INTRODUCTION
As part of the Hindu Code Bill, the Hindu Marriage Act was enacted by Parliament in 1955 to amend and to codify the law relating to marriage among Hindus.
Object of Legislation : The Hindu Marriage Act recognizes the basic human right that the family is the natural and fundamental group unit of society and is entitled to protection by society and the state. It is based on the maxim “ Conjunctic martitet peminae est de nature” means that to keep husband and wife together is the law of nature and the maxim “viret unor consentur in lege una persona” means that husband and wife are considered one in law.
The Hindu Marriage Act provides guidance for Hindus to be in a systematic marriage bond. It gives meaning to marriage, cohabiting rights for both the bride and groom, and a safety for their family and children so that they do not suffer from their parental issues
Applicability of Legislation (Section 2)
The Act applies to three types of persons:
(i) Who are Hindus by religion in any of its forms or developments.
(ii) Who are Buddhists, Jains or Sikhs by religion and
(iii) To any person who is domiciled in the territory to which this Act extends and is not a Muslim, Christian, Parsi or Jew by religion.
The Act applies to all the Hindus domiciled in the territories to which this Act extends who are outside the territory to which this Act extends.
The Act does not apply to :
(i) Who are Muslim, Christian, Parsi or Jew by religion.
(ii) Why have renounced the Hindu religion and have become converts to some other religion
(iii) Persons, who descended from Hindu ancestors and on account of marriage or on account of some new occupation converted into new community having their own religion and usages
(iv) Children, whose either parents though a Hindu, are not brought up as Hindus.
(v) Members of any scheduled Tribe within the meaning of clause (25) of Article 366 of The Constitution of India.
Who are Hindus
Till this day there is no precise definition of the term ‘Hindu’ available either in any statute or in any judicial decision. However since Hindu law applies to all those persons who are Hindus. It is necessary to know who are Hindus. The answer lies in the question; to whom does Hindu law apply?
The persons to whom Hindu law applies may be put in the following three categories.
(1) Any person who is a Hindu, Jain, Sikh or Buddhist by religion, i.e., Hindus by religion.
(2) Any person who is born of Hindu parents (when both the parents or one of the parents is a Hindu, Jain, Sikh or Buddhist by religion), i.e., Hindus by birth, and
(3) Any person who is not a Muslim, Christian, Parsi or Jew, and who is not governed by any other law.
Conditions for Marriage (Section 5)
A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely :-
(i) Neither party has a spouse living at the time of the marriage;
(ii) Neither party is incapable of giving a valid consent to it in consequence of unsoundness of mind ; or though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or has been subject to recurrent attacks of insanity .
(iii) The bridegroom has completed the age of twenty one years and the bride the age of eighteen years at the time of the marriage;
(iv) The parties are not within the degrees of prohibited relationship, unless the custom or usage governing each of them permits of a marriage between the two;
(v) The parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two;
Section 5 of The Hindu Marriage Act specifies that conditions must be met for a marriage to be able to take place. The age of marriage and soundness of mind relate to the consensual element of marriage. If a ceremony takes place, but the conditions are not met, the marriage is either void abinitio , or voidable.
Ceremonies(section 7)
(1) A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto.
(2) Where such rites and ceremonies include the Saptapadi (that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken.
Registering a marriage (section 8)
A marriage cannot be registered unless the following conditions are fulfilled:
(a) A ceremony of marriage has been performed; and
(b) The parties have been living together as husband and wife
Additionally, the parties must have been residing within the district of the Marriage Officer for a period of not less than thirty days immediately preceding the date on which the application is made to him for registration.
Section 8 of the Hindu Marriage Act allows state government to make rules for the registration of Hindu marriages particular to that state, particularly with respect to recording the particulars of marriage as may be prescribed in the Hindu Marriage Register.
Registration provides written evidence of marriage. As such, the Hindu Marriage Register is open for inspection at all reasonable times (allowing anyone to obtain proof of marriage) and is admissible as evidence in a court of law.
Forms of Hindu Marriage
Prior to enactment of HMA, 1955 , eight forms of Hindu marriage were described, four of which were Brahma, Daiva, Arsha and Prajapatya which were the approved forms of marriage (regular) and the other four such as Asura, Gandharva, Rakshasa and Paishacha were unapproved forms of marriage (irregular). The choice of life-partner was limited only to one’s own religion and caste only. Widow remarriage was also not permitted. Polygamy was permitted but not Polyandry.
The Hindu Marriage Act does not differentiate into different forms of Marriage and accepts all customary rites and ceremonies of either party to the marriage as long as both parties are Hindus and do not have a spouse living .
LEGAL CONSEQUENCES OF MARRIAGE :
(i) It confers a status of husband and wife on parties.
(ii) It confers a status of legitimacy on the children of the marriage.
(iii) It gives rise to certain rights and obligations against each other as well as against third persons.
LEGAL ACTION IN RESPECT OF MARRIAGES :
A. Petition for Restitution Of Conjugal Rights(Section 9).
B. Petition for Judicial Separation(Section 10).
C. Petition for declaration that the marriage is null and Void (Section 11).
D. Petition for annulment of marriage (Section 12).
E. Petition for Dissolution of marriage on fault of other Party (Section 13).
F. Petition for Dissolution of marriage by Mutual Consent (Section 13-B).
A. Petition for Restitution Of Conjugal Rights (Section 9)
Object : Marriage imposes an obligation on both spouses to cohabit with each other. The necessary implication of marriage is that parties will live together. Marriage implies consortium, i.e., the husband and wife are entitled to each other’s company and comfort. But suppose, one party refuses to live with the other, can the latter, by a legal process , compel the former to live with him ?
