UNCODIFIED HINDU

LAW

Introduction

According to Hindu mythology

Marriage is a sacrament.
An indissoluble union to be continued even
in the next world.
It can be said as Janma janmala
Bhandham
A man cannot be said to have a material
existence until he took a wife
Marriage was meant for doing good deeds
and for attainment of Moksha

Characteristic features of Hindu Marriage

Under uncodified Law

Under the old Hindu Law

(1) Identity of caste between the
parties
(2) parties must be beyond the
prohibited degrees
i.e., they should not be of the same
gotra or
pravara or sapinda of each
other
(3) proper performances of marital
ceremonies

Contrinuation

1. Ancient Hindu Scriptures prohibited

Pratiloma marriage( a marriage
between a girl of higher caste and boy of
lower caste
But Anuloma marriage ( males of
higher caste and females of lower caste)
was permitted
Identity of caste between the parties
became one
of the essential conditions or marriage

Purpose of Marriage

(2)Parties to be beyond prohibited degrees

Dharmasutras declared that a man should not
marry a wife belonging to the same GOTRA or
Pravara
Gotra : Senior sage
Pravara : descendant sage up to 3 generations
Ex: Kusika
vasista
viswamitra
Marichi

Continuation

Similarly no one could marry a girl who

comes within his sapinda relationship
3. Performance of religious
ceremonies
Betrothal or tilak ceremony
recitation of holy texts before the
holy fire
taking seven steps round the sacred
fire.
saptapadi

Continuation

In a Nutshell
Hindu marriage was a holy samskar ,it
could be performed in one of the eight
forms recognised by law
Solemnization would be according to
Shastric or customary rites
One could marry at any age and a man
could marry any number of women
Inter-religious and inter- caste marriages
were prohibited

continuation

Marrying within ones own gotra or

pravara was not allowed
Husband and wife would live together,
the latter would submit to the wishes of
the former, and the former would
maintain the latter
Marriage was indissoluble, divorce was
not permitted
Death did not dissolve a marriage.
Hence a widow could not remarry

Forms of Hindu Marriage

Approved forms
(a ) Brahma
Gift of a daughter clothed only
with a single robe to a man learned in
Vedas whom her father invites
respectfully
chief character
Parents do not receive consideration for
giving the girl

Continuation
(b) Daiva
Damsel is given to a person who operates as a
priest in a sacrifice performed by the father, in
lieu of fee or dakshina due to the priest
(c) Arsha
Bridegroom present a cow and a bull ;
or 2 cows and 2 bulls
to the brides father which is accepted for
religious purposes only
(d) Prajapatya
It does not materially differ from Brahma
with a condition you to be partners for secular

Unapproved forms of
marriage
(a) Asura
Bridegroom having given as much wealth as he
can afford , to the father and paternal kinsmen and
damsel herself takes her voluntarily as his wife
Striking feature
receipt of pecuniary benefit by the brides
parents amounts to a virtual sale
(b) Gandharva
Union of man and woman by mutual consent by
exchange of garlands or by rings before the
ceremony of homa

Continuation
(c) Rakshasa
Forcible abduction of the bride from
her paternal home
Ex: Enticing Rukmini by Lord Krishna
(d) Paishacha
marriage of a girl by a man ,

who had committed the crime of

ravishing her either when asleep;
or when made drunk by administering
intoxicating during or when in the state of
mental disorder

Continuation
(3) Performance of marriage
a.
Betrothel
b. formalities recital of holy texts before the sacred
fire
c
Sapthapadhi
(4) Hindu Marriage was a holy samskara, It could be
solemnized in one of the eight forms recognised
(5) One could marry at any age there being no lowest age
of marriage and a man could marry any number of women
(6) Marriage was indissoluble, divorce was not permitted
(7) Death did dissolve a marriage therefore a widow could
not remarry

Hindu Marriage Act 1955

Act,1955 brought important and dynamic changes
in the Hindu Matrimonial concept
It is a landmark in the history of social legislation
i.e., Changes of far reaching consequence,
character, which have undermined the
Sacramental character of marriage and rendered
it Contractual in nature to a great extent
Introduction of fault theory
a basis for obtaining a matrimonial relief like
Judicial separation
nullity of marriage and Divorce

Continuation
Consent theory Introduced by
Marriage Laws (Amendment) Act 1976

Parties are free to effect dissolution

of marriage in case the marriage has
failed between them

The Act has permitted them to

sever their relations by mutual
consent

continuation
Breakdown theory
U/ sec.13( 1 A)
(a) If the decree of restitution of conjugal
rights has not been complied with for 1
year or more
(b) if the cohabitation has not been
resumed for a period of 1 year or more
after the passing of the decree for judicial
separation
Divorce can be obtained by either party
The Act has permitted divorce to the

Continuation
A Hindu marriage is now not so much
concerned with religion. It is more a result of
mutual consent
It has introduced monogamy . Sec.5 it has
been stated that a marriage becomes null and
void, if either party has a spouse living at the
time of marriage
Bigamy has not only been prohibited but has
been made an offence punishable under IPC
permitted inter-caste marriages. Giving
retrospective effect under Sec.29

Continuation

Marriage between the persons of same gotra

has been legalised
Minimum age of marriage for the bride groom has
been fixed as 21 years and for bride 18 years
Introduction of matrimonial reliefs
Restitution of conjugal rites, judicial separation,
Nullity of marriage, divorce
Registration of marriage
No distinction between the marriage of a
maiden and marriage of a widow

Continuation

The Act has allowed the right of claiming

alimony pendente lite and also permanent
maintenance by either of the spouse Sec.23
Sec.24 Maintenance pendente lite and for
legal expenses
Sec.25 Permanent alimony and maintenance
Sec.29 for custody, maintenance and
education of minor children during
pendente lite
legitimacy to the children born of void and
voidable marriages

Changes introduced by virtue of Marriage

Laws (Amendment) Act,1976
1. Under Sec13-B Divorce by mutual consent
Due to the growing influence of break-down
theory of divorce. This provision is retrospective in
operation
2. Divorce on the ground of adultery made
easy
Formerly, divorce was allowed only, when it
could be proved that the other party was living
in adultery
now a single instance of adultery on the part
of the other is sufficient to seek divorce

Continuation
3. Unsound-mind ,Incurable leprosy or
venereal disease
For a divorce on the above ground,
formerly the party seeking divorce could
not file a petition until 3 years had
elapsed . Now the party need not wait for 3
years
4. Sec.21-B has been introduced to expedite
the matrimonial proceedings. This section
provides continuance of the trial(day to
day), until conclusion of the case

continuation

Child Marriage Restraint

(Amendment) Act 1978 has changed
existing provisions of Marriage with
regard to age of parties . The Act
Provides 21 years for the bride groom
and 18 years of age for the bride
Effect: Deletion of Sec.6 of the Act
which deals with guardian in marriage

Important Definitions of H.M.Act 1955

Hindu
Any person who is Hindu by religion
irrespective of or regardless of its forms or
developments, including
(1) (a) a Virashaiva
(b) a Lingayat
(c) a follower of the Brahmo ,Prarthana
or Arya Samaj
Any person who is either
(II) (a) a Buddhist by religion; or
(b) a Jain by religion ; or
(c) a Sikh by religion

Continuation

Any other person domiciled in the territories to which this Act

extends who is not

III (A) a Muslim by religion, or

(b) a Christian by religion, or

(c)

a Parsi by religion, or

(d) a Jew by religion

The following persons are Hindus , Buddhists , Jains ,or

Sikhs by religion

(a) any child legitimate or illegitimate, both of whose

parents belong to any of the above religions

(b) any child ,legitimate or illegitimate , both of whose

parents are Hindus, Buddhists, Jains, or sikhs by religion

(c) any child legitimate or illegitimate whose parents

are Hindus, Buddhists, Jains, or Sikhs by religion and
whose brought up as a member of that group or family to

Conditions For a valid H.M. Act 1955

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

Child Marriage Restraint Act 1978 omitted sixth condition relating to guardianship

