THE HINDU MARRIAGE ACT, 1955

REGAL MENTOR

Introduction

A multilingual and multicultural country, India permits every citizen to be ruled

by their personal laws by considering their religion. This extends to personal

laws relating to marriage and divorce. The Hindu Marriage Act was formed in

1955 by the Parliament as part of the Hindu Code Bill for modifying and

consolidating marriage laws among Hindus. Not only does the Act regulate

institution of marriage including its validity and conditions for invalidity, it also

does other aspects of personal life of Hindus and its relevance to the wider

Indian society.

The Hindu Marriage Act is the central legislation that brings about a

uniform, codified law of marriage among Hindus, thus eliminating variations

that prevail in different sections of the Hindu community. It also provisions for

separation and divorce so that legal rights and protections are included for

Hindu couples. Systematic marriage has duly been covered under the Act,

including cohabitation rights of both spouses and protection of the welfare of

their family and children from parental disputes.

The Hindu Marriage Act forms part of the Hindu law-related batch of

legislation enforced in 1956, together with the Hindu Succession Act, the Hindu

Minority and Guardianship Act, and the Hindu Adoptions and Maintenance Act.

These Acts collectively deal with all aspects concerning the family of Hindus. It

does not lay down any rites for marriage ceremonies, as there are a variety of

matrimonial usages among Hindus. It aims at securing legal rights and

safeguards to the Hindu bride and bridegroom while entering into the sacred

bond of marriage.

Containing six chapters and 29 sections, the Hindu Marriage Act, 1955, was

framed for the purpose of ensuring the marital rights of Hindu couples. It

applies to the persons who are Hindus by birth or by religion including Jains,

Sikhs, and Buddhists but excludes Muslims, Christians, Parsis, and Jews. The

Act was brought forth after a surge of cases where many people were cheated or

humiliated in the name of marriage, so there had to be a legal framework to

protect their rights. This wide applicability is incorporated in the definition of a

Hindu provided under Section 2 of the Act.

PRELIMINARY

SHORT TITLE AND EXTENT (Section 1)

By virtue of Section 1(1) this Act may be called the Hindu Marriage Act, 1955.

Section 1(2) provides that 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.

APPLICATION OF ACT (Section 2)

Section 2(1) of the Act provides that 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 Samaj,

(b) to any person who is a Buddhist, Jaina or Sikh by religion, and

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.

Explanation to this section states that the following persons are Hindus, Buddhists, Jainas

or Sikhs by religion, as the case may be:

(a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists,

Jainas or Sikhs by religion;

(b) any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist,

Jaina or Sikh by religion and who is brought up as a member of the tribe, community, group

or family to which such parent belongs or belonged; and

Section 2(2) provides that notwithstanding anything 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.

By virtue of section 2(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.

In Mohd. Zulfiquer Ali v. Anuradha Reddy

, the Court observed that the suit for the

declaration that the marriage of the plaintiff husband is dissolved due to conversion to

another religion is not maintainable.

In Neelaveni v. Venkateswara Rao,

The Court found that change of religion cannot

serve as grounds for the dissolution of marriage.

1986 (2) APLJ 463

1989 (1) Crimes 19-1988(2) APLJ 526

In Chandramanikyamma v. Sudharshana Rao

, It was held that the conversion of one

of the spouses from one religion to other cannot nullify the marriage.

In Dr. Surajmani Stella Kujur v. Durga Charan Hansdah,

, the Supreme Court

addressed the issue of the applicability of the Hindu Marriage Act, 1955, specifically Section

2, which outlines the Act's application. According to the facts of the case, Surajmani Stella

Kujur and Durga Charan Hansdah were both members of Scheduled Tribes and were married

according to Hindu rites. After their marriage, Dr. Surajmani filed for divorce under the

Hindu Marriage Act, 1955.Durga Charan Hansdah challenged the application of the Hindu

Marriage Act, arguing that it did not apply to them as they were members of Scheduled

Tribes. The Supreme Court's decision in this case underscored that the Hindu Marriage Act,

1955, does not automatically apply to members of Scheduled Tribes. Any application of the

Act to Scheduled Tribes requires a specific notification from the Central Government.

Therefore, the divorce petition filed under the Hindu Marriage Act by Dr. Surajmani Stella

Kujur was not maintainable.

DEFINITIONS (Section 3)

CUSTOM AND USAGE [Section 3(1)(a)]

Section 3(1)(a) provides that the expressions “custom” and “usage” signify any rule

which, having been continuously and uniformly observed for a long time, has obtained the

force of law among Hindus in any local area, tribe, community, group or family:

Proviso I to this section states that the rule is certain and not unreasonable or opposed

to public policy; and

Proviso II to this section states that in the case of a rule applicable only to a family it

has not been discontinued by the family;

DISTRICT COURT [Section 3(1)(b)]

It means, in any area for which there is a city civil court, that court, and in any

other area the principal civil court of original jurisdiction, and includes any other civil

court which

1988 (2) LS 255

2001 (3) SCC 13 = AIR 2001 SC 938 = 2001(1) Crimes 263 (SC)

may be specified by the State Government, by notification in the Official Gazette, as having

jurisdiction in respect of the matters dealt with in this Act;

FULL BLOOD AND HALF BLOOD [Section 3(1)(c)]

Two persons are said to be related to each other by full blood when they are

descended from a common ancestor by the same wife and by half-blood when they are

descended from a common ancestor but by different wives;

UTERINE BLOOD [Section 3(1)(d)]

Two persons are said to be related to each other by uterine blood when they are

descended from a common ancestress but by different husbands;

Explanation to this section states that, in clauses (c) and (d), “ancestor” includes the father

and “ancestress” the mother;

PRESCRIBED [Section 3(1)(e)]

Which means it is prescribed by rules made under this Act;

SAPINDA RELATIONSHIP [Section 3(1)(f)]

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;

Two persons are said to be “sapindas” of each other if one is a lineal ascendant of

the other within the limits of sapinda relationship, or if they have a common lineal ascendant

who is within the limits of sapinda relationship with reference to each of them;

DEGREES OF PROHIBITED RELATIONSHIP [Section 3(1)(g)]

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;

Explanation to this section states that, For the purposes of clauses (f) and (g), relationship

includes—

[Section 3(1)(f)] (i)

(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.

In Dulari v. Narayan Das

, the Court found that, Additional District Court is not a

District Court.

In Kuldip Singh vs. State of Punjab

., The court again decided on the matter that

Additional District Court is not a District Court.

OVERRIDING EFFECT OF ACT (Section 4)

Section 4 states that save as otherwise expressly provided in this Act,

(a) any text rule or interpretation of Hindu law or any custom or usage as part of that

law in force immediately before the commencement of this Act shall cease to have effect

with respect to any matter for which provision is made in this Act;

(b) any other law in force immediately before the commencement of this Act shall

cease to have effect in so far as it is inconsistent with any of the provisions contained in this

Act.

HINDU MARRIAGES

CONDITIONS FOR A HINDU MARRIAGE (SECTION 5)

Section 5 states that a marriage may be solemnized between any two Hindus, if the

following conditions are fulfilled, namely,

(i) neither party has a spouse living at the time of the marriage;

[(ii) at the time of the marriage, neither party—

(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or

AIR 1959 Punj.50

AIR 1959 Punj. 50

Subs. by Act 68 of 1976, s. 2, for clause (ii) (w.e.f. 27-5-1976).

(b) though capable of giving a valid consent, has been suffering from mental

disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of

children; or

;

(iii) the bridegroom has completed the age of

[twenty-one years] and the

bride, the age of 3[eighteen years] at the time of the marriage;

(iv) the parties are not within the degrees of prohibited relationship unless the

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

(v) the parties are not sapindas of each other, unless the custom or usage governing

each of them permits of a marriage between the two;

In Manish Singh vs. State Govt. of NCT & Ors

,the Court concluded that marriages

solemnized in violation of the age requirements set forth in Section 5(3) of the Hindu

Marriage Act are neither void nor voidable as per Sections 11 and 12 of the Act.

In Gullippilli Sawaria Raj v. Bandru Pavani

, it was observed that if one of the spouses

belong to Hindu religion and other is not, then the marriage would be declared as null and

void.

In Smt. Yamunabai Anantrao Adhav v. Anantarao Shivaram Adhav and another

, the

Court remarked that “Section 5 lays down, for a lawsful marriage, the necessary condition

that neither party should have a spouse living at the time of marriage. A marriage in

contravention of this condition therefore is null and void”.

