THE SPECIAL MARRIAGE ACT, 1954

SUMMARY

CHAPTER 1

PRELIMINARY

SECTION 1: SHORT TITLE, EXTENT AND COMMENCEMENT

This section prescribes that this act will extend to the whole part of India and this act may be
called as special marriage act, 1954. It also tells that this act will came into force by notification
by the central government.

SECTION 2: DEFINITIONS

This section gives the definitions of certain relationship. It defines “prohibited relationship” as a
man mention under part I and a woman mentioned under part II under this act will be came under
the degrees of prohibited relationship. By ancestor it means the father and ancestress it means the
mother under this act. It defines “full blood” and “half-blood” as when two persons have a
common ancestor by the same wife then they would be called as “full blood” and by half-blood
when they are descended from a common ancestor but by different wives. It defines “uterine
blood” as when two persons have common ancestress but by different husbands. This is the court
which has jurisdiction in respect of matters dealt with in this Act. Three courts are covered under
this definition: (1) City Civil Court for any area where this court exists; (2) Principal Civil Court
of original jurisdiction in areas other than the areas of the City Civil Court; and (3) any other
Civil Court, specified by the State Government by notification in the Official Gazette.

SECTION 3: MARRIAGE OFFICERS

This section provides for the appointment of the Marriage Officers (Under the Special Marriage
Act, 1872, they were designated as Marriage Registrars). According to sub-section (1), such
officers are to be appointed by the State Government for the whole of the State or any part
thereof. There may be one or more of Marriage Officers.

CHAPTER 2

SOLENIZATION OF SPECIAL MARRIAGES

SECTION 4: CONDITIONS RELATING TO SOLEMNIZATION OF SPECIAL MARRIAGES

The section opens with a non obstante clause which implies that in case of conflict with any
other law in force, the provisions and conditions laid down for solemnization of marriage in this
section would prevail.
 JUDGEMENT

CASE: Vatsala v/s Sub Registrar and Marriage Officer

FACTS: The marriage officer and sub registrar refused to solemnize a marriage on the ground
that the man is a foreigner and according to special marriage act only Indian resident can
solemnize their marriage.

ISSUE: Whether a marriage between an Indian and a foreigner can be solemnized under the Act.

RATIO: The court interpreted the words “any two persons” in section 4, it was held that the
Legislature clearly intended that any two persons in India, where one of them or both of them are
foreigner, or both of them are Indians, can have a marriage solemnized under the provisions of
this Act.

SECTION 5: NOTICE OF INTENDED MARRIAGE

The section provides for a notice to the marriage officer of the district, where the marriage is
intended to be solemnized under this Act. A further requirement of this section is that the notice
should be given to a marriage officer of the district in which at least one of the parties to the
marriage should have resided for a period of not less than 30 days immediately prior to the date
on which the notice is given.

SECTION 6: MARRIAGE NOTICE BOOK AND PUBLICATION

This section seeks to ensure complete transparency in the entire process of marriage
solemnization under this Act. Thus there is a Marriage Notice Book wherein all notices are
entered; this notice book is open for inspection to everybody desirous of inspection, without any
fee; further the notice of marriage is required to be published by affixing a copy of the same in a
conspicuous place in the office of the marriage officer; when a notice of intended marriage is
given by the parties who are not permanent residents of the District of that marriage officer, then
the marriage officer is required to cause a copy of such notice to be transmitted to the marriage
officer of the concerned district who would then affix a copy of the same in his office.

SECTION 7: OBJECTION TO MARRIAGE

The purpose of notice of intended marriage by the parties and publication of the same by the
marriage officer is to invite objections, if any, to the intended marriage. Section 7 provides for
this. Objections have to be filed within 30 days of the publication of the notice; if no objections
have been received, the marriage may be solemnized after the expiration of 30 days. It is
significant to note that the only grounds for objection should be that the intended marriage would
contravene one or more of the conditions specified in section 4 of the Act. Thus where parents
objected to a marriage on the ground that they had already made arrangements and preparations
to marry their daughter to another person, the court held that this was not a valid objection; such
objection is not covered under section 4 of the Act.

SECTION 8: PROCEDURE ON RECEIPT OF OBJECTION

Section 8 lays down the procedure of inquiry on receipt of objection under section 7 before the
Marriage Officer within the territories to which the Act extends. This section states the
responsibilities of such Marriage Officer.

SECTION 9: POWERS OF MARRIAGE OFFICERS IN RESPECT OF INQUIRES

This section provides the procedure and the powers vested in the marriage officer for conducting
enquiries into objections received against solemnization of an intended marriage. The Act
confers all the powers of a civil court under the Code of Civil Procedure, on a marriage officer,
in respect of summoning witnesses, inspection, production of documents issuing of commissions,
and so on. Proceedings before the marriage officer are deemed to be a judicial proceeding within
the meaning of section 193 of the Indian Penal Code, which punishes false or fabricated evidence
at any stage of the proceedings.

SECTION 10: PROCEDURE ON RECEIPT OF OBJECTION BY MARRIAGE OFFICER

ABORAD

This section lays down the procedure to be followed when a marriage is to be solemnized abroad
and the marriage officer has some doubts as to the objections made under section 7. The records
are to be transmitted to the Central Government for necessary enquiry and advice.

SECTION 11: DECLARATION BY PARTIES AND WITNESSES

According to Section 11 of the Act, the marriage declaration shall be signed by the parties to the
marriage and three witnesses and the same is countersigned by the Marriage Officer.

SECTION 12: PLACE AND FORM OF SOLEMNIZATION

The Marriage may be solemnized at the office of the Marriage Officer or within the reasonable
distance from the office. If the marriage is to take place outside the office, the parties must be
ready to pay additional fees. The parties shall say in the presence of Marriage Officer and three
witnesses. “I (A) take thee (B), to be my lawful wife (or husband)”.

SECTION 13: CERTIFCATE OF MARRIAGE

This section provides that after the marriage has been solemnized, the certificate of marriage is
entered in the Marriage Certificate Book, by the marriage officer. There is a specified form given
in Fourth Schedule for such certificate. This certificate has to be signed by the parties to the
marriage and the three witnesses. This is a mandatory requirement.
SECTION 14: NEW NOTICE WHEN MARRIAGE NOT SOLEMNIZED WITHIN THREE
MONTHS

Under this section if the Marriage is not solemnized under 3 months from the date mentioned
under section 5,8 and 10 of this act then period of the notice and all other proceedings arising
from it lapse. The Marriage Officer cannot solemnize after that period. This is a mandatory
provision.

SECTION 15: REGISTRATION OF MARRIAGES CELEBRATED IN OTHER FORMS

This section enables parties married in other forms, to have their marriage registered under this
Act, provided certain conditions are fulfilled. These conditions, as specified in clauses (a) to (f)
are: (i) ceremony of marriage which must be a legally accepted ceremony and they must have
been living together as husband and wife; (ii) monogamous status; (iii) sound mental health; (iv)
legally prescribed age; (v) outside degrees of prohibited relationship unless exempted by custom;
(vi) condition of residence.

CHAPTER 3

REGISTRATION OF MARRIAGES CELEBRATED IN OTHER FORMS

SECTION 16: PROCEDURE FOR REGISTRATION

This section lays down the procedure for the registration of a marriage in other forms. Both the
parties have to make an application signed by both of them to the Marriage Officer.  The
Marriage Officer shall enter this information in the Register maintained by him of this
information and issue a public notice for the filing of the objection. The marriage is to be
performed after 30 days of this public notice and before the expiry of two months from issue of
notice.

SECTION 17: APPEALS FROM ORDER UNDER SECTION 16.

This section provides that where the Marriage Officer orders to refuse the registration of
marriage, any person who is aggrieved by this order may appeal against it to the District Court
within 30 days from the date of the order. The decision of the District Court is final. The
Marriage Officer concerned has to comply with the order of the District Court.

SECTION 18: EFFECT OF REGISTRATION OF MARRIAGE UNDER THIS CHAPTER

This section says that when a certificate of marriage is entered in the Marriage Certificate Book,
the said marriage shall, as from the date of such entry, be deemed to be a marriage solemnized
under the Special Marriage Act. Thus, matrimonial proceedings in respect of such marriage will
be governed by provisions under this Act.
 CHAPTER 4

CONSEQUENCES OF MARRIAGE UNDER THIS ACT

SECTION 19: EFFECT OF MARRIAGE ON MEMBER OF UNDIVIDED FAMILY

This section says when a Hindu or Buddhist or Sikh or Jaina by religion who is a member of a
joint or undivided family marries under the provisions of this Act then he ceases to be a member
of that undivided family.

