Marriage under Hindu Law – Hindu Marriage Act HMA 1955

Hindu Marriage Act 1955 Basic Introduction

The Hindu Marriage Act came into force on 18 May 1955. It amends and codifies the law relating to marriage among Hindus.

Hindu Marriage Act HMA Section 2. Application of Act
(1) This Act applies
(a) to any person who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj;
(b) to any person who is a Buddhist, Jaina or Sikh by religion; and
(c) to any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu Law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed.
Explanation. – The following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as the case may be:
(a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion;
(b) any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jaina 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
(c) any person who is a convert or re-convert to the Hindu, Buddhist, Jaina or Sikh religion.
(2) Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall apply to the members of any Scheduled Tribe within the meaning of clause (25) of article 366 of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs.
(3) The expression Hindu in any portion of this Act shall be construed as if it included a person who, though not a Hindu by religion, is, nevertheless, a person to whom this Act applies by virtue of the provisions contained in this section.

Section 2 rules that the Act applies to any person who is a Hindu by religion in any of its forms and developments. Section 4 is of vital importance and gives an overriding effect to the provisions of the Act. It abrogates all the rules of the law of marriage hitherto applicable to Hindus, whether by virtue of any text or rule of Hindu law or any custom or usage having the force of law, in respect of all matters dealt within the Act. The Act also supersedes any other law, contained in any Central or State legislation in force immediately before it came into operation in so far as such legislation is inconsistent with the provisions contained in the Act. Rules relating to matters for which no provision is made are not, however, overridden by the Act. So also, matters affecting marriage and divorce expressly saved from the operation of Act continue to be governed by previous law. Thus, for instance Sec. 29 (4) lays down in terms that:

Nothing contained in this Act shall be deemed to affect the provisions contained in the Special Marriage Act 1954 (43 of 1954), with respect to marriages between Hindus solemnized under that Act, whether before or after the commencement of this Act.

Concept of Marriage and Nature of Marriage

Marriage is the very foundation of a stable and civilized society. Even in uncivilized or tribal societies it is recogniszed in a subtle yet explicit way. Marriage is one of the essential sanskars for every Hindu. Under Hindu Law marriage is a sacrament and not a mere social legal contract. It is not performed for mere emotional gratification but is regarded as part of the life of the soul.

The sacramental marriage has three characteristics-(i) permanent (ii) eternal union (iii) holy union.

According to Manu husband and wife are united to each other not merely in this life but even in the other world after death. Its implication has been that widow remarriage as a rule was not recognized in Hindu Law it was only in exceptional cases woman allowed to abandon her husband and take another.

The modern concept of marriage as a contract is an outcome of industrial revolution, its ideas of liberty and equality. Today it is an established notion of the western family law that marriage in order to be effective must be an agreement voluntarily entered into by both the parties. The consent of parties thus plays an important part in the formation of marriage contract.

HMA Section 5 Conditions for a Hindu marriage. – a marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:
(i) neither party has a spouse living at the time of the marriage;
(ii) at the time of the marriage, neither party
(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or
(b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or
(c) has been subject to recurrent attacks of insanity
(iii) the bridegroom has completed the age of [twenty-one years] and the bride, the age of [eighteen years] at the time of the marriage;
(iv) the parties are not within the degrees of prohibited relationship, unless the custom or usage governing each of them permits of a marriage between the two;
(v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two

The Hindu Marriage Act 1955 has reformed Hindu Law of marriage. Thus the person married may be a minor or unsound mind. If the marriage is duly solemnized is valid marriage (sec. 5). Under contract Act the contract of a minor or of a person of unsound mind is void. U/s 12 of HMA marriage is voidable if consent was obtained by force or fraud but it does not lay down that if the consent was not obtained the marriage is voidable. The marriage will continue to remain valid.

What is Marriage Sacrament or contract ?

By recognition of divorce and widow re-marriage the first two characteristics of sacramental marriage have been destroyed. However the third characteristic is still retained. In most of the Hindu marriages a

sacred or religious ceremony is still necessary. But third characteristics of the sacrament marriage is of least importance.

Conclusion: The Hindu marriage has not remained a sacramental marriage and also not become a contract though it has semblance of both. It has a semblance of a contract as consent is of some importance. It has a semblance of a sacramental ceremony is still necessary. However unlike Muslim Law marriage a Hindu marriage does not have the contractual procedural form ie why it is not proper to call a Hindu Marriage a contract. It can be called a socio-religious act.

Ceremonies and Registraion of marriage

Section 7: Ceremonies for a Hindu Marriage:-If there are certain religious ceremonies of marriage, the observance of such ceremonies can not overlooked by the application of the doctrine of factum valet. Sub section (1) of section 7 lays down that a Hindu marriage may be solemnized in accordance with the rites and ceremonies of either party to it. The word “may” has been used here in the sense of “must”.

Sub-section (2)—where such rites and ceremonies includes the saptapadi (that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes binding when the seventh step is taken.

Hindu Marriage Act HMA Section 8: Registration of Hindu marriages

The section enacts that the state government may make rules relating to the registration of marriages between two Hindus solemnised in the ceremonial form. The obvious and immeasurable advantage of registration is that it facilitates proof of the factum of marriage in dispute cases. The Act does not lay down any rules relating to registration but merely empowers the state government to make rules providing for registration of Hindu marriages. It also empowers the state government in its discretion to provide that such registration shall be compulsory. The rules so framed must not in any manner be contrary to any provision of the Act and if they contravene any such provision, they would be ultra vires and of no binding effect.

In Smt. Seema v. Ashwani Kumar supreme court ordered compulsory registration of marriage irrespective of religion. It also gave the necessary directions to central as well as state Governments to provide sufficient law so as to register compulsorily all the marriages.

The validity of any Hindu marriage shall in no way be affected by the omission to make the entry in the marriage register. It may be noted that registration of marriage under this section simply provides for the proof of a lawfully solemnised Hindu-marriage. If there is no marriage, the registration certificate as such can not validate the marriage (Shaji v. Gopinath AIR 1995).

Hindu Marriage Act HMA Section 5 – Conditions for a valid marriage

1. Monogamy sec 5(i) :– Monogamy means that one is permitted to have only one wife or husband at a time. The condition laid down in this clause for a valid marriage is one of those conditions, contravention of which would make the marriage void u/s 11 of the Act. Section 17 would futher render the offending pary liable for prosecution u/s 494 and 495 IPC.