The Hindu Marriage Act 1955 provides a remedy under Section 9 in the form of restitution of conjugal rights if someone’s spouse has left without giving any reasonable grounds.
Section 9 of the HMA reads that when either the husband or the wife has, without a reasonable excuse, withdrawn from the society of the other, the distressed party may apply for restitution of conjugal rights.
The party in distress can file a petition to the respective district court after which the court records the statements of both parties made in the petitions and if the court finds no legal ground as to why the application should not be granted, the judge may decree restitution of conjugal rights in the favour of the aggrieved party.
The decree of restitution of conjugal rights cannot be executed by forcing the party who has withdrawn from the society from the other to stay with the person who institutes Petition for restitution. The decree can be executed only by attachment of the properties of the judgment debtor. The practice has shown that the decree of restitution is a paper decree.
However, if the decree of restitution of conjugal right is not honoured for a period of more than one year, subsequent to the date of the decree, it becomes a ground for divorce.
The fundamental ideology behind recognizing the law even after much deliberation is that it “protects the sanctity of the institution of marriage”. This is ironical because a marriage is the celebration of togetherness of two people and when one person is not interested in this fellowship there seems no point in forcing it on them.
Three essential conditions for Section 9 of HMA
1. One party must have withdrawn from the society of another.
2. This withdrawal should be without any reasonable excuse.
3. The aggrieved party files for a Restitution of conjugal right.
Once these conditions are fulfilled, the district court may pass a decree of restitution of conjugal rights to bring about cohabitation between the estranged parties.
If the court is not convinced and finds the petitioner guilty then the decree of restitution of conjugal rights is not granted.
If the parties are not following the decree for cohabitation after the passing of the decree, continuously for about a year, it becomes a ground for divorce under Section 13.
Reasonable grounds on which petition for Restitution of Conjugal Rights can be rejected:
First, if the respondent has a ground on which he or she can claim any matrimonial relief;
Second, if the petitioner is guilty of any matrimonial misconduct;
Third, if the petitioner is guilty of such act, omission or conduct which makes it impossible for the respondent to live with him; for instance, husband’s neglect of his wife or the constant demand for dowry, etc. are some reasonable ground for wife not to join the company of her husband.
Burden of proof under Section 9 of the HMA
The burden of proof is on the aggrieved/petitioner who needs to prove that the respondent has withdrawn from his/her society. Once that burden is discharged by the petitioner, it falls on the respondent to prove that there exists a reasonable excuse for the withdrawal.
B. Petition for Judicial Separation(Section 10).
Judicial separation is an instrument devised under law to afford some time for introspection to both the parties to a troubled marriage. Law allows an opportunity to both the husband and the wife to think about the continuance of their relationship while at the same time directing them to live separate, thus allowing them the much needed space and independence to choose their path.
Judicial separation is a sort of a last resort before the actual legal break up of marriage i.e. divorce. The reason for the presence of such a provision under Hindu Marriage Act is the anxiety of the legislature that the tensions and wear and tear of every day life and the strain of living together do not result in abrupt break – up of a marital relationship. There is no effect of a decree for judicial separation on the subsistence and continuance of the legal relationship of marriage as such between the parties. The effect however is on their co-habitation. Once a decree for judicial separation is passed, a husband or a wife, whosoever has approached the court, is under no obligation to live with his / her spouse .
Grounds of Judicial separation
Section 10 of Hindu Marriage Act provides for judicial separation. It provides that either party to a marriage can file a petition before the Court for such a relief on any of the following grounds as specified in sub-section (1) of section 13, and in case of a wife also on any of the grounds specified in sub-section(2) thereof:
It has been held that unless a case for divorce is made out, the question of granting judicial separation does not arise. Therefore, the Courts while dealing with the applications for judicial separation shall bear in mind the specific grounds raised for grant of relief claimed and insist on strict proof to establish those grounds and shall not grant some relief or the other as a matter of course. Thus on a petition for divorce, the Court has discretion in respect of the grounds for divorce other than those mentioned in section 13 (1A) and also some other grounds to grant restricted relief of judicial separation instead of divorce straightway
What is the Effect of Decree of Judicial Separation?
Where a decree for judicial separation has been passed in your favour, it shall no longer be obligatory for the parties to cohabit together and all marital obligations remain suspended save those preserved expressly or impliedly (just as relating to maintenance). However, both the parties retains their marital status as husband and wife and if any of them remarries, he or she will be guilty of bigamy. Ordinarily, Judicial Seperation either leads to reconciliation or to divorce.
Rescinding of Decree of Judicial Separation
Where Court considers it just and reasonable and is satisfied on the application of either party i.e., either husband or wife, Court may rescind decree of judicial separation.
C & D. PETITION FOR ANNULMENT OF MARRIAGE(section 11 &12)
Based on the conditions stated in section 5 and 7, a marriage between two persons may be declared as :
(i) Valid Marriage : All conditions of Section 5 and 7 are met.
(ii) Void Marriage : If it contravenes any of the conditions specified in clause (i), (iv) and (v) of section 5.
(iii) Voidable Marriage : A marriage though valid may later be voidable (annulled) at the instance of any one party.
The law of nullity relates to the pre-marriage impediments to marriage. The impediments are usually divided into two :
(a) Absolute impediments: Marriage is void ad initio i.e., it is an invalid marriage from the very beginning. A void marriage is no – marriage.
(b) Relative impediments : The marriage though perfectly valid marriage so long as it is not avoided. It may be voidable and annulled at the instance of one of the parties to the marriage if he or she desires.
In strict Legal terminology, annulment refers only to making a voidable marriage null; if the marriage is void ab initio, then it is automatically null, although a legal declaration of nullity is required to establish this.
