ANOMALIES OF HINDU MARRIAGE ACT

INTRODUCTION

In India marriage refers to a sacrament and an indissoluble union between two persons. The writings of the
smiritikarans and the commentators had settled the Hindu Law of Marriage until the interference by the
British Raj making legislative changes.

RESTITUTION OF CONJUGAL RIGHTS

1According to section 9 where a spouse withdraws from the society of the other without reasonable cause,
then the party in distress may apply to the district court for a decree of restitution of conjugal rights. The
truth of the statement made is checked by the court, the validity of the reasons tendered, and also to whether
there are any other grounds to reject the application. A decree is given if it finds the above answers

satisfactory. It will not issue a decree for restitution for a reason of incurable disease of the spouse.

Scope of the decree: The decree given by the court is mere; It is directive to the parties to realize their duties
or responsibilities and to live together.

The theory for restitution is that both husband and wife are entitled to society for each other. There was no
remedy in case a spouse did not oblige under this. England brought this through the court to enforce by a
decree and force the spouse to return to the other. The District Court gets jurisdiction by this section. With
the

Act of 1976, the burden of showing the reason is on the spouse who has withdrawn from the company of the
other.

JUDICIAL SEPARATION

2Section 10 of the Hindu Marriage Act provides for Divorce or Judicial Separation. The 1976 Amendment
has made drastic changes in the basis for judicial separation are the same as for divorce. Previously, there
was a different basis.

The petition should be presented to the District Judge praying for a decree for judicial separation where
grounds must be set out. Here also there are two additional grounds for the wife as in the case of a petition
for divorce. Here the court gets an extraordinary power. A petition may be made for marriage solemnized
before or after the Act. Restitution of Conjugal rights is opposed by this remedy. In case of restitution, the
side seeks a direction to force the other spouse to resume cohabitation but in case of judicial separation, the
side seeks permission to separate free from the other. The marriage is not broken in either case. Divorce
according to the Hindu Marriage Act 1955 and the Amendment Act of 1976 remains the last desperate
option.
The aggrieved party may apply to the Court. The side must establish and prove any one of the grounds stated
in the Act to obtain a divorce. There are eleven grounds. Also, the wife has four special grounds for divorce.
The court may conduct in-camera proceedings. With the proving of case on statutory grounds the court can
give a decree.

Grounds:

i) Adultery

ii) Cruelty

iii) Desertion

iv) Conversion

v) Unsoundness of mind

vi) Leprosy

vii) Venereal disease

viii) Renunciation

ix) Non-cohabitation

x) Disappearance

xi) No restitution

xii) Special grounds/conditions for a wife:

a) Rape, sodomy, or bestiality of the husband.

b) Remarriage by the husband.

c) If the wife has obtained a decree for maintenance provided since the date of the decree there is no
cohabitation for one year.

d) If the wife is married before 15 years of age, and if she repudiates before attaining 18 years, she may file
a petition for divorce.NO PETITION FOR DIVORCE TO BE PRESENTED WITHIN ONE YEAR OF
MARRIAGE - According to section 14.

CONCLUSION

Hindu Marriage act is a partly conservationist and partly liberal considering the ways it formulates a
marriage in a typical Hindu marriage of an Indian society. Apart from that it gives a Judicial Separation as
an option for certain cases as described. The sections allows both the parties for a Legal and consensual
binding to a marriage and a separation termed Divorce as well.