THE HINDU MARRIAGE ACT 1955

or c e r e m o n i e s
Q. Explain the nature, concept and object of a Hindu marriage. Discuss the importance
of Hindu marriage.

place in their social life.

Marriage Is one of the oldest institutions of Hindus. It occupies a very important

the father
It is regarded as one of most important ten Sanskaras (sacraments) for them. In marriage
becomes her
entrusts his daughter into the hands of a noble and physically sound groom who thereby
husband. This mode of marriage is well-settled since Vedic period and has assumed religious
to Raghunandan, a Hindu marriage implies the acceptance of the
bride as wife by
significance. According
the groom through a ceremonial process which is technically known as kanyadan.

of caste and
It is the only Sanskara (sacrament) which has not been prohibited for any one irrespective
sex and has been provided as compulsory for all males and females. Through the institution of marriage
birth to male
men and women are united into a wedlock, the purpose of which is generally to give a

child.

Pitri Rin, Dev Rin

Every twice born religious obligation to discharge'three debts namely,
Hindu is under a
and in the discharge of Pitri
and Rishi Rin i.e., debt to father, debt to gods and debt toseers and sages
his legally wedded wife, who
Rin, he must of necessity have his own son, Dharmaj Putrabegotten upon
to the ancestors on their death for
is supposed to perform funeral rites and to give sacredoblations
their salvation.

to the male child, who plays a key role for the

Hindu law has thus assigned a very importantstatus
of the hell. A Hindu son is thus a saviour
salvation of his parents and his deliverance from sufferings
that only his son salvates men from
from Hell (Punttam Narkaat Trayntey,iti-Putrah) meaning thereby
becomes necessary to beget a son.
the tortures of Hell. The sacramentofmnarriage, therefore,

performed by
rites are to be Hindu
because all the religious ceremonies and
a
Marriage is essential also It is that marriage
otherwise they will not bear any fruits. noteworthy
in the companionship offiis wifé
as means of satisfying the corporal lust nor does it have the
under Hindu law is not regarded primarily
connotation of contractual obligations.
On the contrary it is simply a religious sacrament and an

obligatory duty wwww

Courts the importance of the institution of marriage becomes
According. to Bombay and Madras High the ten sacraments essential for purifying the body
distinct-by thiefact that religion regards it as one of
institution intended to fulfil religious duties and to
fromitits jereditary taints. Marriage is a religious
achieve the higher ends of life, namely, Dharma, Artha, Kama and Moksha.

It is binding upon every Hindu to marry unless he has taken the vow to lead the life of a perpetual
celebacy and abstinence. Women have been created to become mothers later and similarly men to
become fathers.
he enjoin that a should carry out the religious obligations together with his wife. Only
vedas
is
man
that
man perfect who has a wife and children. Only that man could fulfil his obligations who is blessed with
wite. Only the persons who have wives could lead a family life, those who have wives can alone remain
happy and gay and they alone could lead a perfect life.

Wives have been considered to be the better halves and religious partners of their husbands whicn
means that half part of a man is his wife and that without being married; the personality of a man is
incomplets. Perfection comes only after marriage. In Ramayan, wife has been considered to be thesou
of her husband and in Mahabharat she is stated to be the half part of her husband, and his best friend.
She is regarded as an inspiration to religion, wealth and ambitions.

She is source of salvation, and considered to be Dharmapatni, i.e., lifelong companion to carry out tne
religious injunctions of Vedas and Dharmashastras and to perform religious rites arid ceremonies as
enjoined in
the sacred books. The performance of the religious ceremonies.alóng with the wife is
necessary otherwise they will not bear any fruits.

By marriage an inseparable relationship is created between the husband and wife. The relationship
cannot be broken by any means whatsoever even when the wife'starts living a very wretched life.

According to Manu, the daughter is given in marriage only onceand she remains the wife of that person
to whom she is given in marriage, for her whole life.

. stated five
The two seers known as jurists of later period-namely Narada and Parasar have
eminent
conditions in which a wife could abandon her husband.änd. remarry. These conditions are as under: (1)
where the husband is lost or (2) dead, or (3) hasrenounced the world and has become a sanyasi, or (4)
has become impotent, or (5) has been ousted from his caste. But these conditions of remarriage were
provided only for the marriages of unapproved forms.

The Dharmashastra-writers generally do not agree with the view that a wife could abandon her husband
under any circumstances. The indissóluble tie, created between the spouses, could not be broken in any
case May it be an approved form orunapproved form of marriage. This signifies an unique character of
Hindu marriage.

According to Manuathe remarriage of a woman could not be even imagined. After the death of her
husband, she hastolçad her whole life simply on vegetation and in abstinence emaciating herself to
minimal. She issupposed not to take the name of any person other than her deceased husband. Thus
leading a lieocefebacy and chastity and maintaining abstinence throughout, she earns a right to have
a seat inthefeaven.

AHindumarriage has been said to be a sacrament also because the marital relations between the
spouses are created not on account of any contract between the two but by virtue of a gift of the girl by
her father to the bridegroom. The gift is holy and accompanied with the religious ceremony of Saptapadi
or any other customary religious rites. In absence of such religious ceremonies and rites marriage is said
to have not taken place at all in the eyes of
law.

