1. Short title and extent.-
ACT NO. 25 OF 1955 1* [18th May, 1955.]
An Act to amend and codify the law relating to marriage among Hindus. BE it enacted by Parliament in the Sixth Year of the Republic of India as follows:-
(1) This Act may be called the Hindu Marriage Act, 1955.
(2) It extends to the whole of India except the State of Jammu and Kashmir 1, and applies also to Hindus domiciled in the territories to which this Act extends who are outside the said territories.
1. The Act has been made applicable to the State of Jammu and Kashmir by the J&K Hindu Marriage Act, 1955 (J&K Act 7 of 1955).
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 Samam,
(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 any thing 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.
In section 2, insert the following sub-section:—
“(2A) Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall apply to the Renoncants of the Union territory of Pondicherry .”
[ Vide Regn. 7 of 1963, sec. 2 and Sch. (w.e.f. 1-10-1963).]
Applicability of the Act
The marriage between the members of Scheduled Tribes is not governed by the Hindu Marriage Act in the light of section 2(2). Rather their marriage would be governed only by their Santhal customs and usage. Dr. Surrajmani Stellee K ujur v. Durga Charan Hansdah , AIR 2001 SC 938.
In this Act, unless the context otherwise requires,-
(a) the expressions “custom” and “usage” signify any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family:
Provided that the rule is certain and not unreasonable or opposed to public policy; and
Provided further that in the case of a rule applicable only to a family it has not been discontinued by the family;
(b) “district court” means, in any area for which there is a city civil court, that court, and in any other area the principal civil court of original jurisdiction, and includes any other civil court which may be specified by the State Government, by notification in the Official Gazette, as having jurisdiction in respect of the matters dealt with in this Act;
(c) “full blood” and “half blood”-two persons are said to be related to each other by full blood when they are descended from a common ancestor by the same wife and by half blood when they are descended from a common ancestor but by different wives;
(d) “uterine blood”- two persons are said to be related to each other by uterine blood when they are descended from a common ancestress but by different husbands;
Explanation.-In clauses (c) and (d), “ancestor” includes the father and “ancestress” the mother;
(e) “prescribed” means prescribed by rules made under this Act;
(f) (i) “sapinda relationship” with reference to any person extends as far as the third generation (inclusive) in the line of ascent through the mother, and the fifth (inclusive) in the line of ascent through the father, the line being traced upwards in each case from the person concerned, who is to be counted as the first generation;
(ii) two persons are said to be “sapindas” of each other if one is a lineal ascendant of the other within the limits of sapinda relationship, or if they have a common lineal ascendant who is within the limits of sapinda relationship with reference to each of them;
(g) “degrees of prohibited relationship”-two persons are said to be within the “degrees of prohibited relationship”-
(i) if one is a lineal ascendant of the other; or
(ii) if one was the wife or husband of a lineal ascendant or descendant of the other ; or
(iii) if one was the wife of the brother or of the father’s or mother’s brother or of the grandfather’s or grandmother’s brother of the other; or
(iv) if the two are brother and sister, uncle and niece, aunt and nephew, or children of brother and sister or of two brothers or of two sisters;
Explanation.-For the purposes of clauses (f) and (g), relationship includes-
(i) relationship by half or uterine blood as well as by full blood;
(ii) illegitimate blood relationship as well as legitimate;
(iii) relationship by adoption as well as by blood and all terms of relationship in those clauses shall be construed accordingly.
4. Over-riding effect of Act.-
Save as otherwise expressly provided in this Act,-
(a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;
(b) any other law in force immediately before the commencement of this Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in this Act.
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;
1[(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 2[***];]
(iii) the bridegroom has completed the age of 3[twenty-one years] and the bride, the age of 4[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;
Burden of Proof
The material made available documentary and oral, not supporting that the wife is christian. Held that the marriage is not illegal and void; T. Perumal v. R. Nesammal , AIR 2004 Mad 37.
Any marriage solemnized in contravention of clause (iii) of section 5 is neither void nor voidable, the only consequence being that the persons concerned are liable for the punishment under section 18 and further if the requirements of clause (iv) of sub-section (2) of section 13 as inserted by the marriage laws (Amendment) Act, 1976 are, satisfied, at the instance of the bride, a decree of divorce can be granted; P. Venkataramana v. State , AIR 1977 AP 43.
Necessity for a Hindu Marriage
(i) A marriage between a Hindu man who converted as Christian and a Christian lady in a Hindu form is not a valid marriage. According to section 5 of the Act marriage can be solemnised between two Hindus; M. Vijayakumari v. K. Devabalan , AIR 2003 Ker 363.
(ii) To draw an inference merely from the fact that the spouses had no co-habitation for a short period of about a month, is neither reasonable nor permissible. To brand the wife as unfit for marriage and procreation of children on account of the mental disorder, it needs to be established that the ailment suffered by her is of such a kind or such an extent that it is impossible for her to lead a normal married life; R. Lakshmi Narayan v. Santhi , AIR 2001 SC 2110.
If a man and a woman are living under the same roof and cohabiting for a number of years, the law would raise presumption that they lived as husband and wife; S.P.S. Balasubramanyam v. Suruttayan, AIR 1992 SC 756.
