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
A Muslim father to maintain his minor children governed by Cr.P.C- Muslim Women (Protection Or Rights On divorce) Act, has no application.
provisions of the Code remain fully applicable to the Muslims, notwithstanding the controversy resulting from the Shah Bano case and the enactment of the Muslim Women (Protection of Rights on divorce) Act, 1986.
the right to sue would also survive even if the other spouse dies pending such appeal or application under Order IX, Rule 13, C.P.C. In either case proceedings can be continued against the legal heirs of the deceased spouse who may be interested in supporting the decree of divorce passed against the aggrieved spouse.
decree passed by such Ecclesiastical Tribunal cannot be binding on the courts which have been recognised under the provisions of the divorce Act to exercise power in respect of granting divorce and adjudicating in respect of matrimonial matters.
It will be necessary to bear in mind that there has been marked change in the life around us. In matrimonial duties and responsibilities in particular. we find a sea change. They are of varying degrees from house to house or person to person. Therefore, when a spouse makes complaint about the treatment of cruelty by the partner in life or relations, the Court should not search for standard in life. A set of facts stigmatised as cruelty in one case may not be so in another case. 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 (sic) realm of cruelty.”