ORIGIN OF HINDU

MARRIAGE AND CODIFIED

HINDU LAW
Introduction
 According to Hindu mythology
Marriage is a sacrament.
 An indissoluble union to be continued even after
the death
 “ Janma janmala Bhandham”
 A man cannot be said to have a material existence
until he took a wife
 Marriage was meant for doing good deeds and for
attainment of ‘Moksha’
Characteristic features of Hindu Marriage Under
uncodified Law

 Under the old Hindu Law

 (1) Identity of caste between the parties
 (2) parties must be beyond the prohibited
degrees
 i.e., they should not be of the same gotra or
pravara or sapinda of each other
 (3) proper performances of marital ceremonies
Contrinuation
 1. Ancient Hindu Scriptures prohibited
 Pratiloma marriage( a marriage between a girl
of higher caste and boy of lower caste
 Anuloma marriage ( males of higher caste and
females of lower caste) was permitted
 Identity of caste essential between the parties

 Purpose of Marriage
 (2)Parties to be beyond prohibited degrees
 Dharmasutras declared that a man should not marry
a wife belonging to the same GOTRA or Pravara
 Gotra : Senior sage
 Pravara : descendant sage up to 3 generations
 Ex: Kusika
 vasista
 viswamitra
 Marichi
Continuation
 Similarly no one could marry a girl who comes
within his sapinda relationship
 3. Performance of religious ceremonies
 Betrothal or tilak ceremony
 recitation of holy texts before the holy fire
 taking seven steps round the sacred fire.’
 saptapadi
Continuation
 In a Nutshell
 Hindu marriage was a holy samskar ,
 it could be performed in one of the eight forms
recognised by vedas
 Solemnization according to Shastric or customary
rites
 One could marry at any age
 a man could marry any number of women
 Inter-religious and inter- caste marriages prohibited
 continuation
 Marrying of same gotra or pravara was not allowed
 Husband and wife would live together,
 Wife would submit to the wishes of the Husband,
Husband would maintain the wife
 Marriage indissoluble,
 Divorce was not permitted
 Death did not dissolve a marriage.
 Widow could not remarry
Forms of Hindu Marriage
Approved forms
(a ) Brahma
Gift of a daughter clothed only with a
single robe to a man learned in Vedas, whom her
father invites respectfully
chief character
Parents do not receive consideration for giving the girl
Continuation
(b) Daiva
Damsel is given to a person, who operates as a priest in a
sacrifice performed by the father, in lieu of fee or dakshina
due to the priest
(c) Arsha
Bridegroom present a cow and a bull ;
or 2 cows and 2 bulls
to the bride’s father which is accepted for religious purposes
only
(d) Prajapatya
It does not materially differ from ‘Brahma” with a
condition “you to be partners for secular and religious duties
 Unapproved forms of marriage
(a) Asura
Bridegroom having given as much wealth as he can afford ,
to the father and paternal kinsmen and damsel herself, takes her
voluntarily as his wife
Striking feature
receipt of pecuniary benefit by the bride’s parents amounts to
a virtual sale
(b) Gandharva
Union of man and woman by mutual consent by exchange
of garlands or by rings before the ceremony of homa

Continuation
(c) Rakshasa
Forcible abduction of the bride from her paternal
home
Ex: Enticing Rukmini by Lord Krishna
(d) Paishacha
 marriage of a girl by a man ,

 who had committed the crime of ravishing her

either when asleep;
 or when made drunk by administering intoxication

during or when in the state of mental disorder

 Continuation
(3) Performance of marriage
a. Betrothel
b. formalities recital of holy texts before the sacred
fire
c Sapthapadhi
(4) Hindu Marriage was a holy samskara, It could be solemnized in
one of the eight forms recognised
(5) One could marry at any age there being no lowest age of marriage
and a man could marry any number of women
(6) Marriage was indissoluble, divorce was not permitted
(7) Death did dissolve a marriage therefore a widow could not remarry
 Hindu Marriage Act 1955
Act,1955 brought important and dynamic changes in the
Hindu Matrimonial concept
It is a landmark in the history of social legislation

i.e., Changes of far reaching consequence, character, which

have undermined the ‘Sacramental’ character of marriage and

rendered it ‘Contractual in nature to a great extent
Introduction of fault theory
 a basis for obtaining a matrimonial relief like

 Judicial separation

 nullity of marriage and Divorce


Continuation

Consent theory Introduced by



Marriage Laws (Amendment) Act 1976

 Parties are free to effect dissolution

of marriage in case the marriage has

failed between them
 The Act has permitted them to sever

their relations by mutual consent

continuation
Breakdown theory
 U/ sec.13( 1 A)

(a) If decree of restitution of conjugal rights has not

been complied with for 1 year or more
(b) if the cohabitation has not been resumed for a
period of 1 year or more after the passing of the
decree for judicial separation
 Divorce can be obtained by either party

 The Act has permitted divorce to the guilty as well

as to the innocent
 Continuation
 A Hindu marriage is now not concerned with
religion. It is more a result of mutual consent
It has introduced monogamy .
Sec.5 a marriage becomes null and void, if either
party has a spouse living at the time of marriage
Bigamy has not only been prohibited but has been
made an offence punishable under IPC
permitted inter-caste marriages. Giving retrospective
effect under Sec.29
Continuation
Same gotra Marriage legalised
 Minimum age for the bride groom has been fixed as 21
years and for bride 18 years
 Introduction of matrimonial reliefs
 Restitution of conjugal rites,
 judicial separation,
 Nullity of marriage, divorce
 Registration of marriage
 No distinction
 the marriage of a maiden and marriage of a widow
Continuation
 Allowed the right of alimony pendente lite and also
permanent maintenance by either of the spouse Sec.23
 Sec.24 Maintenance pendente lite and for legal
expenses
 Sec.25 Permanent alimony and maintenance
 Sec.29 for custody, maintenance and education of
minor children during pendente lite
 legitimacy to the children born of void and voidable
marriages
Changes introduced by virtue of Marriage Laws
(Amendment) Act,1976

1. Under Sec13-B Divorce by mutual consent

Due to the growing influence of break-down
theory of divorce. This provision is retrospective in
operation
2. Divorce on the ground of adultery made easy
Formerly, divorce was allowed only, when it could

be proved that the other party was living in adultery

 Now a single instance of adultery on the part of the

other is sufficient to seek divorce

Continuation
3. Unsound-mind ,Incurable leprosy or venereal
disease
For a divorce on the above ground, formerly the
party seeking divorce could not file a petition until 3
years had elapsed .
Now the party need not wait for 3 years
4. Sec.21-B Introduced to expedite the matrimonial
proceedings. This section provides continuance of
the trial(day to day), until conclusion of the case
continuation
 Child Marriage Restraint (Amendment) Act
1978 has changed existing provisions .
 21 years for the bride groom and 18 years of
age for the bride
 Effect: Deletion of Sec.6 of the Act which deals
with guardian in marriage
Important Definitions of H.M.Act 1955

 Hindu
 Any person who is Hindu by religion irrespective of or
regardless of its forms or developments, including—
 (1) (a) a Virashaiva
 (b) a Lingayat
 (c) a follower of the Brahmo ,Prarthana or Arya
Samaj
 Any person who is either –
 (II) (a) a Buddhist by religion; or
 (b) a Jain by religion ; or
 (c) a Sikh by religion
Continuation
 Any other person domiciled in the territories to which this Act extends who is not –
 III (A) a Muslim by religion, or
 (b) a Christian by religion, or
 (c) a Parsi by religion, or
 (d) a Jew by religion

 The following persons are Hindus , Buddhists , Jains ,or Sikhs by religion
 (a) any child legitimate or illegitimate, both of whose parents belong to any of
the above religions
 (b) any child ,legitimate or illegitimate , both of whose parents are Hindus,
Buddhists, Jains, or sikhs by religion
 (c) any child legitimate or illegitimate whose parents are Hindus,
Buddhists, Jains, or Sikhs by religion and whose brought up as a member of
that group or family to which such parent belongs
 (d) Convert and re- convert
 Conditions For a valid H.M. Act 1955


 There are 6 conditions:-Originally Hindu Marriage Act 1955 provided 6 conditions. But the Child
Marriage Restraint Act 1978 omitted sixth condition relating to guardianship

Sec. 5(1) provides the rule of monogamy and prohibits polygamy. A Hindu can have only
one marriage subsisting at a time
Neither party has a spouse living
 In Sarala Mudgal Vs. Union of India

SCC 1995 Vol..2 page.635
 Husband converted himself into a Muslim by adopting Islam
Then married another wife

Question was whether by conversion, the first marriage is annulled

or it becomes void and he commits an offence of bigamy

Court said that the first marriage subsists and the husband commits an

offence

Continuation
 Appeal was filed by the husband this appeal was disposed of
along the Lily Thomas by the S.C
 In Lily Thomas Vs. Union of India
 SCC 2000, Vol.2, Page 224
 The same question came before the court.
 S.C. Observed;
 that the institution of marriage under every personal law is a
sacred institution.
 Under the Hindu Law, marriage is a sacrament.
 Both these have to be preserved. Therefore religion is not a
commodity to be exploited, it is a matter of faith
Continuation
 when a non-muslim married according to religious rites
stipulating monogamy, renounces his religion, converts to
Islam and solemnizes a second marriage, according to
Islamic rites, without divorcing his first wife, the second
marriage is void. Here a person feigns ( make believe with
intent to deceive) to have adopted another religion, just for
some worldly gain or benefit, and this is a religious bigotry
 Conversion dose not automatically dissolve the first
marriage, Since a bigamous marriage is an offence under
Sec. 17 of H.M.Act readwith Sec.494 of I.P.C The court
affirmed in Sarala Mudgul case and dismissed the appeal
Continuation
 2.Soundness of mind (Sec.5 (2)
 (a) at the time of marriage neither party is
incapable of giving a valid consent to it
inconsequence of unsoundmind
 (b) though capable , has been suffering from
mental disorder of such a kind or such an extent
as to be unfit for marriage and for procreation; or
 (c) has been subject to recurrent attacks of
insanity
CONTINUATION
Sec.12 (1) (b) renders the marriage voidable, at the
instance of the aggrieved
3. Age of Marriage . Sec.5(3)
It prescribes the age of the bride 15 years and
the bridegoom 18 years. This was amended by
the Child Marriage Restraint (Amendment) Act
1978 as 18 and 21 respectively
the breach of this provision did not affect the validity
of marriage but rendered it as an offence
Continuation

