w.e.f.1-5-1989).
     This Act has also been applied to the State of Jammu & Kashmir by the J & K. Hindu Marriage Act, 1955 (J & K. Act 8 of 1955) subject to certain modifications. Now the 1955 Act has been repealed by J & K. Act 4 of 1980. Hence, this Act does not apply to J & K.
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Proved that any such person would not have been governed by the Hindu Law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed.

Explanation.- The following persons are Hindua, Buddhists, Jainas or Sikhs by religion, as the case may be:-

any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas of Sikh by religion;

any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jaina of Sikh by religion and who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged; and

any person who is a convert or re-convert to the Hindu, Buddhist, Jaina or Sikh religion.

(2) Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall apply to the members of any Scheduled Tribe within the meaning of clause (25) of article 366 of the Constitution unless the Central Government, by notification in the Official Gazzette, otherwise directs.
(3) The expression “Hindu” in any portion of this Act shall be construed as if it included a person who, though not a Hindu by religion, is, nevertheless, a person to whom this Act applies by virtue of the provisions contained in this section.

State Amendment-[Pondicherry].- In its application to the Union territory of Pondicherry, in S.2, after sub-S.(2), insert the following sub-section, namely.-
“(2-A) Notwithstanding anything contained in sub-section (1), nothing contained in this act shall apply to the Renoncants of the Union territory of Pondicherry.”- See Regn. 7 of 1963, S.2(w.e.f.1-10-1963).

Update on 19th March,2010
COMMENTS

Where both the parties to the petition were two Tribals, who otherwise profess Hinduism, held, their marriage being out of the purview of Hi ndu Marriage Act, 1955 in light of section 2(2) of the Act were governed only by their Santal Customs and usage: Surajmani Stell Kujur V. Durge Charan Hansdah A.I.R. 2001 S.C.938.

In view of S.19 read Alongwith Ss. 1 and 2, the Hindu Marriage Act, 1955 applies to all Hindus who got married according to Hindu rites, irrespective of domicile and / or residence: Nitaben v. Dhirendra Chandrakanth Sukhla (1984) 1 D.M.C. 252; (1984-1) 25 Guj. L.R. 276.

Definitions.- In this Act, unless the context otherwise requires,-

the expression “custom” and “usage” signify any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family:

Provided that the rule is certain and not unreasonable or opposed to public policy; and
Provided further that in the case of a rule applicable only to a family it has not been discontinued by the family;

“district court” means in any area for which there is a City Civil Court, that Court, and in any other area the principal Civil Court of original jurisdiction, and includes any other Civil court which may be specified by the State Government, by notification in the Official Gazette, as having jurisdiction in respect of the matters dealt with in this Act;

Objects and Reasons.- The definition of “district court” has been modified to make it clear that where there is a City Civil Court, it is that Court alone which shall have jurisdiction under this law. By another amendment, the power to notify inferior Courts as districts courts for the purposes of this law is a sought to be vested in the State Government instead of in the Central Government, as originally proposed.

“full blood” and :half blood” – two persons are said to be related to each other by full blood when they are sescended from a common ancestor by the same wife and by half blood when they are sescended from a common ancestor but by different wives;

“uterine blood” – two persons are said to be related to each other by uterine blood when they are descended from a common ancestress but by different husbands;

   Explanation.- In clauses (c) and (d), “ancestor” includes the father and “ancestress” the mother;

“prescribed” means prescribed by rules made under this Act,

(1) “sapinda relationship” with reference t any person extends as far as the third generation (inclusive) in the line of ascent through the mother, and the fifth (inclusive) in the line of ascent through the father, the line being traced upwards in each case from the person concerned, who is to be counted as the first generation;

(ii) two persons are said to be “sapindas” of each other if one is a lineal ascendant of the other within the limits of sapinda relationship, or if they have a common lineal ascendant who is within the limits of sapinda relationship with reference to each of them;

“degrees of prohibited relationship” – two persons are said to be within the “degrees of prohibited relationship”-

(i) if one is a lineal ascendant of the other; or
      (ii) if one was the wife or husband of a lineal ascendant or descendant of the other; or
      (iii) if one was the wife of the brother or of the father’s or mother’s brother or of the grandfather’s or grandmother’s brother of the other; or
      (iv) if the two are brother and sister, uncle and niece, aunt and nephew, or children of brother and sister or of two brothers or of two sisters;

Explanation:- For the purposes of clause (f) and (g), relationship includes-

(i) relationship by half or uterine blood as well as by full blood;
      (ii) illegitimate blood relationship as well as legitimate;
      (iii) relationship be adoption as well as by blood;
and all terms of relationship in those clauses shall be construed accordingly.

Objects and reasons.- The definition of “prohibited degrees” and “sapinda relationship” are on the lines of the Rau committee’s Report. As has been pointed out by that committee, the strict rule prohibiting marriages within the limits of sapinda relationships defined in the Smritis (seven and five degrees) have been considerably relaxed by custom and the limits have, therefore, been reduced to five and three degrees, as is generally recognized now. A definition of “prohibited degrees” is also necessary because there is the greatest diversity among Hindus in different parts of India as to what are the prohibited degrees for marriage. The usual rule is that the parties should not be sapindas of each other. Not only, however, has the sapinda relationship been interpreted in different ways by different authors, but the rule itself has been subjected to modification by custom. Some kind of limit has, therefore, to be provided to prevent incestuous marriages, subject to judicially recognized customs or well-established customs which satisfy the requirements of the definition of that expression.

Joint Committee Report:- The definition of prohibited degrees in sub-clause (g) has been expanded so as to include the brother’s widow, the paternal or maternal uncle’s widow, the widow of the grand-father’s or grand-mother’s brother and the children of brother and sister. In the opinion of the Joint Committee, marriage within such relationships should be discouraged; but wherever there is a custom to the contrary, ample recognition of such custom is contained in clause.

Update to be 20th March, 2010
COMMENTS

The customs/usage is to be tested on the touchstone of the definition of custom/usage. As per reading of the definition it is to be found that there are five ingredients of the aforesaid definition, namely (i) it has been continuously and uniformly observed for a long time; (ii) it has obtained the force of law among Hindus in any local area, tribe, community, group or family; (iii) it is certain; (iv) it is not unreasonable or opposed to public policy; and (v) in case of a rule applicable only to a family, it has not been discontinued by the family: Sharad Dutt v. Kiran (1997) 2 D.M.C. 643: (1997) 69 del.L.T. 510.

Overriding effect of Act:- Save as otherwise expressly provided in this Act,-

any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provisions is made in this Act;

any other law in force immediately before the commencement of this Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in this Act.

COMMENTS

In view of sub-S. (2) of S. 29, overriding effect of S.4(a) will not operate subject to, of course, the existence of custom. Thus, where customary divorce is proved to be in existence in any caste, the custom is saved. G.Thimma Reddy v. Special Tahsildar Land Reforms, Adoni II (1993) 1 An W.R.2: (1992) 3 An. L.T.733.

CHAPTER II

HINDU MARRIAGES

Conditions for a Hindu marriage:- A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely;-

neither party has a spouse living at the time of the marriage;

at the time of the marriage, neither party-

is incapable of giving a valid consent to it in consequence of unsoundness of mind; or

though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unit for marriage and the procreation of children; or

has been subject to recurrent attacks of insanity;

the bridegroom has completed the age of (twenty-one years) and the bride, the age of (eighteen years) at the time of the marriage;

in 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;

the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two;

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2. Substituted by Act 68 of 1976, S.2, for Cl. (ii) (w.e.f.25-5-1976).
3. The words “or epilepsy” omitted by Act 39 of 1999, S.2 (w.e.f. 29-12-1999)
4. Substituted by Act 2 of 1978, S.6 and /sch., for “eighteen years” and “fifteen years”, respectively (w.e.f.1-10-1978).
5. Cl. (vi) omitted by Act 2 of 1978, S.6 and Sch. (w.e.f.1-10-1978).
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Objects and Reasons:- This section prescribed the essential requisites for a Hindu marriage, sub-clause (i) of which introduces monogamy. Sub-clauses (iv) and (v) require that the parties should not be within the degrees of prohibited relationship or be sapindas of each other unless in either case there is a custom or usage modifying that rule.

