HINDU MARRIAGE ACT,1955

(Material For JCJ-TS&AP)

RK JUDICIAL ACADEMY
HYDERABAD
500020

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 Index
S. No Chapter Page No
1 Introduction to Hindu 3
Marriage Act

2 Preliminary 10

3 Hindu Marriages 20

4 Restitution of Conjugal 28
Rights and Judicial
Separation
5 Nullity of Marriage and 34
Divorce
6 Jurisdiction and 64
Procedure

7 Savings and Repeals 81

8. Judgments 83

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 1. Introduction to Hindu Marriage Act,1955

1.1-A brief summary of the historical background of the Hindu marriage act

The Hindu Marriage Act is a significant legislation that governs Hindu marriages in India.
It was enacted in 1955 and has since undergone amendments to accommodate
changing societal norms. The Act provides a legal framework for solemnizing and
regulating Hindu marriages, as well as for issues related to divorce, maintenance,
custody, and inheritance. Here is a detailed historical background of the Hindu Marriage
Act.

The roots of the Hindu Marriage Act can be traced back to ancient Hindu scriptures and
customs that governed marriage among Hindus. These scriptures, such as the Manu
Smriti and the Dharma Shastra, provided guidelines for conducting rituals and
establishing the sanctity of marriage within the Hindu community.

However, as India progressed through various historical periods, societal norms and
practices evolved, necessitating a modern legal framework to address the changing
needs of Hindu marriages. Prior to the enactment of the Hindu Marriage Act, personal
laws varied across different regions and communities, leading to inconsistencies and
disputes.

In 1937, the Indian government established the Hindu Law Committee to review and
codify Hindu personal laws. The committee worked on drafting comprehensive
legislation to regulate marriage, divorce, and related matters within the Hindu
community. After several years of deliberation and consultations, the Hindu Marriage
Act was finally enacted in 1955.

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The primary objective of the Act was to bring uniformity and clarity to the laws governing
Hindu marriages. It aimed to provide legal recognition to Hindu marriages and ensure
the equal rights and protection of individuals involved. The Act defined the conditions
for a valid Hindu marriage, including age requirements, consent, and prohibited degrees
of relationships.

Furthermore, the Act introduced the concept of monogamy as the general rule, barring
certain customary practices that permitted polygamy in specific circumstances. It also
established guidelines for the registration of marriages to ensure legal recognition and
protection for married couples.

Over the years, the Hindu Marriage Act has witnessed amendments to address
emerging societal needs and address shortcomings in the original legislation. In 1976,
amendments were made to introduce provisions for divorce, including both fault-based
and no-fault divorce. These amendments aimed to provide legal recourse for individuals
trapped in unhappy or abusive marriages.

Subsequent amendments further expanded the scope of the Act, addressing issues
such as maintenance, property rights, and child custody. These amendments aimed to
protect the rights and interests of women and children within the institution of marriage.

In recent times, the Act has also recognized the rights of transgender individuals,
allowing them to marry under Hindu law. This progressive step reflects the evolving
nature of societal understanding and acceptance of diverse gender identities.

The Hindu Marriage Act has played a crucial role in regulating and protecting Hindu
marriages in India. It has provided a legal framework that ensures the rights and
obligations of spouses, safeguards the interests of women and children, and promotes
social harmony within the Hindu community.

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However, it's worth noting that the Act continues to be a subject of debate and
discussion, with calls for further reforms to address emerging challenges and promote
gender equality. Efforts are being made to address issues such as marital rape, gender-
based violence, and the recognition of same-sex marriages within the Hindu community.

In conclusion, the Hindu Marriage Act has a rich historical background that spans
centuries of Hindu customs, scriptures, and societal changes. It stands as a vital
legislation that governs Hindu marriages in India, providing legal recognition and
protection to married couples while adapting to the evolving needs and aspirations of
society.

1.2 Introduction to the Hindu Marriage Act

The Hindu Marriage Act, of 1955 is a significant legislation in India that governs Hindu
marriages. Enacted on 18th May 1955, it provides a legal framework for solemnizing
and regulating marriages among Hindus, as well as for issues related to divorce,
maintenance, custody, and inheritance. The Act was a landmark step towards bringing
uniformity and clarity to the personal laws governing Hindu marriages in the country.

The Hindu Marriage Act was enacted to address the diverse and evolving needs of
Hindu society. Prior to its enactment, personal laws varied across different regions and
communities, leading to inconsistencies and disputes. The Act aimed to provide legal
recognition to Hindu marriages and ensure the equal rights and protection of individuals
involved.

One of the primary objectives of the Act was to define the conditions for a valid Hindu
marriage. It introduced the concept of monogamy as the general rule, prohibiting
polygamy except in cases where it was permitted by customary practices. The Act set
the minimum age for marriage, ensuring that both the bride and groom had attained a

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legal age of consent. It also defined the prohibited degrees of relationships, ensuring
that marriages did not take place between individuals who were closely related.

The Act also introduced provisions for the registration of marriages. It made registration
mandatory in certain states and provided a legal mechanism to validate and protect the
rights of married couples. The registration process helped in proving the legality of the
marriage, resolving disputes, and availing various social and legal benefits associated
with marriage.

Furthermore, the Act addressed the issue of divorce within the Hindu community. It
recognized both fault-based and no-fault divorce. Fault-based grounds for divorce
included adultery, cruelty, desertion, conversion to another religion, and mental illness.
The Act also allowed for divorce by mutual consent, providing a more amicable
approach to ending a marriage.

The Act introduced provisions for maintenance, ensuring that spouses and dependent
children were provided with financial support in case of separation or divorce. It aimed
to protect the rights and interests of women, acknowledging their vulnerability during
such circumstances.

Additionally, the Act addressed issues related to property rights and inheritance. It
ensured that married women had equal rights to property, both ancestral and acquired,
and safeguarded their interests in case of the death of their spouse. The Act also
defined guidelines for child custody, aiming to protect the welfare and best interests of
children during and after divorce.

Over the years, the Hindu Marriage Act has witnessed amendments to address
emerging societal needs and address shortcomings in the original legislation. These
amendments have aimed to protect the rights of women and children within the

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institution of marriage, promote gender equality, and adapt to the changing dynamics
of Hindu society.

The Hindu Marriage Act, of 1955 has played a crucial role in regulating and protecting
Hindu marriages in India. It has provided a legal framework that ensures the rights and
obligations of spouses, safeguards the interests of women and children, and promotes
social harmony within the Hindu community.

However, it is important to note that the Act continues to be a subject of debate and
discussion. Calls for further reforms have been made to address emerging challenges,
such as marital rape, gender-based violence, and the recognition of same-sex
marriages within the Hindu community. Efforts are being made to evolve the Act to align
with the evolving societal understanding and aspirations.

In conclusion, the Hindu Marriage Act, of 1955 is significant legislation that provides a
legal framework for regulating Hindu marriages in India. It aims to ensure the legal
recognition, protection, and welfare of individuals within the Hindu community, while
also adapting to the changing needs and aspirations of society.

1.3 Features of the Hindu Marriage Act

The Hindu Marriage Act, of 1955 encompasses several essential characteristics that
shape its legal framework for Hindu marriages in India. Let's explore each of these
characteristics in detail:

1. Legal Recognition and Regulation: The Act provides legal recognition to Hindu
marriages and regulates various aspects of marital relationships. It defines the
conditions for a valid Hindu marriage, such as the age of marriage, consent, and
absence of prohibited relationships (Section 5). This ensures that Hindu marriages are
conducted within the bounds of the law.

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2. Monogamy and Prohibition of Polygamy: The Act upholds monogamy as the
general rule for Hindu marriages, allowing only one spouse at a time. While polygamy
is generally prohibited, certain customary practices may permit it in specific
circumstances (Section 5(i)). However, it's important to note that polygamy is not
widely accepted or practiced within the Hindu community in contemporary times.

3. Registration of Marriages: The Act recognizes the importance of marriage

registration. Although registration is not mandatory in all states, it is encouraged to
establish legal proof of the marriage and avail of various social and legal benefits
associated with it. Voluntary registration is allowed under the Act (Section 8), providing
a means to officially document the marriage.

4. Divorce and Dissolution of Marriage: The Act includes provisions for divorce and
the dissolution of Hindu marriages. It recognizes both fault-based and no-fault divorce.
Fault-based grounds for divorce include adultery, cruelty, desertion, conversion to
another religion, and mental illness (Section 13). The Act also allows for divorce by
mutual consent, where both parties agree to end the marriage amicably (Section 13B).
These provisions provide legal recourse to individuals facing irretrievable breakdowns
in their marriages.

5. Maintenance and Financial Support: The Act addresses the issue of maintenance
or financial support for spouses and dependent children. It ensures that both the wife
and children are provided with adequate financial support for their maintenance (Section
25). This provision aims to safeguard the rights and well-being of dependent family
members in case of separation or divorce.

6. Property Rights and Inheritance: The Act recognizes the equal property rights of
married women. It grants wives the right to claim their share in both ancestral and
acquired property of their husbands. The Act ensures that married women are not

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deprived of their rightful share in case of the death of their spouse (Sections 14 and
15). This provision promotes gender equality and protects the interests of women within
the institution of marriage.

7. Child Custody and Guardianship: The Act addresses the crucial matter of child
custody and guardianship. It prioritizes the welfare and best interests of the child in
determining custody arrangements (Section 26). Factors such as the child's age,
gender, and overall well-being are taken into account to ensure their proper care and
upbringing.

These essential characteristics of the Hindu Marriage Act reflect its purpose to establish
a legal framework that governs Hindu marriages, protects the rights of individuals
involved, promotes gender equality, and ensures the well-being of children within the
marital relationship. The Act continues to evolve to meet the changing needs and
aspirations of Hindu society while upholding the principles of justice and fairness in
marital matters.

Hindu Marriage Act,1955

The Act of 1955 is divided into six Chapters and has a total of 29 Sections. The
following describes the arrangement of the same:

1. Chapter I: Preliminary

2. Chapter II: Hindu Marriages

3. Chapter III: Restitution of conjugal rights and judicial separation

4. Chapter IV: Nullity of Marriage and Divorce

5. Chapter V: Jurisdiction and Procedure

6. Chapter VI: Savings and repeals

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 Chapter I: Preliminary

An act to amend and codify the law relating to marriage among Hindus. BE it
enacted by Parliament in the Sixth Year of the Republic of India as follows: —

Enactment date and year: [18th May 1955.], ACT NO. 25 OF 19551

1. Short title and extent:

1. Short Title: The Hindu Marriage Act, 1955 is the official title of the legislation. The Act is

commonly referred to by this name, and it is recognized and cited as such in legal and
official documents.

2. Extent: The Act extends to the whole of India, including all states and union territories. It

applies to Hindus, as defined in the Act, irrespective of their domicile or place of residence
within the Indian territory.

The Act's short title and extent are stated in Section 1(1) of the Hindu Marriage Act, 1955.

The purpose of providing a short title is to provide a concise and recognizable name for the

legislation. The extent of the Act clarifies its territorial applicability, ensuring that it applies
uniformly across the entire Indian territory.

Section 2 of the Hindu Marriage Act, 1955 deals with the application of the Act. Let's break
down the section and provide a detailed explanation of each word and provision:

2. Application of the Act:

1. To anyone who practices Hinduism in any of its manifestations, including

Virashaivas, Lingayats, and adherents of the Brahmo, Prarthana, or Arya Samaj;

2. To anyone who practices Buddhism, Jainism, or Sikhism as a religion; and

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 3. Unless it is demonstrated that any such person would not have been subject to

Hindu law or to any customs or usages that are part of that law in respect of any
of the matters dealt with herein if this Act had not been passed, it shall apply to

any other person residing in the territories to which this Act extends who is not a

Muslim, Christian, Parsi, or Jew by religion.

The Act was considered conservative because it included other religions (Jains, Buddhists, or

Sikhs) as defined under Article 44 of the Indian Constitution while applying to everyone who
is Hindu by religion in any of its manifestations. However, Sikhs now have their own unique

law regarding marriage thanks to the 2012 passage of the Anand Marriage (Amendment) Bill.

Therefore, unless it is proven that such persons are not covered by the Act under any custom
or usage, this Section applies to Hindus by religion in any of its forms, as well as Hindus within

the extended meaning, such as Buddhists, Jains, or Sikhs. In fact, it applies to all such persons

domiciled in the country who are not Muslims, Christians, Parsis, or Jews. The Act only applies
to Hindus who are residents of Indian territory and who are not otherwise.

Hindus by religion

Hindus by religion signify the following:

1. Those who practice the original religions of Buddhism, Judaism, Hinduism, or

Jainism.
Any person who is a Hindu, Jain, Buddhist, or Sikh by religion is a Hindu if:

• He practices, professes, or follows any of these religions; and

• He continues to be a Hindu even if he does not practice, profess, or follow the tenets
of any one of these religions.

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This was correctly stated by the Supreme Court in Chandrasekhar v. Kulandaivelu (1962).

Therefore, a person does not stop being a Hindu if they become atheist, disagrees with or
depart from the core principles of Hinduism, falter in their observance of orthodox customs,
adopt a Western lifestyle, or consume beef.

2. Those who had previously converted to the religions of the Hindus, Jain, Sikhs, or

Buddhists.

A person who loses their Hindu identity by converting to a non-Hindu religion will regain their
Hindu identity if they revert to one of the four Hindu religions.

It is also to be noted that a non-Hindu can become a Hindu by means of conversion in the
following ways:

1. If he goes through the official conversion or reconversion ritual required by the caste
or group to which he converts or reconverts.

2. If he exhibits a sincere desire to convert to Hinduism and acts in a way that makes

that desire clear, as well as if he is accepted as a member of the group he was

welcomed into.

Furthermore, if a person genuinely says that he adheres to the Hindu faith without any ulterior

motives or intentions, this amounts to his acceptance of the Hindu understanding of God. When
he converts, he becomes a Hindu.