But the

monogamy and prohibits polygamy. A Hindu can

have only one marriage subsisting at a time
Sec. 5(1) provides the rule of

Neither party has a spouse living

In Sarala Mudgal Vs. Union of India

SCC 1995 Vol..2 page.635

Husband converted himself into a Muslim by adopting Islam

Then married another wife
Question was whether by conversion the first marriage
is annulled or it becomes void and he commits an
offence of bigamy
Court said that the first marriage subsists and the husband
commits an offence

Continuation

Appeal was filed by the husband this appeal was

disposed of along the Lily Thomas by the S.C
In Lily Thomas Vs. Union of India
SCC 2000, Vol.2, Page 224
The same question came before the court.
S.C. Observed;
that the institution of marriage under every
personal law is a sacred institution. Under the
Hindu Law, marriage is a sacrament. Both these
have to be preserved. Therefore religion is not a
commodity to be exploited, it is a matter of faith

Continuation

when a non-muslim married according to religious

rites stipulating monogamy, renounces his religion,
converts to Islam and solemnizes a second marriage,
according to Islamic rites, without divorcing his first
wife, the second marriage is void. Here a person
feigns ( make believe with intent to deceive) to have
adopted another religion, just for some worldly gain or
benefit, and this is a religious bigotry
Conversion dose not automatically dissolve the first
marriage, Since a bigamous marriage is an offence
under Sec. 17 of H.M.Act readwith Sec.494 of I.P.C The
court affirmed in Sarala Mudgul case and dismissed
the appeal

Continuation

2.Soundness of mind (Sec.5 (2)

(a) at the time of marriage neither party is
incapable of giving a valid consent to it
inconsequence of unsoundmind
(b) though capable of giving a valid consent,
has been suffering from mental disorder
of such a kind or such an extent as to be unfit
for marriage and for procreation; or
(c) has been subject to recurrent attacks
of insanity

CONTINUATION
Sec.12 (1) (b) renders the marriage
voidable, at the instance of the
aggrieved
3. Age of Marriage . Sec.5(3)
This section prescribes the age of the
bride 15 years and the bridegoom 18
years. This was amended by the Child
Marriage Restraint (Amendment) Act
1978 as 18 and 21 respectively
the breach of this provision did not affect
the validity of marriage but rendered it

Continuation

the guilty party to such marriage or the parent

or guardian concerned is responsible for getting
the marriage solemnized, or negligently fails to
prevent it from being solemnized, shall be liable for
simple imprisonment up to 15 days or a fine of
Rs.1000 or both under Sec.18
Changed position
if the condition specified in Cl.(iii) of Sec.5,
with rigorous imprisonment, which may extend to
two years or with fine , which may extend to
one lakh or both

continuation

In Pinniti Venkatarama Vs. State

AIR 1977, A.P.43
the A.P High court laid down that any marriage
solemnized in contravention of Cl.(iii) of Sec.5 is
neither void nor voidable
the only consequence being that the persons
concerned are liable for punishment under Sec.18.
If in any such marriage, where a bride had been
married before completion of her 15 th year, on
attaining that age ,repudiate that marriage and
entitled to a decree of divorce Under Sec.18 (2)
(iv) of the Act, which was inserted by Marriage Laws
(Amendment) Act,1976

Continuation

The option of getting divorce would be available till the

completion of her 18th year

4.Prohibited degree of relationship Sec.5(4)

Two persons would be regarded to be within prohibited degrees

(sec.3(g))
(a) If one is a lineal ascendant to the other; or
(b) if one was the wife or the husband of a lineal ascendant or
descendant of the other
If one was the wife of the brother or
of the fathers or mothers brother or
of the grand fathers or grand mothers brother of the other
(d) if two are brother and sister , uncle and neice, aunt and nephew
or children of brother and sister

Continuation

The relationship would also include

(i) Half blood, Uterine blood and full blood
(ii) illegitimate as well as legitimate
(iii) Blood as well as by adoption
Exception
That a marriage of persons though related
within the prohibited degree shall be
permissible, if the custom or usage governing
both the parties to the marriage, permits
Ex: a marriage with sisters daughter
Mothers brothers daughter

Continuation

Examples of prohibited degrees

For Men
(i) Mother
(ii) former wife of father or grand father
howsoever high
(iii) Former wife of brother
(iv) Sister
(v) Either parents sister
(vi) Daughter of a brother or sister

Continuation

For women
Father
Brother of former husband
Nephew of former husband
Brother
Either of parents brother
Son of a brother or sister
Son of either parents brother
Son of either parents sister

Continuation

High Court in Smt. Shakuntala Devi

Vs. Amar Nath
AIR 1962 P & H.22
the conditions of a valid marriage under
Sec.5(iv) stands qualified by custom.
.i.e., in the event of custom being
established, the marriage though
prohibited relationship ,would
constitute a legal and valid

Ceremonies of Marriage
(Sec.7)
Old Law

Ceremonies and their significance

(1) Ganapathi puja
(2) Nandidevatha ( Since the object of
marriage is to begetting progeny. They
are the builders of the Sukshma Deha
(3) Graha Yajna

(4)Snatakam(Close of Studies)

Bridegroom asks for forgiveness for

any lapses on his part in observing the
strict regime during the period of studies
(5) Kasi Yatra
(6) Vak nischaya Muhurtha
(7) Sankalpa
(8) Kanyadana

Continuation

(9) Bridegrooms promise

DHARMECHA, ARDECHA,
KAMECHA

NATHICHARITHAVYA
Father of the bride obtains a solemn
promise
of fidelity to his daughter from his son
in-Law
The Bridegroom says

Continuation
(10) Rakshabandhana
Significance;
From that time till SAMAVESANA (Sexual union)
both bride and bridegroom will not be affected by pollution
(11)Sapthapadi We have together paced all the
seven steps, we shall live together and we shall
reside together and we each shall be an object of
love to the other, we each shall be a source of joy to
the other with mutual good
(12)Pradhana Ahuti (Invoking the blessings of Agni )
(13)Laja Homa ; Long life vigour and prosperity

Continuation

(14) Journey Home

Bride is taken to the in-laws house
(15) Gruhapravesam(Satyanarayana
Vratham)
For future prosperity of the couple
(16) Thri ratri ( Three nights)
For acquiring progeny , who would
be physically and spiritually healthy
(17) Sesha Homa

Continuation

This is preparatory to sexual union and is

intended to propitiate the devine powers
(18) Garbhadhana
These manthras are intended to
furnish the couple with knowledge of
sexual science for begetting spiritually
worthy children

Ceremonies of Marriage
( Sec.7)

Sec.7 Says:
(1) A Marriage may be solemnised in
accordance with the customary rites
and ceremonies of either party thereto
(2) where such rite and ceremonies
include the Saptapadi, the marriage
becomes binding ,when the seventh step
is taken
May the word may here in the sense
of

continuation

In Bhaurao Vs. State of Maharastra

AIR 1965 SC 1564
S.c Held that unless a marriage is celebrated or,
performed with proper ceremonies and in due
form, it cannot be said to have been solemnised
In Surjit Kaur Vs. Garja Singh
AIR 1994 SC.135
Parties lived together as wife and husband
without or under any established custom
performing the essential ceremonies

Continuation

Su..C. held that in such situations living together as

husband and wife by itself would not confer status
of husband and wife
Supreme Court
in Dr. Surajmani Stella Kajur Vs. Durg Charan
Hansdah
AIR 2001 SC 938
if the parties to the petition are of tribals, who
otherwise profess Hinduism, but their marriage being
out of the purview of H.M.Act 1955 in the light of
Sec.2(2) of the Act would be governed by their customs
and usages of tribe

Proof of Marriage (Sec.8)

Sec. 8 says For the purpose of proof of

marriage, the State is authoriszed to
make rules for registration of marriage
omission to make the entry in the
marriage register would not affect the
validity of the marriage itself
in Vinaya Nair and others Vs.
Corporation of

Kochi

AIR 2006 Ker.275

Continuation

Petitioners belong to Nair community

Marriage performed under the provisions of
H.M.Act
Husband was born in Canada ,acquired
canadian citizenship and employed in
Canada., who professes Hindu religion and
married Hindu girl. After marriage they
submitted an application of the Kerala Hindu
Marriage Registration Rules 1957 to the
corporation of Cochin for registering their
marriage