In sub-clause (vi), the amendment will ensure that until the bride attains majority, no marriage takes place without the consent of the guardian-in-marriage. Under the original Bill, consent of the guardian was required only if the girl was between the ages of 15 and 16, and once she attained her 16th year she could dispense with the consent of her guardian although she was still a minor.

COMMENTS

The concept of Hindu marriage under the Act is still a sacrament as envisaged under the Hindu Law. It cannot, therefore, be contracted by mere consent of the parties to it. A marriage to be valid under the Act must satisfy the conditions laid down in S.5 and should be solemnized as specified in S.7: Ravinder Kumar v. Kamal Kanta I.L.R (1973) Bom. 1220; 1973 Mah.L.J.310.

Hindu marriage if is to be solemnized under S.5 then both the parties of such marriage must be Hindua. As seen from sub-S, (3) of S.2 a person though not a Hindu by religion has to be regarded as Hindu and the Hindu Marriage Act applies to him because of sub-Ss. (1) and (2) of S.2 thereof. However, Hindu marriage could be solemnized in accordance with the customary rights and ceremonies of either party thereto as is envisaged in S.7; Jacintha Kamath v. K.Padmanabha Kamath A.I.R. 1992 Karn. 372 (1992) 2 Hindu L.R.114(D.B.)

A wife whose marriage has been declared null and void ipso jure under s.11 as envisaged under S.5(i), (iv), held, ceases to be a wife within the meaning of S.18 of the Hindu Adoptions and Maintenance act, 1956; she is not entitled to claim maintenance under the latter provision: Basappa v. Siddagangamma (1992) 2 Karn. L.J.357:I.L.R. (1992) Karn.1798.

The expression “incurably of sound mind”, held, cannot be so widely interpreted as to cover the feeble minded or possessors of weak or dull intellects who are capable of understanding the nature and consequences of their acts or controlling themselves and their affairs and reactions in the normal way; S.5(ii) lay down that neither party to a marriage must be incapable of giving valid consent due to unsoundness of mind or should have been suffering from mental disorder; S.12(i)(b) enables the other party to avoid the marriage contravening such a condition; S.13(1)(iii) provides for divorce where the other party has, subsequent to the marriage, developed incurable unsoundness of mind: Parvati Mishra v. Jagadananda Mishra (1995) 1 D.M.C. 77 (Madh.Pra.).

The marriages solemnized in violation of S.5(iii) remains unaffected; neither the marriage is void nor voidable: Rabindra Prasad v. Sita Devi A.I.R. 1986 Pat.128.

Guardianship in marriage:- [Omitted by the child marriage Restraint (Amendment) Act, 1978 (2 of 1978), section 6 and Schedule (w.e.f.1-10-1978).]

Ceremonies for a Hindu Marriage:- (1) A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto.

(2) Where such rites and ceremonies include the saptapadi (that is, the taking of seven steps by the bridegroom and the bride jointly before the scared fire), the marriage becomes complete and binding when the seventh step is taken.

COMMENTS

A marriage is not proved unless the essential ceremonies required for its solemnization are proved to have been performed: Kanwal ram v. Himachal Pradesh Administration A.I.R. 1966 S.C.614.
      A valid marriage can be performed between a Sikh and a Hindu by anand karaj, or by saptapadi: Aswani Kumar v. asha Rani (1992) 1 Hindu L.R. 307 (P.&.H.)

Section 7-A

State Amendments-[Pondicherry]:- In its application to the Union territory of Pondicherry, after S.7, insert the following section, namely:-
“7-A. Special provision regarding suyamariythai and seethiruththa marriages.- (1) This section shall apply to any marriage between any two Hindus, whether called suyamariythai marriage or seethiruththa marriage or by any other name, solemnized in the presence of relatives, friends or other persons-

by each party to the marriage declaring in any language (which is understood by the parties and by at least two persons in whose presence the marriage is solemnized), that each takes the other to be his wife or, as the case may be, her husband; or

by each party to the marriage garlanding the other or putting a ring upon any finger of the other; or

by the tying of the thali.

(2)(a) Notwithstanding anything contained in section 7, but subject to the other provisions of this Act, all marriages to which the section applies solemnized after the commencement of the Hindu Marriage (Pondicherry Amendment) Act, 1971, shall be good and valid in law.

(b) Notwithstanding anything contained in section 7 or in any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of the Hindu Marriage (Pondicherry Amendment) Act, 1971, or in any other in force immediately before such commencement or in any judgement, decree or order of any Court, but subject to sub-section (3), all marriages to which this section applies solemnized at any time before such commencement shall be deemed to have been, with effect on and from the date of the solemnization of each such marriage respectively, good and valid in law.

(3) Nothing contained in this section shall be deemed to-

render valid any marriage referred to in clause (b) of sub-section (2), if before the commencement of the Hindu Marriage (Pondicherry Amendment) act, 1971,-

(i) such marriage has been dissolved under any custom or law; or
(ii) the woman who was a party to such marriage has, whether during or after the life of the other party thereto, lawfully married another, or

render valid a marriage between any two Hindus solemnized at any time before such commencement, if such marriage was valid at that time; or

render valid a marriage between any two Hindus solemnized at any time before such commencement, if such marriage was valid at that time on any ground other than that it was not solemnized in accordance with the customary rites and ceremonies of either party thereto:

Provided that nothing contained in the sub-section shall render any person liable to any punishment whatsoever by reason of anything done or omitted to be done by him before such commencement.

(4) Any child of the parties to a marriage referred to in clause (b) of sub-section (2) born of such marriage shall be deemed to their legitimate child:

            Provided that in case falling under sub-clause (i) or, sub-clause(ii) of clause (a) of sub-section (3), such child was begotten before the date of the dissolution of the marriage or, as the case may be, before the date of the second of the marriages referred to in the said sub-clause (ii)-Pondicherry Act 14 of 1971, S.2 (w.e.f.9-7-1971).

[Tamil Nadu]:- In its application to the State of Tamil Nadu, after S.7, insert the following section, namely:-

“7-A. Special provision regarding suyamariythai and seethiruththa marriages.- (1) This section shall apply to any marriage between any two Hindus, whether called suyamariythai marriage or seethiruththa marriage or by any other name, solemnized in the presence of relatives, friends or other persons-
(a) by each party to the marriage declaring in any language (which is understood by the parties and by at least two persons in whose presence the marriage is solemnized), that each takes the other to be his wife or, as the case may be, her husband; or

(b) by each party to the marriage garlanding the other or putting a ring upon any finger of the other; or

( c )by the tying of the thali.

(2)(a) Notwithstanding anything contained in section 7, but subject to the other provisions of this Act, all marriages to which the section applies solemnized after the commencement of the Hindu Marriage (Madras Amendment) Act, 1967, shall be good and valid in law.

(b) Notwithstanding anything contained in section 7 or in any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of the Hindu Marriage (Madras Amendment) Act, 1967, or in any other in force immediately before such commencement or in any judgement, decree or order of any Court, but subject to sub-section (3), all marriages to which this section applies solemnized at any time before such commencement shall be deemed to have been, with effect on and from the date of the solemnization of each such marriage respectively, good and valid in law.

(3) Nothing contained in this section shall be deemed to-

render valid any marriage referred to in clause (b) of sub-section (2), if before the commencement of the Hindu Marriage (Madras Amendment) act, 1967,-

(i) such marriage has been dissolved under any custom or law; or
(ii) the woman who was a party to such marriage has, whether during or after the life of the other party thereto, lawfully married another, or

render valid a marriage between any two Hindus solemnized at any time before such commencement, if such marriage was valid at that time; or

render valid a marriage between any two Hindus solemnized at any time before such commencement, if such marriage was valid at that time on any ground other than that it was not solemnized in accordance with the customary rites and ceremonies of either party thereto:

Provided that nothing contained in the sub-section shall render any person liable to any punishment whatsoever by reason of anything done or omitted to be done by him before such commencement.

