Hindu Marriage Act

1955
By Dr. Damodar Hake
 Short title and extent: Sec. 1
• (1) This Act may be called the Hindu Marriage Act, of 1955.
• (2) It extends to the whole of India and applies also to Hindus domiciled
in the territories to which this Act extends who are outside the said
territories.
• Commencement and extent
• The Act received the assent of the President on 18 May 1955 and came
into operation on that day.
• The Act is applied to Hindus in the whole of India. The Act also applies to
Hindus domiciled in India as well as to those who are living outside India.
• The general principle of private international law is that the lex loci
governs matters relating to immovable property and the law of the
domicile governs personal relations.
 Application of Act Sec. 2
• (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, Jain or Sikh by religion; and
• (c) to any other person domiciled in the territories to which this Act
extends and 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.
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• Explanation:
• The following persons are Hindus, Buddhists, Jains 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, Jain or Sikh by religion and who is brought up as a
member of the tribe, community, group or family to which such
parent belongs or belonged; and
• (c) any person who is a convert or re-convert to the Hindu, Buddhist,
Jaina or Sikh religion.
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• (2) Notwithstanding anything contained in sub-section (1) and
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.
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• Vilayat Raj v Sunila, AIR 1983 Del 351
It has been held in this case that the Act can apply even to a person
who though a Hindu when the marriage was solemnized, has ceased
to be one by thereafter changing religion.
In Krishnakumari Thampuran v Palace Administration Board, AIR 2009
Ker 122 : (2009) 2 KLJ 101
Father was a Muslim and there was no assertion that the claimants
were brought up as Hindus.
Thus it was held by the court where there is no evidence or no
contention raised that such a person has been brought up as a Hindu,
the Act will not apply to such person.
 Conditions for a Hindu marriage: Sec. 5
• 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
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(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 marriage between the two;
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• The section lays down the conditions for a Hindu marriage
solemnized after the commencement of the Act. Section 5 must be
read with section 7, which deals with marriage ceremonies.
• Mohinder Kaur v Major Singh, AIR 1972 P&H 184.
• Held Non-fulfilment of the conditions relating to mental capacity and
age laid down in this section do not, however, render null and void,
a marriage otherwise valid.
• Rathnamma v Sujathamma, (2020) 19 SCC 714
• Where a claim of marriage had been advanced on the basis of an
agreement to marry before a sub-registrar, but neither any
ceremonies nor any custom was proved (as the parties were related
and claimed a custom), the marriage was not proved.
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• Sec. 5 (i): Monogamy:
(i) Neither party has a spouse living at the time of the marriage;
• Clause (i) of the section introduces monogamy which is essentially the voluntary
union for life of one man with one woman to the exclusion of all others. It
enacts that neither party must have a spouse living at the time of marriage.
• The expression ‘spouse’ here used, means a lawfully married husband or wife.
• Before a valid marriage can be solemnized, both parties to such marriage must
be either single or divorced or a widow or a widower and only then they are
competent to enter into a valid marriage.
Sona Rakshel v Vinod Kumar Nayak AIR 2012
If at the time of performance of the marriage rites and ceremonies, one or other
of the parties had a spouse living and the earlier marriage had not already been
set aside, the later marriage is no marriage at all. Being in contravention of the
conditions laid down in this clause, it is void ab initio.
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• Rajni Kanta Acharya v Jyotsna Rani Tripathy, AIR 2014 Ori 21

Held marriage cannot be treated as voidable under section 12.
• B Vasundhara v B Aswarthanarayana Rao, AIR 2014 AP 51
• Even the consent of the spouse of the second marriage cannot have
the effect of validating the union.
Chamundamma v Lakshmi, AIR 2015 Kar 21.
where is has been showed that the second marriage was contracted
during the subsistence of the first marriage and that the wife of the
second union stayed with the deceased till his death, will not validate
the second union.
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• Sec.5 (ii): Mental capacity:
• Sec. 5(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
• This clause lays down as one of the conditions for a Hindu marriage that
neither party must be suffering from unsoundness of mind, mental
disorder or insanity and section 12(1)(b) renders, at the instance of a
party, the marriage voidable, if the other party was suffering from any
such state of condition at the time of the marriage.(R. Lakshmi
Narayana v. Shanti 2001 4 SCC 688)
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• At the time of the marriage, a party may be incapable of giving any
valid consent to the same, owing to unsoundness of mind. Again, a
party may, at the time of the marriage, be capable of giving consent to
the marriage, but may be suffering from a mental disorder of such a
kind or to such an extent as to be unfit for marriage and the
procreation of children.
• It can also be that a party though not suffering from any mental
infliction of the nature stated above, may yet, at the time of the
marriage, have been subject to recurrent attacks of insanity. The party
to the marriage is regarded as not having the mental capacity to
solemnize the marriage.
• It is be noted that the expression ‘mental disorder’ is not defined.
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• However, the amended provision in section 13(1)(iii) explains mental
disorders and gives the expression a very comprehensive meaning.
• Sharada v Dharampal, AIR 2003 SC 3450
• Medical examination in cases of mental illness can be ordered suo
moto or at the instance of a party to the proceedings. Such an
examination is not violative of Article 21 of the Constitution.
• Laxmi Narayan v Santhi, AIR 2001 SC 2110.
• The Act, although it lays down in clause (ii) of this section that neither
party to the marriage should be suffering from any such infliction,
does not render per se void the marriage of such a person, but makes
it only voidable.
• The mere fact that there was no cohabitation cannot lead to the
inference that a spouse is of unsound mind.
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• Sec. 5(iii): Age of the parties:
• Cluse (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;
• The Act does not in terms state that consent of the parties is
necessary for a valid marriage but lays down the condition that at the
time of marriage, the bridegroom must have completed the age of 21
and the bride the age of 18 years.
• The ‘Amendments’(Act 1978) the age for the bridegroom was raised
to 21 from 18, and the age for the bride was raised to 18 from 15.
• In case the bride was under 18, the consent of her guardian in
marriage was necessary.
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• Kawaljeet Kaur v State of Punjab, AIR 2019 P&H 148.
• Absence of consent of the parties or of the guardian of the bride
did not, render the marriage void or even voidable, if otherwise it
was duly solemnized and the prime conditions were fulfilled.
• However, a marriage may be annulled by a decree of nullity under
section 12(1)(c) on the ground that the consent of the petitioning
spouse or the guardian in the marriage of the petitioner was
obtained by force or fraud.
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• Sec. 5(iv): Degrees of prohibited relationship

• Sec. 5 (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;
• Thus. no marriage is valid if it is made between persons related to each
other within the prohibited degrees unless such marriage is sanctioned by
the custom or usage governing both the parties.
• Shakuntala Devi v Amar Nath, AIR 1982 P&H 221.
The custom which permits of a marriage between persons who are within
the degrees of prohibited relationship must fulfill the requirements of a
valid custom.
Balusami v Balakrishna, AIR 1957 Mah 97 .
The custom must not be unreasonable or opposed to public policy. No
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• DEGREES OF PROHIBITED RELATIONSHIP [SECTION 3(g)

• If one looks at Section 5 and Section 3(g) one would see that there
this expression is used. The expression is defined in Section 3(g).
• The definition placed concisely, reveals the following four categories
of prohibited relationship:
• (i) Lineal ascendants and descendants [Section 3(g)(i)];
• (ii) former spouses of lineal ascendants and descendants [Section 3(g)
(ii)];
• (iii) former wives of one’s brothers,
-former wives of one's uncles (both paternal and maternal),
-former wives of one's granduncles (both paternal and maternal)
[Section 3(g)(iii)]; and
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• (iv) Brother-sister,
-uncle-niece,
-aunt-nephew, and
-all first cousins (both parallel and cross) [Section 3(g)(ii)].
Categories (i) and (iv) are based on consanguinity and categories (ii)
and (iii) are based on affinity.
For the purposes of clauses 3(a)(f) and 3(a)(g), relationship includes.
(a) both blood relationship and adoption;
(b) blood relationship includes (i) full-blood, (ii) half-blood, and (iii) uterine blood
relationship.
(c) blood relationship also includes illegitimate as well as legitimate blood
relationship.
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• Dr Mahmood in his book called Hindu Law clearly summarizes the above
position in a tabular form as follows:
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Clause (v): Sapinda relationship

Sec. 5 (v): the parties are not sapindas of each other unless the custom
or usage governing each of them permits of marriage between the
two;
Sec. 3 (f) (i)“said 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 the sapinda relationship, or
if they have a common lineal ascendant who is within the limits of
sapinda relationship with reference to each of them;
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• Rules of Sapinda relationship
• It extends as far as
• (i) the third generation (inclusive) in the line of ascent through the
mother; and
• (ii) the fifth generation (inclusive) in the line of ascent through the
father.
• (iii) It subsists only through the father or only through the mother for
both parties. It may be through the father in the case of one party and
through the mother in the case of the other party.
• It is not limited to the whole-blood or legitimate relationship alone. It
therefore includes relationships by full-blood, half-blood, and uterine
blood, illegitimate blood relationship and also relationship by adoption.
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• No marriage is valid if it is made between parties who are related to

each other as sapindas, unless such marriage is sanctioned by usage
or custom governing both parties.
• The custom which permits of a marriage between persons who are
sapindas of each other must fulfill the requirements of valid custom,
• Now clause (a) of section 3 has given statutory sanction which defines
the expressions ‘custom’ and ‘usage’.
• The custom must not be unreasonable or opposed to public policy. No
custom would be recognized if it is abhorrent to decency and morality
or inconsistent with the practices of good men. (Balusami v
Balakrishna).
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Priyanka Das v Sujit Kumar Das, AIR 2016 Cal 276 : 2016(4) CHN (Cal)
723.
When sapindaship is a specific ground for the voidability of marriage,
the absence of a custom permitting such a marriage will make the
marriage void.