GUARDIANSHIP IN MARRIAGE (Section 6)

Section 6 of the Act, which dealt with guardianship in marriage, has been repealed.

CEREMONIES FOR A HINDU MARRIAGE (Section 7)

Section 7 (1) states that a Hindu marriage may be solemnized in accordance with the

customary rites and ceremonies of either party thereto.

While with respect to Section 7 (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.

In Vishnu Prakash v.Sheela Devi

, the Court found the importance of having the

The words “or epilepsy” omitted by Act 39 of 1999, s. 2 (w.e.f. 29-12-1999).

Subs. by Act 2 of 1978, s. 6 and Schedule for “eighteen years” (w.e.f. 1-10-1978)

AIR 2006 Del.37

AIR 2009 SC 1085

AIR 1988 SC 644

Omitted by the Child Marriage Restraint (Amendment) Act, 1978.

seven steps in Hindu marriage.

In Priya Bala v.Suresh Chandra

, the Court observed that unless the marriage is not

undergoing the ceremony of ‘saptapadi’ it cannot be said that the marriage between parties

was valid.

In Ramlal Agarwal v.Smt. Shanta Devi

, the Court remarked that “even though

‘Kanyadan’ is an important ceremony in a traditional Hindu wedding but the father cannot

claim that he has a right to perform ‘kanyadan’.

In Nandita Roy v. Asish Kumar Roy

it was observed that the Act applies to the followers

of the Brahmo Samaj who may not practice all the formalities of Hindu religion during the

marriage. So, under this case the Court found the marriage between the parties as valid even

though the marriage has undergone with Brahmo rites.

In Baburao Parashuram Ukharde v.Laxmi Bai

, the Court opined that ceremonies like

‘Lajahome’ and ‘Saptapadi’ etc. are not necessary while considering the validity of

Gandharva form of marriage.

REGISTRATION OF HINDU MARRIAGES (Section 8)

Section 8(1) 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 in such manner and

subject to such conditions as may be prescribed in a Hindu Marriage Register kept for the

purpose.

Proviso I to this section states that notwithstanding anything contained in sub-section

(1), the State Government may, if it is of opinion that it is necessary or expedient so to do,

provide that the entering of the particulars referred to in sub-section (1) shall be compulsory

in the State or in any part thereof, whether in all cases or in such cases as may be

specified, and where any such direction has been issued, any person contravening any rule

made in this behalf shall be punishable with fine which may extend to twenty-five rupees.

Proviso II to this section states that all rules made under this section shall be laid

before the State Legislature, as soon as may be, after they are made.

Proviso III to this section states that the Hindu Marriage Register shall at all

reasonable times be open for inspection, and shall be admissible as evidence of the statements

AIR 2001 SC 1862

1971 Cr.L.J. 939

AIR 1999 A.P 251

1996 DMC 688

1995 (2) DMC 326(Bom)

therein contained and certified extracts therefrom shall, on application, be given by the

Registrar on payment to him of the prescribed fee.

Proviso IV to this section states that notwithstanding anything contained in this section,

the validity of any Hindu marriage shall in no way be affected by the omission to make the

entry.

In Smt. Seema v. Ashwani Kumar

it was held that it is mandatory to register the marriage

in order to attract the validity of it.

In S.M Syed Abdul Basith v. Assistant commissioner of Police,

, In a recent ruling by the

Kerala High Court, a case involved a couple who had created a document styled as a marriage

certificate, claiming they were husband and wife. Notably, no marriage ceremonies were

conducted, nor did they marry under the Special Marriage Act. They had the document

registered. When the wife's father filed a Habeas Corpus petition, the High Court expressed

deep concern for women in such situations who might be unable to seek matrimonial relief in

the future, stating that such a document held no legal value. The court also voiced its worries

about the status of children born from such unions. It was emphasized that marriage

registrations must only be conducted at official Marriage Registration offices, with

corresponding directives issued. This judgment carries significant national importance. The

court's comments and recommendations highlight the urgent need for legislative intervention

to implement comprehensive and stringent measures to prevent such practices. A similar

issue arose before the Orissa High Court, which also ruled that a document styled as a deed of

marriage does not constitute proof of marriage.

In the case of Kangavalli v. Saroja,

the Madras High Court held that the Register of

Marriages should be accessible for public inspection and that entries made in it are admissible

as evidence. The court stated that while a marriage certificate cannot validate a marriage that

is otherwise void, it can serve as proof of the identity and parentage of children born from

such a marriage. Additionally, the court emphasized the desirability of mandatory registration

of all marriages in the state where they are solemnized.

In Margret Palai v. Savithri Palai,

the High Court's decision has significant national

implications. The court highlighted the need for the Legislature to enact comprehensive and

stringent measures to curb practices involving fraudulent marriage documents. The court's

observations and recommendations underscore the urgency of legislative action. A similar

AIR 2006

AIR 2009 NOC 2413

AIR 2002 Mad 73

AIR 2010 Ori 45

issue was addressed by the Orissa High Court, which ruled that a document titled as a deed of

marriage does not constitute proof of marriage. In that case, a Christian woman claimed to

have married a Hindu man, but the court found the document insufficient to establish the

validity of the marriage.

In the case of V.D. Grahalakshmi v. T. Prashanth,

the Court ruled that the marriage

evidence.

RESTITUTION OF CONJUGAL RIGHT (Section 9)

When either the husband or the wife has, without reasonable excuse, withdrawn from

the society of the other, the aggrieved party may apply, by petition to the district court, for

restitution of conjugal rights and the court, on being satisfied of the truth of the statements

made in such petition and that there is no legal ground why the application should not be

granted, may decree restitution of conjugal rights accordingly.

Explanation to this section states that, where a question arises whether there has

been reasonable excuse for withdrawal from the society, the burden of proving reasonable

excuse shall be on the person who has withdrawn from the society.

In Saroj Rani v. Sudarshan Kumar

, the Supreme Court held that this section is not

violative of Articles 14 and 21 of the Constitution.

In Krishna Devi v. Addl. Civil Judge

, there is a divergence of judicial opinion on

whether a petition for restitution of conjugal rights can include an alternative prayer for

divorce. The High Courts of Allahabad and Madhya Pradesh have held that such proceedings

are permissible.

In Chithralekha Shibu Kunju v. Shibu Kunju,

, the court determined that the remedy of

restitution of conjugal rights is not applicable in cases of inter-religious marriages.

In Sonia v. Rajnish Kumar Arora,

, a petition under Section 9 of the Hindu Marriage

Act was pending in Ludhiana. The wife filed an application for its transfer to Amritsar, citing

her responsibility to care for two minor children and her elderly parents in Amritsar. Since

transferring the petition would not cause any prejudice to the husband, the court approved the

AIR 2012 Mad 34

The brackets and figure “(1)” omitted by Act 68 of 1976, s. 3

(w.e.f. 27-5-1976). 6. Ins. by s. 3 (w.e.f. 27-5-1976).

Ins.by Act 68 of 1976 Sec.3 w.e.f. 27-05-1976

Sub Section (2),omitted by Act of 68 of 1976.

AIR 1984 SC 1562

AIR 1985 All 131

1998 DMC 454

1998 (2) DMC 401

transfer to Amritsar.

JUDICIAL SEPARATION (Section10)

Section 10(1) of the Act provides that, either party to a marriage, whether solemnized

before or after the commencement of this Act, may present a petition praying for a decree for

judicial separation on any of the grounds specified in sub-section (1) of section 13, and in the

case of a wife also on any of the grounds specified in sub-section (2) thereof, as grounds on

which a petition for divorce might have been presented.]

By virtue of Section 10(2), where a decree for judicial separation has been passed, it shall

no longer be obligatory for the petitioner to cohabit with the respondent, but the court may,

on the application by petition of either party and on being satisfied of the truth of the

statements made in such petition, rescind the decree if it considers it just and reasonable

to do so.

In Narasimha Reddy v. M. Boosamma

, it was decided by the Court that it would attract

bigamy if either spouse was married during the separation before the completion divorce.

In Krishna Bhattacharjee v. Sarathi Choudhary

, the Supreme Court recognized the

wife's entitlement to 'stridhan' even after a judicial separation agreement, reaffirming her

property rights which remained intact. The court ruled that the property in question rightfully

belonged solely to the wife.

