Hindu marriage act 1955

section 1 to 13

1. Hindu Marriage Act, 1955 Section 1-13 Rachana K.Chawda

2. Hindu code bills The Hindu code bills were several laws passed in the 1950s that aimed to codify and reform Hindu personal law in India. Hindu Succession Act (1956), Hindu Minority and Guardianship Act (1956), Hindu Adoptions and Maintenance Act (1956).

3. he Hindu law of marriage, as the British rulers of India found, interpreted and applied, was, in a nutshell, as follows: (1) Marriage was a holy sanskar , it could be solemnised in one of the eight forms recognised by law; (2) The solemnisation would be according to the Shastric or customary rites; (3) One could marry at any age, as there was no lowest age of marriage; (4) Inter-religious and inter-caste marriages were prohibited, but the latter could be sanctioned by custom; (5) Marrying within one’s gotra or pravara was not allowed, except among the Shudras ; (6) Husband and wife would live together, the latter would be submit to the wishes of the former, and the former would maintain the latter; (7) Marriage was indissoluble; divorce was not permitted unless recognised by custom; (8) Death did not dissolve a marriage and therefore a widow could not remarry unless permitted by custom so to do. The courts in India recognized, interpreted and applied all these principles in their minute’s details. Changes brought about by the Hindu Marriage Act, 1955 The new Act has made radical and substantial changes in the institution of marriage.

4. Salient features of the Hindu Marriage Act, 1955 (1) A Hindu marriage is now not so much concerned with religion. It is more a result of mutual consent than sacramental [Sections 5(ii), (iii), 11 to 13 and 7]. (2) Marriages amongst Hindu, Jains , Sikhs and Buddhists are now valid Hindu marriages in the eyes of the law (Section 2). (3) As per Section 3 the divergence between the Mitakshara and Dayabhaga schools in connection with the expression “prohibited degrees of relationship” for the purpose of marriage is now removed. The strict rule prohibiting marriages within the limits of Sapinda relationship, as defined in the Smritis , have been considerably relaxed. Some new degrees of relationship have also been added. Thus one cannot now marry a person who was the wife of the brother of the other. (4) Monogamy amongst the Hindus is introduced for the first time by the Act. Bigamy is now punished under the Indian Penal Code. The conditions and requirements of a valid marriage are now very much simplified as is evident from the provisions of Sections 5 and 17 of the Act

5. (5) Caste considerations for inter-caste and inter-communal marriages have now been made irrelevant, eliminating all restrictions thereupon. (6) There were different kinds of marriages in vogue before the Act. Now they are of no consequence and the only form of marriage will be that accepted by the parties as prevailing in his or her community (Section 7). (7) The Act now makes no distinction between the marriage of a maiden and the marriage of a widow. (8) The ancient Hindu law did not prescribe any age for marriage but it is now a condition of marriage that the bridegroom must have completed 21 years and the bride must have completed the age of 18 years (Section 5). (9) The Act now lays down conditions of a valid marriage and does not recognise any particular form of a Hindu marriage (Section 5). (10) For a valid Hindu marriage no particular ceremony is prescribed by the Act. Sections 5 and 7 lay down that such a marriage can be solemnised in accordance with the customary rights and ceremonies of any one of the parties to the marriage. (11) Provision for registration of Hindu marriages has been provided for the first time (Section 8).

6. (12) Eliminating restrictions based on gotra , pravara and Sapinda relationship the Act makes provisions for judicial separation, for divorce and for annulment of marriages (Section 10 to 14). (13) Provisions for restitution of conjugal rights of the parties (Section 9). (14) After a valid divorce either party may remarry (Section 15). (15) Provisions for legitimacy of children born out of alliances which may be subsequently declared annulled or void or voidable (Section 16). (16) Provisions for maintenance pendente lite and for expenses of legal proceedings (Section 24). (17) Permanent alimony and maintenance (Section 25). The custody, maintenance and education of minor children during the pendency of legal proceedings as also after passing of decree (Section 26).

7. Hindu Marriage Act (1955) Sections Particulars Preliminary 1 Short title and extent 2 Application of Act 3 Definitions 4 Over-riding effect of Act Hindu Marriages 5 Conditions for a Hindu marriage 6 Guardianship in marriage 7 Ceremonies for a Hindu marriage 8 Registration of Hindu marriages Restitution Of Conjugal Rights And Judicial Separation 9 Restitution of conjugal rights 10 Judicial separation

8. Nullity Of Marriage And Divorce 11 Void marriages 12 Voidable marriages 13 Divorce 13A. Alternate relief in divorce proceedings 13B. Divorce by mutual consent 14 No petition for divorce to be presented within one years of marriage 15 Divorced persons when may marry again 16 Legitimacy of children of void and voidable, marriages 17 Punishment of bigamy 18 Punishment for contravention of certain other conditions for a Hindu marriage