1. Subs. by Act 68 of 1976, sec. 2, for clause (ii) (w.e.f. 27-5-1976).
2. The words “or epilepsy” omitted by Act 39 of 1999, sec. 2 (w.e.f. 29-12-1999).
3. Subs. by Act 2 of 1978, sec. 6 and Sch., for “eighteen years” (w.e.f. 1-10-1978).
4. Subs. by Act 2 of 1978, sec. 6 and Sch., for “fifteen years” (w.e.f. 1-10-1978).
5. Clause (vi) omitted by Act 2 of 1978, sec. 6 and Sch. (w.e.f. 1-10-1978).
6. Guardianship in marriage.-
[Rep. by the Child Marriage Restraint (Amendment) Act, 1978 (2 of 1978), sec. 6 and Sch. (w.e.f. 1-10-1978)].
7. Ceremonies for a Hindu marriage.-
(1) A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto.
(2) Where such rites and ceremonies include the saptpadi (that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken.
After section 7, insert the following section, namely:—
(a) by each party to the marriage declaring in any language understood by the parties that each takes the other to be his wife or, as the case may be, her husband; or
(b) by each party to the marriage garlanding the other or putting a ring upon any finger of the other; or
(c) by the tying of the thali.
(2) (a) Notwithstanding anything contained in section 7, but subject to the other provisions of this Act, all marriages to which the section applies solemnised after the commencement of the Hindu Marriage (Madras Amendment) Act, 1967, shall be good and valid in law.
(b) Notwithstanding anything contained in section 7 or in any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of the Hindu Marriage (Madras Amendment) Act, 1967, or in any other law in force immediately before such commencement or in any judgment, decree or order of any court, but subject to sub-section (3) all marriages to which this section applies solemnised at any time, before such commencement shall be deemed to have been, with effect on and from the date of the solemnisation of each such marriage, respectively, good and valid in law.
(3) Nothing contained in this section shall be deemed to—
(a) render valid any marriage referred to in clause (b) of sub-section (2), if before the commencement of the Hindu Marriage (Madras Amendment) Act, 1967,—
(i) such marriage has been dissolved under any custom or law; or
(ii) the woman who was a party to such marriage has, whether during or after the life of the other party thereto, lawfully married another; or
(b) render invalid a marriage between any two Hindus solemnised at any time before such commencement, if such marriage was valid at that time; or
(c) render valid a marriage between any two Hindus solemnised at any time before such commencement, if such marriage was invalid at that time on any ground other than that it was not solemnised in accordance with the customary rites and ceremonies of either party thereto:
Provided that nothing contained in this sub-section shall render any person liable to any punishment whatsoever by reason of anything done or omitted to be done by him before such commencement.
(4) Any child of the parties to a marriage referred to in clause (b) of sub-section (2) born of such marriage shall be deemed to be their legitimate child:
Provided that in a case falling under sub-clause (i) or sub-clause (ii) of clause (a) of sub-section (3), such child was begotten before the date of the dissolution of the marriage or, as the case may be, before the date of the second of the marriages referred to in the said sub-clause (ii).”
[Vide Tamil Nadu Act 21 of 1967, sec. 2 (w.e.f. 20-1-1968).]
8. Registration of Hindu marriages.-
(1) For the purpose of facilitating the proof of Hindu marriages, the State Government may make rules providing that the parties to any such marriage may have the particulars relating to their marriage entered in such manner and subject to such conditions as may be prescribed in a Hindu Marriage Register kept for the purpose.
(2) Notwithstanding anything contained in sub-section (1), the State Government may, if it is of opinion that it is necessary or expedient so to do, provide that the entering of the particulars referred to in sub-section (1) shall be compulsory in the State or in any part thereof, whether in all cases or in such cases as may be specified, and where any such direction has been issued, any person contravening any rule made in this behalf shall be punishable with fine which may extend to twenty-five rupees.
(3) All rules made under this section shall be laid before the State Legislature, as soon as may be, after they are made.
(4) The Hindu Marriage Register shall at all reasonable times be open for inspection, and shall be admissible as evidence of the statements therein contained and certified extracts therefrom shall, on application, be given by the Registrar on payment to him of the prescribed fee.
(5) Notwithstanding anything contained in this section, the validity of any Hindu marriage shall in no way be affected by the omission to make the entry.
9. Restitution of conjugal rights.-
1[***] When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.
2[ Explanation. —Where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.]
If a consent decree for restitution of conjugal rights under section 9 of the Hindu Marriage Act, 1955, is passed, it will not be a nullity. If it is not challenged in appeal or by way of other remedy available under the law and becomes final, it cannot be ignored and can form the basis of divorce proceedings under section 13(1A) of the Hindu Marriage Act, 1955; Saroj Rani v. Sudarshan Kumar , AIR 1984 SC 1562.
Where it is found that conduct of husband created reasonable apprehension in mind of wife that it would be unsafe for her not to stay with husband, the decree for restitution of conjugal rights in favour of husband cannot be granted; Kamaladevi v. Shiva Kumar Swamy, AIR 2003 Kar 36.
For obtaining a divorce on failure of getting restitution of conjugal rights even after a decree a spouse has to wait for one year. Thus the restitution decree and the second petition for divorce might be a slightly more expeditious way for getting relief; Karabi Das v. Paritosh Das , AIR 2003 Cal 61.