In Rohini Kumari v. Narendra Singh

, In cases where the court finds that the wife is

unable to support herself during judicial separation, it may order maintenance to ensure her

basic needs are met, as established in relevant legal precedents.

In the case of Gomathi v. Kumaragurrupaan

, it was established that following the

decree of judicial separation, if the parties do not reconcile and resume cohabitation, they

may petition the court for divorce. The period of one year of judicial separation begins from

the date of the decree's announcement.

In Sohan Lal v. Kamlesh

The wife sought judicial separation due to the husband's

adultery and cruelty.The court granted judicial separation and affirmed that while separated,

the parties remain married and eligible for maintenance and other marital rights

NULLITY OF MARRIAGE AND DIVORCE (Section 11 and 12)

VOID MARRIAGES (Section 11)

(AIR 1976 AP 77)

(2016) 2 SCC 705

(1972) 1 SCC 1

(AIR 1987 Mad 259)

(AIR 1984 P H 332)

By virtue of Section 11, any marriage solemnized after the commencement of this

Act shall be null and void and may, on a petition presented by either party thereto 2[against

the other party], be so declared by a decree of nullity if it contravenes any one of the

conditions specified in clauses (i), (iv) and (v) of section 5.

In Balbir Singh v. Baljinder Kaur

,The petitioner-husband was represented as a divorcee

at the time of the marriage, but no document proving his divorce was shown to the

respondent-wife. The Court highlighted the importance of adhering to these conditions to

maintain the sanctity of marriage and also the scope of section 11 of the Hindu Marriage Act.

In Kiran Kaur v. Jagir Singh Bamrah

,The Punjab-Haryana High Court clarified that

petitions under Section 11 can be filed to declare a second marriage null and void if the

parties are within prohibited degrees of relationship or are sapindas, provided the marriage

does not meet the specified conditions.

In Pronab v. Krishna

, the Court observed in this case that severe mental disorders like

schizophrenia can be grounds for nullifying a marriage under Section 11, as it affects the

ability to give valid consent.

In Shiromani Jain v. Dr. Ashok Kumar Jain

The Supreme Court held that for a marriage

to be void under Section 17 it must be appropriately solemnized with essential rites as

required by law or custom. The court further linked this to Section 11, which underpins the

validity of marriage contracts under Hindu law.

VOIDABLE MARRIAGES (Section 12)

Section 12(1) provides that, any marriage solemnized, whether before or after the

commencement of this Act, shall be voidable and may be annulled by a decree of nullity on

any of the following grounds, namely: —

Proviso I to the section states that the marriage has not been consummated owing to the

impotence of the respondent; or]

Proviso II to the section states that the marriage is in contravention of the condition

specified in clause (ii) of section 5; or

Proviso III to the section states that the consent of the petitioner, or where the consent of

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FAO-M-358 of 2013 (O&M)

AIR1975CAL109, 78CWN448, AIR 1975 CALCUTTA 109

CIVIL APPEAL No(s). 6966 OF 2011

the guardian in marriage of the petitioner

[was required under section 5 as it stood

immediately before the commencement of the Child Marriage Restraint (Amendment) Act,

1978 (2 of 1978)], the consent of such guardian was obtained by force

[or by fraud as to the

nature of the ceremony or as to any material fact or circumstances concerning the

respondent]; or

Proviso IV to the section states that the respondent was at the time of the marriage

pregnant by some person other than the petitioner.

Section 12(2) provides that, notwithstanding anything contained in sub-section (1), no

petition for annulling a marriage—

(a) on the ground specified in clause (c) of sub-section (1) shall be entertained if—

(i) the petition is presented more than one year after the force had ceased to

operate or, as the case may be, the fraud had been discovered; or

(ii) the petitioner 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;

(b) on the ground specified in clause (d) of sub-section (1) shall be entertained unless

the court is satisfied—

(i) that the petitioner was at the time of the marriage ignorant of the facts alleged;

(ii) that proceedings have been instituted in the case of a marriage solemnized

before the commencement of this Act within one year of such commencement and in the case

of marriages solemnized after such commencement within one year from the date of the

marriage; and

(iii) that marital intercourse with the consent of the petitioner has not taken place

since the discovery by the petitioner of the existence of

[the said ground]

In Babui Panmato Kuer v. Ram Agya Singh

,The Additional District Judge rejected her

petition for marriage dissolution, ruling that misrepresentation under Section 12(1)(c) of the

Act must occur specifically during the solemnization of the marriage, not during earlier

stages when negotiations for the marriage were ongoing, as alleged by the plaintiff.

In Raman Kumar v. Smt. Baksho Thandi

the Court observed that the term 'cohabitation'

was interpreted to include a sexual relationship between spouses.

AIR 1968 Pat 190

AIR 2008 P&H 95

In Premchand v. Padmapriya

,The appellant sought annulment of marriage on the

grounds of fraud, arguing that the respondent concealed material facts about her pre-marital

life. The Court clarified that fraud, as mentioned in Section 12(1)(c), refers to fraud that

affects the real consent to the solemnization of marriage. The court reiterated that

concealment of facts about personal history, unless it directly affects the marital consent, may

not suffice for annulment.

In Sujatha v. Hariharan

,according to the facts of the case the appellant sought

annulment due to the concealment of a curable eye defect by the respondent at the time of

marriage. The Court held that concealment must be of such a nature that it impacts the

ordinary marital life of the parties. Mere concealment of curable defects does not

automatically justify annulment unless it significantly affects marital consent.

In Smriti Ananta v. Ramachander

,The Court clarifies that a wife's reluctance, especially

if she is a working lady, to perform household work does not amount to cruelty.

DIVORCE

Section 13(1) provides that, any marriage solemnized, whether before or after the

commencement of this Act, may, on a petition presented by either the husband or the wife, be

dissolved by a decree of divorce on the ground that the other party—

[(i) has, after the solemnization of the marriage, had voluntary sexual intercourse

with any person other than his or her spouse; or

(ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or

(ib) has deserted the petitioner for a continuous period of not less than two years

immediately preceding the presentation of the petition; or]

(ii) has ceased to be a Hindu by conversion to another religion; or

[(iii) has been incurably of unsound mind, or has been suffering continuously or

intermittently from mental disorder of such a kind and to such an extent that the petitioner

cannot reasonably be expected to live with the respondent.

Explanation. —In this clause,

(a) the expression “mental disorder” means mental illness, arrested or

incomplete development of mind, psychopathic disorder or any other disorder or disability of

mind and includes schizophrenia;

AIR1997MAD135, 1996(2) CTC620

1995 2 Mad LJ 327

AIR 2009 Cal. 167.

Subs. by Act 68 of 1976, s. 7, for clause (i) (w.e.f. 27-5-1976).

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

disability of mind (whether or not including sub—normality of intelligence) which results in

abnormally aggressive or seriously irresponsible conduct on the part of the other party, and

whether or not it requires or is susceptible to medical treatment; or]

(v) has

* * * been suffering from venereal disease in a communicable form; or

(vi) has renounced the world by entering any religious order; or

(vii) has not been heard of as being alive for a period of seven years or more by those

persons who would naturally have heard of it, had that party been alive;

* * * * * *

Explanation to this section states that, in this sub-section, the expression “desertion”

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

cause and without the consent or against the wish of such party, and includes the willful

neglect of the petitioner by the other party to the marriage, and its grammatical variations and

cognate expressions shall be construed accordingly.

[(1A) Either party to a marriage, whether solemnized before or after the commencement

of this Act, may also present a petition for the dissolution of the marriage by a decree of

divorce on the ground—

(i) that there has been no resumption of cohabitation as between the parties to the

marriage for a period of

[one year] or upwards after the passing of a decree for judicial

separation in a proceeding to which they were parties; or

(ii) that there has been no restitution of conjugal rights as between the parties to the

marriage for a period of

[one year] or upwards after the passing of a decree for restitution of

conjugal rights in a proceeding to which they were parties.]

Certain words omitted by Act 68 of 1976, Sec 7 w.e.f. 27-05-1976

Ins. by Act 68 of 1976, s. 7 (w.e.f. 27-5-1976)

Ins. by Act 44 of 1964, s. 2 (w.e.f. 20-12-1964).

