Sunday, 10 June 2018

NOTES ON HINDU MARRIAGE ACT


S 3. Definition:-
c) full blood and half blood- Two persons are said to be related to each other by full blood when they are descended from a common father by the same wife, and by half blood when they are descended from a common father but by different wives;

d) uterine blood -Two persons are said to be related to each other by uterine blood, when they descended from a common mother but by different husbands;


f) Sapinda relationship with reference to any person extends as far as third generation inclusive in the line of ascent through mother and fifth generation inclusive in the line of ascent through father,the line being traced upwards in each case from the person concerned, who is to be counted as the first generation.

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S 5. Conditions for a hindu marriage:- A marriage may be solemnized between two hindus, if following conditions are fulfilled,namely:-
1) neither party has a spouse living at the time of marriage;
2) At the time of marriage, neither party
a) is incapable of giving valid consent due to unsoundness of mind;or
b) 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;
3) Bridegroom has completed age of 21 years and bride has completed 18 years of age.
4) parties are not within the degrees of prohibited relationship unless custom to contrary.
5) parties are not sapindas of each other unless custom to contrary.

S 7 Ceremonies of a hindu marriage:-
1) in accordance with customary rites of either party.
2) If saptapadi is mandatory,after completion of sapdapadi.

S 8. Registration of hindu marriage:-
Sub S 5. Validity of marriage is not affected if marriage is not registered.

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S 9. Restitution of conjugal rights:- When either husband or wife has without reasonable cause withdrawn from society of the other, the aggrieved party may apply for restitution of conjugal rights.
Explanation: Where a question arises whether there has been reasonable cause for withdrawal from society, burden of proving reasonable excuse shall be on the person who has withdrawn from the society.

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S 10. Judicial separation:-

S 11. Void marriage:- Any marriage solemnized shall be declared as null and void if it contravenes any of conditions specified in clause (1) ,(4) ,(5) of S 5.

Read important judgments on void marriage:
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S 12. Voidable marriage:-
1) Any marriage solemnized shall be voidable and may be annulled by a decree of nullity on any of the following grounds-
a) Marriage has not been consummated owing to impotence of respondent; or
b) Marriage is in contravention of condition specified in clause 2 of S 5; or
c) Consent of petitioner was obtained by force or by fraud as to nature of ceremony or as to any material fact or circumstances concerning respondent; or
d) Respondent was at the time of marriage pregnant by some person other than petitioner.
2) Notwithstanding anything contained in sub-s (1),no petition for annulling marriage-
a) on the ground specified in clause (c) of sub s (1) shall be entertained if
1) petition is presented more than one year after the force had ceased to operate or the fraud has been discovered; or
2) petitioner has with his or her full consent lived with the other party to marriage as husband or wife after the force had ceased to operate or the fraud has been discovered.
b) on the ground specified in clause(d) of Sub S (1) shall be entertained unless the court is satisfied-
1) that the petitioner was at the time of marriage ignorant of the facts alleged;
2) proceedings has been instituted within one year from the date of marriage, and
3) the marital intercourse with consent of petitioner has not taken place since discovery by petitioner of the existence of said ground.


S 13 Divorce:-
The following twelve grounds of divorce available to either spous that is husband or wife:
1) ADULTERY,namely that the other party has after solemnization of marriage had voluntary sexual intercourse with any person other than his or her spouse.

2) CRUELTY,

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

It is now well established that two factors must co-exist to establish desertion. Firstly there must be the factum that is the actual separation and secondly, this must be accomplished by the animus deserendi that is the intention to desert. Both these ingredients must continue throughout the statutory period that two years or more.

4) CONVERSION, namely that the other party has ceased to be a hindu by conversion to another religion.

5) INSANITY,namely that the other party has been incurably of unsound mind or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner can not reasonably be expected to live with the respondent.

6) LEPROSY,namely that the other party has been suffering from a virulent and incurable form of leprosy.

7) VENEREAL DISEASE,namely that the other party has been suffering from venereal disease in a communicable form.

8) RENOUNCING THE WORLD, namely that the other party has renounced the world by entering any religious order.

9) NOT HEARD OF, namely that the other party has not been heard of as being alive, for a period of at least seven years,by persons who would naturally have heard of him had he been alive.

10) DECREE OF JUDICIAL SEPARATION, namely that a decree for judicial separation has been passed between the parties and there has been no resumption of cohabitation for a period of at least one year after the passing of such decree.

11) DECREE OF RESTITUTION OF CONJUGAL RIGHTS,namely that a decree for restitution of conjugal rights between the parties has been passed,but there has been no restitution of conjugal rights for a period of at least one year after passing of such a decree.

GROUNDS OF DIVORCE AVAILABLE TO WIFE ONLY

1) BIGAMY,namely that husband has married again during subsistence of her marriage with him.

2) RAPE,SODOMY OR BESTIALITY,namely that husband has been guilty of rape, sodomy or bestiality after the solemnization of the marriage.

3) DECREE OR ORDER AWARDING MAINTENANCE,namely that in a suit under S 18 of Hindu adoption and maintenance Act , or in a proceeding under S 125 of CRPC, a decree or order has been passed against husband awarding maintenance to the wife and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or more.

4) REPUDIATION OF MARRIAGE,namely that the marriage was solemnized before the wife attained the age of fifteen years, and that she has repudiated the marriage after attaining that age,but before attaining the age of eighteen years.


Read important judgments on Divorce:
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S 13A. Alternate relief in divorce proceeding- Court may pass decree for judicial separation in place of decree for divorce.

