HINDU MARRIAGE ACT ALL PROVISIONS PART V

CHAPTER III

RESTITUTION OF CONJUGAL RIGHTS AND JUDICIAL SEPARATION

1. Restitution of conjugal rights:- 7[*] When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district Court, for restitution of conjugal rights and the Court, on being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excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.]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to clarify that the burden of proving reasonable excuse for withdrawing from the society shall be on the person who has withdrawn from the society of other.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.).

————————————————————————————————————

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).

————————————————————————————————————-

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.

1. 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,-

(a)    “cruelty” is now a self-contained definition;

(b)   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

(c)    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.).

——————————————————————————————————————

10. Substituted by Act 68 of 1976, S.4, for sub-S. (1) (w.e.f.27-5-1976).

     ——————————————————————————————————————-

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

1. 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.

1. 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

———————————————————————————————————————–   

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).

———————————————————————————————————————–

14[or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent]; or

(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 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.