Continuation
Corporation refused to register on the
ground that the husband is of Canadian
domicile.
High court held that since the marriage
was solemnized by following the
provisions of Hindu Marriage Act , it is
valid and the corporation is not justified
in refusing the marriage certificate
Bombay, Himachal Pradesh and
Karnataka high Courts implement for
uniform, and compulsory registration of

Continuation

Recently Supreme Court

in Seema Vs. Ashwani Kumar,
AIR 2006 Sc 1158
S.C. directed the Centre and States
to make necessary amendments in
the rules to facilitate compulsory
registration of marriages by a
nodal officer, and the court has
given three months time to the
governments to notify the amended
rules

History of Restitution 0f conjugal rights

Vedic injunction for necessity for a son, who

relieves his father from hell resulted in desire of
a male offspring for continuance of the family
and for the performance of funeral rites
The sacredness of marriage tie was recognised
The wife was given an honoured position in
the house
as the woman is half her husband and
completes him The texts of Hindu Law also
recognised the principle l

Hindu law enjoined on the spouses to have the

society of each other
while Dharmasastras stressed on the wifes
implicit obedience to her husband, it did not lay
down any procedure for compelling her to return to
her husand against her will . It became necessary
to find some remedies and procedures so as to see
the marriage tie is intact and would not be
disturbed by some petty quarrels between spouses
The procedure of restitution of conjugal rights
recognised in England by the Ecclesiastical courts
was introduced in Our country by the Britishers

From the time of the decision in

MoonsheeBuzloor Vs.Shumsoonisa
Begum
1867 ii, Moo IA 551
This procedure is now recognised as
restitution of conjugal rights under Sec.9
of Hindu Marriage Act,
1955

Restitution of conjugal rights ( Sec.9)

Conjugal right is a matrimonial right

It is indeed one of the express
conditions of the nuptial vow that each
party is to become life associate of the
other and enjoy the pleasures and
consortium of each other
Sec. 9
The husband or wife may get a
decree for restitution of conjugal rights
where the wife or the husband
has

Continuation
(a) has withdrawn from the society of the
other
(b) Without reasonable excuse
( c ) the court is satisfied of the truth of the
statements made in the petition; and
( d) there is no legal groundwhy the
application should not be granted
_Explanation___________
Burden of proof in case of reasonable excuse
shall be on the person who has withdrawn

Continuation

For obtaining this remedy

It presupposes the subsistence of
valid marriage
Petitioner has to prove the valid
marriage ,if it is
disputed by the respondant
In Smt. Ranjana Vinod kumar
Kejriwal
Vs.
Vinodkumar Kejriwal

Continuation
Petition for restitution filed by the wife,
Who had admittedly married a
husband, who was already married
to some one. The marriage with her
was contracted after suppressing the
fact .
Court refused to grant restitution of
conjugal rights, as on the ground
that the lady who moved to the
court was not a legally wedded wife

Continuation

Withdrawal from the company

It means withdrawing from the company of
the other spouse. The mental process
should show that the spouse complained
against should have made up his or her
mind not to discharge his or her marital
obligations without there being any excuse
Reasonable and just cause
According to judicial decisions the following
are reasonable justifications for living
separately

Continuation

Refusal to perform marital

obligations without sufficient cause
Imputing unchastity upon the wife
Gravely indecent behaviour,
false allegations against each other as
to unnatural offence

Malkiat singh Vs. Shinderpal Kaur

Air 2003 P&H. 283
Court observed
that the essence of the decree of decree of restitution is
that the husband desiring the company of his wife makes
any effort through the court for its assistance in order
to restore his wife back so that they may be able to
lead a conjugal life
the provision of law cannot be misused by a spouse
to obtain a decree by invoking the provisions of
Sec13(1-A)(ii) of the Act, by deliberately keeping the
decree of Restitution of conjugal rights as unsatisfied

Here the Husband could not satisfy the

court about his sincerity to allow the
respondent to resume her matrimonial duties
The appellant cannot be allowed to take
the benefit of his wrong
In Sohan Lal Vs. Smt Prathiba Mehra
AIR 2007 Raj.915
where the wife did not respond the decree
for restitution of conjugal rights for one
year, the husband is entitled to get divorce
under Sec.13(1-A)

T. Srinivasan Vs. T. Vara Lakshmi

AIR 1999 S.C.595
misconduct by the husband
Wife was deprived by the husband
to perform her conjugal duties
She demanded to perform her conjugal
rights
Husband not only refused but also
drove her out

He did not allow her wife to again enter

the house
S.C held that these acts of husband
were positive wrongs amounting to
misconduct uncondolable
He is not entitled to relief of divorce
under Sec.13(1) (A)

Rajasthan High Court in

Mirchullal Vs. Devi bai AIR 1977 Raj.113
according to the Hindu law a wife after
marriage is bound to be dutiful towards her
husband and remain under the obligations of her
husband in his house, but the concept of
protection of the husband and unbroken
residence in his house are not inelastic and
rigid rules which cannot be interpreted in the
context of present day conditions and needs .
Women are no longer confined within the walls of
their houses.

On account of family circumstances a woman

might have to live by herself, while the
husband is working at a place or out of
employment under such conditions a wife
has to live away from her husband such a
situation would not amount to staying
away from her husband
High Court of Delhi pronounced an
important Judgment in
Smt Swaraj Garg Vs. K.M. Garg AIR
1978delhi296

Husband and wife were gainfully employed at different

places before their marriage
Question arose with respect to matrimonial home
after marriage
Husband drawing, a pay lesser though highly qualified
They did not discuss about their matrimonial house either
before after the marriage
wife continued to live at her place of working,
although attended twice to Delhi with him, where
husband is serving
Husband filed a suit for restitution on the ground that
she had withdrawn from his association without
reasonable excuse

Trial court dismissed the petition, but a single

bench allowed the appeal and granted the
restitution
Mr. Desh Pande.,J
women have taken up jobs to help their families and
she is financially and in other respects better
situated to choose the place of matrimonial home
then the husband. There is no warrant in Hindu law
to regard a Hindu wife as having no say in
choosing the place of matrimonial home.
Art. 14 of the constitution guarantees equality
before law and equal protection of laws to both
wife and husband

Any law which would give exclusive right to the

husband to decide upon the place of the
matrimonial home without considering the merits of the
claim of the wife, would be against Art.14 and
unconstitutional

Mohinder singh Vs. Preet Kaur

AIR 1981 HLR 321

Husband became totally blind due to eye-injury after

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

Court held that the wife had a reasonable excuse to

withdraw. Consequently restitution decree was refused

T Saritha V.s T. Venkata subbaiah AIR 1983 AP356

R.C.R. Constituted th grossest form of violation of individuals

right to privacy
Smt. Harvinder Kaur Vs Harmander AIR1984 Del.66
Restitution aimed at cohabitation and consortium
Sarojrani Vs. Sudharsan kumar AIR
1984 SC 1562
Restitution is not merely creature of the Statute it is
inherent in the very institution of marriage, it may be
viewed in its proper perspective by keeping the dictionary
meaning

Execution of decree of Restitution of conjugal

rights
( Order 21 Rule 32 and 33 of C.P.C)
It provides for execution of R .of C.Rts.
The party against whom the decree is passed has
an opportunity of obeying the decree and if willfully
failed to obey it, the decree may be enforced by
attachment of his property
Or by his detention in civil prison or by both. The
attachment decree will be in operation for one year
and if the party has not obeyed the decree, the decree
holder can apply for sale of the attached property

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

In India Restitution decree is used as a

Stepping stone for getting a decree of divorce
Relevancy of the remedy

When the remedy of divorce by mutual

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

Prof. Derrett, who was a voter of the retention of

the remedy under the H.M.Act admitted that it serves
no purpose in many cases and is a mere half way
house to divorce or is a counter blast to an application
or suit for maintenance.
He believes that the remedy for restitution of conjugal
rights is of great value for the Hindu Society. He
believes that the practical utility of the remedy is
little in England, but in India where spouses separate at
times due to misunderstandings, failure of mutual
communication of the intrigues of relatives, the remedy
of restitution is still of considerable value.. He
represents the popular feelings of Hindu spouses.