SECTION 20: RIGHTS AND DISABILITIES NOT AFFECTED BY ACT

This section deals with rights and disabilities with regard to the right of succession which the
section states shall be the same as those of a person to whom the Caste Disabilities Removal Act,
1850 (21 of 1850), applies.

SECTION 21: SUCCESSION TO PROPERTY OF PARTIES MARRIED UNDER ACT

Section 21 relates to the law of succession applicable to the properties of persons married under
this Act. In India, succession is a subject of Personal Laws. As regards the Parsis, Chapter III of
Part V of the Indian Succession Act, 1925 (from sections 50 to 56) lays down certain special
rules for Parsi intestates.

SECTION 21A: SPECIAL PROVISION IN CERTAIN CASES

This section state that in the case of marriage of parties solemnized under this Act where both
profess Hindu, Buddhist, Sikh or Jain religion, sections 19 and 21 will not apply and also so
much of section 20 which creates disability will not apply.

CHAPTER 5

RESTITUTION OF CONJUGAL RIGHTS AND JUDICIAL SEPARATION

SECTION 22: RESTITUTION OF CONJUGAL RIGHTS

This section 2 provides for restitution of conjugal rights at the instance of the husband or the
wife at any time after the solemnization of marriage under the Act. This section states that when
the wife or the husband has, without reasonable excuse, withdrawn from the society of the other,
the aggrieved party may apply by petition to the court for restitution of conjugal rights, and the
court on being satisfied of the truth of the statements contained in such petition and that there is
no legal ground why the application should not be granted may decree restitution of conjugal
rights.

JUDGEMENT

CASE: Abdur Rahim Undre vs. Padma Adbur Rahim Undre AIR1982Bom341
FACTS: The appellant-plaintiff Dr. Abdur Rahim under married Smt. Padma, respondent
defendant in the United Kingdom on 5th May 1966. At the time of marriage plaintiff Abdur
Rahim was a Mohainmedan whereas respondent Padma was a Hindu. Both of them were Indian
citizens. Their domicile was India. Both of then held Indian passports. On 6th of May 1965 the
plaintiff and the defendant went to the office of Registrar of Marriages at Weymouth. Before that
a necessary notice of intention to marry was already given. Thereafter on 6th May 1966 the
parties went through the marriage ceremony before the Registrar and the said marriage was duly
registered. The marriage certificate relating to this marriage duly authenticated and certified copy
is also on record. From this certificate it appears that the marriage Act, 1949. After this marriage
birth of Shabnam took place on 18th of May 1957. Thereafter on 4th Apr., 1969 the plaintiff and
the defendant with their children returned to India. After their return on 14th of November, 1969
Suhail, a boy was born. According to the facts of the appellant-plaintiff that on 29th Dec., 1969
conversion of the defendant Padma took place and she was converted to Muslim religion. On the
same day a Nikah ceremony was also performed. Thereafter on 21st of Nov., 1973 Sabir, a boy
was born. Thereafter relations between the parties became strained and hence the plaintiff further
alleged that he gave talaq to the defendant Padma on 20-4-1978. This talaq was given in the
absence of defendant Padma. However, an oral intimation about it was given to her in paradise
apartment on the same night. It is the case of the appellant that he was forced to give divorce in
view of the extreme cruelty meted out to him by Smt. Padma. She had been carrying on a
sustained and deliberate campaign of defaming him which resulted in causing acute mental
tension as well as interference with his professional duties. He also alleged that due to the ill-
treatment meted out by Smt. Padma and her indifferent attitude towards him and the members of
his family, the marriage relationship had broken down beyond the scope of reconciliation and in
these circumstances, he dissolved the marriage by giving unilateral talaq on 20-4-1978. After
third divorce he told the respondent defendant not to enter his real dentinal premises. However,
the respondent went to the said flat, broke it open and took away several things, articles,
jewellery etc. About which the appellant had to lodge a police complaint. It is the case of the
plaintiff that he was in exclusive possession and occupation of the flat at Nepean Sea Road. He
also contended that the four children were living with him and were under his care and custody.
As according to plaintiff, he became apprehensive that the defendant was likely to enter upon
and remain in the said flat with the help of hirelings and would also go to the extent of forcibly
removing the children from his custody, he was constrained to file the present suit for a
permanent injunction against the defendant. The suit was filed on 24th of Apr., 1978. Plaintiff
filed a suit for the declaration of divorce contending that as she was converted to Muslim went
through the Nikah ceremony at 303. Abdul Rahman Street at his father's residence and that on
20th Apr., 1978 he gave her talaq and thus dissolved marriage relationship. He alternatively
contended that even assuming that the defendant was not a Muslim and was a Hindu as
contended by her, still Muslim personal law was applicable to their relationship and the plaintiff
was entitled to dissolve the marriage by giving talaq as per Mohammedan Law. Thus, the suit
filed by the plaintiff was one for declaration as well as for injunction
ISSUE: 1. Whether this Hon'ble Court has jurisdiction to try and entertain this suit?

2. Which law will apply to the parties as regard marriage and divorce?

RATIO: Lower court Judgement: After appreciating all the evidence on record both oral and
documentary the trial court came to the conclusion that the Special Marriage Act read with
Foreign Marriage Act or English Law will apply to the parties as regards the marriage and
divorce. The learned Judge came to the conclusion that the marriage between the parties in
England was under the civil law of civil Marriage Act and is still subsisting. Supreme court
Judgement: It was adjudged that where a marriage between a Muslim husband and a Hindu wife
was solemnized under the British Marriage Act, 1949, then such marriage should be governed by
the Special Marriage Act, 1954 and not by the personal law of the husband.

CASE: M. Srinivas Rao v Janaki

FACT: The parties got married against the wishes of the bride and for whatever reason, the wife
later wanted to get out of it. She filed a petition for declaration of nullity of the marriage vide
section 25(iii) of the Act alleging fraud and cheating in getting the marriage papers signed. The
husband contested the same and filed for restitution of conjugal rights. He argued that she herself
signed the marriage registration forms and there was no fraud committed on her. The trial court
decreed the wife’s claim.

RATIO: On appeal the court opined that the allegations of wife were “baseless, absurd and
without any logical basis” since the marriage certificate was issued after compliance with all
legal formalities. The marriage was accordingly, held to be valid. In this situation, the court
conceded that a case for restitution has been made out but nonetheless it declined to pass a
decree for restitution. The basis for this was (a) that parties had married without consent of
wife’s parents who did not accept this marriage; (b) the wife was also totally reluctant to join the
husband; (c) both the parties had been fighting the legal battle since 2007; (d) both were in prime
of youth and their future was at stake and (e) parties should be therefore left to decide themselves
as to what they should do about their dead legal relationship. The court held: “we are therefore
not inclined to pass any decree of restitution of conjugal rights exercising our discretion in
favour of the appellant under section 22 of the SMA.” There was thus neither annulment nor
restitution.

SECTION 23: JUDICIAL SEPARATION

This section provides for judicial separation which presented before the District court on any of
the grounds for divorce specified in section 27, sub-section (1) and sub-section (1A) or on the
ground of failure to comply with a decree for restitution of conjugal rights and the Court, 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 judicial separation accordingly.
Where the Court grants a decree for judicial separation, it shall be no longer 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 statement made in such petition, rescind the
decree if it considers it just and reasonable to do so.

JUDGEMENT

CASE: Dr. Narayan Ganesh Dastane v. Sucheta Narayan Dastane(AIR 1975 SC 1534)

FACTS: In April 1956, the parents of the respondent in this case put a proposal for marriage with
the appellant. But prior to their marriage, the respondent’s father informed the appellant through
letters about the medical health of the respondent and apprised him about the attack of sunstroke
that respondent had which had affected her mental condition which was now recovered. The
appellant was also informed about the cerebral malaria of the respondent which was the main
cause of her deteriorating mental health.  The respondent’s father also informed him about the
hospital where the respondent had been undergoing her treatments. Consequently, the appellant
confirmed the doctor about the same and did not raise any further queries and consented for
marriage. The respondent was three months pregnant in February 1961, when the appellant asked
for the police protection considering the respondent as a threat to his life.  Later, the respondent
asked for maintenance for herself and her 2 daughters from her husband and also addressed a
letter to the Ministry of Food and Agriculture stating the cruel treatment and desertion by her
husband and claimed maintenance separately from the government. The relation between the
couple got so tense that the appellant moved to the court. Hence, the proceedings got instituted in
trial court in February 1962, and appellant claimed for revocation of marriage under Section 12
(1) (c) of Hindu Marriage Act, 1955 on the ground that his assent had been fraudulently
obtained.  He subsequently requested the court for divorce under Section 13 (1) (iii) of the said
Act. Alternatively, he claimed for judicial separation under Section 10 (1) (b).