In Sarla Mudgal v. Union of India (1995, Supreme Court). The bigamy was in question. The husband already married under Hindu Law embraced Islam and Solemnised a second marriage under Muslim Law. The Supreme Court held that the second marriage would be invalid beaucse unless and until the first marriage is dissolved by a decree under Hindu Marriage Act, the second marriage during subsistence of the first one would be in violation of the Hindu Marriage Act which strictly profeses monogamy.

Lily Thomas v. Union of India.Supreme court held that the husband is guilty of the offence of bigamy u/s 494 IPC

• Sanity Sec 5 (ii) :- It is necessary that the parties to marriage are of sound mind and are not suffering from any mental disability so as to be unfit for giving a valid consent at the time of marriage. Mental incapacity of any nature affecting the very purpose of marriage but marriage solemnized in contravention of this condition is not void, it is voidable u/s 12 of this Act.
  • Age of parites to marriage Sec 5(iii) :- Under this condition the minimum age for marriage is fixed . The bridegroom should have completed the age of 21 years and the bride the age of 18 years at the time of marriage. However the marriage in contravention of this condition is neither void nore voidable.

Section 18 of the Hindu Marriage Act provides that anyone who procures a marriage for himself in contravetion of sec.5 (iii) shall be punished with up to 2 years imprisonment or with a fine up to one lakh rupees. The Prohibition Of Child Marriage Act 2006 provides for the prohibition of solemnization of child marriage and for the matters connected therewith or incidental thereto.The Child Marriage Restraint Act, 1929 has been repealed.

• Beyond prohibited degree sec.5 (iv):- This clause prohibits marriage between parties who are within the prohibited degree of relationship with each other. According to 3 (g). ‘Degrees of prohibited relationship’ – two persons are said to be within the ‘degrees of prohibited relationship’

1. If one is a lineal ascendant of the other; or
   1. If one was the wife or husband of a lineal ascendant or descendant of the other; or
   1. If one was the wife of the brother or of the father’s or mother’s brother of the other; or
   1. If the two are brother and sister, uncle and niece, aunt and nephew, or children or brother and sister or of two brothers or of two sisters.

Explanation – For the purposes of clauses (f) and (g), relationship includes –

• Relationship by half or uterine blood as well as by full blood;
  • Illegitimate blood relationship as well as legitimate;
  • Relationship by adoption as well as blood; and all terms of relationship in those clauses shall be construed accordingly.

Section 18 of Hindu Marriage Act provides simple punishment upto one month or with fine upto1,000 rupees for contravention of this condition.

But if the “custom’ or ‘usage’ governing each of the parties to the marriage allows the marriage within the degrees of prohibited relationship then such marriage will be valid and binding.

• Beyond Sapinda relationship 5 (v) :- The word ‘Sapinda’ etymologically means. One of the ‘same pinda.’ In the Hindu texts the word has been used in two senses, firstly it means a relation connected through the same body and secondly relation connected through funeral obligation of food.

Section 5 clause (v) lays down as one of the conditions of valid marriage that the parties must not be sapindas of each other unless there is a custom or usage governing each of them which permits of a marriage between them.

The general rule is that no valid marriage can take place between two persons who are sapindas of each other as defined in this clause. This clause read with the Explanation added at the end of the section principally rules that:

• Sapinda relationship extends as far as the third generation in the line of ascent through the mother in case of both the parties.
• Sapinda relationship extends as far as the fifth generation in the line of ascent through the father in case of both the parties.
• Sapinda relationship may subsist in case of both the parties through the father or in case of both through the mother; or it may subsist in case of one of them through the father and in case of the other through the mother.
• The line is traced upwards in case of both the parties counting each of them as the first generation; the generations in the line of ascent whether three or five are to be counted inclusive of the persons concerned and the common ancestor or ancestress.
• Sapinda relationship includes relationship by half or uterine blood as well as by full blood and by adoption. It also includes both, legitimate and illegitimate blood relationship.

Restitution of conjugal rights – Section 9

The foundation of the right to bring a suit for restitution of conjugal rights is the fundamental rule of matrimonial law that one spouse is entitled to the society and comfort – consortium – of the other spouse and where either spouse has abandoned or withdrawn from the society of the other without reasonable excuse or just cause, the court should grant a decree for restitution.

The expression “withdrawal from the society of other” involves a mental process besides physical separation. The Act of temporarily leaving matrimonial home would not amount to withdrawal from the society of the other when there is no intention to withdraw permanently.

Each case must depend on its facts and circumstances and it is not possible to give an exhaustive statement of law what may or may not constitute “reasonable excuse”.

But the following grounds have been held by court to be valid considerations for living separately, disentitling the other spouse to a decree for restitution of conjugal rights:-

• Grossly indecent behaviour
  • Agreement to live separately
  • Imputation of unchastity persisted by the husband
  • Apprehension of violence due to development of insanity
  • etc.

Section 9 must be read with section 23 of this Act which imposes on court the duty to inquire into and pass a decree inter alia for restitution of conjugal rights after satisfying itself about certain matters.

Constituionality of section 9 of the Hindu Marriage Act:-

In T.Sareetha v. Venkata Subbaiah—The court has observed that the remedy of RCR provided under section 9 of the Act is a savage and barbarous remedy violating the right to privacy and human dignity guaranteed by Article 21 and, and is arbitrary void as to offending Article 14 of the constitution.

Now the supreme court has settled the law with regard to the constitutuinality of section 9 of this Act that section 9 of this Act can not be said to be violative of Article 14 and 21 of the constitution. If the purpose of decree of restitution of conjugal rights is understood in proper persepective and if the method of its execution in cases of disobedience is kept in view (Saroj Rani v. Sudharshan Kumar).

The effect of the decree is that certain mutual rights and obligations arising from the marriage are as it were suspended and the rights and duties prescribed by the decree are substituted therefore. The decree does not sever or dissolve the marriage tie, which continues to subsist. It affords an opportunity for reconciliation and adjustment. It may fall by a reconciliation of the parties in which case, the rights of respective parties, which flowed from the marriage and were suspended, are restored. Where there is no reconciliation and cohabitation is not resumed, it serves after one year of the passing of it as the basis for the dissolution of the marriage by a decree of divorce [Section 3 (1A)]. Although in a sense, the decree for judicial separation is provisional and conditional, the court cannot while passing the decree impose any terms on the parties as to the nature or duration of its operation.

A petition for judicial separation cannot obviously lie if the marriage between the parties was void ab initio.

Void and Voidable marriages:-

Void Marriages – Section 11

Any marriage solemnised after the commencement of this 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 it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of section 5.