Sec. 6 [Guardianship in marriage.]—Omitted by the Child Marriage

Restraint (Amendment) Act, 1978, (2 of 1978), s. 6 and Schedule (w.e.f.
1-10-1978).
 Ceremonies for a Hindu marriage:
Sec. 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 saptapadi (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
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• A Hindu marriage under the Act must be solemnised in accordance with the
customary rites and ceremonies of at least one of the two parties thereto and
must fulfil the conditions prescribed for the same by section 5 of the Act.
• The word ‘solemnise’ means, in this connection, to celebrate the marriage with
proper ceremonies and in due form.
• Unless the marriage is celebrated or performed with proper ceremonies and in
due form, it cannot be said to be ‘solemnised’.
• Merely going through certain ceremonies with the intention that the parties are
taken to be married, will not make them ceremonies prescribed by law or
approved by any established custom.
• Bhaurao v State of Maharashtra, AIR 1965 SC 1564
When essential ceremonies constituting a Hindu marriage are not proved, the
mere issuance of a certificate under section 15 of the Special Marriage Act, 1954
cannot validate the marriage if one of the parties is not a Hindu and the marriage
has not been solemnised as per the requirements of this Act.
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• Garja Singh v Surjit Kaur, AIR 1991 Punj 177
Held solemnisation by distribution of gur and sugar, not
sufficient proof for claiming share in estate of deceased.
• Eswari v Parvathi, AIR 2014 SC 2912
• temple receipt not mentioning anything about solemnization
marriage held as a not a proof of marriage and no
presumption of solemnization of marriage shall be due to
cohabitation.
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• The Act does not, however, prescribe the ceremonies requisite for
solemnization of the marriage but leaves it to the parties to choose a
form of ceremonial marriage which is in accordance with any custom
or usage applicable to either party; and
• where the form adopted includes the saptapadi—that is the taking of
seven steps by the bridegroom and the bride jointly before the sacred
fire (homam)—the marriage becomes complete when the seventh step
is taken.
 Registration of Hindu marriages: Sec. 8
• 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.
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• (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.
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• There is no provision for compulsory registration of a marriage

under the Hindu Marriage Act, 1955
• In Seema v. Ashwani Kumar, 2006
• the Supreme Court has issued directions that the marriages of all
persons who are citizens of India belonging to various religions,
should be made compulsorily registrable in their respective States
where the marriage is solemnized.
• If the marriage is registered, the dispute concerning solemnization
of marriage is avoided; it protects the women’s rights relating to
marriage to a greater extent; it has great evidentiary value in the
matters of custody of children, rights of children, and the age of
parties to the marriage. The Supreme Court has directed the States
and Central Government to take concrete steps in this direction.
Matrimonial Reliefs under HMA
1955:
• Restitution of conjugal rights
• Judicial separation
• Nullity of marriage
• Divorce
 Restitution of Conjugal Rights:
Sec. 9
• 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.
• [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.]
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• The idea of providing for restitution by a court decree is to preserve

the marriage tie as far as possible, by enabling the court to
intervene and order the withdrawing party to join the other.
The conditions to be satisfied for obtaining such decree are:
• (i) The other spouse has withdrawn from the society of the
petitioner.
• (ii) There is no reasonable excuse for such withdrawal. If the
respondent allege reasonable excuse, the burden of proof lies on
him/her.
• (iii) The court’s satisfaction as to the truth of the statements made in
the petition.
• (iv) No legal grounds exist for refusing the decree.
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Foundation of the right:
• 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.
• Restitution presupposes a valid marriage.
• Pallavi Bhardwaj v Pratap Chauhan, 2012 AIR SCW 3805 : (2011) 15
SCC 531 .
• When there is no acceptable evidence of marriage, no restitution can
obviously be ordered.
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• There is a withdrawal from society when one of the spouses, without
reasonable excuse, terminates an existing relationship with the intention of
deserting the other, and permanently or indefinitely abandoning such
relationship.
• There is no withdrawal from society where the separation is brought about
by exigencies of work.
• Thus, while a husband and wife might be at times living apart, but
maintaining a frequent and regular social and conjugal relationship, in such a
case, there would be no withdrawal from society.
• Conversely, there may be withdrawal even while the parties are living under
the same roof.
• A pertinent issue in the context of s. 9 is whether taking up of a job by a wife
at a place other than where her husband resides amounts to desertion and
her withdrawal from his society as without reasonable cause entitling him to
sue her for restitution of conjugal rights?
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• The Rajasthan High Court, in R. Prakash v. Sneh Lata, AIR 2001 Raj 269
.
• expressly emphasized the concept of complete equality of the
spouses in this regard. The wife’s insistence on her continuing with
her employment and refusing to leave her job was held not to
constitute cruelty so as to entitle the husband to matrimonial relief.
• in Manpreet Kaur v. Devendra Pal Singh, AIR 2009 Utr 4 .
• a wife who was working at a different place and so unable to join her
husband, was held not to have withdrawn from his society without
reasonable excuse.
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• Chand Narain v. Saroj, AIR 1975 Raj 88

The husband’s conduct in insisting on the wife to take to non-vegetarian food and
drinking, and issuing invitations for another marriage, constitute cruelty—physical
and mental—sufficient enough to resist the husband’s claim for restitution.
• Gurdial Kaur v. Mukand Singh, AIR 1967 Punj 397
A husband contracting a second marriage in violation of law is sufficient excuse for
the wife to live separately.
• In Mohinder Singh v. Preet Kaur, (1981) HLR 321.
where six months after marriage, the husband became blind and the wife withdrew
from his society, it was held that she had a reasonable excuse (because of his
blindness) to withdraw. The husband’s petition for restitution was accordingly
refused.
Vijay Kumar v. Suman. (1996)1 HLR 24 (P&H).
Persistent demand for dowry, causing physical and mental torture was held as
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• Impotency or incapacity of the husband to have sexual relations

would afford a good defence to a petition under this section.
• Jagdish Lal v. Shyama Madan, AIR 1966
In this case the petition was filed by husband for restitution of conjugal
rights. The wife contended that since her husband was impotent, she
had a reasonable excuse to withdraw from his society. The husband
countered her claim saying that they had sexual relations several times.
It was established on evidence that the wife was virgo intacta, i.e. her
virginity was intact and the husband was impotent qua the wife and
she had a valid ground to withdraw.
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Constitutional Validity of Sec. 9:
• It is significant to note that in 1983-1984, the constitutional validity of
s. Section 9 of the Hindu Marriage Act, 1955 became a subject matter
of debate as a result of the Andhra Pradesh High Court judgment in
• T. Sareetha v. T. Venkatta Subbaiah. AIR 1983 AP 356
• Choudary J. termed the provision of restitution as ‘uncivilised’,
‘barbarours’, ‘engine of oppression’ and assailed s. 9 as being violative
of Arts. 14, 19 and 21 of the Constitution of India.
• The court further ruled that the ‘Sexual cohabitation is an inseparable
ingredient of a decree for restitution of conjugal rights’. The result is
that the decree holder gets a right not only to the company of the
other, but also to have sexual intercourse with her/him.
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• As a natural corollary, according to the court, it also meant the

surrender of the choice ‘to allow or not to allow one’s body to be used
as a vehicle for another human being’s creation.’
• He further stated that it is ‘to coerce through judicial process the
unwilling party to have sex against the person’s consent and free will
with the decree-holder.
• The High Court held: ‘A decree for restitution of conjugal rights
constitutes the grossest form of violation of an individual’s right to
privacy the decree denies the woman her free choice whether, when
and how her body is to become the vehicle for the procreation of
another human being.’
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• Shortly after the Andhra judgment, the Delhi High Court in
Harvinder Kaur v. Harmander Singh AIR 1984 Del 66.
Avadh Behari J. not only upheld the validity of s. 9 but also discussed its advantages.
He denounced the introduction of constitutional law in family law as ‘introducing
a bull in a china shop.’ He further stated that the AP High court has given
unnecessary emphasis to “ Sex element” while deciding case.
• The court discussed the meaning and idea of cohabitation and consortium, and the
purpose behind restitution decree in detail, and came to the conclusion that
restitution aims at cohabitation and consortium and not merely sexual intercourse,
and that there is nothing barbarous or coercive about it.
• Court ruled that the Sec. 9 aims at a ‘two-in one-ship’. It coaxes and cajoles the
withdrawing spouse to return to the matrimonial home, and, in the alternative,
facilitates dissolution of the marriage where there is no resumption of
cohabitation.
• Further, to comply with decree and resume marital life is not compulsory
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• In Saroj Rani v. Sudershan Kumar AIR 1984 SC 1562.
• The debate on the constitutional validity of s. 9 was settled by the
Supreme Court judgment and upheld the decision of Delhi High
Court upholding the constitutional validity of sec. 9 in Harvinder Kaur
v. Harmander Singh AIR 1984 Del 66.
 Judicial Separation: Sec. 10
• 10. Judicial separation.—
• (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.
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• A legal or judicial separation permits the parties to a marriage to live

apart.
• Sub-section (2) states that, where a decree for judicial separation has
been passed, it shall no longer be obligatory for either party to
cohabit with the other.
Effect of JSD:
• The effect of the decree is that certain mutual rights and obligations
arising from the marriage are 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.
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Purpose and effect of rescission of Decree of JS by Court U/S 10(2):

• 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.
Consequences of non reconciliation and non resumption of
cohabitation:
• 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 13(1A)].
• Jethabhai v Manabai, AIR 1975 Bom 88 , p 100.
• 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.
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• Biswanath v Anjali, AIR 1975 Cal 45 .
• A petition for judicial separation cannot obviously lie if the marriage
between the parties was void ab initio.
• Darshan Prasad v Civil Judge, Gorakhpur, AIR 1992 SC 967 .
• A spouse who is merely living apart without having obtained a decree for
judicial separation cannot be said to be ‘judicially separated’.
• Desertion, cruelty and adultery are the principal matrimonial offences.
• Swati Chaudhary v Major Sumit Bana, AIR 2019 All 10
• (intention to end cohabitation).The conduct of a spouse showing
unwillingness to resume cohabitation would entitle the other spouse to a
decree of separation; an intention to bring about an end to cohabitation
being essential and present.
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Anubha v Vikas Aggrawal, AIR 2003 Del 175 .