Restitution of conjugal rights
In a petition for restitution of Conjugal Rights, alternative relief of divorce cannot be claimed. These prayers are mutually destructive of each other and, therefore, cannot be made together; Baldev Raj v. Bimla Sharma, AIR 2006 HP 33.
Any law which would give an exclusive right to the husband to decide upon the place of the matrimonial home without considering the merits of the claim of the wife would be contrary to Article 14 and unconstitutional for that reason; Swaraj Garg v. K.M. Garg , AIR 1978 Del 296.
Withdrawal without reasonable excuse or just cause
Wife is under an obligation to live with her husband in his home and under his roof except in case of distinct and specific misconduct on the part of the husband. The marital obligation has been further buttressed by clear statutory recognition by section 9 of the Hindu Marriage Act; Kailash Wati v. Ayodhia Parkash, 1977 (79) PLR 175.
1. The brackets and figure “(1)” omitted by Act 68 of 1976, sec. 3(a) (w.e.f. 27-5-1976).
2. Ins. by Act 68 of 1976, sec. 3(a) (w.e.f. 27-5-1976)
3. Sub-section (2) omitted by Act 68 of 1976, sec. 3(b) (w.e.f. 27-5-1976).
10. Judicial separation.-
1[(1) Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition praying for a decree for judicial separation on any of the grounds specified in sub-section (1) of section 13, and in the case of a wife also on any of the grounds specified in sub-section (2) thereof, as grounds on which a petition for divorce might have been presented.]
(2) Where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the court may, on the application by petition of either party and on being satisfied of the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so.
Consideration by Court
It has also to be kept in mind that before granting the prayer to permanently snap the relationship between parties to the marriage every attempt should be made to maintain the sanctity of the relationship which of importance not only for the individuals or their children but also for the society. It would be too hazardous to lay down a general principle of universal application; Hirachand Srinivas Managaonkar v. Sunanda , AIR 2001 SC 1285.
To constitute desertion, there must be cessation of cohabitation without cause thereof and consent thereto and with an intention to abandon which is wilfully persisted in for the space of the statutory period. A mere reverance of the relation is not sufficient, since there may be separation without desertion and desertion without separation. Continued separation of husband and wife which may be consistent with no intention to wilfully desert, is not desertion within the meaning of statute; Bipin Chandra v. Prabhavati , AIR 1957 SC 176.
1. Subs. by Act 68 of 1976, sec. 4, for sub-section (1) (w.e.f. 27-5-1976). Earlier sub-section (1) was amended by Act 72 of 1956, sec. 2 (w.e.f. 20-12-1956).
11. Void marriages.-
Any marriage solemnised after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto 1[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.
Injunction restraining the other from performing bigamous marriages
There is no provision in the Hindu Marriage Act, 1955 under which a wife, apprehending her husband’s taking second wife, can apply for and obtain an injunction restraining him from doing so. She cannot do so under section 11 or 17 or any other provision of the Act; Umashanker v. Radhadevi, AIR 1967 Pat 220.
1. Ins. by Act 68 of 1976, sec. 5 (w.e.f. 27-5-1976).
12. Voidable marriages.-
(1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:-
(a) that the respondent was impotent at the time of the marriage and continued to be so until the institution of the proceedings; or
(b) that the marriage is in contravention of the condition specified in clause (ii) of section 5; or
(c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner is required under section 5, the consent of such guardian was obtained by force or fraud; or
(d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner.
(2) Notwithstanding anything contained in sub-section (1), no petition for annulling a marriage-
(a) on the ground specified in clause (c) of sub-section (1) shall be entertained if-
(i) the petition is presented more than one year after for force had ceased to operate or, as the case may be, the fraud had been discovered; or
(ii) the petitioner has, with his or her full consent, lived with the other party to the marriage as husband or wife after the force had ceased to operate or, as the case may be, the fraud had been discovered;
(b) on the ground specified in clause (d) of sub-section (1) shall be entertained unless the court is satisfied-
(i) that the petitioner was at the time of the marriage ignorant of the facts alleged;
(ii) that proceedings have been instituted in the case of a marriage solemnized before the commencement of this Act within one year of such commencement and in the case of marriages solemnized after such commencement within one year from the date of the marriage; and
(iii) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the grounds for a decree.
(1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party—
1[(i) has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or]
1[(ia) has, after the solemnisation of the marriage, treated the petitioner with cruelty; or]
1[(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or]
(ii) has ceased to be a Hindu by conversion to another religion; or
2[(iii) 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.
Explanation .—In this clause,—
(a) 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;
(b) 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; or]
(iv) has 3[***] been suffering from a virulent and incurable form of leprosy; or
(v) has 3[***] been suffering from venereal disease in a communicable form; or
(vi) has renounced the world by entering any religious order; or
(vi) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive; 4[***]
5[ Explanation. —In this sub-section, the expression “desertion” means the 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, and its grammatical variations and cognate expressions shall be construed accordingly.]
7[(1A) Either party to a marriage, whether solemnised before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground—
(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of 7[one year] or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or
(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of 7[one year] or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.]
