PART I

INSTrrUTION OF MARRIAGE
 26

CHAPTER 1

Changing Facets of Marriage

Marriage is the very foundation of human civilisation and civil society. The insti-
tution of marriage has been made sanctified and sacrosanct so much so under most of
the sy5,1ents that prevailed sometime or other in the world tfut it began to be adored and
worshipped by their adherents who pushed its objective to the background in course of
time. As a re5,wt, society in general and women in particular were hard hit. In the late
eighteenth century, the French Revolution, the democratic ideas and industriali5,m came
to drive the blow on the base of the very fetish character of this institution. Hereafter
people began to raise doubt on the relevance and utility of marriage as an institution.
Some sociologi~1s attempted an empirical ~1udy to see if an alternative to marriage is at
all possible. In tllis part of the Indian sub-continent four m~or commwuties, Hindus,
Muslims. Christians and Parsis hold their respective system of marriage. In India laws
on marriage and divorce form part of the personal laws. In respect of these subjects each
community is governed by its own personal law deriving sanctity from religion. In addi-
tion there exi~1S a secular law providing for a civil form of marriage. It is the Special
Marriage Act, 1954. This can be availed by the persons domiciled in India regardless of
their faith. Besides. any existing religious marriage can be registered under the Special
Marriage Act, 1954. For the specific purpose of the present study, it is necessary to look
into the nature of marriages of four principal communities.
 27

A. Nature of marriages under various

family laws

(a) Nature of marriage under Hindu law

Marriage is one of the most important of all Samaskaras under the Gryha Sutras.
According to Apasthamba, "Marriage was meant for doing good deed and for'attairunent
of Moksha". Among the Hindus the marriage was considered as a sacrament. It was
obligatory for every Hindu through which his well conducted life progresses to its ap-
pointed end. The rationale behind such sacramental character was to make the spouse
physically, psychically and spiritually united. Thus marriage is an association for life
here and hereafter, productive of full partnership with temporal and divine rights and
duties. In Ttkait v. .Basant 1 it was held that marriage under Hindu law was a sacramen~
an indissoluble union of flesh with flesh, bone with bone to be continued even in the
next world. Wlfe is ardhangini, half of her husband.2 It was held that the marriage was
the last often sacraments enjoined by the Hindu religion purifying the body from inher-
ited taint. Thus marriage is a religious necessity rather than mere physical luxury. A
Hindu has to marry for a son who alone can save him from narak (hell) after death. It
was also observed by the court that marriage was binding for life because a marriage
performed by Japtapadi before consecrated fire was a religious tie which could never
be untied. 3
Now a relevant question arises whether Hindu marriage continues to be a sacra-
ment even aft~r the Hindu Marriage Act, 1955. Some of the judges are inferring that in
1. l.L.R 28 Cal. 758.
2. Satpatha Brahmana v. 16. 10.
3. Shivonamii v. BhagawanlhirP.ma, AI.R. (1962) Mad. 400.
 28

the light of the changes effected by t.he Hindu ~Iarriage Act, 1955, Hindu marriage is no
longer a sacrament. For instance , Justice Saharya of the Delhi High Court quotes with
approval in Dhanjit Vadra v. /Jeena Vadra 4 , the observations of a division bench of the
Andhra Pradesh High Court :
"Section 13-B radically altered the legal b~s
of a Hindu marriage by treating it as an ordi-
nary form of contract which competent parties
can enter into and put an end to like any other
contract by mutual consent." 5

In view of the above shastric texts and judicial decisions, we can say that the
sacramental marriage among Hindus has three main characteristics. First, it is a perma-
nent union. That means, it cannot be dissolved on any ground whatsoever. Secondly, it
is an eternal union ( 'Janma-janmantar hondhan'), extending to series of births. Its im-
plication has been that widows' remarriages, as a rule, were not recognised in Hindu
law. 6 Thirdly, it was a holy or sacrosanct union. This implies that such a marriage cannot
take place without the performance of sacred rites and ceremony.
It is now clear that the first characteristic of sacramental marriage has been af-
fected by Hindu Marriage Act, 1955, for Hindu marriage can be dissolved on certain
grounds specified under section 13 of the Act. The second characteristic was wiped out
with statutory recognition of widow marriage in 1856. 'Probably to some extent the
third characteristic' is still retained' _7 In most of the Hindu marriages, a religious cer-
emony is still sine qua non. Viewed from this side, one may conclude that Hindu mar-
riage has not remained purely a sacrament and at the same time it has become completely
4.AlR 1990Del.146at 151.
5. K. Omprakash V:K.Nalini,AI.R. 1986AP. 167 at 169.
6. Paras Dewan,MO<krn Hndu Law (sixth ed.)

7. M.P. Tiwari, "Indissolubility of Hindu Marriage and Divorce by Mutual Consent", Law Review (vol. U) p. 59.
 29

a contract. As Paras Diwan has observed :

"It has semblance ofboth. It has a semblance of
a contract as consent is of some importance~ it
has semblance of a sacrament as in most of
marriages a sacramental ceremony is still necessary." 3

(b) Nature of marriage under Muslim law

In Ahdul Qadir v. Salima9 the court had to make a number of observations of

which the nature of Muslim marriage received pre-eminence. Mr. Justice Mahmood,
referring to Munshi Buzlur R.Wzeem v. Shamsoonnisa 10 ( 1867) decided by Privy Coun-
cil, drawing inspiration from the Tagore Law Lecture11 by Sarkar, and basing his support
from Hamilton's Translation ofHedaya, observed that 'Marriage among Muhammadans
is not a sacrament, but purely a civil contract, ~2 •..• ', with ejab-o-kabooJ as 'declaration
and consent. both expressed in preterite, 13 and dower partaking of 'consideration for the
connubial intercourse' 14, in gross disregard of the religious aspect of marriage, although
its social aspect has not been lost sight of by him when he mentions that 'it was also
instituted for the solace of life, one of the prime or original necessities of man.'~ 5
Malunood, J., also set up an analogy of sale of goods with wife married to her Muslim
husband in a limited sense. 16
Subsequently, the 'purely civil contract' doctrine of Justice Mahmood carne under
fire in the writings of Ameer Ali, 1., Abdur Rahim, 1., and particularly in the judge-
8. Paras DeW811, Supra note 6.
9. (1886) 8 All 149
10. (1867) 11 M.IA 551,615.
11. S.C. Sircar, The Muhemmadan Law: Tsgore Law Lectures, 1874(1975).
12. Baillie.
13. Hamilton, Hedaya.
14. Abdul Qaa'ir v. Salima (1867) 11 M.lA .551, 615.
15. ibid.
16. ibid.
 30

ment of Sir Sulaiman, J., of the same Allahabad High Court in context ofAnis Begum v.
Muhammad/stefa. In his poignant observation, the Justice criticised the doctrine in the
following terms :
"The line of reasoning based on the analogy
of sale has naturally been very severely
criticised at pages 148 and 149 in Wajid
Ali Khan's case by the Oudh Bench, and
so also by Mr. Ameer Ali in his Mohanunadan Law,
vol. II, pages 459 and 460. No doubt, the Mu....airn
commentators have, by way of illustration, applied
certain principles governing a contract of sale
of goods to contract of marriage, but that was by
way of analogy only. The similarity cannot be pushed
too far, nor can be principles governing the sale of
goods applied in all their details. Indeed, if one
were to pursue the analogy far enough there would be
a reductic ad absurdum. The contract of the sale
of goods can be cancelled if a portion of the price
has not been paid. Even if the goods have been once
delivered they may in such event be returned. But if
the conswnmation of marriage has taken place and the
part of the dower remains unpaid, it would be absurd
to suppose that the marriage could be cancelled by
the wife at her will."
He went on observing that:
"It may not be out of place to mention here that
Maulvi Samiullah collected some authorities
 31

showing that marriage is not regarded as a

mere civil contrac~ but as a religious
sacram.ent.'' 17

The deprecation by Chief Justice Sulaiman for equating marriage with merchantile
transaction and his protestation in strongest terms despite, the courts in India have till
date been possessed with the 'Civil Contract' doctrine formulated by Justice Mahmood.
In effect, it changed the very basis of detennining legal principles in the whol~ gamut of
Islamic matrimonial rclation, 1rt erroneously justifying the application of the Transfer of
Property Act, Indian Contract Act, Sale of Goods Act, the Registration Act, Specific
Relief Ac~ s0 on and so forth, supplanting the relevant Islamic legal prin<.:iples in its
plat;e. i:;. To illustrate the point, a Ut:<;ision rdating to dower by Mr J rutice Mitra of Calcutta
High Court may be drawn to attention. On the face of the argument that dower being
incidental to marriage under Muslim law and hence, calling for treatment of Muslim
personal law he was of the view that :
"The marriage under Mohammadan Law is a Civil
Contract of sale. Sale is a transfer of pro-
perty for a price in contract of marriage; the
wife is the property and dower is price."20

Hereupon, he upheld the application of the British law palpably in defiance of objective
assessment of the problem.
Marriage under Islamic law is neither a 'Samaskara'(purificatory ceremony) as in
the classical Hindu law, nor a sacrament in its pristine form as among Roman Catho-

17. Anis Begum v. Muhammad lstafa, (1933) 55 All 743, 756.

18. Dr.M. Sbabbir,MusJim Personal LawandJudiciary. (1988) 14.
19. ibid.
20. Saburannessa v. Sabdu Sheikh, A.lR. 1934 Cal 693:195 I.C. 422:38 CWN 747.
 32

'tal hab' · ' d 'one parent

lics.21 It is far from the modem notion of 'non-man co ttaUon an -
family' of the West. 22 Under Islamic law, marriage is an over-emphasised and strongly
enjoined Sunnah of the Holy Prophet to be whole-heartedly and universally exercisable
by the generality of his followings. The Qur'anic projection of matrimonial concept is a
sacred covenant, a solemn pact, !vfithaq-i-ghalid ~ with a pious purpose of raising a
blissful family life, and having offsprings in their trail. Looked at superficially, it seem-
ingly assumes the form of ordinary contract. But an in-depth and penetrating probe
bursts forth its true nature in the reflection of a highly imaginative researcher:
"However it is palpably wrong to say that in
Islam marriage is nothing but a civil contract.
In fact marriage in Islam is contractual only
at the formative stage. Once a marriage is solem-
nized, it is much more than, and much different
from a civil contract. Islam does not require a
ceremonial solemnization of marriage. An intended
marriage is to be proposed by or on behalf of
one of the parties. This is ijah- the proposal.
It is then to be accepted by or on behalf of the
other party. This is quhul- acceptance. /jah
and quhul, when made in the legally prescribed
manner, results into a binding marriage -a relation-
ship of sacred partnership between the husband and wife,
which the Qur 'an calls a "sacred covenant" and a "pro-
tective fortress." 24 To the strict legal requirements
21. N.RMadhava Menon (ed), National Convention on Uniform Civil Code for all
Indians, (1986), 83.
22. Tahir Mahmood_ Personal lAw in islamic Countn·es (1987) 268.
23. The Holy Qw-'an IV: 21.
24. A.A. Maududi, Huquq .41-Zawjayn (6th ed. 1968, Delhi).
 33

ofijab and quhu/and some procedural requirements,

e.g., presence of witnesses, the Muslim :::ociety has added
the e}..1ra-legal practice of recitation of the khutha-
e-nikah (marriage sermon) and the finale of du 'a-e-khayr
(praying for the couple). These are superfluous so far as
the legal theory is concerned, but have great social
significance and add an aroma of solemnity to the occasion
and to the newly created relationship between the two indi-
viduals and their families.
Most certainly, thus, marriage in Islam is much
more than a "contract for production of children".
The contractual element in marriage is, in fact,
introduced by Islam exclusively for the benefit
of the parties so that they may enter into a lif(:-
partnership, as far as pennissible by Shariat
on their own mutually agreed terms and conditions.
This element is aimed at giving greater freedom
to the parties in respect of the style of their
life and thus strengthens the marriage bond in its
own way. In no way does it detract from the sanctity
of the marriage. If properly used, it is in fact a
great boon for the parties to an intended marriage."2S

As quality of civilisation and cultural consciousness of men enhances, man's rela-

tionship with outside world registers a movement from status to contract. 26 Muslim law
25. Tahir Mehmood, Personal law in crisis, P.B.Gajendragadkar Endowment. Lectures,
Bombay University, (First Edition, 1986), 66.
26. Anson~. lAw of Contract.
 34

relating to marriage testifies this development with transition of the world from Ahme-
jahilia (the Dark Age) to the age of mlighten:mcmt. (Early :se~nth century A.D. which
almost provides a water-shed in the World History coincides with revelation of the Holy
Qur'an). On objective analysis, it is not strictly a contract in the commercial sense of the
term. It carries with it the major essentials and appellation of a contract. On intensive
appreciation, it brings out itself to be a covenant. Offer, acceptance, mahr, consent of the
parties, presence of witnesses, reasonable interference ofthe guardian, legal consequences
etc.- all by way of formation of a contract-present the best form and modalities of
marriage solemnisation that a civilised society can contemplate of. Needless to say the
Arabian society with advent of Prophet displayed all principal characteristics and vital
potentialities of a great civilised27 society, particularly considered from the contributions
made and the basic socio-economic infrastructural network it laid for the emancipation
of slave and women who constitute a major segment of the population. The form of
marriage incidentally touches certain element of contract of commercial nature. How-
ever, the analogy, as we have seen, is by no means conclusive. Justice Mahmood with all
respects to his eminent person, did not apply his mind independently while pointing out
its nature. He heavily banked on the observation made in the illustrious Tagore law
Lecture ( 1873). However to substantiate his point Justice Mahmood desperately fell
back upon Hamilton's Translation of the Hedaya to project 'ejab-o·-kabul' as a qualifying
element for marriage solemnisation to reach out for the level of contract. Sarkar, the
author of the Lecture, whose mind was consciously or unconsciously directed to the
pre-Islamic Arab women on the pages of history, was allured to develop the idea, as
women in that era were often subject to sale during their conjugal alliance. 28 From
Mahmood J., the doctrine found its way into the later judicial decisions by the Indian

21. For details, P.K. Hitti, History ofArabs; M.N. Roy, Historical role of islam;
Mohammad Qutb, islam the Misunderstood Religion.
28. Abdur Rahim, Muhammedan Jurisprudence.
 35

courts that were ceaselessly haunted by the ghost let loose by the former. The triumph
continued despite cautions pronounced by Amer Ali. Abdur Rahim, Sir Sulairnan JJ.
and the like whose pre-eminence in Indian Judiciary was no less than Justice Mahmood's.
Thus basic tenets of Islamic matrimonial jurisprudence were pushed to the background
giving rise to a distorted concept in man-woman equation in matrimony. It left a disas-
trous impact on Muslim wives who came to be meted out a bottom-rock priority in the
scheme of distribution of Justice in course of their continued degenerating process.
Thus it is submitted with due respect that the Indian Judiciary cannot disown the share
of responsibility in the downward trends of women's status in this part of the hemi-
sphere. The relegation of matrimonial concept from the altruistic 'Sacred Covenant' to a
temporal 'civil contract' has undone a lot so far as spiritual and social values are con-
cerned. Sociological experience has revealed that irregular and random secularisation
within a religion-oriented society promotes process of dehurnanisation. Such attitude
has evermore encouraged the whimsical Muslim husband to abruptly dismiss his wife
without any rhyme and reason or on any pretext. It is unfortunate that multitude of
Qur'anic verses seeking elevation of woman's status escaped the notice of the judicial
intelligentia. Instead. woman, to their estimation, has grotesquely enterged as an object
of sale f 29 An<L therefore. it will not be surprising. if. to the unscrupulous Muslim
husban<L the reminder served by the Prophet in his Farewell Address goes unheeded :
"People f your wives have certain rights over you
and you have certain rights over them .... Do
treat your women well and be kind to them. for
they are your partners and committed helpers. Remember
29. Regulation lV of 1793 saved the application of the Muslim Pe-rsonal Law. Howeve-r ·a purely
civil contract' doctrine in Abdul Qadir v. Salima brought about a sweeping change in the
dispensation oflegal culture oflndia Regulation IV of 1793 read, inter alia, as follows:
"In suits regarding succession, inheritance, marriage,
caste and all religious institutions, the Mohammadan
law with respect to Mohamma.dans -as the general rules by
which the judges are to fonn their decisions.. (Sec.l5).
 36

that you have taken them as your wives and enjoyed

their flesh only under God's trust and with His
permission." 30

Therefore, it may be observed that marriage (nikah) among the Muslims is a "sol-
emn pact" (mithaq-e-ghalid) between man and a woman. soliciting each other's life-
companionship, which in law takes the form of a contract (aqd).
There is a popular misconception that no religious significance or social solemnity
is attached to a Muslim marriage which is a "mere civil contract". However, on examina-
tion, it reveals that although it is not a sacrament in the sense that 1he Hindus take their
marriage, Muslim marriage (nikah) is strictly a sunnah of the highest order enjoined by
the Prophet himself. Even the Qur 'an does not deem the marriage as an ordinary con-
tract. In fact, it is only the form of Muslim marriage that is contractual and non-ceremo-
ni~ marriage, as a concept, is not merely a contract. Rather it is ebadat (service to God)
and muamlat (social dealings). 31

(c) Nature of marriage under Christian law·

English Law from the very beginning subscribed to the notion of spousal consent
to the marriage. The ecclesiastical was of the view that though in its formation marriage
was a contract, it was a sacrament in its consequence. Wnh the advent of Reformation,
the Protestant World came out with the notion that marriage was a civil contract and
matrimonial matters were subject to the jurisdiction of civil cow:ts, ecclesiastical court
having no jurisdiction over them. The marriage thereafter also came to be regarded as a
dissoluble union. Thus the Reformation caused a fundamental change of attitude
3 0. Haykal, ~ Llfe ofMuhammad, 486-87 ( 197 6)
This .Ahadtth afon~ ir sufficient to adjudg~ Islamic marriage as covenant 'under God'·s Trust and
with his permission' -Researcher.

31. Tahir Mahmood, Muslim Law of India (1980); also Abdur Rahim, The Pnncrpks of Muhammadan Jurrspi'"I.Vkn~,
Lahore (1958).
 37

towards marriage among the Protestants. The Catholics continued to uphold and follow
the ecclesiastical doctrinaire view of sacrarncntality and indissolubility of marriage, while
the Protestants became liberated and propounded the concept of contractuality and dis-
solubility of marriage. They regarded marriage as essentially man-made in sharp con-
32
trast to the Catholic view that marriage was made in heaven.
Still, the Protestant though regarded their marriage ~ contract regarded it as a
special contract. It was not equated with commercial contract. They asserted that mar-
riage being a social institution, there was social interest in its preservation and protec-
tion.
Among the Indian Christians, marriage is regarded as a civil contract, though it is
usually solemnized by a Minister of religion licensed under the Christian Marriage Act,
1872. It can also be solemnized by Registrar of Marriages. 33

(d) Nature of marriage under Parsllaw

Among the Parsis, marriage, as it stands now, is regarded as a contract.

In Parsi marriage though a religious ceremony called ashirbad"34. is mandatory for
its validity, it is essentially regarded as contract. Consent is essential in marriage. A Parsi
priest solenmizes the marriage amid ceremony of ashirhad in the presence of two wit-
nesses. Arhirhadis a prayer or exhortation to the parties for observance of their marital
obligations. 35

32. Friedman, Law in a Changing Society (1970), 174; also AA Maududi (Supra note~ 24)
who has attributed this changed view ofthe Protestant to the interaction ofChristianitv with
the Islamic East on the Refonnation eve. •
33. Section 4 ofthe Christian Marria.ge Act, 1872.
34. Hastings, J.(ed.) Encyclopaedia of Religion and Ethics, vol.-Vll, Fourth impression 1958 pp.
455-456; also Karaka, Dosabhai Framji, Hrstory of the ParSis, \bl. L 1884 edn., p. 178.
35. Section 3(b) ofthe Parsi Marriage and Divorce Act, 1936.
 38

It is notable, therefore, that a Hindu husband takes wife in the presence of conse-
crated fire, a Muslim husband takes her under God's trust and with llis permission, a
Christian husband unites with his wife with all holiness of the Church and a Parsi
husband takes wife in the presence of a priest under a solemn vow. While under Hindu
and Christian system of marriage, the bond between husband and wife are sought to be
strengthened through a concept of sacrament, under Islamic marriage the same object is
sought to be achieved by declaring marriage as Sunnah of highest order ordained by the
Prophet and as ihadat i.e. service to God and devotional act.

(e) The Special Marriage Act, 1964: 'a mini Civil Code'

The Constitution of India issued a mandate to the State directing it to "endeavour

to secure for the citizens a uniform civil code through out the territory of India" 36 • The
progress so far made in exercise of this legislative power and towards the goal of un.ifor-
mity includes, among others, the enactment of the Special Marriage Act, 1954 and the
Foreign Marriage Act, 1969.
The Special Marriage Act, 1954 replaced Act III of 1872 bearing the same title. It
has the effect of putting on the statute book a secular law of marriage, divorce and
succession which any two persons, regardless of the religion they profess, marrying or
already married to each other can adopt, without relinquishing their own faiths. A min-
iature of uniform civil code (whose application would be discretionary), this was an
experiment in "permissible') legislation. It did not aim at doing away with any of the
prevailing personal laws. Rather, it fum.ished an alternative to each of them. The Act
seeks to enforce monogamy. It allows only judicial divorce to be operated by a court in
the specified circumstances. It provides that succession to the property of couples gov-
erned by its profu'"'ions will be regulated by a secular law of inheritance contained in the
36. Article 44.
 39

Indian Succession Act of 1925. As originally enacted, the Act of 1954 had extra-territo-
rial application too and was intended also to regulate marriages among Indians living in
foreign countries. In 1969 it wa:s relegated to the position of an internal law, for mar-
riages solemnized outside India, the Foreign Marriage Act, 1969 was enacted substan-
tially on the same pattern.
A study of the working of the Special Marriage Act shows that this "mini Civil
Code" has not been in the good book of the citizens in general36A. The religious leader-
ship of the Hindus, Muslims and Christians was deadly opposed to it. The elite amongst
the Hindus rarely availed its provisions. Only a small fraction of socially progressive
Muslims have favoured the Act. The fact. however, remains that points of difference
between the Act and the Qur'anic law of marriage are not as striking as those between
the Act and the Shastric law. The Act identifies itself with the contractual concept of
Muslim marriage hitting hard at the same time at the Hindu sacramental concept ofmar-
nage.
The number of cases in which the Special Marriage Act, 1954 being availed is
very small. It has been resorted to only in exceptional circumstances, like inter-commu-
nal or intra- communal marriages deadly abhorred by the self-styled custodians of per-
sonallaws and religious traditions. On the whole, the Special Marriage Act has remained
"special law'' till date. Normally the marriage in all the communities are still solemnized
under the various personal laws.

B. Conditions of valid marriages

Section 5 of the Hindu Marriage Act deals with the essential conditions for a valid
marriage. They deal with (1) the rule again~t bigamy, (2) the mental capacity, (3) the
36A. Tahir Mahmood, .A1arriage and Divorce in the Secular Legislation I.L.I (New Delhi).
 40

minimum age for marriage, ( 4) rule against marriage within prohibited relationship and
(5) the rule against marriage of sapindas.
Section 4 of the Special Marriage Act also deals with the same conditions except
the one relating to "sapindas". Mental capacity in both the Acts has been subjected to
amendment in 1976. While degrees of "prohibited relationship" have been defined in
the Hindu Act, the nmnes of actual prohibited relatives are given in two Tables in the
First Schedule of the Act of 1954 with each Table containing 37 entries.
The corresponding rule under the Parsi Act prohibits relationship on the basis of
consanguinity or affinity giving a complete list in the Act itself.
Under the Muslim law the degree of prohibited relationship is determined on the
basis of consanguinity, affinity, fosterage and unlawful conjunction. The requirements
of the formal validity of marriage under Muslim law are the following :
(a) There must be an offer to marry from one side and acceptance ofthe same by
other side, in one and the same meeting.
(b) The parties to the marriage should consent to it. If one of the parties is, or both
are minors or of unsound mind, consent of the guardian for marriage is mandatory.
(c) Under the Swmi law , the marriage must be witnessed by two competent wit-
nesses. The Shialaw does not require witnesses.
Only under the Special Marriage Act the child marriage is void. In the case of a
Parsi below the age of2l consent of the guardian is required.

C. Ceremonies

A Hindu marriage may be solemnized with the customary rites and ceremonies of
either party to the marriage. It is not compulsory that a Hindu marriage is to be regis-
tered. But the State Governments are empowered to frame rules for regi~tration of mar-
 41

nages.
Muslim marriage is rather simple. No formal ceremony is attached to it. However,
Meo-Muslims settled around western India and the eastern part of Pakistan indulge in
rituals and customary ceremony in their marriage. 37
Parsi law requires a ceremony called ashirbad performed by a Parsi priest who
solemnizes the marriage in presence of two witnesses.
Elaborate procedure is prescribed for solemnizing Christian marriage. Starting from
"notice" to entering a certificate in Marriage Certificate Book, all are prescribed in the
law concerned. Under the Act of 1954 any marriage solemnized in any other form under
any law between any persons may be registered. On registration, such a marriage is
treated as one performed under the Act.