Annulment is a legal procedure for declaring a marriage null and void. With the exception of bigamy and not meeting the minimum age requirement for marriage, it is rarely granted. A marriage can be declared null and void if certain legal requirements were not met at the time of the marriage. If these legal requirements were not met then the marriage is considered to have never existed in the eyes of the law. This process is called annulment. It is very different from divorce in that while a divorce dissolves a marriage that has existed, a marriage that is annulled never existed at all. Thus unlike divorce, it is retroactive: an annulled marriage is considered never to have existed.
(i) Grounds for Void Marriage : Failure to meet conditions under section 5 (i), (iv) and (v) , Section7 and section 15 of the Act.
1. Bigamy – either party was already married to another person at the time of the marriage.
2. Marriage Prohibited By Law – Marriage between parties that based on their familial relationship (within prohibited degree or Sapindas ) is considered incestuous.
3. If proper ceremonies of marriage have not been performed.(section 7)
4. Marriage performed in violation of the requirement of Section 15 of the Act. i.e., when a marriage is dissolved by a decree of divorce , the parties can remarry only after the time when the right of appeal has expired.
5. If one of the party is not a Hindu.
(ii) Grounds for Voidable Marriage : Section 12, HMA,1955 lays down four grounds of voidable marriage :
(a) Inability of the respondent to consummate the marriage on account of his or her impotency.
(b) Respondent’s incapacity to consent The incapacity to consent may be due to his/her underage or suffering from a mental disorder.
(c) Consent of the petitioner being obtained by fraud or force or concealment of material facts to the marriage.
(d) Concealment of the pre-marriage pregnancy by the respondent.
E. PETITION FOR DISSOLUTION OF MARRIAGE ON FAULT GROUNDS (Section 13)
Divorce is the legal dissolution of marriage. A divorce is among the most traumatic misfortunes for any couple. The entire process of divorce that starts from coping up with emotional ups and downs to contesting for the long awaited divorce decree for several months is definitely a tough affair to get through. Before opting for a divorce one should be aware of the fact that a divorce procedure in India extents for almost a year and in some special cases of disputes the procedure may continue for years.
Grounds for Divorce Under Hindu Marriage Act
It is conceded in all jurisdictions that public policy, good morals & the interests of society require that marital relation should be surrounded with every safeguard and its severance be allowed only in the manner and for the cause specified by law. Divorce is not favored or encouraged, and is permitted only for grave reasons.
The Hindu Marriage Act, 1955 originally, based divorce on the fault theory, and enshrined nine fault grounds in Section 13(1) on which either the husband or wife could sue for divorce, and two fault grounds in section 13(2) on which wife alone could seek divorce. In 1964, by an amendment, certain clauses of Section 13(1) were amended in the form of Section 13(1A), thus recognizing two more grounds of breakdown of marriage. The various grounds on which a decree of divorce can be obtained are as follows-
Adultery (section 13(i))
There is no clear definition of the matrimonial offence of adultery. In adultery there must be voluntary or consensual sexual intercourse between a married person and another, whether married or unmarried, of the opposite sex, not being the other’s spouse, during the subsistence of marriage. If the second marriage is void, then sexual intercourse with the second wife will amount to adultery.
Though initially a divorce could be granted only if such spouse was living in adultery, by the Marriage Laws Amendment Act, 1976, the present position under the Hindu Marriage Act is that it considers even the single act of adultery enough for the decree of divorce[iii].
Since adultery is an offence against marriage, it is necessary to establish that at the time of the act of adultery the marriage was subsisting. Also, it follows that unless one willingly consents to the act, there can be no adultery. If the wife can establish that the co-respondent raped her, then the husband would not be entitled to divorce.
The offence of adultery may be proved by :
(a) Circumstantial evidence
(b) Contracting venereal disease
Cruelty (section 13(ia))
The concept of cruelty is a changing concept. The modern concept of cruelty includes both mental and physical cruelty. Acts of cruelty are behavioral manifestations stimulated by different factors in the life of spouses, and their surroundings and therefore; each case has to be decided on the basis of its own set of facts. While physical cruelty is easy to determine, it is difficult to say what mental cruelty consists of. Perhaps, mental cruelty is lack of such conjugal kindness, which inflicts pain of such a degree and duration that it adversely affects the health, mental or bodily, of the spouse on whom it is inflicted. In Pravin Mehta v. Inderjeet Mehta,[v] the court has defined mental cruelty as ‘the state of mind.’
Some Instances of Cruelty are as follows –
(a) False accusations of adultery or unchastity
(b) Demand of dowry
(c) Refusal to have marital intercourse/children
(d) Impotency
(e) Birth of child
(f) Drunkenness
(g) Threat to commit suicide
(h) Wife’s writing false complaints to employer of the husband
(i) Incompatibility of temperament
(j) Irretrievable breakdown of marriage
The following do not amount to cruelty-
(a) Ordinary wear & tear of married life
(b) Wife’s refusal to resign her job
(c) Desertion per se
(d) Outbursts of temper without rancor.
Desertion (section 13(ib))
Desertion means the rejection by one party of all the obligations of marriage- the permanent forsaking or abandonment of one spouse by the other without any reasonable cause and without the consent of the other. It means a total repudiation of marital obligation.
The following 5 conditions must be present to constitute a desertion; they must co-exist to present a ground for divorce:
(a) The factum of separation
(b) Animus deserdendi (intention to desert)
(c) Desertion without any reasonable cause
(d) Desertion without consent of other party
(e) Statutory period of two years must have run out before a petition is presented.
Conversion to other Religion (section 13(ii)
When the other party has ceased to be Hindu by conversion to any other religion for e.g. Islam, Christianity, Judaism, Zorostrianism, a divorce can be granted.
Insanity (section 13(iii)
Insanity as a ground of divorce has the following two requirements-
(a) The respondent has been incurably of unsound mind
(b) The respondent has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.