ISSUE: 1. Whether or not the Burden of Proof of cruelty lies on the Petitioner or not?

2. Whether or not the realities must be developed past sensible vulnerability in conjugal issues?

3. Whether or not the show of sex signifies the recommendation of cruelty?

RATIO: In this case, Justice Chandrachud Y.V. laid down following the 5 tests to determine
whether the respondent conduct would amount to cruelty or not:

1. The alleged act constituting cruelty should be proven according to the law of evidence;
2. There should be apprehension in the petitioner’s mind of real injury or harm from such
conduct;
3. The apprehension should be reasonable having regard to the conditions of the parties;
4. The petitioner should not have taken advantage of his position;
5. The petitioner should not have condoned the acts of cruelty.
After considering facts and circumstances of this case on these aforesaid grounds  the Court gave
the following judgement:

In the present case, the Court found that the appellant contention regarding his wife being
unsound mind was fabricated by him. The contention regarding the respondent inflicting cruelty
has been proven to exist, but the appellant act of engaging sexual intercourse with respondent
would condone the cruelty inflicted by the respondent. The appellant condoned the respondent
after which she did not act in the manner she did before the condonation thus the respondent will
not be held liable for cruelty.

CASE: Smt. Maya Devi v. Jagdish Prasad (AIR 2007 SC 1426)

FACTS: In this case, the husband alleged that his wife, Mrs. Maya, does not provide food to him,
used to threaten him to implicate false charges of dowry against him or his family and often said
that she will kill his whole family. 

ISSUE: whether the conduct complained of amounts to cruelty in the matrimonial law.

RATIO: After considering all the facts and circumstances of the case, the Supreme Court held
that “although the expression of cruelty has not been defined in the Act, it may be physical or
mental, direct or indirect. And in this case, the acts of the respondent were sufficient to cause
apprehension in the mind of the appellant that it is not safe to stay with her. Thus, it is mental
cruelty against the husband. In this case, the Court also suggests that the question of mental
cruelty has to be considered in light of particular norms of a marital tie in every society which
depends on societal values, status, culture, and surroundings of the parties to the particular case.

CASE: Shobha Rani v/s Madhukar Reddi (1998 AIR SC 121)

FACTS: The appellant, Shobha Rani, accused her husband and his family of demand for dowry.
The High Court justified their demand as she is an upcoming doctor, there is nothing strange to
ask her for some money. However not satisfied with the order she appealed before Supreme
Court.

RATIO: The Supreme Court treated that act as mental cruelty and held that the word cruelty has
not been defined anywhere, it is a question of fact and degree, and it may only be inferred by its
impact on the mind of the person who bears it, and in this case, the conduct of respondent caused
very bad impact on appellant’s personal and professional life, thus it was decided that mental
cruelty was inflicted on her.

CHAPTER 6

NULLITY OF MARRIAGE AND DIVORCE

SECTION 24: VOID MARRIAGES

This section provides that any marriage solemnized under the Special Marriage Act shall be null
and void and may, on a petition presented by either party thereto against the other party, be so
declared by a decree of nullity if any of the conditions specified in clauses (a), (b), (c) and (d) of
Section 4 has not been fulfilled or the respondent was impotent at the time of marriage. This will
not apply to section 18 but the registration of any such marriage under Chapter III may be
declared to be of no effect if the registration was in contravention of any of the conditions
specified in clauses (a) to (e) of Section 15. Provided that no such declaration shall be made in
any case where an appeal has been preferred under Section 17, and the decision of the District
Court has become final.

JUDGEMENT

CASE: Bharwani Sarkar (nee Mukhopadhyay) v Angshuman Sarkar

FACTS: The appellant in this case filed a divorce petition on the ground that the husband was
impotent at the time of the marriage and at the time of the institution of the suit, that any medical
examination subsequent to the institution of the proceedings would not bring relevant evidence,
therefore, the husband’s application for his medical examination cannot be legally allowed and
that the conclusion of the impotence of the husband could be arrived at if the wife is medically
examined and found virgin even after the institution of the proceedings.

RATIO: It was held that husband cannot be precluded from leading evidence for his sexual
potency at any time, more particularly at the time of the marriage and during the period before
the institution of the proceedings and that sexual impotency of the husband cannot be proved
only on the proof of virginity of the wife in view of the husband’s pleading that wife refused to
have sexual intercourse. It is submitted that where it is the second marriage of the wife, the
question of her virginity becomes irrelevant.

CASE: Nirmal Dass Bose v Km. Mamta Gulati

FACTS: The respondent who is the wife in this case alleged that the consent of the was obtained
by coercion and fraud and also by keeping the plaintiff under hypnotic influence of the appellant.
As the defendant has misrepresented in regard to his age, his education, his income, his property,
his family and had the plaintiff known about the real facts she would have never agreed to the
marriage. She asserted that the alleged marriage was never consummated and she never lived
with the defendant at any time as his wife.  She also alleged that she had a genuine apprehension
that if she was made to live with the appellant then she will suffer mentally physically and
emotionally and the cruelty already suffered by her from the whole conduct of the appellant was
unbearable. The respondent prayed that the marriage between the parties be declared void and be
annulled.

ISSUE: Whether grounds of voidness exhaustive?

RATIO: it is held that section 24 is not exhaustive of the grounds on which a marriage shall be
treated to be null and void. They ought to be taken as only enumerative. For example the proviso
to section 12(2), which states that marriage shall not be complete and binding unless the parties
declare to accept each other as husband and wife in the presence of the Marriage Officer and
three witnesses. Omission to fulfil this requirement leads to the inevitable conclusion that such a
marriage is void.

SECTION 25: VOIDABLE MARRIAGES

This section set out grounds for voidable marriages. The grounds can be the marriage cannot be
consummated owing to the impotence of the respondent, the respondent was pregnant by some
person or the consent of either party to the marriage was obtained by coercion. The court shall
not grant a decree unless satisfied that the petitioner was at the time of the marriage ignorant of
the facts alleged, those proceedings were instituted within a year from the date of the marriage
and that marital intercourse with the consent of the petitioner has not taken place since the
discovery by the petitioner of the existence of the grounds for a decree.

JUDGEMENT

CASE: Sunil K. Mirchandani vs Reena S. Mirchandani

FACTS: The husband sought decree of nullity of the marriage on the ground of non-
consummation. His case was that despite best efforts made by him for five months, immediately
after marriage, the wife did not permit him. However, the tone and tenor of letter written by him
to her six months after marriage indicated satisfactory sexual relations with the wife.

ISSUE: whether the petitioner has been able to prove the non-consummation of marriage with
the respondent?

RATIO: According to the court, if what he said was true, his frustration would have been
reflected and not the love and affection expressed in the letter. Though the wife did not enter the
witness box in this case, the husband’s deposition was held to be not reliable. Accordingly, his
petition was dismissed.

CASE: Jolly Das @ Moulick v Tapan Ranjan Das

FACTS: The appellant filed a matrimonial suit for declaring her marriage with the respondent as
a nullity on the ground that her consent in the marriage was obtained by fraud within the
meaning of Section 25(iii) of the Special Marriage Act, 1954. Her case was accepted by the
learned District Judge who declared the marriage void. On appeal, a Division Bench of the
Calcutta High Court took the view that the appellant has failed to establish the fraud alleged by
her. The respondent's appeal was accordingly allowed and the appellant's suit dismissed.
ISSUE: whether her signatures on the relevant forms were obtained by the respondent by making
fraudulent misrepresentation.

RATIO: The Supreme Court held that the respondent taking advantage of the innocence,
inexperience and tender age of the appellant who was in a position of his student, obtained her
signatures on the Marriage Certificate and other forms by making fraudulent representation to
her without fully apprising her of their contents; therefore, marriage was voidable and a nullity.
Apart from fraud, the Supreme Court found that there was no consummation of marriage, no
ceremony or function of marriage, the parties never lived together as husband and wife for eight
months after marriage and no one on the side of the appellant had anything to do with the said
marriage although it was not alleged that they were opposed to it. On the basis of these facts the
court held, “it was a sham marriage”.

CASE: RITA NIJHAWAN V. BALAKISHAN NIJHAWAN AIR 1973 DEL  200

FACTS: A 16-year-old female and 30-year-old male were married in 1954. The wife alleged that
barring a part improvement that resulted in a pregnancy in 1958, there had never been any
normal sexual life and the husband had failed to give sexual satisfaction.