(4) Any child of the parties to a marriage referred to in clause (b) of sub-section (2) born of such marriage shall be deemed to their legitimate child:

            Provided that in case falling under sub-clause (i) or, sub-clause (ii) of clause (a) of sub-section (3), such child was begotten before the date of the dissolution of the marriage or, as the case may be, before the date of the second of the marriages referred to in the said sub-clause (ii)-Pondicherry Act 21 of 1967, S.2 (w.e.f.20-01-1968).

Registration of Hindu marriages:- (1) For the purpose of facilitating the proof of Hindu marriages, the State Government may make rules providing that the parties to any such marriage may have the particulars relating to their marriage entered in such manner and subject to such conditions as may be prescribed in a Hindu Marriage Register kept for the purpose.

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6. see the Hindu Marriage (Mysore) Rules, 1966, the Hindu Marriage Registration (Tamil Nadu) Rules, 1967; the Madhya Pradesh Hindu Marriage (Registration) Rules, 1956; the Pondicherry Hindu Marriage (Registration) Rules, 1969 and the Hindu Marriage Registration (Sikkim) Rules, 1991.
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(2) Notwithstanding anything contained in sub-section (1), the State Government may, if it is of opinion that it is necessary or expedient so to do, provide that the entering of the particulars referred to in sub-section (1) shall be compulsory in the State or in any part thereof, whether in all cases or in such cases as may be specified, and where any such direction has been issued, any person contravening any rule made in this behalf shall be punishable with fine which may extend to twenty-five rupees.

(3) All rules made under this section shall be laid before the State Legislature, as soon as may be, after they are made.

(4) The Hindu Marriage Register shall at all reasonable times be open for inspection, and shall be admissible as evidence of the statements therein contained and certified extracts therefrom shall, on application, be given by the Registrar on payment of the prescribed fee.

(5) Notwithstanding anything contained in this section, the validity of any Hindu marriage shall in no way be affected by the omission to make the entry.

COMMENTS

Merely because a marriage between the parties has been registered under S.8, held, that does not ipso facto imply the existence of a complete and lawful marriage between the parties: Krishan Paul v. Ashok Kumar Pal 1982 Hindu L.R.478: (1981-1982) 86 Cal.W.N.1088.

CHAPTER III
RESTITUTION OF CONJUGAL RIGHTS AND JUDICIAL SEPARATION

Restitution of conjugal rights:- 7[*] 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 of 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.

8[Explanation:- Where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.]
9[***]

Objects and Reasons-Clause 3:- Sub-clause (a) seeks to insert a new Explanation in sub-section (1) of section 9 to clarify that the burden of proving reasonable excuse for withdrawing from the society shall be on the person who has withdrawn from the society of other.

Sub-clause (b) seeks to omit sub-section (2) of section 9 as it has the unintended effect of restricting the scope of defense of reasonable excuse available to the respondent.

COMMENTS

S.9 is not violative of Art. 19(1)(g) of the Constitution: Sumitra Devi v. Narender Singh (1993-1) 103 Punj.L.R.422(F.B.).

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7. The brackets and figure “(1)” omitted by Act 68 of 1976, S.3 (w.e.f.27-5-1976).
8. Added by Act 68 of 1976, S.3 (w.e.f.27-5-1976).
9. Sub-S. (2) Omitted by Act 68 of 1976, S.3(w.e.f.27-5-1976).
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When the marriage is not one under the Hindu marriage Act, S.9 of the Act has no application: Chitralekha Shibu Kunju v. Shibu Kunju (1998) 2 D.M.C. 454 (Born) (D.B.).

The words “reasonable excuse” should be understood in their ordinary meaning. It would be sufficient if the court is satisfied that there was reasonable cause for the objecting spouse to withdraw from the society of the petitioning spouse: Krishnamurthy v. Shymanthakamani (1976) 2 Karn.L.J. 361:1977 Hindu L.R.163 (D.B.).
When a petition under S.9 of the Hindu Marriage Act, 1955 is pending before the Family Court, S.24 of the 1955 Act can be invoked automatically for grant of interim maintenance, it is not necessary that there should be a separate provision for this purpose in the Family Courts Act, 1984: Vedantham v. Virmala (1990-1) 105 Mad.L.W.580: (1991)2 Hindu L.R.608.

The execution proceedings for a decree under S.9 conceives of only one contingency that if the decree is not obeyed, then the property of the opposite party can be attached; no force can be used to get the lady to the conjugal house: Vijay Kumar v. Neelam Rani A.I.R.2004 Raj. 256.

Judicial separation:- 10[(1) Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition praying fr a decree for judicial separation on any of the grounds specified in sub-section (1) of section 13, and in the 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 for 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 of the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so.

Objects and reasons:- Section 10 deals with judicial separation and the main consequences which flow from a decree for judicial separation. A decree for judicial separation does not have the effect of terminating the marriage.

Joint Committee Report:-In considering this and the following clauses, the Joint Committee have taken into account the language employed and the scheme adopted in the Special Marriage Act, 1954, recently passed by the Parliament. In view, however, of the fact that Hindu Law has so far recognized polygamy, the Joint Committee feel that the approach to the problems of judicial separation and divorce need not necessarily be the same in both the cases and that it is neither necessary nor desirable in the present case that grounds for judicial separation and grounds for divorce should be identical as in the Special Marriage Act, 1954. Moreover, having regard to the high ideals which the Hindu Community has always lived up to, divorce should not be made easy and the law should be so framed as to provide the maximum opportunities for mutual adjustment. The scheme of this Bill is, therefore, slightly different. Apart from the changes in the language employed, the major changes made in clause 10 are,-

“cruelty” is now a self-contained definition;

One act of infidelity to the marriage tie now furnishes a ground for judicial separation instead of adultery as proposed in the original Bill; and

The definition of “desertion” has been widened so as expressly to include willful neglect of the respondent.

COMMENTS

Judicial separation does not put an end to the marital status of the party: M.Narasimha Reddy v. M.Boosamma A.I.R. 1976. Andh. Pra. 77 (D.B.).
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10. Substituted by Act 68 of 1976, S.4, for sub-S. (1) (w.e.f.27-5-1976).
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If the Court comes to the conclusion that there are sufficient grounds to grant judicial separation, it shall grant judicial separation. If it finds that the grounds are not sufficient to grant judicial separation, it has to dismiss the petition for judicial separation. It is not legal for any Court to grant a decree for judicial separation only for a period of nine months or for any specified period: P.Kalyanasundaram v. K.Paquialatchamy A.I.R.2003 Mad.43 (D.B.).

S. 13-A contemplates giving an alternative relief only when the grounds mentioned in S.10 exist. Thus, where none of the grounds alleged for obtaining divorce had been established, held, no decree for judicial separation could be granted: Manthena Siromani v. M.Venkateswara Raju (1988) 2 Hindu L.R. 209 (Andh.Pra.) (D.B.).

CHAPTER IV
NULLITY OF MARRIAGE AND DIVORCE

Void marriages:- Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto, 11[against the other party], be so declared by a decree of nullity if it contravenes any one of the conditions specified I clauses (i), (iv) and (v) of section 5.

Objects and reasons:- Section 11 and 12 deal with cases where a marriage is null and void and cases where a marriage is voidable at the opinion of either party to the marriage. Until so avoided a voidable marriage should be regarded as good for all purposes. Where a marriage is a bigamous marriage or contravenes the rule relating to prohibited degrees, the marriage is regarded as null and void from the very beginning. In other cases the marriage is rendered voidable at the option of the parties as in many other systems of law.

COMMENTS

The marriage covered by S.11 are void ipso jure, that is, void from the very inception and have to be ignored as not existing in law at all if and when such a question arises. Although the section permits a formal declaration to be made on the presentation of a petition, it is not essential to obtain in advance such a formal declaration from a Court in a proceeding specifically commenced for the purpose. A marriage in contravention of S.11 must be treated as null and void from its very inception. Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav A.I.R. 1988 S.C.644.