(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground,—
(i) in the case of any marriage solemnised before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnisation of the marriage of the petitioner:
Provided that in either case the other wife is alive at the time of the presentation of the petition; or
(ii) that the husband has, since the solemnisation of the marriage, been guilty of rape, sodomy or 8[bestiality; or]
9[(iii) that in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) [or under the corresponding section 488 of the Code of Criminal Procedure, 1898 (5 of 1898)], a decree or order, as the case may be, 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 upwards; or
10[(iv) that her marriage (whether consummated or not) was solemnised before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.]
Explanation. —This clause applies whether the marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976)*.]
In its application to Hindus domiciled in Uttar Pradesh and also when either party to the marriage was not at the time of marriage a Hindu domiciled in Uttar Pradesh, in section 13—
(i) in sub-section (1), after clause (i) insert (and shall be deemed always to have been inserted) the following clause, namely:—
“(1a) has persistently or repeatedly treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party; or”, and
(ii) for clause (viii) (since repealed in the principal Act) substitute (and shall be deemed to have been substituted) following clause, namely:—
“(viii) has not resumed cohabitation after the passing of a decree for judicial separation against that party and—
(a) a period of two years has elapsed since the passing of such decree, or
(b) the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of other party; or
[Vide Uttar Pradesh Act 13 of 1962, sec. 2 (w.e.f. 7-11-1962)].
Connivance means where a person knows that a wrongful act is being done or is to be done, and the person he or she either assists, or being under duty to interfere, does not interfere or prevent it, in that case it is said that the person has connived; K.J. v. K. , AIR 1952 Nag 395.
Consideration of facts
Institution of marriage occupies an important place and role to play in the society in general, therefore, it would not be appropriate to apply any submission of irretrievably broken marriage as a straight jacket formula for grant of relief of divorce. This aspect has to be considered in the background of the other facts and circumstances of the case; Chetan Dass v. Kamla Devi , AIR 2001 SC 1709.
(i) Cruelty which is a ground for dissolution of marriage may be defined as wilful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger. The question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society, to which the parties belong, their social values, status, environment in which they live. Cruelty need not be physical. If from the conduct of the spouse it is established or an inference can be legitimately drawn that the treatment of the spouse is such that it causes apprehension in the mind of the other spouse, about his or her mental welfare then this conduct amounts to cruelty; Maya Devi v. Jagdish Prasad , AIR 2007 SC 1426.
(ii) Making false allegations against husband of having illicit relationship and extramarital affairs by wife in her written statement constitute mental cruelty of such nature that husband cannot be reasonably asked to live with wife. Husband is entitled to decree of divorce; Sadhana Srivastava v. Arvind Kumar Srivastava , AIR 2006 All 7.
(iii) The expression “Cruelty” as envisaged under section 13 of the Act clearly admits in its ambit and scope such acts which may even cause mental agony to aggrieved party. Intention to be cruel is not an essential element of cruelty as envisaged under section 13 (1) (ia) of the Act. It is sufficient that if the cruelty is of such type that it becomes impossible for spouses to live together; Neelu Kohli v. Naveen Kohli , AIR 2004 All 1.
(iv) The levelling of false allegation by one spouse about the other having alleged illicit relations with different persons outside wedlock amounted to mental cruelty; Jai Dayal v. Shakuntala Devi , AIR 2004 Del 39.
(v) Mental disorder for relief under section 13 (1) (iii) should be of such a degree that it is impossible to lead normal marital life or it is unreasonable to expect a person to put up with a spouse with such condition; B.N. Panduranga Shet v. S.N. Vijayalaxmi , AIR 2003 Karn 357
(vi) Due to the criminal complaint filed by the wife, the husband remained in jail for 63 days and also his father and brother for 20 to 25 days. Therefore, even though the case of cruelty may not have been proved but as the facts emerging from the record clearly indicate that the living of the two as husband and wife would not only be difficult but impossible, the court has no alternative but to grant a decree of divorce; Poonam Gupta v. Ghanshyam Gupta , AIR 2003 All 51.
(vii) Unless the entire genesis of the quarrels in the course of which, one of the spouses holds out a threat to take his or her life is placed before the court, the very fact that some threat in the course of a quarrel is held out, cannot be viewed in isolation or construed as mental cruelty to the other spouse; Nalini Sunder v. G.V. Sundar , AIR 2003 Kar 86.
(viii) A husband cannot ask his wife that he does not like her company, but she can or should stay with other members of the family in matrimonial home. Such an attitude is cruelty in itself on the part of the husband; Yudhishter Singh v. Sarita , AIR 2002 Raj 382.
(ix) Removal of mangalsutra by wife at the instance of her husband does not amount to mental cruelty; S. Hanumantha Rao v. S. Ramani , AIR 1999 SC 1318.
(x) A threat to commit suicide by the wife amounts to infliction of mental cruelty on the husband but it should not be uttered in a domestic tiff; Pushpa Rani v. Vijay Pal Singh , AIR 1994 All 220.
(xi) Solitary instance of cruelty would not constitute cruelty so as to grant a decree for divorce rather the behaviour of the other party has to be persistently and repeatedly treating the other spouse with such cruelty so as to cause a reasonable apprehension in the mind of the husband/wife that it will be harmful or injurious for him or her to live with the other party. The expression “persistently” means continue firmly or obstinately and the expression “repeatedly” means to say or do over again; Vimlesh v. Prakash Chand Sharma, AIR 1992 All 261.
