Hindu marriage act, 1955
“During the pendency of this Transfer Petition No. 21 of 1997 before this Court, both the parties have tried to settle their disputes and it is stated by the learned counsel for both the parties that the parties have settled their disputes mutually and a joint petition incorporating the terms of the settlement has been filed before this Court. The parties are also personally present in Court today. Both the parties have also filed affidavits in support of the application containing the terms of the settlement. It has been indicated in the said terms of settlement that such settlement has been arrived at voluntarily and keeping in mind the interests of both the parties and the minor son. It appears to us that the terms of settlement are beneficial to the interests of both the parties and also the interests of the minor son. A prayer has also been made before us as contained in the terms of settlement that the divorce petition bearing case No. 134 of 1996 pending before the Family Court at Ajmer may be treated as a divorce petition by mutual consent under Section 13-B of the Hindu marriage act, 1955 and a decree of divorce be granted. As it appears to us that in the facts of the case, such decree of divorce will be beneficial to the interests of both the parties, we direct for a decree of divorce by treating the pending application as an application made under Section 13-B of the Hindu marriage act, 1955″. [AIR 1999 SCW 4738 : (1998) 8 SCC 369]
1. A woman cannot be a divorcee unless there was a marriage in the eye of law.
2. Alimony-The court has to consider the status of the parties, their respective needs, the capacity of the husband to pay-JT 2011 (7) SC 553
3. Appeal-Under S. 21 of Hindu marriage act provisions of Code of Civil Procedure, 1908, as far as may be, are applicable but that is subject to other provisions contained in the act and to such rules as the High Court may make in this behalf. Under S. 28 of Hindu marriage act decree of divorce is appealable. [AIR 1998 SC 764]
4. Burden Legal: The legal burden is upon the petitioning spouse to establish by convincing evidence beyond any reasonable doubt that the respondent abandoned him or her without reasonable cause. The petitioner must also prove that there was desertion throughout the statutory period and there was no bona fide attempt on the respondent’s part to return to the matrimonial home and that the petitioner did not prevent the other spouse by his or her action by word or conduct from cohabitation. The expression “wilful neglect” included in the section does not introduce a new concept in Indian law unknown to the English law, but is only an affirmation of the doctrine of constructive desertion. The said doctrine is not rigid but elastic and without doing violence to the principles governing it, it can be applied to the peculiar situations that arise in an Indian society and home. No inspiration could be derived from S. 9 of the act in order to construe the scope of the expression “without reasonable cause” and whether there is a reasonable cause or not is a question of fact to be decided on the facts of each case. [Bipin Chandra v. Prabhavati, (1956) SCR 838]
5. Burden of Proof -The legal burden throughout a case is on the husband, if petitioner, to prove that his wife deserted him without cause. To discharge that burden, he should proof the fact that he asked her to join her and she refused. That is a fact from which the court may infer that she deserted him without cause but it is not bound to do so. Once he proves the fact of refusal, she may seek to rebut the inference of desertion by proving that she had just cause for her refusal; and indeed, it is usually wise for her to do so but there is no legal burden on her to do so. Even if she does not affirmatively prove just cause, the court has still, at the end of the case, to ask itself:Is the legal burden discharged? Has the husband proved that she deserted him without cause?”
6. Burden of proof-The offence of desertion must be proved beyond any reasonable doubt and as a rule of prudence the evidence of the petitioner shall be corroborated. In short, Apex Court equated the proof required in a matrimonial case to that in a criminal case.[Bipin Chandra v. Prabhavati, (1956) SCR 838]. whom the burden of proof lies to establish that the deserting spouse has just cause or not to leave the matrimonial home. The burden on the petitioner seeking divorce.