 the guilty party to such marriage or the parent or

guardian concerned is responsible for getting the
marriage solemnized, or negligently fails to prevent it
from being solemnized, shall be liable for simple
imprisonment up to 15 days or a fine of Rs.1000 or both
under Sec.18
 Changed position
 if the condition specified in Cl.(iii) of Sec.5 is violated,
 with rigorous imprisonment, which may extend to two
years or with fine , which may extend to one lakh or both
continuation
 In Pinniti Venkatarama Vs. State
 AIR 1977, A.P.43
 the A.P High court laid down that any marriage solemnized
in contravention of Cl.(iii) of Sec.5 is neither void nor
voidable
 the only consequence being that the persons concerned
are liable for punishment under Sec.18.
 In any such marriage, where a bride had been married
before completion of her 15 th year, ,can repudiate that
marriage on attaining that age and entitled to a decree of
divorce
Continuation
 The option of getting divorce would be available till the completion of
her 18th year
 4.Prohibited degree of relationship Sec.5(4)
 Two persons would be regarded to be within prohibited degrees (sec.3(g))
 (a) If one is a lineal ascendant to the other; or
 (b) if one was the wife or the husband of a lineal ascendant or descendant
of the other
 © If one was the wife of the brother or
 of the father’s or mother’s brother or
 of the grand father’s or grand mother’s brother of the other
 (d) if two are brother and sister , uncle and niece, aunt and nephew
 or children of brother and sister
 Continuation
 The relationship would also include
 (i) Half blood, Uterine blood and full blood
 (ii) illegitimate as well as legitimate
 (iii) Blood as well as by adoption
 Exception
 That a marriage of persons though related within the
prohibited degree shall be permissible, if the custom or
usage governing both the parties to the marriage, permits
 Ex: a marriage with sister’s daughter
 Mother’s brother’s daughter
Continuation
 Examples of prohibited degrees
 For Men
 (i) Mother
 (ii) former wife of father or grand father howsoever
high
 (iii) Former wife of brother
 (iv) Sister
 (v) Either parent’s sister
 (vi) Daughter of a brother or sister
Continuation
 For women
 Father
 Brother of former husband
 Nephew of former husband
 Brother
 Either of parent’s brother
 Son of a brother or sister
 Son of either parent’s brother
 Son of either parent’s sister
Continuation
 High Court in Smt. Shakuntala Devi Vs. Amar
Nath
 AIR 1962 P & H.22
 the conditions of a valid marriage under Sec.5(iv)
stands qualified by custom. .i.e., in the event of
custom being established, the marriage though
prohibited relationship ,would constitute a legal
and valid
 Personal laws lay down certain conditions to be complied with to solemnise a
legal marriage
 Before this, Does every one have an absolute right to marry
 Right to marry
 Universal Declaration of Human Rights 1948
 Right to marry is a component of right to life Under Art.21
 Art.19
 a) Men and women of full age without any limitation due to race nationality or
religion have the right to marry and to found a family They are entitled to equal
rights as to marriage during and after dissolution.
 B) it shall be entered into with full consent of the parties
 C) the family is the unit of society and entitled to protection by society and the
State

Persons with H I V - Right to marry
Cases Mr.X Vs.Hospital Z, AIR 1999 SC 495

 Donation of blood by a doctor(X), s surgeon in the Nagaland , to a surgery patient in a hospital in Madras
 blood sample taken by the hospital revealed that he was a HIV+.

 Proposal of marriage by the doctor to Ms.Y.

 Doctor, the appellant was unaware of this when he proposed.

 Marriage was called off because of the disclosure of his blood report
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 Sec.5 Marriage Below the legal Age
 Marriage is not void
 Case Pinninti Venkata Ramana Vs. State AIR 1977 AP 43
 V. Mallikarjunaiah Vs.H.C. Gauramma AIR 1997 Kant.77
 Ravikumar Vs. State and Shika Sharma Vs. State, 2005(1)DLT 124
 Sec. 5
 Both parties to Hindus
 Pre-marriage convert to Hinduism - Hindu - Marriage not void
 Case: Madhavi Ramesh Dhudani Vs. Ramesh K. Dhudani AIR 2006 Bom 94
 Sec.5
 Marriage between Hindu And Christian - Not valid under H. M.Act, 1955
 Case Gullipilli Sowria Rai Vs.Bandaru Pavani AIR 2009 SC 1085
 Sec.5
 Marriage between Hindu And Christian though registered is not valid
 Case Nilesh Narin Rajesh Lal Vs. Kashmira Bhupendrabhai Banker AIR 2010 Guj.3
 Sec.5
 Born Hindu, converted to Islam and reconverted to Hinduism - Marriage with Hindu is valid
 Case Flg. Officer Rajiv Gakhar Vs. Bhuvana @ Sarkar Wasif AIR 2011 S C 2053
  
  
 Sec.5
 Marriage of a woman already married
 Case : Sushma Chourie Vs. Hitendra Kumar Borkar, AIR 2010 CHH.30
 By whom it was disclosed was not clear
.Cancellation of marriage and HIV+ status caused
agony and embarrassment leads to ostracisation by the
community and had to leave his home State.
 When he approached Consumer Disputes Redressal
Commision for damages for disclosing hisblood
reports and breaching confidentiality, it was
dismissed
 S.c Right to marry is not absolute remains suspended
until the afflicted person is cured.
 Mr.X Vs. Hospital Z AIR 2003 SC 664
 Whether there can be a complete ban for marriage. If a healthy
person gives an informed consent to marriage with a spouse found to
be HIV+?
 SC Two judge bench in 1999 had gone further then was
warranted by declaring that in the event of such persons
marry, they would commit an offence under law or as to
suspension of the right to marry during the period of illness.
 Right to marry is not taken away. Any afflicted person can
remarry, or any two afflicted persons can marry without any
legal bar, Provided there is knowledge and consent.
 In Re: Indian Woman Says gang-raped on
orders of Villlage Court (AIR 2014 SC 2816)
 A 20 year old woman was allegedly gang-raped on the
orders of Community Panchayat as punishment for
having relationship with a man from different community
 SC , While suomoto taking cognizance and deprecating
the concerned authorities held that State is duty bound to
protect the F Rs of citizens and an inherent aspect of
Art.21, Would be the freedom of choice in marriage
 Right of marriage is a component of right to life Under
Art.21
 Case Lata Singh Vs State of U.P AIR 2006 SC 2522
 Complaints, threats, arrests in an inter-caste marriag, against
girl’s husband and family members
 Writ Petition U/ Art.32 by the wife for writ of
Mandamus/Certiorari for quashing the trials in lower courts
 S C Allowed petition, direction to the police /admn. to
protect from Harrassment, threats and violence.
 Directed to take stern action against those, by instituting Cr.
Proceeding them
 Marriage is not void
 Case Pinninti Venkata Ramana Vs. State AIR 1977 AP 43
 V. Mallikarjunaiah Vs.H.C. Gauramma AIR 1997 Kant.77
 Ravikumar Vs. State and Shika Sharma Vs. State, 2005(1)DLT 124
 Sec. 5
 Both parties to Hindus
 Pre-marriage convert to Hinduism - Hindu - Marriage not void
 Case: Madhavi Ramesh Dhudani Vs. Ramesh K. Dhudani AIR 2006
Bom 94
 Sec.5
 Marriage between Hindu And Christian - Not valid under H. M.Act, 1955
 Case Gullipilli Sowria Rai Vs.Bandaru Pavani AIR 2009 SC 1085
 Sec.5
 Marriage between Hindu And Christian though registered is not valid
 Case Nilesh Narin Rajesh Lal Vs. Kashmira Bhupendrabhai Banker AIR
2010 Guj.3
 Sec.5
 Born Hindu, converted to Islam and reconverted to Hinduism - Marriage
with Hindu is valid
 Case Flg. Officer Rajiv Gakhar Vs. Bhuvana @ Sarkar Wasif AIR 2011
S C 2053


   Sec.5
 Marriage of a woman already married
 Case : Sushma Chourie Vs. Hitendra Kumar Borkar, AIR 2010 CHH.30
 Sec.5
 Marriage between Hindu And Christian though registered is not valid
 Case Nilesh Narin Rajesh Lal Vs. Kashmira Bhupendrabhai Banker
AIR 2010 Guj.3
 Sec.5
 Born Hindu, converted to Islam and reconverted to Hinduism - Marriage
with Hindu is valid
 Case Flg. Officer Rajiv Gakhar Vs. Bhuvana @ Sarkar Wasif AIR
2011 S C 2053
   Sec.5
 Marriage of a woman already married
 Case : Sushma Chourie Vs. Hitendra Kumar Borkar, AIR 2010 CHH.30
 Example
 A, Muslim male marries a woman, who was a
Hindu prior to her marriage, but she converts Islam
and gets married. After some time, sh renounces
Islam and convert to Christianity
 This will not ipso facto dissolve the marriage,
because she has not re- embraced her Hinduism .,
i.e.,not her former faith. If she re-emracced
Hinduism, it would have had the effect of
immediate dissolutionj
Ceremonies of Marriage (Sec.7)
Old Law
Ceremonies and their significance
(1) Ganapathi puja
(2) Nandidevatha ( Since the object of
marriage is to begetting progeny. They are
the builders of the ‘Sukshma Deha
(3) Graha Yajna

 (4)Snatakam(Close of Studies)
 Bridegroom asks for forgiveness for any
lapses on his part in observing the strict regime
during the period of studies
(5) Kasi Yatra

(6) Vak nischaya Muhurtha

(7) Sankalpa

(8) Kanyadana



Continuation
 (9) Bridegroom’s promise
 “’ DHARMECHA, ARDECHA, KAMECHA
 NATHICHARITHAVYA”’
 Father of the bride obtains a solemn promise
 of fidelity to his daughter from his son in-Law
 The Bridegroom says
 “’ NATHI CHARAMI ( I will not)
Continuation
(10) Rakshabandhana
Significance;
From that time till SAMAVESANA (Sexual union) both
bride and bridegroom will not be affected by pollution