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 last long till their life.
to be sacramental union between the
husband and the wife to
Sidered a
contract as it lackS every
essential
are thus rightly acclaimed as sacrament rather than
arriages marriage the parents or the
CVdd contract, e.g. proposal, acceptance and consideration. In theman after respectfully inviting
of the girl gives her away by way of gift to a noble and virtuous
8udrdian
him and
accomplishing the religious rites and ceremonies.
her with utmost love and respect
nerearter the bridegroom accepts her as his wife and vows to keep contract between
any place for a
s t oreath of her life. Under these conditions there is hardly
bride and bridegroom at the time of
marriage.

Ceremonies of a Hindu Marriage

Section 7 of the Hindu Marriage Act 1955 recognizes the ceremonies and, customs of marriage.
A Hindu marriage may be solemnized in accordance with the customary anid rites ceremonies of either
party to the marriage .The parties to the marriage fulfill the conditions prescribed as follows:

(1) A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of
either party thereto.

(2) Where such rites and ceremonies include the saptpadi(thaB is, the taking of seven steps by the
bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and bindingE
when the seventh step is taken.

Ceremonies vary according to custom. The presentation of a pair of cloth by the bridegroom to the bridee
a sacred thread
(pudava koda) is an important customary rite among the Nair caste in Kerala. Tying of
around the neck of the bride (Mangalya Sutra or Tali ) is another rite. Exchange of rings or garlands also
is common. A marriage will be valid anlyif the ceremony through which it is solemnized is sanctioned by
the religion of either party as custoimarýteremony

What the essential

are
conditions of valid Hindu marriage?
conditions are necessary for a valid Hindu Marriage. Those
Under the Hindu Marriage Act, 1955 certain
conditions have beendajd down in Sec 5 and 7of
the Act. Section reads as follows.

will be valid only if both the parties to

By sectíon 5.ôf the Hindu Marriage Act 1955, a marriage
virtue of
the parties to the marriage is a Christian or Muslim, the marriage will
the marriageare Hindus. If one of
not be a valid Hindu marriage

may be solemnized
between any two Hindus, if the following conditions are fulfilled.
"A marriage
nafnely
1. Neither party has a spouse living at the time of the marriage;

2. At the time of marriage, neither party:

of unsoundness of mind;
incapable of giving a valid consentto itinconsequence
or
a) is

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 0) Though capable of giving a valid consent, has been sufering from mental disorder of such a kind or

such an extent as to be unfit for marriage and the procreation of children; or

c) Has been subject to recurrent attacks of insanity or epilepsy

3. Ihe bridegroom has completed the age of 21 years and the bride the age of 18 years at the time o

marriage;
custom or uog
4 parties are not within the degrees of prohibited relationship, unless the
The
governing each of them permits of a marriage between the two

othen unless the custom

S. The parties are not sapindas (one is a lineal ascendant of the other) of each
or usage governing each of them permits of a marriage between the two.

This section lays down five conditions for a valid marriage. They are:

should be monogamous.
1Monogamy(Sec Clause (1)): This provision Prohibits bigamy .Themarriage or divorced or a widow
Under the Hindu Lawa person can validly marry if he or she is either unmarried
or a widower. If at the time of the performance of the marriage rites and ceremonies either party has a
A
set aside, the later marriage is void.
Spouse living or the earlier already been
marriage had not
bigamous marriage is null and void and is made punishable

suffer from unsoundness

(2)): The parties tothè marriage should
not
Clause
2.Mental Capacity (Sec 5 sec 5 clause (2) the party
is regarded as not
of mind, mental disorder or insanity.In all the casesgiven in is suffer
So if a party who solemnize the marriage
having the mental capacity to solemnize th mafriage. of the
the marriage is voidable at the opinion
from unsoundness of mind, mental disorderor insanity,
other party.

Act 1955 has been amended by the Marriage

It is to be noted that Sec 5{2) J)ofthe Hindu Marriageomitted. The result is that at present even if a
is
Laws (Amendment) Act 1999 and the word 'epilepsy' is valid and the other party
recurrent attacks of epilepsy, the marriage
party to the marriage is subjectfo
cannot seek for nullityofmarriage.

Clause of marriage the bridegroom has completed the age

(3)): At the time
3Age to the parties {Sec 5 in contravention of this
the age of 18 years .f a marriage is solemnized
of 21 years and the bride
nor voidable.
condition is.iejther void
who procures a marriage in violation of the condition is
Punishrgept- By Section 18 of the Act ,anyone which may extent up to 15 days or with fine which mav
imprisonment
liapletobe punished with simpleboth.
extend upto Rs. 1000/-or with

4 Degrees of Prohibited relationship (Sec 5

dause
(4): The parties to the marriage should not come
Two persons said to be within the degrees of
degrees of prohibited relationship.
are
within the
prohibited relationship

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 i) if one is a lineal ascendant of the other; or

o n e was
the wife or husband of lineal ascendant or descendant of the otner, o
ii) if one was the wife of the brother or of the father's or mother's brother or of the grandtatners or

grandmothers brother of the other; or

brother and sister
the two are brother and
sister, uncle and niece, aunt and nephew, or children of
or of two brothers or of two sisters.

A marriage between two persons who come within the degrees of prohibited relationship shall be vola.

if there is a valid custom or can marry even

owever, usage governing both the parties allows
though they come within the degrees of prohibited relationship. All over lIndia, there are such custom
they
which validate marriage between persons who come within the degrees of prohibited relationship.