A spouse was held entitled to a decree of judicial separation when
circumstances existed compelling her to flee the matrimonial home. The facts
also showing that constructive desertion also stood proved.
Devanti Devi v Rupan Tanty, AIR 2005 Jhar 49 .
a spouse was held entitled to a decree under this section, when the husband
was proved to have been living with another woman.
Gopal Chandra Mallick v Manjari Mallick, AIR 2004 Jhar 104 .
(Burden of Proof)A spouse seeking judicial separation on grounds of his living
away from the matrimonial home due to cruel treatment and indecent
behaviour must prove such facts, failing which a decree cannot be passed.
Chetan Kumar Naik v Geetaben Naik, AIR 2012 Guj 68 .
When a decree of judicial separation is passed and where no scope of
reconciliation is seen, the court can pass a decree of divorce subsequently.
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Sec. 10 (1) and 2: Petition to District Court and grounds available for
relief:
• A petition for judicial separation may be presented to the court by
either party to a marriage on the same facts as for divorce and on
any of the grounds specified in section 13(1) and in case of a wife on
any of the additional grounds specified in section 13(2).
Either of the spouse to marriage can present petition for JS U/S 10
(1)on following grounds laid down U/S 13(1)
• i. Adultery: under section 13(1)(i).
• ii. Cruelty: under section 13(1)(ia).
• iii Desertion: under section 13(1)(ib).
• iv. Ceased to be a Hindu by Conversion: under section 13(1)(ii).
 Continue.

• v. Unsound mind: Mental disorder: under section 13(1)(iii).

• vi. Leprosy: Section 13(1)(iv) (w.e.f. 1-3-2019).
• Personal Laws(Amendment) Act 2019, Section 13(1)(iv) (w.e.f. 1-3-
2019),.
• vii. Venereal Disease: under section 13(1)(v).
• viii. Adoption of Religious Order/ Renunciation of world: under
section 13(1)(vi).
• ix .‘Not heard of ... for seven years’: under section 13(1)(vii).
• X. After decree for judicial separation’: under section 13(1A)(i).
• Xi. After decree for restitution of conjugal rights: under section
13(1A)(ii).
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In addition with the grounds stated U/S 13(1), a wife can present
petition for JS U/S 10 (1)on following grounds laid down U/S 13(2)
• i. Husband having more than one wife:
under section 13(2)(i).
• ii. Husband guilty of rape, sodomy or bestiality:
under section 13(2)(ii).
 NULLITY OF MARRIAGE :
-Void Marriages: Sec. 11
-Voidable marriages Sec. 12
Void Marriages: Sec. 11 :
• Any marriage solemnized 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.
 Continue.
Applicability of Sec. 11:
• PEK Kalliani v K Devi, AIR 1996 SC 1963 .
• The section is applicable only to a marriage solemnized after the
commencement of the Act. If a second marriage has been contracted
before the commencement of the Act, such a marriage though it may
be void, cannot be a void marriage under this Act.
• Sushila Bai Vasudev Rao Bodhanker v Govind Rao Bodhanker, AIR
2016 Hyd 221
• A second marriage solemnized before the Act came into force,
cannot be declared void under the Act as the Act is prospective.
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• Marriage void ipso jure:

• Marriage under the Act is the voluntary union of one man with one woman to
the exclusion of all others, satisfied by the solemnization of the marriage.
• A marriage may be solemnized 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 fulfill three of the
conditions enacted in section 5. The three conditions are:
• (i) neither party has a spouse living at the time of the marriage [clause (i)];
• (ii) 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;
• (iii) the parties are not sapindas of each other, unless the custom or usage
governing each of them permits of a marriage between the two [clause (v)].
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• Sushma Choure v Hitendra Kumar Borkar, AIR 2010 Chh 30

• Where a spouse had not obtained a decree of divorce before
entering into a second marriage, tin case second marriage would
be null and void.
• Balbir Singh v Baljinder Kaur, AIR 2019 P&H 125
• (defence of panchayat divorce disallowed as such custom was not
proved—second marriage void).
• Held A divorce granted by a Panchayat will not override the
provisions of the Act. It is only under this Act that a marriage
may be dissolved.
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Declaratory suit under Code of Civil Procedure, 1908:
• It may be noticed that this section relates to petition for declaration
that the marriage of the petitioner with the respondent is a nullity
and the petition has to be against the other party.
• Of course, there can be a civil suit by a person for declaration that
the marriage of A with B was a nullity and for consequential reliefs
under the Specific Relief Act, 1963, if the plaintiff has any cause of
action for such relief.
• Harmohan v Kamala Kumari, AIR 1979 Ori 51
• Ruled, thus, for instance, a first wife may file a regular suit that the
marriage of her husband with another woman is a nullity. She
cannot file a petition under this section but under CPC.
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• The phrase ‘either party thereto’ in the section means only the two
actual parties to the marriage and no third party.
• In Ram Pyari v Dharam Das, AIR 1984 All 147
• Held, there is nothing in the section or any other provision of any law
to debar a person affected by an illegal marriage from filing a suit in
a civil court for its declaration as void, if such party was affected by
such marriage.
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Decree of nullity:
A decree of nullity may be passed by the court at the instance of either party to
the marriage, solemnized 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.
• Lakshmi Ammal v Ramaswami, AIR 1960 Mad 6
• A third party cannot apply under this section for a decree of nullity and if such
party has any right, it would be enforceable by a suit.
• Kadar Nath v Suprava, AIR 1963 Pat 311 .
• Held: A first wife cannot present a petition under this section on the ground that
the husband has gone through the ceremony of a second marriage which would
be void, but she may seek relief i.e devorce on the grounds of Bigamy.
• Arti Jaiswal v Pawan Chaudhary, AIR 2016 Pat 200
• Held: Either party to the subsequent marriage can seek relief under this section
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Status and Consequences of ipso jure void marriage:
• A marriage which does not fulfill these three conditions is no
marriage at all in law, being void ipso jure.(section 5(i), (iv) and (v)
of The Hindu Marriage Act, 1955])
• It is open to the parties even without recourse to the court to treat it
as a nullity .
• Neither party is under any obligation to seek a declaration of nullity
under this section though, of course, such a declaration may be asked
for the purpose of precaution or record.
• It is competent for the parties whose marriage is null and void on the
ground of sapinda relationship between them, to enter into marriage
with another person at any time even if they had cohabited as
husband and wife after the solemnization of such marriage.
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• Moreover, where the marriage is null and void on the
ground that one of the parties to the marriage had a spouse
living at the time of the marriage, the other spouse is
competent to disregard such void marriage and enter into
marriage with another person.
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II. Voidable Marriages: Sec. 12

• (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 marriage has not been consummated owing to the impotence of the
respondent; 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 [was required under section 5 as it stood immediately
before the commencement of the Child Marriage Restraint (Amendment) Act,
1978 (2 of 1978), the consent of such guardian was obtained by force or by fraud
as to the nature of the ceremony or as to any material fact or circumstance
concerning the respondent; or
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• (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 the 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;
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• (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
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 said ground.
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• The scheme of the Act is to treat marriage as valid, void and voidable.
• A voidable marriage remains valid and binding and continues to subsist for
all purposes, unless a decree is passed by the court annulling the same on
any of the grounds mentioned in this section.
• Grounds for Considering the Marriage Violable:
• 1. Sec. 12(1)(a) that the marriage has not been consummated owing to
the impotence of the respondent:
• Impotence: In common parlance impotence had been understood in
matrimonial cases as means incapacity to consummate the marriage, that
is to say, incapacity to have conjugal intercourse, which is one of the
objects of marriage.
• Consummation-The expression has to be understood as in common
parlance and means ‘ordinary and complete intercourse’, further
penetration is an essential ingredient of consummation of marriage.
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• Raman Aggarwal v Shweta Aggarwal, AIR 2014 Del 5

• (husband avoiding sexual relations; unrebutted evidence-divorce
decreed); Supreme Court has rightly pointed out the that a party is
impotent if his or her mental or physical condition makes consummation
of the marriage a practically impossibility.
• Jaggannath Mudull v Nirupama Behera, AIR 2009 Ori 59
• Therefore where the wife had no vaginal canal, it was held that the
husband was entitled to a decree of nullity.
• B Vasanth M Prabhu v Nisha Rao, AIR 2020 Kar 158
• Where the husband could not produce evidence of the wife's impotency
and where medical evidence showed that the external genitalia of wife
are normal and it was held that potency cannot be considered in woman
as she is regarded to be passive partner in sexual activity, a decree was
refused.
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• Samir Adhikary v Krishna Adhikary, AIR 2009 Cal 278 .