9. Jurisdiction And Procedure 19 Court to which petition should be made 20 Contents and verification of petitions 21 Application of Act 5 of 1908 21A. Power to transfer petitions in certain cases 21B. Special provision relating to trial and disposal of petitions under the Act 21C. Documentary evidence 22 Proceedings may be in camera and may not be printed or published 23 Decree in proceedings 23A. Relief for respondent in divorce and other proceedings 24 Maintenance pendente lite and expenses of proceedings 25 Permanent alimony and maintenance 26 Custody of children 27 Disposal of property 28 Enforcement of, and appeal from, decrees and orders Savings And Repeals 29 Savings 30 Repeals

10. Marriage Laws (Amendment) Bill, 2010 Based on recommendations of the Law Commission, a legislation was proposed. The Marriage Laws (Amendment) Bill, 2010 to amend the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954 to making divorce easier on ground of irretrievable breakdown of marriage was introduced in the parliament in 2012. The Bill replaces the words "not earlier than six months" in Section 13-B with the words "Upon receipt of a petition." It also provides a better safeguard to wives by inserting section 13D by which the wife may oppose the grant of a decree on the ground that the dissolution of the marriage will result in grave financial hardship to her and that it would in all the circumstances be wrong to dissolve the marriage.

11. New section 13E provides restriction on decree for divorce affecting children born out of wedlock and states that a court shall not pass a decree of divorce under section 13C unless the court is satisfied that adequate provision for the maintenance of children born out of the marriage has been made consistently with the financial capacity of the parties to the marriage. Marriage Laws (Amendment) Bill, 2010 makes similar amendments to the Special Marriage Act, 1954 by replacing the words "not earlier than six months" in Section 28 with the words "Upon receipt of a petition" and provides restriction on decree for divorce affecting children born out of wedlock

12. 1.Short title and extent.- ( 1) This Act may be called the Hindu Marriage Act, 1955. (2) It extends to the whole of India except the State of Jammu and Kashmir, and applies also to Hindus domiciled in the territories to which this Act extends who are outside the said territories.

13. 2. Application of Act.- ( 1) This Act applies- (a) to any person who is a Hindu by religion in any of its forms or developments, including a Virashaiva , a Lingayat or a follower of the Brahmo , Prarthana or Arya Samam , (b) to any person who is a Buddhist, Jaina or Sikh by religion, and (c) to any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed.

14. (2) Notwithstanding any thing contained in sub-section ( 1), nothing contained in this Act shall apply to the members of any Scheduled tribe within the meaning of clause (25) of article 366 of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs . (3) The expression 'Hindu' in any portion of this Act shall be construed as if it included a person who, though not a Hindu by religion is, nevertheless, a person to whom this Act applies by virtue of the provisions contained in this section.

15. 3. Definitions.- custom and usage district court full blood and half blood uterine blood f) sapinda relationship g) degrees of prohibited relationship

16. two persons are said to be within the "degrees of prohibited relationship "- ( i ) if one is a lineal ascendant of the other; or (ii) if one was the wife or husband of a lineal ascendant or descendant of the other; or (iii) if one was the wife of the brother or of the father's or mother's brother or of the grandfather's or grandmother's brother of the other; or (iv) if the two are brother and sister, uncle and niece, aunt and nephew, or children of brother and sister or of two brothers or of two sisters;

17. For the purposes of clauses (f) and (g), relationship includes- ( i ) relationship by half or uterine blood as well as by full blood; (ii) illegitimate blood relationship as well as legitimate; (iii) relationship by adoption as well as by blood and all terms of relationship in those clauses shall be construed accordingly.

18. Marriage is sacrament or a civil contract? Yes, It is both Manusmrti shows that there is actually a gift of the bride. Purshottamadas vs Purshottamadas – marriage of hindu children is a contract made by their parents Anjona das vs Ghose - suits related to marriage deal with that which in the eye of thee law must be treated as a civil contract. Important civil rise out of that contract

19. Section 5 Clause ( i ) – Condition of monogamy This condition implies monogamy and prohibits bigamy or polygamy. The expression “neither party has a spouse living” depicts that the spouse must not be alive at the time of marriage. If the spouse is alive at the time of marriage that could bar the remarriage of a person. However one must note that the first marriage of a person should be a legally valid marriage. In spite of one’s valid marriage if the person remarries in violation of Section 5( i ), the second marriage will be null and void and he will be subjected to penal consequences. The Scheduled Tribes are exempted from the application of the Act . But there must be a proved custom to this effect.