A marriage may be solemnised in the sense that the parties to it have gone through the customary rites and ceremonies of either party thereto as laid down in section 7. However, such a marriage to be valid must in any event fulfil three of the conditions enacted in section 5. The three conditions are:

• Neither party has a spouse living at the time of the marriage [clause (i)];
• The parties are not within the degrees of prohibited relationship, unless the custom or usage governing each of them permits of a marriage between the two; {clause iv}
• The parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two section 11 is not applicable to marriage solemnized before the commencement of the Hindu Marriage Act, 1955 though such marriage may be void.[clause (v)].

The present section in terms lays down that non-fulfilment of any one of these conditions renders a marriage solemnised after the commencement of the Act, null and void from its inception, and either party to such marriage can obtain decree of nullity from the court.

A decree of nullity may be passed by the court at the instance of either party to the marriage solemnised after the commencement of the Act on the ground that the marriage was in contravention of any of the three conditions mentioned in the section. Either party to the subsequent marriage can seek relief under this section and not necessarily the aggrieved party. i.e. first wife during the subsistence of whose marriage the husband takes second wife has no right to move for declaration of nullity of the subsequent marriage. However under Specific Relief Act such a petition could be moved by the wife of first marriage for declaration that marriage of her husband with second is illegal and void. A marriage which does not fulfil these three conditions is no marriage at all in law being void ipso jure and it is open to the parties even without recourse to the court to treat it as a nullity [see sections 5 (i), (iv) and (v)]. Neither party is under any obligation to seek a declaration of nullity. It may be asked for the purpose of precaution or record.

Voidable Marriages – Section 12

A voidable marriage is a perfectly valid marriage so long as it is not avoided. A voidable marriage can be avoided only on the petition of one of the parties to the marriage. If one of the parties dies before the marriage is annulled no one can challenge the marriage. The marriage will remain valid for ever and children of such marriage are legitimate. But once voidable marriage is anmulled the decree is given retrospective effect from the date of the marriage. The marriage is deemed to have been void for all purposes from its inception and parties are deemed to have never been husband and wife and children are deemed to have been illegitimate (subject to section 16 which lays down that the children of annulled voidable and void marriages are legitmate children (Rameswari Devi v. State of Bihar AIR 2000 SC)

A marriage may be annulled by a decree of nullity under section 12 on any of the following grounds namely:-

• Impotency section 12(1) (a) : Impotency means practical impossible of consumation of marriage i e inability to perform or permit performance of the complete act of sexual intercourse u/s 12 (1) (a) the respondent must be impotent at the time of consumation of marriage. However mere barrenness or sterility does not amount to impotency. The Supreme Court in Digvijay Singh v. Pratap Kumari 1970 has given the legal meaning of impotency as a physical or mental condition which makes consumation of marriage a practical impossibility.

If impotency can be cured by medical treatment or surgery it would not amount to impotency unless the respondent refuses to undergo treatment (M.vs.M.1956)

• Unsoundness of mind section 5 (ii): The Hindu Marriage Act still doesnot say that a valid consent is necessary for marriage. But a marriage which is in contravention of sec 5 (ii) is voidable u/s 12 (i) (b). The mental condtions specified in the clauses relate to pre-marriage conditions and not to post-mariage mental conditions for which other relief like divorce is available. The crucial time is the “time of the marriage”.

• Consent obtained by force or fraud section 12 (i) (c): Clause (c) of section 12 says that marriage is voidable on the ground that the consent of the petitioner or of guardian has been obtained by force or fraud. Earlier Child Marriage Restraint (Amendment) Act, 1978

.Which has been repealed and now prohibition of child marriage act, 2006 has fixed marriagaeable age of a groom at 21 years and that of the bride 18 years, therefore the question of consent of guardian is not relevant. But as the section applies to marriage solemnized before the Amendment Act 1978 and Act of 2006 also. It was necessary to refer to a case of consent of guardian also. If the consent of the petitioner or guardian in the marriage of petitioner was obtained by force or by fraud (a) as to the nature of the ceremony or (b) as to any material fact or circumstances concerning the respondant the marriage is voidable. Froce means not only the actual use of force but threat to use force also. Fraud in matrimonial law has a technical meaning. It is not every misrepresentation or concealment which amounts to fraud but should relate to nature of ceremony or any material fact or circumstance concerning respondent. (Asha Qureshi v. Afaq Qureshi 2002 M .P.)

• Pregnancy of the wife at the time of marriage : In a Petition for annulment of marriage on this ground the petitioner has to prove beyond reasonable doubt that the respondent was pregnant by someone else at the time of marriage. Wife’s admission of pregnancy plus the fact that husband had no access to her before marriage is sufficient to establish her pre-marriage pregnancy.

Medical evidence may also be given. In Baldev Raj v. Urmila Kumari (1979 SC) The testiomony of the doctor clearly established that the respondent wife was pregnant long before the date of marriage. The testimony of the doctor was accepted.

Difference between Void and Voidable Marriages under HMA

Void Marriage	Voidable Marriage
A void marriage is void ab initio and is nullity.	It is valid for all purposes unless it is annulled.
It is no marriage so it is not necessary that a decree declaring a void marriage as void is passed.	A voidable marriage will remain a valid marriage until a decree annulling it is passed.
Under section 11, a marriage solemnized after the commencement of the Act shall be null and void if contravention of HMA clauses (i), (iv) and (v) of section 5	Under section 12 any marriage may be annulled by a decree of nullity whether solemnized before or after the commencement of the Act.
The parties to a void marriage may perform another marriage and will not be guilty of bigamy	Second marriage during the subsistence of voidable marriage and before it is annulled by a decree will be considered bigamous one

Judicial Separation & Divorce

A judicial (or legal) separation is one which permits the parties to a marriage to live apart. If a decree for judicial separation is passed by a competent Court, it is no longer obligatory for either party to cohabit with the other.

Such a decree does not, however, dissolve the marriage or sever the matrimonial ties between the parties. Yet, it is equally true that certain mutual rights and obligations arising from the marriage are, so to say, suspended when such a decree is passed. Under the Act, a Petition for divorce can be presented on the ground that cohabitation has not been resumed for a period of one year (or more) after the passing of a decree for judicial separation.

Formerly, Section 10 provided six grounds on which either party to a marriage could present a Petition for judicial separation. However, when Section 10 was amended in 1976, these six grounds were deleted, and it is now provided that such a Petition can be presented on any of the grounds mentioned in Section 13 (1) (which are the grounds for divorce available to both the parties to a marriage), and in the case of the wife, also on any of the grounds specified in Section 13 (2) (which are the grounds for divorce available only to the wife).