(11)Sapthapadi We have together paced all the seven steps,

we shall live together and we shall reside together and we
each shall be an object of love to the other, we each shall be a
source of joy to the other with mutual good
(12)Pradhana Ahuti (Invoking the blessings of Agni )
(13)Laja Homa ; Long life vigour and prosperity
Continuation
 (14) Journey Home
 Bride is taken to the in-laws house
 (15) Gruhapravesam(Satyanarayana Vratham)
 For future prosperity of the couple
 (16) Thri ratri ( Three nights)
 For acquiring progeny , who would be
physically and spiritually healthy
 (17) Sesha Homa
Continuation
 This is preparatory to sexual union and is intended
to propitiate the devine powers
 (18) Garbhadhana
 These manthras are intended to furnish the
couple with knowledge of sexual science for
begetting spiritually worthy children
Ceremonies of Marriage ( Sec.7)

 Sec.7 Says:
 (1) A Marriage may (must) be solemnised in
accordance with the customary rites and
ceremonies of either party thereto
 (2) where such rite and ceremonies include the
Saptapadi, the marriage becomes binding ,when
the seventh step is taken
 “ May ” the word may here in the sense of
 “ must “
 continuation
 In Bhaurao Vs. State of Maharastra
 AIR 1965 SC 1564
 S.c Held that unless a marriage is celebrated or,
performed with proper ceremonies and in due form, it
cannot be said to have been ‘solemnised”
 In Surjit Kaur Vs. Garja Singh
 AIR 1994 SC.135
 Parties lived together as wife and husband without or
under any established custom performing the
essential ceremonies
 Continuation
 Su..C. held that in such situations living together as husband
and wife by itself would not confer status of husband and wife
 Supreme Court
 in Dr. Surajmani Stella Kajur Vs. Durg Charan
 Hansdah
 AIR 2001 SC 938
 if the parties to the petition are of tribals, who otherwise
profess Hinduism, but their marriage being out of the purview of
H.M.Act 1955 in the light of Sec.2(2) of the Act would be
governed by their customs and usages of tribe
 Sec.7 Marriage ceremonies
 Whether exchange of garlands in the presence of their friends and relatives is a

valid marriage
 Case Devan Achi Vs Chidambar Chettiar AIR 1954 Mad 357

 Unless the marriage celebrated with proper ceremonies and due form it

cannot be said to have been solemnised

 Case Bhaurao Vs State of Maharastra AIR 1965 Sc1564

 For prosecuting a person for bigamy it has to be established that the first

marriage of that person was solemnized according to accepted cceremonies

 Case: Dr. A.N. Mukherjee Vs State AIR 1969 All.486

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 Whether performance of religious rites is mandatory, where a
marriage is performed under customary law
 Case Sumitra Devi Vs. Bhikan Choudhary AIR 1985 SC 765
 Saptapadi is an essential ceremony for a valid Hindu Marriage
 Case. Laxmi Devi Vs. Satyanarayan, 1994 (5) SCC 545
 Is it necessary to prove the performance of saptapadi or any other
cermony in order to determine the validity of a Hindu Marriage
 Case Chandra Bhagbai Ganpati Vs. S.N. Kanwar2008 M.L.R 21
(Bom)
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 Whether performance of religious rites is mandatory, where a
marriage is performed under customary law
 Case Sumitra Devi Vs. Bhikan Choudhary AIR 1985 SC 765
 Saptapadi is an essential ceremony for a valid Hindu Marriage
 Case. Laxmi Devi Vs. Satyanarayan, 1994 (5) SCC 545
 Is it necessary to prove the performance of saptapadi or any other
cermony in order to determine the validity of a Hindu Marriage
 Case Chandra Bhagbai Ganpati Vs. S.N. Kanwar2008 M.L.R 21
(Bom)
  
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 Proof of Marriage (Sec.8)
 Sec. 8 says For the purpose of proof of marriage,
the State is authoriszed to make rules for
registration of marriage
 omission to make the entry in the marriage
register would not affect the validity of the
marriage itself
 in Vinaya Nair and others Vs. Corporation of
 Kochi
 AIR 2006 Ker.275
Continuation
 Petitioners belong to Nair community
 Marriage performed under the provisions of H.M.Act
 Husband was born in Canada ,acquired canadian
citizenship and employed in Canada., who
professes Hindu religion and married Hindu girl.
After marriage they submitted an application of the
Kerala Hindu Marriage Registration Rules 1957
to the corporation of Cochin for registering their
marriage
Continuation
Corporation refused to register on the ground that
the husband is of Canadian domicile.
High court held that since the marriage was
solemnized by following the provisions of Hindu
Marriage Act , it is valid and the corporation is not
justified in refusing the marriage certificate
Bombay, Himachal Pradesh and Karnataka high
Courts implement for uniform, and compulsory
registration of marriage in their respective states.
Continuation
 Recently Supreme Court
 in Seema Vs. Ashwani Kumar,
 AIR 2006 Sc 1158
 S.C. directed the Centre and States to make
necessary amendments in the rules to facilitate
compulsory registration of marriages by a nodal
officer, and the
 has given three months time to the governments to
notify the amended rules
History of Restitution 0f conjugal rights

 Vedic injunction for necessity for a son, who relieves

his father from hell resulted in desire of a male
offspring for continuance of the family
 and for the performance of funeral rites
 The sacredness of marriage tie was recognised
 The wife was given an honoured position in the house
 ‘’ as the woman is half her husband and completes
him’’ The texts of Hindu Law also recognised the
principle l
 Hindu law enjoined on the spouses to have the society of each
other
 while Dharmasastras stressed on the wife’s implicit
obedience to her husband
 But it did not lay down any procedure for compelling her to
return to her husand against her will . It became necessary to find
some remedies and procedures so as to see the marriage tie is
intact and would not be disturbed by some petty quarrels between
spouses
 Restitution of conjugal rights recognised in England by the
Ecclesiastical courts was introduced in Our country by the
Britishers
 From the time of the decision in
 MoonsheeBuzloor Vs.Shumsoonisa Begum
 1867 ii, M I A 551
 This procedure is now recognised as restitution of
conjugal rights under Sec.9 of Hindu Marriage
Act,
 1955

Restitution of conjugal rights ( Sec.9)

 Conjugal right is a matrimonial right

 It is indeed one of the express conditions of the
nuptial vow that each party is to become life
associate of the other and enjoy the pleasures and
consortium of each other
 Sec. 9
 The husband or wife may get a decree for
restitution of conjugal rights
 where the wife or the husband has
 Continuation
(a) has withdrawn from the society of the other
(b) Without reasonable excuse
( c ) the court is satisfied of the truth of the statements
made in the petition; and
( d) there is no legal ground why the application should
not be granted
_Explanation___________
Burden of proof in case of reasonable excuse shall be on
the person who has withdrawn
Continuation
 For obtaining this remedy
 It presupposes the subsistence of valid marriage
 Petitioner has to prove the valid marriage ,if it is
 disputed by the respondant
 In Smt. Ranjana Vinod kumar Kejriwal
 Vs.
 Vinodkumar Kejriwal
 AIR 1997 Bom. 380
 Continuation
Petition for restitution filed by the wife, Who had
admittedly married a husband, who was already
married to some one. The marriage with her was
contracted after suppressing the fact .
Court refused to grant restitution of conjugal
rights, as on the ground that the lady who
moved to the court was not a legally wedded
wife
Continuation
 Withdrawal from the company
 It means withdrawing from the company of the
other spouse. The mental process should show that
the spouse complained against should have made
up his or her mind not to discharge his or her
marital obligations without there being any excuse
 Reasonable and just cause
 According to judicial decisions the following are
reasonable justifications for living separately
Continuation
 Refusal to perform marital obligations without
sufficient cause
 Imputing unchastity upon the wife
 Gravely indecent behaviour,
 false allegations against each other as to
unnatural offence

 Malkiat singh Vs. Shinderpal Kaur
 Air 2003 P&H. 283
 Court observed
 that the essence of the decree of decree of restitution is that
the husband desiring the company of his wife makes any
effort through the court for its assistance in order to restore
his wife back so that they may be able to lead a conjugal life
 the provision of law cannot be misused by a spouse to
obtain a decree by invoking the provisions of
 Sec13(1-A)(ii) of the Act, by deliberately keeping the decree
of Restitution of conjugal rights as unsatisfied
 Here the Husband could not satisfy the court about
his sincerity to allow the respondent to resume her
matrimonial duties
 The appellant cannot be allowed to take the benefit
of his wrong
 In Sohan Lal Vs. Smt Prathiba Mehra AIR 2007
Raj.915
 where the wife did not respond the decree for
restitution of conjugal rights for one year, the
husband is entitled to get divorce under Sec.13(1-A)
 T. Srinivasan Vs. T. Vara Lakshmi
 AIR 1999 S.C.595
 misconduct by the husband
 Wife was deprived by the husband to perform
her conjugal duties
 She demanded to perform her conjugal rights
 Husband not only refused but also drove her
out
 He did not allow her wife to again enter the house
 S.C held that these acts of husband were
positive wrongs amounting to misconduct
uncondolable
 ‘He is not entitled to relief of divorce under
Sec.13(1) (A)
 Rajasthan High Court in
 Mirchullal Vs. Devi bai AIR 1977 Raj.113
 according to the Hindu law a wife after marriage is
bound to be dutiful towards her husband and remain
under the obligations of her husband in his house, but the
concept of protection of the husband and unbroken
residence in his house are not inelastic and rigid rules
which cannot be interpreted in the context of present
day conditions and needs . Women are no longer
confined within the walls of their houses.
 On account of family circumstances a woman might
have to live by herself, while the husband is
working at a place or out of employment under
such conditions a wife has to live away from her
husband such a situation would not amount to
staying away from her husband
 High Court of Delhi pronounced an important
Judgment in
 Smt Swaraj Garg Vs. K.M. Garg AIR
1978delhi296
 Husband and wife were gainfully employed at different
places before their marriage
 Question arose with respect to matrimonial home after
marriage
 Husband drawing, a pay lesser though highly qualified
 They did not discuss about their matrimonial house either
before after the marriage
 wife continued to live at her place of working, although
attended twice to Delhi with him, where husband is serving
 Husband filed a suit for restitution on the ground that she had
withdrawn from his association without reasonable excuse
 Trial court dismissed the petition, but a single bench
allowed the appeal and granted the restitution
 Mr. Desh Pande.,J
 women have taken up jobs to help their families and she is
financially and in other respects better situated to choose
the place of matrimonial home then the husband. There
is no warrant in Hindu law to regard a Hindu wife as
having no say in choosing the place of matrimonial home.
 Art. 14 of the constitution guarantees equality before
law and equal protection of laws to both wife and
husband