For instance, marriage between the children of brother and sister is common among the
marumakathayam of Kerala. In some parts of Tamil Nadu, Marriage between a person and his eldest
sister's daughter is common. Here the parties though comê within the degrees of prohibited
relationsip; they can validly marry by virtue of custom or usage Itis éssential that the custom or usage
should be certain, reasonable and not opposed to public
polic
Punishment :-According to Sec.18(b)A marriage solemnized between the parties within the degrees of
prohibited relationship is null and void and the partiès.bf such marriage are liable to be punished with
simple imprisonment for a period of one month of fine'or Rs. 10000/- or with both.

5. Sapinda Relationship (Sec 5 Clause ($}} Theparties to the marriage should not be related to each
other as Sapindas. A marriage betweensapindas is void.
Under Section 3( Sapinda relatiohship" with reference to any person extends as far as the third
generation (inclusive) intheioe ofascent through the mother, and the fifth (inclusive) in the line of
ascent through the fatherg the Jine being traced upwards in each case from the person concerned, who
is to be counted as the first generation.

(UTwo persons aresaid to be "sapindas" of each other if one is a lineal ascendant of the other within
the limits of "sspinda relationship, or if they have a common lineal ascendant that is within the limits of
"sapinda" relatíonship with reference to each of
them.

No mariage is valid if it is made between parties who are related to each other as 'sapindas' unless such
marriage is sanctioned by usage or custom governing both parties. The custom which permits of a
marriage between people who are sapindas of each other must fulfil the requirements of a valid
custom. The custom must be certain, reasonable and should not be opposed to public policy.

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 What is the difference between void and voidable marriage?

Void Voidable

Defined by section 11 Defined by section 12

Grounds- Grounds:
(not same as incapacity to
. Performed in 1. Unabletoconsummate-Impotence
conceive or impregnate)
contravention of 5(i),
Full and complete penetration (vera copula) is an
S(iv), or S() Samarvs Snigdho- intercourse though degree of
essential ingredient of ordinary
satisfaction is immaterial.
male organ amounts to physical
Kanthy vs Harry- Unduly large
7 abnormality and thus impotence. artificial
2Ceremonies in section Absence of vagina, even though
an

not performed. Laxmi vsBabulal-

vagina was created, was held impöteDce.
and nights
Jagdeesh vs Seela
- Husband livedwith wife for 3 days Held thatit
not consummate.
immediately after marriagebutcoüld
nervousness, or hysteria. Thus,
was
was because of incapacity
3In contravention of impotent.
section 15 -
Divorce not Wife was sterile and suffering from non-

Shewanti vs. Bharua,1971

-

normal sexual intercourse.

Held
granted yet or time to menses, thougkrshewas capable of
appeal has not elapsed. bear children is not impotence.
not impotentibecaüse capacity to
intercourse.
Impotenceönlyfefers to sexual

unsound. AlkavsAbhilash,
Incontravention of 5(i) Mentally
-

Bolokrishnavslalitha

force fraud.
3.Consent obtained by
or

Force Rice vs Rice

-
threatened with pistol.
Did not tell that she had a child
Fraud- Rama vs Mohinder
1996

with cesarean.
Husband's pre-marriage boasting
Fraud-Purbivs Basudev 1969-
VIL

NAWIONYAO
about high prospects in
life is not fraud.
Kumar 1986- Wife concealed her age. She
Fraud-SomDutt vs Raj
was 7 yrs elder.

Girl was pregnant by some other person

to pre-marriage
Mahendra vs Sushila, 1965 -Girl's admission
pregnancy when
husband had
no access to her.

Marriage is fully valid until it is declared void by the court.

Marriage does not exist at all,

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 Noconsequences of marriage
rght in
property, conjugal rights, Full consequences while marriage
maintenance.
lasts
be avoided only on the petition of
Court decree is necessary. Marriage can

No decree of court is one spouse.

necessary.
Decree can be obtained by either
If
person. If one person does not petition for annulment, marriage will remain valid.
one person dies, the
marriage will remain valid for ever.
If someone calls the wife a
concubine, it will not amount to Decree is given retroactively.
defamation.

Provisions regarding restitution of conjugal rights in Hindu marriage.

Section 9 of the Hindu Mariage Act, 1955 provides for the festitution of the conjugal rights. The
fundamental rule of matrimonial law is that the spouses must live together. Each spouse is entitled to
comfort (consortium) of the other.

When one of the spouses leaves the other without.ányreàsonable excuse, the latter can approach the
court by fling a petition praying for a decree of gestitutión of conjugal rights. The court after hearing the
petition of the aggrieved spouse, on being satisied that there is no legal ground why the application
shall be refused and on being satisfied of the truth of the statements made in the petition may grant a
decree for restitution of conjugal rights. The person who has deserted the spouse can defend the
petition if there is sufficient cause on
his'or her side.

Three essential conditions for Sectioh9 of HMA

Firstly, one party must have withdrawn from the society of the other; secondly, the withdrawal must be
without any reasonabe reason, and thirdly, the aggrieved party applies for the restitution of conjugal
rights. Once these.conditiòns are fulfilled, the district court may decree of restitution of conjugal rights
to bring about pohabitation between the estranged parties.