7. Burden: Legal burden always remains on the petitioner; and onus of proof shifts and is a continuous process.
8. Child of a void or voidable Marriage can only claim rights to the property of his parents, and no one else. The legislature has used the word “property” in Section 16(3) and is silent on whether such property is meant to be ancestral or self-acquired. [(2011) 11 SCC 1]
9. Concept of Hindu Marriage-In the system of marriage prevailing in the Hindu society, so long as marriages continue to be arranged by the parents, it will be iniquitous to allow the sins of the parents who arrange the marriage to visit on their children who marry. marriage, according to Hindu Law, is a sacrament and a holy union for the performance of religious duties. There can be no question of either endangering or rupturing that relation on account of the conduct of the parents. That is why marriage even though brought about during the minority of either party thereto does not make the marriage invalid. Divorce and dissolution of marriage are concepts which were alien to Hindu Law before the statute stepped in to modify the traditional law. From the moment a marriage has been completed the relation of the husband and wife has to be considered only from the point of view of the welfare of the husband and wife and, also, we must add, of the children, if any, of the marriage.[AIR 1974 SC 165]
10. Condonation means forgiveness of the matrimonial offence and the restoration of offending spouse to the same position as he or she occupied before the offence was committed. To constitute condonation there must be, therefore, two things: forgiveness and restoration.[AIR 1975 SC 1534 ]
11. Condonation of cruelty– The evidence of condonation consists here in the fact that the spouses led a normal sexual life despite the respondent’s acts of cruelty. This is not a case where the spouses, after separation indulged in a stray act of sexual intercourse, in which case the necessary intent to forgive and restore may be said to be lacking. Such stray acts may bear more than one explanation. But if during cohabitation the spouses, uninfluenced by the conduct of the offending spouse, lead a life of intimacy which characterises normal matrimonial relationship, the intent to forgive and restore the offending spouse to the original status may reasonably be inferred.[AIR 1975 SC 1534 ]
12. Conjugal rights’: The right which husband and wife have to each other’s society and marital intercourse. The suit for restitution of conjugal rights is a matrimonial suit, cognisable in the Divorce Court, which is brought whenever either the husband or the wife lives separate from the other without any sufficient reason, in which case the court will decree restitution of conjugal rights. In India it may be borne in mind that conjugal rights i.e. right of the husband or the wife to the society of the other spouse is not merely creature of the statute. Such a right is inherent in the very institution of marriage itself [AIR 1984 SC 1562]
13. Consent of parties- If the court is satisfied that the consent of parties was not obtained by force, fraud or undue influence and they have mutually agreed that the Marriage should be dissolved, it must pass a decree of divorce.[ (1991) 2 SCC 25]
14. Consumption of marriage: The court held that without going into the question as to who was the guilty party, it was evident that the marriage had not been consummated and could not be consummated in future also. Accordingly the Court annulled the marriage for the reason that it was satisfied that – “quoad hunc et quoad hunc, these people cannot consummate the marriage.”[AIR 1970 SC 137]
15. Cruealty is a changing concept: The cruelty alleged may largely depend ‘upon the type of life the parties are accustomed to or their economic and social conditions. It may also depend upon their culture and human values to which they attach importance. We, the Judges and lawyers, therefore, should not import our own notions of life. We may not go in parallel with them. There may be a generation gap between us and the parties. It would be better if we keep aside our customs and manners. It would be also better if we less depend upon precedents. Because as Lord Denning said in Sheldon v. Sheldon, (1966) 2 All ER 257 (259) “the categories of cruelty are not closed.” Each case may be-different. We deal with the conduct of human beings who are not generally similar. Among the human beings there is no limit to the kind of conduct which may constitute cruelty. New type of cruelty may crop up in any case depending upon the human behaviour, capacity or incapability to tolerate the conduct complained of. Such is the wonderful/realm of cruelty. [ AIR 1988 SC 121]
16. Cruelty defined under S. 498A of the Indian Penal Code needs guilty mind, whereas in matrimonial cases, ‘mental element’ is not necessary. Parliament enacted Sec. 13(1)(i-a) of the Hindu marriage act. The context and the set up in which the word ‘cruelty’ has been used in the section seems to us, that intention is not a necessary element in cruelty. That word has to be understood in the ordinary sense of the term in matrimonial affairs. If the intention to harm, harass or hurt could be inferred by the nature of the conduct or brutal act complained of, cruelty could be easily established. But the absence of intention should not make any difference in the case, if by ordinary sense in human affairs, that act complained of could otherwise be regarded as cruelty. The relief to the party cannot be denied on the ground that there has been no deliberate or wilful ill-treatment. [AIR 1988 SC 121]
17. Cruelty instances: i. Giving repeated threats to commit suicide and even trying to commit suicide on one occasion by jumping from the terrace. ii. Pushing the Appellant from the staircase resulting into frActure of his right forearm. iii. Slapping the Appellant and assaulting him. iv. Misbehaving with the colleagues and relatives of the Appellant causing humiliation and embarrassment to him. v. Not attending to household chores and not even making food for the Appellant, leaving him to fend for himself. vi. Not taking care of the baby. vii. Insulting the parents of the Appellant and misbehaving with them. viii. Forcing the Appellant to live separately from his parents. ix. Causing nuisance to the landlord’s family of the Appellant, causing the said landlord to force the Appellant to vacate the premises. x. Repeated fits of insanity, abnormal behaviour causing great mental tension to the Appellant. xi. Always quarreling with the Appellant and abusing him. xii. Always behaving in an abnormal manner and doing weird Acts causing great mental cruelty to the Appellant.
18. Cruelty—Bad temperament—It may not be conducive for the parties and may indirectly result in ailments but such conduct does not constitute cruelty entitling divorce from the spouse.[AIR 1988 SC 407]
19. Dead marriage-In Chanderkala Trivedi (Smt.) v. Dr. S. P. Trivedi, (1993) 4 SCC 232 it was held that if a marriage was dead and there was no chance of its being retrieved it was better to bring it to an end. In this case the marriage is dead both emotionally and practically. Continuance of marital alliance for name-sake is prolonging the agony and affliction.