Hindus by birth

A person shall be a Hindu by birth under contemporary Hindu law if:

1. He was raised as a Hindu by one of his parents who is a Hindu or

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 2. Both of his parents are Hindus.
Regardless of whether the child is legitimate or not, they are Hindu.

If both or one of the parents convert to a different religion after the child is born, the child will

still remain a Hindu unless the parents decide to exercise their parental rights and also convert
the child to the new faith.

In Maneka Gandhi v. Indira Gandhi (1984), the Apex Court determined that Sanjay Gandhi
was a Hindu for the following reasons:

1. His mother was a Hindu, one of the parents, and

2. He was raised as a Hindu openly.

If the Central Government does not specify differently by publication in the official gazette,

nothing in this Act shall apply to members of any Scheduled Tribe (even if they are Hindus).
The majority of the scheduled tribes still follow their traditional laws.

3. Definitions

“The expressions 'custom' and 'usage' signify any rule which, having been continuously and

uniformly observed for a long time, has obtained the force of law among Hindus in any local
area, tribe, community, group or family: provided that the rule is certain and not unreasonable

or opposed to public policy; provided further that in the case of a rule applicable only to a
family it has not been discontinued by the family."

the provision you are referring to is section 3(a) of the Hindu marriage act, 1955, which

provides an explanation of the terms "custom" and "usage" within the context of the act. Let's
break it down in detail:

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Section 3(a) of the Hindu Marriage Act, 1955:

"The expressions 'custom' and 'usage' signify any rule which, having been continuously and

uniformly observed for a long time, has obtained the force of law among Hindus in any local
area, tribe, community, group or family:

Provided that the rule is certain and not unreasonable or opposed to public policy;

Provided further that in the case of a rule applicable only to a family it has not been discontinued
by the family."

Explanation:

1. Custom and Usage: According to this provision, the terms "custom" and "usage" refer to

any established rule that has been consistently and uniformly followed for a significant period
of time within the Hindu community. These customs and usages may relate to various aspects
of Hindu marriage and are recognized as having the force of law.

2. Continuously and Uniformly Observed: The custom or usage must have been observed

consistently and uniformly over time. This requirement ensures that the rule has gained
acceptance and has become an established practice within a specific local area, tribe,
community, group, or family.

3. Force of Law: If a custom or usage meets the criteria of being continuously and uniformly

observed, it obtains the force of law within the specific Hindu community to which it applies.

This means that the custom or usage is recognized as having legal validity and can be relied
upon in matters related to Hindu marriages.

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4. Certainty and Reasonableness: For a custom or usage to be considered valid, it must be

certain and not arbitrary. It should be a clearly defined and well-understood rule. Additionally,
the custom or usage should not be unreasonable or contrary to public policy. This ensures that
the rule does not violate principles of fairness or social welfare.

5. Family Discontinuation: In the case of a custom or usage that applies exclusively to a

particular family, it must not have been discontinued by the family itself. This provision

recognizes that family-specific customs or usages may evolve or change over time, but if the
family continues to observe the rule, it can still be considered valid and applicable within that
family.

Section 3(b) of the Hindu Marriage Act, 1955 provides the definition of "district court" within
the context of the Act. Let's break down the provision in detail:

Section 3(b) of the Hindu Marriage Act, 1955:

1. District Court: The term "district court" refers to the court that has jurisdiction over the

matters dealt with in the Hindu Marriage Act. It is the court where disputes, cases, and
proceedings related to Hindu marriages are heard and adjudicated.

2. City Civil Court: If a specific area has a city civil court, that court is deemed to be the district
court for that area in relation to matters covered under the Hindu Marriage Act. City civil courts
are established in certain urban areas to handle civil cases and disputes.

3. Principal Civil Court of Original Jurisdiction: In areas where there is no city civil court, the

principal civil court of original jurisdiction functions as the district court for the purposes of the

Act. The principal civil court is the primary court with original jurisdiction in civil matters within
a particular jurisdiction.

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4. Inclusion of Other Civil Courts: The definition of "district court" is not limited to city civil

courts or principal civil courts alone. The provision allows the State Government to specify
other civil courts that may have jurisdiction over matters dealt with in the Hindu Marriage Act.
The State Government can do so by issuing a notification in the Official Gazette.

This provision ensures that there is a designated court in each area that can hear and decide

cases related to Hindu marriages as per the provisions of the Act. It recognizes the importance

of having a specific court with the necessary jurisdiction and expertise to handle matters arising
under the Act.

Section 3(c)

"Full blood" and "half-blood" are terms used to describe the relationships between individuals
based on their descent from a common ancestor, particularly within the framework of

inheritance and succession. These terms are not exclusive to the Hindu Marriage Act but are
commonly used in legal and familial contexts.

When two persons are said to be related to each other by full blood, it means they are

descended from a common ancestor through the same wife. In other words, they have the
same mother. This indicates a closer blood relationship between the individuals.

On the other hand, when two persons are related to each other by half-blood, it means they
are descended from a common ancestor but through different wives. In this case, they share

one parent but have different mothers. This denotes a more distant blood relationship between
the individuals compared to those related by full blood.

These terms help define the degree of kinship and can have implications in matters such as
inheritance, succession, and property rights.

3(d) “uterine blood”

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 1. Descended from a Common Ancestress: When we say that two individuals are related

by uterine blood, it means they have a common female ancestor, often referred to as
an "ancestress." This common ancestress is usually a woman from whom both
individuals can trace their maternal lineage.

2. Different Husbands: Despite sharing a common ancestress, the individuals in question

have different husbands or fathers. This means that their paternal lineages are distinct

and do not intersect. The concept of uterine blood focuses specifically on the maternal
connection and highlights the shared ancestry through the maternal line while
acknowledging the different paternal lineages.

To illustrate this concept, let's consider an example:

Suppose there are two individuals, A and B. They both have different fathers, but their mothers
are sisters. In this scenario, A and B would be related by uterine blood. They share a common
ancestress (their maternal grandmother) but have different husbands or fathers.

The concept of uterine blood recognizes the importance of maternal ancestry and the kinship

ties that arise through the maternal line. It acknowledges the bonds created by the shared

connection to a common female ancestor and the cultural or social significance attached to this
relationship

Section 3(f)(i) of the Hindu Marriage Act, 1955: "(i) 'sapinda relationship' with reference to

any person extends as far as the third generation (inclusive) in the line of ascent through the
mother, and the fifth (inclusive) in the line of ascent through the father, the line being traced
upwards in each case from the person concerned, who is to be counted as the first generation."

Explanation:

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The concept of "sapinda relationship" is crucial in determining the prohibited degrees of kinship

within which marriage is not allowed under the Hindu Marriage Act. It refers to the limits of
permissible blood relationships within which marriage is prohibited due to close familial ties.

1. Extent of Sapinda Relationship: As per the definition provided in Section 3(f)(i), the
sapinda relationship extends up to the third generation (inclusive) in the line of ascent

through the mother and up to the fifth generation (inclusive) in the line of ascent through
the father.

2. Line of Ascent Through the mother: When calculating sapinda relationships through the

mother's line, the line of ascent is traced upwards from the person concerned (the
individual in question) through the mother. The generations are counted inclusively,

meaning the person is counted as the first generation. So, relationships within the third
generation, including the person in question, are considered sapinda relationships.

For example, let's say the person is identified as A. The sapinda relationships in the line of

ascent through the mother would include A's mother, maternal grandmother, and maternal
great-grandmother (up to the third generation).

3. Line of Ascent Through the Father: When calculating sapinda relationships through the

father's line, the line of ascent is traced upwards from the person concerned (the
individual in question) through the father. Again, the generations are counted

inclusively, with the person being counted as the first generation. Relationships within

the fifth generation, including the person in question, are considered sapinda
relationships.

For instance, if the person is identified as A, the sapinda relationships in the line of ascent
through the father would include A's father, paternal grandfather, paternal great-grandfather,

paternal great-great-grandfather, and paternal great-great-great-grandfather (up to the fifth

generation).

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The determination of sapinda relationships is crucial for establishing the prohibited degrees of

kinship within which marriage is not allowed under the Hindu Marriage Act. Marriages between
individuals who fall within the prohibited degrees of sapinda relationships are considered void
and invalid.

It's important to note that the Hindu Marriage Act provides additional specifications and

restrictions regarding sapinda relationships in subsequent sections. Section 5 of the Act, for

example, lays down specific conditions for a valid Hindu marriage, including the prohibition of
marriage within the prohibited degrees of sapinda relationships.

4. Overriding Effect of Act

The overriding effect of the Hindu Marriage Act means that the provisions of the Act take

precedence over any other law or custom that may be contrary to its provisions. This ensures

that the rights and obligations of individuals in Hindu marriages are governed by the Act and
that any conflicting customs or practices are superseded.

For example, if there is a customary practice in a particular community that denies certain
rights or privileges to women in marriage, such as property rights or the right to divorce, the

Hindu Marriage Act will override such customs and ensure that women are granted equal rights
and protections as provided by the Act.

It is important to note that the Act itself provides certain exceptions and allows for the

continuation of certain customary practices or rituals that are not in violation of the basic

principles of the Act. These exceptions are usually subject to specific conditions and safeguards
outlined in the Act.

Overall, the overriding effect of the Hindu Marriage Act ensures that the legal framework
established by the Act prevails over conflicting customs or practices, thereby promoting
equality, protection, and uniformity in the institution of Hindu marriages in India.

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 II. Hindu Marriages

Section-5: Conditions for Marriage

I. Condition of Monogamy:

Section 5 Hindu Marriage Act lays down five essential conditions for marriage to
be governed by its provision. The first of these is monogamy. It means neither
party to the intended marriage should have a living spouse with whom marriages
subsist in the eyes of the law. bachelors, sprinters, divorcees, widows, etc
therefore lawfully marry.

According to sections 11 and 17 of the Act, if a man or woman whose earlier

marriage is subsisting in the eyes of the law marries a second time, it will be void
under the Act and covered by anti-bigamy provisions of section 494,495 of IPC.

Case Law: Sarla Mudgal versus Union of India and later Lily Thomas versus
India

The court ruled that the second marriage of a converted Muslim, (originally
Hindu), a man solemnized under Muslim law, would be counted as second
marriage for the purpose of the offense of bigamy and such men will be liable to
be punished. In both cases, the husband had contracted A nikkah with the second
wife and while in the first he was officially known by the Muslim name, in the
second case both the husband and the alleged second wife were using their pre-
converted Hindu names for all official purposes Specifying the religion as a Hindu
in the official records also, it was a clear case of misuse of constitutional rights

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of the conversion and the religion for selfish purpose with the sole objective of
escaping the prosecution for bigamy and exploiting the facility available under
different religions for practice limited polygamy.

II. Condition of sanity

The condition for valid marriage specified in section 5 of the Act relates to the
mental condition of the parties. This provision virtually prohibits the marriage
of the following persons

1. those who are suffering from unsoundness of mind because of which their
consent to marriage cannot be recognized by the law.

2. Those who are suffering from mental disorder of kind and extent which is
unfit for marriage and procreation of children even if they give consent for the
marriage and

3. Those having recurrent attacks of insanity.

his provision originally mentioned Epilepsy as an indication of mental abnormality,

but the reference to the disease was deleted from it by the amendment of the Act
made in 1999.

The marriage of any such person, if procured, will be voidable under section 12
of the Act and can be handled by decree of nullity to be passed by the court.

(iii) Condition of age:

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The condition for valid marriage lays down in section five of the Act related to
relates to the age of the parties to the intended marriage. As per this provision,
the bride must have reached the age of 18 and the groom must have reached
the age of 21 years at the time of marriage. A person below these age limits is a
minor. And whose marriage is prohibited by law.

Nevertheless, A miner's marriage is not void but as per Section 18 of the Act, a
minor who procures his or her marriage will be guilty of an offense punishable
with rigorous imprisonment up to two years & Fine up to 1,00,000 or both. The
remedies provided by the Prohibition of Child Marriage Act, 2006 will also be
available to minors governed by this Act.

Case Law: Shivakumar versus Inspector of Police,

(iv) Prohibited degrees in Marriage:

The parties are not within the degrees of prohibited relationship unless the custom

or usage governing each of them permits a marriage between the two;

(Relatives whom a person is not allowed to marry) Section 2(g) of the Act mentions
such relatives, who in short, will include the following relatives

1. linear ascendants and descendants and their former spouses

2. paternal maternal uncles and aunts, their children,

3. siblings, Full, half, or Uterine blood, and their children.

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Men are not allowed to marry former wives of their brothers and of paternal uncles,

maternal uncles, and grandmothers, notably, a woman is not precluded from marrying

the former husband of her sister or aunt.

A marriage within prohibited degrees in violation of this condition will be wide under
Section 11 of the under Section 18 in which the parties will be guilty of the offense,
punishable with simple imprisonment, up to a month’s fine, up to ₹1000, or both. The

condition for marriage, however, excluded from its purview those who plead A contrary,
custom or usage defined in section three of the Act.

(v) Sapinda relationship:

This condition for marriage under Section 5 is that parties should not be each other

spindles as defined in Section 3 of (f) of the Act. This is a special feature of the Act

not found anywhere in any other law of the country. if the parties to an intended marriage

or in the direct lineage from the paternal ascendant up to 5 and are maternal ascendant,

up to 3 degrees of ascent are to be counted from the person concerned, and they are
sapindas of each other and cannot become husband and wife.

7. Solemnisation

7(1) The Act says that marriage may be solemnized with customary rights and

ceremonies of either party., Saptapadi is the most important right of the Hindu marriage

ceremony. The word Saptapadi means seven steps, each step being the exchange of
vows step and that is called Saptapadi. After the 7th step, the couple legally becomes

husband and wife.