Due to
the changed social scenario of the Hindu
Community ,
rapid growth of nuclear families
spreading of education ;and
consciousness of their rights,
the remedy of restitution is gradually losing
its importance.
Survey of reported case laws exhibits that the
aggrieved spouses hardly chooses this
restitution as against divorce
@@@@

Judicial Separation (Sec.10)

Object
To give time to the spouses
for reapproachement and conciliation.
The main function of the matrimonial reliefs is
to offer protection to the innocent party and
getting a marriage dissolved when it has for all
practical purposes broken down
when the grounds are same for both judicial
separation as well as for divorce one may feel this
provision is not necessary, but some spouses
may not be willing to take divorce as they may
feel it a stigma to be a divorcee in the society

Under Hindu Law although this remedy of

Judicial separation is unknown, British courts by
their pronouncements established that a suit for
judicial separation is maintainable.

As a consequence , The Indian Divorce Act

1869 was made applicable

Under Sec 10
Either party may present a petition for judicial
separation on any of the grounds mentioned in
Sub.Sec.(1) of Sec.13

In case of wife also on any of the grounds

specified in Sub.Sec(2) of Sec.13 as
grounds on which a petition for divorce might
have been presented
That Is grounds for judicial separation
and divorce are virtually the same
The Court may rescind the decree on the
application by petition of either party and on
being satisfied of the truth of the statements

Grounds available to husband and

wife
(1) Adultery
Prior to the Marriage Laws
(Amendment) Act 1976 .
living in adultery was
necessary for getting the decree of
judicial separation.
Now This has been dispensed
with and it has been replaced by a

(2) Cruelty
Though it has not been defined in the
Act.
It is a course of conduct or treatment
which tends to undermine the health
of the spouse on that account; or
affects the reasonable happiness of
life and ill-treatment of both physical
or mental
Smt. Mayadevi VS. Jagdish Prasad
A I R 2007 S C 1426

wife used to make demands for money

used to quarrel when money was not paid
she did not even provide food to her
husband or the children
Used to threaten her husband to falsely
implicate him in dowry demand and to kill
the children and put the blame on the
respondent and his family members
S.C Held that the allegation of cruelty
was estd and granted the decree of divorce.

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

Drunkenness
Refusal to speak
Forcing association with improper
persons
False charge of immorality against
wife
Ill-treatment of children

(xii) Refusal to have children

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

(3) Desertion

Two elements are necessary

(a) Consent

(b) Intention
In Bipin Chandra Vs. Prabhavathi

AIR 1957 SC 173

Supreme Court held that if the deserting spouse
decides to come back to the deserted spouse
by a bonafide offer of resuming the matrimonial
home, desertion comes to an end

Again Supreme court

in Lakshan Vs. Meena

AIR 1964 SC 30
reaffirmed that the factum of
separation and animus
deserendi are the necessary
elements of the offence of
desertion

In the above case S.C remarked that the wife left her
husbands house without his consent and without any
reasonable excuse, it was also evident from her
conduct that she had no intention to live with him,
this state of things continued for 2 years/ Hence the
wife was guilty of desertion and a decree for judicial
separation was granted
(4) Conversion
(5) Unsound mind
(6) Leprosy
(7) Venereal Disease
(8) Renunciation of the world
(9)Presumption of death

(B) Additional grounds available to wife

(1) Bigamy
(2) Rape, Sodomy or Bestiality
(3) Non-resumption of cohabitation after decree
or order of maintenance

(4) Option Of puberty

COURT S power to Rescind
The above grounds are available to wife
whether her marriage was solemnized before
or after the commencement of Marriage Laws
(Amendment) Act 1976

The Power to rescind though

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

The court may rescind the decree in the following

circumstances
(1) If the decree has been obtained ex parte

In such case, by showing reasonable excuse for

her or his absence, for his or alleged desertion

(2) If the parties had cohabited with each
other,

after the decree, or have come to terms with

each other and have begun to live as husband

and wife

(3) If the opposite party has

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

willing to live as husband and

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

(5) If the opposite party is cured of

leprosy, or venereal disease, or
unsoundness of mind, in spite of that
the petitioner is not willing to resume
cohabitation(Sec.23)
while awarding this relief the court
must be satisfied beyond reasonable
doubt. There should be strict inquiry
into the matter

Effects of judicial separation; Marriage tie is not dissolved

husband and wife are not bound
to live together or dine together
It will not be obligatory for the
parties to cohabit

It does not prevent the parties from subsequently

resuming cohabitation and living together as
husband and wife
If either spouse marries during the period he or
she will be guilty of bigamy and will be liable for
punishment under Sec.17 of the Act
The petitioner, if she be the wife, becomes entitled
to alimony from the husband and if he is the
husband he can claim maintenance from wife
under Sec.25 of H.M.Act
From the date of decree till separation continues
considered as independent woman

Mutual rights and obligations arising

from the marriage are suspended,
rights and duties under the decree
are substituted.

Nullity of Marriage and divorce (Sec.11)

Sec.11 provides
the marriages which can be declared as
Nullity of Marriages
If the essential conditions laid down
under Sec. 5 Of H.M.Act are not
followed, such a marriage becomes
null and void
Exception :-Sec. 11 is not applicable
to marriages solemnized before
H.M.Act,1955 Came into effect.

A marriage which violates any of the

following
Sec.5(1) If any party has a spouse
living
Sec.5(iv) Parties are within the
prohibited degrees
Sec.5(v) If the parties are
sapindas is void ipso jure/. The
parties need not ask for a
declaration from the court

In M.M. Malhotra Vs. Union of

India
AIR 2006 S C 80
Apex Court observed
marriages covered by Sec.11 are
void ipso jure., void from the very
inception and have to be ignored as not
existing at all. A void marriage does
not alter or affect the status of the
parties nor does it create any rights

Voidable Marriage (Sec.12)

Sec.12 read with Sec.5 of the Hindu

Marriage Act Narrates the provisions
about nullity of marriage in case of
voidable marriages
Under Sec.12(1)
A marriage solemnized, whether
before or after the commencement of the
Act, shall be voidable and be declared
as nullity on any of the following
grounds

(a) marriage has not been consummated owing

to

Impotency

Very object of marriage is to give the

legal relationship to the couple to have sexual
intercourse
Sec.12(1) makes the impotency as
disqualification and makes such marriage void.
In such cases the aggrieved party can
approach the court for nullity of marriage

As a general rule when a marriage is sought to be

annulled on the ground of impotency, medical
examination of the parties is essential
Before the Marriage Laws ( Amendment) Act 1976
It was necessary that the respondent was
impotent at the time of the marriage and
continued to be so until the institution of the
proceedings
BY Virtue of 1976 Amendment, No decree for
annulment can be granted ,if the marriage is
subsequently capable of consummation, due to
surgical operation or otherwise

Cases
Moina Vs. Amardeep, AIR 1976 Del. 399
Delhi High Court held that Under. Cl.(a) of Sec.12(1)
petitioner would be entitled to a decree of nullity
of marriage , if the marriage was not
consummated due to the impotency of the respondent
D. Balakrishna Vs. Pavala mani AIR 2001
Mad.147
Madras High Court held that where impotency was
proved by medical evidence and the marriage had
not been consummated, the marriage voidable under
Sec.12(1) of H.M.Act

Sec.12(1)(b) Unsound mind

Under English law a person of
unsoundmind is not capable of
giving consent, marriage of such a
person is void ab initio.