20. Decree-Decree passed by civil court prior to establishment of Family Court can not be executed by Family Court-AIR 1956 SC 87
21. Desertion: The ingredients of desertion as well as constructive desertion are the same, namely, animus and factum, though in one case there is actual abandonment and in the other there is expulsive conduct. Under certain circumstances the deserted spouse may even stay under the same roof or even in the same bed-room. In our society, it is well known that in many a home the husband would be guilty of expulsive conduct towards his wife by completely neglecting her to the extent of denying her all marital rights, but still the wife, because of social and economic conditions, may continue to live under the same roof.
22. Desertion-the question of desertion is a matter of inference to be drawn from the facts and circumstances of each case and those facts have to be viewed as to the purpose which is revealed by those facts or by conduct and expression of intention, both interior and subsequent to the actual act of separation.[ AIR 1990 SC 594]
23. Divorce-It is settled law that this Court grants a decree of divorce only in those situations in which the Court is convinced beyond any doubt that there is absolutely no chance of the Marriage surviving and it is broken beyond repair.[AIR 2011 SC 1637]
24. DNA examination, court can direct to determine the veracity of the allegation
25. DNA test if wife declines, presumption against her u/s 114 (h) of the Evidence Act
26. DNA Testing is the most legitimate and scientifically perfect method to establish parenthood-Dipanwita Roy v. Ronobroto Roy, AIR 2015 SC 418
27. Every marriage solemnised in contravention of one or other condition prescribed for valid marriage is not void. Section 5 prescribes six conditions for valid marriage.[AIR 1978 SC 1351]
28. Formal declaration-Section 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
29. Hindu Marriage can be solemnized in accordance with the customary rites and ceremonies of either the boy’s caste or the girl’s caste (if it is an inter-caste Hindu Marriage)[(2010) 13 SCC 780]
30. Hindu marriages Validity act, 1949– Notwithstanding anything contained in any other law for the time being in force or in any text, or interpretation of Hindu Law, or in any custom or usage, no marriage between Hindus shall be deemed to be invalid or ever to have been invalid by reason only of the fact that the parties thereto belonged to different religions, castes, sub-castes or sects.(Sec-3)
31. Hindu Widows’ Re-marriage act, 1856: No marriage contracted between Hindus shall be invalid, and the issue of no such marriage shall be illegitimate, by reason of the woman having been previously married or betrothed to another person who was dead at the time of such marriage, any custom and any interpretation of Hindu law to the contrary notwithstanding.(Sec-1)
32. Incapacity after divorce-At the time of the divorce the wife may be pregnant. She may give birth to a child after the decree. If a marriage is contracted soon after the divorce a question might arises to who is the father of the child viz., the former husband or the husband of the second marriage. Incapacity for marriage of such persons whose marriage is dissolved by a decree of divorce for a period of one year was presumably enacted to allay apprehension that divorce was sought only for contracting another marriage or to avoid dispute about the parentage of children. No consequences having been provided for in respect of the marriage in contravention of the proviso to S. 15, it cannot be said that such marriage would be void. Again a marriage performed in violation of the proviso to S. 15 of the Hindu marriage act is not void. [AIR 1978 SC 1351]
33. Irretrievable breakdown of a Marriage cannot be the sole ground for the dissolution of a Marriage- V. Bhagat v. Mrs. D. Bhagat, (1994) 1 SCC 337
34. Irretrievable breakdown of marriage-the essence of marriage is a sharing of common life, a sharing of all the happiness that life has to offer and all the misery that has to be faced in life, an experience of the joy that comes from enjoying, in common, things of the matter and of the spirit and from showering love and affection on one’s offspring. Living together is a symbol of such sharing in all its aspects. Living apart is a symbol indicating the negation of such sharing. It is indicative of a disruption of the essence of marriage “breakdown” and if it continues for a fairly long period, it would indicate destruction of the essence or marriage “irretrievable breakdown.”[AIR 1997 SC 1266 ]
35. Irretrievable breakdown- Proof of such a breakdown would be that the husband and wife have separated and have been living apart for, say, a period of five or ten years and it has become impossible to resurrect the marriage or to reunite the parties. It is stated that once it is known that there are no prospects of the success of the marriage, to drag the legal tie acts as a cruelty to the spouse and gives rise to crime.[Ashok Hurra v. Rupa Bipin Zaveri, (1997) 4 SCC 226]
36. Judicial Separation-Hindu marriage act, 1955 had come into force on 18th May, 1955, Section 10 of this act provided for the judicial separation. Under S. 10 of the Hindu marriage act either party to a marriage was entitled to present a petition to the District Court praying for a decree for judicial separation on any of the grounds specified in sub-section (1) of Section 13 and in the case of 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. Thus, in order to get a judicial separation, it was necessary to obtain a decree under the above provision and then alone it could be recognised as a judicial separation.[ AIR 1992 SC 967]
37. Legitimacy of Child- A marriage in contravention of conditions (i), (iv) and (v) of section 5 would be ab initio void which would mean that the parties did not acquire the status of husband and wife, comprehensively provided for its impact on a child born of such marriage. If any child is born to them before the marriage is annulled by a decree of nullity, indisputably such a child would be illegitimate but S. 16 confers the status of legitimacy on such children. A child born to parties who had gone through a form of marriage which is either void under S. 11 or voidable under S. 12, before the decree is made would be illegitimate, the law nonetheless treats it as legitimate even if the marriage is annulled by a decree of nullity and such child shall always be deemed to be a legitimate child notwithstanding the decree of nullity.