Subs. by Act 68 of 1976, s. 7, for “two years” (w.e.f. 27-5-1976)

Section 13(2) provides that, a wife may also present a petition for the dissolution of

her marriage by a decree of divorce on the ground, —

(i) in the case of any marriage solemnized before the commencement of this Act, that

the husband had married again before such commencement or that any other wife of the

husband married before such commencement was alive at the time of the solemnization of the

marriage of the petitioner:

Proviso to this section states that in either case the other wife is alive at the time of the

presentation of the petition; or

(ii) that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or

[bestiality; or]

[(iii) that in a suit under section 18 of the Hindu Adoptions and Maintenance Act,

1956

, or in a proceeding under section 125 of the Code of Criminal Procedure, 1973

(2 of 1974) (or under the corresponding section 488 of the Code of Criminal

Procedure, 1898 (5 of 1898), a decree or order, as the case may be, has been passed against

the husband awarding maintenance to the wife notwithstanding that she was living apart and

that since the passing of such decree or order, cohabitation between the parties has not been

resumed for one year or upwards;

(iv) that her marriage (whether consummated or not) was solemnized before she attained

the age of fifteen years and she has repudiated the marriage after attaining that age but

before attaining the age of eighteen years.

Explanation to this section states that this clause applies whether the marriage was

solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976

(68 of 1976).]

In Vishnu Kumar v. State of U.P. & Ors

,According to this case’s decision; where

parties settled to end their marriage, the Court ruled that such a settlement cannot be accepted

as a valid dissolution.

In Bipin Chander Jaisinghbhai Shah v. Prabhawati

, the Court decided the matter on

divorce upon the desertion as a ground for divorce. The Supreme Court clarified that

desertion involves both the actual cessation of cohabitation and the intention to end marital

relations (animus deserendi). The desertion must have continued for at least three years

before filing for divorce.

Ins. By Section 7 (w.e.f. 27-5-1976)

78 of 1956

AIR 2008 All.31

1957 AIR 176, 1956 SCR 838

In Satish Sitole v. Ganga

, It was held that although the husband failed to prove cruelty or

desertion, they had lived separately for 14 years. The court granted a divorce decree with

alimony under Article 142 of the Constitution of India.

In Rajendra Kumar Jajodia v. Puja Jajodia

,The Court held that irretrievable breakdown

of marriage is not a statutory ground for seeking a divorce decree.

In Saeesh Subhash Hegde v. Darshana Saeesh Hegde

The Court discusses the provisions

of the Hindu Marriage Act and Family Courts Act in light of Article 5 of the Portuguese Civil

Code.

In Naveen Kohli v. Neelu Kohli

according to the facts of the case, the wife filed multiple

cases against the husband, leading to a claim of mental cruelty by the husband. The Supreme

Court granted a divorce on the grounds of mental cruelty, citing irretrievable breakdown of

the marriage. Court added that verbal abuse and insults using obscene language that

constantly disturbs the other person’s mental serenity are examples of mental cruelty. Despite

granting divorce, the Court awarded substantial maintenance to the wife.

In Jasminder Singh vs. Smt. Prabhjinder Kaur

It was held that a wife's denial of sexual

intercourse to her husband amounts to cruelty.

In Prasanna Kumar v. R. Saraswathi

, the Court establishes that if evidence shows it was

the husband who deserted the spouse, he cannot obtain a decree of divorce.

In Narendra v. K. Meena

,The wife made unsubstantiated allegations and attempted

suicide. The Supreme Court held that such actions amounted to mental cruelty and granted

divorce to the husband.

In Kamaleshwari Bai v. Peeluram Latkhor Sahu

,It was observed that a wife initiating a

criminal prosecution, without intending to torture her husband, may not constitute cruelty.

In Savita Pandey v. Prem Chandra Pandey

,The Court emphasized that there can be no

desertion without prior cohabitation. For desertion to be a ground for divorce, it must be

proven that the spouse deserted without reasonable cause and against the will of the other.

AIR 2008 SC 3093 = 2008 (7) SCC 734

AIR 2008 Cal. 199

AIR 2008 Kant. 142

AIR 2006 SC 1675

AIR 2008 P&H 13

AIR 2009 Kant. 109

[(2016) 9 Supreme Court Cases 455

AIR 2010 Chattis. 16

AIR 2002 SUPREME COURT 591, 2002 (2) SCC 73

In Sanjay Pahariya v. Ms. Smruti Pahariya

,The Court clarifies that a decree of divorce

by mutual consent can only be granted if both parties give their mutual consent.

In Mayadevi v. Jagdish Prasad

, the husband initiated legal proceedings against his wife

citing that she failed to provide him with food and threatened harm to his family unless he

fabricated false dowry allegations against her. The Court, after reviewing statements and

evidence presented, concluded that the respondent's actions constituted mental cruelty

towards the appellant. Consequently, it ruled that it was untenable for the husband to continue

residing with his wife under such circumstances.

“Mental cruelty in this section can broadly be defined as that conduct which inflicts upon

the other party such mental pain and suffering as would make it not possible for that party to

live with the other. In other words, mental cruelty must be of such nature that the parties

cannot be reasonably be expected to live together.”

ALTERNATE RELIEF IN DIVORCE PROCEEDINGS (Section 13A)

Section 13A states that, in any proceeding under this Act, on a petition for dissolution

of marriage by a decree of divorce, except in so far as the petition is founded on the grounds

mentioned in clauses (ii), (vi) and (vii) of sub-section (1) of section 13, the court may, if it

considers it just so to do having regard to the circumstances of the case, pass instead a decree

for judicial separation.

“Under the Act as now amended in 1976 Section 10 (1) the grounds on which a degree

for judicial separation may be passed are identical to that required in respect of a decree for

divorce. A petitioner therefore may on the same facts and same grounds sake relief under

section 13 or instead may ask only for relief by way of judicial separation”

In Rohit Chaturvedi v. Smt. Neha Chaturvedi

, According to the facts of the case the

parties got married in 2013 but separated in 2014, with allegations of non-consummation and

cruelty from both sides. The husband filed for divorce on the grounds of cruelty, citing the

wife's refusal to consummate the marriage, misbehavior with his parents, and instigating a

mob against him. The wife countered with allegations of an illicit relationship between the

husband and his sister-in-law and demanded dowry. The Family Court dismissed the

AIR 2008 Bom. 173

(AIR 2007 SC 1426)

Justice P.S. Narayana, Hindu Law(2011), Asia Law House, p. 105

Mulla,Hindu law, Lexis Nexis p.961

023:AHC:211396-DB

husband's divorce petition. Upon appeal, the Allahabad High Court observed that the Family

Court erred in not considering alternative relief under Section 13A. The High Court

highlighted that small disputes and incidents do not constitute cruelty and considered judicial

separation as a more appropriate remedy in this case.

In Prabhakar S. Nikam v. Sathyabhama Nikam

, the Court remarked that “Section 13 A

cannot be interpreted to mean that the court can or ought to grant a degree for judicial

separation where it cannot or does not grant decree for divorce. If the section is interpreted in

the way as such as that every petition may either in a decree for a divorce or judicial

separation. There would be no occasion to dismiss the petition for divorce at all”.

In Samar Ghosh v. Jaya Ghosh

The Court remarked that, “Where there has been a long

period of continuous separation, it may fairly be concluded that the matrimonial bond is

beyond repair. The marriage becomes a fiction though supported by a legal tie”.

DIVORCE BY MUTUAL CONSENT (Section 13B)

By virtue of Section 13B(1) , subject to the provisions of this Act a petition for

dissolution of marriage by a decree of divorce may be presented to the district court by both

the parties to a marriage together, whether such marriage was solemnized before or after the

commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), on the ground

that they have been living separately for a period of one year or more, that they have not been

able to live together and that they have mutually agreed that the marriage should be

dissolved.

Section 13B(2) states that ,on the motion of both the parties made no earlier than six

months after the date of the presentation of the petition referred to in sub-section (1) and not

later than eighteen months after the said date, if the petition is not withdrawn in the

meantime, the court shall, on being satisfied, after hearing the parties and after making such

inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the

petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect

from the date of the decree.

In Amardeep Singh v. Harveen Kaur

, Here in this case the couple filed for divorce by

mutual consent but sought waiver of the six-month cooling-off period. The Supreme Court

ruled that the six-month period is not mandatory but directory. It can be waived if the court is

satisfied that the parties have been living separately for over 18 months, have failed in

AIR 2008 Bom.129

[(2007) 4 SCC 511]

AIR 2017 SUPREME COURT 4417

reconciliation efforts, and have settled all differences.

In Navdeep Kaur v. Maninder Singh

,The Court ruled that in cases of divorce by mutual

consent, the physical presence of both parties is not compulsory, and they can be represented

by their legally appointed attorneys.