20. Bigamy – Section 5( i ) Section 5( i ) prohibits bigamy or polygamy. Section 11 makes a bigamous marriage void and Section 17 makes it a penal offence for both Hindu males and females under Section 494 and 495 of IPC. The offence of bigamy is committed only if the required ceremonies of marriage are performed. The second marriage cannot be taken to be proved by the mere admission of the parties; essential ceremonies and rites must be proved to have taken place. In the case of a bigamous marriage, the “second wife” has no status of wife

21. The Supreme Court has ruled that children born out of wedlock have the right to inherit their father’s ancestral property.In   Revanasiddappa vs Mallikarjun case   ,  Justices G.S. Singhvi and A.K. Ganguly ruled that children from a second wife had rights to their father’s ancestral property The supreme court of India in Kushboo case virtually equated Live –in relationship to marital relationship. In another case ,the supreme court also said Children born out of live-in are not illegitimate.  “The live-in- relationship if continued for such a long time, cannot be termed in as "walk in and walk out" relationship and there is a presumption of marriage between them ..” Supreme Court in 2004 in the  Rameshchandra Daga vs Rameshwari Daga  case ,where the maintenance rights of women in “informal relationships or invalid marriages” were upheld

22. Clause (ii) – Condition regarding mental health or capacity Sub clause (a) requires that at the time of marriage neither party is incapable of giving a valid consent to marriage due to unsoundness of mind. Sub clause (b) – Mental disorder: According to sub-clause (b) at the time of marriage neither party to marriage should be suffering from a mental disorder of such nature and to such a degree as to be unfit for two purposes ( i ) marriage and (ii) procreation of child . In Tarlochan Singh v. Jit Kaur , the court held the marriage void on the ground that wife was suffering from schizophrenia within short period after marriage and the disease was not disclosed to the husband before marriage.

23. Sub clause (c) – Recurrent attacks of insanity: If a person has been subject to recurrent attacks of insanity he is also not qualified for marriage under Hindu Marriage Act. He cannot marry even during a lucid period. Post marriage mental illness : If a party to a marriage is not suffering from any mental defect described under section 5(ii) but falls ill mentally after the marriage, there is no violation of this condition.

24. Clause (iii) – Condition of marriageable age According to this clause, at the time of marriage the bride must have completed the age of 18 years and the bridegroom of 21 years. Thus a child marriage is prohibited under Hindu Marriage Act. However , violation of this condition does not make the marriage void or voidable . It means that it is valid though it may attract penalties. But it can become a valid ground for repudiation of the marriage . The Hindu Marriage Act and the Child Marriage Restraint Act provide for punishment for such marriage . (punishment : riorous imprisionment upto 2 yrs or fine upto 1 Lakhs or both)

25. According to Section 18 of Hindu Marriage Act, anyone who procures a marriage for himself or herself in contravention of Section 5(iii) may be punished with upto 15 days imprisonment or with a fine upto Rs. 1000 or with both. Under the Child Marriage Restraint Act, 1929, a male above the age of 25 years marrying a girl below 15 years is punishable with upto 3 months imprisonment and is also liable to fine. The Child Marriage Restraint (Amendment) Act 1978 has also raised the age of marriage of girl to eighteen.

26. Clause (iv) – Avoidance of degrees of prohibited relationship The parties to marriage must not fall within the degree of prohibited relationship. This relationship is defined under Section 3(g) of the Act. According to Section 3(g) “degree of prohibited relationship” means when two persons are related to each other in any of the following manners: ( i ) By lineal ascent: If one is a lineal ascendant of the other. This relationship covers the Sapinda relationship which extends upto fifth degree in the line of father and third degree in the line of the mother. The distinction of this category is that it extends even beyond the Sapinda ascendants

27. ( ii ) By affinity : If one is the husband or wife of the lineal ascendants or descendants of the other. For example, father-in-law and daughter-in-law, mother-in-law and son-in-law, step mother and step son or step father and step daughter are thus within the degrees of prohibited relationship. (iii) Wives of certain brother relations if one was the wife of: (1) The brother, or (2) The father’s brother, or (3) The mother’s brother, or (4) The father’s father’s brother, or (5) The mother’s father’s brother, or (6) The father’s mother’s brother, or (7) The mother’s mother’s brother.

28. (iv) Certain close relations if both are: (1) Brother and sister, or (2) Niece and uncle (paternal or maternal), or (3) Nephew and aunt (paternal or maternal), or (4) Children of a brother and a sister, or (5) Children of two brothers, or (6) Children of two sisters.