37. For details, Shamsuddin, "Marriage customs among Meos ofJndia'', J.lL.I (vol. 23:2) 1981
pp. 258-268.

The present researcher observes in this coiUlection that customary practices during marriage
celebration can be f01md among a section of Muslims in West Bengal particularly in the districts of
Burdwan, Birbhtun and Hooghly. This long chain of ceremonies includes. in local tmninology, la-
sumude. lag@, dhenki-m@ga/a. gaye-haiud. atbud~hhal or khir khaoni. dudh-panta. olima (ap-
proved by prophet himself. also known as bau-bhat and bau-haziri),mWch-dek:hani. haidi-mukhdhoya,
,astamangaia, kachi, usho-tel, khana-bhat, din-dharya, bar-jatra. Aktpos (Aqad) or biy~-parano,
mauluvi hiduy, hasar, hich@il-nosto, :Doi '-nopit-chul budhuni:ustad/i hiday, etc. The bride and the
bride-groom are provided \\ilh special attires for each individual major occasions. Since the day of
gayt-haiood. the parties to marriage arc: expected to strictly confonn to those practices which arc
especiaDy meant for ahem The guardians and weD-wishers' involvement are equaDy important The
bride and the bride-groom are to keep an iron nut-cracker in their possession during Ill these festivll
days. They are provided with special attendants and are given a royal treatment. The bride-uoom is
known as nou-shah (The new king). Like local Hindus fish, betel-leaf, turmeric (paste), butter-flies are
regarded as auspicious sign. Mikes and vedios are frequently used. Of course. the degree of grandeur of
the marriage-festival depends on the financial capacity of the maniage-housc. The present scholar who
belongs to this part of West Bengal notes that a few of the customary practices bear a striking similarity
with those in vogue among Meo-Mustims of the Punjab. Agarwalas of Rajasthan and the local Hindus.
Most smprisingty these customary practices regarded as wt-Islamic bv a section of the Muslim clerics.
swvive over the centuries even after various refonnative movements I~Wlched from time to time, the last
of the line being the Deoband movement and the on-going Tablighjamat. The reason for their survival
it seems. is dlat the antagonists could not provide an Islamic alternative to these social practices. as also
the moderators' mcit approval who find no hann in their continuing.
 42

It may be submitted that a uniform state policy as to marriage ceremonies is an

imperative of the day. If implemented, it would provide succour to the wives of all
communities.

D. Nullity of marriage

According to the strict terminology the tenn 'nullity• applies to 'void m~ages'

and 'annulment' to 'voidable marriages'. Even the English statute (Matrimonial Causes
Act, 1950, section 9) has used the tenn 'nullity', which is rather unfortunate, in relation
to voidable marriage also, whereas the appropriate tenn would have been 'annuhnent'.
The Indian Divorce Ac~ like Pa11-i. Marriage and Divorce Ac~ also makes no distinction
between void and voidable marriages in sections 18 and 19 thereof. Special Marriage
Act and the Hindu Marriage Act have clearly demarcated the distinction in which the
latter Act employs the term nullity in section 11 in regard to void marriages and annul-
ment in section 12 in respect of voidable marriage. 38 Wrth reference to the rules of the
Muslim law marriages have been distinguished as sahih (lawful), ghayr sahib (unlaw-
ful), batil (void) andjasi.d (irregular). 39
The law of nullity under Hindu Marriage Act relates to the pre-marriage impedi-
ments to marriage. Such impediments have been incorporated under capacity to marry.
In the presence of impediment parties are barred to contract marriage. If they insist in
marrying, such marriage would not be valid. These impediments are categorised into
absolute impediments and relative impediments. If impediments are absolute, a mar-
riage 1~ void ah initio, that is, it i::; an invalid marriage from the very beginning. If im-
pediments are relative, it is a voidable marriage, that is, it may be avoided by one of the

38. P.B.Beri, Law ofAfarriage and Divorce, (2nd ed 1989) LucJmow, 55.
39. Tahir Mahmood, Muslim Law oflndia, Allahabad, (1980), 48.
 43

parties to the marriage, in case he or she desires. Exceptionally, even on violation of

relative impediments marriage: may be: valid. Such is the case: under the Hindu Marriage
Act when restriction as to age is violated or a marriage of a girl below 18 is performed
without consent of the guardian, which has now been amended by the Child Marriage
Restraint (Amendment) Act, 1978 raising the marriageable age by three years, thus dis-
pensing with the provision of guardianship in marriage. The classification of marriages
into void and voidable marriage has been inducted to the Hindu legal regime from En-
glish Law with all its incidental drawbacks ...,

(a) Grounds of void marriage under Hindu law

Under section 11, Hindu Marriage Act, a marriage is void on any one of the fol-
lowing three grounds. [ These grounds are applicable to marriage, performed after com-
mencement of the Act on May 18, 1955. For the marriages solenmized before this date,
the old Hindu Law of nullity applies.] ( 1) That at the time of marriage, either party has a
spouse living. (2) The parties are sapindas to each other. (3) The parties are within
prohibited degrees of relationship. On any of those grounds either party can present a
petition for a declaration that the marriage is null and void. There are two other cases in
which a marriage is void. In the first place, if proper ceremonies of marriage have not
been observed or performed. And secondly, if a marriage has been solemnised in con-
travention of requirements of section 15 of the Act.

(b) Voidable marriage under Hindu law

A voidable marriage under the Act is a perfectly valid marriage so long as it is not
avoided. Avoidable marriage can be avoided only on the petition of one of the parties to
40. Paras Diwan, Modem Hindu lAw, (7th ed, Reprint 1990) Allahabad 114-115.
the marriage. Section 12 of the Act provides that any marriage shall be voidable on the
ground (a) that the marriage has not been consurnm3ed owing to impotence of the
respondent; (a) that marriage is in contravention of the condition ~ccificd in d~ (if)
of Section 5 or (c) consent of the petitioner (or thil of guQfdian Wlder relevant circum-
stances) was obtained by force or fraud as to nature of ceremony or as to any m31erial
fact, and (d) that the respondent was at the time of marriage pregnant by some person
other than the petitioner.

(c) Muslim law: lawful and unlawful marriage

~1uslim law prescribes various requirements for validity of marriage. Marriage

may be performed in full or partial fulfibnent of or in total or partial violation of these
requirements. Thus marriage under Muslim law, may be classified as: (a) salzih (law-
ful): marriage solemnised in full compliance with all legal requirements; (b) ghyr sahih:
a marriage contracted in violation of one or another legal requirement; (c) hatil (void) :
a marriage though alleged to have been contracted, has no legal consequences at all ; and
(d)fasid (irregular): a marriage though unlawful (ghyr sahih), yet not void (hati/)41
The Sunni school of Islamic matrimonial jurisprudence provides for irregular
marriages. The JtJma Ashari sub- school of Shias does not recognise the distinction
between void and irregular marriages. The Shia school contemplates marriage either as
valid or void. 42 There is nothing like a voidable marriage under the Islamic law. An
irregular marriage under the Sunni school is a connection between a man and woman,
which though not arnowtting to a lawful marriage confers the status oflegitimacy on the
children. In this respe<;t it is similar to a Scottish or Canadian puL.'ltive marriage. 43

41. Tahir Mahmood, Muslim Law ofl ndia, Allahabad p. 48.

42. A.AA. Fyzee, outlJnes of-Mohammedan Law, p. 108.
43. 'Polygamous Unions before the English Court•. The Law Times, May 5. 1946. vol. 201. pp 248-49
 45

The common law also considered the question of separation of the child's legitimacy
from the validity of its parents' marriage. English Law, too, ha..<;; accepted it.

(d) Nullity of marriage under Christian law

Under the Christian Marriage Act, 1872, a marriage is a nullity, if ( 1) a former

marriage wru; in force (sections 18 and 19 of Indian Divorce Act, 1869, hereafter IDA);
(2) parties are within the prohibited degrees of consanguinity or affinity (sections 18
and 19 of IDA); ( 3) the party suffers from idiocy or lunacy at the time of marriage; (4)
the party/parties to marriage is/are less than 18 years (secton 60 of Clui..;;tian Marriage
Act) and marriage solemnised without consent of the guardian; (5) respondent was im-
potent at the time of marriage and at the time of institution of the suit (sections 18 and
19, IDA) and (6) consent obtained is by force or fraud (sections 18 and 19, IDA).

(e) Nullity of marriage under Parsllaw

A marriage under the Parsi Marriage and Divorce Act, 1936 is nullity, if ( 1) the
parties are within the prohibited degrees of consanguinity or affinity (section 3), (2)
necessary formalities of marriage are not performed (section 3), (3) party/parties to
marriage is/are less than 21 years and the marriage solemnized without guardian's con-
sent (section 30), and (4) either party was impotent (section 30).

(f) Nullity of marriage under the Special Marriage

Act, 1964

Marriage Wlder the Speciai lvlarriage Act, 1954 b a nullity, if (1) either party has a
spouse living at the time of marriage (section 24 read with section 4), (2) parties are
 46

within prohibited degrees of marriage (section 24 read with section 4), (3) marriage is
solemnised in absence of registration, (4) parties suffer from unsoundness of mind,
insanity or epilepsy (section 24 ), ( 5) bride is below 18 and bridegroom under 21 years
(section 21 read with section 4), (6) respondent w~ impotent (section 24) and the
marriage remained unconsummated due to wilful refusal. (section 25), (7) consent of
the party obtained by force or fraud (section 25) or where incapacity to consent exists
(section 24 read with section 4), and (8) pre-marriage pregnancy detected (section 25).
It may be submitted that there are both similarities and dissimilarities 3;111ong the
features of various systems of marriage. However, the similarities are more outstanding
than the dissimilarities. All the personal laws dictate that bridegroom and bride should
not marry within prohibittd dc::gn:es and that such marriage are vo1d from its very incep-
tion. Under all matrimonial laws prevailing in our country a distinction has been made
between conditions which are absolutely necessary for a valid marriage and certain for-
malities which are not absolutely necessary for the validity of marriage. The consan-
guinity, affinity and fosterage (under Muslim law) and sapindas (under Hindu law) are
the grounds on which marriage may be declared void. And again, all laws have declared
certain unauthorised marriage as void.
The classification of marriage under void and voidable has its origin in the doctrine
of the church. The rule was rigid and rigorous. We have copied the provif,i.on in our laws
almost verbatim.Exist.ence of this provision in English matrimonial law has been
criticised, although we have retained them.As a positive move,in the Legislative Proposals
for a Uniform Civil Code( 1986) the rigorous aspect of various personal laws has been
sought to be mitigated by classifying marriages into void and voidable in that the grounds
of nullity are laid down as (l)one of the parties,at the date of marriage, being already
married and (2)parties being within prohibited degrees of relationship, and the voidable
marriage can be avoided on the grounds of ( l)mistake,(2)fraud and (3)duress. 44
44. Legislative Proposals fora Uniform Civil Code (1986), chapter rv, Sections 27, 28, 29,30 and 31.
 47

All said and done, the fact remains that no legal consequences flow from a void
marriage. A voidable marriage (of which the Islamic law has none of its kind) is a
perfectly valid marriage so long as it is not avoided on petition by one of the parties to
marriage. So long as it is not avoided all the legal consequences of a valid marriage flow
from it. The legal consequences of a marriage are : it confers the status of husband and
wife on the parties, status oflegitirnacy on the children of marriage, giving rise to certain
rights and obligations against each other as well as against third persons.

E. Obligations of marriage

Three different aspects of marriage have thus revealed from our discussion: ( 1)
observance of certain formalities which may be religious or secular or partly the one and
partly the other; (2) the emergence of status between the parties with several incidental
rights, duties and obligations~ and (3) possibility of tennination of this relationship in
accordance with provisions of the law.
Thus in the light of the above observation one might define marriage as a ':::.1atus'
arising between a man and a woman on the fulfllment of certain fonnalities, which may
be religious or secular in character or partly the one and partly the other giving rise to
rights, duties and obligations and which status can be tenninated only in accordance
with the provis-ions of the law. 45 In all civilised groups some rights and obligations of
one spouse towards the other have been recognised both by law and morality or reli-
gion. Recognition of marital rights and duties in its logical sequence gives the claim to
parties to a marriage for the enforcement of the same. This right of enforcement of
marital claims of the respective spouses is the basis of matrimonial remedies. These

45. B.N. Sampat, 'Hindu Marriage as a Samaskara :A Resolvable Commdrum,' J.I.LJ (vol. 33
: 3) 321 (1991).
 48

rights are protected by the respective laws of the communities. The Indian spouses may
have to recourse to the Hindu Marriage Act. 1955, the Special Marriage Act, 1954, the
Hindu Adoptionjand Maintenance Act, 1956, Hindu Minority and Ouardian~hip Act,
1956, Indian Divorce Act, 1869, Parsi Marriage and Divorce Act, 1936 as the case may
be, apart from the Criminal Procedure Code, 1973, Gu3fdi3llship and W3!ds Act, 1890
etc. which are applicable to all Indians alike.
Except the Dissolution of Muslim Marriages Act, 1939 and the recently enacted
Muslim women (Protection of Rights on Divorce) Act. 1986 the Muslims haye almost
no major statute to govern their matrimonial relation. They have mostly to depend on the
Qur 'an and Hadith. So it is necessary to discuss in brief about the rights and obligations
of the spouse that follow from the marriage-tic.
As a n1atter of principle, a tvtllilim lrusbQlld e11juyg gffitlli a little above tllwt hi~
female counterpart. The Qur 'an says :
''And woman shall have rights similar to the
rights against them, according to what is
equitable: but the men have a degree (of advantage)
over them ". 46

In explanation of this conferment of privilege, the Qur~Qn says:

"Men are the protectors and maintainers of women.
Because God has given the one more (strength) than
the otliet, and because they support them from
their means. Therefore, the righteous women are
devoutly obedient and guard in the husband's
absence what God would have them guard." 47

46. Qur'an n: 228.

47. Qur'an IV: 34.
 49

In order to enforce discipline in the family and for smooth operation of house-
hold affairs and familial functions somebody from among the husband and '\\i.fe be
chosen as a captain or man-at-the-helm, with some degree of authority vested in him or
her. Tfinstead, both of them enjoy the same status, it would end up in chaos, confu:sion
and nlli-management. With this object in view, the choice goes to the husband who has
been called upon to assume this role in full consonance with dispensation of Nature. As
concomitant to man's assuming the helm-manship, he has to shoulder a set of duties of
which mention should be made of: (1) duty to pay mahr to the wife,~ (2) duty to
maintain wife, 49 (3) a negative duty not to subject women to torture, which generally
assumes the forms of abstinence from sexual intercourse, 50 physical and mental cru-
elty1 and being inequitous in treatment towards wife in the event of husband taking
more wives than one. 52
Wife is entitled to take action against defaultini husband indulged in 'lr-iolating
duties assigned to him.
Now, in order to facilitate the discharge of these. liabilities, he needs to enjoy,
rather to be fortified with, some special rights against ·wife, whom he is ordained by law
to extend protection and maintenance inl£r alia. As 'karla' he is vested with the follow-
ing rights :

(1) Tlie h.usharu.1, mhls abseiii:e, is entitled to demand of his wife to hike oVef as
a custodian in respect of her own virtues and of the reputation and property of the
husband himself 53 . Wife failing in this regard, husband may consider an action against
the wife by way of exercising his authority as a husband.

-48. Qut-'cut IV : 2-4, 25.

49. Qw·'wl n: 236.
50. Qur'an 1I : 226, 227 .
.s 1. Qur'an n : 231.
52. Qur'an IV: 129-30.
31 Qur'M IV : .14.
 50

(2) Husband is entitled to demand of his wife an obedience. However this right
excludes husband's insistence on wife to engage in the areas not approved by God and
His Prophet, i.e. persuation by husband to commit adultery, taking wine or remaining
aloof from practice of religion at the instance of the husband. In short, it will be incunt-
bent upon wife to comply with all reasonable wishes of her husband. 54

54. For details, S.A.A. Maududi, Huquq Al-Zo.ujayn (Rights ofthe husband and wife in Islam).
 51

CHAPTER 2

Marriage age of girls in India

Marriage age is a contributing factor to wife's welfare. It positively influences the

health, education. economic and social status of the marriageable girls. A possible an-
swer to at what age should men and women marry has in the past been attempted by
experts in various fields of learning including sociology, economics, religion. eugenics,
demography, physiology and jurisprudence. The issue has assumed an international
dimension over the decades. Like its predecessor. the League of Nations, which consid-
ered the question of child marriage and issued appeals to the human fraternity to get rid
of that evil. the United Nations adopted a convention recognising the in1portance of
enhanced marriage age in 1962. It has since been ratified by a large number ofnation-
states. Even before the existence of the League of Nations, the Indian State of Mysore
made a modest beginning in this direction in the year 1894. The Ottoman Empire en-
acted a considerably high age Jnarriage law as back as 1917. Three decades following
the date of convention. the spat.e of marriage-age laws became global phenomena. 1
1. Already in 1917 the Ottoman Empire took initiative in this regard deriving inspiration from the ver-
dicts of some lesser known Muslim jurists of the past including Ibn Shubn.una The Ottoman law ot
Family Rights required that boys and girls desiring to marry must have ordinarily completed the
 52

The Hindu sages had enjoined that the girls should be married before her attaining
puberty. Baudhayana Dharmasutra says: "Let him give his daughter, while she goes still
naked, to a man .... Let him not keep (the maiden) in house after she has reached the age
of puberty". A girl was allowed to contract a marriage on her own, if not given in
marriage after her attainment of puberty. Manu Sarnhita enjoins that a man of thirty may
marry a girl of twelve, and a man of twenty four a girl of eight. Child marriage spread
much fa.~r as Parasara accorded pre-puberty marriage. It soon became a norm for the
Hindu community as a whole.
age of 18 and 17 respectively [ T. Mahmood, Family Law Refonn in the Muslim' world 40-47
(1972)l_The law was enforced in various parts of empire including the Arab lands. Egypt raised
marriag~n 1923 by Law no. LVI laying down eighteen years for boys and sixteen years for girls as
the lowest marriage-age~ and requiring registration of all marriages compulsory. Algeria, in 1963,
enacted a special law setting marriage age for both boys and girls at twenty-one without parental
consent With parental consent it was set for boys at eighteen and for girls at sixteen. Prior to it, Iraq,
in 19 59, enacted Law ofPersonal Status laying down eighteen years as the minimmn for marriage of
both boys and girls. In Morocco, ooder the Code ofPersonaJ Status, 1958 the boys and girls are
required to have completed eighteen and sixteen years respectively at the time of marriage. In 1974
Iran amended the Civil Code of 193 5 to raise the minimmn age to twenty years for boys and eighteen
years for girls. In India, by the Child Marriage Restraint (Amendment) Act. 1978, the relevant ages
are 18 for a girl and twenty-one for a boy. In Pakistan by the Muslim Family Laws Ordinan~e, 1961,
the relevsot ages are sixteen for a girl and twenty-one for a boy. The Indian Act applies the same age
re<f.~iremeots to the Ou-istian Maniage Act, 1872 and to the Hindu Marriage Act, 1955 [ K. Hod<inso~
Muslim Family law: a sourcebook, (1984) p. 94]. In Bqladesh, the Child Mania.ge Restraint
(Amendment) Ordinance, 1984 presented twenty-one yean and eighteen years as minimum age when
boys and girls can enter into marriage ~ontra£t respectively :(Is. C.L.Q. vol. 3-4]. In 1974 Indonesia
enacted a law ofmarriage age. By virtue of its provisions a person of either sex can freely contract
a marriage at the age of twenty-one. With parental cooseot a girl who is not below seventeen and a
boy wbo is not below nineteen can lawfully marry. In Malaysia, the Muslims (who are dominant)
are governed by the Traditional Shafei law (which bas no lowest age of marriage) as regulated by
the local Muslim-law administration enactments. In China, the Nationalist Civil Code of 1931 had
set the lowest age ofbetrothal for men and women at seventeen and fifteen respectively, the betrothal
being a common practice, while it fixed eighteen for men and sixteen for women as the lowest age of
marriage [Arts. 973-74; 980-81]. Aftetwards the marriage Jaw ofl959 raised the age of marriage
for both sexes to twenty for men and eighteen for women. [ Robert R. Gales, Marriage and the
Family in Chinese law, 6 Journal ofFamily law 36-60 (1966)]. In the same spirit, Republic of
Somalia, South Africa, Liberia, Uganda, Singapore, Thailand raised the OlliiTiage age. In Britain, the
minimum age of marriage is sixteen years for both sexes and a marriage either party of which is
below this minimwn 3Be is void. Fuil fr~edom to marry is confen~d 011 a pe>rson when he completes
eightt-enth year. A girl or boy in the age-group of 16-18 needs parental consent. The Iriiih law until
1972 allowed boyH Wld girls to man)' at fourteen and twelve respectively. In 1972 the Irish
 53

The nineteenth century witnessed the movements launched by the Indian social
reformers like Raja Rarnmohan Ray and Ishwarchandra Vidyasagar to build up a public
opinion against child marriage. The problem was the suffering of the child widows who
were forced to remain isolated from society from the very beginning of their life. They
were the outright victims of the custom of child marriage that was prevalent throughout
India. All religion -based personal laws in India were believed to allow child marriage
and prohibit marriage of v..'idows. In 1864 Law Commission took up the matter for
consideration.
As a result, the Indian Penal Code, 1860 provides that a consummation of mar-
riage below the age often years will be declared as rape. Child marriage was responsible
for the growth of teen - aged widows who could not be married tilll856 when owing to
the strenuous efforts of Vidyasagar, the Hindu Widow Remarriage Act, 1856 could be
passed.
There was movement all the world over for raising marriage-age. As a result, the
Child Marriage Restraint Act, 1929 was passed.
There were basically two reasons for raising marriage age. ( 1) To prohibit child
marriage, (2) raising the age of marriage as an instrument of population control. In this
context it may be remembered that the family planning council recommended that the
age of marriage for girls would be raised to 21 without mentioning any thing about the
age of the boys. Later in 1976, Central Council of Health and Family Planning reiterated
its earlier view.
Marriage Act raised the lowest age to sixteen subject to the parental consent Under the French Civil
Code lowest marriage age is eighteen for all with girls being allowed to many at 16 with parental
and guardians' consent to marriage. Under the marriage law of the German Federal Republic en-
acted in 1946, the age ofmarriage was fixed up at sixtet>ll for girls and twenty-one for m.m. In 1975
these limits were lowered at sixteen in which members of either sex can marry with parental consent
and at eighteen without it In 1972 Italian Civil Code was modified to set auniibnn age of marriage
at eighteen for both sexes. Denmark, Sweden and Yugoslavia followed the erstwhile Soviet Union in
the matter ofmarriage age. Soviet Federal law enacted in 1969 provides that bod1 parties at the
marriage must have completed age of eighteen years.
 54

In the following pages in view of availability of the matrimonial remedies of a

wife, an attempt has been made to shed light on the marriage age under the Indian
family laws, trends and various fallouts involving marriage age, and on the law relating
to option of puberty, in separate sections, on the face of the facts that under-age mar-
riages arc frequently contracted among the girls of Indian communities.

