CHAPTER - 2 MARRIAGE AND DIVORCE

Updated: Aug 21, 2020

Hindu Marriage :

a) Introduction : Marriage, according to Ancient Hindu Law , is a samskara or a sacrament and also an indissoluble union. The writings of the Smritikaras and the commentators, had settled Hindu Law of Marriage until the Britishers interfered by making certain changes. " by legislation.


b) Legislation : The first Act, which introduced some changes,was the Hindu Women's Remarriage Act 1856. This was followed by the Special Marriage Act 1872. The Hindu Marriage Disabilities Removal Act 1946 validated sagotra and sapravara marriages. Many Regional Acts have also been made. After independence, under the 'Hindu Code Bill', a number of changes were contemplated. Four major Acts were made. Concerning marriage, the Hindu Marriage Act 1955 was made. This was "amended by the Marriage Law Amendment Act 1976.


Ch. 2.2. Conditions of a Valid Marriage :

S.5 of the Hindu Marriage Act enumerates the various conditions of a valid Hindu Marriage.

They are as follows :

i) Parties must be Hindus :


The marriage may be solemnised between two Hindus. The word 'Hindu' is defined broadly by Sn. 2. Accordingly, Hindus by religion. Virashaivas, Lingayaths, Brahmo Arya or Prarthana

Samagists; Sikhs, Buddhists and Jains are within the definition. However, the Act does not apply to : Muslims, Christians, Jews and Parsis, by religion. Hence, if one of the parties is not a Hindu, this Act will not apply. Special Marriage Act applies. Thus, the Act has provided for inter-caste and sub-caste marriages.Further, persons who are deemed Hindus as per the 'Act' may also marry. Under Hindu Marriage Disabilities Removal Act, Hindus having the same gotra or pravara may also marry. Widows may also marry (Act of 1856). These are enabling acts.


ii) No spouse living :

Neither party should have a spouse living at the time of the marriage. Hence only monogamous marriages are recognised and Bigamy under Sn. 494 I.P.C. is punishable. Thus polygamy is abolished.A divorcee may marry after one year of the date of the finaldecree of divorce. If this condition is violated, the marriage becomes void, iii) Unsoundness of mind: If a party to the marriage is incapable of giving consent (at the time of the marriage) due to


i) unsoundness of mind

ii) mental disorder to such an extent as to be unfit for marriage and procreation of children

iii) recurring attacks of insanity or epilepsy, the marriage is voidable. The 1955 Act had provided Idiocy and lunacy as grounds. But 1976 amendment has provided for above tests in respect of the mental incapacity and of its nature at the time of the marriage. If this condition is violated the marriage is voidable. iv) Age of Marriage :


The Act lays down that the age of the bridegroom should be 21 years and that of the bride 18 years. Earlier the 1955 Act had fixed the limits at 18 and 15. If this condition is violated, the parties are liable for punishment(Imprisonment or fine), but the marriage is not void or voidable. v) Prohibited degrees of relationship : The parties to the marriage should not be related within the prohibited degrees of relationship. However, if a custom or usage governing both the parties allows, nen the marriage is valid.


The custom or usage, of course, must he against public policy, e.g. marriage with a niece was held void Raman Gowda V. Shivaji). Persons who come with in the prohibited degrees are mentioned in Sn.3 (g).

a) If one is a lineal ascendant of the other

b) If one was the wife or husband of a lineal ascendant or decedent of the other.

c) If the two are related as brother and sister, uncle and niece, children of two brothers, or of two sisters etc. If this condition is violated the marriage becomes void ab initio and the parties become punishable.


vi) Sapinda Relationship: The parties to the marriage must not be sapindas of each other.