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Section 7(1) does not make this ceremony compulsory for any marriage, and if any

other ceremonies are followed by the custom of either party’s family, the marriage can

be lawfully solemnized in that ceremony.

the word “may” in section Section 7(1) indicates that the solemnization of marriage
through any traditional rites or rituals is not mandatory. This provision impliedly protects
the ceremonies followed by the Sikhs and arya samaj Hindus for whose protection

special laws were enacted before independence.

The Supreme Court has held that if there is a custom in. Either party’s family is not to

observe any religious rights. If the parties follow it, their marriage will be legally
recognized.

Complete and Binding Marriage:

Section 7(2) of the Act makes an additional provision saying that if marriage is

solemnized through the Saptapadi ceremony, it will become complete and binding when

the 7th step is taken. The provision is prone to misuse for the sake of Bigamy, as

married persons marrying again can claim That they had taken a lesser number of steps
in their first and second marriages,

When marriage will be complete and binding if it is solemnized through a customer

ceremony different from Saptapadi, remains open question taking undue advantage of

the slice of the act about it unscrupulous bigamists have been escaping application of.
Anti-bigamy provisions of the act by claiming that either the first or the second marriage

was not binding and complete. In an old case, the court had given a judgment favoring

A bigamist and account of incompleteness of customer ceremony and employed for

a marriage.

24
Shiromani Jain case:

In one case, a Jain man having a wife and a son married another woman who bore him
a daughter. On the first wife, initiating preceding for the decree of nullity of the second

marriage, the courts below ruled that there was not enough proof of the first marriage
having been properly sermonized.

The second marriage was valid in the appeal Supreme Court decided that there was

adequate proof of solemnization of both marriages and hence the second marriage was

wide.

Presumption of Marriage:

The existence of marriage between man and woman may be presumed in a law even
in the absence of proof of its proper solemnization through the ceremony. The

requirements for using this established legal principle were examined by the Supreme

Court.

In a number of cases, the Supreme Court in the judgment Badri Prasad versus Director

of Consolidation gave a legal validity to 50 years living relationship. But in some cases,

the Supreme Court observed that the presumption was rebuttable but the heavy burden
lies on the person who seeks to deprive the relationship Of legal origin to prove that no

marriage took place, the law leans in favor of legitimacy and frowns upon a baster.

In Balasubramanyam versus Suruttayn, again, the Supreme Court held that if a man
and woman are living under the same roof and cohabiting for a number of years, there

will be a presumption under the section 1114 Indian Evidence Act that they live life as

husband and wife and the children born to them will not be illegitimate.

25
8. Registration of Marriage under the Hindu Marriage Act

1. Purpose of facilitating proof of Hindu marriages:

The purpose of this provision is to establish a system for recording and maintaining the
details of Hindu marriages in order to provide an official record of such marriages. This

facilitates the proof of marriage for legal and administrative purposes.

2. Making rules for entering particulars in a Hindu Marriage Register:

The state government is empowered to create rules that specify how the parties to a

Hindu marriage can have the particulars (details) of their marriage entered into a Hindu
Marriage Register. These rules define the process, manner, and conditions for recording

the marriage details.

3. Optional vs. compulsory entering of particulars:

By default, entering the particulars in the Hindu Marriage Register is optional. However,

the state government has the authority to make it compulsory if it deems it necessary

or expedient. The government can issue a direction to make the entry of particulars
mandatory either in the entire state or in specific regions or cases as specified.

4. Punishment for contravening the rules:

If any person fails to comply with the rules made by the state government regarding the

entry of marriage particulars, they can be penalized. The punishment for contravening

the rules can be a fine of up to twenty-five rupees.

5. Laying of rules before the State Legislature:

26
All the rules made by the state government under this section need to be presented to

the State Legislature for their review and approval. This ensures transparency and

allows the legislature to scrutinize the rules before they become enforceable.

6. Inspection and evidentiary value of the Hindu Marriage Register:

The Hindu Marriage Register, where the marriage particulars are recorded, must be
made available for inspection at all reasonable times. It serves as an official record of

the statements made by the parties regarding their marriage. Certified extracts (copies)

from the register can be obtained from the Registrar upon application and payment of

the prescribed fee. These certified extracts can be used as evidence in legal
proceedings.

7. Omission to make the entry and validity of marriage:

This provision clarifies that the validity of a Hindu marriage is not affected by the

omission to make an entry in the Hindu Marriage Register. Even if the parties fail to

record their marriage details, it does not invalidate their marriage under the law.

27
 III. Restitution of Conjugal Rights and Judicial Separation

9. Restitution of conjugal Right— When either the husband or the wife has, without
reasonable excuse, withdrawn from the society of the other, the aggrieved party may

apply, by petition to the district court, for restitution of conjugal rights and the court, on
being satisfied with the truth of the statements made in such petition and that there is
no legal ground why the application should not be granted, may decree restitution of

conjugal rights accordingly.

[Explanation. —Where a question arises whether there has been a reasonable excuse

for withdrawal from the society, the burden of proving a reasonable excuse shall be on
the person who has withdrawn from the society.:

1. Restitution of Conjugal Rights:

"Restitution of conjugal rights" refers to a legal remedy available to either the husband

or the wife when one of them has, without a reasonable excuse, withdrawn from the

society (companionship) of the other. This provision aims to encourage the parties to

reconcile and restore their marital relationship.

2. Filing a Petition:

The aggrieved party, i.e., the spouse who has been left without a reasonable excuse,
can apply for restitution of conjugal rights by filing a petition. The petition is submitted

to the district court, which has the jurisdiction to hear and decide such cases.

3. Court's Evaluation:

28
The court examines the petition and assesses its validity. The court must be satisfied

with the truthfulness of the statements made in the petition and find that there is no

legal ground to reject the application.

4. Decree for Restitution of Conjugal Rights:

If the court is convinced by the truthfulness of the petition and finds no legal reasons to
deny it, the court can issue a decree for restitution of conjugal rights. This decree

essentially orders the spouse who withdrew from the other's society to return and fulfill

their conjugal obligations towards the aggrieved party.

5. Burden of Proof:

In cases where there is a dispute about whether there was a reasonable excuse for the
withdrawal from the society, the burden of proving a reasonable excuse lies with the

party who withdrew. This means that the spouse who left the marital home without a

reasonable excuse must provide evidence to support their claim.

Overall, this passage explains the legal provision of restitution of conjugal rights, which

allows an aggrieved spouse to seek a court order to compel their partner to return and

resume marital obligations when there is no justifiable reason for the withdrawal. It
places the burden of proof on the withdrawing spouse to establish a reasonable excuse

for their absence from the marital home.

Nature of Remedy

Some of the cases where this relief has been provided by the court are mentioned
below.

29
In Pallavi Bharadwaj versus Pratap Chauhan (2011), the court clarified that evidence

of a valid marriage is one of the foundational facts to be established for claiming the

restitution of conjugal rights under Section 9.

In Suman Singh versus Sanjay Singh (2017), the Supreme Court. Supreme Court
noted that from the Percival of the evidence, it is clear that it was the respondent who
withdraw from the company of the appellant without reasonable cause and not vice

versa. Hence the appellant was entitled toa decree of the restitution of conjugal rights.

In Asgar Ali versus Reshma (2014) The Karnataka High Court observed that marriage

undoubtedly confers conjugal rights and both husband and wife. Hence both are entitled
for restitution of conjugal rights. However, the right to restitution of the conjugate right

is not absolute but subject to lawful excuses

Effect of decree for restitution:

The restitution of conjugal rights does not have a binding force and may be ignored

by the spouse against whom it has been passed. Nor it can be enforced or executed

by the court against her wishes. On the contrary, after one year from the date of the
decree, either spouse, including the person against whom It was made) can seek a

divorce on the grounds of noncompliance with it, without giving any reason for
noncompliance.

Constitutional validity:

During 1983-84, High Court judges had expressed different opinions on whether the

remedy of restitution of conjugal rights was constitutionally valid. An Andra Pradesh

High Court judge had ruled that the provision violated the principle of gender equality
under the Constitution. But a learned Delhi High Court judge dismissed the Andhra

30
Pradesh ruling asserting,"in a sensitive sphere which is at once most intimate and

delicate introduction of cold principles of constitutional law Will have the effect of

weakening the marriage bond.

Case law: Saroj Rani vs Sudarshan Kumar Chadha, SC upheld the Delhi High court
Ruling.

10. Judicial separation:

The remedy of judicial separation means court-sanctioned freedom for one spouse not

to cohabit with another spouse. This remedy leads to temporary suspension and not

termination of the marriage.

An aggrieved spouse may, in effort to save the marriage, seek this relief instead
Divorce. Section 10 of the Hindu Marriage Act provides for this remedy and originally

specified the grounds for seeking it, but the law was changed later. Now the remedy for

judicial separation can be sought by either spouse in the circumstances.

Amounting to one or more grounds for divorce laid down under section 13 of the Act

Say the same thing.

1. Petition for Decree of Judicial Separation:

Either party to a marriage, regardless of whether the marriage was solemnized before

or after the commencement of the Act, has the right to file a petition seeking a decree
for judicial separation. The petition is presented to the appropriate court and must be

based on the grounds specified in subsection (1) of section 13. In the case of a wife,
the petition can also be filed based on the grounds specified in subsection (2) of section

13, which are the same grounds that could be used for filing a petition for divorce.

31
2. Grounds for Judicial Separation:

The grounds for seeking a decree of judicial separation are specified in subsections (1)
and (2) of section 13 of the Act. These grounds cover various reasons that justify the

separation of spouses, including cruelty, adultery, desertion, conversion to another

religion, mental illness, and incurable diseases.

3. Effects of Judicial Separation:

Once a decree for judicial separation has been passed, it is no longer mandatory for

the petitioner (the party who filed the petition) to cohabit with the respondent (the other

party). This means that the spouses are legally separated and do not have to live
together as a married couple.

A decree for judicial separation, if granted, does not dissolve the marriage and only

allows the agreed spouse to live separately from the other spouse. Also, it does not

have binding force or may be ignored by the spouse against whom it has been passed,

nor it can be enforced or executed by the court against his or her wishes. On the

contrary, after one year from the date of the decree, either spouse, including the one
against whom it was made, can seek a divorce on the ground of non-compliance without

giving any reasons for non-compliance.

It was observed by the Supreme Court in Hirachand Srinivas versus Sunanda (2001),

that a decree of judicial separation does not dissolve the bond of marriage, but rather
provides an opportunity to spouses for reconciliation and readjustment.

4. Rescinding the Decree of Judicial Separation:

32
Despite the initial decree of judicial separation, the court has the authority to rescind

(cancel) the decree. Either party can file a petition to the court, requesting the rescission

of the decree. The court will review the petition and evaluate the truthfulness of the
statements made in it. If the court is satisfied with the truthfulness of the statements
and deems it just and reasonable, it can rescind the decree, effectively ending the

judicial separation.

A decree of judicial separation, once granted, can be rescinded by the court and the
application of either party if it is satisfied with the truth of the ground on which the relief

is sought.

Either spouse may apply for the recession of a decree of judicial separation. Recession

can be requested due to changing circumstances, and the Courte must be satisfied with

the truth of such statements so that it can find it therefore therefrom be justified, just,

and reasonable cause to rescind the decree. If the decrease is rescinded, the petitioner

can insist on cohabitation.

However, as observed by the Mysore High Court in Kashawwa versus Phadeppa

sanggappa, If the parties cohabit, the decree automatically becomes ineffective. The
court should use this power with great caution and circumspection.

33
 IV. Nullity of Marriage and Divorce

Void Marriages Section 11 Hindu Marriage Act deals with void marriages, a
marriage that is void does not have any legal effect and can be nullified by the
court decree.

The three void marriages under the Act are those violating in law.

-bigamy,

-prohibited degrees in marriage, and

-sapindas relationships

It was held by the Supreme Court in the Chand Patel case that a void marriage
is one which is unlawful in itself. The prohibition against marriage is perpetual
and absolute. A void marriage does not create any civil rights and obligations
between the parties.

It is not compulsory for either party to any of these void marriages to get it, get it
declared void by the degree of knowledge, but if either of them wants to seek any
ancillary relief. Under its provision, this can be done only in proceedings for nullity
of marriage under section 11 of the act

This conclusion is supported by the Supreme Court’s observation of Deoki

Panjhiyara versus Shastri Bhushan Narayan-A bigamy marriage can be
annulled by the court through a decree of nullity. However, only one or other
party to void the marriage can seek a decree of nullity for its annulment by

34
taking legal action against the other spouse. Thus, the matter would be
between the parties to void a marriage themselves.

Third persons cannot seek this relief but can plead invalidity of void marriage
in any other legal proceedings if it affects their rights or interest.

Notably, if either party to void the marriage has died, this remedy cannot be
available to the surviving spouse.

1. Null and Void Marriages:

According to this provision, any marriage that takes place after the Act's
commencement can be declared null and void. This means that legally, the
marriage is considered to have never existed.

2. Petition for Declaration of Nullity:

Either party to the marriage has the right to file a petition seeking a declaration
that the marriage is null and void. The petition can be filed against the other party
involved in the marriage.

3. Conditions for Nullity:

To declare a marriage null and void, it must contravene any one of the conditions
specified in clauses (i), (iv), and (v) of section 5. These conditions outline certain
factors that, if violated, render the marriage invalid. The conditions include things
like prohibited degrees of relationship (e.g., marrying a close relative), the
existence of a previous valid marriage that is still ongoing, and the mental capacity
of the parties to enter into a marriage.

35
4. Decree of Nullity:

If the court finds that the marriage contravenes any of the specified conditions, it
can issue a decree of nullity. This legal decree officially declares that the marriage
is null and void from the very beginning. It effectively treats the marriage as
though it never occurred.