A. Age of marriage under the Indian

family laws

(a) Hindu law

The ancient Hindu law of India on marriage age is rather conflicting. While
Vedic evidence favours the adult marriage. the Smritis of Manu, Yajnaval.ka, Vtshnu and
Narada are prone to enjoin marriages of girls at a tender age. 2 Even as according to a
section of the scholars marriage age is to coincide with the age of puberty, the age of
puberty is not uniformly set, ranging from eight to fifteen. The Joshi Committee consid-
ered all these views during the debate of the Sarada Bill.
The Indian Majority Act, 1875, applicable to all Indians alike, fiXes the age of
majority. However, it does not determine the age of marriage.
The Child marriage Restraint Act, 1929 (9 of 1929) which was more breached
than complied with, under section 5(iii) prescribed the marriage age of bridegroom and
bride at 18 years and 15 years respectively. It has been amended to 21 and 18 years
respectively by Act II of 1978. The Act also prescribed punishment in the event of its
transgression.
2. Kane, 2 History ofDhannashastrus 526 (1941).
 55

The Hindu Marriage Act,. 1955 originally laid down fifteen and eighteen as the
minimum age of marriage for girls and boys respectively. requiring girls in the age-
group of 15-10 to secure guardians' consent out of a list of relations provided therein
who can act as guardians. None among these guardians would be below tvlenty-one.
The interest of the girl may restrain any person from arranging her marriage. If none
could be traced as guardians. the girl required no consent.
In case of violation of the provision regarding marriage-age and parental consent,
the Act lays down the follo~mg as punishment :
(a) simple imprisonment up to fifteen days or fine up toRs. 10001-·or both for
one who, being under-age, procure solemnization of his or her marriage~
(b) fine up toRs 1000/- for violating the requirement of parental consent where
applicable.;
Obviously, non-age does not leave any impact on the validity of marriage. Under-
age marriage is neither void nor voidable~ it remains valid. The wisdom behind the
policy is that the under -age marriage in our country is still too common and if such
marriages are sought to be done away with, majority of the marriages would be rendered
void. The policy aims at discouraging the child marriages. This was done in accordance
with the view expressed by the 59th Report of the Law conunission. 4
The 1976 Amendment of the Hindu Marriage Act introduced a novelty, in which
it was laid down that if a girl was married before her attainment of age of fifteen years
and if she repudiated the marriage before she got the age of eighteen years, - regardless
of the fact whether or not marriage was consummated -then non-age might enable her
to seek a divorce. The basis of the amendment was a principle devised from the Muslim
personal law. It is called khyr ul hu/ug-option of puberty. This is incorporated in
act:ordant:e with the ret:ommendation by the Committee on the Status of Women in

3. Section 18(a).
4. 59th Report, para 3. 21.
 56

1975..:> On this point one may as~ "why are males denied a similar opportunity to
6
repudiae?"
The 1976 Amendment effected no other changes in the law regarding marriage-
age. Subsequently the Child :Marriage Restraint (Amendment) Act. 1978 altered the pro-
visions of the Hindu Marriage Act in this regard. raising the lowest age of marriage to
eighteen and twenty-one for girls and men respectively and doing away with girls' pa-
rental cmsent requirement and the whole list of statutorymarriag,e guardians. 7 The present
position is that every Hindu girl at the age of eighteen can freely marry with, or without
consent of her guardian.
The silence of the Act regarding nature and legality of an under-age marriage has
prompted the judiciary to pronounce varied interpretation with the court now seeming
to be moving towards a common viewpoint :
The High Court of Himachal Pradesh was the first to pronounce ruling in this
regard in 1961 and 1963. In the two cases, Kalawati v. Devi Ram 8 and Smt. Nowni v.
Norotam 9 the court held that an under-age marriage under the Hindu Marriage Act would
be neither void nor voidable. It would simply attract penal clause laid down thereof.
\Vithin almost a decade later, the Punjab and Haryana High Court ruled in an identical
tone. The court in Mohinder Kaur v. Major Singh 10 held that under-age marriage could
neither be rendered annulled by a decree of nullity nor dissolved by a decree of divorce.
For the first time, in 1975, in Panchireddi v. Gade/a Ganapatlu 11 a Division Bench of
the Andhra Pradesh High Court ruled an under -age Hindu M~uriage as void ah initio.
Differing from the Himachal Pradesh ruling it held that entertainment of the view ''will

5. Report ofthe Conunittee on the Status ofWomen 113 (1975)

6. B.P.Beri, I.awofMarriage and Divorce in lndia (2nd ed.)1989.
7. Section 5(iii) ofthe Hindu Marriage Act as modified in 1978~ se-ction 5(vi) was deleted
in 1978. So also section 6.
8. A.I.R. 1961 H.P. 1.
9. AI.R. 1963 H. P. 15.
10. AIR. 1972 P & H 184.
11. AIR. 1975 AP. 193.
 57

throw open once again the flood-gate of child marriage." 12 Two years later, the Full
Bench of the same court overruled this Division Bench deeTh-ion in Venkataramana \~
State 13 holding that it was a mistake to identify an under-age Hindu marriage as void or
invalid. In Duryodhan Pradhan v. .Begahadi Devi, the Orissa High Court, too disagreed
with the Division Bench ruling of the Andlua Pradesh High Court, 14 which provoked
many critics to comment - all expressing serious concern over the fate of the children
of such marriage, who, according to the said ruling, would become illegitimate, unpro-
tected by the statute unlike children of other void marriage. 15 The subsequent over-
ruling Andhra view finds support in a Supreme Court case, Lila v. Laxmi 16

(b) Muslim law

Talrir Mahmood has made a survey of basic principles of Muslim law relating to
marriage age and capacity to marry. 17 Accordingly, he recowtts that 1.-1uslims of India
follow the uncodified Islamic law of marriage .Hanafi, Shafei, Itlma Ashari and Ismaili
are the prevailing four schools to which they adhere. Muslintlaw categorises persons
into two groups for the purpose of marriage: (a) persons who are competent to marry
freely and without a third person's consent; and (b) persons who are incompetent to
marry freely and require the consent of a marriage-guardian. Law fixes up differenl
conditions for solernnisation of marriage of these different categories of persons. Apart
from sound mind, puberty was noted to be another basic attribute in a marriage contract.
Puberty is a physical phenomenon to be affinned by evidence. The general presump-
12. Ibid.
13. AIR. 1977 AP. 43.
14. AI.R. 1977 Ori. 36.
15. Tahir Mahmood, 'Family Law', XIII Annual Survey oflndian Law, 189-91 (1917).
16. A.I.R. 1978 S.C. 13.51
17. Tahir Malunood, Muslim Law of India ( 1980) and also, •Marriage age iu htdia and abroad
-A Comparative Conspectus', J.I.L.l, vol. 22:1 (1980).
 58

tion, in absence of evidence to the contrary is that both boys and girls attain puberty at
the fifteenth year of their age. The law also recognises the likelihood of attaining puberty
of member of either sex even before the age of fifteen years, -the earliest ages of
puberty for a boy and a girl being twelve years and nine years n:spectively. All boys and
girls at their pre-puberty age are incompetent to contract their own marriage. However,
they are enabled to do so under the marriage-guardians. A pre-puberty marriage, regard-
less of its solemnization under parental consent or not, is not invalid but voidable at the
option of the minor on his/her attaining puberty. It is k.no·wn a.~ option of p~berty exer-
cisable soon after attaining puberty and before consummation of marriage. It is avoid-
able unconditionally if contracted through a guardian other than father and father's fa-
ther. It is notable that in India while the traditional Muslim law regarding 'option of
puberty' remains applicable to men in its original form, for girls a modified version of it
now constitutes a part of the Dissolution of Muslim Marriages Act, 1939 which finds its
application throughout India, except the State of Jammu and Kashmir where the Disso-
lution of Muslim Marriages Act. 1942 is applicable confonning to the traditional law in
this respect. The said provisions of Muslim law, both traditional and statutory are appli-
cable in India subject to the provisions of the Sarda Act, 1929. The Act meant for Jammu
and Kashmir is, however, subject to the Infant Marriage Prevention Act, 1928. There-
fore, a Muslim marriage in violation of penal laws of marriage age can be disfavoured
despite the fact that it is valid in its own standard of Muslim law. The court is also vested
with powers under section 12 of the Sarda Act, 1929 or its local substitute in Kashmir to
put a restraint on the Muslim marriage-guardian contracting his ward into wedding. 1&

18. Ibid.
 59

(c) Christian law

The Christian Marriage Act, 1872lays down no age of marriage for non-
Indian Christians. The Act prescribes that a guardian's consent is necessary in case of a
nrinor marrying. A person below the age of twenty-one years is regarded as a nrinor
under the Act. In case of a guardian's absence from India, consent may be dispensed
with. 19 For the Indian Christians, it is provided that bride and the bridegroom should not
be less than eighteen and twenty-one years respectively on the: marriage-eve. 20 In either
case, the ground of non-age does not leave the marriage void or voidable. It stands
valid. 21
In Jammu and Kashmir, the Christi:m Marriage and Divorce Act, 1901 is in force.
It follows the age-rules as incorporated under the initial version of the (central) Chris-
ti:m Marriage Act, 1872 subject to the local Infant Marriage Prevention Act, 1928. In
Manipur and Travancore, there is no statutory law of marriage for Christi:ms. It is not
clear which law is to apply in absence of such a law.

(d) Parsllaw

Prior to 1865 in absence of any statutory marriage law, the Parsi conununity of
India was governed by their own customs and usages pennitting them practice of infant
marriage. Then carne the Parsi Marriage and Divorce Act, 1865 which required, for the
marriage of either sex to be valid. the persons below twenty-one to secure a parental
consent only. In 1936, the Act of 1865 was supplanted by Parsi Marriage and Divorce
Act, 1936 retaining usual marriage-age provisions. Although the Sarda Act of 1929 ap-

19. Section 18(b) Christian Marriage Act, 1872.

20. Section 60(1), Children M8lTiage Act, 1972.
21. Indian Divorce Act, 1869.
 60

plies to the Parsi, its 1978 amendment spared the Parsi t\.1arriage and Divorce Act, 1936.
The present position is that a Parsi marriage in violation of provision of the Sarda Act is
subject to penal action under it. However, it will be valid if it conforms to the require-
ment of Parsi law regarding parental consent.

(e) Special Marriage Act, 1964

The Special Marriage Act, 1954 incorporates two types of child marriages: (a)
those originally solenmized under its provisions and (b) those initially solenmized under
a personal law but subsequently registered under it. In the first category of marriage8,
w1dcr .scctwu 4(c) ol the Act, the girls and the boys are required to have completed, at
the time of marriage, the age of eighteen and twenty-one respectively. If it is found that
either party was below the required age, the marriage would be regarded null and void
and may be so declared by a decree of nullity to be passed by the court on a petition
presented by either spouse.

[ Jewish law ]

Although the discussion on Jewish law is beyond the scope of this study, it is
betrer to note a few points in this regard. The Jews in India are governed by their own
religion-based law. They are yet to have statutory law relating to matrimony. The age of
puberty, according to Judaism, is the lowest age of marriage. Puberty can be ascertained
from physical maturity of persons concerned. Lowest age of puberty is supposed to be
twelve and thirteen for girls and boys respectively. According to Jewish personal law.
there are concepts like naera and hogeret, unheard of in case of other personal laws. For
 61

a period of six months from the days of attaining puberty a Jewish girl desiring being
married must indispensably secure consent of her father unless the father is dead. It is a
period when the girl remains naera. After the lapse of six months she attains the status
of hogeret, when she can contract marriage without such parental consent. 22 A Je¥.rish
marriage in violation of the Sarda Act. 1929 is valid. though subject to penal provisions
under the Act.

Thus it is observed that under ancient Hindu law, according to a section of schol-
ars marriage is to coincide with age of puberty ranging from eight years to fifteen years.
Hindu Marriage Act, 1955 originally laid down fifteen and eighteen years as minimum
age of marriage for girls and boys respectively. requiring girls in the age-group of 15-18
to secure guardian's consent. 1976 Amendment introduced a novelty in which it was
laid down that if a girl was married before the age of fifteen years and if she repudiated
the marriage before she got the age of eighteen years irrespective ofthe fact of consunnna-
tion. 'option of puberty' might enable her to seek divorce. The right is exclusively exer-
cisable by girls only. Subsequently in 1978, the Child Marriage Restraint (Amendment)
Act, 1978, altered the provision of Hindu Marriage Act, 1955 regarding marriage age,
raising lowest age of marriage to eighteen and twenty-one for girls and men respectively.
It did away with the girls' parental consent requirement.

22. I.T.Naamani, 'Marriage and Divorce in Jewish law', 3 Journal ofFamily law 177 (1963).
 62

The earliest ages of puberty for a boy and a girl under the Muslim personal
law are twelve and nine years respectively. All boys and girls at their pre-puberty age are
incompetent to contract marriage. However, they are enabled to do so under the pres-
ence of a guardian. A pre-puberty marriage is not invalid but voidable at the option of
the minor of both sexes on their attaining. puberty, thanks to exercise of option of
puberty. In India the traditional ~fuslim law regarding' option of puberty' remains appli-
cable to men in its original form, while a modified version of it now constitutes a part of
the Dissolution of Muslim Marriages Act, 1939 or its local substitute. The said provi-
sions of Muslim law, both traditional and statutory, are applicable in India subject to the
provisions of the Sarda Act, 1929 or its local substitute.
For the Indian Christians, it is required that on the marriage-eve the
bride should not be below eighteen years and the bridegroom below twenty-one. Non-
age does not render the marriage void or voidable. It stands valid. It, therefore, does not
admit of option of puberty, as are done by Hindu and Muslim marriages. The Christian
Marriage Act is also subject to the Sarda Act.
The Parsi Marriage and Divorce Act. 1936 does not prescribe any marriage-age. It
simply enjoins that if the boy or the girl has not attained the age of twenty-one years,
then the consent of a guardian is necessary. Marriage of a person under twenty-one in
absence of guardian's consent is void. The Act too is subject to the Sar<ia Act.
Section 4(C) of the Special Marriage Act of 1954 provides that for a valid
marriage the male must have completed the age of twenty-one years and the female the
age of eighteen years.
It may be submitted here that in a country like India which suffers from chronic
unemployment problem and where sons and daughters have to depend on their parents/
guardians well beyond their marriageable age and where parent .. children relationship is
very deep unlike the West, and parents' hope and ambition flourish around their chil-
dren, parent's consent should be given a role to play. Parent's role in this regard assumes
 63

more importance in the rural sector of our economy where the marriageable girls in
particular are economically more dependent on their parents than their sisters in the
urban sectors. In India women as a cl~s are yet to be economically emancipated. If the
marriage fails the unemployed girls has to revert to their parents for economic and moral
support. It will be therefore in the fitness of things that parents with all their worldly
experience and mature outlook should be given a hand in the matter of choice of their
children's life- partners and building homes, particularly of their daughters. Presence of
guardian's consent, however, does not mean that party's consent would be totally nega-
tived. The party's consent must have a predominant role. Role of guardian would be just
supervisory and precautionary. A rca.c.;onable interference of guardians is highly desir-
able where necessary. However, the importance of the consent factor has not received
due l:ognisanct: in the Proposed Uniform Civil Code which says, "A man must have
completed his twenty- first year and woman her eighteenth year before they can contract
a marriage." 24

B. Age at marriage

(a) Trends and differentials

A pape~ developed by Anita Kohli and K.G. Rao shows that age at marriage in
24. The Legislative Proposals for a unifonn Civil Code, Presented at the National Convention on
Unifonn Civil Code for all Indians, October 1986, Vigyan Bhavan, New Delhi, Edited and
Co-ordinated by N.R Madhava Menon.
25. ~ Kobti and K. G. Rao. 'Background paper for the University S_ymposia on "Age at Marria-
ge", Bangalore 15.12. 90. Also Ministry ofHlDilan Resources Development, India, Women in India:
a Statistical Report, New Delhi, 1988~ R.P. Goyal, Marriage Age in India, Delhi, 1988~
Tara Kanitkar and R.K. Sinha, •Factors Associated with
increasing Age at Marriage in Orissa', JownaJ of Institute
of&onomic Research, 2l(i). 1986;
V.K. Ramabhadran, Monograph on Age at Marriage in India, New Delhi, The Family Planning
Fmmdation, 1987~
Remi Chhabra and Monica Sharma, Health and Family Welfare, Plan of Action for Women, 1987:
C. Gopalan and S. Kaur (ed.) Women and Nubition in h1dia_ Delhi, Nutrition FowlCiation of
hldia, 1989;
 64

India has increased in recent years. For the decade 1971-81 it was 23.4 years for males
and 18.4 years for females. For males the boost started in the 50s and for the females in
the 40s.
But the increase was only three years and 5.4 years for males and females re-
spectively. The basic enactment on lower marriage age i.e. the Child Marriage Restraint
Act, 1929 and its subsequent amendment in 1978 prescribing minimum ages of mar-
riage for boys and girls at 21 and 18 years had no substantial impact on age at marriage.
It has been observed that significant nuptiality differentials exist bet~een differ-
ent states and between districts within states.
The mean age at marriage of both boys and girls is conspicuously higher in urban
as compared to rural areas. At the all-India leveL half of the women living in countryside
were married by the age of sixteen years in 1981. In the urban areas, the medians were
higher at 17.4. Hindu and ~1uslim women had a lower median-age of 15.9 in the rural
areas while Sikhs and the Christians recorded 19 years. Notable rural-urban differentials
in median-age at marriage can be had among Hindus and Muslims but not among Chris-
tians and Sikhs.
Significant nuptiality differentials are found to exist between different socio-eco-
nomic groups. Substantial differences in age at marriage by religion and caste groups
have also been observed. Among Hindus and Muslims respectively 1.9 percent and 1.5
percent of the ever married women were below 15 years, while among Christians and
Sikhs the proportion was negligible. Also the modal peak age-range of married rural
girls among Hindus and Muslims was 20-24, while for Clui_qians and Sikhs it was 25-
29 years.

KG. Rao, Summary ofthe Deliberations of the Seminar on Age at Marriage of Girls. 21
Au~st, 1990, Delhi, \Vomen's Consortiurn tor Developm~nt;
The Registrar General. oflndia, Survev ofCauses ofDeath, New Delhi, Office ofthe
Regisbw General oflndia, 1986~ and .
Usha Rai, 'Land of Child Marriages', Times of India, 1990.
 ' 65

Acquisition of education. particularly. of middle and higher level substantively

affects marriage in our country. The median age increases by six years from illiteracy to
graduate level. The median- age increases gradually with the level of education both in
the rural and the urban areas. Fentale education at least up to the: middle school level
helps to attain the legal minimum age of eighteen years.

(b) Demographic implications

Women who marry young are exposed to conceptions throughout the most fe-
CWld. A study in three districts of Rajasthan reveals that there is an inverse relationship
between the marriage-age and the number of children ever born. The study suggests that
nineteen is probably the critical age for females which could positively influence fertility
decline. Delay in marriage usually gives rise to three effects: (i) it postpones age 31 first
birth (ii) it shortens the child-bearing period and (iii) it decreases the total fertility.
Postponement of marriage by women to 19-21 would mean a longer stay in school and
acquisition of skills for income generation jobs and greater emotional and physical ma-
turity in meeting the challenge of family life.

(c) Health Implications of wives

Small stature and pelvic size are inter-related. Several studies have revealed that
about one-fifths of pregnant women are shorter than WHO norm of 145 cms.and are,
therefore, at risk. "Teenage pregnancy interrupts the physiological growth spurt which
brings a girl to her genetically detemtined maximum stature: growth in her height ceases
at 18, while growth in bony pelvis stops some three years later. An analysis of data on
height and weight of adolescent girls in Kerala revealed that 49 to 67 per cent woulJ
 66

have been at risk during pregnancy in the age-group 15 to 19: and that this figure dropped
to 19 to 23 per cent by the 19th year. (Rami Chabbra and Monica Sharma, 1987)
Between 14 and 18 years, there is a significant degree of catch-up growth of poor
rural girls bringing them at par with those of the affluent girls. Thus the growth process
continues for a longer time in the poorer group than in the well-to-do. For this reason, it
is even more important that conception be delayed till about the eighteenth year in the
case of poor rural girls than in the case of the affluent. In reality, however, it is the poor
rural girls that are married off at a much younger age.
Early marriage also results in a much higher maternal ~md infant mortality rate.
According to the survey of causes of death carried out by the Registrar General, India
(1983) , 46 per cent of maternal deaths arc in the age grDup of 15-24 . A study by
Dr. Chuuani in villages near Delhi reveals that 46 per cent of the women were under-
weight for their height and 46.5 per cent were under-nourished. It corroborates the
detrimental effect of early marriages.

(d) Educational implication of wives

There is a vital link between education/literacy and age at marriage. Higher and
better educational attainment of girls tends to raise age at marriage and vice versa. An
analysis of the 1981 census data vis-a-vis education and age at marriage reveals that at
the national level median age at marriage rises both in rural and urban areas '\\'ith educa-
tion. Even the primary education has pushed up the median age to 16.9 in nrral areas
and to 17.2 in urban areas. In their study in five districts of Orissa, Kanitkar Sinha noted
that irrespective of rural-urban locale, education had an independent effect on r:ID.-IDg
age at marriage. A:3 a result of micro-level studies made in some states it was found that
(a) literacy status influences marriage age positively, the higher the educational level, the
 67

later the age at marriages. As a general observation primary schooling delayed marriage
by one year and secondary by a further two years. (b) The educational status of wife is
more effective in raising the age at marriage than the educational status of the husband.
(c) The influences of education on female age at marriage is not confined to the recent
marriage; it had also influenced the older cohorts of married women.
What, then, is the reason of the failure of marriage age law in India? Obviously,
it is the law that runs counter to the established ideals and concept in vogue in society.
The Indian parents want to see their children, especially girls, being married off during
their life time. And the children, too, wish to oblige their parents' desire. Long after
enactment of a civil marriage law, a significant number of marriages take place under the
various personal laws, all of which admit of parents' role and none of which dcnuUH~c
a minor's marriage as invalid. In our country and elsewhere in th.e eastern nations, m~n 's
looking for absolute pre-marital chastity and girls' usual aversion to pre-marital sexual
experience contribute to the popular early marriage of girls. In the cowttries where ac-
tual age of marriage ~s notably high it is not the law but extra-legal factors such as
'(..
deliberate social poli~ that help them bring about the change~. Law takes over as sub-
sidiary or as a follow-up measure after change being effected in a given social situation.
In our own social context among the strategies that may help raising age at marriage,
mention can be made of:
1. raising women's status which has multi-dimensional aspects i.e. women's par-
ticipation in politics, education, employment, their assured positive role in nation-build-
ing, their social and economic independence through provision of vocational training
etc.;
2. the sensitising of society,mobilisation of public opinion and general awareness
on the issue of the status of the girl child in general and age at marriage in particular
through various fora in the rural areas like N.G.O.s, youth groups, formal rural leader-
ship, caste leaders, social and religious pwtdits, pressure groups such as panchayats,
 68

politiealleaders~ n1ass n1edia etc.~

3. registration of marriages;
4. Social Science research on various social and cultural variables that must be
inter-woven into the national pl8nning process to make it eff<X:tive in raising the age of
mamage.
It is sometimes thought that the remedy against failure of marriage age law lies in
the offence being enhanced from non-cognisable to cognisable one. But such hope ha<j
been belied from the experience of the state ofGujarat. The fate of the amended central
law on marriage has been no better. It has poignantly been observed that in a society
where charms of married life are the only interest of the most yowtg men and womett,
branding early marriage as cognisable offence can hardly asswne the status of a reform.
It is evident from day to day incidents of Rajasthan, one of which has come to us by way
26
of a reported case, Sushila Gotha/a v. State ofRajasthan .

This petition is a public interest litigation. Petitioner Smt Gothal~

resident of Jaipur has approached the court wtder Article 226 of the
Constitution of India for issuance of direction to the respondents to stop
immediately the menace of child marriage in Rajasthan in effective man-
ner, writ, order or direction to the respondents to enforce the provisions
ofthe Child Marriage Prohibition Act, 1929 as amended by Act No. 2 of
I 978~ and further for a direction to punish officer who is responsible for
not prohibiting the child marriages.
The facts as unfolded in the writ petition is hair raising and shock-
ing inasmuch as it has been alleged that on the occasion of''A.kha Teef.,
every year, child marriages are performed in contravention of the Act. It
has also been averred in the petition that even after enforcement of the

26. 1 ( 1995) DMC 198 (S. B. Civil Writ Petition No. 244 of 1994, decided on 16-5-94.)
 69

said A~ the State of Rajasthan has practically failed in preventing the

solemnisation of child marriages in contravention of the said Act. It has
been stated that the child marriages are mainly prevalent in the commu-
nities like Lobar, Kumhar,. Rawat Bairw~ Regar, Balai, Khateek, 1~ Gujar
Bishnoi etc. Even some lower caste Muslims recently converted to Is-
lam also observe this age-old custom of child marriages. The festival of
"Akha Teej'' is considered as an auspicious day for performing child
marriages. This is alleged that even babies in arnlS- are marrie~ by their
parents on this occasion. On the basis of the Census Reports of 1971
and I 98 I, it has been alleged that largest number of child marriages have
been performed in the state of Rajasthan. In para 7 of the Writ Petition,
it has been stated that the pqitioner has written so many letters to the
respondents regarding stoppage ofchild marriage in the state ofRajasthan,
but no proper and satisfactory reply has been given to the petitioner
regarding steps being taken to prevent this custom.

It has also been averred that child marriages are performed in almost 80% villages in
Rajasthan.
It may be submitted that w-here such a deeply ingrained social custom is con-
cerned the law can have only limited effectiveness. As Gandhiji observed at the time of
enactment of the Sarda Ac~ I 929, "It is not legislation that will cure a popular ill, it is the
enlightened public opinion that can do it". In other words, it m~ be observed, minimum
age legislation is necessary, but it is not sufficient in itself to se.cure the social objective
of preventing early marriage, particularly in rural areas. It has to be backed up by mea-
sures aimed at uplifting status of women and creating a congenial social cQndition. It can
be achieved through an overall social, educational and economic progress. Therefore
law1ching urbanisation and development exercise is a positive step in this direction.
 70

C. Option of puberty

The principle of 'option of puberty' is peculiar to the Islamic personal law. It has
mutatis mutandis been incorporated also in the Hindu Marriage act. 1955 through its
extensive amendments in 1976. Both the classical Islamic law on the subject as well as
its statutory fom1s in India as applied to Muslims and non-:rvluslims are discussed here.