A wife whose marriage has been declared null and void ipso jure under S.11 an envisaged under Cl. (i), (iv) of Cl. (v) of S.5, held,ceases to be a wife within the meaning of S.18 of the Hindu Adoption and Maintenance Act, 1956; she is not entitled to claim maintenance under the latter provision: Basappa v. siddagangamma (1992) 2 Karn.L.J. 357: I.L.R. (1992) Karn. 1798.

Voidable marriages:- (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:-

12[(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 guardian in marriage of the petitioner 13[was required under section 5, as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978], the consent of such guardian was obtained by force
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11. Inserted by Act 68 of 1976, S.5 (w.e.f.27-5-1976)
12. Substituted by Act 68 of 1976, S.6 for Cl. (a) (w.e.f.27-5-1976).
13. Substituted by Act 2 of 1978, S.6 and Sch., for “is required under section 5” (w.e.f.1-10-1978).
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14[or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent]; or

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 the case of a 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 marriage; and
(iii) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of 15 [the said ground].

COMMENTS

The bar contained in S.14 regarding filing of petition before one year from date of marriage does not apply to the petition for annulment of marriage: Smritikana Bag v. Dilip Kumar Bag A.I.R. 1982 Cal.547.

“Impotent” means a practical impossibility to perform sexual act in complete and perfect manner. Full and complete sexual penetration is an essential ingredient for ordinary and complete intercourse. However, the degree of sexual satisfaction obtained by the parties is irrelevant: Gayatri Bai v. Pradeep Kumar chaurasia (1998) 2 D.M.C. 211 (Madh.Pra.).
The word “fraud” within the meaning of S.12(1)(c) is not each and every misrepresentation or concealment, which may be fraudulent. The word “fraud” in the section has a limited meaning. In the section “fraud” refers to and refers only to the consent of the petitioner to the solemnization of the marriage. Therefore, (1) fraud within the meaning of S.12(1)(c) means either (a) deception as to the identity of the other party to the marriage, or (b) deception as to the nature of the ceremonies being performed; (2) where consent is given with the intention to marry the other party and with the knowledge that what is being solemnized is marriage, an objection to the validity of the marriage on the ground of any fraudulent misrepresentation or concealment is not tenable. Thus, mere concealment of the fact that the husband had been once married to another woman could not be a ground for annulment of marriage under S.12(1)(c): Rajaram Vishwakarma v. Deepabai A.I.R. 1974 Madh. Pra. 52.

Divorce:- (1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party-

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14. Substituted by Act 68 of 1976, S.6, for “or fraud” (w.e.f.27-5-1976).
15. Substituted by Act 68 of 1976, S.6, for “the grounds for a decree” (w.e.f.27-5-1976).
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[(i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or
(i-a) has, after the solemnization of the marriage, treated the petitioner with cruelty; or
(i-b) has deserted the petitioner for a continuo’s period of not less than two years immediately preceding the presentation of the petition; or]
(ii) has ceased to be a Hindu by conversion to another religion; or
(iii) has been incurably of unsound mine, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.
Explanation:- In this clause,-

the expression “mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic, disorder or any other disorder or disability of mind and includes schizophrenia;

the expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment; or]

(iv) has been suffering from a virulent and incurable form of leprosy; or
(v) has been suffering from venereal disease in a communicable form; or
(vi) has renounced the world by entering any religious order; or
(vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive;
[Explanation.- In this sub-section, the expression “desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the willful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.]

[1-A) Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground-
(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of [one year] or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or
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16. Substituted by Act 68 of 1976, S.7, for Cl. (i) (w.e.f.27-5-1976)
17. Substituted by Act 68 of 1976, S.7, for Cl. (iii) (w.e.f.27-5-1976)
18. The words “for a period of not less than three years immediately preceding the presentation of the petition” omitted by Act 68 of 1976, S.7 (w.e.f.27-5-1976).
19. The word “or” omitted by Act 44 of 1964, S.2.
20. Inserted by Act 68 of 1976, S.7 (w.e.f.27-5-1976).
21. Cls. (viii) and (ix) omitted by Act 44 of 1964, S.2.
22. Inserted by Act 44 of 1964, S.2.
23. Substituted by Act 68 of 1976, S.7, for “two years” (w.e.f.27-5-1976).
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(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of [one year] or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.]
(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground,-
(i) in the case of any 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 the solemnization of the marriage of the petitioner:
            Provide that in either case the other wife is alive at the time of the presentation of the petition; or
            (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 (78 of 1956), or in a proceeding under section 125 of the code of Criminal Procedure, 1973 (2 of 1974) (or under the corresponding section 488 of the Code of the Criminal Procedure, 1898 (5 of 1898)), a decree or order, as the case may be, has been passed against the husband awarding 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 her 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.
            Explanation.- This clause applies whether the marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976.]
            Object and Reasons:- Section 13 specifies the grounds on which a decree for divorce may be obtained by either party to the marriage. In particular, a decree of divorce may be obtained if there is no reconciliation between the parties within a specified period after the passing of a decree for judicial separation or if a decree for restitution of conjugal rights is not complied with within a special period.
            Section 13(1)(ii), read with section 23(1)(a).- A change in religion is not inconsistent with the continuance of conjugal love and it should, therefore, not be permissible for a party to the marriage to get a divorce by changing his or her religion. The right to get a divorce under this law is, therefore, given to the party who continues to be a Hindu….. a somewhat similar right is given to a person changing his religion to Christianity under the converts’ Marriage Dissolution Act, 1866.

            State Amendment-[Uttar Pradesh].- In its application to Hindus domiciled in Uttar Pradesh and also when either party to the marriage was not at the time of marriage a Hindu domiciled in Uttar Pradesh, in S.13-
            (i) in sub-S. (1), after Cl. (i), insert (and shall be deemed always to have been inserted) the following, namely:-
            “(1-a) has persistently or repeatedly treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party, or”, and
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24. Substituted by Act 68 of 1976, S.7, for “two years” (w.e.f.27-5-1976).
25. Substituted by Act 68 of 1976, S.7, for “bestiality” (w.e.f.27-5-1976).
26. Inserted by Act 68 of 1976, S.7 (w.e.f.27-5-1976).
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(ii) for Cl. (viii) (since repealed,) substitute (and shall be deemed always to have been so substituted) the following, namely:-
“(viii) has not resumed cohabitation after the passing of a decree for judicial separation against that party and-

a period of two years has elapsed since the passing of such decree, or

the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of other party; or”- Uttar Pradesh Act 13 of 1962, S.2 (w.e.f.7-11-1962).