29. According to Section 11 of Hindu Marriage Act, a marriage in contravention of this condition is void. It is also punishable under section 18(b) of the Act. ( i ) ‘A’ marries his adopted sister. This is not a valid marriage, as it falls within the degrees of Prohibited relationship. (ii) ‘A’ marries with the wife of Pre-deceased brother. It is not a valid marriage as it falls within the degree of Prohibited relationship. (iii) ‘A’ marries his stepmother’s sister. It is not a valid marriage, ‘A’ is related to his step-mother by half blood relationship

30. Clause (v) – Avoidance of sapinda relationship According to Section 3(f)(ii) two persons are said to be “ sapindas ” of each other if one is a lineal ascendant of the other within the limits of sapindas relationship, or if they have a common lineal ascendant to each of them. Whereas Section 3(f)( i ) states that “ sapinda relationship” with reference to any person extends as far as the third generation (inclusive) in the line of ascent through the mother, and the fifth (inclusive) in the line of ascent through the father, the line being traced upwards in each case from the person concerned, who is to be counted as the first generation.

31. section 3(a) of Hindu Marriage Act requires is that for maturing into a custom a rule should have been observed for a long time, continuously and uniformly. When essential ceremonies consulting a Hindu marriage are not proved, the mere issuance of certificate under Special Marriage Act cannot validate the marriage if the marriage has not been solemnised as per the requirements of this Act. The Act does not, however prescribe the ceremonies requisite for solemnisation of the marriage but leaves it to the parties to choose a form of ceremonial marriage which is in accordance with any custom or usage applicable to either party; and where the form adopted includes the Saptapadi –that is the taking of seven steps by the bridegroom and the bride jointly before the sacred fire–marriage becomes complete when the seventh step is taken. The essential rites which may, however, be said to be the requirement common in all ceremonial marriages are: ( i ) invocation before the sacred fire; and (ii) saptapadi .

32. Void and Voidable marriages (Sections 11 and 12) There are three types of marriages under this Act: ( i ) valid, (ii) void, and (iii) voidable. Section 11 deals with void marriages and Section 12 deals with the voidable marriage. All other marriages which are not covered by these two sections are valid.

33. Thus a marriage will be void ab initio: (1) If any party to marriage has a spouse living at the time of the marriage [Section 5( i )]. (2) If the parties are within the degree of prohibited relationship unless the custom or usage governing each of them permits such a marriage [Section 5(iv)]. (3) If the parties are sapindas of each other, unless the custom or usage governing each of them permits such a marriage [Section 5(v)]. Section 11 of this Act is prospective in nature. It is only applicable to marriages solemnised after the commencement of the Hindu Marriage Act, 1955

34. Section 11- Void marriages It states that any marriage solemnized at the commencement of this Act shall be null and void and may, on a petition presented by either party thereto against the other party be so declared by a decree of nullity if it contravenes any of the conditions specified in clauses ( i ), (iv) and (v) of Section 5.

35. Effect of Void marriages A void marriage is no marriage. It is void since its inception. No legal rights and duties flow from it. Therefore, the relationship of husband and wife does not come into existence from a void marriage. No declaration of the court is necessary to this effect. The issues from a void marriage are illegitimate unless legitimatised by law in some way. If one withdraws from the society of the other, the other party has no right to the restitution of conjugal rights. If one of them marries again, he or she is not guilty of bigamy and the validity of later marriage is not affected because of the first so called marriage

36. Section 12-Voidable marriages- A marriage which can be annulled or avoided at the option of one or both the parties is known as a voidable marriage. Section 12 of Hindu Marriage Act contains relevant provisions of Voidable Marriage. his section lays down four grounds on which a Hindu marriage becomes voidable. These are: (1) Inability of the respondent to consummate the marriage on account of his or her impotency. (2) Respondents incapacity to consent or suffering from a mental disorder. (3) Consent of the petitioner being obtained by fraud or force. (4) Concealment of Pre-marriage pregnancy by the respondent.

37. I mpotency [Section 12(1)(a)] (1) That the marriage has not been consummated; and (2) That the non consummation is due to the impotence of the respondent . Regarding impotency, the various principles laid down by the courts could be summarised as follows: 1) Full and complete penetration is an essential ingredient of ordinary and complete intercourse, though degree of sexual satisfaction obtained by the parties is irrelevant. If one spouse is oversexed and the other is not, it does not amount to impotency. (2) Impotency is usually either (a) physical, or (b) mental. Physical impotency includes malformation of, or structural defects in the organs, such as unduly large male organ or abnormally small vagina.

38. (3) Mental or psychological impotency includes emotional, psychological or moral repugnance or aversion to the sexual act. In Shantabai v. Tara Chand , the wife was alleged to have an absolute repugnance towards sexual intercourse although she had normal sexual organs. Held that it amounts to impotency. Where immediately after marriage the husband lived for three nights and days in the same room with his wife and failed to consummate the marriage, it was a fair inference that non-consummation was due to husband’s knowing refusal arising out of incapacity, nervousness or hysteria

39. . In Nijhawan v. Nijhawan , a liberal interpretation of the word ‘impotence’ was made by the court. In that case, the wife felt depressed and frustrated owing to the failure of husband to perform full and complete sexual intercourse. Held that vigorous and harmonious sexual activity is the foundation of marriage and a marriage without sex is anathema. The court considered the husband’s impotency to be a cause of mental and physical cruelty to the wife.