(a) Option of puberty under Muslim law as practised

In India

(I) Option of puberty under the traditional Muslim law

Under the principle of option of puberty or ~ Khiyar al-bulug..', a Muslim boy or

5

girl who has not attained puberty is not qualified to enter into a c;ontract of marriage~ but
may be rontracted into it either by the father, father's father or another marriage guard-
ian as fixed by the Islamic law.
Under the Hana.fi law, if a person below puberty has been rontracted into mar-
riage by father or father's father, the marriage is valid and such person has no right to
repudiate it on his or her attaining puberty provided.. however, that father has not acted
fraudulently or negligently or to the manifest disadvantage of the minor. But if a minor
has been given in marriage by person other than father or father's father as guardian
(wa/i), he or she has an unconditional right to repudiate the marriage on attaining pu-
berty.
 71

According to Abu Hanif~ the option must be exercised. just on attaining puberty.
Some other authorities are of the view that it could be exercised without any tmreason-
able dday after attaining puberty. Also the option is to be exercised while the marriage
has not ycl been consummated. Thereafter it is lost.
Indian courts have made considerable relaxation in respect of time during which
option to repudiate the marriage could be exercised. For example, the Allahabad High
Court in Bismi/lah Begum VNur Muhamma<F- 1 held that the wife could exercise the
option only after she had known that she had such a right and, therefore, her right to
exercise the option was prolonged until she was acquainted with the fact that she had
such an option. The Patna High Court in.Mst Ayesha v. Muhammad Yunus 28 carried the
law further in the same direction, holding that a minor wife did not lose her right to
repudiate the marriage within reasonable time after she became aware ofher right. How-
ever, these decisions are not in keeping with the views held by Abu Hanifa and Qadi
Abu Yusuf, according to whom a woman would lose her option of puberty even if she
was unaware of the right~ unless she exercised it immediately on becoming a major. 2 ~
According to Imam Mahammad, however~ the right would be exercisable only when the
wife got acquainted with the fact that she had such a right .Ameer Ali supports the view
held by Imam Mahammad 30 • The latter view appears to be more reasonable and equi-
table.
Regarding the rule that consummation of marriage would put an end to the right
to exercise the optio~ the courts have held that such consumntation must have taken
place without coercion or duress, on attainment of puberty and with the consent of the
wife. 31
27. (1921) 44 I.L.R. All. 61
28. A.I.R. 1938 Pat. 604.
29. Jafer Hussain, 'Judicial Interpretation of Islamic Law' in Tahir rvfahmood (ed.) Islamic Law
in Nlooem India; also Pradyumna, "Option of Puberty', Islamic and Comparative Law
Quarterly, Vol. 1:2 t1981).
30. Ameer Ali, II Muhammadan Law, 339 {1911)
31. AbduJ Karim V. Am ina Bai ( 1935:1 I.L.R. Bam. 426.
(II) Option of puberty under the statutory Muslim law

The traditional Islamic law with respect to option of puberty continued to be

applicable in India till I 939. The year I 939 saw the Dissolution ofl\tfuslim Marriages
Act enacted and brought into force whereby the Muslim law relating to the subject was
modified and charged in more respects than one. The Act introduced modification in
respect of females. Muslim males, however continued to be governed by the classical
Islamic law.
Section 2 of the Act of 1939lays down the grounds on which a Muslim wife can
obtain a decree of dissolution ofher marriage. One of these grounds runs as follows:
'1hat she~ having been given in marriage
by her father or other guardian before
she attained the age of fifteen years~
repudiated the marriage before attaining
the age of eighteen years:
Provided that the marriage has not been
consummated. •32

This provision does not speak of puberty at all, but only of an age, though in fact
it deals with the option arising at puberty. Since I 939, therefore, a married Muslim girl
has been entitled to 1he dissolution of her marriage if she proves the following :

(a) that she was given in marriage by her father or other guardians,
(b) that the marriage took place before she attained the age of fifteen
years
32. Section. 2 (vii).
 73

(sixteen years in Pakistan and

Bangladesh. 33
(c) that she repudiated the marriage
before she attained the age of eighteen
years, and
(d) that the marriage has not been conswnmated. 34

Though the provisions look to be unambiguous, it has been interpreted differ-

35
ently by different courts. In Ghulam Salrina v. Falak Sher Allah Baksh the Lahore
High Court has held that puberty, in absence of evidence, is presume-d on the comple-
tion of fifteen years of age (the case decided before the 1961 Amendment in Pakistan of
the Act of 1939). Therefore, when the girl was given in marriage before attaining that
age, and the marriage was also consummated before she attained that age, such consum-
mation would be of no consequence .
In another case, Behram Khan v Akhtar Begum, 36 it was held in most Wiambigu-
ous terms that the option to repudiate marriage would not be lost ifconsummation took
place before puberty.
It was also observed that the principle of Kha/wat al-Sahiha (whereby the mar-
ried couple are in seclusion Wider circumstances which present no legal, moral or physi-
cal impediment to marital intercourse) would equally be applicable in case of option of
puberty so that Khalwat al- Sahiya be treated at par with actual consummation in the
37
matter of exercise of the option.

33. Section. 2(vii) of the Act as modified by the ~1uslim Family Laws Ordinance, 1%1.
34. Allah Dtwaya v. Kammo Alai PLD 1951 Lah 6 51.
35. A.I.R. 1950 Lah. 45
36. PLD 1957 Lab. 548
37. Pradyumna, 'option of puberty', Islamic and Comparative Law Quarterly, vol.: 1:2 (l98l) p. l5l.
 74

The judicial opinion diverges as to whether the option is exercisable by the wife
only in substantive suit under the 1939 Act or she can exerc;ise it also in other legal
proceedings like restitution of conjugal rights by husband against wife. The Calcutta
High Court in S.K Sahib Ali v~· Jinanter Nahar, held that the option can only be exer-
cised by the wife by filing a substantive suit Wlder the Act. 38 The M.P. High Court on the
other hand has expressed the view in Nizamuddin 'f: Huseni that the wife can exercise
the option even in a proccaling by husband for restitution of (;onjugal rights. ~~

But , then, the question is- is it necessary to confirm the exercise of_the option
and to dissolve the marriage by way ofdecree of the court or mere exercise ofthe option
dissolves the marriage ? A perusal of the Act makes it clear 1hat it is mandatory to obtain
a decree from the court. But this, too, is not without difference of opinion. While some
are of the view that the mere exercise of the option to repudiate does not sever the
marriage-tie and that until repudiation is confirmed by the court, the marriage subsists, 40
41
the others say that it is not clear whether an order of the court is at all necessary. The
Calcutta High Court, in Mafizuddin Mandai v. Rahima Bibi , has held that no decree is
required to confirm the repudiation~ but that an order of the Judge is necessary to im-
press on the act a judicial imprimatur. 42 The M.P. High Court has supported the view in
Pirmahomed v. State ofMP. 43
However, in a number of decisions in Pakis~ it has
been held that the exercise ofthe option of puberty itselfterminates the marriage without
intervention of the court. The court does not dissolve the marriage. It simply recognises
the termination of it. 44

38. 1960 CWN 756.

39. A.I.R. 1962 MP. 212.
40. A A A. Fyzee, Outlines of Muhammadan Law, 95 ( 1978).
41. Mu1.Ia, Principles ofMobamedan Law, 299 (1977).
42. 1933 58 Cal. L.J. 73.
43. AIR 1960 ?v1P 24.
44.Muni V Habib Khan (1956) Lah. 1461, (1956) PLD Lah. 403;Muhammad Bakshi v. The
Crown, I.L.R. ( 1950) Lah. 227; Noor Muhammad V State. PW (1976) Lab. S16.
 75

(Ill) The traditional law and the provisions of 1939 Act

The rules of the I 939 Act in the matter of option of puberty go in sharp contrast
with those of traditional Islamic law prevalent in the subcontinent. In fact they differ in
more ways than one. In the first instance, under the established Hanafi rule, a girl, bar-
ring a few exceptions~ exercises the option against the desire of her father or father's
father. Second, the age of puberty, as per the Act has been determined at the completion
of fifteen years whereas, according to the classical law it may be as low as·nine years.
Third, under the Act the option can be exercised at any moment before the girl's comple-
tion of eighteenth year, whereas the traditional Jaw warrants that option has to be exer-
cised immediately on the attainment of puberty. A delayed option will be all prejudicial
to such act. It is worth mentioning that although the Ma.tcntcn~ t'fobjc~~ tu1d tt=~oH~ of
the Bill that developed into the 1939 Act claimed that the grounds of divorce under it
would be based on the Maliki Law, the ground based on option of puberty does not
conform to the Maliki rules. That is why it is often denowtced by ulemas as tm-Islamic
measure.

(b) The Jammu and Kashmir Act, 1942

For the Indian State of Jammu and Kashmir, a regional Dissolution of Muslim
Marriages Act came into force in 1942. In respect of option of puberty the Kashmir law
differs basically from the all-India 1939 Act. The Kashmir law is in accordance with the
traditional Hanafi law. First, whereas Wider the central Act, the girl must be contracted
into marriage before her attaining fifteenth year~ in the Jammu and Kashmir Act she
should have been given .in marriage before she attained puberty. Secondly, unlike under
its counterpart, in the Jammu and Kashmir Act, a girl cannot repudiate marriage given by
her father or father's father unless it is proved that such guardian has acted fraudulently
or the marriage is to her manifest disadvantage. 4 s This provision seems to be more sound
as, while it permits the wife to exen:ise the option in the exceptional circumstances even
wten she has been given in n1arriage by her father or father ,s father, ordinarily it pro-
tects such marriages since such guardians can hardly be expected to have acted other-
wise than in the best interest of the girl.

(c) Option of puberty in Hindu law

The doctrine of kh(var al-bulug has now been incorporated in the Hindu matri-
monial laws. One of the amendments of the Hindu Marriage Act , 1955 , achieved by the
!v1arriage Laws (Araendment) Act, 1976, was the addition of a !Jew ground for divorce
tmder section 13 on the petition of a Hindu wife :
"(iv) That her marriage (whether ronswnmated or not) was
solenmized before she attained the age of fifteen years
and she has repudiated the age after attaining that age
but before attaining the age of eighteen years.
Explanation :- This clause applies whether the maniage was
solemnized before or after the commencement of the Marriage
Laws (Amendment) Act, 1976."

46
In Bathula Jylaiah v. Bathula Devamma the wife in her petition filed on
I 0-6-197 6 had alleged that at the time of her marriage with the respondent husband she
was about nine years old while he was thirteen years of age. She was not well behaved

45. The Dissolution ofl\1uslim fv1arriages Act, 1942.

46. A.I.R. 1981 A.P. 74.
 T7

bv the husband and her in-laws. Her husband deserted her despite aU efforts by her
parents to effect reconciliation . Fcaring that it would be harmful for her to live with him
she sought 'that the marriage between them be declared void ab initio. Before the petition
was moved thanks to the passage ofthe Marriage Laws (Amendment) Act, I 976, which
3

received the President's assent on 27-5-1976, the Hindu Marriage Act had been com-
prehensively amended . One of the amendments effected was the induction of section
13(2) to the Act, which allowed the wife to repudiate the marriage by way of exercise of
the option of puberty. Thereupon on 1-2-1977 the ·wife filed an amended petition stating
that she had repudiate-d the marriage about two and a halfyears back and was entitled to
a decree of divorce. In her original petition moved after the operation of I 976 Amend-
ment, the wife did not take the plea of option of puberty~ perhaps because the amend-
ment had not been noticed. The High Court observed: 'Theret(Jre much weight cannot
be given to the amendment" A11 the same it held that l.Ulder the Act the wife had the
right to repudiate marriage after her attainment of fifteen years and before the expiry of
eighteen years. The petition was moved when she was about nineteen years old, and her
evidence revealed that she stopped going to her husband since la.st three and a halfyears
and had been all along telling others that she was no more interested in the marriage. It,
therefore, showed that she manifestly repudiated marriage when she was about fifteen
and a half years old. It was argued on behalf of the husband that the wife ought to have
lodged 1he petition before her completion of eighteen years and. after the expiry of her
eighteen years she forfeited her right to filing the petition for dissolution of marriage
Wlder section I 3(2) of the Act. Rejecting the argument the court took the view that the
contention merited no substance. Clause (iv) of section 13(2) of the Act called for no
such restriction. The appeal by husband was thus dismissed.

The provision, under (iv) of section I 3 is ~}early adopted from Muslim

law and patterned after Section 2 (vii) of the Dissolution of l\1:uslim Marriages Act,
 78

1939. 47 It is more liberal than the corresponding law applicable to Muslim girls~ as con-
summation with wife's consent and after the age of fifteen years would not defeat wife's
right to have the marriage dissolved. It may be observed that while the 1939 Act pro-
vides a safeguard against the indiscriminate and widespread exercise of the option by
Muslim women, no such restraint exists in the Hindu law.
The Law Commission was not in favour of incorporation of the doctrine in the
Hindu Marriage Act~ The Commission on Status of Women insisted that the right to
repudiate the marriage be made available to the worn~ irrespective of th_e marriage
being consummated or not. 49 The Legislature approved the view of the latter. In drafting
this amendment the law-makers obviously took the view that the provision of Muslim
law, and especially the right of the repudiation until age of eighteen conferred upon
Muslim girls by the 1939 Act~ could provide an answer to the problems faced by the
Hindu society as well. Explaining the importance of the option of puberty under Muslim
law in Batao/an v. Zahoor Shah Roshan, Justice Abdul Hakim Khan once observed :
"On one hand~ it encouraged the principle of
mental liking which is regarded as a sure
foundation of happy married life, and on the
other hand it put curb on the tendency prevalent
in ancient society to perpetuate child-marriage
for fear of its repudiation by either party on
attaining majority.·~

47. Lucy Carroll, 'l\1uslim Family Law in South Asia : The right to avoid an arranged marriage during
minority'. J.I.L.I. vol. 23:2 (1981) p. 175.
48. Law Commission, 59th Report, 51 (1974)
49. Report of the Committee on status of Women, 113 (1974)
50. A.I.R. 1952 Madhya Bharat 30.
 79

It is submitted that the action of the legislature in inducting the principle of

option of puberty is an effective step towards the abolition of dlild marriage and asser-
tion o( particularly~ women·s personality in the matter of marriage. It is also an example
of a big stride towards the endeavour of assimilation and interaction among the Indian
family laws.
 80

CHAPTER 3

Polygamous Marriage in Indian Personal

Laws and Wives' Remedies

Polygamy has been considered a pennitted institution since pre-historic times. It

prevailed among the Greeks, Romans, Persians, Assyrians, Medes, Babylonians, that is,
in a word, among all ancient races with no restriction as to the number of wives. It was
a practice among the Israelites which dated back to the days of Father Abraham. Among
Hindus polygamy was prevalent before the enactment of the Hindu Marriage Act, 1955.
It was cru,tomary among the tribes of Africa, Australia and the Mormons of America.
The Arabs, too, before the advent of Islam held it as a recognised institution. However,
in all these cases there was no limit as to the number of wives that a man could take.

Before 1955, India was the largest country in the world which allowed its great
majority of people, Hindus and Muslims to practise Polygamy -- unlimited number of
wives to Hindu husband and a limited number of four wives to its Muslim counterpart.
The Christians, Parsis and Jews do not perfonn polygwnous marriage under their per-
sonallaws. Theirs is monogamous union.
 81

A. Polygamy: Islamic viewpoints

Islam envisages marriage and family as answering three basic needs of man as an
individual and as a member of society. viz., satisfaction of sex. procreation of children in
order to continue the lineage, and a balanced emotional growth of the spouses and chil-
dren. Islam does neither permit of sex-relation outside wedlock nor does it rely on ad
hoc companionship. Taking of one wife normally on the part of a man is sufficient to
secure the ends of marriage and family. 1 This is the Islamic norms of family and mar-
riage. Monogamy is the general rule in Islam while polygamy (more articulately po-
lygyny) is an exception and permitted in view of some special circumstances which
include both social and individual factors.
As has already been pointed out, the system of polygamy in its various fonns was
in vogue in many parts of the world. particularly in Arabia when Islam flourished as
religion and system of life. Before emergence of Islam people usually engaged in a state
of fighting with the result that the population of women tended to outnumber that of
men and therefore such women were unfortunately left to live a destitute and miserable
life. This state of affairs may be attributed to the growth and continuance of polygamy as
an institution in the main. There is no two opinions that such condition continued to
prevail during the early period of Islam when it was asserting itself as a dominant power
in the soil of Arabia. As a fallout women had to lose their husbands and young children
their fathers. Islam had to provide for these widows and orphans. It was in order to cope
with such emergent situation that the Qur' anic law permitted to man to have wives more
than one.
l. M. N. Siddiqui, 'Restraint on polygamy and Muslim Personal Law' in T Malunood (ed.)
JslatnJc Law m Modern Jnd1a (1972).
 82

In some societies. sometimes women outnumber men. There are widows and di-
vorced women still in search of a horne. A wife may be incurably ill, suffering from
mental or physical disabilities. The husband may find his spouse no longer suitable as
conjugal partner.
Again, there are individuals who have a more active seXUc1l impulse than others.
For them polygamy is the solution- a means to c.:heck adultery, concubinage, prostitu-
tion and other sexual offences. In his monumental work. Sex. Life and Faith, Dr. Rome
Landen says,

"In an imperfect world such as we live m,

polygamy must be considered both natural and
legitimate. To eliminate polygamy we should
first have to change the entire character of
our civilisation, then the nature of man and
finally nature herself. In most cases, I found
that polygamous behaviour and polygamous
longing went hand-in-hand with an essentially
monogamous nature of marriage. On the evidence
of history and science, it is imperative that
polygamy should be recognised more honestly."

Professor A.M. Ingells in an essay "/Jiology ofsex', writes that "man as a social
animal is anything but monogamous. And one would have great difficulty in explaining,
biologically, such a sudden change of heart :the transition to a single wife." 2

2. As quoted by S. Kbalid Rashid in Muslim Law, 72 (1973).

 83

(a) Qur'anic legislation

That the Qur' anic law envisaged a monogamous family as the nomtal patt:""rn 0f
life is borne out by the context and construction of the Qur'anic verses on the subject.
The verse of polygamy runs as follows :
"If ye fear that ye shall not deal fairly with
the (female) orphan wards under yo~ (do not
marry any of thent) but marry other women whom you
like, two or three or four, and if ye shall fear
that ye shall not act equitably, then marry one only
(from free women) or from the female captive Wider
your charge. This will facilitate just dealing on your

And then it adds:

"Ye are never able to be fair and just as
between women, even if it is your ardent

It may be noted that this verse was revealed after the battle of Uhad, when the
Muslim community was left with many orphans, widows and captives. Another notable
point in this regard is the pre-Islamic absolute freedom of man taking any number of
wives with no restrictions whatsoever was, thus, curtailed by the Qur'anic legislation.
During the recent past, this injunction of the Qur'an has been interpreted as one practi-
cally restricting bigamy. 5 This is not something novel. Even during the third
3. Qur'an, IV : 3 'fr. by A Yusuf Ali.
4. Qur'an., IV: 129 Tr. by A Yusuf Ali.
5. Bashir Alunarl, 'Status ofWomen and Settlement ofFamily Disputes under Islamic Law'
in T. Mah.~~ood (ed.) Islamic Law in Modern India, (1972) 186.
 84

century of Islam, during the regime of Caliph Al-Ma'mun, the Afu 'lazilites be1ieved and
asserted on the strength of those verses that monogamy was t:he rule and bigamy was
absolutely prohibited.
In all the pre-Islamic civilisations, as stated earlier, polygamy was a recognised
institution. Indians, Babylonians, Persians, Israelites, Athenians all practised polygamy
with no restriction whatsoever.6 For the first time, the Qur'an restricted the number of
wives to four with the condition of equal justice between co-wives. The provision is not
unconditional. It is conditioned with justice and equity to be adequately meted out. The
number of co-wives was restricted to four and ability to do justice between co-wives
was made a pre-requisite of taking more than one wife. Failing. it was stressed, one
should take only one ·wife. The principle has been echoed in the Hadith as well:
One Ahadith reported by Abu Hurayrah
says that the Prophet had observed
that if a man had two wives but did not treat
them justly, on the day of judgement he would
be raised as a truncated man devoid of half
ofhis body?

Abdullah Yusuf Ali in his translation of the Qur'an points out:

"Their treatment was to be governed by the
greatest humanity and equity. The occa.~on is
past, but the principles remain". a

Regarding one's ability to do justice to the co-wives, it should first be noted that
economic support of a wife is the legal responsibility of a husband, in Islam .9 This is
6. Ameer Ali, The Spirit ofIslam, 222-26 (1904).
7. Tirmidhi
8. A Yusuf Ali, The Holy Qur 'an (tr. ).
9. Qur'an, n: 293.
 85

irrespective of the financial condition of the wife herself. A person who is incapable of
doing so may be separated from the wife by a court of law. lt should also be noted that
the unmarried who lack the financial means of supporting a wife are advised to abstain
from marriage till such time as they come to possess the means .10 This clearly goes to say
that financial capacity to support a number of wives is the prior-most connotation of the
'ability to do justice' mentioned in the Qur'anic verse on polygamy. On the authority of
an eminent commentator Justice Krishna Iyer observes that 'equality' covers clothes,
jewellery, houses, love, affection, sentiments etc .11 The court can intervene o~y when
there is a complaint from one of the wives.

(b) Rights of wives of polygamous husbands : Kissim,

and decision by the courts of India

Till the passing of the Dissolution ofMuslirn Marriages Act, 1939, the rules laid
down by the pure ~1uslim law were only of caution and their violations could be com-
plained to the Qazi for the imposition of sanctions on the husband, 12 although in practi-
caljudicial application these rules were seldom observed. The passing of the 1939 Act
followed by the introduction of Indian constitution gave a fresh impetus to the gender
justice.
The justice to be meted out by the polygamous husband under traditional Islamic
law as between the co-wives is governed by a principle teclmically known as 'Kissim'. A
basic rule in this regard as enunciated by Hedaya on the basis of a Hadith from Abu

10. Qur'an XXIV : 33.

11. V.R. Krishna Iyer, 'R~fonn of Muslim Personal Law' in Tahir Malnnood ( ed. ), lsiamic Law
in 1vfodern India (1972) p. 23.
12. Ba.Jzart-Sharlat Vll 88.
 86

Hurairah says :
"If a man has two or more wives, being all
free women, it is incumbent upon him to make
an equal partition of his cohabitation among
them, whether he may have married them as
virgins or as syeeha or whether some of
them be of the former description, and others
of the latter.. because the Prophet has said,
'The man who has two wives, and who, in par-
tition, inclines particularly to one of them,
shall in the Day of Judgement incline to one
side' (that is to say, shall be paralytic)" .13

Accordingly he is bound to divide his time equally between his wives, provide
equal maintenance, make no distinction in giving gifts and to distribute all his attention
equally in respect of conjugal amours. But the mode of partition is left to the husband
himself, as the Hedaya says :
"If he chooses, he may fix it one day of
cohabitation with each of his wives,
successively or more~ and it is also to be
remarked that by the: equality of partition
incumbent upon the husband is to be understood
simply residence, but not coition ... which is
not always in the husband's power." 14

13. Hedaya, 66.

14. Id 67.
 87

It is not permissible to a husband to make any distinction between a young or old,

Muslim or non-Muslim wife. However, certain exceptions are made that a wife has a
right to give up her turn of sexual intercourse in favour of another, but she can also
withdraw her permission on her choice. It is not necessary for a husband to take by
rotation his wives on his journeys. 15 And when he marries a new wife, then he is allowed
to spend seven consecutive nights with her if she is a virgin and three nights if other-

The passing of 1939 Act gave a fresh life to the rules of Kissim inasm~ch as the
sub-clause VIII (f) of section 2 of the Act gave these rules a practical legal significance
and as such violation of these rules by the husband entitled the aggrieved wife to the
right of a judicial divorce .17
On a review of the texts of the Qur'an and the Hadith with reference to the sub-
clause VIII (f) of section 2 of the Dissolution of Muslim Marriages Act, 1939, the ques-
tion striking to one's mind is :'Can a wife as of right claim judicial divorce in dissolving
her marriage with a husband having wives more than one ?' In one deliberation at least
and that is the Ahrnadiya view, it was observed that if a wife feels that by taking another
wife, her husband has perpetrated injustice to her, she has the right to sue for the judicial
dissolution of her marriage .1i
Within less than a decade of the introduction of the Constitution, the Indian Courts
along with the progressive segment of the citizentry began to take a stem look at the
institution of polygamy. The right of women in general and polygamous wives in par-
ticular began to receive an ardent attention. The modem view is that Islam has tolerated
polygamy on the ground of necessity and permitted it only subject to a strict condition
which is difficult to fulfil. In a case, .Badruddi.n v. Aisha Be gam, 19 it was held by the
15. Ibid.
16. Shara Waqia.
17. .Asma Bai v. U~er Mohmnmad Sidik lr4izra, 1941, Sindth, 2
18. Chasma~ -lvfaarfat 238.
19. 1957 All. 300.
 88

Allahabad High Court that the M~ htt\~ 11t1 ftt«dtt«1Cittul ript tlj h~vc sno~ thi!it

one wife and the provision of polygamy is not an essential part of Islam.
Under the Criminal Procedure Code of 1973, the court can order a Muslim hus-
band to provide maintenance to his first wife who is living separate from him due to his
having contracted a second marriage.
As an antidote to the excesses of the polygamous husband, the Muslim commu-
nity often insert in the marriage deed a clause of delegated divorce (Ta/aq Tafwid) which
may be pre-nuptial and post-nuptial agreement. Refusal to the restitution of conjugal
rights to polygamous husband is another way generally resorted to by the wife. Thus in
Siddin v. Latifunnisa, 20 the court on the ba.~s of the Muslim marriage being a contract
held that both the pre-nuptial and the post-nuptial agreement gi~g a wife right to di-
vorce is valid. The scope anq extent of delegated divorce wa~ extended and its teeth
further sharpened when in Saifuddin Sheik V. Sonoka Bih£21 the Assam High Court held
a divorce delegated to wife as irrevocable on the basis of a Kahinnama containing a
stipulation that in the event of husband's bringing his formerly wedded wife to stay with
him without prior consent of his second wife, the latter would have the option to exer-
cise power to divorce. In another case the Calcutta High Court held that right to del-
egated divorce could be opted at anytime as a continuing wrong done to the ·wife.22
In a landmark judgement the Allahabad High Court in Jtwari v. Asghari 23 refused
a polygamous Muslim husband restitution of conjugal rights against his first wife with
the following observation, on his taking a second wife. Dhavan, J. observed :
"In a suit for restitution of conjugal rights by a Muslim husband
against the first wife after he has taken a second, if the Court
after a review of the evidence feels that the circumstances reveal

20. (1918) 46 I.L.R.