• The mere fact that the wife is infertile despite normal sexual activity, is
no ground for the annulment of marriage.
• Surjit Singh v Kanvaljit Kaur, AIR 2003 P&H 353.
• The High Court of Punjab and Haryana has however held that a medical
examination to prove virginity violates Article 21 of the Constitution.
• General or Particular Impotency:
• Jagdish Lal v Shyama, AIR 1966 All 150 .
• It is not absolutely necessary that the incapacity to perform the act of
coitus must be general because a person may generally be capable of
the act and yet incapable of it with a particular individual. Relief can be
granted in cases of impotence quoad hunc or quoad hanc.
 Continue.
Shewanti v Bhawrao, AIR 1971 MP 168
• Impotency contemplated in the section does not signify sterility or
incapacity of conception but incapacity to have sexual intercourse.
• Brij Vallabh v Sumitra, AIR 1975 Raj 125.
• The mere fact of the willful wife refusing to have sexual relations with
the husband does not amount to impotency of the wife.
• Vinay Kumar v Smt. Jaya, AIR 2010 MP 112
• (vagina not fully developed, coitus not possible decree of divorce
granted).
• The true test of impotency is the practical impossibility of
consummation. The natural, inherent disabilities of a spouse leading
to non-consummation could lead to a decree of dissolution.
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• 2. Sec. 12(1)(b) that the marriage is in contravention of the
condition specified in clause (ii) of section 5:
• (We discussed this part under conditions of valid marriage)
• 3. Sec. 12(1)(c)Consent obtained by force or Fraud :
• That the consent of the petitioner, or where the consent of the
guardian in marriage of the petitioner [was required under section 5
as it stood immediately before the commencement of the Child
Marriage Restraint (Amendment) Act, 1978 (2 of 1978), the consent
of such guardian was obtained by force or by fraud as to the nature of
the ceremony or as to any material fact or circumstance concerning
the respondent; or
 Continue
• Alka Sharma v Abhinesh Sharma, AIR 1991 MP 205
• Considering the background of the system of arranged marriages, consent
would include consent given as a result of negotiations made on behalf of the
person by the parents.
• Absence of consent does not render the marriage void ipso jure but voidable
at the instance of the party whose consent was obtained by force or fraud.
• Clause (c) of sub-section (1), which has to be read with clause (a) of sub-
section (2), lays down the rule relating to annulment of such voidable
marriage. The rule is not absolute and will not operate if:
• (i) the petition is presented more than one year after the force ceases or the
fraud is discovered; or
• (ii) the petitioner has with his or her full consent and knowledge acquiesced
in the marriage by living with the other party to the marriage as husband or
wife.
Continue..
• Vikesh Sharma v Shivani, AIR 2010 Utr 76
• It has been held that a petition presented beyond the
statutory period of cessation of force or discovery of fraud
must fail.
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4.Sec. 12 1 (d)—Respondent wife pregnant at the time of marriage:

• Any marriage, whether solemnized before or after the commencement
of the Act, is voidable at the instance of the husband on the ground
that the respondent wife was at the time of the marriage pregnant by
some person other than the petitioner, provided the conditions laid
down in sub-section (2)(b) are strictly fulfilled.
• Devendra Sharma v Sandhya, AIR 2007 MP 103
• (intercourse after knowledge and failure to prove non access—no
decree).
• Held: where the husband was aware that the wife was pregnant at the
time of marriage and had intercourse with her on his consenting to do
so, after knowledge of the fact of pregnancy, the marriage could not
be voidable.
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• Mahendra Manilal Nanavati v Sushila Mahendra Nanavati, AIR 1965 SC 364
• The child was born 171 days after the first coitus between the petitioner and
the respondent wife. The delivery was normal and the child born was also
normal.
• It was held that the child was not a child born after gestation of only 171 days
and the petitioner was not the father of the child and decree was passed in
favour of husband.
• Maya Ram v Kamala Devi, AIR 2008 AIR 2008 HP 43 : (2008) 1 DMC
-child born within six months of marriage refusal to undergo DNA test, decree
passed;
Neelawwa v Maruti, AIR 2014 SC 146
-child born after 161 days of marriage; DNA test confirming that husband is not
the biological father; proof that wife was pregnant at the time of marriage
decree passed.
 Distinction between void and voidable marriage.

• The scheme of the Act, considered from the point of the validity or otherwise of a
marriage, is to lay down at the outset, the conditions relating to the formation of a
valid marriage and then to deal with marriages which are void and those which are
not void but voidable at the instance of one of the parties to the same and the various
reliefs that may be granted.
• A decree for nullity of marriage can be granted in case of a marriage, which is void ab
initio, and in case of a marriage, which is voidable on grounds to which reference has
already been made.
• A void marriage is one that will be regarded by every court, in any case in which the
existence of the marriage is in issue, as never having taken place and can be treated as
void by both parties to it without the necessity of any decree annulling it. Of course, it
is open to a party to a void marriage to have recourse to the court for a declaration
that it is null and void, but that would be for the purpose of precaution or record.
• A voidable marriage is one that will be regarded by every court as a valid subsisting
marriage until a decree annulling it has been pronounced by a court of competent
jurisdiction.
 Distinction between nullity of marriage and divorce

• The expression ‘divorce’, as used in the Act, has limited connotation and is
predicated on an existing marriage which during its subsistence, was valid in
the eye of the law and which it operates to dissolve.
• Decree for nullity of marriage, on the other hand, is to be granted when the
marriage was void or when it was voidable at the instance of an injured spouse.
• In the case of a marriage void, it did not at any time have any legal existence; in
the case of a marriage voidable, it was valid as long as it was not successfully
impeached by the party who had in his or her power to avoid it.
• In the case of a marriage, which is void, an ostensible marriage, which was void
from the inception, is stripped of its colour of legality by declaring its nullity for
reasons existing at the time of the marriage.
• In case of a divorce, however, the marriage having been duly solemnized and
itself not being void or voidable, is dissolved by the court usually for any reason
arising after the marriage.
 Divorce: Sec. 13
A: Common Grounds Available to Both Spouses to Marriage:
• Sec. 13(1): Any marriage solemnized, 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
• i. Adultery:
• Section 13(1)(i): has, after the solemnization of the marriage, had
voluntary sexual intercourse with any person other than his or her
spouse;
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• It must be noted that the expression ‘adultery’ has not been used in this
clause and instead, the words are ‘had voluntary sexual intercourse with
any person other than his or her spouse’.
• Adultery was treated as an offense under section 497 of the Indian Penal
Code.
• The Supreme Court has, in Joseph Shine v UOI , struck down that
provision, therefore adultery is no longer a criminal or penal offense, but
continues to be a matrimonial wrong and a ground of divorce.
• Does a same sex relationship of one of the spouses outside the marital
union constitute adultery:
• The definition of adultery assumes great significance here. The words
used are that the respondent “has, after the solemnization of the
marriage, had voluntary sexual intercourse with any person other than
his or her spouse”.
 Continue.

• The Supreme Court has in Navtej Singh Johar v UOI,

• held that a consensual and permissive physical relationship between persons of
the same sex will not attract the penal provision.
• in Daniel Crasto v The State of Maharashtra,
• Bombay High Court has held that in view of the decision in Navtej such
relationship, if it was consensual, was no offense. The decision further held that
such an act may amount to cruelty and may be grounds for a divorce.
• The decision in Navtej (supra) provides an impetus to and strengthens the fact
that
• Thus, since there can be a same sex consensual physical relationship, it can and
must qualify as a ground for divorce on the ground of adultery, when the
adulterer is married and that the matrimonial wrong of Adultery can no longer
be restricted only to an adulterer having a physical relationship only with a
person of the opposite sex.
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• ii. Cruelty:
Section 13(1)(ia): has, after the solemnization of the marriage, treated the
petitioner with cruelty.
• The legal conception of cruelty and the kind of degree of cruelty necessary to
amount to a matrimonial offence has not been defined by any statute of the
Indian legislature relating to marriage and divorce;
• In Shohba Rani v Madhukar Reddi, AIR 1988 SC 121
• the Supreme Court examined the sub-section 13(1)(ia) and stated the proper
approach to cases of cruelty shall be adopted.
• In this case (demand of dowry by parents of husband with the support of the
husband), was held that the demand of dowry was prohibited by law and that the
totality of the facts and circumstances of the case justified the inference of
cruelty.
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• The clause is comprehensive enough to apply to cases of mental cruelty.
• A Jayachandra v Aneel Kaur, (2004) 10 Scale 153
• When the whole conduct of the spouse shows instances of ill-treatment, use of abusive
language and allegations which amount to casting aspersions on the fidelity of the other
spouse and in general have the effect of demoralizing the spouse, against whom the
allegations are made, causing mental stress and agony, mental cruelty would be
proved.
• Vishwanath Agrawal v Sarla Agrawal, AIR 2012 SC 2586
False allegation of extramarital relationship by one spouse against other spouse amounts
to mental cruelty.
• Binu Raj G v Sandhya Lakshmi R, AIR 2020 Ker
• wife leaving matrimonial home, stopping IVF treatment, insisting that husband leave
his aged parents—held cruelty.
• Meenu Devi v Amit Kumar, AIR 2018 Jha 152
• The Supreme Court has held that refusal to have intercourse for a considerable time by
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• iii Desertion: (animus deserendi)
• Section 13(1)(ib):has deserted the petitioner for a continuous period
of not less than two years immediately preceding the presentation
of the petition;
• It may be noticed that desertion per se was not a ground for relief by
way of divorce prior to the amendment of this section by the
Amending Act of 1976, but was only a ground for the relief of judicial
separation under clause (a) of section 10(1) which was in identical
terms.
• The essence of desertion is the leaving and abandonment of one
spouse by the other without reasonable cause and without the
consent or against the wish of the other.
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• Khorshed v Muncherji, (1937) 38 Bom LR.