According to Hindu law marriage

of such person is not void, it is
voidable

in Rajeswari Misra Vs. Sidharta Pandit

AIR 2010 Ori. 41

Petitioner Husband filed a petition for annulment

of marriage on the ground that at the time of marriage
wife suffering from recurring attacks of epilepsy
Court Held that, when suit came for judgment the
ground of epilepsy was no longer available as the
ground of annulment.
But the court observed that the husband was
entitled to decree for annulment of marriage
because he had filed the suit prior to such
amendment

(C) Consent obtained by force or

fraud Sec.12(1)(c)
Any marriage solemnized shall be
voidable and may be annulled by a
Decree nullity on the ground that the
consent of
the petitioner ; or
the guardian, in the case of child
marriage before
the Child Marriage Restraint
(Amendment) Act 1978 has been

In Perminder Charan Singh Vs. Harjit Kaur

AIR 2003 S C 2310
Initiation of marriage by the husband through the
matrimonial columns
Brides father submitted brides bio-date and her status as
legally divorced
Mother of the bridegroom in her reply mentioned
that the bridegroom was also legally divorced
The evidence on record show that both the bridegroom and
his mother are aware of the Brides status
S.c held that there was no evidence of fraud on the
part of the wife or her father in bringing out the
marriage

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

(d)
Supreme court
in Mahendra Vs. Shushila
AIR 1965 sc 364
a baby was born to Sushila after 171 days from
the date of marriage. The child was fully developed
healthy child. There was no evidence of their
meeting before the marriage.
The court held that the husband was held entitled
to the decree of nullity

Divorce - Introduction
Except in the Institution of Hindu Marriage ,
All most all the remaining religious marriage
institutions have Divorce system
Ancient Hindus did not know the term Divorce
In the Good olden days, the Husband and the wife
lived together until their death
The Institution of marriage under Hindu Law is
A Sacrament being based upon a Sacred religious
ceremony.
Even after the death of Husband the wife would
not remarry
where as after the death of the wife husband
used to remarry

Even there were no customs of divorce .

This system continued for a long period
The Divorce system has been incorporated in
the H.M.ACT by the Indian Parliament
Following the English Common Law
Therefore, the concept of Divorce is new to
Hindu law
Even today the percentage of divorces in
the Hindu Marriages is very less
comparing with western Marriages.
This is the Greatness of Hindu Marriage
System.

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

Matrimonial reliefs

Divorce enunciated in Sec.13 has been amended by

several times to meet the changing social conditions
and economic conditions of Hindu Society.

It was amended in 1964 by the Hindu Marriage

(Amendment ) Act 1964

Drastic change was made in the year 1976 by the

Hindu Marriage ( Amendment) Act

OBJECT

To put full stop to the conflicts between the parties

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

Thus DIVORCE breaks away the MARRIAGE tie between

Divorce Sec. 13

H.M.Act 1955 has introduced vital

and dynamic
Changes in the institution of Hindu
Marriage., i.e., Divorce. It has laid down
clear provisions for Divorce
It is dealt with in Sec.13,13-B, 14 and 15
of the Act
Sec.13 provides the circumstances
in which the
right accrues

Sec.14 Limits the right. It says that

a petition

divorce may not be made with in

one year of the date of marriage

Except when the case is

exceptionally hardship to the
petitioner, or
of exceptionally depravity to the
respondent

Divorce ( Contd......)

Sec.15 Lays down the limitations on the right of

the divorced persons to marry again
MARRIAGE Laws (Amendment) Act 1976 has
Introduced the following Changes in the law of Divorce
(i) adultery has been made simple. Single act of
adultery may constitute a ground for divorce
Sec.13(1)(i)
( ii)Cruelty, and desertion which were the
grounds
Judl. Separation, have been made the grounds
for
Divorce Sec.13(1) (i-a) and (i-b)

Divorce ( Contd...)

(iii) Minimum period of filing a

petition for leprosy, and venereal
disease has been omitted Sec.13(i),
(iv) and (v)
(iv) The court has been given the power
to exercise
its discretion in petitions of
divorce, to grant
an alternative relief under certain
conditions
(Sec.13-A)

(v) A vital change has been

introduced by providing divorce by
mutual consent. By this the
sacramental character of Hindu
marriage has been affected (Sec.13B)
(vi)
parties can obtain divorce by
presenting a petition after one
year

(A) Grounds available to both Husband

and wife

(i) Adultery (Sec.13 (1)(i)

If any of the parties to the marriage has

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

In Bipin Chandra Vs. Prabhavathi

AIR

1967 SC 1760
Bipin chandra married
Prabhavathi . A son was born to the
couple
In 1946 One Mahendra, a retired Army
man, a friend of the family came to
their house and resided for some months.
In 1947 Bipin chandra went to England.
Bipins father found a letter said to
have been written by Prabhavathi to
Mahendra about illicit contact. Bipin s

Divorce

contd.....

To constitute a ground for divorce sexual inter

course complained must have taken place after
the solemnization of marriage with the
petitioner
Pre-marriage unchastity of the wife or
Pre- marriage sexual relation of the husband
with some other woman is not a ground of divorce
(2) Cruelty
Cruelty has become a ground of divorce after
the Marriage laws (Amendment) Act 1976

Divorce Contd......
Cruelty was defined for the first time in
RUSSEL
Vs. RUSSEL (1897) AC
395
House of Lords Observed
to constitute cruelty there must be

danger to life or injury to health,

bodily or mental

or reasonable apprehension of it.

However this definition is not valid in the
present Hindu law

Cruelty for the purpose of this Act,

means
Where one spouse has so treated the
other and manifested such feelings
towards her or him as to have
inflicted bodily injury,
or to have caused reasonable
apprehension of bodily injury,
suffering or to have injured health

Divorce

It may be physical or mental

Mental cruelty is the conduct of the
other spouse which causes mental
suffering or fear to the matrimonial
life of the other
It postulates a treatment of the
petitioner with such cruelty as to cause
a reasonable apprehension in his or
her mind
that it would be harmful or
injurious for the petitioner to live

Divorce

In Dastane Vs. Dastane AIR 1975 SC 1536

Dastane married in the year 1957. Three children
were born . His wife behaved enemically
Her conduct caused annoyance and untolerable
He filed a case for divorce alleging that his wife
behaved with him cruelly. She cut the mangalsuthra
locking out the doors when he is about to return
from his office,rubbing chilly powder on the
tongue of an infant child beating a child while in
high fever
Were some of the instances explained to the court

The trail court and the High courts gave judgments in

favour of the wife
Supreme court observed that English decisions
on Cruelty may not always be a safe guide to the
Indian social structure.
English law requires danger to life, limb or
health
But Sec10(1)(b)
Laid down a lower requirement namely
reasonable apprehension that it is harmful or
injurious for one spouse to live with the other.
SC gave judgment in favour of Mr. Dastane

Unfounded Allegations
In dharm Pal
Vs. Pushpa Devi
AIR 2006 P&H 59
Husband tortured the wife,She left the
matrimonial house ,Husband filed a
petition for restitution ,Wife proved that he
tortured her with unfounded allegation of
illicit contracts and claimed divorce
High Court held that unfounded
allegations of illicit contacts would be
treated as mental agony and cruelty

Samar Ghosh V Jaya Ghosh

2007. 4 SCC 511
Supreme court held that the question
was not of cooking food, but the
wifes cooking food only for herself
and not for the husband would be a
clear instance of causing annoyance
which may lead to mental cruelty
Legal cruelty justifying JUDICIAL
SEPARATION OR DIVORCE:

(a Actual or threatened physical violence

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

Mere suspicion without any open act cannot

amount cruelty
(3)Desertion Sec.. 13 (1)(1-b)
If the petitioner has been deserted
continuously for a period not less than two
years immediately preceding the presentation of
the petition for
judicial separation or divorce,
Such petition may be granted
The essence of desertion is abandonment of one
of the spouses by the other

For the offence of desertion 2 conditions

must be proved so far as deserting spouse is
concerned
(a) Factum of separation
(b) intention to bring cohabitation permanent
to an end (animus deserendi)
So far as deserted spouse is concerned
(a) absence of consent
(b) Absence of conduct giving reasonable
cause to the spouse leaving the matrimonial home
To form the necessary intention

Desertion is of two types

Actual desertion
(a) spouses must have parted or terminated all
joint-living
(b) Deserting spouse must have the intention
to
desert the other
(c)Deserted spouse must not have agreed to
(d) without reasonable excuse
(e) this situation must have continued for 2
years

In Lachman Vs. Meena, 1964 Sc 40

Wife was required to live with joint
family
She left the matrimonial home after 5
years from the marriage
She went to South East Asia
Husband wrote letters to return.
She replied that she would to return
in her letters when her health would
permit her.