LAW INVOLVED: Section 10(1), Section 12 and Section 12(1) of Hindu Marriage Act, 1955.

RATIO: Held that vigorous and harmonious sexual activity is the foundation of marriage and a
marriage without sex is anathema. The court considered the husband’s impotency to be a cause
of mental and physical cruelty to the wife.

SECTION 26: LEGITIMACY OF CHILDREN OF VOID AND VOIDABLE MARRIAGE

This section makes provision for a child of a void marriage to be legitimate whether the child
was born before or after commencement of the Marriage Laws (Amendment) Act, 1976; whether
or not a decree of nullity is granted in respect of that marriage under this Act; and whether or not
the marriage is held to be void otherwise than on a petition under this Act. In the case of voidable
marriage, sub-section (2) provides that where a decree of nullity is granted under section 25, any
child begotten or conceived before the decree is made who would have been the legitimate child
of the parties to the marriage if the marriage had been dissolved instead of being annulled, is
deemed to be their legitimate child. Furthermore, it states that any child of the marriage which is
declared to be null and void or annulled by decree of nullity would have rights in or to the
property of his mother and father but not in or to the property of any other person by virtue of the
provisions in this section.

SECTION 27: DIVORCE

This section sets out the ground for filing a petition under divorce. These grounds are adultery
that is after solemnization of marriage if a married person with the ties of marital bonds is having
sexual intercourse with another person who is not his or her spouse, is said to have committed
adultery, cruelty that even after solemnization of marriage, treating the petitioner with cruelty
can also be considered as a ground for marriage, desertion that is if a divorce can happen if the
petitioner had been deserted by the respondent for a continuous period of two years immediately
after preceding the presentation of the petition, insanity, that the respondent is undergoing a
sentence of imprisonment for seven years or more for an offence as defined in the Indian Penal
Code leprosy that a person whose spouse is suffering from a deadly, incurable disease known
leprosy can sort a decree of divorce under this ground, venereal disease if one of the spouses is
experiencing a serious incurable disease that is effectively transferable, a petition of divorce can
be filed by the person, that the respondent has not been heard of as being alive for a period of
seven years or more by those persons who would have naturally heard of the respondent if the
respondent had been alive, and presumption of death. Thus on these grounds divorce is bound to
take place between the two legally married couples. The wife also has some special rights for
filing a divorce. If the husband has one or more wife living at the same time then the wife can
file divorce and if the husband is guilty of rape, sodomy, and bestiality after the solemnization of
marriage or on the ground that there was no resumption of cohabitation for one year or more
since the passing of decree or order for maintenance.

JUDGEMENT

CASE: Iris Paintal v Avtar Singh

FACTS: The wife made false and frivolous allegations against the husband, who was a very
senior person in the medical profession, alleging that he was involved in scandalous affairs with
his colleagues and having extra-marital relations, knowing that such allegations were false. She
also used to address the husband in a very rude and uncivilized manner using expressions like
“sikhra” (he was a Sikh). Besides, her attitude towards her in-laws was very bad and she clearly
indicated to them and her husband that they were not welcome to their house.

RATIO: It has been held by the High Court that a single act of violence may come within the
meaning of the words “has treated with cruelty”, provided the violence is of a grievous and
inexcusable nature. To constitute cruelty the conduct complained of should be “grave and
weighty” so as to make cohabitation virtually unendurable. It must be something more serious
than “ordinary wear and tear of the married life”.

CASE: Smt. Maya Devi v. Jagdish Prasad (AIR 2007 SC 1426)

FACTS: The husband alleged that his wife, Mrs. Maya, does not provide food to him, used to
threaten him to implicate false charges of dowry against him or his family and often said that she
will kill his whole family. 

ISSUE: whether the conduct complained of amounts to cruelty in the matrimonial law?
RATIO: The Supreme Court held that “although the expression of cruelty has not been defined
in the Act, it may be physical or mental, direct or indirect. And in this case, the acts of the
respondent were sufficient to cause apprehension in the mind of the appellant that it is not safe to
stay with her. Thus, it is mental cruelty against the husband. In this case, the Court also suggests
that the question of mental cruelty has to be considered in light of particular norms of a marital
tie in every society which depends on societal values, status, culture, and surroundings of the
parties to the particular case.

SECTION 27A: ALTERNATE RELIEF IN DIVORCE PROCEEDINGS

This section provides that in a petition for dissolution of marriage by divorce, except in a case
under section 27(1)(h), instead of passing a decree of divorce the court may pass a decree of
judicial separation.

SECTION 28: DIVORCE BY MUTUAL CONSENT

This section provides a petition for divorce may be presented to the District Court by both the
parties together on the ground that they have been living separately for one year or more, that
they have not been able to live together and that they have mutually agreed that the marriage
should be dissolved. On the motion of both the parties made no earlier than six months after the
date of the presentation of the petition referred to in sub-section (1) and not later than eighteen
months after the said date, if the petition is not withdrawn in the meantime, the District Court
shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit,
that a marriage has been solemnized under this Act and that the averments in the petition are
true, pass a decree declaring the marriage to be dissolved with effect from the date of the decree.

JUDGEMENT

CASE: Pradeep Pant & anr v. Govt of NCT Delhi

FACTS: The parties were married and had a daughter from their wedlock. However, due to
temperamental differences between them, they were not able to live together and decided to live
separately. Despite putting their best efforts, they were unable to reconcile their marriage and
could not see themselves living together as husband and wife ever again. A divorce petition was
jointly filed and issues such as maintenance and custody of their child were decided and agreed
upon by both.

RATIO: The wife would get custody of their daughter and the husband would reserve visitation
rights; it was mutually agreed upon by both of them. Both parties gave their free consent without
any undue influence. The court observed that there was no scope of reconciliation and granted a
decree of divorce.

CASE: Amardeep Singh v. Harveen Kaur

FACTS: The Appellant and the Respondent got married on 16th January 1994 at Delhi. They
subsequently had two children in 1995 and 2003 respectively. The parties started living
separately since 2008 which also led to civil and criminal proceedings between the two. The
dispute was finally settled with a decision to seek divorce by mutual consent on 28th April 2017.
The respondent was granted permanent alimony of Rs.2.75 crores and was thus given two
cheque of Rs.50,00,000/- by the appellant which has been well honored, it was also held that the
appellant will hold custody of the child. The parties have sought waiver of the period of six
months for the second motion as they have already been living separately for more than last eight
years and there is no possibility of their reunion and the delay will only affect their chances of
any resettlement. Therefore, they moved to the Supreme Court on the ground that only the
Supreme Court can relax the six months period as per previous decisions of the Supreme Court

ISSUE: Whether the exercise of power under Article 142 of the Constitution to waive the period
under Section 13B (2) of the Hindu Marriage Act was mandatory or directory?

RATIO: The court held that the object of 13B (2)is to enable the parties to dissolve a marriage by
consent if the marriage has irretrievably broken down and to enable them to rehabilitate them as
per available options and the cooling off period is necessary to ensure that rash decisions are not
taken. It was also held that the Court should give due regards to the language, context, the
subject matter and the object of the provision to determine whether a provision is mandatory or
directory. In this regard it was held by the court that Court where it is satisfied that a case is
made out to waive the statutory period under Section 13B(2), it can do so after considering the
following :
1. The statutory period of six months specified in Section 13B(2), in addition to the
statutory period of one year under Section 13B(1) of separation of parties is already
over before the first motion itself;
2. All efforts for mediation/conciliation including efforts in terms of Order XXXIIA
Rule 3 CPC/Section 23(2) of the Act/Section 9 of the Family Courts Act to reunite
the parties have failed and there is no likelihood of success in that direction by any
further efforts;
3. The parties have genuinely settled their differences including alimony, custody of a
child or any other pending issues between the parties;
4. The waiting period will only prolong their agony;
5. The waiver Application can be filed one week after the first motion giving reasons
for the prayer for waiver.
If the above conditions are satisfied, the waiver of the waiting period for the second motion will
be at the discretion of the Court. The period mentioned in Section 13B(2) is not mandatory but
directory, it will be open to the Court to exercise its discretion in the facts and circumstances of
each case where there is no possibility of parties resuming cohabitation and there are chances of
alternative rehabilitation.
The Court can also use the medium of video conferencing and also permit genuine representation
of the parties through close relations such as parents or siblings where the parties are unable to
appear in person for any just and valid reason as may satisfy the Court, to advance the interest of
justice.
SECTION 29: RESTRICTION ON PETITIONS FOR DIVORCE DURING FIRST ONE YEAR
AFTER MARRIAGE

This section states that unless and until one year has expired from the date of their marriage as
recorded in the marriage books, the parties may not apply for divorce in the District Court.
However, in cases where the court considers that the petitioner has suffered exceptional hardship
or the respondent has shown exceptional depravity on his part, a request for divorce would be
retained, but if there is any misrepresentation on the part of the petitioner to apply for divorce
before the expiry of 1 year, the court may, if any order has been passed, state that order to take
effect only after the expiry of 1 year.