21. A 1 R. 1955 Assam 153.
22. Ayatunnisa Befi:bee v. Karan Ali (1909 LL.R. Cal. 23.).
23. A I. R. 1960 All. 684.
 89

that in taking a second wife the husband has been guilty of such
conduct as to make it inequitable for the Cowt to compel the first
wife to live with him., it will refuse relief.
Muslim law as enforced in India has considered polygamy as an
institution to be tolerated but not encouraged, and has not con-
ferred upon the husband any fundamental right to compel the
first wife to share his consortiwn with another woman in all cir-
cwnstances. A Muslim husband has a legal right to take a s~cond
wife even while the first marriage subsists, but if he does so, and
then seeks the assistance of the Civil Court to compel the first
wife to live with him against her wishes on pain of severe penal-
ties including attachment of property, she is entided to raise the
question whether the Court as Court of Equity, ought to compel
her to submit to cohabitation with such a husband. In that case
the circumstances in which his second marriage took place are
relevant and material in deciding whether his conduct in taking a
second wife was in itself an act of cruelty to the first.
In considering the question of cruelty in any particular case, the
court cannot ignore the prevailing social conditions, the circum-
stances of actual life and the change in the people's habits and
modes of living.
The onus would be on the husband who takes a second wife to
explain his action and prove that his taking a second wife in-
volved no insult or cruelty to the first. But in absence of cogent
explanation the Court will presume, under ntodem conditions
that the action of the husband in taking a second wife involves
cruelty to the first and that it would be inequitable for the court to
 90

compel her against wishes to live with such husband."

The following year the Pakistan I Bangladesh Muslim Family Laws Ordinance,
t

1961 rendered a Muslim husband liable to fine and imprisonment and entitled his exist-
ing wife to immediate payment of her full mahr and to judicial divorce, should he marry
again without the requis-ite prior permission of the Arbitration Council. The English
Court in a recent case, Quoraishi V. Quoraishr4 drew support from the decision of the
learned Justice Dhavan in Jtwari v~ Asgharf-5 in the course of dismissing a husband's
petition for divorce on the ground ofwi.fe's alleged desertion after he had contracted a
second marriage . Equally recently, the Lahore High Court affirmed in Ejaz J\1ahmood v.
Mst. Hum.airalf-6 that a second wife can institute a complaint as an "ag_grieved party"
when the husband married her polygamously in violation of the provisions of the
ordinance.
In the recent years, the world public opinion was swayed by the Women's Lib
Movement that regards institution of polygamy as a dreadful anachronism in view of the
spirit of the century and as such, they feel, it must be made to go for good through
legislation. The proposal for the amendment of the Muslim personal laws carne again
and again on the floor of Indian Parliament which agitated the Muslim mind. As a result
the Muslim intelligentia has to deliberate deeply in the matter and. a number of seminars
and symposiums have been organised. 26A It was observed that hardly less than one per
cent Muslims practised polygamy in India. 27 But what is more important is that
24. (1983) 4 Family Law Reports, 706.
2.5. Supra note, 23.
26. PLD 1983 Lahore 615.
26A It is interesting to note> in this context that during a seminar on Muslim Personal Law organised in
the Indian Law Institute, New Delhi on 14-16 January, 1972, the dominant view ofthe participating
scholars was that total abolition of polygamy in India would be very detrimental. As Professor J.N.D.
Anderson puts it:
"A complete prohibition of polygamy, if coupled with the husband's
Wlfestricted right to w1ilateral divorce, would be a retrogade rather
than progressive step, for it would mean ti1at a man detennined to
many a second wife would feel compelled to divorce his first wife.
 91

majority out of these negligible percentage show lea..q regard for the compliance of the
restriction laid down in the Qur'an. The substantive Qur'anic law permitting polygamy
must not be held responsible for its misuse. The absence of effective machinery inter-
feres with the Qur'anic provision on polygamy. And therefore both the administrative
and judicial steps must be taken to ensure the safeguard to Muslim wives. Here the state
with the help of Muslim jurists and ukmas can assume an effective role. As Prophet
himself is reported to have said :
.. Allah restraints with the state what He does not
restraint in the Qur 'an". 28

B. Polygamy, polyandry and limited

bigamy in Hindu law

Instances of polygamy are both common and frequent in the Rgveda Samhita.

It would certainly be more beneficial to Muslim women to permit poly-

gamy \Ulder specified conditions."

Joseph Minattur obse!Ved :

"There is no reason why a West-oriented hypocrisy should be inscribed
into our statute book on the plea of Wliformity of law or
social welfare ..."
'' Thailand's image in the 'Comity ofNations' is not the least
tarnished because Thai men marry more than one wife."

To the wonder of the modernists. when the Asia Magazine conducted a gallup poll in Thailand in 1965,
a vast m~ority ofThai women including educated ones expressed themselvt~s in favour of polygamy.

27. M. Mustafa Ali Khan, 'Polygamy in Islam', in Muslim Personal Law, (ed.) E.R Faridi &
M.N. Siddiqi, 1973 p. 51.
28. ibid.
 92

Sapatni is the term usually used to indicate a co-wife. Cases of polygamy among the
kings, nobles and sometimes even the priests have been frequently instanced in the
Rgvedic age. Polygamy among the Aryans appears to have originated from their appro-
priating the girls of the subjugated aborigines. They first kept them as concubines fol-
lowed by their raising to the status of vadhus, the wedable women or quasi-wives. This
ultimately resulted in an Arya having one wife or more apart from his "sole spouse",
'Mahishi', who was an Aryan woman. This, in course of time, degenerated into taking
more tha.11 one wife even from the Aryan fold, and later in the Brahmanas from the same
caste. This is demonstrated in the Yajur ~da and Aitart!ya Brahm.ana where it is cat-
egorically stated that 'a man may have several Vt-i.ves, though a woman must not have
more than one husband'. In the Dharma Sutras is found a distinctive reverse against the
cu~om of polygamy. It did a lot to eradicate this practice. However, the later day Smrilikars
and classical jurists negatived its benefit and secured to the Hindu husband the law of
marriage which reigned till June, 1955.]!)
The J'edas have no mention of polyandry. However, in the earliest Vedic period,
there were numerous people who were polyandrious. It prevailed during the days of
Vatsyana. Among the races in the South its practice was widespread. The Northern
literature like the Mahabharata bears the brunt of it. N.C. Sengupta observes that at one
time women were absolutely free to have intercourse with whomsoever they chose, 30
until the advent of Svetaketu who supplanted it by introducing the system of marriage.
Polyandry still survives and reigns as normal state of society among the hill-tribes in the
sub-Himalayan regions.31 In Lahul valley in Himachal Pradesh and among the Thiyyas
of South Malabar polyandrious union was recognised by custom. 32 A common wife in a
29. P.M. Dhar, 'Polygamy among Hindus : a Survey in retrospect', Islamic and Comparative Law
Quarterly (vol. V:2) 1985 p. 147 [This is an analysis ofthe institution from the Vedas to
Vashista. -Researcher].
30. N.C. Sengupta. Evolution ofAncient indian Law. p. 135.
31. M.A Qureshi, Marriage and Jvfatrimonial Remedies (1978), p.50.
32. Krishnan v. Ammalu, AIR 1972 Ku 91 (Relating to Thiyyas).
 93

family is still regarded as the basis of their joint family.

In some systems of law where monogamy is a recognised institution, concession
for polygamy or second marriage is allowed to those males who fail to achieve a child
even after lapse of several years of marriage. On the western coast of India, in the
erstwhile Portuguese colony of Goa, Daman and Diu a Hindu husband used to be
concessioned with a second wife during the life-time of the first one in some special
circumstances and in some cases with the consent of the existing wife. That continues to
be the law in those territory under the Goa Hindu Usage Decree of 1880. K~e in his
History ofDharamsha~rttra,$3 had observed that polygamy should be tolerated for some
classes on economic ground. There are others who come out with a support in favour of
recognition of this institution in some limited cases. Derrett, for one, vociferously sub-
mits when he says:
"It is argued that carefully regulated bigamy, i.e., plural
marriages, in cases of infertility, mental instability of """ife,
and other cases where the good sense and humanity of the husband
and his family recoils from divorcing her or annulling the
marriage where she is impotent or very sick, would not only
be in accordance with traditional Hindu religious sentiment
and practice, but also much more realistic."34

The ancient texts of Hindu law do not restrict the number of wives. In fact
the laws of Manu lay down specific conditions for celebrating subsequent marriages :
"A barren "rife may be superseded in the eighth year, she
whose children (all) die, in the tenth; she who bears

33. \To\. Ill, g24.

34. Derrett, Critique ofModem Hindu Law, 308.
 94

Hffiy ftruJ~.hteR~ mthe eleventh: but :;he who i:; qumelsome

without delay'' .35

(a) Monogamy: The spirit of Hindu Marriage Act, 1966

Section 5 of the Hindu Marriage Act, 1955lays down the condition that "neither
party has a spouse living at the time of the marriage". This affinns the rule of monogamy
amongst the Hindus. This at the swne time abolishes polygamy. Customs or usages can-
not save the age old institution. Even a wife married before May 18, 1955 can seek
divorce under section 13 (2) ( 1) after the conunencen1ent of the Act provided that an-
other co-wife is alive. A husband contracting bigamous marriage after the commence-
ment of the Act is liable to be punished for a term of imprisonment which may be
extended to seven years and a fine under sections 494 and 495 of the Indian Penal Code.
Hindu marriage solemnized after the Act is no longer "potentially polygamous,. as held
in some English cases.

(b) Offence of bigamy

The offence of bigamy is conunitted by a person marrying again during the life
time of his or her spouse (·wife or husband as the case may be) provided that the first
marriage is not null and void. If the subsisting marriage is voidable, then also offence of
bigamy is committed. In Kanwal.Ram v. H.P., the Supreme Court held that the offence
of bigamy is conunitted only if the requisite ceremonies of marriage are performed. 36 In
35. Manu. IX ; 81.
36. 1966 S.C. 614.
 95

Priya t- Suresh, it was held that the second marriage cannot be taken as proved by the
mere admission of the parties; essential rites and ceremonies rrmst be proved to have
been carried out. 37
The solemnization of marriage is proved when the marriage is performed by way
of essential rites and ceremonies of marriage as required by the law or custom applicable
to the parties. A prosecution for bigamy would be of no use if it is established that some
ceremonies, not at all essential from legal viewpoint were perfonned with a specific
purpose that the parties would be taken as married. If they do not perform the necessary
ceremonies, two persons, by even actually living as husband and wife, cannot legally
establish that they are married couple. Again, persons commiUing bigamy, cannot be
guilty of the same if they omit, wilfully of unwilfully, to carry out the essential marriage
ceremonies. 3li

(c) Consent of the wife in husband's second marriage

Whether consent of the first wife can validate the contract of second marriage by
the husband wtder post-1955 Act? In 1988 in Smt. Yamuna JJai Anantrao Adav v.
Anantrao Shihram Adav'9 one ingenious argwnent was advanced to establish the status
of the wife of a bigamous marriage. A similar plea was taken to establish the validity of
a bigamous marriage in Smt. Santosh Kumari i~ Surjeet Singh!IJ in which a declaratory
suit was filed by the wife praying that her lawfully married husband be allowed to take
a second wife as because of her prolonged ill-health, she was not able to satisfy the
sexual desire of her husband and as a consequence, she was not able to give birth to a

37. 1971 S.C. 1153.

38. P. Diwan, lAwsofMarnage cmd Divorce, (1988).
39. A.lR. 1988 S.C. 644.
40. A.LR. 1990 H.P. 77.
 96

male issue_ It was funher prayed that on her husband marrying a second wife conse-
quent upon the declaration, she would continue to be regarded as lawful wife with all
amenities and maintenance to be provided by the husband_ Although trial court passed
the decree. the Himachal Pradesh High Court quashed it. Recently, reported in 1995, the
Orissa High Court refused to give validity to a second marriage: of a husband contracted
with the consent of the :first wife who had been suffering from leprosy. 41

(d) Bigamous marriage and remedies extended to

the aggrieved "wives"

In case of a bigamous marriage the "second wife'' enjoys no status of wife_ How-
ever, in the event of her filing a petition for nullity, she can lay claims for both interim
and permanent maintenance_ The legally wedded first wife of a bigamous husband has
no right to file a petition for nullity under the Hindu Marriage Act, as section 12 clearly
says that a petition for the marriage to be declared null and void can be moved only by
other party to marriage (Kedar Naih v. Suprava)_4Q But it seems, observes Paras Diwan,
that she can file a suit in a civil court for declaration Wider section 9 C.P.C. read with
section 34, Specific Relief Act that the subsequent 1narriage contracted by the husband
was null and void. 43 She has also the option to file a petition for divorce Wider section
13(1) (i) on the ground of adultery.

41. Edla Neelaya v. Edla Ranada alias Rarndas, I (1995) DMC 19. Orissa High CoUJ1.
42. 1963 Pat 311.
43. Paras Diwan, Laws ofl"vfarriage and Divorce (1988).
 97

(e) Can a spouse bring injunction restraining the

other from performing bigamous marriage ?

In Umashankar v. Radhadevi, 44 the Patna High Court held that there is no provi-
sion on the Hindu Marriage Act by virtue of which a wife apprehending her husband's
marrying a second time, can apply for and obtain an injWlction restraining him from
doing so. Neither she can do so under section 11 or section 17 or under any other
provision of the Act. However in view of the judgement pronounced by the Mysore
High Court in Shankarappa v. .Basumwa, 4~ she can file a suit for perpetual injunction
restraining the husband from contracting a bigamous n1arriage under section 9 C.P.C.
read with section 38 Specific Relief Act, 1963. Iyer, J.observed in this regard that there
was nothing expressly or impliedly in the Hindu Marriage Act barring such proceedings.
Similar view was also expressed by the Bombay and the Rajasthan High Courts, in Sibbai
v. Ramchandra ~ and .Bhomi La/ v. Kaushaliya ~ respectively.

(f) Misuse of section 7 : apathy of judiciary to

hapless wives

Despite all the penalties and provisions provided in the Hindu lvlarriage Act, 1955,
the practice of polygamy among Hindus has not been abated. 'Bigamous marriages con-
tinue to take place as freely as they did before 1955' _<~&Two reasons, in the main, may be
attributed to the continuance of this practice. One is the reluctance on the part of the
aggrieved wife who would rather accept sharing her husband with the co-wives than
44. A.LR. 1967 Pat. 320 ... 641.
45. A.LR. 1964 MYS 247.
46. ALR 1958 Born. 116 (F.B.)
47. A.I.R. 1970 Raj. 83.
48. Taber Mahmood, Personal Law in Crisis, 116 [1st ed.• 1986).
 98

sending her husband to prison which is contrary to the ethos and psyche of the ever-
tolerant Indian wives.• Other reason which needs robust attention of the community is
the misuse of section 7 of the Hindu Marriage Ac~ 1955, vis-a-vis the prevailing method
of interpreting a valid Hindu marriage to constru<it tlu: offence of bigamy.
The provision of section 7 of the Hindu Marriage Act is often misused in order to
avoid prosecution for bigamy. The argument in defence of the accused in the following
case is an instance in our context :
In the case of Smt JJaby v. Jayant .Mahadevo Jagtap,YJ
the matter to be decided was how far the 1955 Act
approved and recognised customary form of marriage
which contrasted with the prevailing form of marriage
as seen among the Hindus in order to prosecute the
party for committing bigamy. The couple were
wedded under c~mary form of marriage in
vogue among a group of Hindu Harijans converted to
Buddhism. With the earlier marriage of the
accused intac~ he got remarried in the said
fonn. The first wife then proceeded brin&in&
charge of bigamy under section 494 of the Indian
Penal Code. It was contended on behalf of the
accused tha the second marriage was not a
legally valid marriage, as saplapadi and hama
/ajja, the rites and ceremonies essential for
Hindu marriage was not observed. It was argued
that the departure from this essential usual

49. M.A Qureshi, Marriage and Matrimonial Remedies (1978).

.SO. ALR 1981 Bom. 283.
 99

rite had become catastrophic to the second

marriage and therefore borne no legal validity.

It is submitted that if bigamy is to be more effectively checked section 7 of the Act

must be suitably amended. The solution to the problem lies in laying down one particu-
lar ceremony for Hindu marriages of all .kinds, with registration of marriage being made
strictly compulsory. So long as all sorts of ceremonies, Shastric and customary are
recognised, such confusions are bound to occur. The mischievous elements of the soci-
ety would fully exploit this legal loophole at the costs of the innocent ones. 51
The prevailing method of interpreting a valid Hindu marriage to con&truct the
offence of bigamy is problematic. Our Supreme Court ~ laid stress on the strict
observance of homa and saptapadi as essential ceremonial rites for such marriage.
Such form-based detenninacy h~ opened a wider scope for defeating the charge of
bigamy on the part of the accused who shows least concern either for the position oftha
first wife or for the status of the second.52 In JJhaJJTao Shankar Lokande, the Supreme
Court observed that for the offence of bigamy to be proved both the marriages must be
.. valid according to the law applicable to the parties. The fact of their living as husband
and wife and its recognition by the society was irrelevant in the eyes of law r 53
In Kanwal Ram, for non-eompliance of some essential ceremonies, the Supreme
Court ruled the second marriage not validly performed with the following observation:

"In a bigamy c~. the second marriage as a f~

tJua is to say, the ceremonies constituting it

51. Paras Diwan, ' Ceremonial Validity ofHindu M...-iage :Need for Refonn' (1977) 2 section (J) 22.
52. "A Round Up ofBigamous Marriage"' in J. Dtmcan M. Derret, Essays in aassical and
Modern Hindu Law, vol. Iv. p. 90 (1978); also M.P. Singh, 'Bigamy, A CoojlDlcture for
Deconstruction', JILl, vol : 30 12 (1988)
53. Bhawrao Shankar Lokhande "·State ofMaharastra, AI.R., 1965 S.C. 1964.
 100

must be proved .... [A] dmission of marriage by

the accused is not evidence of it for purpose
of proving marriage in an adultery or for bigamy case."54

It is respectfully submitted that the judicial approac~ in the aforementioned cases,

with 'fonn-based' determinacy of valid marriage has been delinked from the social real-
ity of Indian situation. Our highest apex court has not shown the least 'compunction in
dismissing the charges against the accused and cared neither for the position of the first
wife nor showed in.tere~ in the status of second one.55 However, from a recent case,
reported in 1995, it can be understood that although the Supreme Court still sticks to the
fonn-based detenninacy in gauging the validity of bigamous marriage, it does no longer
totally disregard the dismayed future of the aggrieved wife. Thus in Laxmi Dfvi v. Satya
Narayan the Supreme Court held that the prosecution had not proved through proper
witnesses 'sapklpadi. 'to establish the factum of second marriage of the accused and that
in the absence of such a ceremony the factum of the second marriage cannot be held to
have been made out. It was further held tlut merely because the appellant was not in a
position to prove the factum of second marriage punishable under section 494 of the
Indian Penal Code did not mean tlut the appellant should be left in the lurch. '~xercis­
ing our powers under Article 142 of the Constitution of India we think appellant should
be awarded compensation which will bring some solace when her life is dismally dark.
Therefore we quantify the compensation at Rs. 25000/- which shall be paid by the first
respondent (husband) to the appellant (wife) within eight weeks from today."j6
All the preceding decisions, it is submitted again, could go to support our conten-
tion that 'fonn' preclosure is not a necessary condition of reconstruction of the second
marriage. The intention and substance of the marriage, if given primacy, would serve the
54. Kanwal R4m v. HP. Administration, AIR 1966 S.C. 614.
55. J.IL.L vol. 30 :2, (1988) p. 226.
56. Laxmi Devi v. Satya Narayan,! (1995) DMC 298, Supreme Court oflndia
 101

cause of court and justice in furtherance of social defence.

The Hindu Marriage Act, 1955 has sought to do away with the practice of po-
lygamy by a single stroke of legislative act. However, it has staged a come back in the
guise of other form of sex relation : by way of a sham marriage. The me of incidence of
polygamous marriage among Hindus is 0.09(nine) per thousand as against the Muslims'
0.06 (six) per thousand, as the statistics goes. 57
It may be submitted ilia women suffer under bigamous marriage. On the other
hand, monogamy alone, in absence of limited pmdicc of bigamy, lm:cds up evils like
prostitution, concubinage, war child, fondling houses, rape, etc.etc .... --all deroga-
tory of womens' status and dignity. It is on these counts that restrictive polygamy is
desirable to save the society from falling into greater evils although at the cost of wife's
interest and welfare. No extent of remedies extended to a wife muter polygamous mar-
riage is enough to counterbalance the loss and hwniliation suffered by her. Polygamy,
however little being practised in any society, goes to tell the story of owes of such wives.
Its frequencies are conspicuously greater among lower-middle class which is markedly
impoverished from economic and educational viewpoints. An effective redresssl of their
lots lies in the economic and social upgradstion of this class.
Now let the concluding part of our discussion be adorned by the thought provok-
ing words of Professor Mahmood which would be most befitting in our context :

'' The question, however, is wlut relief does the Indian

law give to a Hind~ Buddhist, Jain or Sikh wife
whose husband unscrupulously plans to marry again for
no rhyme or re~n? Much more relevant and necessary
than punitive action after the wrong is already done
are in this country preventive measures to stop the

51. S.N. Agarwala, 'WiJJ Muslims outnumber Hindus', illustrated HireJdy, Bombay (January, 1973).
 102

man from imposing on his life-partner the curse of a

co-wife. Can prosecution of a bigamist in a criminal
court help his first wife? Under the law, as imported
from England, the poor woman cannot even bring in a
nullity petition for her husband's second marriage,
and in judicial opinion this is not violaive of the
equality clause of the Constitution.
Then, has the law as now in force really succeeded
in its aim of eradicating bigamy ? Bigamous marriages
continue to take place as freely as they did before
1955. A Hind~ Buddhist, Jain. Sikh husband who has
contracted such a marriage would, if prosecuted,
prove to the satisfaction of even the highest Court
of justice that his second marriage did not at all
amount to a ..marriage " within the meaning of the tenn
under the Hindu Marriage Act as it lacked in some
minute detail of the eu&tomary ceremony that was
allegedly adhered to. A husband who is more cautious,
and does not want to incur even the risk of prosecu-
tion, would announce a sham conversion to Islam and
then marry again under an absolutely fallacious belief
t1utt bfhlnti~ hsw ~tnttc:. to hb shelter.

All these unhealthy trends, in my opinion, follow from

the fact that, imitating England, we have simply abol-
ished polygamy in blanket terms by one stroke of
legislation with a pious hope that the new law would be
faithfully followed by all Hindus, Sikhs, Buddhists and
 103

Jains. Much more effedive than legislative abolition

of bigamy would. in f~ be its judicial control. A
legal provision to the effect that whoever is once
married under the Hindu Marriage Act-· whether he re-
mains a Hindu or not- cannot under any circumstances
marry again without the prior permission of the court,
coupled with powers conferred on the courts, to effec-
tively prevent a proposed bigamous marriage likely to be
contracted without its prior consent, would yield much
better results. Under such a law in a case of excep-
tional hardship the court can even give permission for
a second marriage, instantly dissolving the first
marriage at the same time, should the other spouse
insist on it. Similar provisions may be introduced,
mutatis mutandis, into the Special Marriage Act,
1954. For appreciating and accepting these sugges-
tions we shall, of course, have to give up our blind
imitation of the West in regarding monogamy as an ideal
in itself and not as one of the means to attain the real
ideal-viz. mutual welfare of the couple.
I would finish this point by saying that in view of the
fact that the Islamic law on bigamy is being grossly
misunderstood and misused by both the Muslims and non-
Muslims, I do strongly recommend the extension of the
law suggested by me also to persons governed by the
Muslim personal law'' .$2
58. Tahir Mahmood, Personal Law in Crt sis: P.B. (]Qjendragadkar Endowm€nt uctures,
Bombay University. (1st Edition 1986) New Delhi, 116-117.
 104

CHAPTER 4

Restitution of Conjugal Rights

A package of mutual rights and responsibilities emanates from marriage. Con-

sortium is one of such important rights. In case one of the parties to marriage refuses to
discharge his or her marital duties, the prejudiced ha9 the right to get them enforced by
resorting to the court of law.
The notable feature is that although the remedy has no root in the personal laws
of the conununiti.es, it is almost unifonnly shared by all matrimonial laws in India
Originally conceived in the Jewish matrimonial laws, the remedy found its place in the
htdian courts by their colonial masters who adopted it in the ecclesiastical courts in
England by way of the Statute of George III excommunicating the guilty spouse in the
beginning and then substituting it with imprisonment. Regarded almost as an anachro-
nistic remedy now, it was first made available to Muslims by the Privy Council in
Mootuhee .BJ1Zloor Ruheem v. Shumsoonnissa .Begum1 in 1866. Within less than a
decade it came to be applied in Kateeram Dokanee v. Mst. Gendhenee l where it was
held tha the fonnulation chalked out in the fonner could be well utilised in the settle-
ment of disputes relating to the Hindu law, of course, mulatb muJandis. Soon

I. (1866) ll M.LA S.51 (P.C.).

2. (187.5) 23 516. W.R. 178.
 105

Jogendronundini Dossee v. Hurry Doss Ghose,3 Brindahun v. Chundra, 4 Brinda v.

