Divorce

Old Hindu Law

• The concept of ‘Divorce’ was unknown to Hindus as it had no mention in Dharmashastra;

• Dharmashastra regarded the relation of husband and wife as indissoluble union;

• Manu declared a wife cannot be separated from her husband either by sale or by abandonment; because marital tie could not be severed under any circumstances whatsoever.

• It therefore follows that the Hindu personal Law does not recognize the concept of divorce.

• Even though the customs does not accept the concept of divorce, there were few laws in favour of divorce before HMA was enacted, and few of them were –

Bombay Hindu Divorce Act, 1947Madras Hindu Bigamy Prevention and Divorce Act,

1949The Saurashtra Hindu Divorce Act, 1952All these acts stands repealed by Hindu Marriage Act 1955

Under HMA 1955

• The provisions for divorce in the act has brought radical changes in the legal concept of Hindu marriage;

• Sec 13 describes the circumstances which extend the right of divorce;

• Section 14 renders the provisions for not presenting the petition for divorce within one year from the date of marriage unless it causes exceptional hardship to the petitioner;

• Sec 15 lays down the limitations on the right of divorced persons to marry again.

• The grounds for divorcing is contemplated in sec 13(1) & 13(2) and those have been identical with that of Judicial separation;

• The Marriage Laws (Amendment) Act, 1976 has introduced a new mode of divorce, i.e., divorce by mutual consent u/s 13 (B);

• Sec 13(1-A) inserted by 1964 amendment envisages 2 grounds which have their roots in the break-down theory. These two grounds include –

1. non-compliance with the decree of RC Rts, &2. Omission to resume cohabitation for a period of 1 year after

the decree of JS.

• Divorce is a matrimonial remedy provided to aggrieved spouse, where it becomes practically impossible for the petitioner to reside with the respondent;

• The remedy can be availed when the petitioner can prove her/his ground u/s 13(1) or 13 (2) where the petitioner is a wife;

• It is complete dissolving of the relation between the husband and wife and the marriage can be dissolved only by two modes, one being the decree u/s 13 of the act or on the death of either the party for the marriage

Grounds under section 13(1)1. Adultery2. Cruelty3. Desertion4. Conversion5. Unsoundness of mind6. Leprosy7. Venereal disease8. Renunciation of the world9. Presumption of death10. Non resumption of cohabitation after the decree of JS11. Failure to comply with the decree of Restitution of Conjugal rights

Additional grounds to wife -13(2)

1. Bigamy2. Rape, sodomy, or bestiality3. Non-resumption of cohabitation for 1 year

after passing of maintenance order4. Repudiation of marriage

Sec 13 (B) Divorce by Mutual Consent

• The provision relating to mutual divorce is added by The Marriage Laws (Amendment) Act, 1976;

• It provides for a divorce by mutual consent of both the parties to the marriage;

• has been given a retrospective effect;• u/s 13(B) (1) - Such a petition is required to be moved jointly by

the parties to marriage on the ground that –1. They have been living separately for a period of 1 year or more; 2. That they have not been able to live together;3. That they have agreed that the marriage be dissolved with effect

from the date of the decree.

Section 13 (B) (2)

• It is the duty of the courts to fight for saving the marriage, but when the court is fully satisfied on the basis of the proved facts, that in the interest of Justice, society and as individuals marriage tie should be put to an end immediately;

• Section 13(B)(2) does not confer right to apply to an appellate court

• In Smt. Sushma Pramod Taksande v. Pramod Ramaji Taksande AIR 2009 Bombay 11 – wife challenged decree of divorce by mutual consent on the ground that her signatures on divorce petition & affidavits were obtained under false pretext and there was no separation for period of 1 year;

• After considering the fact court held that while subordinate courts passing the decree of divorce on mutual consent –

has to be satisfied that the consent was not obtained by force, fraud or under influence;

And they mutually agreed for dissolution of marriage; The trial court must pass a decree of divorce.

Necessary Ingredients1. Petition should be preferred before the District Court by both the parties,

supported by affidavits;2. The parties should have been living separately for a period of 1 year or more;3. The parties could not adjust with each other and had not been able to live

together;4. There should be mutual request by both the parties to dissolve the marriage.5. After the petition is presented, the parties have to wait for a period of 6

moths,6. Move the court once again u/s.s(2) 7. If the parties do not move the court after 6 months and before 18 months

from the date of presenting the petition, the petition would lapse;8. Either party can withdraw the petition during this period

• The expression ‘have been living separately’ does not mean that the spouse has to live in different places, it means they must be living apart by their intention and in conjugal rights.