Leprosy (section 13(iv)
A petition for divorce may be presented by either party to the marriage on the ground that the respondent has been suffering from a virulent and incurable leprosy. Old cl. (iv) of s. 13(1) did not require that before such a petition was presented the marriage existed for more than three years and that it was only then it was possible for anyone of the spouses to file an application for dissolution of marriage on that ground. Virulent means malignant or venomous. The onus to prove the ingredients of cl. (iv) of s. 13(1) is on the petitioner. When it is not disputed that the respondent has been suffering from leprosy, the onus is on the petitioner to establish that the leprosy is virulent and incurable.
Venereal Disease (section 13(v)
At present, it is a ground for divorce if it is communicable by nature irrespective of the period for which the respondent has suffered from it. The ground is made out if it is shown that the disease is in communicable form & it is not necessary that it should have been communicated to the petitioner (even if done innocently).
Renunciation (section 13(vi)
“Renunciation of the world” is a ground for divorce only under Hindu law, as renunciation of the world is a typical Hindu notion. Modern codified Hindu law lays down that a spouse may seek divorce if the other party has renounced the world and has entered a holy order. A person who does this is considered as civilly dead. Such renunciation by entering into a religious order must be unequivocal & absolute.
Presumption Of Death (section 13(vii)
Under the Act, a person is presumed to be dead, if he/she has not been heard of as being alive for a period of at least seven years. The burden of proof that the whereabouts of the respondent are not known for the requisite period is on the petitioner under all the matrimonial laws. This is a presumption of universal acceptance as it aids proof in cases where it would be extremely difficult if not impossible to prove that fact[viii]. A decree of divorce granted under this clause is valid & effective even if it subsequently transpires that the respondent was in fact alive at the time when the decree was passed.
Wife’s Special Grounds For Divorce (Section 13 (2)
Besides the grounds enumerated above, a wife has been provided four additional grounds of divorce under Section 13(2) of the Hindu Marriage Act, 1955. These are as follows-
Pre-Act Polygamous Marriage
This clause states the ground for divorce as, “That the husband has another wife from before the commencement of the Act, alive at the time of the solemnization of the marriage of the petitioner. For example, the case of Venkatame v. Patil[ix] where a man had two wives, one of whom sued for divorce, and while the petition was pending, he divorced the second wife. He then averred that since he was left only with one wife, and the petition should be dismissed. The Court rejected the plea.
Such a ground is available if both the marriages are valid marriages & the other wife (2nd wife) should be present at the time of filing of the petition. However, today this ground is no more of practical importance.
Rape, Sodomy Or Bestiality
Under this clause, a divorce petition can be presented if the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality.
Non-Resumption Of Cohabitation After A Decree/Order Of Maintenance
If a wife has obtained an order of maintenance in proceedings under Section 125, Cr.P.C., 1973 or a decree under Section 18, Hindu Adoption & Maintenance Act, 1956 & cohabitation has not been resumed between parties after one year or upwards, then this is a valid ground for suing for divorce.
Repudiation Of Marriage
This provision provides a ground for divorce to the wife when the marriage was solemnized before she attained the age of fifteen years, and she has repudiated the marriage, but before the age of eighteen. Such repudiation may be express (written or spoken words) or may be implied from the conduct of the wife (left husband & refused to come back). Moreover, this right (added by the 1976 amendment) has only a retrospective effect i.e. it can be invoked irrespective of the fact that the marriage was solemnized before or after such amendment.
F. Petition for Dissolution of marriage by Mutual Consent
(Section 13-B).
Meaning of Mutual consent Divorce : It means that when both husband and wife have amicably decided that they cannot live together anymore, then they can get legally separated by obtaining a decree of divorce without putting forth any allegations against each other, in the court of law.
Conditions : Section 13B of the Hindu marriage Act 1955 provide for divorce by mutual consent on the below mentioned conditions:
1. That they (husband and wife) have been living separately for a period of one year or more, and
2. That they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.
Procedure :
i. Parties can file their case either at the place of their marriage or place of their current residence mentioned on ID proofs going to be attached along with the petition.
ii. On submission of initial (first) petition, both parties have to appear in person before court (called as First Motion) and get their statement recorded on oath.
Then the court grants 6 months cooling-off period to couple to reconcile or reconsider their decision.
iii. After the expiry of 6 months or within 18 months, the parties have to reappear before the same court (that’s Second Motion) and reiterate again their wish of mutual separation.
Once the court is convinced, the decree for Mutual Divorce is granted
After filing first motion, is it mandatory to wait for 6 months before filing Second Motion?
A Hindu married couple may not need to wait six months for a separation order in the case of mutual consent and the marriage can be legally terminated in just a week as the Supreme Court on 12th September, 2017 held that the “cooling off” period in not mandatory and can be waived off.
Irretrievable Breakdown Of Marriage
This means the couple can no longer live together as man and wife. Both partners, and one partner, must prove to the court that the marriage broke down so badly that there is no reasonable chance of getting back together.
Till date, the prevailing laws in India regarding the issue of divorce have not recognized a situation where the spouses are facing a situation that despite the fact that they live under the same roof, their marriage is equivalent to a separation. That is, there is still no codified law for irretrievable breakdown of marriage. The Hindu Marriage Act recognize few grounds for dissolution of marriage in Section 13.But with the change in the social mores and in view of the changing nature of marriage in the society, the supreme court has shown special concern over the matter of making irretrievable breakdown of marriage as a ground for divorce. The Supreme Court has with a view to do complete justice and shorten agony of the parties engaged in long drawn battle, directed dissolution of marriage. Indeed, these were exceptional cases, as the law does not specifically provides for the dissolution of marriage on the grounds other than those given in Hindu Marriage Act, 1955. Irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act, 1955. Because of the change of circumstances and for covering a large number of cases where the marriages are virtually dead and unless this concept is pressed into services, the divorce cannot be granted. Ultimately, it is for the Legislature whether to include irretrievable breakdown of marriage as a ground of divorce or not but in our considered opinion the Legislature must consider irretrievable breakdown of marriage as a ground for grant of divorce under the Hindu Marriage Act, 1955.