Kaunsilia s and Dadaji Bhikaji v. Rllkmabai ' came out with the remedy in quick
s
succemon, all between 1880 and 1891, by the various High Court/then in existence in
India. In course of time the Raj had the remedy incorporated into the common law-
based family law enactments of the Christians and Parsis of Indi~ and enacted proce-
dural rules in the Civil Procedure Code. In the modem legislative culture the provision
is indistinguishable in the Hindu Marriage Act, 1955 and the Special Marriage A~
1954, with that of Parsi Marriage and Divorce Act, 1936 emerging with a slightly
different language. However. the erstwhile English notion-based Indian Divorce Act,
1869 carries different provision for it. In the recent years the remedy has sparked off a
nation-wide debate consequent upon two contradictory judgements pronounced by the
South and the North High Courts.

A. Relevant provisions under the family

laws operative in India

Hindu law

Section 9 of the Hindu Marriage Act, 1955 :

When either the husband or the wife has, without
reasonable excuse, withdrawn from society of the other,
the aggrieved party may apply, by petition to the district

3. (1880) lLR .5 Cal .500.

4. (1886) lLR 12 Cal. 140.
5. (1891) lL.R. 13 All. 126.
6. (1886) lLR 10 Bom. 301.
 106

court, for restitution of conjugal rights and the

co\ll't, on being satisfied of the truth of the statement
made in such petition and that there is no legal ground why
the application should not be granted, may decree rest-
itution of conjugal rights accordingly.

Explanation- Where a question arises whether there has been

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

Muslim law

The fonnulaions of the relevant provision attempted by Faiz Badruddin

Tyabji and D.F. Mulla are as follows respectively :

Where either the husband or wife has, without lawful

ground withdrawn from the society of the other, or
neglected to perfonn the oblipions imposed by law or
by the contract of marriage, the court may decree res-
titution of conjugal rights, may put either party on
terms securing to the other the enjoyment of his or her
legal rights. 7

7. F.B.Tyabji, Muslim Law (4th edition) 1968, p. 103.

 107

Where a wife without lawful cause ceases to cohabit with

her husband, the husband may sue the wife for restitution
of conjugal rights. 8

Christian law

Sections 32 and 33 incorporated in the Indian Divorce Ac~ 1869 run as under:

When either the husband or the wife has, without

reasonable excuse, withdrawn from the society of the
other, either wife or husband may apply, by petition to
the district court or the high 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.
Nothing shall be pleaded in answer to a petition
for restitution of conjugal rights, which would not be
ground for suit for judicial separation or for a decree
of nullity of marriage.

8. D.F.Mulla, Principle ofMahomedan Law (17th edo.) 1972, p. 274.

 108

Parsi law

The relevant provision~~ under section 36 of the Parsi .Marriage and Divorce
Act, 1936 is as follows:
Where a husband shall have deserted or without lawful
cause ceased to cohabit with his wife, or where a wife shall have
deserted or without lawful cause ceased to cohabit with her husband,
the party so deserted or with whom cohabitation shall have so ceased
may sue for restitution of his or her conjugal rights and the co~ if
saisfied of the truth of the allegmion contained in the plaint, and that
there is no just ground why relief should not be granici.d, may
proceed to decree such restitution of conjugal rights accordingly.

Special Marriage Act, 1954

Section 22 of the Special Marriage Act, 1954lays down the following provision:

When either the husband or the wife has, without reasonable ex-
cuses, 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 application should
not be granted, may decree restitution of conjugal rights accordingly.
 109

Explanation- Where a question arises whether there has been

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

As already stated in the beginnin& historically we have no trace of the restitu-

tion of conjugal rights in the pre-British eras. It came to be introduced in this country
with the advent of the British colonial power. The Britis~ too, purcbEed the idea from
the 1ewish law. Ecclesiastical Courts, effected the restitution by a statute addressed as
Ex-Communication Staute of George III. There was nothing like restitution either in
the classical Hindu laws or in the traditional Muslim laws. Hindu Marriage Act, 1955
and Special Marriage A~ 1954 represent the same provision, while Parsi Marriage and
Divorce Act, 1936 has been couched in a little different language, although through
-interpretation, attempt is sought to be made to bring it at par with the former two enact-
ments. The same interpretaive approach has been kept in view in the case of Indian
Divorce Act, 1869 which is clothed in a different language. Hindu and Muslim law project
almo~ similar provisions with the exception that under the latter as also under Parsi
Marriage and Divorce Act a suit lies in a civil court as distinguished from a petition to be
filed under there~ of the Jaws. In the formulation of Muslim law by Tyabji, if the word
"without reasonable cause" is substituted by 'Without law ground", the provision comes
in the approximation of those of other personal laws.

As to who may proceed to secure the restitution in the court of law. the relevant
provisions under the e~ family laws are as follows: either husband or wife under
section 9 of the Hindu Marriage Act.l955~ either husband or wife under section 32 of
the Christian Marriage Act, 187~ either husband or wife under section 36 of the Parsi
 110

Marriage and Divorce Act, 1936~ and the husband or wife under section 22 of the
Special Marriage Act, 1954. Under the Muslim law tcdmically husband or wife, whoso-
ever might be aggrieved may apply. But more often than not,, it is the husband who
comes out with the demand for restitution. For if wife proceeds to secure the right, the
husband at once exercises his right to divorce by way of talaq.

The grounds according restitution recognised by the personal laws are : 'without
reasonable excuse', withdrawal from society of other, under Hindu law; 'without rea-
sonable excuse', withdrawal from society of other, wtder the Christian law, 'without
lawful cause', desertion or cessation to cohabit with the other under the Parsi Marriage
and Divorce Ac~ 1936; 'without reasonable excuses', withdrawal from the society of
other under the Special Marriage Ac~ 1954; 'without lawful ground', withdrawal from
the society of other or negligence to perform the obligation imposed by law or by the
contract of marriage under the Muslim law as formulated by Tyabji.

The defence that can be set up against enforcement of the right to restitution are:
existence of reasonable cause for withdrawal under the Hindu law and the Special Mar-
riage Act, 1954; the grounds for judicial separation or nullity of marriage alone under
section 33 of the Chmtian Marriage Act, 1872; presence oflawful cause for withdrawal
under Parsi Marriage and Divorce Act, 1936 and plea of void and irregular marriage
(.Batil andfasid) as also the grounds under the Dissolution of Muslim Marriages Act,
1939.

However, under all existing family laws the conspicuously required elements of
the restitution provision are as follows: the withdrawal by the recalcitrant spouse from
the society of the complaining spouse~ such retraction of the party being without any
lawful groun~ or reasonable cause or excuse~ no legal gromtd can be invoked as a plea
for denial of the relief, court has to be confident as to the veracity of the statement
 111

averred in the body of the petition.

The decree of restitution of conjugal rights under all family laws may be enforce-
able under Rule 32, order 21 of the Civil Procedure Code by way of attachment of
property and under Rule 33 with an order of periodic disbursement of money in case of
its non-compliance.

For elaborate discussion, relevant to this paper, issues involving the Hindu laws
and the Muslim laws will be highlighted in view of their pre-eminence in the Indian
social milieu. Such issues under Parsi and Christian laws do not materially differ from
those under the Hindu laws which operate in the back drop of similar social facts so far
as women are concerned. 9 Parsi community like the Chm1ians forms an infinitesimal
fraction of our populace.

B. Restitution of conjugal rights under

Hindu law

(a) Old Hindu law

There is no mention of ren1edy of restitution in the Shastric text. However these

texts strongly expected the couple to live together. The ancient Hindu law most urgently

9. Manchanda and Dr. M. Shabbir. Parsi Law in India. (.5th ed). 1991.
 112

demanded of the wife to serve the husband and to stay with him at all circumstances.On
the other hand, the husband was equally enjoined to maintain his wife in forceful
tenns.Manu vociferously asked the husband to maintain wife among others even by
doing hundred bad deeds. 10 The British Indian courts applied the remedy since 1867. 11
By 1891 the court confidently observed:

" The text of the Hindu law relating to conjugal

cohabitation and imposing restrictions upon the
liberty of the wife and placing her under the con-
trol of her husband, are not merely moral precepts
but rules of law. The rights and duties which they
create may be enforced by either party against the
other and not exclusively hy the h11Shand against
the wife... "12

Although the Shastras are silent on wife's right to restitution, it is most likely that
the notions of runral justice, sound public policy and influence of the English Com-
mon law - which allowed the remedy to both husband and wife - all led the British
courts in India to apply the remedy of restitution in Hindu law to both the spouses in
equal terms, at least in principle. A threadbare discussion on the decisions pro-
nounced by the courts dwing this time would reveal that the courts used to refusing
the remedy in the event of husband's suffering from incurable, contagious or
loathsome disease, 13 adopting another religion, 14 keeping a low-bred concubine in the

l OManu XI: 10 : P. V.Kme, History of Dharmashastras p. S68.

ll.Soolcha v. Poorun (1867) Rep. HCJ NWP (Agra. 1867) 115~ Yamunabai v. Narayan (1876)
1 Born. 164; Binda v. Kausilya (1891) 13 All. 126.
12. Binda v. Kausilya (1891) 13 All. 126 Emphasis supplied
13. Bai P~m Kunwarv. Bhika(1868) 5 Bom HC.R. (AC.) 209.
14. Paige v. Sheonarain (1886) 8 All., 78.
 113

house, 15 behaving in amstcr amounting to cruclty, 16 being of an age in extreme disparity

with wife resulting in marriage unconsummated17 and committing post marriage adul-
t.ery.13 Second marriage by a husband was not regarded $ sufficient cause to refuse this
right. However restitution could be conceded ifit was proved that there was a possibility
for the first wife to live with such co-wife in the same house. 19

After the p~ of the Hindu Married Women~s Right to Separate Residence

and Maintenance Act, 1946 remarriage by husband came to be regarded ~ a valid
ground to refuse the claim for restitution of conjugal rights by the husband, as the Act
concerned has enlisted husband's remarriage as one of the grounds on which wife may
live separately with maintenance from her husband. N.R. Raghavachari.ar,in his Hindu
Law (1935) gives, in a nutshell,a few situations in which defences set up by wife were
not accepted by the court :

"But defence, such as the minority of the wife. or the infidelity or the
second marriage of the husband, or his occasional insults ordinarily
incidental to marriage life, or his ugliness or penury or unorthodox
life, or that sexual intercourse is impossible owing to her physical
defect,will not avail the wife to the husband's suit for re~on."20

1.5. Dular Kaur v. Dwarkanath (1907), Cal. 97.

16. lfJmuna Bai v. Narayana (1867), 1 Bom. 164.
17. Gu1'11'1Ukh Singh v. Mst. Harbans, AlR. 1928 Lahore, 902.
18. Binda v. Kausilya (1892) 13 All. 126.
19. 4. Bom L.R 107.
20. N.R. Rashavacb&iar, Hindu Law (193.5), p. 38.
 114

Pre and post-nuptial agreement was not accepted as a ground to defeat the claim of
restitution, 21 as such agreements seeking to avoid marriage by wife w~ regarded con-
trary to public policy.22

It may be observed that though the remedy in principle was allowed to both the
husband and wife, there were only a handful of cases where the wife came out claiming
the rights. More often than not the husband petitioned for it. This, according to R.K.
Agarwal~ merely reflects upon the Hindu social situation wherein the wife is too shy to
demand her rightful claim against the husband, her lord and master. 23

(b) Act of 1966: Constitutionality of section 9

The remedy for restitution of conjugal rights has been incorporated under section
9 of the Hindu Marriage Act, 1955. Accordingly either spouse under the Act can claim
the remedy by way of a petition to the court. The aggrieved spouse~ to prove that the
other spouse has without reasonable cause withdrawn from the society of the petitioner.
If the court is satisfied to the effect that the statements averred in the petition are true
and no other legal ground exists to ignore the petitioner, it may pass the decree for
restitution in favour of the petitioning spouse. This apart, under section 9(2), the proper
defences to assail the petition are laid down. 24

The Andhra Pradesh High Court in T. Saritha v. T. Venkata Suhhaiha 25 held that
the remedy of restitution of conjugal rights was a barbarous remedy violative of Article

21. Sita Ram v. Aheeree (1873) 11 Beng, L.R 129.

22. Mayne, Hindu Law (1Ub ed 1953), p. 177.
23. R.K. Agmwala, Matrimonial Remedies under Hindu Law, (1974), p. 9.
24. For details, section 9 (2), Hindu Marriage Act, 1955.
25. AiR. 1983 AP. 356.
 115

21 of the Indian Constitution relating to human dignity and privacy and was therefore
void in terms of Article l3 of the Constitution. It was contended that statutory relief
under the said provision, namely, restitution of conjugal rights offends the guarantee to
life, personal liberty and human dignity and decency. The consequences of the enforce-
ment of such a decree are firstly to transfer the choice to have or not to have marital
intercourse, to the State from the concerned individual and secondly to surrender the
choice of the individual to allow or not to allow one's body to be used as a vehicle for
another human being's creation, to the State. Describing the remedy~ '~e starkest
form of governmental invasion of personal identity and individual zone of intimate deci-
sions",26 Justice Chowdhry observed that "the origin of this uncivilized remedy is ille-
gitimate," 17 and that the section has "merely aped the British and mechanically re-
28
enacted that legal provision of British ecclesiastical origin."

Shortly after Justice Chowdhry pronounced his judgement to the amazement of

many, Justice A.B.Rohtagi of the Delhi High. Court came out with a contradictory ruling
in Harvinder KaUT ~cast?! ¢hticisin.g and dissenting from the former which, he as-
serted, was based on "a misconception of the true ruture of remedy" and the "true end of
marriage",'~ he laid it down that the provision did not violate any part of the Constitu-
tion. Sharply reacting to the Justice Chowdhry's opinion regarding the unconstitutional
nature of the remedy for its "disproportionate emphasis on sex almost bordering on
obsession" ,31 Rohtagi argued that the restitution remedy was the "survival of the concept
of marital unity, and, under the present scheme of the Hindu Marriage Act stood

26. ibid.
27. ibid.
28. ibid.
29. Harminder Kaur v. Harmamier Singh, AlR. 1984 Del. 66.
30. ibid.
31. ibid.
 116

as a peg on which to hang a divorce" 32 • Section 9 could not be abolished without

abolishing section 13 ( 1-A) of the Act, which furnished the remedy of divorce on the
groWtd of non-compliance with a restitution decree, he remarked.

The Supreme Court considered both the views in Saroj Rani v. Sudarshan
Kumar Chadha 33 and preferred the Delhi view. Their lordship further observed that
section 9 merely codified the existing law and it serves a social purpose. Therefore, it
was not violative of Article 21 of the Constitution of India.
In view of the Supreme Court decision the High Courts of Punjab and Haryana
and Madhya Pradesh also held that section 9 of Hindu Marriage Act was valid. 34

(c) Emerging problems In the family of working couples

and the traditional concept of matrimonial home

In view of the changing socio-cultural environment, with more and more women
corning out of their homes to take up jobs these days, there ocamonally arises a situa-
tion wherein a conflict between her job and marital obligation comes out in the open. An
issue that has come up before our High Courts may be fonnulaed as: should traditional
concept of matrimonial home be redefined in the new emerging situation? 3~

In keeping with the socio-economic conditions prevailing in those days it was but
natural that the choice of setting up matrimonial horne was conferred on the husband.

32. ibid.
33. A.lR. 1984 S.C. 1562.
34. Bimla Devi v. Ramesh Kuntlir (1985) 1 D.M.C. 246 (P & H).
Madhu Sudan v. Bhanumali (1985) 1 D.M.C. 413 (D.B.) (M.P.).
35.lnfra note, 36.
 117

He w~ a breadwinner. As a member of joint family more often than not he had to

shoulder the responsibility of looking after the joint family business, manage the prop-
erty and maintain the other dependent members of the family. This necessitated the wife
who was the beneficiary of the economic benevolence of her husband to live with him as
a condition ofpromotion ofharmony in the family. This practice has been followed over
the centuries. The husband now has accrued a sort of proprietary right over the wife
and inherited a notion that the wife must invariably follow him whenever he moves to
live and not vice versa. Therefore in case of women in service, this notional prerogative
of the husband to secure implicit and absolute allegiance of his wife has come up to a
head-on collision with the extra-domestic comrnibnents of the wife. 36 The rule of reci-
procity between the spouses in respect of availing of judicial remedies has been slated
under the modern Hindu law. n This apart, the Constitution of India ensures equality of
both sexes and equal treatment before law to both husband and wife. However, it is
perceptible from the 'judicial trend th& wherever the question of restitution of conjugal
rights came up before the court, it generally adopted somewhat different attitude. 38 The
Committee on the Status of Women observes :

" Whenever conjugal rights have come into open

conflict with the women's right of equal
opportunity in education or employment, the
attitude of judiciary has often been rather
ambiguous. Instead of guiding the conflicting
parties towards a rational adjustment to the

36. V Bagga, 'Locus of Matrimonial Home'. J.lL.. 1 (vol. 19:4) 1977 p.504.
37. Vide sections 9, 10, 13, 24 tBld 25 oftbe HinduMtniage Act, 1955.
and the Marriage Law (Amendment) Act, 1976.
38. Supra note, 35.
 118

process of social change, the judiciary has

either evaded the issue or thrown its weight
on the side of the traditional view of husband's
authority.· 39

A plethora of cases came up before various Indian High Courts in their attempts
to find a solution to dispute regarding the locus of matrimonial home,and the ~ght of the
husband claiming restitution of conjugal rights against the wife who refuses to resign the
job to join the husband. They may be categorised into two. One, those who favour the
right of the husband : Tirth Kaur v. Kirpal Singh,.., Pathuraju v. Radha;u Gaya prasad
v. Bhagwati,~ Surinder lraur v. Gurdeep Singh,.o P. V.P. Sharma v. P. Sheshalakshmi, 44
Smt. Kailash Wati v. Ayodhia Prakash. ~ Two, those which do not accord absolute right
to the husband: Sadhu Singh v. Jagadish kaur, 4 Shanti Mgam v. R.C.Nigam/1 N.R.
.Radhakrishnan v. N. Dhanalabhmi,4 Pravinahen v. S. T. Arya,• .Mirchumal v. Devi
Bai. 30 In this long line of decisions stands up prominently Swaraj Garg v. K. M Garg, ~1
the judgement of which has been commented upon as 'pursuasively competent' .52 In
this c~. the husband claimed relief of restitution of conjugal rights against his wife

39. Report of the CoJDDittce on the Status of Womc:o io India 119.

40. AIR 1964. Punj. 28.
41. AIR 196~ AP. 407.
42. AI.R. 1966 M.P. 212.
43. AlR .1m P &H 134.
44. AIR. 197~ AP. 239.
45. LXXIX P.L.R 216 (1977).
46. AlR 1969 P &: H 139.
47. 1971 AL.J. 67.
48. AIR 1975 Mad 331.
49. AIR. 1975 Guj. 113.
.SO. AIR 1977 Raj. 113 ... 290.
H. L.P.A 34 of 1972. judgement delivered on March 7. 1978.
.52. Supra note 36.
 119

under section 9 of the Hindu Marriage Act, 1955 on the ground of her withdrawal from
his society without any reasonable excuse. The wife, who was holding a promising job
at a place away from husband's had not denied the access to him but was unwilling to
give up the job for the sake of joining her husband, who was more interested in dowry
than in the wife. The court pain~y looked into the factors compelling the wife to
hold the job tenaciously and offering resistance to the husband's move for restoration
of conjugal rights. It was revealed by the court that behind the facade of restoration
petition lay the debris of break-down marriage, and none of the spouse was willing to
own the responsibility of its collapse. Smt. Kai/ash Wati v. Ayodhia Prakash 53 is an-
other important case on this point :

..The parties in this case were married in 1964

and at that time both of them were employed
and teachers. The wife was working at her
parental village of Bilga in Tehsil Phillaur
and the husband at village Kot Ise Khan. After
the marriage the appellant wife was transferred
to the ~on of her husband's posting and in
all they stayed together in the matrimonial home
for a period of eight to nine months. After that
wife got herself retransferred to village Bilga.
The husband filed an application for restitution
of conjugal rights under section 9 of the Hindu
Marriage Act, 1955. The wife's plea was that she
never refused to honour her matrimonial obligation
but was not prepared to resign her job and returned

~3. LXXIX P.L.R. 216 (1977).

 120

to the conjugal home despite the resi&ance of the

respondent husband. The trial court decreed the suit
of the husband on February 5, 1973. On appeal by
the wife, the decree of the trial court was upheld.
Hence the appeal of the High Court. The wife's
consistent plea was that at the time of the marriage
she was working and the husband with his eyes open
had accepted her as a working wife. She was now there-
fore under no obligation to live with her husband
because consideration of employment prevented her to
do so."

The issue in this case raised was : "Whether the hallowed concept of the matri-
monial home can be whittled down to a week-end or an occasional nocturnal meeting at
54
the unilateral desire of the wife to live separately." In the cases where arrangements
are reached by mutual consent. no problem arises. However. the difficulty gets under-
way whenever the wife unilaterally takes decision to live away from her husband on the
pretext of her holding job at a place other than in husband's station.

In the case under considenii.o~ three situations were contemplated and discu-
ssed : (a)a husband marrying a woman who is already in employment; (b)a husband,
after marring a worn~ either encouraging or allowing her to accept employmen~ and
(c)a wife taking up employment away from the matrimonial home against consent of her
husband. ~~ In respect of the first situation the court opined that by marrying a woman
already in employment, a husband does not by implication forgo his right to a common

S4. id. at 220.

55. id.at 223.
 121

matrimonial home with his wife. Regarding the second situaion too, the court ruled that
the husband does not give up his right to msrimonial home shared by wife. 56 However,
relating to the third, the court held that it would be an "obvious case of unilateral and
unreasonable withdrawal from the society of the husband and thus a patent violation of
the mutual obligation of husband and wife to live together.'» 51'

This shows that the court was all along very emphatic about husband's dominant
right to have his wife with him. However, it was not unqualified. It was suQject to two
things: (a) an established matrimonial home where husband can live with his wife in the
midst of facilities commensurate with the living standard of the parties and (b) absence
of mala fide i.e. if there is an intention to harass the wife, she could reasonably refuse to
live with him. The court observed that subject to these two conditions withdrawal from
the society and companionship of husband on consideration only of employment else-
where would amount to unreasonable withdrawal from the matrimonial home.

In re Kailash Wati, .sa it was contended by the wife that in the present day con-
cept of equality of sexes, the husband had no superior right to determine the location of
the conjugal home. The court, however, ruled that in consideration of the legal obliga-
tion shouldered by husband to maintain his wife, children and parents, it ought to be his
prerogative to choose the locus of his place of work and matrimonial home. In this
regard, the English and American authorities were consulted along with the Hindu Adop-
tion( and Maintenance Act, 1956 and the provision of the Criminal Procedure Code,
1973 to bear out the point :

56. tbid.
57. id. at 224.
58. Supra note 51.
 122

"Hindu law imposes clear and sometimes burdensome

obligations on a Hindu male. He is bound to main-
tain his wife during her life-time. Equally, he
must maintain his minor children and this obliga-
tion is irrespective of the fact whether he
possesses any property or not. The obligation
to maintain these relations is personal and legal
and it arises from the mere fact of the existence
of the relationship between the parties ... As
against this, the thing is that the Hindu wife
even though in independently prosperous financial cir-
cumstances is under no similar obligation to main-
tain her husband and, perhaps in his presence. is not
obliged to support even the children of the family.".59

And it w~ observed by the court again.

"The onerous obligation, which the law imposes on

the Hindu husband, is at least co-related to the
right to determine the location of the matrimonial
home. To put it in other words, as against the right
of maintenance always inhering in a Hindu wife,
there is a corresponding obligation to live together
with the husband in his home. That rights and duties
should be co-related and that the benefit and burden
must concur. is a principle which is too elementary

59. id. at 230.

 123

to deserve elaboration. In my view, therefore, the

logical concomitant to the obligation to maintain the
wife and the family by the Hindu husband is that he at
least h~ the right to claim that the wife shall live
with him in a matrimonial home determined by his choice."60

It may be commented upon with due respect to learned Judges that al~ough the
judgement seems to be quite logical at a particular stage of Hindu society, it h~ perhaps
little relevance in today's fast changing concepts of equality of spouses. For instance,
where a man marries an working woman, he must know the consequences of transfer
and its resultant effect on matrimonial life. Therefore, it would be in the fitness of things
that equilibrium be maintained between her conjugal duties, the husband's marital rights
and the wife's independent personality vis-a-vis welfare of the children, parents and
family.

Exactly, a pragmatic view was sought to be taken by the Dellii High Court in the
61
Swaraj Garg !r Case. It was pointed out by VS. Deshpandc, J. that the determination
of the issue of matrimonial home depends upon the cccommon convenience and benefit
of the parties,. On this point, there is no difference between the English law and the
Indian law. The learned Judge cited from Halsh~~ry! Laws ofEngland:

"Choice of matrimonial home : It is a husband's duty

to provide his wife with a home according to his circu-

60 . .SUpra note 51.