If the aggrieved party is unable to convince the district court and it founds that the petitioner is guilty
then the decree of restitution of conjugai rights is not granted. An added advantage from this is that if
the parties are not following the decree for cohabitation after the passing of the decree, continuously
foroné year, it becomes a ground for divorce under Section 13.

Fesonable grounds on which petltlon for Restitution of Conjugal Rights can be rejected

First, if the respondent has a ground on which he or she can claim any matrimonial relief;

Second, if the petitioner is guilty of any matrimonial misconduct;

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 , t the petitioner is guilty of such act, omission or conduct which makes it impossible for tne
to live with him; for instance, husband's
ndent
dowry, etc. are some reasonable
neglect of his wife or the constant demand for
gro nd for wife not to join the company of her husband.

Burden of proof under Section 9 of the HMA

Burden of proof operates at two levels. Firstly, burden of proof is on the aggrieved/petitioner who needs
to prove that the respondent has withdrawn from his society. Once that burden is discharged by the
petitioner, it falls on the respondent to prove that there exists a reasonable excuse for the withdrawal.

What are the additional grounds of divorce available to wife only? erp

petition for the

the grounds of divorce mention in section 13, a wife may.also present
a
2In addition to
dissolution of her marriage on the following grounds. (Section 13 (1A)

and the husband

Where the marriage was solemnized before the commefhcement of this Act,
wife of the husband whom he
had married again before such commencement or that any other
time of the marriage. (In such a case
had married before such commencement was alive at thè
it's necessary that the other wife is alive at the time of.presentation of the petition).
That the husband has after the marriage beenBlty of rape, sodomy or bestiality.
& Maintenance Act 1956 or
Wife was awarded maintenance under section 15 of Hindu Adoption
occurred for 1 year after the award.
under section 125 of CrPC and no cohabittion has
solemnized before she attained the age of
That her marriage whether consummatedor not was
after attaining that age but before attaining the
15 years and she has repudiated the marriage
age of 18 years.
F LEAR ANIV
Hindu Marriage Act, 1955?
What are the Grounds ofdivorce under
1955. (Section 13)
Grounds for Diorce under the Hindu Marriage Act, es

of relationship
sexual including intercourse outside
Adultery The/act of indulging in any kind
counted as a criminal offence and substantial proofs are
marriageIs termed as adultery. Adultery is
to the law in 1976 states that one single act of adultery
is
regüiredtó establish it. An amendment
enough for the petitioner to get a divorce.
file a when he/she is subjected to any kind of mental and
divorce case
Cruelty A spouse can
acts of cruelty through
physical injury that causes danger to life, limb and health. The intangible
torture are not Judged upon one single act but series of
incidents. Certain instances like the
mental
food being denied, continuous ill treatment and abuses to acquire dowry, perverse sexual act etc

are included under cruelty.

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 period or two
at least a
spouses voluntarily abandons
his/her partner for
" One of the
years, the abandoned spouse can file a divorce case on the ground of desertO

tne
SOn- Incase either of the two converts himself/herself into another religion, otne
spouse may file a divorce case based on this
ground.
EL Dsorder Mental disorder can become a ground for filing a divorce if the spouse or tne
petitioner suffers from incurable mental disorder and insanity and therefore cannot be expected
from the couple to stay together.

Leprosy I n case of a 'virulent and incurable' form of leprosy, a petition can be filed by the other
spouse based on this ground.
venereal Disease - If one of the spouses is suffering from a serious disease that is easily
communicable, divorce can be filed by the other spouse. The sexually transmitted diseases like
a
AIDS are accounted to be venereal
diseases.

Renunciation-A spouse is entitled to file for a divorce if theotherrenounces all worldly affairs by
embracing a religious order.

NotHeard Alive.- If a person is not seen or heard afiveby those who are expected to be 'naturally
heard' of the person for a continuous period of spvenyèars, the person is presumed to be dead. The
other spouse should need to file a divorce if helshe.is interested in remarriage.

No Resumption of Co-habitation- It becomes a ground for divorce if the couple fails to resume
their co-habitation after the court has passed a decree of separation.

Q.Write a note on legitimacy ofchildren of void and voidable marriage.

Section 16 of the,HinduMarriage Act 1955 provides that "( 1) Notwithstanding that a marriage is
null and void undet Section Il any child of such marriage who would have been legitimate if the
marriage had been valid shall be legitimate, whether such child is born before or after the
commencementrof Marriage Law (Amendment) Act 1976 & whether or not decree of nullity is
grantedinTespect of that marriage under this Act and whether or not marriage is held to be void
on petition under this Act.
othevisethan
( 2 Where a decree of nullity is granted in respect of voidable marriage under Section 12, any child
begotten or conceived before the decree is made who would have been legitimate child if the
parties to the marriage if at the date of decree it had been dissolved instead of being annulled, shall
be deemed to be their legitimate. Child notwithstanding the decree of nullity.

(3) Nothing contained in Sub Section (1) & (2) shall be construed as conferring upon any child ofa
marriage which is null and void or which is annulled by a decree of nullity under Section 12 any right

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 in or to thc propcrty of any pcrson other than parcnts, in any case where but for passing of this Act.
such child would have been incapable of possessing or requiring any such rights by reason of his not

legitimate child of his parents.