• The essential ingredients of this offence, in order that it may furnish a
ground for relief, are:
• (i) the factum of separation; and
• (ii) the intention to bring cohabitation permanently to an end—animus
deserendi;
• (iii) the element of permanence which is a prime condition requires
that both these essential ingredients should continue during the entire
statutory period.
• Praseena v Girish Kumar, AIR 2020 Ker 134
-wife continuously deserted for 2 years to her husband, divorce on
ground of desertion decreed
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S Natarajan v Koteswari, AIR 2020 Mad 223
wife leaving home and not willing to cohabit with husband
permanently, divorce decreed on ground of desertion).
• Hirjibhai Bachubhai Gadhiya v Kanchanben Hirjibhai Gadhiya, AIR
2018 Guj 129
-justifiable reason for wife to live apart as husband was in an
adulterous relationship; husband disentitled to divorce.
• J Ligorin v Gngnapragasi, AIR 2019 Mad 24
• employment circumstances not termed as desertion—decree refused
• Saroj v Satyendra Singh, AIR 2020 Raj 198
• husband staying at another place for job—not desertion, Divorce
refused on the ground of cruelty.
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• iv. Ceased to be a Hindu by Conversion:

• Section 13(1)(ii): has ceased to be a Hindu by conversion to another
religion;
• Conversion in the present context implies that the person has
voluntarily relinquished his religion and adopted another religion after
formal ceremonial conversion.
• It is important to note that conversion does not automatically affect a
marriage tie, and
• secondly, it is the non-convert spouse only who can seek matrimonial
relief on this ground.
• A spouse who gives up Hinduism and adopts another faith cannot go to
the court and seek any relief on this ground.
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• The term ‘Hindu’ in this clause must be understood in the wide sense
given to it in Section 2 which includes all Hindus, Buddhists, Jainas
and Sikhs.
• So a person continues to be a Hindu even though he may have been
converted from any one to any other of these religions and his case
will not be covered by this clause.
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• v. Unsound mind: Mental disorder:
• Section 13(1)(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;
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• Sampa Karmakar v Dr Sanjib Karmakar, AIR 2012 Gau 32
petitioner failed to prove schizophrenia petition dismissed.
• Jitender Soni v Manisha Verma, AIR 2019 P&H 100
• Petitioner claimed respondent has been suffering by mental disorder
which involves violent behaviour , however failed to prove same and
court rejected relief under this section.
• Debdulal Sarkar v Papiya Sarkar, AIR 2018 Jha 204
• The medical evidence reveled that the respondent is suffering by of
schizophrenia, suit decreed in favour of petitioner.
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• vi. Leprosy: Section 13(1)(iv) (w.e.f. 1-3-2019).

• Personal Laws(Amendment) Act 2019, enacted with the purpose to
remove leprosy as a ground for divorce (w.e.f. 1-3-2019).
• To this end, it amends five Acts: (i) the Divorce Act, 1869, (ii) the
Dissolution of Muslim Marriage Act, 1939, (iii) the Special Marriage
Act, 1954, (iv) the Hindu Marriage Act, 1955, and (v) the Hindu
Adoptions and Maintenance Act, 1956
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• vii. Venereal Disease:
• Section 13(1)(v): has been suffering from venereal disease in a communicable
form.
• This clause lays down as one of the grounds on which marriage may be
dissolved by a decree of divorce on the ground that the respondent has been
suffering from a venereal disease in a communicative form.
• Before its amendment in 1976, this ground required that the disease must have
been there for a period of not less than three years immediately preceding the
petition.
• The condition about the period has now been omitted.
• Mr. X v Hospital Z, AIR 1999 SC 495 .
• The right to enter into matrimony would, however be suspended till the person
who has contacted a venereal disease is cured of the same. Such suspension of
the right to marry is valid and cannot be enforced through legal process.
 Continue.
• The ground is made out if it is shown that the disease is in a
communicable form and it is not necessary that it should have been
communicated to the petitioner.
• The ground must be specifically pleaded. Question may arise as to
the construction of ‘in a communicable form’.
• Does it mean Communicable to the other spouse or to the children
that might be born of the marriage? Presumably, it means both.
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• viii. Adoption of Religious Order/ Renunciation of world:
• Section 13(1)(vi): has renounced the world by entering any religious order.
• This clause lays down that a husband or wife can seek dissolution of
marriage by a decree of divorce on the ground that the respondent has
renounced the world by entering any religious order.
• Both these requirements must be satisfied before a decree for divorce can
be granted on the ground laid down in this clause.
• The religious order whatever it may be, should be one that requires
renunciation of the world. This postulates relinquishment of all property
and worldly concerns.
• a person who wants to renounce the world by becoming a sanyasi can be
held to have entered that order only if he has performed the necessary
rites and ceremonies prescribed by the shastras.
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• Baldeo Prasad v Arya Priti Nidhi, (1930) 52 All 789 .
• The mere fact that he calls himself or is described by others as such is
not enough; and the mere adoption of the external symbols of
sanyasa as the wearing of coloured clothes or shaving of the head, is
not sufficient to make him a sanyasi.
• The renunciation of the world which is a postulant for sanyasa
requires relinquishment of all property and worldly affairs.
• Relinquishment of property need not be in favour of any particular
person but may be in a general way.
• Renunciation of the world by entering into a religious order must be
unequivocal and absolute.
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• ix .‘Not heard of ... for seven years’:
• Section 13(1)(vii): 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;
• It is a rule of presumption that in the absence of evidence to the contrary, a
person shall be taken to be dead if he has not been heard of for a period of
seven years or more by those persons who would naturally have heard of
him, had he been alive.
• The object of the rule is not to establish whether in point of fact the
respondent was dead or alive, but whether, on the day on which the decree is
passed, the facts so far as then known, were such as to justify the court in
taking action on the ground set out in the clause.
• Therefore, a decree of divorce granted under this clause is valid and effective
even if it subsequently come to light that the respondent was in fact alive
when the decree was passed.
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• X. After decree for judicial separation’:
• Either party to a marriage, whether solemnized before or after the
commencement of this Act (w.e.f. 20-12-1964), may also present a
petition for the dissolution of the marriage by a decree of divorce on
the ground
• Section 13(1A)(i):that there has been no resumption of cohabitation
as between the parties to the marriage for a period of one year or
upwards after the passing of a decree for judicial separation in a
proceeding to which they were parties;
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• xi. After decree for restitution of conjugal rights:

• Section 13(1A)(ii): that there has been no restitution of conjugal
rights as between the parties to the marriage for a period of one
year or upwards after the passing of a decree for restitution of
conjugal rights in a proceeding to which they were parties.
• Jaishri Rajendra Dhomne v Rajendra Wamanrao Dhomne, AIR 2020
Bom 257
• Where a decree for restitution has been passed and not complied
with, the spouse in whose favour the decree had been passed not
being responsible for the non-compliance, would be entitled to a
decree of divorce on this ground.
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B. Additional Grounds Available to wife:U/S 13(2)

In addition with the grounds stated U/S 13(1), a wife can present petition for
divorce on following grounds laid down U/S 13(2):
• i. Husband having more than one wife- Marriages solemnised before
commencement of the Act: Section 13(2)(i):
• Sec. 13(2)(i) in the case of any marriage solemnized 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 solemnization 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
• Sub-section (1) provides for a decree of divorce dissolving a marriage,
solemnized whether before or after the commencement of the Act, at the
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• In addition to those grounds, a wife can seek dissolution of her marriage