COMMENTS

Irretrievable break down of marriage is not a ground recognized by law for grant of decree of divorce: Sudhir Singhal v. Neeta Singhal A.I.R.2001 Del.116.
The expression “cruelty” as envisaged under S.13 clearly admits in its ambit and scope such acts which may even cause mental agony to aggrieved party. Cruelty may result where the complaining spouse establishes his being treated with cruelty whether physical, mental, social or otherwise but the acts complained of must be more serious than ordinary wear and tear of marriage falling in the category of conscious acts cruel in nature as that is the underlying requirement of the provision: Neelu Kohli v. Naveen Kohli A.I.R.2004 All.1.
Mental cruelty in S.13(1)(i-a) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. V.Bhagat v. D.Bhagat (Mrs.) A.I.R. 1994 S.C.710: (1994) S.C.C. 337; Neelu Kohli v. Naveen Kohli A.I.R.2004 All.1.
Leveling of disgusting allegations of unchastity and indecent familiarity of wife with different persons outside wedlock and her having extra-marital relations with other persons, themselves will amount to cruelty: Jai Dayal v. Shakunthal Devi A.I.R.2004 Del.39.
The fact that wife was pregnant from some other person at the time of marriage would amount to cruelty and mental agony to the husband: Pawan Kumar v. Mukesh Kumari A.I.R. 2001 Raj.1.
A Hindu marriage solemnized under the Act can only be dissolved on any of the grounds specified under the Act: Sarla Mudgal President, Kalyani v. Union of India 1995 D.N.J 252: (1995) 2 D.M.C. 351 (S.C.).
Grounds of divorce are to be construed liberally: Reynold Rajamani v. Union of India A.I.R. 1982 S.C. 1261: (1982) 2 S.C.C. 474.
After the amendment of S.13 by the Marriage Laws (Amendment) Act, 1976, the proof of only one instance of voluntary sexual intercourse by the other party with any other person except his or her spouse, is enough for a decree of dissolution of marriage: Sanjukta Padhan v. Laxminarayan Padhan A.I.R. 1991 Ori.39; Rajendra Agrawal v. Sharda Devi A.I.R.1993 Madh. Pra. 142; Gali Kondaiah v. Gali Ankamma A.I.R. 1988 Andh. Pra. 68 (D.B.).
The burden to prove the adultery is on the peson who seeks dissolution of marriage on the ground of adultery: A.Hemamalini v. A.Pankajanaban (1995) 1 D.M.C. 258: (1994) 2 Hindu L.R. 671 (Andh. Pra.) (D.B.).
It is quite possible that a particular conduct may amount to “cruelty” in one case but the same conduct necessarily may not amount to “cruelty” due to change of various factors, in different set of circumstances. Therefore, it is essential for the petitioner, who claims relief, to prove that a particular/part of conduct or behaviour resulted in “cruelty” to him. No prior assumptions can be made in such matters: Naval Kishore Somani v. Poonam Somani A.I.R. 1999 Andh. Pra. 1 (D.B.).
Even a single act of violence which is of grievous and inexcusable in nature satisfies the test of cruelty: Mohanan v. Thankamani (1995) 1 D.M.C. 327; (1995) 2 Hindu L.R. 174 (Ker.) (D.B.); Sulekha Bairagi v. Kamala Kanta Bairagi A.I.R. 1980 Cal. 370 (D.B.).
“cruelty” under the Act can be both mental and physical. The degree of “cruelty” necessary to claim a matrimonial relief has not been defined under the Act. It depends from case to case and the Legislature has also refrained from giving a comprehensive definition of the expression that may cover all cases. In order to claim divorce on the ground of cruelty, it may be shown that the other spouse has treated the complaining spouse with cruelty which may be physical mental: Praveen Mehta v. Inderjeet Mehta (2002) 5 S.S.C.C. 706; A.I.R.2002 S.C.2582. Besides mental cruelty is a state of mind and feeling of one of the spouses due to the behaviour or behavioural pattern of the other. It is a matter of inference to be drawn from the facts and circumstances of the case and proper approach requires the assessment of the cumulative effect of the attending facts, and circumstances as established from the facts and circumstances on record. Physical cruelty on the other hand consists of such acts which endanger a physical health of one of the parties to the marriage and includes the inflicting bodily injury or giving cause for such injuries: Savitri Pandey v. Preme Chandra (2002) 2 S.C.C. 73: A.I.R. 2002 S.C. 591; Neelam Kumari v. Gurnam Singh A.I.R. 2004 P. & H.9.
The decisions of various Courts in India including the Supreme Court lead to the conclusion that a decree for divorce in terms of S.13(1)(iii) of the Act can be granted in the event the unsoundness of mind is held to be not curable. A party may behave strangely or oddly inappropriate and be progressive in deterioration in the level of work which may lead to a conclusion that he or she suffers from an illness of slow growing developing over the years. The disease, however, must be of such a kind that the other spouse cannot reasonably be expected to live with him or her. A few strong instances indicating short temper and somewhat erratic behaviour on the part of the spouse may not amount to his/her suffering continuously or intermittently from mental disorder: Sharda v. Dharmapal (2003) 4 S.C.C.493.
A matrimonial Court has the power to order a person to undergo medical test. Passing of such an order by the Court would not be in violation of the right to personal liberty under Art. 21. However, the court should exercise such a power if the applicant has a strong prima facie case ands there is sufficient material before the court. If despite the order of the Court the respondent refuses to submit himself to medical examination, the Court will be entitled to draw and adverse inference against him: Sharda v. Dharmapal (2003) 4 S.C.C.493.
Desertion implies not only the factum of separation but also the intention to separate permanently and put an end to the matrimonial relationship and cohabitation; there can be no desertion without animus deserendi or if the husband himself is responsible for the wife living away from the husband or if the wife has sufficient reason to live away from the husband: Saroja v. Arumugam (1989-1) 103 Mad. L.W.116(1989) 1 Hindu L.R.528.
The onus of proving that the other spouse is of incurably unsound mind or is suffering from mental disorder, held, lies on the party alleging it; it must be proved by cogent and clear evidence: Parvati Mishra v. Jagadananda (1995) 1 D.M.C. 77 (Madh.Pra.).
For the success of a petition under S.13(2)(iv), the petitioner has to prove three things; (a) that her marriage was solemnized before she attained the age of 15 years; (b) that she repudiated the marriage after attaining the age of 18 years; and (c) that she repudiated the marriage before attaining the age of 18 years. Whether the marriage was consummated or not is immaterial and beside the point. It is also immaterial whether the repudiation was made before the Marriage Laws (Amendment) Act, 1976 came into force or thereafter. Even if the repudiation was made before coming into force of the Amending Act, the wife can take advantage of this provision in such a petition and can be granted a decree for divorce under S.13(2)(iv) of the Act: Raju v. Ratan (1988) 2 Hindu L.R.257(Raj.).

[13-A. Alternate relief in divorce proceedings.- In any proceeding under this Act, on a petition for dissolution of marriage by a decree of divorce, except in so far as the petition is founded on the grounds mentioned in clauses (ii), (vi) and (vii) of sub-section (1) of section 13, the Court may, if it considers it just so to do having regard to the circumstances of the case, pass instead a decree for judicial separation.

COMMENTS

The Court is not competent to grant the relief of judicial separation under S.13-A, when the petitioner had prayed for relief under S.13(1)(ia) and (ib) but failed to prove: Vijayalakshmi Balasubramanian v. R.Balasubramaniam (1998) 1 D.M.C. 210 (Mad.) (D.B.).
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27. Ss.13-A and 13-B inserted by Act 68 of 1976, S.8 (w.e.f. 27-5-1976).
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13-B. Divorce Mutual consent.- (1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district Court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.
(2) On the motion of both the parties made not earlier that 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 is 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 a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.]

COMMENTS

            A petition under S.13-B is not entertainable by the Appellate Court; it has to be filed in the original Court: N.Vijaya Raghavan v. K.Sharda A.I.R. 2001 Karn.300 (D.B.).
            No decree can be passed otherwise than under section 13-B for divorce on the basis of compromise: Munesh v. Anasuyamma A.I.R. 2001 Karn.355 (D.B.).
            A decree of divorce by mutual consent can be granted when and only when the Court is satisfied about (i) marriage having been solemnized between the parties; (ii) the parties have been living separately for more than a year before presenting the petition; (iii) they were not able to live together at the time of presenting the petition and continue to live apart; (iv) they had mutually agreed to dissolve the marriage before or at the time the petition was presented; and (v) the averments made in the petition are true and conditions under S.23 are fulfilled. Thus, the Court amongst other factors has to exclude the possibility of the consent of other party being obtained by force, fraud or undue influence, and also see through if there is any collusion: Krishna Khetarpal v. Satish Lal A.I.R. 1987 P. & H.19].
            There cannot be any written agreement between husband and wife for divorce contrary to the provisions contained in Hindu Marriage Act, both spouses being Hindus: Malayaiah v. G.S.Vasatha Lakshmi (1997) 2 D.M.C. 88 (Karn).