The Act provides a custom or usage, as an exception, if it permits each of theparties, but, this should not be against public policy.Sapinda relationship as understood by Mithakshara andDayabhaga schools is retained by the Act. Sapinda is 3 degrees on mother's side and 5 degrees on the father's side. If this condition is violated, the marriage become void ab initio


vii) Consent by Guardian: This is repealed. The reason is that the age limit of the bride and

the bridegroom is raised to 18 and 21 respectively.


viii) Ceremonies: Sn. 7 provides that the Hindu Marriage is to be solemnised according to the customary rites and ceremonies of either party to the marriage.Where 'saptapadi' is part of the ceremony, the marriage becomes complete and binding when the 7th step is taken by the bride and the bridegroom before the sacred fire. Hence, saptapadi is optional but must be performed if it is par; of the customary rites andceremonies of the parties. In Ram Singh V. Sushila Rai the Supreme Court, declared the marriage as void, as this customary ceremony common to both parties, had not been performed


ix) Registration (optional): Provisions are made to get the Hindu marriage, duly performed as per the rites and ceremonies of parties, registered at the office of the sub-registrar of marriages. Application in prescribed form should lxfiled duly signed by all parties concerned. A certificate of Registrationwill be issued by the Registar if all formalities have been complied with.This is only an enabling provision, to register, after the Hindu marriage is duly performed (Sn. 8).


Ch. 2.3. Void, Voidable marriages :

The Hindu Marriage Act has classified marriages into Valid. Void and Voidable marriages (Conditions of valid marriage are stated above Ch. 1.2. conditions (i) to (viii). Void and Voidable Marriages Void :

i) If an essential requisite of the marriage is violated, the marriage is void ab-initio.

ii) The spouses are not recognised as husband and wife. They do not get the Marital status.Children are considered legitimate, and are entitled to maintenance only. They get no status on coparcener with rights there of. (sn.16).

iii) Either of the spouses may put an application for the annulment of the marriage.

iv) Circumstances : Sn. 11

a) Marriage within the prohibited degrees of relationship, is void ab initio.

(b) Marriage within the sapinda relationship is void ab initio.

e) Marrying a second time when the first wife is living (Bigamous marriage).

d) Non-observance of saptapadi where according to custom it must be observed as part of the customary rites and ceremonies (Ram Singh and Sushila Bai).


Voidable :

i) If there is violation under special circumstances affecting the interests of a spouse.

ii) The spouses, have status as husband and wife until the marriage is declared void, by the court, at the option of the affected party. Hence, the marital status changes, when the court declares the marriage as void.Children are legitimate and have the right to maintenance sn . 16.

iii) Only the affected spouse may prefer an application to set aside the marriage.

iv) Circumstances : Sn. 12

a) Consent obtained by force or fraud. Application should be filed within one year of the force or fraud and the petitioner should not have lived with the other spouse, after the force or discovery of fraud.

b) If the wife is pregnant at the time of the marriage by a person other than the husband the marriage is voidable at the instance of husband. At the time of the marriage, he must be ignorant of the fact, and he must file an application within a year of knowing the facts. Leading cases: (Supreme Court) M.M. Nanavati V. Sushila; Shivaguru V. Saroja. The facts were proved in both these cases. Divorce wasgranted.

c) Husband impotent and marriage not consummated. (Lead ing case Yuvaraja Singh V. Yuvarani Kumari).

d) Spouse incapable of giving consent, due to unsoundness of mind and mental disorder.


Ch. 2.4. Restitution of Conjugal Rights (Sn. 9) :

Where a spouse withdraws from the society of the other withoutreasonable cause, the aggrieved party may apply to the District court for a decree of restitution of conjugal rights. The court looks to the truth of the statement made, the validity of the reasons tendered and also to whether there are any other grounds to reject the application. If it finds satisfactory answers to the above, it gives a decree. (Gangamma Vs. Hanumanthappa). If a spouse is suffering from incurable or infectious diseases, the court will not issue a decree for restitution. Scope of the decree : The decree given by the court is merely ;i directive to the parties to realise their duties or responsibilities and to live together. The court can only lead a horse to water, but cannot make it drink! Restitution is based on the theory that both husband and wife are entitled to the society of each other. There was no remedy in case

a spouse did not oblige undar this. This was introduced in England through the Court to enforce by a decree and force the spouse to return to the other. Since the decision of Jadunath Bose V. Shamsonisa Begam, the Courts have taken jurisdiction in India. This section gives this Jurisdiction to the District Court. With amendment of 1976,the burden of showing the reason is on the spouse who has withdrawn from the company of the other.

Judicial Separation :

Sn. 10 of the Hindu Marriage Act provides for Judicial separation.