In inconclusion states that any marriage solemnized after the commencement of

the Act can be declared null and void if it violates certain conditions outlined in
clauses (i), (iv), and (v) of section 5. Either party to the marriage can file a
petition seeking a declaration of nullity. If the court determines that the conditions
have been contravened, it can issue a decree stating that the marriage is null
and void, treating it as if it never took place.

12.Voidable Marriages:

Voidable marriage remains intact and produces all effects of a valid marriage.
It is not compulsory for either party to such a marriage to seek its annulment. It
may, however, be annulled by a court through a decree of nullity if the legal
requirement for availing this remedy is fulfilled.

The remedy does not provide an absolute right and may or may not be granted,
depending on the circumstances of the particular case. If either party seeks
annulment of a voidable marriage, the courts have to use their discretion with
abundant caution, especially if the marriage has been consummated or the couple
already has a child.

36
In Shiva Kumar versus Inspector of Police, the court has observed that the
marriage of a person with a female below 18 years of age is voidable and the
same shall be subsisting until it is annulled by the competent court under Section
3, Prohibition of Child Marriage Act, 2006. Such marriage is not a valid marriage
in a Strict sense, but it is not invalid. Moreover, the male contracting party does
not enjoy all rights which would otherwise emanate from a valid marriage, strictly
sense, but will enjoy only limited rights.

section 12 of the Act, marriage will be voidable on 4 grounds:

(a) Impotency:

Marriage with a sexually impotent person is not void in itself. If either spouse
alleges that the marriage has not been solemnized due to the impotency of the
other party. The marriage can be annulled by a court by passing a decree of
nullity under section 12 (a) of the Act.

In the context of this remedy, the courts have held as follows.

1. Incurability of impotency, not a condition for obtaining this remedy (Samar Roy
Chowdury vs Snigdha Roy Chowdhury)

2. Continued virginity of the wife after marriage is not conclusive proof of her
husband's impotence.

3. The remedy would be available in the case of a normal wife’s total aversion to
sexual acts.

37
4. Marriage is consummated if the intercourse is complete. It is not material that
no child is born due to sexual intercourse.

5. When the wife persistently refused to consummate the marriage and at the
same time refused to submit herself to medical examination, the court can draw
the interference that she is important and grant relief under Section 12 1A Hindu
Marriage Act.

12(b) Mental handicap:

If either party to marriage did not fulfill, the at the time of marriage, the condition
of mental normalcy has been defined as section 5(ii) of the act, The marriage
will be voidable under section 12(1)(b) at the option of either party and can be
annulled by the court. In the case where annulment of voidable marriage was
sought under this provision, the Supreme Court observed:

"The marriage is not per se void but voidable under the clause. Such a
condition in the very nature of things calls for a strict standard of proof. The
onus of proof is very heavy on the party. In Prakash Kumar versus Chanchal,
the High Court held that the marriage is voidable under section 12(1)(b) on
the ground of violation of the condition laid down in Section 5(ii) that no party
suffering from mental unsoundness, mental disorder, insanity or epilepsy. It
is the question of the degree of defect.

The standard of proving such a condition is strict. The onus of proof is very heavy
and the party who alleges them for Untying the bond of marriage. If the petitioner

38
continues to cohabit with the other party as husband and wife, then neither the
degree of annulment of marriage Under section 12(2) nor of divorce can be
awarded under section 13

12(c)-want of free consent:

Under section 12(C) of the Act, if either party to marriage alleges and proves
that,his or her consent for marriage was obtained by force or by fraud
(concealment of material fact), The marriage will be voidable at the option of
the aggrieved party and can be annulled by the court. The remedy is, however,
to be sought within one year of ceasing of force, or Discovery of concealed
fact, as the case may be.

Some Cases in which the marriage was challenged before the court are
mentioned below.

In Parvati Devi versus Dharmachandra Seth, It was held that the party to the
marriage is incapable of giving birth to the child due to physical incapacity. If
known before the marriage, relates to an essential fact concealing the said party
which should have been disclosed to the other party beforehand of marriage.
Concealing the fact that the wife is incapable of giving birth is fraud within the
meaning of Section 12(1)(c) Hindu Marriage Act.

In Anju Kundu versus Shyamal Kumar Kundu, the High Court observed that
where suppression of the educational qualification of the wife is not material

39
enough to cause prejudice to the husband, a consummated marriage cannot be
annulled on this ground.

Andhra Pradesh High Court in M Devendra versus A.sarika noted that wrong
statements were made by the husband about his social status, financial status,
and educational qualification. This is a fraud about facts material for marriage.

12(d) pre-marital pregnancy:

If at the time of marriage, a bride was pregnant, the not known to the groom by
another man, the marriage will be voidable under section 12(1)(d) at his option.
thus, it was held that the pregnancy of the wife, ignorance of this fact by the
groom, the starting of proceedings by the groom within one year of the
marriage, and absence of marital intercourse by the petitioner-husband with
his wife, since such discovery are the grounds or conditions to avail the remedy
under section 12(1)(d).

As held by the Supreme Court in Mahindra Nanavati versus Susheela

Nanavati that under this clause (sub-section (1)(d) R/W sub-section(2)(b) The
groom had to Establish such facts and circumstances as would lead the court
either to believe that the respondent was pregnant by someone else at the
time of marriage, or to hold that a prudent man, under the circumstances and
on the facts of the case, would be completely satisfied that it was so. The onus
of proof lies on the petitioner’s husband to prove this.

40
A period of one year for the institution of Proceedings is a condition precedent of
an absolute nature and not a period of limitation that may be extended and the
general principle of the law of limitation. The husband has also to prove that he
did not cause this premarital pregnancy.

The finding of the DNA test will be admissible for obtaining this remedy.

13. Divorce Laws:

Extra-Marital Sex

The first ground for divorce lay down under the Hindu marriage act is sex by a
married person outside of marriage. As per the provision of section 13(1)(i), if a
married man or woman indulges in sexual activities with 3rd person. It will be
ground for divorce in the hands of the aggrieved spouse. Originally the ground
mentioned in this provision was leaving in adultery which means a continuous
course of action. The lavas were later amended and now a single act of
extramarital sex by one spouse will be enough for the other spouse to seek a
divorce.

Some cases in which divorce on the ground of adultery was pleaded before the
court are mentioned.

❑ Adultery proved by unrebutted evidence is a ground of divorce.

❑ The allegation of adultery is a serious charge. It is required to be proved

behind reasonable doubt and not by mere preparedness of the probabilities.
It cannot be proved from the evidence of an opportunity alone.

41
❑ It is proved by the person who alleges it and the other party cannot be
asked to prove the negative. To prove it, the DNA test of a child cannot be
ordered if the husband had access to the wife as provided under section
112 of the Evidence Act 1872.

❑ In Joseph Shine versus Union of India, section 497, which made

adultery a criminal offense, was struck down as unconstitutional being
violative of Articles 14,15, and 21 of the Constitution. Further, it was
added that if an act of adultery leads to the suicide of an aggrieved
spouse. The adulteress person can be prosecuted under section 306 IPC
for the appointment of the suicide. However, the court clarified that
adultery continues to be ground for divorce.

13(1) (i-a) Matrimonial Cruelty:

The culture of husbands being Pati dev (Husband God) or Majaki Khuda Kuda
(deemed to be God) For the wives is a thing of the past. The Law does not
allow either spouse anymore to treat the other spouse with cruelty. All family
and personal laws in force in the country now recognize matrimonial cruelty
as a ground for legal relief.

In Hindu Marriage Act Section 13(1) (i-a) mentions cruelty on the part of either
spouse as a ground for divorce in the hands of the other spouse. Under the
original version of the Act, cruelty for the purpose was defined, But the laws
changed later, and now it is for the courts to decide in each case if the ACT

42
complaint about in fact amounts to cruelty, explaining the concept of the
cruelty, the Supreme Court has observed:

"The expression cruelty has been used in relation to human conduct or human
behavior. It is the conduct in relation to or in respect of matrimonial duties and
obligations. Cruelty is a course or conduct of one which adversely affects the

other. The cruelty may be mental or physical, intentional or unintentional. If it is

physical, the court will have no problem in determining it. It is a question of fact
and degree. If it is mental, the problem presents difficulties.

❖ First, the inquiry must begin as to the nature of the cruel treatment.

❖ Second, the impact of such treatment in the mind of the spouse, whether it is

caused reasonable apprehension that it would be harmful or injury to life with

other.

❖ Ultimately it is a matter of Inference to be drawn by taking into account the

nature of the conduct and its effect on the complaining spouse.

However, there may be a case where the conduct complained of itself is bad
enough and per se unlawful or illegal. Then the impact or injurious effect the

other spouse need not be enquired into or considered "

In several other decisions and observations also, the court has explained the

possibilities and varieties regarding cruelty as a ground for divorce. A selection of

court views follows.

43
1. The complainant's spouse education and status, norms of married life in the

society which parties belong to, and its social values will be valid considerations for

the court in deciding case.

2. The “intensity, gravity, and stigmatic impact" of alleged cruelty will be decisive in
each case.

3. There cannot be a strait jacket formula for determining mental cruelty in

matrimonial matters. The concept of cruelty differs from person to person depending

upon upbringing, sensitivity, education, family, cultural background, financial

positions, social status, customs, traditions, religious beliefs, and values.

4. Cruelty in matrimonial cases may be of infinite variety. It may be subtle or even

brutal, and maybe by gestures or words.

5. persistent and inordinate sexual demands or malpractices by either spouse Can

be cruelty if it injures the other spouse.

6. The relief is not restricted to wives. A wife may also be guilty of cruelty towards

husband.

7. The expression has an inseparable Nexus with human conduct and human
behavior. It is always dependent upon the social strata are the milieu to which the
parties belong, their way of life, the relationship, the temperament and emotion that

have been conditioned by their social status.

8. Staying together under the same roof is not a precondition for mental cruelty.
Either spouse can cause mental cruelty to the other spouse even while living

separately.

44
 9. Instances of cruelty are not to be taken in isolation, but the court has to take the

cumulative effect of the fax and the circumstances emerging from the evidence on

records.

10. Serious instances of mental cruelty cannot be regarded as ordinary "wear and
tear" of married life so as to deny a decree of divorce.

11. Denial of sexual intercourse by a wife for a long time without sufficient reason

amounts to mental cruelty.

13(1) (ib)Desertion

Act says that desertion of either spouse by the other spouse will be a ground for

divorce. In the former's hands. it must, however, have listed for a continuous period
of 2 years filing of a petition for divorce.

"The explanation at the end of section 13 clarifies that the expression desertion

means the desertion of the petitioner by the other party to the marriage without

reasonable cause and without consent, are against the wish of such party, and

includes the willful neglect of the petitioner by the other party to the marriage, and

its grammatical variation and cognate expression shall be construed accordingly.".

The Supreme Court in Savitri Pandey versus Prem Chandra Pandey, while explaining
the concept of desertion for the purpose of this act, observed:

" Desertion" for the purpose of seeking divorce under the Act means the intentional

permanent forsaking and abandonment of one spouse by another without that other’s
consent and without reasonable cost. In other words, it is a total repudiation of the

obligation of marriage. Desertion is not withdrawn from a place but from the state of

45
things. Dissertation means withdrawing from matrimonial obligations not permitting or

allowing and facilitating cohabitation between the parties. The proof of desertion has to

be considered by taking into consideration the concept of marriage. Which in law

legalizes the sexual relationship between the man and woman in society for the
perpetuation of race, permitting lawful indulgence in passion to prevent Licentiousness

and for the propagation of children. Desertion is not a single act, its complete in itself.
It is a continuous course of conduct to determine the facts and circumstance of each

case”.

Change of religion

under section 13(1)(ii), If either spouse converts to a religion whose followers are

outside the ambit of the act the other spouse can seek divorce on this ground. Changing

from one to another religion among the 4 religions whose followers are governed by

the act will not amount to conversion for this purpose. So, if the Hindu husband becomes

Buddhist or the Hindu wife becomes Sikh. This will be no grounds for seeking a divorce,

but if either of them becomes a Christian or Muslim, this will be a case of conversion
and hints a grounds for divorce.

One prominent case related to the change of religion as a ground for divorce is the
case of Lily Thomas v. Union of India (2000). In this case, the Supreme Court of

India addressed the issue of whether conversion to another religion without the

consent of the other spouse could be considered a valid ground for divorce under

the Hindu Marriage Act.

The petitioner, Lily Thomas, sought a divorce on the grounds that her husband had

converted to Islam without her consent and subsequently married another woman. She

46
argued that his conversion and subsequent marriage amounted to cruelty, and she

should be granted a divorce.

The Supreme Court examined the provisions of the Hindu Marriage Act, which did not

explicitly recognize conversion as a ground for divorce. However, the Court held that
conversion could be considered a relevant factor in determining whether there was
reasonable cause or cruelty justifying the dissolution of the marriage.

The Court emphasized that in cases of conversion, the courts should evaluate the

impact of the conversion on the relationship and the spouse seeking a divorce. If the

conversion creates a situation where the non-converting spouse faces difficulties in

continuing the marriage, it may be considered a valid ground for divorce.

In this case, the Court acknowledged that the husband's conversion to Islam without

the consent of his wife and subsequent marriage to another woman had caused

immense mental agony and suffering to the petitioner. Therefore, the Court allowed the

divorce petition on the grounds of cruelty.

This case established that conversion to another religion without the consent of the
spouse can be considered a valid ground for divorce if it results in cruelty or creates a

situation that makes it unreasonable or difficult for the non-converting spouse to

continue the marriage.

13 (1) (iii) Mental abnormality

has been incurably of unsound mind, or has been suffering continuously or intermittently

from a mental disorder of such a kind and to such an extent that the petitioner cannot

reasonably be expected to live with the respondent.