14. No petition for divorce to be presented within one year of marriage:- (1) Notwithstanding anything contained in this Act, it shall not be competent for any Court to entertain any petition for dissolution of a marriage by a decree of divorce, {unless at the date of the presentation of the petition one year has elapsed} since the date of the marriage:
            Provided tat the Court may, upon application made to it in accordance with such rules as may be made by the High Court in that behalf, allow a petition to be presented {before one year has elapsed} since the date of the marriage on the ground that the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent, but, if it appears to the Court at the hearing of the petition that the petitioner obtained leave to present the petition by any misrepresentation or concealment of the nature of the case, the Court may, if it pronounces a decree, do so subject to the condition that the decree shall not have effect until after
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28. Substituted by Act 68 of 1976, S.9, for “unless at the date of the presentation of the petition three years have elapsed” (w.e.f.27-5-1976).
29. Substituted by Act 68 of 1976, S.9, for “before three years have elapsed” (w.e.f.27-5-1976).
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the [expiry of one year] from the date of the marriage or may dismiss the petition without prejudice to any petition which may be brought after the [expiration of the said one year] upon the same or substantially the same facts as those alleged in support of the petition so dismissed.
(2) In disposing of any application under this section for leave to present a petition for divorce before the [expiration of one year] from the date of the marriage, 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].

15. Divorced persons when may marry again.- When a marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree or, if there is such a right of appeal, the time for appealing has expired without an appeal having been presented or an appeal has been presented but has been dismissed, it shall be lawful for either party to the marriage to marry again:

16. Legitimacy of children of void and viodable marriages:- (1) Notwithstanding that a marriage is null and void under section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) act, 1976, and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act.
(2) Where a decree of nullity is granted in respect of a voidable marriage under section 12, any child begotten or conceived before the decree is made, who would have been the legitimate child of the parties to the marriage if at the date of the decree it had been dissolved instead of being annulled, shall be deemed to be their legitimate child notwithstanding the decree of nullity.
(3) Nothing contained in sub-section (1) or sub-section (2) shall be construed as conferring upon any child of a marriage which is null and void or which is annulled by a decree of nullity under section, 12, any rights in or to the property of any person, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents.]

COMMENTS

S.16 Intends to bring about social reforms, conferment of social status of legitimacy on a group of innocent children, otherwise treated as bastards, is its prime object: Parayan Kandiyal Eravath Kanapravan Kalliani Amma v. K.Devi J.T. (1996) 4 S.C. 656.
            Children born of viod or viodable marriage, held, not entitled to claim inheritance in ancestral coparcenary property but entitled to claim inheritance in property of parents: Jinia Keotin v. Sitaram Manjhi (2003) 1 S.C.C. 730.
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30. Substituted by Act 68 of 1976, S.9, for “expiry of three years” (w.e.f.27-5-1976).
31. Substituted by Act 68 of 1976, S.9, for “expiration of the said three years” (w.e.f.27-5-1976).
32. Substituted by Act 68 of 1976, S.9, for “expiration of three years” (w.e.f.27-5-1976).
33. Substituted by Act 68 of 1976, S.9, for “said three years” (w.e.f.27-5-1976).
34. Proviso omitted by Act 68 of 1976, S.10 (w.e.f.27-5-1976).
35. Substituted by Act 68 of 1976, S.11 (w.e.f.27-5-1976).
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17. Punishment of bigamy:- Any marriage between two Hindus solemnized after the commencement of this Act is void if at the date of such marriage either party had a husband or wife living; and the provisions of sections 494 and 495 of the Indian Penal code (45 of 1860) shall apply accordingly.

COMMENTS

S.17 of the Hindu Marriage Act which makes bigamy punishable is not ultra vires Art 21 of the Constitution: Chander Pal v. Kehsv Deo (1989) 2 Hindu L.R.11 (All.) (D.B.).

18. Punishment for contravention of certain other conditions for a Hindu marriage:- Every person who procures a marriage of himself or herself to be solemnized under this Act in contravention of the conditions specified in clauses (iii), (iv), [and (v) of section 5 shall be punishable-
            (a) in the case of contravention of the condition specified in clause (iii) of section 5, with rigorous imprisonment which may extend to two years or with fine which may extend to one lakh rupees, or with both;]
            (b) in the case of contravention of the condition specified in clause (iv) or clause (v) of section 5, with simple imprisonment which may extend to one month, or with fine which may extend to one thousand rupees, or with both;

            Joint Committee Report:- The Joint Committee are of the opinion that it is desirable to provide for the punishment of persons contravening the other important conditions for a Hindu marriage specified in clause 5 (section 5). Clause 17 (section 17) has already made provision for the punishment of bigamous marriages and this clause seeks to punish persons who contravene the conditions specified in sub-clauses (iii), (iv), (v) and (vi) (now omitted) of clause 5. In framing the punishment the Joint Committee have had in mind the gravity of the offence in each case and the punishment prescribed for certain similar offences in the Child Marriage Restraint Act, 1929.

CHAPTER V
JURISDICTION AND PROCEDURE

[19. Court to which petition shall be presented:- Every petition under this Act shall be presented to the district Court within the local limits of whose ordinary original civil jurisdiction-
            (i) the marriage was solemnized, or
            (ii) the respondent, at the time of the presentation of the petition, resides, or
            (iii) the parties to the marriage last resided together, or
            [(iii-a) in case the wife is the petitioner, where she is residing on the date of presentation of the petition, or]
            (iv) the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is, at that time, residing outside the territories to which this Act extends, or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he were alive.]
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36. Substituted by Act 2 of 1978, S.6 and Sch., for “(v) and (vi)” (w.e.f.1-10-1978).
36a. Substituted by the Prohibition of Child Marriage Act, 2006 (6 of 2007), S.20, for Cl. (a). Prior to its substitution, Cl. (a) in the case of a contravention of the condition specified in clause (iii) of section 5, with simple imprisonment which may extend to fifteen days, or with fine which may extend to one thousand rupees, or with both;”.
37. The word “and” omitted by Act 2 of 1978, S.6 and Sch. (w.e.f.1-10-1978).
38. Cl.(c) omitted by Act 2 of 1978, S.6 and Sch. (w.e.f.1-10-1978).
39. Substituted by Act 68 of 1976, S.12, for S.19 (w.e.f.27-5-1976).
40. Inserted by Act 50 of 2003, S.4 (w.e.f.23-12-2003).
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20. Contents and verification of petitions:- (1) Every petition presented under this Act shall state as distinctly as the nature of the case permits the facts on which the claim to relief is founded [and, except in a petition under section 11, shall also sate] that there is no collusion between the petitioner and the other party to the marriage.
            (2) The statements contained in every petition under this Act shall be verified by the petitioner or some other competent person in the manner required by law for the verification of plaints, and may, at the hearing, be referred to as evidence.

21. Application of Act 5 of 1908:- Subject to the other provisions contained in this Act and to such rules as the High Court may make in this behalf, all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908 (5 of 1908).

COMMENTS

In view of S.21, the matrimonial proceedings before the District Courts are to be regulated by ordinary rules of procedure including those relating to the provisions for recording evidence contained in the Evidence Act. Thus, in accepting or rejecting a prayer for obtaining expert opinion regarding blood test, the Court would be generally guided by the principles embodied in S.45 of the Evidence Act: Kartick Chandra v. Sabita Das (1986) 2 Hindu L.R. 219 (D.B.).

[21-A. Power to transfer petition in certain cases.- (1) Where-
(a) a petition under this Act has been presented to a district Court having jurisdiction by a party to a marriage praying for a decree for judicial separation under section 10 or for a decree of divorce under section 13, and
(b) another petition under this Act has been presented thereafter by the other party to the marriage praying for a decree for judicial separation under section 10 or for a decree of divorce under section 13 on any ground, whether in the same district Court or in a different District Court, in the same State or in a different State,
the petitions shall be dealt with as specified in sub-section (2).
            (2) IN a case where sub-section (1) applies,-
(a) if the petitions are presented to the same district court, both the petitions shall be tried and heard together by that district Court;
(b) if the petitions are presented to different district courts, the petition presented later shall be transferred to the district Court in which the earlier petition was presented and both the petitions shall be heard and disposed of together by the district Court in which the earlier petition was presented.
            (3) In a case where clause (b) of sub-section (2) applies, the Court or the Government, as the case may be, competent under the Code of Civil Procedure, 1908 (5 of 1908), to transfer any suit or proceeding from the district Court in which the later petition has been presented to the district Court in which the earlier petition is pending, shall exercise its powers to transfer such later petition as if it had been empowered so to do under the said Code.]