Hindu Marriage Act is to confer the status of legitimacy of children

So the object of Section 16 of the
Section 16 by legal fiction lays down that even if a child born of
born in void and voidable marriages.
voidable marriage is conferred
with the status of legitimacy but it is debarred from inheriting
void or
other than it's parents.
to property of any person

observed that marriage of

Bihar AIR 2000 SC 735 Supreme Court has
In Rameshwari Devi v. State of
contravention of clause (i) of Section 5 of Hindu Marriage Act
was void
may, because of in
parties legitimate for the
of void marriage are
of the said Act children
marriage but under Section 16
purpose of succession to property of father

a. Divorce by Mutual Consent.

in the Hindu Marriage Act runs:by
1955 an

The ground of divorce by mutual consent was inserted 1955

amendment in 1976, by adding Section 13B. Section 138 ofthe Hindu Marriage Act,
decree of divorce
Subject to the provisions of this Act petitionfor
a dissolution of marriage by a
to a marriage together, whether
such
to the district court by both the parties
may be presented Laws (Amendment)
marriage was solemnized before or after the comimencement of the Marriage
separately for a period of one year or more, that
Act, 1976, on the ground that they have beehjiving
that they have mutually agreed that the marriage
they have not been able to live together and
should be dissolved.

made not earlier than six months after the

date of the
On the motion of both, the parties months after
in sub section (1) and not later than eighteen
presentation of the petiionreferred to
withdrawn in the meantime, the court shall, on being satisfied,
the said date, if the petition is not
such inquiry as it thinks fit, that a marriage has been
after hearing the partiès and after making
are true, pass a decree of divorce declaring the
solemnized and that the averments in the petition
with effect from the date of the decree.
marriage to be discolved
1954 which also deals with divorce on grounds of mutual
Section 28 of the Special Marriage Act,
to the above section.
consent i pari materia
have to be met to seek divorce under Hindu Marriage Act are as follows:
The requirements which

The parties have been living separately for a period of at least one year
livetogether, and
They have not been able to
They have mutually agreed that marriage should be resolved

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Q. Write short note on
adultery.
etc. and
Adultery has many different infidelity, disloyalty, unchastity
synonyms such as unfaithfulness, word under
Vme definition of this
women points toward the same legal
law as
as having
having the vo ec
voluntary t to intercourse
sexual betweena married person that is a temi e
same woro
However, the
and that too without the consent of husband.
poUse
has been defined with different meanings in diferent countries and hence the lega oe
of
nads
statute such as in many
countries aduitery
O country to country and statute to m
husbana
"E Ony as having voluntary sexual intercourse with a man other than the out
o u n t r i e s in addition to this definition the sentence "without the husband's consent" is also

used. In India, the offence of adultery

as defined under section 497 of IPC prescribes
men only and not for women even when they act as abettors. Hence, 42nd report of law commission or
punishmento
nol3, 2013 made under Malimath committee recommended to amend section 497 of PC to moNE

women also punishable for adultery.

What constitutes adultery

The following are the elements under section 497 of IPC which constitutes adultery
Firstly having sexual intercourse with a person.
Secondly, the person committing such an offente must know or must have reason to believe
that the female lady is the wife of another
persod
Thirdly, the person commits sexual intercoursewithout the consent of the husband of such a
lady.
Fourthly, such a sexual intercourse mustmot amount to the offence of rape that is the lady with
whom the sexual intercourse is beingcommitted must be above the age of 16 with whose wilful
consent the act was done.

If these conditions are satisfied then oply the person will be guilty of committing the offence of adultery.

Divorce through Adultery

Grounds for divorceonthebasis of adultery is mentioned under section 13(1)la) of Hindu Marriage Act,
1955 which states thatahy marriage before or after the commencement of this act shall be dissolved by
a decree of divorcé pn the ground that the other party had voluntary sexual intercourse with any person
other than R oher spouse after the marriage. The following are the cases on the basis of which
adultery as àgròund of divorce can be analysed:
Earnest ohn White vs. Mrs. Kathleen Olive White and Others (AIR 1958 SC 441): -In this case the
husband filed a decree of divorce on the grounds of adultery. Trial court granted the divorce decree but
high court reversed the judgment of high court. The case went on appeal to the Supreme Court. The
question before the Supreme Court in this case was whether just an inclination to have sexual
intercourse and thereby leading to adultery would arise in this case or not by living in one room as the
respondent and the appellant wife stayed in one room for a night. The court held that her conduct as

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 O w n by the evidence clearly justifies that she has committed adultery and therefore Supreme Court

reversed the order of high court and thereby granting the decree of divorce to the husband.

Hirachand Srinivas Managaonkar Vs Sunanda (AIR 2001 SC 1285): - In this case the respondent that is
the high
her husband. Accordingly
the wife petition for divorce seeking judicial separation against
filed a
husband to give maintenance
cOurt of Karnataka granted a decree for judicial separation and ordered
filed a petition for divorce under
charges to his wife and daughter. But the husband after two years of
section 13(1-A)(a)of the Hindu marriage act, 1955 on the ground that
there has been no resumption
the decree of judicial separation.
cohabitation between the parties for more than one year after passing
as a ground of
that whether this can be taken
Hence the question before the Supreme Court was
the
under the same roof even after
divorce even after the husband and the wife as in this case are living live in
to
held that husband who continued
passing of the decree of judicial separation. The court succeed fora
adultery even after the passing of decree of judicial separation
with his wife will riot
petition of divorce under section 13(1-A)(a).
and
itselfunder section 497 of IPC with
is mentioned
Punishment for Adultery: Punishment for adultery for a temof five years, or withfine,
or
accordingly the person shall be punished with imprisonment crime and hence this is the
both. In this section wife is not punished even if she acts as an abettor in this However this
wife should alsobe punished for adultery.
big question before the legislators that whether
question has
implemented.
been dealt in the
CORPU
CORPO
Malimath committee report-anddegislations
have been done but still not