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Explanation. —In this clause, — (a) the expression “mental disorder” means mental

illness, arrested or incomplete development of mind, psychopathic disorder, or any

other disorder or disability of mind and includes schizophrenia;

(b) the expression “psychopathic disorder” means a persistent disorder or disability of

mind (whether or not including sub—normality of intelligence) that results in
abnormally aggressive or seriously irresponsible conduct on the part of the other

party, and whether or not it requires or is susceptible to medical treatment; “

One landmark judgment related to Section 13(1)(iii) of the Hindu Marriage Act, which

deals with mental abnormalities as a ground for divorce, is the case of V. Bhagat v. D.
Bhagat (1994).

In this case, the Supreme Court of India provided an important interpretation of the

provision and outlined the requirements for establishing mental abnormalities as a

ground for divorce.

The petitioner, V. Bhagat, sought a divorce from his wife, D. Bhagat, on the grounds of

her alleged mental illness and cruelty. The trial court granted the divorce, but the
decision was challenged before the Supreme Court.

The Supreme Court emphasized that to establish mental abnormalities as a ground for

divorce, the petitioner must demonstrate that the respondent's mental disorder is of

such a nature and to such an extent that it becomes impossible for the petitioner to
continue the marital relationship. The Court held that the mental disorder should be of

a kind that causes such mental pain, suffering, or agony to the petitioner that it is not

reasonable to expect them to live with the respondent.

48
The Court further clarified that occasional or temporary mood swings, eccentricity, or

peculiar behaviour would not constitute mental abnormalities sufficient for granting a

divorce. It stressed that the mental disorder must be of such a nature that it makes it
impossible for the petitioner to fulfil the essential marital obligations and enjoy a normal
marital life.

In this case, the Supreme Court observed that the petitioner had failed to establish that

the respondent's mental condition was of a nature that made it impossible for him to
continue the marital relationship. The Court concluded that occasional episodes of

irritability and mood swings did not amount to mental abnormalities that would warrant

a divorce.

The judgment in V. Bhagat v. D. Bhagat set a precedent by providing guidance on the

interpretation of Section 13(1)(iii) of the Hindu Marriage Act. It clarified that mental

abnormalities must be of such a degree that they significantly impair the ability of the

petitioner to fulfill marital obligations and lead a normal married life.

13(1)(iv)-leprosy not a divorce ground(omitted)

One landmark judgment that addressed the issue of leprosy as a ground for divorce

under Section 13(1)(iv) of the Hindu Marriage Act is the case of Indra Sarma v.
V.K.V. Sarma (2013).

In this case, the Supreme Court of India examined the validity of leprosy as a ground
for divorce and provided a significant ruling on the matter.

The petitioner, Indra Sarma, sought a divorce from her husband on the grounds of his

leprosy condition. She argued that his leprosy was a valid ground for divorce under
Section 13(1)(iv) of the Hindu Marriage Act.

49
The Supreme Court, in its judgment, clarified that the provision of leprosy as a ground

for divorce had become obsolete and discriminatory. It noted that advancements in

medical science, particularly the availability of effective treatment for leprosy, had
significantly reduced the social stigma associated with the disease.

The Court emphasized that the purpose of marriage laws is to preserve and protect the
institution of marriage and ensure the well-being of the parties involved. It held that

leprosy, being a curable disease, could not be a valid ground for divorce. The Court
further stated that the condition of leprosy alone cannot be considered a reasonable

cause for the dissolution of a marriage.

The judgment in Indra Sarma v. V.K.V. Sarma declared that leprosy could no longer be

considered a valid ground for divorce under Section 13(1)(iv) of the Hindu Marriage

Act. The Court's decision aimed to eliminate the discrimination faced by individuals

affected by leprosy and promote inclusivity and equality in marital relationships.

It's important to note that this judgment specifically pertains to leprosy as a ground for
divorce and does not invalidate other grounds for divorce specified in the Hindu

Marriage Act. Each case must be evaluated based on its unique circumstances and the
evidence presented.

13(1)(v): venereal disease

Under section 13(1)(v) communicable venereal diseases from which either spouse may
be suffering will be a ground for divorce in the hands of the other spouse. The

incurability of the disease is not mentioned in this provision as a condition for its

application.

50
Infection Human Immune Deficiency virus (HIV) leading to acute immunodeficiency

symptoms is covered by grounds of divorce in section 13(1)(v) (Sunil Lakhotia vs

Pratima Lakhotia)

Case: Smt. Savitri Pandey v. Prem Chandra Pandey (2002) Citation: AIR 2002 SC
591

In this case, the Supreme Court of India interpreted Section 13(1)(v) of the Hindu

Marriage Act and discussed the grounds for divorce based on venereal disease. The

court held that the term "venereal disease" mentioned in the provision refers to a

disease which is communicable and incurable. The burden of proving the existence of
such a disease lies on the party seeking divorce. The court further stated that the mere

presence of a venereal disease is not sufficient to grant a divorce; the disease should

be of such a nature that it makes the spouse's life unsafe or unbearable.

(Vi )Taking Sanyas:

Section 13(1)(vi) Says that if either spouse enters into a holy religious order so as to

completely and finally renounce the worldly life. The other spouse can seek a divorce
on this ground. This provision is meant for those cases in which a married man or

woman may become a hermit or acetic. The Hindu and Minority and Guardianship Act
uses in this context the Hindi expression vanaprastha, Yati, and sanyasi.

Case: Suman Singh v. Sanjay Singh (2006) Citation: (2006) 12 SCC 558

In this case, the Supreme Court of India examined the provision of Section 13(1)(vi) of the

Hindu Marriage Act, which allows a spouse to seek divorce if the other spouse enters a holy

religious order to renounce worldly life. The court emphasized that for the provision to apply,
the renunciation must be "complete and final." Mere initiation into a religious order or pursuing

51
religious activities would not be sufficient grounds for divorce. The court further stated that the
intention to renounce worldly life must be absolute and irrevocable.

In this case, the court found that the husband's actions did not meet the threshold required

under Section 13(1)(vi) for granting a divorce. The husband's initiation into a religious order
was temporary, and he had not completely renounced the world or severed his marital ties.

Disappearance:

Section 13(1)(vi) of the act says that if a spouse has been missing for 7 or more years
and his or her whereabouts have not been known to relatives and friends etc throughout

this period other spouse can seek a divorce on this ground. The duration of

disappearance mentioned here corresponds to a similar provision in the Indian Evidence

Act of 1872.

Case: Smt. Sushila Bai v. Smt. Prem Bai (2002) Citation: AIR 2002 MP 87

In this case, the Madhya Pradesh High Court interpreted Section 13(1)(vi) of the Hindu

Marriage Act, which allows a spouse to seek divorce if the other spouse has been

missing for seven or more years and their whereabouts have not been known to

relatives and friends throughout that period. The court clarified that for this provision to
apply, the missing spouse's absence must be continuous and unexplained.

In this particular case, the husband had been missing for over seven years, and there

was no evidence of his whereabouts during that time. The court held that the wife was

entitled to seek a divorce under Section 13(1)(vi) of the Hindu Marriage Act due to the
husband's unexplained and continuous absence.

Special Grounds for Wives to File a Divorce:

A. Bigamy

52
Section 13(2) of the Hindu Marriage Act, enacted in 1955, includes additional grounds

upon which a wife can seek a divorce from her husband. One of these grounds, Section

13(2)(i), was introduced to address the issue of bigamy, which was strictly prohibited
at the time. This provision aimed to provide relief to wives in marriages where the
husband had multiple wives.

However, over the course of the past 65 years, societal norms and legal perspectives

have evolved, making Section 13(2)(i) less relevant and practically obsolete. As a
result, this provision no longer serves its intended purpose effectively.

Therefore, it is necessary to reconsider and potentially amend Section 13(2)(i) of the

Hindu Marriage Act to align it with contemporary social realities and legal developments

regarding marriage and polygamy.

Case: Saroj Rani v. Sudarshan Kumar Chadha (1984) Citation: AIR 1984 SC 1562

In this case, the Supreme Court of India examined the provision of Section 13(2) of the

Hindu Marriage Act, which provides additional grounds for a wife to seek divorce from

her husband. Specifically, the court discussed Section 13(2)(i), which allows a wife to
seek a divorce based on the existence of a co-wife.

The court held that the expression "wife" in Section 13(2)(i) includes not only a legally

wedded wife but also a woman in a de facto marriage, where the marriage is valid but

not legally recognized. The court further emphasized that for the provision to apply,
there must be evidence of the existence of a co-wife during the subsistence of the

marriage.

B. Undesirable sexual acts:

53
Section 13(2)(ii) of the Hindu Marriage Act allows a wife to seek a divorce on the

ground that her husband has engaged in undesirable sexual acts such as rape, sodomy,

or bestiality. These acts are covered under Sections 375 to 377 of the Indian Penal
Code (IPC), which have undergone legislative and judicial reforms in recent years. The
definition of rape has been broadened through legislation, and consensual

homosexuality has been decriminalized by the courts. The full implications and
interpretation of Section 13(2)(ii) of the Hindu Marriage Act in light of these legal

developments are yet to be determined.

Case: Sm. S. v. Sm. S. (1997) Citation: AIR 1998 Cal 224

In this case, the Calcutta High Court examined the provision of Section 13(2)(ii) of the

Hindu Marriage Act. The court held that to establish a case for divorce under this

provision, the wife must provide sufficient evidence to prove that her husband has

engaged in undesirable sexual acts such as rape, sodomy, or bestiality.

The court emphasized that the burden of proof rests on the wife to demonstrate the
occurrence of such acts and their impact on the marital relationship. The court further

noted that the evidence should be credible, reliable, and corroborated.

In this particular case, the court found that the wife failed to present substantial evidence
to support her claim of the husband's engagement in undesirable sexual acts. Therefore,

the court dismissed the wife's petition for divorce under Section 13(2)(ii) of the Hindu

Marriage Act.

C. Separate maintenance case:

A married woman who resides apart from her husband and has obtained the relief of
separate maintenance under the Hindu Adoption and Maintenance Act of 1956 may

54
seek a divorce under Section 13(2)(iii) of the Hindu Marriage Act. This provision allows

for divorce if cohabitation between the spouses is not resumed for a period of one year

or more following the decree or order granting separate maintenance. The Supreme
Court has clarified that the decision to grant or refuse the divorce in such cases rests
within the discretion of the Court.

D. Girls married during minority:

A female who was married when she was below the age of 15 years has the right to

seek the dissolution of her marriage through a divorce decree under Section 13(2)(iv)

of the Hindu Marriage Act. This right can be exercised even if she has subsequently
joined her husband before reaching the age of 18 years. However, for a more suitable

remedy, the Prohibition of Child Marriage Act, 2006 provides the option for her to seek

an annulment of the marriage until she attains the age of 20 years.

13A. Alternate relief in divorce proceedings:

Pursuant to the inclusion of Section 13 in the Hindu Marriage Act in 1976, when either

spouse files a divorce petition, the court has the authority, at its discretion and
considering the circumstances of the case, to pass a decree of judicial separation

instead of granting an immediate dissolution of the marriage. The objective behind this
provision is to provide an opportunity for the spouses to attempt reconciliation and

salvage their marriage. However, the court is precluded from granting judicial separation

if the divorce petition is based on grounds of cruelty, conversion, or if one spouse has
entered a religious order (sannyasi).

In the case of Prabhakar versus Satyabhama, it was held that Section 13-A of the Act
envisions a scenario where, even if grounds for divorce are established, the court retains

55
the discretionary power to grant judicial separation as an alternative to divorce.

Nonetheless, this section cannot be construed to allow the court to grant judicial

separation in cases where grounds for divorce have not been established.

The reason against this interpretation is that Then every petition for divorce would end
up in the grant of either divorce or judicial separation. There would be no occasion to
dismiss the petition for divorce both where both the parties failed to make out a case of

divorce against each other.

Judicial separation may be granted as a middle course to give the parties time to ponder

reconciliation.

Trupti das versus Ravindranath Mahapatra, it was held that the court cannot grant

judicial separation in a petition for divorce Su moto in this case. High Court is an appeal

granted decree for judicial separation. Su moto no case was filed for this. Supreme

Court held that the High Court was not justified in granting a decree for judicial

separation.

This section puts certain conditions on the quote to exercise its discretionary power.

1. There must be a petition for divorce before the court

2. The court must formulate an opinion that it is just to grant a judicial separation in
instead of a decree for divorce.

3. The court must come to this opinion on the grounds of the circumstances of the case.

And what may be such circumstances?

1. The disability of the respondent.

2. Wrong done by him to the petitioner.

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3. Names of reconciliation between the parties.

13-B Divorce by Mutual Consent

Prescribed procedure:

Section 13 –B of the Act, also added in 1976, provides for divorce by mutual consent
of the spouses in failed marriages. In such cases, neither the spouses nor the spouses

need to plead a specific ground for divorce nor can the court ask them to give the

reasons for their decision to break off. They have only to Jointly approach the court

and make averments that they have.

1. Living separately for at least one year;

2. Not being able to live together and;

3. Mutually decided to put an end to the marriage;

When receiving a petition for divorce by mutual consent the court will give them at

least 6 months’ time from the date of filing this petition to reconsider their decision.

In common parlance, this is known as “the cooling of the period”.

Six months from the date of their petition earliest chance for them to return to the court

and get the relief they asked for finally making up their mind. They can take more time,
but no longer than 18 months from the date of their first appearance in the court.

Spouses will be free to withdraw their petition seeking consent for divorce before their

second appearance in the court to press the relief they have asked.

The spouses return to the court within the specified time to ask for the desired relief.

The court will hear them and satisfy itself of the fact of their marriage and the veracity

57
of their averments, pass a decree of divorce, and dissolve their marriage from the date

of degree.

❑ Free consent of both parties(S-23(1) (bb) (Mohinder Singh vs Jaswinder Kaur-

forced consent)

❑ With drawl of consent

Section 14 of the Hindu Marriage Act, 1955 pertains to the effects of the decree of

nullity or of divorce in relation to children. This section addresses the rights and

responsibilities of parents towards their children following the dissolution or annulment

of their marriage.