JUDGEMENT

CASE: Vinod Arora v. Manju AIR 1982 DEL 592.

FACTS: The appellant is the husband in this case. The husband's case is that after 3 days of the
marriage, the wife refused to have any sexual intercourse with him. His further grievance is that
she remained absent from the matrimonial home without any reasonable cause or excuse. The
trial court held that the husband has not been able to make out any ground of exceptional
hardship so as to entitle him to move the petition for dissolve before the expiry of one year from
the date of marriage. He further made an appeal before the Delhi High Court.

RATIO: The Delhi High Court observed that the hardship which entitles spouse to move an
application under Section 14 of the Act has got to be exceptional. Mere fact that after three days
of marriage, the wife refused to have any sexual intercourse with the husband or that she used to
remain absent from the matrimonial home without any reasonable cause or excuse, would not be
sufficient to make out a case of exceptional hardship so as to entitle him to move the petition for
dissolution before the expiry of one year from the date of marriage.

CASE: Saudamini Lenka alias Mohapatra v. Khageswar Lenka

FACTS: The appellant-wife has filed the aforesaid appeal under section 19 of the Family Courts
Act, inter alia, challenging the decree of divorce passed under section 13 of the Hindu Marriage
Act read with section 7 of the Family Courts Act within one year of the marriage.

RATIO: On appeal, the same was set aside, as there was no pleading regarding ‘hardship’ much
less exceptional hardship. There was nothing on evidence to show exceptional depravity on the
part of the wife. According to the court, the court must be satisfied that exceptional hardship will
be caused to a party if the divorce petition is not entertained before completion of one year of
marriage.

CASE: Meghanatha Nayyar v. Smt. Susheela AIR 1957 Mad 423

FACTS: A wife filed a petition within the period of three years (the prescribed period before the
amendment in 1976) on the ground that soon after marriage she discovered that her husband
already had a wife and a child.

ISSUE: What is the Scope of expressions “Exceptional Hardships” and “Exceptional Depravity”
in the Hindu Marriage Act 1955.

RATIO: On appeal, the same was set aside, as there was no pleading regarding ‘hardship’ much
less exceptional hardship. There was nothing on evidence to show exceptional depravity on the
part of the wife. According to the court, the court must be satisfied that exceptional hardship will
be caused to a party if the divorce petition is not entertained before completion of one year of
marriage. It is grounded on public policy because marriage is the foundation of civil society and
no part of the laws and Constitution of a country can be of more vital importance to its subjects
than those which regulated the manner and conditions of forming and, if necessary, of dissolving
marriage contract. The expressions “Exceptional hardships” and “exceptional depravity” have
not been explained in the Act. The scope of these expressions is very extensive and they are
pregnant with the sense of uncommonness and covered with extraordinary situations. Hence
where the petitioner is faced with such hardships that his or her life has turned to be a complete
hell or the respondent has committed such a heinous moral offence that it has become completely
intolerable to the petitioner it would be possible to pass a decree for divorce without waiting for
the expiry of the stipulated period of one year. Following the English case Bowmen v. Bowmen,
the Court held that this case gave some guidance in considering what could be treated as
exceptional hardship or depravity by laying the following general principles:

(1) Adultery with one person is not exceptional depravity.

(2) Adultery plus disertion in favour of another woman by the husband plus cruelty to his wife
constitutes exceptional hardship to the wife.

(3) Apart from adultery coupled with another matrimonial offence the consequences of adultery
may cause exceptional hardship, e.g., when a wife has a child by adultery.

(4) If a husband commits adultery within a few weeks of his marriage, or promiscuously with his
wife’s sister, or a servant in the home, that may be held to be exceptional depravity.

(5) Cruelty coupled with aggravating circumstances, e.g., drunkenness and neglect may be
exceptional hardship on the aggrieved spouse or if coupled with perverted lust exceptional
depravity by the proposed respondent.

(6) Adultery with the wife’s sister or servant in the house.

(7) Husband’s adultery promiscuously with another woman.

SECTION 30: REMARRIAGE OF DIVORCED PERSON

The section provides that either party whose marriage has been dissolved by a decree of divorce
may marry again after decree granting divorce is passed and where there is right of appeal, after
the expiration of the period allowed for appeal if no appeal is presented and where appeal has
been presented from the decree granting divorce and such an appeal has been dismissed.

CHAPTER 7

JURISDICTION AND PROCEDURE

SECTION 31: COURT TO WHICH PETITION SHOULD BE MADE

This section gives the jurisdiction under which once petition should be filed. Petition under
Chapter V or Chapter VI shall be presented to the district court. It also provides for one
additional enabling condition for jurisdiction in the case of petition for nullity or divorce by wife.
Where the husband is not resident in the territories to which the Act extends, and the wife is
domiciled in the territories to which this Act extends and has been ordinarily resident therein for
a period of three years then the district court (within whose local limits the wife is residing) may
entertain petition for nullity or for divorce.

SECTION 32: CONTENTS AND VERIFICATION OF PETITION

This section states that a petition for restitution of conjugal rights or judicial separation or nullity
or divorce under Chapters V and VI of this Act, must state the facts on which the claim for the
particular relief is founded. Also, the statements contained in the petition must be verified by the
petitioner or some other competent person in the manner required by law for the verification of
plaints.

SECTION 33: PROCEEDINGS TO BE IN CAMERA AND MAY NOT BE PRINTED OR

PUBLISHED

This section has made obligatory that all proceedings under the Act should be conducted in
camera. It is made unlawful to publish or print such proceedings unless a judgment of the High
Court or of the Supreme Court printed or published with the previous permission of the court. If
any person still publishes then he shall be punishable with fine which may extend to one
thousand rupees.

JUDGEMENT

CASE: K. Sridhar v R. Sukanya 2005 (1) HLR 739 (Mad)

FACTS: The wife was a cine actress and the husband employed in the United States who had
come to India in connection with matrimonial proceedings in the family court. The contentious
issue raised was in regard to in camera proceedings and prohibition to publish the proceedings. It
was argued that the Family Courts Act, 1984, has no provision analogous to section 22 of the
Hindu Marriage Act which prohibits and penalizes publication of matrimonial proceedings and
that the Family Court Act being a later Act has an overriding effect on the Hindu Marriage Act
(HMA).

ISSUE: whether there can be ban on publication or not will have to be decided on the basis of
Section 11?

LAW INVOLVED: Section 22 of the Hindu Marriage act, Section 11 of the Family Courts.

RATIO: Dismissing the argument, the High Court held that the Family Court Act is only a
procedural law and the substantive law relating to family matters, in case of Hindus, is contained
in the Hindu Marriage Act and section 22 thereof is mandatory. Moreover, the court pointed out
that section 11 of the Family Courts Act also confers special right on the party to demand in
camera proceedings and where such request is made, the court has to comply with it. Thus, even
under this Act, there is no scope for publication or printing of proceedings under the Hindu
Marriage Act, either in press or the electronic media. Thus, the respondents were restrained from
publishing or telecasting the matrimonial proceedings relating to the petitioner in any way.

SECTION 34: DUTY OF COURT IN PASSING DECREES

This section provides the court is to be satisfied about certain matters, irrespective of whether in
the proceedings they are defended or not. The grounds can be existence of ground of relief,
absence of condonation or connivance, Absence of force, fraud and undue influence , absence of
collusion, absence of delay in instituting the proceedings, absence of any other legal bar. It is the
duty of the court to bring out reconciliation between the parties also to provide a person to bring
about reconciliation. The person may be named by the parties or nominated by the court with
direction to report to the Court in 15 days. The Court will adjourn its proceedings meanwhile and
give due regard to the report of the referee while taking its decision on the matter. When decree
of divorce is passed, the Court passing the decree is enjoined under sub-section (4) of section 34
to give a copy of the decree without cost to each of the parties.