Her offer to return was not

sincere and no intention to
return
Sc held; besides the factum of
separation there was also
animus at the time when she left
husbands house and it continued
for the period of 2 years before
the presentation of the petition.
She was guilty of desertion

In Adhyaatmam Bhamini Vs Jagadish Ambalal Shah

AIR 1997 Sc 1180
where the wife being confronted with the divorce
proceedings against her and
though present in the court, but had not made
any enquiry, as to the orders passed against her
S.C held that she had allowed proceedings to go
ex-parte against her deliberately remaining
absent. Animus of permanent desertion was
evident.
Apex court Upheld the decree passed by the
Family court and Bombay High Court

Durga Prasanna Tripathy Vs. Arundhati

Tripathy

AIR 2005 SC 3297

Petition by the husband on the ground of
desertion
Wife deserted the husband after 7 months of

marriage
Parties were living separately for 14 years
Wife was not prepared to lead conjugal life
with

the husband

Attempts were made by

husband and his relatives . No
chance getting back her
Sc Held good part of the life
of both the parties was over in
litigation. No chances for
reconciliation.
Apex Court held that there is
irretrievable break-down of

Constructive Desertion
Karnataka High Court
In Dr Srikanth Rangaharya Vs. Smt. Anuradha
AIR 1980 Karn. 8
Wilful neglect by one spouse to the other
would come within the meaning of desertion
(4)Conversion (Sec.13(1)(ii) ) It is one of the
grounds for Divorce. Conversion to another religion
is now a ground for a decree for judicial
separation after the Marriage Laws
( Amendment ) Act, 1976

A decree for divorce can be obtained by

a petitioner where the opposite party has
ceased to be a Hindu by conversion
Sarala Mudgal Vs. Union of India
AIR 1995 SC 1531
Lily Thomas Vs. Union of India
AIR 2000 SC 1650
(E) Mental Disorder Sec13 (1)(iii)
(F) Leprosy SEC.13(1)(iv)

Swarajya Lakshmi Vs. Dr.G.G. Padma Rao

AIR 1974 Sc 165

S.C. Held that lepromatous leprosy is virulent. This
type of leprosy is malignant and contiguous. Court
passed the decree

(g)Venereal Disease Sec.13(1)(v)

(h)Renunciation of the world Sec. 13(1)(vi)

(i) Not heard for seven years (Sec.13(1)(vii)

(J)Decree for judicial seperation-After one year

Sec13(1-A)(i)

(k)Restitution of conjugal rights after one year

Sec.13(1-A)(ii)

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

After the restitution decree, he

filed a petition for divorce decree
after four and half months on the
ground of wifes adultery.
Later on after a year
He brought another petition for
divorce on the ground that wife has not
complied with the decree for restitution for
a period of one year

wife resisted the petition on the

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

Court refused to pass the decree on the ground

that during the pendency of the petition for
divorce on the ground of wifes adultery, the
wife was disabled to join her husband if the
decree of divorce were to be passed in his favour,
it would amount to husband taking advantage
of his own
GROUNDS AVAILABLE TO WIFE ONLY
(Sec.13(2))
Special grounds of divorce available to wife alone:
(i) Bigamy Sec.13(2)(1) If another wife was
living before the commencement of this Act

(ii) Rape, Sodomy or Bestiality Sec.13(2)(ii)

(iii) Non resumption of cohabitation order for
one year or upwards after the passing of
maintenance order under Sec.18 H.A and
Maintenance Act 1956, or under Sec.125
Cr.P.C Sec.13(2) (iii)
(IV) Repudiation of MarriageSec.13(2)(iv) This
clause has been added by The Marriage Laws
(Amendment) Act of 1976. Under this clause a wife
whose marriage was solemnized before she
attained 15 can repudiate the marriage after
attaining 15 years but before attaining18 years

Alternate relief in divorce proceeding

Sec.13(a)
The courts may, while dealing with the petition
for divorce, have discretion to grant judicial
separation
But the courts cannot exercise this power

(a) Where the respondent has ceased to be a

Hindu

(b) renounced the world

(c) has not been heard of as being alive for a

period of 7 years or more.

DIVOCE BY MUTUAL
CONSENT

Sec.13-B
Divorce by mutual consent
. There was no provision for divorce by
mutual consent in 1955 ACT
Divorce puts an end to the marital relations
petition for divorce may be filed by any on of
the spouses to the District Court on any one
of the grounds given Under Sec.13.
Some times both the spouses may decide
to separate amicably. Such understanding
will come under Divorce by mutual consent.

Necessary Conditions

Divorce by mutual Consent was incorporated in Sec.13-B by

the Hindu Marriage (Amendment) Act 1976
Necessary conditions

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

to the marriage to the District Court

(b) Parties should have been living separately for a period of
one year or more
(c) Parties could not adjust and not been able to live
together
(d) Mutual consent to dissolve the marriage
(e) Parties must apply to the District court
(f)
not earlier than six months of the presentation of the
petition
and
(g) not later than 18 months after that date

In

Sureshtra Devi Vs. OM Prakash

AIR 1992 SC 1940
Wife stated that her consent was obtained under
pressure and threat. She was even not allowed to see
or consult her relatives before filing the petition.
SC held that a party to the petition for divorce by
mutual consent, can unilaterally withdraw his
consent at any time till passing of the decree.
If in a subsequent motion seeking divorce under subsection (2) is not of both,
because of the withdrawal of consent by one of the
parties, the court gets no jurisdiction

Supreme court has reviewed the previous case

In
Ashok Hurra Vs. Rupa Bipin Zaveri
AIR 1997 SC 1266
It was observed that the
question of withdrawal of consent pending the case of
divorce is open to be withdrawn any time till the
decree is passed.
Here consent not withdrawn within 18 months
Civil and criminal proceedings were drawn against each.
Husband married and begot a child
Circumstances warranted for exercise of jurisdiction
Under 142 of I.C and granted divorce by awarding 2 lakhs
to the wife, as a condition precedent to the decree

Punjab & Haryana High court

In Charanjeet Mannu Vs Neelam Mannu
AIR 2006 P & H 201
court should not decree for divorce before 6
months of time from the date of filing petition
which is mandatory .
It cannot be waived off on the ground that the
parties have already litigated for more than
6 months in the past and no useful purpose
would be served by keeping the petition
pending for lapse of 6 months

Punjab High Court

In Sweta Garg

Vs. Rajat Goyal

AIR 2009 Bom

Observed that the waiting period of 6 can be waived
on concession of both the parties
But Supreme Court

In Smt. Poonam Vs Sumit Tanwar A I R 2010

1384

SC

If the application was disposed off by the family

court to direct the parties to wait for statutory
period of six months, but the parties filed the
petition for issuance of direction to waive the
statutory period, the court observed that, the
petition has been filed without any sense of
responsibility either by the parties or by the counsel. Such

PETITION FOR divorce

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

No court could entertain a

petition for divorce before the
expirations of 3 years from the
date of marriage

But the aforesaid Amendment

reduced the period to one year

But the court could do so before the expiry period

(a) In cases of exceptional hardship to the

petitioner
(b) Exceptional depravity of the respondent

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

Object Of Sec.14
Sec.14 provides restrictions presumably designed to
prevent party recourse to legal proceedings before
the parties have made real effort to save their
marriage from disaster
General Principles of exceptional hardship or
exceptional depravity
Madras High Court in Meganatha Nayyar Vs. Smt.
Susheela AIR 1957 Mad. 23 held
it is for the judge who hears the application to say
whether in the circumstances a prima facie case of
exceptional hardship or depravity has been made
out

His Lordships referred to an English decision,

BOWMEN Vs. BOWMEN 1949 2 All. E.R. 127
observed that this case gave some guidance
in considering what could be treated as exceptional
hardship or exceptional depravity by laying down
the following general principles:
(1) Adultery with one person is not exceptional
depravity
(2) Adultery plus desertion by the husband in
favour
of another woman plus cruelty to his wife
constitutes exceptional hardship to the wife

(3)Apart from adultery with another matrimonial offence,

the consequences of adultery may cause exceptional
hardship ,when a wife has a child by adultery
Exceptional Depravity
(4) If a husband commits adultery within a few weeks
of his marriage, or promiscuously with his wifes
sister, or a servant in the home,
that may be held to be exceptional depravity
(5) Cruelty coupled with aggravating
circumstances ., i.e., drunkenness and neglect may be
exceptional hardship on the aggrieved spouse or if
coupled with perverted lust exceptional depravity by the
proposed respondent