            21-B. Special provision relating to trail and disposal of petition under the Act:- (1) The trial of a petition under this Act shall, so far as is practicable consistently with the interest of justice in respect of the trial, be continued from day to day until its conclusion unless the court
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41. Substituted by Act 68 of 1976, S.13, for “and shall also state” (w.e.f.27-5-1976).
42. Inserted by Act 68 of 1976, S.14 (w.e.f.27-5-1976).
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Finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded.

(2) Every petition under this Act shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial within six months from the date of service of notice of the petition on the respondent.
(3) Every appeal under this Act shall be heard as expeditiously as possible, and endeavour shall be made to conclude the hearing within three months from the date of service of notice of appeal on the respondent.]

[21-C. Documentary evidence:- Notwithstanding anything in any enactment to the contrary, no document shall be inadmissible in evidence in any proceeding at the trial of a petition under this Act on the ground that it is not duly stamped or registered.]

[22. Proceedings to be in camera and may not be printed or published:- (1) Every proceeding under this Act shall be conducted in camera and it shall not be lawful for any person to print or publish any matter in relation to any such proceeding except a judgment of the High Court of the Supreme Court printed or published with the previous permission of the Court.

(2) If any person prints or publishes any matter in contravention of the provisions contained in sub-section (1), he shall be punishable with fine which may extend to one thousand rupees.]

23. Decree in proceedings:- (1) In any proceeding under this Act, whether defended or not, if the Court is satisfied that-
            (a) any of the grounds for granting relief exists and the petitioner [except in cases where the relief is sought by him on the ground specified in sub-clause (a), sub-clause (b) or sub-clause (c) of clause (ii) of section 5] is not in any way taking advantage of his or her own wrong or disability for the purpose or such relief, and
            (b) where the ground of the petition is the ground specified in clause (i) of sub-section (1) of section 13, the petitioner has not in any manner been accessory to or connived at or condoned the act or acts complained of, or where the ground of the petition is cruelty the petitioner has not in any manner condoned the cruelty, and
            (bb) when a divorce is sought on the ground of mutual consent, such consent has not been obtained by force, fraud or undue influence, and]

[the petition (not being a petition presented under section 11) is not presented or prosecuted in collusion with the respondent, and

There has not been any unnecessary or improper delay in instituting the proceeding, and

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43. Inserted by Act 68 of 1976, S.14 (w.e.f.27-5-1976).
44. Substituted by Act 68 of 1976, s.15, for S.22 (w.e.f.27-5-1976).
45. Inserted by Act 68 of 1976, S.16 (w.e.f.27-5-1976).
46. The words, brackets and figures “in clause (f) of sub-section (1) of section 10, or” omitted by Act 68 of 1976, S.16 (w.e.f.27-5-1976).
47. Substituted by Act 68 of 1976, S.16, for “the petition” (w.e.f.27-5-1976).
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there is no other legal ground why relief should not be granted, then, and in such a case, but not otherwise, the court shall decree such relief accordingly.

(2) Before proceeding to grant any relief under this Act, it shall be the duty of the Court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavour to bring about a reconciliation between the parties.
            [Provided that nothing contained in this sub-section shall apply to any proceeding wherein relief is sought on any of the grounds specified in clause (ii), clause (iii), clause (iv), clause (v), clause (vi) of clause (vii) of sub-section (1) of section 13.]

(3) For the purpose of the aiding the Court in bringing about such reconciliation, the court may, if the parties so desire or if the Court thinks it just and proper so to do, adjourn the proceedings for a reasonable period not exceeding fifteen days and refer the matter to any person named by the parties in this behalf or to any person nominated by the Court if the parties fail to name any person, with directions to report to the Court, as to whether reconciliation can be and has been, effected and the Court shall in disposing of the proceeding have due regard to the report.

(4) In every case where a marriage is dissolved by a decree of divorce, the Court passing the decree shall give a copy thereof free of cost to each of the parties.]

COMMENTS
S.24 of the Act is not controlled by S.23: Gopal v. Dhapubai (1986) 2 Hindu L.R. 253 (Madh.Pra.).

[23-A. Relief for Respondent in divorce and other proceedings:- In any proceeding for divorce or judicial separation or resolution of conjugal rights, the respondent may not only oppose the relief sought on the ground of petitioner’s adultery, cruelty or desertion, but also make a counter-claim for any relief under this Act on that ground; and if the petitioner’s adultery, cruelty or desertion is proved, the Court may give to the respondent any relief under this Act to which he or she would have been entitled if he or she had presented a petition seeking such relief on that ground.]

24. Maintenance pendent elite and expenses of proceedings:- 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 expenses of the proceeding, 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.
            [Provide that the application for the payment of the expenses of the proceeding and such monthly sum during the proceeding, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the wife or the husband, as the case may be.]
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48. Added by Act 68 of 1976, S.16 (w.e.f.27-5-1976).
49. Inserted by Act 68 of 1976, S.16 (w.e.f.27-5-1976).
50. Inserted by Act 68 of 1976, S.17 (w.e.f.27-5-1976).
51. Inserted by Act 49 of 2001, S.8 (w.e.f.24-9-2001).
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Objects and Reasons:- Sections 24 and 26 of the Hindu Marriage Act, 1955 do not contain any time-limit for disposal of applications for alimony pendente lite or the maintenance and education of minor children. More than 670 cases or understood to be pending in various High Courts under section 24 of the Hindu Marriage Act, 1955. As a part of the judicial reforms process, it is proposed to make necessary amendments in the enactments, i.e., sections 36 and 41 of the Indian Divorce Act, 1869, sections 39 and 49 of the Parsi Marriage and Divorce Act, 1936, sections 36 and 38 of the Special Marriage Act, 1954 and sections 24 and 26 of the Hindu Marriage Act, 1955 with a view to making provisions that an applications for alimony pendent elite or the maintenance and education of minor children shall be disposed of within sixty days from the date of service of notice on the respondent.

COMMENTS

            Relevant consideration for grant of maintenance pendent elite is that the spouse seeking maintenance should not have independent income sufficient for her/his support- Once Court reaches its conclusion in that regard, it has to grant maintenance and only discretion left with the Court is with regard to quantum of maintenance: Amarjit Kaur v. Harbhajan Singh (2003) 10 S.C.C. 228
            S.24 is enacted to provide relief by way of maintenance and litigation expenses to a spouse unable to maintain itself during the pendency of the proceedings; it is a benevolent provision: Lata v. Dhanpal (1995) 2 D.M.C. 440 (Madh. Pra).
            Cases where the parties disclose their actual income are extremely rare. Experience, therefore, dictates that where a decision has to be taken pertaining to the claim for maintenance, the quantum to be granted, the safer and surer method to be employed for coming to a realistic conclusion is to look at the status of the parties, since whilst incomes can be concealed, the status is palpably evident to all concerned. If any opulent lifestyle is enjoyed by waring spouses, he should not be heard to complaint or plead that he has only a meager income: Radhika v. Vincent Rangta A.I.R.2004 Del 323.
            The maintenance does not mean only the bare maintenance of food and clothing, but it does include the basic additional expenses for education of the child if the status of she father or the family is of such type: Remani Menon v. K.G. Omnakuttan A.I.R.2004 Guj.23.
            The fact that there is a strong possibility of the marriage being declared as a nullity is no ground for declining even the basic right to claim interim alimony and expenses of the litigation: Sushila Viresh Chhadva v. Viresh Nagshi Chandra (1996) 1 Mah.L.J.288.
The doctrine of alimony in its strict sense means the allowance due to wife from husband; when the wife has no separate means sufficient for her defence and subsistence, she can claim for maintenance pendent elite. No distinction can be made between a case filed under S.12 and another filed under S.13 of the Hindu Marriage Act: Sandeep Kumar v. State of Jharkhand A.I.R. 2004 Jhar.22.
            Question of maintenance pendent elite and litigation expenses arises with the filing of an application for matrimonial reliefs under the Hindu Marriage Act. It ends as the proceedings terminate. It has no separate existence and cannot stand by itself. No application for maintenance pendent elite or litigation expenses can exist independently unless lis is there: Ramactar Verma v. Chintamani A.I.R. 2004 Madh. Pra.137.