'Conversion to another religion' as grounds of divorce under the Hindu

Q. Explain "Cruelty' and
Marriage Act 1955.

CRUELTY the
universally defined till now. It depends upon
not been
Definition of Cruelty:- Cruelty haa described
circumstances of the case and the country
and time. Russel v/s Russel, 1897 Cruelty has been
under physical or mental form of
as characterial
such conduct which may put life and body
behayiour or
danger or may arise apRrehension of such danger.
in matrimonial context, it shall show
that any party to marriage may
If the definition is understood other party to live with him, this shall
in such manner that it shall be difficult for
behave with
be cruelty.
ANC
otherparty

been held that husband along with his parents

Vinod Biswal v/s Tikli Urf Padmini Biswal, 2002 it has misconducted with her. Husband never went to
wife. Father-in-law physically
use to reularly beat the
nor made any attempt towards it. Court held this behaviour of husband to be cruelty
bring back wife
because such circumstances arose that it became difficult for wife to live with the husband.

Similar case is Yadhister Singh v/s Smt. Sarita, 2002 wife used to live at ancestral home of husband.
Husband was working somewhere else. Husband never wanted to keep wife along with him. He used to
come at his ancestral home once a week. He did not used to say his wife that he did not liked her, but he

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 Court held
ancestral property.
id say
that she should live only with the other members of family at the
it to cruelty.

nere are several cases of cruelty. Actually the definition of cruelty depends upon the circuna
the case.

Types of Cruelty
a. Physical Cruelty.

b. Mental Cruelty.

Kusum v/s Kamata, 1965, it said that the definition of cruelty is wide that it includes both
physical and mental type of cruelty.
was so

Praveen Mehta v/s Indrajeet Mehta, 2002, the Supreme Court said that Mental Cruelty is state of a
mind and feelings. In this case, wife refused intercourse form thefirst.day after marriage. She also
refused to undergo medical examination. She used to misbehavealwayswith her husband. She also left
her matrimonial home. Court held it to be cruelty by wife
towardshosband.
Rakesh Sharma v/s Surbhi Sharma, 2002 Wife leftthevnatimonial home without the permission of
the husband. She used to charge husband with adulteryand making constant demand of dowry. Court
held it to be a conduct of mental cruelty towards húsband.

Shobha Srinivas v/s Srinivas Veranna, 2002, Court id not considered such a single act of wife as cruelty
in which the illiterate wife emotional angerthrew the Mangal Sutra.

In all, it means that cruelty is determinedby the facts and circumstances of every matter.
M E NO
T F
L E

cONVERSION

Conversion of the spouse to other religion was only for the purpose of circumventing the provision of
Section 494 ofJodipn Penol Code, 1860. Conversion to Islam by a Hindu spouse does not per se lead to
dissolutionofthe marriage. It only gives a right to the other spouse to file a petition under S.13(1(i) of
the HinduMáriage Act for divorce. Under the pristine Hindu Law as well, conversion did not operate per
se asadissolution of marriage. A Hindu spouse who ceased to be a Hindu by conversion to another
religion
does not acquire any right under the Hindu Marriage Act. On the other hand, he or she exposes
himself or herself to a claim for divorce by the other spouse on the ground of such conversion. The
spouse who remains a Hindu gets a right under S.13(1)(i) of the Hindu Marriage Act to seek dissolution
of the mariage with the spouse who since the marriage ceased to be a Hindu by conversion to another
religion. The right of non converting spouse is indefeasible. The statute does not provide for any
qualification on such right of the non converting spouse. Nor does the Hindu Marriage Act state that the
conversion shall be a conversion without the consent of the other spouse in order to entitle such spouse

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p p i y tor divorce. A conversion does not cease to be a conversion within the meaning of S.13|/0
w t h the consent of the other spouse. We cannot read into the statute something whicn is
ntended in the context; nor can we qualify a disqualification in the matter of conversion as one Wi the
consent of the other spouse to take it out of the
so as purview of S.13(1)(m).

Situationbeforeenforcement of Hindu Marrlage Act

ano
In Re: Ram Kumari, 1891 Calcutta 246, where a Hindu wife became convert to the Muslim faith
then married a Mohammedan, it was held that her earlier marriage with a Hindu husband was no
Penai
dissolvedby her conversion. She was charged and convicted of bigamy under S.494 of Indian
Code, 1860.

In Gul Mohammed V. Emperor AIR 1947 Nagpur 121, a Hindu wife was fraudulently taken away or
her to Islam. E
the accused a Mohammedan who married her according to Muslim law after converting
was held that the conversion of the Hindu wife to Mohammedan faith didnot ipso facto, dissolve tne
or
a valid contract
marriage and she could not during the life time of her former husband enter into

RpORAIED
marriage. Accordingly, the accused was convicted for adultery under Section 497
1860.
PORA
of Indian Penal code,

Situation After enforcement ofHindu Marriage Act

only be
afterethe commencement of the Act,
can
A marriage solemnised, whether before or
Act. One of the
dissolved by a decree of divorce on any of the grounds enumerated in S.13 of the
be Hindu by conversion to another
grounds under S.13(1)(i) is that "the other party has' ceased to a

religion".
QN

Hindu Marriage Act.