In Avneesh Sood v. Tithi Sood

the Court remarked that “from the analysis of the section,

it will be apparent that the filing of the petition with mutual consent does not authorize the

Court to make a decree for divorce. There is a period of waiting from 6 to 18 months. This

interregnum was obviously intended to give time and opportunity to the parties to reflect on

their move and seek advice from relations and friends. In this transitional period one of the

parties may have a second thought and change the mind not to proceed with the petition”.

In Smruti Pahariya v. Sanjay Pahariya

, Here the couple filed for divorce by mutual

consent, but the husband later refused to attend the proceedings. The Supreme Court held that

mutual consent must continue till the decree is passed, and both parties must be present to

confirm their consent.

In Smt. Poonam Sharma and another v. Nil

, The Court discussed whether the six-month

waiting period for a divorce by mutual consent is mandatory or merely advisory.

In Grandhi Venkata Chitti Abbal

case, The Court reiterated that the six-month waiting

period serves a purpose, but can be waived in exceptional circumstances So the case

emphasized the importance of the cooling-off period.

In Dineshkumar Shukla v. Smt. Neeta

,This case examined whether the six-month waiting

period is essential when couples file a joint petition for divorce by mutual consent.

In Pankaj Rajput v. Smt. Kirti Rajput

,The Court waived the cooling-off period,

considering the prolonged separation and amicable settlement between the parties. The

couple had settled all disputes and sought a waiver of the six-month period.

In Kummo Devi v. Jai Pal

,The case considered the legal implications and permissibility

of one party withdrawing their consent in a mutual consent divorce proceeding.

AIR 2010 P&H 90.

559 of 2011; 1932 of 2012

AIR 2008 BOMBAY 173, 2008 (6) ALJ (NOC) 1226 (BOM.)

AIR 2009 MP 249.

AIR1999AP91, 1998(5) ALT618, II (1999) DMC621

AIR 2005 Μ.Ρ. 106.

AIRONLINE 2021 MP 2318

AIR 2010 HP 39.

In Smt. Sweety, E.M. v. Sunil Kumar, K.B

,This case addressed the issue of granting a

divorce by mutual consent, specifically focusing on the exemption from the requirement to

file a consent petition within one year of marriage.

NO PETITION FOR DIVORCE TO BE PRESENTED WITHIN ONE YEAR OF

MARRIAGE (Section 14)

By virtue of Section 14(1), notwithstanding anything contained in this Act, it shall not be

competent for any court to entertain any petition for dissolution of a marriage by a decree of

divorce,

[unless at the date of the presentation of the petition one year has elapsed] since the

date of the marriage:

Provided that the court may, upon application made to it in accordance with such rules as

may be made by the High Court in that behalf, allow a petition to be presented

[before

one year has elapsed] since the date of the marriage on the ground that the case is one of

exceptional hardship to the petitioner or of exceptional depravity on the part of the

respondent, but if it appears to the court at the hearing of the petition that the petitioner

obtained leave to present the petition by any misrepresentation or concealment of the nature

of the case, the court may, if it pronounces a decree, do so subject to the condition that the

1, s. 7, for “bestiality” (w.e.f. 27-5-1976). 2. Ins. by s. 7, ibid. (w.e.f. 27-5-2976).

3. Ins. by s. 8, ibid. (w.e.f. 27-5-1976).

4. Subs. by s. 9, ibid., for certain words (w.e.f. 27-5-1976).

AIR 2008 Kant. 1

Subs. by Act 68 of 1976

decree shall not have effect until after the 1[expiry of one year] from the date of the marriage

or may dismiss the petition without prejudice to any petition which may be brought after

[expiration of the said one year] upon the same or substantially the same facts as those

alleged in support of the petition so dismissed.

By virtue of Section 14(2), in disposing of any application under this section for leave to

present a petition for divorce before the

[expiration of one year] from the date of the

marriage, 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].

In Arpit Garg v. Ayushi Jaiswal

,According to the facts of the case, the Court rejected the

application for divorce, noting that it was filed within the one-year prohibition period. The

Court emphasized that the conditions for exceptional hardship or depravity were not

sufficiently demonstrated to warrant an exception under Section 14.

In Rabindra Nath Mukherjee v. Iti Mukherjee

,the husband filed for divorce on the

grounds of cruelty just before the completion of one year from the marriage date. The

Calcutta High Court held that the provision of one year is not mandatory but directory,

implying the court has discretion based on the circumstances of the case.

In Indumathi v. Krishnamurthy

,A petition for divorce was filed within a few days of

marriage without an application under Section 14 seeking leave. The Madras High Court held

that Section 14(1) is directory and not mandatory, allowing for judicial discretion in

entertaining such petitions.

In Sankalp Singh v. Prarthana Chandra

,The couple filed for divorce within the one-

year period, claiming denial of sex and severe temperamental differences. The Delhi High

Court agreed that exceptional hardship or depravity could justify a waiver of the one-year

period, but emphasized that the case must clearly fall under these categories.

Subs. by Act 68 of 1976

AIRONLINE 2019 ALL 1043, (2019) 136 ALL LR 524, (2019

95CWN1085, II(1991)DMC227

1999(1)CTC210, (1998)IIIMLJ435

2013 SCC Online Del 855

DIVORCED PERSONS WHEN MAY MARRY AGAIN (Section15)

Section 15(2) provided that, when a marriage has been dissolved by a decree of divorce

and either there is no right of appeal against the decree or, if there is such a right of appeal,

the time for appealing has expired without an appeal having been presented, or an appeal has

been presented but has been dismissed, it shall be lawful for either party to the marriage to

marry again.

In Anurag Mittal v. Shaily Mishra Mittal

,here the petitioner filed for divorce which was

granted by the trial court. Respondent appealed against this decision. During the pendency of

the appeal, Anurag Mittal remarried. The Supreme Court held that the remarriage was void as

the appeal was still pending. The court emphasized the necessity of finalizing the decree

before remarrying to ensure the legality of subsequent marriages.

In Smt.Kumari Priti alias Priti Gupta alias Neelum Gupta v. Sanajy Prasad

the non-

examination of a medical practitioner to prove the fact that the wife was suffering from

incurable mental disease and the effect thereof had been discussed in this case.

In Balbir Singh v. Baljinder Kaur, Balbir Singh married again after obtaining a divorce

decree. His ex-wife appealed the decision, but the appeal was dismissed. The court ruled that

once the appeal was dismissed, the conditions of Section 15 were met, making the second

marriage lawful.

* * * * *

LEGITIMACY OF CHILDREN OF VOID AND VOIDABLE MARRIAGES

(Section16)

Section 16 (1) of the act provides that. notwithstanding that a marriage marriage is null

and void under section 11, any child of such marriage who would have been legitimate if the

marriage had been valid, shall be legitimate, whether such child is born before or after the

commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), and whether or

not a decree of nullity is granted in respect of that marriage under this Act and whether or

not the marriage is held to be void otherwise than on a petition under this Act.

AIR 2018 SUPREME COURT 3983, 2018 (9) SCC 691,

AIR 2010 Jharkhand 139

Proviso. omitted by Act 68 of 1976

Section 16 (2) provides that, where a decree of nullity is granted in respect of a

voidable marriage under section 12, any child begotten or conceived before the decree is

made, who would have been the legitimate child of the parties to the marriage if at the date of

the decree it had been dissolved instead of being annulled, shall be deemed to be their

legitimate child notwithstanding the decree of nullity.

By virtue of Section 16(3), nothing contained in sub-section (1) or sub-section (2)

shall be construed as conferring upon any child of a marriage which is null and void or

which is annulled by a decree of nullity under section 12, any rights in or to the property

of any person, other than the parents, in any case where, but for the passing of this Act,

such child would have been incapable of possessing or acquiring any such rights by reason of

his not being the legitimate child of his parents.]

“Coming to legal position after the Hindu Marriage Act came into existence, we find that

original Section 16 laid down that were a decree of nullity is granted in respect of any

marriage under section 11 or section12, any child begotten or conceived before the decree is

made who would have been the legitimate child of the parties to the marriage if it had been

dissolved instead of having been declared null and void or annulled by any decree of nullity

shall be deemed to be their legitimate child notwithstanding the decree of nullity.”