(6) Husbands adultery promiscuously with

other women
Sec.14(2) The court shall have
regard to the interests of any children of
the marriage and
to the question
whether there is a reasonable probability
of a reconciliation between the parties
before the expiration of the said one year

Divorced persons when remarry Sec.15

SEC .15 SAY THAT THE DIVORCED

PERSONS MAY MARRY AGAIN IN THE
conditions:
(1) when the marriage has been
dissolved and
there is no right of appeal against
the decree
(2) If there is right of appeal but the
time has
expired, without filing appeal

Differences between Judicial Separation and

Divorce
Judicial Separation
(Section 10)

Divorce (Section
13 )

It suspends the rights and duties

for some time
Object is the hope of

Adjustment

It is Lesser remedy

It puts an end

To give the last resort

It is a drastic remedy

Differences between Judicial Separation and

Divorce (Contd...)
Judicial Separation
(Section 10)

Divorce (Section
13 )

Parties are entitled to get

another marriage of their choice

By decree, parties cannot remarry

another person

After J.S, the wife can file and

succeed for maintenance

Divorced woman cannot file for

maintenance under HAM act but
she can file for maintenance
under Sec.125 CrPC

Legitimacy of children of Void and

voidable marriages Sec. 16
Sec. 16 deals with the position of

child born out of a void and voidable

marriages
Sec. 16(1)
children born out of a void marriage
under Sec11, regardless of whether any
decree of nullity of marriage has been
granted in any proceeding
under the Act or otherwise is protected
and considered as legitimate

In Bhagadi Kanna Babu Vs. Vuggina

pydamma

AIR 2006 SC 2403

Deceased died leaving his first wife and

daughter born of a second marriage
SC held that the daughter of the second
marriage is entitled to inherit the
property of the deceased being
legitimate child of the deceased along
with the first wife

Sec.16(2)
Children born out of Voidable Marriage
A child of voidable marriage would be legitimate.
A voidable marriage can only be challenged
at the instance of either party to the marriage.
It cannot be challenged after the death of one of
the parties.
Hence the issue of such marriage would be legitimate
Board of Trustees Of V.P.T Vs. Presiding
Officer
2000 (5) ALT 577

Facts

A was an employee of V.P.T. A marriedB to

whom no children were born. Then A married C and
got a daughter, later A died leaving behind Ist wife B,
daughter through second marriage, and C , second
wife.
Here B and C consented to share the retirement
benefitsequally before the Lok Adalat and
Job offered by the VPT on compassionate grounds
shall be given to the daughter
V.P.T rejects the appointment on compassionate
grounds to the daughter, on the ground that
she is not a legitimate daughter

High Court held that the Board of Trustees

of V.P.T. Has no authority to decide the
legality or illegality of child of the employee,
when once it was decided by Lok Adalat
and the decision is equal to the Decree of
a Civil Court and the child born out of
second marriage becomes legitimate
Under section.16 of H.M.Act,1955.
Therefore the objections of the Board are
not valid

Status of the children born out of

Void and Voidable Marriages
Sec.16(3)
The children of born out of void and
voidable
marriages have the status of
legitimate children
and inherit the property of their
parents only

Punishment for bigamy

Sec17

Sec.17
(1) If the marriage is solemnised after the ACT
1955Came into force
(2) at the time of marriage either party has a
spouse living
Once the ceremonies are proved to have been
performed, the marriage becomes properly
solemnised and
if contacted, while the first marriage is still
subsisting,
then the provisions of Sec.494 I.P.C will be applicable

Punishment for contravention of Certain conditons Of Hindu Marriage

Sec.18

SEC.18
that marriage solemnized in contravention of
(a) age of parties to marriage Sec.5(iii)
(b)Prohibited degrees of marriage Sec.5(iv)
(c) sapinda relationship. Sec.5(v)
In case of (iii) of Sec.5
,Simple Imprisonment of 15 days or fine Rs.1000 or both

In case of (iv) & (v) of Sec.5:

Simple Imprisonment of One month, Fine Rs.1000
or both-

Jurisdiction of courts to decree and grant

relief Sec.19
Sec.19 says that
every petition under this Act shall be
presented to the District Court,with in the local
limits of whose Ordinary Original Civil
jurisdiction
(i) the marriage is solemnised
(ii) the respondent resided, at the time of filing
petition
(iii) Parties last resided
(iii-a) in case wife is the petitioner,
where she is residing on the date of presentation
of petition

(iv) petitioner is residing at the time

of filing the petition, in case where the
respondent is residing outside the
territories to which this Act extends
Or
has not been heard of as being alive
for 7 years or more by those who
would naturally have heard of him, if he
were alive

By virtue of Marriage Laws(Amendment) Act

1976
, authorises the filing of petitions in the courts
within whose jurisdiction the respondent is residing
Here District Court Means
City Civil Court
Principal Civil Court of Original Jurisdiction
Includes
any other Civil Court Which may be specified by
Gazette notification, by the State

For the purpose of jurisdiction

Resides means
a place where a spouse has made his or her
permanent place of living.
It must be a place
where the spouses intend to live generally and
permanently
Where the spouses were living at different places
due to employment Visit by one spouse to the others
place amount to
reside at such places

Contents verification
(sec.20)

Sec.20
Petition presented under this Act shall
state the facts on which the claim to
relief is founded
And there is no collusion between the
petitioner and the other party to the
marriage
The statements of the petition shall
be verified by the petitioner or
some other competent person

Application of Civil Procedure Code

Sec.21 All the proceedings under this Act shall
be regulated By the C.P.C
Sec.21-A Power to transfer petitions in certain
cases
This section was introduced by the marriage
Laws (Amendment) Act 1976

Where various petitions have been presented

by the parties to a marriage praying for a decree
either of judicial separation or of divorce,
whether in the same District Court or in the
different District courts, in the same State _

The Following rules shall be followed

(a)
If the petitions are filed in the same Dist. Court
the petitions shall be tried and heard by the same
court

(b) If the petitions are presented to the different

District courts,

the petition presented later shall be transferred

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

Trial And disposal of petitions

( Sec.21-B)
This Section has been added by 1976
Amendment. The section is added with a
view to expedite the trial made under
this Act
Trial is required to continue the
matrimonial
proceedings from day to day till its
conclusion

Trial should be concluded as expeditiously as

possible within 6 months from the date of service
of notice to the respondent

Appeal proceedings to be completed within

3 months from the date of service of appeal notice
on the respondent
Documentary evidence ( Sec.21-C) Inserted by
Marriage Laws (Amendment )Act 1976

No document shall be inadmisable in evidence

in any proceeding at the trail of a petition on the
ground that it is not duly stamped or registered

Proceedings in camera may not be printed or published

(Sec.22)
This rule is enacted so that reports of judicial proceedings
relating to matrimonial disputes may not produce an
unhealthy influence on the public.
Every proceeding under this Act shall be conducted in
CAMERA . It shall not be lawful for any person to print
or publish any matter in relation to any such proceeding
Except a judgment of a High Court or Supreme court,
or with permission of the court
If any person prints publishes in contravention, he shall
be punishable with fine Rs.1,000

Decree in Proceedings
Sec.23

Sec.23 (1) Rules and conditions for the

guidance of the court.
Upon the satisfaction of the conditions
the court may pass decree,
whether defended or not.
Under Sub-Sec.(2)
Before granting a Decree,
the court has a duty to make every
endeavour in the first instance to bring about
reconciliation in every case, where it is
possible,
.