Any law which would give exclusive right to the husband

to decide upon the place of the matrimonial home without
considering the merits of the claim of the wife, would be
against Art.14 and unconstitutional

 Mohinder singh Vs. Preet Kaur

 AIR 1981 HLR 321
 Husband became totally blind due to eye-injury after six
months of his marriage
wife withdrew from the society on the plea of his blindness


Court held that the wife had a reasonable excuse to withdraw. Consequently
restitution decree was refused

T Saritha V.s T. Venkata subbaiah AIR 1983 AP356

 R.C.R. Constituted the grossest form of violation of individual’s right to

privacy
 Smt. Harvinder Kaur Vs Harmander AIR1984 Del.66

Restitution aimed at cohabitation and consortium

Sarojrani Vs. Sudharsan kumar AIR 1984 SC 1562

 Restitution is not merely creature of the Statute it is inherent in the very

institution of marriage, it may be viewed in its proper perspective by

keeping the dictionary meaning
 Execution of decree of Restitution of conjugal rights
 ( Order 21 Rule 32 and 33 of C.P.C)
 It provides for execution of R .of C.Rts.
 The party against whom the decree is passed has an
opportunity of obeying the decree and if willfully failed to
obey it, the decree may be enforced by attachment of his
property
 Or by his detention in civil prison or by both. The
attachment decree will be in operation for one year and if
the party has not obeyed the decree, the decree holder can
apply for sale of the attached property
 continuation

Court is not competent to direct that the wife or

husband be bodily handed over to the other spouse
and restrain him or her of liberty
 In India Restitution decree is used as a

Stepping stone for getting a decree of divorce

Relevancy of the remedy
 When the remedy of divorce by mutual consent
has been included and the grounds of judicial
separation and divorce have been made common,
parties to marriage would hardly opt for
Restitution
 Prof. Derrett, who was a voter of the retention of the remedy
under the H.M.Act
 admitted that it serves no purpose in many cases and is a mere
half way house to divorce or is a counter blast to an application
or suit for maintenance.
 He believes that the remedy for restitution of conjugal rights is
of great value for the Hindu Society. He believes that the
practical utility of the remedy is little in England, but in India
where spouses separate at times due to misunderstandings, failure
of mutual communication of the intrigues of relatives, the
remedy of restitution is still of considerable value.. He
represents the popular feelings of Hindu spouses.
 Due to
 the changed social scenario of the Hindu Community ,
 rapid growth of nuclear families
 spreading of education ;and
 consciousness of their rights,
 the remedy of restitution is gradually losing its
importance.
 Survey of reported case laws exhibits that the aggrieved
spouses hardly chooses this restitution as against
divorce
 @@@@
 Can baseless apprehensions of future torture be treated as a reasonable
cause for her deserting the husband
 Case Santana Banerjee Vs Susanta Kumar Banerjee.AIR 2012 Cal.16
 In a petition for restitution, can an alternative prayer for divorce be made
and if the respondent remains ex parte, would the petitioner be absolved
from discharging the onus to prove his case
 Case Vijaya LakshmiDevi Vs Gautama Krishna Mishra AIR 2010
Pat. 56
 Is a petition for restitution under Sec.9 maintainable, when the marriage
is denied by any of the parties
 Case Santhosh Kumar Pandey Vs. Ananya Pandey, AIR 2013 CHH. 95(

Judicial Separation (Sec.10)
 Object
 To give time to the spouses
 for reapproachment and conciliation.
 The main function of the matrimonial reliefs is
 to offer protection to the innocent party and getting a
marriage dissolved when it has for all practical purposes
broken down
 when the grounds are same for both judicial separation as
well as for divorce one may feel this provision is not necessary,
but some spouses may not be willing to take divorce as they
may feel it a stigma to be a divorcee in the society


Under Hindu Law although this remedy of Judicial

separation is unknown, British courts by their
pronouncements established that a suit for judicial
separation is maintainable.
As a consequence , The Indian Divorce Act 1869 was

made applicable
Under Sec 10

Either party may present a petition for judicial separation

on any of the grounds mentioned in Sub.Sec.(1) of Sec.13


 In case of wife also on any of the grounds
specified in Sub.Sec(2) of Sec.13 as grounds on
which a petition for divorce might have been
presented
 That Is grounds for judicial separation and

divorce are virtually the same

The Court may rescind the decree on the

application by petition of either party and on

being satisfied of the truth of the statements
 Grounds available to husband and wife
 (1) Adultery

 Prior to the Marriage Laws (Amendment)

Act 1976 . ‘’living in adultery’’ was

necessary for getting the decree of judicial
separation.
 Now This has been dispensed with and it has

been replaced by a simple requirement

adultery

 (2) Cruelty
 Though it has not been defined in the Act.
 It is a course of conduct or treatment which tends
to undermine the health of the spouse on that
account; or
 affects the reasonable happiness of life and ill-
treatment of both physical or mental
 Smt. Mayadevi VS. Jagdish Prasad
 A I R 2007 S C 1426
 wife used to make demands for money
 used to quarrel when money was not paid
 she did not even provide food to her husband or the
children
 Used to threaten her husband to falsely implicate
him in dowry demand and to kill the children and
put the blame on the respondent and his family
members
 S.C Held that the allegation of cruelty was estd and
granted the decree of divorce.
 Grounds of cruelty
 Actual or threatened physical injury
 Verbal abuse or insults
 Excessive sexual intercourse
 Refusal of intercourse
 Neglect
 Communication of venereal disease
Drunkenness
 Refusal to speak

 Forcing association with improper persons

 False charge of immorality against wife

 Ill-treatment of children
 (xii) Refusal to have children
 In Dastane Vs. Dastane
 The Supreme Court observed ‘’ Harm or injury
to health, reputation, the working career or the like
would be an important consideration In determining
whether the conduct of the respondent amounts to
cruelty It is not necessary as under English law,
that the cruelty must be of such a character as to
cause danger to life,limb and health as to give rise
to reasonable apprehension of such danger
(3) Desertion


 Two elements are necessary

 (a) Consent
 (b) Intention
 In Bipin Chandra Vs. Prabhavathi

 AIR 1957 SC 173

Supreme Court held that if the deserting spouse decides to


come back to the deserted spouse by a bonafide offer of

resuming the matrimonial home, desertion comes to an end

 Again Supreme court
in Lakshan Vs. Meena

 AIR 1964 SC 30
reaffirmed that the factum of

separation and animus deserendi are

the necessary elements of the offence of
desertion

In the above case S.C remarked that the wife left her
husband’s house without his consent and without any
reasonable excuse, it was also evident from her conduct that
she had no intention to live with him, this state of things
continued for 2 years/ Hence the wife was guilty of desertion
and a decree for judicial separation was granted
(4) Conversion

(5) Unsound mind

(6) Leprosy

(7) Venereal Disease

(8) Renunciation of the world

(9)Presumption of death
(B) Additional grounds available to wife
 (1) Bigamy

 (2) Rape, Sodomy or Bestiality

 (3) Non-resumption of cohabitation after decree or order of

maintenance
 (4) Option Of puberty

COURT ’S power to Rescind



 The above grounds are available to wife whether her

marriage was solemnized before or after the commencement

of Marriage Laws (Amendment) Act 1976
 The Power to rescind though available under
SEC.10(2) must be exercised with circumspection
only to achieve the purpose of giving opportunity
to the parties for conciliation
The court may rescind the decree in the following


circumstances
(1) If the decree has been obtained ex parte


 In such case, by showing reasonable excuse for

 her or his absence, for his or alleged desertion
(2) If the parties had cohabited with each other,

 after the decree, or have come to terms with

 each other and have begun to live as husband
 and wife

(3) If the opposite party has condoned
the Offence
 (4) If the opposite party has satisfied

the court that he or she is

 willing to live as husband and wife
and is not going to do any such thing in
future on which judicial separation was
granted (Sec.23)
 (5) If the opposite party is cured of leprosy, or
venereal disease, or unsoundness of mind, in spite
of that the petitioner is not willing to resume
cohabitation(Sec.23)
 while awarding this relief the court must be
satisfied beyond reasonable doubt. There should
be strict inquiry into the matter

 Effects of judicial separation;-
 Marriage tie is not dissolved

 husband and wife are not bound to live

together or dine together

 It will not be obligatory for the parties to

cohabit
 It does not prevent the parties from subsequently
 resuming cohabitation and living together as husband
and wife
 If either spouse marries during the period he or she will be
guilty of bigamy and will be liable for punishment under
Sec.17 of the Act
 The petitioner, if she be the wife, becomes entitled to
alimony from the husband and if he is the husband he can
claim maintenance from wife under Sec.25 of H.M.Act
 From the date of decree till separation continues considered
as ‘” independent woman”’
 Mutual rights and obligations arising from the marriage are suspended,
 rights and duties under the decree are substituted.
 Cases

Sec. 10 Judicial Separation HM ACT 1955

 Intention to be cruel immaterial

 Case; P.L. Sayal Vs. Sarala Rani, AIR 1961 Punj,125 (Sec.11 H M Act 1955
Sec.10 and Sec. 12 H M Act 1955
Does mental cruelty include sexual weakness/ and is delay of 13 years for filing a
petition for annulment on ground of husband’s impotency fatal to the case

Case Rita Nijhawan Vs Balakrishna Nijhwan AIR 1973 Del.200

 Maintenance Claim

Can a court in a collateral procedings for maintenance hold a marriage void and deny wife’s

claim without there being any decree of nullity in respect of the marriage
  Case: Deoki Panjhiyara Vs. Shashi Bhushan Naryan Azad AIR 2013 Sc 346)