38. Limitation Act – Ss. 3, 4 to 24, Limitation act, 1963 would at once apply to the special law. The result is that the court hearing the appeal from the decree or order passed under the Hindu marriage act would under S. 3 of the Limitation act have power to dismiss the appeal if made after the period of limitation of 30 days prescribed therefor by the special law. Similarly under S. 5 for sufficient cause it will It have the power to condone delay. Likewise under S. 12(2) the time spent in obtaining a certified copy of the decree or order appealed from will be excluded. If it is so, S. 12(2) of the Limitation act is attracted, and the appellants in all the three appeals will be entitled to exclude the time taken by them for obtaining certified copy of the decree and order.[ AIR 1989 SC 1477]
39. Living separately connotes not living like husband and wife.It has no reference to the place of living.[Smt. Sureshta Devi v. Om Prakash, (1991) 2 SCC 25]
40. Maintenance-A wife was entitled to claim separate maintenance and residence from her husband if he should marry again. If the wife could claim maintenance on the ground that the husband had remarried it could not be said that she had deserted her husband without reasonable cause within the meaning of S. 10 (1) (a) of the act.
41. Maintenance-marriage of a woman in accordance with the Hindu rites with a man having a living spouse is a complete nullity in the eye of law and she is not entitled to the benefit of S. 125 of the Code.[AIR 1988 SC 644]
42. Marriage under HMA is but a Sanskara or Sacrament but under Special Marriage Act is a social contract.[AIR 1996 SC 1963]
43. Medical evidence is that the normal period of gestation of a child is 280 days, that a child born 180 days after the last menstruation is not likely to be born alive or if born alive it will survive only if special care is taken, that such a case would not be that of normal delivery and its weight would be 1/2 to 2 lbs, can not be relied as correct position of law[AIR 1965 SC 364]
44. Mental cruelty cannot remain static; it is bound to change with the passage of time, impact of modern culture through print and electronic media and value system, etc. etc. What may be mental cruelty now may not remain a mental cruelty after a passage of time or vice versa. There can never be any straitjacket formula or fixed parameters for determining mental cruelty in matrimonial matters. The prudent and appropriate way to adjudicate the case would be to evaluate it on its peculiar facts and circumstances while taking aforementioned factors in consideration.[AIR 2011 SC 114]
45. Mental cruelty-The married life should be assessed as a whole and a few isolated instances over certain period will not amount to cruelty. The ill-conduct must be precedent for a fairly lengthy period where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, one party finds it extremely difficult to live with the other party no longer may amount to mental cruelty. Making certain statements on the spur of the moment and expressing certain displeasure about the behaviour of elders may not be characterized as cruelty. Mere trivial irritations, quarrels, normal wear and tear of married life which happens in day to day life in all families would not be adequate for grant of divorce on the ground of cruelty.[AIR 2011 SC 114]
46. Mental disorder-The ideas of unsoundness of ‘mind’ and ‘mental-disorder’ occur in the section as grounds for dissolution of a marriage, require the assessment of the degree of the ‘mental-disorder’. Its degree must be such as that the spouse seeking relief cannot reasonably be expected to live with the other. All. mental abnormalities are not recognised as grounds for grant of decree. If the mere existence of any degree of mental abnormality could justify dissolution of a marriage few marriages would, indeed, survive in-law. For purposes of S. 13(1)(iii) ‘schizophrenia’ is what Schizophrenia does. [ AIR 1988 SC 2260]
47. Mutual consent Divorce-Contested matter converted u/s 13B of the HMA and grant divorce to the parties by mutual consent [SC on Ritesh Saxena vs Kirti Srivastava 2011]
48. Nullity of marriage- Marriage entered into by a Hindu with a Christian is not valid, despite registration u/s 8 of HMA [AIR 2009 SC 1085]
49. Pregnancy: the Court has to see in these proceedings is whether the petitioner has proved beyond reasonable doubt that the respondent was pregnant by some one else at the time of marriage. The petitioner has to establish such facts and circumstances which would lead the Court either to believe that the respondent was pregnant at the time of marriage by someone else or to hold that a prudent man would, on those facts and circumstances, be completely satisfied that it was so.[AIR 1965 SC 364 ]
50. Question of Fact- In Earnest John White vs. Kathleen Olive White, (1958) SCR 1410, it has been laid down that though it is not usual for Apex Court to interfere on questions of fact, nevertheless, if the Courts below ignore or mis-construe important pieces of evidence in arriving at their finding, such finding is liable to be interfered with by this Court.
51. Residence- In order to give jurisdiction on the ground of ‘residence’. something more than a temporary stay is required. It must be more or less of a permanent character, and of such a nature that the court in which the respondent is sued, is his natural forum. The word ‘reside’ is by no means free from all ambiguity and is capable of a variety of meanings according to the circumstances to which it is made applicable and the context in which it is found. It is capable of being understood in its ordinary sense of having one’s own dwelling permanently, as well as in its extended sense. In its ordinary sense residence, is more or less of a permanent character.