(A reference may be made to Section 13, where the grounds for divorce – and now, also the grounds for judicial separation – are discussed at length.)

Effect of the decree [Section 10 (2)]: As stated above, when a decree for judicial separation has been passed, it is no longer obligatory for the Petitioner to cohabit with the Respondent. However, the Court has the power to rescind such a decree on an application by either party, if it considers it just and reasonable to do so.

It may be noted that the statutory relief of judicial separation is a discretionary one. The Court is not bound to grant such relief only because one of the prescribed grounds exists. Thus, if the Petitioner has connived at the adultery of the Respondent, the Court may refuse to pass a decree under Section 10. Similarly, if desertion by the Respondent is due to the Petitioner’s cruelty, such relief may be refused by the Court.

Divorce

Divorce was unknown to general Hindu Law as marriage was regarded as an indissoluble union of husband and wife. The textual Hindu law does not recognize a divorce. Although Hindu law does not contemplate divorce. Yet it has been held that where it is recognized as an established custom it would have the force of law. In Bombay, Madras and Saurashtra it was permitted by legislation.

Hindu Marriage Act, 1955 has introduced vital and dynamic changes in the Hindu Law of Marriage and Divorce. However, “even if the Act seems to break viloently with the past, it has to be conceded that it is characteristic of the age which is one of fast changing social, economic and political theories. The subject is dealt with in section 13, 13-B, 14 and 15 of the Act.

Section 13—Divorce

A marriage may on, a petition presented by either the husband or the wife be dissolved by a decree of divorce on the grounds mentioned in this Act.

The following eleven grounds of divorce available to either spouse, i.e. husband or wife:

1. Adultery, namely, that the other party has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than his or her spouse.

Formerly, to obtain a divorce on the ground of adultery, the Petitioner had to prove that the other party was living in adultery, which expression would cover a more or less continuous and habitual course of action, and not isolated acts of immorality. However, after the 1976 Amendment, in view of the above language, even one single and isolated act of infidelity would be a sufficient ground for obtaining divorce.

The term adultery has been defined as consensual sexual intercourse between a married person and another of the opposite sex during the subsistence of the marriage.

An attempt to commit adultery does not, however, amount to adultery, and cannot, therefore, be the basis of a petition for judicial separation.

Direct evidence of adultery is not necessary, and the nature of the act is such that it would not even be reasonable to expect any direct evidence. The Courts have, therefore, observed that circumstantial evidence is all that can be expected in such cases. The time and place of adultery, therefore, need not be proved. (Barker v. Barker, AIR 1955 Mad 103)

Thus, the proof which is required to prove adultery is not proof “beyond a shadow of doubt”.

Evidence of sheer opportunity is, however, not enough. There must be something more than opportunity, as for instance, evidence of inclination or passion. In several cases, where the evidence consisted of entries in hotel register and of the respondent being seen in a room with a woman, the Courts have insisted on further evidence of a background of adulterous association. Thus, apart from evidence of opportunity, some evidence of disposition on the respondent’s part is also required to be adduced.

• Cruelty, namely, that the other party has, after the solemnization of the marriage, treated the petitioner with cruelty.

The legal concept of cruelty cannot be defined with any degree of precision. It would indeed be unsafe to attempt any comprehensive definition which would cover all cases of “cruelty”.

Cruelty may be brutal or subtle. It may be physical or mental. It may be by words or by gestures or even by mere silence. Cruelty refers to “conduct of such a character as to have caused danger to life, limb or health (bodily or mental) or as to give rise to a reasonable apprehension of such danger.” (Russel v. Russel, 1897 AC, 395)

As observed by the Supreme Court, mental cruelty can be defined as “that conduct which inflicts upon the other party such mental plain and suffering as would make it impossible for that party to live with the other.” (Bhagat v. Bhagat, AIR 1994 SC 710)

In Bhagat v. Bhagat (above), it was held that it if the wife calls her husband (who, incidentally, was an Advocate) a lunatic, and further alleges that a streak of insanity ran through his entire family, such conduct would amount to mental cruelty.

The Rajasthan High Court has held that a wife’s allegation that her husband is impotent, although only by way of an abuse, is a serious stigma on the husband’s manhood, and is bound to cause great mental agony and pain to the husband. This would, therefore, amount to act to cruelty. (Shanti Devi v. Raghav Prakash, AIR 1986 Raj 13)

In Shanti Devi’s Case (above), the wife had also burnt the thesis of her husband, who was a lecturer, and this too was held to be a form of gross cruelty on the wife’s part.

In one case, a wife of an Army Officer sent a letter to his superior, falsely complaining about his affair with a woman for more than three years, and asking for his transfer to a field area, and that too, on a high altitude. Copies of the letter were also sent to the President, Prime Minister etc. The Court held since the charge of adultery was proved to be baseless, such conduct was mental torture and humiliation of an extreme kind, and amounted to cruelty. (Jalan v. Jalan, AIR 1988 All 239)

The Supreme Court has also held that cruelty also includes unintentional cruelty, as for instance, where there are repeated demands for dowry by the husband or his relatives. (Shobha Rani v. Madhukar Reddi, AIR 1988 SC 121)

The Courts have held that drunkenness, by itself, is not cruelty. But, persistent drunkenness, despite several warnings to the effect that such conduct is injuring the health of the other spouse, may, in a given case, amount to cruelty.

Thus, the Delhi High Court has held that although excessive drinking is not a ground for divorce under the Hindu Marriage Act, yet, if it is indulged in by a spouse despite strong remonstrances by the other, to whom it could cause great anguish and distress, it could amount to “cruelty” for the purpose of a divorce under the Act. (Rita v. Brij Kishore Gandhi, AIR 1984 Delhi 291)

Similarly, although accusing the other spouse of infidelity would not, per se, amount to cruelty, malicious charges of adultery, persistently made in bad faith, may so amount in a given case.

In one case, where a husband publicly called his wife a ‘prostitute’ ad tried to wipe her vermilion mark (on the forehead at the parting of her hair) by dashing her against a wall, it was held that it amounted to cruelty. (Saptami Sarkar v. Jagdish, 73 CWN 502)

The Gujarat High Court has held that a wild and reckless allegation made by a husband that his wife was unchaste, would amount to mental cruelty under the Act. (A v. B, AIR 1985 Guj 121)

However, in another case (Kamlesh v. Paras Ram, AIR 1985 Punjab & Haryana 199), the High Court of Punjab and Haryana has held that making a false allegation of adultery is only an instance of “legal cruelty”. However, unless it is also proved that such allegations were of such a grave character so as to cause danger to life, limb or health, (or at least, a reasonable apprehension of such danger), the relief of divorce, on the ground of cruelty, cannot be granted.

