DIVORCE AND MATRIMONIAL REMEDIES

FAMILY LAW – II

BY
MOHAMMAD HASNAIN
TH
5 SEM., B.A.,LL.B(HONS) S/F

TO
PROF. KAHKASHAN Y. DANYAL

FACULTY OF LAW,
JAMIA MILLIA ISLAMIA
 DIVORCE AND MATRIMONIAL REMEDIES

ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to my teacher Dr. Kahkashan Y. Danyal
who gave me the golden opportunity to do this wonderful project on the topic Divorce and
Matrimonial Remedies. Which also helped me in doing a lot of Research and i came to
know about so many new things I am really thankful to them.

Secondly I would also like to thank my friends who helped me a lot in finalizing this project
within the limited time frame.

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Contents

DIVORCE AND MATRIMONIAL REMEDIES OF HINDU MARRIAGE ACT, 1955 ................. 4

INTRODUCTION .......................................................................................................................... 5

Who is Hindu? From where the term Hindu has been derived?........................................................ 7

Restitution of Conjugal Rights: ....................................................................................................... 9

Judicial separation: ....................................................................................................................... 10

Void marriage: ............................................................................................................................. 11

Voidable marriage: ....................................................................................................................... 12

Divorce: ....................................................................................................................................... 14

Ground of Divorce for women alone :........................................................................................... 15

Conclusion: .................................................................................................................................. 20

Bibliography ................................................................................................................................ 21

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DIVORCE AND MATRIMONIAL REMEDIES OF HINDU

MARRIAGE ACT, 1955 ABSTRACT

India is a cosmopolitan country. It allows each citizen to be governed under

personal law in accordance to their religious views. This is extended to all of the personal
laws in the matter of marriage and divorce.

The Hindu marriage act was enforced by parliament in 1955 to amend and to codify
marriage laws between Hindus and also for regulating the institution of marriage
(including conditions regarding invalidity and validity of marriage), other aspects of
personal life among Hinduisms is also regulated the applicability of such in wider Indian
society.

Guidance is provided by the Hindu marriage act for Hindus to be in a systematic marriage
bond. It gives a proper definition to marriage, all the rights of both the brides and grooms
and a cover to their children’s and family members so that they don’t have to suffer
because of their personal issues.

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INTRODUCTION

All the laws of our India were divided into two parts i.e. personal law and territorial
law. In personal law all the law related to family affairs, i.e. divorce, marriage,
succession etc. comes and in territorial or country law all the laws which are within the
territory of our India except the family affairs they all come into this.
What is family and why we need this?

The term family is derived from the Latin word i.e. “familia” which means a group of
people. So, when two or more people comes together and form some specific kind of
relationship in between them like husband and wife and started sharing common ancestors
then that will be referred as a family.

Family is one of the most important thing for every individual, as family is needed for the
pro creation of the social status as well as to share our emotions and feelings with them
because it is not possible to share each and everything with others like relative, friends etc.
Types of family: -

1. Patriarchal family: - In this the authorities lies mainly on the hand of male member
i.e. on the hand of the father.

2. Matriarchal family: - In this the authorities lies mainly on the hand of female
member .i.e. on the hand of the mother.

3. Patrilocal family: - In this the family lives in the house of the male member. I.e.
in the house of the father.

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4. Matrilocal family: - In this the family lives in the house of the female member. I.e.
in the house of the mother.

5. Patrilineal family: - In this the inheritance were traced out from the side of male
member.

6. Matrilineal family: - In this the inheritance were traced out from the side of
female member. I.e. from the side of the mother.

7. Joint family: - In this more than two generation of people live together in
one roof sharing common economic, social and religious regulations it can be
from any side.

8. i.e. either from paternal line or maternal line. Nuclear family: - In this two or less
than two generation of people live together in one roof and sharing common
economic, social and religious regulations. I.e. father, mother and their children

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Who is Hindu? From where the term Hindu has been derived?

The term Hindu is derived from the Greek word i.e. “Indoi”. The Greek used to
call the inhabitance of Indus valley as Indoi.

All the person will consider as a Hindu if they were falling under the below points: -

1. “Any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists,
jains

or Sikhs by religion;

2. Any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist,

jain or Sikh by religion and who is brought up as a member of the tribe,
community, group or family to which such parent belongs or belonged; and
3. Any person who is a converts or re-convert to Hindu, Buddhist, Jain or Sikh religion”.

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What is marriage under Hindu law?

Marriage is a state when two opposite sex person i.e. Boy and girl wants to marry
according to the procedure of all rites and virtues of the marriage with their full consent
and if that procedure were valid under the Hindu marriage act 1955 than that will be
consider as a legal marriage.
Hindu marriage act was enacted by parliament in 1955 to amend and codify the law
of the Hindus. This act provides guidance for a Hindu people about the meaning of
marriage, how to be in a systematic bond, about cohabiting rights for both husband
and wife, about safety of the family and children so that any type of issues or difficulties
do not arise in between them.