• If one of the spouse withdraws the petition and the other not, the court can convert the suit u/s 13 and continue the proceedings on an application by the spouse who is not willing to withdraw

Section 14 – petition for divorce

“no petition for divorce to be presented within one year of marriage” – according to this section no court could entertain a petition for divorce before the expiration of a period of 1 year from the date of marriage;• Prior to ‘The Marriage Laws (amendment) Act, 1976,

no court could entertain a petition for divorce before the expirations of 3 years from the date of marriage but the act of 1976 has reduced it to 1 year.

• The section also provides that the court could entertain a petition even before 1 year in cases of exceptional hardship to the petitioner;

• Sec 14(2) provides that the interests of the children born of the marriage and the chances of reconciliation between the parties are also be kept in view of the court while deciding an application under this section;

• In Meghnatha v. Smt. Susheela AIR 1957 Mad 23, the Honourable High court Madras observed that sec 14 provides restrictions presumably designed to prevent party recourse to legal proceedings before the parties have made real effort to save their marriage from disaster;

• It is grounded on the public policy because marriage is the foundation of civil society and no part of laws.

• Deciding the matter the Honourable HC gave guidelines to the word ‘ Exceptional Hardship’ & ‘Exceptional Depravity’ which are not defined in the act

• Following the English Case Bowmen v. Bowmen (1949) 2 All ER 127 – the court held that the following would be treated as exceptional hardship or depravity:

1. Adultery by one person is not exceptional hardship;2. Adultery + Desertion + cruelty to wife constitutes exceptional hardship;3. Apart from adultery coupled with another matrimonial offence as the

consequence of adultery may cause exceptional hardship – having a child by adulterous act

4. Adultery with a few weeks of his marriage;5. Adultery with wife’s sister or servant;6. Habitual adultery with other women;7. Cruelty coupled with aggravating circumstances, e.g., drunkenness and

neglect to take care, may be held to exceptional hardship;

Divorced person when may marry again u/s 15

• The parties to marriage may marry again, if the following conditions are satisfied:

1. When the marriage has been dissolved and there is no right of appeal against the decree of court, or

2. If there is a right of appeal but the time has expired without filing an appeal, or

3. An appeal has been filed but has been dismissed,

• The un amended section 15 laid down a minimum period of 1 year since the date of decree of divorce with in which it was not lawful for the divorced parties to marry again, The Marriage Laws (Amendment) Act, 1976 has omitted the said provision,

• and parties are free to go for 2nd marriage, if the appeal is not preferred by the opposite party or if preferred and it is dismissed;

• This section is applicable only for such marriage which got dissolved by the decree of court u/s 13 and not applicable to cases u/s 11/12;

• Parties u/s 11 & 12 can get marry as soon the decree is obtained by them for annulling the marriage;

• The Madhya Pradesh HC in Kadimbini v. Roshan Lal AIR 1990 MP 150, held that the remarriage during the pendency of appeal against the decree of divorce would be invalid.

Section 16

Sec 16 - Legitimacy of children of void and voidable marriages. 16 (1) - Notwithstanding that marriage is null and void under section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976 and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act.

16 (2) - Where 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, shall be deemed to be their legitimate child notwithstanding the decree of nullity;

• 16(3) -Nothing contained in sub-section (1) or sub-section (2) shall be construed as conferring upon any child of a marriage which is null and void or which is annulled by a decree of nullity under section 12,

• any rights in or to the property of any person, other than the parents, in any case where, but for the 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.

• In Shantha Ram v. Smt. Dargubai AIR 1987 Bombay 182 – the court held that : the children born of void marriages would be deemed legitimate, irrespective of the decree of nullity although they would not acquire the right to succession to the same extent as is available to the children of valid marriage;

• The legitimacy conferred on them will entitles them to claim right only in the property of their parents not the coparcenary property in which father is allotted a share;

• Such children are not treated as coparceners and they would not acquire the right to seek partition.