In another case, the wife was informed, when she was in Delhi that her husband had met with a serious accident in Assam. However, she did not bother to go and see him in Assam. Even when the husband was brought to Delhi, she did not go to see her ailing husband. On these facts, the Delhi High Court held that the wife was guilty of cruelty. (Rajinder Singh Joon v. Tara Wati, AIR 1980 Delhi 213) The Supreme Court has observed that the concept of cruelty is fast changing. A set of facts which amount to cruelty in one case may not be regarded as cruelty in another case. The concept of cruelty is to be viewed against the background of the way of life of the parties, their economic and social condition, their culture, sense of values, etc. Therefore, precedents cannot always be relied upon. (Shobha Rani v. M. Reddi, AIR 1988 SC 121)

Dr. N.C. Dastane v. Mrs. S. Dastane 1975 SC Threat of wife to put an end to her own life, to set her house on fire and persistent abused husband and insulted his father amounted to cruelty.

In Naveen Kohli v. Neelu Kohli 2006 SC the Court examined the development and evolution of the concept of mental cruelty in matrimonial causes. Mental cruelty in section 13(1) (ia) means the Conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other.

Manisha Tyagi v. Deepak Kumar 2010 SC held that to constitute cruelty it is enough that conduct of one of parties is so abnormal and below accepted norm that other spouse could not reasonably be expected to put up with it.

Malathi Ravi, MD v. B.V. Ravi M.D. 2014 SC The requirement under section 13(1)(ib) is either party has deserted the other party for a continuous period of not less than two year immediately preceding the presentation of the petition. If husband admitted to have once stayed with wife at wife’s place for 2 days within period of 2 years immediately preceding presentation of divorce petition by him it was held desertion not established.

In Narendra v. K. Meena 2016 SC it was held that unsubstantiated allegations and the threats and attempt to commit suicide by wife amounted to mental cruelty, hence it is valid ground to dissolve the Marriage by a decree of divorce.

• Desertion, namely, that the other party has deserted the petitioner for a period of not less than two years immediately preceding the presentation of the petition.

It has also now been clarified (by the added Explanation) that the term desertion means desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage.

The leading Indian case on desertion is Bipin Chander v. Prabhawati (1956 SCR 838), where the Supreme Court discussed the term, quoting extensively from Halsbury’s Laws of England. The principles laid down in this case have also been followed by later decisions of the Supreme Court and other Courts.

It has been held that if a husband creates circumstances which compel the wife to leave the house, it is the husband, and not the wife, who is guilty of desertion. (Asha Handa v. Baldev Handa, AIR 1985 Del 76)

It is now well-established that two factors must co-exist to establish secondly, this must be accompanied by the animus deserendi, i.e. the intention to desert. Both these ingredients must continue throughout the statutory period (i.e. two years or more).

The Supreme Court has held that there is no obligation on the deserted spouse to appeal to the other spouse to change his (or her) mind. Omission to make efforts for reconciliation does not debar a deserted spouse from claiming matrimonial relief. (Lachman v. Meena, AIR 1964 SC 40)

In one case, it was shown to the Court that the husband and wife were living separately from February, 1979. Although the husband was informed of their child’s death (in September, 1979), he did not bother to attend the funeral. Likewise, he also neglected to pay the maintenance ordered by the Court. In the circumstances, the Court granted a divorce to the wife, on the ground of her husband’s desertion. (Om Wati v. Kishan Chand, AIR 1985 Del 43)

It will be seen that one of the essential ingredients of desertion is the separation of one spouse from another. Thus, as a general rule, there can be no desertion when the parties are living together. However, it has been held, in an English case, that in exceptional cases, there may be desertion even if the husband and wife are living in the same dwelling place, if there is such a forsaking and abandonment by one spouse of the other that the Court comes to the conclusion that the spouses have separate households. (Baker v. Baker (1952) 2 All ER 248)

It may be noted that desertion differs from other matrimonial offences (like adultery or cruelty) in that it dies not consist of an act or a series of acts which are separate and distinct in themselves. Rather, it is an activity or course of conduct which must persist for the statutory period upto the presentation of the petition. If the period is broken, the broken periods cannot be added together to make a period of two years.

Explanation of section 13 talks about constructive desertion when the one spouse creates a condition in which the other is compelled to leave the company and live separately, the spouse who left the company will not be guilty of desertion but who has created such situation will be guilty.

In Savitri Pandey v. Prem Chandra Pandey 2002 SC Desertion for the purpose of seeking divorce under the Act means the intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent and without reasonable cause. Desertion therefore means withdrawing from the Matrimonial obligation that is not permitting or allowing and facilitating the cohabitation between the parties. Desertion is not a single act complete in itself it is a continuous course of conduct to be determined under the facts and circumstances of each case.

Ravi Kumar v. Julmi Devi 2010 SC In cases of desertion, the party alleging desertion must not only prove that other spouse was living separately but also animus deserendi on its part, that is intention to desert.

• Conversion, namely, that the other party has ceased to be a Hindu by conversion to another religion.

Under the ancient, uncodified Hindu Law, there was no rule forbidding the subsistence of a marriage where one of the parties had ceased to be a Hindu. The Act now gives a right to the spouse who continues to be Hindu to obtain a divorce on the ground that the other spouse has ceased to be a Hindu by conversion to some other religion.

The term Hindu, as used in this clause, must be understood in the wife sense given to it in Section 2 of the Act, and would therefore include all Hindus, Buddhists, Jains and Sikhs. Thus, a person will continue to be a Hindu even if he is converted from, say, the Sikh to the Buddhist or Jain faith.

Further, a person does not cease to be a Hindu merely because he is an ardent admirer of some other religion, or if he professes a theoretical allegiance to such other religion. If, however, he abdicated the Hindu faith by a clear act of renunciation, and formally converts himself to the other religion, he would cease to be a Hindu under this clause.

• Insanity, namely, that the other party has been incurably of unsound mind or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the Respondent.

As observed earlier under Section 5, one of the essential conditions of a valid Hindu marriage is that neither party should be an idiot or a lunatic at the time of the marriage. This section deals with supervening unsoundness of mind, and makes it a ground for divorce.