In P.E.K. Kalliani Amma & Ors. vs. K. Devi & Ors

100

., The Court observed the

constitutionality and scope of Section 16 of the Hindu Marriage Act. Following are the

inferences;

o Section 16 is not ultra vires of the Constitution of India.

o Due to the legal fiction in Section 16, illegitimate children must be treated as legitimate for

all practical purposes, including succession to their parents' properties.

o This rule is limited to the properties of the parents, and illegitimate children cannot succeed

to the properties of any other relation based on this rule.

In Rameshwari Devi v. State of Bihar

101

, facts of the case as follows with the dispute

concerns to payment of family pension and death-cum-retirement gratuity to two wives of

Narain Lal, who died in 1987 while posted as Managing Director, Rural Development

Authority of the State of Bihar. Appellant is the first wife. Narain Lal is stated to have

married second time with Yogmaya Devi while the appellant was still alive. From the first

Justice P.S. Narayana, Hindu Law(2011), Asia Law House, p. 199

100

AIR 1996 SC 1963

101

AIR 2000 SUPREME COURT 735

marriage he had one son and from the second marriage four sons born. Learned single Judge

in his judgment held that children born to Narain Lal from the wedlock with Yogmaya Devi

were entitled.

In Rameshwari Devi vs. State of Bihar & Ors

102

,Court found the inheritance rights of

children born from void marriages regarding pension and other death benefits. It was held

that:

o Children born out of void marriages are legitimate under Section 16 of the Hindu Marriage

Act.

o In the case of a deceased Government employee who died intestate, children born from a void

marriage are entitled to share in family pension, death-cum-retiral benefits, and gratuity,

along with children born from a legal wedlock.

PUNISHMENT OF BIGAMY (SECTION17)

Section 17 states that, any marriage between two Hindus solemnized after the

commencement of this Act is void if at the date of such marriage either party had a

husband or wife living; and the provisions of sections 494 and 495 of the Indian Penal Code,

1860 (45 of 1860), shall apply accordingly.

While analyzing the history it was very evident that “although a second husband for

the wife is nowhere prescribed, not even after the death of the first, the husband is to marry

anew after the death of his wife without delay. But even in the life time of his wife it is not

forbidden for him to get beside her any number of married wives or concubines that he may

wish for”

103

Considering the discussion on polygamy/bigamy through the prism of gender

justice nowadays, the case of Narsu Appa Mali

104

, is relevant. In this case, the question under

consideration arose in this way “it was urged that the provisions of Hindu Law, which

allowed polygamy for males but provided strict monogamy for females, were violative of the

provisions of equality and non-discrimination on the ground of sex as contained in Article 14

and Article 15 of the Constitution. In Yusuf Abdul Aziz case

105

the court identified that “sex is

a reasonable classification”

106

102

AIR 2000 SC 375

103

Julius Jolly, Hindu Law and Custom, Bhartiya Publishing House (1975), p.146

104

AIR 1952 Bom. 84

105

AIR 1954 SC.321

106

A.M Bhattacharjee, Hindu Law and the Constitution, Eastern Law House (2018), p.115

In Gopal Lal v. State of Rajasthan

107

, According to the facts of the case , Gopal Lal

was accused of bigamy by his first wife. He argued that his second marriage was not valid as

it did not follow the necessary rituals. The Supreme Court clarified that for a second marriage

to be considered bigamous under Section 17, it must be a valid marriage according to Hindu

rites and ceremonies. If the second marriage is not performed with proper ceremonies, it

cannot be considered bigamy.

In Kanwal Ram v. Himachal Pradesh Administration

108

, In this case, Kanwal Ram

was charged with bigamy under Section 17 of the Hindu Marriage Act. He contended that his

second marriage did not involve all the necessary rites. The Supreme Court ruled that in order

to prove bigamy under Section 17, it must be established that the second marriage was

performed with due ceremonies required by Hindu law. The court held that the prosecution

must prove beyond reasonable doubt that the second marriage was validly performed.

In Lata Singh v. State of Uttar Pradesh

109

, Here in this case Lata Singh filed a case

against her husband, alleging that he had married another woman during her lifetime. The

Supreme Court reaffirmed that a second marriage during the subsistence of the first marriage

is void and punishable under Section 17 of the Hindu Marriage Act, read with Section 494 of

the Indian Penal Code. The court stressed the importance of proving that the second marriage

was validly performed according to Hindu rituals.

In Bhagwati Saran Singh v. Parmeshwari Nandar Singh

110

, In this case Bhagwati

Saran Singh married Parmeshwari Nandar Singh while still being married to his first wife.

The court held that the second marriage was void and that Bhagwati Saran Singh was guilty

of bigamy under Section 17. The decision emphasized that bigamy charges must be supported

by evidence of the first marriage's subsistence and the second marriage's validity.

PUNISHMENT FOR CONTRAVENTION OF CERTAIN OTHER CONDITIONS

FOR A HINDU MARRIAGE (SECTION18)

Section 18 provides that, every person who procures a marriage of himself or herself

to be solemnized under this Act in contravention of the conditions specified in clauses (iii),

(iv),

111

[and (v)] of section 5 shall be punishable—

112

[(a) in the case of contravention of the condition specified in clause (iii) of section 5,

107

AIR 1979 SC 713

108

AIR 1966 SC 614

109

AIR 2006 SC 2522

110

AIR 1942 Oudh 197

111

Subs. by Act 2 of 1978, s. 6 and Schedule, for “(v) and (vi)” (w.e.f. 1-10-1978

112

Subs. by Act 6 of 2007

with rigorous imprisonment which may extend to two years or with fine which may extend to

one lakh rupees, or with both.]

(b) in the case of a contravention of the condition specified in clause (iv) or clause (v)

of section 5, with simple imprisonment which may extend to one month, or with fine which

may extend to one thousand rupees, or with both;

113

* * *

114

* * * * * *

113

The word “and” omitted by Act 2 of 1978, s. 6 and Schedule (w.e.f. 1-10-1978).

114

Clause (c) omitted by s. 6 and Schedule, ibid. (w.e.f. 1-10-1978).

JURISDICTION AND PROCEDURE

115

COURT TO WHICH PETITION SHALL BE PRESENTED (Section19)

By virtue of Section 19, every petition under this Act shall be presented to the District

Court within the local limits of whose ordinary original civil jurisdiction: —

(i) the marriage was solemnized, or

(ii) the respondent, at the time of the presentation of the petition, resides, or

(iii) the parties to the marriage last resided together, or

116

[(iiia) in case the wife is the petitioner, where she is residing on the date of presentation

of the petition; or]

(iv) the petitioner is residing at the time of the presentation of the petition, in a case

where the respondent is at that time, residing outside the territories to which this Act extends,

or has not been heard of as being alive for a period of seven years or more by those persons

who would naturally have heard of him if he were alive.]

In Rathna v. Ramachandra

117

, When a decree of divorce is issued under the Family Courts

Act, a separate suit for maintenance can be filed in a court different from the one that passed

the divorce decree.

In Manoj Kumar Tripathy v. Mayarani Praharaj

118

, the Court discussed the abandonment

of objection to jurisdiction.

CONTENTS AND VERIFICATION OF PETITIONS (SECTION 20)

By virtue of section 20(1) of the Act, every petition presented under this Act shall

state as distinctly as the nature of the case permits the facts on which the claim to relief is

founded 3[and, except in a petition under section 11, shall also state] that there is no collusion

between the petitioner and the other party to the marriage.

Section 20(2) states that, statements contained in every petition under this Act shall be

verified by the petitioner or some other competent person in the manner required by law for

the verification of plaints, and may, at the hearing, be referred to as evidence.

APPLICATION OF ACT 5 OF 1908 (SECTION 21)

Section 21 states that, subject to the other provisions contained in this Act and to

such rules as the High Court may make in this behalf, all proceedings under this Act shall

115

Subs. by Act 68 of 1976, s. 13, for “and shall also State” (w.e.f. 27-5-1976)

116

Ins.by Act. No. 50 of 2003

117

1998 DMC 419

118

AIR 2010 Ori. 131

be regulated, as far as may be, by the Code of Civil Procedure, 1908.

In Bhupender Kumar v. Angoori Devi

119

, The Court remarked that the provisions

regulating the procedural part of an enactment must be construed liberally so as to achieve the

ends of justice and the construction which will frustrate or be detrimental to the basic rule of

law, must be avoided.