Without any reason, simply for the love and affection towards the father, no married daughter would stay with her father abandoning her husband. The theory of abnormal relationship has not been established by the petitioner and it is totally false. Therefore, there is no desertion by the wife; P. Kalyanasundaram v. K. Paquialatchamy , AIR 2004 Mad 43.
Defence of insanity is not available on that the offending spouse is not capable of knowing what he is doing if the conduct is held to be cruelty regardless of motive or intention to be cruel. Insanity, therefore, should not bar the relief claimed by the wife; Trimabak Narayan Bhagwat v. Kumudini T. Bhagwat , AIR 1967 Bom 80.
Intention to bring cohabitation permanently to an end
Where there is a break down of the marriage, this in itself should be a cause for which divorce should be available under law. It would then be immaterial to inquire as to which of the two parties is at fault; Swaraj Garg v. K.M. Garg , AIR 1978 Del 296.
Section 13 does not envisage luxury. The provisions are meant to preserve the meaning of life. Personal laws may be different from laws of equity nonetheless they are based on equitable judicious perception for appreciation of facts and circumstances in their light; Ram Lakhan v. Prem Kumari , AIR 2003 Raj 115.
Solitary ground for divorce
Frivolous and vexatious litigation instituted and fought under the pressure of some family members cannot be used as a ground to contend that the marriage has irretrievably broken down and the marriage is, for all practical purposes, dead. Acceptance of such argument will mean, that in all matters wherever matrimonial litigation went on for five to ten years, the divorce must follow. The marriage cannot be dissolved on this solitary ground; Neeta Kirit Desai v. Bino Samuel George , AIR 2003
1. Subs. by Act 68 of 1976, sec. 7(a)(i), for clause (i) (w.e.f. 27-5-1976).
2. Subs. by Act 68 of 1976, sec. 7(a)(ii), for clause (iii) (w.e.f. 27-5-1976).
3. Certain words omitted by Act 68 of 1976, sec. 7(a)(iii) (w.e.f. 27-5-1976).
4. The word “or” omitted by Act 44 of 1964, sec. 2(i)(a) (w.e.f. 20-12-1964).
5. Ins. by Act 68 of 1976, sec. 7(a)(iv) (w.e.f. 27-5-1976).
6. Clauses (viii) and (ix) omitted by Act 44 of 1964, sec. 2(i)(b) (w.e.f. 20-12-1964).
7. Ins. by Act 44 of 1964, sec. 2(ii) (w.e.f. 20-12-1964).
8. Subs. by Act 68 of 1976, sec. 7(b), for “two years” (w.e.f. 27-5-1976).
9. Subs. by Act 68 of 1976, sec. 7(c)(i), for “bestiality” (w.e.f. 27-5-1976).
10. Ins. by Act 68 of 1976, sec. 7(c)(ii) (w.e.f. 27-5-1976).
11. Ins. by Act 68 of 1976, sec. 7(c)(ii) (w.e.f. 27-5-1976).
* Date of commencement 27-5-1976.
13A. Alternate relief in divorce proceedings. —
1[13A. Alternate relief in divorce proceedings. —In any proceeding under this Act, on a petition for dissolution of marriage by a decree of divorce, except in so far as the petition is founded on the grounds mentioned in clauses (ii), (vi) and (vii) of sub-section (1) of section 13, the court may, if it considers it just so to do having regard to the circumstances of the case, pass instead a decree for judicial separation.]
Breakdown theory It would not be very reasonable to think that the relief which is available to the spouse against whom a decree for restitution has been passed, should be denied to the one who does not insist on compliance with the decree passed in his or her favour. In order to be a ‘wrong’ within the meaning of section 23(1)(a) the conduct alleged has to be something more than a mere disinclination to agree to an offer of reunion, it must be misconduct serious enough to justify denial of the relief to which the husband or the wife is otherwise entitled; Dharmendra Kumar v. Usha Kumar , AIR 1977 SC 2218.
1. Ins. by Act 68 of 1976, sec. 8 (w.e.f. 27-5-1976).
13B. Divorce by mutual consent. —-
1[13B. Divorce by mutual consent. —(1) Subject to the provisions of this Act
a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976)*, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.
(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnised and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.]
Period of six months not mandatory
As provided in sub-section (2) of section 13B the period of six months cannot be taken as mandatory, because if it is mandatory the very purpose of liberalised concept of divorce by mutual consent will be frustrated, especially when the parties have live separately and there was no chance of reunion; K. Thiruvengadam v. Nil , AIR 2008 Mad 76.
(i) The period of 6 to 18 months provided in section 13B is a period of interregnum which is intended to give time and opportunity to the parties to reflect on their move.
In this transitional period the parties or either of them may have second thoughts; Suman v. Surendra Kumar, AIR 2003 Raj 155.
(ii) The period of living separately for one year must be immediately preceding the presentation of petition. The expression ‘living separately’ connotes not living like husband and wife. It has no reference to the place of living. The parties may live under the same roof and yet they may not be living as husband and wife. The parties should have no desire to perform marital obligations; Sureshta Devi v. Om Prakash, AIR 1992 SC 1904.