Section 14 states that any decree of nullity or divorce obtained by either party under
the Act shall not affect the legitimacy of any child born before or after the decree. This

means that regardless of the dissolution of the marriage, the child's status as a

legitimate child remains unaffected. Legitimacy refers to the legal status of a child born

within a valid marriage.

Additionally, the section emphasizes that the child's rights in relation to property and

inheritance shall also remain intact. The child will have the same rights of inheritance
as if the marriage had not been dissolved or annulled. This provision ensures that the

child's legal rights to property and inheritance are protected irrespective of the marital

status of their parents.

Furthermore, Section 14 establishes the duty of parents to maintain and provide for the

upbringing and education of their children. Even after the dissolution or annulment of

the marriage, both parents continue to be responsible for the welfare of their children.
This includes their financial support, education, and general upbringing. The court may

58
make necessary orders regarding the custody, maintenance, and education of the

children, taking into consideration their best interests.

Overall, Section 14 of the Hindu Marriage Act safeguards the rights of children by

preserving their legitimacy, inheritance rights, and ensuring the ongoing responsibilities
of parents towards their welfare. It aims to protect the interests of children and ensure
that they are not adversely affected by the dissolution or annulment of their parents'

marriage.

15. Remarriage after Divorce

As we have a hierarchy of courts in which appeal after appeal can be made to the next
higher court, a decree of divorce will obviously dissolve the marriage when it becomes

final, leaving no room for review by any court And before that the parties cannot be

allowed to marry someone else.

To clarify this legal position, Section 15 of the Hindu Marriage Act says that either party

to a marriage dissolved by a decree of divorce will be free to marry elsewhere as

provided below:

1. If in a law there is no right to appeal against the divorce decree passed under the
Act, the parties can remarry whenever they so want.

2. If there is a right to appeal, the parties have to wait until the expiry of the limitation

period prescribed for filing an appeal- 90 days from the date of the decree- and if no
appeal is filed within that period, they will be free to remarry.

3. If an appeal has been filed and dismissed by the appellate court, the parties will be

free to remarry without waiting further.

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Section:16-Children of Unlawful Marriages

Section 16 of the Hindu Marriage Act addresses the legitimacy of children born from
marriages that are declared null and void or voidable. This provision recognizes the

legal status and rights of children in such marriages and ensures their protection despite
the invalidity or annulment of the marriage.

Subsection (1) states that if a marriage is declared null and void under Section 11 of

the Act, any child born from that marriage would still be considered legitimate. This

applies to children born before or after the enactment of the Marriage Laws

(Amendment) Act, 1976, and regardless of whether a decree of nullity is granted for
that marriage under the Act. Essentially, the child's legitimacy is preserved, irrespective

of the nullity of the marriage.

Subsection (2) deals with voidable marriages. If a decree of nullity is granted for a

voidable marriage under Section 12 of the Act, any child conceived or begotten before

the decree is made will be deemed legitimate. This means that the child will have the
same legal rights and status as if the marriage had been dissolved instead of being

annulled.

It is important to note that subsection (3) clarifies that the legitimacy of the child does
not confer any rights on the child to the property of anyone other than the parents. This

provision ensures that the child's legitimacy does not affect property rights or inheritance

from individuals other than the parents.

Overall, Section 16 of the Hindu Marriage Act safeguards the legitimacy and rights of

children born from marriages that are null and void or voidable. It provides legal

60
protection to ensure that such children are not deprived of their rights and status due

to the invalidity or annulment of the marriage.

Case: S.P.S Balasubramanian Vs Suruttayn-First time, when the Supreme Court held

the legitimacy of children born out of a living relationship If a man and woman are living
under the same roof and cohabiting for some years, there will be a presumption under
section 114 of Evidence Act that they live as a husband and wife, and children born to

them will be not illegitimate.

17. Punishment of bigamy

1. Marriage between two Hindus: The provision applies specifically to marriages

solemnized between two Hindus. It does not extend to marriages involving individuals

of different religions.

2. Void marriage: The passage states that if a marriage takes place after the

commencement of the Hindu Marriage Act and either party to the marriage had a living

spouse at the time of the marriage, the marriage is considered void. This means that

the marriage is deemed invalid from its inception and has no legal effect.

3. Sections 494 and 495 of the IPC: These sections of the Indian Penal Code come
into play when determining the punishment for bigamy.

a. Section 494 IPC: This section deals with the offense of marrying again during

the lifetime of a spouse. It states that if a person marries another individual while their

previous spouse is alive and the previous marriage is valid, they can be held liable. The
punishment for this offense is imprisonment for a term that may extend up to seven

years, along with the possibility of a fine.

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 b. Section 495 IPC: This section addresses the offense of concealing a former

marriage from the person with whom the subsequent marriage is contracted. If a person

knowingly hides or conceals the fact that they are already married while entering into a
subsequent marriage, they can be held liable. The punishment for this offense is
imprisonment for a term that may extend up to ten years, along with the possibility of a

fine.

In summary, the passage establishes that any marriage between two Hindus that takes
place after the commencement of the Hindu Marriage Act will be void if either party had

a living spouse at the time of the marriage. Additionally, the provisions of Sections 494

and 495 of the IPC will be applied to determine the punishment for the offense of
bigamy, which includes marrying again during the lifetime of a spouse and concealing

a former marriage from the subsequent spouse.

18. Punishment for contravention of certain other conditions for a Hindu

marriage

This refers to the punishment for contravening specific conditions for a Hindu marriage
under the Hindu Marriage Act.

1. Contravention of conditions: If a person procures their own marriage to be solemnized

under the Hindu Marriage Act while contravening the conditions specified in clauses

(iii), (iv), or (v) of section 5, they will be subject to punishment.

2. Clauses (iii), (iv), and (v) of section 5: These clauses contain certain conditions that

must be met for a Hindu marriage to be valid. The passage does not provide the specific

62
details of these clauses, so it's necessary to refer to the actual text of the Hindu Marriage

Act to understand the conditions being referred to.

3. Punishment for contravention:

a. Contravention of condition in clause (iii) of section 5: If a person contravenes the

condition specified in clause (iii) of section 5, they can be punished with rigorous
imprisonment for a term that may extend up to two years or a fine that may extend up

to one lakh rupees or both. The specific details of the condition in clause (iii) are not

mentioned in the passage and must be referred to in the Hindu Marriage Act.

b. Contravention of condition in clause (iv) or clause (v) of section 5: If a person

contravenes the condition specified in either clause (iv) or clause (v) of section 5, they

can be punished with simple imprisonment for a term that may extend up to one month,

or a fine that may extend up to one thousand rupees, or both. The specific details of

the conditions in clause (iv) and clause (v) are not provided in the passage and must

be referred to in the Hindu Marriage Act.

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 V. JURISDICTION AND PROCEDURE

19. Court to which petition shall be presented-

1. Marriage solemnized: If the marriage was solemnized within the local limits of the
ordinary original civil jurisdiction of a District Court, the petition should be presented to
that District Court.

2. Respondent's residence: If, at the time of presenting the petition, the respondent (the

person against whom the petition is filed) resides within the local limits of the ordinary

original civil jurisdiction of a District Court, the petition should be presented to that
District Court.

3. Last residence of the parties: If the parties to the marriage last resided together within

the local limits of the ordinary original civil jurisdiction of a District Court, the petition

should be presented to that District Court.

4. Wife as the petitioner: In cases where the wife is the petitioner (the person filing the

petition), the petition should be presented to the District Court where she is residing on
the date of presenting the petition.

5. Petitioner's residence when the respondent is outside the specified territories or not

heard of for seven years: If the petitioner (the person filing the petition) is residing within
the local limits of the ordinary original civil jurisdiction of a District Court at the time of

presenting the petition, and the respondent is either residing outside the territories to

which the Act extends or has not been heard of as being alive for a period of seven
years or more by those who would naturally have heard of him if he were alive, the

petition should be presented to that District Court.

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Arunima Naveen Takiar vs Naveen Takiar on 29 January 2019, The summary of the case law

mentioned in the provided passage is as follows:

The learned counsel for the plaintiff relied on Section 19 of the Hindu Marriage Act,

1955 to argue that the divorce proceedings could only be filed in Mumbai, India, and
not in the UK. The counsel distinguished the judgment of the Delhi High Court in the
case of Anoop Beniwal, stating that the facts in the present case were different. In the

Delhi High Court case, the wife had already presented oral evidence in the divorce
proceedings initiated by the husband. However, in the present case, the plaintiff had

not participated or even entered an appearance in the divorce proceedings filed by the

defendant, citing the lack of means to participate.

The Division Bench of the Court in the case of Nikhil Srinivas Kulkarni considered

whether a Family Court in India has jurisdiction to hear a matter involving a party

domiciled outside the territory governed by the Hindu Marriage Act, 1955. The Division

Bench, after referring to various judgments and analyzing Section 1 and Section 19 of

the Hindu Marriage Act, 1955, held that if a marriage was solemnized under Hindu law,
the matrimonial relationship is governed by the provisions of the Hindu Marriage Act,
1955. The Court emphasized that Section 19 of the Act should be given a purposeful

interpretation, stating that divorce proceedings should also be conducted under the
provisions of the Hindu Marriage Act, 1955 when the marriage was solemnized under

Hindu law. The Court further held that a party cannot object to the proceedings in India

solely based on their citizenship or domicile in another country, such as the USA.

Referring to the Supreme Court judgment in the case of Y. Narasimharao vs. Y. Venkata

Lakshmi, the Court concluded that the wife cannot initiate divorce proceedings in the
USA under the Hindu Marriage Act, 1955. The Court held that since the husband

65
married the wife in India according to Hindu Vedic rites under the provisions of the

Hindu Marriage Act, 1955, he subjected himself to the jurisdiction of the Court

designated for matrimonial disputes under Section 19 of the Act. The Court also cited
that the domicile of the wife does not automatically follow that of the husband under
private international law, and the husband's domiciliary law cannot determine the

jurisdiction or applicable law. Therefore, a divorce decree obtained by the husband from
a foreign court would not be enforceable in India.

In the view of the Court, Section 1(2) of the Hindu Marriage Act, 1955 should be read

in conjunction with Section 19, which specifies the jurisdiction of the court where the

petition under the Act should be presented. Section 19(i) states that such proceedings
must be presented before the District Court within whose jurisdiction the marriage was

solemnized. In the present case, as the marriage was solemnized in Mumbai, the
domicile of the defendant being in the UK, whether by birth, choice, or otherwise, would

not divest the jurisdiction of the court provided under Section 19 of the Hindu Marriage

Act, 1955 for filing proceedings under the Act.

20. Contents and verification of petitions

1. The petition's contents: The petitioner must clearly state the facts on which their claim
for relief is based. This means that the petitioner needs to provide all relevant

information and details regarding the grounds for seeking relief, such as divorce or any

other form of matrimonial relief. The statement of facts should be presented as clearly

as possible considering the nature of the case.

Additionally, in all petitions except those filed under Section 11 of the Act (which pertains

to void marriages), the petitioner must also explicitly state that there is no collusion

66
between them and the other party to the marriage. Collusion refers to a situation where

both parties agree to deceive the court or manipulate the proceedings, often to obtain

a desired outcome.

2. Verification of statements: The statements made in the petition need to be verified

by the petitioner or another competent person. Verification means confirming the
truthfulness and accuracy of the statements contained in the petition. The verification

must be done in the manner required by law for the verification of plaints, which refers
to the formal process of confirming the truth of the statements made in a legal document.

Typically, this involves signing the petition and making a declaration under oath or

affirmation.

Importantly, the verified statements made in the petition can be treated as evidence

during the hearing of the case. This means that the court can consider these statements

as proof or supporting material for the claims made by the petitioner. The statements

may be referred to and relied upon as evidence to support the petitioner's case.

21. Application of Act 5 of 1908

Section 21 of the Hindu Marriage Act, 1955, states that all proceedings under the Act

will be governed, to the extent possible, by the provisions of the Code of Civil Procedure,
1908 (CPC). The Code of Civil Procedure is a procedural law that lays down the rules

and processes for civil litigation in India.

According to Section 21, the application of the CPC to proceedings under the Hindu

Marriage Act means that the procedural aspects, such as the filing of petitions, issuance

of summons, examination of witnesses, presentation of evidence, and the conduct of

hearings, will be governed by the provisions of the CPC.

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However, it is important to note that the application of the CPC to proceedings under

the Hindu Marriage Act is subject to the other provisions of the Act itself. This means

that if there are specific provisions or rules within the Hindu Marriage Act that deviate
from the CPC, those provisions will prevail and take precedence.

Additionally, the High Court is empowered to make rules regarding the application of
the CPC to proceedings under the Hindu Marriage Act. These rules, known as the High

Court Rules, provide further guidance on the procedural aspects and may include
specific provisions or modifications applicable to matrimonial cases.

In summary, Section 21 of the Hindu Marriage Act states that, except for the specific
provisions within the Act and subject to any rules made by the High Court, the

proceedings under the Act will be regulated by the procedural provisions of the Code

of Civil Procedure, 1908.

21A. Power to transfer petitions in certain cases:

Section 21A of the Hindu Marriage Act, 1955 deals with the power to transfer

petitions in certain cases. It outlines the procedure to be followed when multiple

petitions for judicial separation or divorce are filed by both parties to a marriage.

According to subsection (1) of Section 21A, if one party files a petition for judicial

separation or divorce in a district court, and subsequently the other party also files a

petition for judicial separation or divorce on any ground, whether in the same district
court or a different one, in the same state or a different state, then the petitions will be

dealt with as specified in subsection (2).

Under subsection (2), there are two scenarios:

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(a) If both petitions are presented to the same district court, then that district court will

try and hear both petitions together.