40. (4) If impotency can be cured by medical treatment or surgery, it would not amount to impotency, unless the respondent refuses to undergo treatment. In Rajendra v. Shanti , where the size of wife’s vagina was after surgical operation one and half inch, but was fit for intercourse, the court said that wife was not impotent. (5) Mere barrenness or incapacity to conceive a child or sterility does not amount to impotency. In Shewanti v. Bhaura , the wife was sterile but was capable of having sexual intercourse held that she was not impotent. Burden of Proof : The Burden of Proof lies on petitioner but when once the impotency is proved there is a rebuttable presumption in favour of its continuance.

41. Consent obtained by force or fraud [Section 12(1)(c)] a marriage is voidable on the ground that the consent of the petitioner or of the guardian has been obtained by force or fraud . Provided no petition for annulling a marriage: (1) If the petition presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered [Section 12(2)(a)( i )]; or (2) The petitioners has, with his or her full consent, lived with the other party to the marriage as husband or wife after the force had ceased to operate or as the case may be the fraud had been discovered [Section 12(2)(a)(ii)].

42. Force: The word Force is not defined by the Act. But it may include all cases of compulsion, coercion or duress. Abduction, terror, coercion and threat to commit suicide will definitely be covered by the term force. Whenever owing to some natural weakness of mind or on account of some fear, whether entertained reasonably or unreasonably, but nonetheless really entertained or when a party is in such a mental state that he finds it almost impossible to resist the pressure, it will amount to force. However, mere pressure or strong advice, persuasion etc., will not amount to force

43. Some important grounds of fraud : (1) Nature of ceremony, (2) Identity of the party, (3) Concealment of disease, (4) Concealment of religion or caste, (5) Concealment of previous marriage, (6) Concealment of unchastity , (7) Concealment of illegitimacy, (8) Concealment of age, (9) Petitioner’s father’s fraud, (10) Concealment of financial status and nature of employment. A petition for nullity must be filed within one year of the discovery of fraud or cessation of force . This condition is mandatory. Thus the operation of Section 12(1)(c) has been considerably winded by the 1976 Amendment

44. Pre-marriage Pregnancy [Section 12(1)(d)] Section 12(1)(d) provides that a marriage is voidable on the ground that the respondent was at the time of the marriage pregnant by some person other than the petitioner. Section 12(1)(d) is to be read with Section 12(2)(b) which lays down three further conditions which are to be satisfied in order to avail of the remedy under Section 12(1)(d). These are: (1) That at the time of the marriage the petitioner was ignorant of the facts alleged; (2) That the petitioner has started proceedings under Section 12 within one year of the marriage; and (3) That the petitioner did not have, with his consent, marital intercourse with his wife ever since he discovered that the wife was pregnant by some other person.

45. Thus the requirements of this ground are: (1) The respondent was pregnant at the time of marriage. (2) The respondent was pregnant from a person other than the petitioner. (3) The petitioner was ignorant of this fact at the time of marriage. (4) The proceeding is started within one year of the marriage. (5) Absence of marital intercourse by the petitioner husband with his wife since such discovery.

46. If the girl becomes pregnant by some person before her marriage and subsequently the same fellow marries her the section has no application. If the bride becomes pregnant by some other person than her husband after marriage the section has no relevance. Onus of proof lies on the petitioner husband to prove this wife’s admission of pre-marriage pregnancy plus the fact that husband had no access to her before marriage is sufficient to establish her pre marriage pregnancy. In  Nishit v. Anjali , where a bride gave birth to a mature child within 167 days from the date of marriage, it was held that it was for the wife to raise a reasonable doubt that she was pregnant by the person who became her husband. A blood test for the ascertainment of the child’s paternity is also possible. If the wife volunteers for the same then it is well and good, but it cannot be forced upon her.

47. 6. Guardianship in marriage.- [Rep. by the Child Marriage Restraint (Amendment) Act, 1978, (2 of 1978), section 6 and Schedule ( w.e.f . 1.10.1978)]. ( 1) Wherever the consent of a guardian in marriage is necessary for a bride under this Act, the persons entitled to give such consent shall be the following in the order specified there under, namely:- (a) the father ;( b) the mother ; ( c) the paternal grandfather ; ( d) the paternal grandmother; (e) the brother by full blood; as between brothers the elder being preferred; (f) the brother by half blood; as between brothers by half blood the elder being preferred:

48. g) the paternal uncle by full blood ; h) the paternal uncle by half blood ( i ) the maternal grandfather; (j) the maternal grandmother; (k) the maternal uncle by full blood ; 2) completed his or her twenty-first year . 3) the person next in order shall be entitled to be the guardian . 4) In the absence of any such person as is referred to in sub-section (1), the consent of a guardian shall not be necessary for a marriage under this Act.