Applicability of the marriage: -

According to Section 2 of the Hindu marriage Act Except the state of Jammu and
Kashmir, Hindu marriage act 1955 is applicable to all Hindus (Buddhist, Jain or
Sikh) who were permanent resident in India .Hindu can be of any type either
Hindu by birth or Hindu by conversion this act will be applicable on them.

Conditions for marriage: -

2 PROF. G.C.V. SUBBA RAO’S of Family law

10 edition,p.148,shri J.D. GOGIA publication

in India, th

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Restitution of Conjugal Rights: -

Section 9 of the Hindu marriage 1955, talks about the conjugal rights in this it simply
means that when any of one the spouse leaves the another one from the matrimonial
society without giving the reasonable excuse, then in this the deserted spouse can file a
petition in the district court for the restitution of the conjugal rights.

Krishnamurthy vs. Syamanthakamani(AIR 1977) : -In this the court said that, the
person who has withdraw the spouse from the society he/she has only has to face the
burden of proving and give the reasonable excuse to the court that why he/she has done
that.

Parbia Ram vs. Thopali 3: - In this case the court said that, the parties were not legally
married or the marriage was not subsisting at the time of the petition, so the question of
granting restitution of conjugal rights does not arise.

Ranjan Vinod Kumar KujIwal vs. V.K. Kujiwal4: -In this the court said that, the wife
itself said that her marriage was not valid in the eyes of law so the question of
granting a decree of restitution of conjugal rights was not maintainable.

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Judicial separation: -

Section 10 of the Hindu marriage act 1955, talks about the judicial separation, and it
simply means suspension of conjugal rights for some time. I.e. one year.

Section 10(1) of the Hindu marriage act 1955, said that whether the marriage of the
party was solemnized before or after this act, may present the decree of judicial
separation on any ground which were specified under sub-section (1) of section 13, and
in case of wife they can also file under any ground which were specified under sub-
section (2) of the section 13.

Shyam chand vs. janki5: - In this case husband claim for judicial separation on the
ground of desertion but all the evidence which was shown to the court from that basis
court came to the conclusion that husband has the malafide intension for filing the case
that is why court did not grant the judicial separation.

Shankuntala vs. Om prakash6: - In this case court said that for filing the case
of judicial separation or divorce there must be the entire gap of two years before preceding
the date of the case.

3 1966 AIR 644,1966 SCR (1)430

4 AIR 1977 Bom 300,1998(1) BomCR 268, II(1997)DMC 523

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Void marriage: -

Section 11 of the Hindu marriage act talks about the void marriage, and according to this
act the marriage will be consider as void if the following below points gets infringed: -

1. “Neither party has a spouse living at the time of marriage. [sec. 5 (i)].

2. The parties are not sapindas. [sec.5 (ii)].

3. The parties are not within degree of prohibited relationship. [sec. (iv)].”

Umashankar vs. Radhadevi8 and in Trilochand vs. Om Prakash9 - Court said that
second wife can file a suit for perpetual injunction restraining the husband from
contracting a second marriage, under sec 9 of C.P.C read with section 54 of specific Relief
Act,1963.

5 AIR 1966 HP 70, 1966 CriL J 1438

6 AIR 1983 Delhi 53, 19 (1981) DLT 64

7 PROF. G.C.V. SUBBA RAO’S OF Family Law in India,10th Edition,P.220, J.D. GOGIA

publication

8 15 september,1966

9 AIR 1983 Delhi 53, 19 (1981) DLT 64

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Malhotra vs. Union Of India10: - In this case court said that, if the first marriage of the
man was in the subsistence, then he can go for the second marriage and that second
marriage will consider as valid.

Voidable marriage: -

Section 12 of the Hindu marriage act, 1955 talks about voidable marriage, the term voidable
marriage means in this
“one of the party can be avoided the option of one of the parties of the marriage. It remains
valid for all practical purpose until and unless its validity is questioned”.

Section 12(1) (b) says that “any marriage shall be voidable and may be annulled if the
marriage is in contravention of the condition specified in section 5 (ii) of the act.”

Shewanti vs. Babrao (AIR 1971): - In this court said that, incapacity owing to congenital
deformities to beget/conceive children would not amount to impotency.

Babai Panmato vs. R.A. singh (AIR 1968): - In this case due to the misrepresentation of
the fact that a 16 year old girl marry with 60 year old man by under the believe that he
was 25 year old so in this court grant the divorce because the consent of the girl was taken
fraudly.