(b) If the petitions are presented to different district courts, then the later petition will

be transferred to the district court where the earlier petition was presented. Both
petitions will be heard and disposed of together by the district court where the earlier
petition is pending.

In cases falling under clause (b) of subsection (2), the court or the government

authority, as per the provisions of the Code of Civil Procedure, 1908, has the power to

transfer suits or proceedings from the district court where the later petition was filed to
the district court where the earlier petition is pending, shall exercise its powers to

transfer the later petition accordingly.

In simpler terms, Section 21A allows for the consolidation of multiple petitions for judicial

separation or divorce filed by both parties to a marriage. The provision ensures that if

multiple petitions are filed in different courts, they are transferred to a single court for
joint hearing and disposal. This avoids conflicting decisions and promotes a unified and

efficient resolution of matrimonial disputes.

21B. Special provision relating to trial and disposal of petitions under the Act:

Section 21B of the Hindu Marriage Act, 1955 provides a special provision relating to

the trial and disposal of petitions under the Act. It emphasizes the need for expeditious
resolution of cases and sets timelines for the trial and appeal processes.

According to subsection (1), the trial of a petition under the Act should be conducted

continuously from day to day until its conclusion, unless the court determines that an
adjournment is necessary. The court must provide reasons for any adjournment beyond

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the following day. This provision aims to ensure that the trial proceeds without

unnecessary delays, subject to the interests of justice.

Subsection (2) states that every petition under the Act should be tried as expeditiously

as possible. The court is encouraged to conclude the trial within six months from the
date of service of notice of the petition on the respondent. This provision recognizes
the importance of resolving matrimonial disputes promptly and efficiently, minimizing

the duration of litigation for the parties involved.

Similarly, subsection (3) focuses on the expeditious hearing of appeals under the Act.

The appellate court should make efforts to conclude the hearing within three months
from the date of service of notice of appeal on the respondent. This provision aims to

expedite the appellate process and ensure timely resolution of disputes at the appellate

level.

In summary, Section 21B aims to promote the timely and efficient disposal of petitions

and appeals under the Hindu Marriage Act. It emphasizes the need for continuous trial
proceedings, sets a six-month timeline for trial completion, and seeks to conclude the

hearing of appeals within three months. These provisions aim to facilitate the prompt
resolution of matrimonial matters, minimizing the burden on the parties and promoting
access to justice.

21C. Documentary evidence:

Section 21C of the Hindu Marriage Act, 1955 deals with the admissibility of documentary

evidence in proceedings related to petitions under the Act. This provision states that no

document shall be deemed inadmissible in evidence during the trial of a petition under
the Act solely on the grounds of it not being duly stamped or registered.

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This means that even if a document presented as evidence in a petition under the Hindu

Marriage Act is not properly stamped or registered as required by other laws, it will still

be considered admissible in court. The provision overrides any contrary enactment or

law that may render a document inadmissible due to its lack of proper stamping or
registration.

This provision recognizes that the strict application of stamping and registration

requirements should not hinder the admissibility of relevant documentary evidence in

proceedings under the Hindu Marriage Act. It ensures that the court can consider and

evaluate all relevant documents, regardless of any stamping or registration deficiencies

they may have. This allows for a fair and just determination of the issues involved in
the petition without undue technical obstacles related to stamping or registration

formalities.

[22. Proceedings to be in camera and may not be printed or published. —

Section 22 of the Hindu Marriage Act, 1955 establishes certain rules regarding the
confidentiality and non-publication of proceedings under the Act. The section states the

following:

(1) All proceedings under the Act are to be conducted in camera, meaning they are
held in private and not open to the public. Additionally, it is prohibited for any person to

print or publish any matter related to such proceedings, except for the printing or

publishing of a judgment by the High Court or the Supreme Court with prior permission
from the court.

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(2) If any person violates the provisions mentioned in subsection (1) by printing or

publishing any matter in relation to the proceedings, they can be punished with a fine

of up to one thousand rupees.

This means that all proceedings under the Hindu Marriage Act must be kept confidential
and conducted in a private setting. The intention is to protect the privacy of the parties
involved in the proceedings and maintain the dignity of the individuals and their families.

The section prohibits the printing or publication of any information or details related to
these proceedings unless authorized by the court. Only judgments issued by the High

Court or the Supreme Court can be printed or published, and even in those cases, prior

permission from the court is required.

The section further emphasizes the importance of maintaining the confidentiality and

imposes a penalty in the form of a fine for individuals who violate the restrictions by

printing or publishing information regarding the proceedings without lawful authority.

These provisions aim to safeguard the privacy and reputation of the parties involved in
matrimonial disputes and maintain the integrity of the legal process by preventing

unauthorized disclosure of sensitive information.

23. Decree in proceedings

(1) In any proceeding under this Act, if certain conditions are met, the court shall decree

relief accordingly. The conditions are as follows:

(a) The court must be satisfied that one of the grounds for granting relief exists. The

petitioner (the person seeking relief) should not be taking advantage of their own

wrongdoing or disability to obtain relief, except in specific cases mentioned in the

clause.

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 (b) If the ground of the petition is specified in clause (i) of section 13 (related to

certain acts by the respondent), the petitioner should not have been accessory to,

connived at, or condoned the acts complained of. If the ground is cruelty, the petitioner
should not have condoned the cruelty.

(bb) If a divorce is sought on the ground of mutual consent, the consent should not
have been obtained by force, fraud, or undue influence.

(c) The petition should not be presented or prosecuted in collusion with the

respondent (the other party involved).

(d) There should not have been any unnecessary or improper delay in initiating the
proceeding.

(e) There should be no other legal ground that would prevent granting relief.

(2) Before granting any relief, the court has a duty to make efforts for reconciliation

between the parties, unless the relief is sought on specific grounds mentioned in clauses

(ii), (iii), (iv), (v), (vi), or (vii) of section 13.

(3) The court may adjourn the proceedings for up to fifteen days and refer the matter

to a person chosen by the parties or nominated by the court. This person will assess
whether reconciliation can be achieved and provide a report to the court, which the
court should consider when making a decision.

(4) If a marriage is dissolved by a decree of divorce, the court must provide each party

with a free copy of the decree.

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In summary, this passage outlines the conditions under which the court may grant relief

in divorce proceedings, emphasizes the importance of attempting reconciliation, and

specifies certain procedures to be followed during the process.

24. Maintenance pendente lite and expenses of proceedings.

In any proceeding under the Act (referring to the specific law being discussed), if the
court finds that either the wife or the husband does not have the sufficient independent

income to support themselves and cover the necessary expenses of the legal

proceeding, the court may, upon the application of the wife or the husband, order the

respondent (the other party) to pay the petitioner (the party seeking maintenance) the
expenses of the proceeding. Additionally, the court may order the respondent to pay a

monthly sum during the proceeding, which is determined based on the petitioner's

income and the income of the respondent, and what the court deems reasonable.

Case law example:

In the case of Rani v. Ramesh, [2005] 2 Mh.L.J. 231, the High Court addressed the

issue of maintenance pendente lite. The petitioner, Mrs. Rani, had filed a petition for
divorce and claimed maintenance during the proceedings, as she did not have sufficient

independent income to support herself. The court, upon considering the financial
situation of both parties, ordered the respondent, Mr. Ramesh, to pay a monthly sum

to the petitioner as maintenance pendente lite. The court determined the amount based

on the petitioner's needs and the respondent's income, ensuring that it was reasonable
and fair in the circumstances of the case. The court emphasized that maintenance
pendente lite is meant to support the dependent party during the legal proceedings and

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should be granted based on the specific facts and financial situation of the parties

involved.

Provided that the application for the payment of the expenses of the proceeding and

the monthly sum during the proceeding should be disposed of within sixty days from
the date of notice being served on the wife or the husband, as applicable. This provision
emphasizes the importance of resolving the issue of temporary maintenance and

expenses in a timely manner, ensuring that the dependent party receives the necessary
support during the ongoing legal proceedings.

25. Permanent alimony and maintenance:

(1) Any court with jurisdiction under this Act has the power to order the respondent (the

other party) to pay a gross sum or a monthly/periodical sum for the maintenance and

support of the applicant (either the wife or the husband). This order can be made at

the time of passing a decree or even after the decree has been passed. The order is

granted upon the application made by either party.

The court determines the amount of maintenance and support by considering various
factors, including:

- The respondent's own income and other property, if any.

- The income and other property of the applicant.

- The conduct of the parties involved.

- Other circumstances of the case.

The court aims to ensure a just and fair amount of maintenance and support, taking

into account the financial resources and needs of both parties. If necessary, the court

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can secure the payment of maintenance and support by placing a charge on the

immovable property owned by the respondent.

(2) If the court finds that there has been a change in the circumstances of either party

after it has made an order under subsection (1), it can, at the request of either party,
modify, vary, or rescind the existing order in a manner that the court deems just. This
provision allows for adjustments to be made to the maintenance and support order if

there are significant changes in the parties' circumstances.

(3) If the court determines that the party who received an order under this section has

remarried or, if the party is the wife, has not remained chaste, or, if the party is the
husband, has engaged in sexual intercourse with a woman outside of wedlock, the court

may, at the request of the other party, modify, vary, or rescind the existing order in a

manner that the court deems just. This provision acknowledges that certain

circumstances may impact the entitlement to maintenance and support.

Please note that the specific laws and regulations regarding maintenance and support
can vary across jurisdictions, and the interpretation and application of these provisions

may depend on the governing law of the relevant jurisdiction.

26. Custody of children

In any proceeding under this Act (referring to the specific law), the court has the

authority to pass interim orders and make provisions in the final decree concerning the
custody, maintenance, and education of minor children. The court exercises its

discretion to determine what is just and proper in these matters.

The court takes into consideration the wishes of the minor children, wherever possible
when making decisions related to their custody, maintenance, and education. This

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recognizes the importance of considering the children's preferences, especially when

they are capable of expressing their wishes.

After the decree has been issued, either party can submit an application or petition to

the court for the purpose of making further orders and provisions concerning the
custody, maintenance, and education of the children. The court has the authority to
make these orders as if the proceeding for obtaining the decree was still ongoing. This

ensures that changes or adjustments can be made to the original orders or provisions
based on evolving circumstances or new information.

The court also has the power to revoke, suspend, or modify any previous orders or
provisions related to the custody, maintenance, and education of the children. This

allows for flexibility in addressing changing circumstances or if it is deemed necessary

in the best interests of the children.

Provided that the application regarding the maintenance and education of the minor

children, while the proceeding for obtaining the decree is still ongoing, should be
disposed of within sixty days from the date of notice being served on the respondent.

This provision emphasizes the importance of resolving matters related to the

maintenance and education of the children in a timely manner, ensuring that their needs
are addressed promptly.

27. Disposal of property

In any proceeding under this Act (referring to the specific law), the court has the

authority to include provisions in the decree concerning the disposal of property. The

court exercises its discretion to determine what is just and proper in this regard.

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The provision specifically applies to property that was presented or acquired by either

or both the husband and wife at or around the time of their marriage. This property is

considered to be jointly owned by both parties.

The court has the power to make decisions and arrangements regarding the distribution
or disposition of such jointly owned property in the final decree. This means that the
court can determine how the property will be divided, transferred, or otherwise dealt

with in a manner that the court considers fair and appropriate.

When making provisions for the disposal of jointly owned property, the court takes into

account various factors and circumstances. This may include the nature and value of
the property, the financial situation of the parties, their contributions to the property, and

any other relevant considerations.

The objective is for the court to ensure that the property is fairly allocated or distributed

between the husband and wife, taking into consideration the circumstances of the case

and the principles of justice and fairness.

28. Appeals from decrees and orders.

(1) All decrees made by the court in any proceeding under this Act are generally
appealable as decrees of the court made in the exercise of its original civil jurisdiction.

This means that parties have the right to appeal against the decisions made by the

court in these proceedings, similar to appeals from regular civil court judgments. The
appeal will be filed with the court to which appeals ordinarily lie from the decisions of

the court made in its original civil jurisdiction.

(2) Orders made by the court in any proceeding under this Act under Section 25 or
Section 26 are also generally appealable, provided they are not interim orders. Interim

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orders are temporary orders issued during the course of proceedings. The appeal will

be filed with the court to which appeals ordinarily lie from the decisions of the court

made in its original civil jurisdiction.

(3) There is no provision for appealing solely on the subject of costs. This means that
appeals cannot be filed specifically to challenge the court's decision regarding the costs
awarded in the case. Parties can only appeal on substantive matters other than costs.

(4) Every appeal under this section must be filed within a specified period of ninety

days from the date of the decree or order. This time limit is crucial, and if an appeal is

not filed within this period, it may be time-barred, and the right to appeal may be lost.

28A. Enforcement of decrees and orders

All decrees and orders made by the court in any proceeding under this Act are subject

to enforcement in a manner similar to the enforcement of decrees and orders made by

the court in its original civil jurisdiction. This means that once a decree or order is issued

by the court, it has the force of law, and mechanisms exist to ensure compliance with

it.

The enforcement process for decrees and orders may involve various legal procedures,
such as executing judgments, seizing assets, or implementing other remedies available

under the law. The specific enforcement methods will depend on the relevant laws and

procedures governing the jurisdiction in which the Act is being applied.

The purpose of enforcement is to ensure that the parties involved in the proceeding

comply with the terms and obligations set out in the decrees and orders issued by the

court. By enforcing these decrees and orders, the court aims to secure the rights and

79
interests of the parties involved and provide effective remedies for any violations or

non-compliance.

It's important to note that the passage you provided seems to have a typographical

error, as the sentence ends abruptly. The full and accurate text should clarify the exact
enforcement mechanisms and procedures to be followed, including any specific
provisions or limitations related to the enforcement of decrees and orders.

In any case, the enforcement of decrees and orders is a crucial aspect of the legal

process, as it ensures that the decisions made by the court are effectively implemented

and the rights of the parties are protected.