Q. Discuss briefly the maintenance provisions under the
to maintain his
As per the Hindu Adoption andWlaiñtenance Act, 1956, a Hindu male is legally obligated attendance
spouse. Maintenance includesprovision
for food, residence, clothing, education and medical
for a provision for maintenance, regardless of
and treatment. The CriminglProcedure Code also provides
wife is entitled to receive maintenance. In this capacity,
religion. As per the GÙde, oñly a legally wedded she was married to.
from the person
"wife" also includesa.divorced wife and she can claim maintenance
second wife to a man, is not granted sucha right since the second marriage is
A woman, whofstands as a
declared voidby tKe law.

The issueof right to the second wife has been faced by various High Courts as well as
maintenance to
have given different views depending upon the facts and
the Supreme Court, and the courts to the expression "wife" under Section
circumstances of each case, thus giving diverse interpretation
Discussed below are a few cases where courts faced the
125 of the Code of Criminal Procedure.
aforementioned issue.

v. Padmanabhan where the Madras High Court did not

The issue was first discussed in Narayanaswami
take a liberal approach and held that, under Section 25 of the Hindu Marriage Act 1955, only a wife,

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 hushand
who s
legaly wedded maintenance
from her
Meaning thereby. that
or
a whose
woman,marriage
martiage
whose is void or
not void isorinnull,
not
marriage nult, can claim
contravention with Section 5(i) of the Hindu
cai
A S S S , i5 not entitled to claim maintenance under Section 25 of the del:

Whereas, in the case of laxmi Boi v. Ayodhyo Prasad the Madhya Pradesh High Court presented the
wedded wife and
e and 'husband' should not be construed as only legally
SDeno, rather they should be taken to mean 'a person claiming to be a wite or d
neld that the
matrimonial courts have the power to
ese powers should also be regulate the relationship oewe es.
exercised by the courts in cases of invalid or bigamous mdi
og
A Similar view was
put forth by other high courts in other cases like Govindrao Kono
Prasod, Rajeshbhoi v. Shantobai ond Mallika v. P. Kundanlal. However, in v.
the
Leelahai the
Bombay High Court ruled that Section 25, though it implies case o Diof
the welfare a
married
Woman should not have any unnecessary inclination such that a woman, whose marriage is void, can De
Cnttied to claim
maintenance. The court also opined that it will lead to bizarre situation if a
meaning ot the expression 'wife' is not ascertained for the purpose pf aproviding maintenance under unitorm
Section 125 of Criminal
Procedure Code, 1973.
nere are some cases where an innocent woman is conned into.marrying a previously married man and
the wife has to
suffer, since she being an illegitimate wife cannot
claim maintenance. The Supreme
Court in Bakulbai v.
Gangaram and Yamunabai v. Anantrao)decided
in keeping with settled law and
held that, a woman, who stands
as a second wife to aman
the second
who already a living spouse at the time of
has
marriage is not sanctioned the right fo maintenance. Even if the wife is unaware of the
subsistence of the previous marriage, she
125 of CrPC, it has to be shown that
has no claim. For the purpose of maintenance under Section
the couplehas
been living as husband and wife. Then the court
presumes them to be a legally wedded couple This can be disproved by producing sufficient evidence
that the marriage is not valid but void
Thus, in such situations no relief can be granted under Section
125
In some cases the couple continues'to live as husband and wife for many years. In such cases, courts
have adopted a liberal, apd hota conservative approach towards interpreting the word wife' and have
directed the husband to paqt maintenance to his wife in such situations. In Narinder Pal Kaur Chawla
v.Manjeet Singh Cháwla,the husband did not disclose the fact of his previous marriage to his wife and
subsequently married thié appellant and they remained as husband and wife for a substantive period of
time. The Delh High Court opined that a second wife, whose marriage is illegitimate, has a right to be
maintained bodersection 18 of the Hindu Adoptions and Maintenance Act 1956 because this is such a
case where,M. maintenance is not provided to the wife, it would act as an encouragement to the
resppndetin defrauding the second wife.
Ifa man and woman have been living together for a considerable period of time, even if they are illicitly
married, then such woman is entitled to claim maintenance. Strict proof of marriage need not be a pre-
condition for maintenance. Any proof like joint bank account, any police complaint, voters 1D given
wherein the husband referred to the second wife as his wife, may be used to prove her status as a wife.
With regard to the matter of defrauding her by not mentioning his previous marriage, the appellant can
sue the husband for committing bigamy under the law provided in the Indlan Penal Code.

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 Rule 21 of the Central Civil Services into
(Conduct) Rules, bars government cmployee from enterin
a

second marriage when his or her first spouse is still alive. In a decided case, the second wife
filed a

pettion. Both the husband and the first wife had been dead. The second wife filed an application for a
family pension, but the plea was rejected by the government. She approached the high court we
application was dismissed on the grounds that a second wife is not entitled to a claim over famiy
pension of a government employee.