The onus of proving unsoundness of mind will be on the Petitioner, i.e. the spouse seeking divorce on this ground.

Further, the terms “mental disorder” and “psychopathic disorder” have also been defined as follows:

• The expression “mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind, and includes schizophrenia.
  • The expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence), which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment.

Dealing with this ground of divorce, the Supreme Court has cautioned that mere branding of a spouse as schizophrenic is not sufficient. The degree of mental disorder of the spouse must be proved to be such that the other spouse cannot reasonably be expected to live with him or her. (Gupta v. Gupta, AIR 1988 SC 2260)

In England, the Matrimonial Causes Act, 1950, recognises incurable unsoundness of mind as a ground for divorce, and requires that the Respondent should have been taking care and treatment continuously for at least five years before the divorce Petition.

• Leprosy, namely, that the other party has been suffering from a virulent and incurable form of leprosy.

Leprosy was “the dreaded disease” once upon a time. However, modern medicine has taken great strides in the direction of its treatment, and with the new drugs that are now available, a scientific approach is warranted when answering the question whether in any given case, leprosy is virulent or not.

Before the 1976 Amendment, it was necessary that such leprosy should have existed for at least three years before the presentation of the petition. This minimum requirement of three years is no longer necessary.

• Venereal disease, namely, that the other party has been suffering from venereal disease in a communicable form.

Before the 1976 Amendment, it was necessary that such venereal disease should have existed for at least three years before the presentation of the petition. This minimum requirement is no longer necessary.

• Renouncing the world, namely that the other party has renounced the world, by entercing any religious order.

Under the ancient Hindu Law, if a person entered a religious order, renouncing all worldly affairs, his action would tantamount to civil death. Under the Act, his action would afford a ground of divorce to the other spouse.

Two essential conditions have to be satisfied before a Court can grant divorce under this clause, viz.:-

• Such person must have renounced the world; and
• Such person should have entered any religious order.

Both these requirements must co-exist, and the presence of one of them will not suffice.

It is to be remembered that a person cannot be said to have adopted a religious order merely by declaring himself to belong to such order. Thus, for example, if a person calls himself a sanyasi, puts on clothes of a particular colour, and shaves his head; he does not thereby become a sanyasi. He will be deemed to have entered that order only if he has also performed the necessary rites and ceremonies prescribed for this purpose by the shastras.

• Presumption of death namely, that the other party has not been heard of as being alive, for a period of at least seven years, by persons who would naturally have heard of him, had he been alive.

It is a well-established legal presumption that a person can be taken to be dead, if he is not heard of for a period of seven years or more, by those persons (like his near relatives and friends) who would have naturally heard of him, had he been alive. This is a presumption of legal convenience, and has been adopted by the Indian Evidence Act also.

Under this clause, the fact that for a long period of seven years (or more), the Respondent has been absent from the Petitioner, and the Petitioner (and other close relatives) have not heard of him at all, should normally be sufficient evidence that such a person is dead, and a divorce ought to be granted to the Petitioner.

It is to be noted that a decree of divorce granted under this clause is valid and effective, even if it is subsequently discovered that the Respondent was in fact alive when the decree was passed.

1. Decree of judicial separation, Section 13 (1-A) namely, that a decree for judicial separation between the parties has been passed, and there has been no resumption of cohabitation for a period of at least one year after the passing of such decree.

As pointed out earlier, the scheme of the Act is not to encourage divorce or to enforce conditions which may causes hardship to the parties. Therefore, a period of one year has been fixed, and this would give maximum opportunities of mutual adjustment after a decree of judicial separation. If cohabitation is not resumed during this period, the marriage ought to be regarded as having been a complete failure and a decree for divorce can be granted to either party to such a marriage.

It is to be noted that this clause does not confer any absolute or unrestricted right on a spouse to obtain a divorce. Under Section 23, the Court would still have to be satisfied that there is no bar of any kind (mentioned in Section 23) to the granting of such relief. Thus, for example, if the Court is satisfied that the Petitioner is taking advantage of his own wrong, the Court will decline to grant a divorce, even if the case falls under this clause.

Under this clause, either party to the marriage, and not necessarily the one who had obtained the judicial separation, can present a divorce petition.

Originally, the period prescribed under this clause was two years. This was reduced to one year by the 1976 Amendment.

1. Decree of restitution of conjugal rights, namely, that a decree for restitution of conjugal rights between the parties has been passed, but there has been no restitution of conjugal rights for a period of at least one year after the passing of such a decree.

Under this clause also, either spouse can present a divorce petition. In other words, this right is not given only to spouse who had obtained the decree for restitution of conjugal rights.

Originally, the period prescribed under this clause was two years. This was reduced to one year by the 1976 Amendment.

12.  Grounds available to wife only

In addition to the eleven grounds of divorce discussed above, the following four additional grounds are available only in those cases where the wife applies for a divorce:

1. Bigamy, namely, that in the case of a marriage solemnised before the commencement of the Act, the husband has married again before such commencement, or that any other wife of the husband, married before such commencement, was alive at the time of the Petitioner’s marriage.

This ground can obviously exist only in the case of a marriage solemnised before the Act came into force. As regard marriages solemnised after the Act, under Sections 5 and 11, such marriages would be bigamous and void ab initio, and there would naturally be no question of divorce in such cases.

It is also necessary under this clause that the other wife should be alive at the time when the Petition is presented to the Court.

It will be seen that this remedy is available to a wife, irrespective of the fact that the other marriage had taken place before or after the marriage of the petitioner wife with him. Thus, the remedy is available to the first as well as the subsequent wives.

• Rape, sodomy or bestiality, namely, that the husband has been guilty of rape, sodomy or bestiality after the solemnisation of the marriage.

Rape refers to the ravishing of a woman, whereas sodomy and bestiality refer to carnal intercourse by a man against the order of nature with another man or with an animal, respectively. Although these are also offences under the Indian Penal Code, a divorce would be granted even if the husband has not been convicted of any of these offences in any criminal proceedings.

• Decree of order awarding maintenance, namely, that in a suit under Section 18 of the Hindu Adoptions and Maintenance Act, 1956, or in a proceeding under Section 125 of the Criminal Procedure Code, 1973, a decree or order has been passed against the husband awarding maintenance to the wife (notwithstanding that she was living apart), and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or more.

• Repudiation of the marriage, namely, that the marriage was solemnised before the wife attained the marriage of fifteen years, and that she has repudiated the marriage after attaining that age, but before attaining the age of eighteen years. A petition on this ground can be obviously filed after she attains the age of eighteen years.