S 13B. Divorce by mutual consent:-
On a petition of both parties to the marriage, on the ground-
1) that they have been living separately for at least one year;
2) that they have not been able to live together; and
3) that they have mutually agreed that their marriage should be dissolved.
After such a petition is presented,on the motion of both the parties made not earlier than six months from the date of petition and not later than eighteen months from that date, if the court is satisfied that the averments made in the petition are true, the court passes a decree of divorce declaring the marriage to be dissolved with effect from the date of decree.

Read Important judgments on divorce by mutual consent: click here

S 14. No petition for divorce to be presented within one year of marriage-
In case of exceptional hardship court can permit filing of petition within one year.

S 15 Divorced persons when may marry again-
When a hindu marriage has been dissolved by a decree of divorce, either party can marry again provided that -
a) there was no right of appeal against the decree; or
b) if there was such a right of appeal.
1) the time for appeal had expired without an appeal having been filed;or
2) an appeal had been filed and dismissed.

S 16. Legitimacy of children of void and voidable marriage-
1) Children of void and voidable marriage as per S 11 or S 12 of Hindu marriage Act are deemed to be legitimate.
2) there must be marriage between man and woman.S 16 can not invoked if there was no marriage.
3) such a child is not entitled to inherit property of any person other than his parents.

JURISDICTION AND PROCEDURE
S 19. Court to which petition shall be presented:-
Every petition under this Act shall be presented to the district court within the local limits of whose ordinary original civil jurisdiction-
1) marriage is solemnized,or
2) Respondent at the time of presentation of petition resides,or
3) parties to marriage last resided together,or
3-a) In case wife is the petitioner,where she is residing on the date of presentation of the petition,or
4) the petitioner is residing at the time of presentation of petition, in a case where respondent is residing outside the territories to which this extends or has not been heard of as being alive for a period of seven years or more.

S 20. Contents and verification of petitions:-
1) Every petition presented under this Act shall state distinctly the facts on which claim to relief is founded and except in a petition under s 11,shall also state that there is on collusion between the petitioner and the other party to marriage.
2) Statements contained in every petition under this Act shall be verified by petitioner and may at the hearing be referred to as evidence.

S 21. Provisions of civil procedure code is applicable to proceeding under this Act.

S 21A . Power to transfer petition in certain cases.

S 21B .Special provision relating to trial and disposal of petition under this Act- To be decided expeditiously.

S 21C. Documentary Evidence:- No document is inadmissible in evidence in proceeding under this Act on ground that it is not duly stamped or registered.

S 22. Hearing in Camera:- All proceeding under tht lawful for any person to print or publish any matter in relation to any suis Act shall be in camera . It is noch proceeding,except a judgment of high court or supreme court and that too, with the previous permission of court under pain of fine upto a maximum of Rs. 1000.

S 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 petitioner is not taking advantage of his own wrong or disability for the purposes of such relief,and
b) where divorce is claimed on ground of adultery, the petitioner has not in any manner 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) Petition (not under S 11) is not filed in collusion with respondent;and
(d) there has not been any unnecessary or improper delay in instituting the proceeding, and
(e) there is no other legal ground why relief should not be granted,
then court will grant the relief.
2) Before granting any relief under this Act, it shall be the duty of court to make every endavour to bring about reconciliation between the parties:
4) where divorce decree is passed by court, court shall give copy thereof free of costs to each of parties.

S 23A. Relief for respondent in divorce and other proceeding:- In any proceeding for divorce or judicial separation or restitution of conjugal rights,the respondent may not only oppose the relief sought on the ground of petitioner's adultery, cruelty or desertion, but also make a counter claim for any relief under this Act on that ground; and if petitioner's adultery,cruelty or desertion is proved, the court may give to respondent any relief under this Act to which he or she would have been entitled if he or she has presented a petition seeking such relief on that ground.

24. Maintenance pendente lite and expenses of proceeding :-
Where in any proceeding under this Act,it appears to court that either wife or husband has no independent income sufficient for her or his support and necessary expenses of proceeding ,it may on the application of the wife or husband ,order respondent to pay to the petitioner the expenses of litigation and monthly sum having regard to petitioner's own income and income of respondent,it may seem to be reasonable.

S 25. Permanent alimony and maintenance:-
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 either by wife or husband as the case may be, order that respondent shall pay to 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 applicant as,having regard to
a) respondent's own income and other property,if any
b) income and other property of applicant
c) conduct of parties
d) other circumstances of the case.
Court may secure such payment by a charge on the immovable property of respondent.
2) court may vary, modify or rescind any such order if there is change of circumstances of either party.
3) If the court is satisfied that the party in whose favour an order has been made under this section has remarried 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.

Read important judgment on permanent alimony;
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S 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 deems fit just and proper with respect to custody, maintenance and education of minor children, consistently with their wishes,where ever possible.


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S 27. Disposal of property:- In any proceeding under this Act, the court may make such provisions in the decree, as it deems just and proper with respect to any property presented at or about the time of marriage, which may belong jointly to both husband and wife.

S 28. Appeals from decrees and orders:-
1) All decrees made by court in any proceeding under this Act shall subject to the provisions of sub-section(3),be appealable as decrees of the court made in the exercise of its original civil jurisdiction,and an appeal lies to the court in which appeal ordinarily lie from the decisions of the court given in the exercise of its original civil jurisdiction.

2) Orders made by court in any proceeding under section 25 or S 26 of this Act, shall be appealable if they are not interim orders,and every such appeal shall lie to the court to which appeal ordinarily lie from the decision of said court.

3) There shall be no appeal under this section on the subject of costs only.

4) Every appeal under this section shall be preferred within a period of ninety days from the date of decree or order.

Period of filing an appeal was increased from 30 days to 90 days in 2003.


S 28.Enforcement of decrees and orders:- All decrees and orders passed under this Act shall be enforced as decree of civil court.

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