InRamesh Chandra v. V R. Daga the Supreme Court has discussed the morality of matrimonia rimoni
relationships. The honorable court has observed that, though a bigamous marriage is considered,ega
and cannot attract the provisions of granting maintenance to the wife, it cannot be said.to be immora
so as to deny the right of maintenance to the wife. Also, in the case of Vidyadhari v. Sukharana Ba

where a wife was duped into an invalid marriage, the court has granted partial relief to her.

DISCuss the differences between Judicial Separation' and 'Divorce' under the Hindu Marriage Act
1955
A Decree Absolute of Divorce brings a marriage to an end and Judicial separation does not. However, it
tis more than a husband and wife living apart. A Decree of Judicial separation can be sought on one o
has
the five facts that are available for divorce but it is to prove that the marriage
not necessary
irretrievably broken down.?

Divorce there two Decrees: Decree Nisi Judicial Separation there is onee
and,Decree Absolute. In
2In are

Decree pronouncing Judicial Separation. and are therefore not able to

Thepartiès' remain married
are available on Divorce, save for
remarry. The Court is able to make the range 'of financial orders that
Pension Sharing or Pension Attachment Orders

Absolute of Divorce upon a Will. The

The Decree of Judicial Separation þas the same effect as a Decree
there is a new Will specifically stating they
spouse can no longer take any benèfit under the Will unless
are to do
so.
be for a party seeking this rather
2 Petitions for Judicial Separation are very rare but there may
reasons

than a Divorce, suchas one or both of them having religious beliefs or the parties not having been
married for the reqaiaite one year required for a Divorce.2

NCE

proceeding under the Hindu

Discuss the provisions relating to custody of minor children relating
to

Marriage Act, 1955.

Section 26 of Hindu Marriage Act, 1955 deals with Custody of Children
In the matrimonial proceedings the question of custody, education and maintenance of children also
to decide in respect of custody of children during the pendency of
crop up. The courts are asked upon
trial. The question of custody of children is an important matter which affects the children and parents

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emotionally,economically and socially. The matrimonial courts have Det education
dtments to decide such questions and oass orders relating to custody, dn
maintenance of the children from time to time. Such orders can be modified, revoked or changed. Ihe
IT the
main petition.
dction over children only if it has jurisdiction in the
matrimonial proceedings are dismissed by the court. proceedingS relating to children termd
dutomatically. A provision or order may be made by the court for the custody, maintenance a
un ot minor children before passing of a decree or in the decree itself or even i a ecre

Deen passed. Passing of a decree in the main proceeding does not put an end to the courts jurisdiction
ds
Itretains the power to pass orders in respect of custody, maintenance and education of the children
e n ater passing such decree. The guiding principle for passing such orders is but approval things "Just
a proper the interpretation which has been given to these words "welfare of the minor Though the

principle of welfare of the minor is the paramount consideration but the

court can also take
consideration, the wishes of the children also. To ascertain the benefit of the the court has to consider
allcourts
otheris factors such as age,
of considerable
wishes of the child. Thus, the power
sex or
conferfedupon the matrimonial
importance which has to be exercised cautiously
in any proceeding under this Act, the court may, from time-to-time,passsuch interim orders and make
Such provisions in the decree as it may deem just and proper with respeèt to the custody., maintenance
and education of minor children, consistently with their wishes,whefever possible and may, after the
decree, upon application by petition for the purposes makefom time-to-time, all such orders and
provisions with respect to the custody, maintenance andeducation of such children as might have been
made by such decree or interim orders in case the proceeding for obtaining such decree were still
pending and the court may also from time-to-time revoke, suspend or vary any such orders and
provisions previously made:

Provided that the application with respect to the maintenance and education of the minor children,
pending the proceeding for obtainingsuch.decree, shall as far as possible, be disposed of within sixty
days from the date of service of notice-on the respondent.

Q. Write short note on Family Court.

Despite the amendméntsbrought in the Civil Procedure Code in 1976, providing a special procedure to
be adopted in suitsor pfoceedings relating to family matters, there was not much change in the way
these cases wefe litigated and decided.

The neegwas,therefore, felt for altogether separate courts to deal with these matters so that the
disputescould be settled speedily with emphasis on conciliation and as many families could be saved

fromthe hiarmful effects of prolonged litigation as possible.

In the interest of socially desirable results it was thought that the tendency to strictly adhere to rigid
rules of procedure and evidence needed to be relaxed.

Therefore, the Family Courts Act was passed in 1984, which provided for the establishment of Family
Courts by the State Governments.

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he matter relating to matrimonial relief, including nullity of marriage, judicial separation, divorCe
restitution of conjugal rights, declaration as to the validity of marriage or as to the matrimonial stdud
any perSon, the property of the spouses or declaration as to the
legitimacy of sons, guardiansnp o
custody of any minor, and maintenance became the subject matters to be decided by the Family Courts.

Under the Act the State Government

population exceeds
is required to establisha family court in any town
million. The
or city where the
one Family Courts, as stated earlier, are there to ensure speey
settlement of disputes, preferably through conciliation.

ne proceedingsis in a
Court
Family Court can be held in camera if the Court thinks it proper. Before a Family
no party necessarily to be represented by a legal practitioner.
The provision is there to simplify the proceeding and keep unnecessary
possible. The appeal from the Family Court lies in the High Court both on facts and law.
legality out of process as far as