If the proceeding under Sec.23(2) has

not been followed by the trial court,
the same can be followed by the
Appellate court.
That does not mean the same can be
ignored
The very object of this provision is to
bring harmony between the parties, in
order to bring stability in the status of
marriage

Corroboration

In matrimonial proceedings ground for Matrimonial cause

must be strictly proved. The court must be satisfied beyond all
reasonable doubts, that the ground for relief is proved.
Evidence of spouse must be corroborated.
But nothing to prevent the court from passing a decree even on
uncorroborated testimony, where the facts otherwise justify

In Bipin Chandra Vs. Prabhavathi, 1956 SCR 838

SC held
that though corroboration is not required as an absolute
rule of law
in proof matrimonial offence, the court will insists upon
corroborative evidence as a precaution, unless its absence is
accounted for, to the satisfaction of the court

Court cannot pass Ex Parte

Decree

Courts cannot pass Ex Parte decrees in

Matrimonial suits
The court remains under the
obligation to satisfy itself that there is
sufficient legal evidence to support the
decree and record the evidence.
As a rule should not decide a case on mere
admissions of the parties, without recording
evidence
The court must take into account the
following conditions before passing decree:

: (a) Not taking advantage of his or

wrong Sec.23(1) (a)
Court before granting relief should be
fully satisfied that some established
ground of relief exists and
the petitioner is not in any way
taking advantage of his or her wrong

In Meera Bai Vs. Rajinder Kumar Sabti

AIR 1986 Del.136

Husband contracted second marriage and he allowed
an ex parte decree for restitution of conjugal rights to
be passed against him.
Neither he cared for first wife nor his children nor paid
maintenance. He filed a petition against his first wife for
dissolution of marriage under Sec13(1-A) for failure to
comply with restitution for a period of one year
Court held that it would amount to taking advantage of
his own wrong
Exception
This point is not applicable where a petition is filed for
nullity of marriage on the ground of unsoundness of
mind of the other party to the marriage

(b) Absence of Connivance

and
condonation
Sec.23(1)(b)
There should not be any connivance with the respondent or
the petitioner should not have condoned the acts of the
respondent
Supreme Court in Dastane Vs. Dastane AIR 1975, 1534
(Case of Judicial Separation)
accepted the contention of the petitioner that he was
subjected to inexcusable cruelty by his wife and the
contents of cruelty were sufficient to establish a case for
judicial separation,
yet the remedy was refused on the ground that the petitioner
has condoned the offence

Consent given for petition of divorce by MUTUAL

CONSENT should not be by fruad, force or
undue influence
Sec 23.(1)(bb)
(c) Absence of Collusion Sec.23(1)(c)
(d) no unreasonable delay Sec.23 (1)(d)

In Jyoti chandra Vs. Meera AIR 1970

Cal..206
wife filed a petition
after delay of 21 months
Explanation of delay due to sisters marriage,

Had she filed the petition, it

would have brought a bad
reputation and for finalisation
of her sisters marriage
Hence she preferred to file
after the marriage
Court held that the explanation
was held to be justified

Absence of legal bar Sec.23(1)(e)

Amendment Act of 1976 has cast a duty
on the courts to make an endeavour to
bring about reconciliation. In such procedure
if the parties desire or if the court thinks fit,
it may adjourn for a period of not more than
15 days..
It may refer the matter to a person , either
named by the parties or by the court with a
direction to report to the court about
conciliation

Maintenance pendente lite and expenses of

proceedings ( Sec.24)
The provision of maintenance and pendente lite
in favour of needy spouse applies irrespective of
whether such spouse appeared as the initiator
of the main proceeding or not
Once an order is passed, no matter what happens
to the petitioner there after. The liability to pay
maintenance and expenses of the litigation in
respect of period during which the proceedings
were pending cannot be avoided

Application for such expenses of

the proceeding and the monthly sum
during the proceedings shall be
disposed off within 60 days from
the date of service of notice to wife or
husband
Maintenance would be effective
from the date of Service of
Summons in the main petition

Exceptions in the following conditions there is

no duty cast upon the court:In the case of a petition for divorce on the
ground of Conversion, unsoundness of mind,
V.D . incurable leprosy, renunciation of the
world or unavailability of one of the parties
Under Sec.23(A), by virtue of Marriage Laws
(Amendment) Act, 1976, the court may grant
relief, if the petitions adultery, cruelty, or
desertion is proved , in divorce, judicial
separation

Who May Apply

The High courts of Bombay in
Kamala Devi Vs. Sharma Rupchand and others AIR
1958 Bom.466,
Mysore High Court in Nagappa Vs. Vimala Devi,
AIR 1957 Mrs.44 and
Punjab High Court in Rameshwarnath Vs. Kanta
devi AIR 1957 Punj.85 have clearly held that the
words petitioner and respondent in Sec.24 mean
respectively, the party who had made the application
under this section and the person opposing the
application or against whom the claim is made

Object and Scope of Sec.24 is

To ensure that a party to a proceeding does not
suffer during the pendency of the proceedings by
reason of his or her poverty
in Chitralekha Vs. Ranjit Rai AIR 1977
Del.176
laid down that the object behind Sec.24 is to
provide financial assistance to the indigent
spouse to maintain herself or himself during
the pendency of the proceedings and also to
have sufficient funds to defend or to carry on
the litigation

Maintenance for children also

In Jasbir Kaur Sehgal Vs. Dist. Judge,Dehradun
AIR 1997 SC 3397
S.C held that Sec.24 cannot be given restricted meaning.
The wifes claim to maintenance pendente lite would include
her maintenance and that of her daughter living with her.
Supreme court by giving new dimensions to
Sec.24 further observed that Sec.24 no doubt talks of
maintenance of wife during pendency of proceedings but this
section cannot be read in isolation
And cannot be given restricted meaning to hold that it is the
maintenance of the wife and no one else.
But Sec. 24 does not include educational expenses for an
adult child

Permanent alimony and

MainteanceSec.25

Sec.25 Permanent alimony and maintenance

the court has been empowered
to direct the opposite party at the time of
decree or subsequently
to pay maintenance to the petitioner. While
ordering for maintenance, it shall take into
account the status of the opposite party
It can rescind or modify the order at subsequent
stage ,if the circumstances so warrant
Ex- Unchaste or remarriage

In Rameshchandra Rampratabji Daga

Vs.
Rameshwari R.C. Daga AIR 2005 SC 422
Whether a woman re-married during the subsistence of
her first marriage can claim maintenance from her
second husband
SC. Bigamous marriage may be declared illegal, but
it cannot be said to be immoral so as to deny even
the right of alimony or maintenance to a spouse
financially weak and economically dependent
The permanent alimony is maintainable in cases of
divorce and annulment , void and voidable
marriages

The court may rescind the maintenance alimony order in

two conditions:(a) If the court thinks that there is a change of
circumstances, at the instance of either party, it may vary,
modify or rescind any such order Sec.25(2)
(b) if the court is satisfied that the party in whose favour an
order has been made has re- married or
if such party is wife, she has not remained chaste,
If such party is husband he has had a sexual intercourse
outside the wedlock, it may vary, modify, or rescind such
order Sec25(3)
In such case the doctrine of estoppel, and res judicata
cannot be invoked

Sec.26 Maintenance, custody, Edn., of Minor Children

provided for interim orders from time to time as also for
making provisions in the decree
with regard to
custody , maintenance and education of minor children.
Therefore Sec.26 empowers the court to provide for the
maintenance of minor children.
It applies for both pendente lite, and also for after
passing of the decree.
However the court must be cautious while passing the
decree, with regard to the facts and circumstances

Disposal of property Sec.27

This section empowers the court to make

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

IN
Balakrishna Ramachandra Kadam

Vs.

Sangeetha Balakrishna Kadam

AIR 1997 SC 3562

Sc Held that the property in Sec.27 is not
limited to only that property which is given
to the wife at the time of the marriage it also

original civil jurisdiction

Appeals from decree and orders (Sec.28)

This section was substituted By Marriage Laws(Amendment )Act 1976
Sec.28(1) All appeals shall be appealable
as decrees of the court of Original Civil Jurisdiction.
Every such appeal lies to the Court to which appeals ordinarily shall
lie
Sec. 28(2) Orders made by the Court
Under Sec.25( Permt. Alimy) &
Sec.26 ( Mntc. . Of. Minr. childn)
are appealable, provided they are not interim orders.
Appeals under Sec.28(2) shall be preferred Within 30 days
from the date of decree or order.
There shall be no appeal under this section ,only on the subject of cost

Sec.28(3) No appeal under this section on the

subject of costs only
Sec.28) (4) Appeal shall be preferred within a
period of 90 days from the date of decree or order
Enforcement of decrees and orders ( Sec.28-A)
This was inserted by 1976 Amendment Act.
All Decrees and orders shall be enforced as
decrees of the court of Original Civil Jurisdiction
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