Conclusion
Hindus consider marriage to be a sacred bond. Prior to the Hindu Marriage Act of 1955, there was no provision for divorce. The concept of getting divorced was too radical for the Indian society then. The wives were the silent victims of such a rigid system. However, time has changed; situations have changed; social ladder has turned. Now the law provides for a way to get out of an unpleasant marriage by seeking divorce in a court of law. The actual benefactors of such a provision are women who no longer have to silently endure the harassment or injustice caused to them by their husbands. But the manner in which the judiciary is dealing with the subject of irretrievable break down of marriage, it is feared that it will completely pause the system of marriages. Every theory has its negative and positive traits. There applicability differs from situation to situation. Therefore it is very essential that the lawmakers of our country should deal with the subject in a very cautious manner after considering in detail its future implications.
DIFFERENCE BETWEEN JUDICIAL SEPARATION AND DIVORCE
Although the procedure of dealing defended and undefended proceedings for both judicial separation and divorce are similar, yet there are certain differences between them. Judicial Separation does not terminate marriage whereas in divorce the parties are no more husband and wife and hence the marriage ends.
1. While undertaking proceedings for judicial separation, the court does not have to consider that the marriage is permanently closed or broken down whereas in divorce it is required while presenting the petition.
2. Both the parties can file for judicial separation any time post marriage whereas in the case of divorce the parties can only file for divorce only after completion of one year of marriage.
3. A judicial separation goes through one stage judgment procedure, however; divorce goes through a two stage judgment process.
4. There are certain provisions in Matrimonial Causes Act 1973 that are applicable to divorce but are not applied to judicial separation petitions irrespective of going through a two or five year separation period.
5. Judgments with respect to Wills are not applicable in a case of Judicial separation. In case the parties are undergoing a separation time and if one of the spouses dies then the existing spouse will not be benefited out of it and thus the property will devolve.
6. A Decree Absolute of Divorce brings a marriage to an end and Judicial Separation does not. However, it is more than a husband and wife living apart. A Decree of Judicial Separation can be sought on one of the five facts that are available for divorce but it is not necessary to prove that the marriage has irretrievably broken down.
7. In Divorce, there are two Decrees: Decree Nisi and Decree Absolute. In Judicial Separation there is one Decree pronouncing Judicial Separation. The parties remain married and are therefore not able to remarry. The Court is able to make the range of financial orders that are available on Divorce, save for Pension Sharing or Pension Attachment Orders
8. In Divorce, there are two Decrees: Decree Nisi and Decree Absolute. In Judicial Separation there is one Decree pronouncing Judicial Separation. The parties remain married and are therefore not able to remarry. The Court is able to make the range of financial orders that are available on Divorce, save for Pension Sharing or Pension Attachment Orders
9. The Decree of Judicial Separation has the same effect as a Decree Absolute of Divorce upon a Will. The spouse can no longer take any benefit under the Will unless there is a new will specifically stating they are to do so.
Hence, Judicial Separation is a process wherein, the Court provides a final turn to a couple seeking a divorce, to try resolving their differences by living separately, before the initiation of divorce proceedings. This gives time for introspection and resolving the matrimonial disputes and misunderstanding between the couple.
Jurisdiction and Procedure
In general, the following procedure is followed in a petition under Hindu Marriage Act :-
1. The aggrieved party files a petition in the district court as per Jurisdiction laid out in Section 19 of the Act. This petition can be transferred by an application from the respondent in the High Court or the Supreme Court as per rules laid out in Section 21 A of the Act.
2. Copy of the petition is sent to the respondent with a hearing date from the district court.
3. The Court requires both parties to be present on the hearing date in front of the Hon’ble judge.
4. If both the parties are not available then another date is given.
5. After this the court sends the party for court counselling.
6. The Court counselling is done mainly by family courts and usually goes for 3 to 4 times. This might take 4 months approximately.
7. Based on the counselling and the statements made and keeping in view the conduct of the parties the judge finally grants the decree.
During this period the wife can claim maintenance under Section 24 or 25 of Hindu Marriage Act, 1955 and also matters relating to custody and maintenance of minor children be also heard and decided.
Court to which petition shall be presented (Section 19)
Section 19 of the Act provides that every petition under this Act shall be presented to the district court within the local limits of whose ordinary original civil jurisdiction—
(i) The marriage is solemnised;
(ii) The respondent, at the time of the presentation of the petition, resided; or
(iii) The parties to the marriage last resided together; or
(iv) The petitioner is residing at the time of the presentation of the petition, in case where the respondent is at the time, residing outside the territories to which this Act extends, or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he were alive.
This section has been recasted by the Marriage Laws (Amendment) Act, 1976. The old section did not take sufficient account of cases where one of the parties did not reside in India or his whereabouts were unknown. The newly inserted provision in the section authorises the filing of petitions in the courts within whose jurisdiction the respondent is residing.
District courts means in any area for which there is a civil court, that court, and in any other area the principal civil court of original jurisdiction, and includes, any other civil court which may be specified by the State Government by notification in the official Gazettes as having jurisdiction in respect of the matters dealt within this Act.
In the context of clause (ii) of the section, the word “resides” must mean actual place of residence and not a legal or constructing residence, it certainly does not connote the place of residence.