  
Nullity of Marriage and divorce (Sec.11)

 Sec.11 provides
 the marriages which can be declared as Nullity of
Marriages
 If the essential conditions laid down under Sec. 5
Of H.M.Act are not followed, such a marriage
becomes null and void
 Exception :-Sec. 11 is not applicable to
marriages solemnized before H.M.Act,1955 Came
into effect.
 A marriage which violates any of the
following
 Sec.5(1) If any party has a spouse living

 Sec.5(iv) Parties are within the prohibited

degrees
 Sec.5(v) If the parties are sapindas is void

ipso jure/. The parties need not ask for a

declaration from the court
 In M.M. Malhotra Vs. Union of India
 AIR 2006 S C 80
 Apex Court observed
 marriages covered by Sec.11 are void ipso jure.,
void from the very inception and have to be
ignored as not existing at all. A void marriage
does not alter or affect the status of the parties
nor does it create any rights
Voidable Marriage (Sec.12)
 Sec.12 read with Sec.5 of the Hindu Marriage Act
Narrates the provisions about nullity of marriage
in case of voidable marriages
 Under Sec.12(1)
 A marriage solemnized, whether before or after
the commencement of the Act, shall be voidable and
be declared as nullity on any of the following
grounds
 (a) marriage has not been consummated owing to
 Impotency
 Very object of marriage is to give the
legal relationship to the couple to have sexual
intercourse
 Sec.12(1) makes the impotency as

disqualification and makes such marriage void.

In such cases the aggrieved party can approach
the court for nullity of marriage
 As a general rule when a marriage is sought to be annulled
on the ground of impotency, medical examination of the
parties is essential
 Before the Marriage Laws ( Amendment) Act 1976
 It was necessary that the respondent was impotent at
the time of the marriage and continued to be so until the
institution of the proceedings
 BY Virtue of 1976 Amendment, No decree for
annulment can be granted ,if the marriage is subsequently
capable of consummation, due to surgical operation or
otherwise
 Cases
 Moina Vs. Amardeep, AIR 1976 Del. 399
 Delhi High Court held that Under. Cl.(a) of Sec.12(1)
petitioner would be entitled to a decree of nullity of
marriage , if the marriage was not consummated due to
the impotency of the respondent
 D. Balakrishna Vs. Pavala mani AIR 2001 Mad.147
 Madras High Court held that where impotency was proved
by medical evidence and the marriage had not been
consummated, the marriage voidable under Sec.12(1) of
H.M.Act
Sec.12(1)(b) Unsound mind


 Under English law a person of

unsoundmind is not capable of giving

consent, marriage of such a person is
void ab initio.
 According to Hindu law marriage of

such person is not void, it is voidable

 in Rajeswari Misra Vs. Sidharta Pandit
 AIR 2010 Ori. 41
Petitioner Husband filed a petition for annulment of
marriage on the ground that at the time of marriage wife
suffering from recurring attacks of epilepsy
 Court Held that, when suit came for judgment the

ground of epilepsy was no longer available as the ground

of annulment.
But the court observed that the husband was entitled to

decree for annulment of marriage because he had filed

the suit prior to such amendment
 (C) Consent obtained by force or fraud
Sec.12(1)(c)
 Any marriage solemnized shall be voidable and
may be annulled by a Decree nullity on the ground
that the consent of
 the petitioner ; or
 the guardian, in the case of child marriage before
 the Child Marriage Restraint (Amendment)
Act 1978 has been obtained by force or fraud
 In Perminder Charan Singh Vs. Harjit Kaur
 AIR 2003 S C 2310
 Initiation of marriage by the husband through the matrimonial
columns
 Bride’s father submitted brides bio-date and her status as “’legally
divorced”’
 Mother of the bridegroom in her reply mentioned
 that the bridegroom was “’ also “’ legally divorced
 The evidence on record show that both the bridegroom and his
mother are aware of the Bride’s status
 S.c held that there was no evidence of fraud on the part of the
wife or her father in bringing out the marriage
 (d) Pregnancy at the time of Marriage Sec.12(1)(d)
 Supreme court
 in Mahendra Vs. Shushila
 AIR 1965 sc 364
 a baby was born to Sushila after 171 days from the date of
marriage. The child was fully developed healthy child. There
was no evidence of their meeting before the marriage.
 The court held that the husband was held entitled to the
decree of nullity

 Cases Can a husband be directed by the court to undergo a
medical test to refute the wife’s charge of impotency
 Cae Amol Chavhan Vs Jyothi Chauhan. AIR 2012 MP 61
 Husband avoiding wife on pre-texts- marriage not consummated
-- wife entitled to a decree on grounds of impotency
 Case Raman Aggarwal Vs. Shweta Aggarwal, AIR 2014
Del. 105
  
 Sec.12(1)(a) H M ACT
 Impotency per se does render marriage a nullity
 Case Ram Devi Vs Raja Ram, AIR 1963 All 564
 Sec.12(1) (a) Impotency
 Under this clause the petitioner’s own impotency is not a ground for
nullity for marriage. H must also establish the impotency of the other
party to the marriage
 Case Digvijay Singh Vs. Pratap Kumari AIR 1970 Sc 167
 Sec.12(1)© Hindu Marriage Act
 Mis-representation as to age and qualification amounts to fraud or not
 Case Vidyut Kumar Verma Vs. Manju AIR 2011 Pat.110
 Sec.12(1)(d) H M Act
 Pre-Marriage pregnancy by another person
 Case Sushil Kumar Vs Minto Kumar, AIR 2012 Raj. 1
  
 Sec.12 (1) (d) Pregnancy of wife at the time of marriage
 Case Mahendra Vs Sushila Bai AIR 1965 SC 364
 Case Baldev Raj Miglani Vs. Smmt. Urmila Kumari, AIR 1979 SC 879
 Sec.12(2)(a)(i) H.M. Act
 Application for annulment of marriage on ground of fraud has to be made
within a period of one year since the discovery of fraud. Could the court
condoned the delay
 Case Rameshwar Vs Neelam, AIR 2012 Raj.90
  
 Marriage of an Adult with a female below eighteen -- Voidable Male
contacting such marriage not entitled to her custody
 Case: T Sivakumar Vs. Inspector of Police Thiruvallur Town Police
Station AIR 2012 Mad.62
Divorce - Introduction
Except in the Institution of Hindu Marriage ,
All most all the remaining religious marriage institutions have
Divorce system
Ancient Hindus did not know the term “’Divorce”’
In the Good olden days, the Husband and the wife lived
together until their death
The Institution of marriage under Hindu Law is
A Sacrament being based upon a Sacred religious
ceremony.
Even after the death of Husband the wife would not remarry
where as after the death of the wife husband used to remarry
 Even there were no customs of divorce .
This system continued for a long period
 The Divorce system has been incorporated in the
H.M.ACT by the Indian Parliament Following the
English Common Law
 Therefore, the concept of Divorce is new to Hindu
law
 Even today the percentage of divorces in the Hindu
Marriages is very less comparing with western
Marriages.
 This is the Greatness of Hindu Marriage System.
 Sec. 9 to Sec. 13 of H.M. Act, 1955 provide for Matrimonial reliefs
 Divorce enunciated in Sec.13 has been amended by several times to
meet the changing social conditions and economic conditions of Hindu
Society.
 It was amended in 1964 by the Hindu Marriage (Amendment ) Act 1964
 Drastic change was made in the year 1976 by the Hindu Marriage (
Amendment) Act

OBJECT
 To put full stop to the conflicts between the parties and to end the
marriage. The Decree of Divorce allows each of them to remarry with
other parties
 ‘ Thus DIVORCE breaks away the MARRIAGE tie between the wife
and Husband, and thus leads to live peacefully
Divorce Sec. 13
 H.M.Act 1955 has introduced vital and dynamic
 Changes in the institution of Hindu Marriage., i.e.,
Divorce. It has laid down clear provisions for
Divorce
 It is dealt with in Sec.13,13-B, 14 and 15 of the Act
 Sec.13 provides the circumstances in which the
 right accrues

 Sec.14 Limits the right. It says that a
petition
 divorce may not be made with in one year

of the date of marriage

 Except when the case is exceptionally

hardship to the petitioner, or

 of exceptionally depravity to the

respondent
Divorce ( Contd......)
 Sec.15 Lays down the limitations on the right of the
divorced persons to marry again
 MARRIAGE Laws (Amendment) Act 1976 has
Introduced the following Changes in the law of Divorce
 (i) adultery has been made simple. Single act of
 adultery may constitute a ground for divorce
 Sec.13(1)(i)
 ( ii)Cruelty, and desertion which were the grounds
 Judl. Separation, have been made the grounds for
 Divorce Sec.13(1) (i-a) and (i-b)
Divorce ( Contd...)
 (iii) Minimum period of filing a petition for
leprosy, and venereal disease has been omitted
Sec.13(i), (iv) and (v)
 (iv) The court has been given the power to exercise
it’’s discretion in petitions of divorce, to grant
an alternative relief under certain conditions
(Sec.13-A)
 (v) A vital change has been introduced by
providing divorce by mutual consent. By
this the sacramental character of Hindu
marriage has been affected (Sec.13-B)
 (vi) parties can obtain divorce by presenting

a petition after one year



(A) Grounds available to both Husband and

wife
 (i) Adultery (Sec.13 (1)(i)
If any of the parties to the marriage has sexual


contracts with any other person, other than

his or her spouse, is a good ground for
obtaining divorce
 In Bipin Chandra Vs. Prabhavathi



 AIR 1967 SC 1760
 Bipin chandra married Prabhavathi . A son
was born to the couple
 In 1946 One Mahendra, a retired Army man, a
friend of the family came to their house and resided
for some months. In 1947 Bipin chandra went to
England. Bipin’s father found a letter said to have
been written by Prabhavathi to Mahendra about
illicit contact. Bipin “’s father handed over the letter
to Bipin after his return. When he asked his wife
she could not tell . Husand entitled for divorce
Divorce contd.....
 To constitute a ground for divorce sexual inter course
complained must have taken place after the
solemnization of marriage with the petitioner’
 Pre-marriage unchastity of the wife or
 Pre- marriage sexual relation of the husband with
some other woman is not a ground of divorce
 (2) Cruelty
 Cruelty has become a ground of divorce after the
Marriage laws (Amendment) Act 1976