on the ground that the husband has, at the time of the presentation of
the petition, another wife who is alive.
• This ground can obviously exist only in case of any marriage solemnized
before the Act came into operation.
• Naganna v Lachmi Bai, AIR 1963 AP 82
• Held: The mere fact that after the filing of the petition the husband has
divorced the other wife is no ground for dismissing any such petition.
• Gitabai v Fatto, AIR 1966 MP 130 .
• Where the husband has solemnized second marriage after the
commencement of this Act the case would not fall under this clause
but such a marriage would be a nullity and the first wife can get
dissolution of marriage under sub-section (1)(i) of this section.
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• ii. Husband guilty of rape, sodomy or bestiality:
Section 13(2)(ii): that the husband has, since the solemnization of the
marriage, been guilty of rape, sodomy or bestiality.
• In addition to the grounds mentioned in sub-section (1) and clause (i) of
sub-section (2), a wife can seek divorce on the ground that the husband
has, since the solemnization of the marriage, been guilty of rape,
sodomy or bestiality.
• Attempt to commit any of these offences is not, however, a ground for
divorce.
• A wife can sue for divorce if the husband has, since the solemnization of
the marriage, been guilty of any of the unnatural offences mentioned in
this clause. The offences are committed by having carnal intercourse
against the order of nature with any man, woman or animal.
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• Coitus per os was treated as a criminal offence punishable under
section 377 of the Indian Penal Code.
• Gardner v Gardner,
• Held under the present clause, the matrimonial offences under this
head are confined only to the case of the husband.
• Preeti Kumari v Neelkanth Kumar, AIR 2018 P&H 146 (sodomy).
• If the Coitus is non-consensual and abhorrent, same shall constitute
ground for decree on this ground.
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• iii. Sec.13 (2)(iii): No reconciliation of differences and resumption of
marital relation after passing decree of maintenance:
• This clause was added by the Amending Act of 1976.
• It provides an additional ground to the wife to seek divorce if a
period of one year has elapsed after passing of an order or decree
awarding maintenance to the wife under the Hindu Adoptions and
Maintenance Act, 1956 or under section 125 of the Code of Criminal
Procedure, 1973, and there has not been any reconciliation
between the parties during that period.
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• Right of repudiation:
• Sec.13 (2)(iv): that her marriage (whether consummated or not) was
solemnized 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 solemnized
before or after the commencement of the Marriage Laws (Amendment)
Act, 1976.
• This clause was added by the Amending Act of 1976. It confers on girls
who have been married before attaining the age of 15 years, a right of
repudiation. However, the right must be exercised before attaining the age
of 18.
• The Explanation to the clause enacts that it applies whether the marriage
was solemnized before or after the commencement of the amending Act.
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• Savitri Devi v Kailash Jat, AIR 2016 Raj 22 .
• Where the marriage was repudiated by the minor wife after attaining
the age of 15 years but before the age of 18 years, and was not
denied by the husband, such a marriage was liable to be dissolved.
• Roop Narayan Verma v UOI, AIR 2007 Chhat 64 .
• Since Article 15(3) of the Constitution itself provides for making
special provisions for the benefit of women, this sub section cannot
be said to be discriminatory against husbands.
 Alternate relief in divorce proceedings: Sec. 13A.
• 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.
• In respect of grounds mentioned in clauses (ii), (vi) and (vii), the court
would grant relief by way of divorce, if the court is satisfied that the
grounds are fully established. These are conversion to another religion,
adoption of other religious order and respondent not being heard of as
alive for seven years.
• In respect of the other grounds for divorce contained in section 13, the
court has a discretion to grant a decree for judicial separation instead.
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• Ranjeet Kaur v Surendra Singh Gill, AIR 2012 MP 74
• Held: This section cannot be interpreted to mean that a
decree under the provision should be granted when the
Court does not grant a decree of divorce. The precise import
of the section is that the Court may exercise its discretion
while not granting a decree of divorce and may, instead
grant a decree of judicial separation.
 Divorce by mutual consent: SEC. 13B
• This section was introduced (w.e.f. 27-5-1976) by the Amending Act of 1976.
• 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
solemnized 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 solemnized 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.]
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• Manish Goel v Rohini Goel, AIR 2010 SC 1099
• The Supreme Court has now held that once having initiated proceedings under
section 12, the parties cannot thereafter file proceedings under section 13-B,
for dissolution of the marriage by consent, as this was an abuse of process by
the parties.
• Adherence to Six month statutory period U/S 13B is mandatory to courts
unless factual matrix are justifying to wave off the statutory period of Six
month under this section, thus in certain cases court may wave off six month
period in its discretion.
• In Nilimaben Patel v Bharatkumar Patel, AIR 2016 Guj 19
• The statutory period was waived in the peculiar circumstances, when the
parties had already undergone a customary divorce and had later approached
the Family Court with a divorce petition under this provision when the wife
wanted to remarry and her would be husband was residing abroad
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• Kirit v Praful, AIR 1993 Guj 111 .
• Court observed It is not necessary that the parties must be living in
different places. What the expression would seem to require is that they
must be living apart, i.e., not living with each other as husband and wife.
There can be cases where the parties may have been compelled to live in
the same house or premises and yet can be rightly said to be living
separately.
• Anita v R Rambilas, AIR 2003 AP 32
• Living separately or not being able to live together cannot of course mean
that it could be at the mere whim or mere volition of the parties. The
averments and facts of the case must be such that the court would be
satisfied that it was impossible for the parties to live together as husband
and wife, and had in fact been living separately for the statutory period of
one year or more.
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• In Amardeep Singh v Harveen Kaur, (2017) 8 SCC 746

• Supreme Court been held that the period U/S 13B is directory and not
mandatory. Court further observed where the Court dealing with a
matter is satisfied that a case is made out to waive the statutory
period under Section 13B(2), it can do so after considering the
following:
• i) the statutory period of six months specified in Section 13B(2), in
addition to the statutory period of one year under Section 13B(1) of
separation of parties is already over before the first motion itself;
• ii) all efforts for mediation/conciliation including efforts in terms of
Order XXXIIA Rule 3 CPC/Section 23(2) of the Act/Section 9 of the
Family Courts Act to reunite the parties have failed and there is no
likelihood of success in that direction by any further efforts;
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• iii) the parties have genuinely settled their differences including

alimony, custody of child or any other pending issues between the
parties;
• iv) the waiting period will only prolong their agony.
• v. The waiver application can be filed one week after the first motion
giving reasons for the prayer for waiver.
• vi. If the above conditions are satisfied, the waiver of the waiting
period for the second motion will be in the discretion of the
concerned Court.
• vii. Since we are of the view that the period mentioned in Section
13B(2) is not mandatory but directory, it will be open to the Court to
exercise its discretion in the facts and circumstances of each case
where there is no possibility of parties resuming cohabitation and
No petition for divorce to be presented within
one year of marriage: Sec. 14
• (1) Notwithstanding anything contained in this Act, it shall not be competent for any
court to entertain any petition for dissolution of marriage by a decree of divorce 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
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 expiry of
one year from the date to the marriage or may dismiss the petition without prejudice
to any petition which may be brought after the expiration of the said one year upon
the same or substantially the same facts as those alleged in support of the petition so
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• (2) In disposing off any application under this section for leave to present a
petition for divorce before the 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 said one year.
• The rules laid down in this section are intended to give a fair trial to every
marriage. The general rule enacted in sub-section (1) of this section is that no
petition for a decree of divorce under any of the grounds mentioned in
section 13 can be entertained by the court till the period of one year laid
down by this section has elapsed.
• Meganatha v Susheela, AIR 1957 Mad 423
• The appellate court will not interfere with the discretion exercised by the
district court, unless that court has proceeded on a wrong principle of law or
failed to have regard to a material consideration or some gross injustice has
occurred.
 Remarriage: Divorced persons when may marry again: Sec. 15

• 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.
Legitimacy of children of void and
voidable marriages: Sec. 16
• Added by Amending Act of 1976
• (1) Notwithstanding that a 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 (68 of 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.
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• (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.
• (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.
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Sec.16(1): Legitimacy of children born of void marriage:

• Sub-section (1) relates to children of a marriage which is void under
section 11, regardless of whether any decree of nullity of marriage has
been granted in any proceeding under the Act or otherwise.
• The present provision though enacted by the Amending Act of 1976,
is applicable even in the case of a child born before such amendment,
in case the marriage of the parents was void under section 11 of the
Act which came into force in 1955.
• It is immaterial whether any proceedings had taken place.
• The protection given to the child in case of any such marriage is
complete as laid down in the sub-section, subject, of course, to the
rule enacted in sub-section (3).
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• The significance of this interpretation is that by virtue of the legal
fiction as is operative in this section, children born of a void marriage
would have to be treated as legitimate for all purposes including
succession to the property of their parents.
• The net effect being that the benefit of legitimacy is conferred upon
any child born either before or after the date of the amendment.
• This would mean that even if a marriage had been contracted at the
time when there was a legislative bar to such a marriage, the offspring
of such a marriage would be treated as legitimate.
• Rameshwaridevi v State of Bihar, AIR 2000 SC 735
• While interpreting Sec. 16(1) this it was held by the court the child
would, by virtue of this clause 16(1), is entitled to succeed to the
property of his or her parents.
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• Sarita Bai v Chandra Bai, AIR 2011 MP 222

• Held: illegitimate children entitled to succession certificate with
legally married wife (1st wife) and wife of 2nd wife not entitled.
• Babulal v Natthibai, AIR 2013 MP 134
• Court Held: a child born out of void union could not demand a
partition of joint family property as such child could not be said to
acquire rights under this provision.
• UOI v VR Tripathi, AIR 2019 SC 666 .
• it has been held that such children are entitled to what are known as
'compassionate appointments' in Government service.
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Sec.16 (2): Legitimacy of children born of voidable marriage:

• Sub-section (2) relates to children of a voidable marriage in respect of
which a decree of annulment may be granted under section 12.
• If the validity of the marriage is challenged by either party and though
challenged, the marriage is not annulled, it would be a valid marriage,
and the children of the parties to such a marriage would undoubtedly
be legitimate.
• Moreover, even if the marriage is annulled at the instance of either
party, the children born of such marriage are, by operation of sub-
section (2), to be deemed to be their legitimate children for all intents
and purposes, except that by virtue of sub-section (3), such children
cannot claim any rights in or over property of any person other than
parents.
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• Sec.16 (3): Child of void or voidable marriage to have legitimate status

• Sub-sections (1) and (2) of this section makes it abundantly clear that, even in
case of a marriage void or voidable under the Act, the children of any such
marriage have the status of legitimate children. Such children would be
regarded in law as legitimate children of the parents for all purposes including
succession.
• However, as laid down in the sub-section, such children cannot, by relying on
the status conferred on them by subsections (1) and (2), claim any right in or to
the property of any person other than the parents.
• It is to ne noted that the Sec.16(3) is silent on the point whether other
persons can claim any right in or to the property offspring's of void or
voidable marriage.
• The sub-section read as a whole would seem to indicate the converse rule that
no persons other than the parents can claim any right in or to the property of
such children by operation of the rule laid down in the section.
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• Arun Kumar v Anil Kumar, 2012 (1) AIR Kar. 25 : AIR CC 417 (Kar)
• Held: Children of a void marriage not to get a share in ancestral
property. However, court further ruled that children of void marriage
can claim to property partitioned by the father during his lifetime
and share in his terminal benefits.
• Balakrishnan v Selvi, AIR 2018 Mad 103
• Held: illegitimate child not entitled to coparcenary property;
• Dipali Hrishidas v Belash Mani Hrishidas, AIR 2018 Tri 34
• illegitimate child entitled to succeed to property of father.
 Punishment of bigamy: Sec. 17