(iii) The period of six to eighteen months time is given in divorce by mutual consent as to give time and opportunity to the parties to reflect on their move and seek advice from relations and friends. Mutual consent should continue till the divorce decree is passed. The court should be satisfied about the bona fides and consent of the parties. If there is no consent at the time of enquiry the court gets no jurisdiction to make a decree for divorce. If the court is held to have the power to make a decree solely based on the initial petition, it negates the whole idea of mutuality. There can be unilateral withdrawal of consent. Held, that since consent of the wife was obtained by fraud and wife was not willing to consent, there could be unilateral withdrawal, of consent; Sureshta Devi v. Om Prakash, AIR 1992 SC 1904.
1. Ins. by Act 68 of 1976, sec. 8 (w.e.f. 27-5-1976).
* Date of commencement 27-5-1976.
14. No petition for divorce to be presented within three years of marriage.-
(1) Notwithstanding anything contained in this Act, it shall not be competent for any court to entertain any petition for dissolution of a marriage by a decree of divorce, 1[unless at the date of the presentation of the petition one year has elapsed] since the date of the marriage:
Provided that the court may, upon application made to it in accordance with such rules as may be made by the High Court in that behalf, allow a petition to be presented 2[before one year has elapsed] since the date of the marriage on the ground that the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent, but if it appears to the court at the hearing of the petition that the petitioner obtained leave to present the petition by any misrepresentation or concealment of the nature of the case, the court may, if it pronounces a decree, do so subject to the condition that the decree shall not have effect until after the 3[expiry of one year] from the date of the marriage or may dismiss the petition without prejudice to any petition which may be brought after the 4[expiration of the said one year] upon the same or substantially the same facts as those alleged in support of the petition so dismissed.
(2) In disposing of any application under this section for leave to present a petition for divorce before the 5[expiration of one year] from the date of the marriage, the court shall have regard to the interests of any children of the marriage and to the question whether there is a reasonable probability of a reconciliation between the parties before the expiration of the 6[said one year].
1. Subs. by Act 68 of 1976, sec. 9(i)(a), for certain words (w.e.f. 27-5-1976).
2. Subs. by Act 68 of 1976, sec. 9(i)(b)(1), for “before three years have elapsed” (w.e.f. 27-5-1976).
3. Subs. by Act 68 of 1976, sec. 9(i)(b)(2), for “expiry of three years” (w.e.f. 27-5-1976).
4. Subs. by Act 68 of 1976, sec. 9(i)(b)(3), for “expiration of the said three years” (w.e.f. 27-5-1976).
5. Subs. by Act 68 of 1976, sec. 9(ii)(a), for “expiration of three years” (w.e.f. 27-5-1976).
6. Subs. by Act 68 of 1976, sec. 9(ii)(b), for “said three years” (w.e.f. 27-5-1976).
15. Divorced persons when may marry again.-
When a marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree or, if there is such a right of appeal, the time for appealing has expired without an appeal having been presented, or an appeal has been presented but has been dismissed, it shall be lawful for either party to the marriage to marry again:
Scope and Object
The words, “has been dissolved by decree of divorce” in section 15 mean end of relationship by the intervention of Court and it includes a decree under sections 11, 12 and 13 of the Hindu Marriage Act; Lata Kamat v. Vilas , AIR 1989 SC 1477.
Succession on the death of Hindu female
Mother and all her seven daughters would get equal share in the property. Mother executed the will in favour of one of the daughter. Thus, only 1/8 share in the estate would go to the said daughter on the basis of the will executed by her mother; Ramabai Padmakar Patil v. Rukminibai Vishnu Vekhande , AIR 2003 SC 3109.
1. Proviso omitted by Act 68 of 1976, sec. 10 (w.e.f. 27-5-1976).
16. Legitimacy of children of void and voidable, marriages.-
1 Legitimacy of children of void and voidable, marriages.- Where a decree of nullity is granted in respect of any marriage under section 11 or 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 it had been dissolved instead of having been declared null and void or annulled by a decree of nullity shall be deemed to be their legitimate child notwithstanding the decree of nullity :
Provided that nothing contained in this section shall be construed as conferring upon any child of a marriage which is declared null and void or annulled by a decree of nullity 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.
Status of Children from void & voidable marriage
Section 16 of the Act, while engrafting a rule of fiction in ordaining the children, though illegitimate, to be treated as legitimate, notwithstanding that the marriage was void or voidable chose also to confine its application, so far as succession or inheritance by such children is concerned, to the properties of the parents only a laudable and noble act of the legislature indeed in enacting section 16 to put an end to a great social evil; Jinia Keotin v. Kumar Sitaram Manjhi , (2003) 1 SCC 730.
1. Subs. by Act 68 of 1976, sec. 11, for section 16 (w.e.f. 27-5-1976).
* Date of commencement 27-5-1976.
17. Punishment of bigamy.-
Any marriage between two Hindus solemnized after the commencement of this Act is void if at the date of such marriage either party had a husband or wife living; and the provisions of sections 494 and 495 of the Indian Penal Code (45 of 1860), shall apply accordingly.
Condition for second marriage to be valid
The mere admission by the respondent that he had contracted second marriage is not enough. The impugned marriage must have been solemnized that is, the marriage should have been celebrated or performed with proper ceremonies and in due form; Bhaurao v. State of Maharashtra, AIR 1965 SC 1564.