Divorce Contd......
 Cruelty was defined for the first time in
 RUSSEL Vs. RUSSEL (1897) AC 395
 House of Lords Observed
 to constitute cruelty there must be
 danger to life or injury to health,
 bodily or mental
 or reasonable apprehension of it.
 However this definition is not valid in the

present Hindu law

 Cruelty for the purpose of this Act, means
Where one spouse has so treated the other

and manifested such feelings towards her or

him as to have inflicted bodily injury,
or to have caused reasonable apprehension

of bodily injury, suffering or to have

injured health
Divorce
 It may be physical or mental
 Mental cruelty is the conduct of the other spouse
which causes mental suffering or fear to the
matrimonial life of the other
 It postulates a treatment of the petitioner with
such cruelty as to cause a reasonable
apprehension in his or her mind
 that it would be harmful or injurious for the
petitioner to live with the other spouse
Divorce
 In Dastane Vs. Dastane AIR 1975 SC 1536
 Dastane married in the year 1957. Three children were born .
His wife behaved enemically
 Her conduct caused annoyance and untolerable
 He filed a case for divorce alleging that his wife behaved with him
cruelly.
 She cut the mangalsuthra
 locking out the doors when he is about to return from his office
 ,rubbing chilly powder on the tongue of an infant child beating a
child while in high fever
 Were some of the instances explained to the court
 The trail court and the High courts gave judgments in favour
of the wife
 Supreme court observed that English decisions on Cruelty
may not always be a safe guide to the Indian social
structure.
 English law requires danger to life, limb or health
 But Sec10(1)(b)
 Laid down a lower requirement namely reasonable
apprehension that it is harmful or injurious for one spouse
to live with the other.
 SC gave judgment in favour of Mr. Dastane
Unfounded Allegations


 In dharm Pal Vs. Pushpa Devi

AIR 2006 P&H 59

 Husband tortured the wife,She left the matrimonial

house ,Husband filed a petition for restitution ,Wife

proved that he tortured her with unfounded
allegation of illicit contracts and claimed divorce
High Court held that unfounded allegations of illicit

contacts would be treated as mental agony and

cruelty
 Samar Ghosh V Jaya Ghosh
 2007. 4 SCC 511
 Supreme court held that the question was not of
cooking food, but the wife’s cooking food only
for herself and not for the husband would be a
clear instance of causing annoyance which may
lead to mental cruelty
 Legal cruelty justifying JUDICIAL
SEPARATION OR DIVORCE:
 (a Actual or threatened physical violence
 (b) Verbal abuses and insults
 (c) Excessive sexual intercourse
 (d) Refusal of intercourse
 (e) Neglect
 (f) Communication of V.D
 (g Drunkenness and use of drugs
 (h) Forcing association with improper persons
 (i) False charges of immorality
 (J) illtreatment of children
 (k) Wife suffering from deadly disease
 Mere suspicion without any open act cannot amount
cruelty
 (3)Desertion Sec.. 13 (1)(1-b)
 If the petitioner has been deserted continuously for a
period not less than two years immediately preceding
the presentation of the petition for
 judicial separation or divorce,
 Such petition may be granted
 The essence of desertion is abandonment of one of the
spouses by the other
 For the offence of desertion 2 conditions must be
proved so far as deserting spouse is concerned
 (a) Factum of separation
 (b) intention to bring cohabitation permanent
to an end (animus deserendi)
 So far as deserted spouse is concerned
 (a) absence of consent
 (b) Absence of conduct giving reasonable cause to the
spouse leaving the matrimonial home
 To form the necessary intention
 Desertion is of two types
 Actual desertion
 (a) spouses must have parted or terminated all joint-
living
 (b) Deserting spouse must have the intention to
 desert the other
 (c)Deserted spouse must not have agreed to
 (d) without reasonable excuse
 (e) this situation must have continued for 2 years
 In Lachman Vs. Meena, 1964 Sc 40
 Wife was required to live with joint family
 She left the matrimonial home after 5 years from
the marriage
 She went to South East Asia
 Husband wrote letters to return.
 She replied that she would to return in her letters
when her health would permit her.
 Her offer to return was not sincere and no
intention to return
 Sc held; besides the factum of separation

there was also animus at the time when she

left husband’s house and it continued for the
period of 2 years before the presentation of
the petition.
 She was guilty of desertion
 In Adhyaatmam Bhamini Vs Jagadish Ambalal Shah
 AIR 1997 Sc 1180
 where the wife being confronted with the divorce
proceedings against her and
 though present in the court, but had not made any
enquiry, as to the orders passed against her
 S.C held that she had allowed proceedings to go ex-parte
against her deliberately remaining absent. Animus of
permanent desertion was evident.
 Apex court Upheld the decree passed by the Family court
and Bombay High Court
Durga Prasanna Tripathy Vs. Arundhati Tripathy


 AIR 2005 SC 3297

Petition by the husband on the ground of desertion

Wife deserted the husband after 7 months of



 marriage
Parties were living separately for 14 years


Wife was not prepared to lead conjugal life with



 the husband
Attempts were made by husband and
his relatives . No chance getting back
her
 Sc Held good part of the life of both

the parties was over in litigation. No

chances for reconciliation.
 Apex Court held that there is

irretrievable break-down of marriage

 Desertion
 Constructive Karnataka High Court
 In Dr Srikanth Rangaharya Vs. Smt. Anuradha
 AIR 1980 Karn. 8
 Wilful neglect by one spouse to the other
 would come within the meaning of desertion
 (4)Conversion (Sec.13(1)(ii) ) It is one of the grounds for
Divorce’. Conversion to another religion is now a ground
for a decree for judicial separation after the Marriage
Laws ( Amendment ) Act, 1976
 A decree for divorce can be obtained by a petitioner
where the opposite party has ceased to be a Hindu by
conversion
 Sarala Mudgal Vs. Union of India
 AIR 1995 SC 1531
 Lily Thomas Vs. Union of India
 AIR 2000 SC 1650
 (E) Mental Disorder Sec13 (1)(iii)
 (F) Leprosy SEC.13(1)(iv)
(g)Venereal Disease Sec.13(1)(v)
(h)Renunciation of the world Sec. 13(1)(vi)

(i) Not heard for seven years (Sec.13(1)(vii)

(J)Decree for judicial seperation-After one year

 Sec13(1-A)(i)
(k)Restitution of conjugal rights after one year

Sec.13(1-A)(ii)
Case
O.P. Mehta Vs Smt. Saroj Mehta AIR 1984
Del.159
 After the restitution decree, he filed a petition

for divorce decree after four and half months on

the ground of wife’s adultery.
 Later on after a year

 He brought another petition for divorce on the

ground that wife has not complied with the decree

for restitution for a period of one year

 wife resisted the petition on the ground that
the husband deliberately brought a petition
after four and half months of the decree of
restitution falsely imputing adultery thus
made it impossible to comply with the decree
 Court refused to pass the decree on the ground that during
the pendency of the petition for divorce on the ground of
wife’s adultery, the wife was disabled to join her husband if
the decree of divorce were to be passed in his favour,
 it would amount to husband taking advantage of his own
 GROUNDS AVAILABLE TO WIFE ONLY
(Sec.13(2))
 Special grounds of divorce available to wife alone:
 (i) Bigamy Sec.13(2)(1) If another wife was living before
the commencement of this Act
 (ii) Rape, Sodomy or Bestiality Sec.13(2)(ii)
 (iii) Non resumption of cohabitation order for one year
or upwards after the passing of maintenance order under
Sec.18 H.A and Maintenance Act 1956, or under Sec.125
Cr.P.C Sec.13(2) (iii)
 (IV) Repudiation of MarriageSec.13(2)(iv) This clause
has been added by The Marriage Laws (Amendment) Act
of 1976. Under this clause a wife whose marriage was
solemnized before she attained 15 can repudiate the
marriage after attaining 15 years but before attaining18
years
 Alternate relief in divorce proceeding Sec.13(a)
The courts may, while dealing with the petition for
divorce, have discretion to grant judicial separation
 But the courts cannot exercise this power

 (a) Where the respondent has ceased to be a

Hindu
 (b) renounced the world

 (c) has not been heard of as being alive for a

 period of 7 years or more.

DIVOCE BY MUTUAL
CONSENT
 Sec.13-B Divorce by mutual consent
 . There was no provision for divorce by mutual
consent in 1955 ACT
 Divorce puts an end to the marital relations
 petition for divorce may be filed by any on of the
spouses to the District Court on any one of the
grounds given Under Sec.13’.
 Some times both the spouses may decide to
separate amicably. Such understanding will come
under Divorce by mutual consent.
 Necessary Conditions
 Divorce by mutual Consent was incorporated in Sec.13-B by the Hindu
Marriage (Amendment) Act 1976
 Necessary conditions
(a) petition for divorce to be presented by both the parties to the marriage
to the District Court
(b) Parties should have been living separately for a period of one year or
more
(c) Parties could not adjust and not been able to live together
(d) Mutual consent to dissolve the marriage
(e) Parties must apply to the District court

