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