The Amendment of 1976 has made drastic changes in as much15 as the grounds for judicial separation are the same as for divorce. Earlier, there were different grounds. Petition : The petition should he presented to the District Judge praying for a decree for judicial separation. The grounds must be set out. Here also there are two additional grounds for the wife as in the case of petition for divorce. When the decree is passed, it shall no longer be obligatory for the petitioner to cohabit with the other spouse. Such a decree may he rescinded if the court is satisfied with the truth of the statements madeby a party or by both. This is an extraordinary power of the Court. A petition may be made for marriage solemnised before or after the Act. This remedy is opposed to restitution of Conjugal rights. In restitution, the party seeks a direction from the court to force the other spouse to resume cohabitation but in judicial separation the party seeks permission to secure freedom from the other. The marriage tie is not broken in either case.


Ch. 2.6. Grounds for Judicial Separation :

Briefly the Grounds are :

1. Adultery.

2. Cruelty.

3. Desertion for 2 years.

4. Conversion.

5. Unsoundness of mind or mental disorder.

6. Virulent leprosy.

7. Venereal diseases in a communicable form.

8. Renunciation (sanyasa).

9 Disappearance for 7 years.


Additional Grounds to the wife (Bigamy) to get judicial separation :

i) Husband marrying again.

ii) Husband guilty of rape, sodomy or bestiality.

iii) Decree of maintenance by Court to wife and non cohabitation for one year.

iv) Wife marrying before 15 years of age but repudiating the marriage before attaining 18.

(For details and explanation with cases refer grounds for divorce).


Ch. 2.7. Grounds for divorce. Sn. 13.

The last desperate resort of the couple is divorce according to the Hindu Marriage Act 1956 and the Amendment Act of 1976. The aggrieved party may file an applicatiqn to the District Court. The party must establish any one of the grounds stated in this Act to obtain a decree of divorce. There are eleven grounds. In addition, the wife has four special grounds for divorce. Thej court may conduct in camera proceedings. Only on clear proof of aqy one of the statutory grounds, the court may grant a decree for divorce. Grounds:


i) Adultery: The Amendment has omittejd the reason 'living in adultery'. Hence if the wife or husband had, after solemnisation of marriage, sexual intercourse with any other person than the spouse, it will suffice. Adultery is a secret act and hence proof is difficult. Circumstantial

evidence may be established to lead to a fair inference. High standard of proofis required. It must go bevond suspicion. Mere opportunity available to the spouse is not enough.! Mere

letters by paramour will not suffice. (Supreme Court: Chandra Mohini V. Avinash Prasad) The leading case is Russel V. Rusell: Evidence of non-access to the wife, during a period prior to the birth of a child, was no allowed by the House of Lords. The other leading cases are Laxman Vs. Meena.and Pushpadevi v. Radheshyam (1972).


ii) Cruelty : One of the spouses treating the other with cruelty, is a ground for divorce. Cruelty is of two kinds (i) Physical and (ii) Mental: Violence to life, limb or danger to health is physical (Birch V. Birch). In Russel V. Rusell, the House of Lords held that legal cruelty is any conduct which would make marital life physically impossible. Mental Cruelty : Intention of one spouse to inflict cruelty is necessary, though not essential; ill-treatment, attributing unchastity.,

etc. In fact cruelty may be of infinite variety. In Dastane V. Dastane (1975) the Supreme Court laid down the standard of proof and held the court is satisfied when there is a preponderance of probabilities test. Physical injury or mental injury is judged by the court. Poster v. Poster; Gipsy; v. Gipsy ; Poring for prostitution (colemam v.oleman) ill-treating pregnant wife: King v. king, etc


iii) Desertion : For two years, before presenting the applicaon.


The leading cases are :

i) Bipinchandra V. Prabhavati ii) Tickler V Tickler iii) Lakshman V. Meena wife wilfully deserting husband iv) Brewer V. Brewer. For desertion two essentials are to be proved.

1) The factum of separation

2) Animus deserendi i.e., intention to bring cohabitation perma nently to an end without the consent of the other party. Desertion is a matter of inference to be drawn from the various

facts and circumstances.