Essential ceremonies required for bigamy
If the marriage is not a valid marriage, it is no marriage in the eyes of law. If the marriage is not a valid one according to the law applicable to the parties, no question of its being void by reason of its taking place during the life of the husband or wife of the person marrying arises. Having regard to section 17 of the Act the essential ceremonies set out under the Act had not been conducted and merely because there was distribution of sugar or gur it would not constitute a valid marriage; Surjit Kaur v. Garja Singh, AIR 1994 SC 135.
18. Punishment for contravention of certain other conditions for a Hindu marriage.-
Every person who procures a marriage of himself or herself to be solemnised under this Act in contravention of the conditions specified in clauses (iii), (iv), 1[and (v)] of section 5 shall be punishable—
2[(a) in the case of contravention of the condition specified in clause (iii) of section 5, with rigorous imprisonment which may extend to two years or with fine which may extend to one lakh rupees, or with both;]
(b) in the case of a contravention of the condition specified in clause (iv) or clause (v) of section 5, with simple imprisonment which may extend to one month, or with fine which may extend to one thousand rupees, or with both; 3[***]
1. Subs. by Act 2 of 1978, sec. 6 and Sch., for “(v) and (vi)” (w.e.f. 1-10-1978).
2. Subs. by Act 6 of 2007, sec. 20, for clause (a). Clause (a) before substitution, stood as under:
“(a) in the case of a contravention of the condition specified in clause (iii) of section 5, with simple imprisonment which may extend to fifteen days, or with fine which may extend to one thousand rupees, or with both;”.
3. The word “and” omitted by Act 2 of 1978, sec. 6 and Sch. (w.e.f. 1-10-1978).
4. Clause (c) omitted by Act 2 of 1978, sec. 6 and Sch. (w.e.f. 1-10-1978).
19. Court to which petition should be made.-
1[19. Court to which petition shall be presented. —Every petition under this Act shall be presented to the district court within the local limits of whose ordinary original civil jurisdiction—
(i) the marriage was solemnised, or
(ii) the respondent, at the time of the presentation of the petition, resides, or
(iii) the parties to the marriage last resided together, or
2[(iiia) in case the wife is the petitioner, where she is residing on the date of presentation of the petition, or]
(iv) the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is, at that time, residing outside the territories to which this Act extends, or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he were alive.]
Jurisdiction of the Court
If a marriage is solemnised at a place within the municipal limit and the party reside there only, the family Court would have exclusive jurisdiction to deal with case. The case cannot be transferred to district court on a ground that the husband resides outside the limits of municipal corporation; Arjun Singhal v. Pushpa Karwel , AIR 2003 MP 189.
1.. Subs. by Act 68 of 1976, sec. 12, for section 19 (w.e.f. 27-5-1976).
2. Ins. by Act 50 of 2003, sec. 4 (w.e.f. 23-12-2003).
20. Contents and verification of petitions.-
(1) Every petition presented under this Act shall state as distinctly as the nature of the case permits the facts on which the claim to relief is founded 1[and, except in a petition under section 11, shall also state] that there is no collusion between the petitioner and the other party to the marriage.
(2) The statements contained in every petition under this Act shall be verified by the petitioner or some other competent person in the manner required by law for the verification of plaints, and may, at the hearing, be referred to as evidence.
1. Subs. by Act 68 of 1976, sec. 13, for “and shall also state” (w.e.f. 27-5-1976).
21. Application of Act 5 of 1908.-
Subject to the other provisions contained in this Act and to such rules as the High Court may make in this behalf, all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908 (5 of 1908).
Decree under Hindu Marriage Act and decree under Code of Civil Procedure are not same
Decree under the Hindu Marriage Act and decree under Code of Civil Procedure are not of the same nature and character. A decree passed under section 10 of the Hindu Marriage Act may be rescinded by the Trial Court itself “on the application by the petition of either party on being satisfied of the truth of the statement made in petition if it consider just and reasonable to do so”. But decree passed under Code of Civil Procedure can in no circumstances be rescinded, altered, cancelled, or modified by the Trial Court; such decree may be rescinded or changed only by the Higher Court; Baby Deb v. Ajit Deb , AIR 2008 Gau 49.
21A. Power to transfer petitions in certain cases. —
1[21A. Power to transfer petitions in certain cases. —(1) Where—
(a) a petition under this Act has been presented to a district court having jurisdiction by a party to a marriage praying for a decree for judicial separation under section 10 or for a decree of divorce under section 13; and
(b) another petition under this Act has been presented thereafter by the other party to the marriage praying for a decree for judicial separation under section 10 or for a decree of divorce under section 13 on any ground, whether in the same district court or in a different district court, in the same State or in a different State, the petitions shall be dealt with as specified in sub-section (2).
(2) In a case where sub-section (1) applies,—
(a) if the petitions are presented to the same district court, both the petitions shall be tried and heard together by that district court;
(b) if the petitions are presented to different district courts, the petition presented later shall be transferred to the district court in which the earlier petition was presented and both the petitions shall be heard and disposed of together by the district court in which the earlier petition was presented.
(3) In a case where clause (b) of sub-section (2) applies, the court or the Government, as the case may be, competent under the Code of Civil Procedure, 1908 (5 of 1908), to transfer any suit or proceeding from the district court in which the later petition has been presented to the district court in which the earlier petition is pending, shall exercise its powers to transfer such later petition as if it had been empowered so to do under the said Code.]