• In Bhogadi Kannababu & others v. Vaggina Pydamma & others AIR 2006 SC 2403, the SC held that the children of void marriage would be deemed legitimate because sec 16 pf the act deals with legitimacy of children of void and voidable marriage;

• In P.E.K.Kalliani Amma v. K. Devi AIR 1996 SC 1963 – the SC dealing with sec 11 & 16(1) held-

a) Sec 16(1) now stands on its own strength and operates independently of other sections;

b) It is constitutionally valid as it does not discriminate between illegitimate children in similar circumstances and classifies them as one group for conferment of legitimacy;

c) Not withstanding that a marriage is null and void u/s 11 of the act;

Section 17 – Punishment for Bigamy

• Section 17 of the act makes the marriage void under the following conditions:

1. If the marriage is solemnized after the commencement of the act, and

2. At the time of marriage either party has a spouse living.

Renders the marriage punishable u/s 494 of IPC as bigamous act.

• To make a spouse punishable u/s 494, the marriage must be performed with proper ceremonies and in due form, otherwise it cannot be said to be solemnized;

• Once the ceremonies are proved to have been performed the marriage becomes properly solemnized and if contracted while the first marriage is still subsisting the provision of sec 494 IPC, will apply automatically.

Punishment for contravention of certain other conditions for a Hindu marriage u/s 18

Every Hindu who procures a marriage for himself or herself to be solemnized under this act in contravention to the conditions specified in clauses (iii), (iv), (v) of section 5 shall be punishable –(a) In case of sec 5 (iii) – simple imprisonment which

may extend to 15 days or with fine which may extend to 1000/- Rs. Or with both;

(b) In case of sec (iv) & (v) – with simple imprisonment which may extend to 1 month, or with fine which may extend up to 1000/- or both

Jurisdiction of court to decree and grant reliefs to which petition should be made – u/s 19

• Every petition shall be presented to the district court within the local limits of whose ordinary original civil jurisdiction –

i)The marriage is solemnized;ii) The respondent, at the time of the presentation of the petition resided;iii) The parties to the marriage last resided together; oriv) The petitioner is residing, in case where the respondent is at the time, residing outside the territories to which this act extends, or has not been heard as being alive for a period of 7 years or more. (amendment 1976)

Contents and Verifications of petition u/s 20

Sec 20(1) – every petition presented under this act shall state as distinctly as the nature of the case permits the facts to relief as founded;(2) – the statements contained in every petitions under this act shall be verified by the petitioner or by some other competent person in the manner required by the law for verifications of plaints and may, at the hearing, be referred to as evidence.- Verifications should be in the manner as plaint is verified under the CPC.

Power to transfer petitions u/s 21(A)

• Inserted by the Marriage Laws (Amendment) Act, 1976 in order to avoid multiplicity of proceedings and inconvenience to go into the entire marital life of the parties;

• The section specifically relates only to two kinds of petitions namely: a petition praying for a decree of Judicial Separation u/s 10 of the act and an application for a decree of divorce u/s 13 of the act;

• This section permits consolidation of two types of petitions under this act.

Special provisions relating to trial – sec 21(B)

• Added by Hindu Marriage Laws (amendment) Act, 1976 with a view to expedite the trail of petitions made under the HMAs.

• The trial is required to continue matrimonial proceedings from day to day until its conclusion;

• Where the trial court adjourns the hearing it should do for reasons to be recorded;

• The court should conclude the trial as expeditiously as possible within 6 months from the date of service of notice of the petitions on the respondent;

• The proceedings in appellate court are also required to be completed within the period of 3 months from the date of service of notice of appeal on the respondent;

• Sec 21-C has been inserted by the Marriage Laws (Amendment) Act, 1976 to provide for the admission of documents in evidence even though they are not duly stamped and registered

Proceedings to be in Camera - Sec 22

• Sec 22 provides that every proceedings under this act shall be conducted in camera and it shall not be lawful for any person to print or publish, any matter in relation to any such proceedings except a judgment of the HC or SC printed or published with the previous permission of the Court;

• The rule is enacted so that reports of judicial proceedings relating to matrimonial disputes may not produce an unhealthy influence on the public.

Decree in Proceedings – u/s 23• Section 23 lays down certain principles for the guidance of

the court and also the conditions on satisfaction of which the court may pass a decree in the proceedings under the act;

• Sub-sec (2) – obligates the court with the duty to make every endeavor to bring the parties together through reconciliation proceedings, where it is possible to do so;

• Sub-sec (1) lays down that only after the court is satisfied with the existence of the conditions mentioned in sub-clauses (a) to (e), the court shall decree the relief prayed for, but not otherwise;.