52. Restitution of conjugal rights—There is no valid document evidencing Marriage nor is there any acceptable evidence of Marriage-Marriage not established [JT 2011 (8) SC 159]
53. Right to live separately from the husband given to the wife under S. 18 (2) (d) of the Hindu Adoptions and Maintenance act 1956 could not be the same as a right of judicial separation under S. 10 (2) of HMA [ AIR 1972 SC 459]
54. Satisfied on the evidence means: In White vs. White (1958) SCR 1410 Apex Court construed the expression ‘satisfied on the evidence’ in S. 14 of Divorce act and said at page No. 1420 of SCR: “The important words requiring consideration are satisfied on the evidence. These words imply that the duty of the Court is to pronounce a decree it satisfied that the case for the petitioner has been proved but dismiss the petition it not so satisfied…. and it has been there held that the evidence must be clear and satisfactory beyond the mere balance of probabilities and conclusive in the sense that it will satisfy . . . . . .. the guarded discretion of a reasonable and just man.”
55. Section 10 (1) (a) a decree for judicial separation can be granted on the ground that the other party has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition. According to the Explanation the expression “desertion” with its grammatical variation and cognate expression means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party and includes the willful neglect of the petitioner by the other party to the marriage.
56. Section 10 (1) (a) Explanation – The desertion by the wife had been proved without reasonable cause and without the consent or against the wish of the husband.
57. Section 10 of the HMA and S. 18 of the Hindu Adoptions and Maintenance act are quite distinct and one cannot be said to control the other. The former provision deals with the matrimonial offences by either spouse which would justify the grant of a decree for judicial separation. Section 18 provides for grant of maintenance to wife alone. Sub-section (1) says that a Hindu wife shall be entitled to be maintained by her husband during her lifetime. Subs. (2) gives her a right to live separately from her husband without forfeiting her claim to maintenance provided any of the conditions mentioned in clauses (a) to (g) exist or are specified. The essential ingredient of desertion, animus deserendi i.e. intention on the part of the deserting spouse to remain separated permanently or to bring cohabitation to an end for ever need not exist in case of a wife who has been given the right to live separately in certain circumstances without forfeiting her claim to maintenance. The act and the Maintenance act provide different remedies to a wife whose husband has been guilty of desertion. Under the act she can sue for judicial separation if the conditions laid down in S. 10 (1) (a) of the act read with the Explanation are satisfied. She can without resorting to that remedy choose to live separately from her husband who would be bound to maintain her if it is proved that he has been guilty of desertion and the other conditions laid down in S. 18 (2) (a) are satisfied.
58. Section 103 of the Code of Civil Procedure, the High Court may, if the evidence on the record is sufficient, determine any issue of fact necessary for the disposal of the appeal which has not been determined by the lower appellate court or which has been wrongly determined by such court by reason of any illegality omission, error or defect such as is referred to in sub-section (1) of S. 100. But, if the High Court takes upon itself the duty, to determine an issue of fact its power to appreciate evidence would be subject to the same restraining conditions to which the power of any court of facts is ordinarily subject. The limits of that power are not wider for the reason that the evidence is being appreciated by the High Court and not by the District Court.[AIR 1975 SC 1534 ]
59. Section 11 renders marriage solemnised in contravention of conditions (i), (iv) and (v) of S. 5 only, void, Two incontrovertible propositions emerge from a combined reading of Ss. 5 and 11 and other provisions of the act, that the act specifies conditions for valid marriage and a marriage contracted in breach of some but not all of them renders the marriage void. The statute thus prescribes conditions for valid marriage and also does not leave it to inference that each one of such conditions is mandatory and a contravention, violation or breach of any one of them would be treated as a breach of a pre-requisite for a valid marriage rendering it void. The law while prescribing conditions for valid marriage simultaneously prescribes that breach of some of the conditions but not all would render the marriage void.
60. Section 112 of the Evidence act provides that the fact that any person was born during the continuance of a valid marriage between his mother and any man shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.
61. Section 114 of Evidence act provides that the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business in their relation to facts of the particular case. The conclusion court has arrived at about the child born to the respondent being not the child of the appellant, fits in with the presumption to be drawn in accordance with the provisions of this section. People in general consider that the child born, being of a gestation period of 185 days, cannot be a fairly mature baby and cannot survive like a normal child. Medical opinion, as it exists today and as is disclosed by textbooks on Obstetrics and Gynaecology, however, refer to some rare exceptions of live-births even with a gestation period of a few days less than 180 days.
62. Section 12 provides that certain marriages shall be voidable and may be annulled by a decree of nullity on any of the grounds mentioned in the Section. Clause (b) of sub-section (1) inter alia provides that the marriage in contravention of condition specified in Clause (ii) of Section 5 will be voidable. Similarly, sub-clause (c) provides that the consent of the petitioner or where consent of the guardian in marriage is required under S. 5 and such consent was obtained by force or fraud, the marriage shall be voidable.