Desertion commences when the fact of separation and .animus deserendi co-exist. But it is not necessary that they should commence at the same time. The De facto separation may have commenced without the necessary animus or it may be that the separation and the animus deserendi coincide in point of time. Desertion means the desertion of the petitioner by the other spouse to the marriage without reasonable cause and without the consent or against the wish of that party. This also includes the wilful neglect of the petitioner by the other spouse. In its essence desertion means the intentional personal forsaking and abandonment of one spouse by the other (Bipinchandra Vs. Prabhavati). It is the total repudiation of the obligation of the marriage. Devi singh v. Susheela and Jyotichandra v. Meera Guha.


iv) Conversion : If the other spouse has ceased to be a Hindu by conversion to another religion, the affected party may file a petition for divorce. Conversion to Christian, Muslim or Jewish religion is a ground for divorce. Of course, a party cannot take advantage of his own conversion to claim divorce.


v) Unsoundness of mind : Incurable unsoundness of mind or continuous mental disorder of such dimension that the other spouse cannot reasonably live together. Mental disorder means mental illness, undeveloped mind, Psychopathic


disorder or Schizophenia. The disorder shows abnormal aggressive or seriously irresponsible conduct of the person.


Unsoundness : As per 1976 Amendment unsoundness should be incurable or permanent in nature, Banidevi v. banerji: wife had incurable unsoundness.If husband did not submit for medical examination, inference can be drawn against him Shanta Devi v. Ramesh Chamda.


vi) Leprosy : It must be virulent and incurable. Under the amendment Act of 1976, no period is fixed. But, the other spouse must be suffering from this disease upto the date of the decision (Padma Rao V. Swaraj Laxmi).


vii) Venereal disease: The other spouse must be suffering from venereal disease in a communicable form. The Amendment has omitted the period of time. The petitioner should not take advantage of this ground by himself communicating this disease to the other spouse.


viii) Renunciation : There must be a genuine renunciation to enter the religious order, Sanyasa. This is civil death when there is complete and final withdrawal from all wordly affairs, hence, the other spouse may get the marriage dissolved.


ix) Disappearance : If the other spouse is not heard of for 7 years and above there is a presumption of death and hence, this is a ground for divorce. The burden is on the party asserting that the other spouse has disappeared (Evidence Act).

x) Non cohabitation : If there has been no resumption or cohabitation for one year and above after the decree for judicial separation, then, this can be a ground for divorce.


xi) No restitution : If for one year or above, there is no restitution of conjugal rights it is a ground for divorce.


xii) Special grounds for the wife : In addition to the above grounds, the wife has the following grounds for divorce.

a) Remarriage by husband.

b) Rape, Sodomy or bestiality of the husband.

c) If the wife has obtained a decree for maintenance (S. 125 Cr. P. C.) etc. provided since the date of the decree there is no cohabi tation for one year.

d) If the wife is married before 15 years of age, and if she repu diates before attaining 18 years, she may file a petition for divorce.


Ch. 2 (8) Divorce by Mutual consent:

Sn. 13 (b) provides that any spouse may file a petition for divorce in the District court on the ground.

a) That they are living separately for one year or above.

b) That they have not been able to live together.

c) That they have mutually agreed that the marriage should be dissolved.

Procedure:

(i) After 6 months of filing the application, but before 18 months, (if the parties have not withdrawn the case), the court if satisfied about the statements made, may pass a decree for divorce :


ii) No petition can be filed within one year of the marriage.

Exception : Exceptional hardship of the petitioner is a special circumstance to entertain a petition within one year. The court will issue suitable orders regarding children, if any. The court examines whether there forced is consent fraud or undue influence. No specific reasons, as in case of divorce, under sn 3, need be proved. The court endeavours to reconcile' if not possible, a decree of divorce may be passed. Leading cases Sumatidevi v. Premnath. Ravi shakar v. Sharada. It was held that nothing more than what 13(B) says need be proved before the court. No petition within one year of marriage in entertained except in

exceptional circumstances Meghanath Nayar v. Susheela : Here the court has given examples of exceptional hardship:

Amendment to Sn 13 by adding 13 C D and E to make divorce easier Not yet passed by Parliament.May 2012




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