In Mahadevi v. N.N. Sirathia, the court observed:
“Section 19 does not deal with the length of residence. Even a short residence may be sufficient to give the court jurisdiction to entertain petition. If the husband and wife had lived together in the same residence then they must be deemed to have resided together. The enjoyment of marital relation is not relevant factor in determining if the husband and wife had resided together. Thus the factum of residence and not the purpose of residence that is material.”
Further, every petition presented under this Act shall state distinctly as the nature of the case permits the facts on which the claim to relief is founded and that there is no collusion between the petitioner and the other party to the marriage. Every petition must be verified. (Section 20 ).
BARS TO MATRIMONIAL RELIEF (Section 23)
Section 23 lays down certain principles for the guidance of the court and also the conditions on the satisfaction of which, the court may pass a decree in the proceedings under the Act “whether dependent or not”.
The conditions which the court must take into consideration before passing decree in any proceedings under the Act can be examined under the following heads:
Sub-section (l) (a) – Taking advantage of his or her own wrong or disability:
The rule is based on the principle “one who comes to equity must come with clean hands”. The Amendment Act of 1976 has effected a small change and provided that in a case where the petitioner is insane or suffering from mental disorder, the question of petitioner taking advantage of his or her own wrong or disability docs not arise.
Sub-section (l) (a) provides that in case the court is satisfied that any of the grounds for granting relief exists and the petitioner is not taking in any way advantage of his or her own wrongs or disability for the purpose of relief it shall decree such relief. In Mohan lull v. Moot Chattel, the wife filed a suit for dissolution of marriage on the ground that her husband married a second wife.
The husband contended that the second marriage was the outcome of the first wife’s refusal to live with him and therefore she cannot take advantage of her own wrong. It was held that even supposing that first wife refused to live with her husband it could not be conceived that the second marriage was necessarily the result of her living separately from her husband. Further a wife living separately from her husband cannot be considered to have committed wrong and thereby, caused any injury.
Sub-section (l) (b) -Has not in any manner been accessory to or connived at or condoned:
The second condition is that the petitioner is one who has been in any way accessory to the offence complained against, or connived with the respondent or has condoned the act of the respondent. The word “accessory” is intended to mean aiding to produce or contribute to the bringing about of the offence complained against.
Thus where the ground of the petition is that “the other party has, after the solemnisation of the marriage, sexual intercourse with any person other than his spouse or that “the other party is living in adultery”, the court will satisfy itself that the petitioner has not in any manner been accessory to or connived at or condoned the act or acts complained of in the petition.
In the case of N.G. Dastan v. S. Dastan, the court accepted the contention of the petition 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 by his conduct has condoned the offence of cruelty to which he was subjected. To undergo a state of cruelty for more than a decade in ones marital life is sufficient to establish a case of condonation.
Even though condonation is not pleaded as a defence by the respondent, it is the duty of the court in view of Section 23 (1) (b) of the Act, to find whether the cruelty or adultery stands condoned. The section casts an obligation on the courts to consider the question of condonation, as obligations which have to be discharged even in undefended cases’ Mere forgiveness is not condonation. It must restore the offending spouse to the previous position and must be followed by cohabitation.
Living together as husband and wife in spite of matrimonial separation amounts to condonations.
Sub-section (l) (bb) – Consent Decree:
In case of parties seeking divorce by mutual consent it is not required to prove anything in addition to that laid down in Section 13-B. But by inserting a new clause (bb) in Section 23(1) of the Act, it has been provided that in any petition for divorce by mutual consent, the court should satisfy itself that such consent has not been obtained by force, fraud or undue influence. It is the duty of the court to verify the above facts before passing the decree.
Sub-section (1) (c) – Collusion:
“Collusion in judicial proceedings is a secret agreement between two persons that one should institute against the other in order to obtain the decision of judicial tribunal for some sinister purpose the judgment obtained by such collusion is a nullity.”
All the definitions given of the word “collusion” indicate that an improper or an ulterior purpose has brought together the contesting parties in order to snatch a decision of divorce from the hands of the court.
The contents of Section 23(1) (c) in the Hindu Marriage Act, 1955 although purports to put an restriction upon divorce by collusion, yet it cannot be considered as a bar to the court’s jurisdiction under Section 13-B of the Act or under Order 23 Rule 3 of the C.P.C
Sub-section 1(d) – Delay
The fourth condition which a court has to consider it that “there has not been unnecessary or improper delay in instituting the proceedings”. For this purpose the court has to take into consideration the conduct of the parties to see if the delay was really culpable.
Unnecessary delay is indicative of condonation and acceptance by silence. Thus where adultery is imputed, the court must see that there has not been undue delay in presentation of the petition because that state of affairs would establish that the petitioner had condoned the alleged guilt.
Section 23A – Relief for respondent in divorce and other proceedings.
Section 23-A has been introduced by the Marriage Laws (Amendment) Act, 1976. It is intended to give relief to the respondent in divorce and other proceedings. The respondent may not only oppose the relief sought by the petitioner on the ground of adultery, cruelty or disertion, but can also make a counter claim for any relief under the Act.
The respondent need not file a separate application for that purpose. He can take up the matter in written statement itself by affixing a court fee stamp of rupees fifteen. The Section 5 helps the other party and saves him from the botheration of filing a separate petition for that purpose.
Section 24
(Maintenance pendentelite and expenses of proceedings.)
Justice Dhingra explains Section 24 of the HMA in a judgment Manish Kumar VS Mrs.Pratibha. Section 24/HMA reads as follows:
“24. Maintenance pendentelite and expenses of proceedings.- Where in any proceeding under this Act it appears to the Court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay the petitioner the expenses of the proceeding such sum as, having regard to the petitioner’s own income and the income of the respondent, it may seem to the Court to be reasonable””
Maintenance cannot be termed as charity. Maintenance is a sum of money which is paid by the husband to his wife. Under Hindu law, it is the spiritual duty of the husband to maintain his wife. And this duty continues from the date of marriage till the dissolution of marriage through a decree of divorce.