63. Section 13 (1A) (ii) of the Hindu marriage act, 1955 allows either party to a marriage to present a petition for the dissolution of the marriage by a decree of divorce on the ground that there has been no restitution of conjugal rights as between the parties to the marriage for the period specified in the provision after the passing of the decree for restitution of conjugal rights.
64. Section 15 – where a marriage has been dissolved, either party to the marriage can lawfully marry only when there is no right of appeal against the decree dissolving the marriage or, if there is such a right of appeal, the time for filing appeal has expired without an appeal having been presented, or if an appeal has been presented it has been dismissed.
65. Section 15- does not in terms apply to a case of an application for special leave to the Supreme Court.
66. Section 15 enables divorced persons to marry again. The proviso prescribes a time limit within which such divorced persons cannot contract marriage and the time prescribed is a period of one year from the date of the decree in the court of the first instance.
67. Section 15- No punishment for marriage solemnised in contravention or breach of the time bound prohibition enacted in S. 15. The act is suggestively silent on the question as to what is the effect on the marriage contracted by two persons one or both of whom were incapacitated from contracting marriage at the time when it was contracted in view of the fact that a period of one year had not elapsed since the dissolution of their earlier marriage by a decree of divorce granted by the Court of first instance.
68. Section 16 confers status of legitimacy on a child who but for the provision would be treated illegitimate. If a marriage is annulled by a decree of nullity, the legal consequence would be that in the eye of law there was no marriage at all even though the parties contracting the marriage might have gone through some form of marriage but as they were not bound by a valid binding wedlock, the child conceived or begotten before the decree of nullity would nonetheless be illegitimate. The law steps in and provides that such child shall be legitimate. The principle discernible is that innocent person shall not suffer.
69. Section 16(3), the common law view that the offspring’s of Marriage which is void and voidable are illegitimate ‘ipso-jure’ has to change completely. Supreme court recognizes the status of such children which has been legislatively declared legitimate and simultaneously law recognizes the rights of such children in the property of their parents. This is a law to advance the socially beneficial purpose of removing the stigma of illegitimacy on such children who are as innocent as any other children.[(2011) 11 SCC 1]
70. Section 17 contemplates is that the second marriage must be according to the ceremonies required by law. If the marriage is void its voidness would only lead to civil consequences arising from such marriage. S. 17 makes it absolutely clear that the provision has to be read in harmony and conjunction with the provisions of S. 494 of the Penal Code which has been extracted above. S. 17 clearly provides that provisions of Ss. 494 and 495 of the Penal Code shall apply accordingly. In other words though the marriage may be void under S. 17 by reason of the fact that it was contracted while the first marriage was subsisting, the case squarely falls within the four corners of S. 494 and by contracting the second marriage the accused incurs the penalty imposed by the said statute. Thus the combined effect of Section 17 of Hindu marriage act and S. 494 is that when a person contracts a second marriage after the coming into force of the said act while the first marriage is subsisting he commits the offence of bigamy. [Bhaurao v. State of Maharashtra (1965) 2 SCR 837]
71. Section 17 of the Hindu marriage act requires that the marriage must be properly solemnized in the sense that the necessary ceremonies required by law or by custom must be duly performed. Once these ceremonies are proved to have performed the marriage becomes properly solemnized and if contracted while the first marriage is still subsisting the provision of Section 494 will apply automatically.
72. Section 17 of the Hindu marriage act, the essential ceremonies set out under the act had not been conducted. Merely because, there was distribution of sugar or gur, that would not constitute a valid marriage. The custom must be proved to be ancient, certain and reasonable if the Court of law were to accept the same. Merely because they lived as husband and wife, the status of wife is not conferred as laid down in B. S. Lokhande v. State of Maharashtra, (1965) 2 SCR 837. [ AIR 1994 SC 135]
73. 13-B. Mutual consent should continue till the divorce decree is pased. It is a positive requirement for the Court to pass a decree of divorce. “The consent must continue to decree nisi and must be valid subsisting consent when the case is heard”. [AIR 1992 SC 1904]
74. Section 18 prescribes punishment for constravention of some of the conditions prescribed for valid marriage in S. 5. Contravention of conditions (iii), (iv), (v) and (vi) of S. 5 is made punishable under S. 18.
75. Section 21A of the Hindu marriage act(transfer) is concerned the marginal note of that section itself makes it clear that it deals with power to transfer petitions and direct their joint or consolidated trial “in certain cases” and is not exhaustive. Section 25 of the CPC clearly indicates that very wide jurisdiction and powers have been conferred on this Court to transfer any suit, appeal or any other proceeding from a High Court or other Civil Court in any other State for the ends of justice. Section 21, of the Hindu marriage act cannot be construed to exclude the jurisdiction conferred on this Court under Section 25 of the Code of Civil Procedure[AIR 1981 SC 1143]
76. Section 23 (1) (b) of the act, in any proceeding under the act whether defended or not, the relief prayed for can be decreed only and only if “where the ground of the petition is cruelty the petitioner has not in any manner condoned the cruelty.”