61. Supra note 50.
 124

rnstances. There is no absolute rule whereby either party

is entitled to dictate to the other where the rnarimonial
horne shall be. the matter is to be settled by agreement
between the parties, by a process of give and take, and
by reasonable accommodation.
It is not against public policy for the parties to agree
before marriage on what is to be the matrimonial horne
and. unless the reason on which the agreement was base~
cease to exist, or if some changed circumstances give
good reasons for change in the martimonial home, the
agreement stands. The location of a husband's work
is the most important consideration to be borne in mind
in selecting the situation of the matrimonial home,
although in some cases wife's business and livelihood
may be predominant consideration.
Neither party, it has been said, has a c~g vote~
it has further been suggested, that if the parties
are both unreasonable each might be entitled to a
decree on the ground of the other's desertio~ but
this proposition has been doubted and disapproved.
The parties should so arrange their affairs that
they spend their time together and not apart, and
where there is difference of view, reason must prevail" 62
It must be emphatically noted that a Full Bench of the Punjab and Haryana High
Court in Smt Kai/ash Watf2A approved the view expressed in Mulla's Hindu Law on the

62. 13 Hal:sbury 'sLaw of England, para 623 (4th ed, 1975-76).

62A ILR (1977) 1 P.& H 642.
 125

question relating to the locw of matrimonial home. VS.Deshpande, J., dissenting from
the view expressed in the above case observed very boldly that the proposition of law
delineated in Mulla's Hindu Law shall not be accepted uncritically. Mulla reads as fol-
lows on this point :

"( 1) The wife is bound to live with her husband and to

submit to his authority. An agreement enabling the wife
to avoid a marriage or to live separate from her hus~and

if he leaves the village in which his wife, and her

parents reside, or if he marries another wife, is void.
Such an agreement is against public policy and contrary
to the spirit of the Hindu Law. An agreement of this
kind is no answer to a suit for restitution of conjugal
rights by a husband against his wife.

(2) The husband is bound to live with his wife and to

maintain her." 63

It may be pointed out that in view ofthe current on-going economic exigencies the
women in increasing numbers are taking up employment to enhance the family income
and in many cases the wife may be better placed to choose the matrimonial home. There-
fore, the law relating to matrimonial home as expressed in the Mulla requires serious
attention for reconsideration.

Differing from the Smt Kailash Wati on the question of notional duty of husband
to maintain wife under all circumstances, the learned judge made a poignant observation

63. Mullat Principles of Hindu Law, para442 (14th ed, 1974).

 126

in that it was suggested that if the wife was financially well-off, the husband might not
be required to pay her maintenance. Wife may not also like to be maintained by him. In
the good olden days the husband usually invariably was the earning hand. So the wife
had to follow him. But the industrial revolution has caused a drastic change in our
social situation.

A meticulous study of the case reveals that the courts have been switching over
from traditionalism to modernism in its efforts to solve the problem relating to_m~o­
nial home. The courts are faced with two contradictory situation and feel helpless to
justify its stand. On one side, there are constitutional guarantees and the statutory mat-
rimonial laws which caution not to be inequitious to the wife. On the other. the tradi-
tional laws affect wife's interest adversely. It has been rightly observed that 'in absence
of specific guidelines from the Hindu Marriage Act, some of the courts felt constrained
to depart from the conventional notion of vesting the husband with the choice of loca-
tion of matrimonial home whereas others did make an attempt to depart from this tradi-
tional view., 64

Pre-marital agreement like one as Wlder the Muslim law may be suggested as
an effective instrument in the choice of JruUimonial home if both spouses are working
at different places. It may help in solving their dispute in the cases of transfer also. At the
same time the husband and the wife must learn to come to tenns with the new roles
ascribed to them by the progressive society. Otherwise the matrimonial relation would
be in danger. The merit of marriage lies in two-in-one concept. Its steadiness and stabil-
ity depend on the mutual fellowship, trust and fidelity. When they are lacking, marriage
loses its substance.

64. Supra note 35.

 127

C. Restitution of conjugal rights under

Muslim law

(a) The rights and obligations of the spouses

The fundamental feature of the conjugal rights accorded to the both spouses in
the course of the Muslim marriage is that the parties are entitled to the society and
companionship of each other. In the absence of a special tenn to the contrary, however,
the spouses are definitely entitled to the right not to be deprived by either party of his or
her companionship. This basic right encases in it the following conjugal privileges :

(i) The wife should ordinarily live with the husband and
must not part company with him except with his consent.
(ii) The husband must not desert the wife and should ordin-
arily live with her in his house.

The Muslim law calls for the spouses to live in amity and an atmosphere of good
will. The holy Qur'an describes them as "garments" of each other:
'They are your garments and ye are their garments.' 65

And it asks them to lead their conjugal life on some definite principles such as quietness

65. Qur'an. n: 187.

 128

(Iaskin ). affection (mawaddaf). grace (rahmat), kindness (fazl) and cohabitation in a

reasonable manner (imasak bil ma 'ruj).~

The spouses have the liberty to gratify themselves physically in usual and equi-
table manner. Wife is called upon not to commit delinquency (nushuz) and to fulfil all
reasonable wishes of the husband. and one party must not interfere with other's right to
visiting his or her relation within reasonable limits.

(b) The remedies for violation

Where the rights as detailed above are violated , the law provides a number of
civil remedies .If the party to whom wrong has been done is interested to keep the mar-
riage intact, law provides the remedy of the restitution of conjugal rights (iada-e-huquq-
e-zamashoi). In India the courts have recognised the right of restitution of conjugal
rights. The leading case in this regard is Moonshi JJuz/oor Raheem v. Shamsoonnissa
Begum. 67 It was held in this case that where a wife without lawful cause ceases to cohabit
with her husband, the husband may sue the wife for restitution of conjugal rights. In
Nizamuddin v. Huseini, Justice Shiv Dayal was of the view that a Muslim marriage is not
a sacrament but a civil contract and a suit for restitution of conjugal rights was in fact a

66. For details Dr. Tahir Mahmood, The Muslim Law Jn india, 1980.
67. (1867) 11 M.l A, 551. In this case when restitution of conjugal rights was first made available
for the Muslims by the Privy Council in the early days oftbe British R~. Muslim IIUB'riage was
equated with c:ontract and restitution of the conjugal ri8fda with the spec:ific perfOI'IIUm<:e of the
contract Later, a Full Bench of the Allahabad High Court in Abdul Kadir v. Salima [ (1886) 8 All
149 ] was ofthe view that a restitution suit under Muslim Jaw should be disposed in accordance with
the principles enunciated in Muslim law, shedding offits relation with equity,justice and good con-
science. However, the jurisdiction, irrespective ofits equation with the specific perfonnance, bas an
Wlderpinning of equity.
 129

suit for enforcement of certain obligation which arose consequent upon the contract'8. If
the party wronged is not in a mind to continue in marriage~ the law provides various
ways to get him/her out of the wedlock. The behaviour of the erring spouse are, in some
cases, akin to an offence punishable under the Indian Penal Code, 1860. The provi-
sions of the code relating to wrongful confinement, wrongful restraint, hurt, kidnapping
and cohabitation with one's minor wife, may be especially appurtenant to such behaviour.

A Muslim husband, under law in Indi~ is enabled to get his conjugal rights
enforced by way of a decree for 'restitution of conjugal rights' (iada-e-haquq-e-zama-
sho(i. In law a Muslim wife, too can get her conjugal rights enforced by means of a
decree of restitution. However, since the husband may unilaterally and extra-judicially
divorce her, such a remedy may not give her any practical utility. As for availability of
this remedy, the following points are noteworthy :

In the first place it not being based on any absolute right, the court may or may
not grant the remedy. In India as well as in Pakistan the right of restitution of conjugal
rights is the court's discretion. Even the Dissolution of Muslim Marriages Act, 1939 is
silent regarding this remedy inasmuch as it contains no provision in respect of this
rights. The plaintiff must prove that he has come to the court with clean hands. It was
held in Mulkhan Bihi v. Muhammad Wazir Khan 69 that where he has married two
wives he must prove that he is treating both the wives on an equal footing.

And secondly, the court may grant it subject to the specific conditions.

68. A.LR. 1960, M.P. 212.

&9. (1959) Lab., 710.
 130

(c) Defences of the wife

When the husband goes ahead with the claim of restitution against the
wife on the plea of her withdrawal from his society, the wife may set up the following
'defences' :

(i) Validity of marriage

In a suit for restitution of conjugal rights, the existence of a lawful mar-

riage between the parties is a condition precedent for desired relief. Thus. in Begam v.
Faiz Bakhsh 70 where it was proved that their marriage was batil (void), the remedy
could not be granted. Likewise, in Ahmadunnisa v. Ali Akhai'1 where the parties were
Hanafis and the marriage between them was proved to be irregular (fasid). the remedy
could not be granted, even if the marriage had been consummated.

(II) Non-payment of prompt dower

A husband, under the Islamic law, cannot ask for restitution of conjugal rights in
case he has not paid the dower money. A woman may not allow access to her husband
until she receives the dower. Sharh-i- Jikaya, a commentary states the law as follows:

"It is the right of the wife to refuse cohabitation or to accompany

70. 60 1 E. 734 (Lab).

71. A I. R 1942 Pesh. 19.

 131

the husband on a journey, and notwithstanding such refusal to

obtain maintenance from him. although such refusal may take
place after cohabitation or 'valid retirement' with her consent,
so long as she does not receive her mahr. either the whole or
such part as is specified mujjal (prompt) or which is customar-
ily prompt for such woman, without consideration of whether
it is a fourth, or fifth unless it is specified."72

According to Kanz-ud-Dakaik, the rule is:

"and she (the wife) has the right of refusing cohabitation and
being taken on a journey although cohabitation may already
have taken place ..."73

Referring to Hedaya, Arneer Ali pointed out:

.. The husband has no power to prevent her from travelling or

going out of his house and visiting her friends until he h~ paid
the whole exigible dower, because the right of restraint is given
to a person who has a right, and he ~ not the right to secure
fulfiJment before rendering fulfilment (himself)" _74

The view is also supported by the Dllrr-ul-Mukhtar.

In Eidan v. Mazhar Hossain. the Allahabad High Court held that in a suit by the
husband to enforce his conjugal rights, the wife was entitled to refuse to cohabit with
72. Ameer Ali. Mahommedan Law. p. 458.
73. ibid.
74. id. at p. 455.
 132

him until he had paid her dower, and that she was not precluded from doing so by the
mere fact of having consented to cohabit with him since the marriage. 75 Similar view
was also taken in Wilayat Husain v. Allah Rakhi."

Iii iVaiatat Husilliii v. Hamidan n the husband was a Shia and wife a Sunni. The
husband brought a suit to recover his wife. It wos held that the wife's dower liavmg iiot
been paid, the suit was not maintainable under the Sunni law.

In Syed Ahmad Khan v. lmrat Jahan 1Jegum11 the appellant was seeking a decree
of restitution of conjugal rights, which the respondent resisted partly on the ground of
non-payment of dower and partly on the basis of cruelty inasmuch as the husband had,
during the suit, married for a third time. It was held by the court that under the circum-
stances, it would be equitable, just and proper to impose a condition that the decree for
restitution of conjugal rights would not be executable unless the decree for recovery of
the prompt dower was ~fied.

Therefore it was all along maintained by the court that where the wife has not
paid the prompt dower due to the wife. while the marriage is yet to be consummated, he
cannot ask for decree of restitution. However, consummation of marriage in this case
will destroy the wife's defence. The latter rule was applied in various old cases by
different court~The High Court of Allahabad confinned it in Rahia Khatoon v. Mulchtar
Ahmed.19

75. (1877) l L J. All 483.

76. (1880) I L R 2 All. 831.
77. (1882) I L R 4 AJI. 205.
78. A. l R. 1982 AJI. 155.
79. A. 1 R. 1966 All. 548.
 133

(iii) Where hu•band i• guilty of cruelty

Where husband has treated his wife with cruelty and afterwards claims restitu-
tion of conjugal rights against her, while she has withdrawn from his society, the court
may refuse him the right. In Shumsoonnissa Begwn )' c~e 80
the Privy Council ob-
served, "the Mohammedan law, on a question of what is legal cruehy between man and
wife, does not differ materially from the English Law." The test of cruelty should be
b~ed on "universal and humanitarian standards". Here are some instances of cruelty
on the part of husband~ decided by the various Indian High Courts on the basis of the
above judgement: blasphemy'1, misconduct82, bigamyi3, keeping a mistress&4, actual
violence of such a character as to endanger personal health and safety of the wife&S,
gross failure to comply with the conditions in marriage contract or clear breach of such
a condition86, reasonable apprehension of such violence as to endanger personal health
and safety of the wifeS', unfounded accusation of adultery88 (but not the well founded
accusation of adultery),meddling or intention to meddle with wife's property39.

In .Bai .Jina v. Kbarva Jina 90 it was held being an outcaste on the part of husband
may be treated as an ~ce of cruelty. However,it was respectfully submitted by some
author as being repugnant to Islamic ideals.91 Now it is contrary to the principle of our

80. (1867) 11 M. 1 A .5.51, 61.5.

81. NowffJZAJi v. Mst. Aziz Bibi (1876) R R 235.
82. Husaini Begam v. Rustom (1906) 29 All. 222.
83. Raj Mohammad v. Saeeda Amina Begam, A 1 R 1976 K.nt 201.
84. Anis Begam v. Mohd. Jstafo. (1933) SS All. 743.
85.Asha Bibi v. Kader Ibrahim (1909) 33 Mad, 22, 25.
86.lmamA1i v. Arafunnisa (1913) C. W. N. 693.
87. Supra oote.. 85.
88. Mr. Maqboolan v. Ramzan {1927) 2 Luck. 482.
89. Hamid Hussain v. Kubru Begam (1918) 40 All. 432.
90. (k907) 31 Bom 366.
91. Tahir Mahmood, Muslim !Awoflndia (1980).
 134

own Constitution.

It is submitted that the concept of cruelty should not be divided by the religious
bowtdaries. In the circumstances where a husband behaves with his wife with utter lack
of humanitarian consideratio~ it must amowtt to cruelty subject to the social back-
growtd and norms. It m\l&t be observed in this context that the explanation of cruelty as
supplied by the legislare under section 2 (viii) of the Dissolution of Muslim Marriages
Act, 1939 should provide a lead to the courts in applying the te~ of cruelty._

(lv} Exen:lae of option ofpuberty by wife

If the wife was contracted into marriage during her minority and later she exer-
cised her 'option of puberty', this might be set up as a defence against husband's claim
of restitution.92

It may be submitted that irrespective of its seeker being a husband or a wife, the
restitution of conjugal rights should not be 1ightly ordered. The remedy should not be
granted except under extraordinary circwnstances. In those cases of matrimonial dis-
cord which are pB all chances of reconciliation, adequate remedy prescribed by Islam
is not forced cohabitation but ta/aq, khula and talaq-e-tafwiz, if stipulmed.

92. Begam v. Faiz Bakhsh 60 l C. 734 (Lab.).

 135

D. Restitution of conjugal rights under the

Parsi Marriage and Divorce Act, 1936

Section 36 of the Parsi Marriage and Divorce Act, 1936 also delineates the cir-
cumstances in which a suit for conjugal rights can be lodged. Section 38 of the Act says
that no suit is to be filed to enforce marriage or contract arising thereof in those cases
where the husband is below sixteen years or the wife below fourteen. According to
section 15 of the Act. the provision of the Code of Civil Procedure. 1908 shall so far as
the same may be applicable. apply to proceedings in suits instituted under this Act
including proceedings in execution and orders subSequent to a decree.

Section 36 of the Act says where a husband shall have deserted or without lawful
cause ceased to cohabit with his wife. or where a wife shall have deserted or without
lawful cause ceased to cohabit with her husband. the party so deserted or with whom
cohabitation shall have so ceased may sue for the restitution of his or her conjugal rights
and the court, if satisfied of the truth of the ~ons contained in the plaint. and that
there is no just ground why relief should not be granted, may proc.eed to decree such
restitution of conjugal rights accordingly.

(a) Ceasing to cohabit without lawful or just cause

The words of this section are same as used in section 32 of the Indian Divorce Act
with this difference that the expression used there is "without reasonable cause" whereas
here it is "ceasing to cohabit without lawful or just cause". The two expressions, says
 136

Justice S.C. Manchanda. mean the same thing.93 Therefore, for the correct intcrpretaion
of these words reference may be made to the section 32 of the Indian Divorce Act. The
question as to what would be a lawful or just cause, among the Parsis, for a refusal to
cohabit, is one of fact to be decided by the delegates. In Hirahai v. Dhanjihaf4 it w~
held that the grounds for refusal to cohabit must be grave and weighty so as to make the
due performance of the marital obligation a moral impossibility.

(b) Defence to the petition for restitution

A defence to restitution petition under Parsi law is the same as under section 33
of the Indian Divorce Act. It was held in Kawasji v. Sirinbai 95 that an agreement to live
separate is as good a defence to a suit for restitution among the Parsis as it is under the
Indian Divorce Act.

(c) Enforcement of decree

It is observed that Ad of 1936 deletes the penal clause which existed in section 36
of the Act of 1865. Under the 1865 Act a failure to obey a decree for restitution rendered
the defaulting party liable to imprisonment for a term which might extend to one month
or with fine or with both~ But under the 1936 Act a decree for restitution is enforceable
only in the manner provided for in the Code of Civil Procedure. Apart from this remedy,

93. S.C. Manchanda, The Law and Practice of Divorce (4tb ed) 1973.
94. (1900) 2 Bom L.R 845.
95. 23 Bom 279.
96. Ardesar v. Arabai, 9 Bom H. C. Rep. (A C.J.) 290.
 137

the plaintiff has been conferred a sUtutory right to apply for a divorce on the ground of
refusal to comply with a decree for a year.

The object of the section 37 is to avoid multiplicity of suit between the same
parties. This section provides that the respondent need not file a separate suit in order to
obtain relief. It is enough for him or her to counter-charge in his or her answer to the
petition and the court will then gmnt him such relief to which he is entitled as if he or
she had presented a cross-petition. In this respect it differs essentially from seGtion 15 of
the Indian Divorce Act which provides relief to the respondent in case of opposition on
certain specific ground only. This section therefore has the merit of completely avoiding
multiplicity of suits and the defendant need never file a separate petition for any relief
under the Act that he may desire to obtain.

It may be submitted that the re~on of conjugal rights as a matrimonial rem-

edy under section 36 of the Parsi Marriage and Divorce Act, 1936 has never been tested
on the co~tutional touch-stone of the judiciary as was done with respect to the rem-
edy under section 9 of the Hindu Marriage Act, 1955.97 And issues involving the resti-
tution of conjugal rights incorporated under Parsi law does not matmally differ from
those under Hindu law which was framed in the backdrop of similar social facts so far
as women •s interests are concerned. As already stated Parsi community like Christians
fonns an infinitesimal fraction of our populace.

97. Dr. M. Sbabbir, Parsi lAw in India (1991).

 138

E. Restitution of conjugal rights under

the Indian Divorce Act, 1869 and the
Special Marriage Act, 1954.

The Indian Divorce Act, 1869 as amended incorporates similar provisions in re-
spect of the restitution of conjugal rights similar to those under the Hindu Marriage Act,
1954. Section 32 of the Indian Divorce Act is the same as section 9 of the Hindu Mar-
riage Act. Under the Indian Divorce Act the court would ignore a restitution petition
where it has become an impossibility for the parties to live together. Manchanda opines
that if the court is satisfied as to the bona fide of a petitioner, it would grant a decree for
restitution, notwithstanding the fact that the petitioner subsequently intends to have
recourse to a petition for judicial separation in case of non-compliance of the decree.97A

Section 22 of the Special Marriage Act, 1954 incorporates that 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 t.hs there is no legal ground why the application should not be granted,
may decree restitution of conjugal rights accordingly. It must be noted in this connec-
tion that the court under section 9 of the Hindu Marriaae Act. 1955 is not wder com-
pulsion to allow relief despite the court's being saisfied of the truth of restitution peti-
tion. By virtue of section 9 the court should again satisfy itself that no other legal growd
exists to refuse the reliefs.

97A S.C. Manchaoda, The Law and Practice of Divorce, (1973).

 139

Section 9 of the Hindu Marriage A~ 1955 ap~ section 23 enwnerates various

contingencies as reasons for refusing a relief under the Hindu Marriage Act.

F. Burden of Proof

In the 1976 amendment, explanation has been added both to section~ and sec-
tion 22 respectively of the Hindu Marriage Act and the Special Marriage Act. It helps to
sort out the problem relating to burden of proof. Section 9 of the Hindu Marriage Act :

'"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 Co~ for restitu-
tion of conjugal rights and the co~ on being ~fied of the
truth of the statements made in such petition and there is no
legal ground why the application should not be granted. may
decree restitution·of conjugal rights accordingly.

Explanation: Where a question arises whether there has been

reasonable excuse or withdrawal from the society. the burden
of proving reasonable excuse shall be on the person who has
withdrawn from the society."

Similar explanation has been supplied to section 22 of the Special Marriage Ac~

1954 as well.
 140

The purport of the addition of the explanation is to provide a rule of evidence

with respect to the reasonable excuse without materially affecting the scope and ambit
of section 9 and section 22 of the Hindu Marriage Act , 1955 and the Special Marriage
~ 1954 respectively.

In P.R. Gowrishankara v. K. Gayathri Devi a division bench of the KarnlK.aka

High Court has held that the burden of proving reasonable excuse for withdrawal lies
on the party who has withdrawn.98

In Kaur Singh v. Balbir Kaur 99 the wife stays away from the husband. It was for
her to prove reasonable excuse for staying away. However the court must give her an
opportunity to prove her case.

Iii Sml Sau Shakuntalabai Ba!Jurao v. .Baburao Dadf4i Mmdilil 100 the wife
admitted having withdrawn from her husband,s society. The court held tha it was for
her to prove that the ground which compelled her to act in such a way was justified.

In Krishna Devi v. Sunnder KJJINll' 101 the husband petitioned for restitution of
conjugal rights. The wife~ when insisted, did not diwlge the re~n for her refusal of
this right. The court held that in this ~e. the husband was entitled to a decree.

In Bhagwan Singh v. Nasih Kaur 102 a woman in some rural area lived with her
husband for eleven years and became mother of three children. These children died

98. (1985) 1 DMC 361 (DB) Kant

99. (1984) 1 DMC 123 (P & H).
100. A 1 R. 1963 M.P. 10, 12.
101.. 1976 HL.R 132 (P & H).
102. (1984) 2 D.M.C. 364 (P & H): 1985 (1) H.L.R. 59.
 141

subsequently. And then the wife began living apart from her husband. The husband
petitioned for restitution of conjugal rights. The court found it difficult to believe that
she was living apart without reasonable excuse. Afterwards it revealed to the court that
her not consenting to husband's second marriage prompted him to ill-treat her. And
thus the court dismissed the petition.

It is for the petitioner to prove his case. The respondent's failure to establish the
defence would not mean that the petitioner succeeded in establishing his case. 103

In a recent case, reported in 1995, B. Jayakumari. (appellanO v. S. Krishnan

Nair104 the couple were married in 1986. A child was born to them in the following
year. Then the hapless mother with the infant child began to live apart from the husband
who brought the restitution suit against wife. The Kerala High Court has held that the
circurn~ces of the case clearly disclose that the appellant had reasonable excuse for
withdrawal from the society of the respondent. As rightly contended by the learned
counsel of the appellant. the learned Sub-Judge was fundamentally wrong in holding
that this is a case where decree can he granted in favour of the respondent as physical
assault has not heen proved Evidence in this case that the appellant was put to con-
siderable mental strain and anguish has heen totally overlooked hy the learned Sub-
Judge. The court also held:

"Court cannot take a cavalier attitude in a case where a hapless

mother with an infant keeps off from her husband. Normally
no wife would do that. To hold that the wife should prove
physical assault and then only the petition for restoration of

103. Smt. Kaushaliya v. iAlchand, AlR 1972 Raj. 253, 255.

104. {1955) D.M.C. 48. Emphasis supplied
 142

conjugal rights can be dismissed in her favour is thoroughly

opposed to legal no~ fair play and propriety. Mental pain
caused to the wife by the husband cannot be lightly brushed
aside on the ground that there was no physical violence or tor-
ture ." 104A

The appeal by husband was thus dismissed.

Thus the discussion shows that in the matter of proof the courts are ,gradually
showing liberal attitude towards the hapless wives. Needless to say that Indian wives
have problems peculiar to their own. Their being vulnerable in the socoi-economic and
financial front has exposed them to this plightful condition all the more. Court's attitude
deserves appreciation.
Sometimes the desirability of retaining the matrimonial remedy of restitution of
conjugal rights is questioned.
R.K. Agarwala pleaded for its abolition.a05
Bagga observes that since the parties are unable to directly establish the enu-
merated grounds of divorce under section 13 of the Hindu Marriage Act, they adopt the
circuitous method of resorting first to section 9 of the Act then to section 13 (lA). He
suggested the introduction of irretrievable break down of marriage as a ground of di-
vorce to reduce the litigation under section 13(IA).a06
Tahir Mahmood while expressing his own in line with Justice Rohtagi suggests
that every restitution decree should contain a time-bound direction for compliance with

104. ibid.
105. R. K. Agarwala, '"Restitution ofConjugal Rights under Hindu Law- A Plea for abolition of
the Remedy'.
106. Supra note 35.
 143

it, adding that non-compliance with it until the expiry of the time so specified would
automatically dissolve the marriage. It would make the remedy more useful. It would
also simplify the law. 107

However, the Legislative Proposal for the Uniform Civil Code ( 1986) nms as
follows:
"39. Where one of the spouses withdraws from the conjugal
society of the other, the aggrieved party can apply to the c~urt

for a decree of restitution of conjugal rights.