The main object of section 24 of the Hindu Marriage Act is to grant maintenance to the wife so that she can have financial assistance and she is able to maintain herself during the pendency of proceedings. Husband also has a right to claim maintenance from the wife.
Since the object of section 24 is to provide financial assistance, the application under section 24 must be disposed of as expeditiously as possible. However if the main case itself has been dismissed, there is no provision under which court can give relief in an application made under section 24.
The wording used by section 24 is such that not only wife but also husband can claim maintenance. Therefore this section does not discriminate on the basis of sex.
Section 24 is applicable when the marriage itself is valid. If the marriage itself is not valid (that is it is a void marriage), then wife cannot claim maintenance under section 24 of Hindu Marriage Act.
Although this provision refers to only husband and wife, this does not mean that maintenance cannot be increased because children are in the custody of wife. Family Lawyers in Chandigarh have also contended that court must consider the fact that since children are in the custody of wife, it is wife’s obligation to raise and maintain her children. And for that purpose the husband must maintain and children.
As to the nature of the proceedings, it has been held that the proceedings under section 24 are not original proceedings. They are merely interlocutory proceedings. Further, lawyers sometimes compare proceedings under section 24 with with proceedings under section 125 of Criminal Procedure Code. In this regard courts have clarified that both the proceedings are separate and different. Merely because order under section 125 of Criminal Procedure Code has been passed, jurisdiction of the court cannot depart under section 24 of Hindu Marriage Act. However it has also been clarified that if two orders under both the provisions mentioned above have been passed in a single matrimonial dispute then the husband is only liable to pay according to the order which mentions a higher amount.
Punjab and Haryana High Court at Chandigarh has also stated that the application made under section 24 is not barred if application the section 125 Criminal Procedure Code has been rejected.
Permanent alimony and maintenance (Section 25)
Section 25 provides for the grant of permanent alimony and maintenance to any of the party to a marriage at the time of passing any decree under the Act or at any time subsequent thereto. The court shall take into account the status of opposite party in fixing the amount for maintenance.
The court has been empowered to rescind or modify the order at any subsequent stage if the circumstances so warrant; and if petitioner becomes inchoate or remarries at any subsequent stage the court may at the instance of the other party vary, modify or rescind any such order in such manner as the court may deem just.
Sub-section (1) of Section 25 requires that an application must be made by the wife or the husband who is party to the main proceeding, if she or he wants the incidental relief of permanent alimony and such an application may be made in the main proceedings either before or at the time of passing the decree granting substantive relief of divorce or at any time subsequent to the passing of such decree.
“The relief of permanent alimony being an incidental relief it should not be a matter of any consequence whether the application for it is made prior to passing of the decree or subsequent to it. As a matter of fact, the relief of permanent alimony being a relief incidental to the granting of the substantive relief, it would be more consonant with reason that an application for such incidental relief should be maintainable after the passing of the decree granting the substantive relief.
After the amendment of the Hindu Marriage Act in 1976, the scope of the Act has widened and now it is mandatory for the court to grant full opportunity to the parties to substantiate their rival contentions by leading proper evidence. The court should take into account the other circumstances which may influence the grant or refusal of permanent alimony besides considering the income and conduct of the parties.
The right to permanent alimony accrues only when a decree has been passed in favour of the petition under Sections 9 to 13. In case no such decree has been passed in favour of the petitioner, the right to claim any maintenance or alimony is ruled out. Thus where a petition of the husband is dismissed under any of the sections i.e., Sections 9 to 14 the application for permanent maintenance filed by the wife under Section 25 of the Act will be rejected.
Still the wife could claim maintenance under Section 18(1) of the Hindu Adoption and Maintenance Act, 1956 or under Section 125 of the Criminal Procedure Code, 1973 The court cannot entertain any claim for maintenance in any proceeding under Section 25 of the Hindu Marriage Act, 1955, which are maintainable under Section 18 of the Hindu Adoption and Maintenance Act, 1956.
The provisions contained under Section 25 of the Act, are not controlled by Section 18 of the Hindu Adoption and Maintenance Act, 1956. It is not necessary for a wife who has obtained a decree of judicial separation upon finding that the husband has deserted her to prove desertion within the meaning of Section 18(2) (a) of the Hindu Adoption and Maintenance Act.
Section 25 confers a special right on the indigent spouse while the Hindu Adoption and Maintenance Act confers an absolute right.
Section 25 cannot be construed in such a manner as to hold that notwithstanding the nullity of marriage, the wife retains her status for purpose of applying for alimony and maintenance. The proper construction of Section 25 would be that where a marriage is admitted to be a nullity, the section will have application.
But where the question of nullity is in issue and its contentions the court has to proceed on the assumption until contrary is proved that the applicant is the wife. It is in that sense that Section 25 should be appreciated.
Under the section, permanent alimony can be granted even to an earring spouse and the mere fact that the wife did not comply with the decree for restitution of conjugal rights and that was the cause for passing of a decree against her, cannot by itself disentitle her to claim permanent alimony under this section.
The fact that the wife was a guilty spouse can only be taken as a relevant factor in assessing the conduct of the parties and in determining the amount of permanent alimony.
In an important case, Gulab v. Kamal, the husband got the decree of divorce against the wife on the ground of misconduct and adultery. The wife moved an application for maintenance under Section 25 of the Act. The court held that a decree passed against the applicant on the ground of unchastity is no bar to his or her claiming maintenance either at the time of passing such decree or any time subsequent thereto.