77. Section 23 confers on the court the power to pass a decree if it is “satisfied” onmatters mentioned in clauses (a) to (e) of the section. Considering that proceedings under the act are essentially of a civil nature, the word “satisfied” must mean “satisfied on a preponderance of probabilities” and not satisfied beyond a reasonable doubt.” Section 23 does not alter the standard of proof in civil cases.” [ AIR 1988 SC 121]
78. Section 23 of the Hindu marriage act mandates the Court before granting decree for divorce, whether defended or not to satisfy itself (1) if the grounds for claiming relief exist and the petitioner is not taking advantage of his or her own wrong or disability for the purpose of such relief, and (2) 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. A duty is also caste on 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. [AIR 1998 SC 764]
79. Section 23(1) of the Hindu marriage act, 1955 which deals with the powers of the Court in a proceeding under the act also provides that the Court shall decree the relief claimed by the petitioner, whether the petition is defended or not, if the Court is satisfied that any of the grounds for granting relief exists and certain other conditions are satisfied. Thus under the Indian Divorce act, 1869 as well as under the Hindu marriage act, the condition for the grant of a relief is the satisfaction of the Court as to the existence of the grounds for granting the particular relief.
80. Section 23(1) of the Hindu marriage act, 1955 which deals with the powers of the Court in a proceeding under the act also provides that the Court shall decree the relief claimed by the petitioner, whether the petition is defended or not, if the Court is satisfied that any of the grounds for granting relief exists and certain other conditions are satisfied. Thus under the Indian Divorce act, 1869 as well as under the Hindu marriage act, the condition for the grant of a relief is the satisfaction of the Court as to the existence of the grounds for granting the particular relief. The satisfaction must necessarily be founded upon material which is relevant for the consideration of the Court, and this would include the evidence adduced in the case. Therefore, though in the former act the words used are “satisfied on the evidence” and the legislature has said in the latter act “If the court is satisfied”, the meaning is the same.
81. Section 27- it becomes obvious that the Matrimonial Court trying any proceedings under the Hindu marriage act, 1955, has the jurisdiction to make such provision in the decree as it deems just and proper with respect to any property presented “at or about the time of marriage” which may belong jointly to both the husband and the wife. This Section provides an alternate remedy to the wife so that she can recover the property which is covered by the Section, by including it in the decree in the matrimonial proceedings, without having to take recourse to the filing of a separate Civil Suit and avoid further litigation.
82. Section 27 of the act could be made by the trial court while dealing with matrimonial proceedings to form a part of the decree in the matrimonial proceedings, but no decree with regard to the property could be made unless it was established by evidence that the property was covered by Section 27 of the Hindu marriage act. Section 27 of the Hindu marriage act would be a separate decree, but, in the facts and circumstances of the case, when such a decree is made, it shall be treated to be a part of the decree of divorce already granted by the Family Court which has become final. [AIR 1997 SC 3562]
83. Section 493 IPC in the opinion of the Supreme Court does not presuppose a Marriage between the accused and the victim necessarily by following a ritual or Marriage by customary ceremony. What has been clearly laid down and emphasized is that there should be an inducement of belief in the woman that she is lawfully married to the accused/appellant and the inducement of belief of a lawful Marriage cannot be interpreted so as to mean or infer that the Marriage necessarily had to be in accordance with any custom or ritual or under Special Marriage Act.[(2010) 13 SCC 780]
84. Section 494 IPC- Bigamy- Where a spouse contracts a second marriage while the first marriage is still subsisting the spouse would be guilty of bigamy under Section 494 if it is proved that the second marriage was a valid one in the sense that the necessary ceremonies required by law or by custom have been actually performed. The voidness of the marriage under Section 17 of the Hindu marriage act is in fact one of the essential ingredients of Section 494 because the second marriage will become void only because of the provisions of Section 17 of the Hindu marriage act.
85. Section 5 prescribes the conditions for a valid Hindu marriage that may be solemnised after the commencement of the act. They are six in number. Condition No. (i) ensures monogamy. Condition No. (ii) refers to the mental capacity of one or the other person contracting the marriage and prohibits an idiot or lunatic from contracting the marriage. Condition (iii) prescribes minimum age for the bride and the bridegroom for contracting marriage. This condition incidentally provides for consent of the bride and the bridegroom to the marriage as the law treats them mature at a certain age. Condition (iv) forbids marriage of parties within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two. Condition No. (v) is similar with this difference that it prohibits marriage between two sapindas, Condition (vi) is a corollary to condition (iii) in that where the bride has not attained the minimum age as prescribed in condition (iii) the marriage will none the less be valid if the consent of her guardian has been obtained for the marriage.
86. Section 58 of the Evidence act inter alia provides that no fact need be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing or which by any rule of pleading in force at the time they are deemed to leave admitted by their pleading. Rule 5 of O. VIII, C.P.C. provides that every allegation of fact in that plaint it not denied specifically or by necessary implication or stated to be not admitted in the pleadings of the defendant shall be taken to be admitted except as against a person under disability.