49. 7. Ceremonies for a Hindu marriage.- ( 1) A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto. (2) Where such rites and ceremonies include the Saptapadi (that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken

50. 8. Registration of Hindu marriages.- Section 8(1) of Hindu Marriage Act provides that for the purpose of facilitating the proof of Hindu marriages , the state government may make rules providing that the parties to any such marriage may have the particulars relating to their marriage entered on such manner and subject to such conditions, as may be prescribed in a Hindi Marriage Register kept for the purpose. The certificate is however not a conclusive proof of marriage . It is explicitly laid down in this Act that non registration does not affect the validity of marriage . Thus marriage can be valid without registration

51. besides the evidentiary value, the national commission for women has pointed that registration of marriage has critical importance to various women related issues, such as :– (a) Prevention of child marriage. (b) Prevention of marriage without the consent of the parties. (c) Prevention of illegal bigamy or polygamy. (d) Enabling married women to claim their right to live in the matrimonial home, maintenance, etc. (e) Enabling the widows to claim various rights after the death of their husbands. (f) Deterring men from deserting their wives after marriage. (g) Deterring the sale of girl under the garb of marriage.

52. Conjugal Rights mean Right to stay together. Hindu Marriage Act, 1955 (Section 9)  says If either the husband or the wife, without reasonable excuses, withdraws from the society of the other, the aggrieved party may approach the Court for restitution of conjugal rights

53. There are three important requisites to be fulfilled for Section 9   Spouses must not be staying together. Withdrawal of a party from the other must have no reasonable ground for such withdrawal. The aggrieved party must apply for restitution of conjugal rights Section 9 is to save marriage .  If the suit succeeds then the couple would be needed to stay together. The decree of restitution of conjugal rights cannot be actioned by forcefully making the party to live with the one who sets petition for restitution.

54. What does ‘withdrawal from society’ mean? does not necessarily have to mean complete desertion or living separately Withdrawal from sexual intercourse, Non-cooperation in the performance of marital obligations, Intention to abandon indefinitely Cessation of cohabitation by voluntary act of the Respondent-wife

55. Circumstances in which withdrawal is justified When husband remarries Even in the case of Muslim Law, the husband remarries, he should equitably maintain the first/ existing wife(s). Where such equity and duty is violated by the husband, the wife has a reasonable case In  Kothar Beevi v. Aminuddin , the Madras High Court denied the relief of restitution of conjugal rights to a husband who remarried during the pendency of the suit.

56. When conduct of husband makes it impossible for the wife to live with the husband. - Moonshi Buzloor Ruheem v. Shamsonnissa Begum- If there be cruelty to a degree rendering it unsafe for the wife to return to her husband’s dominion, the Court will refuse to send her back to his House ; so also, if there be a gross failure by the Husband of the performance of obligations.

57. What right accrues if the wife is living separately due to a different place of work? When economic considerations require the wife to take up the job Allahabad High Court - Shanti Nigam v. R. C. Nigam(2).  If both parties can come to each other’s place then it cannot be said that she has withdrawn herself from the society of her husband

58. When there is no economic necessity for the wife to take a job and live separately Smt . Kailash Wati v. Ayodhia Prakash (3 ) When the wife is already working before and at the time of marriage When the husband encourages/allows his wife to take up employment after marriage When the wife accepts employment away from the matrimonial home, against the wishes of the husband

59. Basis on which petition for Restitution of Conjugal Rights can be rejected If the respondent is capable of claiming any matrimonial relief. If the petitioner accepts that he has committed any matrimonial misconduct. If the petitioner’s action makes it impossible for the respondent to stay with him.

60. The following steps are followed:- The aggrieved party files a RCR petition in the district court. This petition can be transferred by an application in the High Court or the Supreme Court. Copy of the petition is sent to the respondent with a hearing date from the district court. The Court requires both parties to be present on the hearing date in front of the Hon’ble judge.

61. If both the parties are not available then another date is given. After this the court sends the party for court counselling . The Court counselling is done mainly by family courts and usually goes for 3 to 4 times. This might take 4 months approximately. Based on the counselling and the statements made and keeping in view the conduct of the parties the judge finally grants the decree. During this time the wife can claim maintenance under Section 25 If the decree is not complied with, then the court goes for attachment of property . If the decree is not followed within one year it can become a ground for divorce

62. Effects of non –performance of decree In case a decree of RCR is passed by the Court, and the party willfully disobeys the decree then the decree holder can file an application for execution of decree under Order 21 Rule 32 of Civil Procedure Code, 1908 . The rule says that where the party against whom a decree for restitution of conjugal rights, has been passed, and has had an opportunity of obeying the decree and has willfully failed to obey it the decree may be enforced by attachment of his property.