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Divorce: -

Section 13 of the Hindu marriage act 1955, talks about divorce and the term divorce refer to the
dissolution of the marriage or ending the marriage permanently, and after the dissolution of the
marriage the parties will become single and they were also free to marry again.
Grounds of divorce for both men and women:-

1. Adultery 13 (i): - If the person is maintaining the sexual relationship with another
person

i.e. Other than his or her spouse.

2. Cruelty 13(I)(a): - If the person mentally or physically torture him or her for a
continuous period of time i.e. not less than two years.
3. Conversion to another religion 13(ii): - if the person is changing or converting
into another religion.
4. Unsound mind 13 (iii): - if the person is not mentally stable.

5. Disease 13 (v): - if the person is suffering from any incurable disease.

6. Presumption of death: - if the person is not heard from more than 7 years.

7. Desertion 13(i) (b): - if the person is deserted not less than 2 years.

8. No resumption of cohabitation after a decree of judicial separation 13 (1A) (i): - it

shall not be less than one year.
9. Renunciation of world 13 (vi): - if the person has renounced the world by entering
any religious order.
Leprosy 13(iv): - if the person is suffering from virulent and incurable leprosy.

10 4 October,2005

11 PROF.G.C.V. SUBBA RA

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Ground of Divorce for women alone : -

1. Bigamy 13(2) (i): - if the person have more than one wife in a same particular
period of time.

2. Sexual offences i.e. Rape, sodomy, bestiality 13(2) (ii): - if the person is guilty for
sexual offence viz., rape, sodomy, bestiality etc.

3. Non- resumption of marriage after decree of maintenance 13 (2) (iii) : -

In this the husband awarding maintenance to the wife notwithstanding:
She was living apart.
Cohabitation between the parties has not done more than one year.

4. Repudiation of marriage/option of puberty 13(2) (iv): - whether the marriage

was solemnized before or after the act, if the woman was below the age of 15
years. It is just and reasonable if seeks this benefit even after attaining 18 years, if
the marriage is not consummated.

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Srivastava v. Srivastava1- In this the husband has already the knowledge about the wife
being guilty for the cruelty of adultery but still inspite of that husband cohabitate with the
wife so, the court did not grant the divorce.

Shobhadevi v. Bhima2- In this case, due to the intemperate and violent behavior of
husband after drinking consider as cruelty and by this ground court her grant divorce.

N.Sreepadachar v. Vasantha3-In this case, wife always abuse and insult her husband
in front of the public that was consider as cruelty and court grant him divorce.

1
AIR 1987 ALL 783.
2
AIR 1975 ORI 180.
3
AIR 1970 KAR 690.
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BARS TO MATRIMONIAL REMEDIES

‘ B a r s t o ma t r i m o n i a l r e m e d i e s ’ i s a p a r t i c u l a r a s p e c t o f f a u lt t h e o r y o f
divorce. This theory establishes the dichotomy of guilt or innocence. Even when
the respondent is guilty of a matrimonial offence, the petitioner will not be granted divorce if
it is established that he is not an innocent party or on his he had done something disentitling
from the remedies. Thus, the burden of proof is on the petitioner. There are mainly eight bars
to matrimonial remedies. They are as follows:

1. D o c t r i n e o f s t r i c t p r o o f.

2. Taking advantage of one’s own wrong or disability.

3. A c c e s s o r y

4. C o n n i v a n c e .

5. C o n d o n a t i o n .

6. C o l l u s i o n .

7. D e l a y .

8. A n y o t he r l e g a l g r o u n d

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A decree passed in disregard of the bars is a nullity. Some of the bars, such
as collusion and delay apply to all matrimonial remedies, whereas someapplied to
only divorce. Most of these bars are based on the maxim, “one who comes to
equity must come with clean hands.” The second, third and fourth bars mentioned
above are laid down on basis of this maxim.

All these bars are absolute bars under Indian personal laws, unlike in England where there is a
dist inct ion between absolute bars and discretionary bars. T h e y h a v e b e e n
enacted in every matrimonial law except Muslim
matrimonial law, though not uniformly. The bars almost the same under the Hindi Marriage
Act and the Special marriage Act as provided in Section 34. According to section 35 of
the Parsi Marriage and Divorce Act and section 12 of the Divorce act, the main bars are
the same but under the latter, bars apply only to the matrimonial remedies of divorce.

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Doctrine of Strict Proof (Burden and Standard of Proof)

The doctrine of strict proof is recognized under all the matrimonial laws. Just like in an
ordinary civil case proceeding, in matrimonial cases also there are three situations which
usually arises –

i. The defendant appears in the courts and contents the claim of the plaintiff.

ii. The defendant, even after the summons, does not appear before the court and the
court, therefore, proceeds in his absence.

iii. The defendant puts up appearance in the court and admits the claim of the plaintiff.