SECTION 35: RELIEF FOR RESPONDENT IN DIVORCE AND OTHER PROCEEDINGS

This section confers power upon the court, in a proceeding for divorce or judicial separation or
restitution of conjugal rights, to give relief to the respondent who opposes the proceeding on the
ground of the petitioner’s adultery, cruelty or desertion and makes counter-claim for relief on the
same grounds. The court will give relief to the respondent if the petitioner’s adultery or cruelty
or desertion is proved. The court may in such a case give to the respondent the same relief as the
respondent would be entitled to if he or she had filed a separate petition for the same.

JUDGEMENT
CASE: Devram Bilve vs Smt. Indumati

FACTS:  Parties to the litigation were married the Marriage Officer. They lived as husband and
wife together for some time. Wife (applicant) was already working as a Teacher. At that time the
husband was not appointed in Government service but he subsequently got his appointment and
was posted at Biora. According to her averments made in the petition the parties lived together as
husband-and-wife even though they were posted at different places. She has averred that when
she turned out from her matrimonial home by her husband. After she was turned out, she had
made complaints to the police and other various superior officials of her husband. After
exchange of notices between the parties, as nothing fruitful materialized, she filed a petition
claiming restitution of conjugal rights in the Indore Court. Where the court allowed the applicant
application for restitution of conjugal rights filed by her under Section 22 of the Special
Marriage Act was rejected and the non-applicant counter claim for divorce under Section 27(1)
(d) read with Section 35 of the Act, was allowed. Not satisfy to the order the husband made an
appeal

ISSUE: Whether the non-applicant counter claim for divorce under Section 27(1)(d) read with
Section 35 of the Act, was allowed?

RATIO: The High Court said where the decree is passed rejecting the prayer of the petitioner and
accepting the counter-claim of the respondent, the petitioner need not make two separate
independent appeals: one against the rejection of her petition and the other against the acceptance
of the counter-claim. Then in such a case there is only one suit before the Trial Court in which
only one decree is passed. Naturally only one appeal is competent.

SECTION 36: ALIMONY PENDENTE LITE

This section provides for interim orders to be made by the court during the pendency of
proceeding for restitution of conjugal rights, judicial separation, nullity of void or voidable
marriage and divorce. Such orders can be made for payment of the expenses of the proceedings
by the husband to the wife and alimony by weekly or monthly payments where the wife has no
independent income sufficient for her support.

JUDGEMENT

CASE: Smt. Mamta Jaiswal vs Rajesh Jaiswal on 24 March, 2000

FACTS: Matrimonial petition has been filed by husband Rajesh Jaiswal for getting divorce from
Mamta Jaiswal on the ground of cruelty. The Matrimonial Court has directed Rajesh Jaiswal to
pay travelling expenses to Mamta Jaiswal whenever she attends Court for hearing of them
matrimonial petition pending between them. The Matrimonial Court awarded alimony of Rs.
800/- to Mamta Jaiswal per month as pendente lite alimony, Rs. 400/- per month has been
awarded to their daughter Ku, Diksha Jaiswal. Expenses necessary for litigation has been
awarded to the tune of Rs. 1,500/-. The wife files a revised petition when she prayed that she be
awarded the travelling expenses of one adult attendant who is to come with her for attending
Matrimonial Court.

ISSUE: whether a woman having such qualifications and once upon a time sufficient income is
entitled to claim pendente lite alimony from her husband in a matrimonial petition which has
been filed against her for divorce on the ground of cruelty.

whether such a woman is entitled to get the expenses reimbursed from her husband if she brings
one adult attendant along with her for attending the Matrimonial Court from the place where she
resides or a distant place.

RATIO: The court held that the spouse who is well qualified to get the service immediately with
less efforts are not expected to remain idle to squeeze out, to milk out the other spouse by
relieving him of his or her own purse by a cut pendente life alimony. The law does not expect the
increasing number of such idle persons who by remaining in the arena of legal battles, try to
squeeze out the adversary by implementing the provisions of law suitable to their purpose.

CASE: Sanjay Bhardwaj & Ors. vs The State & Anr.

FACTS: In this case the husband a Non-Resident Indian filed a divorce petition against his wife
as she was suffering from chronic disease about which no information was given to him before
marriage and a fraud was played. His wife was doing job with a Multinational Company alleged
his husband for dowry demand and harassment. An order was passed directing husband to pay an
interim maintenance of 5000/- pm to the wife. However, the amount was fixed without
considering the contentions raised by the husband that he lost his job in Angola (Africa) where
he was working before marriage because his passport was seized by police and he could not join
his duties back. After marriage he remained in India, he was not employed. Thus, he filed
petition before the Delhi High Court.

RATIO:  In this case while considering the provisions relating to maintenance under The
Protection of Women from Domestic Violence Act, 2005 (D.V. Act) and other prevalent laws
like Hindu Adoption and Maintenance Act, 1956; Hindu Marriage Act, 1956 and Section 125 of
Criminal Procedure Code (Cr.P.C.), it was held that, the husband can’t be forced to beg and steal
in order to maintain his equally qualified wife who refused to live with him coupled with the fact
that earning status of the husband is not proved. The relevant excerpt of the judgment is worth
perusing for. A husband is supposed to maintain his un- earning spouse out of the income which
he earns. No law provides that a husband must maintain a wife, living separately from him,
irrespective of the fact whether he earns or not. Court cannot tell ask husband that he should beg,
borrow or steal but give maintenance to the wife, more so when the husband and wife are almost
equally qualified and almost equally capable of earning and both claimed to be gainfully
employed before marriage.
CASE: Sakarben Shambhubhai Rabari & vs Shambhubhai Masharubhai Rabari

FACTS: The wife filed revised petition before the High Court of Gujarat. In this petition she
challenged the order passed by then sessions judge wherein she was awarded with the amount of
maintenance of Rs.7000/ wherein Rs.4500/ is towards maintenance of wife and
Rs.2500/ is for her son. after eight years and amount of maintenance has been awarded from
the date of application thereby the enhanced amount of maintenance is already
awarded for more than eight years.

ISSUE: What is the required to be verified at the stage is practically illegality, irregularity and
perverseness, if any, in the impugned   judgment.

RATIO: While fixing the quantum of maintenance, the Court has to take into account not
only the needs of person who claims maintenance but also the capacity, status,
commitments and the obligations of person who has to pay it. If the husband has to maintain
other persons like his parents, etc. reasonable allowance for their maintenance shall have to
be made. It would be unjust to grant maintenance in an arbitrary manner. The party who
has to pay maintenance is also not to be virtually rendered a destitute. A fair balancing of all
the relevant factors is to be done by the Courts without making an emotional approach
to the problem. The court shall have to keep in mind that what is to be provided is the
maintenance and it cannot have saving element in it nor is it the purpose of the legislature to
put the claimant in a luxurious position. The definition of maintenance given by the Act
makes this position amply clear

SECTION 37: PERMANET ALIMONY AND MAINTENANCE

This section provides for order of payment of permanent alimony by the husband to the wife at
the time of passing of a decree or any time subsequent to the decree of restitution of conjugal
rights, or judicial separation or nullity or divorce. Whatever may be the decision of the court on
the petition, maintenance may be given to the wife, depending upon the facts and circumstances
of the case. If there is change in the circumstances after the order for maintenance is made, then
on the application of any one of the parties the District Court is empowered to vary, modify or
rescind the order of maintenance in the interest of justice. If the wife has remarried or is not
leading a chaste life, the husband may apply to the court to vary, modify, or rescind the order as
it deems just.

JUDGEMENT

CASE: Rekha Deepak Malhotra v Deepak Jagmohan Malhotra

FACTS: In this case the wife files a divorce petition on the grounds that his husband is having an
extra marital affair and have a child with one of his affairs. She filed a suit for permanent
maintenance in the sum of Rs. 25,000/- per month. She also claims a sum of Rs. 75 lakhs to
enable her to acquire on ownership basis a residential flat.

ISSUE: How much amount should be paid as a permanent maintenance.

RATIO: The said what is important is to ensure that the maintenance is sufficient to enable the
wife to live in somewhat the same degree of comfort, as in the matrimonial home; the amounts
should not be so exorbitant that the husband is unable to pay the amount should not be punitive
in nature. On the other hand, the amount of maintenance should not be so low as to make the
order meaningless. Naturally, there can be no mathematical exactitude in these matters. The
court has to take a general view and try to fix an amount which would be by and large acceptable
to both the husband and wife. Thus, directed the husband to pay a sum of Rs. 7,500/- per month
as ordered in the ad-interim order. This would on the admitted fact give the wife an income of
Rs. 20,000/- per month which should be sufficient to keep her in the style and status enjoyed by
her, whilst living with the husband.