87. Section 9 only is a codification of pre-existing law. Rule 32 of O. 21 of the Code of Civil Procedure deals with decree for specific performance for restitution of conjugal rights or for an injunction. Sub-rule (1) of R. 32 is in these terms: “Where the party against whom a decree for the specific performance of a contract, or for restitution of conjugal rights, or for an injunction, has been passed, has had an opportunity of obeying the decree and has wilfully failed to obey it, the decree may be enforced in the case of a decree for restitution of conjugal rights by the attachment of his property or, in the case of a decree for the specific performance of a contract, or for an injunction by his detention in the civil prison, or by the attachment of his property, or by both”.
88. Separation– Evidence : Heavy burden lies upon a petitioner who seeks divorce on the ground of desertion to prove four essential conditions, namely, (1) the factum of separation; (2) animus deserendi;[Bipin Chandra v. Prabhavati, (1956) SCR 838]
89. Separation Judicial-a spouse can ask for judicial separation if the other spouse has deserted her or him for a continuous period of not less than two years.
90. Separation-If a spouse abandons the other spouse in a state of temporary passion, for example, anger or disgust, without intending permanently the cease cohabitation, it will not amount to desertion. For the offence of desertion so far as the deserting spouse is concerned, two essential conditions must be there, (1) the factum of separation, and (2) the intention of bring cohabitation permanently to an end (animus deserndi). [Bipin Chandra v. Prabhavati, (1956) SCR 838]
91. Sexual intercourse, refusal for a long time without sufficient reason itself amounts to mental cruelty-Samar Gosh v. Jaya Gosh, (2007) 4 SCC 511
92. Sexual intercourse-unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity is mental cruelty
93. Solemnize menas in connection with a marriage, ‘to celebrate the marriage with proper ceremonies and in due form’, according to the Shorter Oxford Dictionary. It follows, therefore, that unless the marriage is ‘celebrated or performed with proper ceremonies and in due from’ it cannot be said to be ‘solemnized’. It is therefore essential, for the purpose of Section 17 of the act that the marriage to which Section 494 I. P. C. applies on account of the provisions of the act should have been celebrated with proper ceremonies and in due form[ (1965) 2 SCR 837]
94. Stridhan: Manu enumerates six kinds of stridhana Gifts made before the nuptial fire, explained by Katyayana to mean gifts made at the time of marriage before the fire which is the witness of the nuptial (adhyagni). Gifts made at the bridal procession, that is, says Katyayana, while the bride is being led from the residence of her parents to that of her husband (adhyanhanika). Gifts made in token of love, that is, says Katyayana, those made through affection by her father-in-law and mother-in-law (pritidatta), and those made at the time of her making obeisance at the feet of elders (padavandanika). Gifts made by father. Gifts made by mother. Gifts made by a brother.”
95. Stridhan—Refusal by husband to return the Stridhan property—Existence of remedy under Sections 14 and 27 of Hindu marriage act, 1955 does not bar the remedy under criminal law for breach of trust [AIR 1985 SC 628]
96. Sufficient Cause – is an expression which has been used in large number of Statutes. The meaning of the word “sufficient” is “adequate” or “enough”, in as much as may be necessary to answer the purpose intended. Therefore, word “sufficient” embraces no more than that which provides a platitude which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the view point of a reasonable standard of a cautious man. In this context, “sufficient cause” means that party had not acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been “not acting diligently” or “remaining inactive”. However, the facts and circumstances of each case must afford sufficient ground to enable the Court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously. (Vide: Ramlal and Ors. v. Rewa Coalfields Ltd., AIR 1962 SC 361; Sarpanch, Lonand Grampanchayat v. Ramgiri Gosavi and Anr., AIR 1968 SC 222; Surinder Singh Sibia v. Vijay Kumar Sood, AIR 1992 SC 1540; and Oriental Aroma Chemical Industries Limited v. Gujarat Industrial Development Corporation and Anr., (2010) 5 SCC 459
97. The Hindu marriage act, 1956 and Special marriage act, 1954 made the marriage between persons belonging to different castes and religions as valid marriage. Even local amendments in Section 7A to the Hindu marriage act, 1956 like is Tamil Nadu, removed the rigidity of celebrating the marriages in accordance with Shastric prescription like Kanyadan and Saptapadhi being not mandatory, recognised social marriage as valid.[AIR 1996 SC 1011]
98. Valid Marriage-Muslim woman by performed Suddhi before her marriage with Hindu AIR 2011 SC 2053
99. Valid marriage-While prescribing conditions for valid marriage in S. 5 each of the six condition was not considered so sacrosanct as to render marriage in breach of each of it void. This becomes manifest from a combined reading of Ss. 5 and 11 of the act.
100. Void marriage = not acquired status of Husband and Wife. Voidable marriage= parties are Husband and Wife
101. Withdrawal of Consent -Mutual consent to the divorce is a sine qua non for passing a decree for divorce under Section