(f) not earlier than six months of the presentation of the petition and
(g) not later than 18 months after that date
 In Sureshtra Devi Vs. OM Prakash
AIR 1992 SC 1940
 Wife stated that her consent was obtained under pressure and
threat. She was even not allowed to see or consult her relatives
before filing the petition.
 SC held that a party to the petition for divorce by mutual
consent, can unilaterally withdraw his consent at any time till
passing of the decree.
 If in a subsequent motion seeking divorce under sub-section (2) is
not of both,
 because of the withdrawal of consent by one of the parties, the
court gets no jurisdiction
 Supreme court has reviewed the previous case
 In ‘Ashok Hurra Vs. Rupa Bipin Zaveri
 AIR 1997 SC 1266
 It was observed that the
 question of withdrawal of consent pending the case of divorce is
open to be withdrawn any time till the decree is passed.
 Here consent not withdrawn within 18 months
 Civil and criminal proceedings were drawn against each. Husband
married and begot a child
 Circumstances warranted for exercise of jurisdiction
 Under 142 of I.C and granted divorce by awarding 2 lakhs to the
wife, as a condition precedent to the decree
 Punjab & Haryana High court
 In Charanjeet Mannu Vs Neelam Mannu
 AIR 2006 P & H 201
 court should not decree for divorce before 6 months
of time from the date of filing petition which is
mandatory .
 It cannot be waived off on the ground that the parties
have already litigated for more than 6 months in the
past and no useful purpose would be served by
keeping the petition pending for lapse of 6 months
 Punjab High Court
 In Sweta Garg Vs. Rajat Goyal
 AIR 2009 Bom
 Observed that the waiting period of 6 can be waived on concession of
both the parties
 But Supreme Court
 In Smt. Poonam Vs Sumit Tanwar A I R 2010 SC 1384
 If the application was disposed off by the family court to direct the
parties to wait for statutory period of six months, but the parties filed
the petition for issuance of direction to waive the statutory period, the
court observed that, the petition has been filed without any sense of
responsibility either by the parties or by the counsel. Such practice is
tantamount to not only disservice to the institution, but it is also
adversely affects the admn. Of justice and is liable to be dismissed
 PETITION FOR divorce SEC.14

Prior to the MARRIAGE Laws



(Amendment) Act 1976

 No court could entertain a petition for

divorce before the expirations of 3

years from the date of marriage
 But the aforesaid Amendment

reduced the period to one year


But the court could do so before the expiry period
 (a) In cases of exceptional hardship to the
 petitioner
(b) Exceptional depravity of the respondent

Discretionary Power
To dismiss the main petition; or
to postpone the operation of the decree
for one year from the date of marriage,
if it transpires that the leave has been obtained by
misrepresentation or concealment of the facts
 Object Of Sec.14
 Sec.14 provides restrictions presumably designed to prevent
party recourse to legal proceedings before the parties have
made real effort to save their marriage from disaster
 General Principles of exceptional hardship or
 exceptional depravity
 Madras High Court in Meganatha Nayyar Vs. Smt.
Susheela AIR 1957 Mad. 23 held
 it is for the judge who hears the application to say whether in
the circumstances a prima facie case of exceptional
hardship or depravity has been made out
 His Lordships referred to an English decision,
 BOWMEN Vs. BOWMEN 1949 2 All. E.R. 127
 observed that this case gave some guidance
 in considering what could be treated as exceptional hardship or
exceptional depravity by laying down
 the following general principles:
 (1) Adultery with one person is not exceptional
 depravity
 (2) Adultery plus desertion by the husband in favour
 of another woman plus cruelty to his wife
 constitutes exceptional hardship to the wife
 (3)Apart from adultery with another matrimonial offence, the
consequences of adultery may cause exceptional hardship ,when
a wife has a child by adultery
 Exceptional Depravity
 (4) If a husband commits adultery within a few weeks of his
marriage, or promiscuously with his wife’s sister, or a servant in
the home,
 that may be held to be exceptional depravity
 (5) Cruelty coupled with aggravating circumstances ., i.e.,
drunkenness and neglect may be exceptional hardship on the
aggrieved spouse or if coupled with perverted lust exceptional
depravity by the proposed respondent
 (6) Husband’’s adultery promiscuously with other
women
 Sec.14(2) The court shall have
 regard to the interests of any children of the marriage
and
 to the question
 whether there is a reasonable probability of a
reconciliation between the parties before the expiration
of the said one year
 Divorced persons when remarry Sec.15

 SEC .15 SAY THAT THE DIVORCED

PERSONS MAY MARRY AGAIN IN THE
conditions:
 (1) when the marriage has been dissolved and
 there is no right of appeal against the decree
 (2) If there is right of appeal but the time has
 expired, without filing appeal
 (3) An appeal has been filed but has been
 dismissed
Differences between Judicial Separation and Divorce

Judicial Separation (Section 10) Divorce (Section 13 )

 It suspends the rights  It puts an end

and duties for some time
 Object is the hope of
 To give the last resort
Adjustment
 It is Lesser remedy
 It is a drastic remedy
Differences between Judicial Separation and Divorce
(Contd...)

Judicial Separation (Section 10) Divorce (Section 13 )

 By decree, parties  Parties are entitled to

cannot remarry get another marriage of
another person their choice

 After J.S, the wife

 Divorced woman cannot
file for maintenance
can file and succeed
under HAM act but she
for maintenance
can file for maintenance
under Sec.125 CrPC
Legitimacy of children of Void and voidable
marriages Sec. 16

 Sec. 16 deals with the position of

 child born out of a void and voidable marriages

Sec. 16(1)
children born out of a void marriage under Sec11,
regardless of whether any decree of nullity of
marriage has been granted in any proceeding
under the Act or otherwise is protected and
considered as legitimate
 In Bhagadi Kanna Babu Vs. Vuggina
pydamma
 AIR 2006 SC 2403
 Deceased died leaving his first wife and
daughter born of a second marriage
 SC held that the daughter of the second marriage

is entitled to inherit the property of the

deceased being legitimate child of the deceased
along with the first wife
 Sec.16(2)
 Children born out of Voidable Marriage
 A child of voidable marriage would be legitimate. A
voidable marriage can only be challenged
 at the instance of either party to the marriage.
 It cannot be challenged after the death of one of the parties.
 Hence the issue of such marriage would be legitimate
Board of Trustees Of V.P.T Vs. Presiding Officer 2000
(5) ALT 577
Facts
 ‘ A’ was an employee of V.P.T. ‘ A’ married‘B’ to whom
no children were born. Then ‘A’ married ‘C’ and got a
daughter, later ‘A’ died leaving behind Ist wife ‘B’, daughter
through second marriage, and ‘C’ , second wife.
 Here ‘B’ and ‘C’ consented to share the retirement
benefitsequally before the Lok Adalat and
 Job offered by the VPT on compassionate grounds shall be
given to the daughter
 V.P.T rejects the appointment on compassionate grounds to
the daughter, on the ground that
 she is not a legitimate daughter
 High Court held that the Board of Trustees of
V.P.T. Has no authority to decide the legality or
illegality of child of the employee,
 when once it was decided by Lok Adalat and the
decision is equal to the Decree of a Civil Court
and the child born out of second marriage
becomes legitimate Under section.16 of
H.M.Act,1955.
 Therefore the objections of the Board are not valid
 Status of the children born out of Void and
Voidable Marriages Sec.16(3)
 The children of born out of void and voidable
 marriages have the status of legitimate children
 and inherit the property of their parents only
Punishment for bigamy Sec17
 Sec.17
 (1) If the marriage is solemnised after the ACT
1955Came into force
 (2) at the time of marriage either party has a
 spouse living
 Once the ceremonies are proved to have been
performed, the marriage becomes properly solemnised and
if contacted, while the first marriage is still subsisting,
then the provisions of Sec.494 I.P.C will be applicable



Punishment for contravention of Certain conditons Of Hindu Marriage Sec.18
I

 SEC.18
 that marriage solemnized in contravention of
 (a) age of parties to marriage Sec.5(iii)
 (b)Prohibited degrees of marriage Sec.5(iv)
 (c) sapinda relationship. Sec.5(v)

 In case of (iii) of Sec.5

 ,Simple Imprisonment of 15 days or fine Rs.1000 or both


 In case of (iv) & (v) of Sec.5:

 Simple Imprisonment of One month, Fine Rs.1000
 or both-
Jurisdiction of courts to decree and grant relief
Sec.19

Sec.19 says that

 every petition under this Act shall be presented to the

District Court,with in the local limits of whose Ordinary

Original Civil jurisdiction
(i) the marriage is solemnised

(ii) the respondent resided, at the time of filing petition

(iii) Parties last resided

(iii-a) in case wife is the petitioner,

where she is residing on the date of presentation of

petition
 (iv) petitioner is residing at the time of
filing the petition, in case where the
respondent is residing outside the territories
to which this Act extends
 Or

 has not been heard of as being alive for 7

years or more by those who would naturally

have heard of him, if he were alive
 By virtue of Marriage Laws(Amendment) Act 1976
 , authorises the filing of petitions in the courts within
whose jurisdiction the respondent is residing
 Here District Court Means
 City Civil Court
 Principal Civil Court of Original Jurisdiction
 Includes
 any other Civil Court Which may be specified by
Gazette notification, by the State
 For the purpose of jurisdiction
 Resides means
 a place where a spouse has made his or her
 permanent place of living.
 It must be a place
 where the spouses intend to live generally and permanently
 Where the spouses were living at different places due to
employment Visit by one spouse to the other’s place amount to
 ‘’reside’’ at such places
Contents verification (sec.20)
 Sec.20
 Petition presented under this Act shall state the
facts on which the claim to relief is founded
 And there is no collusion between the petitioner
and the other party to the marriage
 The statements of the petition shall be verified
by the petitioner or some other competent person
Application of Civil Procedure Code

Sec.21 All the proceedings under this Act shall be



regulated By the C.P.C

Sec.21-A Power to transfer petitions in certain cases

This section was introduced by the marriage Laws



(Amendment) Act 1976

 Where various petitions have been presented by the

parties to a marriage praying for a decree either of

judicial separation or of divorce,
whether in the same District Court or in the different

District courts, in the same State _

 The Following rules shall be followed
(a) If the petitions are filed in the same Dist. Court

the petitions shall be tried and heard by the same court

 (b) If the petitions are presented to the different

District courts,
 the petition presented later shall be transferred to
the District court in which the earlier petition presented
both shall be heard and disposed of together by the

District court in which earlier petition was presented

 Trial And disposal of petitions ( Sec.21-B)
 This Section has been added by 1976
Amendment. The section is added with a view to
expedite the trial made under this Act
 Trial is required to continue the matrimonial
 proceedings from day to day till it’s conclusion

 In case of adjournments, it should record reasons.