• Where divorce is sought on the ground of mutual consent of the parties, courts to ensure that such consent is not obtained by force, fraud or undue influence;

• The following are the conditions which the court must take into considerations before passing decree in any proceedings under the act –

1. Sub- sec (1)(a) – taking advantage of his/her own wrong or disability: the rule on the principle “one who comes to equality must come with clean hands”.In Meera bai v. Rajinder Kumar Sabti AIR 1986 Del 136 – the husband contracted a 2nd marriage & he allowed an ex parte decree for restitution of conjugal rights to be passed against him at the instance of his wife;- A decree of conjugal rights was passed and there was no compliance

of the same;- Later the husband filed of divorce, on the ground of non-compliance

of the order of conjugal rights;- Rejecting the petition court held that it would amount to taking

advantage of his own wrong.

2. sub-sec (1)(b) – has not in manner been accessory to or connived at or condoned: the word “accessory” is intended to mean aiding to produce or contribute to the bringing about the offence complained against;N.G. dastan v. S. Dastan AIR 1975 SC 1537 – the remedy to be available to the petitioner was refused because of condoning the offence of cruelty, living as husband and wife, having cohabitation made the petitioner accessory for the offence.

3. Sub - sec (1)(c) – collusion – “collusion in judicial proceedings is a secret agreement between two persons that one should institute against the other in order to obtain the decision, the judgment obtained by such collusion is a nullity”. - collusion indicate that an improper or an ulterior purpose has brought together the contesting parties in order to snatch a decision from the hands of the court.

4. sub-sec(1)(d) –delay – there has not been unnecessary and improper delay in instituting the proceedings;-Unnecessary delay is indicative of condonation and acceptance by silence; where the petitioner offers a satisfactory explanation of the delay, the court may condone the delay and allow the petition;- Jyotish Chandra v. Meera AIR 1970 Cal 226 – the wife filed petition after 21 months, the reason was her sister’s marriage was in pending and the court accepted the delay

5. Absence of legal bar – sec 23 (1) (e) – the last condition to be satisfied is that the petition contains no valid basis which could suffice refusal of relief prayed for.

Reconciliation u/sec 23(2)• The amendment act of 1976 has cast a duty on the courts

to make an endeavor to bring about a reconciliation between the parties to the marriage.

• Effort of reconciliation should be made in the beginning of the proceedings;

• In cases of a petition for divorce on the grounds of conversion, unsoundness of mind, virulent form of leprosy, communicable form of venereal disease, renunciation of world or not known for 7 years, there is no duty cast on the courts to make an endeavour to bring about a reconciliation between the parties

Interim maintenance and expenses – u/s 24

• Sec 24 of the act makes provision for the grant of maintenance pendente lite & expenses of the proceedings to either spouse;

• such provision of maintenance in favour of a needy spouse applies irrespective of whether such spouse appeared as initiator of the proceedings or not;

• The object behind this provision is to provide financial assistance to the indigent spouse to maintain himself or herself during the pendency of the proceedings , so that the spouse does not unduly suffer in the conduct of case for want of funds.

• The maintenance application shall be heard and disposed off with in 6 months from the date of serving the notice on either the husband/ wife as the case may be;

• Once the order is passed, no matter what happens in the question thereafter, the liability to pay maintenance and expenses of the litigation in respect of the period during which the proceedings were pending cannot be avoided;

• The subsequent dismissal of the petition does not exonerate the liability already incurred

• The party standing in that need may be petitioner or respondent;

• The words husband and wife does not mean only the lawful husband and wife, it would also include such person who claims to be husband or wife in so called marriage or marriages not legally recognized;

• The court can exercise the power of granting maintenance pendente lite even in the cases of invalid marriages and pass an order of maintenance.

The application shall be considered:

a) The status of the parties to the marriage;b) Legitimate needs of the claimant, like food,

clothing, medicine, place of shelther, education etc.;

c) The own income of the claimant;d) Income of the respondent;e) The number of persons required to be

maintained by both the parties;

• In Brijlal v. Maya, AIR 1977 HP 208 – where the wife during the pendency of the petition for judicial separation, makes an application for maintenance and expenses, it cannot be refused to her on the ground that she had been living the life of adultery.

• In application of these kinds the conduct of the applicant is out of place and her alleged misconduct would not disentitle her to receive pendente lite maintenance.

• The maintenance pendente lite can be claimed only for the spouse not for the children.

• In Smt. Jairani v. Om Prakash AIR 1984 Del 321 – it was held that – where the court passes an order of maintenance, it becomes the duty of such a party to go on making payment of the amount throughout the continuance of the proceedings, failing which the court can stay the proceedings for the marital reliefs.