In a normal civil proceeding, it is only in the first situation that the plaintiff has to establish
his case by adducing oral and documentary evidence, as may be necessary and the case will
be decided accordingly. However, in a matrimonial proceeding, the petitioner must
establish the ground of matrimonial remedies beyond all reasonable doubts in all the three
situations. Mukherjee J. summed up the position thus-

“An action for divorce, a civil proceeding without doubt, becomes in a trice a criminal
proceeding, all because of the application of the yardstick of proof beyond reasonable
doubt, which has in fact been the standard of proof in a criminal case.”

No petition can be decreed merely on basis of the admission of parties.

In Hirakali v. Avasthy4, the court refused to recognize a consent decree for judicial
separation since it felt it was violative of the requirement of doctrine of strict proof enacted
in section 23(1). The Supreme Court in its early cases had expressed the view that the
petitioner must prove beyond all reasonable doubts.

However, in Dastane v. Dastane5, it was decided that the standard of proof need not be of
beyond all reasonable doubts; guilt may be proved my balance of probabilities.

4
AIR 1971 ALL 201.
5
AIR 1975 SC 1534.
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Taking Advantage of one’s own Wrong or Disability

This bar has not been enacted in all Indian personal laws. It has been enacted only in the
Hindu Marriage act 5. Even though the other statute does not mention it, it is submitted it will
be included in the residuary clause which these statutes contain. Under the Hindu Marriage
act this bar applies to all matrimonial causes but a petition for annulment of marriage on the
grounds of incapacity to give consent. This bar lays down that if the petitioner is, directly or
indirectly, responsible for respondent’s wrong, the petition cannot be granted. In the case of
Ba Mani v. Jayantilal6, it was decided that the “wrong” should be connected with the guilt of
the respondent. The facts of the case are as follows –

“The husband filed a petition for divorce under Section 13(1A) (i), Hindu Marriage Act.
Earlier the wife was granted a decree of judicial separation on the ground of husband’s
adultery. The husband continued to live in adultery even after the decree.”

The court held that this amounted to wrong within the meaning of section 23(1) (a). It was
submitted that this decision is not correct. For the application of this clause, it is necessary
that the petitioner’s wrong or disability should have some connection or co-relationship with
respondent’s offence.

In the case of Mohal Lal v. Mohanbai7, it is seen that the respondent cannot be allowed to
plead that wife’s refusal to live with him was the cause of his second marriage. A petition in a
matrimonial cause can be granted only if the petitioner comes to the court with clean hands.
Some courts have taken the view, that if petitioner has made no effort at a reconciliation it
does not amount to wrong. The Indian Divorce Act lays down that a petitioner may be refused
a decree of divorce if the court finds that he or she has been, during the marriage, guilty of
adultery or cruelty towards the respondent or of deserting her or him and of willfully
separating from her or him and such conduct has conducted to the adultery of the respondent.

6
AIR 1979 GUJ 29.
7
AIR 1978 RAJ 21.
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Conclusion: -

Hindu marriage is considered as a sacramental. According to the Manu16, “husband and

wife are united to each other not merely in this life but even after the death, in the other
world. The rule is that, once is a maiden given in marriage. A true wife must preserve her
chastity as much after as before her husband’s death.”

Hindu marriage act, 1955 do not prescribed any specific form of marriage it just
simply lays down some criteria for a valid marriage. All the conditions and criteria which
were mentioned under the old Hindu law were considered as very strict in nature.
But after the commencement of the Hindu marriage act 1955 it modifies all the
conditions and criteria of the old law and also make the law more liberalized. According
to the new law, it gave the permission for marrying in different caste and community
and it also abolished all the restrictions which were made on inter-caste, sagotra, inter-
sub-caste and sapravara marriages. According to the new law, any two different sex
person who were Hindu by religion and fulfilling all the term and conditions of this act
then they can do the marriage.

Thus, the new act of 1955 modifies the old Hindu law of marriage and makes the
procedure and performance of the marriage more easier and this is the welcomed
changed which is happily accepted by the present society.

13 SCC 285:(AIR 1986 SC 1043)

14 AIR 1975 Ori 180

15 AIR 1970 Kant 232, AIR 1970 Kant 232, ILR 1969 KAR 690

16 Manu smriti, V, 160-161;Dr. Paras Diwan on Hindu Law, 2nd edn. P.547, Orient Publishing

Company.

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BIBLIOGRAPHY

 BOOKS

 Paras Diwan, Family law of marriage and divorce in India, Allahabad Law
Agency.

 Subba Rao, G.C.V., Family Law in India, S. Gogia and Co.

 Tahir Mahmood, Muslim Law,Universal Law Publishing co. New Delhi

 WEBSITES

 www.legalserviceindia.com

 www.timesofindia.com

 www.indiankanoon.com

 www.lawctopus.com

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