• 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, 1860 (45 of 1860),
shall apply accordingly.
 Punishment for contravention of certain other
conditions for a Hindu marriage. Sec. 18
• Every person who procures a marriage of himself or herself to be
solemnized under this Act in contravention of the conditions specified
in clauses (iii), (iv), and (v)] of section 5 shall be punishable:
• (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
 Jurisdiction: Court to which petition shall be
presented: Sec. 19
• 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 solemnized, 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
• (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.
 BARS TO MATRIMONIAL
RELIEFS: Sec.23
• 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 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
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• (b) where the ground of the petition is the ground specified 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
• (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) 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
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• (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 endeavor to bring about reconciliation
between the parties:
• 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.
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BARS TO MATRIMONIAL RELIEFS: Notes:

1. General:
• While all the personal laws make provision for matrimonial reliefs on
various grounds, the right of the aggrieved party or the petitioner to
seek relief is not absolute.
• He/she has not only to establish that the grounds prescribed for relief
sought for exist, but also that there are no situations or circumstances
which would debar him/her from getting the relief despite the
existence of the statutory ground.
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2. Taking Advantage of Wrong or Disability:
• The Hindu Marriage Act, 1955, vide s. 23(1)(a) makes it very
specific that before granting any decree, the court has to satisfy
itself that the grounds for the relief sought exist, and that the
petitioner is not in any way taking advantage of his or her own
wrong or disability for the purpose of such relief.
• This duty is enjoined on the court, irrespective of the fact whether
the proceeding is defended or not. Thus, even where a case is ex
parte, the court has to be satisfied.
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In Balwinder Kaur v. Hardeep Singh, AIR 1998 SC 764
• a wife was duped into signing a divorce petition by the husband; the
husband did not appear and an ex parte decree was passed. The wife
approached the Supreme Court after an unsuccessful appeal before
the High Court. The court held that the grant of ex parte divorce,
without satisfying itself whether the requirements of s. 23 were
complied with, was not proper.
• Mrs. Pranjali Bingi v. Prasanna Bingi, AIR 2010 (NOC) 991
• When both parties filed a divorce petition on ground of cruelty, on
different set of facts and none admitted the facts pleaded by the
other, a decree of divorce passed by the court without recording its
satisfaction and completely ignoring the provisions of s. 23, was held
to be not proper.
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• In Hirachand Srinivas Managaonkar v. Sunanda, AIR 2001 SC 1285

• the wife had obtained judicial separation on the ground of the husband’s
adultery. The court also ordered the husband to pay maintenance to her and to
the minor daughters. The husband did not comply with this order, and also
continued to live in adultery. His petition for divorce under s. 13(1A) on ground
of non-cohabitation, after the decree of judicial separation, was rejected on the
ground that he could not be allowed to take advantage of his own wrong.
• in Ram Chander v. Anguri Devi, AIR (2001)
• a husband filed a petition for divorce on grounds of the wife’s cruelty and
desertion. The parties lived together for 18 years and had a female child (who
later died). His allegations of cruelty and desertion were vague and
unacceptable. His intention was found to be not bona fide, because he wanted
to get rid of her as she could not give birth to a male child, and wanted to
remarry in the hope of getting a male child. Because of his bad behaviour, the
wife was forced to leave the matrimonial home.
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2.Collusion:
• Under s. 23(1)(c) of the Hindu Marriage Act, 1955, the court, before
granting relief under the Act, has to satisfy itself that the petition is not
presented or prosecuted in collusion with the respondent.
• This provision does not, however, apply to petitions under s. 11 of the
Act, viz., for decree of nullity on ground that the marriage is void.
• Collusion is an agreement or understanding between the parties or
their agents, to present or prosecute a petition either in the positive
side, by putting forward true facts in support of a false case or false
facts in support of a true case, or in the negative, to suppress facts
which would prevent or tend to prevent the court from granting a
divorce.
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• According to Rayden, ‘collusion means an agreement or bargain

between the parties to a suit or their agents, whereby the initiation
of the suit is procured or its conduct provided for.’
• ‘Collusion in judicial proceeding is a secret arrangement between
two persons that one should institute a suit against the other to
obtain a decision in judicial tribunals for some sinister purpose.
• Nagubai Ammal v. B. Sharma Rao, AIR 1956 SC 593
Court observed that in the context of matrimonial relief, when a
matrimonial proceeding is initiated or conducted by an agreement or
understanding between the parties, it is collusion.
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• In Laidler v. Laidler, (1920)
Collusion as a bar to matrimonial relief has been provided, to safeguard
the administration of those conditions on the fulfillment of which
alone, the marriage tie can be dissolved. Its object is to ensure, as far
as possible, that nothing but the truth shall be laid before the court,
and that no matrimonial facts shall be hidden from its consideration.
• Nirmala v. Narasimha, (1973) ILR 584 (Kant)
A decree obtained by collusion between the parties, cannot be set
aside on the application of either party because that would amount to
allowing the colluding party to take advantage of his or her wrong.
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3.Condonation:
• Condonation means forgiveness of the matrimonial offence and the
restoration of offending spouse to the same position as he or she
occupied before the offence was committed.
• Thus, when a spouse condones a matrimonial lapse of the other, then
he or she cannot later seek relief on that ground.
• Condonation, as a bar for relief is provided in almost all the
statutes.
• The Hindu Marriage Act, 1955, vide s. 23, provides that in a petition
for judicial separation or divorce on the ground of respondent’s
adultery or on the ground of cruelty, no relief would be available
when the adultery or cruelty has been condoned.
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• To constitute condonation, there must be two things—(i) forgiveness, and (ii)
restoration.
• The both, a factum of reinstatement; and a clear intention to forgive and remit
the wrong must be present.
• In Arun Kumar Bhardwaj v. Anil Bhardwaj, AIR 1993 P&H 33
• Thus, when divorce was sought by a husband on the ground of the wife’s
adultery, and it was alleged that the parents of the wife were called and they
assured that there will be no such lapse by their daughter in future, and
thereupon the parties lived together, it was held that the alleged offence had
been condoned.
• In Debidas v. Gyanwati, AIR 1993 MP 14
Court ruled, if after an alleged act of mental cruelty inflicted by a wife with threats
to commit suicide, the spouses lived together for about eight months, cruelty was
deemed to have been condoned.
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• Asoka Mitra v. Swapan Kumar, AIR 2008 NOC 226 (Cal) .
• Court ruled that the condoned cruelty would however, revive, if the
conduct of the misbehaving spouse who has been condoned, resumes
his/her wrongful behaviour and conduct after the condonation.
• Bikkar Singh v. Mohinder Kaur, AIR 1981 Punj 391
• One single act of cohabitation after discovery of fraud, which is a ground
for annulment under the Hindu MarriageAct, 1955, would not, however,
operate as condonation, unless it is a conscious and deliberate
ratification of the marital status by the aggrieved spouse, leading to a
strong inference that the petitioner had condoned the same.
• Wells v. Wells, (1954) 3 All ER 491
• When resumption of cohabitation has been induced by false statement
or fraud, there is no condonation.
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4.Delay:
• Delay in filing a suit for matrimonial relief is another bar in
matrimonial litigation. It is, however, not any delay, but only
unnecessary and improper delay, which would operate as a bar.
• under the Hindu Marriage Act, 1955, in case of voidable marriage,
where relief is sought on grounds of force or fraud, or
• on the ground that the respondent was, at the time of the marriage,
pregnant by some person other than the petitioner,
• the limitation period is one year after the force had ceased or the
fraud was discovered, and one year from the date of marriage,
respectively.(Hindu Marriage Act, 1955, s. 12(1)(c) and (d)).
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• In a case where a wife seeks to repudiate her marriage on the ground

that the same was solemnised before she attained the age of 15
years, she has to file the petition for divorce between the age of 15
and 18.
• She cannot file her application after attaining the age of 18 years.
(Hindu Marriage Act, 1955, s. 13(2)(iv).)
• These are specific situations where the ground for relief itself
stipulates the period within which petition has to be filed.
• In other cases, the proceedings are governed by the clause under sec.
23(d) of the Hindu Marriage Act, 1955.
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• In Nijhawan v. Nijhawan AIR 1973 Del 200
• A petition for annulment of marriage, filed 13 years after the
marriage, on the ground of husband’s impotence was allowed,
because of the conditions of the society and the traditions of the
families to which the parties belonged.
• In Jyotsnaben Ratilal v. Pravin Chandra Tulsidas AIR 2003 Guj 222
• A husband’s petition for annulment of the marriage on the ground of
wife’s impotency, six years after marriage, was held not to be barred.
The husband waited that long in the hope that medical science may
find some cure.
• The delay was held not to be unnecessary or improper.
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• In Pawan Kumar v. Mukesh Kumari, AIR 2001 Raj 1 .