63. Constitutionality of Section 9 in 1983 before the Andhra Pradesh High Court in the case of  T. Sareetha vs T. Venkata Subbaiah   the Hon’ble High Court held this provision as  violative of law and held the impugned provision unconstitutional on the grounds that it violated the Right of Equality enshrined in Article of 14 of the Constitution of India.

64. However the High Court of Delhi in  Harvinder Kaur v Harminder Singh  went to a different line of reason and held its constitutionality. Ultimately, Supreme Court in  Saroj Rani v. Sudharshan , gave a judgment which was in line with the Delhi High Court views and upheld the constitutional validity of the section 9 and over-ruled the decision given in T.Sareeta

65. What is judicial separation? Judicial separation is an instrument devised under the law to afford some time for introspection to both the parties to a troubled marriage.

66. Under Section 13(1), judicial separation may be sought on the following grounds:

67. judicial separation vs divorce

68. Filing a petition for judicial separation The marriage was solemnized. The respondent, at the time of presentation of petition, resides. The parties to marriage last resided together. The petitioner is residing, in case the respondent is outside territory of India. Under Section 21 of the Act, all proceedings under this Act shall be regulated by the Code of Civil Procedure

69. Can maintenance be claimed? In the case of  Sohan Lal vs. Kamlesh  it was held that in case of judicial separation, a wife is allowed to claim maintenance from husband in case she is not able to maintain herself.

70. Section – 13 Divorce Divorce means dissolution of marriage by competent court . THEORIES OF DIVORCE FAULT THEORY- under Fault Theory marriage can be dissolved only when either party to the marriage has committed a matrimonial offence. MUTUAL CONSENT THEORY- This theory states that since two persons can marry by their free will, they should be allowed to move out of their relationship of their own free will.  IRRETRIEVALE BREAKDOWN OF MARRIAGE THEORY- According to this theory, the breakdown of marriage is defined as “such failure in the matrimonial relationships or such circumstances adverse to that relation that no reasonable probability remains for the spouses again living together as husband & wife.”

71. GROUNDS FOR DIVORCE

72. Adultery  – The act of indulging in sexual intercourse outside marriage is termed as adultery. Adultery is counted as a criminal offence and substantial proofs are required to establish it. An amendment to the law in 1976 states that one single act of adultery is enough for the petitioner to get a divorce. https://www.legalbites.in/law-notes-hindu-law-concept-and-grounds-of-divorce/

73. Cruelty  – A spouse can file a divorce case when he/she is subjected to any kind of mental and physical injury that causes danger to life, limb and health. The intangible acts of cruelty through mental torture are not judged upon one single act but series of incidents.

74. Desertion   – If one of the spouses voluntarily abandons his/her partner for at least a period of two years, the abandoned spouse can file a divorce case on the ground of desertion

75. Conversion  – In case either of the two converts himself/herself into another religion, the other spouse may file a divorce case based on this ground

76. Mental Disorder  – Mental disorder can become a ground for filing a divorce if the spouse of the petitioner suffers from incurable mental disorder and therefore cannot be expected from the couple to stay together.

77. Leprosy  – In case of a ‘virulent and incurable’ form of leprosy, a petition can be filed by the other spouse based on this ground

78. Venereal Disease  – If one of the spouses is suffering from a serious disease that is easily communicable, a divorce can be filed by the other spouse. The sexually transmitted diseases like AIDS are accounted to be venereal diseases.

79. Renunciation  – A spouse is entitled to file for a divorce if the other renounces all worldly affairs by embracing a religious order

80. Not Heard Alive  – If a person is not seen or heard alive by those who are expected to be ‘naturally heard’ of the person for a continuous period of seven years, the person is presumed to be dead. The other spouse need to file a divorce if he/she is interested in remarriage

81. 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

82. Wife’s Special Grounds for Divorce Pre-Act Polygamous Marriage

83. Rape, Sodomy or Bestiality

84. Non-Resumption of Cohabitation after a Decree/Order of Maintenance

85. Repudiation of Marriage

86.  mutual consent under Section 13-B. The parties have been living separately for a period of at least one year They have not been able to live together, and They have mutually agreed that marriage should be resolved

87. section 13C- Irretrievable breakdown of Marriage  It requires that the parties must have lived separately at least for 3 years immediately preceding the presentation of the petition. Here living separately means not living in the same house. In this case as opposed to the divorce by mutual consent the petition for dissolution of the marriage may be presented by either party to the marriage and the court may dissolve the marriage even if the other party objects it. However, the wife may object to the petition on the grounds of financial hardship. https://blog.ipleaders.in/irretrievable-breakdown-marriage-history-applicability-current-status-india/