• In Ambika Singh v. Smt.Harinder Kaur AIR 1979 P&H 211 – the court observed that even after close of proceedings under this section the court remains competent to order pendente lite maintenance and expenses of litigation and it cannot be refused simply because the said litigation had ended.

Permanent Alimony and Maintenance U/S 25

- Under sub section (1) of 25 application is to filed;Permanent alimony and maintenance can be granted to any of the party to an marriage at the time of passing any decree under the Act or at any time subsequent thereto.1. The court shall take into account the status of opposite party in fixing the amount for maintenance;2. The court has been empowered to rescind or modify the order at any subsequent stage if the circumstances so warrant3. If the petitioner becomes inchoate or remarries at any subsequent stage the court may at the instance of the other party, vary, modify or rescind any such order in such manner as the court may deem just.

• The right to permanent alimony accrues only when a decree has been passed in favour of the petitioner u/s 9 – 13.

• If the petition of the husband is dismissed under any of the sections (9-14), the application for permanent maintenance filed by the wife u/s 25 of the act will also be rejected,

• But still the wife could claim maintenance u/s 18(1) of the Hindu Adoptions and Maintenance Act, 1956 or u/s 125 of Cr.PC

• The court cannot entertain any claim for maintenance in any proceedings u/s 25 of HMA 1955, which are maintainable u/s 18 of HA & M Act.

• Section 25 confers a special right on the indigent spouse while the HA & M Act confers absolute right

• In Gulab v. Kamal AIR 1985 Del 88 – the husband got the decree of divorce against the wife on the ground of misconduct and adultery.

• The wife moved an application for maintenance u/s 25 of the Act. The court held that a decree passed against the applicant on the

ground of un chastity is no bar to his/her claiming maintenance either at the time of passing such decree or any time subsequent thereto;

The court has ample discretion to refuse or grant maintenance and the extent to which to grant the same;

But an adulterous conduct on the part of wife subsequent to the order of maintenance in her favour after the decree of divorce is passed would certainly negate her claim to get maintenance in future.

Court may rescind the order• There are two conditions in which the court may rescind its

order for alimony and maintenance u/s 25(2)&(3);• Clause (2) – if the court is satisfied that there is change in the

circumstances of either party at any time after it has made an order, it may at the instance of the party vary, modify or rescind any such order in such manner as the court may deem just.

• Clause (3)- if the party in whose favour an order has been made has remarried or, if such party is the wife, that she has not remained chaste, or if the party is husband, that he has sexual intercourse with any woman outside wedlock, at the instance of other party may rescind, modify or vary the order.

Custody of Children u/s 26• The court is empowered to pass any order or make any

arrangement in respect of custody, maintenance and education of children during the pendency of the proceedings or after any decree is passed under this act in any case between the parents and children;

• The expression child includes both illegitimate and legitimate children;

• The court has jurisdiction to make an order for custody of an illegitimate child and the father has got primacy over the mother with respect to custody of minor’s person or property of illegitimate child;

• However, welfare of the child is paramount consideration.

• After Marriage Laws (amendment) Act of 2001, the application with respect to the maintenance and education of the minor children shall be disposed off within 60 days from the date of service of notice on the respondent.

• Where the application is for child below the age of 5 years has been made by the wife, the custody shall be entrusted to her unless there are special circumstances suggesting that the welfare of the child demanded otherwise.

Disposal of Property u/s 27

• The court has power to make proper orders with respect to any property –

1. Presented or acquired at or about the time of marriage;2. It should be in the joint ownership of the husband and

wife;-The court can exercise its power under this section suo motu or on application of any party thereto;-this section is meant only for making a division of the property presented, at or about the time of marriage, which belong jointly to both the spouses.

Enforcement of and appeal from decrees and order - u/s 28

• The Marriage Laws (Amendment) Act, 1976, has substituted the old sec 28 and added a new sec 28-A ;

• u/s 28-A all decrees made by the court in any proceedings under this act shall be appealable as original decrees of the court;

• Every appeal shall be preferred with in a period of 30 days from the decree or order;

Savings – u/s 29

Sec 29(1) lays down that any Hindu Marriage solemnized before the commencement of the Hindu Marriage Act, 1955, shall not be considered invalid on account of the fact that the parties thereto belonged to same gothra or pravara or to different religion.