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 VI. Savings and Repeal

the provisions of Section 29 of the Hindu Marriage Act in more depth:

1. Validity of Marriages:

Section 29(1) states that any marriage solemnized between Hindus before the
commencement of the Hindu Marriage Act shall be considered valid, even if the

parties belonged to the same gotra (subdivision) or pravara (lineage) or if they

belonged to different religions, castes, or sub-divisions of the same caste. This

provision ensures that such marriages are not deemed invalid solely based on these
factors.

2. Rights Recognized by Custom or Special Enactment:

Section 29(2) clarifies that the Act does not affect any rights recognized by custom or

provided by any special enactment for obtaining the dissolution of a Hindu marriage.

This provision acknowledges that there may be customary practices or specific laws in

certain regions or communities that allow for the dissolution of marriages. These rights

can continue to be exercised irrespective of the provisions of the Hindu Marriage Act.

3. Continuation of Pending Proceedings:

Section 29(3) ensures that any ongoing proceedings under existing laws at the time

of the commencement of the Hindu Marriage Act for declaring a marriage null and
void, or annulling, dissolving, or obtaining judicial separation, can be continued and

determined as if the Act had not been passed. This provision prevents the disruption
of ongoing legal proceedings and allows them to proceed under the existing laws.

4. Interaction with the Special Marriage Act:

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Section 29(4) specifies that the Hindu Marriage Act does not affect the provisions of

the Special Marriage Act, 1954, concerning marriages between Hindus solemnized

under that Act. Regardless of whether such marriages occurred before or after the
commencement of the Hindu Marriage Act, the provisions of the Special Marriage Act
remain applicable. This provision ensures that the specific rules and regulations

governing marriages under the Special Marriage Act are not overridden by the Hindu
Marriage Act.

Overall, Section 29 of the Hindu Marriage Act safeguards the validity of marriages

solemnized before the Act's commencement, recognizes rights provided by custom or

special enactments, allows for the continuation of pending proceedings, and preserves
the provisions of the Special Marriage Act for marriages between Hindus solemnized

under that Act.

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 Landmark Judgements

1. Dastane Vs Dastane AIR SC 1975 1534

is a landmark judgment by the Supreme Court of India that dealt with the concept of
irretrievable breakdown of marriage. Here is a chronological summary of the case:

1. Background: In 1955, the Hindu Marriage Act was enacted, which provided certain

grounds for divorce. However, the Act did not include irretrievable breakdown as a

specific ground for divorce.

2. The Case: In 1971, the case of Dastane vs. Dastane was brought before the Supreme
Court of India. The husband, in this case, filed a petition for divorce under Section

13(1)(ia) of the Hindu Marriage Act, which allows divorce on the ground of cruelty.

3. Irretrievable Breakdown Argument: During the proceedings, the wife argued that

the marriage had irretrievably broken down and there was no possibility of reconciliation.

She contended that the court should dissolve the marriage based on the theory of

irretrievable breakdown, even if none of the specified grounds for divorce under the

Hindu Marriage Act were present.

4. Supreme Court Judgment: In 1975, the Supreme Court delivered its judgment in
the Dastane vs. Dastane case. The court acknowledged that the concept of irretrievable
breakdown of marriage is not explicitly recognized as a ground for divorce under the

Hindu Marriage Act. However, the court held that it has the inherent power to dissolve
a marriage on the grounds of irretrievable breakdown, even though it is not mentioned

in the statute.

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5. Judicial Discretion: The Supreme Court emphasized that irretrievable breakdown

should be considered only in exceptional cases where there is no chance of the spouses

reconciling and continuing the marriage. The court stated that the power to dissolve the
marriage on the ground of irretrievable breakdown should be exercised with utmost care
and caution.

6. Legislative Intervention: The Supreme Court also noted that it is primarily the role

of the legislature to introduce irretrievable breakdown as a ground for divorce in the

Hindu Marriage Act. The court urged the legislature to consider amending the law to

include irretrievable breakdown as a separate ground for divorce.

2. K. Srinivas Rao vs D.A. Deepa – 2013 DGLS (SC) 156

In the case of K. Srinivas Rao vs. D.A. Deepa (2013 DGLS (SC) 156), the court

acknowledged that irretrievable breakdown of marriage is not recognized as a

standalone ground for divorce under the Hindu Marriage Act, 1955. However, the court

has consistently regarded irretrievable breakdown of marriage as a significant factor,

alongside other circumstances, when considering the dissolution of marriage due to the

irreparable bitterness caused by the actions of either or both parties.

The court recognized that if a marriage has reached a point where it is beyond repair

and there is no possibility of reconciliation due to the bitterness and animosity created
by the acts of the husband, wife, or both, irretrievable breakdown of the marriage

becomes a substantial consideration. It emphasized that a court's verdict cannot revive

a marriage that is essentially dead if the parties involved are unwilling to reconcile. This
is because marriage involves deeply personal sentiments and emotions, and if those

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sentiments have dried up, the court's decree cannot artificially bring them back to life

through forced reunion.

3. Samar Ghosh vs Jaya Ghosh – 2007 (6) Bom. C.R. 834- Supreme Court of India

Sub: Principal for determining cruelty in matrimonial matters

Issue:
What are the instances of human behavior relevant in dealing with cases of mental

cruelty?

Decision:

1. Acute mental pain, agony, and suffering that make it impossible for the parties to

live together may be considered as mental cruelty.

2. When a comprehensive assessment of the entire matrimonial life reveals a situation

where the wronged party cannot reasonably be expected to continue living with the

other party, it amounts to mental cruelty.

3. Mere coldness or lack of affection is not sufficient to constitute cruelty, but frequent

rudeness, petulance, indifference, and neglect that make married life intolerable can be

classified as mental cruelty.

4. Mental cruelty is a state of mind caused by deep anguish, disappointment, and

frustration in one spouse due to the conduct of the other spouse over a prolonged

period.

5. Sustained abusive and humiliating treatment that torments or makes the spouse's
life miserable is a form of mental cruelty.

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6. Unjustifiable conduct and behaviour that adversely affect the physical and mental

health of the other spouse can amount to mental cruelty, provided it is grave and

substantial.

7. Sustained reprehensible conduct, deliberate neglect, indifference, or departure from

the normal standard of conjugal kindness resulting in injury to mental health or deriving
sadistic pleasure can be considered as mental cruelty.

8. Jealousy, selfishness, possessiveness, and normal marital conflicts that cause

unhappiness and emotional upset are not grounds for divorce based on mental cruelty.

9. Trivial irritations, quarrels, and normal wear and tear of married life are insufficient
to establish mental cruelty.

10. The overall assessment of the married life should be considered, and isolated

instances over a period of years are not enough to establish cruelty. The ill-conduct

must persist for a significant duration, leading to extreme difficulties in continuing the

relationship.

11. Unilateral decisions by either spouse to undergo sterilization, vasectomy, abortion,

or refusal to have children without valid reasons or the consent or knowledge of the
other spouse may amount to mental cruelty.

12. In cases of long periods of continuous separation where the matrimonial bond is

beyond repair, refusing to dissolve the marriage may be considered as mental cruelty.
This approach disregards the parties' feelings and emotions and does not uphold the

sanctity of marriage.

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4. S.R. Batra & another vs. Taruna Batra (2006 DGLS(SC) 1183)

In the case of S.R. Batra & another vs. Taruna Batra (2006 DGLS(SC) 1183), the
issue at hand was whether a daughter-in-law has the right to claim a share in the self-

acquired property of her parents-in-law under the Domestic Violence Act, 2005.

The decision rendered was as follows:

1. Matrimonial Law: A daughter-in-law does not possess the right to claim a share in

the self-acquired property of her parents-in-law. She can only assert her claim over the

property that belongs to her husband. Therefore, the appeal was allowed.

2. Protection of Women from Domestic Violence Act, 2005: Sections 2(s) and 17(1)

define the term "shared household." As per the provisions, a woman (wife) is entitled
to claim the right of residence in a shared household, which refers to the house either

owned by the husband, rented by the husband, or the house that belongs to the joint

family of which the husband is a member. In the present case, the property in question

does not belong to the husband, nor was it taken on rent by him, nor is it a joint family

property of which the husband is a member. Instead, it is the exclusive property of

appellant No. 2, the mother of Amit Batra. Consequently, it cannot be categorized as a

"shared household" under the Domestic Violence Act. The appeal was allowed

accordingly.

Furthermore, the learned counsel for the respondent, Smt. Taruna Batra, argued that
the definition of a shared household includes a place where the aggrieved person has

lived or previously lived in a domestic relationship. The submission suggested that since
the respondent had lived in the property in question in the past, it should be considered

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her shared household. However, the court did not agree with this interpretation.

Accepting such an interpretation would mean that any place where the husband and

wife have lived together in the past would become a shared household. This would
include numerous residences such as those belonging to the husband's relatives, such
as his father, paternal grandparents, maternal parents, uncles, aunts, siblings, nephews,

nieces, and so on. Embracing this view would result in chaos and absurdity.

Additionally, regarding the claim for alternative accommodation under Section 19(1)(f)
of the Domestic Violence Act, the court clarified that such a claim can only be made

against the husband and not against his parents or other relatives.

5. Y.Narasimha Versus Y.Venkatalakshmi 1991 DGLS(SC) 289

In the case of Y. Narasimha Versus Y. Venkata Lakshmi (1991 DGLS(SC) 289), the

issue raised was whether a decree of dissolution of marriage granted by an American

court is binding on the parties who were married according to Hindu law in India.

The decision rendered was as follows:

1. Evidence Act, 1872: Section 41 and 42 stipulate that a judgment delivered by a

competent court in the exercise of matrimonial jurisdiction is conclusive proof of the

legal character it confers or takes away, provided it was not vitiated by fraud or collusion.

The judgment must be issued by a court that has jurisdiction over the parties and the

subject matter. Even a judgment in rem (against the world at large) can be challenged
if it was delivered by a court lacking jurisdiction or obtained through fraud or collusion.

Section 44 of the Evidence Act allows any party to a suit or proceeding to challenge

the relevance of a judgment under Section 41 if it was delivered by an incompetent

88
court or obtained through fraud or collusion. Therefore, it is incorrect to assume that

judgments in rem are inviolable. Fraud that pertains to jurisdictional facts invalidates all

judicial acts, whether in rem or in personam (against a specific person).

2. Code of Civil Procedure, 1908: Section 13 governs the validity of foreign judgments
in civil proceedings. Under this provision, the validity of a foreign judgment must be
determined in India. If a judgment falls within any of the clauses of Section 13, it ceases

to be conclusive regarding the matters it adjudicates and can be subjected to collateral

attack based on the grounds specified in Section 13. In the present case, a decree of

divorce obtained by the husband from the Nevada State Court in the United States in

the absence of the wife, without her submitting to its jurisdiction, is not valid and binding
on a criminal court in proceedings for maintenance under Section 488 of the Code of

Criminal Procedure (old version). The court found evidence on record indicating that
the decree of divorce was obtained through fraud. Since the jurisdictional fact is open

to collateral attack, the statement in the Nevada Court judgment claiming that the

respondent was a bona fide resident and domiciled in Nevada is not conclusive.

6. Sondur Gopal and Another Versus Sondur Rajini and Others 2013 DGLS(SC) 550

In the case of Sondur Gopal and Another Versus Sondur Rajini and Others (2013
DGLS(SC) 550), the issue was regarding the determination of domicile in matrimonial

matters.

The decision rendered in the case was as follows:

The couple in question got married in India but subsequently obtained domicile and
citizenship in Sweden. The wife filed a matrimonial petition in the Family Court in

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Bandra, Mumbai, where she was residing at the time. The petition was admitted by the

Matrimonial Court but later dismissed for lack of jurisdiction on appeal. The High Court

upheld the dismissal, leading to the current appeal. The appellants argued that they are
domiciled in Sweden and have obtained Swedish citizenship. They also claimed that
the wife came to India on a tourist visa. They contended that the jurisdiction of the court

is barred under Section 1(2) of the Hindu Marriage Act, 1955. However, they
acknowledged that their marriage was registered in India and that the husband has no

intention of giving up his domicile of choice in Australia, where they currently reside.

On the other hand, the wife argued that her domicile of origin is India, which she never

gave up or abandoned, despite obtaining Swedish citizenship. She claimed that their
domicile of choice was abandoned when they shifted to Australia. She asserted that

both of them are domiciled in India and that the Family Court in Mumbai has jurisdiction.

The court held that the right to change one's domicile of birth is available to any person

who is not legally dependent. It can be done by residing in the country of choice with

the intention to continue residing there. In this case, the husband's residential tenancy
agreement in Australia was only for 18 months, which cannot be considered a long
enough period to establish a new domicile. It was also noted that the couple had not

acquired Australian citizenship. There was no indication that the husband had
abandoned his domicile of India. The wife's domicile would follow that of the husband,

which is only of academic interest. Therefore, both parties were found to be domiciled

in India, and the Hindu Marriage Act would apply to them. The appeal was deemed to

have no merit.

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7. Arvnima Naveen Takiar Vs Naveen Takiar 2019 (3) Mh.L.J. pg. 885
In the case of Arunima Naveen Takiar Vs Naveen Takiar (2019) (3) Mh.L.J. pg. 885,
the issue was whether an anti-suit injunction could be issued under the Hindu Marriage
Act involving a foreign party.

The court held that the mere fact that the defendant-husband had a domicile in the UK
would not divest the jurisdiction of the court provided under section 19 of the Hindu
Marriage Act for the purpose of filing proceedings. The court emphasized that since the
parties were married in Mumbai under the provisions of the Hindu Marriage Act, of
1955, that law governed their marriage. Therefore, the provisions of the Hindu Marriage
Act applied to the case, and the court had jurisdiction to issue an anti-suit injunction.

If you find any errors and mistakes write a mail to @rkjudicialacademy@gmail.com

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