88. Section 24- Maintenance pendente lite and expenses of proceedings. The main object of section 24 of the Hindu Marriage Act is to grant maintenance to the wife so that she can have financial assistance and she is able to maintain herself during the pendency of proceedings. Husband also has a right to claim maintenance from the wife. Since the object of section 24 is to provide financial assistance, the application under section 24 must be disposed of as expeditiously as possible. However if the main case itself has been dismissed, there is no provision under which court can give relief in an application made under section 24

89. Section 24 is applicable when the marriage itself is valid. If the marriage itself is not valid (that is it is a void marriage), then wife cannot claim maintenance under section 24 of Hindu Marriage Act Where in any proceeding under this Act it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner's own 

90. As to the nature of the proceedings, it has been held that the proceedings under section 24 are not original proceedings. They are merely interlocutory proceedings. Further, lawyers sometimes compare proceedings under section 24 with with proceedings under section 125 of Criminal Procedure Code. In this regard courts have clarified that both the proceedings are separate and different. Merely because order under section 125 of Criminal Procedure Code has been passed, jurisdiction of the court cannot depart under section 24 of Hindu Marriage Act. However it has also been clarified that if two orders under both the provisions mentioned above have been passed in a single matrimonial dispute then the husband is only liable to pay according to the order which mentions a higher amount.

91. Section 25- Permanent alimony and maintenance Sub-section (1) of Section 25 requires that an application must be made by the wife or the husband who is party to the main proceeding, if she or he wants the incidental relief of permanent alimony and such an application may be made in the main proceedings either before or at the time of passing the decree granting substantive relief of divorce or at any time subsequent to the passing of such decree.

92. After the amendment of the Hindu Marriage Act in 1976, the scope of the Act has widened and now it is mandatory for the court to grant full opportunity to the parties to substantiate their rival contentions by leading proper evidence. The court should take into account the other circumstances which may influence the grant or refusal of permanent alimony besides considering the income and conduct of the parties. The right to permanent alimony accrues only when a decree has been passed in favour of the petition under Sections 9 to 13. In case no such decree has been passed in favour of the petitioner, the right to claim any maintenance or alimony is ruled out. Thus where a petition of the husband is dismissed under any of the sections i.e., Sections 9 to 14 the application for permanent maintenance filed by the wife under Section 25 of the Act will be rejected

93. Still the wife could claim maintenance under Section 18(1) of the Hindu Adoption and Maintenance Act, 1956 or under Section 125 of the Criminal Procedure Code, 1973 The court cannot entertain any claim for maintenance in any proceeding under Section 25 of the Hindu Marriage Act, 1955, which are maintainable under Section 18 of the Hindu Adoption and Maintenance Act, 1956

94. In an important case, Gulab v. Kamal , the husband got the decree of divorce against the wife on the ground of misconduct and adultery. The wife moved an application for maintenance under Section 25 of the Act. The court held that a decree passed against the applicant on the ground of unchastity is no bar to his or her claiming maintenance either at the time of passing such decree or any time subsequent thereto. The court has ample discretion to grant or refuse maintenance and the extent to which to grant the same, depending on the facts and circumstances of each case.

95. In Patel Dharmshree Premji v. Bai Shankar Kanji,’ the Gujarat High Court affirmed the above proposition and held that even a guilty party to a marriage could obtain permanent alimony. It has further been said that a mother claiming maintenance for herself cannot include the amount of maintenance for her children therein and she must bring a separate suit for the purpose. On the question of reducing the amount of maintenance under Section 25 of the Act in proceedings for judicial separation the fact that the wife had been leading an adulterous life would be relevant and significant

96. In Verna Kallia v. Jatinder Nath Kallia the husband a doctor had settled in foreign country leaving his wife and a marriageable daughter in India. The payment of maintenance was denied by the husband upon the ground that the husband obtained divorce in foreign country to which the wife had acquiesced by accepting the maintenance under foreign judgment. The court held that the foreign judgment of divorce was not binding upon her. Upon the facts of the case relying the Supreme Court’s view given in Surinder Kaur Sandlin v. Harbax Singh Sandlin. Further court allowed the decree of divorce in favour of wife upon the ground of cruelty, desertion and adultery since her husband had married in foreign country and was having three children there. Considering the status of parties, their future necessities, and claim for maintenance by wife for herself and daughter was allowed at the rate of Rs. 10,000 per month. Husband was also directed to deposit Rs. 10 lakhs for marriage of his daughter

97. In Shanta Ram v. Dagoo Devi, the court held that Section 25 of the Act, confers upon a woman whose marriage is void or is declared to be void, a right of maintenance against her husband. The right of maintenance can be enforced by her not only in proceeding under Section 25 but also in any other proceeding where the validity of her marriage is determined. It can be claimed by her not only during the lifetime of her husband but also after his death against the property of her husband. Of course, his right of maintenance is available only during her life time and ceases if she remarries.