The court has ample discretion to grant or refuse maintenance and the extent to which to grant the same, depending on the facts and circumstances of each case. But an adulterous conduct on the part of wife subsequent to the order of maintenance in her favour after the decree of divorce is passed would certainly negate her claim to get maintenance allowance in future.
In Patel DharmshreePremji v. Bai Shankar Kanji,’ the Gujarat High Court affirmed the above proposition and held that even a guilty party to a marriage could obtain permanent alimony. It has further been said that a mother claiming maintenance for herself cannot include the amount of maintenance for her children therein and she must bring a separate suit for the purpose. On the question of reducing the amount of maintenance under Section 25 of the Act in proceedings for judicial separation the fact that the wife had been leading an adulterous life would be relevant and significant.
Under this section application for permanent alimony can be moved by either party to the marriage. The provision for permanent alimony even after the grant of divorce or decree of nullity is the speciality of the Act. There may be circumstances in which divorce between the spouses could be decreed by the court yet it is felt necessary that some amount of maintenance be fixed.
For example, where after the performance of marriage the wife becomes victim of some veneral disease or leprosy and on that ground divorce is decreed in favour of husband, if no permanent arrangement is made for her unkeep and amount of maintenance is not specified for the purpose, her life would become too miserable. Keeping such eventualities in mind the provision for permanent maintenance has been made which is very much desirable and reasonable.
Recently in BabuShahab v. LeelaBai, Bombay High Court has given a very important decision on Section 25 of Hindu Marriage Act, 1955. After considering the fact, the Court upholding right of maintenance to “illegitimate wife” or faithful “mistress” by liberal construction of word “wife” as contained in Section 25 of the Hindu Marriage Act cannot be said to be a good law, arc required to be overruled to that extent. The Court observed that illegitimate wife too can claim maintenance.
In Abbayolla M. Subba Reddy v. Padmamma, The court held that if the marriage admittedly is nullity of the Hindu Marriage Act, section 25 of the Act is not applicable, the relief of maintenance cannot be granted.
The court is empowered under the section to take note of changed circumstances and vary the amount of maintenance. In such matters neither the principle of res-judicata nor of estoppel would have any application to frustrate proceedings on the application for increasing the amount of maintenance.
It is well recognised in Hindu law that the right of maintenance is a substantive and continuing right and the quantum of maintenance is variable from time to time. Hence the extension of the principle of res-judicata or of estoppel in matters relating to variation of the amount of maintenance is beyond all contemplations and outside the purview of judicial considerations.
Custody of children (section 26)
Under Section 26 of the Act, the court has been empowered to pass any order or make any arrangement in respect of custody, maintenance and education of children during the pendency of the proceedings or after any decree is passed under the Act in any case between the parents of the children. In the absence of any such proceeding only the Guardian Courts can pass such order.
The Act makes provision only in respect of minor children. The orders made under the section can be varied, suspended or revoked from time to time and even after the termination of the proceedings. The object of the section is to enable the court to make just and proper provision for the welfare of minor children.
The expression ‘child’ in the section covers both legitimate or illegitimate child. The court has got the jurisdiction to make an order for custody of an illegitimate child under Section 26 of the Act. The father has got primacy over the mother with respect to custody of minor’s person as well as property. However, welfare of the child is the paramount consideration.
After, Marriage Laws (Amendment) Act of 2001, in Section 26 of the Hindu Marriage Act, the following provision shall be inserted that the application with respect to the maintenance and education of the minor children, pending the proceedings for obtaining such decree, shall, as far as possible, be disposed of within 60 days from the date of service of notice on the respondent.
The object of making such a provision is that the interest of children is not adversely affected or neglected on account of the proceedings between their parents. Whenever the court proceeds to pass such an order it would take into consideration the wishes of the children as far as possible.
Where the application for custody of her minor child below the age of five years has been made by the wife in the course of proceeding for judicial separation instituted by her, the custody should be entrusted to her unless there are special circumstances suggesting that the welfare of the minor demanded otherwise.
The Delhi High Court on the other hand observed that the rule of law of five years is a guiding factor but the pivotal factor is the benefit and well being of the minor. It is in the interest of the minors that they are allowed to remain in the custody of the mother till there is change of circumstances.
Disposal of property (Section 27)
Under the provisions of this section, the court has power to make proper orders with respect to any property, presented at or about the time of marriage, which may belong jointly to both the husband and the wife. The object of the section is to prevent multiplicity of litigation in respect of certain property between the parties to any proceedings under the Act.
Whenever the court exercises power under this Act, two prerequisites will have to be complied with—firstly, the said property should have been acquired at or about the time of marriage and secondly, it should be in the joint ownership of the husband and wife. The court can exercise its power under the section suomotu or on the application of any party thereto.
Where the wife alleged that the disputed properties, which were gifted to her at the occasion of marriage by her parents and other relatives for her use, should be held as hers, the court accepted the said contention and held it to be her exclusive property.
The section is clear, it meant only for making a division of the property presented, at or about the time of marriage, which may belong jointly to both the spouses. But Allahabad High Court in a judgment held that the court has inherent power to pass an appropriate order in regard to property which may belong solely to husband or the wife.
The High Courts of Delhi, Punjab and Haryana and Rajasthan dissented from the above view of the Allahabad High Court. The Rajasthan High Court held that Section 27 of the Act is concerned only with the property which is jointly owned by the husband and wife and which has been given or presented or gifted to them at or about the time of the marriage. It does not relate to any property which exclusively belongs to cither the husband or the wife.
Section 28 : All decrees made by the court under this Act are appealable.
Section 28A : All decrees and orders made by the court under this Act are enforceable and executable in the like manner as the decrees and orders of the court made in exercise of its original civil jurisdiction..