For the purposes of this ground of divorce, it is immaterial whether the marriage was consummated or not. However under Muslim law, it is also essential that the marriage had not been consummated before she repudiated it. The proof beyond reasonable doubt is not applicable in matrimonial disputes.

• Alternate relief in divorce proceedings (Section 13A), Section 13A of the Act inserted by the marriage laws (Amendment) Act 1976, lays down that in any proceedings under this Act, on a petition for dissolution of marriage by a decree of divorce, except in so for as the petition is founded on grounds mentioned in section 13 (ii) clause (iii), (vi) and (vii)

Divorce by mutual consent section 13B

Section 13B of Act, inserted by the marriage laws (Amendment) Act 1976. Section 13B lays down that a petition for divorce by mutual consent may be presented jointly by both the spouses with the following averments:-

• that they have been living separately for a period of one year
  • they have not been able to live together
  • they have mutually agreed to live separately all the above conditions should be fulfilled before divorce can be granted.

It is not necessary that parties should be living under separate roofs. They might be living in the same house but not as husband and wife and there is a state of complete breakdown of marriage.

After the presentation of petition, the parties are required to wait for six months though not for more than eighteen months, and then to move a motion in the court that divorce be granted, some courts hold that requirement of waiting for six months is mandatory. Some High courts do not share this view. Now trend to waive the waiting period of 6 months, considering the facts and circumstances of the cases.

The court observed that 6 to 18 months contemplated under sub section (2) of section 13B was inserted to give time and opportunity to the parties to reflect on their move and seek advice from relation and friends. In this trasitional period one of the parties may have a second thought and change its mind not to proceed with the petition.

Sureshta Devi v. Om Prakash, The supreme court held that a party to the petition for divorce by mutual consent, can unilaterally withdraw his consent at any time till passing of the decree.

Ashok Hurra v. Rupa Bipin Zaveri, The supreme court has held that the surashtra Devi’s decision that “consent can be withdrawn at any time before decree is passed are too wide and requires

considerations. In the above mention case wife had not withdraw her consent within 18 months, during the pendency of proceedings, the husband had conteceted another marriage and begot a child.

In this landmark decision the supreme court has dissolved the marriage under section 13B of Hindu Marriage Act by exercising its power under Article 142 of the constitution of India. So as to meet the ends of justice.

Anil Kumar Jain v. Maya Jain 2009 SC held that in the cases of divorce by Mutual Consent Normally consent of parties should subsist till passing of final decree on the petition and withdrawal of consent by one of the parties even after expiry of statutory period of six months would result in dismissal of the petition.

It was also held that irretrievable breakdown of Marriage is not a ground under section 13 or section 13B for grant of divorce, when proceeding under either S.13 or S.13B are before Supreme Court it can invoke the said doctrine and grant relief to the parties in exercise of extraordinary power under Article 142 to Convert proceeding under S.13 into one under S.13–B and grant decree for mutual divorce without waiting for statutory period of six months by applying doctrine of irretrievable breakdown of marriage. Except Supreme Court no other Court has power to grant relief by invoking doctrine of irretrievable breakdown of Marriage.

Hitesh Bhatnagar v. Deepa Bhatnagar 2011 SC it was held that in divorce by Mutual Consent under Section 13B, Consent can be withdrawn at any time before decree of divorce is passed. Non withdrawal of Consent before expiry of 18 Months is inconsequential. 18 Months period is specified only to ensure quick disposal of cases of divorce by Mutual consent and not to specify time period for withdrawal of consent.

Nikhil Kumar v. Rupali Kumar 2016 SC it was held that after looking to the fact and circumstances of the particular case, the apex court can invoke its Jurisdiction under Article 142 of the constitution of India for doing complete Justice between the parties and it can waive the statutory period of six months required under Section 13-B(2).

Judicial Separation distinguished from Divorce

The following are the main points of distinction which distinguish a divorce from judicial separation:

• Judicial separation does not dissolve the marriage; it only absolves the parties from their marital duty of cohabitation. Divorce on the other hand, completely dissolves the marriage tie.
• A decree of judicial separation can be subsequently rescinded by the Court, whereas a divorce decree cannot be so rescinded.
• Non-resumption of cohabitation by a party for a period of one year or more after the passing of a decree for judicial separation by itself constitutes a good ground for dissolution of the marriage by a decree of divorce.
• Prior to 1976, the provisions relating to divorce were more stringent than those for the grant of judicial separation. Now, of course, the grounds for both are exactly the same.

Legitimacy of children of void and voidable marriages (Section 16)

Under the general law, a legitimate child is one who is born in a lawful wedlock, and a child born out of a void marriage is necessarily a bastard. This would normally cause great hardship to a child (for no fault of his own), and therefore, Section 16 provides that notwithstanding that a marriage is null and void under Section 11, any child of such a marriage, who would have been legitimate if the marriage had been valid, is to be considered to be a legitimate child. It is immaterial whether or not a decree of nullity is granted in respect of that marriage under the Act, and whether or not the marriage is held to be void otherwise than on a petition under this Act.

It has also been provided that if a decree of nullity is granted in respect of a voidable marriage under Section 12, any child begotten or conceived before the decree is made, who would have been the legitimate child of the parties to the marriage if at the date of the decree. It had been dissolved, instead of being annulled, is to be deemed to be their legitimate child, notwithstanding the decree of nullity.

Thus, by a fictio juris (legal fiction), a child born of a void or voidable marriage is deemed to be the legitimate child of his parents. The effect of this fiction is that for all purposes, including rights of inheritance and succession, such child is to be regarded as a legitimate child of the parents.

It may be noted that Section 16 comes into play only if a marriage was proved to have taken place between a man and a woman, but which is otherwise null and void under Section 11. So, when there has been no marriage at all. Section 16 cannot be involved, and legitimacy cannot be conferred on any child. (Sudarshan Karir v. The State, AIR, 1988, Del. 368)

Following the above principles, the Madras High Court has reiterated that a child born out of a void marriage will share the father’s property equally with the other legitimate children. (Margabandhu v. Kothandarama, AIR 1984, Mad. 270)

HMA Section 15 Divorced persons re-marry conditions

Formerly, it was provided that when a Hindu marriage had been dissolved by a decree of divorce, either party could marry again after the one year had elapsed from the date of the decree in the Court of the first instance, provided that –

• There was no right of appeal against the decree; or
• If there was such a right of appeal.
  • The time for appealing had expired without an appeal having been filed; or
  • An appeal had been filed and dismissed.