CASE: S. Jayalakshmi v T. Prakash Rao

FACTS: An Assistant Engineer husband obtained a decree of divorce against his wife who too
was an Assistant Engineer. The husband remarried and there were two children; there were two
daughters of the first marriage too. The elder daughter was studying engineering and the younger
was in class 12. He filed divorce on the ground of mental cruelty.

ISSUE: The grant of maintenance to the two daughters

RATIO: The court, on appeal, raised the maintenance of Rs 500 p.m. each to Rs 1,000 p.m. each
in case of the daughters, and a sum of Rs 30,000 each was directed to be deposited in the name
of each daughter separately in fixed deposits for two years. A further amount of Rs 1 lakh each
was directed to be paid towards their marriage expenses.

CASE: Geeta Satish Gokarna v Satish Gokarna

FACTS: In this case marriage of the parties was dissolved by mutual consent and as one of the
terms of the consent decree, the wife agreed not to claim any maintenance/alimony from the
husband. However, two years after the decree, she filed an application under section 25 for
permanent alimony at the rate of Rs 25,000 per month from the date of application. The trial
court held that the wife’s application was maintainable despite the consent clause which read
“the petitioner [wife] will not claim any maintenance or alimony in future from the respondent
[husband].” Accordingly, he ordered the husband to pay Rs 2,000 per month as maintenance to
the wife. Both the parties were dissatisfied and appealed—the wife against the quantum and the
husband against the very maintainability of the wife’s claim.

ISSUE: Can a spouse, under a consent decree agree to give up his/her claim for any maintenance
in future and would this operate as a complete bar to any future claim?
RATIO: The appeals were dismissed. The High Court found no material on record to justify
enhancement in favour of the wife, and as to husband’s objection, it held that the power to grant
maintenance has been conferred on the court by the Parliament under the Act and the parties
cannot, by agreement, oust the court’s jurisdiction. In fact, permanent alimony and maintenance
was construed by the court as an integral part of the right to life. According to the court, these
provisions are included “to enable a person unable to maintain herself [or himself] to be
protected … Therefore, any clause in a contract or consent terms providing to the contrary would
be against public policy.”

SECTION 38: CUSTODY OF CHILDREN

Under this section, the court has power to make orders for the custody, maintenance and
education of the minor children in any proceeding for restitution of conjugal rights or judicial
separation or nullity of marriage or divorce.

JUDGEMENT

CASE: Munnodiyil Peravakutty v. Kuniyedath Chalil Velayudhan AIR 1992 Ker 290

FACTS: The mother died by drowning. The maternal grandparents and father were vying for the
custody of the 3-year-old minor girl. The child was attached to the grandparents and had been
living with them for one and a half years. The grandfather was a coconut plucker with modest
income. His age was 76 years while his wife’s age was 65. They lived with their sons: one was
retarded and the other was a divorcee. The father was a sergeant in the Indian Army with a
steady source of income. He lived with his parents who were in their fifties.

RATIO: The court held that the following considerations have to be kept in mind while deciding
custody matters: Capacity to provide food, clothing, shelter, Educational atmosphere, Capacity to
provide good health care, Knowledge of guardian either respect to eating habits, vaccination,
health care and Economic capacity Further, the court held that affluency is not the deciding
factor while deciding custody disputes. The concern for the welfare of the minor is of paramount
importance. All factors need to be balanced. In this case, the child would not be uprooted as she
was of a tender age and the father was more likely to provide a friendly atmosphere.

CASE: Rajnesh v. Neha, 2020 SCC On Line SC 903

FACTS: The Respondent (wife) left the matrimonial home, shortly after the birth of the son. The
wife then filed an application for interim maintenance u/S. 125 Cr.P.C. on behalf of herself and
the minor son. The Family Court vide a detailed Order awarded interim maintenance of
Rs.15,000 per month to the wife and Rs.5,000 per month as interim maintenance for the son from
01.09.2013 to 31.08.2015 and Rs. 10,000 per month from 01.09.2015 onwards till further orders
were passed in the main petition The Appellant (husband) challenged the Order of the Family
Court vide Criminal Writ Petition filed before the Bombay High Court. The High Court
dismissed the Writ Petition and affirmed the Judgment passed by the Family Court. Aggrieved
with the order of the Hight Court, the husband appealed before the Supreme Court.

ISSUE: Enhancement of maintenance for the son

RATIO: SC affirmed the Judgment and order passed by the Family Court, affirmed by the
Bombay High Court, for payment of interim maintenance @ Rs.15,000 p.m. to the wife, and
Rs.10,000 p.m. to the son The husband was directed to pay the entire arrears of maintenance @
Rs.15,000 p.m., within 12 weeks from the date of this Judgment, and continue to comply with
this Order during the pendency of the proceedings u/S. 125 Cr.P.C. before the Family Court If
the husband failed to comply with the aforesaid directions of this Court, it would be open to the
respondents to have the Order enforced u/S.128 Cr.P.C., and take recourse to all other remedies
which are available in accordance with law

SC passed the following directions for:

Issue of overlapping jurisdiction

To overcome the issue of overlapping jurisdiction, and avoid conflicting orders being passed in
different proceedings, SC provided the following directions, so that there is uniformity in the
practice followed by the Family Courts/District Courts/Magistrate Courts throughout the
country:

 where successive claims for maintenance are made by a party under different statutes, the
Court would consider an adjustment or setoff, of the amount awarded in the previous
proceeding/s, while determining whether any further amount is to be awarded in the
subsequent proceeding

 it is made mandatory for the applicant to disclose the previous proceeding and the orders
passed therein, in the subsequent proceeding

 if the order passed in the previous proceeding/s requires any modification or variation, it
would be required to be done in the same proceeding.

Payment of Interim Maintenance

The Affidavit of Disclosure of Assets and Liabilities, shall be filed by both parties in all
maintenance proceedings, including pending proceedings before the concerned Family Court /
District Court / Magistrates Court, as the case may be, throughout the country

Criteria for determining the quantum of maintenance

For determining the quantum of maintenance payable to an applicant, the Court shall take into
account the following factors:
  the status of the parties
 reasonable needs of the wife and dependent children
 Age and employment of the parties
 Right to residence
 Serious disability or ill health
 whether the applicant is educated and professionally qualified
 whether the applicant has any independent source of income
 whether the income is sufficient to enable her to maintain the same standard of living as
she was accustomed to in her matrimonial home
 whether the applicant was employed prior to her marriage; whether she was working
during the subsistence of the marriage
 whether the wife was required to sacrifice her employment opportunities for nurturing the
family, child rearing, and looking after adult members of the family; reasonable costs of
litigation for a non-working wife

The aforesaid factors are however not exhaustive, and the concerned Court may exercise its
discretion to consider any other factor/s which may be necessary or of relevance in the facts and
circumstances of a case

Date from which maintenance is to be awarded

SC made it clear that maintenance in all cases will be awarded from the date of filing the
application for maintenance

Enforcement / Execution of orders of maintenance

For enforcement / execution of orders of maintenance, it was directed that an order or decree of
maintenance may be enforced under:

 Section 28A of the Hindu Marriage Act, 1956

 Section 20(6) of the D.V. Act and
 Section 128 of Cr.P.C., as may be applicable.

The order of maintenance may be enforced as a money decree of a civil court as per the
provisions of the CPC, more particularly Sections 51, 55, 58, 60 read with Order XXI.
SECTION 39: APPEALS FROM DECREES AND ORDERS

This section provides that all decrees passed by court in any proceeding under Chapter V are
appealable in the court to which an appeal lies from the trial court in its ordinary civil
jurisdiction. It also provides that all orders of permanent nature passed by a Court in any
proceeding under sections 37 or 38 are appealable in the court to which an appeal lies from the
trial Court in its ordinary civil jurisdiction. An appeal in respect of costs only is not competent
and a period of limitation of 90 days from the date of the decree or order is to be provided.

SECTION 39A: ENFORCEMENT OF DECREES AND ORDERS

This section provides for the manner in which the decrees and orders passed by a court in the
exercise of its original civil jurisdiction are enforced, in the same manner are to be enforced the
decrees and orders passed by any Court in any proceeding under Chapters V and VI of this Act.

SECTION 40: APPLICATION OF ACT V OF 1908

This section specifically provides for the application of the provisions of the Code of Civil
Procedure, 1908 (Act V of 1908). The application of the Code of Civil Procedure is made subject
to other provisions contained in this Act and subject to rules as may be made by the High Court
under the provisions of this Act.