120

POWER TO TRANSFER PETITIONS IN CERTAIN CASES (SECTION 21A)

Section 21A (1) (a) states that petition under this Act has been presented to a

district court having jurisdiction by a party to a marriage praying for a decree for judicial

separation under section 10 or for a decree of divorce under section 13, and

Section 21A (1)(b) states that another petition under this Act has been presented

thereafter by the other party to the marriage praying for a decree for judicial separation under

section 10 or for a decree of divorce under section 13 on any ground, whether in the same

district court or in a different district court, in the same State or in a different State,

the petitions shall be dealt with as specified in sub-section (2).

Section 21 A (2) states that in a case where sub-section (1) applies, —

(a) if the petitions are presented to the same district court, both the petitions shall be

tried and heard together by that district court;

(b) if the petitions are presented to different district courts, the petition presented

later shall be transferred to the district court in which the earlier petition was presented and

both the petitions shall be heard and disposed of together by the district court in which the

earlier petition was presented.

Section 21A(3) provides that in a case where clause (b) of sub-section (2) applies, the

court or the Government, as the case may be, competent under the Code of Civil Procedure,

1908 (5 of 1908), to transfer any suit or proceeding from the district court in which the later

petition has been presented to the district court in which the earlier petition is pending, shall

exercise its powers to transfer such later petition as if it had been empowered so to do under

the said Code.

121

119

1998 DMC 307

120

Ins. By Act 68 of 1976, w.e.f. 27-05-1976

121

Section 21 A (3)

SPECIAL PROVISION RELATING TO TRIAL AND DISPOSAL OF PETITIONS

UNDER THE ACT (Section 21B)

Section 21B (1) provides that, the trial of a petition under this Act shall, so far as is

practicable consistently with the interests of justice in respect of the trial, be continued from

day to day until its conclusion unless the court finds the adjournment of the trial beyond the

following day to be necessary for reasons to be recorded.

Section 21B (2) states that every petition under this Act shall be tried as expeditiously

as possible and endeavor shall be made to conclude the trial within six months from the date

of service of notice of the petition on the respondent.

Section 21B (3) states that every appeal under this Act shall be heard as

expeditiously as possible, and endeavor shall be made to conclude the hearing within three

months from the date of service of notice of appeal on the respondent.

DOCUMENTARY EVIDENCE (Section 21C)

Section 21C provides that, notwithstanding anything in any enactment to the contrary,

no document shall be inadmissible in evidence in any proceeding at the trial of a petition

under this Act on the ground that it is not duly stamped or registered.

PROCEEDINGS TO BE IN CAMERA AND MAY NOT BE PRINTED OR

PUBLISHED (Section 22)

Section 22(1) provides that, every proceeding under this Act shall be conducted in camera

and it shall not be lawful for any person to print or publish any matter in relation to any such

proceeding except a judgment of the High Court or of the Supreme Court printed or

published with the previous permission of the court.

Section 22(2) provides that, if any person prints or publishes any matter in contravention

of the provisions contained in sub-section (1), he shall be punishable with fine which may

extend to one thousand rupees.]

DECREE IN PROCEEDINGS (SECTION 23)

Section 23 (1) provides that, in any proceeding under this Act, whether

defended or not, if the court is satisfied that

(a) any of the grounds for granting relief exists and the petitioner 2[except in cases

where the relief is sought by him on the ground specified in sub-clause (a), sub-clause (b) or

sub-clause (c) of clause (ii) of section 5] is not in any way taking advantage of his or her own

wrong or disability for the purpose of such relief, and

(b) where the ground of the petition is the ground specified

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* * * in clause (i) of

sub-section (1) of section 13, the petitioner has not in any manner been accessory to or

connived at or condoned the act or acts complained of, or where the ground of the petition is

cruelty the petitioner has not in any manner condoned the cruelty, and

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[(bb) when a divorce is sought on the ground of mutual consent, such consent has not

been obtained by force, fraud or undue influence, and]

(c)

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[the petition (not being a petition presented under section 11)] is not presented

or prosecuted in collusion with the respondent, and

(d) there has not been any unnecessary or improper delay in instituting the proceeding, and

(e) there is no other legal ground why relief should not be granted, then, and in

such a case, but not otherwise, the court shall decree such relief accordingly.

By virtue of Section 23 (2), before proceeding to grant any relief under this Act, it shall

be the duty of the court in the first instance, in every case where it is possible so to do

consistently with the nature and circumstances of the case, to make every endeavor to bring

about reconciliation between the parties:

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[Provided that nothing contained in this sub-section shall apply to any proceeding

wherein relief is sought on any of the grounds specified in clause (ii), clause (iii), clause (iv),

clause (v), clause (vi) or clause (vii) of sub-section (1) of section 13.]

122

Certain words omitted by Act 68 of 1976, s. 16, for s. 22 (w.e.f. 27-5-1976).

123

Ins. by s. 68 of 1976, Sec.16 (w.e.f. 27-5-1976).

124

Subs. by s. 16, ibid., for “the petition” (w.e.f. 27-5-1976)

125

Ins. by s. 68 of 1976(w.e.f. 27-5-1976).

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[(3) For the purpose of aiding the court in bringing about such reconciliation, the court

may, if the parties so desire or if the court thinks it just and proper so to do, adjourn the

proceedings for a reasonable period not exceeding fifteen days and refer the matter to any

person named by the parties in this behalf or to any person nominated by the court if the

parties fail to name any person, with directions to report to the court as to whether

reconciliation can be and has been, effected and the court shall in disposing of the proceeding

have due regard to the report.

In virtue of Section 23(4) in every case where a marriage is dissolved by a decree of

divorce, the court passing the decree shall give a copy thereof free of cost to each of the

parties.]

In Amit Kumar Banarjee v. Sefali Banarjee

127

, the Court quoted “The scope of section 23

has been propounded by the supreme court in case reported in Dr. N .G Dastane v. Mrs. S.

Dastane,

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it has been observed by the Court that in a matrimonial petition doubtless, the

burden must lie on the petitioner to establish his or her case for ordinarily the burden lies on

the party which affirms a fact not on the party which denies it.

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RELIEF FOR RESPONDENT IN DIVORCE AND OTHER PROCEEDINGS

(SECTION 23A)

Section 23A states that in any proceeding for divorce or judicial separation or restitution

of conjugal rights, the respondent may not only oppose the relief sought on the ground of

petitioner’s adultery, cruelty or desertion, but also make a counter-claim for any relief under

this Act on that ground; and if the petitioner’s adultery, cruelty or desertion is proved, the

court may give to the respondent any relief under this Act to which he or she would have

been entitled if he or she had presented a petition seeking such relief on that ground.

In Amarjit Kaur v. Harbhajan Singh

130

, This case addresses the factors to be considered

when granting interim maintenance. The principles discussed in E. Shanthi vs. Vasudev

131

H.K. were referenced to guide the decision-making process for awarding interim support.

126

Ins. by s. 68 of 1976 (w.e.f. 27-5-1976).

127

1998 DMC 37

128

AIR 1975 SC 1534

129

Ins. by s. 68 of 1976 (w.e.f. 27-5-1976).

130

2003 (10) SCC 228 = 2002 (9) JT 440 2002 (8) Scale 260.

131

AIR 2005 Kant. 417.

In Debnarayan Halder v. Anushree Halder

132

,In this case, the focus was on the quantum

of alimony pendente lite. The Court discussed how to determine the appropriate amount of

maintenance during the pendency of divorce proceedings.

In Amitabh Bagchi v. Ena Bagchi, this case dealt with the issue of allowing a husband to

be examined via video conferencing. The court considered the legal framework and

appropriateness of remote testimony in matrimonial disputes.

In Subhankar Mukherjee v. Rakhi Mukherjee Nee Banerjee

133

,The court addressed the

grant of alimony pendente lite in cases where the husband denies the marriage on the grounds

of the wife having a spouse from a prior marriage. The decision distinguished cases such as

AIR 2005 Raj. 290 and AIR 1988 SC 644, ruling that such a denial does not preclude the

wife from receiving interim alimony.

In. S.S. Bindra v. Tarvinder Kaur

134

,The case examined how maintenance should be

calculated after accounting for compulsory salary deductions. It was held that the remaining

income should be divided equally among all family members entitled to maintenance, with an

additional share for the earning spouse to cover extra expenses.

In A. Venkatesan v. S. Kalpana

135

,The Court explored the scope and application of

Section 24 of the Hindu Marriage Act. They outlined the criteria and considerations

necessary for granting interim maintenance under the Act.