1. Ins. by Act 68 of 1976, sec. 14 (w.e.f. 27-5-1976).
21B. Special provision relating to trial and disposal of petitions under the Act. —
1[21B. Special provision relating to trial and disposal of petitions under the Act. —(1) The trial of a petition under this Act shall, so far as is practicable consistently with the interests of justice in respect of the trial, be continued from day to day until its conclusion unless the court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded.
(2) Every petition under this Act shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial within six months from the date of service of notice of the petition on the respondent.
(3) Every appeal under this Act shall be heard as expeditiously as possible, and endeavour shall be made to conclude the hearing within three months from the date of service of notice of appeal on the respondent.]
1. Ins. by Act 68 of 1976, sec. 14 (w.e.f. 27-5-1976).
21C. Documentary evidence.-
1[21C. Documentary evidence. —Notwithstanding anything in any enactment to the contrary, no document shall be inadmissible in evidence in any proceeding at the trial of a petition under this Act on the ground that it is not duly stamped or registered.]
1. Ins. by Act 68 of 1976, sec. 14 (w.e.f. 27-5-1976).
22. Proceedings may be in camera and may not be printed or published.-
(1) a proceeding under this Act shall be conducted in camera if either party so desires or if the court so thinks fit to do, and it shall not be lawful for any person to print or publish any matter in relation to any such proceeding except with the previous permission of the court.
(2) If any person prints or publishes any matter in contravention of the provisions contained in sub-section (1), he shall be punishable with fine which may extend to one thousand rupees.
1. Subs. by Act 68 of 1976, sec. 15, for section 22 (w.e.f. 27-5-1976).
23. Decree in proceedings.-
(1) In any proceeding under this Act, whether defended or not, if the court is satisfied that—
(a) any of the grounds for granting relief exists and the petitioner 1[except in cases where the relief is sought by him on the ground specified in sub-clause (a), sub-clause (b) or sub-clause (c) of clause (ii) of section 5] is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief, and
(b) where the ground of the petition is the ground specified 2[***] in clause (i) of sub-section (1) of section 13, the petitioner has not in any manner been accessory to or connived at or condoned the act or acts complained of, or where the ground of the petition is cruelty the petitioner has not in any manner condoned the cruelty, and
3[(bb) when a divorce is sought on the ground of mutual consent, such consent has not been obtained by force, fraud or undue influence, and]
(c)4[the petition (not being a petition presented under section 11)] is not presented or prosecuted in collusion with the respondent, and
(d) there has not been any unnecessary or improper delay in instituting the proceeding, and
(e) there is no other legal ground why relief should not be granted, then, and in such a case, but not otherwise, the court shall decree such relief accordingly.
(2) Before proceeding to grant any relief under this Act, it shall be the duty of the court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavour to bring about a reconciliation between the parties:
5[Provided that nothing contained in this sub-section shall apply to any proceeding wherein relief is sought on any of the grounds specified in clause (ii), clause (iii), clause (iv), clause (v), clause (vi) or clause (vii) of sub-section (1) of section 13.]
6[(3) For the purpose of aiding the court in bringing about such reconciliation, the court may, if the parties so desire or if the court thinks it just and proper so to do, adjourn the proceedings for a reasonable period not exceeding fifteen days and refer the matter to any person named by the parties in this behalf or to any person nominated by the court if the parties fail to name any person, with directions to report to the court as to whether reconciliation can be and has been, effected and the court shall in disposing of the proceeding have due regard to the report.]
6[(4) In every case where a marriage is dissolved by a decree of divorce, the court passing the decree shall give a copy thereof free of cost to each of the parties.]
Burden of Proof
Where the connivance is doubtful, the presumption is always in favour of an absence of intention. In a case husband invited the adulterer and then decamped and gave him the opportunity for, or otherwise actively promoted the adultery, that would give rise to a presumption of connivance in the husband. Connivance by husband cannot be inferred from the mere circumstances and it must strictly be proved; K.J. v. K. , AIR 1952 Nag 395.
Scope and Object
Section 23 (1) (a) provides that before passing the decree for divorce, the Court shall record its satisfaction regarding existence of the ground of divorce and further shall see that the wrong doer is not taking benefit by getting the decree of divorce; Rajneesh v. Savita , AIR 2003 Raj 280.
1. Ins. by Act 68 of 1976, sec. 16(a)(i) (w.e.f. 27-5-1976).
2. The words “in clause (f) of sub-section (i) of section 10, or” omitted by Act 68 of 1976, sec. 16(a)(ii) (w.e.f. 27-5-1976).
3. Ins. by Act 68 of 1976, sec. 16(a)(iii) (w.e.f. 27-5-1976).
4. Subs. by Act 68 of 1976, sec. 16(a)(iv), for “the petition” (w.e.f. 27-5-1976).
5. Ins. by Act 68 of 1976, sec. 16(b) (w.e.f. 27-5-1976).
6. Ins. by Act 68 of 1976, sec. 16(c) (w.e.f. 27-5-1976).
(Rep. By the Repealing and Amending Act, 1960 (58 of 1960), sec. 2 and Sch.1).
Nothing contained in this Act shall affect any adoption made before the commencement of this Act*, and the validity and effect of any such adoption shall be determined as if this Act had not been passed.
*Date of commencement 21-12-1956.