SECTION 40A: POWER TO TRANSFER PETITIONS IN CERTAIN CASES

This section makes provision, in certain cases for avoiding multiplicity of proceedings and
inconvenience to parties in having proceedings in different courts. When a petition is filed by a
party for judicial separation under section 23 or divorce under section 27 and thereafter the other
party also files a petition under section 23 or under section 27, then if both the petitions had been
filed in the same court, then they shall be tried together. If the petitions have been filed in
different courts, then the petition filed subsequently will be transferred to the court where the
petition is filed first and then both the petitions will be tried together.

JUDGEMENT

CASE: SHRUTI KAUSHAL BISHT v. KAUSHAL R. BISHT

FACTS: Both the parties in the case got married to each other in November, 2015 and started
living separately from January, 2019 as dispute arose between them. Soon after that in May
2019, the husband filed a petition for divorce before Family Court, Pune. Thereafter the wife
(opponent) filed for transfer of the case to Family court, Saket, New Delhi in July followed by
the petition of RCR. The ground she gave for transfer was that she has no independent source of
income and since she isn’t even getting maintenance she is entitled for transfer.

RATIO: In this case the court said that contentions u/s – 21-A(2)(b) of the Hindu Marriage Act,
1955 a petition filed later in point of time should be transferred to the Court in which a petition
under the Act had been filed prior in point of time. Noticing that Sub¬section (2) of Section 21-A
has no independent existence de hors Sub-section (1), The court observed that- “Sub¬Section (1)
of Section 21-A, deals with a situation where one party to a marriage has filed a petition either
for judicial separation under Section 10 or for a decree of divorce under Section 13, before a
District Court having jurisdiction and thereafter the other party to the marriage, files a petition
either under Section 10 or under Section 13, before the same District Court or in a different
District Court in the same State or in a different State.” In the present case, the petition that was
filed by the husband at first was a petition for divorce and hence his case may fit into clause (a)
of Sub-section (1) of section 21-A. Therefore, the Court directed to transfer the divorce petition
from the Family Court, Pune to the Court of Principal Judge, Family Court, Saket, New Delhi
and also directed that the case shall be tried together with the wife’s petition under Section 9 of
HMA.

CASE: Sudha v Vaidyanathan 2001 AIHC 1567 (Mad)

FACTS: The wife filed divorce petition seeking for the transfer for the trial from Chidambaram
to Karikal. Her argument was ever since her living with the respondent was impossible, she
reigned her job at Chidambaram and employed to Karikal and she also has a minor child with
her. His argument was that has very limited resource to fight the litigation and denied the
contention the she was treated as slave and was not given any amount for her personal expense.

ISSUE: Can a jurisdiction of the petition only decided on the bases of sex of the petitioner?

RATIO: It categorically emphasized that the mere fact that the applicant for transfer of case is a
woman is no ground for allowing such transfer. It was observed that transfer petitions in
matrimonial cases have become more or less a routine and usual venture, indulged mostly by
wives, aimed at shifting the jurisdiction to their own place. A stereotyped argument is made to
the effect that since the petitioner is a woman, the jurisdiction should be shifted to her door steps.
The court regretted the fact that transfer applications have been abundantly granted on
sympathetic consideration of plight of women folk. In this case, keeping in view the entire facts
and circumstances including the fact that the child was less than two years old, the wife’s
petition was allowed. The following guidelines have been suggested in this regard:

(I) the applicant is a woman who has custody of the child below the age of five years;

(ii) travel is difficult for the applicant because of illness;

(iii) the opposite party has no objection to the transfer;

(iv) the opposite party also resides in the place where transfer is sought;

(v) where joint trial of proceedings in two places is sought for, it would be decided on the basis
of date of filing the petition and the petition filed subsequently, will be transferred to the place
where the earlier petition has been filed;
(vi) in case of application by the wife, there is evidence that she has been subjected to physical
torture or harassment at the husband’s place;

(vii) if none of these nor any other justifiable reason is available for transfer, then the person
seeking transfer should be ready to pay the incidental expenses like travelling, stay etc.

SECTION 40B: SPECIAL PROVISION RELATING TO TRIAL AND DISPOSAL OF

PETITIONS UNDER THE ACT

This section requires the court as far as practicable to hear from day-to-day and dispose of every
petition within six months from the service of the petition on the respondent. An appeal is to be
disposed of within three months of the service of the notice of appeal on the respondent.

SECTION 40C: DOCUMENTARY EVIDENCE

This section provides for admissibility in evidence of any document which would not have been
otherwise admissible for want of stamp or registration.

SECTION 41: POWER OF THE HIGH COURT TO MAKE RULES REGULATING

PROCEDURE

Under this section the High Court has given powers to make rules consistent with the provisions
contained in this Act and the Code of Civil Procedure, 1908 (V of 1908), as it may consider
expedient for the purpose of carrying into effect the provisions of Chapters V, VI and VII. Such
rules should also provide for the petitioner of the adulterer as a co-respondent on a petition for
divorce on the ground of adultery, and the circumstances in which the petitioner may be excused
from doing so, the awarding of damages, the intervention in any proceeding under Chapter V or
Chapter VI by any person not already a party thereto, the form and contents of petitions for
nullity of marriage or for divorce and the payment of costs incurred by parties to such petitions
and any other matter for which no provision or no sufficient provision is made in this Act.

CHAPTER 8

MISCELLANEOUS

SECTION 42: SAVINGS

This section states that this Act does not apply in two matters first validity of marriage not
solemnized under its provisions and mode of marriage.

SCETION 43: PENALTY ON MARRIED PERSON MARRYING AGAIN UNDER THIS ACT

This section states that one of the conditions for a valid marriage under the Act is that neither
party has a spouse living at the time of solemnization of marriage under the Act. This section
further provides that a person who is at the time married, procures a marriage of himself or
herself to be solemnized under this Act, becomes guilty of offence of marrying again during the
lifetime of husband or wife under section 494 of the Indian Penal Code

SECTION 44: PUNISHMENT OF BIGAMY

This section provides for the same consequences as section 43 with regard to a person whose
marriage is solemnized under the Act and thereafter during the lifetime of his or her wife or
husband purports to contract any other marriage. The person is punishable under sections 494
and 495 of the Indian Penal Code.

SECTION 45: PENALTY FOR SIGNING FALSE DECLARATION OR CERTIFICATE

This section provides that a person is punishable under Section 199 of the Indian Penal Code if
he gave any false evidence.

SECTION 46: PENALTY FOR WRONFUL ACTION OF MARRIAGE OFFICER

This section provides that any marriage officer is liable if he knowingly and willfully solemnizes
a marriage under this act and shall be punishable with simple imprisonment for a term which
may extend to one year, or with fine which may extend to five hundred rupees, or with both.

SECTION 47: MARRIAGE CERTIFICATE BOOK TO BE OPEN TO INSPECTION

This section state that a marriage certificate book is evidence of statement which is admissible
under the court. Hence, it shall be open for inspection.

SECTION 48: TRANSMISSION OF COPIES OF ENTRIES IN MARRIAGE RECORDS

This section confers that the State Governments and the Central Government keep records of all
the cases of the special marriage. Hence the Marriage Officers appointed in different parts of
every State are required to send, at fixed intervals, to the Registrar General of Births, Deaths, and
Marriages of his State a true copy of all the entries made in the Marriage Certificate Book.

SECTION 49: CORRECTION OF ERRORS

This provision requires a Marriage Officer to correct any error in the Marriage Certificate Book
within one month and in the presence of the persons married, or, in case of their death or
absence, in the presence of two other credible witnesses. The copy of such entry should be sent
to o the Registrar General or other authority.

SECTION 50: POWER TO MAKE RULES

Unser this section the central government can make rules in case of officers of the Central
Government and rules shall came into force after it is made before each house of parliament,
while it is in session for a total period of 30 days which may be comprised in one session or in
two or more successive session and both the houses have agreed with the notification. The state
government can make rule particularly the duties and powers of Marriage Officers, manner and
procedure in which a Marriage Officer may hold inquiries, the form and manner in which any
books required by or under this Act shall be maintained, the fees that may be levied for the
performance of any duty imposed upon a Marriage Officer, the manner in which public notice
shall be given under section 16, the form in which, and the intervals within which, copies of
entries in the Marriage Certificate Book shall be sent in pursuance of section 48, any other matter
which may be or requires to be prescribed.

SECTION 51: REPEALS AND SAVING

This section confers that a marriage solemnized under repealed Special Marriage Act of 1872 is
deemed to have been solemnized under this Act, divorce proceedings in respect of such marriage
are governed by this Act.