 Trial should be concluded as expeditiously as possible
within 6 months from the date of service of notice to the
respondent
 Appeal proceedings to be completed within 3 months
from the date of service of appeal notice on the respondent
 Documentary evidence ( Sec.21-C) Inserted by

Marriage Laws (Amendment )Act 1976

 No document shall be inadmisable in evidence in any

proceeding at the trail of a petition on the ground that it is

not duly stamped or registered
 Proceedings in camera may not be printed or published
(Sec.22)
 This rule is enacted so that reports of judicial proceedings relating
to matrimonial disputes may not produce an unhealthy influence
on the public.
 Every proceeding under this Act shall be conducted in CAMERA
. It shall not be lawful for any person to print or publish any
matter in relation to any such proceeding
 Except a judgment of a High Court or Supreme court,
 or with permission of the court
 If any person prints publishes in contravention, he shall be
punishable with fine Rs.1,000
Decree in Proceedings Sec.23
 Sec.23 (1) Rules and conditions for the guidance of the
court.
 Upon the satisfaction of the conditions
 the court may pass decree,
 whether defended or not.
 Under Sub-Sec.(2) Before granting a Decree,
 the court has a duty to make every endeavour in the
first instance to bring about reconciliation in every
case, where it is possible,
 .
 If the proceeding under Sec.23(2) has not been
followed by the trial court, the same can be
followed by the Appellate court.
 That does not mean the same can be ignored
 The very object of this provision is to bring
harmony between the parties, in order to bring
stability in the status of marriage
 Corroboration
 In matrimonial proceedings ground for Matrimonial cause must be strictly
proved. The court must be satisfied beyond all reasonable doubts, that the
ground for relief is proved.
 Evidence of spouse must be corroborated.

 But nothing to prevent the court from passing a decree even on

uncorroborated testimony, where the facts otherwise justify

In Bipin Chandra Vs. Prabhavathi, 1956 SCR 838

SC held
that though corroboration is not required as an absolute rule of law
in proof matrimonial offence, the court will insists upon corroborative
evidence as a precaution, unless it’s absence is accounted for, to the
satisfaction of the court
Court cannot pass Ex Parte Decree

 Courts cannot pass Ex Parte decrees in

Matrimonial suits
The court remains under the obligation to
satisfy itself that there is sufficient legal evidence to
support the decree and record the evidence.
 As a rule should not decide a case on mere
admissions of the parties, without recording evidence
 The court must take into account the following
conditions before passing decree:
:-


 (a) Not taking advantage of his or wrong

Sec.23(1) (a)
 Court before granting relief should be

fully satisfied that some established

ground of relief exists and
the petitioner is not in any way taking

advantage of his or her wrong

 In Meera Bai Vs. Rajinder Kumar Sabti
 AIR 1986 Del.136
Husband contracted second marriage and he allowed an ex parte

decree for restitution of conjugal rights to be passed against him.

Neither he cared for first wife nor his children nor paid maintenance.

He filed a petition against his first wife for dissolution of marriage

under Sec13(1-A) for failure to comply with restitution for a period of one
year
 Court held that it would amount to taking advantage of his own wrong

Exception

This point is not applicable where a petition is filed for nullity of

marriage on the ground of unsoundness of mind of the other party to

the marriage
 (b) Absence of Connivance and condonation
 Sec.23(1)(b)
 There should not be any connivance with the respondent or
 the petitioner should not have condoned the acts of the respondent

 Supreme Court in Dastane Vs. Dastane AIR 1975, 1534

 (Case of Judicial Separation)
 accepted the contention of the petitioner that he was subjected to
inexcusable cruelty by his wife and the contents of cruelty were
sufficient to establish a case for judicial separation,
 yet the remedy was refused on the ground that the petitioner has
condoned the offence
Consent given for petition of divorce by MUTUAL
CONSENT should not be by fruad, force or undue
influence
Sec 23.(1)(bb)


(c) Absence of Collusion Sec.23(1)(c)



(d) no unreasonable delay Sec.23 (1)(d)



In Jyoti chandra Vs. Meera AIR 1970 Cal..206

wife filed a petition after delay of 21 months

Explanation of delay due to sister’s marriage,

Had she filed the petition, it would
have brought a bad reputation and for
finalisation of her sister’s marriage
Hence she preferred to file after the

marriage
Court held that the explanation was

held to be justified
 Absence of legal bar Sec.23(1)(e)
 Amendment Act of 1976 has cast a duty on the
courts to make an endeavour to bring about
reconciliation. In such procedure
 if the parties desire or if the court thinks fit, it may
adjourn for a period of not more than 15 days..
 It may refer the matter to a person , either named
by the parties or by the court with a direction to
report to the court about conciliation
Maintenance pendente lite and expenses of proceedings
( Sec.24)
The provision of maintenance and pendente lite

in favour of needy spouse applies irrespective of whether

such spouse appeared as the initiator of the main

proceeding or not
Once an order is passed, no matter what happens to the

petitioner there after. The liability to pay maintenance

and expenses of the litigation in respect of period during
which the proceedings were pending cannot be avoided
Application for such expenses of the
proceeding and the monthly sum during the
proceedings shall be disposed off within 60
days from the date of service of notice to
wife or husband
Maintenance would be effective from the

date of Service of Summons in the main

petition
 Exceptions in the following conditions there is no
duty cast upon the court:-
 In the case of a petition for divorce on the ground of
Conversion, unsoundness of mind, V.D . incurable
leprosy, renunciation of the world or unavailability
of one of the parties
 Under Sec.23(A), by virtue of Marriage Laws
(Amendment) Act, 1976, the court may grant relief,
if the petition’s adultery, cruelty, or desertion is
proved , in divorce, judicial separation
 Who May Apply
 The High courts of Bombay in
 Kamala Devi Vs. Sharma Rupchand and others AIR 1958
Bom.466,
 Mysore High Court in Nagappa Vs. Vimala Devi, AIR
1957 Mrs.44 and
 Punjab High Court in Rameshwarnath Vs. Kanta devi AIR
1957 Punj.85 have clearly held that the words petitioner and
respondent in Sec.24 mean respectively, the party who had
made the application under this section and the person
opposing the application or against whom the claim is made
 Object and Scope of Sec.24 is
 To ensure that a party to a proceeding does not suffer
during the pendency of the proceedings by reason of
his or her poverty
 in Chitralekha Vs. Ranjit Rai AIR 1977 Del.176
 laid down that the object behind Sec.24 is to provide
financial assistance to the indigent spouse to
maintain herself or himself during the pendency of
the proceedings and also to have sufficient funds to
defend or to carry on the litigation
 Maintenance for children also
 In Jasbir Kaur Sehgal Vs. Dist. Judge,Dehradun
 AIR 1997 SC 3397
 S.C held that Sec.24 cannot be given restricted meaning. The wife’s
claim to maintenance pendente lite would include her maintenance and
that of her daughter living with her.
 Supreme court by giving new dimensions to
 Sec.24 further observed that Sec.24 no doubt talks of maintenance of
wife during pendency of proceedings but this section cannot be read in
isolation
 And cannot be given restricted meaning to hold that it is the maintenance
of the wife and no one else.
 But Sec. 24 does not include educational expenses for an adult child
Permanent alimony and MainteanceSec.25

 Sec.25 Permanent alimony and maintenance

 the court has been empowered
 to direct the opposite party at the time of decree or
subsequently
 to pay maintenance to the petitioner. While ordering for
maintenance, it shall take into account the status of the
opposite party
 It can rescind or modify the order at subsequent stage ,if
the circumstances so warrant
 Ex- Unchaste or remarriage
 In Rameshchandra Rampratabji Daga
 Vs.
 Rameshwari R.C. Daga AIR 2005 SC 422
 Whether a woman re-married during the subsistence of her
first marriage can claim maintenance from her second husband
 SC. Bigamous marriage may be declared illegal, but it
cannot be said to be immoral so as to deny even the right of
alimony or maintenance to a spouse financially weak and
economically dependent
 The permanent alimony is maintainable in cases of divorce
and annulment , void and voidable marriages
 The court may rescind the maintenance alimony order in two
conditions:-
 (a) If the court thinks that there is a change of circumstances, at the
instance of either party, it may vary, modify or rescind any such order
Sec.25(2)
 (b) if the court is satisfied that the party in whose favour an order has
been made has re- married or
 if such party is wife, she has not remained chaste,
 If such party is husband he has had a sexual intercourse outside the
wedlock, it may vary, modify, or rescind such order Sec25(3)

 In such case the doctrine of estoppel, and res judicata cannot be

invoked
 Sec.26 Maintenance, custody, Edn., of Minor Children
 provided for interim orders from time to time as also for making
provisions in the decree
 with regard to
 custody , maintenance and education of minor children.
 Therefore Sec.26 empowers the court to provide for the maintenance
of minor children.
 It applies for both pendente lite, and also for after passing of the
decree.
 However the court must be cautious while passing the decree, with
regard to the facts and circumstances
 Disposal of property Sec.27
 This section empowers the court to make orders also for
disposal of property presented to the spouses at or about
the time of marriage
 IN Balakrishna Ramachandra Kadam
 Vs.
 Sangeetha Balakrishna Kadam
 AIR 1997 SC 3562
Sc Held that the property in Sec.27 is not limited to only that
property which is given to the wife at the time of the
marriage it also includes the property given to the parties
before or after marriage also, so long as it is relatable to the
 original civil jurisdiction
 Appeals from decree and orders (Sec.28)
 This section was substituted By Marriage Laws(Amendment )Act 1976
 Sec.28(1) All appeals shall be appealable
 as decrees of the court of Original Civil Jurisdiction.
 Every such appeal lies to the Court to which appeals ordinarily shall lie
Sec. 28(2) Orders made by the Court
Under Sec.25( Permt. Alimy) &
Sec.26 ( Mntc. . Of. Minr. childn)
are appealable, provided they are not interim orders.
 Appeals under Sec.28(2) shall be preferred Within 30 days
 from the date of decree or order.
 There shall be no appeal under this section ,only on the subject of cost
 Sec.28(3) No appeal under this section on the subject of
costs only
 Sec.28) (4) Appeal shall be preferred within a period of
90 days from the date of decree or order
 Enforcement of decrees and orders ( Sec.28-A)
 This was inserted by 1976 Amendment Act.
 All Decrees and orders shall be enforced as decrees of
the court of Original Civil Jurisdiction

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