• an application for annulment by the husband filed under s. 12(1)(d)
of the Hindu Marriage Act, 1955, on the ground that the wife was
pregnant at the time of marriage by some other person, was held to
be time-barred under cl. 2(b)(ii) of the section, since it was filed six
years after the marriage.
• However, in view of the facts and circumstances of the case, the
petition for annulment was allowed to be converted to one for divorce
under s. 13 on the ground of cruelty, and a divorce decree passed.
• In Thimappa v. Thimmava, AIR 1972 Mys 234
• Court held: where a husband filed a petition for divorce on ground of
wife’s adultery, four or five years after he came to know about this, it
was held to be a case of unreasonable delay.
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• Lakshmi Ammal v. Alagirswami,
• A second wife, married to the respondent six years before the
commencement of the Hindu Marriage Act, 1955, filed a divorce
petition under s. 13(2)(i), on the ground that her husband already had
a wife when he married her. She lived happily with the husband along
with his first wife for seven years, and also had two children after the
Act came into force; with full knowledge of her right to seek relief
under the Act. The court refused to give relief on the ground of delay.
• Gurmit Kaur v. Buta Singh, AIR 2010 NOC 440 (P&H).
• A petition for declaration of marriage as null and void, however,
cannot be rejected on ground of delay and laches. Marriage being
void (in this case on ground of bigamy) from inception, no amount of
delay can stand in the way of obtaining a declaration of nullity.
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5.One Year Bar:
• Sec. 14 a petition for divorce within one year of marriage is barred.
• Savita Devi v. Pran Nath, AIR 1967 J&K 89.
• Apart from the above bars, as a matter of public policy to ensure that fair trial is
given to a marriage, and parties do not take recourse to judicial proceedings in
haste, and the ship of marriage may not be wrecked in the first storm of married
life.
• The law-makers, however, were not unaware of situations that can be
exceptionally difficult for the parties to live in; hence an exception has been
made to this general rule.
• Thus, a court may entertain a petition before the expiry of one year from the
date of marriage, under the following conditions:
• (i) exceptional hardship to the petitioner;
• (ii) exceptional depravity on the part of the respondent;
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• In Saudamini Lenka alias Mohapatra v. Khagheswar Lenka, (2001) 1
Femi-Juris CC 246 (AP).
• a petition for divorce was filed by the husband within one year of
marriage in usual course under s. Section 13 of the Hindu Marriage
Act, 1955, and the family court passed the decree. On appeal, the
same was set aside, as there was no pleading regarding existence of
‘exceptional hardship’.
Maintenance pendente lite and expenses
of proceedings: Sec.24
• 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.
• Inserted by 2001 Amendment: 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.
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• Naresh Kumar v. Sarabjit Kaur, AIR 2007 P&H 47 .
• Non-payment of interim maintenance was construed as a ‘wrong’ within the
meaning of s. 23 of the Act thereby disentitling the husband to a decree of
divorce.
• It is significant to note that the words used in s. 24 are "where in any
proceedings under the Act". Thus it could be proceedings for any relief.
Proceedings for maintenance pendente lite are not dependent on the merits of
the main case.
• Thus, in Sandeep Kumar v. State of Jharkhand, AIR 2004 Jhar 23
• where a husband had filed a petition under s. 12 of the Act for declaration that
the marriage was null and void, his plea that no maintenance under s. 24 could
be ordered was rejected. The court held that so far as s. 24 is concerned the
wife’s right to seek maintenance is not affected and it is immaterial whether
the main petition is under s. 12 or it is under s. 13.
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Maintenance Hindu Adoptions and Maintenance Act, 1956 and Sec. 24

of HMA 1955:
• Section 18 of the Hindu Adoptions and Maintenance Act, 1956, lays
down the rule relating to the personal legal obligation of a husband to
maintain his wife.
• The mere fact that a wife has adopted proceedings under that section is
no bar to her claiming any relief under this Act and also claiming interim
maintenance under the present section. The very object and purpose
of the present section is to provide immediate relief to her in any
proceeding adopted by her under this Act .
• Under s. 18 of Hindu Adoptions and Maintenance Act, 1956 wife is
entitled to live separately from her husband without forfeiting her
claim to maintenance, provided her separate living is justified which
means that the husband:
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• (i) is guilty of desertion;
• (ii) has treated her with cruelty;
• (iii) is suffering from a virulent form of leprosy;
• (iv) has any other wife living;
• (v) keeps a concubine in the same house, or is living or habitually resides with
a concubine elsewhere;
• (vi) has ceased to be a Hindu by conversion to another religion; or
• (vii) if there is any other cause justifying living separately.
• The section provides two specific bars which would disentitle a wife from
claiming maintenance under this Act, viz.,
• (a) if she is unchaste or
• (b) if she ceases to be a Hindu by conversion to another religion.
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• Proceedings under section 24 are in no way inconsistent with
provisions of section 18 of the Hindu Adoptions and Maintenance
Act and are not hit by section 4(b) of that Act
• Maintenance would include educational expenses under the Hindu
Adoptions and Maintenance Act, 1956.
• NP Kaushik v Suman Kaushik, 2009 (1) Hindu LR 617 (Del)
• Held: proceedings under section 20 of the Hindu Adoptions and
Maintenance Act, 1956, as regards maintenance of children are
concerned, it has been held that such proceedings are independent
of the present section 24 of this Act and have no correlation to that
provision under that enactment.
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• Maintenance U/S 125 Code of Criminal Procedure and Sec. 24 of HMA
1955:
• The mere fact that there is a pre-existing order for maintenance against the
husband under the Criminal Procedure Code, 1973 would not bar the court
from making an order under sec. 24 in the exercise of its discretion.
• The mere preferring of an application for maintenance under one
enactment, will not preclude an application under the other.
• The amount awarded under section 125 of the Code is adjustable against
the amount awarded in proceedings under this section.
• An order of interim maintenance under the present section is not a final
determination and though entitled to consideration in a proceeding for
maintenance under the Criminal Procedure Code, 1973 (section 125), it does
not restrict the power or discretion of the magistrate in the matter of
quantum of maintenance in a proceeding under the Code.
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• Sanjay Kumar Sinha v Asha Kumari, (2018) 5 SCC 333 .

• The Supreme Court has held that maintenance granted under 24 of HMA
1955 supersedes that granted under the Cr.P.C Sec. 125.
• In Rajnesh v Neha, Criminal Appeal No.730 of 2020
• the Supreme Court has now held that:
• (i) where successive claims for maintenance are made by a party under
different statutes, the Court would consider an adjustment or setoff, of the
amount awarded in the previous proceeding/s, while determining whether
any further amount is to be awarded in the subsequent proceeding;
• (ii) it is made mandatory for the applicant to disclose the previous
proceeding and the orders passed therein, in the subsequent proceeding;
• (iii) if the order passed in the previous proceeding/s requires any
modification or variation, it would be required to be done in the same
 Permanent alimony and
maintenance: 25
• (1) 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.
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• (2) 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.
• (3) 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.
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• The section, although it recognizes the right of the wife and the
husband to be in equali jura in the matter of maintenance, when a
decree is passed granting relief in any matrimonial cause, is primarily
intended to secure maintenance and support for the wife in whose
favour a decree is made, granting any of the reliefs under the Act.
• The obligation of the husband to provide for his wife’s maintenance
and support does not come to an end simply on the passing of a
decree for any of the reliefs which the court is empowered to grant
under the Act even when the decree is in favour of the husband.
• The court is empowered to direct that the amount to be paid by one
spouse to another shall be in the form of a gross sum or in the form
of monthly or other periodical payments. The duration of such
payments is limited to the life of the applicant.
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• The court is also empowered to vary, modify or rescind any such order in view of
change in the circumstances of any party. The order may be rescinded upon
proof of remarriage or unchastity of the party in whose favour it has been
made.
• Arun Mullick v Dorothea Mitra, AIR 1983 SC 916
• Held that a decree for alimony passed under this section would not become
extinguished upon the death of the husband and the assets left by the
husband would be liable to be proceeded against in the hands of his legal heirs
for satisfaction of the same.
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• Under sub-s. (2) of s. Section 25 of the Hindu Marriage Act, 1955, the court has
power to vary, modify or rescind a maintenance order made under sub-s. (1) if it
is satisfied that there is a change in the circumstances of the parties.
• Polavarapu Sri Devi v. Polavarapu Gangaraju, AIR 2010 (NOC) 631 (AP).
• Where after the original award of maintenance under s. 25, the wife acquires
property which fetches her monthly rent, the court would be justified in
cancelling the earlier maintenance order.
• Unchastity is a bar to maintenance claim amongst all the personal laws.
• Thus in Sunita Singh v. Raj Bahadur, AIR 1999 All 69
• A husband obtained divorce on the ground of adultery and cruelty of the wife.
The court also awarded maintenance of Rs. 300 per month to the wife on her
application. In revision, the maintenance order was set aside under s. 25(3) of
the Hindu Marriage Act, 1955 as there was a clear finding of illicit relations
against the wife.
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• The fact that an appeal against a divorce decree is pending, is no bar
to a claim for maintenance.
• In Surendra Kumar Bhansali v. Judge, Family Court, AIR 2004 Raj 257
A husband obtained a divorce decree against his wife. After the decree,
the wife filed an application for permanent alimony under s. 25. She
also filed an appeal against the divorce decree. The husband
challenged the maintenance application on the ground that an appeal
against divorce was pending, maintenance was however, allowed.
 Custody of children: 26
• Custody of children: In any proceeding under this Act, the court may,
from time to time, pass such interim orders and make such
provisions in the decree as it may deem just and proper with respect
to the custody, maintenance and education of minor children,
consistently with their wishes, wherever possible, and
• may, after the decree, upon application by petition for the purpose,
make from time to time, all such orders and provisions with respect to
the custody, maintenance and education of such children as might
have been made by such decree or interim orders in case the
proceeding for obtaining such decree were still pending, and the court
may also from time to time revoke, suspend or vary any such orders
and provisions previously made:
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• Inserted by 1976 Amendment Act: Provided that the application with
respect to the maintenance and education of the minor children,
pending the proceeding for obtaining such decree, shall, as far as
possible, be disposed of within sixty days from the date of service of
notice on the respondent.