25. Permanent alimony and maintenance:- (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 he 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
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52. The words “while the applicant remains unmarried” omitted by Act 68 of 1976, S.18 (w.e.f.27-5-1976).
53. Substituted by Act 68 of 1976, S.18, for “and the conduct of the parties” (w.e.f.27-5-1976).
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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 favour an order has been made under this section has remarried or, if such party is the wife, that she has not 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.]

COMMENTS

The relief of permanent alimony cannot be given where the main petition for relief under the Act such as divorce, judicial separation, etc., is dismissed or withdrawn: Badri Prasad v. Urmila Mahobiya A.I.R. 2001 Madh.Prad. 106.
S.24 and S.25 are enacted with the object of removing the handicap of a wife or husband with no independent income sufficient for living or meeting litigation expenses; such a relief can be granted to the husband as well who may also be deprived of the same on proof of his having sexual intercourse outside the wedlock: Lalit Mohan v. Tripta Devi A.I.R.1990 J&K.7.
“Illegitimate wife” [or faithful mistress”] cannot be included in the word “wife” as contained in S.25 of the Hindu Marriage Act: Bhausaheb v. Leelabai A.I.R. 2004 Bom. 283 (F.B.)
Under S.25 of the Hindu Marriage Act, the Court is entitled to pass an order of alimony even when the original petition is dismissed. If the Court is competent to pass an order of alimony even at the time of dismissal of the petition, there is no reason why Court cannot grant an interim alimony during the pendency of the petition on the ground that the petitioner is not likely to succeed in the main petition: Mangilal S.Mundada v. Mangala M.Mundada A.I.R. 2004 Bom.266.
When the words of S.25 of the Hindu Marriage Act, 1955 are very much clear on the point that such application can be filed after passing of the decree, therefore, mere fact that the appeal is pending in higher Court would not effect the fate of the application, which was filed after passing of the decree: Surendra Kumar Bhansali v. Judge, Family Court A.I.R. 2004 Rsj.257.
The Court may grant permanent maintenance to a party while disposing of the main petition even if no proper application has been moved: Chandrika v. Vijayakumar (1996-1) 117 Mad. L.W. 695 (D.B.).

26. Custody of children:- In any proceeding under this Act, the Court may, from time to time, pass such interim orders and make such provisions in the decree as it may been just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible, and may, alter the decree, upon application by petition for the purpose, make from time to time, all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim orders in case the proceeding for obtaining such decree were still pending, and the Court may also from time to time revoke, suspend or vary any such orders and provisions previously made.
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54. Substituted by Act 68 of 1976, s.18, for “it shall rescind the order: (w.e.f.27-5-1976).
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            [Provided that the application with respect to the maintenance and education of the minor children, pending the proceeding for obtaining such decree, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the respondent.]

COMMENTS

            S.26 enables the Court from time to time, to pass such interim order and make such provisions in a decree as it may deem just and proper with respect to the custody, maintenance and education of minor children. It enables the Court to do so, not only during the time the proceedings are pending but also after a decree has been passed in any proceedings under the Hindu Marriage Act: Vivek Yashavant Bhagwat v. Rekhs Vivek Bhagwat (1986) 1 Hindu L.R.46 (Madh.Pra.).

27. Disposal of property:- In any proceeding under this Act, the Court may make such provisions in the decree as it deems just and proper with respect to any property presented, at or about the time of marriage, which may belong jointly to both the husband and the wife.

COMMENTS

S.27 of the Act dealing with “disposal of property” is unambiguous and, therefore, marginal note of said section may not be used as an aid to its interpretation: Shakuntala v. Mahesh Atmaram Badlani A.I.R. 1989 Bom.353.
            S.27 of the Hindu Marriage Act does not confine or restrict the jurisdiction of matrimonial Courts to deal only with the joint property of the parties, which is presented at or about the time of marriage but also permits disposal of exclusive property of the parties provided they were presented at or about the time of marriage: Hemant Kumar Agrahari v. Lakshmi Devi A.I.R.2004 All.126 (D.B.).
            No order under S.27 can be passed with the respect to the property which exclusively belongs to the wife: Inderjit Singh v. Manjit Kaur (1987) 2 Hindu L.R.496(1988) 1 D.M.C. 129 (P.&H.).

28. Appeals from decrees and orders:- (1) All decrees made by the Court in any proceeding under this Act shall, subject to the provisions of sub-section (3), be appealable as decrees of the Court made in the exercise of its original civil jurisdiction, and every such appeal shall lie to the Court to which appeals ordinarily lie from the decisions of the Court given in the exercise of its original civil jurisdiction.
(2) Orders made by the Court in any proceeding under this Act under section 25 or section 26 shall, subject to the provisions of sub-section (3), be appealable if they are not interim orders, and every such appeal shall lie to the Court to which appeals ordinarily lie from the decisions of the Court given in exercise of its original civil jurisdiction.
(3) There shall be no appeal under this section on the subject of costs only.
(4) Every appeal under this section shall be preferred within a [period of ninety days] from the date of the decree or order.
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55. Inserted by Act 49 of 2001, S.9 (w.e.f.24-9-2001).
56. Substituted by Act 68 of 1976, S.19, for S.28 (w.e.f.27-5-1976).
57. Substituted by Act 50 of 2003, S.5, for “period of thirty days” (w.e.f.23-12-2003). S.6 of the Marriage Laws (Amendment) Act, 2003 provides as under:- “6. Transitory provisions.- All decrees and orders made by the Court in any proceedings under the Special Marriage Act or the Hindu Marriage Act shall be governed under the provisions contained in section 3 or section 5, as the case may be, as if this Act came into operation at the time of the institution of the suit.
            Provided that nothing in this section shall apply to a decree or order in which the time for appealing has expired under the Special Marriage Act or the Hindu Marriage Act at the commencement of this Act.”
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Condonation of delay in filing appeal, is permissible: Ratan Malla v. Sefali Malla A.I.R. 2004 Gau. 36 (D.B.).

28-A. Enforcement of decrees and orders:- All decrees and orders made by the Court in any proceeding under this Act shall be enforced in the like manner as the decrees and orders of the Court made in the exercise of its original civil jurisdiction for the time being are enforced.]

CHAPTER VI
SAVINGS AND REPEALS

29. Savings:- (1) A marriage solemnized between Hindus before the commencement of this Act, which is otherwise valid, shall not be deemed to be invalid or even to have been invalid by reason only of the fact that the parties thereto belonged to the same gotra or pravara or belonged to different religions, castes or sub-divisions of the same caste.
(2) Nothing contained in this Act shall be deemed to affect any right recognized by custom or conferred by any special enactment to obtain the dissolution of a Hindu marriage, whether solemnized before or after the commencement of this Act.
(3) Nothing contained in this Act shall affect any proceeding under any law for the time being in force for declaring any marriage to be null and void or for annulling or dissolving any marriage or for judicial separation pending at the commencement of this Act, and any such proceeding may be continued and determined as if this Act had not been passed.
(4) Nothing contained in this Act shall be deemed to affect the provisions contained in the Special Marriage act, 1954 (43 of 1954) with respect to marriage between Hindus solemnized under that Act, whether before or after the commencement of this Act.

Objects and Reasons:- This clause expressly saves, inter alia, customs and special enactments like the Madras Marumakkattayam Act (12 of 1933) which provides for termination of Hindu marriage in any other manner. It is also provides that marriages solemnized under the Special Marriage Act, 1872, are not effected by any thing contained in this Bill. (Now see Special Marriage Act, 1954).

30. Repeals:- {Repealed by the Repealing and Amending Act, 1960 (58 of 1960), section 2 and Schedule (w.e.f. 26-12-1960).}