This rule was founded on the well-recognised principle that it would be contrary to good morals and public policy that a divorced person should be allowed to re-marry some other person with indecent haste. The rule was intended to ensure that a divorce was obtained as an extreme remedy, and not for the sheer purpose of marrying some other person.

However, this one year restriction was, however, removed by the 1976 Amendment, with the result that it is now open to persons divorced under the Act to marry at any time after the divorce, provided that conditions (a) and (b) above are satisfied, i.e. provided the period of appeal has expired.

The Kerala High Court has clarified that Section 16 applies to marriages that are void under Section 11 of the Act (which applies only to those marriages which are solemnized after the Act came into force). Therefore, children born of a second marriage which is void, and which was solemnized prior to the Act are not entitled to be legitimised. (P. E. Kanapravan v. K. Devi, AIR 1989, Ker. 279)

In the above case, it was also held that Section 16 is not violative of Article 14 of the Constitution.

However, an important exception is also made to the above rule. The effect of the exception is that what has been stated above does not confer upon any child of a marriage which is null and void, or which is annulled by a decree of a nullity, any rights in or to the property of any person, other than the parents, in any case where, but for passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents. This also means that a child of void marriage is not entitled to an interest in which his father is a coparcener.

Situations:

• The marriage of X and Y was performed in accordance with the requisite ceremonies, and Z, a son, was born out of the marriage. Thereafter, Y obtained a decree of annulment of the marriage (under Section 12) on the ground that her consent to the marriage was obtained by X’s fraud. Will Z be deemed to be the legitimate child of X and Y, and will he have a right to inherit from X and Y?

Ans – In this case, although the decree of annulment will operate from the date of the marriage, Z will be deemed to be legitimate child of X and Y, and he will therefore have a right to inherit from both his parents, X and Y.

• X married Y according to customary rights and ceremonies, Z, a son, was born of this marriage. Actually, the marriage was void, as X had another wife living at the time of the marriage, and on a Petition presented to the Court, the marriage was declared null and void. Is Z entitled to succeed to the property of X and Y?

Ans – Z will be deemed to be the legitimate son of X and Y notwithstanding the decree of nullity, and will, therefore, be entitled to succeed to the property of his parents, X and Y.

HMA Section 17 Punishment for Bigamy

This section makes a marriage void ab intio and punishable under section 494 IPC if the marriage is solemnized after the commencement of the Act and at the date of marriage either party has a spouse living.

Birendra Bikram Singh v. Kamla Devi, On husband’s taking second wife the (first) wife has no remedy under section 11 and 17 of this Act where in common law she has a right to file a suit for declaration that the second marriage of her husband is illegal and void.

Lily Thomas v. Union of India, Any marriage solemnised by husband during the subsitence of first marriage in spite of his conversion to another religion would be an offence triable under section 17 of the Hindu Marriage Act read with section 494 IPC.

HMA Section 18 Punishment for contravention of certain other conditions

This section of the Act prescribes punishment to the person who contravenes the conditions specified in clauses (iii), (iv) and (v) of section 5 of this Act as follows:-

• contravention of condition specified in clause (iii) of section 5 with rigorous imprisonment which may extend to two years or five which may extend to one lakh or with both
  • contravention of condition specified in clause (iv) or clause (v) of section 5 with simple imprisonment which may extend to one month or with five which may extend to 1000 or with both.

HMA Section 24 – Maintenance pendent lite and expenses of proceedings–

Where in any proceeding under this Act it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner’s own income and the income of the respondent, it may seem to the court to be reasonable.

Provided that the application for the payment of the expenses of the proceeding and such monthly sum during the proceeding, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the wife or the husband, as the case may be.

Manisha Jain v. Akansha Jain 2017 SC it was held that in arriving at the quantum of interim Maintenance to be paid by one spouse to another the Court must have regard to the income of petitioner and the income of respondent.

HMA Section 25 – Permanent alimony and maintenance–

• Any Court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent’s own income and other property, if any, the income and other property of the applicant, the conduct of the parties and other circumstances of the case, it may seem to the court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent.
• If the court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under sub-section(1), it may at the instance of either party, vary, modify or rescind any such order in such manner as the court may deem just.
• If the court is satisfied that the party in whose favour an order has been made under this section has re-married or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, it may at the instance of the other party vary, modify or rescind any such order in such manner as the court may deem just.

Kalyan Dev Chowdhury v. Rita Dey Chowdhury Nee Nandy 2017 SC it was asserted by the hon’ble Court that amount awarded to wife must be befitting status of parties and capacity of Spouse to pay maintenance. Maintenance is always dependant on factual situation of case. Court would be justified in moulding claim for maintenance passed on various factors.

Custody of minor children (Section 26)

Section 26 provides that in any proceeding under the Act, the Court may, from time to time, pass interim orders and make provisions as regards the custody, maintenance and education of minor children, consistently with their wishes, wherever possible. Similarly, even after passing the decree, the Court may, upon an application for the purpose, make similar orders from time to time. The Court may also revoke, suspend or vary such orders from time to time.

Needless to mention, the most important consideration for the Court under this section would be the welfare of the minor.

The term “children” (used in this section) would include not only legitimate children, but also those children who are born out of void or voidable marriages, and are deemed to be legitimate under Section 16 of the Act.

It has been observed that in matters relating to custody of a minor, the Court should look at the substance of the application, and should not pay too much importance to mere technicalities of the pleadings. (Snehlata v. Mahendra, AIR 1980, Raj. 64)

As observed by the Orissa High Court, Section 26 vests a complete discretion in the Court to make such orders as it deems fit and proper, taking into consideration, the welfare of the minor. (H. Dasgupta v. S. Misra, AIR 1985 Orissa 239)

In one case, the question of the custody of a girl of seven years was before the Court. Admittedly, the girl was away from her father since five years and was greatly attached to the mother, who had a steady income. The Court felt that she would not find any happiness, if placed in the father’s custody, and that her welfare would be fully protected if she remained in the custody of her mother. (Archana Barthakur v. Dr. Ranjit Barthakur, AIR 1985 NOC 125 Gauhati)

Disposal of property (Section 27)

In order to avoid multiplicity of litigation, Section 27 lays down that in any proceeding under the Act, Court can make such provisions in the decree, as it deems just and proper, with respect to any property presented jointly to the husband and the wife at the time of the marriage. It is to be noted that in the absence of such an express provision, a Matrimonial Court would have no jurisdiction to dispose of any property jointly owned by the spouses.