MAINTENANCE PENDENTE LITE AND EXPENSES OF PROCEEDINGS

(SECTION 24)

Section 24 provides that. 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 income and the income of the respondent, it may seem to the court to be

132

AIR 2005 Cal. 251.

133

AIR 2009 Cal. 5.

134

AIR 2004 Del. 442

135

AIR 2009 Mad. 85.

reasonable.

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

such monthly sum during the proceeding, shall, as far as possible, be disposed of within sixty

days from the date of service of notice on the wife or the husband, as the case may be.]

In Mrs. Bijal Parag Dave v. Parag Labhashankar Dave

136

the Court found that while the

pendente lite is under consideration before the Court, then the Court will only look into the

matter of inability of spouse to maintain herself not on any other circumstances.

In Bharat Hegde v. Smt. Saroj Hegde

137

, the Court remarked that “it is obvious that the

focus of enquiry has to be the means of the applicant spouse to maintain him and or herself as

also the financial means of the non-applicant”.

PERMANENT ALIMONY AND MAINTENANCE (SECTION 25)

By virtue of Section 25(1) any court exercising jurisdiction under this Act may, at

the time of passing any decree or at any time subsequent thereto, on application made to it for

the purpose by either the wife or the husband, as the case may be, order that the respondent

shall

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* * * pay to the applicant for her or his maintenance and support such gross sum or

such monthly or periodical sum for a term not exceeding the life of the applicant as, having

regard to the respondent’s own income and other property, if any, the income and other

property of the applicant 4[the conduct of the parties and other circumstances of the case], it

may seem to the court to be just, and any such payment may be secured, if necessary, by a

charge on the immovable property of the respondent.

Section 25 (2) provides that if the court is satisfied that there is a change in the

circumstances of either party at any time after it has made an order under sub-section (1), it

may, at the instance of either party, vary, modify or rescind any such order in such manner as

the court may deem just.

Section 25 (3) states that if the court is satisfied that the party in whose favor an order

has been made under this section has re-married or, if such party is the wife, that she has not

remained chaste, or, if such party is the husband, that he has had sexual intercourse with any

woman outside wedlock, 5[it may at the instance of the other party vary, modify or rescind

any such order in such manner as the court may deem just].

136

AIR 1999 Bom. 237

137

AIR 2007 Del 197

138

The words “while the applicant remains unmarried” omitted by Act 68 of 1976, s.

“In the earliest period of time the unchaste widow was compelled to forfeits all her

claims to maintenance and right of inheritance allowed to her in the later texts as soon as she

violates her faith to her deceased husband. She is then a ‘wanton woman’ (svairini) and even

of under the pressure of extreme poverty she surrenders herself to a stranger she will be

excommunicated from the caste if she does not perform one of the prescribed penances and

her touch pollutes everybody who comes near her.”

139

In Suvarnalatha v. Mohan Anandrao Deshmukh and Anr

140

The initial finding in the divorce proceeding that the wife was schizophrenic was overturned

in custody proceedings due to potential ill effects on the child. Consequently, the quantum of

permanent alimony was reconsidered.

In Susanth Kumar Mishra v. Smt.Subhransubala Mishra

141

Given that there was no possibility for the parties to live together, and they had stayed

together only briefly after marriage, the dissolution of the marriage was granted. Permanent

alimony for both the wife and child was deemed appropriate.

In Rashmi Pradip Kumar Jain v. Pradeep Kumar (1994 (2) DMC 25):

The court ruled in favor of granting permanent alimony to the wife upon dissolution of the

marriage and granted only when the wife has no sufficient independent source of income.

In Bhayalal v. Phoolavathi Bai

142

The court opined that when the marriage is

declared null and void under section 11 of the Hindu Marriage Act then the Court has no

jurisdiction to grant maintenance

In Vijayalakshmi v. Bheem Reddy

143

,The Court held for that the wife is entitled to get

the alimony in the event of marriage dissolution.

CUSTODY OF CHILDREN (SECTION 26)

Section 26 provides that , in any proceeding under this Act, the court may, from time

to time, pass such interim orders and make such provisions in the decree as it may deem just

and proper with respect to the custody, maintenance and education of minor children,

consistently with their wishes, wherever possible, and may, after the decree, upon application

by petition for the purpose, make from time to time, all such orders and provisions with

139

Julius Jolly, Hindu Law and Custom, Bhartiya Publishing House (1975), p.153

140

AIR 2010 SC 1586

141

AIR 2009 Ori. 88

142

(1993 (2) DMC 398)

143

(1998 (2) DMC 407)

respect to the custody, maintenance and education of such children as might have been made

by such decree or interim orders in case the proceeding for obtaining such decree were still

pending, and the court may also from time to time revoke, suspend or vary any such orders

and provisions previously made:

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[Provided that the application with respect to the maintenance and education of the

minor children, pending the proceeding for obtaining such decree, shall, as far as possible, be

disposed of within sixty days from the date of service of notice on the respondent.]

In Vikram Vir Vohra v. Shalini Bhalla

145

, The Court remarked that “the court could make,

from time to time such interim orders as it might deem just and proper with respect to

custody”.

In Gaurav Nagpal v. Sumedha Nagpal

146

,it was held that the Court might take action in

the form of interim orders in order to provide safe custody of child as well as for the

education of the child.

DISPOSAL OF PROPERTY (SECTION 27)

Section 27 provides that. in any proceeding under this Act, the court may make such

provisions in the decree as it deems just and proper with respect to any property presented, at

or about the time of marriage, which may belong jointly to both the husband and the wife.

In Manish Nema v. Sandhya Nema

147

, it was observed that the application for reclaiming

the sthridhan is stand valid when the marriage declared as null and void.

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APPEALS FROM DECREES AND ORDERS (SECTION 28)

By virtue of Section 28(1), all decrees made by the court in any proceeding under this Act

shall, subject to the provisions of sub-section (3), be appealable as decrees of the court made

in the exercise of its original civil jurisdiction, and every such appeal shall lie to the court to

which appeals ordinarily lie from the decisions of the court given in the exercise of its

original civil jurisdiction.

By virtue of Section 28(2), orders made by the court in any proceeding under this Act

under section 25 or section 26 shall, subject to the provisions of sub-section (3), be

appealable if they are not interim orders, and every such appeal shall lie to the court to which

appeals ordinarily lie from the decisions of the court given in exercise of its original civil

jurisdiction.

By virtue of Section 28(3), there shall be no appeal under this section on the subject of costs

only.

144

Ins. By Act No. 49 of 2001, w.e.f. 24-09-2001

145

2010 (4) SCC 409

146

2009 1SC 42

147

AIR 2009 MP 108

148

Subs. by Act 50 of 2003, s. 5, for “period of thirty days” (w.e.f. 23-12-2003).

By virtue of Section 28(4), every appeal under this section shall be preferred within

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[period of ninety days] from the date of the decree or order.

ENFORCEMENT OF DECREES AND ORDERS (SECTION 28A)

By virtue of Section 28.A, all decrees and orders made by the court in any proceeding

under this Act shall be enforced in the like manner as the decrees and orders of the court

made in the exercise of its original civil jurisdiction for the time being in forced.]

SAVINGS AND REPEALS

SAVINGS (SECTION 29)

By virtue of Section 29(1), a marriage solemnized between Hindus before the

commencement of this Act, which is otherwise valid, shall not be deemed to be invalid or

ever to have been invalid by reason only of the fact that the parties thereto belonged to the

same gotra or pravara or belonged to different religions, castes or sub-divisions of the same

caste.

By virtue of Section 29(2) nothing contained in this Act shall be deemed to affect any

right recognized by custom or conferred by any special enactment to obtain the dissolution of

a Hindu marriage, whether solemnized before or after the commencement of this Act.

Section 29(3) provides that, nothing contained in this Act shall affect any proceeding

under any law for the time being in force for declaring any marriage to be null and void or

for annulling or dissolving any marriage or for judicial separation pending at the

commencement of this Act, and any such proceeding may be continued and determined as if

this Act had not been passed.

Section 29(4) states that Nothing contained in this Act shall be deemed to affect the

provisions contained in the Special Marriage Act, 1954, (43 of 1954) with respect to

marriages between Hindus solemnized under that Act, whether before or after the

commencement of this Act.

[Repeals] (Section 30)

Rep. by the Repealing and Amending Act, 1960 (58 of 1960), s. 2 and the First Schedule

(w.e.f. 26-12-1960).

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Subs. by Act 50 of 2003, s. 5, for “period of thirty days” (w.e.f. 23-12-2003).