A spouse who has obtained the decree of restitution of conju-
gal rights shall not be entitled to compel the other party to live
with him or her. But the decree will enable the spouses to seek
other remedies provided in this Code" 1 ~

The ground reality is that, it may be submitted, most often than not it is the man
who usually presents the fallacious petition. First of all, the husband makes it unbear-
able for wife to live with him. As soon as she proceeds to the court for maintenance, he
uses the handy weapon of a restitution petition. Then the petitioner makes use of the
provision under section 13 permitting the party to obtain divorce if the restitution peti-
tion is left non-complied for one year or more. Such petition is presented with malice -
either to defeat the maintenance claim of the wife or to pilot the way for divorce, to the
detriment and disadvantages to the wife.

107. Tahir Mahmood, Personal Laws in Crisis (1986) p. 123.

108. Legislative Proposals for a Uniform Civil Code (1986).
 144

CHAPTER 5

Judicial Separation

It has already been observed that the remedies by way of restitution of conjugal
rights, judicial separation and divorce are distinctive in character and have been inno-
vated with a specific purpose. The remedy of judicial separation is generally sought by
the petitioners who desire matrimonial relief but for religious or other reasons do not
seek divorce. It is also used by those petitioners who still desperately hope for an ulti-
mate reconciliation. Others by obtaining an inunediate remedy through judicial separa-
tion leave the way open for divorce. As soon as a decree for judicial sepmaion is passed,
the marital life is immediately suspended.
The judicial separation based on 'divorce nisi mens et thoro· was originally de-
vised for upholding the Catholic doctrine of indissolubility of marriage, as it is said to
the effect that "what therefore God has joined together, let not man put asunder...1
1. Malbew 19 : 6
cf. The following verses ftom the Holy Qur'm :

"Those who break Allah's covenant

After it is ratified,
And who stmder what Allah
Has ordered to be joined,
And do mischief on earth
These c8U8e loss (only) to themselves~~
[The Holy Qur'an II: 27].
 145

The Ecclesiastical Courts in England was responsible to accord relief in matrimo-

nial matters. The Court of Common Law presented difficulties in the matter of the
granting of divorce dissolving the marriage absolutely. Before the Reformation. mar-
riage was regarded by the Church as a sacrament A decree of divorce without Pope's
permission was impossible. The Pope hardly accorded his consent. Exigencies of the
situation devised legal methods to negotiate with this difficulty. Decree of divorce. a
mensa et thoro was, however, easier to obtain. It did not dissolve the marriage tie.
Neither it enabled parties to re-marry. This ecclesiastical decree can be iden~fied as the
ancestor of the present day judicial separation which merely entitles the parties to sepa-
rate board and bed from other in contradistinction to divorce which dissolves the mar-
riage and isolates the parties for ever.

The United Kingdom, in 1850 appointed the Royal Commission to look into the
laws of matrimonial offences. On the recommendation and the report of the Commis-
sion, the Matrimonial Causes Ac~ 1857 was formulated. The Indian Divorce Act, 1869
by and large bears that imprint. The Special Marriage Act. l872, the Parsi Marriage
and Divorce Ac~ 1936, the Special Marriage Act, 1954 and the Hindu Marriage Act,
1955 incorporated various principles from the matrimonial law of England. The rem-
edies of judicial separation and divorce are primarily patterned after the English law
with a little variation. 2

Judicial separation, thus a matrimonial relief unknown to the Indian legal regime
was introduced under various personal laws by statutory provisions. The Hindu, Chris-
tian. Parsi personal laws as also the Special Marriage Act, 1954 provide this relief.
Although conceptually Muslim law does not admit ofjudicial separation,it has to practise
it to meet certain exigencies.
2. P. B. Beri,Marrlage and Divorr:ein India (2nded 1989).
 146

A. Situation of judicial separation

(a) Under the old Hindu law

The remedy of judicial separation was foreign to the Shastric Hindu 1~. Hindu
marriage being a samskar was indissoluble and non-severable.4 S.VGupta observes
that "the judicial practice may be comparable to the remedy called judicial separation in
other systems, but there was no such thing as actual remedy ofjudicial separation in the
ordinary sense, under the Hindu law." ~ It is, therefore, apparent that the remedy of
judicial separation was unknown to the old Hindu law. It was for the first time that the
Bombay Hindu Divorce Act, 1947 introduced the remedy of judicial separation in the
Hindu legal regime. It is Smritis 6 that obliged the husband to maintain the wife when he
separated her from himself for no justifiable reason. And the courts, since the latter half
of the eighteenth century, if not earlier, extended this Smritic rule to allow a wife to live
separately from the husband and yet receive maintenance from him in certain cases.
Separation, under Shastric Hindu law, was only possible if the wife was able to prove
that because of the husband's misconduct or by his refusal to maintain her in his own
house or for any other j~able reason, she was forced to live apart from the husband.'
In Jirswami v. Appa.rwami 3 it was held that even if a husband married again. the first
wife was not entitled to live separately. Subsequently, by way of the Hindu Married

4. Mayne, Hindu Law(llth ed 1953)

5. S. V. Gupta, The Hindu Law ofMarriage.
6.Yagnavallca I, 76, Harada, Stripursa.
7. Sidilingappa v. Sidava (1878) 2 Bom. 634; Sinnappaya v. Rajamma (1922), 45 Mad 812
8. (1963) 1 Mad. HC. 375.
 147

Women's Right to Separate Residence and Maintenance Act, 1946, (l9 of 1946), the
Hindu married women won the statutory right to c1aim separation with maintenance from
the husband.

(b) Under the Hindu Marriage Act, 1966

Section 10 of the llindu Marriage Act which contains the provisions runs as
follows:
(1) Either party to a marriage, whether solenmized 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.

(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 petitions rescind the decree if it considers it just
and reasonable to do so.

Section I 0 of the Hindu Marriage Act, 1955 incorporates various grounds on

which the remedy can be availed by the Hindu wives. It mentions the outcome of the
decree and that such a decree can be rescinded by the court at the instance of either
party to the decree, if the court feels satisfied to do so.
 148

Under the new Hindu Marriage Act. judicial separation has been given a retro-
spective effect and the remedy was made available to either spouse. A petition for
judicial separation by wife can succeed on any of the grounds mentioned in sub-section
( l) and (2) of section 13, while the husband can avail only those grounds incorporated
in sub-section ( l ).

Besides section 10 of the Hindu Marriage Act, section 18 of the Hindu Adop-
~
tion and Maintenance Act. 1956 also entitles the Hindu wife to separate maintenance.
1
The grounds for maintenance under section 18 of the Hindu AdoptiOJfand Maintenance
Act are the same as have now been made available by the amendment of 1976 for
judicial separation such as existence of another wife, his keeping a concubine, his
conversion to another religion and any other cause which may justify his separate living.

While the scope for judicial separation under Hindu Marriage Act, 1955 has
been kept limited, that of section 18 of the Hindu Adoption; and Maintenance Act has
been a little too much. The latter extends to the Hindu wife the right to live separately on
any justifiable ground. It has been observed that impact of this Act on the earlier enact-
ment has been profound. It was held by the Punjab High Court that the measures taken
by the legislature had laid down a new foundation of equality of husband and wife. 9
However, inspite of the Hindu Marriage Act, the Hindu married women's position could
not be emancipated. Therefore, the Indian Parliament has passed the Hindu Marriage
Amendment Act, 1976, by virtue of which the provisions of divorce h~ been libcralised.
'Now we have to wait and see how far these changes will help the Hindu women ....
Merely introducing changes by way of legislation will not improve the status of Hindu
women. If we want to change the condition of woman there must be social change to
improve their status'. 10
9. Ram Prakash v. Savitri Devi, A I. R. 1958, Punjab 87,(FB).
10. M.A Qures~ .Marriage and Matrimonial Remedies, (1978).
 149

A few relevant judicial prono\Ulcements are referred below in order to assess the
recent trends:

lsllwfll' Kfllfia v. Om Parkash 21

"The appellant. Smt. Ishwar Kanta, was married to there-

spondent on Aprill3, 1976. A son was born to the couple on
September 9, 1977. On September 29, 1981, the respondent
husband filed a petition under section 13 of the Hindu Mar-
riage Act, 1955, alleging t.ha the wife was guilty of cruelty and
desertion for a period of more than two years immediately
prior to the filing of the petition. He further alleged that she
was suffering from schizophrenia of such a kind that it was not
safe for him to stay with her. The learned trial court judge found
that the present appellant was guilty of cruelty and desertion.
Accordingly, on July 21, 1982 the learned trial court judge
passed a decree for judicial separation .The appellant ap-
proached the High Court in an appeal which has been dismissed
by the learned Single Judge. Aggrieved, the appellant has filed
the present Letters Patent Appeal.

Another fact which deserves mention is that on March 13, 1982

the Appellant filed a petition Wlder section 9 of the Act for
restitution of conjugal rights. This petition was not contested
II. I (1994) DMC 39 (DB) P. & H. High Court.
 150

by the respondent-husband. As a result an. ex parte

decree for restitution of conjugal rights was p~sed
against him on May 28. 1982."

Upon this, the court held that it was the admitted position that the parties have not
stayed altogether since July 7, 1979. Furthermore, it is also .apparent that in spite of
having obtained an ex parte decree for restitution of conjugal rights, the appellant had
refused to stay with her husband. As such, it is clear that the marriage has irretrievably
broken. Accordingly~ the appeal was dismissed.

" It will be necessary to state at the outset that both the

parties are well educated and employed. The husband first filed
the petition seeking decree of divorce alleging cruelty on the
part of the wife. He sought decree under section 13( 1) (ia) of
the Hindu Marriage Act. The said petition was bearing No.
371 of 1989 and was filed on 1-2-1988. The husband flied
another petition for decree of divorce on the ground of deser-
tion i.e. section 13 ( 1) (ib) of the Hindu Marriage Act. The said
petition bearing no. 1185 of 1989 was filed on 21.8.89. In the
said petition. the husband allejed that the wife has left
12. I (1994) DMC 100 (DB) Bombay High Court.
 1.51

the matrimonial house without his consent on 2.5.87 and she

does not intend and was not prepared to c:ome back to the
matrimonial house as she was interested only in service. Two
years have passed prior to the filing of the petition she was
staying separately and therefore he was entitled to get the said
decree."

The petition filed by the husband seeking divorce on the: ground of cruehy came
to be dismissed in which it was held that the husband had failed to establish those
allegations. Thus petition seeking decree of divorce on the ground of desertion came to
be allowed partly and instead of decree of divorce, the learned Judge granted the
decree for judicial separation by exercising under section 13-A of the Hindu Marriage
Act.

S~ttksluul. KtU v.. Dr. AblliJit KtU l3

" In this case the wife was living separately and there was
no genuine attempt on the part of the husband to bring back
his wife to matrimonial home. It was held that the llfife having
good reason for leaving her matrimonial home specially in view
of the fact that her fine sentiments and susceptibilities as edu-

13. I (1995) DMC 401 (DB) Calcutta High Court.

 152

cated and cultured lady was mortally wounded by the acts of

her husband's parents and specially the mother-in-law and in
the absence of accompanying intention to bring cohabitation
permanently to an end the cruelty, as alleged, cannot be said to
have been proved. There is no sufficient materials on record to
hold that the wife misbehaved or quarrelled with her husband
or member of his family. Those allegations have not also been
proved"

The court in this case was hesitant to grant a decree for divorce on the ground of
irretrievably break down of marriage as the party seeking divorce failed to prove those
grounds strictly. The court instead granted judicial separation.

On the question of custody of the minor child the court held at the same time
that for the proper welfare and the education of the child. the child should be allowed to
stay with her mother. The husband holds a transferable job and as such it will not be
beneficial for the child to stay with his father, that is, petitioner.

Hilda. BIISant Ltd v. Lt Col BtiStud Lll1 14

In the petition under sections 22 and 23 of the Indian Di-

vorce Act, the petitioner (wife) has prayed for judicial separa-
tion and also for grant of permanent alimony under section 37
14. I (1994) DMC 185 Delhi High Com1.
 153

of the Act to the extent of Rs.60 lakhs which would be about

half of the respondent's income. Along with the petition under
sections 22 and 23 of the said Act, the petitioner has also filed
the present application under sections 27 and 28 of the Act
seeking restraint order against the respondent husband from
selling, renting out or alienating in matter of the property No.
X-37, Green Park, New Delhi. On 1-10-1992 when the matri-
monial reference and the present application came up for pre-
liminary hearing. this court passed the following order :

"In the meanwhile, the respondent is restrained from alien-

ating or transferring in any manner property bearing no. X-37
Green Par~ New Delhi. The respondent will also not interfere
in the use and occupation of the said property by the
petitioner." 14A

"This is an appeal filed by the wife challenging the order of

the second Additional Judge, City Civil Court, Hyderabad dis-
solving the marriage between the parties by granting a decree
of divorce. The husband filed an application under section 13( I-
A) (i) of the Hindu Marriage Act, 1955 seeking dissolution of
marriage between the parties by a decree of divorce. He stated
in his application tha marriage between the party was solemnized
l4A. Id. at 187.
15. ll (1995) DMC 320 (DB) AP. High Court
 154

according to the Hindu Custom on 9-8-1.974 and the same

was consummated immediately. Later on a son was hom
during the wedlock on 22-7-1975 who was aged 7 years by
the time of the filing of application . The husband alleged
that the wife deserted and living away from him in her
parents' house. According to him ever si!lce 1977 she never
returned to the house. The wife herself filed 0 .P. 25186 on
the file of the said court seeking judicial separation on the
ground of desertion by the husband. In the said
proceeding the husband remained ex parte and did not
contest it with a view that better sense would prevail on her
and on her parents and also for facilitating reconciliation
between the parties. In the said O.P.25/86 a decree for
judicial separation was passed in favour of the wife on
25-4-1986. Alleging that there was no resumption of
cohabitation or reconciliation after the passing of the
decree for judicial separation on 25·4-1986 the said
application has been filed. The husband also referred to
the fact that far from any reconciliation between the parties,
the wife filed suit O.S. No. 1177 of 1986 on the file of the
Second Additional Judge, City Civil Court, Hyderabad,
against him for her maintenance and maintenance of her
minor son. The filing of the suit indicates that there was no
possibility of the parties coming together and leading a
marital life and, therefore, the application was filed stating
that the statutorily required period has elapsed and that he is
entitled to a decree for divorce.
 155

Held: When once a decree for judicial separation was passed

under section 10 either party to a marriage can present a peti-
tion for dissolution of marriage by a decree of divorce on the
ground that there has been no reswnption of cohabitation be-
tween the parties to the marriage for a period of two years or
upwards after the passing of a decree for judicial separation.
Therefore, a plain reading on the section indicates that either
party to the marriage, irrespective of the fact as to who is ~e
successful party in the earlier application for judicial separa-
tion, can approach the court under section 13{ 1- A) for a decree
of divorce on the ground that there was no resumption of co-
habitation between the parties to the marriage for a period of
two years or upwards after the passing of the decree for judi-
cial separation. The section does not say that a successful party
in the earlier proceeding for judicial separation alone is entitled
to file the application under section 13( 1-A). This is clear indi-
cation of legislative intendment even though a person suffers a
decree for judicial separation, yet that party also can approach
the court under section 13(1-A) seeking a decree for divorce. It
is also well settled that a decree passed for judicial separation
or for restitution of conjugal rights etc. against a party cannot
be treated as "wrong" or "disability'' within the meaning of
section 23 (l)(a) of the Act as against the said party. It is also
well-settled that section 13(1-A) is subject to section 23 (IX a)
of the Act."

And, therefore, the Appeal was dismissed.

 156

The case study in the preceding pages shows that the courts are gradually freeing
themselves from the snare of male obsession. The interests of wife and welfare of
children are receiving ardent attention of the courts. This is surely a fum and positive
step towards achievement of woman's higher status in the society where gender justice
was a dream and women were used to receiving the bottom rock priority down the ages.

(c) Under Christian law

Sections 22 and 23 of the Indian Divorce Act, 1869 contain the provision for
judicial separation. Section 22 runs as under:

No decree shall hereafter be made for a divorce a mensa et

toro, but the husband or wife may obtain a decree of judicial
separation, on the grolUld of adultery, or cruelty, or desertion
without reasonable excuse for two years or upwards, and such
decree shall have the effect of a divorce a mensa et toro under the
existing law, and such other legal effect as hereinafter mentioned.

Section 23 runs as follows:

Application for judicial separation on any one of the grounds

aforesaid, m.ay be made by either husband or wife by petition to the
 157

District Court or the High Court; and the court, on being satisfied of
the truth of the statements made in such petition., and that there is
no legal gromtd why the application should not be granted. may
decree judicial separation accordingly.

While commenting on the Jorden's case, Lucy Carroll observes :

"Talk of family law reform or a uniform civil code freq~ently

focuses on the major minority community, the Muslims. This is
unfortunate because reform is needed elsewhere as urgently.
16
Jorden Diengdeh v. S.S. Chopra highlights the archaic di-
vorce law that continues to govern Christians in India Based
on English matrimonial law of the mid-nineteenth century, the
Divorce Act of 1869 has remained mtchanged for nearly a cen-
tury and a quarrer, while the parent statute in England has un-
dergone revolutionary change. Ironically, the Dissolution of
Muslim Marriages Act, 1939 would offer greater succour to
the unhappy wife in the present case than the laws of her own
community afford., 17

In the above-mentioned case, the wife, a Presbyterian Christian, and the husband,
a Sikh, were married in 1975 under the Christian Marri3ie Act, 1872. The marriage
proved futile and in 1980 the wife applied for petition of nullity or a decree of judicial
separation in the alternative. The prayer for a declaration of nullity was refused, but a

16. I.L.R. (1984) 2 Delhi 15 (High Court).

17. Lucy CarrolJ, 'OJri!iiBD Law, I..andRefocm ugislstioo Blld Hin<iu11d Muslin Pa--solill
Laws : Couunent on recent Indian cases', Islamic and Comparative Law Quarterly, vol. vn
No.3 p. 241.
 158

decree ofjudicial separation was granted on the ground of cruelty. This decision. upheld
by the Division Bench of the High Court. means that the parties are bound to each other
in wedlock although under no obligation to live together. The marriage has clea~ly
ceased to exist except in name. Yet the spouses remain tied to each other. They are not
free to remarry and to make a new life.

Since the parties were married under the Christian Marriage Act, 1872 and one of
the spouses (the petitioner-wife) professes the Christian religion, the law governing
matrimonial relief in respect of their marriage is contained in the Indian Divorce Act,
1869. This Act was framed at a time when marriage was regarded as a union for life,
dissolvable judicially only in the most extreme circumstances and the circumstances
had to be more extreme if the wife were the petitioner than if the husband were the
petitioner. Adultery is virtually the sole ground which the 1869 Act recognises as justify-
ing divorce : a single act of adultery on the part of the wife entitles the husband to
divorce. but the wife must prove some aggravated fonn of adultery. i.e. incestuous adul-
tery, bigamy with adultery. marriage with another woman and adultery, adultery coupled
with cruelty, or adultery coupled with desertion for at least two years. 18

Under the Divorce Act, 1869, simple adultery, or cruehy, or desertion for at least
two years entitles the wife only to judicial separation. Each of these three grounds would
entitle a Hindu wife to divorce under the Hindu Marriage Act, 1955 (as amended in
1976) while cmelty or desertion would entitle a Muslim wife to divorce under the Disso-
lution of Muslim Marriages Act, 1939. Cruelty having been proved, had Ms. Dien.gdeh
been a Muslim or a Hindu. she could have completely tenninated her relationship with
the perpetrator of her cruelty~ for, in the given circumstances, the law governing the
marriage was contained in the 1869 Act, the court was only able to absolve her of the

18. For details, section 10, Indian Divorce Ac~ 1869.

 159

duty of living with the man to whom she was still bound in matrimony.

From the discussion of the Divorce Act, 1869, and the representative case of
Diengdeh v. Chopra 19 three options emerge before the wives concerned : (I) waiting
for the husband to be caught out in an adulterous adventure~ (2) an innovative. imagina-
tive re-interpretation of section 7 of the Divorce Act; and (3) an equally dramatic exploi-
tation of religious conversion as a means to secular salvation.

It must be remembered that Law Commission even after appreciating the height
of the hardship suffered by the Christian wives as back as 1960 in the Fifteenth Report
expressed its helplessness in the following terms :
..Regarding the matrimonial relief recognised in most matri-
monial laws -judicial separation, the query was, as the ground
for judicial separation are the same as for divorce, why dupli-
cate the decrees? But the Commission stated quite clearly
that however logical or attractive the proposal appears, it
could not he recommended withou.t going against the senti-
ments of the Catholic community, " 10
The Commission further observed :
"[But] the Roman Catholic do not recognise divorce, and
the legal sy*m based on the Canonical Law, generally pro-
vides only for judicial separation. There arc considerable sec-
tions of the Protestants also who are averse to divorce, and
they would prefer to decree for judicial separation to a decree
of dissolution of marriage. This is one of the modes of
19. Supra note 16.
20. Nmional Specialised Agencies and W001en's~ity: Law Coounissim oflndia, Reprrt
prepared by Latika Sarkar. p. 87. Emphasis supplied
 160

relief recognised in the Indian Divorce Act, 1869 and we do not

see sufficient grounds for changing the law. We have, therefore,
provided for relief by way of judicial separation being granted
on the same grounds as divorce. But we are impressed by the
suggestion that, to permit a second action for divorce after a
decree for judicial sepantion h~ remained in force for two years,
on the identical grounds on which that decree is founded, mu~

result in delay and expense. We have accordingly provided thm

it is open to either party, to apply, in that very suit, after two
years, for a decree of dissolution if the parties do not come
together ."21

(d)Under Parsi law

Section 34 of the Parsi Marriage and Divorce Act. 1936 which contains the
provision runs as follows:

Any married person may sue for judicial separation on any of

the grounds for which such person could have flied a suit for
divorce. or on the ground that the defendant has been guilty of
such cruelty to him or her or their children~ or has used such
personal violence. or has behaved in such a way as to render

21. Law Commission of India. Fifteenth Report ( 1960).

 161

it in the judgment of the court improper to compel him or her

to live with defendant.

It may be observed that the provisions of the Hindu Marriage Act and the Special
Marriage Act are more or less comprehensive, the provisions \mder the Indian Divorce
Act are most inadequate. The grounds provided under the Parsi law leave_ room for
rationalisation as the Act has incorporated certain grounds which should normally have
been grounds for nullity. In addition to those nine grounds, Hindu ~iarriage Act , 1955
incorporates a few more additional grounds for wife alone. 21 A

B. Muslim law and judicial separation

So far as Muslim laws are concerned, the question ofjudicial separation does
not carry much weight. The Holy Qur •an says .....to retain his wife with lcindness or
separate her with kindness." 22 However, it may be observed that law has recognised
the following grounds where the wife will refuse to live with husband and will be en-
titled to 'judicial separation' :

( 1) if the husband be inneen (impotent). it is requisite that

Qazi may appoint the term of one year from the period of litiga-
tion, within which if the accused have carnal connection with
his wife, it is welL but if not ,
21A. Sampath, 'Unifonn Civil Code: Judicial sepm-ation andDivorce~,: .l.Jationai Ccnwntion on
Unijo rm Ctvi! Code for All Indians ( 1988), New Delhi.
22.Qur'an LXV: 2.
 162

Qazi must pronounce a separation:23

(2) cruelty: a Muslim husband could enforce his marital
rights~ but if there were cruelty to a degree rendering it unsafe
for the wife to return to his dominion. she could refuse to come
back·' 24
(3) the court also allows the wife to live separately if there
is gross failure on the husband's part to perform the obliga-
tions imposed on him by the marriage contrac~
(4) the Muslim wife can claim separation if the marriage
between the husband and wife is irregular:25
(S) the Muslim wife can claim separation if the marriage was
arranged by her guardian other than the father, 26
(6) where the husband has been made an outcaste by his
community the wife can live separately ;26A
(7) the wife is penniUed under Muslim law to enter into the
following contract with her husband, the breach of which en-
titles her to live apart from him :

(i) that husband shall not contract a second marriage during

the existence or continuance of the first:

23.CllarlesHamilton, Hedtzya,p. 126.

24. Monshee Buzlur Rahim v. Shamsoonnissa Begum (1867) 11 M.lA . .551.
25 . .A-/st. Bakh Bibi v. Quaim Din (,934)A L 907 lC. 677.
26. Sakina v. Fala1-she (1949) p. Lah. 75.

26A Bai Jina v. KhatWaJina (1907) Bom, 366.

 163

(ii) that husband shall not remove the wife from the conjugal
domicile without her consent~

(iii) that the husband shall not absent himself from the conjugal
domicile beyond a certain specified time;

(iv) that the husband and the wife shall live in a specified place.

(v) that a certain portion of the dower shall be paid immediately

or within a stated period to the wife~

(vi) that the husband shall pay the wife a fixed maintenance~

(vii) that he shall maintain the children of the wife by a former

husban~and

(viii) that he shall not prevent her from receiving her relations
whenever she likes.

Therefore, although Muslim law does not recognise judicial separation in principle
as a precaution against adultery, it has to practise it under certain exigencies. Moreover,_
an aged wife who is past her prime may resort to judicial separation under certain cir-
cumstances, if she harbours a feeling that some husband is better than no husband at all.